Defense Environment Alert
December 3, 2002

ACTIVISTS SUE ARMY TO HALT INCINERATOR STARTUP IN ALABAMA

Citizen activists and other groups have filed a lawsuit against the Army and state of Alabama, asking a federal district court to halt the incineration of stockpiled chemical weapons stored in Anniston, AL. The plaintiffs point to a plethora of new information they say should be factored into the Army's destruction decision for the stockpile. They also criticize the Army's failure to analyze feasible alternative technologies to incineration, noting alternatives are being used elsewhere.

Environmental groups, citizen activists, veterans groups and others filed the suit Families Concerned About Nerve Gas Incineration, et al. v. U.S. Department of the Army, et al. Nov. 19 in the U.S. District Court for the Northern District of Alabama, Eastern Division. The suit tries to stop the Army's incineration plans before they begin. The Army plans to start live agent trial burns at the Anniston Chemical Agent Disposal Facility (ANCDF) near the beginning of 2003. The groups allege the Army, Alabama Department of Environmental Management and the Army's contractor, Washington Demilitarization Co., have violated the National Environmental Policy Act (NEPA), the Resource Conservation & Recovery Act (RCRA) and related state statutes and regulations, the lawsuit says. The lawsuit is available on InsideEPA.com. See page 2 for details.

The groups want the Army to retrofit the incineration plant with a low-temperature neutralization technology they believe is safer and more efficient than incineration.

The suit cites six counts against the Army, its contractor and the state. First, the defendants failed to prepare a supplemental site-specific environmental impact statement (EIS) as mandated by NEPA, it says. It lists a number of things the Army's NEPA analysis fails to consider. These include "modifications to the Army's baseline incineration system that have occurred since the original design and EIS; new regulatory standards for hazardous waste combustion facilities; the revised operational schedule for ANCDF; the existing [polychlorinated biphenyls] and other contaminants already existing in the Anniston area; numerous agent releases at the Army's existing incinerators; the new agent toxicity standards promulgated by EPA and CDC; unexpected high levels of toxic metals in the chemical agent and munitions to be incinerated; gelled and solidified (undrainable) chemical agent waste in the munitions and containers to be incinerated; the failure to identify chemicals emitted from the existing chemical agent incinerators that cause agent alarms and the significant inadequacies of the Army's air monitoring system for agents; detections of chemical agents in post-incineration secondary waste; a significant number of engineering and technical problems identified at the existing incinerators; and, dozens of other specific problems associated with baseline incineration."

Under this same count, the plaintiffs say the Army has failed to evaluate "reasonable" alternatives to incineration. This "is a particularly significant omission given that the Army is: currently engaged in implementing alternative technologies for chemical weapons stockpile sites in Maryland and Indiana; and has recently decided on an alternative technology for Colorado; and, has identified and recommended a non-incineration alternative disposal technology for the stockpile site in Kentucky as [its] preferred approach."

Second, emissions from an incinerator, specifically chemical agent and other toxic compounds, will pose an imminent and substantial endangerment to the nearby population, in violation of the state waste statute and RCRA, the groups say in a press release put out by the Chemical Weapons Working Group (CWWB). The lawsuit alleges that the defendants have ignored evidence of undestroyed agent emissions from incinerators that have operated in Utah and on Johnston Island in the Pacific Ocean. The same result would likely happen in Alabama given the facility is modeled after these two plants, it says.

Third, the emergency preparedness program that is designed to respond to an accidental release at the facility is inadequate and out of compliance with state and federal regulations, the release says. The defendants lack a plan for identifying chemicals expected to be emitted from the facility, given agent air monitor alarms that have sounded repeatedly at the Utah plant indicating releases, it says.

Also, the lawsuit alleges that upcoming trial burns planned for the incinerator will "cause imminent and substantial danger to the population, given that the burns would include experimental procedures such as the burning of gelled chemical agent and all rocket components in the same furnace at the same time," the release says. State waste laws and RCRA prohibit operations that create an imminent and substantial endangerment to public health or the environment. The Army plans to burn undrained agent-filled rockets in the trial burns, an action the plaintiffs say "is particularly reckless at a time when the Governor of Alabama has identified numerous deficiencies in the Defendants' emergency preparedness capabilities to respond to such a release of chemical agent in Anniston," the suit says.

Further, the Army hasn't adequately characterized the waste it will burn in the facility, in violation of state and federal regulations, the release says.

Finally, the group raises environmental justice concerns, saying the incinerator will disproportionately impact African-Americans in the Anniston community in violation of the Constitution's Fifth Amendment, the release says. The lawsuit notes that the Army has "knowingly decided to use more modern, safer technologies for chemical weapons disposal in the four of the eight affected communities that are predominantly European American and knowingly decided to maintain the use of outdated dangerous incineration technology in the four remaining affected communities that have the highest percentage of minority residents."

"We are here today to say, once again, that Anniston deserves maximum protection from chemical agents, as mandated by the federal government," said Brenda Lindell, with the plaintiff Families Concerned About Nerve Gas Incineration, in the CWWG press release. "We are demanding accountability from the Army, its contractors and the state agency that granted the permit for this dangerous incinerator."

Citizen groups have previously tried to halt the incinerator plans, but have been unsuccessful. They challenged the state's issuance of hazardous waste permits to the Army for the incinerator through both administrative law and court reviews. One case went as far as the Supreme Court of Alabama, which earlier this year upheld state regulators' arguments that their inclusion of an EPA-developed cancer risk level in the permit, in fact, did not constitute the adoption of a rulemaking, subject to notice and comment provisions of Alabama law (Defense Environment Alert, Feb. 12, p11).