Defense Environment Alert

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

Vol. 15, No. 24

November 27, 2007

ACTIVISTS FILE NEW LAWSUIT TO CHANGE CHEM DEMIL METHODS IN OREGON

Army efforts to dispose of aging chemical weapons are facing a renewed legal challenge in Umatilla, OR, where citizen activists have filed a fresh lawsuit against state regulators to force changes in the way the stockpile is being destroyed. An Army spokesman says the litigation should not slow down destruction of agent, but might delay the closing of the Umatilla site if secondary wastes generated cannot be destroyed before agent disposal ends.

The plaintiffs, led by citizen activist group GA.S.P., are seeking greater environmental protections at Umatilla, but also trying to speed up assessments by the Oregon Department of Environmental Quality (DEQ) and its parent body, the state Environmental Quality Commission (EQC), of whether practices on the site meet state legal requirements, according to a source associated with the plaintiffs in the new suit. The DEQ and EQC are defendants in the case, filed in a state court in Multnomah County, OR. The plaintiffs 'petition to the court is available on InsideEPA.com. See page two for details.

At issue in the case are three elements of the disposal program disposal of so-called "secondary" waste, such as protective suits, in a metal parts furnace, rather than a dedicated "dunnage" incinerator; the adequacy of carbon filters in smokestacks to protect against releases of harmful substances during incineration of chemical agent; and proposed incineration of mustard agent containing high levels of mercury.

The plaintiffs, which also include the Sierra Club and the Oregon Wildlife Federation, oppose incineration of chemical weapons waste and believe other methods such as hot-water neutralization should be used. While environmental groups have long opposed incineration of the stockpile at various sites and have sued over it, their efforts in recent years have particularly focused on getting the Army to use an alternative destruction option for mustard agent, some of which is tainted with mercury.

"The State has been aware for years of availability of neutralization to safely and quickly destroy mustard agent and has stubbornly refused to consider the option because the environmental agencies are heavily influenced if not controlled by the Army and its contractors," says a statement by Richard Condit, senior counsel for the Government Accountability Project, the law firm bringing the case.

A source with the DEQ takes issue with Condit's view, arguing that while many agencies have some say over the DEQ's actions, "I don't believe {the Army has] undue influence." The source adds that extra funds provided by the Army to process chemical weapons speed up the process, and do not compromise DEQ's objectivity.

An Army spokesman also refutes the allegations that the DEQ is not acting independently of the Army. "Oregon DEQ has inspectors on site every day, and they watch us very closely. They don't hesitate to let us know if something is wrong," the spokesman says, citing notices of violation and fines that DEQ issues periodically to the Army or its contractors for various infractions.

Speaking to Defense Environment Alert, Condit said "our focus is not on converting the VX campaign to neutralization, it is rather on the mustard campaign," as there is more time to influence what happens with mustard agent, given that mustard disposal will follow the VX campaign now underway. If the DEQ and EQC do not cooperate as a result of the fresh litigation, the possibility of asking the court for an injunction to stop incineration remains an option, Condit says.

The Army has previously argued that converting Umatilla to use a neutralization process would be costly and impractical. Mustard agent containing mercury is also a problem at a disposal site in Tooele, UT, where the Army has set affected containers of agent aside until a disposal regime can be put into place. Spokesmen with the Army's Chemical Materials Agency (CMA) have previously said that Tooele, where incineration using carbon filters is also envisaged, could serve as a model for Umatilla.

The spokesman for the Army confirms that the campaign to dispose of VX nerve agent will not be affected by the litigation, since it is not targeted directly by the lawsuit, but it could affect disposal of secondary waste from that campaign. VX incineration has begun and is proceeding according to plan, the spokesman says. The VX campaign is generating more secondary waste, to add to that left over from the just-completed GB nerve agent campaign, he says, and as a result the secondary waste needs to be disposed of soon.

The spokesman adds that the Army's contractor has just begun incinerating this secondary waste to avoid a pile-up at the end of operations at Umatilla, as a large volume of this material would delay closure of the site, adding to overall costs. The Army is waiting for the outcome of legal proceedings to see what the impact on the secondary waste disposal program will be, the spokesman says.

The drive to increase environmental protections at the Umatilla disposal site comes as pressure is mounting in Congress to eliminate the U.S. national stockpile of chemical weapons more quickly, after DOD in 2006 revealed it won't finish destruction of its stockpiled chemical weapons until 2023 - more than a decade after an internationally-mandated deadline of 2012.

Members of Congress led by Senate Minority Leader Mitch McConnell (R-KY) are seeking to impose a deadline on DOD and the Army of 2017 for all U.S. chemical weapons to be destroyed. The measure now hangs in the balance as House and Senate conferees consider whether to include it in the final version of the fiscal year 2008 defense authorization bill. A similar measure has already passed as part of the FY08 Defense Appropriations Act, added at McConnell's behest and which also calls for regular reports to Congress from DOD on the life-cycle cost of disposal operations.

The new lawsuit builds on an earlier case brought by the plaintiffs. It comes after the same plaintiffs won a ruling on similar issues April 17 from the same court, which required the EQC to re-examine the incineration of secondary or "dunnage" waste to ensure that it constitutes the best available technology (BAT), a unique requirement under Oregon state law. The court also required the EQC to examine whether incinerating mustard agent containing mercury, using carbon filters to trap any toxic release, would meet the BAT criterion.

The plaintiffs are now challenging the EQC's decision to sign off on DEQ's secondary waste decision in September, which found that incineration of secondary waste in the metal parts furnace and another incinerator known as the deactivation furnace was indeed the best available technology among those reviewed. The plaintiffs, however, charge that "the EQC's findings and conclusions are arbitrary and capricious, an abuse of discretion, contrary to law, and/or are not supported by substantial evidence."

Further, "the agencies failed to meaningfully consider alternative technologies or the public health impacts of all available technologies," the plaintiffs argue. They contend that use of the alternative incinerators, rather than a dedicated "dunnage" incinerator that was planned for when the site was designed, will cause harmful emissions of dioxins, PCBs, mercury, and chemical agents.

The plaintiffs are also challenging the state regulators' failure to date to complete an assessment on whether the existing incineration plan, using a carbon filter system, for disposal of mercury-containing mustard agent meets the BAT requirement. They further contend that the carbon filter system itself should be evaluated to determine its compliance with the BAT and with "no major adverse effect" requirements under state hazardous waste law. G.A.S.P. has previously charged that the Umatilla plant's carbon filters must be changed out before the start of a campaign to incinerate a new type of agent. The site recently began to destroy its stocks of VX, without first changing the carbon filters.

"We disagree [with G.AS.P.'s position]. We think we followed all the requirements," the DEQ source says.

The source also refutes one activist allegation, not specified in the lawsuit, that the Army and DEQ are deliberately taking too long to comply with state requirements in order to complete operations at Umatilla before a serious challenge can be mounted to their methods.

"We aren't dragging our feet over this," the source says, adding that the BAT review for mercury-containing mustard agent should be complete by mid-2008, in time for the mustard campaign to begin in mid-2009.