Community In-Power Development Association
601 Woodworth Blvd.
Port Arthur, Texas 77642
May 31, 2007
The Honorable John Cornyn
517 Hart Senate Office Bldg.
Washington, DC 20510
Dear Senator Cornyn:
We write regarding our nation's Chemical Weapons Demilitarization Program. Recent events at Fort Dix, New Jersey remind all of us that in a post 9/11 era we must be ever vigilant to guard against terrorist threats within our country as well as abroad. In accordance with the Chemical Weapons Convention (CWC) Treaty, the warfare nerve agent VX is presently being partially destroyed at the Army depot in Newport Indiana. VX is one of the most lethal chemical agents on the planet and it requires extreme care in its handling. Its location in Indiana has high public visibility and as such is a homeland security risk. VX hydrolysate, a derivative wastewater from the destruction process, also requires extreme care in its handling and is also a significant homeland security and public safety concern. We believe the U.S. Army's recent shipments of VX hydolysate from Newport, Indiana to an incinerator in Port Arthur, Texas are not only unreasonably risky, but violate federal law which prohibits interstate shipment of chemical weapons and the reckless endangerment of U.S. citizens.
Our Request
We respectfully ask Congress to take immediate action to stop the Army's transportation of VX hydrolysate across state boundaries and over interstate roadways. We ask you to demand accountability. We believe strongly that Army officials have misrepresented important facts concerning the dangers of these operations both to Congress and the public and continue to do so. Independent verification of the Army's claims concerning the safety and the legality of such interstate movement of a chemical weapon derivative is justifiably called for.
A lawsuit by citizen groups that seeks to stop the shipments was filed in federal court in Terre Haute Indiana May 8th. A 60-page complaint details the Federal, State, and regulatory laws citizen groups assert the Army violated. It is available at your request.
But more than court action by citizens is needed to protect the public and avoid the multi-million dollar cost-overrun precedent this reckless course of action will engender. We also believe that beyond the laws broken, the Army's actions are in direct contravention to (1) Congressional directives contained in the John Warner National Defense Authorization Act for fiscal 2007, and (2) explicit assurances from the Department of Defense to Congress given last January after Congressional action contained in that Act helped stop shipments of the VX hydrolysate to the State of New Jersey. Specifically, in response to General Accountability Office (GAO) recommendations concerning Army management shortcomings at Newport, the Department of Defense (DoD) assured Congress that the Secretary of Defense would direct the Army to take certain prudent steps to properly assess risk and cost considerations before additional plans to eliminate Newport's VX hydrolysate were undertaken.
However, less than five months later, and despite the GAO's determination that there was insufficient justification for the Army to pursue off-site hydrolysate destruction, the Army nevertheless proceeded to surreptitiously send the toxic waste to an off-site incinerator. Such reckless actions demonstrate a blatant disregard both for DoD's assurances to Congress and for federal laws and regulations, which the Army is required to comply with in accordance to the CWC Implementation Act in order to ensure public safety and trust.
The Significance of Newport to the Overall Chemical Demilitarization Program
The choices the Army makes for the chemical weapons destruction program at Newport have major implications for the U.S. Chemical Weapons Demilitarization program as a whole. The Army's reckless and surreptitiously arranged shipments of VX hydrolysate will set a misguided and wasteful multi-million dollar precedent for all other sites. The Army's present actions at Newport have served to further weaken the integrity of a program that is already predicted to be $ 30 billion over budget and 28 years behind schedule, according to the DoD's own analysis. Additionally, the program has lost public trust, especially at the non-incineration disposal sites. Army officials over the past few years on a regular basis have attempted to shift funding from these sites to their incineration sites to make up for over-budget management and operations of the weapons incinerators.
Additionally, the Army's public pronouncements that the best solution both financially and schedule-wise for destruction of the Newport hydrolysate is to ship it off-site because there isn't a mature and proven non-incineration technology ready to be deployed on-site is disingenuous and false. Such misrepresentation flies in the face of what Indiana residents, the Army's contractor, workers and state regulators know to be true and has eroded public trust in anything the Army now has to say.
In 2001, The National Research Council evaluated nine technologies, which are available for on-site treatment and ranked them in order of efficacy, safety and protection of the environment. In fact the Army and its contractor, with input from Indiana residents and regulators, selected three technologies out of these for on-site treatment. Out of these technologies it was a Super Critical Water Oxidation process that was originally agreed on by the Army, local residents, the contractor and permitted by the State. The Army's shipment of the Newport hydrolysate to Port Arthur not only violates the agreement they reached with the public but also violates the original intent of their own operational permit for no good reason.
Instead of sending the Newport hydrolysate off-site to an incinerator in the low-income, minority community of Port Arthur, Texas that is already sick and over-burdened with toxic wastes, the Army could have honored its promises to the Newport community, could have saved money, could have respected the Texas community, and could have already begun using safer technologies on-site.
Furthermore, according to information that is flowing out of the Newport facility from anonymous workers who fear for their jobs if they go pubic, the Army is mischaracterizing the percentage of VX and other toxics that is present in the hydrolysate and is purposefully using a monitoring system that is inaccurate in measuring VX.
Because of Newport's significance to the overall weapons destruction program as precedent we ask that you request the Secretary of Defense to intervene and direct the Army to stop this unlawful act and treat this extremely toxic VX hydrolysate on-site at Newport. Your prompt request to the Secretary of Defense is critical before a major safety incident occurs in our communities along the 900 miles of highways from Indiana to Texas and further harms the community and environment in Port Arthur from treatment of this waste in an unproven and unsafe manner.
We are confident that corrective actions at Newport will serve to expedite rather than delay chemical weapons destruction throughout the Chemical Weapons Demilitarization Program.
Sincerely,
Hilton Kelley, President
Community In-Power Development Association
Port Arthur, Texas
Anisha Shallow and Moya Green
Residents
Port Arthur, Texas
Sara Morgan, Spokesperson
Citizens Against Incineration at Newport
Montezuma, Indiana
Leonard Akers, CORE Representative
Indiana Chemical Weapons Working Group
Clinton, Indiana
Craig Williams, Director
Chemical Weapons Working Group
Berea, Kentucky
Ross Vincent, Senior Policy Director
Sierra Club
Pueblo, Colorado
cc: Secretary of Defense, Robert Gates
USD/A,L&T, Kenneth Krieg
Acting Secretary of the Army, Pete Geren
ASA/A,L&T, Claude Bolton
Attachment A.
Background and basis for request
We recommend the Congress address three immediate issues, among others.
1. Violation of prohibition on transporting Chemical Weapons Across State borders. In 1997, the Senate ratified the Chemical Weapons Convention. (S.Res.75, April 24, 1997) In 1998 Congress passed the Chemical Weapons Convention Implementation Act. (P.L. 105-277) Whereas the Department of State was designated the United States National Authority for purposes of the Chemical Weapons Convention, it is the Department of Defense that has primary responsibility for eliminating chemical weapons contained in stockpiles within the United States.
Our understanding is primary oversight responsibility within the Office of the Secretary of Defense is with the Assistant Secretary of Defense for Nuclear and Chemical and Biological Defense Programs. At an operational level the Army Chemical Materials Agency has major responsibility for the elimination of chemical weapons. However, as GAO has vividly pointed out, the lines of accountability are overlapping and confused. For Congressional oversight purposes we understand the Congress has directed the Secretary of Defense is to be the accountable entity.
For example, Section 143 of the National Defense Authorization Act for Fiscal year 1995 prohibits the Secretary of Defense from transporting chemical weapons out of the State in which it is located.
Sec.143. Transportation of Chemical Munitions
(a) Prohibition of Transportation across state lines-The secretary of Defense may not transport any chemical munitions that constitutes part of the chemical weapons stockpile of the State in which that munitions is located on the date of the enactment of this Act and, in the case of any such chemical munitions not located in a State on the date of the enactment of this Act may not transport any such munitions into a State.
While this provision in itself does not define chemical weapons or chemical munitions that constitute part of the chemical weapon stockpile, the Chemical Weapons Convention Implementation Act does. Section 3 (1) reads in part:
(1) The term "chemical weapon" means the following, together or separately:
(A) A toxic chemical and its precursors, except where intended for a purpose not prohibited under this Act as long as the type and quantity is consistent with such a purpose.
The term "precursors" is also defined at Section 3(7) and reads in part:
(7) The term "precursor" means any chemical reactant which takes part at any stage in the production by whatever method of a toxic chemical. …
The Army contends that the VX hydrolysate it is shipping to Port Arthur, Texas does not amount to a chemical weapon or contain "precursor" chemicals that could be reconstituted into VX. Yet the inspectors who ostensibly operate under the auspices of the Organization of Prohibiting Chemical Weapons, (OPCW), an international entity, will conduct their inspections at the Port Arthur incinerator, not at Newport, before they score any chemical weapon eliminations consistent with the Chemical Weapons Convention. Common sense suggests that the inspectors would do their scoring at Newport were it not that the VX hydrolysate contains precursor chemicals that fit the legal definition of chemical weapons. The Army is misconstruing the statutory prohibition.
Moreover, while the Army asserts dated Center for Disease Control (CDC) and Environmental Protection Agency (EPA) studies support their contention that VX hydrolysate is below safe thresholds, they decline to make public any recent test results from the actual hydrolysate that has been in storage and now is being shipped. They decline to show any data from the shipping manifests. We believe any recent test data from the hydrolysate at Newport, from the containers that are being shipped, and from the emissions that occur afte incineration, should be independently verified. Congress should not accept Army representations that cannot be trusted.
Given the Army's track record, the Congress should also insist any testing should be scrutinized by outside parties. Previous CDC and EPA studies asserted by the Army are not supported by contemporary test results of VX hydrolysate that has been in storage. We suggest the Congress should directly inquire of the two agencies whether they believe their previous studies should be relied upon to confirm the chemical sciences underpinning sensitive public safety and security considerations for present day shipments and incineration. Again, this is a serious public safety and security concern that merits meticulous scientific scrutiny.
2. Violation of Congressional direction to credibly inform affected communities. Section 922(b)(4) of the John Warner Defense Authorization Act of 2007 reads that it is the sense of Congress that:
(4) when selecting a site for the treatment or disposal of neutralized chemical agent at a location remote from the location where the agent is stored, the Secretary of Defense should propose a credible process that seeks to gain the support of affected communities.
Army spokesmen have been quoted as publicly referring to the process utilized to inform Port Arthur, Texas and Newport citizens as a "snafu". The shipments to Port Arthur come less than eleven weeks after the same Defense Reauthorization Act of 2007 explicitly prohibited the Army from shipping the VX hydrolysate across state lines to New Jersey before February 1, 2007. The justification and award for a sole source contract to an incinerator contractor in Port Arthur comes in the face of this Congressional resolution mere months after its passage. A Congressional sentiment behind this sense of Congress is the view that community support will reduce both the time and expense of eliminating chemical weapons and enhance public safety.
Citizens of Newport have expressed support for eliminating chemicals on site. The cacophony of voices from Port Arthur that have been heard since public disclosure of incineration plans there reflect far less than a consensus. Nation-wide the Army approach at Newport and Port Arthur are leading to outright distrust. The extent to which the Newport situation is precedent for other communities impacted by the chemical weapons presents a daunting prospect. We submit the Nation's military should not treat the destruction of extremely dangerous weapons of mass destruction so casually. We call upon the Congress to bring about accountability.
3. Violation of assurances the Department of Defense gave Congress last January. Section 922(a) of the Defense Reauthorization Act of 2007 mandated a Comptroller General review of a cost benefit analysis prepared by the Secretary of the Army entitled "Cost-Benefit Analysis of Off-Site Versus On- Site Treatment and Disposal of Newport Caustic Hydrolysate" dated April 24, 2006. Section 922(c) prohibited the Army from transporting the Newport VX hydrolysate to New Jersey until after the GAO review and no earlier than February 1, 2007. The GAO review was reported and published to the Senate and House Armed Services and Defense Appropriations by January 26, 2007. On December 5, 2006 it was announced that plans to ship to New Jersey would be abandoned. By April 16 the Army had justified and obtained a sole source contract to ship and incinerate at Port Arthur Texas, across eight State boundaries.
The GAO concluded the Secretary of the Army's analysis was not supportable. They recommended that the Secretary of Defense direct the Secretary of the Army to take four actions: (1) Conduct the Army's cost-benefit again so conclusions can be accurate and credible; (2) Correct mathematical errors in the cost estimate; (3) Establish quality control and independent review processes that check data sources, calculations and assumptions; and (4) Perform a sensitivity analysis of key assumptions, including at a minimum, for off-site treatment and disposal options, the risks associated with potential permitting, legal, and other challenges.
The Office of the Assistant Secretary of Defense for Nuclear and Chemical and Biological Defense Programs commented and responded after reviewing the Reports recommendations in a letter dated January 4,2007. The Department of Defense concurred with all the recommendations and indicated that the Secretary of Defense would direct certain corrective actions. They included:
(1) The new cost-benefit analysis, based on revised cost estimates, will be conducted utilizing best practices to include the Association for the Advancement of Cost Engineering methods.
(2) The cost estimates will be revised for use in the new cost-benefit analysis. The revised cost estimates will be reviewed independently for methodology and application.
(3) The Army is directing the U.S. Army Chemical Materials Agency, which prepared the initial analysis report, to conduct an independent review of the revised cost estimates.
(4) The independent review of cost data, estimates, and analysis will include an analysis of the assumptions.
Despite these assurances and commitments offered on behalf of the Secretary of Defense to direct the Secretary of the Army to take, and despite that these assurances were given in response to a Congressional directed review contained in last years Defense Authorization Act, the Army has recklessly ignored what we presume they were directed by the Secretary of Defense to do. These are chemical weapons, weapons of potential mass destruction, that reside within U.S. borders and communities that are the subject matter of what the Defense Department indicated would be done but clearly was not.
Congress' direction and understanding of how this program would proceed have been defied. The Army has acted in defiance of what the Secretary of Defense has declared would be done. They have acted in defiance of what the Congress directed and what the law requires. Public safety and homeland security are at stake. Congress should insist upon an explanation and on accountability for such recklessness.
Attachment B. From the John Warner National Defense Authorization Act for fiscal 2007
Subtitle C--Chemical Demilitarization Program
SEC. 921. SENSE OF CONGRESS ON COMPLETION OF DESTRUCTION OF UNITED STATES CHEMICAL WEAPONS STOCKPILE.
(a) Findings- Congress makes the following findings:
(1) The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, done at Paris on January 13, 1993 (commonly referred to as the `Chemical Weapons Convention'), requires that destruction of the entire United States chemical weapons stockpile be completed by no later than the extended deadline of April 29, 2012.
(2) On April 10, 2006, the Department of Defense notified Congress that the United States would not meet even the extended deadline under the Chemical Weapons Convention for destruction of the United States chemical weapons stockpile.
(3) Destroying existing chemical weapons is a homeland security imperative and an arms control priority and is required by United States law.
(4) The elimination and nonproliferation of chemical weapons of mass destruction is of utmost importance to the national security of the United States.
(b) Sense of Congress- It is the sense of Congress that--
(1) the United States is committed to making every effort to safely dispose of its entire chemical weapons stockpile by the Chemical Weapons Convention extended deadline of April 29, 2012, or as soon thereafter as possible, and will carry out all of its other obligations under that Convention;
(2) to prevent further delays in completing the destruction of the United States chemical weapons stockpile, the Secretary of Defense should prepare a comprehensive schedule for the safe destruction of such stockpile and should annually submit that schedule (as currently in effect) to the congressional defense committees, either separately or as part of another required report, until such destruction is completed;
(3) the Secretary of Defense should make every effort to ensure adequate funding to complete the elimination of the United States chemical weapons stockpile in the shortest time possible, consistent with the requirement to protect public health, safety, and the environment; and
(4) when selecting a site for the treatment or disposal of neutralized chemical agent at a location remote from the location where the agent is stored, the Secretary of Defense should propose a credible process that seeks to gain the support of affected communities.
SEC. 922. COMPTROLLER GENERAL REVIEW OF COST-BENEFIT ANALYSIS OF OFF-SITE VERSUS ON-SITE TREATMENT AND DISPOSAL OF HYDROLYSATE DERIVED FROM NEUTRALIZATION OF VX NERVE GAS AT NEWPORT CHEMICAL DEPOT, INDIANA.
(a) Review Required- Not later than December 1, 2006, the Comptroller General shall submit to Congress a report containing a review of the cost-benefit analysis prepared by the Secretary of the Army entitled `Cost-Benefit Analysis of Off-Site Versus On-Site Treatment and Disposal of Newport Caustic Hydrolysate' and dated April 24, 2006.
(b) Content of Review- In conducting the review under subsection (a), the Comptroller General shall consider and assess at a minimum the following matters:
(1) The adequacy of the rationale contained in the cost-benefit analysis referred to in subsection (a) in dismissing five of the eight technologies for hydrolysate treatment directed for consideration on page 116 of the Report of the Committee on Armed Services of the House of Representatives on H.R. 1815 (House Report 109-89).
(2) The rationale for the failure of the Secretary of the Army to consider other technical solutions, such as constructing a wastewater disposal system at the Newport Chemical Depot.
(3) The adequacy of the cost-benefit analysis presented for the three technologies considered.
(c) Limitation on Transport Pending Report- The Secretary of the Army may not transport neutralized bulk nerve agent (other than those small quantities necessary for laboratory evaluation of the disposal process) from the Newport Chemical Depot to the State of New Jersey until the earlier of--
(1) the end of the 60-day period beginning on the date on which the report required by subsection (a) is submitted; or
(2) February 1, 2007.
SEC. 923. INCENTIVES CLAUSES IN CHEMICAL DEMILITARIZATION CONTRACTS.
(a) In General-
(1) AUTHORITY TO INCLUDE CLAUSES IN CONTRACTS- The Secretary of Defense may, for the purpose specified in paragraph (2), authorize the inclusion of an incentives clause in any contract for the destruction of the United States stockpile of lethal chemical agents and munitions carried out pursuant to section 1412 of the Department of Defense Authorization Act, 1986 (50 U.S.C. 1521).
(2) PURPOSE- The purpose of a clause referred to in paragraph (1) is to provide the contractor for a chemical demilitarization facility an incentive to accelerate the safe elimination of the United States chemical weapons stockpile and to reduce the total cost of the Chemical Demilitarization Program by providing incentive payments for the early completion of destruction operations and the closure of such facility.
(b) Incentives Clauses-
(1) IN GENERAL- An incentives clause under this section shall permit the contractor for the chemical demilitarization facility concerned the opportunity to earn incentive payments for the completion of destruction operations and facility closure activities within target incentive ranges specified in such clause.
(2) LIMITATION ON INCENTIVE PAYMENTS- The maximum incentive payment under an incentives clause with respect to a chemical demilitarization facility may not exceed amounts as follows:
(A) In the case of an incentive payment for the completion of destruction operations within the target incentive range specified in such clause, $110,000,000.
(B) In the case of an incentive payment for the completion of facility closure activities within the target incentive range specified in such clause, $55,000,000.
(3) TARGET RANGES- An incentives clause in a contract under this section shall specify the target incentive ranges of costs for completion of destruction operations and facility closure activities, respectively, as jointly agreed upon by the contracting officer and the contractor concerned. An incentives clause shall require a proportionate reduction in the maximum incentive payment amounts in the event that the contractor exceeds an agreed-upon target cost if such excess costs are the responsibility of the contractor.
(4) CALCULATION OF INCENTIVE PAYMENTS- The amount of the incentive payment earned by a contractor for a chemical demilitarization facility under an incentives clause under this section shall be based upon a determination by the Secretary on how early in the target incentive range specified in such clause destruction operations or facility closure activities, as the case may be, are completed.
(5) CONSISTENCY WITH EXISTING OBLIGATIONS- The provisions of any incentives clause under this section shall be consistent with the obligation of the Secretary of Defense under section 1412(c)(1)(A) of the Department of Defense Authorization Act, 1986, to provide for maximum protection for the environment, the general public, and the personnel who are involved in the destruction of the lethal chemical agents and munitions.
(6) ADDITIONAL TERMS AND CONDITIONS- In negotiating the inclusion of an incentives clause in a contract under this section, the Secretary may include in such clause such additional terms and conditions as the Secretary considers appropriate.