Judge throws out incinerator lawsuit

This story was published Wed, Jun 2, 1999

By Theresa Goffredo
Herald Oregon bureau

PORTLAND - With judicial swiftness, a Circuit Court judge Tuesday ruled against several environmental groups and 22 Umatilla County residents, ending their two-year effort to stop the Army's incinerator project at the Umatilla Chemical Depot.

For the time being.

The Sierra Club, Oregon Wildlife Federation, GASP - Group Against Social Predation - and the depot-area resident opponents of the incinerator still can appeal their case. They also have 60 days to file further legal motions against the incinerator with Multnomah County Circuit Court.

Stuart Sugarman, one of the attorneys representing the incinerator opponents, hinted the end of legal wrangling regarding the weapons incinerator was not over. He said after court Tuesday that it's consistent with his group's style to pursue an appeal and file further legal motions in the case.

But for now, construction on the incinerator will continue so the Army and its partners can complete burning of the 3,717 tons of aging lethal chemical agent stored near Hermiston as projected by 2005.

In making his ruling that ended the lawsuit, Multnomah County Judge Michael Marcus refused to accept incinerator opponents' arguments that state agencies were allegedly operating as pawns of the Army when they issued hazardous waste permits to operate the incinerator.

Marcus said he ruled on the evidence. He also told the opponents they got what they asked for now that state agencies plan to hold a work session June 24 in Hermiston to discuss the carbon filters in the emissions control system. State agency officials also said they would review any new evidence on that system opponents claim is deficient.

"What have we been at this for years? It's been at least a year on this and 10 years before that," Marcus said. "The next proceeding will be a new one."

Marcus found in favor of the state's Environmental Quality Commission and the state Department of Environmental Quality, which asked the judge for a summary judgment to end the lawsuit.

Tuesday's hearing stems from a Dec. 6 ruling in which Marcus said the EQC failed to make clear to what extent the incinerator's safety depended on the carbon filter in the emissions control system.

The judge's opinion was issued in response to the incinerator opponents' original lawsuit filed in August 1997. The suit claimed hazardous waste operating permits that allow the Army to burn chemical weapons were issued without sufficient proof the incinerator would work safely.

The suit also claimed state authorities erred by not considering alternative technologies - such as chemical neutralization - to destroy the aging weapons.

Opponents of the filters have said they are unproven and potentially dangerous.

Richard Condit, another attorney for the incinerator opponents, renewed that argument Tuesday over the court's speaker phone. He said evidence shows the carbon filters in the incinerator's pollution abatement system suffer from pressure build-up which can lead to fires or even explosions.

Condit said the state agencies have provided no evidence supporting the use of carbon filters. Condit also said the work session planned for June 24 was meaningless.

"They're just placating us and the public before they rubber stamp the pollution abatement system," Condit said. "The agency is not really being held accountable."

State environmental quality officials and the Army have said the carbon filters were added to the project as an extra precaution and maintain the incinerator is safe without them.

Marcus reiterated the June work session will be a time when the agency reviews the evidence on the carbon filters.

"Talk to the agency," Marcus told the attorneys for the incinerator opponents. "Tell them, 'We hereby demand you consider this new evidence,' and say that to them. ... Refine your arguments, then that serves the public interest when it's refined."

After the hour-and-a-half hearing, Stephen Bushong, the attorney representing the state agencies, said he wasn't surprised by Marcus' ruling. He said it was time to make a final decision.

"We're pleased that a final judgment affirming the decision to issue (hazardous waste) permits will be entered," Bushong said. "That closes a chapter on this stage of the proceeding."

 

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