Suit Over Hazard Permit at Arsenal Advances in Colorado

DENVER (CN) – A federal judge Wednesday allowed a lawsuit brought by Colorado against the federal government over the control of cleanup efforts at a former weapons facility to continue.

In September 2017, the Colorado Department of Public Health and Environment sued the U.S. Army, U.S. Fish and Wildlife Service, and Shell Oil for failure to obtain a proper-post closure permit for Basin F, a section of the Rocky Mountain Arsenal.

Starting in 1942, the U.S. Army used the 27-mile site for the manufacture, assembly, and disposal of chemical warfare agents, products, munitions, and other substances. Production stopped at the facility in the 1980s.

From 1952 to 1987, Shell Oil leased part of the facility, including Basin F, to manufacture pesticides. Basin F was also used by the Army and Shell to dispose of contaminated liquid wastes from chemical manufacturing operations.

In the lawsuit, Colorado claimed a proper permit would address an examination of the site’s hydro-geologic characteristics and the extent of potential groundwater contamination.

Colorado claimed that among other “threats to human health and the environment,” Basin F is contaminated with “organochlorine pesticides, heavy metals, agent-degradation products and manufacturing by-products, and chlorinated and aromatic solvents.”

In a 21-page ruling Wednesday, U.S. District Judge Raymond P. Moore agreed with recommendations laid out by a magistrate judge refusing to dismiss Colorado’s claim that the federal government should have obtained a post-closure permit.

The federal agencies argued that they had immunity from the permitting requirements.

"As an analogy, it makes little sense that Congress would waive immunity as to every piece of a pie, but not the whole pie. Instead, it appears to this court that Congress waived immunity as to the whole pie, while specifying permit compliance obligations on each of its component pieces,” Moore wrote.

Moore also declined to dismiss the claim against Shell, who said it was no longer an operator at the site.

Since Shell “makes environmental compliance decisions regarding the whole facility, it is reasonable to infer that such decisions also impact Basin F, which is part of the larger facility,” Moore ruled.

Moore did find a claim brought by Colorado accusing the federal government of illegally transferring the land to Commerce City, Colorado, was time-barred.

“Plaintiff had an actionable claim against the federal defendants as soon as the land was transferred on Aug. 20, 2007,” Moore wrote. “And there is no allegation that plaintiff was prevented from discovering, within six years, that it had an actionable claim for the allegedly improper property transfer.”

Today, 18 miles of hiking trails connect the Rocky Mountain Arsenal National Wildlife Refuge northeast of Denver with the Rocky Flats National Wildlife Refuge, site of the contentious former Rocky Flats Plant, built in 1950 to manufacture nuclear weapon triggers.

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