Sam Weaver

October 11, 2008

In 1994 the United Nations issued a protocol mandating the destruction of the world's chemical weapons. The United States signed it and was subsequently faced with the task of disposing of its stockpile of agent VX located in Newport Indiana.

VX is an organophosphate nerve agent used in chemical weapons. Though initially in liquid form, ignition can cause VX to vaporize. Once in the air VX does not dissipate quickly. The vapors do not have to be inhaled to create ill effects; food and clothing exposed to VX can also spread the agent. It can take hold within a few seconds. Symptoms of exposure can range from nausea and diarrhea to convulsions and respiratory failure. Serious exposure to VX is almost certain to result in death.

The Army concluded that treatment through hydrolysis and incineration was the most effective means of disposing of the Newport stockpile. While the VX could be treated onsite, expediency dictated that the resultant caustic hydrolysate would have to be shipped to a separate facility for incineration. The Army concluded the hydrolysate was safe to ship based on an extensive administrative record including a Centers for Disease Control and prevention (CDC) report noting that while the hydrolysate would contain trace mounts of VX, its caustic nature, and not the presence of the nerve agent, was its primary public health risk.

The facility ultimately selected was located in a poor minority neighborhood in Port Arthur Texas, a decision made without significant public comment. In response a coalition of citizen and environmental groups sued the federal government and the involved corporations in federal district court in Indiana. The plaintiffs sought enjoinment of the activity, claiming violations of the National Environmental Policy Act (NEPA), the Defense Authorization Act (DAA), the Resource Conservation and Recovery Act (RCRA), and several state law claims. The District Court granted the defendant's motion for summary judgment on all claims. The court held that the DAA did not apply because the hydrolysate was not a weapons component. Under NEPA, the court found that the government was not required to supplement its Environmental Impact Statement (EIS) even though it had changed the location of the receptor facility, the nature of the hydrolysis process, and had failed to consider the environmental justice implications of its decision. The court dismissed the RCRA claim on the grounds that the defendants had the requisite certifications and the state law claims based on the safeguards included in the hydrolysis process.

While the destruction of chemical weapons is a laudable goal, this case demonstrates how the legal system can fail to address potentially serious environmental harms. While the CDC report found that the hydrolysate contained little VX, even the introduction of seemingly trivial amounts into the food chain or water supply could have catastrophic consequences.

Sources:

The Sierra Club v. Gates, No. 2:07-cv-0101-LJM-WGH (S.D.Ind. Sept. 22, 2008).

The Sierra Club, Club and Allies Working to Stop Toxic Waste Incineration in Texas, Grassroots Stories, Sept. 19, 2007, http://www.sierraclub.org/grassroots/stories/00022.asp.

Centers for Disease Control and Prevention, Facts About VX (2005), http://www.bt.cdc.gov/agent/vx/basics/facts.asp.

United Nations: Convention on the Prohibition of the Development, Production, Stockpiling, and use of Chemical Weapons and on their Destruction art. 4, May 1993, 32 I.L.M. 800.