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


Vol. 13, No. 19--September 20, 2005


ACTIVISTS DEVISE LEGAL STRATEGIES TO ATTACK ARMY VX DISPOSAL

Environmental groups are formulating a strategy that combines international, federal and local law for a potential lawsuit to halt the Army's controversial plan to dispose of neutralized VX nerve agent from its depot in Newport, IN, in the Delaware River. This is the second disposal location where the Army has run up against opposition to its final treatment plans for the waste.

The arguments against the plan combine provisions of the Clean Water Act, federal defense authorization law and the United Nations' Chemical Weapons Convention (CWC), the treaty that requires signatories to destroy all chemical weapons stockpiles by an extended deadline of 2012. The Army, however, argues that its plans violate none of these laws.

The Army is currently destroying 1,269 tons of VX nerve agent stored at Newport, a process that is expected to create 4 million gallons of caustic wastewater known as hydrolysate by the end of 2007. The Army then plans to transport the hydrolysate to the DuPont Chambers Works facility in Deepwater, NJ, for secondary treatment. DuPont would discharge the resulting wastewater into the Delaware River.

An Army spokesman says the plan will proceed pending the outcome of an ongoing evaluation by the Centers for Disease Control and Prevention (CDC) and EPA.

But environmentalists say the plan is fraught with danger for people who live along the transportation route, DuPont workers and riparian wildlife along the Delaware River. They point out that an April 2005 study by CDC and EPA found that trace amounts of VX can be found in the hydrolysate, and that the wastewater is flammable at temperatures between 68-88 degrees Fahrenheit (Defense Environment Alert, July 26, pl5).

They say the plan could set a precedent that would allow additional transportation of VX hydrolysate to New Jersey from other sites, such as the Blue Grass depot in Richmond, KY. Unless the Army abandons the plan, the service can expect lawsuits that will likely push the Newport VX disposal past the 2012 destruction deadline.

"It doesn't seem logical that they are continuing down this path, when it seems clear that they are precluded from it by law," says a source with the Delaware Riverkeeper, a Pennsylvania-based environmental group.

The environmentalists 9 arguments begin with a combination of CWC treaty language and federal law. CWC's Article II defines chemical weapons as "toxic chemicals and their precursors," which cover trace VX components and phosphonates in the hydrolysate, the Delaware Riverkeeper source says. The National Defense Authorization Act for fiscal year 1995 prohibits DOD from transporting "any chemical munition that constitutes part of the chemical weapons stockpile out of the State in which that munition is located."

The combination of these two laws make it illegal to transport the Newport VX anywhere outside the state of Indiana, the activists pointed out in a Sept. I letter to Army Assistant Secretary for Acquisitions, Logistics and Technology Claude Bolton.

"They need to do [the disposal] in Newport, where the hydrolysate is," says a source with Green Delaware, an environmental group.

But a spokesman for the Army's Chemical Materials Agency (CMA) says the plan is in complete compliance with both international and federal law. He points out that the Army transported four million gallons of wastewater from its Aberdeen Chemical Agency Disposal Facility in Maryland for off-site treatment and disposal.

"The destruction of mustard agent at Aberdeen occurred safely and without incident," the spokesman says. "[This] clearly demonstrates that the fundamental approach of using a properly permitted and regulated commercial facility is safe for the public and the environment."

Environmentalists also charge the Army's plan violates provisions of the Clean Water Act. The Delaware Riverkeeper source points out that section 301(f) of the act prohibits the discharge of "any radiological, chemical, or biological warfare agent ... into the navigable waters."

Moreover, EPA has delegated its Clean Water Act permitting to New Jersey - and the New Jersey Department of Environmental Protection's recent draft permit for DuPont bars the company from accepting hydrolysate. While DuPont can ask for the permit to be amended, "there would be a big whoop-dee-doo about it," the Green Delaware source says. "I don't think it would be an easy thing for DuPont to do."

The CMA spokesman said the Newport disposal plan complies fully with the Clean Water Act, but did not elaborate.

Finally, the Green Delaware source argues that some of the communities through which the Army plans to transport its VX hydrolysate are opposed to the plan. They can be expected to pass ordinances that could prohibit or restrict the transportation, such as a law that would force hydrolysate- bearing vehicles to travel at speeds no greater than 5 mph, for example.

The CMA spokesman dismisses such arguments. He points out that the April CDC-EPA study found that the Army's transport plan "meets Department of Transportation regulations, and precautions are adequate to protect the public, workers and the environment."

The Green Delaware source questions the Army 's interpretation of the law. "The Bush Administration has shown a great willingness to give the Pentagon the right to override or ignore environmental laws," the source says. "[But] my sense is that the Army's ship is sinking."

Previous disposal plans for the VX were halted in 2003 when local officials in Ohio thwarted a plan to send the hydrolysate to a facility there, in large part because of vocal opposition from residents near the Ohio plant (Defense Environment Alert, Oct. 21, 2003, p5).