Working Paper 94-58

By Matthew Greene, M.A.

This paper was written in conjunction with the Fall 1993 Natural Resources and Environmental Policy Seminar of the University of Colorado Interdisciplinary Graduate Certificate Program in Environmental Policy. All ideas presented are those of the author and do not necessarily represent the views of the Consortium or the University. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail:

© 1994 Matthew Greene. Do not reprint without permission.


"But the state hinted that it might try to block the plan in an attempt to obtain more influence in deciding how the Rocky Mountain Arsenal will be purged of pollutants and what will become of it."[1]

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as "Superfund," in order to deal with the nation's abandoned toxic waste sites. While complicated, difficult, and costly to implement under any circumstances, CERCLA represents an even greater set of challenges when applied to a federal facility. The number of actors, statutes, perspectives, and issues becomes increasingly confused and conflictual when the federal government, usually in the guise of the Department of Energy (DOE) or the Department of Defense (DOD), assumes of the role of Potentially Responsible Party, and in many instances "Lead Agency," in a Superfund cleanup.

How does a Superfund site's status as a federal facility affect its cleanup process? What additional issues, disputes, and problems arise out of the federal government's, and its agencies', relationship with a state government, its people, and its agencies? What is the role of the courts in balancing federal and state interests? What can we learn from studying one highly public federal site in order to inform our approach to cleaning up the remaining hazardous waste and nuclear contaminated sites in the country?

The Rocky Mountain Arsenal (RMA), 27 square miles of toxic horror located some six miles northeast of downtown Denver, Colorado, has the dubious reputation of being "the most polluted piece of ground in America."[2] Operated by the United States Army since 1942 as a chemical weapons plant, the Arsenal was utilized by Shell Chemical Company to produce pesticides and herbicides until 1982. While environmental problems have been known to exist at RMA since the 1950s, the most recent set of disputes began in the early 1980s, with RMA's designation as a Superfund site, multiple lawsuits on the part of the Army, Shell Oil, the State of Colorado, and local citizens, and disagreements over the future use of the land. At issue were, and to some extent still are, liability for cleanup, jurisdiction over the site, levels of cleanup, and cleanup processes. At least five national and state laws apply to the site, and the relationships between these laws constitute a major set of disputes.

Thus, RMA provides the basis for an informative and novel case study. This study will attempt to illuminate the various aspects of the disputes which are resolved and ongoing at the Arsenal. It will begin with a brief history of the site. It will then discuss the most relevant and important laws and the litigation resultant from them. Section three will consider various aspects of social conflict exhibited throughout the RMA case and discuss the role of administrative procedure, litigation, politics, and alternative forms of dispute resolution as they relate to this case. Finally, this paper will conclude with a set of understandings, and perhaps general recommendations, that can be gained from an analysis of this case.[3] Throughout, this paper will present the key participants in the RMA conflict, their interests and perspectives, their strategies, and the outcomes and effects of these strategies and the interactions between them.[4]


"If I felt better, I'd be relieved that their tests don't show any problems..."[5]

Forty Years of Chemical Production and Destruction

In 1942, the US Army purchased approximately 27 square miles of prairie near Denver. From 1942 until 1950, the Army used the Arsenal to build chemical and incendiary munitions, work with Levinstein mustard gas, demilitarize obsolete chemical and other World War II ordnances, and test fire various smoke or high explosive mortar rounds. Between 1953 and 1957, the Army manufactured GB nerve agent at RMA.[6] The Army continued to fill chemical munitions until 1969. From 1970 to 1982, the Army focused on the disposal and destruction of chemical weapons materials. This included incinerating TX anti-crop agents, mustard gas, and explosives, and destroying GB agent and related munitions casings by caustic neutralization and incineration.

In 1947, the Army began to lease portions of the Arsenal to private companies. Shell Chemical Company, a division of Shell Oil Company, purchased on-site operations and manufactured herbicides and pesticides at RMA from 1952 to 1982. Chemical produced by Shell and its predecessors at the Arsenal include dichlorodiphenyltrichloroethane (DDT), aldrin, dieldrin, malathion, and parathion.[7]

Over the years, the military and private industries on the site produced an enormous amount of hazardous, toxic waste. Millions of gallons of liquid waste were discharged into unlined natural depressions in the ground. Solid waste and munitions were buried in unlined holes. Accidents and spills, some running into the hundreds of thousands of gallons, added to the intentional contamination of the site. Hundreds of waterfowl died after landing in open waste ponds. The Army attempted deep-well injection of liquid wastes, but discontinued the practice after many connected it to a spate of earthquakes in the Denver area.[8]

In 1962, Rachel Carson detailed some of the effects of on-site contamination that was already apparent to off-post farmers as early as 1954. "Farmers several miles from the plant began to report unexplained sickness among the livestock: they complained of extensive crop damage. Foliage turned yellow, plants failed to mature, and many crops were killed outright."[9] Basin F, an asphalt-lined open pond, was constructed to contain waste in 1956. While Basin F was intended to have a life span of 15 years, Army reports from the 1960s noted that the basin's liner was damaged and leaking.[10]

By 1975, the Colorado Department of Health (CDH) discovered off-site contamination in the form of diisopropylmethyl-phosphonate (DIMP) and dicyclopentadiene (DCPD).[11] By 1982, the Army and Shell reportedly discontinued all manufacturing operations at the Arsenal. By November, 1988, the Army declared that the sole remaining mission of the Arsenal was cleanup.

The Arsenal Today

"Most of those chemicals are still around, in some shape or form, lingering and polluting long after their original job is done."[12]

Today, the EPA reports that hazardous wastes exist throughout most of the RMA site. Most of the contamination consists of a thin layer of topsoil. However, deeper areas of contamination comprise at least 178 sites, totaling about 1,750 acres, or about 10 percent of the Arsenal's total land area. More than 750 different chemicals were present at one time or another at the Arsenal, and some 63 of these were used as target or indicator chemicals during the sites remedial investigation (RI). Contamination is present in buildings, surficial soils, deeper soils, groundwater, surface water, and sediments. The total volume of contaminated soils is estimated at 8 to 13 million cubic yards.[13]

The list of chemicals and contaminants at the Arsenal is mind-boggling. The Basin F storage area, described by some as a "witches' brew of organic and inorganic compounds"[14] and the worst of the Arsenal sites, was drained in 1988 and 10.5 million gallons of liquid were removed to three steel tanks and a double-lined, covered pond.[15] Before being drained, however, Basin F and other sites contributed to the overall soil, air, and water pollution on and near the site. Substances at the Arsenal and in Basin F include GB and VX nerve agents, mustard agent, adamsite, lewisite, di-phosgene, white phosphorous, napalm, aldrin, dieldrin, endrin, chlordanew, heptachlor, hydrazine, benzene, DDT, DDE, dioxin, arsenic, and mercury.[16] The EPA adds to the list of groundwater "contaminants of concern" DBCP, chloroform, toluene, TCE, DIMP, cadmium, chromium, lead, and others.[17]

The point of this admittedly partial list is to show that the Arsenal is initially complicated by a complex web of chemical contaminants that in itself makes cleanup difficult. Given that each contaminant is itself subject to scientific uncertainty as to its potential risks to human and environmental health,[18] the task of risk assessment for RMA as a whole is tremendous. While this paper will focus primarily on the institutional and litigious conflicts overlying the environmental concerns, it should be noted that at the heart of the RMA conflict is significant uncertainty and disagreement over the threats posed by various chemicals and combinations of chemicals.

This brief introduction to the history of the Arsenal and its multitude of contaminants should be enough to evidence that cleanup is indeed desirable and necessary at RMA. As the EPA says, "...[RMA] must be cleaned up in order to protect future human health, wildlife, and the environment..."[19] One can begin, then, with the assumption that some type of cleanup must happen at RMA. What kind and how much are areas of disagreement. Whether to decontaminate on-post and off-post sites is a well-established need.

Current and Completed Cleanup Actions

"EPA would like to further expand that interim response action program so that we can do more before we get to the final remedy selections."[20]

There have been a number of ongoing interim response actions (IRA's) at the Arsenal and in the surrounding communities. These somewhat innovative, streamline-process IRA's are intended to mitigate the worst of the on- and off-site contamination as soon as possible, before the completion of the final record of decision (ROD) which defines the ultimate cleanup for the site. In addition to 8 groundwater intercept and treatment systems (mostly on-site, but including two off-site systems) which were constructed and began operating between 1979 and 1993, the Army and EPA built a mammoth drinking water system for south Adams County after wells in that area north of RMA were found to be contaminated. The Army and the State have also been supplying bottled water to some area residents.

On-site efforts to detoxify and to prevent contaminants from further infiltrating off-site areas have included some 40 IRA and earlier actions. The EPA lists the total spent on these activities as $409.2 million prior to the expected 1994 ROD. The Basin F cleanup alone is currently priced at $100 million. A somewhat controversial Submerged Quench Incinerator (SQI) began burning Basin F liquids in March of 1993.[21] After a court ordered delay, it was started again in August after CDH was given the authority, under the Resource Conservation and Recovery Act (RCRA), to monitor and to shut down the incinerator if it presents a threat to human safety.[22]

Cleanup activities have spurred some public protest over noxious odors, fears of threats to public safety, and charges of high administrative and scientific study costs relative to the amount of cleanup completed. The final ROD is still contested, and questions as to the final levels of cleanup and methods to achieve them are not resolved. Even the levels of contamination remain unknown, "...despite the fact that the government has taken nine years and spent over $100 million on a remedial investigation."[23] The EPA maintains that up front litigious and study costs are high relative to cleanup efforts, but that they will lessen in proportion as issues are settled. Current estimates of cleanup completion go to the year 2005. Current cost estimates range to about $2 billion, although estimates have been as high as $4 billion or even $15 billion.[24]

Some of the main beneficiaries of hazardous waste cleanups are the contractors who do a significant amount of the assessment and remediation work on the site. The spawning of a "green industry" that benefits cleanup firms is a recent trend. At RMA, Ebasco is a private firm involved with most of the on-site work. In an interesting twist, DOD and DOE may benefit from an increased budget for cleanup that supplements their post-Cold War budgetary cuts.

RMA is, then, one of the largest, if not the largest, Superfund site in the US. Its costs and complications dwarf other cleanup sites by comparison. The average Superfund site takes ten years to clean up, "...but only about three years is actual on-site construction work!"[25] Thus, 70 percent of the total time and a large share of the total cost is spent on legal and bureaucratic issues, environmental assessments, negotiations, the administrative record, and design of the final ROD. RMA appears to fit this pattern rather well, although perhaps in even greater proportions of study and litigation to cleanup time. The next section will detail the relevant laws and the litigation stemming from them in order to highlight an essential overlying conflict hindering cleanup at the Arsenal: The federal-state contest for jurisdictional power and remediation control.


"As we face the complex task of cleaning up federal facilities across the country, states need to have the tools to ensure that adequate and thorough cleanups are conducted."[26]


"Powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people."[27]

Legislation relevant to the cleanup of hazardous wastes at a federal facility is complicated by overlapping designations of authority and lack of clear intent by Congress in some cases. Issues of federalism strongly influence the reading of theses various statutes. The main conflict as it applies to the RMA case is the interpretation of CERCLA versus RCRA responsibility and authority. RCRA gives the states power to enforce environmental compliance with state standards. CERCLA seems to give the federal government, and the EPA, more power to control the cleanup of a federal facility. Balancing these two concerns and interpreting CERCLA and RCRA together has been a key component of the conflict at RMA.

1. CERCLA. The 1980 Superfund law[28] concerns the cleanup of abandoned hazardous waste sites, both privately and publicly owned. Under this law, the government seeks to identify Potentially Responsible Parties (PRPs) who are then held liable for the costs of remediation. CERCLA prohibited the expenditure of Superfund moneys on remedial actions at federal facilities.[29]

2. SARA. The Superfund Amendments and Reauthorization Act of 1986 [30] amended CERCLA and provided a "...comprehensive framework for the conduct of cleanup at [federal] facilities."[31] SARA still left open potential conflicts between CERCLA and RCRA.

3. RCRA. The Resource Conservation and Recovery Act of 1975 [32] provides for the management of solid and hazardous wastes. Its focus is the current generation, transportation, treatment, storage and disposal of hazardous waste, but RCRA also requires that any new permit provide for the corrective action of past releases.[33] RCRA also allows the federal government (EPA) to delegate surrogate power to the states to enforce environmental laws in lieu of the federal government.

4. Colorado Hazardous Waste Management Act (CHWMA). This is Colorado's RCRA surrogate as approved by the EPA. It gives the state the authority to enforce this law in lieu of RCRA.[34] CHWMA requires specific permits and standards to be observed when dealing with hazardous wastes.

5. Federal Facilities Compliance Act. This act of 1992 "clarifies the authority of EPA and the states to enforce hazardous waste laws at federal facilities."[35] It aims to force Department of Defense (DOD) and Department of Energy (DOE) officials to quickly enter into compliance agreements with EPA and state agencies in order to clean up individual sites. However, if agreements are not reached, regulators will have more power to levy fines and penalties from federal agencies.

6. The Rocky Mountain Arsenal National Wildlife Refuge Act. HR 1435 was signed in October, 1992. Put forward by Representative Pat Schroeder of Colorado, the legislation converts the Arsenal into a national wildlife refuge upon completion of cleanup. The administration of the bulk of the site will be transferred to the Department of the Interior (DOI). The Act includes clear statements that the level of cleanup will not be compromised by the final use of the site. The Act was driven by the current presence of many species of wildlife, including some twenty Bald and Golden Eagles, on the site. "We want the cleanup to be maximum, but we also want to make it very clear that when this is done [the site] will not suddenly be bulldozed."[36] This Act resvolves some of the future use issues for the site.

7. Individual Congressional Actions. There have been several legislators who, for various reasons, have taken individual actions over the years regarding RMA. In 1979, Senator Gary Hart appeared to oppose the transfer of almost 900 Weteye nerve gas bombs from the Arsenal to Utah, saying: "The proposed move...presents obvious hazards and the discovery of leaking bombs only compounds those dangers."[37] A year later, he changed tack, abandoned the positions of Utah's Governor Matheson and Colorado's Governor Lamm against the move, and through a legislative maneuver forced the Army to move the bombs. Hart, who was running for reelection, added an amendment to the defense procurement bill that mandated that the Pentagon either dismantle or move the bombs in 12 months. This occasioned the press to claim that "...[a] kind of chemical warfare is being conducted by Colorado against Utah."[38]

Hart took popular action for Colorado again in 1986, asking the Army to deliver bottled water to 11 Adams County Schools after the CDH found TCE contamination in the local water supply.[39]

Hank Brown (R-Colo) won passage of a resolution in 1988 (HRes 61) which referred compensation legislation (HR816) to the US Court of Claims, allowing a former rancher and neighbor of RMA, Larry Land, to bring suit against the Army for health problems attributed by him to the Arsenal.[40]

Ken Kramer (R-Colo), who at the time was running against Tim Wirth (D-Colo) for Hart's Senate seat, won passage of a bill (S 1042) that required the Army to present a plan to Congress by September 1, 1986, to clean up the Arsenal by September 30, 1993. The Army was not required to carry out the plan, which it would most likely would not have been able to do. The Army's 1984 cleanup plan hoped to clean RMA in 15 years. Kramer's plan, a pure piece of politics, did require that priority be given to waste-treatment technologies, and to the most polluted portions of the Arsenal, that the cleanup meet all federal and state standards, and that waste from the site be taken only to those off-site areas where the local government gave approval.[41] It is interesting to note that a 1986 Army study projected total RMA cleanup costs for a 1993 completion at $2.5 billion, while scenarios aiming for cleanup completion by 1994 and 1995 could cost $1 billion to $1.4 billion.[42] Such legislative actions as this may be examples of micromanagement of administrative procedure and environmental cleanup.

These actions show the political nature of the Arsenal cleanup. They also show potential differences between national and state political actors, such as the Governor, and potential areas for common action among the two sets of Colorado representatives. State and local politicians will be discussed further below.


"Now, the arsenal situation has indeed been complicated by litigation. It would be naive for me to tell you that it hasn't made a difference. We wanted it to make a difference and we think it has made a difference."[43]

The history of litigation surrounding RMA is long and complicated. It involves several main issues. First, the state, through CDH, has tried to force the Army and Shell to clean up RMA according to state standards as defined in CHWMA. Second, the Army, through the Department of Justice (DOJ), has sued Shell to recover a share of cleanup costs at RMA. Third, Shell has sued its insurance companies in order to gain liability coverage for its pollution at the Arsenal. Fourth, the state has sued the Army in order to secure jurisdictional authority for the cleanup at RMA under RCRA.[44] I will briefly describe each of these suits, or sets of litigation, and the major implications of each issue as it has been resolved so far.

1. State Environmental Claims. The State of Colorado, through the CDH, began trying to enforce environmental compliance in 1975 with three cease and desist orders "...mandating that the Army and Shell clean up all sources of DCPD and DIMP at the Arsenal, cease discharging contaminants, monitor the groundwater, and prevent future releases. These orders were an early indication of the need for cooperation between the United States and Colorado in addressing contamination of the facility."[45] Thus, from very early on CDH was involved in seeking Army compliance with state and federal environmental standards through RCRA. "In the years before 1986, the United States generally recognized its obligation to work with state regulators to comply with state and federal hazardous waste regulations. Indeed, in 1982, the Army, EPA, Shell, and the CDH signed a memorandum of agreement that acknowledged that both RCRA's and CERCLA's requirements apply to the Arsenal."[46] This memorandum (MOA), the result of over a year of negotiation, was the first such agreement involving a federal site.[47] At this point, it appears that RMA might even have been a model case for the resolution of cleanup issues. The state was a full participant in the process, and the Army was submitting permits under RCRA, and then CHWMA after 1984, for its cleanup plans.[48]

In 1983, Colorado filed CERCLA actions against both the United States and Shell for natural resource damages at RMA. In a case where regulations perhaps interfered with potential settlement and cleanup, Colorado felt obliged to file these and other claims under CERCLA "...[i]n order to meet a deadline under the Superfund law barring certain claims after December 11..."[49] This is also an example of the state keeping open the legal route to cleanup, despite attempts at negotiation and ongoing remediation processes. In other words, the state, and the other parties to the Arsenal case, were and are unwilling to give up a potentially desirable option of resolution: The courts. The state after this remained an interested party and a party that continued to use court action to enforce its interests, which it maintained were public safety and state jurisdiction.

In November, 1985, Colorado won its CERCLA suit, which it had amended in order to try and recover response costs.[50] The Army admitted ownership of the RMA site, and Shell admitted that it was a generator of waste. The results of this suit would prompt the Army and Shell to reach agreement in their litigation. The court did not, however, apportion liability or address particular remedial actions or damage claims.[51]

2. The Army versus Shell. At the same time that Colorado was pursuing damage claims against the Army and Shell for $50 million per toxic discharge, the most allowed under CERCLA, the Army felt compelled by the same CERCLA deadline to file suit against Shell for the oil company's share of the contaminant liability.[52] DOJ filed suit on December 9, 1983, for almost $1.9 billion. Shell responded to an October 3 claim of $1.8 billion by the Army by saying that "...the company was 'surprised that the Army would propose a number of this magnitude since, realistically, cost-effective remedial measures and damages, if any, should cost only a small fraction of the Army estimate."[53] Shell responded to the CERCLA suit by saying it would "vigorously oppose" it.[54] Again, "...[t]he government filed suit, in part, to preserve its rights, because Shell's liability for most natural resource damage would have expired by December,...Justice said."[55] We thus see escalation in the form of litigation, which is in part responding to regulatory limitations, and which may lead to more antagonistic relations between the stakeholders.

In 1988, Shell and the Army settled this case by filing a consent decree. Each agreed to pay 50 percent of the first $500 million in cleanup costs. The US would pay 65 percent and Shell 35 percent of the next $200 million spent at the site. The US would pay 80 percent and Shell 20 percent of any costs above $700 million.[56] The basis for cost liability had been set, then, for the two PRP's at RMA. However, the consent decree was not specific on the details of the cleanup. After this agreement, it was clearly in Shell's interest to keep the costs of cleanup to a minimum. This was an Army interest as well, and cost-effectiveness is a key cleanup goal for the Army.

The state objected to this consent decree, and "...most criticisms hinged on the lack of authority granted Colorado in the proposal to oversee development and implementation of a cleanup plan..."[57] Ohio and Minnesota joined Colorado in criticizing the agreement. Minnesota wanted an agreement more closely tied to its model Twin Cities Army Ammunition Plant cleanup agreement with DOE, which the Army was already questioning. This model agreement allowed the EPA administrator to be final arbiter in DOE-EPA disputes if negotiations proved fruitless. It also allowed EPA to assess penalties against DOE for compliance failures, an action which DOJ considered unconstitutional according to the "single executive theory" of government. DOJ maintained that one federal agency could not sue or take unilateral action against another.[58]

Colorado, then, felt that this compliance agreement limited the state's ability to influence the cleanup plan. Although CERCLA provided for state involvement, though not ultimate control, Colorado and its sister states preferred reliance on RCRA provisions, which gave the state more power to enforce its own regulations and standards.[59] Ultimately, the states wanted more authority than CERCLA gave them. Substantively, Colorado objected to several aspects of the Army-Shell compliance agreement: A limitation on future access to the area, which it said would lower cleanup levels and contamination investigations; "Inadequate state participation in determining appropriate cleanup plans and levels; and a failure to assure compliance with Colorado's hazardous waste laws and regulations."[60] Colorado lauded Shell's commitment to the cleanup and the interim actions then being implemented, but asserted itself and its desired role, arguing over the process of the agreement. It evidently felt left out of the decision making regarding the Arsenal.

An official with the state attorney general's office explained that "...the state wished to use regulations in its EPA-approved hazardous waste program as the vehicle to develop and enforce a cleanup plan, or be able to use' some other system that would allow meaningful participation' on the part of the state.[61] What other system would work is not clear, but alternative dispute resolution utilization will be discussed below. The state maintained that "...the proposed consent decree would give the 'parties responsible for causing the contamination a greater role than the state in determining what remedial action will be taken.'"[62] This state objection to allowing the federal government to, in effect, monitor its own cleanup as a PRP surfaces again is an essential aspect of the state's continuing legal action against the Army. The state saw itself as outnumbered by the Army, Shell, DOJ and EPA, and was not sure it could rely on EPA for support. Furthermore, it felt that it was not guaranteed an absolute veto over unsatisfactory plans.

Environmentally, the dispute over the consent decree focused on use restrictions and human health. The state claimed that use restrictions were unacceptable as a substitute for remediation to protect the public's health and the environment. Agricultural and residential use would be prohibited on the site; site groundwater would not be potable; no consumption of fish or game on the site would be allowed; and alterations to surface drainage would be prohibited.[63] This second set of concerns also continues to hinder final agreement on the ROD.

It is interesting to consider how the National Wildlife Refuge Act deals with these environmental issues. It provides that cleanup will not be affected by final land use restrictions, but many local area residents are concerned that this will not be the case.

In terms of the power relationships involved in this dispute, one must ask whether the state is using the environmental claims to support its power contest with the federal government, or whether the state is truly using its jurisdictional claims under RCRA to enforce stricter environmental standards.

3. Shell Attempts to Get Insurance Coverage. In an aside that is not directly relevant to the RMA case, Shell sued its insurers to cover its liability for the RMA cleanup. The insurers, who had provided Shell with common comprehensive general liability (CGL) policies, claimed that Shell had knowingly and with intent contaminated RMA over the years. Thus, they wanted to deny Shell coverage according to standard form pollution exclusion clauses in CGL policies. The court ruled that Shell's pollution was intentional, thus denying Shell coverage in a victory for insurers. Shell is thus responsible for the whole of its damages at RMA, and cannot rely on insurance. This makes Shell even more interested in controlling final cleanup costs.[64]

Shell initially was confident of its insurance position, maintaining to its shareholders that "...[w]e have insurance coverage for exposure of this type..."[65] When denied coverage initially, Shell set in motion the mother of all law suits. This so-called "mega-litigation" involved dozens of litigants, hundreds of lawyers, a new computer system to handle thousands of documents, and lengthy trials. Costs were reported at $140 per minute in combined attorney's time alone, and the conversion of a high school gymnasium for the trial cost $350,000, which litigants paid to speed up the trial.[66] We thus see illustrated the enormous legal costs associated with the remediation of toxic waste contamination from the point of view of private industry. Once a PRP is identified and confirmed as liable, the legal process involves pollution exclusion clauses, an area which "...will continue to be...the subject of contentious litigation."[67] The lawyers are some of the main beneficiaries of this process.

4. The States Continuing RCRA Claims. The final set of legal concerns is ongoing, and is perhaps the most important of the Arsenal disputes. It revolves around the Army's Basin F closure plan, but its main issue is RCRA versus CERCLA authority, or, in other words, state versus federal jurisdiction. In November, 1986, the state sued the Army under the CHWMA for alleged groundwater protection violations.[68] The Army then "...abandoned its policy of RCRA compliance, claiming that CERCLA's comprehensive scheme precluded independent application of EPA-authorized, state RCRA programs at federal facilities such as the Arsenal."[69] While cleanup at Basin F lagged behind schedule, indicating the suffering of environmental concerns due to legal conflicts, the state amended its suit to seek enforcement of its, rather than the Army's, Basin F closure plan.

The court initially ruled in favor of the state, denying the Army's motion to dismiss the suit, and recognizing that "'...[n]othing in the cited statutes indicates that a CERCLA action should take precedence over a RCRA enforcement action. On the contrary, it appears that CERCLA was intended to operate independently of and in addition to RCRA and that the statutory schemes are not mutually exclusive.'"[70] The court recognized the inherent conflict of interest " the U.S. attempt to allow the Army, a liable party, to manage cleanup of the facility without outside oversight."[71] The court acknowledged the state's claim that it was best suited to provide for the safety of its natural resources and citizens, thus agreeing with the state's position that it was the best party to ensure proper cleanup of the site, and that it had the authority under RCRA to act as a check on the cleanup processes and outcomes.

Several twists appear in this case. The state, apparently victorious, was blindsided by a regulatory action of the EPA 17 days after the court's ruling. The court had appeared to rely on a CERCLA provision that seemed to allow the application of RCRA only at federal facilities that were not on EPA's National Priority List (NPL) for Superfund cleanup. The EPA, evidently under Army and DOJ influence, went ahead and listed Basin F, one of the only RMA sites not already on the NPL, on the NPL.[72] The Army then filed a new suit,[73] claiming that the court had to reverse its decision, since Basin F was now on the NPL. In August of 1991, the court granted the Army's request, and said that it had no longer had jurisdiction to enforce RCRA laws in this case. The role of the EPA as an agency is interesting in this case, as a simple regulatory decision on its part changed the nature of this immensely important case.

The state appealed the court's decision, arguing that RCRA and CERCLA are complementary, and that the state needed a substantial voice in these cleanup cases, in part because EPA lacked enforcement capability against federal facilities due to the "unitary executive theory." Several key sections in CERCLA support the view that Congress intended its provisions to be complementary to those of RCRA. The court read deeply into the Act, delving into Congressional intentions, and on a relatively clear reading found that the state was not precluded from RCRA enforcement actions at federal facilities on or off the NPL.

The court's holding clarifies that states are equal partners with the federal government in providing protection for the public health and welfare, even at hazardous waste sites. The ruling empowers states to enforce the express mandate of CERCLA that federal agencies comply with environmental laws to the same extent as other PRP's...[T]he states' independent enforcement role is essential to ensuring expeditious cleanup of these facilities...Thus, the court's opinion thwarted an attempt to open a dangerous loophole in the Superfund process that threatened to exempt thousands of the worst toxic waste sites from regulation under those federal environmental laws that delegate enforcement authority to the states.[74]

This ruling is an instance of reading a statute as a whole, rather than in parts, as DOJ had done. This change in reading clearly changed the understanding of Congressional intent. Despite an appeal from Roy Romer and other governors not to appeal the case, DOJ has asked the Supreme Court to review the ruling. The court has not yet made a decision whether or not to review. The ramifications of declining to review are the same as upholding the decision: States have an equal role in overseeing cleanups. In a worst-case scenario for the states, if the court reviews the decision and overturns it, states may lose their up front authority to influence the process and substance of hazardous waste cleanup decisions.


"We need to find a way to get everybody to cooperate. Why should we spend all that money on suits? We should take it and put it into cleanup."[75]

Presumably, the shared underlying goal for any hazardous waste site is cleanup. Issues preventing cleanup include environmental and scientific issues such as studies of carcinogens, tests for site contaminants, acceptable levels of risk, and remediation strategies. Some of these issues overlap with broader social questions. The basic scientific uncertainty in the RMA case feeds into the political, social, economic, and administrative issues that overly the environmental dilemmas involved in remediation.

At RMA, the role of litigation and politics has already been addressed. Litigation is an alternative to a negotiated agreement (ATNA) that parties have not been willing to abandon. It has delayed cleanup, but has identified RMA as a "test case," and a possible landmark decision in terms of state versus federal authority for cleanup at federal facilities. The state has seen itself as a protector of the public interest, and a necessary check on federal self-regulation and monitoring. The federal government has tried to consolidate its power, vest EPA with final cleanup authority, and cleanup in a cost-effective manner. Litigation has polarized the state and the federal government, making them adversaries, rather than partners, in the RMA cleanup. Litigation has escalated the conflict by raising the political and jurisdictional stakes of any outcome.

RMA has been a political case from early on its history. Politicians have used the environmental aspects of the case to try and outdo one another in terms of protecting public health. Governors, as state executives, have taken a lead role in this. The Governor's Office in Denver maintains ongoing involvement with the cleanup. Congressional members have initiated legislative action, as discussed earlier. Local mayors of surrounding towns take great interest in goings on at the site. The possible Northward expansion of Stapleton Airport was an early local issue of concern. Remediation to allow local residential development was also a local interest. The wildlife refuge has prevented such residential, industrial, or commercial uses other than tourism.

The US Fish and Wildlife Service has been the main player in DOI, promoting the wildlife option, leading somwewhat controversial tours on the site, and looking to become the final site administrator. USFWS may still support levels of remediation, however, that may displace wildlife temporarily to secure better long-term cleanup.

The Army has been pressed from its early veil of secrecy to begin public meetings on the Arsenal, and to attempt to soothe public anxieties over such projects as the SQI and the Basin F excavation. This has been particularly difficult for the Army, given its legacy of false statements, policy reversals, and role as a contaminating PRP. The Army has relatively low credibility with the public, in terms of its absolute commitment to public safety and ultimately high levels of decontamination.

The overlying issues involved at RMA include the litigation surrounding the power distribution involved with hazardous waste cleanup and the politics of environmental safety. Additional issues and interests are the role of technical information, administrative procedure, interest group disagreement, and alternative dispute resolution.

Technical Information

"Fortunately, our group does have what we call a TAG grant, a technical assistance grant, and this has given us the opportunity to hire a consultant that helps us disseminate technical information...We do feel, however, that the $50,000 is a very, very limited amount when you are looking at something as complex as the Rocky Mountain Arsenal and how long it will take to clean that up."[76]

The final RMA administrative record will probably contain some 10,000 or more pages. It is so big, detailing over 8 years, $80 million, 11,000 samples, and 233 reports, that the Army had to build a separate building to contain it. As one Army spokesperson testified: "We have more people working on the administrative record than we currently have engineers conducting the $150 million a year cleanup program."[77] With so many reports containing so much technical information, Citizens Against Contamination, a local grassroots organization, is lucky to have received a TAG grant from the EPA. They needed perhaps five times more, testified their Chairperson before Congress, to really help them understand issues beyond Basin F alone.

Technical information has blanketed those who have become involved with the Arsenal. The Army is apparently forthcoming with requests for information, and the public can use a comprehensive documents facility at the Arsenal, but one may have to be the proverbial rocket scientist to understand most of the details. The Environmental Information Network (EIN) is "a think tank involved in researching and analyzing environmental issues in order to disseminate technical information to the public."[78] EIN has been involved at the Arsenal as a watchdog group, and as a translator of complex information on toxics and remedial strategies for the public.

Technical information in this case can clearly be a roadblock to effective public participation. However, the Army and the EPA have conducted numerous public meetings. In the case of the SQI, for example, citizens were involved up front in the technical and decision-making process. They were educated as to the merits of different approaches to cleanup, and they came to see that SQI was the best available remediation technique. Thus, the Army was successful in at least one case in involving the public and promoting an understanding of complex technical issues. Up front, early involvement was a key to success.

Administrative Procedure

"It's going to take a good faith effort by both sides, but when the federal and state governments respect each others' laws, these things can be worked out."[79]

We have seen how the EPA was able, through a subtle administrative procedure, to temporarily overturn a judicial ruling. This delayed action at RMA and called into question the state's role in the cleanup. In general, administrative procedure is an essential part of the Arsenal case. Much of the litigation arises from process-oriented disputes and assertions of federal or state regulatory and jurisdictional authority. When a party is allowed to take part in a decision, what that decisional role will be, and how that role will be determined and realized are crucial factors for the state, the Army, and the EPA. Whose regulations apply, and how they will be enforced, drive the litigation and the interests of these participants in the Arsenal conflict.[80]

A key question that surfaces repeatedly in the Arsenal case is: Why did the remediation of RMA result in such a high level of conflict? Many other Superfund cleanups at federal facilities are resolved through inter-agency agreements (IAG's) that are negotiated between state and federal agencies. While space limitations limit a discussion of this question here, several possible reasons can be identified: RMA represents a confluence of events and actors in a context that was ripe for conflict; the legislative uncertainties and potentially conflictual elements of RCRA and CERCLA made a future legal battle inevitable; Colorado's political culture is different from other states in ways that make it more aggressive in asserting states' rights. These potential explanations are not mutually exclusive, and deserve to be more thoroughly discussed.

Interest Group Disagreement

"'The contamination saved this place,' tour guide Ray Telfer tells a busload of senior citizens...Paradox is a big part of the Arsenal's legacy."[81]

Not only is there disagreement between state and federal agencies about the Arsenal, but local and national interest groups cannot agree on basic elements of the remediation plan either. Three main issues divide environmental groups as well as citizen groups: The use of SQI to burn waste; what to do about the flow of contaminated groundwater off-post to the northwest; and how much to remediate given the final status of the site as a national wildlife refuge.[82] Given that these groups disagree amongst themselves, this may hinder their effective influence on the Army, EPA, and the state.

1. SQI. Now no longer a highly relevant issue, SQI is up and running. Significant protest did not accompany its start-up, but the state did assert its authority to monitor the SQI from its offices. Environmental groups, as well as citizens groups, disagreed over whether this was the right approach to remediation. The fact that past "scientific" solutions to hazardous waste disposal, such as deep-well injection or evaporation ponds, did not work lead some to feel that SQI would appear in the same negative light in 20 years.

Alternatives to SQI, such as capping soil with clay covers, transfering waste off-post, and storing waste in on-site land-fills all sparked their own objections and risks, but some felt that the SQI was moving too fast and was being forced on them as a solution.[83] SQI was a cause of controversy, but is now proceeding quietly with Basin F liquid incineration.

2. Off-Post Groundwater Contamination. Flows to the northwest of the site have alarmed many residents and environmentalists. There is fear of continued contamination to aquifers and groundwater as potential future landfills on the site, presently contaminated topsoil, and leaked toxics from basins may continue to find their way into water sources. These concerns influence final agreement on the ROD, and conflict over final levels of remediation. How effective are water-treatment facilities? Is the contamination contained sufficiently on-site by underground slurry walls and other means of stopping flows?

3. Wildlife and Cleanup. Given that the site is destined to become a wildlife preserve, what are desirable levels of cleanup? Many acknowledge that the site will never be absolutely pristine, but there are disagreements as to whether wildlife should be displaced in the short-term in order to clean up more completely for the long-term. This is still an issue of concern for residents who feel that cleanup may be compromised because of the final use designation. This is also cause for concern by the state, who has criticized the Army ROD proposals for eliminating potential cleanup options prematurely because of concern for wildlife habitat.[84] In other words, is the Army, and Shell, using the wildlife refuge as a way of limiting the extent of cleanup and thus the level of cost, despite stipulations that the refuge not affect remediation levels?

The fact that interest groups have differing expectations and positions regarding various aspects of the RMA case makes conflict at RMA particularly complex. Interest group strength might be weakened due to a non-unified front, and environmental goals might be compromised due to technical and practical disagreements among environmentalists and public interest groups as to how clean is clean, and what is feasible and cost-effective to accomplish. This situation clearly exemplifies the understanding that environmentalists constitute many different groups and viewpoints.

Alternative Dispute Resolution

"Issuance of the [state] compliance order in June 'is a bit disturbing because it goes back to the bad old days of litigation' rather than advancing a 'cooperative effort on how cleanup ought to be undertaken.'"[85]

"[The 10th Circuit Appeal ruling in favor of Colorado is] a phenomenal decision that will be great for the states, and not because states want to act in conflict with the federal government. In fact, the states want to act in concert with the federal government."[86]

1. Litigation. The litigation surrounding the RMA case may have been unavoidable. As one DOJ attorney put it, "the Army still hopes to resolve the state's technical concerns informally. However, 'the thorny jurisdictional issues can't be resolved" through discussions between the parties."[87] In other words, the legal issues, the issues surrounding RCRA and CERCLA, state versus federal authority, may not have been amenable to negotiation, due to the stakes involved in terms of power, and due to the lack of clarity, room for interpretation, and untested litigious nature of the two acts. One author, writing in 1989, predicted a "jurisdictional showdown" between the states and the federal government over precisely these issues.

Referring to EPA's actions under CERCLA, Carolyn Buchholz maintained: "In some instances EPA's position is in direct contravention to express state authorities and would limit states' rights and enforcement abilities under CERCLA. As these jurisdictional issues are presented more frequently, the possibility of a major jurisdictional showdown increases."[88] RMA is not an isolated case. It represents a set of issues brought to bear in other circumstances in other states, which maintained an "uneasy truce" with the federal government.[89] Buchholz concludes:

"To implement CERCLA effectively, the federal government needs to recognize the express language and intent of Congress and Superfund, and to be more sensitive and responsive to states' desires and abilities to assist in or independently effect Superfund cleanup...[S]tates have, using their own funds, successfully cleaned up many sites...Ultimately, additional congressional action may be required to further clarify state authority or provide for delegation of the program. As these issues are evolving, the environment and the citizens of the United States will be better served by cooperative efforts between sovereigns."[90]

While the Federal Facilities Compliance Act of 1992 may have resolved some of these legislative and jurisdictional issues, it is clear that this was not done according to the satisfaction of all parties involved, namely the DOJ and the Army. DOJ is going ahead with its Supreme Court appeal, despite calls by the states, the apparent victors, and other interested groups to get on with the cleanup.

Ultimately, RMA, and Colorado v. Department of the Army, may just be the jurisdictional showdown to which Buchholz referred. It may have been inevitable, and it certainly has progressed independently of any closed-door negotiations between the state and the federal government.

2. Environmental Issues. As suggested by the headline quotations above, the state and the Army are and have been interested in "informal," or alternative, means of settling disagreements at the Arsenal. Environmental disputes have been more susceptible to such arrangements than the competing jurisdictional claims, although the two sets of issues are related.

Negotiations and multi-party agreements have been reached in numerous instances. Parties have worked together on drafts of reports and have attempted to reach settlement outside of court. However, as is evidenced by the review of litigation above, not all such attempts were successful. There are references in the press to negotiations breaking down, to disagreements finally resulting in natural resource damages suits, and to the state refusing to sign on to the most recent Federal Facilities Agreement because of differences of opinion. It is difficult to gauge the extent of negotiations, mediation, arbitration, and other forms of alternative dispute resolution, but it is clear that there are agency procedures covering some of these methods, and that many were used at various times. A more thorough reading of agency procedures and in depth interviews with participants would reveal more clearly the extent of these practices in the RMA case.

Currently, the Army has been circulating drafts of its proposed final ROD to the state, EPA, and other groups for comment and review. It has integrated some of these criticisms into preceeding drafts. Whether this process will produce a relatively non-conflictual ROD remains to be seen.

One example of an alternative forum for discussion and conflict resolution is the EPA's dialogue committee. This recently formed group of stakeholders in federal facility cleanups released a report of "consensus recommendations" in 1992 that included proposals for:

Establishment of new procedures and attitudes regarding the sharing of information with the public on contamination problems at federal sites; Establishment of local advisory panels--called site-specific advisory boards--to be involved in discussions and help make decisions about cleanup work at individual federal cleanup sites; and Establishment of a "fair-share" procedure for allocating cleanup funding to individual sites when not enough federal money is available to clean up all sites at once.[91]

RMA does have such a site-specific advisory board. It also has numerous agency meeting forums, as well as public information meetings to disseminate information and invite comment. These processes have apparently been hit or miss. One recurring comment on successful processes was that bringing all the participants in early on in the process in a meaningful and substantive way helped significantly.


"Costs associated with cleanups of federal facilities are likely to run into 'multiple billions of dollars,' [Governor Romer] said. 'We need to make sure that these funds are spent on actual cleanup work and not on costly litigation between the states and federal agencies over their respective authorities.'"[92]

The Rocky Mountain Arsenal represents a complex set of environmental and legal disputes. The major overlying issue, one which influences and delays cleanup efforts, is a conflict between the federal government and the State of Colorado involving jurisdiction over the cleanup of hazardous waste at federal facilities. The stakeholders are currently awaiting a decision by the Supreme Court on whether or not to review a case which has granted the state a role as equal partner in the cleanup at RMA. Also watching will be 49 other states interested in securing their own roles and rights as regulators and guardians of the public interest.

Whether this legal process has indeed helped the public achieve the goal of a cleaner environment is open to debate. The state would argue that it has forced the federal government to clean up more than they would have otherwise done. The Army would counter that enormous resources have now been spent on legal fees and the administrative record which could have otherwise been spent on remediation. Presumably, the real answer lies somewhere between these two views. While the state's litigation has pressed the Army and Shell to higher standards of remediation, the litigation has been the source of costly delays and diversion from the main task of decontamination.

I am convinced by the legal and administrative discussions of the case that a "jurisdictional showdown" was at some point inevitable, due to the nature of the shifting balance of power in federal-state relations, and the lack of clarity in the legislation relevant to this case. Congressional action on the Federal Facilities Compliance Act was perhaps too little, too late, and the stakeholders may have been committed to seeing this test case through to the bitter end.

Lessons for more amenable and productive dispute resolution to be drawn from this case fall into two groups: Legal strategies and environmental strategies. I will touch on both briefly.

In terms of litigation, a refusal to abandon the legal option may have led to distrust and a lack of commitment to real conflict resolution. Early and continuing efforts at litigation led to a conflict spiral, escalating to stiffer penalties and higher suits. Once legal resources were committed, participants may not have wanted to draw back and settle out of court.[93] The nature of the Superfund process, focusing on liability claims, contributes to early court action, which may then lead to further uses of the courts to settle disputes between participants.

Arbitration may be a useful alternative to litigation, but in high-stakes circumstances such as these it may not work. Awaiting the outcome of RMA, one can hope that a clear legal decision one way or the other (probably choosing not to review is best in terms of lessening future litigation) will prevent future litigation along the same lines as RMA. If the Appeals Court ruling holds, or is not reviewed, the RMA case will be a model power-sharing arrangement for other federal facilities, who will hopefully not have to go through the same litigious odyssey in order to determine jurisdiction over remediation.

In terms of environmental disputes, clear information, public meetings, early involvement with the decision process, and meaningful substantive impact all aid in resolution. Credibility can be built through openness, information sharing, and real discussion, rather than public meetings as public relations lectures. A clear, early discussion of the goals of cleanup, and addessing the final uses of the site, were identified as possible ways to avoid some later disputes over remediation, and to expedite the Remedial Investigation/Feasibility Study process through eliminating alternatives up front. Such a discussion of goals, values, expectations, feasibility, and tradeoffs, in an open, public format, seems essential to effective environmental conflict resolution.


The Supreme Court reviewed the Arsenal case early in 1994 and ruled in favor of the State of Colorado. The State has thus secured the right to play a larger role in overseeing the cleanup of waste at a federal facility.


[2] Obmascik, M., "Shell Boosted Pesticide Output at Arsenal After Hearing Ban Plan," Denver Post, 9/18 1988

[3] A general footnote must be inserted here in order to list a few disclaimers as to the depth and generalizeability of this work. An ideal case study would utilize numerous, intensive interviews with as many stakeholders as possible. It would also involve a full reading of all relevant documents related to the case. While several phone interviews with participants were conducted, and a sizable amount of data and analysis was collected and digested, due to the complexity of the RMA case and the time and length constraints of this paper, this study should not be understood as an absolutely complete and comprehensive case study of RMA. This obviously affects any generalizations and conclusions to be drawn from this study, in addition to the usual constraints of a single case study. However, understanding and illumination of a number of theories and hypotheses, not generalization, is the goal of this work.

[4] The general Social Process model of the policy sciences sees individuals as seeking values, through institutions, and affecting the environment. [See: Lasswell, H. D. 1970. "The Emerging Conception of the Policy Sciences." Policy Sciences 1(3-14)].

[5] Ira Daigle, nearby resident of RMA. Zaslowsky, D., "Toxic Issue At Arsenal Stirs Furor In Colorado," New York Times, January 4 1989.

[6] A drop of GB on the skin is purported to kill a person in a few minutes.

[7] EPA. 1993. "Fact Sheet: The Rocky Mountain Arsenal (RMA)." October.

Peters, V. L., L. E. Perrault and S. M. Smith. 1993. "Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision." Environmental Law Reporter 23 ELR 10419.

[8] Peters, V. L., L. E. Perrault and S. M. Smith. 1993. "Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision." Environmental Law Reporter 23 ELR 10419.

[9] Silent Spring, quoted in Labaton, S., "Big Courtroom For Toxic Web," New York Times, November 16 1987.

[10] Peters, V. L., L. E. Perrault and S. M. Smith. 1993. "Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision." Environmental Law Reporter 23 ELR 10419.

[11] "DIMP is a byproduct of the production of Sarin nerve agent: DIMP occurs very few other places in the world. DIMP in groundwater is difficult to treat, because its mobility makes it less likely to absorb onto carbon filtration systems. Shell used DCPD in pesticide operations. State experts believe that DCPD is a fingerprint of the groundwater contamination plume from Basin F." [Peters, V. L., L. E. Perrault and S. M. Smith. 1993. "Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision." Environmental Law Reporter 23 ELR 10419].

[12] 1989. "Chemicals Industry; A bio-degradable recyclable future." The Economist, January 7.

[13] EPA. 1993. "Fact Sheet: The Rocky Mountain Arsenal (RMA)." October.

[14] Regional EPA RMA coordinator Connally Mears, quoted in Labaton, S., "Big Courtroom For Toxic Web," New York Times, November 16 1987.

[15] EPA and others. 1993. "Rocky Mountain Arsenal: The Most Commonly Asked Questions About Submerged Quench Incineration (SQI)." January.

[16]Environmental Information Network (EIN). "Liability Disclaimer."

[17] 1993. "Fact Sheet: The Rocky Mountain Arsenal (RMA)." October.

[18] See: 1993. "Profiles In Risk Assessment." EPA Journal January/February/March.

[19] EPA. 1993. "Fact Sheet: What Are The 'Tradeoffs' In Cleaning Up The Arsenal?" October 22.

[20] Connally Mears, EPA's Regional Program Manager for RMA cleanup. Congressional Testimony. 1992. "Administration of the Federal Superfund Program." 102-73, July 29.

[21] EPA. 1993. "Fact Sheet: The Rocky Mountain Arsenal (RMA)." October.

[22] "Rocky Mountain Arsenal Restarts Incinerator," The Bureau of National Affairs, Inc., Environment Reporter, August 13 1993.

[23] Peters, V. L., L. E. Perrault and S. M. Smith. 1993. "Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision." Environmental Law Reporter 23 ELR 10419.

[24] To put these costs into perspective, DOD requested a total of $3.7 billion for fiscal 1993 environmental cleanup and compliance. The department's total operation and maintenance program would go from $1.6 billion in 1992 to $1.5 billion in 1993. DOD's environmental requests represent less than 1.5% of the department's total fiscal 1993 budget request of $267.6 billion. ["DOD Requesting Additional $1 Billion This Year, Next For Cleanup, Compliance," The Bureau of National Affairs, Inc., Environment Reporter, January 31 1992]. ["US Sues Shell Oil for $1.9 Billion In Pollution Case," The New York Times, December 10 1983]. The cost estimates for these cleanups are in many instances very low relative to final costs. While the Army sued Shell for "at least" $1.9 billion in 1983, its cleanup request plan, approved by EPA, for the Arsenal asked for $357 million dollars to clean RMA in 15 years in 1984.

[25] Elliott, D. E. 1992. "Superfund: EPA Success, National Debacle?"." Natural Resources & Environment. American Bar Association.

[26] Letter from Colorado Governor Roy Romer to 31 governors asking "for support in preserving the right of states to regulate hazardous waste cleanups within their borders." "Colorado Governor Urges States To Oppose Possible Appeal On Regulation Of Cleanups," The Bureau of National Affairs, Inc., Environment Reporter, September 24 1993.

[27] U.S. Constitution, Amendment X.

[28] 42 U.S.C. @@ 9601-9675, ELR STAT. CERCLA 007-075

[29] McSlarrow, K. E. 1987. "The Department of Defense Environmental Cleanup Program: Application of State Standards to Federal Facilities after SARA." Environmental Law Reporter 17 ELR 10120.

[30] Pub.L. 99-499, 100 Stat. 1613 (1986)

[31] McSlarrow, K. E. 1987. "The Department of Defense Environmental Cleanup Program: Application of State Standards to Federal Facilities after SARA." Environmental Law Reporter 17 ELR 10120

.[32] 42 U.S.C. @@6901-6991; ELR STAT. 44054.

[33] McSlarrow, K. E. 1987. "The Department of Defense Environmental Cleanup Program: Application of State Standards to Federal Facilities after SARA." Environmental Law Reporter 17 ELR 10120.

[34] 49 Fed. Reg. 41036 (Oct. 19, 1984).

[35] "Current Developments: Federal Facilities," The Bureau of National Affairs, Inc., Environment Reporter, January 22 1993.

[36] Pat Schroeder quoted in floor debate on the measure, "House Votes to Turn Arsenal Into Refuge," The Bureau of National Affairs, Inc., Environment Reporter, July 17 1992.

[37] Parks, A., "Utah to Fight Nerve Gas Move in Court," The Washington Post, May 5 1979.

[38] "Chemical War," The Washington Post, October 1 1980. This is an interesting inter-state component of the RMA case. Another issue of interest is the role of the Federal Aviation Administration, which at one point was considering proposals to expand Stapleton International Airport to the North onto the RMA site. Fears of contamination helped to dash the plans of local politicians and developers, and led eventually to the construction of the new Denver International Airport to the East of the site.

[39] "Army to Provide Water To Schools Near Arsenal," The New York Times, March 6 1986.

[40] "House Approves Private Compensation Bill Allowing Rancher to Press Claims Against Army," The Bureau of National Affairs, Inc., Environment Reporter, October 7 1988.

[41] "Reagan Signs Bill Requiring Army to Submit Plan to Clean Up Denver Arsenal By Late 1993.," The Bureau of National Affairs, Inc., Environment Reporter, December 13 1985."Congress Passes Bill Requiring Army to Submit Plan to Clean Up Denver Arsenal In Seven Years," The Bureau of National Affairs, Inc., Environment Reporter, November 22 1985.

[42] Army Releases Study Saying Cleanup of Colorado Arsenal Could Cost $2.5 Billion," The Bureau of National Affairs, Inc., Environment Reporter, June 13 1986. Interestingly enough, another scenario projected a $2.8 billion cost for a 1996 cleanup completion scenario. The cheapest scenario cost $964 million for a 1995 plan. However, it is important to note that the Army admitted that these plans were not designed according to National Contingency Plan (NCP) requirements as laid out in CERCLA. Thus, the details of these plans would likely be challenged by the state and EPA. According to reports by the OTA and GAO, the Army estimates may be considerably below cost. A 1986 OTA report requested by Ronald Dellums (D-Calif) and Kramer said that "[t]he Army report, which was produced by a contractor, 'should not be used as the principal basis for planning cleanup..." The 1993 Army scenario was projected by OTA to cost $5 billion, and the other scenarios could run above $4 billion. ["Army Estimate on Rocky Mountain Arsenal Work May Not Be Accurate, GAO, OTA Reports Both Say," The Bureau of National Affairs, Inc., Environment Reporter, October 17 1986]. In 1985, the Army was convinced cleanup could not be accomplished before the year 2000, despite this legislation. "The Army is 'concerned' that early cleanup deadlines imposed by Congress could lead to a more limited cleanup..." ["Cleaning Up Military Toxic Waste Sites May Cost Up To $10 Billion, DOD Estimates," The Bureau of National Affairs, Inc., Environment Reporter, November 15 1985].

[43] David Shelton, Director, Hazardous Materials and Waste Management Division, Colorado Department of Health. Congressional Testimony. 1992. "Administration of the Federal Superfund Program." 102-73, July 29.

[44] Several suits were filed by area residents against Shell and the Army. Some were dismissed due to federal immunity. I will not discuss these cases here, as they are not directly related to the focus of this paper. They are, however, another dispute area surrounding the Arsenal case. Shell has purchased properties contiguous to RMA, some say to compensate neighbors and clean up the area, others say to prevent future liability suits. It appears to me that area residents are relying on the state, through CDH, and their own grassroots organizations, to secure their health interests.

[45] Peters, V. L., L. E. Perrault and S. M. Smith. 1993. "Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision." Environmental Law Reporter 23 ELR 10419.

[46] Ibid.

[47] "Cleanup Agreement On Rocky Mountain Arsenal Reached Under Superfund; First Federal Site," The Bureau of National Affairs, Inc. Environment Reporter, February 11 1983.

[48] Peters, V. L., L. E. Perrault and S. M. Smith. 1993. "Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision." Environmental Law Reporter 23 ELR 10419.

[49] State Natural Resource Damage Claims Filed Before Superfund Statute of Limitations End," The Bureau of National Affairs, Inc., Environment Reporter, December 16 1983. Section 112(d) of CERCLA "provides that no claim may be presented and no action for damages may be commenced' within three years from the date of discovery of the loss or the date of enactment of this act, whichever is later...'"

[50] Colorado v. U.S, DColo, No. 83-C-2386.

[51] "District Court Holds U.S. Government, Shell Liable For Resource Damage Caused By Arsenal," The Bureau of National Affairs, Inc., Environment Reporter, November 22 1985.

[52] U.S. v. Shell Oil Co., DColo, No. 83-2379.

[53] "Army Seeks $1.8 Billion from Shell Oil Co. for Contamination at Rocky Mountain Arsenal," The Bureau of National Affairs, Inc., Environment Reporter, October 14 1983.

[54] "United States Seeks $1.9 Billion from Shell in Rocky Mountain Arsenal Contamination Suit," The Bureau of National Affairs, Inc., Environment Reporter, December 16 1983.

[55] Ibid.

[56] "Colorado Case Turns On Jurisdiction Over Hazardous Waste Cleanup," The Bureau of National Affairs, Inc., Environment Reporter, July 20 1990.

[57] "Colorado Opposes Shell, Army Proposal To Fund, Clean Up Rocky Mountain Arsenal," The Bureau of National Affairs, Inc., Environment Reporter, April 8 1988.

[58] "EPA, DOE Reach Model Compliance Agreement To Guide Regions In Cleanups Under Superfund," The Bureau of National Affairs, Inc., Environment Reporter, June 10 1988.

[59] Ibid.

[60] "Colorado Opposes Shell, Army Proposal To Fund, Clean Up Rocky Mountain Arsenal," The Bureau of National Affairs, Inc., Environment Reporter, April 8 1988.

[61] Ibid.

[62] Ibid.

[63] Ibid.

[64] One author argues that after conflicting trends in interpreting hazardous waste insurance coverage, with first a pro-insured approach and then a pro-insurer approach for cases of active polluting, recent court decisions indicate that coverage may be based on a contextual interpretation of the case that reconciles the two trends. The author argues that courts should focus on the facts of the case and deny coverage when it can be shown that the activities of an insured party represent intentional pollution. [Hoskins, E. D. 1989. "Striking A Balance: A Proposal For Interpreting The Pollution Exclusion Clause In Comprehensive General Liability Insurance Cases." Environmental Law Reporter August(19 ELR 10351)].

[65] William Lafield, Shell spokesman, quoted in: Shabecoff, P., "U.S. Sues Shell Oil For $1.9 Billion In Pollution Case," The New York Times, December 10 1983.

[66] Bishop, K., "For Mega-Litigation, a State-of-the-Art Courtroom," The New York Times, March 18 1988.

[67] Hoskins, E. D. 1989. "Striking A Balance: A Proposal For Interpreting The Pollution Exclusion Clause In Comprehensive General Liability Insurance Cases." Environmental Law Reporter August(19 ELR 10351).

[68] Colorado v. U.S. Dep't of Army, 707 F. Supp. 1562, 19 ELR 20815 (D. Colo. 1989).

[69] Peters, V. L., L. E. Perrault and S. M. Smith. 1993. "Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision." Environmental Law Reporter 23 ELR 10419.

[70] Ibid., quotation from Colorado v. Dep't of Army.

[71] Ibid.

[72] This was a reversal of previous Army policy of keeping Basin F off of the NPL in 1987, because it was subject to RCRA corrective action authority. Ibid.

[73] United States v. Colorado, 22ELR 20088 (D.Colo.1991), rev'd, 23 ELR 20800 (qoth Cir. 1993).

[74] Peters, V.L., L.E. Perrault and S.M. Smith, 1993. "Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision." Environmental Law Reporter 23 ELR 10419.

[75] Sandy Horracks, Sierra Club RMA committee contact. Telephone interview, 11/93.

[76] Beth Gallegos, Chairperson, Citizens Against Contamination, Denver. Congressional Testimony. 1992. "Administratioin of the Federal Superfund Program." 102-73, July 29.

[77] Kevin T. Blose, Deputy Program Manager, RMA, US Department of the Army. Congressional Testimony. 1992. "Administration of the Federal Superfund Program." 102-73, July 29.

[78] "A Walk on the Wild Side." EIN Position Paper. 1993.

[79] Jack Van Kley, Ohio's Assistant Attorney General for environmental enforcement. Quoted in: "States, Federal Government Cooperate On Federal Facility Cleanups, States Say," The Bureau of National Affairs, Inc., Environmental Reporter, May 14, 1993.

[80] The Agency for Toxic Substance Disease Registry (ATSDR) should be mentioned here, as it has a role in health assessment at RMA. A relatively new federal agency, it is still working out relationships with EPA, DOD and other agencies. Its role is not yet clearly determined.

[81] Durkin, P., "Wildlife to Get Detoxified Home on Range," Los Angeles Times, December 6, 1992.

[82] Telephone interviews, 11/93: Rich McClintock, Colorado Public Interest Research Group and Colorado Environmental Coalition: Connally Mears, EPA Region VIII RMA Coordinator; Angela Medbury, Colorado Pesticide Network.

[83] Harrison, E., "Army's Plans For Nerve Gas Incinerator Spark Concern," Los Angeles Times, August 16 1992.

[84] Colorado comments on Army's "Draft Final Development and Screening of Alternatives (DSA)." 1993.

[85] DOJ Attorney John Moscato. Quoted in: "Colorado Seeks $1.5 Million In Fines For State Waste Law Violations At Arsenal," The Bureau of National Affairs, Inc., Environment Reporter, September 22 1989.

[86] Laura E. Perrault, Colorado Assistant Attorney General. Quoted in: "States, Federal Government Cooperate On Federal Facility Cleanups, States Say," The Bureau of National Affairs, Inc., Environment Reporter, May 14 1993.

[87] "Colorado Cites Rocky Mountain Arsenal In Continuing Actions Against Waste Site," The Bureau of National Affairs, Inc., Environment Reporter, July 7 1989.

[88] Buchholz, C. L. 1989. "Can a Jurisdictional Showdown Under Superfund Be Avoided." Environmental Law Reporter August(19 ELR 10327).

[89] States, Federal Government Cooperate On Federal Facility Cleanups, States Say," The Bureau of National Affairs, Inc., Environment Reporter, May 14 1993.

[90] Buchholz, C. L. 1989. "Can a Jurisdictional Showdown Under Superfund Be Avoided." Environmental Law Reporter August(19 ELR 10327).

[91] "Current Developments: Federal Facilities," The Bureau of National Affairs, Inc., Environment Reporter, January 22 1993.

[92] Letter to 31 fellow governors from Colorado Governor Roy Romer. "Colorado Governor Urges States To Oppose Possible Appeal On Regulation Of Cleanups," The Bureau of National Affairs, Inc., Environment Reporter, September 24 1993.

[93] A counter-example here is Shell settling with the Army, although it can clearly be seen that once Shell is hit with liability, its interest in "cost-effective" remediation becomes similar to that of the Army.