In fight over a toxic landfill, Round 1 goes to citizens

If a Superfund clean-up plan is measured in part by how well it allays public concern, the remedy for a toxic Denver-area landfill seems to be coming up a bit short.

Taking environmental compliance into their own hands, a group of Colorado citizens has successfully bucked - at least for now - a Superfund remedy that has been approved by none other than the US Environmental Protection Agency (EPA).

In resorting to the courts to get a fuller airing of their concerns, the citizen groups have taken the first step in a legal battle that some say may eventually end up before the US Supreme Court. At issue: whether state or federal law should prevail at Superfund sites.

The legal fight over the Lowry Landfill Superfund Site ignited last month, when citizens persuaded a state court to temporarily block the flow of contaminated groundwater from the site into Denver sewer pipes. They say Lowry's permit, which authorizes the discharge of radioactive waste into public sewers, is illegal.

The real test, though, comes at a hearing tomorrow in Denver District Court. There, opponents of the plan will argue that the Lowry permit issued by Denver's sewage-treatment agency - which allows for discharge of nuclear isotopes, including plutonium - not only poses safety hazards, but also sets a dangerous precedent.

"This would open the floodgates all over the country to allow radioactive-contaminated waste to be accepted at sewage-treatment plants," says Charlotte Hartman of the National Sludge Alliance, one of the groups that brought the lawsuit. "This is not a Colorado issue, it's a national issue. That's why we got involved."

Not an isolated case

The circumstances in the Denver case may be extraordinary, but concerns about radioactive waste in public sewers are cropping up around the country.

Tonawanda, N.Y., has spent more than $2.5 million to remove nuclear contamination from its public sewer system. And Santa Fe, N.M., put strict limits on discharge of radionuclides into its sewers - directed at a local "nuclear laundry" that washed contaminated uniforms from Los Alamos National Laboratories and Rocky Flats.

"The sewage-treatment plants that are on top of things are prohibiting discharge [of radionuclides]," says Caron Balkany, a lawyer for the plaintiffs. Because plutonium is not readily water-soluble, it collects in sewage pipes and concentrates in sludge, she says.

The challenge also spotlights a deepening national concern about the nature of waste that, after flowing into sewage plants, ultimately gets recycled as a sludge-based fertilizer termed "biosolids." That material is spread with increasing frequency on cropland, parks, and home gardens nationwide.

Under the Lowry cleanup plan, treated sludge will be used to fertilize wheat crops, grown on government-owned land, for human consumption.

The US EPA endorses the practice of transforming sludge into fertilizer. But at a House Science Committee hearing in March, US lawmakers heard allegations that federal sludge policies are not based on sound science.

At the hearing, Rep. Mark Udall (D) of Colorado also raised questions about the Lowry Landfill plan. "The response we get from the EPA is that it's not a problem," says his assistant, Doug Young. "Frankly, it's gotten to the point of 'who do you believe?' It's hard for us to judge."

The suit is brought against the City and County of Denver, City of Aurora, Colo., and the Metro Wastewater District. Public officials say it is groundless because there's no evidence of nuclear contamination at Lowry Landfill.

"Those limits for plutonium were included in the permit not because we ever thought there was plutonium at the site, but because people were so concerned that there might be plutonium at the site," says Shaun Sullivan, assistant city attorney for Denver, which owns the landfill.

In defense of the cleanup plan

Indeed, the EPA and the state have long maintained that radioactivity at the landfill is no higher than what normally exists in the environment.

A decade ago, groundwater tests at the landfill did report high readings for nuclear contaminants. But the tests were later shown to be unreliable, says Mr. Sullivan. In subsequent tests, "they haven't been able to duplicate the same results."

Opponents - including sewage-treatment plant workers, residents, farmers, and environmental groups - aren't swayed. Their lawsuit includes other documents indicating radioactivity at Lowry. And they point to accounts from a state patrolman who, beginning in the 1960s, claimed to have witnessed tanker trucks from the Rocky Flats nuclear-weapons plant dumping liquid waste around the landfill.

Officials say they've never been able to confirm those reports. But last week, the retired patrolman emerged, offering to testify at the hearing about what he saw more than 30 years ago.

Still, confirming the presence of plutonium at Lowry is not relevant to the injunction - nor is it incumbent on plaintiffs to do so, says Ms. Balkany. "The permit, on its face, violates state law," she says.

(c) Copyright 2000. The Christian Science Publishing Society