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Chemical Weapons Working Group v. Department of the Army

ELR Citation: 27 ELR 21130
Nos. 2:96-CV-425C, 111 F.3d 1485/(10th Cir., 04/22/1997) Decision at 27 ELR 20022 aff'd

The court held that the U.S. Army's proposed incineration of chemical warfare agents at the Tooele facility in Utah does not violate the Administrative Procedure Act (APA), the Federal Water Pollution Control Act (FWPCA), the Resource Conservation and Recovery Act (RCRA), or the 1986 Department of Defense Authorization Act. The court first holds that the district court properly denied plaintiffs' request for a preliminary injunction of the scheduled incineration. The district court's finding that the accident-associated risk of continued stockpile storage significantly outweighed the health-related risk of incineration operations is not clearly erroneous. The district court's findings on short-term dioxin exposure are amply supported by the results of the Army's quantitative risk assessments and by a report that considered the health-related risks associated with routine incineration operations. The court next holds that FWPCA §301(f) does not apply to Tooele's stack emissions because to hold otherwise is inconsistent with congressional intent, leads to irrational results, and creates a conflict between the FWPCA and the Clean Air Act. The court then holds that the district court properly refused to recognize jurisdiction over plaintiffs' imminent hazard claim under RCRA §7002(b). RCRA does not allow collateral attacks on U.S. Environmental Protection Agency permit decisions or on those of state agencies with federally delegated authority, and plaintiffs' imminent hazard claim essentially attacks Utah's decision to issue the Army a RCRA permit. The court next holds that the Defense Authorization Act does not imply a private right-of-action for the plaintiffs' maximum protection claim. The court also holds that the district court lacked jurisdiction to consider the plaintiffs' maximum protection and operational verification testing claims under the APA, because the Army's actions at Tooele do not constitute a final agency action.

[Prior decisions in this litigation are published at 27 ELR 20022 and 20569. 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

Before PORFILIO, EBEL, and HENRY, Circuit Judges.