Defense Environment Alert

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

Vol. 15, No. 8

April 17, 2007

CITIZENS EYE LEGAL OPTIONS TO HALT ARMY'S NERVE-AGENT WASTE SHIPMENTS

Citizen groups are fighting to block ongoing Army shipments of neutralized chemical agent from its Indiana chemical weapons depot to a commercial plant in Texas, which began earlier this week.

The Army is citing upcoming interim international treaty deadlines mandating secondary waste be fully treated as a driver for quickly implementing its plan to incinerate the waste at the Port Arthur, TX, facility, but citizen activists are crying foul, contending Army plans for off-site shipment violate congressional guidance while on-site disposal would be safer and has full public support.

In an April 16 announcement, the Chemical Weapons Working Group (CWWG), a watchdog of the military's chemical weapons disposal program, said it was seeking to have the Indiana Department of Environmental Management or Indiana state troopers halt the shipment until completion of an independent analysis of the waste. The group was also communicating concerns to members of Congress, the announcement says. The shipments began April 15, according to the Army.

CWWG had earlier said it was considering litigation to block the Army's plan, alleging violations of several state and federal environmental laws.

The dispute signals continuing conflict between the Army and citizen groups over whether to destroy the secondary waste accumulating at the Newport, IN, Chemical Depot on- or off-site, months after the Army dropped plans to ship the waste to New Jersey.

At issue is how and where to treat secondary waste that results from the Army's neutralization of its stockpile of bulk VX nerve agent at the Newport facility. In the wake of the terrorist attacks in 2001, Defense Department leaders decided to send neutralized waste from Newport off-site to a commercial facility for disposal in order to expedite elimination of the stockpile due to the potential risks that continued storage posed.

For the past five years, the Army has been attempting to send the waste off-site, first to a facility in Ohio, and more recently to New Jersey, but both efforts were scuttled due to public opposition. Activists have long alleged off-site treatment raises chemical security, environmental and worker safety risks. Communities along the transportation routes to these previous sites also opposed it.

The Indiana community has supported disposal on-site in Newport, citizen activists say, with one activist pointing out in an April 12 conference call with reporters that had the Army originally chosen a plan to destroy the waste on-site, it would have taken less time than it is now taking for disposal off-site.

The latest dispute comes after the Army quietly awarded a $49 million contract to Veolia Environmental Services April 5 to incinerate the growing volume of wastewater left from the Army's continuing neutralization of bulk chemical agent stored in Newport. Veolia plans to incinerate the wastewater at a facility in Port Arthur, TX, the Army says. The plant is located in a predominantly African-American community.

Citizen activists take issue with the plan on a number of counts, saying it contradicts what the community in Indiana has sought - to destroy the secondary waste on-site, primarily for safety reasons, but also for job creation. They also say it violates environmental justice principles and contradicts congressional guidance, issued in 2006, to seek public views and support on plans to ship neutralized chemical agent off-site for final disposal.

In the conference report accompanying the 2007 Defense Authorization Act, which passed last year, Congress told the defense secretary that for any site chosen for off-site treatment of neutralized chemical agent, he "should propose a credible process that seeks to gain the support of affected communities." The language was added by a New Jersey congressman opposed to the Army's plan to ship the waste to a New Jersey facility. DuPont pulled out of the New Jersey plan in January, shortly after citizen groups sued over the proposal. As the reason, DuPont said it was facing an approval process that would "be lengthy and arduous."

"Clearly the military has thumbed its nose at Congress by keeping their actions secret from local residents in Texas, Indiana and all along the shipment route," CWWG Executive Director Craig Williams said in an April 10 press statement.

Activists also contend the Army was surreptitious when it signed the contract, not notifying the public of the plan and violating the congressional direction. It also increases from past proposals the number of states the waste would have to cross for final treatment.

Opponents are concerned that the new disposal plan requires incineration - a controversial method of disposal that raises air and toxics emission concerns - rather than biotreatment. And they say they may have a hard time raising public awareness about the plan because "Port Arthur is a sacrifice zone for the country's toxic waste," Williams noted in the tele-conference call. "That creates a different climate in the public arena as to the effectiveness in pushing back on this." Public officials, including the governor of New Jersey, had opposed previous plans, but in this case, it is uncertain whether local officials will oppose the plan, he said.

The group had earlier said it was considering litigation to block the Army's plan, alleging violations of several environmental laws, including the Indiana Environmental Protection Act, which has provisions barring actions harming the environment if prudent, environmentally safe alternatives exist; citizen suit provisions under the Resource Conservation & Recovery Act (RCRA), a federal waste law; the National Environmental Policy Act, alleging the Army failed to consider viable alternatives to the Port Arthur site; or an environmental justice complaint filed with EPA, alleging violations of a 1994 executive order on environmental justice, according to Williams.

The order requires federal agencies to make environmental justice part of their mission and address disproportionate environmental effects on minority or low-income populations. Another possibility is a federal discrimination complaint under the Fifth amendment of the Constitution, he said.

Outside of the legal realm, the citizens are also weighing whether to ask the DOD or Army inspector general to investigate CMA's compliance with environmental, transportation and safety laws, compliance with the congressional mandate to provide "maximum protection" to the public and workers in chemical weapons disposal actions, and compliance with the FY07 defense act's guidance on public acceptability regarding off-site agent waste decisions, according to Williams.

A spokesman for the Army's Chemical Materials Agency (CMA) says the parameters for the Army's
decision were: that the disposal process be safe, that it fit within current budget constraints for the program, and that the process allow the United States to receive credit under an international treaty known as the Chemical Weapons Convention (CWC) for final destruction of the material.

The United States is under an end-of-the-year deadline under the CWC for disposing of 45 percent of its chemical weapons stockpile. But activists dismiss the argument, pointing out that the United States faces no repercussions for missing the deadline. In addition, officials have already stated publicly that they will miss the final 100 percent destruction deadline of 2012.

They also argue the Army's rationale for off-site disposal has changed over the years.