Defense Environment Alert
March 25, 2003

CITIZENS SUE ARMY INCINERATOR PROGRAM, CHARGING NEPA VIOLATIONS

Citizen activists are asking a federal district court to halt the Army's chemical weapons incineration projects, contending the military violated the National Environmental Policy Act (NEPA) by failing to fully weigh alternatives to incineration or update the environmental impacts analysis of its destruction plans. The lawsuit, filed March 11, could halt work at four sites where the Army is incinerating or constructing incinerators to destroy stockpiled chemical weapons.

The activists believe non-incineration destruction methods are safer than incineration and question why the military is using alternative destruction technologies at some sites, but not at others. Stockpiled chemical weapons are currently stored at eight sites around the country. The Chemical Weapons Working Group (CWWG), a coalition of grassroots citizen groups that advocates alternative destruction methods to incineration, filed the suit against the Army and Defense Department in the U.S. District Court for the District of Columbia. The complaint is available on InsideEPA. com. See page 2 for details.

The plaintiffs charge that the military has violated NEPA by failing to prepare a supplemental environmental impact statement (EIS) to its 1988 programmatic EIS concerning the destruction of the Army's stockpiled chemical weapons, and to site-specific ElSs for sites in Alabama, Arkansas, Oregon and Utah. For instance, failures at prototype incinerators at an atoll in the Pacific Ocean and in Utah were never factored into the environmental analyses, the group says.

Other alleged violations of NEPA include the defendants' failure to assess, and take a "hard look" at, the significant impacts of incineration, for instance on worker health, and their failure to evaluate non-incineration alternatives.

Further, they say, the Defense Department's alternative technology program violated NEPA by not considering the Oregon or Utah sites in its programmatic EIS, which examined sites for piloting non-incineration destruction technologies, the suit alleges.

The case also alleges violations of environmental justice principles.

The military failed to perform a supplemental EIS for the four facilities "despite the undisputed facts that viable alternatives to the Army's proposed baseline chemical weapons incineration process now exist which were not assessed during the prior NEPA process, and are being assessed and/or used at a number of other Army chemical weapons stockpile sites," the lawsuit says. Federal regulations require federal agencies to "[r]igorously explore and objectively evaluate all reasonable alternatives," the lawsuit says, citing the Code of Federal Regulations.

The military is using non-incineration destruction technologies at some of its sites, in part because Congress required DOD to launch a research and development program examining such options, particularly for use at two of the sites. But the Army is burning or plans to incinerate weapons at the four sites named in the suit.

"The unacceptable performance of the existing incinerators, even after hundreds of major modifications to their original designs, coupled with the Army's own acceptance of safer disposal options at four sites clearly meets the NEPA requirements for a supplemental study," CWWG Director Craig Williams said in a March 11 press release.

The Army referred media inquiries to the Justice Department (DOJ). A DOJ spokesman at press time would not comment on the lawsuit because the department is still reviewing the complaint.

The plaintiffs argue that incineration will produce "the uncontrolled release of many tons of hazardous air pollutants," such as chemical agent, dioxin, polychlorinated biphenyls and other chemicals. DOD has not assessed the impacts from such releases, they say.

When the Army first decided to use incineration throughout the destruction program in 1982, incineration was erroneously thought to be a mature technology and no feasible alternatives existed, the lawsuit states. Information on incinerator performance, safety and impacts was lacking, it says. But since then, the data gap has largely been filled "with scientific information showing the defects and dangers of incineration as well as the availability of safer more environmentally protective disposal approaches."

The 1988 programmatic EIS for this decision included just one paragraph discussing alternative technologies, the lawsuit notes. And following that, site-specific EISs did not consider any alternatives or updated health and environmental impacts and technology information, it says. Further, no supplemental EISs have been produced for the four sites named in the suit. Federal regulations require supplemental EISs when significant new information arises, it says.

The litigants list a slew of new information they say has not been considered in the NEPA documents, including "the thousands of modifications to the Army's baseline incineration system that have occurred since the original design and EIS; new regulatory standards for hazardous waste combustion facilities; ... numerous agent releases at the Army's existing incinerators" and new agent toxicity standards, according to the lawsuit. The plaintiffs say that unless the court acts in their favor, their health, property and other interests will be "irreparably harmed by the Defendants' illegal discharge of ultra toxic chemical poisons" such as chemical agent and toxic heavy metals.