Court says open burning and detonation at Tarague Beach not covered by NEPA
Updated: Oct 9, 2022
By Mar-Vic Cagurangan
The National Environmental Protection Act does not apply to the military’s waste disposal procedures at Andersen Air Force Base, the federal court ruled on Thursday.
Chief Federal Judge Frances Tydingco-Gatewood pointed out that open burning and open detonation at AAFB are covered by the Resource Conservation and Recovery Act.
The Recovery Act is the specific statute that addresses hazardous waste disposal, while NEPA is a general statute applicable to actions that significantly affect the environment, the court said.
The written order capped Tydingco-Gatewood's earlier verbal decision dismissing the lawsuit filed by the environmental groups Prutehi Litekyan and Earthjustice against the U.S Air Force.
The lawsuit attempted to block AAFB’s application for a three-year renewal of its permit for conducting open burning and open detonation to dispose of waste munitions at the Explosive Ordnance Disposal Range on Tarague Beach.
According to court filings, the hazardous waste consists of common military ordnance materials, such as black powder, white/red phosphorus, tear gas, ammunition, propellants and explosive materials.
AAFB obtained its first permit in 1982 as a requirement under the RCRA. The permit is renewed by the Guam Environmental Protection Act every three years.
The latest application for permit renewal, which was filed on May 17, 2021, remains pending. "Guam EPA has yet to make a decision on whether it will approve or deny said application,” the court said.
The District Court of Guam held that the AAFB’s waste disposal operations complied with the RCRA.
“This is accomplished through the U.S. EPA, or in this case, through the Guam EPA, which has full authorization from the U.S. EPA. Guam EPA has its own process for issuing a permit, as well as a public comment period,” the court said.
The court said it would be “redundant and a waste of resources” to require AAFB to comply with NEPA after having already complied the RCRA.
“As such, the additional procedure requirement of the National Environmental Policy Act serves no purpose,” the decision states.