Defense Environment Alert
September 9, 2003

CITIZENS APPEAL CLAIMS DISMISSED IN ALABAMA INCINERATOR LAWSUIT

Citizen and environmental groups last week appealed three claims a federal judge dismissed in July, in a lawsuit seeking to stop the Army from destroying chemical weapons in Alabama through incineration.

The plaintiffs allege Judge Karon Owen Bowdre erred in dismissing one count concerning the Army's determination to rely on incineration at its chemical weapons stockpile sites and eliminating two counts regarding new information on the "imminent and substantial endangerment to human health and the environment" posed by the Army's incinerator in Anniston, AL.

Previously, the plaintiffs in Families Concerned about Nerve Gas Incineration, et al. v. U.S. Department of the Army, et al. had praised Bowdre's July 7 decision, which allowed the groups to pursue their allegations that the Army violated the National Environmental Policy Act and hazardous waste law in readying the incinerator for operations (Defense Environment Alert, July 15, p8). This portion of the suit is now pending. The groups filed their suit in the U.S. District Court for the Northern District of Alabama, Eastern Division, last November.

At the time of the July decision, an Army spokesman emphasized that the court dismissed half the suit, and said that as to the remaining claims, the Army firmly believes "it will answer these claims and prevail through the legal process as it has in the past."

One of the claims that Bowdre rejected alleges that the defendants violated the Fifth Amendment's Equal Protection guarantee. Bowdre ruled that the statute of limitations had run out on this claim. The plaintiffs had argued the Army planned to subject the surrounding minority population to the harmful incineration of chemical weapons while it is using safer alternatives to incineration at other sites where the surrounding communities are predominantly European-American.

Bowdre dismissed the count based on a six-year statute of limitation within which to sue the United States, which she said began in 1988, the year the Army decided to use incineration as its disposal method at all its stockpile sites.

But the plaintiffs argue that the Army only began to choose incineration alternatives for some stockpile sites in 1997, and that the most recent decision to use a non-incineration method was made this year. They say the statutory six-year clock should not have begun ticking until the alleged pattern of discrimination fully manifested itself this year.

The other two dismissed claims deal with alleged violations of the Resource Conservation & Recovery Act (RCRA). One count alleges that because the permit does not consider substantial new information about the dangers of incinerating gelled chemical agent, the Army's plan to burn gelled agent-filled rockets "presents an imminent and substantial endangerment to human health or the environment," in violation of RCRA. The other alleges the Army violated RCRA because the new information, again not considered in the permit, renders upcoming incineration tests and operations an imminent threat as well.

The court found these two claims "amount to nothing more than a collateral attack on the permitting process, which [section] 6972(b)(2)(D) prohibits the court from hearing."

But the plaintiffs' attorney Richard Condit said in a Sept. 3 statement that Congress' intent, when it created the citizen suit provision in RCRA, was to allow citizens to challenge just such circumstances and to insure the review of information that has never before been scrutinized.