The Poison Underground
Lubbock -- Out here on the caprock, the wind can be fierce. Pedestrians leaning against a gale occasionally fall flat as they pass leeward of a stray building. But West Texans are a determined breed, and aren't inclined to let a little weather keep them from their business.Vast stretches of uninterrupted territory host stately rows of cotton plants. Soiled wisps of the white stuff drift along the road. West of town, between Fourth Street and Evans Road, acres of dark weed-dotted land stretch a flat quarter-mile before halting at the fence that marks the boundary of Reese Air Force Base. In the field, exuberant weeds sprawl laterally, oblivious to the bright yellow sign posted on a nearby water well: "TOXIC." If they could read the notices warning of encroaching pollution, even the Texas weeds might consider pulling up roots.When Rusty Cagle and his partner Norman Allen purchased the land abutting Reese Air Force Base July of 1990, no yellow signs warned that they were buying a small chunk of a very big Pentagon problem. Cagle, his wife Sheila, and Norman and Kelly Allen invested their savings and their labor in forty acres of land with a greenhouse, located beside Reese-some nine miles from the heart of Lubbock. Two years after opening a large plant nursery and building their homes on the property, they discovered their water was so severely polluted by toxins migrating from Reese that the families could not use it. Nor could they continue running their moisture-cooled greenhouse without endangering the health of their employees.Over the next year, repeated attempts by the partners to recover their losses from the Air Force met with delays and empty assurances. With time running out on their claim, they had little choice but to sue the federal government. They provided considerable evidence that Reese's faulty pollution monitoring system had failed to detect contaminants migrating off base. Yet despite that evidence, and despite Reese's history of environmental violations, the families still lost their suit-and virtually everything they'd worked to build. In addition to all they had lost, Cagle says he and Allen now owe the U.S. $35,000 for the government's legal expenses.In a region where hostile but natural elements once posed the greatest peril to human survival, man-made wastes of war now threaten to poison vegetation and drive families from their homesteads. And the problem reaches far beyond the Texas plains. The Pentagon admits that military base neighbors, from Cape Cod to San Diego, must now drink bottled water due to various kinds of contamination migrating from the bases (see "Contamination Nation," page 10). Yet judging from the Cagle and Allen case, the Pentagon, faced with a potential flood of property damage and health claims, is not making restitution easy for wronged neighbors. The Cagle and Allen story is a disturbing example of how the legal system has failed to protect ordinary citizens, when government funds are at stake. And these two Lubbock families represent early casualties in what could become a major toxic war."I'm still patriotic," said 36-year-old Cagle in an interview last fall, in his distinctive West Texas drawl. "I feel there are good people in our government-good decent people. It's just that I haven't met any of them." He sat in a porch chair at his brother's steak house outside Lubbock, and with a sweeping gesture indicated the spread of land he once owned. He says his parents taught him the requisite values of a West Texas existence: patriotism, respect for authority, hard work. None of this prepared him for his dispiriting battle with the protectors of his country, or for losing his faith in the government he'd always respected. Cagle, for a short time a successful small business owner himself, now works for an hourly wage at his brother's restaurant, Cagle's Steaks.From the porch, Cagle has a clear view of the land he and Allen once owned. Weeds swarm around a large and now abandoned greenhouse complex. Cagle leans back in his chair as though reconciling himself to the laborious task of recounting the events that poisoned his land and led him, by slow degrees, to this porch."All my life I wanted to be an entrepreneur and own my own business," he says. After working for several years as a construction engineer, in 1988 Cagle had saved enough money to launch his own business, and he and his longtime friend, accountant Norman Allen, opened a small nursery in Lubbock. The business immediately did well, and in 1990, the partners purchased the property abutting Reese Air Force Base, complete with a 100,000-square-foot greenhouse-ideal for expansion. The previous landowner, the Furr's Supermarket chain, was liquidating its regional assets, and gave Cagle and Allen a good price and a year's contract to supply the chain with potted plants. Over the next two years, the partners sold their smaller greenhouse in town, Allen built a home for his family on the new property, and nearby, Cagle also began construction on a home for himself and his wife, Sheila.The new business, Western Greenhouses, was thriving when the first hint of trouble came. One day late in 1992, Reese officials dropped by to ask Cagle not to use one of the greenhouse wells, saying they might draw pollution from the base onto the property. According to Cagle, that was the first he'd heard of any pollution. "They swore up and down at the time," said Cagle, "the pollution was not on the property yet."But in February of 1993, Reese announced publicly that significant amounts of trichloroethylene, also known as TCE (a chlorinated solvent used in dry-cleaning and aircraft maintenance) and other chemicals had moved off the base, via the Ogallala aquifer. By the time of the announcement, the toxins had formed a lateral underground "plume" nearly a mile wide and two and a half miles long-much of it under Cagle and Allen's property.Four months later, in a demand for action, the Environmental Protection Agency issued an unprecedented citation against Reese for endangering people who were using local well water. The citation ("7003 order of imminent and substantial endangerment to human health") ordered Reese and the Air Force to clean up the groundwater, and in the meantime required them to supply people living over the plume with filters or a clean water source.The Reese environmental team complied by distributing filters and bottled water and studying clean-up methods. Cagle and Allen were unwilling to trust filters for their drinking water. Instead they ran plumbing directly from the base water supply (which Reese pipes in from Lubbock) to their homes. But the greenhouse operation could not use chlorinated city water. When Reese officials proposed filtering the greenhouse water, Cagle and Allen initially resisted, fearing damage to the pumps and unaware that breathing the TCE-laden vapor could be more harmful to people than drinking the water. But when the EPA threatened to fine the business $5,000 per day, they agreed to use carbon filters. Unfortunately, the abundant TCE and other pollutants quickly saturated the greenhouse water filters and ruined several expensive pumps. Left with only a trickle of water, plants died, and business subsequently fell off.The next blow came, Cagle said, when the EPA informed him that despite the filters, the moisture-cooled greenhouse air still contained TCE levels dangerous to people breathing it. In response, Cagle's insurance company pulled the liability policy for the business. Faced with the choice of his employees' health or their jobs, Cagle and Allen reluctantly let the workers go and closed their business. At the same time, financial closure on Cagle's newly built home came to anabrupt halt. "When all this occurred we were going through the closing-financing had already been approved," said Cagle. "A week before we were to close on the permanent financing loan, all this hit the papers-about the pollution." According to Cagle, the lending agency also learned of the pollution and backed out, leaving the deal in limbo.With their business in ruins, Cagle and Allen filed the required administrative claim for the value of the property and business with Reese and the Air Force, and began negotiating. Military representatives amicably discussed relocating the families and the business-even indicating they had a tract in mind with a greenhouse-pending Pentagon approval. Cagle and Allen were relieved. "We told them we just wanted to end up with what we originally had," said Cagle. "Our information from the Air Force was that they were trying to get someone at the Pentagon to approve the settlement, and they said it was just days away-you know, give us another week, and another week. Well, that just kept going on for months."Under federal law, Cagle and Allen had a year from the date of filing their claim to negotiate a settlement-or they would lose any claim to damages. A year passed, no word came from the Pentagon, and no settlement was reached. So, the day before the claim's statute of limitations expired, the two men and their families filed suit, under the prescribed Federal Tort Claims Act (FTCA). Under FTCA, however, the burden of proof rested with the plaintiffs to prove that Pentagon negligence had caused a problem.Initially, Cagle says, he was "totally against the lawsuit.ÉI wanted to try to work the situation out. But the way the Air Force dealt with us during that one-year period, I could see that there was no other way but to try to find justice in the federal court system. We found out, then, that you are not entitled to a jury trial when you sue the United States of America."Their day in court did not bring relief. The trial held in Lubbock in February, 1995, lasted six days, and the judge ruled against them. "There's no way on earth we should have lost that case," said a still-stunned Cagle in Lubbock, after the trial. "The decision was made before we even walked into the courtroom." Cagle and Allen believe that local efforts to save Reese from closure influenced the outcome of their hearing. "It was a political statement," said Allen, sharing Cagle's assessment that the decision was pre-determined. "The court opinion was twenty-seven pages long, written in six days' time-in response to 1,059 pounds of documents." (The decision was released February 24, 1995-just days before the list of bases under consideration for closing was released by the Federal Base Realignment Commission, appointed by Clinton administration. Reese was on the list.)Austin lawyer Mark T. Mitchell, one of the plaintiff's attorneys, sees his clients' defeat in court as part of a much larger picture. "The DoD knows [the case] would create a precedent for countless claims across the country," said Mitchell. "Unless they can buy the individual out for very little money, the government is forestalling claims by forcing people to sue under the FTCA, which operates to the advantage of the government." He added that most individuals can't afford to hire the experts and attorneys to win the technically complex cases. "If our case is representative of how the government is handling these claims, then they are not negotiating in good faith on these cases," Mitchell said.The plaintiffs had sued for $4.5 million, which accountedfor, among other assets, the greenhouse and related improvements, the two homes, and loss of potential business profits ($72,000 net per month before the pollution was discovered). But the defense, represented by the Federal Tort Claims division of the Justice department, valued the property and business at only $25,000. Moreover, the government denied any military negligence in creating, detecting, or notifying the public of the pollution.In his decision in Western Greenhouses vs. the U.S. Government, Federal Judge Sam R. Cummings described plaintiffs Cagle and Allen as having been "negligent" for not properly pre-inspecting the land. But Cagle and Allen maintain that prior to the purchase, they followed the prescribed rules for Small Business Administration inspections. Moreover, Cagle points out that Reese environmental experts publicly denied the off-site pollution themselves until 1993. Trial documents confirm that Reese did not notify the public of the danger until three months after discovering the extent of the off-site plume.In the early '80s, the Department of Defense had established a nationwide program (Installation Restoration Program or IRP), to detect and monitor on- and off-site military base pollution. Each base was required to install monitoring devices to find migrating pollutants. Documents obtained by Cagle's attorney show that Reese monitors detected trace amounts of off-site TCE in 1988, adjacent to the property. The public was notified, but told that there was no danger since only trace amounts had been found.But that was only the tip of the iceberg. Mark Weegar, of the Texas Natural Resources Conservation Commission, said the Texas Water Commission (now incorporated within the TNRCC) warned Reese that their monitoring methods were inadequate, specifically for the detection of TCE. (TCE is heavier than water, and so most of the TCE effectively skirted a monitoring system designed to find lighter, floating fuels.) All the while the plume was migrating, undetected, beyond the compound.In ruling against the plaintiffs, the judge applied the "discretionary function exception" allowed under federal law (see "The Sovereign is Immune," page 12), stating that the pollution resulted from activities supporting national defense, and therefore the Air Force could not be held negligent for the contamination. Neither could the plaintiffs challenge decisions regarding the investigation and remediation of environmental contamination at Reese, or the delayed public notification.Since the military was by definition not culpable, the judge said, responsibility for the business losses rested with the business partners, because they had not obtained a new insurance policy. Cagle says the court refused to recognize the impossibility of that requirement. "We called everywhere. Even Lloyds of London wouldn't insure us," he said. And he added that while an insurance policy might have protected the business from liability, it would not have protected his workers from breathing TCE.After losing his lawsuit Rusty Cagle took a job in his brother's restaurant, cooking and chopping wood. In lieu of ownership, he made an agreement with his bank on his home."The bank, they don't want it, so they won't foreclose on the property," said Cagle. "I've made an agreement with them that I'll just pay them rent, I guess foreverÉ." Of the original forty acres, all but the eight that the houses stand on were lost. Instead of foreclosing, the bank shifted the property to a limited liability company.Norman Allen abandoned his home when his seven-year-old daughter developed a type of colon tumor not commonly found in young children. Concerned about his child's health problems and the prospect of living where he would daily witness the deterioration of his former business, Allen and his family moved away permanently. "It was the pain of being there, watching the greenhouse fall apart-and we built our house with the intention of being there for the rest of our lives," said Allen.But the ordeal of Cagle and Allen was not complete. Several weeks after the trial, the two men received a $35,000 bill from the federal government, for the legal expenses of the defense. Cagle says they cannot pay. "I guess you could say, you can't get blood out of a turnip. I'm dead broke, so there's no way I can pay it," said Cagle. Allen was even more blunt. "They can kiss my ass," he said. "We were fined for taking up their six precious days in court."In the aftermath its court victory, the Air Force recently began cleanup efforts. According to Mark Weegar of the TNRCC, who is project manager for the Reese cleanup, "Under the base closure, the agency is confident that environmental restoration is moving ahead on schedule." He says that all parties are being cooperative, and estimates complete cleanup will take fifteen to twenty years.But as recently as last fall, Reese Public Affairs Chief Bill Tynan insisted that people were never directly exposed to the TCE. "No one," he said, "has ever drunk TCE in their water around Reese." Yet the June 1993 EPA "7003 Order"-the first ever issued against a military installation-had cited Reese explicitly "because of danger to people drinking off-site well water contaminated by Reese Air Force Base." In October 1994, the TNRCC levied a $81,439 fine against Reese, for continued violation of environmental regulations. For Cagle, Tynan's intransigence is "Reese business as usual." "They lied to us every chance they had," he said, "from the privates who came out to change the filters to the commanders. I was brought up believing you could trust these people. They're the last people on earth you can trust."The closing of the base, scheduled for this September, leaves Cagle and his family with another uncertainty. Will they still have city water piped through the base after it closes? Bill Tynan responds that under EPA orders, Reese will continue to provide clean water to people using wells near the base. When informed of Tynan's assurances, Cagle only laughs. Without clean water, he and his family would have to abandon their home. Since the trial, Allen says he has faced financial and personal problems, accompanied by an understandable loss of faith in his government. "I'll never vote again," Allen says flatly. "Now, I just want an opportunity to get over this." Later, he added defiantly, "Not even the almighty U.S. government will defeat us for good."Late last year, Rusty Cagle sat in his porch chair, looking over what's left of his land and his dreams, and chewing over events of the past few years. From his brother's restaurant, he has a view of the now shabby greenhouse complex. Weeds have invaded the formerly mown grounds, and a danger sign attached to the wall warns of the subsurface menace. He did all the right things, he believes, followed the rules, as best as he knew them, and in good faith. But he lost just the same. Cagle sums up his dealings with the federal government with a frank and permanent sense of injustice. "You know, it's just not right when a person works as hard and as many years as I did to build a business, and then the people that are supposed to protect you-take it away from you."Yet Cagle still speaks of his family's future with optimism. He and his wife, and their three-year-old daughter seem to have escaped in good health, thus far. "Emotionally, we've rebounded," he says firmly. But Cagle's entrepreneurial spirit has not revived. "I've lost my motivation to do what I've done before. I'll never again be in that position." He stares out at the black dirt field, flecked with specks of cotton. After a long pause, he concludes, "I'll never try that hard again."[Carol Stall is a freelance writer based in Austin, and a radio producer for WINGS/Women's International News Gathering Service (Austin). She gratefully acknowledges support for this article from the Foundation for a Compassionate Society and the Dougherty Foundation. Additional support for Observer reporting on the environment was provided by the Wray Foundation.][Sidebar 1] Contamination NationRusty Cagle and Norman Allen are not alone in their fight over encroaching Department of Defense pollution. Other neighbors of military bases are finding themselves in the path of military-generated toxins. Pentagon officials have officially identified over 22,000 toxic sites, on some 2,000 bases nationwide, yet they say they don't know how many people are exposed to off-base pollution. Nor have they compiled statistics on the number of off-base contaminated sites. Last spring, Defense Deputy Under Secretary of Environmental Security Sherri Goodman testified before a military procurement subcommittee of House National Security Committee, and spoke in support of the proposed environmental component of the DoD budget. "We now have hundreds of people in communities from Cape Cod to California," testified Goodman, "that have to get bottled water from the Department of Defense, because we've contaminated their water supply....If we aren't able to continue cleanup, we're going to have hundreds more people who have to get bottled water, because we've contaminated their water supply."Over the past four decades, aircraft maintenance operations have contributed heavily to the DoD toxic stew. Chlorinated solvents such as TCE, paint strippers, degreasers, heavy metals, fuels (from leaking underground jet fuel storage tanks and pipelines), as well as weapons materials such as nerve gas, depleted uranium, radioactive substances and Agent Orange, have not gone away, but are now reappearing in area groundwater and soils. In some cases, contaminants have migrated miles beyond base fences. Adding to Defense Department woes, thousands of acres are littered with unexploded ordnance. The U.S. government is the nation's largest industry and also its largest polluter, now responsible officially for some 61,155 contaminated sites nationally, at a potential cleanup cost of $390 billion. DoD's 1,705 active and closing facilities contain some 22,000 hazardous waste sites, and there are 8,004 more at Formerly Used Defense Sites, known as FUDS. Of the current $251.9 billion Defense Budget, $4.7 billion funds environmental programs, including research and development and pollution prevention, all accounting for slightly less than 2 percent of the defense budget. Despite Goodman's testimony, DoD received 8 percent less than the requested amount. Last fiscal year, $300 million for environmental remediation was removed from the 1996 budget because, according to Congress, little progress had been made on the cleanups. To date, the DoD reports spending nearly $12.6 billion on hazardous waste studies and cleanups, yet the job may take as long as seventy-five years to complete. [Sidebar 2]The Sovereign Is ImmuneIn the past, burying and dumping hazardous waste was an accepted mode of disposal, particularly for the Armed Services in wartime. But even in recent peacetime years, as environmental awareness grew, DoD and other federal agencies received wide latitude on hazardous waste enforcement. In 1976, President Jimmy Carter issued an executive order directing all federal agencies to comply with environmental laws, but a tenacious doctrine of sovereign immunity-that the government can not be held liable for damages caused by its official actions-hindered real enforcement. Ten years later, Ronald Reagan issued yet another executive order, reiterating the federal cleanup mandate, but during the same years the Justice Department ruled that one branch of the federal government could not sue another, which further stymied the Environmental Protection Agency's enforcement efforts.The Resource Conservation Recovery Act (RCRA) in 1984, and amendments to the Superfund law (CERCLA) in 1986, brought the DoD and the Department of Energy more specifically under those laws. In 1989, responding to the unprecedented conviction of three civilian DoD employees for illegal hazardous waste disposal, Secretary of Defense Dick Cheney called for enhanced DoD environmental accountability. But not until the passage of the 1992 Federal Facilities Compliance Act did Congress clarify federal, state and local environmental jurisdiction over DoD.The FFCA aimed to place DoD on the same regulatory footing as industry, but legally the federal government still holds a trump card, known as the discretionary function exception or DFE. The DFE, added by amendment to the Federal Tort Claims Act (FTCA) in 1948, persists as one of the last surviving remnants of sovereign immunity. The discretionary function exception limits accountability for acts performed under federal policy, by a federal agency, or an employee of the government.