ALABAMA FEDERAL JUDGE RULES
AGAINST CITIZEN GROUPS IN
CHEMICAL WEAPONS INCINERATOR SUIT
Groups Believe Ruling Is Incorrect; Consider Appeal
A court ruling in an effort by citizens
groups to enforce federal RCRA (Resource Conservation and Recovery Act) regulations
at the chemical weapons incinerator in Anniston went the Army's way when
Judge R. David Proctor granted the Army summary judgment on Friday, 18 March.
The judgment was received by the group of plaintiffs just today.
Judge Proctor found no evidence that violations of
the permit had occurred, although the plaintiffs never had an opportunity
to present evidence to the contrary.
What Proctor decided was that the claims raised by
the groups constituted a collateral attack on the permit issued by the Alabama
Department of Environmental Management (ADEM). He ruled such permit
matters fall outside the court's jurisdiction and the claims are also barred
because of a doctrine called res judicata, which forbids re-litigation
of all matters that have been or could have been litigated in a prior action.
Proctor found that the issues raised by the citizens groups--failure to have
an adequate contingency plan to minimize the release of hazardous waste into
the environment and failure to adequately characterize the waste to be burned
in the incinerator--were adequately addressed by ADEM's Administrative Hearing
Officer's ruling back in June of 2000. The Anniston incinerator did not begin
agent operations until 2003.
Interestingly, a July 2003 ruling in the same federal
court by Judge Karon Bowdre found just the opposite when the Army filed a
Motion to Dismiss the same claims. Judge Bowdre found that the court did
indeed have jurisdiction under federal law. She also found that, regarding
res judicata, it was particularly relevant that courts "not abstain
in RCRA citizen suits before it because, 'Congress has told the court
to exercise its jurisdiction over RCRA cases.'"
The plaintiffs are considering appealing Judge Proctor's
decision because of what Craig Williams, Director of the Chemical Weapons
Working Group feels was a gross misinterpretation of the statues. "It seems
like the Army had two bites at the apple. Losing the first, they merely argued
the very same points using a different legal approach and won.
According to Mick Harrison, attorney for the citizens
groups, "I believe this ruling fails to respect the plaintiff groups' rights
under federal law to enforce the hazardous regulatory requirements incorporated
into the ADEM-issued permit for ANCDF."
Proctor's order has done nothing to change the plaintiff's belief that the
facility is operating outside of RCRA regulations. Harrison said, "The
plaintiffs remain convinced that the Army and its contractors failed to properly
test the chemical agent waste including for its mercury content and to determine
the extent of gelling and crystallizing of the chemical agent in violation
of federal law. The plaintiffs also remain convinced that the Army and its
contractors have failed to take necessary actions to prevent and minimize
releases to the environment of chemical warfare agent and agent byproducts
including from the incinerator stack and incinerator ash handling areas."
He recommends that the plaintiffs carefully consider an appeal.
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