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The most powerful military in the world can’t do anything about a menace it believes is poisoning its own ranks, filling their lungs with toxins. The alleged culprit is a smoke-spewing waste incinerator that sits beyond the gate of the Atsugi Navy base in Japan, home to 16,000 U.S. service members about 30 miles south of Tokyo. For years, the Navy has been pressing authorities in Japan to do something about the waste facility, which it believes is releasing dioxin and other toxins into the air at a dangerous rate. The problem has become so bad that the Navy has developed special procedures for children living on the base. All toys and playground equipment are washed daily, and on heavy pollution days children are restricted to “rainy day” indoor recreation activities. Further, service members can send their families home before their 36-month tour of duty at Atsugi ends if the pollution becomes too much for them. “We’ve studied this incinerator for more than 10 years,” says Lt. Cmdr. James Graybeal, a spokesman for the Navy Pacific Command in Japan, “and we know that these people are being exposed to extraordinarily high levels of cancer-causing dioxins, levels that are the highest in Japan.” The Navy’s concern over protecting its people has spawned a rare legal fight on foreign soil, one that pits the U.S. government against a Japanese company and that threatens to strain the relationship between the two countries. The incinerator, owned by a private Japanese company named Enviro-Tech, has been mentioned by both President Clinton and Defense Secretary William Cohen in meetings with the Japanese government. Clinton raised the issue in May 1999, during a visit to the United States by then-Japanese Prime Minister Keizo Obuchi. Last November, U.S. Ambassador to Japan Thomas Foley called the plant “a serious threat to the health of U.S. service members and their families.” After Cohen visited the Atsugi base in March, Japanese government officials announced a series of pollution-reduction measures that it hopes will ease the problem. But, for now, the facility is continuing to release toxins. A recent joint U.S.-Japan study recorded average dioxin levels in the ambient air 11 times greater than the allowable Japanese standard-with periodic levels as high as 90 times above the standard. Japanese air standards are not as stringent as those in the United States, and Atsugi’s dioxin levels at times have been found to be as much as 3,000 times the exposure level found in large cities in this country. But where diplomacy fails, sometimes litigation can succeed. Two weeks after Cohen’s visit, the Justice Department filed the suit against Enviro-Tech in a Japanese court, seeking to protect the health of American service members by asking the court to close down the facility. The lawsuit comes at the urging of the Navy, which has been consistently frustrated by the lack of progress on the issue. While Navy officials haven’t directly criticized the Japanese government for its inaction, there is a widespread feeling at Atsugi and elsewhere that the national government hasn’t been responsive enough to Navy complaints that date back to 1995. “There is great frustration that the Japanese government hasn’t done more to solve this,” says Michael Green, an analyst on Japan for the Council on Foreign Relations in Washington who visited the country around the time of Cohen’s trip. Cohen, Green says, made his unhappiness “loud and clear” to the Japanese government. “He really raised the ante.” AN UNWANTED PRESENCE In fact, the local authorities who run the Kanagawa province where Atsugi is located have been anything but helpful to the Navy. In 1997, they approved Enviro-Tech’s request to increase its operations from 8 to 24 hours a day. The Navy base, with its frequent jet flights, is viewed by some in the region as an unwanted presence. Green says that the incinerator issue, at its heart, has been seized by some in Japan as a rallying point for Japanese nationalism. The incinerator “is emblematic of what many on the U.S. side see as a Japanese nationalism and resistance to cooperation with the U.S,” Green says. This summer, during the G-8 summit to be held in Okinawa, Japan, a Japanese citizens group plans to form a human chain around the Atsugi base to protest noise conditions there. It also is a dicey time for the United States to talk tough with Japan. Because Japan does not have a massive standing military, it helps foot the bill for U.S. protection. There is a movement within the Japanese government to scale back the $4.8 billion in annual payments it makes to the United States as part of its “host nation” support of U.S. armed forces. The current agreement between the two powers expires in March 2001. “Because of Japan’s economics problems, funds spent by the government of Japan to support U.S. forces have come under increased scrutiny,” Adm. Dennis Blair, the chief of the Navy Pacific Command, told a Senate panel in March. “The focus with our most important ally Japan must always be on advancing and promoting the future security of the region.” But the Japanese also have reasons to want the United States happy. China’s growing influence in the region and a perpetually aggressive North Korea make Japan nervous. It may have been for those reasons that the Japanese announced, on the heels of Cohen’s visit, that it would pay for expensive “bag house filters” to be installed around the smokestacks at the Enviro-Tech plant. The government has also offered to pay the housing costs for American service members who wish to relocate off the base. And perhaps even more significant, it dropped its opposition to the Justice Department’s suit. “The Japanese were very opposed to the lawsuit,” Green says. “They thought it would make things worse.” The Japanese say that the suit isn’t necessary. Along with agreeing to install the “bag house filters,” the Japanese government will also oversee construction of a new 100-meter-high smokestack at the incinerator. The incinerator is located in a valley below the base, and the top of the 23-meter smokestack reaches only as high as the fourth floor of a building on the Navy base. Smoke lingers within the valley and doesn’t dissipate in the atmosphere. The proposed 100-meter-high smokestack would help alleviate that problem. Speaking of the lawsuit, a Japanese government official who asked not to be identified says, “This is a matter for the U.S. government. It’s their decision to go into it. We have taken the measures we think are necessary.” To date, Enviro-Tech hasn’t agreed to allow the new smokestack to be built. Unlike in the United States, where agencies have significant power to sanction companies for alleged violations, Japanese agencies depend heavily on companies’ consensual observance of laws or regulations. And the government hasn’t ordered Enviro-Tech to comply. HOLDING ACTION The suit, filed by a Japanese firm in Tokyo retained by Main Justice, is basically a tort action, a nuisance claim that asks the court for an injunction to close the plant down. But the differences between U.S. and Japanese courts will make it tougher for the United States to prevail. The Japanese legal system is modeled on European-based bodies of law. Such courts place a high degree of responsibility on judges — rather than juries — to determine the facts in a given case. John Haley, the chair of the Japanese studies program at the University of Washington in Seattle, says that the lawsuit may be viewed as only a temporary measure at best. Why? Because unlike American courts, courts in Japan don’t grant permanent injunctions, Haley says. Moreover, he says, the Justice Department may have a difficult time proving its right to injunctive relief. While dioxin has been established as a proven health hazard, it hasn’t been tied to specific health problems at the Atsugi base. That means that the United States is suing primarily because of the threat of harm from exposure to the incinerator’s smoke. “That’s going to be the hurdle,” Haley says. “Suing for potential harm may not be enough.” Whether the pollutants in the air around Atsugi can be directly traced to Enviro-Tech will also be an issue in the suit. Enviro-Tech’s answer to the U.S. complaint disputes that it is the cause of the high levels of dioxin. The region near the base is crowded with industrial sites. The company also argues that it complies with Japanese environmental standards. If the Justice Department doesn’t like the results it gets from the three-judge panel in Yokohama that will hear the matter, it can take heart that appellate courts in Japan review the facts de novo — giving the United States another chance to plead its case. DIPLOMATIC CHANNELS Suing a foreign corporation in a sovereign court is delicate business, made more so by the high-profile nature of the United States’ alliance with Japan. State Department officials stress that the U.S.-Japan relationship is strong and that the Atsugi situation is a relatively minor issue when compared with the overall strategic issues inherent in the partnership. Before the decision was made to file the suit in Japan, the lawsuit had to be vetted by lawyers at State and the Defense Department. The White House and the government of Japan were also consulted. High-level officials at Justice were involved as well. The complaint was reviewed by the head of Justice’s Civil Division, David Ogden. The suit is being overseen in Washington by David Epstein, who runs the Department’s Foreign Litigation Office. That office is involved in lawsuits in 100 countries around the world. A spokesman for the Justice Department declined comment, noting that the department does not publicly speak about pending litigation. The Japanese court in the case has said that it will review the evidence in June, but has also scheduled status conferences for July. There is no hint as to when a decision might be expected. While the judicial wheels grind, things are expected to get worse at Atsugi. Summer is coming, and the shifting southerly winds will blow the smoke from the Enviro-Tech plant directly onto the base.

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