Defense Environment Alert
an exclusive biweekly report on defense policies for cleanup, compliance and pollution prevention


Vol. 12, No. 16--August 10, 2004


CITIZENS WILL APPEAL UMATILLA RULING AS STATE ACTS TO MODIFY
PERMIT


Citizen activists say they plan to appeal an Oregon state court ruling that dismissed all but one of their complaints, which aimed at overturning a hazardous waste permit for the Army’s chemical weapons incinerator in the state. The court, however, did agree with the citizens in calling for new measures to be added to the permit stressing workers’ whistleblower rights.

At press time, the Army had already submitted permit modifications on the whistleblower issue, and the state did not expect the additions to alter the incinerator’s startup schedule. The state’s regulatory oversight body, the Oregon Environmental Quality Commission (EQC), is set to meet Aug. 13 in Hermiston to decide whether to authorize the Army and its contractor to begin incinerating chemical agent.

In G.A.S.P., et al. v. EQC of the State of Oregon, et al. -- informally known as the GASP III suit -- Oregon Circuit Court Judge Michael H. Marcus remanded the permit to the state to add whistleblower protections, but otherwise dismissed the petitioners’ request to revoke the permit on a slew of other issues.

Marcus listed a number of reasons for requiring the additional worker protection measures, among them the fact that the agent air monitors for the facility are fallible, that the Centers for Disease Control & Prevention “neither regularly nor often” monitors their accuracy, that “a substantial minority of workers do not feel safe in approaching even their own supervisors with safety concerns,” and that the Army “has continued to insist erroneously that it is lawful to prevent its employees from offering opinion testimony in court, and has arguably discouraged disclosure of safety concerns at other facilities in ‘lessons learned’ meetings.” For these
reasons and several others, “I find no reasonable agency would fail to require whistleblower protections and related provisions, and remand the permit for such a modification,” the opinion says.

He calls for requiring the permittees “a) to advise workers of their obligation to report good faith concerns regarding the safety of workers, the public, or the environment, and related noncompliance with permit requirements, b) to notify workers of their obligation to convey such concerns to [Oregon regulators] if those concerns are not otherwise sufficiently resolved, and c) to assure all workers that they will not be disadvantaged in any way by communicating such concerns in good faith.”

Marcus denied the citizens’ complaints on a number of other issues related to the permit, however, including: “risks to the public from toxic emissions; lack of adequate consideration of alternatives to incineration; intentional misrepresentations by the Army to [the Oregon Department of Environmental Quality (DEQ)]; and, inadequate agent monitoring capability,” according to a July 26 press release from the Chemical Weapons Working Group (CWWG), a coalition of citizen groups that backs alternative technologies to incineration. He found in a number of these areas that the citizens had presented “compelling evidence” to support their claims, but nonetheless denied this was enough to revoke or modify the permit.

In his 47-page opinion, Marcus criticizes an Oregon Supreme Court decision, Norden v. Water Resources Dept., for diminishing his ability to review agencies’ fact finding and policy-making functions as consistent with legislative requirements. “Under Norden, I am to affirm the agencies’ result if a rational agency could reach that result in light of the record as a whole,” he writes. “Without findings [by an agency], I may thereby uphold a result that the agencies reached by misconstruing or violating the legislature’s mandates as to how the agencies are to conduct their functions, even though the same agencies might reach a different result were
they to conduct their functions without misconstruction or violation of those mandates.

“Without findings, it may also be impossible to know whether substantial evidence supports the agencies’ rationale for their result.” For instance, the state made no findings as to the total likely dioxin product during the facility’s operation, or whether the Army was deceptive with regard to its use of the dunnage incinerator, the judge says.

The petitioners are hailing the whistleblower aspect of the July 26 ruling, saying it has national significance for worker protections, but contend the judge erred in failing to use his full authority to revoke the permit due to other evidence presented in the case.

“This decision is significant nationally because it strengthens workers’ rights at chemical weapons facilities specifically and hazardous waste facilities generally,” said petitioner attorney Mick Harrison in the CWWG press release. “Workers no longer need to fear retaliation for simply telling the truth. This decision marks the beginning of the end of the era of management by intimidation at Army chemical weapons facilities.”

It comes just months after a Justice Department attorney for the Army interrupted the start of testimony by an Army employee during the case’s trial, telling him that if he were to testify, “your head’s on a chopping block,” according to an attorney for the petitioner (Defense Environment Alert, March 23, p13). Marcus in ruling on the incident in March denied the Army committed any misconduct by the alleged threat, but in his July 26 opinion, he strongly objected to the Army’s characterization that he had validated the Army’s legal authority to prevent the
testimony.

But the petitioners question the judge’s denial of their other complaints. “Oregon law states that if Petitioners create enough doubt through the evidence presented, which I feel we accomplished, that the agency’s permit decisions must be revoked or modified,” petitioner attorney Stu Sugarman said in the press release. And a CWWG spokesman says the judge gave contradictory views “on what his authority is in the context of his own order.”

Marcus noted the lack of “findings” by the DEQ on several issues, but still upheld the agency’s
views on these issues. DEQ did not make a “finding” on the whistleblower issue either, yet Marcus ruled against the department, the spokesman says.

In addition to an appeal of the case, the petitioners sent a letter to the Oregon Department of Justice Aug. 3 requesting state regulators agree to three matters related to the case. While the DEQ believes the whistleblower modifications to the permit should be a Class I modification -- reserved for minor changes -- the citizen groups are requesting that it be deemed a Class III modification -- used for the most significant changes and which would allow for public input into developing the modification.

Second, the groups ask that the EQC “make ‘findings’ on a number of issues identified in Marcus’ ruling as ‘compelling,’” before the commission approves the start of incineration, according to an Aug. 4 CWWG press release .

And they ask the EQC to wait to approve incineration operations until 10 days after the Oregon Court of Appeals rules in a related suit regarding the incinerator facility. According to the state source, the DEQ was planning to respond to the letter Aug. 6, deeming the additional
whistleblower requirements a Class I modification, rejecting the citizens’ request. The DEQ says the other two requests will be discussed at this week’s EQC meeting.