BIRMINGHAMMaking good on ten months of threats and promises to delay the destruction of Anniston's chemical weapons stockpile, Gov. Don Siegelman Thursday filed a lawsuit seeking to halt the Army-built incinerator until the federal government provides a number of protective measures for the community.
In papers filed in federal court here, Siegelman attempted to stop all burning operations at the $1 billion facility, including the tests that were scheduled to begin this week but were delayed because of problems with fiberglass piping. The legal papers do not place a dollar figure on the demanded preparations and instead ask for a temporary restraining order and a preliminary injunction against the facility.
A reflection of the complexity of the undertaking, the lawsuit names a long line of defendants from the incinerator's contractor, Westinghouse Anniston, to the Departments of Defense and Army. But, as was indicated by the filings as well as by the press conference called to announce the suit, the brunt of the state of Alabama's legal assault on the project is to be taken by the Federal Emergency Management Agency, which along with Army administers a program to safeguard communities with chemical stockpiles.
In front of a gaggle of reporters assembled in the shadow of the Hugo L. Black United States Courthouse, Siegelman saved his harshest words for FEMA, denouncing the agency as a collection of bureaucrats who short-circuited the process of getting emergency preparations in place, while praising the Pentagon officials who oversaw the process.
"It is not right for federal bureaucrats to go behind decisions made by the Department of Defense and undercut Alabama's safety needs," Siegelman said.
Last month, FEMA decided to hold back funding for a number of items, including protective hoods and emergency management software upgrades, which were approved by the Pentagon in a $40.5 million funding package in November. The move, which led to the complete breakdown of local emergency preparations, was lambasted by county, state and congressional leaders, who launched into an effort to reverse it.
A FEMA spokesman declined to comment on the pending litigation, but, as evidence of the agency's commitment, he pointed to $144.7 million worth of emergency preparations already provided to the community by the federal government.
"FEMA's number one priority is the health and safety of the citizens of Alabama," said spokesman John Czwartacki.
Despite the approaching legal storm, the incinerator continues to be readied for operations.
"The management and work force of the Anniston Chemical Agent Disposal Facility are working diligently to prepare the facility for the safe disposal of the chemical weapons stored at the Anniston Army Depot," said site project manager Tim Garrett.
"The ANCDF is committed to completing all of the required steps to ensure the facility and the work force is ready to operate safely and within the parameters of the issued permits," he said.
Garrett added that it remains uncertain how long a faulty pipe will delay the surrogate trial burns, in which the furnaces must process chemicals that are more difficult to destroy than the nerve and blister agent. The pipe is related to the facility's pollution abatement system, not the furnaces, he said.
The facility is expected to begin destroying nerve agent and the rockets designed to deliver it this summer, if technical difficulties or legal action don't push back the schedule.
Just how long it will take to resolve the lawsuit is unclear. The governor's legal advisor said that a judge could grant a temporary restraining order within days and without a hearing. And it remains possible that a more diplomatic resolution to the problem could be achieved. In Washington, D.C., Calhoun County's congressional delegation continues to meet with FEMA, Pentagon and Army officials about the outstanding money.
Congressman Bob Riley, R-Ashland, stopped short of criticizing Siegelman, his possible opponent in this year's gubernatorial race, but said he was concerned about heading into "a legal morass." Riley also complained about the timing of the lawsuit.
"That option would have been there a week from now, a month from now, six weeks from now," he said.
For nearly a year, Riley and Siegelman have operated on different fronts in a battle with the federal government over emergency preparations. Riley, along with fellow Republicans Senators Jeff Sessions and Richard Shelby, worked the issue with negotiations and legislative efforts, while Siegelman, a Democrat who has long touted his authority to stop the burns, lobbed threats from Montgomery.
His lawsuit, heaped in a thick complaint laden with the jargon of emergency management, is a culmination of months of meetings and a letter-writing campaign that went all the way to President Bush and Secretary of Defense Donald Rumsfeld.
The legal papers amass the alleged shortcomings in the county's emergency preparedness plan. Going beyond the items listed in the $40.5 million package, Siegelman is demanding that a number of Calhoun County schools be fitted with equipment that will allow students to safely take shelter in the event of an chemical release and that the Army and FEMA plan for emergencies in a way that incorporates the lowest level exposures to chemical agent.
Absent in the filings, however, is an outright criticism of the incinerator program's safety plans, a fact that distinguishes this effort from other legal challenges to the Anniston incinerator. In those lawsuits, environmental groups attempted to strike at the facility's hazardous waste incineration permit.
Even as he prepared to file the papers that could delay incineration, Siegelman, who appeared with State Rep. Barbara Boyd, D-Anniston, spoke of the need to dispose of the stockpiled weapons, which are perceived as an impediment to economic growth as well as an ongoing safety hazard.
"Everyone agrees that we need to get rid of these dangerous chemical weapons, but the federal government must follow the law and must honor its agreement to provide the citizens of this state with the maximum protection necessary to ensure their safety," Siegelman said.
