Defense Environment Alert 09/21/04

Defense Environment Alert

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

Vol. 12, No. 19--September 21, 2004

STATE APPEALS COURT DENIES CITIZENS' PETITION TO ENJOIN OREGON INCINERATOR

A state appeals court Sept. 17 denied a petition by citizen activists to immediately enjoin the Army's incineration of chemical agent at its Umatilla Chemical Demilitarization Facility (UMCDF) in Oregon, according to a state regulator source. The citizens had sought the injunction pending the court's final decision in a challenge of the incinerator's permit.

The Oregon Environmental Quality Commission (EQC), a respondent in the case, authorized the Army Aug. 13 to begin burning chemical agent in the incinerator at Umatilla. The Army began incineration operations Sept. 8. Oregon citizens group G.A.S.P. and other environmental groups and citizens filed the emergency motion for an injunction pending appeal Sept. 13 in the Court of Appeals for the State of Oregon. Relevant documents are available on InsideEPA. .com. See page 2 for details.

They say the court should issue, "on an emergency basis, an injunction prohibiting all operations at UMCDF involving the following: (1) movement of chemical warfare agent munitions/wastes to the incineration facility; (2) any testing of the incineration facilities using chemical warfare agent; (3) any shakedown activities using chemical warfare agent; (4) any incineration operations using chemical warfare agent; and (5) the incineration of any hazardous waste(s)."

Halting incineration at this point would give the groups "a fair opportunity to obtain relief from the Court of Appeals before significant incineration activities involving chemical warfare agent or other hazardous wastes are permitted," the groups' petition says. They allege that if an injunction is not granted, the public will suffer "imminent, great and irreparable harm," citing air emissions from the facility.

The appeal before the court in GA.S.P., et aL v. EQC of the State of Oregon, et aL - informally known as the GASP I suit - involves whether the lower court erred in siding with Oregon regulators, who backed the Army's incineration technology as the "best available technology" to dispose of the chemical weapons stockpiled at Umatilla.

In the request for an injunction, the groups say they meet all the factors necessary for the court to order an injunction pending appeal. These include the likelihood that the appellant will prevail on appeal, whether the appeal is made in good faith and not to delay, whether the appeal has any support in fact or law, and the type of harm that would likely result from granting or denying a stay, the petition says.

On appeal, the appellants have raised seven issues in which they believe the lower court erred. The first of these is "[w]hether the Circuit Court erred in declining to allow Appellants to make a record before the Circuit Court as required by [Oregon Revised Statute (ORS) 183.484] and as interpreted in Norden v. Water Resources Department. . .," the petition says. This is the most obvious reason likely to result in the appellants' success on the merits of their appeal, the petition says.

"The trial court has noted on the record and in previous Opinions and Orders that it expects to be reversed on this issue," it says. "The simple reason is that the trial court ignored first the clear wording of ORS 183.484 and then this Court's decision in Norden, later affirmed by the Oregon Supreme Court, that Appellants were and are entitled to a trial in this matter." ORS 183.484 is state statute that addresses the jurisdiction for reviewing orders that are other than contested cases.

The Norden case centered on judicial review of a state agency's administrative order "in other than a contested case" proceeding. In a 2000 decision, the Oregon Supreme Court found that a judicial review of an administrative order in this type of proceeding is not limited just to the evidence that was before the agency when it issued its order. Rather, circuit courts - the trial courts - "are record-making, fact-finding courts," it found.

"ORS 183.484 and the Oregon Supreme Court's decision in Norden give Appellants the right to make a record in GASP I and expose the inadequacies of the Respondents' decision to permit the Army's incinerators with evidence and argument unique to permitting questions," the G.A.S.P. petition says.

But the petition says the Norden case alone is not the only reason appellants will likely prevail on appeal. The appellants say they will win also on issues related to the state regulators' determination that incineration is the "best available technology" to use on the chemical weapons stored at Umatilla. For instance, they say the state reversed itself on whether carbon filters were necessary to its approval of the incineration technology.

The EQC and Oregon Department of Environmental Quality fired back a response to the petition Sept. 15, saying they oppose the request for an emergency stay, and that it should be denied because it was filed past the 14- day deadline. "[T]his court should deny plaintiffs' last minute effort to delay the long-overdue destruction of these deadly chemical agents," they say.

They also list a number of other reasons on which to base a denial. The appellants have failed to demonstrate a likelihood that they will prevail on appeal, the state argues. Even if the appellants win a right to present evidence at a trial, such evidence has largely already been heard and rejected by the circuit court in a closely related case known as GASP III, it contends.

And the state response brief objects to the appellants' claim that an injunction will protect the public interest by preventing harm that will be incurred by an incinerator. It cites numerous risk assessments that have been done regarding the stockpiled chemical weapons, saying the "risk of continued storage of these dangerous chemical weapons is greater than the risk of destroying them under the terms of the permits." It contends that if the facility follows the environmental permit requirements, "health, safety and the environment will be protected."

The request by G.A.S.P. and others was their second attempt to try to enjoin incineration operations in as many weeks. G.A.S.P. late last month failed in trying to obtain an injunction of the incinerator from a circuit court judge in the GASP III case.

Meanwhile, the Umatilla incineration plant is experiencing some operational problems. Last week, the plant shutdown until the contractor had conducted an investigation and root cause analysis into a Sept. 14 incident in which two workers entered a highly contaminated room with an inadequate level of protective gear, a state regulator says. The chemical agent levels were not high enough to overwhelm the gas masks they did have on, however, the source notes. The plant was expected to restart Sept. 20, the source says.