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Do as I Say, Not as I Do: The Story of Environmental Non-Compliance at Federal Facilities

Environmental Law & Property Rights Practice Group Newsletter - Volume 1, Issue 2, Spring 1997
By Gale Norton
May 01, 1997

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.

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1.  Final Report of The Federal Facilities Environmental Restoration Dialogue Committee, April, 1996.
2.  132 Cong.Rec.S14903 (daily ed. Oct. 3, 1986) (remarks of Sen.Stafford).