Defense Environment Alert

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

Vol. 15, No. 22

October 30, 2007

CITIZENS CITE NEW INFORMATION IN LEGAL BID TO BLOCK VX WASTE

Launching a new phase of litigation against the Army, citizen groups in a potentially precedent-setting case are citing new information in asking a federal district court in Indiana to rule that the Army is violating environmental and defense laws by shipping nerve agent wastewater to Texas for incineration. The activists are bolstering their environmental claims - some of which have been previously iterated to the same court with additional information that the Army allegedly withheld during an earlier phase of litigation.

At issue in the case, Sierra Club, et al. v. Robert Gates, Secretary of Defense, et al., is the Army's out-of-state shipments of VX nerve agent wastewater from an Army depot in Newport, IN, to be incinerated at a commercial plant in Texas.

Citizens have long called for the Army to use on-site technology to dispose of the caustic wastewater known as hydrolysate that results after VX nerve agent is neutralized. But the Army - defeated twice through public opposition in its efforts to truck the hydrolysate to off-site locations - quietly signed a deal earlier this year to ship the material to a third location, in Port Arthur, TX, where it is being destroyed by a commercial incinerator.

Citizen groups including the Sierra Club, Chemical Weapons Working Group (CWWG), a national coalition of citizen watchdog groups who advocate safe destruction of chemical weapons, and others - filed suit earlier this year, but failed to convince a federal court in Indiana to grant a preliminary injunction halting the shipments.

Now the groups are trying a different legal tactic. Rather than appealing the preliminary injunction ruling or asking for reconsideration, they are pursuing a full trial on the merits. The plaintiffs believe their chances of success are higher pursuing this strategy, although they risk a potentially time-consuming legal process, concedes a CWWG source. "No question time is a commodity," but the bar is set lower for them to prove their case under this process compared with the criteria used to win a preliminary injunction, the source says.

At this point, the groups are asking the judge to make a summary judgment ruling, which if granted would be a shorter process than having to proceed to trial. The groups legal filing is available on InsideEPA. com. See page 2 for details.

While some of the claims being made in the recent legal brief reiterate earlier claims, the groups say additional information is now available and new arguments are made.

"Although some of these points were raised during the preliminary injunction hearing in which the judge found for the Army, the plaintiffs believe that new information including but not limited to on-site treatment capabilities, previously hidden from the court, along with additional arguments on the merits of the claims will result in a favorable finding during this procedure," CWWG says in a press release.

The case could have broader impacts, with some environmentalists fearing that allowing the off-site shipments to proceed could set a precedent that could encourage the shipment off-site of similar waste from two remaining chemical weapons stockpiles. International treaty interpretations are also a possible issue with the case, as one environmentalist has argued the court's original ruling to allow the shipments conflicts with the international treaty known as the Chemical Weapons Convention (CWC), to which the United States is a party. The CWC bars off-site transport of chemical agent.

In their legal brief filed Oct. 22 with the U.S. District Court for the Southern District of Indiana, activists say the Army withheld from the court's earlier review an analysis of three on-site treatment options that the Army evaluated for the Newport waste in 2004 and 2005 and determined to be "feasible alternatives" to shipping off-site. It did not provide this information in the administrative record for the case, did not supplement an existing environmental assessment to include this evaluation, and did not provide for public notice of, public review of, or public comment on the Army's analyses of these feasible alternatives, the activists charge. Failure to take the enumerated actions violates the National Environmental Policy Act (NEPA), the CWWG source says.

"Withholding information about these activities undermines the very cornerstone of [NEPA], a federal law requiring open review of alternatives for actions undertaken by the federal government that could have environmental consequences," Craig Williams, director of CWWG says in the press release on the filing.

The information refers to the Army's determination that three on-site disposal options for hydrolysate were feasible. It also refers to the Army's decision to choose one option as a contingency plan if its plans to ship off-site to a DuPont facility in New Jersey failed, which did occur, according to the brief. The Army went so far as to have its prime contractor for the Newport neutralization plant prepare environmental permit applications and draft a NEPA analysis for the on-site option, the brief says.

The groups also restate their allegation that the Army violated defense authorization law. The CWWG source says the groups are trying to better articulate their position on this, after their argument was rejected in the preliminary injunction ruling.

The plaintiffs claim that the Army violated existing defense law "by transporting chemical weapons and chemical agents across State boundaries," which is prohibited by defense law. At issue is whether detectable levels of VX remaining in the hydrolysate after neutralization make the wastewater a chemical agent. According to the brief, the parties do not dispute "That the shipped VX [hydrolysate] contains VX precursor compounds listed in schedule two to the Chemical Weapons Convention (CWC or Treaty) and regulated under the CWC." Defendants have also conceded that under the CWC, VX "is not considered destroyed until the VX [hydrolysate] has been incinerated or otherwise treated to destroy the CWC-regulated precursor compounds," the brief says.

The plaintiffs are pushing EPA to review the Army's methods for determining the toxicity of the hydrolysate, claiming the Army's methods are out of compliance with EPA's requirements. Plaintiffs say they will also consider litigating against EPA, if the agency fails to conduct a thorough investigation.

As they did in the preliminary injunction request, the groups are alleging the Army failed to adequately assess environmental justice impacts to the community where the Texas incinerator resides. The community near the incinerator is predominantly African-American and living below the national poverty level.

The groups, however, have dropped the earlier claims they made under the Resource Conservation & Recovery Act in their request for a preliminary injunction.

The plaintiffs ask the court to grant a motion for partial summary judgment on the NEPA and defense law claims and to "permanently enjoin Defendants from any further violations of these federal laws, order Defendants to cease their shipments of YX hydrolysate (VXH) to Texas and cease incineration of VXH at the Port Arthur, Texas, incineration facility, order Defendants to prepare the Environmental Impact Statements and Environmental Assessments required by NEPA, and provide all other appropriate relief."

In a statement issued in response to the legal brief and CWWG press release, the Army says its policy is not to comment on the specifics of ongoing litigation, but says that the move "was not unexpected."

"As always, the Army will meet all legal obligations required of it as plaintiffs take this through the legal system," the statement says.

To date, the Army has transported without incident 226 containers of hydrolysate to the Veolia plant in Port Arthur, according to the Army.