Colorado Has New Battle to Get Base Cleaned Up

WASHINGTON —  The state of Colorado thinks residents should be able to move into new subdivisions without stumbling over unexploded munitions left behind by closed military bases. So it sued the Army six years ago for refusing to remove unspent shells from a former bombing range that was the site of a new suburb.

Bill Clinton was president, and his Army relented and agreed to clean up the former Lowry Bombing Range northeast of Denver.

But now the Bush administration’s Army is asking Congress to change the law that was at the heart of Colorado’s case.

“If that bill goes through, it could undermine the legal authorities we relied on for the lawsuit,” said Dan Miller, the assistant Colorado attorney general in charge of environmental cases. “The risk is we’re not going to have the authority to adequately protect human health and the environment from a variety of military activities.”

The Pentagon is seeking to exclude explosives, munitions and munition fragments from lawsuits, brought under the Resource Conservation and Recovery Act, that demand cleanups of operational military bases. This is part of a broader effort by the Pentagon to get relief from environmental laws that, officials say, hamper military training.

Miller and other state officials argue that this could strip national, state and local governments of their authority to protect the health of their residents.

Testifying to Congress, top Environmental Protection Agency officials gave their blessing last week to the military’s position.

But, in an undated internal administration document, the EPA earlier told the White House that it opposed excluding munitions from the definition of solid waste that the military must clean up.

The EPA argued that such a provision could result in “imminent and substantial endangerment to public health or welfare or the environment.”

Explaining the apparent contradiction, EPA spokeswoman Lisa Harrison said, “The initial comments were on a draft version” of the Pentagon’s proposal. “What we support is the final version.”

Some EPA officials who have worked on cleanups of military facilities have expressed concern that the Pentagon’s proposals, if adopted by Congress, could put the public’s health at risk. And their agency would be complicit because of its public support.

“We’ve been contacted by about a half-dozen EPA employees from the headquarters and the regions who expressed dismay at the tenor of the testimony and point[ed] out that it was at odds with their understanding of the law and agency practice,” said Jeff Ruch, executive director of Public Employees for Environmental Responsibility, which represents federal and state officials.

“In an effort to present a unified front, EPA is muzzling its own experts to maintain a facade that we have nothing to fear from Pentagon toxic practices,” he said.

The officials want to avoid repeating the fiasco at Camp Edwards on the Massachusetts Military Reservation. An aquifer under the military facility, the sole source of drinking water for hundreds of thousands of Cape Cod residents, has been contaminated by toxic chemicals leaching from unexploded munitions from decades of bombing and shooting practice there.

The Pentagon was so slow to respond that EPA had to undertake enforcement actions to force a cleanup, ordered in January 2000, which the military estimates will cost more than $300 million.

In recent testimony, Bush administration officials have said they intended that their proposed changes apply only to operational facilities -- not to closed facilities such as the former Lowry Bombing Range in Colorado.

“Our initiative would apply only to military readiness activities, not to closed ranges or ranges that close in the future,” Benedict S. Cohen, the Defense Department’s deputy general counsel, told a Senate Armed Services subcommittee last week.

“The public may rest secure in the knowledge that EPA, states and citizens have authority to take action against the U.S. government in accordance with the law if munitions pose a threat off-range or after a range is closed,” John Paul Suarez, the EPA assistant administrator for enforcement, told the Senate Environment and Public Works Committee.

But congressional staffers and state officials had their doubts. Miller, testifying on behalf of 13 states, told a Senate committee last week that regardless of the administration’s intentions, the Pentagon’s proposals probably would impede states’ ability to force cleanups, even on a former range.

“If there is any doubt, it is going to be construed against the states’ authority,” Miller said in an interview. “The way this is drafted, there are a lot of questions.”

Even if the changes were restricted to operational facilities, some states would oppose them because of the potential of a public health risk developing that could later pose a problem off-base. The Massachusetts Military Reservation is a prime example.

In that case, the primary law used in the EPA’s enforcement action was the Safe Drinking Water Act, and the military has not proposed changing that.

But the states cannot use the Safe Drinking Water Act to force federal cleanups. By contrast, the Resource Conservation and Recovery Act, on which Colorado based its case, does provide mechanisms for states to challenge the federal government.

The state attorneys general passed a resolution at their meeting last month asking Congress to reject changes to the laws “that would impair states’ authority to protect the health of their citizens.” There were only two dissents and one abstention.

The fact that 129 Defense Department sites litter the Superfund national priorities list of the nation’s worst toxic dumps shows that the Pentagon should not be trusted to police its own pollution, the attorneys general argued. “The Department of Defense,” Miller said, “has a legacy of serious environmental contamination.”