Hermiston Herald
October 23, 2001

Foes of incineration hail ruling: Decision will allow citizens to challenge appropriateness of permit

By Frank Lockwood
Staff writer

HERMISTON - Multnomah Circuit Court Judge Michael Marcus has agreed to hear evidence from those opposing chemical weapons incineration.

Chemical Weapons Working Group, out of Kentucky, hailed the decision as they have long sought in their attempts to stop incineration of chemical weapons. Marcus had denied two former requests for hearings, filed by three environmental groups and 22 individuals, saying the petitioners needed to first present their evidence to the appropriate agencies - the Department of Environmental Quality and the Environmental Quality Commission.

Those filing suit had claimed that, under Oregon law, the judge had jurisdiction over the DEQ and other agencies to look over their decisions in order to test the evidence for what they were doing - in this case, permitting the Umatilla Chemical Agent Disposal Facility.

This was the third such suit since 1997. The earlier two lawsuits were dubbed GASP I and GASP II, so named after the group which goes by the name GASP, and which is one of parties to the lawsuit. Twice the judge had refused to take testimony from the anti-incineration groups.

The DEQ can make permit decisions on relatively informal hearings, where people are not sworn, but, according to the environmental groups' attorney, Stu Sugarman of Portland, citizens may then contest the agency's decision, forcing the agency to accept one of two choices:

1) to allow a contested case hearing, which is like a trial, with sworn witnesses, or
2) the challenger can take the case to circuit court, in what is called a non-contested case.

The terminology is confusing, Sugarman said, because, of course, an agency decision really is being contested. Either route results in trial-like proceedings that culminate in a record, findings of fact, and conclusions of law to accompany the agency's "final order."

"We finally have the right, for the first time ever, to really find out whether incineration is right for Oregon," Sugarman said. "We have always believed (approving the permit) was a poor decision. Now, we'll finally get a chance to prove it."

Following oral arguments presented on Sept. 28, the judge made his decision known in a 26-page memorandum of opinion of Oct. 16. The judge stood by his decision not to require contested case hearings, but conceded the petitioners were correct about some issues."I remain persuaded that the petitioners were not entitled to contested case proceedings before the agencies, and that the scope of any review by this court is extremely limited," the judge wrote.

Nevertheless, he wrote, "It now appears that the petitioners were correct about many important issues in this controversy, and about their right to make their record in this court. They appear to be right that part or all of the secondary waste disposal plans will never be employed as contemplated and that the utility of the carbon filters has yet to be determined with confidence. They also appear to be correct that they were and are entitled to make their record in this court on review."

The judge also noted that it was "extremely difficult, if not impossible, to assess whether the agencies have acted consistently with their legislative charge to ensure the protection of health, safety, and the environment," because the agency "exercised its right" to make important decisions without making findings of fact or articulating conclusions of law.

Among other things, there was controversy over carbon filters and dunnage incinerators. According to incineration opponents, DEQ at first implied carbon filters were necessary, later reversed that, saying the filters were not necessary.

Marcus also referred to a "confidential" letter from the DEQ manager to DEQ Director Langdon Marsh, expressing the opinion that the Army had known all along that the dunnage incinerator would not function as it represented in the permit application, and suggesting that the Army was unwilling to accept Oregon's insistence that no contaminated waste leave the Umatilla facility.

According to the document, Oregon law is intended to protect the public health and safety and environment of Oregon to the "maximum extent possible," and that the facility use "the best available technology for treating or disposing of hazardous waste."

The Chemical Weapons Working Group has promoted alterative technologies to incineration. At stake are the contracts to dispose of 3,717 tons of chemical warfare agents which have been stored at Umatilla Chemical Depot since the 1960s.