Incinerator Permits Fought in Oregon
The following is excerpted from the September 1997 issue of "Common Sense", the newsletter of the Chemical Weapons Working Group,
published by the Kentucky Environmental Foundation.
"The Army needs to hear the message, loud and clear -- merely because a permit for a chemical weapons incinerator has been issued, we are not giving up," said CWWG member Karyn Jones. In February 1997, the state of Oregon issued a permit to Raytheon Corp. to begin construction of an chemical weapons incinerator at the Umatilla Army Depot, near the Columbia River basin in northeast Oregon. Jones is a board member of GASP, a community group in Hermiston, Oregon which, along with the Oregon Sierra Club and the Oregon Wildlife Federation, recently filed a complaint with the Oregon Circuit Court to stop the incinerator from being built.
The complaint charges that the Oregon Department of Environmental Quality (DEQ) and the Environmental Quality Commission (EQC) acted improperly in issuing the incinerator permit, because their decision was notbased on the following:
- the risk of incineration is less than the risk of continued storage;
- there would be no negative public health or environmental effects from the incinerator;
- releases of chemical agent, dioxins or other toxic compounds through the smokestack would be within regulatory limits;
- there are no other disposal options.
Oregon state law mandates that DEQ and the EQC only permit the "best available technology." In fact, incineration has proven all of the above arguments to be false.
The complaint addresses the failure of DEQ and EQC to ensure adequate monitoring requirements, an evaluation of non-cancer health impacts, emergency preparedness, characterization of process wastes processing information, and many other state and federal requirements. Neither did DEQ and EQC consider the health impacts of toxic chemicals on vulnerable populations like fetuses and infants, the elderly, or people with sensitive immune systems.
The actions by DEQ and the EQC might have been understood if no other disposal methods were available. But in fact, several alternative technologies exist. Neutralization and closed loop follow-up treatments have already been approved for the Maryland and Indiana stockpiles, and the Army is currently conducting a search for technologies other than incineration which can destroy assembled chemical weapons like those stored at Umatilla and other stockpile sites. Still, unless Oregonians keep pushing for these safer alternatives, Bob Palzer of the Oregon Sierra Club said, "Oregon is going to get stuck with an inferior technology and the potential to have it used as a national disposal site. This is unacceptable."
- 1997-2000: Oregon Plaintiffs repeatedly denied by Oregon Department of Environmental Management (DEQ) and Oregon Environmental Quality Commission (EQC) in their challenges to the incineration permit. Throughout this period plaintiffs are also repeatedly denied requests for a contested case which would include elements similar to a trial (ie: discovery, depositions, expert witnesses, cross examination of witnesses, etc.) Instead, the agency (DEQ) and their oversight board (EQC) relied entirely on the record created by DEQ and written objections/challenges to actions taken by DEQ and subsequently upheld by EQC.
At each step along the way, plaintiffs appealed these decisions until all administrative remedies provided by Oregon’s Administrative Procedures Act (APA) were exhausted. It is only at this point that an appeal to the Oregon Circuit Court is permissible.
- 2000: Plaintiffs appeal the DEQ/EQC rulings claiming they have been denied "due process" by repeatedly denying them a contested case; that the EQC acted improperly by refusing to accept new evidence uncovered during the Administrative challenge that was relevant to the issues simply because it was not already part of the record; and, other issues.
- 2001: October 16, 2001, Multnomah County Circuit Court issues an order siding with plaintiffs citing the Oregon Supreme Court ruling in Norden v. Water Resources Department which states:
"The absence of a requirement that the agency in other than a contested case proceeding make a record or findings of fact before issuing its order means that the first opportunity that a party might have to present evidence is before the circuit court. [FN4] Although the text of ORS 183.484 is not explicit regarding the scope of the record on review, the text suggests that the legislature did not intend to limit the scope of the record on judicial review only to the evidence that the agency had before it when it issued its order.
and citing:
“ORS 183.484(4)which states In other than a contested case proceeding, the first opportunity that a party might have to make a record of the evidence that would detract from an agency's order is on judicial review. Limiting the scope of the record to the evidence that was available to the agency when it issued its order would undermine the "whole record" review required by ORS 183.484(4)(c)."
Based on the above, the Judge states in his ruling, “I must give the parties a full opportunity to develop a record in this court - as full an opportunity as they would have had had the agencies afforded petitioners a contested case.”
- 2001-2002: Defendants (DEQ/EQC and Army) appeal the Circuit Court ruling to the Oregon Supreme Court which upholds the Circuit Court ruling providing Plaintiffs with the opportunity to have conducted a full trial on the merits of their initial challenge (finally!!). This would include: discovery; depositions; document production; examination and cross-examination of government (federal and state) witnesses; testimony of plaintiff witnesses; etc.
- Action: Challenge in Circuit Court to the validity of the permit issued by the Oregon Department of Environmental Quality and upheld by the Oregon Environmental Quality Commission (EQC) to the Army and Washington Demilitarization Group (WDG) to operate the incinerator. Circuit Court filing included allegations of violations of mandatory duties by the Oregon regulators under Oregon statutes; fraud by the Army and
(2)
its contractor during the permit application process; and other issues which lead to an illegal issuance of the permit currently allowing construction and operation. Some claims are based on confidential memos from the Oregon regulatory agency (DEQ) to the Environmental Quality Commission admitting to knowledge by the agency fraud; intentional misrepresentation by the Army and WDG in their permit application and subsequent information submitted to the agency. All these issues and more have been consolidated into the above action and will be heard in October (see Present Status below).
Parties: Oregon Wildlife Federation, Inc., Group Against Social Predation (GASP), Oregon Chapter of the Sierra Club, 24 citizen plaintiffs.
Status: Denial of the Petition by the Oregon Environmental Quality Commission (EQC) was Appealed to the Oregon Circuit Court which ruled that the plaintiffs were denied due process by the Oregon EQC, allowing a full trial on the merits to proceed within the Court. The DEQ/EQC, Army and Washington Demilitarization Group appealed the Circuit Court ruling to the Oregon Supreme Court which ruled against them and for the citizens. A trial schedule is currently being developed with the trial scheduled for October of 2002.
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