Wisconsin Challenges Army on Pesticide Liability

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The Wisconsin Department of Natural Resources (WDNR) is challenging an Army proposal to shift liability to the state for any disturbance or release of pesticide residues that may be found in soils at the Badger Army Ammunition Plant.

The Army included the language in a draft Finding of Suitability to Transfer (FOST) document for three land parcels slated for transfer to the WDNR for recreational activities.  The parcels consist of a total of 503.68 acres and no buildings.  The Army previously used this land for the manufacture of double-base propellant used in rocket motors.

The Army’s September draft FOST gives notice that pesticides were applied in accordance with federal law and includes a clause stipulating that if the state takes “any action with regard to the property, including demolition of structures or any disturbance or removal of soil that may expose, or cause a release of, a threatened release of, or an exposure to, any such pesticide, [the state] assumes all responsibility and liability therefor.”

In an Oct. 31 letter to the Army, the WDNR said that it wants the pesticide liability deferral language dropped, arguing that the Army is responsible for such contamination. “This is not acceptable to WDNR and the Department requests this section be removed,” the state said.

“[W]e expect the Army to fulfill its responsibility for defining the degree and extent of the contamination and promptly completing any remedial actions deemed necessary to meet applicable rules in the event pesticide contamination requiring a response action is discovered,” WDNR said.

The draft language shifting responsibility from the Army to land recipients coincides with a new federal policy which could require cleanup of residual pesticides found in soil.

The U.S. Environmental Protection Agency (EPA) recently determined that the Army is required to remediate residual pesticides left in soil if they are no longer serving their intended uses.  The Army and EPA are currently at odds over this policy which requires that residual pesticides can be regulated as hazardous waste and trigger cleanup requirements.

EPA determined that pesticide residues that are considered “discarded” are a solid waste that is subject to environmental regulation.  The determination is dependent on site-specific factors such as plans to demolish buildings or future land use plans.  For example, at the Kansas Army Ammunition Plant, EPA found that residual termite treatments on buildings that were later demolished were subject to such regulation.

Citizens for Safe Water Around Badger (CSWAB) has asked state and federal regulators to help clarify the potential implications for the environment and future use at Badger.

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