Saturday, June 17, 2000

Superfund suit thrown out of court

Denver judge says EPA's CERCLA authority trumps Colorado laws

Colorado Daily Staff Writer

DENVER, June 16, 2000 A Denver judge has thrown out a complaint designed to block the U.S. Environmental Protection Agency from launching of a controversial plan to clean up the massively contaminated Lowry Landfill Superfund Site in Colorado, but the ruling may simply set the stage for an even bigger -- and messier court battle.

Denver District Court Judge J. Stephen Phillips ruled last week that he had no "subject matter jurisdiction" to halt the EPA-backed Lowry clean-up plan, which explicitly authorizes that groundwater tainted with plutonium and other radionuclides be discharged from the Superfund Site into Denver's public sewer system.

Phillips ruled that because the Lowry clean-up plan is being carried out under the authority of the EPA's "Superfund" program, Colorado laws prohibiting the discharge of non-soluble radioactive materials into water cannot be used to contest the scheme.

Lee Hill, a Boulder attorney who filed the complaint on behalf of a number of plaintiffs, said he was "alarmed" with the ruling. Hill said it was a "tragedy" that a state law designed to protect the health of Coloradans was overridden by a "federal administrative decision that was drafted to protect the polluters" who are financially responsible for the clean-up of the Superfund site.

"The crux of the judge's decision is that Superfund remedies override state laws under all circumstances," Hill said. "They ought to call it 'Uberfund.'"

Hill argued that a key component of the plan -- an industrial wastewater discharge permit issued to the City of Denver and Waste Management, Inc. -- violated the Colorado Radiation Control Act and other local and federal laws. That permit, which authorizes the discharge of the Lowry groundwater into the Denver public sewer system, stipulates daily "absolute maximum" effluent limits for plutonium, Americium, tritium, strontium-90 and a host of other radionuclides.

Hill maintained that the discharge permit was not a "license" to possess radioactive materials, which is required under the Colorado state law. Hill also argued that the permit was illegal under a host of other local, state and federal laws, because the radionuclides that it would allow to be flushed into Denver's sewer system are not readily soluble in water.

The motion to block the implementation of the plan was filed in April on behalf of a host of plaintiffs, including the union representing the workers at the Metro Wastewater Reclamation District, which the EPA directed to treat the Lowry groundwater at its Denver facility. Also named as plaintiffs in the now-dismissed complaint were two long-time farming and ranching families in the small town of Deer Trail, Colorado, where Metro spreads its sewage sludge -- or "biosolids" -- on taxpayer owned farm land. The National Sludge Alliance, whose members have actively opposed the EPA's controversial policy of using sewage sludge as a "farm fertilizer," was also represented in the suit, as was the Student Environmental Action Coalition, whose chapter at the University of Colorado at Boulder petitioned against the plan.

Named as defendants in the now-dismissed complaint were Metro, which will release the treated water into Denver's sewer system, and the City and County of Denver, the owners of the Lowry Landfill. The city of Aurora, Colorado, a Denver suburb which issued the permit that authorizes the pumping of the Lowry groundwater into Denver's municipal sewer system, was also named as a defendant.

The discharge permit is one of many controversial documents pertaining to the plan to clean up the Lowry Landfill, which was used as a hazardous waste dump by hundreds of corporations and government entities until 1980. According to various documents and several eyewitnesses, radioactive wastes from the (now former) Rocky Flats nuclear weapons plant were illegally disposed of at the landfill in the 1960s.

Those allegations at one point seemed to be corroborated by laboratory analyses performed by a U.S. Department of Energy-certified laboratory, which concluded that the landfill's groundwater was highly contaminated with man-made radionuclides consistent with nuclear weapons production.

But the EPA, citing a host of other tests and laboratory analyses, now maintains that the landfill contains no radioactivity beyond normal "background" levels. According to EPA officials, the Lowry discharge permit was drafted to include "safe" levels of radionuclides in effluent not because the materials are present at the landfill, but rather to appease critics who believe -- erroneously -- that they are. Thus, the agency maintains that its clean-up plan for the site -- whereby the landfill's groundwater will be pumped into the public sewer line and treated at a conventional sewage treatment plant -- is perfectly safe.

"We believe that our remedy is protective," said Gwen Hooten, EPA project manager for the Lowry Landfill. We believe that our remedy is sound, and that we can defend this remedy."

Phillips, in his ruling, did not even attempt to address that matter. However, the judge did rule that if the plaintiffs wish to proceed with their efforts to block the clean-up plan, they should go after the EPA -- and Waste Management, Inc. -- in federal court.

"It seems clear that without the EPA, the other defendants are left with inconsistent obligations, because they could have a court order enjoining activity that the EPA has ordered them to undertake," Phillips wrote. "Therefore, the EPA should be joined as a necessary party.

"It also seems clear that Waste Management should be joined as a necessary party," Phillips added. "Waste Management's absence (as a named defendant) would impair their ability to protect their interest in the permit."

Hill, when asked if the plaintiffs would take their fight to federal court, said, "We're evaluating a wide spectrum of options at this point. We still adhere to our view the EPA is not a party to the permit, and that the EPA never squarely addressed the issue of non-water soluble radionuclides being flushed into the Denver sewer.

"We were not challenging the Superfund remedy -- we were challenging a municipal permit that was clearly contrary to state law," Hill added. "The issues raised by the language of the permit introduces considerations that were never presented to the public in the open forums preceding the finalization of this clean-up plan. No one knew that they were talking about putting plutonium on the putting green until later."

According to the clean-up plan, the treated Lowry groundwater will be used to irrigate public parks and golf courses in Denver metropolitan area. The sewage sludge produced during the treatment process will be sold to the public as a "garden additive," and it will also be used to "fertilize" crops crown on publicly owned land in eastern Colorado.

The EPA, in accordance with federal law, publicized that it intended to pump the contaminated Lowry groundwater to Metro's York Street facility when it revised its plan to clean up the landfill in 1997. But in large notices placed in Denver newspapers, the agency made no mention of its intention to allow plutonium and other radionuclides to be flushed into the public sewer system.

More than 8,000 people have urged EPA Hazardous Waste Ombusdman Robert Martin to step in and investigate the Lowry Landfill clean-up plan. Martin, though, may not have the opportunity to do so, as critics who believe that he wields too much power are currently trying to get his investigative powers scaled back or eliminated.

Meanwhile, EPA officials say that the groundwater from the Lowry Landfill Superfund site will begin flowing into Denver's public sewer system as soon as an on-site treatment plant passes its final inspection.

"Nothing will happen until we know that plant is functioning according to the permit standards," said Hooten. "It shouldn't take long a week, two weeks, three at the outside."