INTEGER LAW CORPORATION Amanda Smith, Esq.

The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 2 Of particular note, many of the contaminated sites lie on recreational trails that have been constructed, or are being constructed, on these contaminated Union Pacific rail lines. Thus, as a business that has voluntarily devoted nearly two billion dollars to clean up contaminated sites in Utah and throughout the United States, Asarco is greatly concerned about the risk these contaminated lines pose to human health and the environment, as well as the damage they may cause to Asarco financed cleanup efforts. I. Background Information

As you may know, Asarco contributed $2,430,000 to fund remediation of mining-related contamination related to operation of the Murray Smelter in Salt Lake City, $7,400,000 for the cleanup of Richardson Flat in Summit County, and $100,000 for the Gold Hill and Belshazzar sites in Tooele and Salt Lake counties pursuant to a comprehensive settlement with the U.S. Environmental Protection Agency (EPA). Consequently, Asarco is a significant stakeholder committed to seeing that its voluntary settlement is used to effectively and appropriately address contamination in the region. In the course of fulfilling this commitment, Asarco has learned that substantial amounts of heavy metals contamination exists in Utah as a result of UPs operations. Historically, railroads in the vicinity of ore mills and smelters used tailings and slag as ballast on rail beds. Ballast is the stone laid between and around railroad ties and on rail beds to facilitate drainage and stabilize the ties. UP built rail beds using ore tailings and slag that contained high concentrations of lead and other toxic metals. In addition, UPs hauling of ore concentrate to smelters also contaminated railroad rightsof-way and surrounding areas. The ore UP transported its consistency akin to flour billowed from open cars or leaked from weep holes and gashes in the bottoms and sides of rail cars. Thus, for over 100 years, UP contaminated the rights-of-way on which it transported ore with lead and other toxic metals, built its railroad with mining waste, and left that waste behind when it abandoned rail lines in Utah and other states. When lead falls to the ground it tends to adhere to soil particles. Along with the soil, lead can be carried away as dust by workers, blown away by wind, or washed into streams and rivers by rain or snow melt. The federal Agency for Toxic Substances and Disease Registry outlines the consequences of exposure to lead contamination: The effects of lead are the same whether it enters the body through breathing or swallowing. The main target for lead toxicity is the nervous system, both in adults and children. Long-term exposure of adults to lead at work has resulted in decreased

INTEGER LAW CORPORATION Amanda Smith, Esq. The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 3 performance in some tests that measure functions of the nervous system. Lead exposure may also cause weakness in fingers, wrists, or ankles. Lead exposure also causes small increases in blood pressure, particularly in middle-aged and older people. Lead exposure may also cause anemia. At high levels of exposure, lead can severely damage the brain and kidneys in adults or children and ultimately cause death. In pregnant women, high levels of exposure to lead may cause miscarriage. High level exposure in men can damage the organs responsible for sperm production. 2 The greatest risk is to children: Children are more sensitive to the health effects of lead than adults. No safe blood lead level in children has been determined. Lead affects children in different ways depending on how much lead a child swallows. A child who swallows large amounts of lead may develop anemia, kidney damage, colic (severe stomach ache), muscle weakness, and brain damage, which ultimately can kill the child.

II.

UPs Heavy Metals Contamination of Utah A. Currently-Known Contamination and Prior Remediation

It is well known and documented that UPs rail lines in and around Salt Lake City are heavily contaminated with heavy metals both from mine and mill tailings used as ballast and from ore concentrates that leaked from rail cars. For example, during planning for the recently constructed Mountain View Corridor road network, project managers conducted soil testing of the Bingham Branch of the old Denver & Rio Grande Western rail line for the presence of heavy metals. UP owned that right-of-way. The project managers purpose was to assess the risk to construction workers building a road way across the old rail bed. In testing of slag and ore from four locations on the railroad center line, project managers found lead levels as high as 9,400 ppm and arsenic as high as 1,300 ppm in materials they described as slag. High levels also existed in the ores they found there 3: Sample 05A 05B
2

Latitude 40.56687N 40.56687N

Longitude Depth/Type Arsenic (ppm) Lead (ppm) 112.03348W Slag 1,300 9,400 112.03348W Ore 100 5,500

Toxicological Profile for Lead, August 2007, U.S. Department of Health and Human Services, Public Health Service, Agency for Toxic Substances and Disease Registry. 3 See Post-Characterization Report and Remedial Action Plan for the Denver & Rio Grande Western Railroad at the Proposed Intersection with the Mountain View Corridor, April 2011, prepared for the Utah Department of Environmental Quality.

INTEGER LAW CORPORATION Amanda Smith, Esq. The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 4 Sample 06A 06B 07A 07B 08A 08B Latitude 40.56705N 40.56705N 40.56725N 40.56725N 40.56742N 40.56742N Longitude 112.03311W 112.03311W 112.03270W 112.03270W 112.03237W 112.03237W Depth/Type Arsenic (ppm) Lead (ppm) Slag 110 6,900 Ore 100 4,600 Slag 11 120 Ore 590 7,000 Slag 13 100 Ore 150 5,400

For reference, EPA reports that the average background levels for lead and arsenic in Utah are 35 ppm and 8 ppm respectively. Arsenic contamination, of course, poses its own set of health hazards. According to the ATSDR, long-term exposure to the skin results in development of patches of darkened skin and the appearance of small corns or warts on the palms, soles, and torso. Skin cancer may also develop. When ingested, arsenic may increase the risk of cancer in the liver, bladder, and lungs. Arsenic exposure also results in reduced nerve function, blood vessel damage and irritation to the stomach and intestines. In larger doses, it kills. The project managers also tested soil along either side of the right-of-way, finding lower, but still elevated levels there as well (see image below with relative test locations): Name 01A 01B 02A 02B 03A 03B 04A 04B 09A 09B 10A 10B 11A 11B 12A 12B Latitude 40.56670N 40.56670N 40.56687N 40.56687N 40.56708N 40.56708N 40.56724N 40.56724N 40.56704N 40.56704N 40.56727N 40.56727N 40.56754N 40.56754N 40.56754N 40.56687N Longitude 112.03329W 112.03329W 112.03293W 112.03293W 112.03252W 112.03252W 112.03219W 112.03219W 112.03362W 112.03362W 112.03307W 112.03307W 112.03251W 112.03251W 112.03251W 112.03293W Depth (inches) 6 12 6 12 6 12 6 12 6 12 6 12 6 12 6 12 Arsenic (ppm) Lead (ppm) 21 11 34 43 24 17 14 33 37 26 45 29 80 29 71 49 630 260 1,500 1,400 1,400 400 640 900 740 270 910 660 1,700 510 1,600 1,200

INTEGER LAW CORPORATION Amanda Smith, Esq. The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 5 These testing results demonstrate that contamination is not limited just to the rail line itself, where it is sourced, but is dispersed away from the rail line. Test Sites On and Alongside Bingham Branch Right of Way

Out of concern for workers safety, the project managers planned to carefully remove contaminated soil found on the old D&RGW line. Their plans called for transporting the soil at slow speeds so that contamination would not be spread in the wind limiting operations on highwind days. B, Newly-Discovered, Previously-Unknown Contamination

An extensive network of rail lines operated by UP and predecessors, since merged with UP, serviced the mines, mills, and smelters in and around Salt Lake City, Tooele, and Park City. For example, both UP and Western Pacific (which merged with UP) serviced the International Smelting and Refining mill and smelter in Tooele which processed lead ores.

INTEGER LAW CORPORATION Amanda Smith, Esq. The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 6 Additional lead smelters and mills were located in Midvale and Murray, Utah on the south side of Salt Lake City. Moreover, ores were mined in Bingham Canyon at sites located southwest of Salt Lake City and in and around Park City, Utah, to the east. UP, Western Pacific, and the Denver & Rio Grande Western Railroad (another railroad that merged into UP) serviced both the lead mining operations around Bingham Canyon and in Park City and the milling and refining operations in Midvale, Murray, and Tooele. These rail lines connected the area to mines, mills and smelters in Colorado, Nevada, and other states. Thus, the type of contamination found by the Mountain View Corridor project managers along a small section of track near Old Bingham Highway in West Jordan, Utah is common to the entire network of existing and abandoned UP rail lines around Tooele, Salt Lake City, Park City, Ogden, and beyond. Specifically, recent testing of rail routes conducted using a hand-held X-Ray Fluorescence (XRF) spectrometer found that ballast and soils along current and abandoned rail lines are heavily contaminated: Of 241 samples obtained at 53 locations, 174 were measured in the field at more than 500 ppm of lead. Of those, 129 measured at more than 1,000 ppm, 71 at more than 2,000 ppm, 24 at more than 4,000 ppm, 10 at more than 6,000 ppm, and three at more than 10,000 ppm. Levels of lead found in samples are variable, reflecting its uneven distribution in the ballast and soils on railroad tracks and beds. The XRF device tests a thin layer of soil or rock over a small area. On average, however, XRF testing accurately captures the extent of contamination. The 241 samples tested in the field measured on average 1,752 ppm. On re-testing ex situ, the 241 samples averaged strikingly close at 1,696 ppm. Equally troubling, arsenic contamination also was extensive. Of the samples taken, 195 of them subsequently were found to contain arsenic at levels between 14 ppm and 2,083, or an average of 485 ppm for the 195 samples (or 393 ppm for all 241 samples). These samples had higher average lead and arsenic levels than found on the D&RGW line during construction of the Mountain View Corridor. Accompanying this letter is a KMZ file that maps on Google Earth 51 locations in and around Salt Lake City, Tooele, Park City, and Ogden, Utah where lead was found in the field or in subsequent testing at levels of 500 ppm or greater. The file also includes arsenic measurements where it was detectable in the sample.

INTEGER LAW CORPORATION Amanda Smith, Esq. The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 7 As the map demonstrates, UPs network of tracks and abandoned railways throughout the greater Salt Lake City area are contaminated, including wetlands along Salt Lake and near rivers and streams, such as Silver Creek and the Weber River north of Park City. Lead and arsenic contamination was found on UPs original transcontinental route both east and west of Salt Lake City. At a location between Ogden and Promontory Point, lead was measured as high as 3,751 ppm and arsenic as high as 1,631 ppm. C. Contaminated Rails to Trails Conversions

The contamination that UP caused poses a risk to recreational users of rails-to-trails conversions and to workers who were, and continue to be, exposed to contamination during trail construction. Despite evidence that its rail lines in Utah are extensively contaminated, UP has abandoned them without full remediation and, worse, allowed state and local government agencies to take possession of its contaminated rights-of-way for recreational use without first addressing health risks. There are four rights-of-way segments that UP abandoned for use as trails in Salt Lake City, Ogden, and Park City that remain contaminated. Unlike requirements made of UP when it remediated its Wallace-Mullan Branch in Idaho for construction of the Coeur dAlene Trail, (a) the Utah trails do not include warnings about potential health hazards from exposure to heavy metals, (b) access to the trails is not limited, and (c) it is not apparent that workers exercised caution in the removal of contaminated ballast and soil to reduce exposure to lead dust and minimize contamination in transport and disposal. The following are the four rights-of-way segments at issue: 1. 9 Line Trail

In 2008, UP abandoned a section of its 900 South line in Salt Lake City to the City in exchange for improvements made to its tracks at Grant Tower. The City, county, state, and federal governments and the Utah Transit Authority largely paid for these improvements. The abandoned line, which is bordered on both sides of the right of way by homes in a residential neighborhood, is being converted into a bicycle trail. Recent testing found very elevated concentrations of lead on the rail bed: In a test of ballast and soils at two spots in close proximity near the Surplus Canal, lead was measured at 5,231 ppm and 6,040 ppm in ballast and 2,619 and 2,670 ppm in soil and ballast at four inches deep;

INTEGER LAW CORPORATION Amanda Smith, Esq. The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 8 Two samples at a site near S. Redwood Road found lead concentrations in ballast at 3,968 and 3,656 ppm and 2,672 and 4,211 ppm at a depth of four inches; and Two samples taken at a site near S 1100 W Street near the intersection of the Jordan River Parkway Trail found lead concentrations of 3,034 ppm and 3,254 ppm in ballast and 3,761 ppm and 3,257 ppm in soil at six inches.

Inexplicably, UPs environmental report submitted to the STB for approval of the abandonment failed to report contamination of the line. 4 2. Denver & Rio Grande Western Trail

The paved trail between W 400 N in West Bountiful to Hinckley Drive in South Ogden, Utah was built on a 24-mile section of right of way abandoned by UP in 2002. The right-of-way was sold to the Utah Transit Authority, which planned to operate the section as a trail after UP removed its track. UP failed to note that the line is heavily contaminated in its Combined Environmental Historic Report abandonment filing with the Surface Transportation Board. 5 As before, this defies explanation. Recent testing of the remaining rail line just south of the start of the Trail at W 400 N Street found high levels of lead contamination. The ballast in two samples taken in close proximity measured 1,947 ppm and 6,587 ppm. Moreover, soil beneath the ballast was measured at 200 ppm and 1,934 ppm. The trail is paved with asphalt and open to non-motorized traffic. It travels along the Farmington Bay Waterfowl Management Area, a nesting and roosting area for migratory and local bird populations. It also passes through residential neighborhoods along its route to South Ogden, including in Kaysville, Layton, and Clearfield.

Union Pacific Railroad Company - Abandonment Exemption - In Salt Lake, Utah: 900 South Line: Combined Environmental and Historic Report, filed January 17, 2006. 5 .Union Pacific Railroad Company - Abandonment Exemption - In Davis and Weber Counties, Utah (Salt Lake Subdivision Joint Line), Combined Environmental and Historic Report, filed October 15, 2002.

INTEGER LAW CORPORATION Amanda Smith, Esq. The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 9 3. Historic Union Pacific Rail Trail State Park

UPs Park City Branch between Echo and Park City, Utah was abandoned by UP and a Certificate of Interim Trail Use (CITU) was issued by the Interstate Commerce Commission (predecessor agency of the Surface Transportation Board) to the Utah Department of Parks and Recreation in 1989. The southern terminus of the Historic Union Pacific Rail Trail is at Bonanza Drive in Park City. The trail extends 28 miles north along Route 40 and Interstate 80 to Echo Lake. According to a 2004 report by the Rails-to-Trails Conservancy, the first 3.5 miles of the trail out of Park City were tested and generally found traces of heavy metals from mining and processing of ore. 6 The actual test results are privileged according to the report. That portion of the trail was capped to contain the contamination. Despite its asphalt cap, testing recently conducted alongside the trail near Bonanza Drive in Park City found continuing lead contamination with concentrations measured at 1,369 and 1,034 ppm in the topsoil. Presumably, as was found on the Bingham Branch during construction of the Mountain View Corridor, measurements under the cap on the railroad centerline would be much higher. Contamination also was evident in a recent test of soils on the trail just beyond the section protected with an asphalt cap. On the north side of Route 248, the trail has no asphalt covering. Instead, the tracks and ties have been removed, along with rail ballast. The remaining bed has a gravel covering. Tests of two spots in close proximity found lead concentrations measured at 995 ppm, 995 ppm, 1,021 ppm, and 537 ppm. Two other locations on the trail at Wanship and at the northern terminus were tested and no more than nominal amounts of lead were found. At the northern terminus (i.e., at Echo Reservoir), it was apparent that the former right-of-way had recently been improved. In January 1989, UP contracted with A&K Railroad Materials of Salt Lake City for the removal of the track structure on its Park City branch. That work was completed by July 1989. The line reportedly was converted to a trail in 1992 and 1993, with the top and sides covered with topsoil from Keetley, Utah (since flooded by the Jordanelle Reservoir). The trail initially was paved with crushed gravel. In the mid-1990s, an asphalt cap extending 3.5 miles from Park City was added.

Understanding Environmental Contaminants: Lessons Learned and Guidance to Keep Your Rail Trail Project on Track, September 24, 2004, Prepared by Rails-to-Trails Conservancy.

INTEGER LAW CORPORATION Amanda Smith, Esq. The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 10 The use of clean topsoils may explain why measurements of the top layers of soil and gravel in Wanship and Echo Lake revealed low levels of lead. Nonetheless, precautions in the removal and disposition of contaminated ballast and soils, similar to what was proposed during construction of the Mountain View Corridor where it crossed the Bingham Branch, should have been implemented for the protection of trail workers during the trails development. The Trail approximately follows Silver Creek to Wanship, where the creek merges with the Weber River. In 2002, the Utah Department of Environmental Quality conducted extensive XRF testing of the water, shores, and sediments of Silver Creek and found it was heavily contaminated with heavy metals, including lead. A map accompanying the report displaying results of lead testing in the southern 4.4-mile section of the creek shows that lead was found at concentrations in excess of 10,000 ppm (the highest lead concentration in excess of 36,000 ppm was found on a tailings mound). 7 While the contamination found in Silver Creek is attributed to the historical dumping of mine tailings in the stream, the reports authors allude to the possibility that the Historical Union Pacific Rail Trail, which extends through the length of Silver Creek, may contribute to the contamination. They note that [t]he Rail Trail was not extensively sampled within this study and may warrant further sampling. The reports authors also note that the southern portion of Silver Creek is quickly being surrounded by residential and commercial expansion. 4. UPs Ontario Branch abandonment

Union Pacific abandoned a portion of its Ontario Branch in 1989 along with its Park City abandonment, and a CITU was issued to Utahs Department of Parks and Recreation (DPR). The Ontario Branch departed the Park City Branch at Keetley Junction and ran south to Heber. It was constructed by UP in the 1920s to haul lead ores from the Ontario Mining Companys drainage tunnel at Keetley Station. According to one report, by 1925 UP was hauling 200 tons of ore per day from Keetley Station to smelters in Salt Lake City. 8 In 2006, however, at DPRs request, the Surface Transportation Board vacated the CITU for certain portions of the Ontario Branch so that Wasatch and Summit Counties could use the abandoned UP right-of-way for economic development purposes. 9 Currently, the area around what used to be called Phoston Station, including the old rail bed along Route 248 in Kamas west of Richardson Flats, is under residential development.

Innovative Assessment Analytical Results Report, Lower Silver Creek, by the Division of Environmental Response and Remediation, Utah Department of Environmental Quality. 8 See http://utahrails.net/articles/up-park-city.php. 9 Decision, January 31, 2006, Surface Transportation Board, Docket AB-33.

INTEGER LAW CORPORATION Amanda Smith, Esq. The Honorable Ralph Becker, Dana Williams, Mike Caldwell and Patrick Dunlavey April 15, 2013 Page 11 The rail bed at Phoston appears to have been excavated to make it level with the surrounding ground. The old right-of-way is crisscrossed with vehicle tracks. Measured lead levels are relatively low compared to other areas tested in Utah, including another point on the Ontario Branch 1.5 miles east (where lead was recently measured in excess of 4,000 ppm). The low readings at Phoston, the lack of a rail bed, and nearby construction activity suggest that contamination there has been displaced and moved elsewhere. We are conducting research to determine the disposition of the soils taken from the right of way. III. Actions to Address Contamination

In addition to determining whether rail lines need to be remediated consistent with cleanup levels established by the State of Utah and EPA, we respectfully suggest that you investigate and address the following additional issues: The extent to which areas surrounding rail lines were contaminated by lead and arsenic in ore concentrates blown from open rail cars; The extent to which lead, arsenic, and other metals have migrated from rail lines into ground water and the potential for contamination of drinking water; The ongoing danger posed by wind-blown contaminated soils. There is an inhalation risk from lead and arsenic particulate in dust, particularly to those who live or work nearby active or abandoned UP rights of way; UPs historic and ongoing contribution to the contamination of the Silver Creek watershed and other bodies of water. Transport of ore concentrate in proximity to streams would have contributed historically to levels of lead found in sediments. Additional investigation needs to be done to determine if contaminated rail lines continue to pollute the watershed; The extent to which rail lines beyond Salt Lake City, Ogden, Tooele, and Park City also are contaminated. Ore concentrates were transported both from Colorado and Nevada to Utah for processing. Additional mileage beyond what was recently tested is likely contaminated; The extent to which railroad workers who converted rail lines to trails might have suffered health consequences from exposure to the lead and arsenic contamination. Their families also might have been exposed to it when those workers tracked home ore dust; and