CHEMICAL WEAPONS WORKING GROUP
P.O. Box 467, Berea, Kentucky 40403
Phone: (859) 986-7565 Fax: (859) 986-2695
e-mail: kefwilli @ acs.eku.edu
for more information contact:
Craig Williams: (859) 986-7565
Cindy King: (801) 486-9848
Mick Harrison: (606) 321-1586
for immediate release: Wednesday June 14, 2000
CITIZENS GROUPS FILE NOTICE OF APPEAL OF FEDERAL RULING
ALLOWING CHEMICAL WEAPONS INCINERATOR TO CONTINUE
Activists hope to overturn Utah District Court ruling; Facility currently
shutdown due to agent releases into the environment
Citizens groups opposed to the Army's burning of chemical weapons in Tooele, Utah served notice today to the 10th Circuit Court of their appeal of the U.S. District Court Judge Tena Campbell's April 14, 2000 decision allowing the incineration facility to continue operating.
Judge Campbell repeatedly cited in her decision that there was no evidence that chemical agents had been released out of the stack into the environment, a point citizens groups still believe they adequately proved during the trial. "We won't need to litigate this issue again," said Craig Williams, director of the Chemical Weapons Working Group (CWWG), pointing out that the facility has been shut down since May 8th due to a live agent release.
"Of course this happened after Judge Campbell's ruling, and won't be part of the record reviewed by the 10th Circuit Court of Appeals, but the evidence we presented of similar releases should garner some real scrutiny under these circumstances," Williams said.
By June 24th plaintiffs, which include the CWWG , the Sierra Club and the Vietnam Veterans Of America Foundation, will file a Brief with the 10th Circuit Court identifying in detail the issues they feel were in error in Judge Campbell's ruling.
Among the most important errors, according to Mick Harrison, attorney for the plaintiffs, was the Judge's use of the incorrect standard under the Federal Resource Conservation and Recovery Act (RCRA). According to Harrison, RCRA requires only that citizens prove that such a facility "poses a risk of harm" or "may cause harm" to the public, not that it has been proven to actually have caused harm. Judge Campbell, according to Harrison, used as a basis for her opinion that there had been no injuries at the incinerator. "In my opinion, the Judge's use of injury as the standard for the relief we sought in incorrect and in error," said Harrison.
Other points to be raised on appeal include the Judge not ruling at all on the issue of the Army's obligation to minimize the release of hazardous substances and constituents under RCRA. "We demonstrated time and time again at trial that the incinerator is releasing all sorts of substances Army officials admitted were triggering the agent alarms but that they could not identify," said Williams, "but the Judge never ruled on this claim at all."
Williams said Judge Campbell also ignored their claim about the Army's inability to quantify and identify the emissions exiting the smokestack and specific issues brought before her about an existing reference dose for dioxin, a known cancer causing byproduct of incineration.
"She believed whatever the Army told her," said Williams. "When we showed that the system didn't work as designed, all the Army had to say was 'we've fixed it', and she believed it. When we showed that the Army didn't know if agent was escaping out the stack, all the Army had to do was have its paid expert say 'I don't think it was agent' and she believed it. Even the issues she agreed we did prove were ruled against because we 'failed to establish the violations were on-going or likely to reoccur' according to the ruling," said Williams.
"With all we proved has gone on, and now this latest confirmed release of agent, surely anyone would agree this facility meets the RCRA standard of posing harm to the public," said Cindy King of the Sierra Club. "We will continue to push for safe technologies for chemical weapons disposal through the courts and the Congress until we achieve that goal," she said. "This appeal is the next step in this process and I think we have an excellent chance of getting Judge Campbell's ruling overturned."
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