Defense Environment Alert

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

Vol. 14, No. 23

November 14, 2006

ARMY SEEKS TO REVERSE RULING THAT THREATENS CHEMICAL INCINERATION

The Army is asking a federal court to reverse a recent ruling that activists say could pressure the military to compromise on its plans to continue incineration of all types of chemical weapons at four of its stockpile sites. In particular, the ruling could add to the pressure activists have been exerting on the Army to abandon use of incineration for its mustard agent stocks.

In seeking a reversal of the ruling, the Army claims it contradicts the Administrative Procedure Act (APA) and Supreme Court precedent. Without a reversal or settlement in the case, the Army risks a suspension of incineration operations if the court sides with the plaintiffs, who argue the Army's environmental analysis of the chemical demilitarization program is inadequate.

At issue in Chemical Weapons Working Group (CWWG), et al. v. U.S. Department of Defense, et al. is a citizen challenge under the National Environmental Policy Act (NEPA) over the adequacy of the 1988 programmatic environmental impact analysis the Army conducted for its plan to burn chemical weapons as a disposal method. Of the eight remaining chemical stockpile sites, the Army has chosen to incinerate weapons at four of the sites, while using non-incineration methods such as neutralization at the other sites. The stockpile sites where the Army is using incineration are in Alabama, Arkansas, Oregon and Utah.

The U.S. District Court for the District of Columbia ruled Oct. 23 that the activist plaintiffs are permitted to supplement the Army's chemical demilitarization program record in order to make the case that the Army failed to fulfill its NEPA requirements when it did not consider new significant information affecting its technology choices for the chemical demilitarization program. Under NEPA, government agencies must conduct supplemental environmental impact analyses if significant new circumstances or information arise pertinent to the environment, CWWG says in a Nov. 1 press release on the ruling.

"The documents offered by plaintiffs include materials which are at least arguably within the universe of documents the defendants considered, or should have considered, in complying with their obligations under NEPA," Judge Richard K. Eaton wrote in his opinion. "For example, the expert testimony and other documents referenced in plaintiffs' motion address public health issues, risk assessment, monitoring, and types and quantities of hazardous air pollutants emitted by the Army's incinerators and are directly related to the Army's NEPA documentation. As plaintiffs allege NEPA violations, supplementation of the administrative record is appropriate." Relevant documents are available on InsideEPA.com.

But in a Nov. 9 filing, the Army asks the court to reconsider its decision, arguing the ruling contradicts the standard of review dictated by the APA, as well as precedent set by the Supreme Court. In the brief, the Army notes that the court is allowing plaintiffs to supplement the record with trial testimony during a state court action unrelated to any NEPA or APA claim. "The Supreme Court has made it clear that the review of an agency decision under the APA must be made based on the record that was before the agency at the time of the challenged decision," the brief says.

The activists have argued that new information has surfaced since the Army made its decision in the programmatic environmental impact statement (EIS) to use incineration as its baseline technology for disposing of the nation's stockpiled chemical weapons. Given the significance of this new information -- including numerous nerve agent releases from incinerator stacks and the decision to use non-incineration alternatives at other stockpile sites -- the Army should have produced a supplemental EIS that considers a number of factors, the plaintiffs say.

For instance, the Army should have considered "alternatives to incineration for the destruction of these materials, such as those being used at other sites; all significant impacts on the environment and public health from incineration; comparative risks of incineration vs. alternative technologies; thousands of modifications to the original incineration design; new agent toxicity standards promulgated by EPA and CDC; and unanticipated high levels of heavy metals in the agents and munitions," CWWG says in the press release.

But the Army says in its brief that "the alleged omitted issues as referenced by the Court . . . were considered and evaluated by the agency and the documents addressing these issues are contained in the existing administrative record."

A supplemental EIS, plaintiffs believe, will lead to a decision by the Army that an alternative technology is the environmentally preferred method, a CWWG source says. Given that, "the Army will be hard-pressed to say" it should keep burning chemical weapons, particularly the mustard agent, the source says.

While CWWG has long opposed the use of incineration for both nerve and blister agent, more recently it has singled out Army plans to burn mustard, a blister agent, and has pressured for a technology switch. Earlier this year, the group urged the Army to reconsider its plan to incinerate its 12,000-plus tons of mustard agent stocks, citing concerns over mercury and other contaminants in the blister agent that would be emitted during the combustion process (Defense Environment Alert, Sept. 5, p12).

If the court agrees with the plaintiffs that a supplemental EIS is necessary, it could impose an injunction on the Army's continued use of incineration at the four sites until the supplemental EIS is complete, the CWWG source says. Such a move would further erode the military's schedule for completing destruction of its stockpile. The United States has already conceded it will not meet an extended deadline of 2012 as prescribed by an international treaty."

We're in a position where we believe there is a compromise that could be reached [in this case] if the Army is willing to negotiate in good faith in its effort towards destroying the remaining material in the stockpile," the source says.

The Army is also facing litigation in Oregon state court challenging its hazardous waste permit for the incinerator there. The Army has won similar litigation challenging its incinerator operations in the past.Army environmental attorneys, through a spokeswoman, say the D.C. district court ruling "has no impact on the Army's decision whether to settle the case or not."