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Chemical Weapons Working Group v. United States Dep't of Defense

August 19, 2009

CHEMICAL WEAPONS WORKING GROUP, ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF DEFENSE, AND UNITED STATES ARMY, DEFENDANTS, AND EG&G DEFENSE MATERIALS, INC., DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: Richard K. Eaton United States District Judge*fn17

MEMORANDUM OPINION

Plaintiffs Chemical Weapons Working Group, et al. ("plaintiffs")*fn1 commenced this action, pursuant to the National Environmental Policy Act, 42 U.S.C. § 4332 (2000) ("NEPA"), to challenge the United States Army's ("Army") plan to destroy by incineration, at storage sites around the country, chemical weapons made during and after World War II (the "Plan" or "Army's Disposal Plan"). Plaintiffs' claims relate to four incineration facilities located at: Anniston, Alabama; Pine Bluff, Arkansas; Tooele, Utah; and Umatilla, Oregon (collectively, the "Challenged Sites").*fn2 In their complaint, plaintiffs allege that defendants violated NEPA by failing to provide a supplemental analysis reflecting new alternative destruction technologies that could be used at the Challenged Sites.*fn3 Plaintiffs seek declaratory and injunctive relief, citing violations of NEPA and the Administrative Procedure Act, 5 U.S.C. § 701 ("APA"). Defendants, the United States Army and Department of Defense ("defendants") move for summary judgment and plaintiffs cross-move for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c). See Fed. Defs.' Mem. Supp. Mot. Summ. J. on All Claims, Docket No. [26], ("Defs.' Mem."); Pls.' Mem. Supp. Mot. Summ. J., Docket No. [28], ("Pls.' Mem."). In addition, defendant-intervenor EG&G Defense Materials, Inc. ("EG&G" or "defendant-intervenor") moves for summary judgment. See EG&G Defense Materials, Inc.'s Mem. Supp. Mot. Summ. J., Docket No. [30], ("Def.-Int.'s Mem."). Jurisdiction lies pursuant to 28 U.S.C. § 1331. For the reasons set forth below, the court grants defendants' and defendant-intervenor's motions for summary judgment and denies plaintiffs' cross-motion.

BACKGROUND

The Army's Disposal Plan is the result of a congressional mandate to destroy the nation's stockpile of chemical warfare agents. See 50 U.S.C. § 1521(a). The impetus for congressional action was the execution of the 1993 Chemical Weapons Convention by the United States, which required signatory nations to destroy their chemical weapons stockpiles. See Convention on the Prohibition of the Development, Prod., Stockpiling, and Use of Chem. Weapons and on Their Destruction art. IV, ¶6, Jan. 13, 1993, 32 I.L.M. 800.*fn4

The chemical weapons stockpile is stored at eight sites in the continental United States and at a prototype incineration facility, the Johnston Atoll Chemical Agent Disposal System ("Johnston Atoll"), in the Pacific Ocean. See Chem. Stockpile Disposal Plan Final Programmatic Envtl. Impact Statement (January 1988), Administrative Record ("AR") Doc. 2 ("AR Doc. 2") at ix. Each site contains varying amounts and types of chemical agents:

Chemical agents included in the stockpile are of two basic types--nerve and blister -- and are configured in a variety of munitions and bulk containers. All of the agents and munitions are at least 19 years old, and some are more than 40 years old . . . . All of the lethal chemical agents are currently stored in three basic types of configurations: (1) projectiles, cartridges, mines, and rockets containing propellant and/or explosive components, (2) projectiles and aircraft-delivered munitions that do not contain explosive components, and (3) a large quantity (about 65% of the total [continental United States] inventory) of bulk agent stored in oneton steel containers.

AR Doc. No.2 at ix--xi.

NEPA declares a national policy of protecting and promoting environmental quality. See 42 U.S.C. §§ 4321, 4331(a). NEPA seeks to achieve this goal by setting procedures that federal agencies must follow when undertaking projects that will affect the environment. Regulations established by the Council on Environmental Quality ("CEQ"),*fn5 require agencies to take into account "the range of actions, alternatives, and impacts to be considered in an environmental impact statement." 40 C.F.R. § 1508.25. Central to NEPA's national policy is a requirement that federal agencies prepare an Environmental Impact Statement ("EIS") when issuing "proposals for . . . major federal actions significantly affecting the quality of the human environment . . . ." 42 U.S.C. § 4332(2)(C). An EIS is a public document designed to ensure that NEPA policies and goals are incorporated early into the programs and actions of federal agencies. An EIS is intended to provide a full, open, and balanced discussion of significant environmental impacts that may result from a proposed action and alternatives, allowing public review and comment on the proposal and providing a basis for informed decision-making.

32 C.F.R. § 651.40. Preparation of an EIS serves NEPA's goal of protecting the environment by ensuring an agency takes a "hard look" at its project's environmental effects and by making available to the public relevant information so that they "may also play a role in both the decisionmaking process and the implementation of that decision." Robertson v. Methow Valley Citzens Council, 490 U.S. 332, 349 (1989). Preparation of an EIS does not alone complete an agency's NEPA duties; NEPA requires agencies to review the environmental consequences of their projects after preparation of an EIS and to:

(1) . . . prepare supplements to either draft or final environmental impact statements if:

(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or

(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

40 C.F.R. § 1502.9(c)(1). Supplemental EIS reports may be required, moreover, if the new information shows that remaining government action will "'affec[t] the quality of the human environment' in a significant manner or to a significant extent not already considered" in the original EIS. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 374 (1989) ("Marsh").

The following facts concerning the steps defendants have taken pursuant to NEPA are not in dispute. See Defs.' Mem. 3-15; Pls.' Mem. 3-10. In addition, undisputed facts are taken from the supplemental briefs and supplemental information on the record submitted by the parties.*fn6 See Defs.' Suppl. Mem. Supp. Mot. Summ. J. ("Defs.'s Suppl. Mem."), Docket No. [104]; Pls.' Suppl. Mem. Supp. Mot. Summ. J. ("Pls.' Suppl. Mem."), Docket No. [92]; Suppl. Mem. Supp. EG&G's Mot. Summ. J. ("EG&G's Suppl. Mem."), Docket No. [103].

I. The 1988 Environmental Impact Statement

Prior to commencing the destruction of the United States' chemical weapons stockpile, the Army conducted a NEPA analysis of potential methods of accomplishing the Plan's goals. This process began in January 1986, and the Army completed and circulated a Draft Programmatic Environmental Impact Statement (the "Draft EIS") in July 1986, and then issued a Final Programmatic Environmental Impact Statement (the "Final EIS") in January 1988. See Record of Decision, Chem. Stockpile Disposal Program, Dep't of the Army (Feb. 23, 1988), AR Doc. 1 ("AR Doc. 1") at 1-2.

In preparing these statements, the Army examined incineration technology using information from prior Army experience of munitions destruction, considered different locations for disposal and evaluated alternative methods of disposal, i.e., pyrolytic thermal processing, deep ocean disposal, neutralization and nuclear detonation. See AR Doc. 1 at 5--6; AR Doc. 2 at 2--78 to 2--88. The Army evaluated the location and technology alternatives for, among other considerations, public safety and health impacts, technological complexity, public opinion, and compatibility with legislative policy. AR Doc. 2 at 2-1 to 2-132.

The Army gave its reasons for rejecting the alternatives to incineration:

Prior to [incineration] endorsement, the Army studied and rejected other disposal technologies as unreasonable. For example, pyrolectic thermal processing has the potential to produce other noxious products; disposal in deep ocean violates the Marine Protection Research and Sanctuaries Act; chemical neutralization is a complex reaction that produces large quantities of organic process wastes and is difficult to bring 100% conversion; and nuclear detonations have too many unexplored aspects of an obviously serious nature . . . .

Several alternatives were studied, but eliminated, from further consideration for various reasons. These alternatives fall into three broad categories: strategy alternatives, technology alternatives, and transport mode alternatives.

AR Doc. 1 at 5-6 to AR Doc. 2 at 2-78. The Army rejected various alternatives for other reasons ranging from the "uncertainties of time necessary to actually remove and reinstall the . . . decontaminated equipment," (AR Doc. 2 at 2-80), to the conclusions that the "alternative would not reduce the health and environmental impacts of agent destruction," (AR Doc. 2 at 2-80), and that other alternatives would not provide "any significant cost savings over other regional disposal center concepts." AR Doc. 2 at 2-81. Ultimately, the Army determined these alternative technologies were "either immature or unreliable in irreversibly treating chemical agents and munitions" and concluded that on-site baseline incineration was the preferred method for destruction of the nation's chemical weapons stockpile. Defs.' Mem. 7 (citing AR Doc. 1 at 5-6, AR Doc. 2 at 2-78 to 2-88).

II. The 1988 Record of Decision

A Record of Decision ("ROD") is a "public document summarizing the findings in the EIS and the basis for the decision . . . . [and is] required . . . after completion of an EIS. . . ." 32 C.F.R.§ 651.26. In 1988, the Army published a ROD that documented its decision to use incineration as the technology to destroy the chemical weapons stockpile at each of the eight sites:

[Incineration] is warranted since on-site disposal (1) is the best choice from a public health and environmental perspective, (2) reflects a realistic appraisal of our ability to mitigate accidents, (3) is less vulnerable to terrorism or sabotage, and (4) is far less complex in terms of logistics, including security and emergency response.

AR Doc. 1 at 5. The ROD stated that the Army would delay the incineration of the stockpile in order to evaluate the incineration process as conducted at a full-scale operational level:

[T]his Record of Decision anticipates, of necessity, a delay in the completion of the program beyond the current 1994 deadline. A prudent program decision that meets the Congressional strictures on environmental protection and safety should allow for testing the complete process at full-scale operations, such as [Johnston Atoll], prior to the operation at any other site. The [Johnston Atoll] operation will include a 15-18 month operational test period . . . .

AR Doc. 1 at 6. In 1986, the Army began constructing Johnston Atoll, a full-scale operational incineration plant intended to serve as a prototype to test the use of incineration at any of the eight stockpile sites in the United States. See Chem. Stockpile Disposal Program Chem. Agent and Munitions Destruction Operations at Anniston, Alabama, 2003 Record of Environmental Consideration, AR Doc. 11 ("AR Doc. 11") at 2--9 to 2--10, A--1 to A--20.

III. The 1990-1993 Operational Verification Testings

The National Defense Authorization Act of 1989 required the Army to complete Operational Verification Testing ("OVT") of Johnston Atoll before proceeding to destroy the stockpiles located at the eight sites around the country. See Nat'l Def. Authorization Act, Fiscal Year 1989, Pub.L. No. 100-456, § 846, 102 Stat. 2027-30 (1988). After successfully completing a series of OVTs at Johnston Atoll between 1990 and 1993, the National Academy of Science's National Research Council ("NRC"), an independent body charged with reviewing the chemical weapon stockpile disposal programs, concluded that there was: no readily applicable alternative technology to incineration of energetic*fn7 components for munition configurations found in the chemical stockpile and no alternative to high-temperature treatment for reliable decontamination of metal parts . . . . [T]here was no alternative technology available which had been adequately demonstrated to allow for replacement of the liquid incinerator [and thus the NRC recommends that the program] proceed expeditiously with the use of incineration technology . . . .

AR Doc. 11 at 2--15 and A--1 to A--20. Accordingly, the NRC found that the baseline incineration process was the only examined method that safely and effectively destroyed both chemical agents and munitions. The Secretary of Defense certified to Congress that the OVT at Johnston Atoll had been a success, after which the Army began preparation for the study and use of incineration of stockpiles at the four Challenged Sites: Anniston, Alabama; Pine Bluff, Arkansas; Tooele, Utah; and Umatilla, Oregon. See Defs.' Mem. 28.

IV. The Site-Specific EISs (1989-1997)

Following the publication of the Final EIS in 1988, the Army prepared and published individual, site-specific EISs. Specifically, the Army issued site-specific Draft EISs for Tooele in March 1989 (AR Doc. 46); Anniston in November 1990 (AR Doc. 14); Pine Bluff in May 1995 (AR Doc. 33); and Umatilla in December 1995 (AR Doc. 33). Defs.' Mem. 9. Thereafter, the Army published site-specific Final EISs for Tooele in July 1989, followed by a ROD in August 1989 (AR Docs. 44-45); Anniston in May 1991, followed by a ROD in July 1991 (AR Docs. 12-13); Umatilla in May 1996, followed by a ROD in January 1997 (AR Docs. 48-50); and Pine Bluff in May 1997, followed by a ROD in July 1997 (AR Docs. 30-32). Defs.' Mem. 9-10. In these site-specific assessments, the Army incorporated discussion and analysis from the Final EIS report but focused on issues specific to each site, including the environmental effects resulting from the creation and operation of chemical agent and munitions destruction facilities. See Defs.' Mem. 9.

The site-specific EISs and the subsequent RODs documented the Army's decision to use incineration technology for the disposal of the stockpile at the four Challenged Sites. These documents concluded that no alternative technology had been proven to successfully destroy the chemical weapons and that on-site incineration was a safe and effective means to destroy the stockpiles, taking into consideration public concerns regarding the environment, safety and public health for each of the sites and surrounding communities. The stockpile at the Challenged Sites consisted of "ton containers of agent as well as projectiles, mines and rockets containing propellant and/or explosive components." Defs.' Mem. 10. Thus, for the four Challenged Sites, the Army selected on-site incineration as the "preferred alternative" based on the conclusion that there were no readily available alternatives to destroy the chemical weapons stockpile at these sites and that incineration was a safe and effective method.

(1) Tooele, Utah Chemical Agent Disposal Facility

In the Tooele, Utah site-specific EIS report and ROD, the Army addressed human health and environmental concerns by testing various alternative technologies, explaining the reasoning behind the agency's ultimate decisions and emphasizing the important role safety played in the Army's overall and site-specific chemical warfare destruction program:

The [Final Programmatic Environmental Impact Statement ("FPEIS")] FPEIS addressed five alternatives: (1) continued storage of the stocks at their present locations; (2) on-site disposal of the stocks at their present storage locations; (3) relocation of the stocks to regional disposal centers at Anniston Army Depot, Alabama and Tooele Army Depot (TEAD) for destruction; (4) relocation of the stocks to a national disposal center at TEAD for destruction; and (5) relocation of the inventories at some specific sites to alternative sites, with the remainder destroyed at their present storage locations. The FPEIS identified the on-site disposal option as the environmentally preferred alternative and concluded that the stockpile of chemical agents and munitions stored in the continental U.S. can be destroyed in a safe, environmentally acceptable manner . . . .

The Final EIS assessed specific environmental impacts of constructing and operating a chemical disposal facility at TEAD and examined several possible locations for the facility on the Depot. The Army's preferred site is near the center of Tooele Army Depot South Area, adjacent to the southwest corner of the existing chemical munitions storage area. This site is also the environmentally preferred alternative because it best meets the criteria of safety to the off-post communities, minimizes the transportation distance from the storage area, minimizes exposure to potential earthquakes, and minimizes interferences with other activities at the Depot . . . .

Safety has always been of paramount importance to this program. With safety in mind, [Michael W. Own, Acting Assistant Secretary of the Army Installations and Logistics has] decided to select constructing [sic] a full scale disposal facility near the southwest center of the chemical storage area of Tooele Army Depot that uses the Johnston Atoll Chemical Agent Disposal System's (JACADS) reverse assembly and incineration technology. This selected location for the on-site disposal facility and its destruction process are best in terms of safety and public health for Tooele Army Depot as well as the surrounding communities.

ROD, Chem. Stockpile Disposal Program, Disposal of the Chem. Agents and Munitions Stored at Tooele (Aug. 30, 1989), AR Doc. 44 ("AR Doc. 44") at 1-3.

(2) Anniston, Alabama Chemical Agent Disposal Facility

At the Anniston facility the Army tested six alternatives to chemical agent incineration, compiled the results in a preliminary "Phase I" EIS report that was (1) reviewed and approved by an independent agency, Argonne National Laboratory, and (2) subsequently submitted to and certified to Congress.

[T]he validity of the programmatic decision for on-site disposal of the [Anniston] stockpile was given further consideration in a Phase I Environmental Report, issued in July 1989. The report used recently collected site-specific data to examine the present suitability of on-site disposal of agents and munitions store at [Anniston]. The report also examined resource data for the [Anniston] vicinity to determine whether significant resources exist that could affect implementation of on-site disposal at [Anniston]. No new or unique site-specific information was found that would change or contradict the conclusions of the FPEIS for [Anniston].

The Phase I report was independently reviewed by Argonne National Laboratory (ANL). ANL's comments and recommendations for the scope and content of the [Anniston] site-specific EIS were provided in a December 1989 report . . . . On April 13, 1990, the findings and conclusions of the Phase I report, the independent review, and the addendum to the Phase I report were certified to the Congress. This certification initiated the preparation of the Site-Specific Environmental Impact Statement (EIS) for the Disposal of Chemical Agents and Munitions Stored at [Anniston].

As presented in the Final EIS, the Department of Army proposes to implement the programmatic decision of on-site destruction of the lethal unitary chemical agents and munitions stored at [Anniston]. The Final EIS assesses the potential environmental effects of construction and operation of the proposed reverse assembly and incineration facilities needed for on-site destruction of the chemical agents and munitions . . . .

The six on-site alternative locations for the disposal facility were identified using criteria based on safety distances that must be met to continue [Anniston's] activities. The Army's preferred site location is in the north central portion of the depot . . . . This site location is also the environmentally preferred alternative because, of the locations considered, it was assessed as having the lowest potential adverse human health impact. In the assessment of the other areas of potential impact, namely socioeconomic, ecological, resource and environmental quality, the differences among the on- site locations alternatives were not found to be significant.

ROD, Chem. Stockpile Disposal Program, Disposal of the Chem. Agents and Munitions Stored at Anniston (July 12, 1991), ...


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