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

No. 2:96-CV-0425C (D. Utah October 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authorized the state to administer and enforce a hazardous waste program in lieu of the federal program, RCRA was no longer applicable.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 No court has the power to impose penalties against the company under the federal statute, because it has been superseded by the state regulatory scheme.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

[28 ELR 20246]

Campbell, J.:

This matter is before the court on defendant EG&G's motion to dismiss Count 10. Because the defendant has submitted matters in support of its motion that are outside the pleadings, the court shall treat this motion as one for summary judgment. F.R.C.P. 12(c). Having determined that oral argument would not materially assist in the resolution of this matter, DUCivR7-1(f), the court now enters the following order based upon the submissions of the parties and applicable legal authority:

Background

On or about June 18, 1996, the Utah Division of Solid & Hazardous Waste (the "Division") added EG&G as a co-permittee to the Department of the Army's license to operate the Tooele Chemical Demilitarization Facility ("TOCDF").

On July 18, 1996, the plaintiffs in this action petitioned the Utah Solid and Hazardous Waste Control Board (the "Board") to reverse the Division's action. Plaintiffs alleged, among other things, that EG&G had violated 42 U.S.C. § 6925 and Utah Code Ann. § 19-6-108(3)(a) by operating TOCDF from 1989 to 1996 without the necessary permits. In light of this long history of alleged noncompliance, plaintiffs argued that it was arbitrary and capricious for the Division to approve EG&G as a co-permittee in 1996.

Between March 18 and April 17 of this year, the Board heard approximately 22 hours of testimony and argument on this matter. At these hearings, plaintiffs had an opportunity to examine personnel from the Division who were responsible for the decision to add EG&G as a co-permittee on the Army's license.

Following the hearing, plaintiffs submitted proposed findings of fact and conclusions of law. These proposed findings supported plaintiffs' contention that the Division had acted capriciously when it "add[ed] EG&G to the TOCDF permit as an operator late in the game, after EG&G had operated TOCDF without a permit for a substantial period of time." Plaintiffs also requested that "the Board . . . suspend approvals for agent operations until the Army can make changes in . . . [its] operator. . . ." (Petitioners' Post-Hearing Brief and Proposed Findings of Fact and Conclusions of Law at 1-2.)

On July 22, 1997, the Board issued its findings of fact and conclusions of law. The first finding of fact by the Board reads in relevant part as follows:

1. When the Executive Secretary . . . approved a hazardous waste facility operation plan . . . for the [TOCDF] in 1989, he issued the permit to the Tooele Army Depot as owner and operator. Since the [a]rmy had ultimate responsibility for ownership and operation of the facility, the Executive Secretary properly determined that EG&G need not be included in the permit as a co-permittee.

The first conclusion of law reads in relevant part as follows:

1. In approving the permit in 1989, the Executive Secretary acted in accordance with applicable rules and statutes, and acted in a manner that was appropriate and timely. The Board recognized that it is not unusual for a hazardous waste facility to have subcontractors or contractors participating in operating the facility. The existence of such contractors does not necessarily mean they are "operators" of the facility within the means of the Utah Solid and Hazardous Waste Act and rules issued thereunder. As the Army had ultimate responsibility for ownership and operation of the facility, the Executive Secretary [ILLEGIBLE TEXT]