Defense Environment Alert

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

Vol. 15, No. 17

August 21, 2007

ACTIVISTS FEAR RULING COULD SPUR WIDER OFF-SITE AGENT WASTE DISPOSAL

Environmentalists are bracing for potentially far-reaching consequences from an Indiana court ruling that rejected a move by activists to block shipments of nerve agent waste from Indiana to Texas for destruction, even as they prepare to challenge the court's findings.

Activists opposed to the transportation of the neutralized VX agent fear that should they lose their fight, a precedent would be set that could encourage the shipment off-site of similar waste from two remaining chemical weapons stockpiles. The outlook is further clouded by a recent report from the National Academy of Sciences (NAS) that recommends off-site disposal of the VX waste, activists say.

In its Aug. 3 ruling, the U.S. District Court for the Southern District of Indiana denied a motion by environmentalists seeking an injunction to stop shipments of VX waste, or hydrolysate, from the Army's Newport, IN, facility to a commercial incineration facility in Port Arthur. The court rejected arguments by the plaintiffs, led by the Sierra Club, that the Army is contravening the Resource Conservation and Recovery Act (RCRA), the National Environmental Policy Act (NEPA), Indiana waste laws and federal law banning the interstate transport of chemical agents (Defense Environment Alert, Aug. 7, p28). Activists believe the level of agent that remains in the hydrolysate is high enough to pose public and environmental threats if transported, and have other concerns. They support on-site treatment instead.

An activist with the Sierra Club says "it seems to me that the court either missed some of the basic facts, or misinterpreted the law," and promises a motion for reconsideration will be filed with the same court in the coming weeks. Should that motion fail, the source says, the plaintiffs in the case, Sierra Club, et al. v. Robert M. Gates, Secretary of Defense, et al., will launch an appeal to the 7th Circuit Court of Appeals.

While the litigation "technically has no direct implications" for disposal of chemical weapons at sites in Pueblo, CO, and Bluegrass, KY, "as a practical matter, it could be very serious," the source says. Chemical weapons stock- piled at those two sites are slated to be neutralized, and will then need to go through a secondary waste destruction process, either on- or off-site.

As it stands, there is no stated change in the policy to destroy chemical agent hydrolysate, which is categorized as a "secondary waste" under RCRA, at the Pueblo and Bluegrass sites, but the military remains open to the possibility of off-site treatment. Destruction processes at those sites are managed by DOD's Assembled Chemical Weapons Alternatives (ACWA) program, rather than the Army's Chemical Materials Agency (CMA), which oversees the Newport Chemical Depot chemical weapons destruction.

"Hopefully, the managers of the ACWA program will avoid the same mistakes" made by CMA, the Sierra Club source says. In a Jan. 10 acquisition defense memorandum, then-DOD acquisition head Kenneth Krieg called 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."

Activists are concerned that this cost issue may arise at ACWA, driving a move away from on-site disposal of secondary wastes. In its July 26 report, NAS calls for shipment of secondary wastes - which include such materials as used carbon from filters and chemical protection suits - off-site from Newport for disposal to achieve cost savings. The NAS study, however, pointedly did not look at Bluegrass and Pueblo, according to Peter Lederman, chairman of the NAS committee that drafted the document.

Lederman's panel notably found that sending secondary waste away from Newport for destruction would save the Army a year to eighteen months in eliminating the chemical weapons stockpile at the site, which would consequently save money. The panel also found that Newport lacks the incinerator capacity to dispose of all the secondary waste generated.

Another problem that will arise-should legal challenges to the Newport shipments fail is non-compliance with international treaty law, according to a source with the environmental group Global Green USA, which campaigns for the destruction of chemical weapons worldwide. The Global Green source says that while the group agrees with the drive to dispose of the weapons quickly, the way VX shipments from Newport are being handled is secretive and illegal. "By doing this as secretively as [CMA] did... [it] went against the spirit and letter of the law on hazardous waste," says the source.

This source says the court's ruling also conflicts with the Chemical Weapons Convention, the international treaty that governs chemical weapons monitoring and destruction, which bars transportation of chemical agent off-site. The requirement for on-site destruction of the material is a security concern because otherwise verifying destruction of agent would be more difficult, the source says, and if destruction cannot be verified, confidence of the Convention's signatories in the process set up to destroy weapons could be lost. The United States might not, for example, be confident that Russia is destroying its chemical weapons stockpiles as agreed,
the source explains.