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For the first time, lawyers can look beyond the complex Superfund environmental cleanup law to a simpler law designed to extract reimbursement from the military for cleaning up contamination on former military bases. The U.S. Court of Federal Claims, in the first ruling of its kind, has held that the National Defense Authorization Act of 1993 can be used to force the Air Force to pay as much as $9 million to remove asbestos-contaminated soil in a neighborhood of 190 lots built on the old Lowry Air Force Base near Aurora, Colo. The ruling gives broad indemnity to municipalities and developers for the cleanup costs on old military bases converted to civilian use. In the past, litigation has depended on the more complex and demanding Superfund law – the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) – to seek recovery. “This case will likely have an impact on developments at bases closed around the country for years to come,” said Michelle Kales, who represented developers and landowners in a projected $9 million cleanup project. It is particularly important because the issue here was asbestos, and asbestos contamination is likely to be significant in many future base closings, according to Kales of Denver’s Brownstein Hyatt Farber Schreck. “I suspect that is why the government dug in its heels,” she said. The Colorado case now goes back for a trial solely on the amount of liability the Air Force must shoulder for the cleanup. Richmond American Homes of Colorado, Inc. v. U.S., No. 05-280C (Fed. Cl.). Quoting McCain The government had argued that the indemnification of private owners was not intended to be so sweeping under Section 330 of the 1993 law, but the court pointed out that Senator John McCain, R-Ariz., stated during debate on the measure that, “We must do what is right-ensure, without condition, that the federal government will defend and indemnify states and employers who are sued over pollution caused by federal activities.” The U.S. Department of Justice is reviewing the court’s decision and has made no determination about whether it will appeal, according to spokesman Charles Miller. In the Colorado case, although there was an agreement that local entities would take responsibility for cleanup of buildings and facilities containing asbestos, the agreement did not address or even contemplate asbestos in the soil, according to the court opinion. The Air Force had torn down a hospital on the base grounds and plowed under remnants in preparation for transfer of the base to private use in exchange for $32 million from Lowry Redevelopment Authority. It was during the building demolition the asbestos got into the soil. The Air Force argued that the property developers and landowners were partly to blame for the contamination by disturbing the asbestos through grading, basement construction and landscaping. The court rejected the shared causation. The purpose of Section 330 and indemnification was to “encourage homeowners to buy military property and develop it knowing that the burden and cost of the cleanup would be borne by the military,” said Kales. At the outset of the dispute, she could find no instance of a claim being brought under Section 330-all suits focused on CERCLA and environmental law. Now more people may look to Section 330 for help, she said.

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