Defense
Environment Alert
an exclusive biweekly report on defense
policies for cleanup, compliance and pollution prevention
Vol. 11, No. 22--November 4, 2003
ARKANSAS SUPREME COURT DISMISSES APPEAL OF CHEM DEMIL PERMITS
The Arkansas Supreme Court late last week affirmed a lower court ruling that
dismissed a challenge to the Army's hazardous waste and air permits for a
chemical weapons incinerator it plans to operate in Pine Bluff, AR.
In Pine Blufffor Safe Disposal, et al. v. Arkansas Pollution Control and
Ecology Commission, et al., the Supreme Court of Arkansas ruled that the
appellants failed to show that the commission erred when it affirmed the
issuance of the air and hazardous waste permits by the Arkansas Department
of Environmental Quality. Also, they failed to show that the issuance of
these permits "will cause air pollution . . .." Further, the Oct. 30 decision
summarily dismisses environmental justice claims, and dismisses on procedural
grounds other claims.
The Jefferson County Circuit Court initially affirmed the commission's decision
to dismiss these claims. And the Arkansas Court of Appeals then certified
the appeal to the Supreme Court, presenting it as "an issue of substantial
public interest," the decision says. The ruling is available on InsideEPA.com.
See page 2 for details.
The court based its review on the administrative record and whether the state's
decision was supported by "substantial evidence" and was "not arbitrary,
capricious, or characterized by an abuse of discretion."
First, the court looked at the appellants' contentions that the Pine Bluff
facility will emit the air pollutants dioxin and furans, mercury, chemical
warfare agent and agent byproducts, and "that the Commission's decision violates
state and federal law, as well as the Commission's own regulations, in that
the permits do not contain adequate conditions to protect the public health
and environment."
But in making their arguments that dioxin emissions will adversely affect
human health, the appellants rely on an EPA reference dose that was never
adopted and in fact has been criticized by EPA's Science Advisory Board,
the court says. And especially given expert testimony in the administrative
record indicating dioxin emissions would not cause adverse effects, they
"have failed to show that this ruling is not supported by substantial evidence,"
it says.
On the mercury allegations, which relate to impacts on wildlife and the environment,
the court says the hearing officer who initially heard the case found that
the facility's mercury contribution to local water bodies "'is so small that
it is insignificant."' The court says the appellants offer no evidence that
such small increases would harm wildlife, and it affirmed the hearing officer's
conclusion that the risk assessment for the plant considered the risk posed
by products of incomplete combustion. The appellants had argued the Army
lacked procedures to identify these.
"[T]he evidence clearly demonstrates that the expected emissions will not
be materially injurious to human, plant, or animal life or to property and
will not unreasonably interfere with the enjoyment of life or the use of
property in the area," the court says in sum. "Thus, we conclude that the
Commission's decision is supported by substantial evidence." Since there
is substantial evidence, the court says, it automatically follows that a
decision cannot be deemed unreasonable or arbitrary.
"We are disappointed with this decision" and plan to consider legal options,
one appellant says.