Court OKs plan to burn chemicals at arsenal
Posted on Friday, October 31, 2003
The Arkansas Supreme Court upheld Thursday the state’s decision to clear the way for the construction and operation of an incinerator for disposal of chemical weapons stored at the Pine Bluff Arsenal.
The seven-member court unanimously rejected five arguments made by a coalition of environmental and veterans groups.
Twelve percent of the nation’s chemical weapons stockpiles are in storage units on the 13,444-acre arsenal. Among locations in the United States, only an arsenal at Tooele, Utah, has a greater amount of chemical weapons stored. The Pine Bluff Arsenal, northwest of Pine Bluff, has nearly 4,000 tons of mustard gas, plus rockets containing sarin, a nerve agent.
Wednesday’s decision knocks down what could have proved an obstacle to the start of arms incineration in April 2004. "We’re certainly elated about it," said Chris West, spokesman for the Washington Demilitarization Co., which has charge of destroying the hazardous materials at the arsenal. "It means that unless something unforeseen happens, we’re going to be able to carry out our schedule and plans," he said.
At issue in this case was the state Department of Environ- mental Quality’s January1999 issuance of two permits authorizing the construction and operation of the Pine Bluff Chemical Demilitarization Facility.
In July 2000 the Arkansas Pollution Control and Ecology Commission affirmed the department’s decision. In April 2002, Jefferson County Circuit Court Judge Fred D. Davis III upheld the commission’s decision, which he concluded was thorough, well-reasoned and supported by overwhelming evidence.
Appealing the ruling were Pine Bluff for Safe Disposal, Chemical Weapons Working Group Inc., Vietnam Veterans of America-Arkansas State Council Inc., Arkansas Women’s Action for New Directions, and the Vietnam Veterans of America Foundation.
The Department of Environmental Quality, the Pollution Control and Ecology Commission, the Army and the Army’s contractor, Washington Demilitarization Co., were the defendants.
The appellants argued that the commission’s decision was arbitrary and contrary to law and did not adequately address the risks from emissions of dioxin, mercury and products of incomplete combustion.
The court said the appellants failed to present evidence to support their claims. "To the contrary, the evidence clearly demonstrates that the expected emissions will not be materially injurious to human, plant, or animal life or to property and will not unreasonably interfere with the enjoyment of life or the use of property in the area," the court said.
The appellants also argued that the commission erred because the permits do not contain conditions necessary to adequately protect the public health and the environment. This, the appellants contended, violates state and federal law.
The court said the permits provide for two trial burns and include more than 20 specific conditions such as limiting the incinerator to no visible emissions and prohibiting the release of untreated chemicals. The court said the appellants’ proof failed to adequately support their argument.
In their third point, the appellants argued that the commission erred in dismissing their environmental justice claim brought under the president’s executive order on environmental justice and Title VI of the Civil Rights Act of 1964. "Given that there is substantial evidence to support the [administrative hearing officer’s] conclusion that the permits will adequately protect the public health and environment and that no adverse health effects to any persons will result from the facility’s emissions, it logically follows that there will be no adverse impact on minorities and low-income persons," the court said.
The fourth argument in the appeal contended that the commission erred in dismissing a claim that the permits were issued on the basis of incomplete applications. The court said the appellants have failed to make a convincing legal argument.
The appellants’ other argument was that the commission erred in dismissing two of their claims on grounds that they were not raised in their request for review. The court said the appellants’ claims were not properly raised for review.
Justice Donald L. Corbin signed the court’s opinion.
Preparations for burning chemical weapons were never put on hold pending the appeal, and workers at the arsenal are gearing up for test burns expected to begin next week.
During the tests, called surrogate burns, substances not nearly so dangerous as chemical weapons are incinerated in the furnaces that will eventually destroy mustard gas, sarin and other deadly agents.
The Arkansas Department of Environmental Quality will monitor the surrogate burns to make sure furnaces destroy 99.9999 percent of the test substances, said Mike Hill, an engineer in the Hazardous Waste Division at ADEQ. "These compounds are much harder to destroy by incineration than the agent itself, so it’s a pretty good assurance," West said.
The incineration facility at Pine Bluff cost $650 million. The cost of the project is expected to reach $1.7 billion. The Army foots the bill.
The permits give Washington Demilitarization up to 10 years to get the job done, but the company can reapply if it needs more time, said Hill.
The United States is supposed to destroy much of its chemical weapon reserves by 2007, a deadline set by the International Chemical Weapons Convention of 1997. But Army officials have said the deadline may be pushed back to 2012.