07:59 AM PST on Friday, January 23, 2004

Associated Press

Attorneys want a federal judge to consider sarin leaks outside a Umatilla Chemical Depot bunker in December as evidence before he rules on a lawsuit 49 construction workers filed against the Army.

The trial ended Nov. 1 but U.S. District Judge Dennis Hubel has not ruled.

James McCandlish, a Portland attorney for the workers, said the December sarin leaks invalidate "the Army's position that there was nothing to worry about on Sept. 15, 1999," when dozens of workers mysteriously became ill.

Umatilla Chemical Depot (KGW File Photo)

They were building an incinerator at the depot to destroy 7.4 million pounds of deadly nerve and mustard agents at the depot near Hermiston.

The workers have sued the Army for negligence. Raytheon, now known as Washington Demilitarization Group, was also named in the suit but settled out of court.

McCandlish said the judge can reopen the case to allow further evidence. On Dec. 8, Sarin gas was detected outside one bunker, forcing depot employees to wear breathing masks and "shelter in place."

Workers leave the construction site at the Umatilla Chemical Depot. (KGW File Photo)

A second leak was detected outside the same bunker Dec. 17. Officials pinpointed the leaking bomb and repacked it.

"We don't know what it means, but it certainly is proof, in our judgment, that all the planning and emergency response should take into account that there can be leaks," McCandlish said.

"This is only 200 feet from where these guys were working unmasked."

Justice Department attorney James Brennan argued the leaks should not be allowed into evidence because the trial was to determine whether the government responded adequately to the 1999 emergency.

If the judge rules in favor of the workers, the trial would go into a second phase to consider whether nerve agent could have leaked that day and was responsible for the workers' illnesses.

Brennan said if the recent leaks were relevant at all, it would be during that phase of the trial.

Brennan argued that the workers were engaged in various activities that were generating noxious fumes when they fell ill.