The net effect of a recent federal appeals court decision concerning a cache of chemical weapons stored near Pueblo is that Colorado will lose a valuable lever to force the Pentagon to make good on promises to destroy deteriorating munitions.
That’s unfortunate and frustrating, as Coloradans have watched the feds repeatedly extend deadlines, the first of which was in 1994, to destroy the weapons.
It also underscores the need for Congress to hold firm on the current deadline of 2017 and ensure the munitions — some of which are unstable and leaking — are safely disposed of.
The Pueblo Chemical Depot, opened in 1942, is among several sites used by the U.S. Army to store chemical and conventional munitions.
More than 2,600 tons of mustard agent are contained in mortar and artillery projectiles that have been housed in Pueblo since the 1950s.
Mustard agent is a known carcinogen, and the shells containing the substance are breaking down. Periodically, poison is burped into the atmosphere.
Colorado Department of Public Health and Environment (CDPHE) officials have said those who work at the depot or live nearby could suffer “irreparable harm” from exposure to the chemical.
The CDPHE declared the aging chemical weapons, even those not leaking, “hazardous waste” and claimed regulatory authority over them via the Resource Conservation and Recovery Act passed by Congress in 1976. Under the law, states can enforce their own hazardous waste programs so long as they are equivalent to the federal program.
Colorado tried to use that power to push the Pentagon to get rid of the stuff. In 2009, the state health department again ratcheted up the pressure with a federal court action asking for better monitoring of weapons emissions. As we said then, we were glad to see the state pressuring the Army.
In the ruling this week, the appeals court upheld a lower-court ruling and decided federal law dealing directly with the chemical weapons situation pre-empts state efforts to regulate the material.
Though we don’t take issue with legal reasoning in the ruling issued by the 10th U.S. Court of Appeals in Denver, we are dismayed that it could effectively ease pressure on the Department of Defense.
It was disconcerting to read in the decision that the Army previously had filed paperwork with the state saying the feds had pushed back the weapons destruction date to 2021.
As the appeals court noted, that is well beyond the 2017 deadline Congress set for destroying these dangerously unstable munitions.
Ultimately, the appeals court decision means Coloradans need federal lawmakers to stay on top of the issue and ensure the government meets its deadline and finally rids the state of this hazard.