Defense Environment Alert

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

Vol. 16, No. 3

February 5, 2008

COLORADO OFFERS DOD COMPROMISE PLAN TO DESTROY WASTES BY 2017

Colorado regulators are hoping to avert a potential lawsuit against the Defense Department by offering a compromise enforceable agreement that would commit DOD to completely destroying stockpiled chemical-agent wastes at the military's Pueblo, CO, site by 2017- three years ahead of DOD's current schedule - to resolve disputed waste violations at the facility.

State regulators proposed the compromise approach last month after DOD contended that taking action now, rather than later, to treat and dispose of the wastes in dispute - a small portion of weapons stored at Pueblo - would disrupt the schedule for the destruction of the site's entire stockpile. The brewing disagreement over the waste violations could lead to litigation, according to an internal state document obtained by Defense Environment Alert.

A spokeswoman for DOD's program for overseeing the Pueblo stockpile's destruction says in a statement that DOD is "continuing to discuss these issues" with the state, and maintains that the stockpile and agent in question "is safely stored."

Establishing an enforceable deadline of 2017 for destroying all the stockpiled wastes would reinforce recently passed congressional requirements that are prompting high-level DOD commitments to boost funding for chemical weapons destruction projects (see related story). DOD has stretched out the cost and schedule of weapons destruction at Pueblo until 2020, due to budgetary constraints, despite an international treaty mandating 2012 as the deadline for destroying all stockpiled chemical weapons. But - citing the instability of the stockpile, the weapons' presence as a potential terrorist target and the greater costs associated with an elongated schedule Congress established 2017 as an end-date for destruction at all stockpile sites when it passed fiscal year 2008 defense appropriations and authorization acts.

Now, under the proposal offered by the Colorado Department of Public Health & Environment (CDPHE), the state says it will allow DOD to continue to store over-packed munitions waste at Pueblo, even though that constitutes a waste storage violation, provided DOD agrees to an enforceable agreement governing those wastes and committing to destroy all the site's stockpile by 2017. Relevant documents are available on Inside EPA. com. See page 2 for details.

At issue are over-packed leaking munitions waste stored in four permitted igloos at the Pueblo site. Last July CDPHE issued a compliance advisory a non-enforceable document citing a possible violation of the Resource Conservation & Recovery Act. The state charges that storage of the waste violates a provision of RCRA and the state waste law prohibiting long-term storage of hazardous waste. CDPHE also wants other wastes stored in the four igloos to be disposed of, including 11 Department of Transportation (DOT) containers holding some mustard agent. In all, there are 585 containers of hazardous waste in the four permitted igloos.

The state also alleges that stockpiled munitions, which number in the hundreds of thousands and are located in other igloos, also violate waste storage rules, but that alleged violation has not been the focus of the state's enforcement action.

DOD's Assembled Chemical Weapons Alternatives (ACWA) program, which is overseeing destruction of the disputed waste and stockpiled munitions at Pueblo, defends the storage practices. Kevin Flamm, ACWA program manager, said in a Nov. 30 letter in response to the alleged violations that DOD believes the ACWA program "is in full compliance with all applicable environmental laws and regulations, and it is our intention to remain as such at all times."

In a follow-up informal conference between the two sides in December, DOD officials told the state "there would be schedule impacts" if Colorado mandated destruction of the over-packed munitions waste at issue before destruction of the rest of the stockpiled munitions at Pueblo, according to a Jan. 14 CDPHE letter outlining the discussion. "You contended that if the [CDPHE] required early treatment of the over-packed munitions, funds allocated for construction of [the Pueblo Chemical Agent-Destruction Pilot Plant] would need to be diverted towards that treatment instead." The letter says DOD is currently preparing various cost and scheduled estimates for destruction completion at Pueblo and plans to discuss these scenarios with Congress as they may relate to meeting the 2017 destruction deadline.

"If we destroy these items earlier than planned, it would require re-allocating funding from the Pueblo Chemical Agent-Destruction Pilot Plant, thereby potentially slowing the elimination of the entire chemical weapons stockpile stored at the depot," the DOD ACWA spokeswoman says.

But CDPHE's letter says that "[c]ontinued storage of the over-packed munitions in violation of the storage prohibition requirement is unacceptable unless enforceable deadlines for expeditious treatment are established."

The regulators say they have "carefully considered" the situation at Pueblo and the information obtained at the informal conference. "Accordingly, the Division would be willing to allow the continued storage of the over-packed munitions waste at PCD provided an enforceable agreement can be reached with you to complete destruction of all the stockpile wastes stored there by 2017. We believe that an agreement between the Division, DoD, and ACWA that provides for a process to achieve treatment of stored wastes by an enforceable deadline would be an effective way to resolve the violations for both the stored stockpile wastes and the wastes in the permitted igloos."

The letter says the order would cover storage of "the over-packed munitions wastes, the DOT mustard agent container wastes, and the stockpiled munitions."

If DOD rejects the idea, the state says DOD must come up with an assessment for treatment options for the wastes in violation by April 1.

CDPHE asks for a DOD response to the offer by Feb. 29.

The ACWA spokeswoman says DOD plans to provide CDPHE a technical assessment of options for speeding up destruction of the over-packed munitions in early April. But the source adds it is unclear when a cost and schedule assessment of those options will be ready.

A Colorado attorney general document that outlines potential resource allocations for 2009 indicates the state's recognition that it may have to resort to litigation in the matter. The document, obtained by Defense Environment Alert, says the Hazardous Materials and Waste Management Division of CDPHE "has increased enforcement pressure regarding the long-term storage of [waste chemical weapons at Pueblo], requiring significant legal resources. A suit against the U.S. Department of Defense to force expeditious treatment of the stored waste weapons is possible and would require additional legal resources," the Colorado Attorney General Legal Services to State Agencies document says.