## Facts

- Congress directed the Department of Defense to destroy the United States’ chemical weapons stockpile stored at multiple sites, including a large cache at Tooele, Utah.
- The Army selected high-temperature incineration as the destruction method for the Tooele Chemical Agent Disposal Facility (TOCDF) after completing a programmatic EIS and a site-specific EIS.
- Full-scale incineration testing occurred at Johnston Atoll, after which responsible entities reported no fundamental safety or environmental concerns.
- Utah regulators issued Clean Air Act and RCRA-related permits for the facility; trial burns were conducted and approved by the Utah Department of Environmental Quality.
- Environmental and public-interest organizations challenged operation of TOCDF, alleging that stack emissions would deposit pollutants onto land and water and ultimately contaminate navigable waters.
- Plaintiffs sued under the Clean Water Act (citizen-suit provisions), RCRA, the 1986 Department of Defense Authorization Act, and the APA, and sought a preliminary injunction to stop operations.
- The district court denied the preliminary injunction and dismissed the claims for failure to state a claim and/or lack of jurisdiction; plaintiffs appealed.

## Issues

1. Whether allegations that airborne stack emissions will later deposit into navigable waters state a Clean Water Act claim for an unpermitted “discharge of a pollutant” from a “point source.”
2. Whether RCRA’s citizen-suit provisions or the 1986 Department of Defense Authorization Act permit private plaintiffs to enjoin or restructure the Army’s congressionally mandated chemical weapons destruction program.
3. Whether the Army’s environmental analyses and implementation decisions were arbitrary, capricious, or otherwise unlawful under the APA.
4. Whether the district court abused its discretion in denying a preliminary injunction.

## Decision

- The Tenth Circuit affirmed the denial of a preliminary injunction.
- The court affirmed dismissal of the Clean Water Act claim, holding that emissions to air with only eventual deposition into water are not the type of point-source discharge regulated by the CWA.
- The court affirmed dismissal of RCRA and Authorization Act claims, concluding they did not authorize the requested judicial intervention in the disposal program.
- The court rejected the APA challenge, finding the Army’s record-supported technical judgments were not arbitrary or capricious.
- Because plaintiffs did not show a sufficient likelihood of success and the record supported the district court’s balancing of harms and public interest, there was no abuse of discretion.

## Legal Principles

- The Clean Water Act’s NPDES scheme targets discharges from a point source to navigable waters; indirect air-to-water pathways via atmospheric transport and deposition do not, without more, state a CWA point-source discharge claim.
- Courts generally will not treat the CWA as a mechanism to regulate emissions addressed by air-pollution statutes merely because airborne pollutants may later reach water.
- RCRA citizen suits and related statutory claims cannot be used to obtain relief inconsistent with Congress’s mandated disposal program or absent the statute’s required predicates (including, where applicable, a showing of “imminent and substantial endangerment”).
- Where Congress has made core policy choices and an agency has compiled an extensive environmental and technical record, APA review is deferential and does not permit courts to substitute their judgment for the agency on complex scientific and predictive determinations.
- Appellate review of a preliminary injunction denial is for abuse of discretion; weak or legally deficient underlying claims typically defeat the likelihood-of-success factor.

## Conclusion

The Tenth Circuit allowed the Army’s permitted chemical weapons incineration program at Tooele to proceed, holding that the Clean Water Act does not reach alleged pollution that travels first through the air and only later deposits into navigable waters, and concluding that plaintiffs’ RCRA, Authorization Act, and APA theories did not justify judicial disruption of a congressionally directed, technically supported disposal program.


Chemical Weapons Working Group, Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485 (10th Cir. 1997)