Hermiston Herald
February 5, 2002

Incineration foes cheer decision by supreme court

By Frank Lockwood
Staff writer

HERMISTON - A trial concerning Umatilla Chemical Agent Disposal Facility permits, including cross examinations, is almost certain: On Jan. 15 the Oregon Supreme Court declined to overrule a Circuit Court opinion and ruling to that effect.

Agencies will likely be required to redefine their permitting procedures. Whether incineration of chemical weapons will be held up remains to be seen. Department of Environmental Quality (DEQ) officials had hoped the Supreme Court would order Circuit Court Judge Michael Marcus to make a decision in the case dubbed G.A.S.P. III.

Marcus had refused to decide whether DEQ was correct in its decision not to revoke UMCDF permits as G.A.S.P., Sierra Club, Oregon Wildlife Federation, and 22 individual citizens had requested. He lacked the evidentiary records necessary, he noted.

The G.A.S.P. alliance claims the Umatilla Chemical Agent Disposal Facility was permitted illegally, because DEQ had repeatedly denied their requests for more formal hearings on permit decisions.

Sue Oliver of the Oregon Department of Environmental Quality, said last week that the Supreme Court's refusal to intervene has left open a potential for havoc in all state agencies covered by the Administrative Procedures Act. Under the act, agencies themselves review challenges to decisions. Oliver said she fears that the law has been interpreted so that anyone wanting to challenge a decision of any agency covered by the act may have the right to trial-like procedures. In addition, challenges may hold agencies responsible for evidence that was not available at the time the original decision was made, Oliver said.

But G.A.S.P. attorney Richard Condit says Oregon should have allowed the hearings long ago. Condit told The Hermiston Herald, "Other states had full review by commissions. Oregon is the only state that permitted a process like that, that permitted building a (chemical incineration) facility like that, without evidentiary hearings.

"It is most disconcerting that the incinerator has gotten to this stage without allowing concerned citizen groups the opportunity to challenge decisions and present evidence in a full evidentiary hearing," Condit said. "For years, the state and its agencies have had this idea that the state could permit that facility without evidentiary hearings, (but) citizens wanted people put under oath, with the opportunity to cross examine experts, the kinds of things you find in a formal hearing," Condit said.

In October 2001, based on additional information, the court reversed its own earlier decisions: Citizens did, indeed, have the right to trial-like proceedings, Multnomah Circuit Court Judge Michael Marcus determined. Oliver said Marcus was "clearly reluctant" to make such as conclusion, but felt he had no choice.

According to Marcus' court opinion and order, "It is extremely difficult, if not impossible, to assess whether the agencies have acted consistently ... to ensure the protection of health, safety, and the environment." Because of that difficulty, Marcus said he could not make a decision as to whether the DEQ had been correct in refusing to revoke the UMCDF permits.

The absence of agency findings or conclusions "seriously impairs" the court's ability to determine whether the agencies have erroneously interpreted a provision of law, acted outside the range of discretion delegated to the agency by law or in violation of state or federal law, or issued an order not supported by substantial evidence in the record, the
opinion claimed. Because of that, hearings must be held.

The judge's change of opinion was based partly on another supreme court case, referred to as the Norden Ruling. "The legislature has imposed on agencies the requirement of trial-like proceedings that culminate in a record, findings of fact, and conclusions of law," Marcus' concluded.

That cheered environmental groups but worried state officials, who asked the Oregon Supreme Court for relief through a writ of mandamus, which has now been denied.

Parties agree, a writ of mandamus is an "extraordinary measure," and the denial means that the seven Supreme Court judges decided not to take the case, not that the judges sided with either party.

But Condit said his clients got what they had hoped for. "Citizens wanted people put under oath, with opportunities to cross examine experts the kind of things you find in a formal hearing. Now it looks like we are going to get that opportunity," Condit said.

No one seems sure how Marcus' ruling will affect UMCDF's scheduled incineration of chemical weapons. Trial burns of surrogate chemicals are expected to begin next summer.
Attorneys plan to meet with Judge Marcus within the next few weeks to establish a schedule for the trial, and both parties may need time to gather further evidence.

In Marcus' footnotes, he had called on others to challenge his findings. He would welcome a review and cooperate, "given the importance of the issues in this case and the risks inherent in delay of disposal of the extremely hazardous chemical agents during litigation," he wrote. One possibility was that Supreme Court might intervene and order Marcus to make a decision based on the information already available, without a trial, but that did not happen.

"Why is (the state) acting more like a lap dog than a watchdog? " Condit asked. "Maybe we'll find out later this year when the case comes to trial in Circuit Court," he added. Oregon environmental law, we believe, has been clearly violated by the permitting of the facility."

[Frank Lockwood may be reached by telephone at (541) 567-6457, by e-mail at flockwood@hermistonherald.com, or by U.S. mail at the Hermiston Herald, P.O. Box 46, Hermiston, Oregon, 97838.]