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

ELR Citation: 27 ELR 20022
Nos. 2:96-CV-425C, 935 F. Supp. 1206/(D. Utah, 08/13/1996) Preliminary injunction denied

The court refuses to preliminarily enjoin the U.S. Department of the Army from beginning incineration tests of chemical warfare agents at its disposal facility in Tooele, Utah. The court first holds that the asserted risks of harm due to dioxin exposure and accidental agent releases are too speculative to qualify as irreparable harm to plaintiffs. Further, any injury that does occur while the case is pending will be relatively minimal, given that it will occur during only a small portion of the expected operating lifetime of the incinerator. The court next holds that the balancing of harms favors denial of the preliminary injunction. The Army has previously concluded that the risks of storing the agent outweigh the risks associated with operating the facility. Further, harm to the National Environmental Policy Act (NEPA) process will be minimal because if the court determines after trial that a supplemental environmental impact statement (SEIS) is required, such supplementation can still take place and be just as effective as it would be now.

The court then holds that plaintiffs did not show sufficient likelihood of success on the merits regarding its claim that the Army should prepare an SEIS before engaging in test burns at the Tooele facility. The Army's record of environmental consideration (REC), which concluded that an SEIS was not required before operating the facility, represents the considered position of the public official charged with making the decisions regarding the facility's operations and determining the significance of any new information brought forward. There is no evidence that the experts whose opinions underlie the REC were merely advocates preparing litigation documents. Further, documentation and testimony by a former Army employee regarding a prototype incinerator's problems do not constitute new information not already considered. Also, the Army's evaluation of the significance of asserted new information regarding the effects of dioxin, and its decision that alternative agent disposal technologies have not progressed sufficiently to require an SEIS are not arbitrary and capricious.

The court then holds that plaintiffs have not shown a likelihood of success on the merits of their claim that when the Army incinerates polychlorinated biphenyls (PCBs) in concentrations of less than 1,000 parts per million (ppm), it will violate the Toxic Substances Control Act's (TSCA's) requirement that incinerators destroy PCBs so that no more than one part in a million leaves the incinerator stacks. The facility's associate project manager testified that he had calculated that the facility's furnace could meet TSCA's requirements even if feed concentrations were as low as 300 ppm. Finally, the court dismisses the plaintiffs' nuisance claim because their complaint failed to specify the nature of the particular injury they will suffer as a result of the facility's operation. An injury based on alleged increases in pollutant levels would not be different from that which is suffered by the general public.

Counsel for Plaintiffs
Paul Van Dam
Jones, Waldo, Holbrook & McDonough
1500 First Interstate Plaza
170 S. Main St., Salt Lake City UT 84101
(801) 521-3200

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