111 F.3d 1485 (10th Cir. 1997), 96-4166, Chemical Weapons Working Group, Inc. (CWWG) v. United States Dept. of the Army

Docket Nº:96-4166.
Citation:111 F.3d 1485
Party Name:97 CJ C.A.R. 602 CHEMICAL WEAPONS WORKING GROUP, INC. (CWWG); Sierra Club; and Vietnam Veterans of America Foundation, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF THE ARMY; United States Department of Defense; and EG & G Defense Material, Inc., Defendants-Appellees.
Case Date:April 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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111 F.3d 1485 (10th Cir. 1997)

97 CJ C.A.R. 602


and Vietnam Veterans of America Foundation,




Department of Defense; and EG & G Defense

Material, Inc., Defendants-Appellees.

No. 96-4166.

United States Court of Appeals, Tenth Circuit.

April 22, 1997

Page 1486

[Copyrighted Material Omitted]

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        Richard E. Condit (Mick G. Harrison, GreenLaw, Berea, KY; Randall M. Weiner, Ecological Consultants for the Public Interest, Boulder, CO; Robert Ukeiley; R. Paul Van Dam, Jones, Waldo, Holbrook & McDonough, Salt Lake City, UT, with him on the briefs), GreenLaw, Berea, KY, for Plaintiffs-Appellants.

        Craig D. Galli (David W. Tundermann with him on the brief), Parsons Behle & Latimer, Salt Lake City, UT, for the Defendant-Appellee EG & G Defense Material, Inc.

        Peter A. Appel (Edward J. Shawaker, Alan D. Greenberg, Robert H. Foster, Charles W. Findlay, Lisa Ann Holden, and Robert L. Klarquist, Department of Justice, Scott M. Matheson, Jr., United States Attorney; Stephen Roth, Assistant United States Attorney; Lois J. Schiffer, Assistant Attorney General, with him on the brief), Department of Justice, Washington, D.C., for Defendants-Appellees United States Department of the Army and United States Department of Defense.

        Before PORFILIO, EBEL and HENRY, Circuit Judges.

        JOHN C. PORFILIO, Circuit Judge.

        In this appeal, Appellants Chemical Weapons Working Group, Inc., Sierra Club, and Vietnam Veterans of America Foundation (Plaintiffs) argue that the district court erred in denying their request for a preliminary injunction and in dismissing their claims under the Clean Water Act, Resource Conservation and Recovery Act, 1986 Department of Defense Authorization Act, and Administrative Procedures Act. Finding none of their arguments persuasive, we affirm.


        In 1985, Congress directed the Department of Defense to destroy the nation's stockpile of lethal chemical weapons, which is currently located at Johnston Island in the Pacific Ocean and at eight different sites in the continental United States. One of these sites, Tooele Chemical Agent Disposal Facility near Tooele, Utah, stores just over 40% of the nation's 30,000 tons of chemical warfare agent. Tooele's stockpile consists of both nerve and blister agents contained in a variety of bulk containers and munitions, some of which contain "energetics" (explosives and propellants) that also require disposal. This appeal results from a dispute over how to best implement the 1985 mandate: by incinerating the chemical weapons immediately or by storing them pending the development of feasible incineration alternatives.

        In 1986, the Army completed and circulated a Draft Environmental Impact Statement, which considered the environmental consequences of continued storage of the nation's chemical weapons stockpile compared to different logistical arrangements for its immediate disposal. The following year, the Army completed a quantitative risk assessment, concluding that the accident risk associated with continued stockpile storage significantly outweighed that associated with disposal operations. The Army used this assessment to support its 1988 Final Programmatic Environmental Impact Statement and Record of Decision, which selected on-site incineration as the means by which chemical weapons would be destroyed nationwide. At that time, the Army rejected alternatives to incineration as either unreasonable or premature. In 1989, the Army issued a site-specific Final Environmental Impact Statement and Record of Decision for Tooele, adopting the 1988 Final Programmatic Environmental Impact Statement conclusions and choosing on-site incineration as the method of destroying the chemical weapons stored there.

        Before allowing the Army to proceed with its incineration plan, Congress required it to conduct Operational Verification Testing of the Johnston Atoll Chemical Agent Disposal System, a full-scale, operational chemical weapons incineration plant on Johnston Island

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that was designed to serve as the prototype for incinerators at other stockpile sites such as Tooele. In 1993, the Secretary of Defense certified to Congress that testing at Johnston Atoll was complete, verifying that the operation there had been a success. The MITRE Corporation, a private contractor, was engaged by the Army to monitor, evaluate and report its operational testing results. The National Research Council's Committee on Review and Evaluation of the Army Chemical Stockpile Disposal Program (Stockpile Committee) was also chartered to monitor the Army's testing at Johnston Atoll and to review the test results reported by the MITRE Corporation. In its 1993 report, the MITRE Corporation concluded that although improvements could be made in the incineration technology used, Johnston Atoll had "no apparent fundamental safety, environmental, or process-related problems." Similarly, the Stockpile Committee concluded in 1994 that although Johnston Atoll had some operational problems, none were "show stoppers" for other chemical incineration plants.

        In 1994, the Stockpile Committee also issued a report endorsing the Army's choice of incineration as the means by which to destroy the nation's chemical weapons stockpile. In that report, the Committee found there was no feasible alternative to incineration for the destruction of energetics, although it recommended that the Army update its 1987 quantitative risk assessment and continue to evaluate alternative technologies for sites other than Tooele. The Stockpile Committee report also considered the chronic health risks associated with routine incineration operations, concluding that alternative technologies would affect only a fraction of the releases caused by incineration and that "any reduction in disposal risk afforded by an alternative technology will be more than offset by the larger cumulative risk from extended storage." The Committee therefore recommended that disposal operations proceed without delay. In response to the Stockpile Committee's report, the Army performed a site-specific quantitative risk assessment for Tooele in 1995, again concluding that the accident-associated risk of continued stockpile storage significantly outweighed that of incineration operations. 1

        In May 1996, Plaintiffs brought this action, alleging violations of various environmental protection acts. In one of those allegations, Plaintiffs claimed that the Army violated the National Environmental Policy Act by failing to prepare a Supplemental Environmental Impact Statement on the basis of significant new information relevant to environmental concerns. The Army responded in part by preparing a Record of Environmental Consideration in July 1996, which concluded that no new, significant information had developed since its 1988 Final Programmatic Environmental Impact Statement and 1989 site-specific Final Environmental Impact Statement were issued that would require the preparation of a supplemental environmental statement. Attached to the Record of Environmental Consideration was an 84-page report evaluating new information on dioxin emissions and alternative technologies. This report also discussed the problems experienced at Johnston Atoll, concluding that although the operation there had not been perfect, it had safely and effectively disposed of chemical agent and had not resulted in significant environmental impacts not already contemplated.

        Presently, the Army has all permits necessary to operate Tooele. The Utah Department of Environmental Quality has issued both Clean Air Act and Resource Conservation and Recovery Act permits under its delegated authority from the Environmental Protection Agency. The Army has thus far conducted two trial burns at Tooele without chemical agent to determine whether the facility can destroy agent and other materials without releasing a significant amount of toxins into the environment. The Utah Department of Environmental Quality has approved the results of both tests. Presumably, the Army is now in the process of conducting trial burns with live agent, the results of

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which must also be approved by Utah before Tooele can become fully operational.


        After extensive hearings, the district court denied Plaintiffs' request for a preliminary injunction of the Army's scheduled incineration operations at Tooele because none of the requirements for injunctive relief had been met. First, the court found Plaintiffs had failed to establish irreparable harm because the health risks associated with the Army's incineration operations were too speculative, while Plaintiffs' allegation of a National Environmental Policy Act violation was, without...

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