U.S. Disposal of Chemical Weapons in the Ocean: Background and Issues for Congress

Order Code RL33432

U.S. Disposal of Chemical Weapons in the Ocean:

Background and Issues for Congress

Updated January 3, 2007

David M. Bearden

Analyst in Environmental Policy

Resources, Science, and Industry Division

U.S. Disposal of Chemical Weapons in the Ocean:

Background and Issues for Congress

Summary

The U.S. Armed Forces disposed of chemical weapons in the ocean from World

War I through 1970. At that time, it was thought that the vastness of ocean waters

would absorb chemical agents that may leak from these weapons. However, public

concerns about human health and environmental risks, and the economic effects of

potential damage to marine resources, led to a statutory prohibition on the disposal

of chemical weapons in the ocean in 1972. For many years, there was little attention

to weapons that had been dumped offshore prior to this prohibition. However, the

U.S. Army completed a report in 2001 indicating that the past disposal of chemical

weapons in the ocean had been more common and widespread geographically than

previously acknowledged. The Army cataloged 74 instances of disposal through

1970, including 32 instances off U.S. shores and 42 instances off foreign shores. The

disclosure of these records has renewed public concern about lingering risks from

chemical weapons still in the ocean today.

The risk of exposure to chemical weapons dumped in the ocean depends on

many factors, such as the extent to which chemical agents may have leaked into

seawater and been diluted or degraded over time. Public health advocates have

questioned whether contaminated seawater may contribute to certain symptoms

among coastal populations, and environmental advocates have questioned whether

leaked chemical agents may have affected fish stocks and other marine life. There

also has been public concern that chemical weapons could wash ashore or be

accidentally retrieved during activities that disturb the seabed, such as dredging and

trawl fishing. Although such incidents have occurred domestically and abroad, they

are rare relative to the thousands of weapons dumped in the ocean. Assessing the

degree of risks is difficult because of a lack of information.

Whether the risks are low or high, how to respond to them is fraught with many

challenges. The primary obstacle is locating the weapons in the ocean. The lack of

coordinates for most of the disposal sites, and the possibility that ocean currents may

have moved weapons beyond these areas, makes finding the weapons difficult at best,

if not impracticable in some cases. Enacted in the second session of the 109th

Congress, the John Warner National Defense Authorization Act for FY2007 (P.L.

109-364, H.R. 5122) requires further review of historical records to attempt to

identify where chemical and conventional weapons were dumped off U.S. shores,

research of the effects of these weapons on the ocean environment, and monitoring

to determine whether contamination or health or safety risks are present. The funding

and implementation of these requirements are potential issues for the 110th Congress.

In the event that the weapons are located, retrieving them from the seabed could

be technically challenging and could introduce new risks during retrieval and

transport for onshore disposal. Leaving located weapons in place, and warning the

public to avoid these areas, may be more feasible and involve fewer immediate risks.

However, long-term risks would remain. Responding to potential risks is further

complicated by insufficient information to reliably estimate response costs and by the

uncertain availability of federal funding to pay for such actions.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

History of U.S. Disposal of Chemical Weapons in the Ocean . . . . . . . . . . . . 2

Cessation of U.S. Disposal in the Ocean . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Potential Risks from Disposal in the Ocean . . . . . . . . . . . . . . . . . . . . . . . . . 8

Relevant Scientific Studies in Europe and Russia . . . . . . . . . . . . . . . . . . . . . 9

Response Options and Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Locating Disposal Sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Identifying Weapons and Containers . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Retrieving Munitions for Onshore Disposal . . . . . . . . . . . . . . . . . . . . 11

Remediating Contaminated Seawater . . . . . . . . . . . . . . . . . . . . . . . . . 12

Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Response Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERCLA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Clean Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

RCRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Legislation Enacted in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

List of Tables

U.S. Army Records of Past Disposal of Chemical Weapons in the Ocean

off the Coasts of the United States through 1970 . . . . . . . . . . . . . . . . . . . . . 3

U.S. Disposal of Chemical Weapons

in the Ocean: Background and

Issues for Congress

Introduction

Greater awareness of the past disposal of chemical weapons in the ocean has

motivated growing concern among the public about potential risks to human health,

safety, and the marine environment. The Department of Defense (DOD) reports that

the United States ceased the disposal of chemical weapons in the ocean in 1970.

Congress later enacted legislation in 1972 that banned the disposal of wastes in the

ocean in general, including chemical weapons. Although DOD has indicated that

chemical weapons are no longer dumped in the ocean, much is unknown about the

potential risks from the past disposal of such weapons still in the ocean today.

A report completed by the U.S. Army in 20011 provided more information than

previously released on specific areas of the ocean where the U.S. Armed Forces had

disposed of chemical weapons.2 In its report, the Army acknowledged that some of

these weapons were damaged or leaking at the time of disposal. In light of this more

recent information, public health and environmental advocates, marine

conservationists, and the general public have raised questions about the potential

risks of chemical weapons in the ocean and have suggested that scientific study is

needed to assess these risks.

This report provides a brief history of the disposal of chemical weapons in the

ocean by the U.S. Armed Forces, discusses potential risks to human health and the

marine environment, reviews findings of relevant scientific studies of risks from the

disposal of chemical weapons off the coasts of Europe and Russia, analyzes factors

that determine the feasibility of responding to potential risks, identifies possible

response authorities in existing federal law, and examines historical review, scientific

research, and monitoring requirements in Section 314 of the John Warner National

Defense Authorization Act for FY2007 (P.L. 109-364, H.R. 5122).

1

Department of Defense. U.S. Army Research, Development, and Engineering Command,

Aberdeen Proving Ground, Maryland. Corporate Information Office. Historical Research

and Response Team. Off-shore Disposal of Chemical Agents and Weapons Conducted by

the United States. March 29, 2001. 15 pp.

2

According to the Army’s 2001 report, chemical weapons disposed of in the ocean by the

U.S. Armed Forces included surplus and damaged bombs, rockets, projectiles, and other

munitions containing chemical warfare agents, and barrels, cylinders, and other containers

filled with surplus chemical warfare agents produced for use in munitions. In this report,

the term chemical weapons includes of all these items and, as such, refers to both chemical

munitions and containers of chemical warfare agents.

CRS-2

History of U.S. Disposal of Chemical Weapons in the Ocean

In the late 1960s, DOD first publicly acknowledged that the U.S. Armed Forces

had routinely disposed of chemical weapons in the ocean since World War I. In its

2001 report, the Army provided more extensive historical records on the number of

instances and areas of the ocean where the U.S. Armed Forces disposed of chemical

weapons. The Army catalogued 74 instances of disposal in the ocean, of which 32

were off U.S. shores and 42 were off foreign shores. The first recorded instance was

in 1918 at an unknown location in the Atlantic Ocean between the United States and

England. The Army’s records did not note other instances of ocean disposal until

1941. Therefore, the extent to which ocean disposal may have occurred in between

these years is unknown. According to the Army, the last instance of disposal

occurred in 1970, approximately 250 miles off the coast of Florida.

Estimating the cumulative quantity of chemical weapons dumped in the ocean,

and identifying all types of such weapons, is not possible because of incomplete

historical records. The Army’s 2001 report indicated that the number of chemical

weapons in each instance of disposal ranged widely, from a few weapons to

thousands. The Army also indicated that in some instances, conventional explosives

and radiological waste were dumped in the ocean along with chemical weapons. The

volume of chemical weapons agents also varied widely, from 30 pounds or less to

thousands of tons. The types of chemical weapons varied as well, commonly

including sulfur mustard3 and nerve agents.4 At some sites, the Army does not know

the exact substances that were disposed of in the ocean. The reasons for ocean

disposal also varied. Some weapons were deemed surplus. Others were damaged

and leaking chemical agents, presenting an immediate risk to the military personnel

who managed them. Certain weapons were not produced by the United States, but

were captured from foreign nations and were disposed of to prevent their use.

The dumping of chemical weapons in the ocean was widespread geographically,

including areas off the coast of the continental United States in the Atlantic and

Pacific Oceans and the Gulf of Mexico, off the coast of Hawaii, and two instances

of disposal in the Mississippi River in Louisiana. Although the Army identified

individual instances of disposal by site, the exact coordinates for many of these sites

are unknown. Rather, a broad geographic reference to a state or city on the coast and

the approximate distance from shore is specified to denote the location. In some

instances, only the Atlantic or Pacific Ocean at large is identified. The Army also

acknowledged disposal by the U.S. Armed Forces off the coasts of foreign nations

in the Atlantic and Pacific Oceans, North Sea, Mediterranean Sea, and Indian Ocean.

(See the following table for a list of instances of disposal in the ocean off U.S.

shores. A complete list, including disposal off foreign shores, is provided in the

Army’s 2001 report.)

3

Sulphur mustard is a viscous liquid that becomes solid at 58 degrees Fahrenheit. Chemical

weapons contain sulphur mustard in either form depending on temperature. Upon impact,

chemical weapons release sulphur mustard in a gaseous vapor, referred to as “mustard gas.”

4

Common nerve agents include tabun, sarin, soman, and VX. They are liquid in form, but

when exposed to the air, they evaporate quickly into a gas. Chemical weapons contain nerve

agents in liquid form, to be released as a gas upon delivery to an intended target.

CRS-3

U.S. Army Records of Past Disposal of Chemical Weapons in

the Ocean off the Coasts of the United States through 1970

Date or

Time Period

Approximate Location of

Disposal and Point of Origin

Onshore

Chemical Weapon or Agent

World War II

Atlantic Ocean, off Charleston,

South Carolina

105 millimeter (mm) mustard

projectiles and M70 115-pound

mustard bombs

World War II

Atlantic Ocean, off Norfolk,

Virginia

Unknown

August 1944

Pacific Ocean, neither shoreline

point of reference nor originating

point are specified

36 M47A2 100-pound mustard

bombs and approximately 15,000

unspecified bombs

1944

Pacific Ocean, off Pearl Harbor,

Oahu, Hawaii

4,220 tons of unspecified toxics

and hydrogen cyanide

1944

Pacific Ocean, about five miles off approximately 16,000 M47A2

Oahu, Hawaii

100-pound mustard bombs

1944 (year

uncertain)

Mississippi River, originating

from New Orleans, Louisiana

More than 20 (number uncertain)

leaking M70 115-pound mustard

bombs

September 14December 21,

1945

Atlantic Ocean, “Disposal Area

Number 1,” originating from

Edgewood Arsenal, Maryland

1,154 55 gallon drums of arsenic

trichloride

375 tons of

diphenylaminechloroarsine

(adamsite) smoke candles

75,852 4.2-inch distilled mustard

shells

924 M74 10-pound white

phosphorus cluster bombs

approximately 56,000 smoke

canisters

approximately 23,000 smoke

projectiles

October 17November 2,

1945

Pacific Ocean, off Hawaii,

20 M79 1000-pound hydrogen

originating from Waianae, Hawaii cyanide bombs

1,100 M79 1000-pound cyanogen

chloride bombs

125 M78 500-pound cyanogen

chloride bombs

14,956 M70 114-pound mustard

bombs

30,917 4.2-inch mortar mustard

shells

CRS-4

Date or

Time Period

Approximate Location of

Disposal and Point of Origin

Onshore

Chemical Weapon or Agent

1,038 one-ton containers of

mustard agent

190 one-ton containers of lewisite

1945

Mississippi River, 3-4 miles south 2 unspecified bombs

of Braithwaite, Louisiana, as a

result of accidental sinking in

quicksand in a ship canal

March 7, 1946

Gulf of Mexico, originating from

New Orleans, Louisiana

March 10,

1946

Gulf of Mexico, originating from 2 leaking mustard bombs

Edgewood Arsenal, Maryland, and

loaded for sea disposal at New

Orleans, Louisiana

March 21-25,

1946

Atlantic Ocean, “Baker” Site off

Charleston, South Carolina,

originating from Naval Mine

Depot, Virginia

4 “carloads” of mustard

projectiles

May 1946

Gulf of Mexico, originating point

not specified

3 phosgene bombs

(German origin)

July 13, 1946

Gulf of Mexico, 20 miles offshore, 30 500 kg mustard bombs

originating from Mobile, Alabama

3 250 kg mustard bombs

(German origin)

August 1October 17,

1946

Atlantic Ocean, “Baker” Site off

Charleston, South Carolina

Unspecified quantity of mustard

projectiles

lewisite, mustard, phosgene

bombs

German mustard and tabun

bombs

mustard one-ton containers

mustard projectiles

(quantities unspecified)

June 30- July

15, 1947

Pacific Ocean, 12 miles off

Aleutian Islands, originating from

Attu and Adak, Alaska

61 containers of mustard agent

December 1520, 1948

Atlantic Ocean, 300 miles off

Florida, originating from Gulf

Chemical Warfare Depot,

Alabama, via Charleston, South

Carolina

3,711 containers of lewisite

Gulf of Mexico, originating from

Mobile, Alabama

one “barge” of riot-control agent

projectiles (quantity not

specified)

February 20,

1954

887 containers bulk lewisite

60 M14 bulk lewisite

CRS-5

Date or

Time Period

Approximate Location of

Disposal and Point of Origin

Onshore

JanuaryFebruary 1955

Gulf of Mexico, originating from

Mobile, Alabama

November 1314, 1957

Atlantic Ocean, originating from

48 one-ton containers of lewisite

Edgewood Arsenal, Maryland, and

loaded for sea disposal at Colts

Neck Naval Pier, Earle, New

Jersey

March 20-27,

1958

Atlantic Ocean, off South

Carolina, originating from Pine

Bluff Arsenal, Arkansas, and

loaded for sea disposal at Sunny

Point, North Carolina

1,507 one-ton containers of

lewisite

Pacific Ocean, 117 miles off San

Francisco, California, originating

from Navajo Army Depot,

Arizona, and Tooele Army Depot,

Utah, and loaded for sea disposal

at Concord Naval Weapons

Station, California

301,000 M70 115-pound mustard

bombs

Pacific Ocean, 117 miles off San

Francisco, California, originating

from Tooele Army Depot, Utah,

and loaded for sea disposal at

Concord Naval Weapons Station,

California

6 M47 100-pound mustard bombs

Atlantic Ocean, originating from

Edgewood Arsenal, Maryland

2 one-ton containers of lewisite

April 19, 1958

May 25, 1958

June 14-15,

1960

Chemical Weapon or Agent

“1 or 2 barges” of unspecified

toxic munitions (quantity not

specified)

63 one-ton containers of nitrogen

mustard

1,479 one-ton containers of

lewisite

335 one-ton containers of lewisite

11 one-ton containers of nitrogen

mustard

2 mustard projectiles

1 lewisite cylinder

non-chemical weapons materials

(unspecified quantity of

radiological waste)

June 18, 1962

Atlantic Ocean, originating from

Edgewood Arsenal, Maryland

378 105 mm mustard projectiles

341 155 mm mustard projectiles

1 one-ton container of lewisite

20 drums of cyanide

5,252 white phosphorous

munitions

non-chemical weapons materials

(421,757 pounds of radiological

waste)

CRS-6

Date or

Time Period

August 6-7,

1964

Approximate Location of

Disposal and Point of Origin

Onshore

Chemical Weapon or Agent

Atlantic Ocean near 1960 and

456 one-ton containers of riot

1962 sites noted above, originating control agent

from Edgewood Arsenal,

1,700 75 mm mustard projectiles

Maryland

74 one-ton containers of mustard

agent

10 M78 500-pound cyanogen

chloride bombs

non-chemical weapons materials

(800 55-gallon drums of

radiological waste)

June 15, 1967

Atlantic Ocean, originating from

4,577 one-ton containers of

Colts Neck Naval Pier, Earle, New mustard agent

Jersey

7,380 M55 sarin rockets in

concrete vaults

June 19, 1968

38 one-ton containers of sarin and

Atlantic Ocean, originating from

Colts Neck Naval Pier, Earle, New VX

Jersey

1,460 vaults holding M55 sarin

and VX rockets

120 drums of canisters of arsenic

and cyanide

3,500 one-ton containers

August 7, 1968 Atlantic Ocean, originating from

Colts Neck Naval Pier, Earle, New contaminated with mustard agent

and filled with water

Jersey

non-chemical weapons materials

(unspecified quantity and type of

conventional explosives)

August 18,

1970

Atlantic Ocean, 250 miles east of

Cape Kennedy, Florida,

originating from Sunny Point,

North Carolina

12,508 M55 sarin rockets in

vaults

3 155mm sarin projectiles

1 M23 VX land mine

Source: Prepared by the Congressional Research Service with information from the Department of

Defense, U.S. Army Research, Development, and Engineering Command, Aberdeen Proving Ground,

Maryland, Corporate Information Office, Historical Research and Response Team, Off-shore Disposal

of Chemical Agents and Weapons Conducted by the United States, March 29, 2001, 15 pp.

CRS-7

Cessation of U.S. Disposal in the Ocean

In the late 1960s, DOD’s acknowledgment of the disposal of chemical weapons

in the ocean, and heightened public awareness of the ocean disposal of wastes in

general, raised concerns about potential risks to human health and the marine

environment, and the economic effects of potential damage to marine resources. In

light of these concerns, DOD requested that the National Academy of Sciences

(NAS) assess the hazards of disposing of surplus chemical weapons, including land

and sea disposal. The NAS released a report in 1969 recommending the pursuit of

methods to safely destroy or neutralize chemical weapons, rather than bury them

intact on land or at sea.5 These recommendations and continuing public concerns led

the United States to cease disposal of chemical weapons in the ocean in 1970 and to

explore methods to destroy surplus weapons at military facilities where they could

be managed safely.

In 1972, Congress enacted the Ocean Dumping Act6 to prohibit the disposal of

wastes into the ocean waters of the United States, extending to the contiguous zone

(24 nautical miles seaward). Consistent with the decision of the executive branch in

1970 to cease the disposal of chemical weapons in the ocean, Congress included

provisions in the Ocean Dumping Act that explicitly prohibited the offshore disposal

of chemical warfare agents. Although the act granted limited authority for the

Environmental Protection Agency (EPA) to issue permits allowing the offshore

disposal of certain types of wastes, it specifically excluded chemical warfare agents

and other hazardous substances from this permit authority.7 (See CRS Report

RS20028, Ocean Dumping Act: A Summary of the Law, by Claudia Copeland.)

Subsequent to the enactment of the Ocean Dumping Act, DOD continued its

efforts to seek safer methods for disposing of chemical weapons on the land,

resulting in the development of incinerators to destroy them.8 Although incineration

remains the primary method by which chemical weapons are disposed of today,

concerns about potential health and environmental risks from incineration have

spurred the research and development of safer technologies to neutralize them.

Under international agreement, the United States has committed to destroying its

chemical weapons stockpile by 2012. However, there are questions as to whether

this deadline can be met, considering the current capacity of existing disposal

facilities. (For further discussion of ongoing efforts to dispose of chemical weapons

5

National Academy of Sciences. Disposal Hazards of Certain Chemical Warfare Agents

and Munitions. June 24, 1969. 14 pp.

6

33 U.S.C. 1401 et seq. The “Ocean Dumping Act” is the common reference to Title I of

the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA, P.L. 92-532), as

amended.

7

8

33 U.S.C. 1412.

The U.S. Army Chemical Materials Agency administers the disposal of chemical

munitions, including the operation of four disposal facilities located in Anniston, Alabama;

Pine Bluff, Arkansas; Umatilla, Oregon; and Tooele, Utah. For further information, see the

agency’s website at [http://www-pmcd.apgea.army.mil].

CRS-8

at onshore facilities, see CRS Report RL32158, Chemical Weapons Convention:

Issues for Congress, by Steve Bowman.)

Potential Risks from Disposal in the Ocean

Although alternative technologies are now available for the onshore disposal of

chemical weapons, DOD contends that, at the time, disposal in the ocean was deemed

safer than disposal on land for two reasons. First, methods for disposal on land were

initially limited to burial, presenting a long-term risk if weapons leaked or were

recovered. Second, it was generally assumed that chemical agents released into

seawater would be diluted to safe levels in the vastness of the ocean. However, this

assumption was questioned in later years as scientific understanding of the effects of

ocean pollution grew, leading to the general prohibition on the disposal of wastes into

the ocean, including chemical weapons.

Exposure to chemical weapons can have numerous harmful effects on human

beings. Depending on the particular chemical agent, these effects can include burns

and sores on the skin, vomiting, respiratory dysfunction, mental impairment, damage

to the immune and nervous systems, infertility, and death. Public health advocates

have questioned whether possible exposure to such substances in seawater from

leaking weapons may contribute to various symptoms experienced by coastal

residents, swimmers, divers, fishermen, and individuals who may have consumed

contaminated fish or shellfish. Marine conservationists and environmental advocates

also have raised questions about the possible effects of chemical weapons agents on

the marine environment, including the possible contribution to declines in

populations of certain fish and other marine life in and around areas where weapons

were dumped in the ocean.

The degree of risk from weapons leaking chemical agents into seawater depends

on numerous factors. The extent to which an agent is diluted and the duration of

exposure determine whether there is potential for harm. For example, most nerve

agents are soluble and dissolve in water within several days. Less soluble agents still

degrade over time as a result of hydrolysis. However, certain agents are less

susceptible to hydrolysis, allowing them to remain in harmful forms for longer

periods. For example, sulphur mustard in liquid or solid form turns into an encrusted

gel when released in seawater. In this form, it can persist for many years before

degrading.

Density is another critical factor. Chemical weapons agents denser than

seawater tend to remain on the ocean floor, rather than float to shallower waters

where they may present greater risk. For example, encrusted sulphur mustard is

denser than seawater, making it unlikely to migrate off the ocean floor. However,

ocean currents can disperse such substances along the seabed, spreading

contamination beyond the location where the release occurred. Colder water

temperatures also can slow degradation and allow contamination along the seabed to

persist in harmful concentrations and forms for longer periods.

In addition to contamination of seawater, there have been concerns among the

public that chemical weapons could wash ashore, or that they could be retrieved

accidentally during dredging operations or trawl fishing along the seabed. The

CRS-9

likelihood of such events is difficult to predict. Generally, the greater the depth of

disposal, the less likely that accidental retrieval or washing ashore would occur.

Although ocean currents could move weapons into shallower waters and present a

greater safety risk, the accumulation of sediment and marine growth could help

anchor weapons to the seabed, making them less susceptible to movement.

In its 2001 report, the Army documented few incidents of accidental retrieval

of chemical weapons,9 or of them washing ashore.10 Only one other incident has been

reported in the United States since then.11 One could observe that these incidents are

rare considering the thousands of chemical weapons dumped off the coasts of the

United States over 50 years, and that the risks of such events appear relatively small.

On the other hand, one could argue that even a few incidents prove that some risks

do exist, and that study and monitoring of disposal areas are warranted to assess the

likelihood of future risks.

Relevant Scientific Studies in Europe and Russia

Thus far, there have been no comprehensive scientific studies of potential risks

to human health and the marine environment in specific areas of the ocean where

chemical weapons were dumped off the coast of the United States. Therefore, it is

difficult to provide definitive answers to questions about risks raised by public health

and environmental advocates, marine conservationists, and the general public.

However, there have been numerous scientific studies of risks from the disposal of

chemical weapons off the coasts of Europe and Russia in the Atlantic Ocean, North

Sea, Baltic Sea, and Mediterranean Sea. The former Soviet Union, Germany, Great

Britain, and France disposed of chemical weapons in these waters, including weapons

captured during World War II. Although these studies focus on risks to coastal

populations in Europe and Russia, and the marine environments of these waters, their

9

For example, a fisherman accidentally retrieved a container of sulphur mustard off the

coast of Australia in 1970 that the U.S. Armed Forces had dumped in 1945 along with

thousands of tons of chemical weapons. In 1976, a dredging operation off the coast of

Hawaii accidentally retrieved a mortar round containing chemical agents, injuring one

crewman. The Army suspects that the mortar round was one of thousands of tons of

chemical weapons dumped in 1944 off Pearl Harbor.

10

For example, a mustard gas bomb floated ashore in the Gulf of Mexico in 1946 (location

unspecified) after it and 32 others were disposed of 20 miles off the coast at depths ranging

from 200 to 600 feet. The bomb was recovered safely. Also in 1946, an unspecified number

of mustard gas bombs appeared floating in Manfredonia Bay, Italy, within three weeks after

they had been disposed of 54 miles from shore. In the 1970s (year not specified), a

container of sulphur mustard washed ashore off the coast of Australia in the same area

where a fisherman accidentally retrieved a container in 1970. According to the Army, the

government of Australia has since designated this area hazardous.

11

A report by U.S. Army personnel acknowledged the accidental retrieval of a World War

I era mustard gas munition by a clam dredging operation off the coast of New Jersey in

2004. The report, Mitigating the Possible Damaging Effects of Twentieth-Century Ocean

Dumping of Chemical Munitions, by Emily E. Baine and Margaret P. Simmons, was

prepared independently by these authors, not by the U.S. Army. Numerous press reports

also have acknowledged this incident.

CRS-10

findings may offer insights into potential risks from the disposal of chemical

weapons off the coasts of the United States.

In 2005, the Imperial College of London compiled the findings of these

European and Russian studies.12 As a whole, they concluded that risks remain

relatively small if weapons or persisting contamination on the seabed, such as

encrusted sulphur mustard, remain undisturbed. On the other hand, human

disturbances, such as dredging, trawl fishing, or work on underwater pipelines,

caused risks to rise significantly. The studies linked instances of human exposure

primarily to such disturbances, rather than to ocean currents washing weapons or

contamination ashore.

In shallower waters, such as in the Baltic Sea, the studies noted that the greatest

risk is to fishermen who reported many instances of catching encrusted sulphur

mustard in their nets when trawling the seabed. However, the number of such

instances declined as the depth of the water increased. Although the studies noted

more instances of exposure than reported in the United States, the depths of disposal

off the coasts of Europe and Russia generally are shallower than those off the coasts

of the United States. The finding that potential risks appear to decrease relative to

greater depths of disposal suggests that there may be less potential risk domestically

than in the waters of these foreign nations.

Response Options and Issues

As DOD has disclosed more information about the past disposal of chemical

weapons in the ocean, interest in how best to respond to potential risks has grown

among the public. Thus far, the U.S. Army has prepared materials for commercial

maritime industries to educate individuals about the hazards of chemical and

conventional weapons that may be present in the ocean. These materials include

safety guidelines in the event that weapons are accidentally retrieved from the seabed,

and provide contact information to inform federal officials of the presence of such

weapons, so that appropriate actions may be taken to ensure public safety. However,

the locations of the disposal sites are not disclosed, preventing the public from being

able to avoid areas where they may encounter weapons dumped offshore.

The primary obstacle to responding to potential risks is locating the weapons in

the ocean. The lack of coordinates for most of the disposal sites, and the possibility

that ocean currents may have moved weapons beyond these areas, makes finding the

weapons difficult at best, if not impracticable in some cases. In the event that the

weapons are located, one option to prevent exposure would be to leave the weapons

in place and warn the public to avoid these areas. This option may address

immediate risks and avoid new risks associated with retrieving weapons from the

ocean (see below). However, the long-term risks of leaving the weapons in place is

12

Imperial College of London. Munitions Dumped at Sea: A Literature Review. June 2005.

90 pp. As noted in the Army’s 2001 report, the U.S. Armed Forces also disposed of

chemical weapons off the coasts of Europe in the Atlantic Ocean, North Sea, and

Mediterranean Sea. The studies reviewed in the Imperial College report do not distinguish

between risks from U.S. disposal and disposal by other nations in these foreign waters.

CRS-11

uncertain, because of a lack of information on the leaking of chemical agents in the

ocean and the extent to which ocean currents may cause munitions to migrate to

shallower waters or wash ashore in the future. Leaving the weapons in place and

publicly disclosing their location also could present risks to national security in the

event that individuals may retrieve weapons and use them for harmful purposes.

If the weapons are found, a more difficult option would be to remove them from

the seabed and to remediate contaminated seawater surrounding these areas. Once

retrieved, these weapons would need to be disposed of safely onshore, through

incineration or emerging alternative technologies to neutralize them. Although this

option may more effectively address long-term risks, it likely would require

substantial financial resources and time, and would be technically challenging. This

option also could present new risks, such as risks to workers who would remove and

transport the weapons, and to populated areas in the event of an accidental release

during transporting or disposing of the weapons at an onshore facility. Regardless

of the desired option, the practical feasibility of responding to potential risks is

limited by the many inherent challenges discussed below.

Locating Disposal Sites. Locating where chemical weapons were dumped

in the ocean would be the first step toward assessing potential risks and determining

the feasibility of response actions. However, the precise coordinates of most of these

sites are unknown, both in U.S. and foreign waters. The specificity of the geographic

locations of the disposal sites in historical records varies widely. Rough coordinates

are known or assumed for some sites, whereas only approximate distances from the

coast are identified for others. The location of many sites is completely unknown,

with only the body of water identified, such as the Atlantic or Pacific Ocean in

general. Consequently, attempts to locate most of the disposal sites would be

difficult at best, if not impracticable in some cases. The Army’s 2001 report indicated

that only four disposal sites where the exact location is known have been surveyed,

with no contamination detected at the time. The last survey occurred in 1975. Some

have advocated that at least these four known sites be revisited to determine if

chemical weapons agents may have leaked since then.

Identifying Weapons and Containers. In the event that a disposal site is

located, identifying individual weapons underwater still is likely to be difficult. At

many sites, weapons were disposed of one-by-one, or “loose dumped” as the Army

describes in its 2001 report. At these sites, ocean currents may have moved weapons

and containers far enough away from their original point of disposal to make finding

them problematic. Weapons also may be difficult to locate, depending on their size

and depth, because of the accumulation of sediment and biological growth over many

years. Sites where there are topographical irregularities in the ocean floor also could

be challenging to survey with sonar technologies, because of the difficulty in

distinguishing among natural formations that may be similar to weapons in size and

shape. The Army’s report listed numerous sites where weapons were sunk inside the

hulls of obsolete vessels, which may be easier to identify because of their size and

shape. As noted above, DOD has located and surveyed four of sites where weapons

were sunk inside obsolete vessels, with the last surveyed in 1975.

Retrieving Munitions for Onshore Disposal. Safely retrieving weapons

from the ocean floor is generally more challenging the greater the depth. The

CRS-12

suspected disposal depth varies widely. In its 2001 report, the Army indicated

disposal depths ranging from 200 feet in the Gulf of Mexico to over 16,000 feet off

the coast of Florida. However, these records do not indicate the depths of many

disposal sites. Another factor is structural integrity. Weapons casings and containers

may be weakened as result of water pressure, and the corrosive effects of saltwater,

over prolonged periods. Especially at greater depths, changes in water pressure

during retrieval could cause weakened casings and containers to rupture, resulting in

the release of chemical weapons agents into shallower waters where they may pose

greater risks of exposure. Existing leaks also could be exacerbated in such

circumstances, increasing the quantity of chemical weapons agents released.

Remediating Contaminated Seawater. Experience in remediating

contaminated seawater primarily has been limited to the removal of oil and fuel

spilled on surface waters. Oil and fuel tend not to mix with water because of their

physical composition, making them easier to remove. Chemical weapons agents that

are soluble, such as nerve agents, mix easily with seawater, making removal

impracticable. However, other agents that do not mix well with water, such as

sulphur mustard, could be easier to remove. The depth at which contamination

occurs is another important factor. The feasibility of remediating contamination far

below the surface is highly uncertain because of the lack of experience in performing

this type of remediation.

Although there may be a greater possibility for effective remediation if insoluble

chemical weapons agents were to migrate to the surface, currents and winds in open

waters could spread such agents rapidly over unmanageably large areas, especially

at sites far from the coast where currents and winds can be stronger. The Army’s

2001 report indicated at least one instance of remediation of contaminated surface

waters during World War II in Bari Harbor, Italy, where a German air raid destroyed

a U.S. Naval vessel containing mustard gas bombs and resulted in contamination of

the harbor. However, the Army’s report does not provide any information to assess

the degree or adequacy of the cleanup, relative to today’s standards.

Costs. Considering that much is unknown about the quantity and condition of

weapons dumped in the ocean, developing reliable estimates of the costs to respond

to potential risks is, and will continue to be, nearly impossible without such

information. The availability of federal funding to pay the costs of response actions

is an issue as well, whatever amount they may be. There already is ongoing debate

within Congress about the adequacy of funding to pay for the cleanup of land-based

contamination on military lands, for which the estimated costs are substantial.

In its most recent environmental report to Congress in March 2006, DOD

estimated that a total of $34.4 billion would be needed to complete cleanup at active

military installations, closed bases, and other former military properties.13 Certain

factors could cause these costs to rise, including efforts to clean up unexploded

ordnance (UXO), the cleanup of another round of base closings approved in 2005 to

13

Department of Defense. Defense Environmental Programs Annual Report to Congress

for Fiscal Year 2005. March 2006. Appendix J, p. J-6-1.

CRS-13

prepare these properties for civilian reuse, and possibly more stringent cleanup

standards in the future.

Addressing the disposal of chemical weapons in the ocean could add to these

costs, placing further demands on military funding for cleanup. Appropriating

additional funds to meet these needs could prove challenging, considering the many

other competing needs within the overall federal budget, such as other military needs,

homeland security, and domestic programs, and constraints on spending as a result

of the federal budget deficit.

Response Authorities

Although the Ocean Dumping Act has specifically prohibited the disposal of

chemical weapons in the ocean since 1972, it does not explicitly authorize response

to human health and environmental risks resulting from past disposal. However,

there are at least three federal statutes that one might examine for possible authority

to respond to risks from the past disposal of chemical weapons in certain areas of the

ocean off U.S. shores. These statutes include the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA),14 the Clean Water Act,15 and

the Resource Conservation and Recovery Act (RCRA).16 Of these three statutes,

CERCLA appears to raise the fewest questions regarding applicability, because it

explicitly applies within specific ocean waters off the coasts of the United States.

RCRA appears to raise the most questions of the three, because the applicability of

that statute to ocean waters is unclear.

The applicability of response authorities in federal law hinges upon whether a

particular substance is legally defined as a “hazardous substance” or “pollutant or

contaminant,” in the case of CERCLA; a “hazardous substance” or “pollutant,” in the

case of the Clean Water Act; or a “solid waste” or “hazardous waste,” in the case of

RCRA. Response authorities in these statutes also hinge upon whether there is an

“imminent and substantial” danger to public health or welfare, or the environment.

Although what constitutes imminent and substantial in this context is not defined in

federal statute, courts generally have deferred to the Environmental Protection

Agency (EPA) in making such determinations.

Further, the scope of these three statutes has not been interpreted to apply

outside the United States and the adjacent waters over which the United States asserts

limited jurisdiction (explained below). The Army’s acknowledgment that the U.S.

Armed Forces disposed of chemical weapons off the coasts of foreign nations raises

questions regarding the liability of the United States under international law, or under

the domestic laws of such foreign nations in the event that disposal occurred within

their respective territorial seas.

14

42 U.S.C. 9601 et seq.

15

42 U.S.C. 1251 et seq.

16

42 U.S.C. 6901 et seq.

CRS-14

There appears to be existing authority in federal law for the United States to

respond to potential risks from chemical weapons disposed of off its shores.

However, as discussed above, the primary obstacle to responding to potential risks

is locating the weapons in the ocean. In the event that the weapons are found, many

factors, such as technical capabilities, the possible introduction of new risks, and

costs, could constrain the types of actions that could be carried out under these

authorities. Possible applicability of each authority is discussed further below.

CERCLA. Section 104(a) of CERCLA authorizes the President to respond to

a release, or a threat of a release, of a hazardous substance, pollutant, or contaminant

into the environment.17 The authority to respond to a release of a pollutant or

contaminant is dependent upon whether there is an imminent and substantial danger

to public health or welfare. The statute does not explicitly require such danger to be

present to respond to a release or threatened release of a hazardous substance,

primarily because the nature or characteristics of a hazardous substance clearly

imply such danger by the fact that such substance is “hazardous.” In practice, the

President typically delegates the authority to respond to a release or threatened

release to one or more federal agencies.

Authorized response actions may include removal or remediation or both. A

“removal” is defined more broadly in CERCLA than the literal removal of

contamination or source of contamination. Rather, a removal is an immediate or

short-term response to an exposure threat, including but not limited to containing

waste, preventing access to contaminated areas, and providing emergency

assistance.18 A “remedial action” may include many of the same activities as a

removal, but is meant as a permanent remedy.19 Remedial actions are also subject

to more thorough review prior to implementation, including opportunity for public

comment. In practice, a removal action is often performed as an interim response to

an immediate threat, while a remedial action is planned to provide protection over the

long-term.

Although CERCLA does not explicitly address threats from the release of

chemical warfare agents, a “hazardous substance” is defined in that statute20 to

include those substances defined as such by EPA under the Clean Water Act.21 EPA

has listed many chemical warfare agents as hazardous substances under this

authority.22 “Pollutant or contaminant” also is broadly defined in CERCLA in a way

that arguably could include all chemical warfare agents, because of the physiological

effects on humans and nonhuman organisms that can result from exposure.23

17

42 U.S.C. 9604(a).

18

42 U.S.C. 9601(23).

19

42 U.S.C. 9601(24).

20

42 U.S.C. 9601(14).

21

33 U.S.C. 1321(b)(2)(A).

22

40 C.F.R. 116.4.

23

42 U.S.C. 9601(33). CERCLA defines “pollutant or contaminant” as “any element,

(continued...)

CRS-15

Further, “release” is defined in CERCLA to include dumping, disposing, or

leaking into the environment, including the discarding of containers, whether or not

they have leaked.24 The “environment” is defined to include the ocean waters of the

U.S. Exclusive Economic Zone (EEZ).25 The outer boundary of the EEZ is 200

nautical miles seaward of the baseline from which the territorial sea is measured,

which is no greater than 12 nautical miles from U.S. shores.

Thus, the past disposal of chemical weapons by the U.S. Armed Forces in the

ocean within the seaward boundary of the U.S. EEZ arguably could be considered a

release of a hazardous substance, pollutant, or contaminant into the environment,26

thereby authorizing the federal government to take response actions to protect public

health or welfare, or the environment. Although CERCLA could be interpreted as

being applicable, finding the weapons in the ocean is a significant obstacle to taking

a response action. If the weapons are found, many factors still could constrain the

feasibility of certain actions, as explained above.

Clean Water Act. Section 311(c) of the Clean Water Act authorizes the

President to “ensure effective and immediate removal of a discharge, and mitigation

or prevention of a substantial threat of a discharge, of oil or a hazardous substance”

into the navigable waters and adjoining shorelines of the United States, and into the

ocean waters of the U.S. EEZ.27 As is the case with CERCLA, the President typically

delegates this responsibility to one or more federal agencies.

As noted above, EPA has categorized many chemical warfare agents as

hazardous substances both for the purposes of the Clean Water Act, and in turn

23

(...continued)

substance, compound, or mixture, including disease-causing agents, which after release into

the environment and upon exposure, ingestion, inhalation, or assimilation into any organism,

either directly from the environment or indirectly by ingestion through food chains, will or

may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer,

genetic mutation, physiological malfunctions (including malfunctions in reproduction) or

physical deformations, in such organisms or their offspring....”

24

42 U.S.C. 9601(22). “Release” includes dumping, disposing, or leaking into the

environment, including the “abandonment or discarding of barrels, containers, and other

closed receptacles containing any hazardous substance or pollutant or contaminant.” Thus,

the dumping or disposal of containers of chemical agents could constitute a release, and

munitions containing chemical agents could constitute a closed receptacle, and the dumping

or disposing of them therefore a release.

25

42 U.S.C. 9601(8). In this subsection, the “ocean waters” of the United States specifically

refer to ocean waters of which the natural resources are under the exclusive management

authority of the United States under the Magnuson-Stevens Fishery Conservation and

Management Act (16 U.S.C. 1801 et seq.), which extend to the seaward boundary of the

U.S. EEZ.

26

Liability under CERCLA is retroactive. Therefore, the fact that the U.S. Armed Forces

disposed of chemical weapons in the ocean long before 1980 when Congress enacted

CERCLA does not remove the disposal of these weapons from the applicability of that

statute.

27

33 U.S.C. 1321(c).

CRS-16

CERCLA. Discharge is defined in Section 311(a)(2) of the Clean Water Act to

include “dumping” and “leaking.”28 Depending on how these statutory definitions

are interpreted, Section 311(c) of the Clean Water Act could authorize the President

to remove chemical weapons from the ocean within the seaward boundary of the U.S.

EEZ, including those that may be leaking chemical agents into seawater. Similar to

CERCLA, the applicability of the Clean Water Act does not necessarily mean that

a desired response action could be taken in practice. As indicated above, finding the

weapons is a significant obstacle, and if the weapons are found, many factors could

constrain the feasibility of response actions.

Section 504 of the Clean Water Act also grants “emergency powers” to EPA to

bring suit to compel persons contributing to pollution, or to take other action, to stop

the discharge of pollutants that present an imminent and substantial endangerment

to human health or welfare.29 “Pollutant” is defined in the Clean Water Act for the

purposes of this section to include munitions and chemical wastes.30 However, there

are longstanding questions regarding the ability of one federal agency to enforce an

action against another, in the case of chemical weapons, likely EPA enforcing an

action to be taken by DOD. There also are questions as to whether Section 504

allows EPA to order a response be taken, in the event that the original action that

caused the pollution is no longer ongoing but has long since ended, such as the

disposal of chemical weapons in the ocean from the World War I era through 1970.

RCRA. The applicability of response authorities in RCRA to risks from

chemical weapons in the ocean is less clear than in CERCLA and the Clean Water

Act. Section 7003 of RCRA authorizes EPA to take any action necessary to respond

to an imminent and substantial endangerment to human health or the environment

resulting from the disposal of a solid waste, including a hazardous waste.31 As

defined in RCRA, disposal includes “dumping” into water, but does not specify

whether ocean waters are included.32 A “solid waste,”33 or a “hazardous waste”34 as

a type of solid waste, also are not explicitly defined in RCRA to include chemical

weapons or agents.

However, RCRA does authorize EPA to promulgate regulations to determine

when munitions, including chemical munitions, are considered a solid waste, or a

hazardous waste, for purposes of that statute.35 EPA promulgated such regulations

28

33 U.S.C. 1321(a)(2).

29

33 U.S.C. 1364(a).

30

33 U.S.C. 1362(6).

31

42 U.S.C. 6973(a).

32

42 U.S.C. 6903(3).

33

42 U.S.C. 6903(27).

34

42 U.S.C. 6903(5).

35

42 U.S.C. 6924(y).

CRS-17

in 1997.36 Among other circumstances, the regulations specify that a military

munition, including a chemical munition, is considered a solid waste, and by its

characteristics a hazardous waste, when it is abandoned as a result of disposal.

However, like the statute, the regulations do not clarify their applicability to disposal

in ocean waters.

If these regulations were interpreted to apply to ocean waters, and the disposal

of chemical munitions resulted in imminent and substantial endangerment to human

health or the environment, EPA arguably could have response authorities under

Section 7003 of RCRA. EPA also has authority under Section 6001(b) of RCRA to

issue an administrative order to another federal agency, likely DOD in the case of

chemical weapons, to specify response actions that EPA deems necessary.37 Section

6001(a) of RCRA specifies that federal agencies must comply with such orders.38

Similar to CERCLA and the Clean Water Act, whether a desired response action

could be taken would depend on whether the weapons could be found, and whether

the desired action would be practically feasible.

Legislation Enacted in the 109th Congress

In its second session, the 109th Congress enacted legislation to gain a better

understanding of the past disposal of chemical weapons in the ocean by the U.S.

Armed Forces, and the potential health, safety, and environmental risks that these

weapons may pose. Section 314 of the John Warner National Defense Authorization

Act for FY2007 (P.L. 109-364, H.R. 5122) requires further review of historical

records to attempt to identify areas where the U.S. Armed Forces disposed of both

chemical and conventional weapons off U.S. shores. Although the past dumping of

chemical weapons motivated initial concerns, there also were questions about the

extent to which the U.S. Armed Forces may have dumped surplus or damaged

conventional weapons into the ocean. To learn more about potential risks, Section

314 also requires the Secretary of Defense to research the effects of these weapons

on the ocean environment and to monitor identified sites to determine whether

contamination is currently being released or significant health or safety risks are

present.

The provisions in Section 314 were based on legislation introduced earlier in the

second session of the 109th Congress in the Hawaiian Waters Chemical Munitions

Safety Act of 2006 (H.R. 4778) and its companion bill in the Senate (S. 2295).

Whereas these bills focused on chemical weapons dumped off the coast of Hawaii,

the scope of Section 314 in P.L. 109-364 was expanded to encompass all U.S. coastal

areas and to include conventional weapons, as noted above. An analysis of

provisions in Section 314 as enacted, and a comparison to the original provisions in

the House and Senate versions of H.R. 5122, are provided below.

36

40 C.F.R. 266.200.

37

42 U.S.C. 6961(b).

38

42 U.S.C. 6961(a).

CRS-18

Subsection(a) of Section 314 requires the Secretary of Defense to review

historical records to determine the number and “probable” locations of sites where

the U.S. Armed Forces disposed of military munitions within U.S. coastal waters, the

size of these sites, and the types of munitions dumped at these locations. The

original House bill also would have required the disclosure of the quantities of

munitions dumped at each site, whereas the enacted bill did not. The areas of the

ocean covered in the historical review are to include areas extending from the U.S.

shoreline to the outer boundary of the Outer Continental Shelf.39 The Secretary of

Defense is required to request the assistance of the U.S. Coast Guard, the National

Oceanic and Atmospheric Administration (NOAA), and other relevant federal

agencies in reviewing historical records of disposal in the ocean. This provision is

consistent with the original House bill, whereas the original Senate bill would have

required the cooperation of these agencies.

Subsection(a) also requires the Secretary of Defense to release the information

compiled from its historical review on an annual basis. The Secretary is required to

include this information in the Department’s annual report to Congress on its

environmental restoration activities.40 However, the Secretary is authorized to

withhold from the public the “exact nature and locations of munitions,” if he

determines that the potential for unauthorized retrieval of these weapons could

present a significant threat to national defense or public safety. Determining when

it would be appropriate to withhold information about an individual site would be at

the discretion of the Secretary.

Subsection(a) further requires the Secretary of Defense to complete the

historical review of munitions disposal sites within a time frame necessary for it to

be included in the Department’s FY2009 environmental restoration report to

Congress. The original House bill did not specify a time frame for the completion

of the historical review. Instead, it would have required annual reporting as the

Secretary compiles records of munitions disposal in the ocean, with an implied

presumption that the review would be complete at some point in time.

Subsection(b) requires the Secretary of Defense to share information on the

disposal of munitions in the ocean with the Secretary of Commerce to assist NOAA

in preparing nautical charts and other navigational aids to identify known or likely

hazards to the public, including commercial shipping and fishing operations. This

subsection also requires the Secretary of Defense to continue activities to inform the

39

Section 314 of P.L. 109-364 uses the existing statutory definition of Outer Continental

Shelf referenced in the Outer Continental Shelf Lands Act (43 U.S.C. 1331).

40

10 U.S.C. 2706(a) requires the Secretary of Defense to submit an annual report to

Congress on its environmental restoration activities, including the number of contaminated

sites, the status of cleanup by site, incurred costs, and estimates of future costs to complete

cleanup. 10 U.S.C. 2706(b) requires the Secretary of Defense to submit an annual report to

Congress on other environmental activities on military lands, including compliance with

pollution control requirements, pollution prevention efforts, and compliance with natural

resource and historic preservation requirements. Beginning in FY2004, DOD consolidated

these two annual environmental reports into one document covering all environmental

programs and activities. Accordingly, the information required in Section 314 of P.L. 109364 presumably would be included in this consolidated annual environmental report.

CRS-19

public of the possible hazards of coming into contact with military munitions on the

seabed, and to continue efforts to identify appropriate actions to mitigate such

hazards if contact does occur. As noted earlier, the U.S. Army has prepared materials

for commercial maritime industries to educate individuals about the hazards of

munitions that may be present in the ocean. These materials include safety guidelines

in the event that munitions are accidentally retrieved from the seabed, and provide

contact information to inform federal officials of the presence of munitions, so that

appropriate actions may be taken to ensure public safety.

Subsection(c) requires the Secretary of Defense to research the effects of

munitions disposed of in coastal waters on the ocean environment and those who

“use” ocean waters. The scope of “effects” is not specified. Presumably, examined

effects could include human health, safety, and environmental risks, and the

economic impacts of potential damage to marine resources. However, the scope

could be narrower or broader than these potential effects, and presumably would be

at the discretion of the Secretary. Subsection(c) also authorizes the Secretary to

award grants and enter into cooperative agreements to “qualified” entities to perform

this research, but does not stipulate criteria for determining whether an entity would

be qualified for this task. This determination therefore presumably would be at the

discretion of the Secretary, whereas the original House bill explicitly stated that this

determination would have been at the discretion of the Secretary.

To conduct this research, the Secretary is required to select at least two

“representative” (i.e., typical) sites along the Atlantic coast, two along the Pacific

coast (including the coast of Alaska), and two off the coast of Hawaii. Factors for

selecting representative sites include depth, water temperature, nature of the military

munitions, and proximity to coastal populations. The physical scope of the study of

disposal sites is ambiguous in terms of the surface area and volume of seawater that

is to be examined. Required research at each site is to entail (1) sampling and

analysis of ocean waters and the seabed at or adjacent to the locations where

munitions were dumped; (2) assessment of the long-term effects of exposure to

seawater on military munitions, particularly chemical munitions; and (3)

development of “effective” safety measures when dealing with (i.e., handling)

military munitions that have been disposed of in seawater.

Subsection(c) further requires a study of the feasibility of removing or otherwise

remediating munitions in the ocean and requires study of the impacts on the ocean

environment and those who use it, including public health risks. The original House

bill did not contain similar language regarding study of the feasibility of removal or

remediation, but did include language that would have required an epidemiological

study of the effects of munitions in the ocean on human health in coastal populations

located in the “vicinity” of disposal sites. However, it is unclear how close a

community would had to have been located to an offshore disposal site for it to have

been included in such study.

If contamination currently is being released into ocean waters at identified sites

or a significant health or safety risk is present, Subsection(d) requires the Secretary

of Defense to put “appropriate” mechanisms into place at those sites to monitor the

contamination. However, such mechanisms are not specified in the law or in the

accompanying conference report on the final version of the bill. If monitoring would

CRS-20

be so required, the Secretary must report to the congressional defense committees on

additional measures that may be needed to address the release of contamination or

potential risks. Although monitoring information may be used to inform decisions

as to whether further response is needed to address potential risks, neither the final

bill signed into law nor the original House or Senate versions require or authorize

such action. As explained earlier, at least three existing federal statutes could be

interpreted to provide authority for responding to such risks, without possibly

requiring new authority from Congress.

As the House and Senate originally proposed, Section 314 of P.L. 109-364 does

not authorize a specific amount of funding to carry out the historical review, research,

and monitoring of munitions disposal sites in the ocean. However, the law provides

general authority41 for the Secretary of Defense and other relevant federal agencies

to engage in these activities. Whether or not a specific funding level is authorized

for an activity, actual funding to pay for it is subject to appropriations. In the 109th

Congress, neither of the two FY2007 defense appropriations bills (H.R. 5631, as

signed into law, or H.R. 5385, as passed by the House and Senate) contained specific

funding to implement a study of offshore munitions disposal sites.

Absent a set-aside appropriation, DOD still could allocate funds for a study of

offshore munitions disposal sites in FY2007 out of funds appropriated to accounts

for broader purposes which are within its discretion. Considering that the study of

offshore sites would involve the assessment of contamination, DOD’s environmental

restoration accounts may be a likely source of funding. However, as discussed

earlier, there are substantial funding needs estimated for the cleanup of land-based

contamination with these funds, raising questions about the availability of funding

within these accounts to address offshore contamination. The many other competing

national security needs within DOD’s budget also could limit available funding,

unless Congress were to provide targeted appropriations for the study.

The funds needed to study offshore munitions disposal sites is uncertain. The

cost of reviewing historical records to identify disposal sites would likely be

relatively small, primarily involving personnel expenses. However, the cost of

researching and monitoring identified sites could be substantially higher, involving

the use of vessels to reach offshore areas, scientific equipment to gather seawater

samples at possibly great depths, specialized personnel trained in the operation of

such equipment, and laboratory analysis of monitoring data. Research and

monitoring costs would depend on numerous factors, including the geographic scope

41

Statutory authority for an agency to carry out an action constitutes what is often referred

to as “program authority.” In authorizing an activity, Congress often also provides “funding

authority” that may specify a dollar amount for certain fiscal years, or may simply authorize

“such sums as may be necessary.” Authorized funding levels are non-binding and are

subject to annual appropriations. As such, Congress may appropriate amounts that differ

from a funding authorization. If funding authority is not provided or has expired, Congress

may still appropriate funding for an activity for which it has provided program authority.

A department or an agency also may fund an activity for which it has program authority

even if Congress does not explicitly set aside funding for it, if appropriated funds are

available to allocate to that activity at the discretion of the department or agency.

CRS-21

of the sites, their distance from the shore, the depth at which munitions are present,

and the methodologies used to evaluate contaminants and associated risks.

Conclusion

Although the Army has disclosed more information than previously available,

much remains unknown about the exact quantities, types, and present locations of

chemical and conventional weapons that the U.S. Armed Forces dumped in the

ocean. Incomplete historical records significantly limit the ability to identify and

assess the condition of these weapons, particularly to determine whether chemical

agents may have leaked, or are likely to do so. Section 314 of P.L. 109-364 (H.R.

5122) requires the Secretary of Defense to attempt to identify sites where weapons

were dumped off U.S. shores, and to research and monitor identified sites where

contamination is being released or there is a significant health or safety risk.

However, considering the lack of complete records of disposal released thus far, it

would appear that this task would be difficult at best, if not impracticable in some

cases, especially in instances in which the known location of disposal is in a broad

area of the ocean in very deep waters.

Assessing the degree of potential risks is nearly impossible without knowing the

specific location and condition of weapons on the seabed. Risks to human health and

the environment could be lessened if the volume and effects of seawater may have

diluted leaked chemical agents into less threatening concentrations or degraded them

into less dangerous components. However, the possibility of harmful exposure

remains, especially in the event that a weapon is accidentally retrieved or washes

ashore, and a chemical agent is released in a harmful concentration and form or a

“live” conventional weapon were to detonate. While the number of such instances

has been rare relative to the thousands of weapons dumped in the ocean, the

possibility of future instances and associated risks remain.

Retrieving weapons from the ocean to address potential risks is fraught with

many practical challenges. The primary obstacle is locating the weapons in the

ocean. In the event that the weapons are found, retrieving them would introduce new

risks if weapons casings ruptured in the ascent from great depths, or if an accidental

release occurred during transport to onshore facilities for disposal. Considering these

challenges and risks, leaving identified weapons in place, and warning the public to

avoid areas of the ocean where they were dumped, may be more feasible. However,

the long-term risks of leaving located weapons in place is uncertain due to a lack of

information on the effects of chemical agents in ocean waters, and the extent to

which weapons may migrate along the seabed to shallower waters or wash ashore

over time where they may present greater risks. Further, public disclosure of the

location and types of weapons could present national security risks, in the event that

individuals were to retrieve these weapons and use them for harmful purposes.

Regardless of which option is desired, finding most of the weapons in the ocean

to respond to potential risks would appear to be highly unlikely. The substantial

challenge of accurately identifying the boundaries of former disposal areas without

complete historical records, and the possibility that ocean currents may have moved

weapons and contamination beyond these boundaries, makes the implementation of

any response option difficult at best, if not impracticable in some cases. The

CRS-22

feasibility of responding to potential risks is further complicated by unknown costs

of response actions and the uncertain availability of federal funding to pay for them.