Judge says military should pay cost of cleaning up closed bases
Associated Press Writer
Glenwood Springs, CO Colorado
DENVER (AP) ” The military must pay to clean up environmental contamination it caused at former installations that are closed and then sold for private development, a federal judge has ruled.
The ruling came in a lawsuit filed over the former Lowry Air Force Base in Denver but sets a precedent for similar cases at other closed bases, said attorney Michelle Kales.
Kales represented five housing developers who sued the Air Force over asbestos cleanup at Lowry. She said this was the first time a court had ruled on a 1993 law intended to protect people and companies who buy former military property for redevelopment.
The Lowry developers said they paid about $9 million to clean up asbestos after the state detected the cancer-causing material in soil there.
U.S. Court of Federal Claims Judge Lawrence Baskir, in a Feb. 22 ruling, agreed with the homebuilders’ attorneys that the cleanup was covered under the 1993 law. He did not determine how much the Air Force will have to pay the developers for cleanup costs.
Unless the Air Force appeals, that amount will be determined at a separate trial possibly this summer, Kales said.
An Air Force spokeswoman did not immediately return a call.
Kales said at least two other similar cases are pending in the Washington-based court, which handles all such claims against the government.
Baskir, the Army’s former principal deputy general counsel, wrote that Congress clearly intended for a section of the 1993 law to encourage redevelopment of former military property and ease the economic effects of base closures by protecting private land buyers from the costs of cleaning up contamination caused by the military.
He disagreed with the Air Force’s argument that it would be liable for damages under the law only if a third party ” in this case, a homeowner ” sued for personal injury or property damage.
Washington attorney Barry Steinberg, a former chief of the Army’s Environmental Law Division, said the key issue in the case was the judge’s determination that a cleanup order from a regulator such as the Colorado health department constitutes a claim under federal laws on military base closures.
“Congress has said the contamination that’s out there is the byproduct of national defense,” Steinberg said. “Who should pay for environmental remediation requirements that arise from defending the nation? Those are obligations best borne by the nation as a whole and not by some community or private developer or private individual. Congress has enacted statutes that support that concept.”
He said if the ruling is upheld, it could make the insurance industry more willing to cover buildings on former military bases because they could turn to the government for payment if property owners make claims based on environmental contamination caused by the military.
The Air Force operated Lowry from 1937 until the Base Realignment and Closure Commission selected it for closure in 1991. Much of the site was bought by the quasi-governmental Lowry Redevelopment Authority, which sold it for residential development after demolishing old buildings and preparing it for development.
Kales said housing construction was halted in 2003 after the state health department detected asbestos in soil in the Northwest Neighborhood, which used to contain barracks and a large medical facility.
Her clients ” Richmond American Homes of Colorado Inc., Metropolitan Development IV LLC, Metropolitan Builders Inc., Standard Pacific of Colorado Inc. and Touchstone Homes LLC ” hauled away contaminated soil and conducted other cleanup work to bring the site to the state’s safety standards before houses could be built.
“(The Air Force) didn’t deny that the original source of asbestos was the demolition of the asbestos-contaminated buildings. They tried to say that it was possible that our clients and their construction activities and the (Lowry Redevelopment Authority’s) preparation of the site may have disturbed asbestos left in the soil by the Air Force,” Kales said. “There simply was no evidence that asbestos came from anywhere but the Air Force.”
The Air Force refused to pay for cleanup, arguing the state’s safety standards were too stringent. The developers sued the Air Force in 2005 to try to recover their costs.
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