Contact: Glen Milner (206) 365-7865
Federal Judge Ronald B. Leighton, on January 8, granted the U.S. Navy’s motion to dismiss an environmental lawsuit concerning the Navy’s second Explosives Handling Wharf. The lawsuit was filed on June 19, 2012 by Ground Zero Center for Nonviolent Action and Washington Physicians for Social Responsibility. The Navy began construction of the four-year project in September 2012. Plaintiffs asserted that the project began without an adequate study of environmental impacts under the National Environmental Policy Act (NEPA).
Judge Leighton in his ruling stated, “The Navy met the requirements of NEPA and its implementing regulations.” The ruling means that the Navy will not be required to explain to the public the dangers of the project, including greatly increased explosion risks from the close proximity of two wharves used to handle volatile Trident missiles.
The Navy’s $715 million wharf will have 1,250 pilings and cover 6.3 acres of water in ecologically sensitive Hood Canal. The Navy, while withholding information regarding explosives safety, will double the amount of explosives in Hood Canal and likely double the amount of missile handling by the Navy. The net explosive weight of the two wharves is equal to 7.4 million pounds of TNT in the form of rocket propellant in the missiles. The propellant is classified as an HC/D 1.1 explosive, more volatile than TNT, and is capable of detonating upon impact.
In May 2009, the Navy announced it was conducting an Environmental Impact Statement (EIS) for the second Explosives Handling Wharf. In March 2012, the Navy released its Final EIS and the Record of Decision was filed in May 2012.
Throughout the EIS process, the Navy insisted that it was not increasing the risk of an accident involving missiles in Hood Canal. In the Final EIS the Navy stated, “No new or increased quantity of explosives would be introduced as a result of the construction and operation of the EHW-2.” The Navy also stated, as well as numerous other similar statements, “The proposed project would not change the amounts or manner in which explosive materials are handled on NBK at Bangor.” However after the case was filed, the Navy released over 115,000 pages in its administrative record which proved a substantial new risk.
In September 2012, plaintiffs discovered that while the Navy was informing the public that there were no new risks from explosive material, a debate had been raging within the Department of Defense. The agency in charge of explosives safety, the Department of Defense Explosives Safety Board, had refused to grant permission for the project. The Navy instead sought its own Secretarial Certification, one of only seven such exemptions in the U.S., and agreed to accept all responsibility for any accident and the consequences of any accident for the entire life of the wharf.
Judge Leighton never addressed the fact that the Navy had misled the public throughout the EIS process. His ruling also did not address the plaintiffs’ claim that the Navy violated a requirement to include comments of the Explosive Safety Board in the EIS, which would have alerted the public to the danger of siting two missile-handling wharves close together.
Other records released after the case was filed showed that the Navy planned to spend up to $32.2 million for “Impacted Facilities” to fortify or move existing facilities which could be damaged from an explosives accident at the new wharf. The expense amounts to about 4.5 percent of the entire project. But the Navy could not move or fortify the existing EHW. Mysteriously, the Navy removed the fragmentation barrier between the wharves which was designed to prevent the propagation of an explosion at the adjacent wharf.
Although the Navy later released records after the lawsuit was filed that proved the plaintiffs’ assertions regarding explosives safety, Judge Leighton stated the Navy was not required release them. Judge Leighton stated, “The Navy’s analysis of the risk of explosions is protected from disclosure by law and therefore the Navy was not required to disclose it in a public NEPA document.” However, there was no evidence in the administrative record that a risk analysis was ever conducted for the new wharf. Addressing records that were withheld during the EIS, Judge Leighton added, “Moreover, the Court is unconvinced that withholding these materials is even significant.”
Glen Milner, a listed plaintiff in the lawsuit, stated, “The Navy had proven our case for us with its release of explosion risk information after the lawsuit was filed. Somehow Judge Leighton ruled that those same released records and the information within them were exempt from disclosure. The records are public now, so there is no reason why the Navy could not have released them during the EIS process when there was still time for the public to influence the project decision.” Milner added, “According to Department of Defense Explosives Safety Board and Navy regulations, the two wharves should be at least 2,789 feet apart instead of around 300 feet.”
Plaintiffs are discussing their options in the case. The Navy expects the second Explosives Handling Wharf to be operational in October 2016.
The lawsuit would not have been possible without the support of the Ground Zero Center for Nonviolent Action, Ground Zero members, and other members of the public. More than 300 individuals spoke against the second wharf in public hearings and in written comments for the Navy’s EIS. Ground Zero is an all-volunteer organization. Ground Zero members supported and paid fees for the lawsuit—a substantial undertaking for a small organization.
NOTE: Milner and Kathy George, the attorney who represented Ground Zero in its lawsuit, are scheduled to appear on “Mind Over Matters” on KEXP FM, 90.3, Seattle, Washington at 7:30 AM on Saturday, January 11th.