Defense Environment Alert

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

Vol. 15, No. 15

July 24 , 2007

COURT RULING MAY AFFECT SCOPE OF GLOBAL CHEMICAL DEMIL RULES

A U.S. district court is weighing whether the Army is violating federal law by shipping wastewater from neutralized nerve agent across several states for final destruction by a Texas incinerator, with one environmentalist saying the upcoming ruling could have significant international implications on the definition of a chemical weapon and what meets legal destruction requirements.

The U.S. District Court for the Southern District of Indiana heard arguments from environmentalists and the Army at a hearing the week of July 16. over litigation charging the shipping and disposal practices of the Army and its contractor violate the Resource Conservation & Recovery Act (RCRA), environmental justice requirements under the National Environmental Policy Act, Indiana waste laws and federal law prohibiting the interstate transport of chemical agents. Environmentalists and citizen activists in The Sierra Club. et at v. Robert M. Gates, Secretary of Defense, et al. are seeking a preliminary injunction of the Army's shipments of VX nerve agent wastewater from its Newport, IN facility to Port Arthur. TX, to be incinerated by Veolia Environmental Services. The Army has voluntarily stopped the shipments pending the outcome of the case.

The plaintiffs in the case are pointing to testimony given last week by two senior Army officials who conceded that the hydrolysate - the wastewater that results after the VX agent is neutralized at Newport - is not considered "destroyed" under the definition of an international treaty known as the Chemical Weapons Convention (CWC), which governs when chemical weapons are deemed destroyed.

The Chemical Weapons Working Group (CWWG), a plaintiff in the case, points to a 1994 defense authorization act provision that explicitly prohibits the interstate shipment of chemical weapons. "Therefore, the Army's admission that the VX agent is not destroyed until it is unloaded in Texas means that the shipment of VX hydrolysate across eight states is illegal," according to a July 17 press statement by CWWG Director Craig Williams.

But a spokesman for the Army's Chemical Materials Agency (CMA) says the Army disagrees with that interpretation. The Army has never said such hydrolysate is agent-free. but rather will not ship any waste above its detection limit of 20 parts per billion, he says.

A source with the environmental group Global Green USA says a ruling on the matter could have international implications because it could give a definition as to what is a chemical weapon. If the court rules the hydrolysate is not a chemical weapon, that would contradict the legal interpretation made by the body that oversees the CWC, the source says. The source notes it would have implications for CWC parties such as Russia and Libya in terms of their destruction processes, allowing destruction to a level that would still permit agent precursors in their final waste.

Such a ruling would present "a clear challenge to complete destruction processes and verification," the source says. On the other hand, a ruling that deems the hydrolysate a chemical agent would lead to further on-site destruction of the waste in Newport., this source predicts.

The decision could also have implications for other U.S. chemical weapons storage and demilitarization sites, a CWWG source says, noting that if the Army prevails, that may bolster a push to ship off-site from the military's Kentucky and Colorado facilities - something activists generally oppose. The CMA spokesman notes that the Newport waste falls under the Army's oversight, while DOD oversees chemical demilitarization plans for the Kentucky and Colorado sites. Nonetheless, the source believes a ruling in the Newport case could have implications for these sites. "I don't see how it couldn't. Nothing operates in a vacuum," the source says.

Sources say the judge in the case ended the hearing July 18, noting he would not rule from the bench but instead would issue a written opinion.