U.S. Disposal of Chemical Weapons in the Ocean: Background and Issues for Congress
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
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.
In troduction ..................................................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
Clean Water Act..........................................15
Legislation Enacted in the 109th Congress..........................17
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
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.
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.
U.S. Army Records of Past Disposal of Chemical Weapons in
the Ocean off the Coasts of the United States through 1970
Date orApproximate Location ofDisposal and Point of OriginChemical Weapon or Agent
World War IIAtlantic Ocean, off Charleston,105 millimeter (mm) mustard
South Carolinaprojectiles and M70 115-pound
World War IIAtlantic Ocean, off Norfolk,Unknown
August 1944Pacific Ocean, neither shoreline36 M47A2 100-pound mustard
point of reference nor originatingbombs and approximately 15,000
point are specifiedunspecified bombs
1944Pacific Ocean, off Pearl Harbor,4,220 tons of unspecified toxics
Oahu, Hawaiiand hydrogen cyanide
1944Pacific Ocean, about five miles off approximately 16,000 M47A2
Oahu, Hawaii100-pound mustard bombs
uncertain)from New Orleans, Louisianaleaking M70 115-pound mustard
September 14-Atlantic Ocean, “Disposal Area1,154 55 gallon drums of arsenic
December 21,Number 1,” originating fromtrichloride
1945Edgewood Arsenal, Maryland375 tons of
(adamsite) smoke candles
75,852 4.2-inch distilled mustard
924 M74 10-pound white
phosphorus cluster bombs
approximately 56,000 smoke
approximately 23,000 smoke
October 17-Pacific Ocean, off Hawaii,20 M79 1000-pound hydrogen
November 2,originating from Waianae, Hawaiicyanide bombs
19451,100 M79 1000-pound cyanogen
125 M78 500-pound cyanogen
14,956 M70 114-pound mustard
30,917 4.2-inch mortar mustard
Date orApproximate Location ofDisposal and Point of OriginChemical Weapon or Agent
1,038 one-ton containers of
190 one-ton containers of lewisite
1945Mississippi River, 3-4 miles south2 unspecified bombs
of Braithwaite, Louisiana, as a
result of accidental sinking in
quicksand in a ship canal
March 7, 1946Gulf of Mexico, originating fromUnspecified quantity of mustard
New Orleans, Louisianaprojectiles
March 10,Gulf of Mexico, originating from2 leaking mustard bombs
1946Edgewood Arsenal, Maryland, and
loaded for sea disposal at New
March 21-25,Atlantic Ocean, “Baker” Site off4 “carloads” of mustard
1946Charleston, South Carolina,projectiles
originating from Naval Mine
May 1946Gulf of Mexico, originating point3 phosgene bombs
not specified(German origin)
July 13, 1946Gulf of Mexico, 20 miles offshore,30 500 kg mustard bombs
originating from Mobile, Alabama3 250 kg mustard bombs
August 1-Atlantic Ocean, “Baker” Site offlewisite, mustard, phosgene
October 17,Charleston, South Carolinabombs
1946German mustard and tabun
mustard one-ton containers
June 30- JulyPacific Ocean, 12 miles off61 containers of mustard agent
15, 1947Aleutian Islands, originating from
Attu and Adak, Alaska887 containers bulk lewisite
December 15-Atlantic Ocean, 300 miles off3,711 containers of lewisite
20, 1948Florida, originating from Gulf
Chemical Warfare Depot,
Alabama, via Charleston, South60 M14 bulk lewisite
February 20,Gulf of Mexico, originating fromone “barge” of riot-control agent
1954Mobile, Alabamaprojectiles (quantity not
Date orApproximate Location ofDisposal and Point of OriginChemical Weapon or Agent
January-Gulf of Mexico, originating from“1 or 2 barges” of unspecified
February 1955Mobile, Alabamatoxic munitions (quantity not
November 13-Atlantic Ocean, originating from48 one-ton containers of lewisite
14, 1957Edgewood Arsenal, Maryland, and
loaded for sea disposal at Colts
Neck Naval Pier, Earle, New
March 20-27,Atlantic Ocean, off South 1,507 one-ton containers of
1958Carolina, originating from Pinelewisite
Bluff Arsenal, Arkansas, and
loaded for sea disposal at Sunny63 one-ton containers of nitrogen
Point, North Carolinamustard
April 19, 1958Pacific Ocean, 117 miles off San301,000 M70 115-pound mustard
Francisco, California, originatingbombs
from Navajo Army Depot,
Arizona, and Tooele Army Depot,
Utah, and loaded for sea disposal1,479 one-ton containers of
at Concord Naval Weaponslewisite
May 25, 1958Pacific Ocean, 117 miles off San6 M47 100-pound mustard bombs
Francisco, California, originating335 one-ton containers of lewisite
from Tooele Army Depot, Utah,
and loaded for sea disposal at11 one-ton containers of nitrogen
Concord Naval Weapons Station,mustard
2 mustard projectiles
June 14-15,Atlantic Ocean, originating from2 one-ton containers of lewisite
1960Edgewood Arsenal, Maryland1 lewisite cylinder
non-chemical weapons materials
(unspecified quantity of
June 18, 1962Atlantic Ocean, originating from378 105 mm mustard projectiles
Edgewood Arsenal, Maryland341 155 mm mustard projectiles
1 one-ton container of lewisite
20 drums of cyanide
5,252 white phosphorous
non-chemical weapons materials
(421,757 pounds of radiological
Date orApproximate Location ofDisposal and Point of OriginChemical Weapon or Agent
August 6-7,Atlantic Ocean near 1960 and456 one-ton containers of riot
19641962 sites noted above, originatingcontrol agent
from Edgewood Arsenal,1,700 75 mm mustard projectiles
74 one-ton containers of mustard
10 M78 500-pound cyanogen
non-chemical weapons materials
(800 55-gallon drums of
June 15, 1967Atlantic Ocean, originating from4,577 one-ton containers of
Colts Neck Naval Pier, Earle, Newmustard agent
Jersey7,380 M55 sarin rockets in
June 19, 1968Atlantic Ocean, originating from38 one-ton containers of sarin and
Colts Neck Naval Pier, Earle, NewVX
Jersey1,460 vaults holding M55 sarin
and VX rockets
120 drums of canisters of arsenic
August 7, 1968Atlantic Ocean, originating from3,500 one-ton containers
Colts Neck Naval Pier, Earle, Newcontaminated with mustard agent
Jerseyand filled with water
non-chemical weapons materials
(unspecified quantity and type of
August 18,Atlantic Ocean, 250 miles east of12,508 M55 sarin rockets in
1970Cape Kennedy, Florida,vaults
originating from Sunny Point,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.
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
7 33 U.S.C. 1412.
8 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].
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
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
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.
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
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.
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
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.
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.
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.
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 contaminant17
into the environment. 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 emergency18
assistance. 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
Although CERCLA does not explicitly address threats from the release of20
chemical warfare agents, a “hazardous substance” is defined in that statute 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,
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 the27
ocean waters of the U.S. EEZ. 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
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
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
27 33 U.S.C. 1321(c).
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 environment31
resulting from the disposal of a solid waste, including a hazardous waste. As
defined in RCRA, disposal includes “dumping” into water, but does not specify323334
whether ocean waters are included. A “solid waste,” or a “hazardous waste” 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 a35
hazardous waste, for purposes of that statute. 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).
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
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
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).
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. 109-
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
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.
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.
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
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.