Defense Environment Alert

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

Vol. 15, No. 9

May 1, 2007

CITIZEN GROUPS POISED TO SUE ARMY OVER VX NERVE AGENT WASTE SHIPMENTS

At press time, citizen activists were poised to sue the Army April 30 to stop ongoing shipments of neutralizedVX nerve agent waste from the Army's Newport, IN, chemical weapons destruction facility for final destruction at a commercial incinerator in Texas. The activists say the shipments, which began in mid-April, and disposal process violate Indiana state law, federal waste law, the National Environmental Policy Act (NEPA), and federal law that prohibits the interstate transport of chemical agents.

The Sierra Club, Chemical Weapons Working Group (CWWG), and other citizen and environmental groups filed a notice of intent to sue April 26 over the Army's abrupt decision in early April to ship neutralized VX nerve agent from its Newport, IN, Chemical Depot across eight states to be incinerated by Veolia Environmental Services, in Port Arthur, TX. The Army has been stockpiling the neutralized wastewater, known as hydrolysate, after facing years of public opposition that successfully blocked the Army from sending it for secondary treatment to commercial facilities in Ohio and New Jersey.

Shortly after signing a contract with Veolia, the Army began shipping the hydrolysate to Veolia April 15, despite citizen activists' protests that the decision lacked public input, violates environmental justice principles and contradicts congressional guidance (Defense Environment Alert, April 17, p 11). Activists favor on-site secondary treatment in Indiana.

Citizen and environmental groups now plan to ask a federal district court to immediately halt the shipments, as allowed under the Resource Conservation & Recovery Act (RCRA). At the crux of their arguments is alleged new information from confidential sources at the Newport facility indicating that samples from the hydrolysate are showing levels of VX agent at 50 parts per billion (ppb) and higher as well as a highly toxic byproduct known as EA2192. These high levels pose "unacceptable risk to public health and the environment" for transporting the hydrolysate, and the "new information also raises significant concerns that the off-site transport of the [hydrolysate] will violate State and federal laws," the activists say in their intent-to-sue notice.

Specifically, they say that Indiana law governing transportation of chemical munitions cannot be met if false data on these levels of VX and EA2192 are used. Both state law and RCRA require that hazardous waste be sufficiently tested and characterized prior to shipment and disposal, the notice says. "We have every reason to believe that the [hydrolysatel being shipped and to be shipped off-site is not now adequately characterized by the prior testing because some VX and some EA2192 has either reformed over time or was missed in the original sampling procedures," it says. Without new testing, the Army is violating RCRA, it says.

The groups allege the levels of VX and E2192 remaining also violate the Army's own policies not to allow off-site shipment of hydrolysate with more than 20 ppb VX or 100 ppb EA2192. They say a new environmental impacts analysis should be done under NEPA, given these higher levels of VX and byproduct.

In an April 27 tele-conference press call with reporters, CWWG Director Craig Williams also noted that U.S. law prohibits the transport of chemical munitions, and that the international body that oversees the Chemical Weapons Convention still considers the hydrolysate a chemical warfare agent and will monitor its secondary treatment in Texas. If the hydrolysate is still considered a chemical agent and it is being shipped across state lines, then the Army is in violation of this federal law, Williams said. Relevant documents are available on InsideEPA. com. See page 2 for details.

A spokesman for the Army's Chemical Materials Agency (CMA) says the Army has no plans to re-test the hydrolysate, noting that an earlier Centers for Disease Control & Prevention report on other hydrolysate that was several years old had found no reformation of the chemical agent. Also, the Army has added additional sodium hydroxide to further stabilize the hydrolysate, he says.

The Army is "cooperating" with the Indiana Department of Environmental Management in responding to an April 17 letter from the citizen activists' attorney that sought to have addressed the questions over the alleged high levels of VX and byproduct in the hydrolysate, the CMA spokesman says.

The spokesman would not comment on the notice of intent to sue.

Lawmakers, citizen activists and others are watching whether the Army's latest plan will be successful because it may have repercussions for other chemical weapons stockpile sites, particularly DOD's Assembled Chemical Weapons Alternatives (ACWA) program. While neutralized waste from both ACWA sites in Kentucky and Colorado is expected to be treated on-site, the Pentagon's top acquisition official earlier this year signaled the door was open to other methods, if costs were less.

"We are watching Newport to see what happens," because the program was directed to consider all cost reduction possibilities, an ACWA spokeswoman says. In a Jan. 10 acquisition defense memorandum memo, DOD acquisition head Kenneth Meg notes current cost estimates for ACWA reflect on-site treatment of hydrolysate, but calls on the ACWA program manager to "continue to pursue off-site treatment and disposal, as long as doing so would be economically beneficial to the Department."

The decision to ship from Indiana to the Texas facility also triggered reaction from Colorado Sen. Ken Salazar (D), who last year had sought to ensure that the Army considered all costs - including potential legal challenges - when it analyzed hydrolysate disposal alternatives for the Pueblo, CO, site's waste.

In an April 17 letter, Salazar notes that "it is vital" that decisions like that regarding the Indiana waste, which are "of such importance to public safety and to our compliance with treaty obligations, be made with public input and with all costs considered." He sent the letter to Army assistant secretary for acquisition, logistics and technology Claude Bolton.

Salazar also asks Bolton to describe the public input process used when the Army made the decision to ship to the Texas site and those public comments received, and to provide the cost analysis it used to inform its decision, including potential legal costs, as well as an analysis of the delays or impacts a court challenge will have on disposal. He notes that such decisions should "not drive up costs or delay destruction activities."

The Army has been drafting a response, the spokesman for CMA says. Ile source did not know if Salazar had had any discussions with Bolton on the issue. A spokesman for Salazar did not respond to phone calls.

In related news, the ACWA program's first and only director, Michael Parker, retired from his position April 3. Kevin Flamm, most recently the program manager for overseeing CMA's chemical weapons destruction program, has been named acting program manager for ACWA.