Defense Environment Alert
March 12, 2002

ALABAMA GOVERNOR SUES PENTAGON OVER INCINERATOR SAFETY ISSUES

Alabama Gov. Don Siegelman (D) last month filed a lawsuit against the Defense Department and Army seeking to prevent any incineration of chemical weapons in his state until the federal government provides "maximum protection to the citizens of Alabama" as required by federal law and administrative orders.

At issue is federal funding for a variety of emergency management measures designed to protect citizens living near the Anniston Army Depot in the event of an accidental release of toxic chemical agents, which are stored at the depot. About 3 5,000 people live within six to nine miles of the depot, and an additional 75,000 live within 10 to 30 miles of the depot, according to the governor's lawsuit. Siegelman also charges that DOD, in significantly extending the timeline to destroy Anniston's chemical weapons, has failed to comply with the National Environmental Policy Act (NEPA). The lawsuit was filed in mid-February in the U.S. District Court for the Northern District of Alabama Eastern Division. The complaint is available on InsideEPA. com.

The Army is preparing to start up an incinerator to destroy stockpiled chemical munitions stored at the depot. Trial bums were scheduled to begin in late February, with actual operations slated for this summer But if the trial bums begin "without implementation of minimum critical safety items" then Defense Secretary Donald Rumsfeld -will be acting beyond the scope of his authority," the lawsuit charges. Siegelman is asking the court to compel DOD and the other defendants to transfer promised funds for "critical safety items," reexamine funding for over-pressurization of every school in Calhoun County, and notify citizens of all potential exposure to lethal chemical agents, having incorporated even the lowest level exposures into emergency planning response plans.

"The public interest, as well as the intent of Congress, will be served by requiring Defendants to provide maximum protection in carrying out the destruction of all lethal chemical weapons as required by statute," the lawsuit says. "The burden on Defendants of mere delay of incineration, when the program has already been delayed by years because of Federal mismanagement and the chemicals have been stored in Anniston for decades and may safely remain stored for many years, is clearly outweighed by the danger of death or severe injury to citizens in this densely populated area if an accident due to human error or mechanical malfunction were to occur, leading to a lethal chemical accident," the complaint continues.

Siegelman is also asking the court to require DOD to conduct an additional environmental assessment under NEPA due to its announcement last fall that it would not complete destruction of its chemical weapons stockpile at eight sites by 2007, as required by an international treaty (Defense Environment Alert, Oct. 9, 2001, p3). The revised timeline for destruction extends the completion date for the Anniston stockpile by at least two years, but DOD has not prepared a supplemental environmental impact statement or finding of no significant impact on a programmatic or site-specific basis, the suit charges.

In April 2001, Siegelman notified Rumsfeld that incineration could not begin until 12 safety points were fully addressed. These included: updating toxicity thresholds; providing accurate software for tracking and predicting the movement of a chemical plume; 24-hour-a-day staffing for local emergency management centers; emergency sirens and tone alert radios; individualized safety plans for the handicapped, elderly and some children; funds to train emergency room staff at local hospitals, a protective action other than "shelter in place" with plastic and duct tape; expansion of a local highway to provide a better evacuation route; and assurances that no other chemical weapons will ever be brought into the state.

In the fall of 200 1, DOD officials, including acquisition chief E.C. "Pete" Aldridge, agreed that incineration would not begin until all safety issues were addressed, and on Nov. 1, 2001, Aldridge notified Siegelman and members of the Alabama congressional delegation that DOD would provide, within 30 days, "$40.5 million to resolve critical safety matters specific to Anniston," according to the lawsuit.

But by February, Alabama still had not received the funds, and Siegelman, on Feb. 1, threatened litigation. The Federal Emergency Management Agency, which distributes the chemical safety funding for the Pentagon, immediately announced that it was releasing $25 million of the $40.5 million promised (Defense Environment Alert, Feb. 12, p7). Siegelman's lawsuit, filed about two weeks later, says none of the money has yet been provided.