Anniston Star

Anniston Star
July 10, 2003

Incinerator start hazy: Judge upholds part of opponents' lawsuit

By Sara Clemence
Star Staff Writer
07-10-2003

As the Anniston chemical weapons incinerator teeters on the brink of startup, opponents have declared a small victory in their legal battle to keep the burn from happening.

Monday, a federal judge upheld parts of a lawsuit that a dozen local and national anti-incineration groups filed in November. Defendants, including the Army, had asked that the court dismiss the claims.

"It means we're going to trial, which is a great thing for us," said Richard Condit, the lead plaintiffs' attorney. "We doubt very highly the Army's program will hold up to scrutiny."

The Army has hoped to begin burning the 2,253 tons of nerve and blister agent stored at the Anniston Army Depot by the end of July, following months of delay. For decades chemical agent, some contained in aging munitions such as landmines and rockets, has rested in concrete bunkers at the depot. Before the Army can proceed with the burning, international monitors must be present to witness the destruction, the Alabama Department of Environmental Management must issue a final permit and the governor must sign off on the process.

Despite the plaintiffs' optimism, Judge Karon Owen Bowdre of the Northern District of Alabama struck down three components of the lawsuit, including the claim that the Army had violated the Fifth Amendment, which guarantees equal rights to all citizens. The statute of limitations on that claim had expired, the judge wrote in the decision.

Army officials stressed aspects of the ruling favorable to them.

"While the plaintiffs choose to focus on the success on the three counts moving forward, the Army would like to make it clear that three counts were also dismissed in the ruling," Greg Mahall, spokesman for the Army's Chemical Materials Agency, read from a statement.

The lawsuit was brought by a coalition of organizations, including the local Families Concerned About Nerve Gas Incineration, Coosa River Basin Initiative the Kentucky-based Chemical Weapons Working Group and Vietnam Veterans of American Foundation.

Defendants include the Department of Defense, the depot, the Army Program Manager for Chemical Demilitarization and Westinghouse, the company that built and operates the incinerator.

Incineration opponents have filed several legal actions over the years to stop incinerators in Oregon and Utah, but none have yet succeeded in stopping the facilities.

This latest lawsuit is one of two that could affect the Anniston incinerator. The other was filed in district court in Washington, D.C.

Judge Bowdre wrote that the court does not have the jurisdiction to consider claims that the incinerator poses an "imminent and substantial endangerment to human health and the environment" because its permits do not take new information into account.

Bowdre's decision also said that the six-year statue of limitations had expired on the claim that the Army had violated the Fifth Amendment by using safer disposal methods in "predominantly European-American communities."

The judge upheld three of the plaintiffs' claims, two having to do with hazardous waste law.

One claim alleges that the Army does not know exactly what the incinerator will emit, because it has not tested emissions under actual operating conditions, Condit said. The emissions contain some chemical agent and toxic substances such as dioxin, he said.

The Army also has not properly characterized the contents of the weapons, which have may have changed over the decades, Condit claimed.

"We know from Utah that there are sometimes surprise chemicals such as arsenic or mercury," he said. "When you don't have a precise understanding of what's going in, it's very hard to have a precise understanding of what's coming out."

Mahall said it was Army policy not to comment on pending legal issues.

"The Army, however, is firm in its belief that it can and will answer these claims and will prevail through due process, as it has in all past legal efforts," he said.

Under international treaty, the United States must destroy its stockpile of chemical weapons by 2007. The Army already has disposed of more than a quarter of the overall stockpile, but chemical weapons remain at eight sites around the country, including Anniston.