VIA FACSIMILE: 503-378-3465
Stephen K. Bushong, Esq.
Trial Attorney
Oregon Department of Justice
1162 Court Street NE
Salem, Oregon 97301-4096

    Re:    UMCDF permit modification and chemical warfare agent operations

Dear Mr. Bushong:

    The purpose of this letter is to seek the cooperation of your clients and to inform your clients of the Petitioners’ position on the issue of permit modification and the start of chemical warfare agent operations.  We request that you provide a copy of this letter to the Environmental Quality Commission (EQC) and the Director of the Department of Environmental Quality (DEQ) for their independent consideration.

    As you know, the Circuit Court remanded the EQC’s decision to deny Petitioners’ request for revocation/modification and required that the EQC modify the permit by adding conditions that make clear that employees at UMCDF are protected to come forward and reveal safety and compliance issues.  We point out that such protections would apply to DEQ personnel as well.   

    The Circuit Court concluded, in part, that “[w]ithout the addition of the whistleblower functions, the permitted activity endangers human health and the environment and can only be regulated to acceptable levels by modification of the permit [by adding whistleblower protections].”  GASP III, Opinion and Order on Judicial Review at 46.   The Court also noted that “meaningfully encouraging workers to report good faith concerns for safety, hazards, and related noncompliance with permit conditions would represent a substantial safety function.”  Opinion at 45.

    Meaningful encouragement will require something more than a few meetings and conduct consistent with the status quo.  The Court correctly stated that the “mere existence of a federal whistleblower statute has not been sufficient to ensure the full participation of     . . . workers  in protecting health, safety and the environment.”  Opinion at 44.  Therefore, Petitioners request a comprehensive permit modification that is designed to alter the failed safety culture at the Army’s chemical warfare agent incineration facilities.  

    In order to meaningfully address this important issue, full public participation is required.  The input of current and former workers, independent of the Army and its contractors, should also be recruited to provide their opinions on the creation of an appropriate permit modification.  The Court expects that the anticipated modification will alter the status quo and aid in the protection of human health and the environment, as well as ensure compliance with safety and permit requirements.  There is no equivalent permit modification listed in 40 C.F.R. § 270.42, Appendix I (permit modification standards).  Therefore, the modification should be processed as a class 3 permit modification.  40 C.F.R. § 270.42(d).  If the permittees have sought the DEQ Director’s determination that would allow this modification to be processed as a class 1 or 2 modification, then Petitioners request to be immediately informed and be permitted to meaningfully participate in the process to determine the appropriate permit modification procedures and substance.  Failure to provide timely and proper notice would violate both Petitioners’ notice and comment rights and the spirit, if not the letter, of Judge Marcus’ ruling .

    In sum, Petitioners request that the permit modification ordered by the Court be processed as a class 3 modification.  Petitioners propose that the permit be modified to add a new section I.CC.1. to Module I.  Petitioners proposed permit modification is attached.   Please advise us in writing of your clients’ intentions regarding this issue.

    Next, it is the Petitioners’ understanding that your clients intend to approve the commencement of chemical warfare agent operations at the EQC’s August 13, 2004 meeting.  The push to start agent operations is premature in light of pending concerns, including the need to properly modify the UMCDF permit.  

    The task before the Commission is a daunting one.  As you know, and as should be conveyed to the DEQ and Commission, the Circuit Court found much of Petitioners’ evidence on several important issues “compelling.”  Opinion at 25 (Petitioners challenge regarding dioxin is well supported in the record and “alarming.”)  Petitioners also established at trial that alternatives like neutralization have “demonstrated their practical utility.”  Opinion at 27.  And the evidence demonstrates that the Army (not Petitioners) “estimates a far smaller quantity of dioxin, PCBs, and hazardous waste emissions from alternative neutralization facilities, and less water consumption, than with incineration.”  Opinion at 27.  Regarding ACAMS and DAAMS, the Court noted that Petitioners’ “produced evidence supporting the inference that ACAMS and DAAMS do not reliably detect agent.”  Opinion at 31.     Concerning these and several other issues, the Court noted the significance of the information presented and lamented the fact that the agencies (DEQ & EQC) had not assessed and made findings concerning this evidence.

    Consequently, Petitioners request that the Commission consider the Court’s opinion and specifically address and make findings on the issues raised and evidence presented in GASP III prior to making a decision regarding initiation of chemical warfare agent operations of any kind.  The GASP III record makes clear why Petitioners oppose the use of incineration to dispose of chemical warfare agents.  The Commission must directly address the “compelling” evidence about health risk and other issues before making any decision to allow agent shakedown, testing, or operations.  

    Finally, there is the pending appeal in GASP I, which is due to be argued on August 20, 2004.  In light of the permit modification issue and pending appeal, Petitioners are requesting that your clients agree to postpone the commencement of agent operations until ten (10) days after the Court of Appeals issues its decision on the merits.  Please advise us in writing whether your clients will agree to a stay of agent operations pending the permit modification and a decision in the GASP I appeal.

    Failure to reach agreement or to communicate on these issues will result in Petitioners seeking injunctive relief in one or more fora to block agent operations.  However, it is Petitioners hope that the parties can reach an agreement and avoid additional litigation.

    Please advise us in writing of your clients’ position on the issues referenced herein on or before the close of business on August 6, 2004.   

                        Sincerely,


                        STUART A. SUGARMAN, LLC


                        Stuart A. Sugarman

                        Richard E. Condit
                        5505 Connecticut Ave., NW, #283
                        Washington, D.C. 20015-2601
                        Tel. 202.829.2444
                        Fax  202.318.3211

                        Mick G. Harrison
                        Environmental Center
                        116 _ S. College Ave., Suite 10
                        Bloomington, IN  47401
                        Tel.: (859) 321.1586
                        Fax: (859) 986.2695

                        Counsel for Petitioners

    
 Appendix A – Petitioners GASP, et al. Proposed Permit Modification



MODULE I - STANDARD PERMIT CONDITIONS

I.CC.    EMPLOYEE PROTECTION

I.CC.1.  Discrimination by the Permittee, or a contractor or subcontractor against an employee for engaging in certain protected activities is prohibited. Discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment. The protected activities are established in 29 C.F.R. Part 24.

(A) The protected activities include but are not limited to:

(i) Providing the Environmental Quality Commission, (Commission), Department of Environmental Quality (DEQ), Environmental Protection Agency (EPA) or his or her employer information about alleged violations of either of the statutes or regulations named in this permit or possible violations of requirements imposed under those statutes or regulations;

(ii) Refusing to engage in any practice made unlawful under the permit, statutes, or regulations named in this permit, if the employee has identified the alleged illegality to the employer;

(iii) Requesting the Commission, DEQ, or EPA to institute action against his or her employer for the administration or enforcement of the requirements stated in this permit;

(iv) Testifying in any Commission proceeding, or before Congress, or at any Federal or State executive, judicial, or legislative proceeding regarding any provision (or proposed provision) of the statutes or regulations named in this permit.

(v) Assisting or participating in, or is about to assist or participate in, these activities.

I.CC.2.  These activities are protected even if no formal proceeding is actually initiated as a result of the employee assistance or participation.

I.CC.3.  This section has no application to any employee alleging discrimination prohibited by this section who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of the permit, statute or regulations referenced herein.

I.CC.4.  Any employee who believes that he or she has been discharged or otherwise discriminated against by any person for engaging in protected activities specified in paragraph I.CC.1 of this section may seek a remedy for the discharge or discrimination through an administrative proceeding in the Department of Labor. The administrative proceeding must be initiated within 30 days after an alleged violation occurs. The employee may do this by filing a complaint alleging the violation with the Department of Labor, Occupational Safety and Health Administration. The Department of Labor may order reinstatement, back pay, and compensatory damages.

I.CC.5.  A violation of I.CC.1, I.CC.6, or I.CC.7 of this module by the Permittee, or a contractor or subcontractor is grounds for--

(A) Denial, revocation, modification, or suspension of the permit;

(B) Imposition of a civil penalty on the permittee, and/or

(C) Other enforcement action.

I.CC.6.   Each Permittee and each contractor or subcontractor shall prominently post a "Notice to Employees," repeating these standards. This form must be posted at locations and in a typeface sufficient to permit employees protected by this section to observe a copy on the way to or from their place of work.

(A) In addition to the posted notice, each employee, contractor employee, or sub-contractor employee will receive an individual copy of the notice required by this section.  Such notice will be in English and in the language of the employee if s/he speaks a language other than English as a first language.

(i) A record showing that each employee, contractor employee, or sub-contractor employee received notice of her or his rights will be maintained in the permanent record of the facility.

(B) Further, each employee, contractor employee, or sub-contractor employee will receive training of not less than 30 minutes instructing how any safety or compliance concerns can be reported to DEQ, EQC, EPA, and facility management.  The training will emphasize reporting to state agencies and EPA and will not state or imply that reporting to facility management is required.  In addition, managers and supervisors will be instructed that employees have a protected right to raise safety and compliance issues and that no action may be taken against them for raising such issues.

(i)  A record showing that each employee, contractor employee, or sub-contractor employee, including supervisors and managers, received training regarding her or his right to raise safety or compliance issues will be maintained in the permanent record of the facility.  

I.CC.7.   No agreement affecting the compensation, terms, conditions, or privileges of employment, including an agreement to settle a complaint filed by an employee with the Department of Labor or in any Court may contain any provision which would prohibit, restrict, or otherwise discourage an employee from participating in protected activity as defined in paragraph I.CC.1 (and 29 C.F.R. Part 24) of this section including, but not limited to, providing information to the Commission, DEQ, or EPA or to his or her employer regarding potential violations or other matters within Commission's, DEQ’s or EPA’s regulatory responsibilities.