Defense Environment Alert

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

Vol. 15, No. 9

May 1, 2007

COURT RULING FLAGS ARMY'S MUSTARD AGENT INCINERATION OBSTACLES

A recent state court ruling in Oregon underscores the serious hurdles the Army is facing over its plan to incinerate stocks of mustard chemical agent contaminated with high levels of mercury, according to environmentalists.

While denying the ruling is a major setback, an Army source concedes it is wrestling with questions over how it will address mustard stocks contaminated with mercury that are currently slated to be incinerated, saying that an alternative disposal option - neutralization - remains a possibility.

While the court did not revoke the operating permit for the Army's Umatilla Chemical Agent Disposal Facility, OR, it did find Oregon regulators failed to meet certain statutory obligations at the Umatilla facility, and said they must "revisit" determinations about the best technology and procedures for addressing mercury contamination in mustard stocks as well as dioxin emissions when incinerating dunnage waste, comprised of agent-contaminated material like protective suits and packing materials.

Mick Harrison, lead trial counsel for the petitioners in the case, GASP v. Environmental Quality Commission (EQC), called the ruling "a substantial victory for concerned citizen and environmental groups. It effectively prohibits incineration of the mustard and dunnage waste streams at the facility until [Oregon regulators] have thoroughly examined the question of the best technology and procedures for dealing with both the mercury contamination in the mustard agent and dioxin formation from incineration of the dunnage waste," he said in a press release. The materials that were destined for the dunnage incinerator - an incinerator that the Army says it will not now use - present a problem because they may release dioxin when burned, according to the petitioners. The court order is available on Inside EPA. com.

The ruling may bolster citizen activists' push, made over the last year, to get the Army to reconsider its plan to incinerate its 12,000-plus tons of mustard agent stocks at various sites due to concerns over mercury and other contaminants in the blister agent that would be emitted during the combustion process.

In the case, GASP, a local activist group, contends that the EQC failed to meet its statutory duty to determine that the facility will employ "the best available technology" for disposal of the agent and munitions and will have "no major adverse effect on public health and safety" or the "environment of adjacent lands." These requirements appear in an Oregon state statute that goes beyond the requirements of the federal Resources Conservation and Recovery Act.

"Incineration does not and cannot destroy mercury, but simply disperses mercury, a toxic and persistent poison, into the environment," Harrison said in the press statement. A source with GASP privately doubted, however, that the EQC would revise its assessment of the adequacy of Army plans, based on previous experience.

A source with Sierra Club contends though that regardless of EQC's action, the Army cannot meet existing rules under the Clean Air Act laid down in maximum achievable control technology (MACT) emissions standards for hazardous waste combustors. With so much mercury in the feedstock, the source says, the Army could be exposed to lawsuits in federal court for exceeding emissions limits. Scrubbers would not adequately remove the mercury from incineration exhaust, the source says.

The Army, however, denies the ruling is a major coup for the anti-incineration camp, but confirms it has a distinct problem with certain ton containers of mustard agent. The containers - estimated to number one in ten of the total stock - were found at both the Umatilla site and in greater numbers at the Army's Tooele, UT, facility. The combined number of ton containers with dangerously high mercury levels may be approximately 900, of which 260 are at Umatilla, a spokesman for the Army Chemical Materials Agency (CMA) explains.

The Army began incinerating mustard stocks last August at its Tooele site, but has set aside those contaminated with mercury. Generally, the Army has left mustard stocks as the last to be destroyed, as other chemical warfare agents such as nerve gas are a more pressing priority to destroy, the CMA source says. Sources with the Chemical Weapons Working Group (CWWG) claim the Army has left the mustard until last because they are unsure how to dispose of it, and argue that the Army should use hot-water neutralization to dispose of the mustard as it did at a facility in Aberdeen, MD.

Claims by CWWG that the Umatilla and Tooele sites could be retrofitted to use neutralization are rejected by the CMA source, who says that entirely new plants would have to be built. The Aberdeen facility cost $500 million to build and operate.

But neutralization remains an option, the source says, noting that the Army will not incinerate the affected mustard agent or change its policy for disposal until the EQC review is complete.