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HomeMy WebLinkAboutSmuggler Superfund - EPA Administrative Order 19850000("rt UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION VIII IN THE MATTER OF: Centennial -Aspen, A Limited Partnership; Board of County Ummissioners, of Pitkin County Colorado; Smuggler -Durant Mining Corporation; Western Slope Management Company; Jay R. Kuhne; Smuggler Racquet Club, Inc.; Silver King Investments, Ltd.; Hunter Creek Commons Corporation; MCO Holdings, Inc.- Aspen Consolidated Mining Company; and Smuggler Mobile Home Owners Associ,,4jQ-* DOCKET NO. CERCLA VIII -85-04 "m JUN z 5 1185 "Y1R0Htdrr.TATAL WT=TIQN This Administrative Order is issued by the United States Environmental Protection Agency Region VIII (E,PA) pursuant to the authority vested in the President of the United States by Section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9606(a), and delegated to the Administrator of the EPA on August 14, 1981, by Executive Order 12316, 46 Fed. Reg. 42237, and further delegated to the Regional Administrator by EPA Delegation No. 14-1-A. This authority has been redelegated to the Director of the Waste Management Division by a January 28, 1985, revision to Delegation No. 14-1-A. FINDINGS -OF -FACT 1. Respondent Centennial -Aspen (Centennial), a limited partnership operating in Colorado, owns land within the boundaries of the area designated as the Smuggler Mountain Site (Site), a CERCLA site. 'chis land is currently being developed fjor housing units,. 2. Respondent Centennial did arrange for the removal and disposal of mine wastes during the 1984 construction season. 0 �pondent Board o:f County Commissioners of Pitkin County, Colorado (Pitkin County)i, is the owner of land and mining claims within the Site. 4. Respondent Pitkin County did arrange, by contract of August 8, 1984, for the disposal and burial of mine tailing�s on 5. Respondent Smuggler -Durant Mining CorporatioE (Smuggler -Durant), a New York corporation, did own, through its predecessor Smuggler Leasing Company, land and mining claims C, within the Site during the period of greatest mine waste deposition (1890-1920). 6. Respondent Smuggler -Durant currently Qwns-land and mining claims within the boundaries of the Site. 01 7. Respondent Smuggler -Durant obtained royalties from lessees of its mining claims, a direct result of the extraction of ore from these claims and the generation of related mine 11111111 1! 1 1 i , 8. Respondent Western Slope Management Company currently owns building sites and multiple condominium units within the Site. ® 2 - 9. Respondent Jay R. Kuhne owns land within the Site. 10. Respondent Smuggler Racquet Club, Inc., a Colora(E# corporation, currently owns land within the boundaries of the Site. 11. Respondent Silver King Investments, Ltd., owns several buildings within the Site. -12. Respondent Hunter Creek Commons Corporation, a Colorado corporation, o_�Lus land within the Site. 13. Respondent, MCO Holdings, Inc., (MCO), successor corporation to McCulloch Oil Corporation of California, (McCulloch Oil), is a Delaware corporation which owned land and mining claims within the boundaries of the area designated as the Smuggler Mountain Site. During that period Of Ownership and control, tailings piles on respondent MCO's lands were reprocessed and reintroduced onto the Site. 14. Respondent, MCO did, through its predecessor corporation, McCulloch Oil, and its wholly-owned subsidiary, Aspen Consolidated Mining Company:, contract for the milling of, and further extraction of minerals from the tailings piles, on the 1S. Respondent, Aspen Consolidated Mining C,ompang (Aspen Consolidated) did own land within the Smuggler Mountain Site boundaries during the period between 1964 and 1967. During this period, Aspen Consolidated did mill and concentrate dump material on the Site and did redeposit the wastes therefrom, among other places, within the Site's boundaries. 16. Respondents, Aspen Consolidated, did by contract of #ctober 30, 1965, arrange for the reprocessing of dump materiaT - 3 - 17. Respondent, Smuggler Mobile Home Owners Association owns land within the Sitels, boundaries. 18. The Smuggler Mountain Site was proposed for addition to the National Priorities List (NPL) on October 15, 1984., The NPL is a list of CERCLA sites promulgated pursuant to the requirements of Section 105(8)(8) and the National Oil and Hazardous Substances C'ontinizency Plan (NCP), 40 C.F.R. Part 300 et -se 19. The Smuggler Mountain Site covers approximately 75 acres in and adjacent to Aspen, Pitkin County, Colorado. The Site includes many old silver and lead mines that were most active between 1879 and 1920. At the time that the Environmental Protection Agency (EPA) conducted the site investigation for NPL purposes, the Site was covered with varying depths of mining wastes including mill tailings, waste rock and smelter by-products. Some of these wastes have been or may be used as fill material for building foundations, street/road construction, etc. 20. Analysis of the mining wastes taken from the Site between 1982 and 1984 revealed siignificant levels of toxic and/cZ carcinogenic metals including lead,, cadmium, zinc and arsenic. El. The primary concern is the exposure of people, especially young children, to the toxic and/or carcinogenic metals described in Paragraph ZO. Many of these substances are significantly toxic and/or carcinogenic if ingested or inhaled. U. Due to construction activities on the Site and the resultant movement of large quantities of mining waste, EPA is concerned that exposure to the metals described may have been ® 4 - 23. Due to the accessibility of these wastes to humans, air and water, there is a significant threat to human health and the environment. t4. According to the 1980 Census, approximately 4SOO peiople reside within a 3 mile radius of the Site. In addition, a large number of tourists travel to the city each year. 25. Respondents received notice of this administrative order 02 June 20, 1985, and were given the oipportunity to carry out the actiom under a consent order. There has been no response as of the date of 26. The Smuggler Mountain Site is a "facility"' as define,d in Section 101(a) of CERCLA, 42 U.S.C. Section 9601(g). V. Respondents named in Paragraphs 1-17 are "persons" a -s defined in Section 101(21) of CERCLA, 42 U.S.C. Section 9601(21). 28. The mining wastes and constituents described in Paragraph 20 above are "hazardous substances" as defined in Section 101(14) of CERCLA, 42 U.S.C. Section 9601(14). 29. The potential escape of hazardous substances from the Site and the: potential for direct contact between humans and these wastes constitute a threatened "release" as defined in Section 101(22) of CERCLA, 42 U.S.C. Section 9601(22). 30. As current owners of land within the Site, past landownerc of the Site during periods of waste deposition and persons who by contract or otherwise arranged for disposal or treatment of wastes on the Site, the preceeding Respondents are "responsible parties" as defined in Section 107(a) of CERCLA, 42 U.S.C. Section 9607(a). - 5 - DETERMINATIONS 31. The rele,ase and tihreat, of release into the environment of the hazardous substances described in the "Findings of Facv, may present an imminent and substantial endangerment to the public health, welfare or the environment. .32. So as to protect the public health and welfare and the environment, and to prevent or mitigate the immediate and significant threat thereto, it is necessary that action be taken to abate the release or threat of release of hazardous substances into the environment at and from the Smuggler Mountain Site. Based upon the foreig�oing facts and determinations, and pursuant to the authority of Section 106(a) of CERCLA, the Respondents are ORDERED to take and complete the following actions and to comply with the following restrictions at the Smuggler Mountain Site: 1. Within fourteen (14) days of the effective date of this Order: a) grade the parking lot and tailings berm between the Smuggler Mountain Trailer Park and the Smuggler Racquet Club to form a uniform surface area: b) remove any obstructive objects such as large rocks, M ushes, and/or weeds to create a sqoith surface; c) cover and secure the exposed tailings areas with a specially designed fabric which prohibits the passage of any material other than water across its membrane; I W -M d,) cover the fabric with approximately eight inches of road base material where automobile traffic is expected, the remaining areas of fabric can be covered with one to two inches of soil to protect it from UV radiation; e) Maintain the road base cover. C'. Seven working days before the movement, treatment or covering of any soils (including mine wastes) in excess of one cubic yard on the Site, notify EPA of the materials to be moved and their planned disposal site., If any of these soils have levels of lead over 1000 mg/kg or cadmium over 10 mg/Rg, no movement, treatment or covering of these soils is to occur without prior EPA approval. Within three working days of the date of issuance of this Order, Respondents may request and receive a conference to discuss this Order and its applicability. At such a conference, Respondents may appear in person or be represented by an attorney or other person, and•may present any objections, defenses, or information they have regarding this matter. INITIAL NOTIFICATION Respondents shall notify EPA of their intent to comply with this Order within seven (7) working days of the issuance of this Order. - 7 - NOTIFICATlot4 OF SAMP.LING AN* -OTHER ACTITITIES Respondent shall notify EPA at least seven working days jorior to coinducting any sampling, removal, decontamination, o.L other such activities under this Order. FAILURE TO NOTIFY If Respondents fail to, notify,EPA as required by this Irder, for all legal purposes under this Order it shall be deemed that Respondents do not intend to comply with this OrdeTj The provisions oif this Order shall apply to, and be binding trustees, successors, assigns and contractorl SPLIT -SAIMPLES EPA shall be given the opportunity to take, or upon EPA request Respondents shall provide, split samples of all samples taken by Respondents at the Site pursuant to this Order. SITE ACCESS Respondents shall provide site access to EPA and/or its 03E�� ASSURANCE Respondents shall use EPA approved quality asisurance, quality control, and chain of custody procedures,, in accordance with Exhibit 1, throughout all activities subject to this, Order. COMPLIANCE WITH APPLICABLE LAWS All actions carried out by Respondents pursuant to this Order, shall b,e conducted in accordance with all applicable requirements . The United States Government shall not be liable for any injuries or damages to persons or property resulting from acts or omissions of the Respondents or their employees, agents, or contractors in carrying out activites conducted pursuant to this Order, nor shall the United States Government beheld as a party I to any contract entered into by the Respondents or their employees,.agents, or contractors in carrying out activities pursuant to this Order, 000,103MRAS Nothing in this Order is intended to release any claims, causes of action, or demands in law or equity of any party against any entity not subject to this document for any liability it may have arising out of or relating in any way to the Smuggler Mountain Site. In the event that the Respondents fail to comply in a timely manner with any requirement of this Order or upon concurrence of any emergency situation or in the event of a release or threatened release not addressed in this Order, EPA may proceed with any remedies available to it under CER LA. Pursuant to Section 10!6(b) of CERCLA, 42 U.S.1 Section 9606(b)), if the Respondents willfully violate, or fail or refuse to comply with this Order, they may be subject to penalties of "not more than $5,000 for each day in which such violation occurs or such failure to comply continues." Additionally, pursuant to Section 107(c)(3) of -CERCLA, 42 U.S.C. Section 9607(c)(3), failure to "properly provide removal or remedial action" as required bythisOrder may result in the assessment of "punitive damages in an amount at least equal to, and not more than three times the amount of any costs incurred by the Fund as a result of such failure to take proper action." - dM116116-W0100-M. Ms � dg� — D-Ite of Issuance ---Ro �ert�. Du Hazardous Wa Division / onto= e, y / YQi-r-e c t o r e M-d-nagement EXBIBIT I PRP DATA CRITERIA (Smuggler - Use Level B Criteria) INTRODUCTION Existing data supplied by parties other than EPA or its contractors may be useful for preparing sampling plans, assessing historical trends, or evalu- ating potential risks to human health and the environment. However, data q�uality and utility varies depending on factors such as sampling methods, sam- ple preparation, analytical methods, laboratory QC, and available documenta- tion. Because of these factors, this cr,iteria document has been prepared to evaluate and classify data. These criteria will be incorporated by reference into all administrative orders in which a potentially responsible party as- sumes the responsibility of coillecting data. This will provide a uniform set of criteria for ensuring, data reliability and proper chain of custody docu- mentation. These criteria serve as guidance for agency decisions regarding the ac- ceptability of data gathered by potentially responsible parties in CERCLA cases. The content of thiis guidance document does, not constitute rules and, therefore, does not legally bind the agency to the course of action suggested by the guidance. 1. Chemical Data: Data used to charac�terize the nature and extent chemical contaminat,ion associated with the site-, and 2. Physical Data: Data pertaining to, physical aspects of the site, such as subsurface stratigraphy, general features of the s,ite, and information primarily related to field observations, such as chemical odors and color which may be associated with the examination of.samples. The screening cri'te,ria for chemical data that will be discussed in 11 following paragraphs are designed to classify data into three categories: 11. Unusable data, i.e., data that should not be, considered; 2. Level A, i.e., data that meets the first level screening criteria but not the second level criteria. This class of data could be used to help develop or refine study plans, evaluate different sampling or analysis techniques, or identify gaps in the data base; and 3. Level 8, i.e., data that meet,s both sets of screening criteria. Datia submitted meets all c,riteria and should be fully considered when evaluating conditions such as risks or potential solutions to problems. The crit,eria for physiical data that will be discussed in the last para- 3raph are designed to clas,sify physical data into two categories acceptable or unacceptable on a casei-by-case basis. CHEMICAL DATA Level A To meet Level A criteria the following informiation must be fully doc 11 mented through sampling and field records or labor,atory records: 1. Sampling date; - 2. Sampling team and/or member in charge; ® Sampling location within, the required tolerances for the study; 4. Physical description of sampling location (e.g., tilled, rangeland, type of crop, monitoring well type, portion of plant sampled, etc.); 5. Sampling depth increment for soils (if applicable); 6. Sample collection technique; 7. Field preparation techniques (e.g., sieving, compositing, etc.); B. Sample preservation technique(s); 9�. Sampling shipping data and laboratory analysis date; 10. Laboratory preparation techniques (e.g., grinding, sieving, drying, digestion); 11. Laboratory analysis methods including reference method; 12. Laboratory analysis detection limits either by specific notation or through reference method; 13. Companion sampling efforts such as crops or livestock (yes or no; if yes, then what); and 14. Visual classification of sample using an accepted classification system (if applicable). When there is substantial uncertainty in the determination of the above items, conflicting information contained within the documentation, conflicting information between the documentation and verbal response of the member in charge of the sampling, or a general disorganization in the sampling document- ation, data will be selected by an EPA Site Project Officer on a case-by-case basis for inclusion in the data set which passes Level A screening. Level B Only the data which has met Level A criteria will be considered for Level B. To meet Level B criteria, the following information must be fully docu- mented: Quantitative Statistical Significance 1. Documentation of laboratory/field instrumentation and standard- ization and methods (other than a reference); 3. Procedural reference and/or calibration data; 4. Verification of standards using EPA or NBS reference materials not less than once each three months-, 5. Analysis of laboratory (reagent) blanks at a frequency of at least I per 20 samples; 6. Analysis of labor,atory replicates (duplicate and splits) at frequency of at least I per 20i samples; 7. Analysis of laboratory, spikes at a frequency of at least 1 pe 20 samples if the analyte is amen:able to spiking; for instanc there is no method for spiking pFI; I 8. Analysis of field replicates (duplicates or splits) at a fre- quency of at least 1 per 20 samples for each matrix; 9. Presentation of tabulated QC data or QC charts/acceptance cri- teria; 10. QA/QC certification of the laboratory and/or participation in round-robin testing by and/or with EPA -accredited agencies; and 11. QC limits shall be consistent with the limits established for EPA's contract laboratory program (Reference Users Guide to the Contract Laboratory Program, July 1.984 or most recent revision). The suggested frequency of QC samples represents generally accepted mini- mum frequencies. Data should not be rejected based upon lower frequencies un- less, of course, no QC samples were in all, of the categories or unless the QC limits applied to the data were so relaxed that virtually no data quality con- trol was in effect. Custody and Document Control 1. Field custody noted in field logbook or transfer of custody documentation available; 2. Samples hand delivered to laboratory or transfer -of -custody documentation available; 3. Laboratory custody documented by transfer -of -custody d'ocumenta- tion from either field personnel or shipper; 4. Laboratory custody documented through designated laboratory sa- mple custodian with secured sample storage area; 5. Sample designation number(s) traceable through entire monitor- ing system; 6. Field notebooks and all custody documents stored in secure re- pository or under the control of a document custodian; 7. All forms filled out completely in indelible ink without alter- ations except as initialed; and 8. Identity of sample taker. In some cases, the handliUg of a sample while in the custody of one! ind vidual m,ay not be properly dociumented. In addition, written documentation ol transfers of custody between two individuals may be lost. In s,uch cases, it may be necessary to rely on the custodian's verbal testimony thiat the sample remained secure -or that a transfer was made to another individual. If there is any chance that the tustodian's testimony will be seen as unreliable, the data produced as a result of that sample will be rejected. Sample Representativeness 1. Compatibility between field and laboratory measurements or suitable explanation of discrepancy; 2. Analysis within time limits suitable for the preservation and' analysis methods used; 3. Sample storage within suitable temperature, light, and moisture conditions; 4. Proper sample containers used (i.e., inert); 5. Proper sample collection equipment used (i.e., inert); properly decontaminated; not biased; 6. A comprehensive evaluation of all factors indicates data was prescreened by any party using different criteria than that contained herein (bias screening); and 7. Sample site selection criteria provide representativeness. Assessing how representative a sample may have been is partly subject- ive. Therefore, where considerable uncertainty exists, the EPA Site Project Officer is responsible for deciding when to include or exclude data. PHYSICAL DATA Physical data resulting from measurements or observations will be evalu- ated by EPA on a case-by-case basis. A thorough description of the methodol- ogy used, and a rationale for the use of that methodology, will be required. In addition, the following information must be documented: 1. Observation date and time; 2'. Observation team, observation taker and recorder, team leader; 3. Observation location; 4. Complete documentation of record-keeping practices; 5. Field notebooks and all custody documents stored in a secure reposi- tory or under the control of a document custodian; and 6. All forms filled out in indelible ink without alterations except as initialed. IfilITED STATES ENVIRONMENTAL PROTECTION AGEN REGION VIII I 961EWNUU-6190-M Centennial -Aspen, A Limited Partnership; Board of county Commissioners of Pitkin County Colorado; Smuggler -Durant mining Corporation- Western Slope Management C�mpany; Jay R. Kuhne; Smuggler Racquet Club, Inc. ; Silver King Investments, Ltd.; Hunter Creek Commons Corporation; MCO Holdings, Inc.; Aspen Consolidated Mining Company; and Smuggler Mobile Home Owners Association AU 6 X85 ac F'pt.CT %'7A L Au -NC" MAR"V"I IV, DOCKET O. CEROLA VIII -85-04 This amendment effects changes to Docket No. CERCL:A VIII -85-04. These changes are effective on the date on which the amendment is signed by the Director of the Waste Management Division, Region VIII, U.S. Environmental Protection Agency. The changes, are as follows. FT -1 I 1., 10 1 1 , I Delete last word of paragraph and add land other similar uses. The boundaries of the Site have been preliminarily set by the 1'41• lead isopleth showbit IIr which 1':1.; zttached and incorporated by reference." Tnsert at beginning of paragraph the following: OThe SitM is unfenced and is in close proximity to small children's homes. Therefore, the wastes on the Site are very accessible to children. In addition, the wastes are open to erosive action by air and water." EaE21aph 6 Change "Section 101(a) of CERCLAO to "Section 101(9) of 01. Within Fourteen (14) days of the effective date of I this amendment, Respondents shall fence the area shown in - bit III, which is attached and incorporated by reference. The fence must enclose the northern half of the parking lot and the entire length of the tailings berm around the parking lot perimeter. The fence must be placed along the outside toe of the berm beginning at the southeast corner of the parking lot and proceeding around to the northwest corner. From there the fence shall run along the, crest of the northern portion of the berm for approximately 100 feet. The east fence must then run along the outside of the northern half of the parking lot for approximately 60 feet and turn west to run parall,el to the north fence until it reaches the inside toe of the western portion of the berm. This stretch of fence will include an access gate. The fence will then follow the inside of the berm to the southeast corner, completing the fence loop (see Figure I). Access to the southern half of the parking lot may remain open via the present driveway adjacent to the southeast corner of the berm. The estimated length of fencing is 600 linear feet. Kre Specifications for the fencing materials ares 1) Six foot windustrial grade" 9 gauge chainlink. 2) Tension fence, wire for top support, 3) 2.5 inch O.D. Schedule 40 line posts appropriately set and secured in the ground. 4) 3 or 4 inch O.D. Schedule 40 corner and gate pos appropriately set and secured in the ground. I 5) Four foot swinging gate with security lock.9 "2. Within fourteen (14) days of the effective date of this amendment, place eight evenly spaced wNO TRESPASSINGO signM on perimeter of area designated in Exhibit iij." "3. Send notice letters to residents of th,". Smuggler Trailer Court stating that the mining wastes are dangerous and that children should be kept off the waste piles.0 Change former 02 to be #4. ti DateCifIssuan ce fRo2baert�.D�upri�y, DireE�tor Ir"I" Hazardous Waste Management Division Figure 1. Fence Location' Smuggler Mountal FE 1 � , � �C"»�, V+�i1 �e�d ' .�, A � ,', 5 >, •�t`t q � .,j rwA • .'' ,t.'ty` a • r '�� D I T `r.LIVAIN A. 7o Ft 9'0 ppjwIN" SOIL LEAD 'gip, ' 4I:: r�, �•.ti 0"^,.,mob .'.a .a– } `i" �,' P�Ms�''a �, r•� `9r I — M} e I� r l�+A' ✓. /f7 X51 �"y�Jr ift r ":. 0'~•"`"'_,""0 — .�.' \" ,+ ye 6 w rrj 4 6 Y fir'+'+,dy �.•fp^"'" l h° I�n wY )r 1( 5. rim y t ar t. ."ry.�.�9,//1� yea �• '1.t�^....,, �g,�y y. k, aA1,t ..✓ - MM1U'47GLPER `�Yg0p."+,r„A •Q^ SpA "�`°?'.F ;emr . ,�.. r' !{ g• `` mw ;dyad"." r,.� ,, , .�" � tP'�.." a i r� • '; A, ' qua Ott", '•`" �,, �Si pr I,� 06 t, •�..i a •;`��. ` ^^,� "TRAILER COURT .r F � v✓.' Y'1A -h. ham, �Ay ',`'"A np r t'a;.r. ,:a•.� `"� G �.. r � "'°� Y� � P�✓��.f . 1 I t-Lf4�'r y i A,N, i ay l i X d rowa-r .., PRELIMINARY B®UNDAR''i �.: � J' A . ice, �� •� �a � a.+ FON THE "S .f ` y+. d ,M, r- 0 w SMUGGLER MOUNTAIN SITE ,a VAR, SMUGGLER MOUNTAIN CENTENNIAL -ASPEN SITE INSPECTION August 23, 1985 REVEL.