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Colorado Springs can be held liable for Smokebrush site contamination, state Supreme Court rules

February 5, 2018 Updated: February 6, 2018 at 6:30 am
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Smokebrush claimed in its lawsuit that its employees in the Trestle Building, 218 W. Colorado Ave., were exposed to carcinogenic materials that blew over to the property when the city demolished its Gas Administration Building next door earlier in 2013. (Google)

The City of Colorado Springs can be held liable in a 2013 lawsuit alleging that workers at a downtown business were sickened by hazardous materials from a city-owned property, the Colorado Supreme Court ruled Monday.

The city is "finally going to have to face the music," said Randall Weiner, the Boulder-based environmental attorney for the nonprofit Smokebrush Foundation for the Arts. "And hopefully reimburse the neighbor for the contamination it created."

Smokebrush claimed in its lawsuit that its employees in the Trestle Building, 218 W. Colorado Ave., were exposed to carcinogenic materials that blew over to the property when the city demolished its Gas Administration Building next door earlier that year.

Six of the workers contracted respiratory illnesses after the demolition disturbed the nearby dirt, Smokebrush founder and president Kat Tudor has said.

More testing showed that other dangerous chemicals from the city land seeped underground onto the Smokebrush site.

When Smokebrush first moved into the Trestle Building, Tudor said, it requested permission to remove a fence, but the city said the dirt was too contaminated for that minor work.

"And then, lo and behold, they began to disturb the property, and that's when we discovered exactly how toxic the land is," Tudor said. "It's not good, clean dirt. And our interest here is in getting the property cleaned up and having the city take responsibility for doing so."

Weiner said the cleanup cost hasn't been determined.

Tudor said she got sick from all the contaminants, and she still is considering whether to sue for more than the cleanup cost.

Smokebrush's headquarters since has moved to Manitou Springs.

The 4th Judicial District Court sided with Smokebrush in 2013, saying the city could be held liable, but the city appealed that decision. After the Colorado Court of Appeals sided with the city, the case was brought before the Supreme Court.

The liability issue was part of a mid-lawsuit segue, Weiner said. Now that the state Supreme Court has ruled, the case will be passed back down to District Court, where the rest of the lawsuit will be heard.

City Attorney Wynetta Massey declined to comment, citing the pending litigation.

The hazardous materials stemmed from a city-owned operation that used some "pretty nasty chemicals" to convert coal into gas, Weiner said. The gas was used around the turn of the century to light street lamps. Many of those chemicals were stored poorly and seeped out of their containers, he said.

"Slowly but surely, the town gas migrated onto the Smokebrush property," he said.

And when the city finally demolished the building, asbestos and other cancer-causing agents were left free to blow over to the property where the owners worked to "have people come in and have a healthy environment for yoga and poetry and art," Weiner said.

The lawsuit claims the city didn't ensure erosion-control measures were in place when the demolition began.

A parking lot now sits where the city building was, Tudor said.

She said she hopes the case doesn't take another five years to complete.

Weiner said it must be sent back to District Court within 30 days.

"It's been a long and arduous journey," Tudor said. "And I hope this (ruling) gets the attention of the city and helps them understand their responsibility to clean up their waste."

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