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Chemical Weapons Working Group, Inc. v. Department of the Army

Citation: 28 ELR 20246
No. 2:96-CV-0425C, 990 F. Supp. 1316/(D. Utah, 10/14/1997)

The court holds that groups who challenged a state's decision to add a company to the U.S. Department of the Army's license to operate a chemical demilitarization facility are estopped from challenging that company's licensure in federal court. The court first holds that the issues presented in the current case are identical to the issues that were presented before the state administrative board. In the current case, the groups allege that the company violated state law by operating the chemical demilitarization facility from 1989 to 1996 without a state permit. The question presented before the board was whether the state acted capriciously by adding the company to the Army's license as a co-permittee in 1996. The court finds that in resolving the groups' capriciousness claims, the board necessarily determined that the company was not required to obtain a permit during the 1989-96 period. The groups are correct that exclusive jurisdiction over suits alleging violations of the federal Resource Conservation and Recovery Act (RCRA) is lodged in the federal district courts. But it is equally true that once the U.S. Environmental Protection Agency authorized the state to administer and enforce a hazardous waste program in lieu of the federal program, RCRA was no longer applicable.

The court next holds that the board's decision was final. Case law provides that in Utah, unless a board's decision is reversed on appeal, the judgment is final for issue preclusion purposes. The court also notes that it is undisputed that the plaintiffs in this action were also the plaintiffs in the administrative hearing before the board. Last, the court holds that the groups received all the opportunity for full and fair litigation that state law and the federal constitution require. The groups' contention that they lacked the incentive to litigate fully in front of the board because the board could not impose fines or penalties under RCRA is without merit. No court has the power to impose penalties against the company under the federal statute, because it has been superseded by the state regulatory scheme. And had the groups prevailed in the administrative hearing, the company may well have been ordered to cease its operations at the facility. Because all four elements necessary for collateral estoppel are satisfied, the court grants summary judgment to the company on this issue.

[Decisions related to this litigation are published at 27 ELR 20022, 20569, and 21130. Related briefs and pleadings in this litigation are digested at ELR BRIEFS & PLEADS. 66496.]

Counsel for Plaintiffs
Randall M. Weiner
Ecological Consultants for the Public Interest
1942 Broadway, Ste. 206, Boulder CO 80302
(303) 444-4785

Counsel for Defendants
Peter A. Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000