Defense Environment Alert 03/07/06

ACTIVIST GROUPS DOWNPLAY EPA FINDING ON CHEMICAL AGENT WASTE PLAN

Citizen activists are downplaying a recent EPA finding that an Army plan to dispose of neutralized and treated chemical agent waste in the Delaware River poses no ecological risks. They say multiple roadblocks remain ahead for the politically unpopular proposal.

At issue is the Army's plan to transport millions of gallons of neutralized chemical agent waste from its Newport, IN, chemical depot for secondary treatment at a DuPont-owned plant in Deepwater, NJ. Activists and New Jersey politicians have long objected to the plan, with environmental groups threatening to sue over alleged legal violations.

EPA Feb. 16 announced it no longer had ecological objections to the plan, following a re-assessment of the ecological risks. In response to requests from House and Senate lawmakers from New Jersey and Delaware, the Centers for Disease Control and Prevention (CDC) has been formally reviewing the proposal to determine what risks it poses. As part of that review, CDC asked EPA to evaluate the plan's ecological impacts. DuPont conducted a second ecological risk assessment after EPA found the original assessment deficient, according to EPA's letter noting its approval.

An EPA Region II spokesperson downplays EPA's role in the process, however, noting that the agency lacks "any decision-making authority in this process."

"All we've said is that the project doesn't pose an ecological risk," the source says. "We don't endorse the project one way or the other." But EPA's announcement appears to move the project one step closer to being put in place. An Army spokesman has said the plan would proceed pending evaluations by the CDC and EPA.

But activist groups argue EPA's decision does not represent a significant victory for the Army plan, noting that the New Jersey Department of Environmental Protection (DEP), not EPA, has primary regulatory authority over the planned disposal site. New Jersey Gov. Jon Corzine (D) opposes the move, and Rep. Robert Andrews (D) has threatened to block it with legislation if necessary.

The Army has been struggling to find a site to dispose of the hydrolysate, a caustic liquid waste created by neutralization of VX nerve agent at the Newport facility. Under the Chemical Weapons Convention, the service must dispose of its nearly 1,300 tons of VX, a process that is expected to create 4 million gallons of hydrolysate by the end of 2007. Hydrolysate requires secondary treatment before it can be discharged.

Environmental activists support a secondary treatment method known as supercritical water oxidation (SCWO) that they say could be used on-site at Newport with minimal environmental impact. However, the Army has called for transporting the hydrolysate to the DuPont Chambers Works facility in New Jersey for secondary treatment, after which DuPont would discharge the resulting wastewater into the Delaware River.

That strategy would at least require modifications to DuPont's New Jersey Pollution Discharge Elimination System (NJPDES) permit and to its Delaware River Basin Commission (DRBC) permit, neither of which the company has yet requested, according to spokespeople with DEP and DRBC. The NJPDES request, and any appeal if it were denied, would go to DEP, according to an EPA Region II spokesperson.

Several groups opposing the plan say they are unconcerned. "This is not a done deal by any means," says a source with Green Delaware, an environmental group that opposes the Army plan. "Nobody I know of opposed to the dumping will change their minds now." The source says the environmental community "expected this to happen" but that EPA "wasn't a player in the first place," characterizing the decision as "the Bush EPA rolling over to a discharger."

A source with the Kentucky-based Chemical Weapons Working Group, which also opposes the plan, says EPA's decision does not mean the plan will go forward. "I believe this is a nonstarter based on the political landscape, and that includes citizen activists," the source says.

But EPA's finding could be a precursor to a federal assertion of authority under the Clean Water Act (CWA), according to a source with the Mid-Atlantic Environmental Law Center. "There's always a possibility EPA could go over the state's head and issue a permit," the source says, adding that such action is not often taken but that "you can't rule out the possibility. I think EPA could claim inherent authority under CWA, and the federal government could push this despite state objections."

The source compared the possibility to the occasional issuing by the Federal Energy Regulatory Commission of controversial liquid natural gas permits to refiners in states where local lawmakers oppose them for ecological or other reasons.

A peer review report on EPA's finding is due in April, according to the spokesperson.