Defense Environment Alert

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

Vol. 16, No. 17

August 19, 2008

END LOOMS FOR ACTION AGAINST SHIPMENT OF CHEMICAL WEAPONS WASTE

Activists may soon effectively be forced to end landmark litigation that challenged the legality of the Army's shipments of neutralized chemical weapons waste from Indiana across state lines for final disposal in Texas -- potentially influencing the outcome of waste disposal efforts at two other Army sites where neutralized chemical weapons will require secondary disposal treatment as well.

Activists have attempted, but so far failed, to prove the Army has been violating international and federal law by shipping neutralized chemical weapons waste from a neutralization facility in Indiana for final treatment and disposal at a commercial facility in Texas. The activists have sought to stop the shipments, but are now facing the end stages of the Army's destruction of the Indiana-based chemical weapons even as litigation slowly grinds on.

Shipments of caustic wastewater, or hydrolysate, from a Newport, N, chemical weapons disposal plant to commercial incinerator in Port Arthur, TX, are vigorously opposed by a coalition of activists, which claims that the shipments are potentially illegal and also pose environmental justice issues for poor communities living near the Texas incinerator. The case, Sierra Club, et al. v. Robert Gates, Secretary of Defense, et al., is currently taking slow procedural steps toward a full trial in the U.S. District Court for the Southern District of Indiana.

A leading activist with the anti-incineration Chemical Weapons Working Group (CWWG) says that although the legal challenge will continue for the time-being, it is fast running out of time following the Army's announcement Aug. 11 that all VX nerve agent at Newport has now been neutralized.

Asked if the legal action is now over, the activist says: "as a technical matter, no. As a practical matter, probably." He adds that "this case is still tracking toward a full trial, but the issue will be moot by the time we get there." The final shipment of hydrolysate is expected within the next two months, according to the Army's Chemical Materials Agency (CMA) and the activist.

While the Newport case does not set a precedent, what has happened so far in the case could still serve as an example for other sites in Kentucky and Colorado that still have chemical weapons which might be shipped off-site for final destruction once neutralized, according to the activist. Those sites, however, have different stocks of chemical agent the Pueblo, CO, facility has only mustard agent, while the Lexington, KY, site has GB and VX nerve agents in addition to mustard. The Army's Aberdeen, MD, facility was the first one to send its neutralized chemical agent off-site for disposal, the activist source points out.

The source says that despite the dispute over waste disposal, he and other activists are pleased that CMA has successfully destroyed the Newport VX stock. CWWG sent a congratulatory message to CMA to that effect. "We are really glad they got done with the neutralization process," the source says. (Relevant documents are available on InsideEPA.com. See page 2 for details.)

In a statement issued Aug. 11, CMA Director Conrad Whyne says: "the lessons learned and shared at Newport will help the six remaining U.S. storage sites, as well as others around the world, safely and successfully destroy their stockpiles."

The plaintiffs in the Newport case allege that the Army violated the National Environmental Policy Act (NEPA) by failing to fully evaluate all possible alternatives for disposing of hydrolysate on-site. They also call into question the legality under international treaty law of shipping hydrolysate off-site, claiming that under the Chemical Weapons Convention (CWC), which governs chemical weapons disposal, VX agent is not considered fully destroyed until the hydrolysate is destroyed. The CWC bans transportation of chemical agent. Further, they claim that the shipment of the waste across state lines contravenes federal defense law.

Efforts by the plaintiffs to obtain an injunction preventing the shipments have failed, leaving the activists with a full trial on the merits of the case as their only alternative. This cannot now take place before the last of the VX is expected to leave Newport for Port Arthur, the CWWG source says (Defense Environment Alert, Oct. 30, 2007).

The opposition to off-site shipments has arisen at other sites as well. Colorado lawmakers are attempting to block any off-site shipment of neutralized agent, known as hydrolysate, from the Pueblo site. In language inserted by Democratic Congress members into the fiscal year 2009 defense authorization bill, the House seeks to prevent any transport of hydrolysate from Pueblo in FY09, and directs the defense secretary to submit to Congress a "comprehensive cost-benefit analysis between on-site and off-site methods for disposing of such hydrolysate." The House bill must now be reconciled with the Senate version, which has yet to be passed by the full Senate.

The Senate Armed Services Committee's version does not contain the same prohibition, although Sen. Ken Salazar (D-CO) introduced a bill in February, S. 2656, which seeks to impose a ban. The bill has stalled since its introduction.

In a separate challenge related to chemical weapons disposal, Oregon state regulators are on the verge of issuing a key determination regarding the efficacy of carbon filtration as a method to capture mercury in mustard agent slated to be incinerated at Umatilla, OR. They are required under state law to establish whether sulfur-impregnated carbon filters, the Army's favored method, represent the best available technology (BAT) for preventing releases of mercury from smokestacks attached to incinerators destroying mustard agent that contains elevated levels of the toxic metal.

Activists are closely awaiting Oregon's decision, as they contemplate their next move in a lawsuit over the Army and state safeguards for addressing the mercury contamination.

Under a 2007 state court ruling, the Oregon Department of Environmental Quality (DEQ) must reevaluate whether the incinerator technology proposed for mustard agent destruction at the Army's Umatilla facility meets the BAT test under a state environmental law. The ruling in GASP v. Environmental Quality Commission was a win for the environmental group G.A.S.P., which has challenged the Army's incineration practices at Umatilla. The group has pushed for neutralization to be used at the site instead.

In comments submitted to a public hearing hosted by DEQ July 24, the group says "G.A.S.P. strongly disagrees with the DEQ's suggestion that baseline incineration and the proposed modified carbon filtration system would be the best available technology... for the destruction of either mercury-contaminated mustard ton containers or any of the mustard ton containers."

G.A.S.P. argues that DEQ has not counted the number of ton containers of mustard agent at the site that contain high levels of mercury, nor tested them to see which ones contain solid "heels" of agent in them. "Processing containers of uncharacterized or improperly characterized wastes would violate federal and state law," the group says.

The group also pushes for DEQ to evaluate an alternative chemical weapons destruction system. The system, known as Davinch, has been successfully used to destroy chemical agent using a "cold plasma" method in Belgium, G.A.S.P. states, and questions why DEQ has not seriously examined using the system.

DEQ officials should decide by the end of August whether the BAT requirement at Umatilla has been met, an attorney for G.A.S.P. says. The attorney says if the plaintiffs in the case are unsatisfied with the DEQ's decision, they may opt to challenge its adequacy under the existing lawsuit.

A DEQ official could not be reached by press time to respond to questions.