Defense Environment Alert
April 8, 2003

APPEALS COURT RULES AGAINST CITIZENS IN TOOELE INCINERATOR CASE

A federal appeals court has upheld a lower court decision that dismissed a citizen suit alleging environmental violations and chemical agent releases at the Army's chemical weapons incineration facility in Toocle, UT. The decision by the 10th Circuit Court of Appeals is the latest in a string of rulings to dismiss citizen claims against the Army at Tooele.

The appellants -- the Chemical Weapons Working Group (CWWG), Sierra Club and Vietnam Veterans of America Foundation -- are weighing whether to appeal the case or to file a new suit on similar grounds but based on new evidence. The case, Chemical Weapons Working Group, Inc., et al. v. U.S. Department of Defense, et al., reviewed the Army's operations at Tooele only through mid- 1999. Anything that occurred since then may bolster the citizens' arguments, says a CWWG spokesman, who notes major problems that arose after 1999 such as the May 2000 chemical agent release at the plant.

In a March 18 opinion, the 10th Circuit affirmed the district court's decision, finding the citizen groups' allegations failed to meet standards under the Resource Conservation & Recovery Act (RCRA), which authorizes citizen suits against the federal government for violations of the law. The appeals court also rejected two other non-RCRA claims. The decision is available on InsideEPA. com. See page 2 for details.

The court reviewed de novo the district court's conclusions in a case alleging RCRA and other violations from 1996-1999 at the Tooele Chemical Agent Disposal Facility, where the Army has been destroying a stockpile of chemical weapons since 1996. The citizen groups also alleged the environmental violations would continue into the future. But the district court in 2000 ruled that no agent-related injuries had been sustained and no agent had been released outside the facility (Defense Environment Alert, May 2, 2000, p 11).

The appeals court found that the lower court had not erred in dismissing claims under RCRA based on that court's finding that any violations that did occur were in the past and not continuing. Many other circuits have held that citizen suits for "wholly past violations" are not authorized by RCRA; the violations must be continuous or intermittent. But the citizens argued to the 10th Circuit that they filed their complaint before the violations occurred, at the time alleging in general terms that violations would probably occur. Then after the alleged violations did occur, the parties amended their complaint, specifying the violations.

The 10th Circuit though says the appellants misconstrue a Supreme Court decision on the matter of wholly past violations and its recognition that a defendant might suddenly start complying once litigation is filed.

"All of the appellants' specific claims involved discrete past incidents of alleged misconduct incidents that were, we note, followed not only by efforts to assess whether any damage was done, but also by improvements in the facility's procedures to prevent even those (thankfully) harmless violations from occurring again." Therefore, these were "wholly past" in the way that the Supreme Court "used the term: violations that have ceased, not because of the onset of litigation but because the defendants had already corrected what they were doing."

The appeals court also rejected the claim that the Army's actions had created an imminent and substantial endangerment to public health or the environment. RCRA allows citizen suits against entities that through their solid or hazardous waste handling "may present an imminent and substantial endangerment to health or the environment," according to the statute. The appellants say the lower court, in rejecting the claim, set the bar too high, requiring the plaintiffs to prove the Army's actions actually presented such an endangerment, rather than showing they potentially could create such a situation.

But the appeals court disagreed, saying the lower court's language indicates it was considering past harm and possible future harm. The appeals court finds the citizens' open-ended allegation that they expect harmful incidents will continue to occur does not meet RCRA's standards, saying "a vague possibility of future harm" fails to satisfy the statute. And the court points to the Supreme Court ruling in Meghrig v. KFC Western, Inc. that held "imminent" harm must be an immediate threat. The appellants' argument "would threaten to convert RCRA into a strict liability statute," the court writes, saying the appellants failed to show imminent danger.

In an endnote to the opinion, the three-judge panel says that the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) might have been a more appropriate statute for serving the appellants' purposes. Unlike CERCLA, "'RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards,"' it says, citing Meghrig.

"We're very disappointed," the CWWG spokesman says. He says the group believes the court erred in interpreting RCRA's imminent and substantial hazard provision. "We are resolute in our position that this facility does pose these hazards and [there] is a significant amount of evidence since the record was reviewed that shows this."

EG&G, the Army's contractor at the plant and a co-defendant, praised the decision. In a March 18 statement, EG&G attorney Craig Galli stated, "Once again the federal courts have carefully scrutinized claims asserted by opponents of incineration and found the facility and process safe."