Hermiston Herald
04/23/02

GASP members happy with ruling

By Frank Lockwood
Staff writer

PORTLAND - Opponents of incineration rejoiced over comments from a judge in
Portland on Friday.

The pre-trial hearing was held Friday for the lawsuit attempting to revoke
permits for Umatilla Chemical Agent Disposal Facility. The facility is
presently undergoing systemization tests, with incineration of weapons of
chemical warfare scheduled for February, 2003.

GASP, Sierra Club and other parties to the GASP III lawsuit say that Oregon
state agencies should have allowed them to make a record before the court,
to subpoena witnesses, and present evidence that incineration was not the
best available technology. The UMCDF permits are illegal and should be
revoked, they say.

GASP members rejoiced following Friday's pre-trial hearing in Portland,
though a DEQ representative downplayed the apparent victory. The judge's
order had not been released, and attorneys on both sides advised against
trying to interpret the judge's intent until the written order has been
issued.

Individuals on both sides agreed concerning three predictions, however:

Sue Oliver, the DEQ Senior Hazardous Waste Specialist of Oregon's chemical
demilitarization project, said that the discovery would be "strictly
controlled." GASP would not be able to raise issues already settled in the
so-called "GASP I" lawsuit, Oliver said.

The suing parties will be allowed discovery and they will be allowed to
depose witnesses. On the other hand, they will not be allowed to depose
certain people, such as former Environmental Quality Chairman Henry
Lorenzen, Oliver said.

Best Available Technology

GASP claims that information relevant to UMCDF permits was kept from the record. That
information would have indicated the best available technology (BAT)
available was not incineration, they say.

In GASP I, courts ruled against GASP in the matter of BAT, but GASP
appealed. The DEQ says GASP cannot raise the BAT issue in GASP III, because
BAT is already being tried in an appeal.

GASP disagrees, with hints that GASP III will reveal information the
agencies refused to consider or that the Army withheld.

New Versus Old Issues

Oliver says that the DEQ should not have to argue again concerning best
available technology, because that was the subject of GASP I, a trial which
went in the DEQ's favor. "They challenged that (BAT) and they lost," Oliver
said, "so we shouldn't have to revisit best available technology. There is
always new technology on the horizon. Just look, the computer you bought
yesterday is already obsolete."

In the pre-trial hearing, the DEQ and EQC wanted three things:

"We have addressed every issue brought before us," Oliver insisted. "GASP
just doesn't like it when we consider an issue and come to a different
conclusion than they do."

In earlier GASP suits, Oregon Circuit Court Judge Michael Marcus had not
required the state to accommodate GASP with trial-like settings, but an
Oregon Supreme Court decision in an unrelated case later caused Marcus to
change his position.

People from both sides say they expect Marcus to allow GASP to present new
issues, if those issues have not been brought before the DEQ/EQC before.

At the hearing, GASP presented a proposal for both parties to agree to a
remand of the earlier cases, GASP I and GASP II, since the later courts have
determined that those decisions were reached in error. All three cases could
be consolidated into one case, they said. The other parties refused that
offer, however.

Now, both sides say they are waiting for a chance to review the written
order which will result from the April 19 hearing.

Frank Lockwood may be reached at 567-6457 or by e-mail at
flockwood@hermistonherald.com.