Defense Environment Alert

an exclusive biweekly report on defense policies for cleanup, compliance and pollution prevention

Vol. 16, No. 13

June 24, 2008

COLORADO ORDERS DOD TO MEET ENFORCEABLE 2017 CHEM DEMIL DEADLINE

Colorado waste regulators have ordered the Defense Department to meet a 2017 federal deadline for destroying massive amounts of chemical munitions waste and stockpiled chemicals -- four years ahead of a 2021 DOD deadline -- shortly before the military is scheduled to submit a study to Congress on its options and budgeting for meeting the accelerated deadline.

The Colorado regulators issued an order June 16 setting the 2017 deadline for DOD to destroy hundreds of permitted containers of chemical munitions waste and thousands of stockpiled chemical munitions that are scheduled for on-site neutralization at an Army site in Pueblo, CO. The state regulators say a DOD plan to complete destruction of the munitions by 2021 "is not expeditious" and therefore violates an earlier hazardous waste compliance order. Relevant documents are available on InsideEPA.com. See page 2 for details.

The state decided to take action now as the Defense Department is on the cusp of releasing an assessment to Congress on options for destroying the weapons by 2017, a date that is not only mandated in federal law but is now enforceable by the state of Colorado under the new order. In acting now, Colorado wanted to get out ahead of DOD's congressional report and make it clear the state believes 2017 is completely reasonable given past schedules and costs the military previously generated for meeting that deadline, one state source says. The state fears that the budget the military calculates for meeting a 2017 deadline will be "unnecessarily and needlessly high" so it can convince Congress that it will be "very, very expensive to comply with 2017."

But a spokeswoman for the DOD program that oversees the Pueblo disposal efforts says "we have been considerably more focused on determining whether meeting 2017 is technically achievable, and less on cost. Once the costs are determined, it will be up to Congress to decide what the nation can afford and how the costs will be balanced among many priorities."

Pueblo is one of the last chemical weapons stockpile sites at which DOD is scheduled to finish destroying its weapons, and falls under the Assembled Chemical Weapons Alternatives (ACWA) program, which is destroying the weapons through neutralization, rather than the traditional incineration method.

Joe Schieffelin, the manager of Colorado's waste program, told military officials in a cover letter accompanying the order that after talks broke down between state and DOD officials, the state officials concluded the order is necessary to ensure compliance with state and federal waste requirements. "This is particularly true given the important budget deliberations that may pertain to the Pueblo weapons destruction project, for federal fiscal year 2009 and beyond, that are currently underway in Congress," he said.

DOD said in a statement that it is planning to provide to Congress later this month an assessment of options for accelerating stockpile destruction by 2012, and no later than 2017. "Once Congress has reviewed that report, further direction from Congress on a path forward is anticipated," DOD says.

Defense Secretary Robert M. Gates earlier this year said the forthcoming report would "include an estimate of any additional resources that may be required to comply with this mandate."

An environmentalist alleges it seems clear that the military does not care when the destruction is complete. "What they care about is next year's budget."

According to the order, the Pueblo Chemical Depot has long been out of compliance with state hazardous waste regulations that limit the amount of time hazardous waste may be stored. The order requires DOD to file a chemical waste treatment plan within 60 days that lays out a project schedule for completing destruction of all the wastes by the end of 2017.

Attempts to negotiate a compromise enforceable agreement failed, according to the order. Colorado regulators had wanted DOD to commit to the 2017 deadline to resolve the disputed waste violations (Defense Environment Alert, Feb. 5, p3). The Colorado state source says the sticking point between the state and military was not over making 2017 an enforceable destruction deadline but over making interim timelines enforceable. By requiring the interim deadlines, the state did not want to allow the project to get so far off-course that officials would be unable to take interim measures, the source says. The unilateral order issued by the state will allow Colorado regulators to flag certain key tasks as enforceable interim milestones, the source says.

While Colorado has worked with DOD for a long time on the storage and destruction site, waste officials became concerned during the last couple of years when indications were the military was going to finish destructionof the Pueblo stockpile significantly after 2017, the state source says. "We just can't keep absorbing these big schedule delays," the source says, explaining that this is why Colorado decided to bring to bear its enforcement powers.

The state "bent over backwards" to try to work toward a solution with the military, the environmentalist source says. "There was really no excuse [for DOD to refuse the state's offer] except [DOD] didn't want to be bound by state law to meet a deadline that they must have some interest in wanting to change," the source says, referencing the roller coaster history of funding for the ACWA program. Over the ACWA program's history, DOD has requested a budget that drastically dipped and then rebounded somewhat, as its level of priority fluctuated. In 2006, then-Defense Secretary Donald Rumsfeld told Congress the United States would not meet the 2012 deadline set by the Chemical Weapons Convention, of which the United States is a party. Less than a year later, the Pentagon announced it would limit budgets for ACWA and stretch out the timeline, costing more in the long-run while bowing to other competing budgetary items.

The order is a final agency action and can be appealed by DOD in a court of law.