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30 ELR 20519 | Environmental Law Reporter | copyright © 2000 | All rights reserved Chemical Weapons Working Group, Inc. v. United States Department of the ArmyNo. 2:96-CV-425C (D. Utah April 14, 2000)The court holds that the U.S. Army, the U.S. Department of Defense (DOD), and a private company did not violate the Resource Conservation and Recovery Act (RCRA), the Toxic Substances and Control Act (TSCA), and the National Environmental Policy Act (NEPA) in their past operation and continued present operation of a chemical agent stockpile facility. The court first holds that the Gwaltney Doctrine bars environmental groups' RCRA § 7002(a)(1)(A) claims against the Army, the DOD, and the company. Under Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 23 ELR 20375 (1987), courts do not have subject matter jurisdiction over citizen suits for wholly past violations. The groups failed to establish that several alleged violations were ongoing or likely to reoccur. Further, the evidence presented at trial was not sufficient to establish several other claimed violations. The court then holds that the groups' RCRA § 7002(a)(1)(B) claims must fail because the groups failed to demonstrate that the Army's, the DOD's, and the company's actions present an imminent and substantial endangerment to health or the environment. Although there have been problems at the facility, there has been no evidence that facility personnel, the public, or the environment have been harmed by the facility's operation. The court next holds that the groups have not prevailed on their TSCA claim that the Army, the DOD, and the company failed to meet the destruction removal efficiency required for the destruction of polychlorinated biphenyls (PCBs). The evidence at trial demonstrated that the facility has and continues to meet the required destruction removal efficiencies for PCBs. The court also holds that the groups' NEPA claims are time barred. The groups' NEPA claims do not fall within the applicable six-year statute of limitations. Moreover, the facility's concealment of information does not rise to the necessary level of active deception that would equitably toll the statute of limitations. Counsel for Plaintiffs Counsel for Defendants Campbell, J.: Plaintiffs Chemical Weapons Working Group, Inc., Sierra Club, and Vietnam Veterans of America filed this suit in May 1996, challenging the operation of the Tooele Chemical Agent Disposal Facility ("TOCDF") by the defendants United States Department of the Army, Department of Defense, and EG&G.1 According to plaintiffs, the defendants' past operation of TOCDF violated various environmental statutes and its continued operation presents an imminent and substantial endangerment to human health and the environment. A trial was held to the court, sitting without a jury, in June 1999. The court now enters its Findings of Fact and Conclusions of Law, as required by Fed. R. Civ. P. 52(a), and directs that judgment be entered in favor of the defendants on all claims against them. In 1996, destruction of chemical agent began at TOCDF.2 Since the process began, 21% of the chemical agent stockpile has been destroyed. As explained below, the evidence at trial established that no agent-related injuries have been sustained and no agent has been released into the environment outside TOCDF. Generally, plaintiffs' claims fall into two categories: incidents that have occurred during the operation of TOCDF and emissions from the TOCDF common stack that have entered the outside environment.3 The court also discusses plaintiffs' allegations that defendants concealed certain information.4 On this date, an MC-1 bomb was incompletely drained of chemical agent GB. The placement of the incompletely-drained bomb into the metal parts furnace ("MPF") caused an overfeed of the MPF. The facts leading up to this occurrence are not seriously in dispute. The MPF is a two-chambered furnace: combustion takes place in the primary chamber, and gasses from the primary chamber flow into an afterburner chamber. When the gasses leave the afterburner, they pass through a pollution abatement system. The procedure for feeding an MC-1 bomb to the MPF begins when a bomb is brought on a conveyer to the bulk drain station ("BDS"), located in the munitions processing bay above the MPF. At the BDS, two holes are punched in the bomb. A drain tube is then placed in the bomb, and agent is drained [30 ELR 20520] from the bomb. The system is designed so that all but 11 pounds of agent, or 5% of the agent, is drained from the bomb.5 Once a bomb is drained, it is sent on a tray to the MPF. Shortly before midnight on March 29, 1998, a bomb was sent to the BDS, holes were punched in the bomb, and draining of GB began. After 15 seconds, draining was stopped so that workers could take a sample of the agent and perform maintenance. During the maintenance operations, one of the workers noted problems with the drain probe and suggested to the control room operator that the drain probe might be out of adjustment. The BDS operator, directed by the control room supervisor, made several more attempts to drain the bomb. Following these attempts, the BDS operator received conflicting data concerning the amount of agent that had been drained from the bomb: certain measurements indicated that the required 95% of agent had been drained, other measurements indicated that it had not. A decision was then made to "bypass" the repeat drain cycle and send the bomb to the MPF. At approximately 3:25 a.m. on the morning of March 30, the bomb was fed to the MPF. The bomb contained approximately 75-80 pounds of GB. Once inside the MPF, the undrained GB in the bomb quickly vaporized, causing a rapid increase in the temperature of the MPF. At 3:39 a.m., an alarm sounded, indicating that the temperature in the afterburner was above the extreme temperature limit. The burners and the afterburner automatically shut down, and a quench water spray was applied to the primary chamber. However, within minutes, TOCDF personnel decided that the best course of action was to continue incinerating the bomb, and the quench water spray was stopped. At 3:44 a.m., the temperature in the afterburner had dropped below the extreme temperature limit and shortly thereafter, the afterburner was relighted. The Automatic Continuous Air Monitoring System ("ACAMS") and the Depot Area Agent Monitoring System ("DAAMS") are monitoring systems used throughout TOCDF to detect the presence of chemical agent. The ACAMS consists of self-contained chromatographs which collect samples of gasses at various locations throughout TOCDF. The ACAMS are numbered to identify their location. At the time of the March 30th incident, ACAMS 703 was located in the duct leading from the MPF to the common stack. ACAMS 701A, ACAMS 701B, and ACAMS 701C were the three ACAMS located in the common stack. Each ACAMS operates on a three minute cycle with 110 seconds of the cycle spent collecting air samples and 70 seconds analyzing the samples. In the common stack, the cycles of the ACAMS are required to be set so that one ACAMS is always collecting a sample. This is called "staggering the ACAMS." When an ACAMS detects the presence of agent above a certain concentration, it will "go into alarm," that is, it will trigger an audible alarm in the control room. (Because the ACAMS operate in "near realtime," the machine will not alarm until it has completed its cycle). On March 30, at 3:45 a.m., ACAMS 703 went into alarm. However, the three ACAMS in the stack did not go into alarm. The second monitoring system in place at TOCDF is the DAAMS. The DAAMS units collect air onto an absorbent material inside a testing tube over an extended period of time. The DAAMS tubes are periodically collected and the contents analyzed for the presence of chemical agent. Sometime after 4 a.m. on March 30, after ACAMS 703 had gone into alarm, a TOCDF employee collected the DAAMS tubes from the common stack. These were the DAAMS tubes that had been in place, or "on line" during the incident. Unfortunately, following the general practice, the common stack DAAMS tubes were not kept separate from the DAAMS tubes collected from other locations in TOCDF. In order to determine whether any agent had migrated through the common stack, therefore, workers had to examine all the DAAMS tubes. When all of the DAAMS tubes were analyzed, no agent was detected. At 3:46 a.m., immediately after ACAMS 703 went into alarm. Clayton Hall, the plant shift manager, directed that the site masking alarm, which signals all TOCDF personnel to don their gas masks, be triggered. When Hall observed that the ACAMS in the common stack had not gone into alarm, he gave the direction that gas masks could be removed. At trial, defendants' expert, James Cudahy, an environmental engineer specializing in high temperature equipment for the treatment of wastes, gave his opinion that no GB was released from the common stack. Cudahy explained that during a one-minute period, from 3:39 a.m. until 3:40 a.m., there was no oxygen, and consequently, no combustion in the MPF. However, Cudahy concluded that the temperature in the MPF never dropped below 1,965 degrees Fahrenheit (a temperature of 1,350 degrees is needed to destroy GB). Cudahy's review of the data collected from the MPF led him to the conclusion that during this one-minute period, the conditions in MPF were such that the agent would have been destroyed. It was also Cudahy's opinion that during this one-minute period, an unknown material was formed ("an interferent") and caused ACAMS 703 to go into alarm. Cudahy opined that if any of the GB had survived the high temperatures of the MPF, which he believed highly unlikely, it would have passed into the pollution abatement system, reacted with the hot caustic brine in the system, and been chemically neutralized. Defendants have made changes to ensure that there will not be a repeat of the March 30 incident. Drain probes have been marked to allow the BDS operator to visually determine whether the probes are in the correct position. Procedures have been implemented so that when questions arise about whether a bomb has been sufficiently drained of agent, several supervisors must evaluate the problem before the questioned bomb will be fed to the MPF. In addition, defendants have revised and improved the DAAMS tracking system and made modifications to the ACAMS to guarantee continuous, staggered monitoring in the common stack. As a result of a maintenance error, 140 gallons of chemical agent leaked into a sump. Because of another, unrelated error, the ACAMS did not alarm. When a control room operator discovered the spill, the system was shut down and no injury resulted. Changes have been made in various procedures to prevent reoccurrences. TOCDF employees were working in the explosive containment room, a Level A area.6 Simultaneously, in another area known as the "unpack area," other employees were feeding ton containers through an airlock into the explosive containment vestibule. Agent migrated from the explosive containment room, through the airlock, and into the unpack area. Following the incident, the employees from the unpack area were examined at the TOCDF medical clinic, and given blood tests. There was no indication that the workers had suffered "exposure"7 or injury. TOCDF employees, dressed in Level B protective clothing, were removing nose plugs or closures from projectiles. Beneath the nose closure of each projectile is a hollow area know [sic] as the "burster well." The burster well is usually sealed to prevent leaks of agent from the surrounding agent cavity into the burster well. On this date, one of the nose closures was removed and chemical agent migrated from the burster well. The employees immediately left the area and were taken to the TOCDF clinic. There was no indication of injury to the employees. TOCDF has an emergency power system for use if the local power company experiences a power outage. The emergency system has two components: first, a battery backup system, called the "uninterruptible power supply," which supplies power for control systems and agent monitors; second, emergency generators that provide power for critical operating systems, such as the heating, ventilation, and air-conditioning system ("HVAC").8 TOCDF has experienced problems with the emergency power system. The most significant took place on June 4, 1999, when a thunderstorm caused an outage. The emergency system failed to come online automatically and had to be manually started, resulting in an eight to twelve minute period when TOCDF was without electrical power. During this period, various safety and monitoring systems were out of operation, including the HVAC system, thereby allowing chemical agent to migrate into a Level C unpack area. No injury resulted from the failure of the emergency system. Defendants have taken measures to improve the emergency power system, including the addition of a third generator. Defendants are required by their Utah State permits to analyze and characterize the agent waste before it is incinerated. In January 1997, analysis of the brine from the pollution abatement system showed that the brine contained 12.3 parts per million of arsenic, far in excess of the 5 parts per million allowed by TOCDF's permit. Plaintiffs claim that the presence of this amount of arsenic shows that the defendants have been incinerating chemical agent lewisite, which TOCDF's permit does not allow. In 1997, in an effort to discover the source of the arsenic in the brine, the Army began investigating the history of the ton containers being used at TOCDF. The investigation showed that certain ton containers had contained Freon and mustard, before being used by the Army at TOCDF. Defendants, in conjunction with the State of Utah, created a program to take samples of a representative number of the ton containers to determine if any of the containers were now contaminated with lewisite. The analysis revealed no lewisite contamination. The waste tracking forms now indicate, and have since 1998, that the waste contains arsenic. Through the sampling program, defendants discovered that the agent in some of the ton containers had a low pH value, and was therefore highly acidic. The defendants have partially incinerated the contents of one of these ton containers in the MPF, not the liquid incinerator. The State of Utah granted defendants a temporary emergency permit to incinerate the low pH agent, which allows defendants to incinerate the contents of seventeen pressurized ton containers. Defendants do not know for sure, but they believe that no other ton containers contain low pH agent. 7. Miscellaneous Operational Claims Plaintiffs claim, as a general matter, that decontamination procedures, including "hot cut-outs," are inadequate and expose TOCDF employees to chemical agent. TOCDF personnel working in Level A areas wear demilitarization protective ensemble ("DPE") suits. These plastic suits are completely sealed from the outside environment and must be physically cut to be removed. A normal cut-out occurs when a suit is removed in an area where the Time Weighted Average ("TWA") is 40 units9 or less. Removal of a DPE suit in an area where agent concentration is higher than 40 TWA, is described as a "hot cut-out." Following a hot cut-out, the person is examined at the TOCDF medical clinic. There was no evidence that any employee has been injured as a result of a hot cut-out. b. Bags Containing Hazardous Waste Twice, shortly before trial, TOCDF employees were working in the vicinity of bags containing hazardous waste. Apparently, on each occasion, one or more of the bags was torn, allowing agent vapor to escape and causing the ACAMS to alarm. There was no indication that the employees were injured. Employees working in the vicinity of bags containing contaminated waste now wear the highest level of protective clothing. On May 25, 1997, a group of visitors toured TOCDF. During the tour, the visitors entered an area where MC-1 bomb casing were stored. Due to an error in the documentation that had accompanied the bomb casings when they were delivered to TOCDF from Deseret Chemical Depot, one of the casings was not completely decontaminated. The evidence indicated that the visitors were not exposed to agent. No ACAMS alarm was triggered in the area and a later blood test of an employee who had spent a far greater amount of time than the visitors in the vicinity of the contaminated MC-1 bomb showed no evidence of exposure. The defendants now exclude visitors from entering areas where possibly contaminated materials are stored. As discussed previously, to ensure continuous monitoring, the ACAMS in the common stack must be staggered. There have been at least five times when the ACAMS were not staggered. No evidence was presented of injury resulting because of these five failures. Since April 1998, at the direction of the State of Utah, the ACAMS are monitored to ensure that they remain staggered. If the ACAMS are not staggered, an alarm sounds in the control room, the waste feed to the furnaces automatically shuts down, and no agent is fed to the furnaces. Defendants have discovered that in the remaining stockpile, agent is gelling or crystallizing in the rockets and is less easily drained. Defendants have asked the State of Utah for permission to feed rockets that contain more than a 5% heel (the "heel" is the amount of agent remaining in a munition after it has been drained). To ensure that the total amount of agent fed to the furnace does not exceed the amount demonstrated as part of the TOCDF trial burns (and therefore be within the limits of the TOCDF permits), defendants have proposed to the State that they be allowed to feed one rocket with a greater than 5% heel per hour to the MPF rather than 42 rockets with a 5% heel per hour as currently allowed. B. Emissions From the Common Stack Defendants' expert witness, James Cudahy, explained that the term "dioxin" refers to a family of 210 compounds that can be dangerous to human health, including causing an increased risk of cancer. Each of the 210 members of the dioxin family is called a "congener." The molecular structure of each congener is unique. The Environmental Protection Agency ("EPA") has identified seventeen of the congeners as toxic, although the level of toxicity among the seventeen congeners varies. The EPA assesses the toxicity of the seventeen congeners by a method known as "toxic equivalent factors." (June 16 Tr. at 22-23). Under its permits with the State of Utah, TOCDF was required to conduct a series of trial burns to determine whether it can destroy agent and other materials without releasing, above specified limits, toxic materials into the air. The defendants have conducted trial burns on the four furnaces that now operate at TOCDF. Cudahy testified that he had examined the results of the trial burns from the four TOCDF furnaces that are in operation and found that most of the seventeen toxic congeners were not found in concentrations above the detection limit. The most toxic—2,3,7,8 tetrachloro dibenzo-p-dioxin—was not found above the detection limit. In 1996, the State of Utah Department of Environmental Quality prepared a Screening Health Risk Assessment ("Assessment").10 The Assessment evaluated the risks, cancerous and non-cancerous, that emissions from TOCDF would pose to human health. Because the Assessment was prepared before TOCDF began incineration of chemical agent, the Assessment modeled TOCDF emissions by using maximum levels taken from the data drawn from JACADS, the prototype facility located at Johnston Atoll in the South Pacific. The Assessment concluded that assuming simultaneous operation of all five furnaces at TOCDF [only four furnaces are in operation at TOCDF], the overall cancer and non-cancer risks were at or below EPA screening risk levels. As [30 ELR 20522] far as the cancer effects of dioxin, the risk assessment found that EPA guidance levels were not exceeded for 10, 15, and 30 year operating periods. The risk assessment did not calculate non-cancer effects of the dioxin exposure because there is currently no applicable reference dose for dioxin . . . Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 935 F. Supp. 1206, 1213 [27 ELR 20022] (D. Utah 1996). At trial, the defendants called Dr. Brent Kerger, an expert witness in toxicology and risk assessment. Dr. Kerger had updated the Assessment with data from the TOCDF trial burns and new EPA toxicity criteria. The trial burn data used by Dr. Kerger were more comprehensive than the JACADS data: approximately 235 individual chemicals were analyzed in the trial data compared to 69 in the JACADS. In addition, the trial burn data produced congener-specific dioxin levels, while the JACADS data did not. With the congener-specific dioxin levels, Dr. Kerger was able to focus on the congeners which, because of their toxicity, can be dangerous to health. Using the updated information, Dr. Kerger concluded that the Assessment substantially overstated the degree of risk that would be caused by the TOCDF emissions. In Dr. Kerger's opinion, the low level of emissions resulting from operation of TOCDF was several orders of magnitude below levels known to be harmful to human health. Plaintiffs presented no credible evidence in support of their contention that dioxin emissions from TOCDF would cause adverse health effects in humans. In support of their argument, plaintiffs heavily relied on a draft document entitled "Health Assessment Document for 2,3,7,8 Tetrachloro dibenzo-p-dioxin," issued by the EPA in 1994. That document, however, clearly states that it is just a draft, and therefore is not a final conclusion by the EPA. The M-55 rocket shipping and firing tubes incinerated in the Deactivation Furnace System ("DFS") at TOCDF contain polychlorinated biphenyls ("PCBs"). Under the terms of its Toxic Substances Control Act Permit, Defendants must demonstrate that the DFS will destroy PCBs to a one part in one million, or 99.9999%, destruction removal efficiency (commonly referred to as "6-9s DRE"). To date, the DRE has been measured in two demonstration burns. The second demonstration burn demonstrated that the DFS met the 6-9s DRE. The results were not so clear in the first demonstration burn. The first demonstration burn consisted of three runs or trials. While the first two runs were successful, the data from the third run showed that the 6-9s DRE was not met. The EPA, therefore, did not approve the first burn. However, the evidence indicated that an interferent caused the failure to meet the 6-9s standard and the DFS furnace performed properly. Cudahy testified that he had examined the structure and design of the DFS, and in light of his familiarity of PCB test burns conducted at other facilities, it was his opinion that the DFS would meet the 6-9s DRE. Based on the above evidence, the court concludes that the DFS will meet the 6-9s DRE. Plaintiffs have asserted claims under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332 et seq.11 By previous order, the court dismissed plaintiffs' allegation that the failure to prepare a supplemental Environment Impact Statement ("EIS") violated NEPA. The only issue remaining at trial on plaintiffs' NEPA claims was whether plaintiffs' challenge to the 1988 and 1989 EISs is barred by the statute of limitations. The plaintiffs contend that defendants actively concealed relevant information that should have been included in the 1988 and 1989 documents and that, therefore, the doctrine of equitable tolling allowed plaintiffs' NEPA claims to go forward. According to the plaintiffs, the defendants concealed information about three subjects: the cause of sheep deaths in Skull Valley, Utah; the synergistic effects of pesticides; and the existence of a dioxin reference dose.12 On March 13, 1968, as part of an overflight spray test, an Airforce F-4E aircraft released approximately 2,500 pounds of chemical agent VX over the Dugway Proving Grounds, near Skull Valley, Utah. Almost immediately, thousands of sheep that had been grazing near the Dugway Proving Grounds fell ill and died. News articles reflected the suspicion that chemical agent was the cause of the deaths. For example, the headline of an article in the Washington Post read: "Did U.S. Army Nerve Gas Kill the 6,400 Sheep in Utah?" (Article of Mar. 23, 1968, cited in Defendants' Ex. A-1136 at 571). Similarly, the Los Angeles Times reported that "Army Chemical Suspected" in the sheep deaths. (Article of Mar. 21, 1968, cited in Defendants' Ex. A-1136 at 540). The Army initially denied any link between the release of chemical agent and the sheep deaths. Despite their initial denial of responsibility, however, federal authorities, including the Army, soon began an investigation into the cause of the sheep deaths. In April 1968, under the direction of Brigadier General William Stone, the Army released a two-volume report ("the Stone Report") which detailed the results of the investigation. The Stone Report was initially classified and not available to the public, but declassified in January 1976. Reference to the Stone Report appears in the Army's administrative record for the 1988 FPEIS. In 1969 and 1970, the Journal of American Veterinary Medical Association published articles on the sheep deaths. Material from both articles appeared in the FPEIS. ("Sheep were poisoned at Skull Valley, Utah from eating VX-contaminated forage . . . ." App. O at 26, Defendants' Ex. A-1143). Other reports of investigations and studies of the sheep deaths were referred to in the FPEIS. 2. Synergistic Effects of Pesticides During the investigation into the sheep deaths, an experiment was conducted to determine if pesticides that had been used for aerial crop spraying in the vicinity of Skull Valley might have interacted with the chemical agent that had been released. The 1988 FPEIS disclosed the details and the results of this experiment, concluding that "the animals [four sheep] were observed continuously for effects, but no toxic signs or indications of synergism were produced. The sheep were completely normal during the 48-hour observation period." (Defendants' Ex. A-1140 at 35). The investigation also explored the effects of other insecticides on sheep. (Id. at 36-37). This material was referred to in the 1988 FPEIS. Plaintiffs contend that the defendants concealed information that the EPA had, before 1988, calculated a reference dose of 1 pg/kg/day for dioxin exposure and that this information was not disclosed in the NEPA documents. Although plaintiffs are apparently correct that this information was not disclosed in the NEPA documents, it is undisputed that the information on a possible reference dose was known and available to the public in 1984. The court has jurisdiction over this action pursuant to 42 U.S.C. § 6972(a), 15 U.S.C. § 2619(a), and 28 U.S.C. § 1331. Venue is not disputed. Remaining for resolution at trial were plaintiffs' claims brought under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6941 et seq.; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq.; and NEPA. RCRA's citizen suit provisions are found at 42 U.S.C. § 6972. Under § 6972(a)(1)(A), any person may bring suit "against any person (including . . . the United States . . .) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, [30 ELR 20523] or order which has become effective pursuant to this chapter . . . ." 42 U.S.C. § 6972(a)(1)(A). Section 6972(a)(1)(B) authorizes suit "against any person, including the United States . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . ." 42 U.S.C. § 6972(a)(1)(B). 1. Section 6972(a)(1)(A) Claims Plaintiffs have pointed to a number of incidents and events that they claim show that defendants have violated their RCRA permits, and therefore have violated § 6972(a)(1)(A). The court concludes that plaintiffs have not prevailed on any of their claims under this subsection because either the claim is barred by the Gwaltney Doctrine or the evidence at trial did not establish the claimed violation. a. Claims Barred by the Gwaltney Doctrine In Gwaltney of Smithfield, Ltd., of Chesapeake Bay Foundation, Inc., et al., 484 U.S. 49 [18 ELR 20142] (1987), the Court held that while citizens may bring suit against dischargers whom they believe to be violating the Clean Water Act, a district court does not have subject matter jurisdiction over a citizen suit for wholly past violations. In arriving at this conclusion, the Court focused its attention on the language of the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a), which permits a private cause of action only against persons who are "alleged to be in violation" of the Act. The Court held that the "prospective orientation" of the phrase indicated that Congress had authorized only prospective relief. Gwaltney, 484 U.S. at 57. The Court observed that Congress has used identical language in the citizen suit provisions of several other environmental statutes, including § 6972(a)(1)(A), "that authorize only prospective relief." Id. The Court pointed out, citing § 6972(a)(1)(B) as an example, that Congress knows how to draft a statute that "explicitly targets wholly past violations." Id. n.2. Although the Tenth Circuit has not addressed the question of whether claims based on wholly past violations can be brought under § 6972(a)(1)(A), other courts have found that the Supreme Court's language in Gwaltney prohibits suits under § 6972(a)(1)(A) for wholly past violations. See, e.g., Carroll v. Litton Systems, Inc., 47 F.3d 1164 [25 ELR 20605] (4th Cir. 1995); Ascon Properties v. Mobil Oil Co., 866 F.2d 1149, 1159 [19 ELR 20374] (9th Cir. 1989); Raymond K. Hoxsie Real Estate Trust v. Exxon Education Foundation, 81 F. Supp. 2d 359, 363 [30 ELR 20308] (D.R.I. 2000); Aurora National Bank v. Tri Star Marketing, Inc., 990 F. Supp. 1020, 1024 [28 ELR 21230] (N.D. Ill. 1998). Pennsylvania Real Estate Investment Trust v. SPS Technologies, Inc., 1995 WL 687003, *6 (E.D. Pa. 1995); Murray v. Bath Iron Works Corp., et al., 867 F. Supp. 33, 42 [25 ELR 20547] (D. Me. 1994); Chartrand v. Chrysler Corporation, 785 F. Supp. 666, 670 [22 ELR 20998] (E.D. Mich. 1992).13 Accordingly, because plaintiffs have failed to establish that the following violations were on-going or likely to reoccur, judgment is granted on plaintiffs' § 6972(a)(1)(A) claims: i. The March 30, 1998, overfeed of agent to the MPF; ii. The failure to stagger the common stack ACAMS on five occasions between November 1996 and April 1997; iii. The operation of TOCDF by EG&G without a license. (EG&G was added to the operating permit on June 18, 1996). iv. The failure to file a hazardous waste minimization plan and obtain the corresponding certification during the first year of operation at TOCDF. (Defendants have been properly certified since August 1996). b. Claims Not Supported by Evidence The court further concludes that the evidence presented at trial was not sufficient to establish the following: i. that chemical agent has been released into the environment outside TOCDF; ii. that any TOCDF personnel or visitors have been injured through exposure to chemical agent; iii. that the safety practices of TOCDF violate the terms of the TOCDF permits; iv. that the gelling of agent in rockets and defendants' proposal to the State of Utah to incinerate rockets containing more than a 5% heel is in violation of defendants' permits or poses a threat to health and the environment; v. that the low pH factor of some of the chemical agents and defendants' means of incinerating it violates defendants' permits or poses a threat to health and the environment; vi. that defendants have failed to properly categorize agent waste; and vii. that defendants have failed to comply with the terms and the requirements of their permits from the State of Utah. 2. Section 6972(a)(1)(B) Claims In order to prevail under this subsection, plaintiffs must show that defendants' actions "present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B). Plaintiffs allege that the various operational events and incidents at TOCDF and the emissions from the common stack described above satisfy the requirements of this subsection. The court holds that the evidence at trial does not support such a conclusion. Although there have been problems in the operation of TOCDF, there was no evidence that TOCDEF personnel, the public, or the environment have been harmed by these operations. Further, the evidence at trial indicated that when an operational incident occurred, defendants took steps to improve procedures and implement additional safety measures to prevent similar incidents from occurring. There was no evidence at trial that chemical agent has ever been released from the common stack into the environment and the evidence demonstrated that the release of non-agent emissions from the common stack have been, and continue to be, well within regulatory guidelines. Since plaintiffs failed to demonstrate that defendants' actions present an imminent and substantial endangerment to health or the environment, their claims under § 6972(a)(1)(B) must fail. Plaintiffs brought suit under the citizens' suit provision of TSCA, 15 U.S.C. § 2619, claiming that defendants had violated TSCA by failing to meet the 6-9s DRE required for the destruction of PCBs. The evidence at trial demonstrated that TOCDF has, and continues to, meet the 6-9s DRE. Therefore, plaintiffs have not prevailed on their TSCA claim. NEPA does not have a private right of action. Challenges to NEPA decisions are governed by the Administrative Procedures Act ("APA"). See Chemical Weapons Working Group v. Dep't of the Army, 111 F.3d 1485, 1494 [27 ELR 21130] (10th Cir. 1997). Plaintiffs' NEPA claims must fall within the six-year statute of limitations of 28 U.S.C. § 2401, which applies to suits under the APA. See id. As the court has previously held, unless plaintiffs can demonstrate that the limitations periods should be equitably tolled, plaintiffs' challenges to the 1988 FPEIS and the 1989 EIS are time-barred. Plaintiffs contend that the statutes of limitations have been tolled by the defendants' concealment of information concerning the sheep deaths in Skull Valley, Utah, the synergistic effect of pesticides, and a possible reference dose for dioxin. To prevail on these claims, plaintiffs must demonstrate that the defendants "engaged in 'active deception' which caused [their] filing to be untimely." Purrington v. Univ. of Utah, 996 F.2d 1025, 1030 (10th Cir. 1993) (internal citations omitted). Plaintiffs acknowledge that the defendants "did disclose selected other portions of the available information regarding the sheep kill." (Plaintiffs' Proposed Findings of Fact and Conclusions of Law on NEPA Issues at 3). Plaintiffs assert that equitable tolling should apply because "these disclosures are only peace-meal [sic], bits and pieces of a puzzle that are disclosed without the existence of the puzzle itself being known to the public." (Id. at 4). Plaintiffs' equitable tolling argument, then, is based on the adequacy of the discussion of the sheep deaths and the information in the NEPA documents. Plaintiff's allegations [30 ELR 20524] simply do not rise to the level of active deception, particularly in view of the fact that the Stone Report, which extensively discussed the sheep deaths, was available in 1976. Similarly, plaintiffs' arguments regarding a possible dioxin reference dose and the synergistic effects of pesticides fall short of establishing active deception by the defendants. Plaintiffs admit that as early as 1988, information was available from the EPA concerning a possible reference dose for dioxin. (Id. at 5). In addition, the synergistic effects of pesticides was contained in the FPEIS. Accordingly, plaintiffs' NEPA claims are time-barred. For the above reasons, judgment is granted for the defendants on all claims against them brought by plaintiffs. 1. For convenience, all defendants will be referred to collectively as "defendants" although the court recognizes that the responsibilities and actions of the federal defendants and the private defendant were often not the same. 2. In several previous decisions by this court and the Tenth Circuit Court of Appeals, the background of the chemical warfare agent stockpile stored at Deseret Chemical Depot (formerly known as the Tooele Army Depot) and the physical facility at TOCDF, including various safety systems and features, are extensively discussed. The court will not repeat this information except as necessary to explain its decision here. 3. The common stack releases emissions from TOCDF to the outside environment. 4. As discussed below, the concealment allegations are relevant to plaintiffs' claims brought under the National Environmental Protection Act. 5. Before draining, the bombs contain 220 pounds of agent. 6. Areas in TOCDF are designated as either Level A, B, or C, according to whether chemical agent is expected to be present. An area is designated Level A or B if chemical agent is expected to be present. Level C areas are those where chemical agent is not expected to be present. Protective clothing must be worn in A and B areas. TOCDF personnel working in A areas wear the highest degree of protective clothing. 7. The Army definition of "exposure to chemical agent" is a measurable reduction of cholinesterase, an enzyme found in blood plasma. 8. TOCDF's HVAC is designed, through the use of negative air pressure, to prevent agent migration. 9. TWA is an agent concentration exposure measurement established by the Office of the Surgeon General. An average individual can be exposed to one TWA for eight hours per day, forty hours per week, for his or her lifetime, withoutsuffering adverse health effects. 10. In an earlier order, the court discussed the Assessment at length. See Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 935 F. Supp. 1206, 1213-14 [27 ELR 20022] (D. Utah 1996). 11. Plaintiffs' NEPA claims are directed at two environmental impact statements. In 1988, the Department of the Army completed a three-volume final programmatic environmental impact statement ("1988 FPEIS") on the disposal of stockpiled munitions and chemical agent. A Record of Decision ("ROD") was signed on February 23, 1988. On-site incineration was selected as the process to dispose of the stockpiled chemical weapons. The following year, the Army prepared a site-specific environmental impact statement ("1989 EIS") for the Tooele facility. On August 30, 1989, a ROD was signed, and on-site incineration was selected. The 1989 EIS incorporated the 1988 FPEIS. 12. The evidence presented at trial consisted solely of documents, most of which were presented by defendants. 13. The court has found no courts that have permitted suits under this subsection for wholly past violations. 30 ELR 20519 | Environmental Law Reporter | copyright © 2000 | All rights reserved |