G.A.S.P. v. Eqc

• Jurisdiction: Oregon
• Citation: G.A.S.P. v. Eqc, 195 P.3d 66, 222 Or. App. 527 (Or. App. 2008)
• Docket Number: 000909349, A132835.
• Parties: G.A.S.P., Sierra Club, Oregon Wildlife Federation, Karyn Jones, Susan Jones, Heather Billy, Deborah Burns, Janice H. Lohman, Leandra Phillips, Merle C. Jones, Mark R. Jones, Cindy Beatty, Andrea E. Stine, Dorothy Irish, Mary Bloom, Robert J. Palzer, Janet Nagy, Ladonna King, John Spomer, Christine Clark, Stuart Dick, Gail Horning, David Burns, Pius A. Horning, Karla Stuck Cand Melanie Beltane, Petitioners-Respondents, v. ENVIRONMENTAL QUALITY COMMISSION OF the STATE of Oregon, and Department of Environmental Quality of the State of Oregon, Respondents-Appellants, and United States Army and Washington Demilitarization Company, Intervenors below.
• Court: Oregon Court of Appeals
• Decision Date: 08 October 2008

195 P.3d 66

222 Or. App. 527

G.A.S.P., Sierra Club, Oregon Wildlife Federation, Karyn Jones, Susan Jones, Heather Billy, Deborah Burns, Janice H. Lohman, Leandra Phillips, Merle C. Jones, Mark R. Jones, Cindy Beatty, Andrea E. Stine, Dorothy Irish, Mary Bloom, Robert J. Palzer, Janet Nagy, Ladonna King, John Spomer, Christine Clark, Stuart Dick, Gail Horning, David Burns, Pius A. Horning, Karla Stuck Cand Melanie Beltane, Petitioners-Respondents, v.ENVIRONMENTAL QUALITY COMMISSION OF the STATE of Oregon, and Department of Environmental Quality of the State of Oregon, Respondents-Appellants, and United States Army and Washington Demilitarization Company, Intervenors below.

000909349, A132835.

Court of Appeals of Oregon.

Argued and Submitted December 19, 2007.

Decided October 8, 2008.

Denise G. Fjordbeck, Senior Assistant Attorney General, argued the cause for appellants.With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Stuart A. Sugarman argued the cause for respondents.With him on the brief was Walker Warren & Watkins.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.

HASELTON, P.J.

The Oregon Environmental Quality Commission(EQC) and the Oregon Department of Environmental Quality(DEQ)(respondents¹) appeal from a supplemental judgment awarding petitioners, various environmental groups and individuals, a portion of the costs and attorney fees that they incurred in disputing the provisions of a hazardous waste permit authorizing the construction and operation of an incineration facility to dispose of chemical weapons stored at the Umatilla Chemical Agent Disposal Facility.Specifically, respondents challenge the award of fees on the alternative grounds that the circuit court did not find "in favor of"petitioners, ORS 183.497, that an award of fees is not mandatory, ORS 183.497(1)(b), and that the circuit court abused its discretion in awarding petitioners' fees, ORS 183.497(1)(a);ORS 20.075(1), (3).Respondents also assert that petitioners cannot recover any costs because they were not "prevailing part[ies]."ORCP 68 B. As explained below, we affirm.

We begin, necessarily, by putting this dispute into uncontroverted context.These parties have a long history of disagreement concerning the conditions, if any, under which the construction and operation of chemical weapons disposal facilities should be permitted at the Umatilla Army Depot in northeastern Oregon.Indeed, this is the third time in which some aspect of that dispute has been presented for our review.

In the first instance, in 1997, petitioners sought judicial review in circuit court under ORS 183.484² of respondents' order granting a hazardous waste permit to the United States Army for the construction and operation of the disposal facility.Petitioners asserted that respondents had not complied with state and federal laws that required respondents, before issuing the permit, to determine, among other criteria, that the facility would not have an adverse effect on public health and safety, on the environment, or on adjacent lands, and that it use the best available technology for treating and disposing of the hazardous waste.See generallyG.A.S.P. v. Environmental Quality Commission,198 Or.App. 182, 185, 108 P.3d 95, rev.den.,339 Or. 230, 119 P.3d 790(2005)(G.A.S.P. I)(providing background);see alsoORS 466.010(1)(a)(A)(purposes of hazardous waste permitting statutes include, inter alia,"[p]rotect[ing] the public health and safety and environment of Oregon to the maximum extent possible").The circuit court, after refusing petitioners' request to conduct discovery, cross-examine witnesses, and present additional evidence, reviewed the order based on the record before respondents and remanded one portion of the order to respondents for clarification.After respondents clarified the order,³the circuit court entered a judgment affirming respondents' order in its entirety.G.A.S.P. I,198 Or.App. at 187, 108 P.3d 95.

On appeal from that judgment, petitioners asserted, alternatively, that (1)they were entitled to a contested case hearing, and (2)the circuit court erred in not permitting them to introduce evidence in addition to that included in the record before respondents.In G.A.S.P. I,we held that petitioners were not entitled to a contested case hearing.Id. at 189-93, 108 P.3d 95.We also held, however, that, under Norden v. Water Resources Dept.,329 Or. 641, 996 P.2d 958(2000), the circuit court had erred in failing to permit the parties to supplement the record, including by giving them an opportunity to present evidence that was not available at the time respondents entered the challenged order.Consequently, we remanded the case to the circuit court for an evidentiary hearing that complied with the requirements of Norden.G.A.S.P. I,198 Or.App. at 194-97, 108 P.3d 95.

Meanwhile, following the circuit court's limited remand to respondents in G.A.S.P. I in 1998, petitioners requested that respondents reconsider or revoke the permit.In July 2000, respondents denied that request, determining that there was "insufficient evidence" to warrant modification or revocation.In September 2000, petitioners initiated this proceeding (G.A.S.P. III) by filing a petition for judicial review in circuit court under ORS 183.484 of respondents' denial of modification or revocation of the permit.⁴The Army intervened in light of its interests in disposing of the stockpile of chemical weapons at the Umatilla Depot.⁵

In the circuit court proceedings, petitioners reasserted the contentions they had made in G.A.S.P. I and further contended that respondents' order rejecting modification or revocation of the permit was not supported by substantial evidence in the record and was contrary to law.⁶During those proceedings, petitioners attempted to elicit expert testimony from Cramer, an Army employee, concerning the Army's chemical warfare agent monitoring systems and techniques.The Army asserted that Army regulations, specifically 32 C.F.R. sections 516.49,516.52—the so-called "Touhy regulations"— prohibited Army employees, such as Cramer, from providing expert or opinion testimony in litigation for a party other than the United States.⁷Counsel for the Army also made the comment that if Cramer testified "he does so at his own peril" and questioned "why [Cramer] would want to put his head on the block for testifying in this case * * *."The circuit court ultimately ruled that the federal whistle-blower statute, 42 U.S.C. section 6971, trumped any attempt by the Army to invoke the Touhy regulations to prevent an employee from testifying; nevertheless, Cramer declined to testify as an expert or to give his opinion, expressing concerns about putting his job in jeopardy and the "threat of reprisals."

Petitioners moved for sanctions against the Army based on its intimidation of and threats of retaliation against Cramer, requesting, among other relief, revocation of the permit until the alleged deficiencies were cured.Respondents—who were not the target of the motion for sanctions—took no position on the merits of that motion.However, respondentsdid assert that the relief sought, including revocation, was inappropriate regardless of whether the Army's conduct was sanctionable.

The circuit court ultimately denied the motion for sanctions, finding no sanctionable misconduct.In so ruling, however, the court expressed profound concerns with the Army's "initial, repeated, and persisting assertion of a right to prevent testimony by any employee in these proceedings," which "raise[d] serious questions about the respondents' ability to ensure public safety during the proposed operation of the demilitarization incineration facility at Umatilla[.]"The court also reiterated its conclusion that the Touhy regulations were trumped by the federal whistle-blower statute.

Notwithstanding its dismissal of sanctions against the Army—and in light of the dynamic that prompted petitioners' motion for sanctions and the Army's persistence in asserting the Touhy regulations—the circuit court asked the parties(including respondents) to address the following question in their post-trial briefing:

"Why would any rational agency in DEQ/EQC's role not require in the permit that the Army expressly and notoriously forgo any right or power to prohibit good faith testimony by employees concerning hazards in the operation of the facility, or otherwise restrict the operation of Touhy regulations in the service of safety oversight?"

In reply, respondents first asserted that the Army was legally entitled to seek to prevent Cramer from offering opinion testimony against the Army and contended that the circuit court had agreed with that position in denying petitioners' motion for sanctions.In any event, respondents contended, the issue was "not whether the Army should allow its employees to offer opinion testimony" or whether "DEQ/EQC's decision-making processes would be improved if the Army allowed such testimony."(Emphasis in original.)Rather, in respondents' view, the proper question was whether the Army's alleged suppression of whistle-blower testimony compelled a finding of cause for revocation of the permit under applicable law.⁸According to respondents, it did not.

Respondents also asserted that the circuit court lacked subject matter jurisdiction to order modification of the permit to protect whistle-blower testimony because petitioners had neither requested such modification from respondents nor asserted the necessity of such a modification in their petition for judicial review.Finally, respondents argued that, even if permit modification was within the circuit court's purview, modification was "unnecessary and unwarranted" because (1) whistle-blowers are free to share information with respondents at any time; (2) the Touhy regulations prevent current Army employees...