REESE AIR FORCE BASE

[Lenny Siegel <lsiegel@igc.org>]

REESE AIR FORCE BASE HORROR STORY

The April 25, 1997 carried a story, "The Poison Underground" (by Carol 
Stall) detailing how contamination from Reese Air Force Base (Lubbock, 
Texas) had essentially destroyed the lives of two small businessmen - 
the owners of Western Greenhouses - and their families. I have included 
excerpts below. The full story is available on the World Wide Web at 
<http://www.hyperweb.com/txobserver/cagle.htm>.

At least two themes of national importance emerge from this horror 
story. First, many communities - or at least their "civic leaders" - 
put up with military environmental problems because they fear base 
closure. Second, in the area of tort claims, at least, the military is 
sometimes still above the law.

Lenny Siegel

THE POISON UNDERGROUND

 "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 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....

 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. 

 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....

 In ruling against the plaintiffs, the judge applied the "discretionary 
function exception"
 allowed under federal law ..., stating that the pollution resulted 
from activities
 supporting national defense, and therefore the Air Force could not be held
 negligent for the contamination....