Guam group's claims against Air Force reinstated; Ninth Circuit rules NEPA applies to toxic waste disposal activities

Tarague Beach

By Mar-Vic Cagurangan

The Ninth Circuit Court has upheld a local environmental group’s legal standing to challenge the U.S. Air Force’s plan to dispose of toxic waste munitions in the open air on a public beach.

The appeals court ruled that the National Environmental Policy Act applies to the Air Force’s hazardous waste disposal operations, justifying Prutehi Litekyan: Save Rititian’s lawsuit under the Administrative Procedure Act.

The judges remanded the case to the District Court of Guam after reversing Chief Federal Judge Frances Tydingco-Gatewood’s 2022 ruling that dismissed Prutehi Litekyan’s lawsuit.

Prutehi Litekyan sued the Air Force to block its plan to detonate 35,000 lbs. of bombs and burn other hazardous waste munitions each year in the open air on Tarague Beach.

The group accused the Air Force of violating NEPA by failing to evaluate the cultural and environmental impact of open burning and open detonation.

The appeals court noted that Tarague Beach “serves as a nesting habitat for

 the endangered green sea turtle and a foraging and resting spot for migratory seabirds.”

The panel also pointed out that Tarague Beach sits above Guam’s sole source aquifer, which provides drinking water supply to more than 80 percent of the island’s population. Traditional medicines are grown in the area and offshore, fishers regularly catch fish for consumption.

“Had the Air Force taken the requisite ‘hard look’ at the environmental impacts of OB/OD and appropriately engaged the public before committing to its plan for disposal, the agency might have chosen a different place or method for handling the waste munitions,” the court said. 

A burn pit is an area of a U.S. military base in which waste is disposed of by burning. Photo courtesy of USAF

 “That possibility makes the injury fairly traceable to the Air Force’s actions and is enough to establish Article III standing for a procedural injury under NEPA.”

Historically, Tarague Beach has been a disposal site for the Air Force’s unexploded ordnance, such as tear gas, ammunition, propellants, and explosive materials, some of which date back to World War II.

“The Air Force’s decision to apply for a Resource Conservation and Recovery Act permit and the details of its planned activities on Tarague Beach reflected the agency’s commitment to a particular location and method of waste munitions disposal, and was the endpoint in its decision-making process,” the court said. 

The judges, however, argued that the RCRA’s permitting process does not substitute for environmental review mandated by NEPA.

The appeals panel held that the Air Force “engaged in final agency action that was ripe for judicial review.”

Judge Lawrence VanDyke dissented, arguing that this court lacked

statutory jurisdiction to consider the merits of the case. 

"Plaintiff’s lawsuit failed to challenge any final agency action," VanDyke said.

"Defendants’ submission of their 2021 permit application merely facilitated

ongoing operations rather than marking the culmination of any agency decision-making process, and did not determine the legal rights of any party."

Guam is among the 20 U.S. jurisdictions that host 34 sites with open burning and open detonation permits. Of the 34 sites, five are government-owned, contractor-operated sites, according to the Inspector General’s November 2021 report.

Open burning and open detonation operations are prohibited on Guam under Public Law 36-139, which lapsed into law on Dec. 29, 2022, without the governor’s signature.

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