Chemical Weapons Working Gp. v. U.S. Dept. of Army

• Decision Date: 24 March 1997
• Docket Number: Civil No. 2:96-CV-425C.
• Citation: 963 F.Supp. 1083
• Parties: CHEMICAL WEAPONS WORKING GROUP, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT of THE ARMY, et al., Defendants.
• Court: U.S. District Court — District of Utah

Page 1083

963 F.Supp. 1083

CHEMICAL WEAPONS WORKING GROUP, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT of THE ARMY, et al., Defendants.

Civil No. 2:96-CV-425C.

United States District Court, D. Utah, Central Division.

March 24, 1997.

Mick G. Harrison, Robert Ukeiley, Greenlaw, Inc., Bloomington, IN, Robert Guild, Columbia, SC, Richard Condit, Washington, DC, Paul Van Dam, Jones, Waldo, Holbrook & McDonough, Salt lake City, UT, Randall M. Weiner, Land and Water Fund of the Rockies, Boulder, CO, for plaintiffs.

Alan David Greenberg, Robert H. Foster, U.S. Department of Justice, Environmental Defense Section, Denver, CO, Lisa Ann Holden, U.S. Department of Justice, Environmental & Natural Resources Division, General Litigation Section, Washington, D.C., Stephen L. Roth, Assistant U.S. Attorney, U.S. Attorney's Office, District of Utah, Salt lake City, UT, LTC Robert M. Lewis, Maj. David Mayfield, CPT Michael E. Mulligan, Gerald P. Kohns, Environmental Law Division, Office of the Judge Advocate General, Department of Army, Washington, DC, for Department of the Army and Department of Defense.

David W. Tundermann, Craig D. Galli, Michael A. Zody, Parsons, Behle, & Latimer Salt Lake City, UT, for EG&G Defense Materials, Inc.

Laura Lockhart, Assistant Attorney General, Office of the Utah Attorney General, Raymond Wixom, Staff Attorney, Utah Division of Solid and Hazardous Waste, special appearances for Utah Division of Solid and Hazardous Waste, Department of Environmental Quality.

MEMORANDUM DECISION AND ORDER

CAMPBELL, District Judge.

This matter is before the court on plaintiffs' second motion for preliminary injunctive relief to enjoin defendants from incinerating chemical warfare agent at the Tooele Chemical Agent Disposal Facility (TOCDF). Plaintiffs claim that "new" evidence, that is, evidence discovered after the conclusion of hearings on plaintiffs' first motion for preliminary injunctive relief, demonstrates that continued incineration of agent at TOCDF poses a threat of irreparable harm. Plaintiffs also contend that the new evidence requires that defendants prepare a supplemental environmental impact statement (SEIS). The new evidence presented by plaintiffs falls into two general categories: (1) operation of TOCDF and (2) stack emissions.

Procedural Background

Plaintiffs initiated this suit on May 10, 1996. The amended complaint alleges that defendants have violated the National Environmental Policy Act (NEPA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Defense Authorization Act, and the Clean Water Act (CWA) and that defendants' operation of TOCDF constitutes a nuisance under Utah law. The court granted defendants' motions to dismiss the RCRA, CWA, and nuisance counts. Subsequently, plaintiffs initiated several proceedings before the Utah Solid and Hazardous Waste Control Board ("Utah Board") to challenge various issues and decisions regarding TOCDF's hazardous waste permits. These parallel proceedings are, to date, ongoing.

Plaintiffs' first motion for preliminary injunctive relief ("first motion"), filed on June 12, 1996, sought to enjoin defendants from commencing trial burns of chemical warfare agent at TOCDF. After a nine-day evidentiary hearing, this motion was denied on August 13, 1996. See Chemical Weapons Working Group, Inc. v. Department of the Army, 935 F.Supp. 1206 (D.Utah 1996) ("CWWG I").

On October 11, 1996, plaintiffs filed a notice of appeal of the court's denial of their first motion and dismissal of various claims alleged in the first amended complaint. Seven days later, on October 18, 1996, plaintiffs moved the United States Court of Appeals for the Tenth Circuit to stay TOCDF operations pending resolution of their appeal. Because plaintiffs had failed to first seek a stay in the district court, the Tenth Circuit denied plaintiffs' motion on December 6, 1996. Chemical Weapons Working Group (CWWG) v. Department of the Army, 101 F.3d 1360 (10th Cir.1996). The Tenth Circuit did not address the merits of plaintiffs' appeal.

On January 11, 1997, plaintiffs filed a consolidated motion for a stay and second motion for preliminary injunction. A hearing on plaintiffs' consolidated motion was held over six days from March 3, 1997 through March 10, 1996. Having considered the evidence presented at that hearing, the memoranda filed by the parties, and the arguments presented by counsel, the court denies plaintiffs' second motion for a preliminary injunction¹ and enters the following findings of fact and conclusions of law.

FINDINGS OF FACT

Background

1. In its previous Memorandum Decision and Order, the court made detailed factual findings concerning the physical facility at TOCDF, the nature of the chemical warfare agent stockpile stored at Deseret Chemical Depot² ("Depot"), the Army's nearly twenty-years of experience with large-scale incineration of agent materials, and the compliance process dictated by NEPA. CWWG I, 935 F.Supp. at 1209-14. The court will not repeat its prior findings here except as necessary to explain the pending consolidated motion.

TOCDF Operations

2. On August 22, 1996, TOCDF began destroying chemical agent pursuant to Trial Burn Plans approved by the Utah Division of Solid and Hazardous Waste.³ Two of TOCDF's five furnaces became operational — the Deactivation Furnace System (DFS) and the first of two Liquid Incinerators (LIC-1). The DFS is used to incinerate munitions which, after being drained of agent, remain contaminated. Agent drained from munitions and ton containers is destroyed in the LIC. As of February 4, 1997, the DFS had functioned for more than 569 hours and the LIC for over 736 hours, resulting in the destruction of 11,472 rockets and 122,750 pounds of the nerve agent GB. This amount represents thirty-eight percent of the stockpile of GB-filled rockets stored at the Depot.

3. On January 17, 1997, TOCDF began processing ton containers⁴ stored at the Depot in the Metal Parts Furnace (MPF) and GB nerve agent drained from those containers in the second LIC (LIC-2). As of February 4, 1997, fifty-one such ton containers and 76,500 pounds of GB had been destroyed.

4. All present activities at TOCDF are governed by the Trial Burn Plans. TOCDF is currently operating in the "shakedown" phase, a period designed to identify possible mechanical difficulties, ensure that the facility has reached operational readiness, and achieve steady-state operating conditions prior to conducting the trial burns.

5. A munitions processing schedule governs the order in which the various munitions stored at the Depot are to be destroyed at TOCDF. Each portion of the schedule, termed a "campaign," is devoted to the disposal of a specific item in the stockpile inventory. Defendants submitted evidence in the form of declaration testimony by Gary J. Boyd, author of the quantitative risk assessment for TOCDF, that since the court's decision in CWWG I, the munitions processing campaigns have been reordered to provide for the destruction of higher risk munitions earlier in the processing schedule. Mr. Boyd testified that accidents involving nerve agent GB represent the majority of the risk from potential stockpile accidents; accordingly, the first campaign in the reordered munitions processing schedule provides for the disposal of GB-filled rockets and ton containers. The reorganization of the munitions processing campaigns will reduce the stockpile risks much more rapidly than would have occurred under the original processing schedule.

6. During the shakedown period, three events have occurred which have caused defendants to halt operation of TOCDF: (1) detection of low levels of agent in two filter containment vestibules; (2) leakage of a small quantity of decontamination fluid through hairline cracks in a second level cement floor to a first floor electrical room; and (3) migration of agent into an observation corridor. In addition, TOCDF has experienced other operational and personnel difficulties. Citing these events and difficulties, plaintiffs maintain that TOCDF's present-day operation is substantially different from that contemplated during the NEPA compliance process and presents a risk of irreparable harm. Specifically, plaintiffs contend that while the "lessons learned" program and the operation of prototype facilities at the Depot (CAMDAS) and at Johnson Atoll (JACADS) were designed to identify, analyze, and correct problems of this type prior to the commencement of agent operations at TOCDF, the facility is being operated in a reactive, trial-and-error manner.

Agent Migration Into Filter Vestibules

7. The primary means of preventing an airborne agent release to the environment or the spread of agent vapor within TOCDF is the Heating, Ventilation, and Air Conditioning (HVAC) system. The HVAC maintains negative pressure throughout the facility so that air from areas least likely to be contaminated with agent flows to areas where contamination is more likely. Air from areas in which contamination is most likely is steadily removed and directed through a bank of filters designed to extract agent. Of the nine filter units in the system, seven are typically in use at any given time with the remaining two units serving as reserves. Air passing through the filters is funneled into a common exhaust stack and monitored for the presence of agent. Additional agent monitors are located between the charcoal banks that comprise the filter units.

8. The HVAC filters are enclosed within a metal structure containing sealed access doors. In March 1995, it was discovered that the gaskets surrounding similar access doors at JACADS allowed small amounts of agent to escape to the environment. It was subsequently determined that different door gaskets and clamping mechanisms would prevent future agent releases. It was also determined that secondary containment structures, not part of the original design plans...