[CPEO-MEF] appeal filed on chemical weapons incinerator ruling

[kefcrowe@acs.eku.edu]

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
web: www.cwwg.org
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 ON FEDERAL RULING ALLOWING CHEMICAL
WEAPONS INCINERATOR TO CONTINUE OPERATIONS

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 appealing
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 of her opinion that there had been no
injuries at the incinerator. "In my opinion, the Judges 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 the Army  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 the system didn't work  as designed, all the Army had to say was
'we've fixed it', and she believed them. When we showed they didn't know if
agent was escaping out the stack, all the Army had to do was have their
paid expert say 'I don't think it was agent', and she believed them.  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 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."


Elizabeth Crowe
Chemical Weapons Working Group
Non-Stockpile Chemical Weapons Citizens Coalition
(606) 986-0868
fax:  (606) 986-2695
www.cwwg.org




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