OBJECTIONS TO LOWRY LANDFILL PROPOSED SETTLEMENTS

(Editor's note: The following is a "comment" in response to the Proposed Consent Decrees regarding the State’s claim for natural resource damages resulting from releases of hazardous substances at the Lowry Landfill Superfund Site. It was written by Adrienne Anderson. Reading it makes me thankful, once again, that we have Ms. Anderson here in our community. Her encyclopedic knowledge and unflagging motivation are unique. Who else could we call on to do the heavy lifting in these convoluted matters, so far beyond the comprehension of most of us? Thank you, Adrienne, for all of your efforts.
For more on this topic go here and here.)

From: CO WATCH <co_watch@earthlink.net>

Date: July 6, 2010 3:56:32 PM MDT

To: casey.shpall@state.co.us

Subject: COMMENTS OF PROPOSED CONSENT DECREES, LOWRY SETTLEMENT AGREEMENTS

TO: Colorado Attorney General John Suthers

Please accept the attached document in comment to the proposed Lowry Landfill Settlement.

Please also provide a copy of these comments to the judge who is hearing the case in the U.S. District Court, and we request responses to these comments also be made and submitted to this organization and the judge prior to a request for final consideration and approval by the court.

Sincerely,

Adrienne Anderson
for
Co WATCH
A project of the Rocky Mountain Peace & Justice Center

In Re: State of Colorado v. Molson Coors Brewing Company, Roche Colorado Corporation, Shattuck Chemical Company, ConocoPhillips Company, Gates Corporation, Alumet Partnership, Shell Oil Company, Hazen Research, Inc., Metro Wastewater Reclamation District, and Cities of Littleton, Englewood and Lakewood.



I. The proposed settlements are woefully inadequate to compensate the citizens of Colorado for the extensive natural resources damages and losses caused by decades of hazardous and nuclear waste disposal at Lowry Landfill in Arapahoe County. These losses include, but are not limited to, contamination of several billion gallons of groundwater underneath and beyond the site in various directions, and which have and will continue to cause damages in the future. Such damages since 2000 extend not only from the site’s Arapahoe County location, but points beyond where the contaminated groundwater is now being dispersed by Metro Wastewater (a party to this proposed settlement) and points beyond by another Lowry polluter, Denver Water.

The proposed settlements are neither fair and reasonable, nor consistent with CERCLA, and are not in the public interest.

A. Most egregious is the parties’ failure – over now a 30 year period - to have designed and constructed an on-site treatment system for the extensive contamination of the regional groundwater by not only numerous hazardous wastes, but plutonium and two dozen other radioactive wastes that they know to exist in, around and underneath the site at levels which greatly exceed state and federal standards.

1) While wastes of this nature are to be handled in accordance with the Mixed Waste rule, which requires joint EPA and DOE regulation and remedy for nuclear wastes in solution with hazardous wastes, the key parties after 1992 – along with the EPA and DOE - have collectively opted to simply deny their existence. By doing so, they have abandoned their mandates to the public and continue to ignore their responsibilities to protect the citizens of this state and its natural resources from the full extent of known contamination at the site. This constitutes an abuse of the public trust by the agents of the State of Colorado, now acting as Colorado’s Natural Resource Trustees, who have collectively failed to protect its citizens’ interests and the natural resources damaged as a result of the pollutants dumped at the site by the currently named “Generator Defendants” and a couple of hundred other EPA-named “potentially liable parties.”

2) The credibility of the settling parties to act in the public interest is therefore compromised. For several decades now, all parties to this proposed settlement have been well aware of but - beginning in early 1993 - have incredulously sought to deny and blunt public knowledge of the extensive contamination of the aquifer systems beneath the Lowry Landfill with plutonium and numerous other special nuclear wastes, in addition to an acknowledged array of toxic wastes. Though the State of Colorado is an agreement state for the Nuclear Regulatory Commission, it has done nothing of record, to date, to require remedy of the extensive radioactive waste contamination present at Lowry from the number of known NRC/AEC/DOE licensed contractors among the EPA-identified PRPs at the site (including numerous AEC/DOE /NRC contractors/licensees including Coors Porcelain, Shattuck, Rockwell International, the U.S. Air Force at the Lowry AFB, Martin Marietta (now Lockheed Martin), the USGS (operating the state’s only nuclear reactor at the Denver Federal Center, and which discharged nuclear wastes into the sewer system of Lakewood, a feeder entity to Metro Wastewater), and others. Several of these parties also acted as owners/operators of the network of weapons of mass destruction production sites in the Denver metropolitan region, including the Rocky Flats Nuclear Weapons Plant, Martin Marietta Titan Missile Plant, and Rocky Mountain Arsenal, where Sarin nerve agent and other chemical weapons were made.

3) The “Generator Defendants” in 1992 collectively demanded that EPA require the involvement of the Department of Energy for remediation of the special nuclear wastes at Lowry. Yet subsequent to an apparent confidential accord in early 1993 between EPA and DOE with Rockwell International and Dow Chemical, which operated Rocky Flats, all, including the settling parties to this agreement, began to deny the presence of these special nuclear wastes, and failed to implement the Mixed Waste Rule (i) procedures for its proper remedial action. The State of Colorado has initiated no action to challenge this on behalf if its citizens, though at the Rocky Mountain Arsenal, it took a case all the way to the U.S. Supreme court seeking damages for losses at that site.

4) The evidence of this extensive mixed waste contamination was confirmed to be present in the groundwater and other media at the Lowry Landfill site through thousands of tests conducted by Harding Lawson and Associates under contract to the Lowry Coalition (the dozen top liable polluters at the site, including currently named “Generator Defendants.”) The results from these multi-million dollar studies included thousands of lab analyses conducted over the 4-year period from 1988 – 1992, pursuant to EPA order. The radionuclide analyses were performed for the Lowry Coalition and its environmental consulting firm using a DOE-certified laboratory, summarized in their letter and attachments of December, 1992 which were submitted to the EPA under the signature of their joint legal counsel, Shattuck’s attorney John R. Faught.(ii)

5) The “Generator Defendants” and other PRPs subsequently entered into secret settlement agreements in 1994 with the City and County of Denver and Waste Management, Inc. negotiated through then-city attorney Dan Muse under the Webb administration. These secret settlements, which even the Denver City Council were not privy to (iii), included “radioactive premiums” which would allow polluters to buy their way out of damages caused by the nuclear wastes at the site that the parties were concurrently denying existed to the public. In these confidential agreements, any costs associated with any future actions to remediate the radioactive component of the site would be passed on to Denver taxpayers.(iv)

6) The proposed settling party “State of Colorado” – acting through its Colorado Department of Health – has not only been well aware of nuclear waste disposal at Lowry, but aided and abetted the continuing disposal of nuclear wastes at Lowry Landfill (v). These radioactive wastes then mixed with the liquid hazardous wastes and municipal solid wastes that were dumped there after 1964, when a section of the former military disposal grounds at the Lowry Bombing Range was deeded to the City and County of Denver by the federal government for use as a sanitary landfill.

II. These settlement agreements fail to acknowledge, let alone address or compensate the citizens of Colorado for, the fact that the zones of damages to natural resources from Lowry toxic and hazardous pollutants have been greatly expanded to numerous points beyond the Lowry Landfill Superfund Site itself. This was accomplished in 2000 by Lowry PRP Metro Wastewater’s issuance of a discharge permit for Lowry Landfill, with a precedent-setting scheme to flush the nuclear and toxic wastes offsite through publicly-financed and owned infrastructures and onto selected publicly–owned grounds and water bodies for the next estimated 50 years. This controversial policy was enacted against extensive and unanimous public opposition from a wide range of Colorado’s citizenry (vi).

Since 2000, the Lowry contaminated groundwater has been flushed to points beyond the Superfund site’s boundaries, being co-mingled in sludge containing regional domestic and industrial sewage waste. The toxic goo is being trucked by the tons to other parts of the State of Colorado for use as “fertilizer” for
land-application on thousands of acres of publicly and privately owned agricultural lands in eastern Colorado.

The remaining liquid residual is being diverted after only partial treatment to selected public parks and lakes from Lowry PRP Metro Wastewater by Lowry PRP Denver Water, and all without conducting Environmental Impact Studies of any sort. Metro Wastewater’s facility was not designed to treat persistent toxic or nuclear wastes, and neither is Denver Water’s non-potable water facility. Neither entity has the comprehensive treatment systems needed to adequately treat mixed nuclear and toxic wastes. Plant employees at these public facilities are not even subject to OSHA oversight, given the present exemption of municipal/state/federal agency employees, so lack any type of occupational health oversight or protection at facilities that are not DOE or NRC-licensed.

A.) Generator Defendant Metro Wastewater, under confidential inducements/demands from other Lowry PRPs, issued Permit I-119 in 2000. It was by way of this permit that the discharge and daily dispersal through the public’s sewage infrastructure of numerous persistent carcinogenic toxic substances and radioactive compounds began. Soon after its start, the highly explosive contents blew manhole covers near the site into the air, and high levels of radiation were documented in samples collected in the Lowry discharge at Metro Wastewater, prompting a period of shutdown. Nonetheless, these highly radioactive and explosive constituents - in violation of the already high permitted levels - were simply flushed to points beyond for distribution.

B.) More recently, the flush has been done via subsequent revisions in the MWRD permit, which in many cases have upped the allowable discharge levels of numerous persistent and poisonous wastes, including a number of known or suspected carcinogens. None of these revisions have been subject to public notification or review, including the subsequent issuance of Lowry Superfund Site Industrial Wastewater Discharge Permit No. 2360-3-1A, which among other pollutants, allows the discharge of isotopes of plutonium at levels double the state groundwater standard for the man-made nuclear bomb component, a potent carcinogen with a half-life of over 24,000 years, for re-distribution to numerous additional points throughout parts of the State of Colorado.

C.) The issuance of permits for discharge of Lowry’s dangerous contaminated water has widened the area of actual and potential future natural resource damages to the entire Denver and Aurora metropolitan area and points beyond in Colorado where these pollutants are being dispersed. Lowry pollutants now find their way to the dumping grounds where solid residuals from the secondary and tertiary filtration processes at Lowry PRP and Metro Wastewater’s sewage plant and Lowry PRP Denver Water’s non-potable water plant have been or continue to be taken. Such locales, include but not limited to, thousands of acres of agricultural lands in eastern Colorado, the Foothills plant in the Roxborough area of Douglas County owned by Lowry PRP Denver Water, and other disposal points.

D.) The remaining liquid wastes are dispersed via a constructed system of so-called “purple pipes” at great public expense by Denver Water ratepayers, and which since 2004 has been substituted as the liquid medium to fill lakes at Denver’s City Park and Washington Park. According to annual lake reports issued by the City of Denver, the water in these lakes no longer meets CDPHE standards for lake water quality for some parameters, which its environmental health personnel have attributed to the switch to the non-potable water from Metro Wastewater (vii) (a Lowry “generating defendant”). These parties in their proposed settlements have not further assessed the relative contribution of the Lowry Landfill contribution to this demise of natural resources for natural resource damages. Instead, the introduction of Lowry Landfill-laced sewage effluent makes an apparent ideal milieu for the increased incidence of avian botulism and other diseases to kill further ducks and other waterfowl and wildlife, and to the demise of the public’s enjoyment of our natural resources in these parks. These ongoing wildlife deaths have prompted numerous from the public since 2004. Recently, the City of Denver/Denver Water announced a plan to expand it use of this effluent on parks citywide, without an opportunity for public comment.

E.) There have been efforts to obfuscate and deny such damages by certain parties to the proposed agreements. Lowry PRP Metro Wastewater invested public money in seeking to squelch public knowledge of these facts while laying the groundwork for issuance of a permit to allow the flushing of plutonium, 1-4-dioxane and the rest of Lowry Landfill contaminants offsite in groundwater discharges. These facts were brought forth in Exhibits by the Complainant in Anderson v. Metro Wastewater, and which prompted a senior federal whistleblower judge to issue punitive damages against this agency - one of the top “Generator Defendants” in this proposed settlement - for its outrageous actions (viii).

F.) Well over a thousand ducks suffered death by drowning after alighting on Metro Wastewater and Denver Water’s non-potable water plant holding ponds in 2007. These ponds received daily levels of highly toxic chemicals and radioactive substances in the effluent from the Lowry Landfill discharge. Included in the mix are large volumes of potent and very stable oil cutting substances such as 1,4-dioxane which does not readily volatilize, especially in cold weather conditions, and is not neutralized by any process at the sewage plant, thereby subjecting the waterfowl to an environment that predictably strips the birds of their feathers’ natural protective oils that enables them to float. Metro Wastewater’s permit for Lowry allows release of 1,4-dioxane, as one example, at levels up to 3,950 ppb for every 15 gallons per minute discharged from the Superfund Site to Metro Wastewater. Such conditions of ducks’ death by drowning in a contaminated goo were observed and reported by wildlife rescue personnel.

G.) A $20,000 study of these ducks’ death promised in 2007 has not been released, to date, despite numerous requests from members of the public, and against the resistance of certain parties to these proposed agreements for the study’s public release (ix,x).

H.) Deaths of water fowl – principally ducks and cormorants - have become the norm each year in large numbers in some of the lakes now comprised of Lowry Landfill-laced, partially treated sewage-effluent waters. These lakes include Grasmere and Smith Lakes in Washington Park, and Ferril and Duck Lakes in City Park. Conditions created by use of this mix since 2004 are conducive to the proliferation of avian botulism, through a resulting environment devoid of plant-life with the presence of elevated copper metals and high nitrate levels which now characterize these liquid effluent waste water bodies. Once prime assets in the city’s parks and recreational system, once beautiful lakes the public once enjoyed have – without public consent – been turned into de facto tertiary treatment ponds within these two public parks, to date. The relative contribution of Lowry Landfill contaminants in an already risky sewage effluent medium for use as lake and irrigation water has not been assessed, as Lowry PRP City and County of Denver and Lowry PRP Denver Water do not test for the full range of contaminants in these “lakes,” despite requests from concerned members to do so.

III. In this context, the proposed settlements by the parties which include a plan to subsidize what will only be a limited number of domestic sewage line repairs for low-income homeowners is wholly inadequate, given these facts of record. Clearly, the most extensive natural resource damages from Lowry Landfill are being caused by the acts and non-actions of the proposed settling parties themselves, now allowing Lowry Landfill’s dangerous contents to be dispersed throughout additional parts of the state, and at public expense. Dying flora and fauna, thousands of dead birds, degradation of parks and water bodies in public parks and recreation areas and other suspected impacts to natural resources are apparent, but have not been properly assessed to date, given the conflicts of interest of the parties to these and prior deals related to Lowry Landfill.

A rightful settlement between these parties would be one which involves: 1) the immediate revocation of the discharge permit from Lowry Landfill to Metro Wastewater and offsite locales;
2) funding of independent party to conduct comprehensive assessment of natural resource damages to points which have received these contaminants – many of which are persistent and cannot be treated by processes in place at either the onsite treatment plant, Metro Wastewater or Denver Water’s non-potable water plant; and 3) a credible assessment of the actual and potential future natural resource damages attributable to dispersed Lowry Landfill contaminants for remedial action. Such an assessment must be made by an independent party with meaningful pubic involvement and oversight, given the history of denials and deception of the public by parties to this and prior agreements related to the toxic and radioactive Lowry Landfill Superfund site, and which have compromised the public trust.
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(i) EPA Fact Sheet on Mixed Waste

(ii) Letter to EPA from John R. Faught, Attorney for Lowry Coalition (representing a dozen top Lowry Landfill PRPs and including “Generator Defendants” in this action, including Coors, Metro Wastewater, Shattuck, Gates, et.al.) to EPA, December 1992.

(iii) “Lowry Settlement Leaves Taxpayers in the Dark,” Denver Post Editorial, April 5, 1994

(iv) Confidential Lowry Landfill settlement agreements October 31, 1994, made public in newspaper article, “A Matter of Trust,” in the three-part series, “Dirty Secrets” by Pulitzer Prize winning investigative reporter Eileen Welsome, Westword, April 19, 2001, and subsequently presented and accepted by U.S. Department of Labor Senior Administrative Law Judge David W. DiNardi as a Complainant’s Exhibit in Anderson v. Metro Wastewater.

(v) Colorado Department of Health, February 18, 1977, letter from James L. Montgomery, CDH Occupational and Radiological Health Division, to William E. Smith, Department of Public Works, City and County of Denver, regarding recommendations for continuing nuclear waste disposal at Lowry Landfill

(vi) Confidential Lowry Landfill settlement agreements October 31, 1994, previously cited.

(vii) Lake Water Quality study, 2005, Environmental Health Division, City and County of Denver.

(viii) Ruling of U.S. Department of Labor Judge David W. DiNardi in Anderson v. Metro Wastewater and cited Complainants Exhibits, September 18, 2001.

(ix) “Citizenry Questions Waterfowl Fatalities,” Paul Kashmann, Washington Park Profile, July 2010.

(x) E-Mail Communications between Gerald Trumbule, Editor of DenverDirectTV, and the U.S. Fish and Wildlife Service, 2009-10, as reported at www.denverdirect.tv.


Documents referenced in these objections will be posted to the Rocky Mountain Peace and Justice’s CoWatch project website, online at www.rmpjc.org/co_watch.