Sierra Club v. Utah Solid and Hazardous Waste Control Bd.
| Decision Date | 20 August 1998 |
| Docket Number | No. 971313-CA,971313-CA |
| Citation | 964 P.2d 335 |
| Parties | 350 Utah Adv. Rep. 13 SIERRA CLUB, Chemical Weapons Working Group, and Vietnam Veterans of America Foundation, Petitioners, v. UTAH SOLID AND HAZARDOUS WASTE CONTROL BOARD, Respondent, and United States Army and EG & G Defense Materials, Inc., Intervenors. |
| Court | Utah Court of Appeals |
Mick G. Harrison, Greenlaw, Berea, Kentucky, for Petitioners.
Jan Graham, Atty. Gen., Laura Lockhart, Asst. Atty. Gen., and Raymond Wixom, Staff Atty. and Special Asst. Atty. Gen., Salt Lake City, for Respondent.
Alan D. Greenberg and Robert H. Foster, U.S. Dept. of Justice, Environment and Natural Resources Div., Denver, Colorado, for Intervenor United States Army.
David W. Tunderman and Craig D. Galli, Salt Lake City, for Intervenor EG & G Defense Materials, Inc.
Before DAVIS, WILKINS and ORME, JJ.
Sierra Club, Chemical Weapons Working Group, and Vietnam Veterans of America Foundation (collectively referred to herein as Sierra Club) petition this court for review of a final order of the Utah Solid and Hazardous Waste Control Board pertaining to the Tooele Chemical Agent Demilitarization Facility (referred to by the parties and herein as TOCDF) located at the Deseret Chemical Depot, formerly known as Tooele Army Depot South. We decline to disturb the Board's order.
The Deseret Chemical Depot is one of eight sites in the continental United States housing the nation's chemical weapons stockpile. The country's entire stockpile consists of approximately 30,000 tons of chemical agent. Housed at the Depot is over two-fifths of the stockpile--more than 13,000 tons. These chemicals include the nerve agents GB (sarin) and VX, and the blister agents H, HD, and HT (mustard gas). The chemicals are contained in weapons, such as rockets, artillery shells, bombs, and mines, and in one-ton storage devices called "ton containers." The Army stores these materials at Tooele in earth-covered magazines called "igloos," in fenced storage yards, and in warehouses.
The risk from continued storage of these agents has been a matter of long-standing concern. In 1989, the Board's Executive Secretary approved the Army's hazardous waste plan for construction of a hazardous waste treatment facility to destroy the chemical weapons stockpiled at the Depot. The Executive Secretary issued the authorizing permit only to the Depot, although the United States Army, TOCDF's owner, had contracted with EG & G Defense Materials, Inc. to operate TOCDF, and EG & G began doing so in 1993.
In July 1993, the Army completed construction of TOCDF, which is comprised of five separate incinerators: two liquid incinerators used to burn liquid agent that has been drained from munitions and bulk containers; a Deactivation Furnace System used to incinerate munitions that have been drained of agent but are still contaminated; a Metal Parts Furnace used to decontaminate metal parts that have been drained of agent; and a Dunnage Incinerator used to burn non-agent contaminated and agent contaminated dunnage, such as pallets and spent carbon filters.
Before TOCDF operations could begin, the permit and federal and state law required the Army to conduct a series of "trial burns" to ensure that the facility could operate safely. In late 1995, the Army submitted trial burn plans to the Executive Secretary for approval. After requiring the Army to conduct surrogate trial burns with surrogate chemicals, in June 1996 the Executive Secretary approved the trial burn plans for the liquid incinerators and the Deactivation Furnace System. The Army scheduled four trial burns for these incinerators: a "shakedown" burn with no chemical agent, an "R & D" burn with no agent, a shakedown burn with chemical agent, and a "demonstration" burn with chemical agent. In August 1996, TOCDF began the shakedown burn with chemical agent.
In conjunction with trial burn approval, the State Division of Environmental Quality, through a contractor, conducted a Screening Health Risk Assessment (SRA) which analyzed the expected effects of theoretically high TOCDF emissions on human health and the environment. The Division conducted the SRA to address two primary concerns: whether TOCDF emissions would cause cancer and whether they would cause other types of illness. The SRA, following United States Environmental Protection Agency (EPA) guidelines, examined the potential exposure to six hypothetical groups living downwind of TOCDF: adults and children residing at the point of maximum emissions, three types of farmers, and subsistence fishermen. The Division incorporated conservative assumptions into the SRA, such as calculating the risks from exposure for up to thirty years of TOCDF emissions even though TOCDF is expected to operate for only seven years. The Division found, inter alia, that the overall cancer risks from dioxin exposure do not exceed EPA guidance levels for ten, fifteen, and thirty year operating periods. The SRA did not calculate the noncancer effects of dioxin exposure because the EPA has not adopted a reference dose for dioxin.
In June 1996, the Executive Secretary granted the Army's request to modify the permit by adding intervenor EG & G as a permittee and operator of TOCDF. This modification prompted Sierra Club to file its First Request for Agency Action on July 18, 1996, in which it asked the Board to withdraw its modification of the permit which authorized EG & G to be a permittee and operator of TOCDF. Sierra Club subsequently filed a Second Request for Agency Action on July 22, 1996, in which it attacked the Executive Secretary's June 1996 approval of the agent trial burn plans for the liquid incinerators and the Deactivation Control Furnace. In its second request, Sierra Club claimed that TOCDF cannot be operated safely and that respondents failed to demonstrate compliance with legal requirements for hazardous waste incineration. Sierra Club therefore sought reversal of the Executive Secretary's approval of the trial burns and a Board order enjoining respondents from beginning any chemical incineration at TOCDF.
The Board held a hearing on Sierra Club's requests on March 18-20 and April 17, 1997. The Board ordered that Sierra Club would have twelve hours to present its case, the Army and EG & G would collectively have ten hours, and the Executive Secretary would have five hours. On April 17, the Board orally denied Sierra Club's two requests and issued its written order on July 22, 1997. Sierra Club then filed with this court a petition for review of the Board's order denying its two requests for agency action. The Army and EG & G subsequently intervened in this proceeding.
Sierra Club raises three principal arguments. 1 First, Sierra Club contends that the Board erred in failing to terminate or revoke the TOCDF permit in the face of evidence of substantial noncompliance with the Utah Solid and Hazardous Waste Act and endangerment to human health and the environment. Second, Sierra Club argues that the Board erred in allowing EG & G to operate TOCDF because EG & G is unable to operate the facility safely and in compliance with law. Third, Sierra Club contends that the Board violated its procedural Due Process rights by unreasonably limiting Sierra Club's time to present evidence and to crossexamine witnesses at the hearing. The Board, in addition to responding to Sierra Club's allegations, argues that Sierra Club lacks standing to petition this court for review. We first address the Board's standing argument.
The Board argues that, although Sierra Club's standing was not considered below, 2 Sierra Club has failed to demonstrate that it has standing to petition this court for review because it cannot meet any of the three recognized standing criteria. The Board's argument is unpersuasive, and we conclude that Sierra Club has standing to petition this court for review because it raises issues of significant public importance.
"[A] plaintiff may maintain a suit against governmental action in those limited circumstances in which a case raises issues that are so 'unique and of such great importance that they ought to be decided in furtherance of the public interest.' " National Parks & Conservation Ass'n v. Board of State Lands, 869 P.2d 909, 913 (Utah 1993) (quoting Terracor v. Utah Bd. of State Lands, 716 P.2d 796, 799 (Utah 1986)). Under this standard, "[t]he dispute must (1) raise a statutory or constitutional issue of substantial public import, (2) be presented by adverse parties, and (3) otherwise be suitable for resolution by the courts." Id.
In Sierra Club v. Department of Environmental Quality, 857 P.2d 982 (Utah Ct.App.1993) (Sierra Club I ), a somewhat similar case involving Sierra Club's challenge to an operating permit for a Tooele County commercial hazardous waste incinerator, we raised sua sponte Sierra Club's lack of standing and dismissed its petition for review. See id. at 983. In Sierra Club I, Sierra Club took issue with the Executive Secretary's approval of the operation-plan application for the incinerator. See id. at 984. Specifically, Sierra Club alleged that the applicant failed to provide evidence that emergency response plans had been coordinated with emergency personnel and that the application was otherwise incomplete. See id. Sierra Club alleged that these two errors in the application-approval process impaired its members' enjoyment of Western Utah because the incinerator, once it began operating, would generate pollution. See id. at 986.
In addition to concluding that Sierra Club lacked standing on two other asserted grounds, we held that it failed to raise any issues of significant public importance:
Sierra Club is challenging determinations by the Board that constitute internal procedural decisions preceding any public involvement in the permit process. The issues, at this stage, are not of great public importance and it is not...
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