Background: The Smuggler Mountain Superfund Site is located at the base of the western side of Smuggler Mountain. Mining waste initially covered much of the site and it was placed on the U.S. Environmental Protection Agency's ("EPA") National Priorities List for cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (better known as the Superfund law) in 1986. During the following years, EPA worked with local officials and residents on a plan for remediation of the Smuggler Mountain Site. A plan of action was ultimately agreed upon and implemented for the site, which was deleted from the National Priorities List in 1999.
Requirements Associated with Building and Excavation Activities: Under Ordinance 94-15, the Board of Pitkin County Commissioners adopted the "Institutional Controls - Smuggler Mountain Superfund Site," which still apply to any activity that may result in the movement or disturbance of contaminated soil within the boundaries of the Smuggler Mountain Superfund Site. Because much of the site was (and is currently) located in the City of Aspen, the City passed a parallel Ordinance in 1994 (Ordinance 94-25).
The Institutional Controls require anyone engaged in activities that would excavate or expose > 1 cubic yard of soil to obtain a special permit prior to commencing work. Recipients of this permit, and any other person engaged in development on the site, are required to follow certain procedures with respect to excavation, dust suppression, and removal of contaminated material. Landscaping, as well as vegetable and flower gardening, must also be conducted in accordance with the requirements of the Institutional Controls. All areas within the site are required to be maintained with a permanent vegetative or hard surface cover, and in a manner designed to minimize erosion. Periodic site visits are conducted by the Department of Environmental Health & Natural Resources to ensure ongoing compliance with these requirements.
Soil Disposal Under County Earthmoving Permits, Access Driveway Development Permits, Building Permits and Other Land Use Approvals:
The Smuggler Institutional Controls allow the County to "require any person undertaking … development within the Site to test any soil or material to establish its total lead (Pb) content for purposes of determining the application of [the Institutional Controls]." Such testing must utilize and adhere to protocols established or approved by the U.S. EPA. Under this authority, County staff will permit a developer to conduct suitable sampling and testing of excavated materials, when necessary, to differentiate and segregate contaminated soils and other materials (which must be disposed of at the Pitkin County Landfill or another duly licensed facility) from uncontaminated soils and other materials (which are not subject to the Institutional Controls). Staff will require the developer to: (i) obtain staff review and approval of its sampling methodology, (ii) certify, in writing, that its sampling methodology and testing utilized and adhered to U.S. EPA established protocols, and (iii) provide staff with its analytical test results demonstrating a lead content of < 1,000 ppm.
--- Uncontaminated Soils and Other Material from Smuggler:
A developer that desires to utilize fill material that has passed Institutional Controls testing for lead will be required to further analyze the proposed fill material and support its County permit application with the following documentation:
i. A description of the sampling and testing methodology used on the fill material, an analysis of the test results, and a certification that U.S. EPA-established protocols were utilized and adhered to.
ii. A certification that: (a) under federal and state law, the fill material does not constitute a hazardous substance requiring disposal at a duly licensed and authorized receiving facility for hazardous waste, and (b) the fill material does not exceed the values for the "Metals and Inorganic Compounds" listed in the Table below.
Potential soil contamination is only one factor to be considered in evaluating a permit application. The site specific characteristics of the receiving parcel must also be evaluated. Thus, a developer may also be required to independently address any technical or regulatory concerns staff may have with placement of the fill in proximity to surface waters, ground water, or other sensitive environments (e.g., wetlands).
Note: The "certifications" required above must be provided by a professional environmental consultant knowledgeable and experienced with respect to the requirements of federal and state law governing characterization of hazardous substances and hazardous waste management.