|
Gale A. Norton*
The old saying, "Do as I say, not as I do," fairly describes
the Federal government's environmental policy for the past several
decades.
Since the 1970's, Congress has passed comprehensive laws dealing
with all aspects of production, management and disposal of toxic
materials. The Environmental Protection Agency (EPA) has responded
with a plethora of detailed rules and regulations implementing these
statutes. The enforcement divisions of the Department of Justice
and the EPA enforce the environmental laws both civilly and criminally.
However, enthusiasm for these laws has not been shared by Federal
agencies that are subject to their provisions.
The fact is, the Federal government is far and away the worst polluter
in America. Some of its own most recent estimates indicate that
Federal activities have resulted in more than 60,000 contaminated
sites nationwide. Cleanup at these sites may cost between $230 billion
and $390 billion over the next 75 years.(1) Contamination on Federal
facilities includes chlorinated solvent spills, leaking underground
storage tanks, industrial landfills, unexploded chemical ordnance,
nerve agent and radioactive waste.
The greatest number of sites and the highest costs are associated
with Department of Defense and Department of Energy facilities,
which suffer from years of neglect, mismanagement and self-regulation.
In Colorado, the history of the Army's Rocky Mountain Arsenal provides
the perfect case study of Federal recalcitrance in the realm of
environmental compliance.
Rocky Mountain Arsenal: A Case Study
The Arsenal is a 27-square mile installation located northeast
of Denver, between Stapleton and Denver International Airports.
Beginning in the 1940's, the Army manufactured and then demilitarized
chemical weapons and nerve agent at this facility. Products included
mustard and phosgene gases, Lewisite and Sarin (the nerve agent
that the "Aum Shinrikyo" used in 1995 to kill ten and
to injure 5,000 others in a Tokyo subway).
After World War II, the Army leased some of its chemical weapons
production facilities to private firms, most notably Shell Chemical
Company. These companies manufactured pesticides, including DDT,
aldrin and dieldrin, all of which were ultimately banned by the
EPA. Wastes from manufacturing processes were just dumped on the
ground. Some evaporated, but more migrated into the groundwater
below the site's unlined basins.
After nearby farmers began complaining of crop damage and livestock
deaths in the 1950's, a 100-acre holding basin (Basin F) was constructed
with a 3/8-inch thick asphalt membrane to hold the waste. However,
within six years, the capacity of Basin F was exceeded. So, the
Army dug deep -- 12,000 feet deep -- and began disposing of its
and Shell's waste miles below the earth's surface. The Army stopped
this practice shortly after it began, when the area suddenly experienced
hundreds of earthquakes -- the first observed here in over 80 years.
Although the Army never formally admitted that its injection wells
caused the earthquakes, the tremors quit as soon as the Army's disposal
stopped.
In 1974, the Colorado Health Department, armed with laboratory
detections of contaminants in drinking water north of the Arsenal,
issued a cease and desist order to the Army. The order required
the Army to halt the migration of contamination from the facility,
which was essentially unregulated at the time. After several years,
the Army finally constructed a massive groundwater-intercept system
to treat and to reinject much of the contaminated groundwater moving
off of the Arsenal.
In 1976, Congress passed the Resource Conservation and Recovery
Act (RCRA) to provide for "cradle to grave" management
of hazardous waste. Four years later, Congress passed the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA) to
address inactive toxic dumps. In 1982, Colorado, Shell and the Federal
government entered into an agreement which provided for the cleanup
of the Arsenal pursuant to both of these laws.
In the years that followed, however, the cleanup didn't happen,
despite extensive remedial investigations. The Army did submit a
RCRA Part A permit application and closure plans both to the EPA
and to Colorado. However, the plans were rejected -- first by Federal
regulators and then by State regulators.
In 1986, the Army withdrew from the 1982 agreement, declaring it
"overtaken by events." A year later, after Colorado had
sued the Army to enforce State hazardous waste requirements, the
Army unilaterally announced it would proceed with cleanup under
CERCLA, and refused to submit to the State's RCRA jurisdiction;
whereupon, the State amended its previous complaint to enforce the
State's plan for Basin F cleanup.
Thus began a seven-year effort to establish State authority over
the Basin F cleanup. In 1989, the Federal district court held that
State environmental laws applied at Federal facilities that, like
Basin F, were not listed on the National Priorities List. Three
weeks later, the United States added Basin F to the list, and moved
for reconsideration of the court's order.
In the meantime Colorado, exercising the authority recognized by
the court, conducted an on-site inspection of the Basin F waste
management area and discovered no fewer than 40 violations of State
law, including undiscovered and unreported breaches in the liner
systems of two million-gallon capacity storage tanks, and in two
multi-million gallon surface impoundments.
When the State Health Department issued a compliance order demanding
that the Army rectify this situation, the United States sued for
a declaratory judgment that the State did not have authority over
Basin F. This time the district court agreed, finding in August
1991 that the listing of Basin F on the National Priorities List
divested the court of its jurisdiction to enforce the State's compliance
order.
Amid this legal skirmish, problems with actual cleanup oversight
continued. In 1988, the "summer of smell" made the nightly
news as Arsenal neighbors complained bitterly of noxious emissions
from the Basin F remediation. The State, powerless to stop the activities
because its jurisdiction was under dispute, was relegated largely
to a position of hand-wringing bystander.
Two years later, the Army announced plans to remove chemical contamination
from its nerve-agent production facility, but refused to supply
the State and Federal regulators with information necessary to determine
whether the Army would conduct these activities safely. When employees
conducting the cleanup were sent to the hospital with caustic burns
resulting from inadequate health and safety procedures, the State
returned to court to halt the activities until adequate regulatory
oversight could be provided. Although the court dismissed the State's
claim, the court upbraided the Army for withholding critical information,
and commended the State for looking out for the public interest.
It took two more years to obtain a Tenth Circuit opinion vindicating
Colorado's assertion of jurisdiction, and two years after that to
reach agreement with the Army and Shell regarding the extent of
cleanup to be performed at the Arsenal. Although relations have
improved since the United States was forced to recognize the State's
right to enforce its environmental laws at the Arsenal, disputes
continue about the clean-up schedule and the enforceability of milestones
on that schedule, among other things.
Conclusion
As awareness of the Federal government's appalling record of non-compliance
has grown among the public and Congress, Federal agencies have increased
efforts on the environmental front. However, battles to force Federal
agencies to comply with environmental laws to the same extent as
private parties continue to rage in the halls of Congress, in meeting
rooms and hearings with State and Federal regulators, and in courtrooms
throughout the nation. As United States Senator Robert T. Stafford
of Vermont remarked over ten years ago, "[N]o loophole, it
seems, is too small to be found by the Federal Government."(2)
Meanwhile, two lessons are clear. First, the states are the only
viable entities to police Federal facilities for environmental violations,
because the EPA cannot enforce effectively against its sister Federal
agencies. And second, private parties should insist on environmental
compliance at Federal facilities, because cleanup standards should
be the same for everyone.
* Gale Norton is the Attorney General of Colorado.
- Final Report of The Federal Facilities Environmental
Restoration Dialogue Committee, April, 1996.
- 132 Cong.Rec.S14903 (daily ed. Oct. 3, 1986)
(remarks of Sen.Stafford).
|
