Defense Environment Alert
an exclusive biweekly report on defense policies
for cleanup, compliance and pollution prevention
Vol. 12, No. 6--March 23, 2004
OREGON COURT FINDS NO MISCONDUCT BY ARMY IN UMATILLA
An Oregon state circuit court judge earlier this month denied the
Army committed any misconduct when it asserted its right to prevent testimony
by an employee in a case that challenged the permit for a chemical weapons
incinerator in Oregon.
The March 1 decision by the Circuit Court of the State of Oregon in and for
the County of Multnomah moves forward a lengthy trial over a case seeking
to revoke the air and hazardous waste permit for the Umatilla Chemical Agent
Disposal Facility, in Hermiston, OR, based on environmental, worker and community
safety grounds.
Citizen and environmental groups sought a motion for sanctions against the
Army after a Justice Department attorney last year interrupted the start
of testimony by an Army employee, telling the employee that if he were to
testify, "your head's on a chopping block," an attorney for the plaintiffs
says. The judge allowed testimony to proceed, but the witness - who
was to testify for the plaintiffs on air monitors used at chemical weapons
incineration facilities - said he would only testify on facts regarding monitors,
not his opinion, due to the government's alleged threats, the plaintiff attorney
says. The plaintiffs have alleged Army monitors are deficient.
An Army source says the lawyer was just pointing out to the witness he could
not testify against the Army.
Judge Michael H. Marcus declined to find misconduct on the Army's behalf.
"Although the Army's initial, repeated, and persisting assertion of a right
to prevent testimony by any employee in these proceedings raises serious
questions about the respondents' ability to ensure public safety during the
proposed operation of the demilitarization incineration facility at Umatilla
subject of these proceedings, and although the assertion of the Army's position
in terms of a witness 'put[ting] his head on a chopping block' was unfortunately
zealous, I cannot find misconduct on the part of the Army's counsel," he
says in the ruling. He finds "no showing" that the employee is facing retaliation,
although he "may seek whatever protection this court might provide should
retaliation or its threat materialize."
But Marcus does not close the door on the issue. He asks that the parties
in the case - the citizen group G.A.S.P., other groups and the state - respond
to two issues in their final briefs. He wants answers to the questions:
- "Why would any rational agency in [Oregon's Department of Environmental
Quality (DEQ)/EnvironmentalQuality Commission's (EQC)] role not require in
the permit that devices designed to detect agent in emissions within the
facility and escaping from the facility actually perform as intended and
be regularly validated in that performance?
- "Why would any rational agency in DEQ/EQC's role not require in the
permit that the Army expressly and notoriously forgo any right or power to
prohibit good faith testimony by employees concerning hazards in the operation
of the facility, or otherwise restrict the operation of Touhy [Army] regulations
in the service of safety oversight?"