A whistleblower repeatedly contacted the Colorado Department of Public Health and Environment after concluding CDOT was not taking necessary measures to prevent illicit spills into adjacent storm drains by its contractor on the State Highway 9-U.S. Highway 6 repaving project in Dillon. Multiple reports filed over the course of months finally led to CDOT issuing the contractor a stop work order on July 20 that lasted a half-day.

Hugh Carey / hcarey@summitdaily.com |

A state highway repaving project in Dillon has been the site of repeated chemical spills, but state regulators have done little to put a stop to the problem, said a whistleblower close to the situation.

On multiple occasions over the past three months, the whistleblower contacted the Colorado Department of Transportation, which is overseeing the project, and state health department. The source, who requested anonymity for fear of retribution, reported a lack of sufficient mitigation measures in place on the resurfacing of State Highway 9-U.S. Highway 6 just below the City Market retail strip mall. These controls are required on construction projects to prevent spills and discharges of roadway and foundational materials into nearby drainages.

The source said that because CDOT-hired contractors didn’t follow proper practices, pollutants were allowed to pass through Dillon drainages that eventually lead into the Blue River — a headwater tributary of the Colorado River. After on-site inspectors didn’t appear to act appropriately to stop a known spill of liquid asphalt — a product known in the industry as tack coat — from seeping into a storm drain during a heavy rainstorm on May 8, the whistleblower filed a report with the state health department.

“Every time it happened I would call them,” the source told the Daily. “I’m calling, talking to so many people that are getting fired up, but no one will do anything about it. It’s like, ‘Who am I supposed to contact?’ I kept thinking, ‘Someone’s going to come out and stop this, right?’”

CDOT staff responded and issued its contractor the equivalent of a warning. However, officials refrained from obtaining water samples because they did not believe enough material was discharged to reach the level of a formal spill. That was also the case with a separate incident last week. Without tests of the water, however, exactly how much oil-based material and other pollutants escaped into area streams isn’t known.

Spotting a multitude of other environmental violations at the work site on July 11, the whistleblower contacted the state once again. It’s unclear where the state health department’s spill response team forwarded that complaint, and CDOT said it was only aware of reports made on May 8 and July 19.

In that documented complaint on July 11, the whistleblower included photos and videos of the incident that were also later provided to the Daily. It wasn’t until the person filed another report showing even more violations on July 19 that CDOT staff came back to the worksite and finally issued the contractor, APC Southern Construction Company, a stop-work order to get controls back up to code before operations could continue.

“What’s crazy is it just kept happening after I reported it,” said the source. “They probably had tack going to three stormwater drains that I saw, so three different events that day, and I reported them all individually. I’m just emailing photos throughout the day, saying, ‘This is happening again, this is happening again.’”

‘By the Book’

APC Southern, based in Golden, confirmed two spills on the Dillon repaving project. The May incident entailed “a significant rain event” that washed the tack coat into the nearby drainage. The second in late-July saw about a gallon of water used to clean tools and testing equipment poured directly into a storm drain, but a company spokeswoman said both were handled immediately and contained.

“Best management practices were implemented and it was cleaned up with absorbent materials then disposed of properly,” APC Southern’s M.L. Richardson said in a written statement. “While this does not occur frequently, with the sudden Colorado rainstorms, this is the common practice to respond to such an event in this manner.”

Columbine Hills Concrete, Inc., of Silverthorne, operated as a subcontractor and also brought in Denver-based Kumar & Associates, Inc., to test concrete. A member of the Kumar team was photographed by the whistleblower on July 19 dumping a bucket directly into a storm drain, an action that ultimately led to the half-day stop order from CDOT. However, the owner of Columbine Hills denied knowledge of any halts in operations ever happening.

“Everything was in place and in good standing,” said Scott Downen, the concrete company’s owner and president. “I don’t believe there was anything discharged that was not supposed to be discharged on the project. We do everything pretty much by the book. Effectively, there’s no proof that anything ever happened.”

APC Southern is also a subcontractor on the State Highway 9 Iron Springs realignment project in Frisco located immediately adjacent to Denver Water-owned Dillon Reservoir, which provides drinking water throughout the Front Range. Columbine Hills Concrete contributed on the two-year, multi-million-dollar project as well, though has since completed its portion of work on that site.

The photos provided to the Daily by the whistleblower from the July 11 incidents show oil slicks, pools of tack and the remnants of concrete that flowed down the nearby storm drain due to the lack of adequate controls. CDOT confirmed the use of a vacuum to suck up any slurry runoff is a mandatory protocol.

“Without anything going down the drain, that’s a violation,” the source told the Daily. “It should never look like that. The concrete slurry clearly went into the drain. It’s not allowed to free flow anywhere on the site. They didn’t do any of their measures, and they’re not protecting the drains.

“And there were other storm drains in the area where they do this that were completely unprotected,” the source continued. “You have to protect it, that’s your state waters.”

Prohibited Materials

After its site visits in May and late-July following the anonymous reports to the state, CDOT said in a written statement that its review and inspection concluded no violations occurred. Only the July 19 incident warranted informing the state health department.

“What the contractor failed to perform is erosion control with erosion logs in front of an inlet and clean material from pavement saw-cutting operations using a vacuum,” CDOT spokeswoman Tracy Trulove said through a written statement of the late-July incident. “There has never been an illicit chemical spill from the project.”

Documents on CDOT’s website concerning its municipal discharge program detail the type of substances allowed to run through drainages. The list includes materials like landscape irrigation, diverted streamflows, uncontaminated groundwaters and residential car wash runoff.

What it does not include is oil, any elements of road base or ingredients for mixing cement. In fact, any materials not included in its 24-item list are deemed strictly prohibited, and once an illicit discharge is identified and reported, a CDOT-state health department response is required within a single day.

Summit County, despite its position as a headwater region, is considered a rural area. Additionally, the job site in question is less than 1 acre in size. According to CDOT rules, that means the project, located near the Dillon Ridge Shopping Center, does not fall under a municipal sewage permit. Still, dumping unapproved discharges into drains is of concern to regional environmental officials.

“In general, you can’t spill pollutants into state waters,” said Lane Wyatt, a member of the Northwest Colorado Council of Governments’ water quality and quantity committee. “On big CDOT projects, CDOT would be on the hook for violating their permit. The health department would say, ‘We’ve got to fix this problem’ and figure out why something’s going on and, ‘What can we do about it?’”

Whether the discharges, dating to at least May when the first reports were filed, rose to the level of necessitating a hazardous materials cleanup is also unclear. The whistleblower said determining which agency held jurisdiction — CDOT, the state health department, Summit County government, the town of Dillon or local fire department — was a challenge.

The written stop order CDOT issued on July 20 required that depleted control devices be replaced and those missing installed within 48 hours to avoid financial penalties. The taxpayer-funded agency informed the town of Dillon’s public works director, Scott O’Brien, of the temporary stoppage, but — according to Dillon town manager Tom Breslin — “it was presented in a fashion that it was minor and that CDOT was dealing with the contractor on the matter.”

CDOT said in its statement to the Daily that two drainage detention ponds were inspected for concrete residue and debris, but none were observed. However, petroleum-based products like oil and tack coat would not be caught in such a mitigation system, Breslin said.

“Oil doesn’t settle out in ponds, because it floats,” he said. “I don’t know how much product went in there. Typically if there’s something like a spill I get in on the loop. I hadn’t heard a thing about it.”

Spill Response

Leaders in the county government who specialize in infrastructure projects were not informed of the violations on the repaving project either. They theorized that federal organizations like the U.S. Army Corps of Engineers or Environmental Protection Agency, based on the Clean Water Act, might need to be informed depending on the severity of the spills into major U.S. waterways.

CDOT said it informed both the EPA and state health department of the late-July incident, but stood by its position that no illicit spill took place. It said tack oil is not technically considered a hazardous material, so does not require a hazmat response. As a result, CDOT did not contact the local fire department for the area about the need for a hazmat team to respond.

“If we don’t know about them we don’t roll on them, obviously,” said Steve Lipsher, spokesman for Lake Dillon Fire Rescue. “So it might have been something that happened and was handled by their folks. That might have been allowed, or it might not have been allowed — I don’t know what to tell you on that one.”

A member of the state health department’s water quality control division said he was unfamiliar with the specific project or incidents. The group that takes reports and organizes response through various agencies receives about a call a day for spills statewide, so must often rely on local response, such as CDOT on its own projects, to manage incidents rather than responding directly with its limited staff.

“When it comes through the spill line, there’s a flowchart of protocols, based on how the situation is described, and we use those criteria to route it to the appropriate people,” said Greg Naugle of the spill response team. “Ninety-nine percent of what we do is use our phone as the most effective tool … to coordinate and make sure that someone is addressing the issue.”

In delivering the original May warning to the contractor, CDOT planned to conduct unannounced follow-up audits at the job site. It is not known if those took place to help prevent additional spills into local waterways.

“These types of things come up on projects, they just do,” said Trulove, CDOT’s spokeswoman. “Our team did the steps necessary, and did what the process supports. The project engineers who know how the system is set up and designed believe it would have to be a lot of material to contaminate the waterways.”

The whistleblower flatly disagreed.

“Even when they see it they don’t care,” said the source. “This was pointed out to the inspectors over and over again, and they choose to do what they want. They view it as they fixed the problem within 48 hours, because within 48 hours of illicit spills being notified it was fixed. They never had a (prolonged) work stoppage, no one was fined — the contractor got away with it.”