Defense Environment Alert

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

Vol. 16, No. 16

August 5, 2008

DISPUTED COMPLIANCE ORDER AT PUEBLO RISKS SCHEDULE, ACTIVISTS SAY

The Defense Department's dispute of a Colorado hazardous waste compliance order mandating the destruction of chemical weapons at an Army facility in Pueblo, CO, by 2017, is alarming citizen activists who claim the legal wrangling between the state and DOD could be counterproductive and result in delays to the destruction schedule.

Both DOD and the Army are disputing a compliance order related to the storage of chemical weapons, filing an appeal of the order on July 15 to Colorado's administrative courts and requesting a hearing be held. No hearing has yet been scheduled. Relevant documents are available on InsideEPA.com. See page 2 for details.

Colorado's Department of Public Health & Environment issued the order in June, requiring a deadline of 2017 for the destruction of hundreds of permitted containers of chemical munitions waste and thousands of stockpiled chemical munitions that are slated to be neutralized on-site. The date is four years ahead of DOD's latest schedule for the destruction at the site, but it matches congressional mandates that were put into force less than a year ago.

Colorado decided to issue the order now because of frustration over continuing schedule delays for the destruction of the weapons, and it wanted to be ahead of a DOD report to Congress on the options for meeting a 2017 destruction deadline, a state source has said. The order indicates 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.

With the appeal notice, Colorado now has two options. It can either proceed through the administrative legal review or withdraw the order and file suit in federal court over the matter. A spokesman for the Colorado attorney general's office did not respond to requests for comment on the direction the state plans to take.

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

A spokeswoman for the ACWA program says in response to written questions that the Army and DOD are still determining their line of argument in the appeal. She says the appeal is not expected to alter the demilitarization schedule.

But a citizen activist fears delays could result, with the possibility of legal rulings that suspend the program at the site. This source believes the "underlying message" the state had via the compliance order "has been delivered and received" by the military. "I think it's risky for either party to engage in a legal struggle that could have a far more negative impact on the execution of the program than whether or not there is agreement reached on this
compliance order by the parties."

While Congress has recently established 2017 as a federal legal deadline for destroying the country's chemical weapons, Colorado's order would also make that deadline enforceable by the state. But the Colorado state source has said the sticking point between the state and military has not been over making 2017 an enforceable deadline but over making interim timelines leading up to that date 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 has said.

A much anticipated DOD report released to Congress June 30 indicated the Defense Department is still weighing options for meeting the 2017 deadline at its two ACWA sites, including whether to accelerate the program or to push the highly controversial move of transferring weapons at the two sites to other destruction facilities (Defense Environment Alert, July 8).

Chemical weapons storage issues also recently arose again at the second ACWA site, the Blue Grass Army Depotin Lexington, KY. Sens. Mitch McConnell (R) and Jim Bunning (R) and Rep. Ben Chandler (D), all representingKentucky, wrote a letter to the head of the Army's Chemical Materials Agency (CMA), Conrad Whyne, July 24,expressing concern over a recent chemical agent leak at Blue Grass something that has occurred in the past as
well. The lawmakers ask Whyne to adopt additional monitoring measures at the facility.

A spokesman for CMA, which oversees storage at the site, says at issue is a one-ton container of GB agent mixed with various decontamination solutions. Measures have already been taken to guard against such leaks and better monitor for them. "All of our monitoring systems are state of the art," he says. He says CMA plans to address the lawmakers' request. The ACWA program is also looking to eliminate the risks of the leaking container through its so-called Operation Swift Solution.