Petition for Writ of Certiorari — United States v. Colorado

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93-786 | PILED

NOV 17 93

No. | ; We SLRS

DFEICE 6

In the Supreme Court of the United States

OCTOBER TERM, 1993

UNITED STATES OF AMERICA, PETITIONER

e x

STATE OF COLORADO, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Drew S. Days, III

Solicitor General

Lois J. SCHIFFER

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor General

J. STEVEN ROGERS

BRADLEY S. BRIDGEWATER

JCHN T. STAHR

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

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QUESTION PRESENTED

The United States is currently responding to the re-

lease and threatened release of hazardous substances at

the Department of the Army’s Recky MountamrArsenal- —

pursuant to the Comprehensive Environmental Re-

sponse, Compensation, and Liabiity—Aet-ef 4986—42— — —

U.S.C. 9601 et seq. The question presented is whether

the State of Colorado may simultanevusly dictate haz-

ardous substance response activities at the site pursu-

ant to state law.

(1)

PARTIES TO THE PROCEEDING

The United States of America is the petitioner. The

State of Colorado and the Colorado Department of Health

are respondents.

TABLE OF CONTENTS

Opinions below

Jurisdiction ...........

Statutory provisions involved .........................000.

BS AES 9ST Cp a

Reasons for granting the petition

Conclusion .....

Appendix A

Appendix B .

Appendix C

Appendix D , ne

Appendix E ........ | . IEE RIALS ST

Appendix F

Appendix G. ‘ecesdneninaaaan

TABLE OF AUTHORITIES

Cases

Boarhead Corp. v. Erickson, 923 F.2d 1011 (3d

Cir. 1991) . 5 Ea ST ORE OE OTE

Colorado v. Department of the Army, 707 F

Supp. 1562 (D. Colo. 1989) 20.0.0... eee.

EPA v. Environmental Waste Control, Inc., 917

F.2d 327 (7th Cir. 1990), cert. denied, 499 U.S.

Lt ET SS eee

Ohio v. United States EPA, 997 F.2d 1520 (D.C.

Se ecuaasunseacanunsunc.

Schalk v. Reilly, 900 F.2d 1091 (7th Cir.), cert

denied, 498 U.S. 981 (1990) de

United States v. Akzo Coatings of America, Inc..,:

949 F.2d 1409 (6th Cir. 1991)... 18, 19. 20.

719 F. Supp. 571 (E.D. Mich. 1989)....... 18,

United States v. Fausto, 484 U.S. 439 (1988)...

(111)

18, 2

24, 2:

19, 2

Statutes and regulations: Page

Comprehensive Environmental Response, Com-

pensation, and Liability Act of 1980, Pub. L.

No. 96-510, 94 Stat. 2767, 42 U.S.C. 9601

BEE isnccsncsscceensanitiaabanciaissasctadlitessixinienns 2,3

fe ath fo | Peery ey

Bs ae Reha SI sitesi sktnisniinnannananccannans 2,4

§ 104(a), 42 U.S.C. 9604(a) .....................06. :

Se MM ha, SIE Sakasiccnnessdansedncpcanninintas 4,5

Oe Ry Me Rhea. GID cakccecneincncnscnstecnensunenees 5

§ 107, 42 U.S.C. 9607 .o...cccecccccccceseseceeeeeeeees 5

ee Ors WN DD pinta nkenerpacaniasscencsnanen 2,5, 119a

S 113¢h), 42 U.S.C. SG 2B) .............2220002000 passim

§ 113(h)(4), 42 U.S.C. 9613(h)(A)................ 2,6, 21

§ 113(j), 42 U.S.C. 9613())....................9, 16, 119a

§ 1138(G)(), 42 U.S.C. 9613G)Q) ....... ee. 6

§ 113(j)(2), 42 U.S.C. 9613()(2) woecccceceeeee- 6

§ 114(a), 42 U.S.C. 9614(a) ..... 5, 16, 20, 24, 121a

§§ 120-121, 42 U.S.C. 9620-96211 ............... 16

Bg) gtk fom RRNA erreros 6, 22, 23, 25

§ 120(a), 42 U.S.C. 9620(a) ............. 2, 6, 22, 121a

§ 120(a)(4), 42 U.S.C. 9620(a)(4) ... 3, 6, 13, 15, 23

S 120), 42 U.S.C. SG2OKC) ....021..222..0002002020- 6

§ 120(c)-(d), 42 U.S.C. 9620(€)-(d) ........0...... 22

Bt Me gi ee |. en ee 6, 23

§ 120(e), 42 U.S.C. 962000) coccccccccsscesceeeeeeee: 6, 22

§ 120(e)(4)(A), 42 U.S.C. 9620(e)(A)(A) ....... 7

§ 120(e)(6), 42 U.S.C. 9620(e)(6) «000... a, @

BR) Bae oe: SRNR O RRR 7, 22

§ 120(g), 42 U.S.C. 9G620(g) ....ccccccceeceseeeeeees 7

S ESE, 42 UBC. SESE vccccscccenss. 7, 15, 23, 25, 134a

§ 121(a)-(c), 42 U.S.C. 9621(a)-(€)...0........... 7

$ 121@), 42 U.S.C. 9621@) ................. 7, 8, 12, 23

§ 121(d)(4), 42 U.S.C. 9621(d)(A) ........ 0. 8

§ 121(d)-(f), 42 U.S.C. 9621(d)-(f) ........ ee. 7, 16

§ 121(e)(1), 42 U.S.C. 9621(e)() ........ 7, 15, 24

§ 121(e)(2), 42 U.S.C. 9621(e)(2) «0.2... 8

§ 121(f), 42 U.S.C. 9621(f) oo. eeceseeceseeeeeeeeees 23

S 12101), 42 US.C. S621@()) ................. 8, 12

Statutes and regulations—Continued: Page

§ 121(f)(2), 42 U.S.C. 9621(f)(2) .....cocc 8

§ 121(f)(3), 42 U.S.C. 9621(f)(3) «00.0000... 8, 23

§ 121(f)(3)(B), 42 U.S.C. 962 1(f)(3)(B) ....... 8

§ 122, 42 U.S.C. 9622 ............2.... 7, 8, 15, 20, 149a

§ 122(e), 42 U.S.C. 9622(e) ooo. cccccccceeeee. 3

§ 122(e)(6), 42 U.S.C. 9622(e)(6) ......... 3, 8, 25, 26

§ 302(d), 42 U.S.C. 9652(d) ..... 5, 16, 20, 24, 149a

$ 310, 42 U.S.C. 9669 uo... .ccccccccsccssscceeee. 21

Hazardous and Solid Waste Amendments of

1984, Pub. L. No. 98-616, 98 Stat. 3221 ....... 9

Resource Conservation and Recovery Act of 1976,

43 USA. GR0t Ce i a a, 4

92006, 42 USC. OF... 9

§ 3005(a)-(), 42 U.S.C. 6925(a)-(e) ........... 10

§ 3005(e), 42 U.S.C. 6925@) ......cccc 9-10

§ 3006, 42 U.S.C. 6926.00.00... 10

§ 3008(h), 42 U.S.C. 6928(h) .....00000000000..... 10

1, 42 USC... Oe 10

Superfund Amendments and Reauthorization

Act of 1986, Pub. L. No. 99-499, 100 Stat.

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Colorado Hazardous Waste Management Act,

Colo. Rev. Stat. §§ 25-15-301 et seg. (1989

Te Tani. TID ois cciccocticccensessea eee 4-10

Michigan Environmental Protection Act, Mich.

Comp. Laws Ann. § 691.1201 et seq. (West

SUD Kiicdisctsnimcuseuicheeenee ae ee ee 19

Michigan Water Resources Commission Act,

Mich. Comp. Laws Ann. § 323.6 (West

FOMMEED sanssinsnstnigczualsacraaiekaeaeten eat ane 18-19

Exec. Order No. 12,580, 3 C.F.R. 193 (1988) ... 8

40 C.F.R.:

ge FOR RODE LENE ehh he ye aN 9

Regulations—Continued: Page

343 ee esidibishetlaildeeidainlaseeaaaaaiaannaa 10

Pt. 300 .......... ” », 8, 23

Colo. Code Regs. 1007-3:

PR: SEIDEL cncccsesecnsssceabesnsciesasenanidaseniaacan means 10

Pt. 264 ; eatdes ‘ Rice 10

Pt. 265

Miscellaneous:

49 Fed. Reg. 41,036 (1984)....... | os 10

52 Fed. Reg. (1987):

p. 27,620 ..... dectianciaidhiutaadaadaaaamiaadi 13

i, SEGUE scisdcesbcactaehsasedaeueeaiaeaaee 13

Se yf FORA sennseubonsesnieaboedeamennanen 13

p. 27,646 .... 13

54 Fed. Reg. (1989):

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pp. 10,515-10,516 ...... 13

* ! eee cane 9, 26

I), ' PEED :aceuheonsdenesinctiecudcnineicanadeiieeanianne 26

55 Fed. Reg. 8666 (1990) ........... 9

[ RIPE ccccscscqabdbbdeussnteinasneseneion ont 1

In the Supreme Court of the United States

OcToBER TERM, 1993

No.

UNITED STATES OF AMERI: ‘A, PETITIONER

Vv.

STATE OF COLORADO, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of the United States

of America, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Tenth Circuit in this case.

OPINIONS BELOW

The decision of the court of appeals (App., infra, 1la-

40a) is reported at 990 F.2d 1565. The memorandum

opinion and order of the district court (App., uifra, 41a-

52a) and the judgment of the district court (App., infra,

53a-54a) are unreported.

JURISDICTION

The court of appeals entered its decision on April 6,

1993, and it denied the United States’ petition for re-

hearing on June 30, 1993. See App., infra, la, 55a-58a.

Through orders signed on September 16, 1993, and

October 20, 1993, Justice Thomas extended the time for

filing a petition for a writ of certiorari to and including

(1)

November 18, 1993. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 104 of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980

(CERCLA), 42 U.S.C. 9601 et seq., provides in relevant

part:

(a) Removal and other remedial action by President

***

(1) Whenever (A) any hazardous substance is

released or there is a substantial threat of such a

release into the environment * * *, the President is

authorized to act, consistent with the national con-

tingency plan, to remove or arrange for the removal

of, and provide for remedial action relating to such

hazardous substance * * *.

42 U.S.C. 9604(a).

Section 113 of CERCLA provides in relevant part:

(h) Timing of review

No Federal court shall have jurisdiction under

Federal law * * * to review any challenges to re-

moval or remedial action selected under [Section

104 of CERCLA] in any action except one of the

following:

* * * + *

(4) An action under [Section 310 of CERCLA]

alleging that the removal or remedial action taken

under [Section 104] was in violation of any require-

ment of this chapter. * * *

42 U.S.C. 9613(h).

Section 120(a) of CERCLA provides in relevant part:

(4) State laws

State laws concerning removal and remedial ac-

tion, including State laws regarding enforcement.

shall apply to removal and remedial action at facili-

ties owned and operated by a department, agency,

or instrumentality of the United States when such

facilities are not included on the National Priorities

a“, <7"

42 U.S.C. 9620(a)(4).

Section 122(e)(6) of CERCLA provides:

(6) Inconsistent response action

When either the President, or a potentially re-

sponsible party pursuant to an administrative or-

der or consent decree under this chapter, has initi-

ated a remedial investigation and feasibility study

for a particular facility under this chapter, no po-

tentially responsible party may undertake any

remedial action at the facility unless such remedial

action has been authorized by the President.

42 U.S.C. 9622(e)(6).

Other related CERCLA provisions are reproduced in

the appendix to this petition. App., infra, 117a-149a.

STATEMENT

The United States is currently responding to the re-

lease and threatened release of hazardous substances at

the Department of the Army’s Rocky Mountain Arsenal

pursuant to the Comprehensive Environmental Re-

sponse, Compensation, and Liability Act of 1980

(CERCLA), 42 U.S.C. 9601 et seg. CERCLA provides

extensive opportunities for state involvement in the

response process. Respondents State of Colorado and

Colorado Department of Health (hereinafter Colorado)

have nevertheless sought to assert direct control over

cleanup of the site, independently of CERCLA, by issu-

ing an administrative compliance order dictating re-

sponse activities under the Colorado Hazardous Waste

Management Act (CHWMA), Colo. Rev. Stat. §§ 25-15-

301 et seq. (1989 & Supp. 1993). The United States

District Court for the District of Colorado ruled that

CERCLA precludes Colorado from enforcing its compli-

ance order. See App., infra, 50a-51la. The court of ap-

peals reversed the district court’s judgment and vacated

that ruling. Jd. at 39a-40a.

1. Congress enacted CERCLA in response to com-

mittee reports recommending federal legislation to ad-

dress the dangers posed by abandoned or inactive haz-

ardous waste sites. See, e.g., H.R. Rep. No. 1016, 96th

Cong., 2d Sess. Pt. I, at 17-22 (1980). Those reports

concluded that existing federal laws prospectively regu-

lating hazardous waste disposal, including the Resource

Conservation and Recovery Act of 1976 (RCRA), 42

U.S.C. 6901 et seq., were “clearly inadequate to deal

with this massive problem.” H.R. Rep. No. 1016, Pt. I,

supra, at 17-18. Instead, separate legislation was neces-

sary to “initiate and establish a comprehensive response

and financing mechanism to abate and control the vast

problems associated with [those] sites.” Jd. at 22. See

App., unfra, 5a-Ga.

a. CERCLA’s basic statutory framework has re-

mained unchanged since its inception. See Pub. L. No.

96-510, 94 Stat. 2767. Section 104 of CERCLA autho-

rizes the President of the United States to respond

directly to releases or threatened releases by undertak-

ing “removal” and “remedial” actions in conformity with

the National Contingency Plan (NCP). 42 U.S.C. 9604.

Section 105 directs that the NCP shall include a

)

National Priorities List (NPL) identifying the sites that

pose the most serious need for cleanup. 42 U.S.C. 9605:

see 40 C.F.R. Pt. 300 (setting out the NCP and NPL).

Section 106 of CERCLA grants the President authority

to issue orders to compel liable persons to respond to

releases or threats of release, 42 U.S.C. 9606, while

Section 107 allows the United States to recover its

response costs from liable parties, 42 U.S.C. 9607. Sec-

tion 113 provides for judicial review in the federal courts.

42 U.S.C. 9613. Since its original enactment, CERCLA

has also contained two so-called “savings” provisions,

Sections 114(a) and 302(d), that preserve the power of

States to create additional “liability,” “requirements,” or

“obligations” with respect “to the release of hazardous

substances.” 42 U.S.C. 9614(a), 9652(d).'

b. Congress amended CERCLA in 1986 based on the

experience that the United States had gained through

implementation of the statute. See Superfund Amend-

ments and Reauthorization Act of 1986 (SARA), Pub. L.

No. 99-499, 100 Stat. 1613. The SARA amendments

preserve the United States’ primary role in addressing

CERCLA sites, but they also require that the United

States work in close cooperation with the States to

produce prompt, efficient, and thorough CERCLA re-

sponse actions. The amendments included the following

new CERCLA provisions that are relevant to this case:

i. Section 113(h) and (j). Section 113(h) and (j)

places specific limitations on judicial review of CERCLA

response actions. Under those provisions, a federal dis-

trict court generally lacks jurisdiction to review a chal-

‘Section 101 of CERCLA defines many of the statute's perti-

nent terms, including “hazardous substance,” “person,” “release,”

“removal,” “remedial action,” and “response.” See 42 U.S.C. 9601

lenge to the federal government’s selection of a response

action until after the response action is finally com-

pleted, 42 U.S.C. 9613(h)(4); judicial review is limited to

the administrative record, 42 U.S.C. 9613())(1); and the

federal government’s selection of a response action shall

be upheld unless the objecting party shows that it was

arbitrary and capricious or otherwise not in accordance

with law, 42 U.S.C. 9613(j)(2).

uu. Section 120. Section 120 provides detailed guid-

ance on the application of CERCLA to federal facilities.

Section 120(a) basically specifies that CERCLA response

mechanisms shall apply to those facilities. 42 U.S.C.

9620(a). Section 120(a)(4) further provides that “State

laws concerning removal and remedial action, including

State laws regarding enforcement, shall apply to re-

moval and remedial action at [federal] facilities * * *

when such facilities are not included on the [NPL].” 42

U.S.C. 9620(a)(4). Section 120(c) and (d) then provides

procedures guiding the federal government’s decision

whether to list a federal facility on the NPL. 42 U.S.C.

9620(c) and (d). Once a federal facility is listed on the

NPL, it becomes subject to a detailed regime for federal

response action, including provisions requiring the de-

velopment of an interagency agreement (IAG) to govern

the remedial action, provisions mandating that the En-

vironmental Protection Agency (EPA) shall have final

authority over selection of a remedy, provisions govern-

ing timing of the response action, and provisions allow-

ing the States to participate extensively in the selection

of a remedy. 42 U.S.C. 9620."

* For example, Section 120(e) requires any federal department,

agency or instrumentality that owns or operates a facility on the

NPL to enter into an [AG with the EPA to govern “all necessary

remedial action” at the site concerned. 42 U.S.C. 9620(e). Section

Lond

ii. Section 121. Section 121 governs the selection of

remedial actions at all CERCLA sites, including federal

facilities. Section 121(a) through (c) basically requires

the President to select remedial actions that are consis-

tent with the NCP, are cost-effective, are protective of

human health and the environment, and provide per-

manent solutions to the maximum extent practicable,

including provisions for future monitoring if hazardous

substances remain on the site. 42 U.S.C. 9621(a)-(c). In

addition, Section 121(d) provides that the selected rem-

edy, once completed, must achieve the level of cleanup

specified pursuant to “applicable” or “relevant and ap-

propriate” requirements (ARARs) under federal or state

environmental law. 42 U.S.C. 9621(d). Section 121’s so-

called “ARARs” process gives the States an extensive

role in the development, selection, and enforcement of

the CERCLA remedy, see 42 U.S.C. 962 1(d) through (f):

however, Section 121(e)(1) expressly provides that “[n]o

Federal, State, or local permit shall be required” for on-

site removal or remedial actions. 42 U.S.C. 9621(e)(1).

120(e)(4)(A) specifies that the EPA has final authority over the

selection of any remedial action. 42 U.S.C. 9620(e)(4)(A). Section

120(e)(6) provides that if another party is potentially responsible

under CERCLA and the EPA determines that the party will

properly undertake remedial investigations and feasibility stud-

ies or remedial action, the EPA may enter into an agreement

concerning remedial action with such party pursuant to Section

122 of CERCLA (discussed in text infra). 42 U.S.C. 9620(e)(6)

Section 120(f) guarantees state officials an opportunity to partici-

pate in the planning and selection of remedial actions at federally

owned NPL sites in accordance with Section 121 of CERCLA

(discussed in text infra). 42 U.S.C. 9620(f). Section 120(g) prohib-

its the EPA from delegating its authority under Section 120 to

any person outside of EPA. 42 U.S.C. 9620(g)

* Section 121(d) employs ARARs to provide a comprehensive

mechanism for state input in planning the CERCLA response

iv. Section 122. Section 122 describes the President's

authority to enter into agreements with private parties

to perform CERCLA response actions and contains vari-

ous provisions designed to encourage settlements. Sec-

tion 122(e)(6) specifically provides that once the Presi-

dent, or a potentially responsible party acting pursuant

to an administrative order or consent decree, has initi-

ated a remedial investigation and feasibility study at a

site, no potentially responsible party may take any re-

medial action at the site unless the President has autho-

rized that action. 42 U.S.C. 9622(e)(6).

c. CERCLA vests most of the federal authority con-

tained therein in the President, who in turn has del-

egated authority to the Administrator of the EPA and

other federal officials, including the Secretary of De-

fense. See Exec. Order No. 12,580, 3 C.F.R. 193 (1988).

action. See 42 U.S.C. 9621(d). In addition, Section 121(e)(2) ex-

pressly allows the States to enforce the ARARs once a remedy is

selected. See 42 U.S.C. 9621(e)(2). More generally, Section 121(f)(1)

directs that the President must allow the States “substantial and

meaningful involvement” in remedy development and selection

and describes in elaborate detail the States’ role. 42 U.S.C.

9621()(1). Section 121(f)(2) and (3) additionally provides that if

the President waives an ARAR pursuant to Section 121(d)(4), a

State may seek judicial review in federal district court challeng-

ing that decision. See 42 U.S.C. 9621(d)(4), (H(2) and (3). Section

121(f)(3) specifically addresses a State’s right to judicial review

with respect to federal facilities. 42 U.S.C. 9621(f)(3). That provi-

sion directs that if the State establishes that the President's

decision with respect to the ARAR is not supported by substantial

evidence, then the remedy must be modified to conform to the

ARAR. But even if the State fails to make that showing and the

court upholds the President's remedy selection, the State may

still require compliance with the ARAR at issue “if the State pays,

within 60 days of judgment, the additional costs attributable to

meeting” the ARAR. 42 U.S.C. 9621(f)(3)(B).

The EPA has primary authority for implementing

CERCLA, which it exercises in part through the NCP.

The EPA has revised the NCP in light of the SARA

amendments, and the revised NCP provides extensive

guidance on the ARARs process. See 40 C.F.R. Pt. 300:

55 Fed. Reg. 8666 (1990); see also Ohio v. United States

EPA, 997 F.2d 1520 (D.C. Cir. 1993) (rejecting various

challenges to the revised NCP). In addition, the EPA

has provided guidance on the CERCLA response pro-

cess through its Listing Policy for Federal Facilities, 54

Fed. Reg. 10,520 (1989).

2. When Congress enacted CERCLA, it had alveady

created a federal permitting scheme, embodied in RCRA,

to regulate prospectively the treatment, storage, and

disposal of hazardous wastes. See p. 4, supra. RCRA

was widely recognized at that time as “ ‘clearly inad-

equate’ to deal with ‘the inactive hazardous waste site

problem.’” App., infra, 5a-Ga. RCRA, however, has since

been amended and strengthened in significant respects.

See Hazardous and Solid Waste Amendments of 1984,

Pub. L. No. 98-616, 98 Stat. 3221. RCRA currently

imposes extensive regulatory requirements on owners

and operators of hazardous waste facilities, including

federal facilities, and those requirements provide a back-

drop for the dispute in this case.

a. Section 3005 of RCRA requires that hazardous

waste facilities be operated only in accordance with a

RCRA-based permit. See 42 U.S.C. 6925: 40 C.F._R. Pt.

270. Recognizing that the EPA could not issue permits

to all applicants before the effective date of the relevant

portions of RCRA, Congress provided that facilities in

existence on November 19, 1980, could obtain “interim

status,” allowing them to continue operating until final

action was taken on their permit applications. 42 U.S.C.

6925(e). Section 3008(h) of RCRA authorizes the EPA to

order corrective action where there has been a release of

hazardous wastes at facilities operating in interim sta-

tus. 42 U.S.C. 6928 (h).

b. Under the EPA’s regulations, a “RCRA permit

application consists of two parts,” Part A and Part B. 40

C.F.R. 270.1(b). Timely submission of Part A of the

permit application qualifies facilities for interim status,

and such facilities are then “treated as having been

issued [a] permit” until a final permit determination is

made. 42 U.S.C. 6925(e); 40 C.F.R. 270.1(b). See EPA v.

Environmental Waste Control, Inc., 917 F.2d 327, 330

(7th Cir. 1990), cert. denied, 499 U.S. 975 (1991). Facili-

ties must then file a more detailed Part B, and upon

successful completion of that process, the facility re-

ceives a final permit. 42 U.S.C. 6925(a)-(c); 40 C.F.R.

270.1(b); Environmental Waste Control, Inc., 917 F.2d

at 330.

c. A State may petition the EPA for authorization

to administer and enforce a state hazardous waste pro-

gram “in lieu of” the federal RCRA program, provided

that the State satisfies certain requirements. See RCRA

§ 3006, 42 U.S.C. 6926; 40 C.F.R. Pt. 271. Federal agen-

cies generally must comply with the state program re-

quirements “to the same extent” as other persons. RCRA

§ 6001, 42 U.S.C. 6961. Effective November 2, 1984,

EPA authorized Colorado to begin administration of its

own hazardous waste management program—-namely,

the CHWMA, Colo. Rev. Stat. §§ 25-15-301 et seq. (1989

& Supp. 1993). See 49 Fed. Reg. 41,036 (1984). Colo-

rado has adopted CHWMA regulations that largely mir-

ror the EPA’s RCRA regulations. See Colo. Code Regs.

1007-3 Pts. 261, 264, and 265.

3. The Rocky Mountain Arsenal is a 27-square-mile

Department of the Army facility located near Denver,

Colorado. Portions of the site were contaminated by a

variety of hazardous substances resulting from Army

production of chemical warfare agents during and after

World War II and pesticide production by a government

lessee, Shell Oil Company, commencing in the 1950s.

The Arsenal has spawned a number of different envi-

ronmental suits. The central question in this case is who

has authority to determine the appropriate remedy for

the site: the United States pursuant to CERCLA, or the

State of Colorado pursuant to the CHWMA. The issue

has arisen in the context of the remediation of Basin F.

a 92.7-acre lined basin used for disposal of liquid wastes

between 1956 and 1982. See App., infra, 2a-3a.

a. In November 1980, before enactment of CERCLA,

the Army concluded that the Arsenal was subject to

RCRA’s permitting requirements. The Army submitted

Part A of a RCRA permit application to the EPA and

thereby achieved interim status for Basin F. The Army

subsequently submitted Part B of the permit applica-

tion, which included a closure plan for Basin F. How-

ever, in May 1984, the EPA concluded that the applica-

tion was deficient and directed the Army to submit a

revised Part B application. Before the revised applica-

tion was completed, the Army began to address the

hazards posed by the site through CERCLA. In October

1984, the Army commenced a remedial investigation/

feasibility study (RI/FS) pursuant to CERCLA, and in

June 1986, the Army announced that it was taking a

CERCLA interim response action with respect to Basin

F. See App., infra, 8a-9a, 10a-11a.

b. Meanwhile, in November 1984, the EPA concluded

that Colorado's CHWMA permitting program was con-

sistent with RCRA, and the EPA authorized Colorado to

conduct that program “in lieu of” the federal RCRA

permitting program. When Colorado assumed authority

over RCRA matters within its borders, the Army pro-

vided Colorado with the Part B permit application re-

vised in response to the EPA’s notice of deficiency.‘ The

Army subsequently informed Colorado that, in the Army’s

view, initiation of a CERCLA response action precluded

Colorado from independently enforcing state hazardous

waste law at the Arsenal. Nevertheless, in 1986, Colo-

rado issued a Basin F closure plan and brought suit in

state court to enforce certain CHWMA provisions. The

Army removed the action to federal district court. In

November 1987, Colorado amended its complaint to

seek enforcement of the State’s closure plan for Basin F.

See App., infra, 9a-10a.

c. While Colorado’s suit was pending in federal dis-

trict court, the United States moved forward to respond

to Basin F— one of the most immediate hazards posed

by the Rocky Mountain Arsenal. The EPA, the Army,

and Shell Oil Company worked with Colorado to reach

an agreement pursuant to CERCLA on an interim re-

sponse for Basin F. But when the Army requested Colo-

rado to identify ARARs and comment on the Army’s

proposed plan pursuant to Section 121(d) and (f)(1) of

CERCLA (see pp. 7-8 & n.3, supra), Colorado did not

respond. In January 1988, the Army issued its decision

document for the Basin F response, and by December

*The court of appeals stated that the Army submitted “the

same deficient application that the Army submitted to the EPA.”

App., infra, 9a-10a. That statement is incorrect. The Army ex-

plained in an accompanying transmittal letter that the revised

application included the original Basin F closure plan as an

appendix for purposes of completeness only and that the closure

plan was being reevaluated as part of the CERCLA process com-

menced in October 1984.

1988, the Army had completed much of the interim

response. See App., infra, 1la-12a.®

d. In February 1989, the district court ruled that

Colorado could pursue its CHWMA enforcement action

against the Army. Colorado v. Department of the Army,

707 F. Supp. 1562 (D. Colo.). The court relied in part on

the fact that Section 120(a)(4) of CERCLA provides that

state laws concerning removal and remedial action, “in-

cluding State laws regarding enforcement,” shall apply

to response actions at federal facilities “when such facili-

ties are not included on the National Priorities List,” 42

U.S.C. 9620(a)(4). See 707 F. Supp. at 1569-1570. See p.

6, supra. Although the EPA had listed most of the Rocky

Mountain Arsenal on the NPL, see 52 Fed. Reg. 27,620,

27,641 (1987), the EPA had failed to include Basin F

because of uncertainty regarding the RCRA status of

that unit. The EPA resolved that uncertainty and pro-

posed to add Basin F to the Rocky Mountain Arsenal

listing. 52 Fed. Reg. 27,643, 27,646 (1987). This expan-

sion of the Arsenal listing did not become final until

March 1989. 54 Fed. Reg. 10,512, 10,515-10,516 & n.2

(1989). At that time, the Army sought reconsideration of

the district court’s decision. App., infra, 12a-13a & n.12,

15a n.15.

e. On September 1, 1989, Colorado issued a 259-

paragraph final amended compliance order (FACO).

App., iifra, 59a-116a. The FACO charged that the Army’s

° Although the initial phase of the interim action was completed

in early 1989, substantial work remains to be done. Liquids

removed from the basin are currently being incinerated as the

second phase of the interim response. Final disposition of solids

removed from the basin, and now stored in a wastepile, and of less

contaminated soils left in place, will be determined as part of the

final CERCLA record of decision to be issued in late 1994.

response activities at Basin F constituted 42 separate

violations of the CHWMA. Jd. at 64a-104a.° The FACO

specifically ordered the Army to submit an amended

Basin F closure plan—including detailed work, contin-

gency, and inspection plans and schedules—for

Colorado's approval. Jd. at 104a-112a. It also ordered

the Army to pay various fees, submit a revised permit

application, provide additional site information, and

build an emergency containment structure. /d. at 112a-

115a. The FACO expressly directed that the Army “shall

not implement any work plan, closure plan, or post-

closure plan prior to approval by [Colorado].” Jd. at

109a.’

f. The focus of the dispute between the United States

and Colorado returned to federal district court. The

United States sought a declaration from the district

court that CERCLA precludes Colorado from directing

the Army’s Basin F response activities, while Colorado

requested the court to enforce the FACO. The district

court ruled that Colorado lacked authority to dictate

* Those violations included alleged failures to: comply with or

seek amendment of Colorado's Basin F closure plan, App., infra,

64a-67a (violations 1-3); obtain interim status or state permits for

response actions, id. at 67a-73a (violations 4-9); pay associated

fees, id. at 73a-75a (violations 10-12); respond to a tank release,

id. at 75a-77a (violations 13-15): provide access to records, id. at

78a-8la (violation 16); perform adequate inspections, id. at 82a-

93a (violations 17-34); provide notification of leaks, id. at 93a-98a

(violations 35-37); remedy liners, id. at 98a-99a (violations 38-39);

prepare and distribute a contingency plan, id. at 99a-102a (viola-

tions 40-41); and maintain adequate operating records, id. at

102a-104a (violation 42)

"The FACO further noted that the Army would be subject to

civil penalties of as much as $25,000 per day for each violation of

the CHWMA or the FACO. App., infra, 115a

—— oe

response actions at Basin F and it enjoined Colorado

from enforcing the FACO. App., infra, 4la-52a. The

court reasoned that Section 113(h) of CERCLA, which

restricts federal court review of CERCLA remedial ac-

tion prior to completion, “unambiguously indicates that

this court lacks jurisdiction for pre-completion review of

the remedial action presently underway at Basin F now

that it has been placed on the NPL.” App., infra, 48a-

49a. The court explained that “[a]Jny attempt by Colo-

rado to enforce the CHWMA would require this court to

review the remedial actions selected under [CERCLA]

prior to their completion.” Jd. at 50a. See id. at 14a-16a.°

g. The court of appeals reversed the district court's

ruling. App., infra, 1a-40a. The court of appeals first

held that Section 113(h) of CERCLA is inapplicable

because Colorado's attempt to enforce the FACO “is not

a ‘challenge’ to the Army’s CERCLA response

action.” App., infra, 19a. The court next stated that

Section 120(a)(4) of CERCLA, which addresses the ap-

plication of state law to federal facilities, is inapplicable,

reasoning that the CHWMaA is not “a state law ‘concern-

ing removal and remedial action.’ ” App., infra, 3Ga. The

court of appeals acknowledged that Section 121 of

CERCLA gives the States an extensive role in the selec-

tion of the CERCLA remedy, App., infra, 32a, that

Section 121(e)(1) of CERCLA expressly prohibits States

from imposing permit requirements on CERCLA re-

sponse actions, App., infra, 35a, and that Section 122 of

CERCLA prohibits unauthorized response actions at

CERCLA sites, App., infra, 36a. The court nevertheless

* The district court also dismissed Colorado's previous enforce-

ment action against the Army, see App., infra, 15a n.15, and

entered a final judgment prohibiting Colorado from enforcing the

FACO, id. at 53a-54a

concluded that CERCLA’s so-called savings provisions,

Sections 114(a) and 302(d), allow Colorado to by-pass

those provisions and dictate hazardous substance re-

sponse actions at Basin F directly pursuant to state law.

App., infra, 3la-40a.

REASONS FOR GRANTING THE PETITION

CERCLA creates a comprehensive federal mechanism

for responding to releases of hazardous substances, in-

cluding releases from federal facilities, and it creates an

elaborate process for federal-state cooperation in the

selection of appropriate response actions. The court of

appeals’ decision in this case holds that the CERCLA

process is merely optional and that a State may directly

control federal response activities at a CERCLA site by

issuing compliance orders pursuant to state law. This

Court should review that decision, because it presents a

disagreement between the United States and a State on

an important federal question, because it conflicts with

decisions of other courts of appeals, and because it is

incorrect.

1. Congress amended CERCLA to ensure that the

United States could act promptly—and without Litiga-

tion delays—in responding to the release and threat- '

ened release of hazardous substances. See CERCLA

§ 113(h) and (j), 42 U.S.C. 9613(h) and (j). But Congress

also included detailed provisions in CERCLA specifying

the role of the States in selecting appropriate response

actions for federal and non-federal facilities. See CERCLA

§§ 120-121, 42 U.S.C. 9620-9621. CERCLA provides a

specific process—including the IAG and ARARs mecha-

nisms—by which federal and state governments are to

choose and implement responses cooperatively. CERCLA

§ 121(d)-(f), 42 U.S.C. 962 1(d)-(f).

The United States and the State of Colorado disagree

on the significance of CERCLA’s detailed response pro-

cess. Jn the United States’ view, once a federal facility is

listed on the NPL, that process provides the controlling

mechanism for state involvement in the cleanup. In

Colorado’s view, the CERCLA process is simply an op-

tional avenue for the State, which may bypass the pro-

cess and independently impose its state laws directly on

the site. This disagreement raises a question of nation-

wide importance. Indeed, 22 States appeared as amicus

curiae in the court of appeals supporting Colorado’s

view that the States can proceed independently of the

CERCLA process to take response actions at the site.

The dispute between the United States and Colorado

is important for reasons beyond its inter-sovereign char-

acter. The question posed here is one of immense prac-

tical importance. The selection of a CERCLA remedy is

an extraordinarily complex task. In determining the

appropriate response, the CERCLA decision-maker must

consider countless variables related to the character of

the site, its surrounding environment, the substances

that are present, and the current state of remedial

technology. Based on those considerations, the CERCLA

decision-maker must settle on a remedy that resolves

numerous subsidiary issues, including whether to re-

move the hazardous substances from the facility or to

contain or destroy them on-site; how to engineer the

removal, containment or destruction; and what further

monitoring, inspection, and limitations on future use

are appropriate. If a State may simply sit out this

decision-making process and then collaterally attack

the CERCLA response action through a state compli-

ance order, the result will be chaotic.

The problem is well illustrated by this case. The Rocky

Mountain Arsenal is “one of the worst hazardous waste

pollution sites in the country.” App., infra, 3a. Under the

most conservative estimates, the total cost for cleaning

up the Arsenal will exceed $1,700,000,000. Indeed, it

may cost some multiple of that amount. The United

States has undertaken an interim response at Basin F,

which represents only one small portion of the Arsenal.

But it has been impeded by Colorado’s refusal to chan-

nel its input through CERCLA’s ARARs process. The

court of appeals’ decision, which effectively holds that

Colorado can bypass that process and then attack the

Basin F interim response through state compliance or-

ders, will result in further wasteful litigation and delay.

2. Thecourt of appeals’ decision in this case not only

raises an important question of federal law; it also

conflicts with decisions rendered by other courts of ap-

peals. As a threshold matter, the court of appeals’ inter-

pretation of Section 113(h), which governs the manner

and timing of judicial review of CERCLA response ac-

tions, is at odds with Boarhead Corp. v. Erickson, 923

F.2d 1011 (3d Cir. 1991), and Schalk v. Reilly, 900 F.2d

1091 (7th Cir.), cert. denied, 498 U.S. 981 (1990). See

discussion ai p. 21, infra. But the conflict of greatest

practical significance is with the Sixth Circuit’s decision

in United States v. Akzo Coatings of America, Inc., 949

F.2d 1409 (1991).

In Akzo, the United States and potentially responsible

private parties reached agreement on the cleanup of the

Rose Site in Oakland County, Michigan, and filed a

proposed consent decree in federal district court. The

State of Michigan filed a complaint in intervention ob-

jecting to entry of the consent decree and, in addition,

requesting additional relief at the site under state law.

See 719 F. Supp. 571 (E.D. Mich. 1989). The State

specifically relied on the Michigan Water Resources

Commission Act, Mich. Comp. Laws Ann. § 323.6 (West

1992), the Michigan Environmental Protection Act, Mich.

Comp. Laws Ann. § 691.1201 et seq. (West 1992), and

the common law of public nuisance, contending that

the requirements for state participation in the EPA

remedy selection process are supplementary to, not

a substitute for, the State’s continued right to en-

force its environmental standards.

719 F. Supp. at 579. The district court rejected that

argument, concluding that “Congress intended CERCLA

to preempt state claims to the extent that they are in

conflict with the federal statute” and that Michigan

could participate in the remedy selection through the

ARAR process, but it could not impose its own require-

ments upon the private parties “in addition to the EPA’s

settlement.” Jd. at 580. The Sixth Circuit agreed. That

court “eschew[ed] use of the word preemption in this

context”—because CERCLA preserves and applies state

environmental standards through its comprehensive

response process—but the court nevertheless concluded

that CERCLA precludes imposition of “independent state

remedies” once a CERCLA action is underway. 949 F.2d

at 1458.

The Akzo decision conflicts with the court of appeals’

decision in this case, which squarely rejects the United

States’ submission that CERCLA “bars Colorado from

enforcing state law independent of C™RCLA.” App.,

infra, 3la. The court of appeals atte — to distinguish

Akzo on the ground that

{uJnlike the state in Akzo Coatings, Colorado is

asserting its independent EPA-delegated RCRA

authority rather than challenging the selection of a

CERCLA remedy.

Id. at 34a n.21. The court is mistaken, however, in its

characterization of that case. As the lower court’s deci-

sion in Akzo makes clear, Michigan claimed that it was

asserting independent state law in addition to challeng-

ing the remedy selection. See 949 F.2d at 1458; 719 F.

Supp. at 579. Furthermore, under the decision below, it

is immaterial whether Colorado is asserting “EPA-del-

egated RCRA authority” or some other form of state

environmental law. The court of appeals based its deci-

sion on CERCLA’s savings provisions, Sections 114(a)

and 302(d), which make no distinction between “EPA-

delegated RCRA authority” and other state law. 42

U.S.C. 9614(a) and 9652(d). See App., infra, 31a.’

3. Thecourt of appeals’ decision warrants review for

the additional reason that it is erroneous. The question

whether Colorado can enforce its compliance order at

Rocky Mountain Arsenal turns on three subsidiary is-

sues: (a) the courts’ jurisdiction to review CERCLA

response actions; (b) the State’s role in selecting a

CERCLA remedy; and (c) the State’s power to dictate

unauthorized activities at a CERCLA site. CERCLA

addresses each of those issues, and in each instance it

poses a bar to Colorado’s action.

a. At the threshold, CERCLA imposes a jurisdic-

tional limit on the manner and timing of federal district

court challenges to CERCLA response actions. Section

113(h) expressly provides that no federal court shall

have jurisdiction to review “any challenges to removal

or remedial action” selected under CERCLA except

* Indeed, Akzo highlights how state assertions of independent

state law would not only disrupt federal cleanup efforts, but

would additionally disrupt settlements with private responsible

parties in contravention of the policy, reflected in Section 12% of

CERCLA, of encouraging the parties that created the hazardous

conditions to take responsibility for the site conditions and to

coraplete expeditious cleanups themselves. See 42 U.S.C. 9622.

through five specific avenues, none of which is appli-

cable here. 42 U.S.C. 9613(h).'° Thus, Section 113(h)

bars Colorado’s attempt to enforce the FACO if Colorado’s

request for relief is a “challenge” to the United States’

CERCLA response action at Basin F. Colorado’s attempt

to enforce the FACO is such a “challenge,” because the

FACO would expressly prohibit the response action from

proceeding. See, e.g., App., infra, 109a (directing that

the Army “shall not implement any work plan, closure

plan, or post-closure plan” without Colorado’s approval).

The court of appeals concluded otherwise, stating that

Colorado's FACO

does not seek to halt the Army’s Basin F interim

response action; rather it merely seeks the Army’s

compliance with CHWMA during the course of the

action, which includes [Colorado’s] approval of the

Basin F closure plan prior to implementation.

App., infra, 21a. That purported distinction, however, is

mere word play. Colorado seeks to prevent the United

States from implementing its CERCLA response action

until Colorado approves it, and that amounts to a “chal-

lenge” to the response action under Section 113(h). See

Boarhead, 923 F.2d at 1013-1014 (holding that Section

113(h) prohibits a suit under the National Historic Pres-

ervation Act of 1966 to enjoin a CERCLA response

action); Schalk v. Reilly, 900 F.2d at 1097 (holding that

Section 113(h) prohibits a suit under the National Envi-

ronmental Policy Act that would “impact the implemen-

tation” of a CERCLA remedy).

The most nearly applicable avenue, set forth in Section

113(h)(4), allows an action under CERCLA’s citizen suit provi-

sion, Section 310, once the response action has been completed. 42

U.S.C. 9613(h)(4). Colorado, however, has not brought a citizen

suit and the response action has not been completed.

b. The court of appeals’ misunderstanding of Sec-

tion 113(h) leads directly to our second and more funda-

mental point. CERCLA does not simply restrict the

power of federal courts as to the manner or timing of

judicial challenges; it also provides the States with a full

opportunity to participate in the remedy selection pro-

cess. CERCLA contains detailed provisions that give the

States a direct voice in the selection of CERCLA re-

sponse actions—including federal facility response ac-

tions—and that provide a framework to resolve issues

that would otherwise result in protracted litigation.

Thus, if Colorado seeks “compliance with [the] CHWMA,”

App., unfra, 21a, it need only participate in CERCLA’s

response process.

As its name indicates, CERCLA creates a comprehen-

sive scheme for responding to releases of hazardous

substances. See pp. 4-9, supra. The statute spells out in

painstaking detail the respective roles of the United

States and the States in developing response actions at

federal and non-federal facilities. In the case of federal

facilities such as the Rocky Mountain Arsenal, Section

120 provides (among other things) that:

- Federal agencies are subject to CERCLA’s substan-

tive and procedural requirements (CERCLA

§ 120(a));

- The EPA shall determine within a specified time

period whether federal facilities warrant inclusion

on the NPL (CERCLA § 120(c)-(d));

- Once a federal facility is placed on the NPL, the

federal agency responsible for the facility must de-

velop and implement an EPA-approved response

action within time frames set by CERCLA and EPA

(CERCLA § 120(e)); and

- State and local officials are entitled to participate in

the planning and selection of the federal remedial

action in accordance with CERCLA’s Section 121

(CERCLA § 120(f)).

See 42 U.S.C. 9620. Thus, once the EPA elects to place

a federal facility on the NPL, the State has a direct role

in the remedy selection process through Section 121,

which specifies that:

- The EPA must promulgate regulations providing

for “substantial and meaningful” state involvement

in the remedy selection process (CERCLA § 121(f));

- The selected remedy must satisfy all “applicable” or

otherwise “relevant and appropriate” requirements

(ARARs) under federal and state law—such as the

substantive requ'rements of Colorado’s CHWMA—

unless the EPA waives an ARAR requirement based

on one of several specified grounds (CERCLA

§ 121(d));

- If the EPA waives an ARAR, then the State may

bring a judicial action challenging the EPA’s deci-

sion, and even if the court agrees with the EPA’s

decision, the State may nonetheless insist on com-

pliance with the ARAR if the State pays the costs

associated with satisfying the ARAR (CERCLA

§ 121(f)(3)).

See 42 U.S.C. 9621; see also 40 C.F.R. Pt. 300. Thus,

CERCLA expressly addresses the State’s role in deter-

mining the CERCLA response. CERCLA provides that

once the EPA places a federal facility on the NPL, the

States directly participate in the selection and imple-

mentation of federal response actions. But if the EPA

has not placed a federal facility on the NPL, then “State

laws concerning removal and remedial action, including

State laws regarding enforcement, shall apply.” 42 U.S.C.

9620(a)(4).

In this instance, the EPA has placed Basin F on the

NPL and the Army has undertaken CERCLA response

actions. Thus, if Colorado wishes to obtain “compliance

with CHWMaA during the course of the action” (App.,

infra, 21a), it must participate in CERCLA’s response

process rather than attempt to impose “independent

state remedies” that are inconsistent with the CERCLA

remedy. See Akzo, 949 F.2d at 1458. Significantly, Sec-

tion 121(e)(1) expressly prohibits Colorado from subject-

ing the CERCLA response action to permitting require-

ments such as the ones contained in Colorado’s FACO.

Compare 42 U.S.C. 9621(e)(1) with App., infra, 67a,

69a, 72a, 113a.

The court of appeals mistakenly reached a contrary

conclusion on the basis of CERCLA’s savings provisions,

Section 114(a) and Section 302(d), which provide:

Nothing in this chapter shall be construed or

interpreted as preempting any State from imposing

any additional liability or requirements with re-

spect to the release of hazardous substances within

such State.

42 U.S.C. 9614(a).

Nothing in this chapter shall affect or modify in—

any way the obligations or liabilities of any person

under other Federal or State law, including com-

mon law, with respect to releases of hazardous

substances or other pollutants or contaminants.

42 U.S.C. 9652(d).

The court’s error arose from its failure to read those

provisions in context. To be sure, CERCLA does not

disable the States from imposing “liabilities,” “require-

ments,” and “obligations” respecting the “release of haz-

ardous substances,” but where a CERCLA response

action is ongoing, CERCLA does require that the appli-

cable state laws shall be incorporated into the CERCLA

response action through CERCLA’s remedy selection

process set forth in Sections 120 and 121. See Akzo, 949

F.2d at 1458. Simply put, CERCLA’s savings provisions

do not allow a State to bypass CERCLA’s comprehensive

statutory process for assimilating state law. Indeed, if a

State could simply bypass the ARARs process and uni-

laterally impose state law requirements through state

compliance orders, the ARARs process would become a

dead letter.

c. The existence of CERCLA’s comprehensive re-

sponse process brings us to our third point. CERCLA

leaves no doubt that this process is the exclusive means

by which a State may direct the selection of a CERCLA

remedy, because CERCLA prohibits any person—in-

cluding a State—from dictating unauthorized response

activities at a CERCLA site. Section 122(e)(6) states:

When either the President, or a potentially re-

sponsible party pursuant to an administrative or-

der or consent decree under this chapter, has initi-

ated a remedial investigation and feasibility study

for a particular facility under this chapter, no po-

tentially responsible party may undertake any re-

medial action at the facility unless such remedial

action has been authorized by the President.

42 U.S.C. 9622(e)(6). Under that provision, once the

CERCLA remedy selection process has led to the initia-

tion of a remedial investigation and feasibility study, a

potentially responsible party must obtain the EPA’s

approval before undertaking any remedial action. Thus,

once the process has reached that stage, the State may

not unilaterally compel a potentially responsible party

(including, in this case, the Army) to take remedial

action.

The court of appeals rejected the comon sense import

of Section 122(e)(6), concluding that it was inconsistent

with CERCLA’s savings clauses. See App., infra, 37a. Of

course, the court of appeals’ duty was to reconcile these

statutory provisions, rather than to interpret them as

conflicting. See, e.g., United States v. Fausto, 484 U.S.

439, 453 (1988). In any event, the court of appeals is

mistaken. As the EPA has explained in its Listing Policy

for Federal Facilities,

CERCLA section 122(e)(6) does not constitute a

prohibition on RCRA correction action at CERCLA

sites; rather, it provides a mechanism by which the

Agency must approve of remedial actions commenced

at sites after an RI/FS has been initiated under

CERCLA. * * * The Agency * * * intends to autho-

rze many State RCRA actions to continue, e.g.,

where the RCRA action addresses a unit distinct

from the CERCLA contamination, and where the

RCRA action will not disrupt CERCLA activities.

* * * * *

Even where EPA decides that it is not appropri-

ate to authorize a RCRA or other State action to

continue under CERCLA section 122(e)(6) in order

to avoid disruption or duplicative actions, CERCLA

section 120(f) specifically provides that participa-

tion by State officials in remedy selection “shall be

provided in accordance with section 121,” and

CERCLA section 121(d) specifically provides a pro-

cess for taking account of “applicable or relevant

and appropriate requirements” (ARARs) of RCRA

(as well as other State and Federal statutes) when

a remedy is selected.

54 Fed. Reg. 10,520, 10,523 (1989).

Thus, the court once again misconceived the signifi-

cance of CERCLA’s substantive provisions governing

response actions. That error, like the others, warrants

correction by this Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Drew S. Days, III

Solicitor General

Lois J. SCHIFFER

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor General

J. STEVEN ROGERS

BRADLEY S. BRIDGEWATER

JOHN T. STAHR

Attorneys

NOVEMBER 1993

APPENDIX A

UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT

No. 91-1360

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

VU.

STATE OF COLORADO AND COLORADO DEPARTMENT

OF HEALTH, DEFENDANTS-APPELLANTS

STATE OF ALASKA, STATE OF ARKANSAS, STATE OF

CALIFORNIA, STATE OF CONNECTICUT, STATE OF

INDIANA, STATE OF Iowa, STATE OF KANSAS,

COMMONWEALTH OF KENTUCKY, STATE OF MICHIGAN,

STATE OF MINNESOTA, STATE OF MISSOURI, STATE OF

NEBRASKA, STATE OF NEVADA, STATE- OF

New Mexico, STATE OF NEW York, STATE OF

NORTH CAROLINA, STATE OF OHIO, STATE OF OREGON,

COMMONWEALTH OF PENNSYLVANIA, STATE OF

TENNESSEE, STATE OF UTAH, AND STATE OF WYOMING,

AMICI CURIAE

April 6, 1993

Rehearing Denied June 30, 1993

Before BALDOocK and Ho..oway, Circuit Judges,

and Ear_ E. O’CoNnoR, Senior District Judge.*

“The Honorable Earl E. O'Connor, Senior Judge, United

States District Court for the District of Kansas, sitting by

designation.

(la)

BaLpock, Circuit Judge:

This case examines the relationship between the

Resource Conservation and Recovery Act of 1976

(“RCRA”), Pub.L. No. 94-580, 90 Stat. 2795, as

amended by the Hazardous and Solid Waste Amend-

ments of 1984 (““HSWA”), Pub.L. No. 98-616, 98 Stat.

3221 (codified as amended at 42 U.S.C. §§ 6901-6981

(West 1983 & Supp. 1992)), and the Comprehensive

Environmental Response, Compensation, and Liabil-

ity Act of 1980 (“CERCLA”), Pub. L. No. 96-510, 94

Stat. 2767, as amended by the Superfund Amend-

ments and Reauthorization Act of 1986 (“SARA”),

Pub. L. No. 99-499, 100 Stat. 1613 (Codified as

amended at 42 U.S.C. §§9601-9675 (West 1983 &

Supp. 1992) and 26 U.S.C. § 9507 (West Supp. 1992)).

At issue is whether a state which has been autho-

rized by the Environmental Protection Agency (“EPA”)

to “carry out” the state’s hazardous waste program

“in lieu of’ RCRA, see 42 U.S.C. § 6926(b) (West

Supp. 1992), is precluded from doing so at a hazard-

ous waste treatment, storage aad disposal facility

owned and operated by the federal government which

the EPA has placed on the national priority list, see

id. § 9305(a))8)(B), and where a CERCLA response

action is underway. See 42 U.S.C. § 9604 (West 1983

& Supp.1992).

The Rocky Mountain Arsenal (“Arsenal”) is a haz-

ardous waste treatment, storage and disposal facility

subject to RCRA regulation, see 42 U.S.C. § 6924(a)

(West Supp.1992), which is located near Commerce

City, Colorado in the Denver metropolitan area. The

United States government has owned the Arsenal

EEE

since 1942, and the Army operated it from that time

until the mid-1980’s. Without reiterating its environ-

mental history, suffice it to say that the Arsenal is

“one of the worst hazardous waste pollution sites in

the country.” Daigle v. Shell Oil Co., 972 F.2d 1527,

1531 (10th Cir.1992) (footnote omitted). The present

litigation focuses on Basin F which is a 92.7 acre

basin located within the Arsenal where millions of

gallons of liquid hazardous waste have been disposed

of over the years.

Congress enacted RCRA in 1976 “to assist the cit-

ies, counties and states in the solution of the dis-

carded materials problems and to provide nationwide

protection against the dangers of improper hazard-

ous waste disposal.” H.R.Rep. No. 1491, 94th Cong.,

2d Sess. 11 (1976), reprinted in 1976 U.S.C.C.A.N.

6238, 6249. RCRA requires the EPA to establish per-

formance standards, applicable to owners and opera-

tors of hazardous waste treatment, storage and dis-

posal facilities “as may be necessary to protect hu-

man health and the environment.” 42 U.S.C. § 6924(a)

(West Supp.1992). The EPA enforces RCRA stan-

dards by requiring owners and operators of facilities

‘Among the standards promulgated by the EPA are specific

requirements governing the closure of hazardous waste treat-

ment, storage and disposal facilities. See 40 C.F.R. § 264-228

(1992) (closure and post-closure care); id. § 265.228 (closure

and post-closure care for interim status facilities). See also

Donald W. Stever, Law of Chemical Regulation and Hazardous

Wastes, § 5.06[2][d][iii][A], at 5-65 (1991).

ennai i, |

to obtain permits,’ see 42 U.S.C. § 6925 (West 1983 &

Supp.1992), and by issuing administrative compli-

ance orders and seeking civil and criminal penalties

for violations. Id. § 6928. The EPA may authorize

states to “carry out” their own hazardous waste pro-

grams “in lieu of’ RCRA and to “issue and enforce

permits for the storage, treatment, or disposal of

hazardous waste” so long as the state program meets

the minimum federal standards.* 42 U.S.C. § 6926(b)

(West Supp.1992). See also H.R. Rep. No. 1491()) at

32, reprinted in 1976 U.S.C.C.A.N. at 6270 (under

RCRA, states retain “primary authority” to imple-

ment hazardous waste programs). However, RCRA

does not preclude a state from adopting more strin-

gent requirements for the treatment, storage and

disposal of hazardous waste. 42 U.S.C. § 6929 (West

Supp.1992). See also Old Bridge Chems., Inc. v. New

Jersey Dep’t of Envtl. Protection, 965 F.2d 1287, 1296

(3d Cir.) (“RCRA sets a floor not a ceiling for state

regulation of hazardous wastes”), cert. denied, __

U.'S.__, 113 S.Ct. 602, 121 L.Ed.2d 538 (1992). Once

the EPA authorizes a state to carry out the state

hazardous waste program in lieu of RCRA, “[a]ny

action taken by [the] State [has] the same force and

effect as action taken by the [i!PA]....” 42 U.S.C. §

* Pending permit approval, RCRA permitted preexisting haz-

ardous waste treatment, storage and disposal facilities to con-

tinue operating during the permit application process under

“interim status.” 42 U.S.C. § 6925(e)(1) (West Supp. 1992).

3 Congress ercouraged states to develop their own hazardous

waste programs by directing the EPA to “promulgate guide-

lines to assist States in the development of [such] programs.”

42 U S.C. § 6926(a) (West 1983).

6926(d) (West 1983). The federal government must

comply with RCRA or an EPA-authorized state pro-

gram “to the same extend as any person....”4 42 U.S.C.

§ 6961 (West 1983). In short, RCRA provides “a pro-

spective cradle-to-grave regulatory regime governing

the movement of hazardous waste in our society.”®

H.R. Rep. No. 1016(1), 96th Cong., 2d Sess. 17 (1980),

reprinted in 1980 U.S.C.C.A.N. 6119, 6120. See also

Old Bridge, 965 F.2d at 1292 (RCRA is “principal

federal statute regulating the generation, transpor-

tation, and disposal of hazardous wastes’).

Because RCRA only applied prospectively, it was

“clearly inadequate” to deal with “ ‘the inactive haz-

“In United States Dep’t of Energy v. Ohio, __ U.S. __, 112 S.Ct.

1627, 118 L.Ed.2d 255 (1992), the Supreme Court held that.

federal agencies retained sovereign immunity from state civil

penalties imposed under RCRA. Jd. at ____ —_|§ ~ © _,, 112 S.Ct. at

1639-40. See also Mitzelfelt v. Department of Air Force, 903

F.2d 1293, 1296 (10th Cir. 1990). However, Congress recently

amended § 6961 to clearly provide that federal agencies are not

immune from such penalties. See Federal Facility Compliance

Act of 1992, Pub.L. No. 102-386, § 102, 106 Stat. 1505.

°In 1984, Congress amended RCRA with the enactment of

HSWA which sought to close “various loopholes’ that were

allowing millions of tons of hazardous waste to escape RCRA’s

control. See H.R. Rep. No. 198(1), 98th Cong., 2d Sess. 19,

reprinted in 1984 U.S.C.C.A.N. 5576, 5578. Congress was con-

cerned that RCRA was not being “conducted in a manner that

controls and prevents present and potential endangerment to

public health and the environment” and enacted HSWA to

prevent “future burdens on the ‘Superfund’ program....” id. at

20, reprinted in 1984 U.S.C.C.A.N. at 5579.

ardous waste site problem.’ ” H.R. Rep. No. 1016(),

at 17-18, reprinted in 1980 U.S.C.C.A.N. at 6120.

Consequently, Congress enacted CERCLA in 1980

“to initiate and establish a comprehensive reponse

ana financing mechanism to abate and control the

vast problems associated with abandoned and inac-

tive hazardous waste disposal sites.” Jd. at 22, re-

printed in 1980 U.S.C.C.A.N. at 6125. Among its

provisions, CERCLA required the President to revise

the “national contingency plan for the removal of .. .

hazardous substances” which would “establish proce-

dures and standards for responding to releases of

hazardous substances....” 42 U.S.C. § 9605(a) (West

Supp. 1992). See also 40 C.F.R. pt. 300 (1992). When

“any hazardous substance is released or there is a

substantial threat of such a release into the environ-

ment,’ CERCLA authorizes the President to

act, consistent with the national contingency plan,

to remove or arrange for the removal of, and

provide for remedial action relating to such haz-

ardous substance... at any time... or take any

other response measure consistent with the na-

tional contingency plan which the President

deems necessary to protect the public health or

welfare or the environment.

42 U.S.C. § 9604(a)(1) (West Supp.1992). CERCLA

finances these government response actions through

the Hazardous Substance Superfund, see id. §

961(a)(1); 26 U.S.C. § 9507 (West Supp.1992), and

permits the government to seek reimbursement from

responsible parties by holding them strictly liable.

Id. § 9607(a). See also H.R.Rep. No. 1016, at 17, 1980

U.S.C.C.A.N. at 6120 (CERCLA establishes “a Fed-

eral cause of action in strict liability to enable [the

EPA] to pursue rapid recovery of the costs .. . of

[reponse] actions”). See, e.g., United States v. Hardage,

982 F.2d 1436, 1443 (10th Cir.1992). CERCLA also

requires the President to develop a national priority

list, as part of the national contingency plan, which

identifies “priorities among releases or threatened

releases throughout the United States” for govern-

ment response actions, id. § 9605(a)(8). See 40 C.F.R.

pt. 300 App. B (1992), and the listing of a particular

site on the national priority list is a prerequiste to a

Superfund-financed remedial action at the site. 40

C.F.R. § 300.425(b)(1) (1992). We note that Superfund

monies cannot be used for remedial actions at federal

facilities, 42 U.S.C. § 9611(e)(3) (West Supp.1992),

but CERCLA otherwise applies to the federal govern-

ment “to the same extent, both procedurally and

substantively, as any nongovernmental entity.” Jd. §

9620(a)(1). In short, CERCLA is a remedial statute

“designed to facilitate cleanup of environmental con-

tamination caused by releases of hazardous sub-

stances.”® Colorado v. Idorado Mining Co., 916 F.2d

1486, 1488, 1492 (10th Cir.1990), cert. denied, _

U'S.__, 111 S.Ct. 1584, 113 L.Ed.2d 648 (1991). See

also Daigle, 972 F.2d at 1533.

* Congress amended CERCLA in 1986 by enacting SARA after

realizing that CERCLA was “inadequate” to address the envi-

ronmental threat presented by abandoned hazardous waste

sites. See H.R.Rep. No. 253, 99th Cong., 2d Sess. 54-55 (1985),

reprinted in 1986 U.S.C.C.A.N. 2835, 2836-37. SARA “buil[t] on

existing law and significantly strengthen[ed] [CERCLA] in all

respects . . . {as well as] provid[ing] the EPA with appropriate

flexibility and discretion in order to respond appropriately to

each site....” Jd. at 56, reprinted in 1986 U.S.C.C.A.N. at 2838.

Il.

In November 1980, the Army, as the operator of the

Arsenal, submitted to the EPA part A of its RCRA

permit application’ which listed Basin F as a hazard-

ous waste surface impoundment.® Appellants’ App. at

413. By submitting the part A RCRA application, the

Army achieved RCRA interim status. See supra note

2. In May 1983, the Army submitted part B of its

RCRA permit application to the EPA which included

a required closure plan for Basin F, Appellants’ App.

at 505, and the following month, the Army submitted

a revised closure plan for Basin F. Appellants’ App.

at 471. See also supra notes 1 and 7. In May 1984, the

EPA issued a notice of deficiency to the Army regard-

ing part B of its RCRA permit application and re-

quested a revised part B application within sixty

’ Obtaining a RCRA permit is a two-step process. Part A of

the permit application requires general information concerning

the facility, the operator, the hazardous wastes and the pro-

cesses for treatment, storage and disposal. See 40 C.F.R. § 270.13

(1992). Part B of the permit application requires more detailed

information including a specific closure plan. See id. § 270.14.

* As a hazardous waste surface impoundment, Basin F is

subjeci to specific RCRA regulations. See 40 C.F.R. §§ 265.220-

265.230 (1992) (interim status standards for surface impound-

ments). Further, under HSWA, an interim status surface im-

poundment cannot receive, store, or treat hazardous waste

after November 8, 1988, unless (1) it is in compliance with

§ 6924(0)(1)(A) which requires the “installation of two or more

liners,” a “leachate collection system,” and “groundwater moni-

toring,’ or (2) it has at least one liner and there is no evidence

that it is leaking, is located more than a quarter mile from an

underground source of drinking water, and is in compliance

with the groundwater requirements applicable to RCRA per-

mitted facilities. See 42 U.S.C. § 69254) (West Supp. 1992). See

also id. § 6924(0)(1).

days under threat of termination of the Army’s in-

terim status. Appellants’ Br. Attach. 12. The Army

never submitted a revised part B RCRA permit appli-

cation to the EPA; rather, in October 1984, the Army

commenced a CERCLA remedial investigation/feasi-

bility study (“RI/FS”).° Appellee’s App. at 9, 30.

Effective November 2, 1984, the EPA, acting pur-

suant to 42 U.S.C. § 6926(b) (West Supp. 1992), au-

thorized Colorado to “carry out” the Colorado Haz-

ardous Waste Management Act (“CHWMA’”),

Colo.Rev. Stat. §§ 25-15-301 to 25-15-316 (1989 &

Supp. 1992), “in lieu of’ RCRA. See 49 Fed.Reg. 41,036

(1984). That same month, the Army submitted its

part B RCRA/CHWMA permit application to the Colo-

rado Department of Health (“CDH”) which is charged

with the administration and enforcement of CHWMA.

Appellants’ App. at 473. Notably, the part B applica-

* While most of the President's CERCLA authority has been

delegated to the EPA pursuant to 42 U.S.C. § 9615 (West 1983),

the President delegated his CERCLA response action authority

under § 9604(a-b) with respect to Department of Defense facili-

ties to the Secretary of Defense. See Exec. Order No. 12,316, 46

Fed. Reg. 42,237 (1981), as amended by Exec. Order No. 12,418,

48 Fed. Reg. 20,891 (1983), revoked by and current delegation of

authority at Exec. Order No. 12,580, 52 Fed.Reg. 2,923 (1987).

A RI/FS is the first step in a CERCLA remedial action in order

“to assess site conditions and evaluate alternatives to the ex-

tent necessary to select a remedy.” 40 C.F.R. § 300.430(a)(2)

(1992). Interestingly, the Army initiated the RI/FS during the

month preceding HSWA’s effective date, which provided that

RCRA interim status surface impoundments undertake correc-

tive action in order to continue treating, storing and disposing

of hazardous waste after November 1988. See supra note 8. The

Army has since maintained that its CERCLA response action

precludes Colorado from enforcing its EPA-delegated RCRA

authority at the Arsenal.

10a

tion was the same deficient application that the Army

submitted to the EPA in June 1983. Jd. Not surpris-

ingly, CDH found the application, specifically the

closure plan for Basin F, to be unsatisfactory. Jd.

Consequently, in May 1986, CDH issued its own

draft partial closure plan for Basin F to the Army, id.

at 481, and in October 1986, CDH issued a final

RCRA/CHWMA modified closure plan for Basin F

and requested the Army’s cooperation in immediately

implementing the plan. Jd. at 393. The Army re-

sponded by questioning CDH’s jurisdiction over the

Basin F cleanup. Jd. at 395-96.

In response to the Army’s indication that it would

not implement CDH’s closure plan for Basin F, Colo-

rado filed suit in state court in November 1986. Colo-

rado sought injunctive relief to halt the Army’s al-

leged present and future violations of CHWMA and

to enforce CDH’s closure plan for Basin F. The Army

removed the action to federal district court, and moved

to dismiss Colorado's CHWMA enforcement action

claiming that “CERCLA’s enforcement and response

provisions pre-empt and preclude a state RCRA en-

forcement action with respect to the cleanup of haz-

ardous wastes at the Arsenal.” Colorado v. United

States Dept. of the Army, 707 F.Supp. 1562, 1565

(D.Colo.1989).

In June 1986, the Army announced that it was

taking a CERCLA interim response action with re-

spect to Basin F. Appellee’s App. at 20. In September

1986, the Army agreed with Shell Chemical Com-

pany’° on an interim response action in which Shell

From 1946 to 1982, Shell leased a portion of the Arsenal

from the Army and disposed of hazardous wastes in Basin F.

lla

would construct storage tanks with a total capacity of

four million gallons to hold Basin F liquids. Jd. In

June 1987, the Army, the EPA, Shell and Colorado

agreed on a Basin F interim response action which

required the Army to remove contaminated liquids to

the temporary storage tanks and contaminated slud-

ges and soils to a temporary holding area until deter-

mination of a final Arsenal-wide remedy. Jd. at 47-

50. In August 1987, the Army requested that Colo-

rado identify potential applicable or relevant and

appropriate requirements (“ARAR’s”), see 42 U.S.C.

§ 9621(d) (West Supp.1992); infra note 20, for the

Basin F interim response action, and, in October

1987, the Army requested comment on its plan, see 42

U.S.C. § 9621(f)(1)(E) (West Supp.1992): however,

Colorado did not respond to either of these requests.

Appellee’s App. at 21-22.

In October 1987, the Army advised Colorado that it

was withdrawing its still pending part B RCRA/

CHWMaA permit application claiming that it was ceas-

ing operations of all structures addressed in the ap-

plication and that it intended to remediate Basin F

pursuant to CERCLA. Appellants’ App. at 398-400.

The Army indicated that it would, however, comply

with RCRA and CHWMA in accordance with

CERCLA’s provisions at 42 U.S.C. § 9620(i) and

§ 962 1(d)(2)(A)(i). Id. at 399.

In December 1987, the Army transmitted a draft

decision document for the Basin F interim response

action to the EPA, Shell and Colorado and initiated a

thirty day publiccomment period, see 42 U.S.C. § 9617

(West Supp.1992). Appellee’s App. at 22. In January

1988, the Army issued its decision document for the

Basin F interim response action. Appellants’ App. at

12a

5. Thereafter, the Army began the Basin F interim

response action, and, in December 1988, completed

the removal of eight million gallons of hazardous

liquid wastes from Basin F, relocating four million

gallons to three lined storage tanks and four million

gallons to a double-lined holding pond. Appellee’s

App. at 12. In addition, the Army removed 500,000

cubic yards of contaminated solid material from

Basin F, dried it, and placed it in a sixteen acre,

double lined, capped wastepile. Jd. The Army also

capped the Basin F floor." Jd.

In February 1989, the federal district court denied

the Army’s motion to dismiss Colorado's CHWMA

enforcement action. The district court relied on sev-

eral provisions of both RCRA and CERCLA, includ-

ing CERCLA’s provision for the application of state

laws concerning removal and remedial action at fed-

eral facilities not listed on the national priority list.'”

Colorado v. United States Dep’t of the Army, 707

''The Basin F interim response action led several nearby

residents to sue for damages allegedly caused by the release of

airborne pollutants. See Daigle v. Shell Oil Co., 972 F.2d 1527,

1532 (10th Cir. 1992). The Basin F interim response action also

calls for the Army to incinerate the removed liquids. This has

yet to be done. Final disposition of the solids remaining under

the Basin F cap and in the wastepile will be determined as part

of the remedial action for which a final record of decision will be

issued in 1994.

'2 Additionally, the district court relied on RCRA’s provision

regarding its application to federal facilities, 707 F.Supp. at

1565 (citing 42 U.S.C. § 6961), and its citizen suit provision, /d.

at 1565-66 (citing 42 U.S.C. § 6972). The district court also

relied on CERCLA’s provisions permitting a state to impose

additional requirements on the release of hazardous waste and

preserving all other obligations or liabilities of persons under

other federal or state law, id. at 1569 (citing 42 U.S.C. §§ 9614(a),

l3a

F.Supp. at 1569-70 (citing 42 U.S.C. § 9620(a)(4)).

The district court found this provision to be particu-

larly noteworthy in light of the fact that Basin F was

not listed on the national priority list. Jd. Further-

more, the district court expressed particular concern

about the relationship between the Army and the

EPA, noting that the EPA’s “potential monitoring of

the Army’s Basin F cleanup operation under CERCLA

does not serve as an appropriate or effective check on

the Army’s efforts,”"* and that Colorado’s involve-

ment “would guarantee the salutary effect of a truly

adversary proceeding that would be more likely, in

the long run, to achieve a thorough cleanup.” Jd. at

1570. Thus, the district court held that Colorado was

not precluded from enforcing CHWMA, pursuant to

its EPA-delegated RCRA authority, despite the Army’s

cleanup efforts under CERCLA. Jd.

In March 1989, the month following the district

court's order, the EPA added Basin F to the national

priority list.‘ 54 Fed.Reg. 10,512 (1989). The Army

9652(d)), and CERCLA’s provisions concerning federal facilities

which indicated to the district court that CERCLA did not

affect or impair the obligation of a federal facility to comply

with RCRA. Id. (citing 42 U.S.C. §§ 9620(a)(1), 9620(a)(4),

9620(i)).

'S The district court noted that the Army, as a responsible

party, has an “obvious financial interest to spend as little

money and effort as possible on the cleanup,” whereas the EPA

has the responsibility “to achieve a clean up as quickly and

thoroughly as possible... .” 707 F.Supp. at 1570. The district

court also noted that the same Justice Department attorneys

were representing both the Army and the EPA despite the

court's expressed concern over a conflict. Jd.

‘“ Although the EPA had listed the Arsenal on the national

priority list in July 1987, 52 Fed.Reg. 27,620, 27,641 (1987),

l4a

immediately moved for reconsideration of the district

court's order in light of the EPA’s listing of Basin F on

the national priority list.

In September 1989, CDH, acting in accordance

with the district court’s February 1989 order, issued

a final amended compliance order to the Army, pur-

suant to CDH’s authority under CHWMA. The final

amended compliance order requires the Army to sub-

mit an amended Basin F closure plan, as well as

plans and schedules addressing soil contamination,

monitoring and mitigation, groundwater contamina-

tion, and other identified tasks for each unit contain-

ing Basin F hazardous waste as required under

CHWMaA. Appellants’ App. at 96-103. The final

amended compliance order also requires that CDH

shall approve all plans and that the Army shall not

implement any closure plan or work plan prior to

approval in accordance with CHWMA. Id. at 98.

As a result of the final amended compliance order,

the United States filed the present declaratory ac-

tion, invoking the district court’s jurisdiction under

28 U.S.C. § 2201. The United States’ complaini sought

Basin F was expressly excluded from the national priority list

“because the EPA believed that Basin F might be subject to

RCRA Subtitle C corrective action authorities and thus might

be appropriate for deferral... .” 54 Fed.Reg. 10,512, 10,515

(1989). See also 48 Fed.Reg. 40,682 (1983) (describing EPA

policy of deferring national priority listing of sites undergoing

RCRA cleanup); 49 Fed. Reg. 40,323-40,324, 40,336 (1984). See

generally Apache Powder Co. v. United States, 968 F.2d 66, 68

(D.C.Cir. 1992). When the EPA added Basin F to the national

priority list in 1989, it indicated that Basin F should not have

been deferred from listing under the policy in effect in 1987

because it had stopped receiving RCRA hazardous wastes prior

to July 26, 1982 and did not certify closure prior to January 26,

1983. 54 Fed. Reg. at 10,515-10,516 & n.2.

l5a

an order from the federal district court declaring that

the final amended compliance order is “null and void”

and enjoining Colorado and CDH from taking any

action to enforce it.'° Jd. at 13. Colorado counter-

claimed requesting an injunction to enforce the final

amended compliance order.'* Jd. at 35-41. On cross

motions for summary judgment, the district court

relied on CERCLA’s provision which limits federal

court jurisdiction to review challenges to CERCLA

response actions, see 42 U.S.C. §9613(h) (West

Supp.1992), and held that “[a]Jny attempt by Colo-

rado to enforce [] CHWMA would require [the] court

to review the [Army’s CERCLA] remedial action .__.

prior to [its] completion” and that “[s]uch a review is

expressly prohibited by [CERCLA] § 9613(h).” United

States v. Colorado, No. 89-C-1646, slip op. at 10

(D.Colo. Aug. 14, 1991) (Mem. Order & Op.). It is

important to note that the district court distinguished

its earlier order, which held that Colorado could en-

force CHWMA despite the Army’s CERCLA response

'° The United States filed the present action while the Army's

motion for reconsideration of the district court's February 1989

order in Colorado's enforcement action was still pending. Fol-

lowing the district court's ruling in the present case, the dis-

trict court dismissed Colorado's earlier enforcement action which

was the subject of the district court's February 1989 order.

'® Colorado also counterclaimed for civil penalties. The dis-

trict court dismissed this counterclaim on sovereign immunity

grounds, relying on this court's opinion in Mitzelfelt v. Depart-

ment of Air Force, 903 F.2d 1293 (10th Cir. 1990). See United

States v. Colorado, No. 89-C-1646 (D.Colo. June 19, 1990) (or-

der). Although Congress has subsequently amended RCRA to

expressly allow for civil penalties to be enforced against federal

facilities, see supra note 4, Colorado has not appealed the

dismissal of its counterclaim for civil penalties.

16a

action, Colorado v. United States Dep't of the Army,

707 F.Supp. at 1570, based on the EPA’s intervening

listing of Basin F on the national priority list. United

States v. Colorado, No. 89-C-1646, slip op. at 4, 8,

1991 WL 193519. In doing so, the district court ap-

pears to have implicitly relied on § 9620(a)(4), which

provides for the application of state laws concerning

removal and remedial action at federal facilities not

listed on the national priority list, in addition

§ 9613(h). Based on this reasoning, the district court

granted summary judgment to the United States on

its claims for declaratory and injunctive relief, denied

Colorado’s cross-motion for summary judgment, and

enjoined Colorado and CDH from taking “any action

to enforce the [ ] final amended compliance order.” Jd.

at 10-11.

Il.

Colorado filed a timely notice of appeal from the

district court’s order giving us jurisdiction over this

matter. 28 U.S.C. § 1291. Colorado contends that

§ 9613(h) is not applicable to a state’s efforts to en-

force its EPA-delegated RCRA authority, that listing

on the national priority list is immaterial, and that

the district court’s order amounts to a determination

that CERCLA preempts a state’s EPA-delegated RCRA

authority contrary to well-settled principles.'’ In ad-

dition to arguing that § 9613(h) bars Colorado from

enforcing its EPA-delegated RCRA authority, the

'? Colorado also argues that the district court’s order violates

the separation of powers doctrine by allowing an executive

branch agency to dictate the outcome of pending litigation. In

light of our holding, we need not address this argument.

17a

United States alternatively contends that CERCLA’s

provision, which grants the President authority to

select the remedy and allow for state input through

the ARAR’s process, see 42 U.S.C. § 9621 (West

Supp.1992), bars Colorado from enforcing state law

independent of CERCLA. See Hill v. Ibarra, 954 F.2d

1516, 1525 n. 4 (10th Cir. 1992) (“grant of summary

judgment ... may be upheld on any grounds sup-

ported by the record”).

We review a district court order granting or deny-

ing summary judgment de novo, applying the same

standard as the district court. United States v.

Hardage, 985 F.2d 1427, 1432 (10th Cir.1993). Sum-

mary judgment is appropriate if “there is no genuine

issue as to any material fact and... the moving party

is entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56(c). In applying this standard, we con-

strue the factual record and reasonable inferences

therefrom in the light most favorable to the party

opposing summary judgment. Hardage, 985 F.2d at

1433.

As this is a case of statutory construction, our jobis

to effectuate the intent of Congress. Colorado v.

Idarado Mining Co., 916 F.2d 1486, 1494 (10th

Cir.1990), cert. denied, _ US. _, 111 S.Ct. 1584,

113 L.Ed.2d 648 (1991). While our starting point is

the statutory language, Hallstrom v. Tillamook

County, 493 U.S. 20, 25, 28-29, 110 S.Ct. 304, 308,

309-311, 107 L.Ed.2d 237 (1989), we must also look to

the design of the statute as a whole and to its object

and policy. Crandon v. United States, 494 U.S. 152,

158, 110S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990). See

also King v. St. Vincent’s Hosp., __ US. Lee

S.Ct. 570, 574, 116 L.Ed.2d 578 (1991) (statute must

18a

be read as a whole because “meaning, plain or not,

depends on context’). When Congress has enacted

two statutes which appear to conflict, we must at-

tempt to construe their provisions harmoniously.

Negonsott v. Samuels, 933 F.2d 818, 819 (10th Cir.

1991), affd,__ U.S. __, 113 S.Ct. 1119, 122 L.Ed.2d

457 (1993). See also County of Yakima v. Confeder-

ated Tribes & Bands of Yakima Indian Nation, __

US. _, _, 112 S.Ct. 683, 692, 116 L.Ed.2d 687

(1992) (“Courts are not at liberty to pick and choose

among congressional enactments, and when two stat-

utes are capable of coexistence, it is [our] duty ...

absent clearly expressed congressional intention to

the contrary, to regard each as effective.”). Even when

a later enacted statute is not entirely harmonious

with an earlier one, we are reluctant to find repeal by

implication unless the text or legislative history of

the later statute shows that Congress intended to

repeal the earlier statute and simply failed to do so

expressly. United States v. Barrett, 837 F.2d 933, 934

(10th Cir 1988). See also Kremer v. Chemical Constr.

Corp., 456 U.S. 461, 470, 102 S.Ct. 1883, 1892, 72

L.Ed.2d 262 (1982) (“an implied repeal must ordi-

narily be evident from the language or operation of

the statute”). We turn now to the application of these

well-settled rules of statutory construction tc this

particular case.

IV.

The district court focused on CERCLA’s provision

governing civil proceedings which grants federal

courts exclusive jurisdiction over all actions arising

under CERCLA. 42 U.S.C. § 9613(b) (West Supp.

1992). As the district court recognized, § 9613(h) ex-

neta ee |

19a

pressly limits this grant of jurisdiction by providing,

with exceptions not relevant here, that “[nJo Federal

court shall have jurisdiction under Federal law... to

review any challenges to removal or remedial action

selected under section 9604 of this title....” Jd.

§ 9613(h). However, contrary to the district court’s

reasoning, § 9613(h) does not bar federal courts from

reviewing a CERCLA response action prior to its

completion; rather, it bars federal courts from re-

viewing any “challenges” to CERCLA response ac-

tions. This is a critical distinction because an action

by Colorado to enforce the final amended compliance

order, issued pursuant to its EPA-delegated RCRA

authority, is not a “challenge” to the Army’s CERCLA

response action. To hold otherwise would require us

to ignore the plain language and structure of both

CERCLA and RCRA, and to find that CERCLA im-

plicitly repealed RCRA’s enforcement provisions con-

trary to Congress’ expressed intention.

Congress clearly expressed its intent that CERCLA

should work in conjunction with other federal and

state hazardous waste laws in order to solve this

countrys hazardous waste cleanup problem.

CERCLA’s “savings provision” provides that

“[nJothing in [CERCLA] shall affect or modify in any

way the obligations or liabilities of any person'*® un-

der other Federal or State law, including common

law, with respect to releases of hazardous substances

or other pollutants or contaminants.” 42 U.S.C.

'8“Person” under CERCLA is defined to include the United

States government. 42 U.S.C. § 9601(21) (West Supp. 1992).

20a

§ 9652(d) (West 1983). Similarly, CERCLA’s provi-

sion entitled “relationship to other laws” provides

that “[nJothing in [CERCLA] shall be construed or

interpreted as preempting any State from imposing

any additional liability or requirements with respect

to the release of hazardous substances within such

State.” 42 U.S.C. § 9614(a) (West 1983). By holding

that § 9613(h) bars Colorado from enforcing CHWMA,

the district court effectively modified the Army’s ob-

ligations and liabilities under CHWMA contrary to

§ 9652(d), and preempted Colorado from imposing

additional requirements with respect to the release of

hazardous substances contrary to § 9614(a).

As a federal facility, the Arsenal is subject to regu-

lation under RCRA. See 42 U.S.C. § 6961 (West 1983).

More importantly, because the EPA has delegated

RCRA authority to Colorado, the Arsenal is subject to

regulation under CHWMA. Id. See also Parola uv.

Weinberger, 848 F.2d 956, 960 (9th Cir.1988) (§ 6961

“unambiguously subjects federal instrumentalities to

state and local regulation”). While the President has

authority to exempt federal facilities from complying

with RCRA or respective state laws “if he determines

it to be in the paramount interest of the United

States,” 42 U.S.C. § 6961 (West 1983), noting in this

record indicates that the Army has been granted such

an exemption with respect to its activities at the

Arsenal. Thus, Colorado has authority to enforce

CHWMaA at the Arsenal, and “[a]ny action taken by

[Colorado] ... [has] the same force and effect as

action taken by the [EPA]... .” Id. § 6926(d).

Notwithstanding Colorado’s RCRA authority over

the Basin F cleanup, and CERCLA’s express preser-

vation of this authority, § 9613(h), which was en-

2la

acted as part of SARA, limits federal court jurisdic-

tion to review challenges to CERCLA response ac-

tions. Congress’ expressed purpose in enacting

§ 9613(b) was “to prevent private responsible parties

from filing dilatory, interim lawsuits which have the

effect of slowing down or preventing the EPA’s cleanup

activities.” H.R.Rep. No. 253(1), 99th Cong., 2d Sess.

266 (1985), reprinted in 1986 U.S.C.C.A.N. 2835,

2941 (emphasis added). N onetheless, the language of

§ 9613(h) does not differentiate between challenges

by private responsible parties and challenges by a

state. Thus, to the extent a state seeks to challenge a

CERCLA response action, the plain language of

§ 9613(h) would limit a federal court’s jurisdiction to

review such a challenge. See, e.g., Alabama v. EPA,

871 F.2d 1548, 1557 (11th Cir.), cert. denied, 493 U.S.

991, 110 S.Ct. 538, 107 L.Ed.2d 535 (1989).

Be that as it may, an action by a state to enforce its

hazardous waste laws at a site undergoing a CERCLA

response action is not necessarily a challenge to the

CERCLA action. For example, CDH’s final amended

compliance order does not seek to halt the Army’s

Basin F interim response action; rather it merely

seeks the Army’s compliance with CHWMA during

the course of the action, which includes CDH ap-

proval of the Basin F closure plan prior to implemen-

tation. Thus, Colorado is not seeking to delay the

cleanup, but merely seeking to ensure that the cleanup

is in accordance with state laws which the EPA has

authorized Colorado to enforce under RCRA. In light

of §§ 9652(d) and 96 14(a), which expressly preserve a

state's authority to undertake such action, we cannot

say that Colorado’s efforts to enforce its EPA-del-

egated RCRA authority is a challenge to the Army’s

undergoing CERCLA response action.

22a

The United States relies principally on two cases to

support its claim that § 9613(h) bars any action by

Colorado to enforce the final amended compliance

order. In Schalk v. Reilly, 900 F.2d 1091 (7th Cir.),

cert. denied, 498 U.S. 981, 111 S.Ct. 509, 112 L.Ed.2d

521 (1990), the Seventh Circuit held that § 9613 (h)

barred private citizens from bringing a CERCLA citi-

zen suit which challenged a consent decree between

the EPA and a responsible party on the grounds that

failure to prepare an environmental impact state-

ment violated the National Environmental Policy Act,

42 U.S.C. § 4321 et seq. 900 F.2d at 1095. Responding

to the citizens’ argument that they were not challeng-

ing the remedial action but rather merely asking that

certain procedural requirements be met, the court

held that “challenges to the procedure employed in

selecting a remedy nevertheless impact the imple-

mentation of the remedy and result in the same de-

lays Congress sought to avoid by passage of the stat-

ute; the statute necessarily bars these challenges.”

Id. at 1097.

While we do not doubt that Colorado’s enforcement

of the final amended compliance order will “impact

the implementation” of the Army’s CERCLA response

action, we do not believe that this alone is enough to

constitute a challenge to the action as contemplated

under § 9613(h). The plaintiffs in Schalk were at-

tempting to invoke the federal court’s jurisdiction

under CERCLA’s citizen suit provision. See 42 U.S.C.

§ 9659 (West Supp.1992). While one of the exceptions

to § 9613(h)’s jurisdictional bar is for CERCLA citi-

zen suits, such suits “may not be brought with regard

to a removal where a remedial action is to be under-

taken at the site.” Id. § 9613(h)(4). Thus, the CERCLA

23a

citizen suit in Schalk was jurisdictionally barred by

the plain language of the Statute. See 900 F.2d at

1095. Accord Alabama v. EPA, 871 F.2d at 1557.

Unlike the plaintiffs in Schalk, Colorado has not

asserted and need not assert Jurisdiction under

CERCLA’s citizen suit provision to enforce the final

amended compliance order; therefore, Schalk’s rea-

soning does not apply.

Nonetheless, the plain language of § 9613(h) bars

federal courts from exercising jurisdiction, not only

under CERCLA, but under any federal law to review

a challenge to a CERCLA remedial action. See 42

U.S.C. § 9613(h) (West Supp.1992). In Boarhead Corp.

uv. Erickson, 923 F.2d 101] (3d Cir.1991), the Third

Circuit held that § 9613(h) barred the federal court

from exercising federal question jurisdiction, 28 U.S.C.

§ 1331, under the National Historic Preservation Act,

16 U.S.C. § 470 et seq., in an action which sought to

Stay the EPA’s CERCLA response action pending

determination of whether property qualified for his-

toric site status. 923 F.2d at 1021.

Like Schalk, Boarhead is also distinguishable from

the present case First, the plaintiff in Boarhead was

a responsible party under CERCLA; therefore, per-

mitting the plaintiffs action to proceed would have

been contrary to Congress’ expressed intent in enact-

ing § 9613(h). Moreover, the plaintiffs complaint in

Boarhead sought to stay the CERCLA remedial ac-

tion; thus, the plaintiffs action under the Preserva-

tion Act clearly constituted a challenge to the CERCLA

remedial action. Boarhead, 923 F.2d at 1015. See also

Alabama v. EPA, 871 F.2d at 1559 (plaintiff's prayer

for relief seeking to enjoin the EPA from Participat-

ing in CERCLA remedial action “belie[d]” plaintiff's

24a

assertion that it was not challenging the remedial

action plan). Most importantly, the Boarhead court’s

application of § 9613(h) to the facts of that case did

not “affect or modify in any way the obligations or

liabilities” of a responsible party “under other Fed-

eral or State law ... with respect to releases of haz-

ardous substances,” see 42 U.S.C. §9652(d) (West

1983), and did not “preempt[ ] [the] state from impos-

ing any additional liability or requirements with re-

spect to the release of hazardous substances.” See id.

§ 9614(a). In light of the plain language of §§ 9652(d)

and 9614(a), and our responsibility to give effect to

all of CERCLA’s provisions, Boarhead cannot control

this case.

Not only is the district court’s construction of

§ 9613(h) inconsistent with §§ 9652(d) and 9614(a) of

CERCLA, it is also inconsistent with RCRA’s citizen

suit provision. See 42 U.S.C. § 6972 (West 1983 &

Supp.1992). While CERCLA citizen suits cannot be

brought prior to the completion of a CERCLA reme-

dial action, Schalk, 900 F.2d at 1095, RCRA citizen

suits to enforce its provisions at a site in which a

CERCLA response action is underway can be brought

prior to the completion of the CERCLA response ac-

tion.

RCRA’s citizen suit provision permits any person

to commence a civil action against any other person,

including the United States government or its agen-

cies, to enforce “any permit, standard, regulation,

condition, requirement, prohibition, or order which

has become effective pursuant to” RCRA. 42 U.S.C.

§ 6972(a)(1)(A) (West Supp.1992). Such suits are

25a

prohibited if the EPA or the state has already “com-

menced and is diligently prosecuting” a RCRA en-

forcement action. Id. § 6972(b)(1)(B). See, e.g., Sup-

porters to Oppose Pollution, Inc. v. Heritage Group,

973 F.2d 1320, 1323-24 (7th Cir.1992). Federal courts

have jurisdiction over such suits and are authorized

“to enforce the permit, standard, regulation, condi-

tion, requirement, prohibition, or order... .” 42 U.S.C.

§ 6972(a) (West Supp.1992).

RCRA’s citizen suit provision also permits any per-

son to commence a civil action against any other

person, including the United States government or

its agencies, to abate an “imminent and substantial

endangerment to health or the environment... .” Jd.

§ 6972(a)(1)(B). These types of RCRA citizen suits

are prohibited, not only when the EPA is prosecuting

a similar RCRA imminent hazard action pursuant to

42 U.S.C. § 6973, but also when the EPA is prosecut-

ing a CERCLA abatement action pursuant to 42 U.S.C.

§ 9606; the EPA is engaged in a CERCLA removal

action or has incurred costs to initiate a RI/FS and is

“diligently proceeding” with a CERCLA remedial ac-

tion pursuant to 42 U.S.C. § 9604; or the EPA has

obtained a court order or issued an administrative

order under CERCLA or RCRA pursuant to which a

responsible party is conducting a removal action, RI/

FS, or remedial action. Jd. § 6972(b)(2)(B). Federal

courts have jurisdiction over RCRA citizen imminent

hazard suits and are authorized “to restrain any

person who has contributed or who is contributing to

the past or present handling, storage, treatment,

transportation, or disposal of any solid or hazardous

waste....” Id. § 6972(a).

By prohibiting RCRA citizen imminent hazard suits

with respect to hazardous waste sites where a

26a

CERCLA response action is underway, whiie not pro-

hibiting RCRA citizen enforcement suits with respect

to such sites, Congress clearly intended that a

CERCLA response action would not prohibit a RCRA

citizen enforcement suit. Because the definition of

“person” under RCRA includes a state, 42 U.S.C.

§ 6903(15) (West 1983), Colorado could enforce RCRA

in federal court by relying on RCRA’s citizen enforce-

ment suit provision, 42 U.S.C. § 6972(a)(1) (West

Supp.1992), provided that it complied with the requi-

site notice provisions. See id. § 6972(b)(1)(A). See also

Hallstrom v. Tillamook County, 493 U.S. 20, 26, 110

S.Ct. 304, 309, 107 L.Ed.2d 237 (1989) (“compliance

with... notice provision is a mandatory. . . condition

precedent for suit”). Because CHWMA became “effec-

tive” pursuant the EPA’s delegation of RCRA author-

ity to Colorado, and the final amended compliance

order was issued pursuant to CHWMA, Colorado could

arguably seek enforcement of the final amended com-

pliance order in federal court pursuant to § 6972(a)(1).

However, we need not decide this issue. While

Colorado’s counterclaim sought enforcement of the

final amended compliance order in the district court,

Colorado asserted the counterclaim solely under

CHWMaA, claiming that it was compulsory pursuant

to Fed.R.Civ.P. 13(a), and seeking to invoke the dis-

trict court’s ancillary jurisdiction. See Appellants’

App. at 30. Thus, we do not express any opinion on

whether federal court jurisdiction over Colorado’s

counterclaim is proper under § 6972(a)(1)(A). None-

theless, our discussion of this provision is relevant to

our determination that Congress did not intend a

CERCLA response action to bar a RCRA enforcement

action, or an equivalent action by a state which has

27a

been authorized by EPA to enforce its state hazard-

ous waste laws in lieu of RCRA.

Rather than challenging the Army’s CERCLA re-

medial action, Colorado is attempting to enforce the

requirements of its federally authorized hazardous

waste laws and regulations, consistent with its ongo-

ing duty to protect the health and environment of its

citizens. CERCLA itself recognizes that these require-

ments are applicable to a facility during the pen-

dency of a CERCLA response action. See Moskal v.

United States, 498 U.S. 103, 109-10, 111 S.Ct. 461,

465-66, 112 L.Ed.2d 449 (1990) (statutes must be

construed to give effect to “every clause and word”).

Further, RCRA contemplates that enforcement ac-

tions may be maintained despite an ongoing CERCLA

response action, and we cannot say that CERCLA

implicitly repealed RCRA’s enforcement provision

given CERCLA’s clear statement to the contrary. See

Manor Care, Inc. v. Yaskin, 950 F.2d 122, 127 (3d

Cir.1991) (“Congress did not intend for CERCLA rem-

edies to preempt complementary state remedies.”).

While the decision to use CERCLA or RCRA to cleanup

a site is normally a “policy question [] appropriate

for agency resolution,” Apache Powder Co. v. United

States, 968 F.2d 66, 69 (D.C.Cir.1992), the plain lan-

guage of both statutes provides for state enforcement

of its RCRA responsibilities despite an ongoing

CERCLA response action. Thus, enforcement actions

under state hazardous waste laws which have been

authorized by the EPA to be enforced by the state in

lieu of RCRA do not constitute “challenges” to

CERCLA response actions; therefore, § 9613(h) does

28a

not jurisdictionally bar Colorado from enforcing the

final amended compliance order.

Even if an action by Colorado to enforce the final

amended compliance order would be a “challenge” to

the Army’s CERCLA response action, the plain lan-

guage of § 9613(h) would only bar a federal court

from exercising jurisdiction over Colorado’s action.

Colorado, however, is not required to invoke federal

court jurisdiction to enforce the final amended com-

pliance order. Rather, Colorado can seek enforce-

ment of the final amended compliance order in state

court. Therefore, § 9613(h) cannot bar Colorado from

taking “any” action to enforce the final compliance

order.

The final amended compliance order was issued by

CDH pursuant to its authority under CHWMA.

CHWMaA not only authorizes CDH to issue compli-

ance orders, it also authorizes CDH to request the

state attorney general to bring suit for injunctive

relief or civil or criminal penalties. Colo.Rev.Stat.

§ 25-15-308(2)(a) (Supp. 1992). See also id. § 25-15-

309 (administrative and civil penalties); id. § 25-15-

310 (criminal offenses-penalties). Compare 42 U.S.C.

§ 6928(a)(1) (West Supp.1992) (authorizing the EPA

to issue RCRA compliance orders, assess civil penal-

ties, and bring civil enforcement action); Jd. § 6928(d)

(criminal penalties for knowing violations of RCRA).

Unlike RCRA-enforcement suits by the EPA which

must be brought in federal court, 42 U.S.C.

§ 6928(a)(1) (West Supp.1992), CHWMA enforcement

actions must be brought in the state “district court

for the district in which the site or facility is ..

iets E

29a

located” or in the “district in which the violation

occurs.” Colo.Rev.Stat. §§ 25-15-305(2)(b), 25-15-

309(1) (Supp.1992). As the operator of a federal facil-

ity subject to regulation under CHWMA, the Army is

subject to “process or sanction” of the Colorado state

courts with respect to enforcement of CHWMA. 42

U.S.C. § 6961 (West 1983). Because Colorado may

bring an enforcement suit in state court, § 9613(h)

does not preclude Colorado from taking “any” action

to enforce the final amended compliance order.

VI.

By distinguishing its February 1989 order, which

recognized that Colorado could enforce CHWMA with

respect to Basin F, from its order in this case, which

enjoined Colorado and CDH from taking any action

to enforce the final amended compliance, based on

the EPA’s subsequent placement of Basin F on the

national priority list, the district court also appears

to have implicitly relied on 42 U.S.C. § 9620(a)(4)

(West Supp.1992). Section 9620 sets forth CERCLA’s

application to federal facilities. Subsection (a)(4) pro-

vides, in relevant part, that “[s]tate laws concerning

removal and remedial action, including State laws

regarding enforcement, shall apply to removal and

remedial action at facilities owned or operated by a

department, agency, or instrumentality of the United

States when such facilities are not included on the

National Priority list.” Jd. Apparently, the district

court construed this subsection as precluding the

application or enforcement of state laws concerning

removal or remedial action at federal facilities which

are listed on the national priority list.

30a

As the United States candidly concedes, the dis-

trict court’s application of § 9620(a)(4) is incorrect.

See Appellee’s Br. at 36. At most, § 9620(a)(4) deter-

mines the controlling law, not federal court jurisdic-

tion over actions by a state. Moreover, the district

court’s reasoning regards CHWMaA as a state law

“concerning removal and remedial action.” While we

recognize that CERCLA’s definition of “removal and

remedial action” is conceivably broad enough to en-

compass certain RCRA corrective actions, see 42 U.S.C.

§§ 9601(23), 9601(24) (West Supp.1992), we believe

that had Congress intended § 9620(a)(4) to exclude

states from enforcing their EPA-delegated RCRA re-

sponsibilities, it would have expressly said so. The

district court’s reasoning is contrary to § 9620(i) which

expressly preserves the obligations of federal agen-

cies “to comply with any requirement of [RCRA] (in-

cluding corrective action requirements).” 42 U.S.C.

§ 9620G) (West Supp.1992). This provision indicates

that Congress did not intend that RCRA, or state

laws autherized by the EPA to be enforced in lieu of

RCRA, to be equivalent to laws concerning removal

and remedial actions.

Despite the United States’ concession concerning

the incorrect application of § 9620(a)(4), it argues

that the listing of Basin F on the national priority list

removes any doubt that Colorado’s enforcement of

CHWMaA at the Arsenal is precluded by § 9613(h).

However, the national priority list is nothing more

than “the list of priority releases for long-term reme-

dial evaluation and response.” 40 C.F.R. § 300.425(b)

(1992). It “serves primarily informational purposes,

identifying for the States and the public those facili-

ties and sites or other releases which appear to war-

sper emeamemaenamamemaaaaaeaaaaaeaaasaaaaaeaaaaaaeaammmmammamammammmmaaamamcararencrsestl

3la

rant remedial action.”'® S.Rep. No. 848, 96th Cong.,

2d Sess. 60 (1980). Placement on the national prior-

ity list simply has no bearing on a federal facility’s

obligation to comply with state hazardous waste laws

which have been authorized by an EPA delegation of

RCRA authority or a state’s ability to enforce such

laws.

VIL.

The United States alternatively contends that

CERCLA’s provision, which grants the President au-

thority to select the remedy and allow for state input

through the ARAR’s process, see 42 U.S.C. § 9621

(West Supp.1992), bars Colorado from enforcing state

law independent of CERCLA. This is a curious argu-

ment in light of §§ 9614(a) and 9652(d) which ex-

pressly preserve state RCRA authority, and we find it

to be without merit.

While the United States does not dispute that Con-

gress intended states to play a role in hazardous

'* The legal significance of a particular site being placed on

the national priority list is that “[o]nly those releases included

on the [national priority list] shall be considered eligible for

Fund-financed remedial action.” 40 C.F.R. § 300.425(b)(1) (1992).

Given that federal facilities, like the Arsenal, are not eligible

for Super-fund-financed remedial action, 42 U.S.C. § 9611(e)(3)

(West Supp.1992); 40 C.F.R. § 300.425(b)(3) (1992), placement

of a federal facility on the national priority list serves only

informational purposes. See 54 Fed.Reg. 10,520, 10,521 (1989)

(EPA Listing Policy for Federal Facilities) (‘placing Federal

facility sites on the [national priority list] serves an important

informational function and helps to set priorities and focus

cleanup efforts on those Federal sites that present the most

serious problems’).

32a

waste cleanup, the United States argues that the

states’ role when a CERCLA response action is un-

derway is confined to CERCLA’s ARAR’s process.”

Undoubtedly, CERCLA’s ARAR’s provision was in-

tended to provide “a mechanism for state involve-

ment in the selection and adoption of remedial ac-

tions which are federal in character.” Colorado uv.

Idarado Mining Co., 916 F.2d 1486, 1495 (10th Cir.

1990), cert. denied, _ U.S. _, 111 S.Ct. 1584, 113

L.Ed.2d 648 (1991). See also United States v. Akzo

Coatings of Am., Inc., 949 F.2d 1409, 1455 (6th Cir.

1991) (ARAR’s provisions “reflect Congress’ special

concern that state interests in the health and welfare

of their citizens be preserved, even in the face of a

29 CERCLA provides that “[t]he President shall select appro-

priate remedial actions determined to be necessary to be car-

ried out under section 9604 ... which are in accordance with

this section, and to the extent practicable, the national contin-

gency plan, and which provide for cost effective response.” 42

U.S.C. § 9621(a) (West Supp.1992). Any hazardous substance

remaining on site at the completion of the remedial action may

be subject to a level or standard of control equivalent to any

federal or state ARAR, including RCRA or state hazardous

waste laws. Id. § 9621(d)(2)(A). The President has the author-

ity to waive federal or state ARAR’s in selecting a remedial

action under certain circumstances. See id. § 9621(d)(4). When

the President waives ARAR’s with respect to federal facilities,

the state may seek judicial review in federal court, limited to

the administrative record, to determine whether the President's

finding supporting the waiver is supported by substantial evi-

dence. Jd. § 9621(f)(3)B)(i). If substantial evidence does not

support the President’s finding, a court may modify the reme-

dial action to conform to the ARAR, id. § 9621(f)(3)(B)(ii); how-

ever, if the state fails to establish that the President's finding is

not supported by substantial evidence, the state may pay the

additional cost attributable to meeting the ARAR. Id.

§ 962 1(f)(3)(B) aii).

33a

comprehensive federal environmental statute”). None-

theless, nothing in CERCLA supports the contention

that Congress intended the ARAR’s provision to be

the exclusive means of state involvement in hazard-

ous waste cleanup.

Contrary to the United States’ claim, Colorado is

not invading the President’s authority to select a

CERCLA remedial action. Rather, Colorado is merely

insuring that the Army comply with CHWMA which

§§ 9614(a) and 9652(d) of CERCLA expressly recog-

nize is applicable. Sections 9614(a) and 9652(d) were

included within CERCLA when it was originally en-

acted in 1980. See Pub.L. No. 96-510, §§ 114(a), 302(d),

94 Stat. 2795, 2808 (1980). However, the ARAR’s

provision was not enacted until the 1986 amend-

ments to CERCLA. See Pub.L. No. 99-499, § 121, 100

Stat. 1672 (1986). Certainly, Congress could not have

intended the ARAR’s provision to be the exclusive

means of state involvement in hazardous waste

cleanup as provided under §§ 9614(a) and 9652(d)

when the ARAR’s concept did not even come into

being until six years after CERCLA was enacted.

Moreover, while the ARAR’s provision requires the

President to allow a state to participate in remedial

planning and to review and comment on remedial

plans, 42 U.S.C. § 9621(f)(1) (West Supp.1992), it

only allows states to ensure compliance with state

law at the completion of the remedial action. See id.

§§ 9621(d)(2)(A), 9621(f)(2), 9621(f)(3). However,

§§ 9614(a) and 9652(d) expressly contemplate the

applicability of other federal and state hazardous

waste laws regardless of whether a CERCLA response

action is underway. Given that RCRA clearly applies

during the closure period of a regulated facility, see

34a

40 C.F.R. § 264.228 (1992); id. § 265.228, the ARAR’s

provision cannot be the exclusive means of state in-

volvement in the cleanup of a site subject to both

RCRA and CERCLA authority.

Contrary to the United States’ claim, permitting

state involvement in hazardous waste cleanup out-

side of CERCLA’s ARAK’s process, based on indepen-

dent state authority, does not render the ARAR’s

process irrelevant. When a state does not have inde-

pendent authority over the cleanup of a particular

hazardous waste site, the ARAR’s provision insures

that states have a meaningful voice in cleanup. How-

ever, when, as here, a state has RCRA authority over

a hazardous waste site, §§ 9614(a) and 9652(d) ex-

pressly preserve the state’s exercise of such authority

regardless of whether a CERCLA response action is

underway.”’

21The United States relies on /Jdarado Mining and Akzo

Coaiings to support its claim that the ARAR’s provision pro-

vides the exclusive means for state invoivement in the cleanup

of a hazardous waste site where a CERCLA response action is

underway. In Jdarado Mining, we held that § 9621(e)(2) which

authorizes a state to “enforce any Federal or State standard,

requirement, criteria, or limitation to which the remedial ac-

tion is required to conform under” CERCLA in federal district

court, did not authorize the district court to grant a state

injunctive relief in the state’s CERCLA response cost action.

916 F.2d at 1494. Unlike /darado Mining, Colorado here is not

seeking to broaden its § 9607 response action authority or

§ 9621(e)(2) ARAR enforcement authority under CERCLA.

In Akzo Coatings, the Sixth Circuit held that the terms of a

consent decree between the EPA and a responsible party “set

the parameters of relief available to the state’ against the

responsible party, and § 9621(f) precluded the state from pur-

suing alternative state remedies against the responsible party.

949 F.2d at 1454-55. Unlike the state in Akzo Coatings, Colo-

rado is asserting its independent EPA-delegated RCRA author-

ity rather than challenging the selection of a CERCLA remedy.

35a

The United States also argues that to allow Colo-

rado to enforce the final amended compliance order

would violate CERCLA’s provision that “[n]o Fed-

eral, State, or local permit shall be required for the

portion of any removal or remedial action conducted

entirely onsite, where such remedial action is se-

lected and carried out in compliance with [§ 9621].”

42 U.S.C. § 9621(e)(1) (West Supp.1992). While this

provision arguably conflicts with §§ 9652(d) and

9614(a) when a state has been authorized to issue

and enforce RCRA permits, the facts of this case do

not require us to reconcile the potential conflict. The

final amended compliance order does not require the

Army to obtain a permit. Rather, it merely requires

the Army to update its existing RCRA/CHWMA per-

mit app'ication to include all units currently contain-

ing Basin F hazardous waste, see Appellants’ App. at

101, as required by both RCRA and CHWMA regula-

tions applicable to interim status facilities.22 See 40

C.F.R. § 270.72(a)(3); 6 Colo.Code Regs. 1007-3

” While Basin F lost its interim status on November 8, 1985,

because the Army never requested a final Part B permit deter-

mination and never certified compliance with applicable ground-

water monitoring requirements, see 42 U.S.C. § 6925(e)(2) (West

Supp. 1993), the Army is obligated to comply with RCRA and/or

CHWMaA regulations applicable to interim status facilities pend-

ing closure of Basin F pursuant to an approved closure plan.

See 40 C.F.R. § 265.1(a) (1992) (standards for interim status

facilities “define the acceptable management of hazardous waste

during the period of interim status and until certification of

final closure’); id. § 265.1(b) (interim status standards “apply

. until either a permit is issued ... or until applicable .. .

closure and post-closure responsibilities are fulfilled). See also

6 Colo.Code Regs. 1007-3 § 265.1(a-b) (1993).

36a

§ 100.11(d)(1) (1993). Thus, enforcement of the final

amended compliance order would not violate § 9621

(e)(1).

The United States also directs us to CERCLA’s

section governing “[s]ettlements,” 42 U.S.C. § 9622

(West Supp.1992), and specifically its provision,

within the “[s]pecial notice procedures” subsection,

entitled “[i]nconsistent response action.” Jd. § 9622

(e)(6). This provision states that

[w]hen either the President, or a potentially re-

sponsible party pursuant to an administrative

order or consent decree under [CERCLA], has

initiated a remedial investigation and feasibility

study for 2 particular facility under this chapter,

no potentially responsible party may undertake

any remedial action at the facility unless such

remedial action has been authorized by the Presi-

dent.

Id. While the relevance of § 9622(e)(6) to the present

case is unclear, the United States relies on the EPA’s

interpretation of this provision in a policy statement

concerning the listing of federal facilities on the na-

tional priority list. See 54 Fed.Reg. 10,520 (1989). In

the course of discussing why it would not apply its

policy of deferring placement of RCRA-subjected sites

on the national priority list to federal facilities, the

EPA recognized that when it undertakes a CERCLA

response action at a site subject to state-delegated

RCRA authority, a conflict may arise “from the over-

lap of the corrective action authorities of the two

statutes.” Jd. at 10,522. The EPA takes the position

a | | j

37a

that § 9622(e)(6) gives the EPA final authority over

the remedy when the conflicting views of the EPA

and a RCRA-authorized state cannot be resolved in

regard to a site where a RI/FS has been initiated. Id.

at 10,523. In the EPA’s view, § 9622(e)(6)’s authori-

zation requirement applies, not only to a potentially

responsible party’s independent remedial action, but

also to any action by a party which has been ordered

by the state under its RCRA authority “as both types

of action could be said to present a potential conflict

with a CERCLA authorized action.” Jd. Thus, in the

case of a conflict between the EPA and the state,

§ 9622(e)(6) authorizes the EPA to withhold authori-

zation to a potentially responsible party from going

forward with a RCRA corrective action ordered by the

state. Jd. Not surprisingly, the United States argues

for deference to the EPA’s interpretation of § 9622

(e)(6). See Hill v. National Transp. Safety Bd., 886

F.2d 1275, 1278 (10th Cir.1989).

The EPA’s interpretation of § 9622(e)(6) has sev-

eral problems, not the least of which is that it permits

the EPA to preempt state law contrary to § 9614(a)

and to modify a responsible party’s obligations and

liabilities under state RCRA programs contrary to

§ 9652(d). Section § 9622(e)(6) makes absolutely no

mention of RCRA-authorized state actions, and it

seems highly suspect that Congress intended this

provision which is buried within a subsection en-

titled “notice provisions” in a section addressing settle-

ments with private responsible parties to resolve con-

flicts between state-RCRA laws and CERCLA re-

sponse actions. See H.R.Rep. No. 253(1), 99th Cong.,

2d Sess. 100 (1985), reprinted in 1986 U.S.C.C.A.N.

2835, 2882 (§ 9622 was “designed to encourage and

facilitate negotiated private party cleanup’).

38a

Moreover, applying the EPA’s interpretation of

§ 9622(e)(6) to federal facilities is contrary to the

plain language of CERCLA’s section specifically ad-

dressing federal facilities. 42 U.S.C. § 9620 (West

Supp.1992). Congress expressly provided within the

federal facilities section that “[nJothing in this sec-

tion shall affect or impair the obligation of any de-

partment, agency or instrumentality of the United

States to comply with any requirement of [RCRA]

(including corrective action requirements).” Jd.

§ 9620(i). while the EPA takes the position that its

interpretation of § 9622(e)(6) is not inconsistent with

§ 9620(i) because RCRA requirements can be achieved

through the ARAR’s process pursuant to § 962 1(d)(2),

54 Fed.Reg. at 10,526, the ARAR’s process cannot be

the exclusive means of a RCRA-authorized state’s

involvement in the cleanup of a RCRA-regulated site

because otherwise a party’s obligations under other

federal and state hazardous waste laws would be

modified during the closure period contrary to

§ 9652(d), and state law would be preempted con-

trary to § 9614(a). See supra. By the same reasoning,

if the ARAR’s process constituted a state’s sole means

of enforcing its RCRA program at a federal facility,

the federal agency’s RCRA obligations prior to comple-

tion of the CERCLA remedial action would be “af-

fected or impaired” contrary to the plain language of

§ 9620(i). See H.R.Rep. No. 253(1), at 95, reprinted in

1986 U.S.C.C.A.N. at 2877 (federal facilities section

“provides the public, states, and [the EPA] increased

authority and a greater role in assuring the problems

of hazardous substance releases are dealt with by

expeditious and appropriate response actions’).

39a

Finally, § 9622(e)(6) is triggered by the initiation

of a RI/FS. The federal facilities provision requires

federal agencies to commence a RI/FS within six

months after the facility is included on the national

priority list, 42 U.S.C. § 9620(e)(1) (West Supp. 1992),

and commence a remedial action within fifteen months

of the study’s completion, id. § 9620(e)(2), while at

the same time providing that this section does not

affect or impair the agency’s RCRA corrective action

requirements. Id. § 9620(i). Certainly, Congress could

not have intended to require a RI/FS and RCRA

compliance in one section while at the same time

barring RCRA compliance when a RI/FS is initiated

in another section. As summed up by one commenta-

tor, “if placement on the [national priority list],

completion of a RI/FS, and initiation of remedial

action pursuant to [§ 9620] does not impair RCRA

obligations, mere initiation of the required investiga-

tion cannot have this effect.” Joseph M. Willging,

Why the EPA’s Current Policies on Potential CERCLA-

RCRA Authority Conflicts May be Wrong, 1 Fed. Fa-

cilities Envtl. J. 69, 82-83 (Spring 1990).

Because the EPA’s interpretation of § 9622(e)(6) is

“contrary to the plain and sensible meaning” of

§§ 9622, 9614(a) and 9652(d), and, when applied to

federal facilities, § 9620, we do not afford it any def-

erence. Hill, 886 F.2d at 1278 (quotations omitted).

In our view, § 9622(e)(6) does not bar a state from

exercising its EPA-deiegated RCRA authority at a

federal facility where a RI/FS has been initiated.

VIII.

We REVERSE the district court’s grant of sum-

mary judgment for Plaintiff-Appellee, the United

40a

States. We REMAND to the district court with in-

structions to VACATE the order prohibiting Defen-

dant-Appellants, Colorado and CDH, from taking any

action to enforce the final amended compliance order

and for further proceedings consistent with this opin-

ion.

4la

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 89-C-1646

UNITED STATES OF AMERICA, PLAINTIFF

VU.

STATE OF COLORADO AND THE COLORADO DEPARTMENT

OF HEALTH, DEFENDANTS

[Filed Aug. 14, 1991]

MEMORANDUM OPINION AND ORDER

CARRIGAN, Jd.

Plaintiff, United States of America, commenced

this action seeking declaratory and injunctive relief

to prevent the defendants, State of Colorado and the

Colorado Department of Health, from asserting state

administrative authority to regulate hazardous waste

management activities at Basin F, a hazardous waste

disposal pond on the Rocky Mountain Arsenal (the

Arsenal) northeast of Denver, Colorado. Defendants

have moved for partial summary judgment. They

seek an order declaring that The Comprehensive

Environmental Response, Compensation and Liabil-

ity Act of 1980 as amended (“CERCLA”), 42 U.S.C.

§§ 9601-9675 (1982 & Supp. V 1987) does not pre-

clude their asserting regulatory authority over the

Basin F cleanup. Plaintiff has responded by opposing

42a

the defendants’ motion and itself seeking summary

judgment based on the contention that the defen-

dants’ asserted authority to regulate would unlaw-

fully challenge and interfere with the federal

government's ongoing CERCLA response action.

The parties have exhaustively briefed the issues

and presented oral argument. Both motions are ripe

for decision. Jurisdiction exists pursuant to 28 U.S.C.

§ 1331.

In October 1984, the United States Army, acting

pursuant to CERCLA, commenced a remedial inves-

tigation/feasibility study (RI/FS) at the Arsenal.' On

November 2, 1984, Colorado was authorized by the

EPA to administer its own hazardous waste manage-

ment program under the Colorado Hazardous Waste

Management Act (CHWMA), Colo. Rev. Stat. § 25-15-

301 et seq. (1989) in lieu of the federal Resource

Conservation and Recovery Act (RCRA), 42 U.S.C.

§ 6901 ef seg. On August 21, 1987, the Arsenal, ex-

cluding Basin F, was listed on the National Priorities

List (NPL). On February 17, 1989, the United States

and Shell Oil Co. submitted, in this court’s case No.

83-C-2379, a Federal Facility Agreement with re-

spect to the Arsenal. That agreement was executed

by the EPA, the Army, the Department of the Inte-

rior, the Agency for Toxic Substances and Disease

Registry and Shell Oil Company.

In November 1984, the Army submitted to the Colo-

rado Department of Health (CDH) a plan to close

Basin F. Almost a year later, in October 1985, the

CDH disapproved the Army’s plan, prompting the

‘Colorado contests when the Army commenced its RI/FS.

(Defendant's motion for partial summary judgment, at 47 n. 1).

43a

Army to submit to the CDH a second closure plan in

December 1985. The CDH also found the Army’s

second plan deficient, and in May 1986, issued its

own Basin F Proposed Partial Closure Plan. Colorado’s

final Modified Basin F Closure Plan was issued Octo-

ber 1, 1986. According to Colorado, after the Army

made clear that it was not going to comply with that

plan, the State amended its complaint in Colorado v.

United States Dept. of Army, No. 86-C-2524 (D. Colo.

November 30, 1987) (first amended complaint) to

seek enforcement of the State plan.

On February 24, 1989, in Colorado v. United States

Dept. of Army, this court responded to motions filed

by the United States to contest Colorado’s attempts

at enforcing compliance with its closure plan, by

stating:

“In the First Amended Complaint, the plaintiff

asserts claims against the Army for: (1) failure to

close Basin F in compliance with the Basin F

Closure Plan (First Claim); (2) failure to comply

with Colorado’s Ground Water Monitoring Regu-

lations, a claim with three subclaims, and essen-

tially a reassertion of three of the claims set forth

in the plaintiff's initial complaint (Second Claim):

and (3) failure to pay annual operating and waste

volume fees, in violation of §§ 100.31(a) and (b)

of State Fee Regulations, 6 CCR 1007-3, Part

100.

x*«* tk

The Army has moved to dismiss the plaintiff's

First Amended Complaint, asserting that the

United States has not waived its sovereign im-

munity as to these claims under RCRA § 6001,

44a

[42 U.S.C. § 6961]. Defendant Army’s argument

in part emphasizes that I presently have pending

before me two actions directed at cleanup of the

Arsenal as a whole. As stated above, these con-

solidated cases are State of Colorado v. United

States, Civil Action No. 83-2386, and United

States v. Shell Oil Company, Civil Action No. 83-

C-2379. Both cases were filed under the Compre-

hensive Environmental Response, Compensation

and Liability Act of 1980 (“CERCLA”), 42 U.S.C.

§ 9601 et seg. CERCLA was amended by the 1986

Superfund Amendments and Reauthorization Act

(“SARA”), Pub.L.No. 99-499, 100 Stat. 1615.

Defendant Army does not dispute that RCRA

§ 6001 [42 U.S.C. § 6961], read in conjunction

with RCRA § 7002 [42 U.S.C. 6972], contains a

waiver of federal sovereign immunity. Rather,

the Army asserts that sovereign immunity is not

waived under those sections when there is an

ongoing CERCLA cleanup action at the site that

addresses hazardous waste requirements that

are the same in substance as those sought to be

enforced by the state under RCRA. In essence,

the Army argues that CERCLA’s enforcement

and response provisions pre-empt and preclude a

state RCRA enforcement action with respect to

the cleanup of hazardous wastes at the Arsenal.”

Colorado v. United States Dept. of Army, 707 F.

Supp. 1562, 1564-65 (D. Colo. 1989).

In that action, this court held that because Basin F

was not listed on the National Priorities List, “RCRA

enforcement by the State is not precluded by

CERCLA... .” Colorado v. United States Dept. of Army,

707 F. Supp. at 1570.

45a

On September 1, 1989, the state issued its Compli-

ance Order seeking to force the Army: (1) to amend

the final closure plan; (2) to close Basin F in a man-

ner protective of human health and the environment

pursuant to the requirements of the amended plan,

the CHWMA; and (3) to comply with the other

CHWMA requirements during the closure process.

Defendants assert that under Colorado’s hazard-

ous waste management program, all hazardous wastes

must be treated, removed from the site, or disposed of

on site in accordance with the state’s approved clo-

sure plan. 6 Colo. Code Regs. § 265.113(a) (1989). To

comply with the CHWMA, a site must, among other

things, be closed in a manner that is protective of

human health and the environment by controlling,

minimizing, or eliminating releases of hazardous

waste to ground or surface waters and to the air, and

by removing or decontaminating contaminated soils.

6 Colo. Code Regs. §§ 265.111(b) and 265.112(b)(4).

As a preliminary matter, I note that in two of their

counterclaims, the state defendants seek civil penal-

ties against the federal government for violating the

CHWMA. Defendants, however, have conceded that

under Mitzelfelt v. Department of Air Force, 903 F.2d

1293 (10th Cir. 1990), those penalties cannot be as-

sessed. In Mitzelfelt the Tenth Circuit held that RCRA

§ 6001, 42 U.S.C. § 6961, did not waive the sovereign

immunity of the United States with respect to civil

penalties. Further, the defendants have provided no

evidence that Congress has enacted any clarifying

language in any amendments to RCRA that would

entitle it to assess civil penalties for violations of

RCRA. Therefore, the plaintiff is entitled to summary

judgment on this issue.

46a

At the heart of the remaining dispute is the ques-

tion whether the State of Colorado has authority to

regulate the Basin F area at the Arsenal. In Colorado

v. United States Dept. of Army, 707 F. Supp. 1562, I

concluded that Colorado could, through enforcement

of the CHWMA, regulate Basin F. Seventeen days

after that ruling, however, on March 13, 1989, the

EPA listed Basin F on the National Priority List

(NPL) to become effective April 12, 1989. Thus, the

dispositive question here is whether placing Basin F

on the NPL divested this court of subject matter

jurisdiction, after years of litigation, over Colorado’s

attempts to enforce the CHWMA at Basin F. The

jurisdiction in question vested when Colorado uv.

United States Dept. of Army was filed on December

15, 1986.

Except as provided by 42 U.S.C. § 9613(a) and (h),

United States District Courts have exclusive original

jurisdiction over all controversies arising under

CERCLA. 42 U.S.C. § 9613(b). Plaintiff asserts that

§ 9613(h) divests this court of subject matter jurisdic-

tion. In pertinent part, that section states:

“Timing of review. No Federal court shall have

jurisdiction ... to review any challenges to re-

moval or remedial action selected under section

104 [42 U.S.C. § 9604], or to review any order

issued under section 106(a) [42 U.S.C. § 9606(a)],

in any action except one of the following:

xk ke

(4) An action under section 310 [42 U.S.C. § 9659]

(relating to citizens suits) alleging that the re-

moval or remedial action taken under section

104 [42 U.S.C. § 9604] or secured under section

47a

106 [42 U.S.C. § 9606] was in violation of any

requirement of this Act. Such an action may not

be brought with regard to a removal where a

remedial action is to be undertaken at the site.”

Although subsections (b) and (h) may appear to be

in conflict, they are not. Subsection (b) provides that

the district courts have exclusive jurisdiction over

controversies arising under CERCLA. Pursuant to

subsection (h), however, that jurisdiction does not

attach until after a remedial action is completed.

Unquestionably, certain portions of CERCLA’s leg-

islative history indicate that Congress did not intend

that § 9613(h) bar pre-completion judicial review in

cases such as this. In deciding a question of statutory

construction, however, I must begin with the words of

the statute. Demarest v. Manspeaker, 111 S.Ct. 599,

602 (1991). Legislative history “can be a legitimate

guide to a statutory purpose obscured by ambiguity,

but ‘[iJn the absence of a clearly expressed legislative

intention to the contrary, the language of the statute

itself must ordinarily be regarded as conclusive.’ ”

Burlington N. R. Co. v. Oklahoma Tax Comm'n, 481

U.S. 454, 461 (1987) (citations omitted).

Moreover, the United States Supreme Court has

held that if a statute’s terms are unambiguous, judi-

cial inquiry into Congressional intent is inappropri-

ate, unless exceptional circumstances dictate other-

wise. Id.; Demarest, 111 S.Ct. at 603. Thus absent

ambiguity in the statutory language, lower federal

courts are bound to apply a hieral interpretation to a

statutes words even where it may be apparent that

Congress must have intended something other than

the narrow, exact meaning of the statutory language.

48a

In another CERCLA case this court proceeded to a

lengthy and expensive trial and thereafter granted

the state injunctive relief based on the court’s read-

ing of the statute as implying authority to employ

mandatory injunction procedures as the most effica-

cious means of providing the state the practical, en-

forceable participation in CERCLA cleanups this court

felt Congress clearly had intended. State of Colorado

v. Idarado Mining Co., 707 F. Supp. 1227 (D. Colo.

1989). The Court of Appeals, however, reversed, ap-

plying a narrow, literal reading of the statute that

denied the state injunctive relief. State of Colorado v.

Idarado Mining Co., 916 F.2d 1486 (10th Cir. 1990).

In United States v. Durre, 87-CR-386 (D. Colo.

1987), this court looked beyond literal statutory lan-

guage to conclude that 28 U.S.C. § 1821(a)’s legisla-

tive history indicated that Congress did not intend

prison inmates to be paid witness fees when subpoe-

naed and brought by writ to court to testify on behalf

of fellow inmates. Similarly interpreting congressional

intent, the Tenth Circuit affirmed in a split decision.

Demarest v. Manspeaker, 884 F.2d 1343 (10th Cir.

1989). But the United States Supreme Court reversed,

holding that resort to legislative history was im-

proper because the statute was unambiguous.

Demarest, 111 S.Ct. at 604. Ninety-one days after the

Supreme Court announced its decision in Demarest,

the President signed into law a bill plainly stating

that incarcerated witnesses are not entitled to wit-

ness fees under § 1821, thus expressing the intent

this court initially, but erroneously, had found to be

implied. Thus was proved the adage that the best

way to change an unreasonable law is to enforce it.

Section 9613(h) unambiguously indicates that this

court lacks jurisdiction for pre-completion review of

49a

the remedial action presently underway at Basin F

now that it has been placed on the NPL. Therefore I

conclude, as I must, that judicial inquiry into Con-

gressional intent is prohibited. The statute’s legisla-

tive history is irrelevant; if Congress intends a differ-

ent result it is for Congress to amend the statute.

I note that this court has been divested of subject

matter jurisdiction by the executive branch’s action,

through its agency, the EPA, (a party to this overall

litigation) placing Basin F on the NPL. In other words,

the executive, at the request of its litigant agency,

has divested a federal court of its power to fully

adjudicate a matter that has been in litigation before

it for years. By thus granting the executive branch

authority to place sites on the NPL, Congress has

apparently delegated a portion of its authority to

decide what cases a federal district court has the

power to hear.

While it seems irrational in the context of separa-

tion of powers to allow the executive branch, after

litigating a suit for years, suddenly to divest the

court of jurisdiction by the administrative act of add-

ing the site at issue to a list, that is the plain meaning

of the statute’s words. Unfortunately, CERCLA was

enacted rather hastily near the end of a session and

as the result of many last minute compromises. Thus

some of the statute’s provisions are not clear, and it

contains many interstitial spaces left by Congress to

be filled by judicial interpretation. The language here

at issue, however, which results in revoking this

court’s subject matter jurisdiction, is clear.

Article III of the United States Constitution and

the Judiciary Act of 1789 relegate to Congress author-

ity to define the jurisdiction of this court. Thus a

50a

court can be divested of statutory jurisdiction in a

particular case by legislation even if not enacted

until after the court has begun processing the case.

Bruner v. United States, 343 U.S. 112, 115 (1952);

compare Phillips Petroleum Co. v. United States En-

vironmental Protection Agency, 803 F.2d 545, 551

(10th Cir. 1986) (Congress may expand a court’s ju-

risdiction while a case is pending before it.)

Here, however, the question is somewhat more com-

plicated than in Bruner; t.e., whether Congress may

be statute delegate to an executive branch adminis-

trator acting in the name of the President, the power

to divest a federal district court of jurisdiction during

litigation of a case over which that court otherwise

has jurisdiction. Recent separation of powers cases

have not bolstered, but rather have eroded, that his-

toric buttress of judicial branch independence. See,

e.g., Mistretta v. United States, 488 U.S. 361 (1989)

(delegation by Congress to sentencing commission

appointed by the President with the advice and con-

sent of the Senate). Therefore there is no reason for

this court to anticipate that the Supreme Court would

disapprove the delegation by Congress to the Presi-

dent in this case.

Any attempt by Colorado to enforce the CHWMA

would require this court to review the remedial ac-

tions selected under 42 U.S.C. § 9604 prior to their

completion. Such a review is expressly prohibited by

§ 9613. Therefore, although the statute’s legislative

history indicates that Congress did not intend to

foreclose such judicial review in all situations, I con-

clude that until the ongoing remedial action at Basin

F is completed, CERCLA prohibits this court from

reviewing it. In addition, Colorado is precluded from

5la

enforcing Final Amended Compliance Order No. 89-

05-2301.

Accordingly IT IS ORDERED that:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

Plaintiffs motion for summary judgment is

granted;

Defendants’ motion for summary judgment is

denied;

Defendants’ counterclaims are dismissed;

The United States shall not be subjected to

civil penalties provided in Colo. Rev. Stat. § 25-

15-309 (1982), and the defendants shall not

attempt to impose upon or collect from the

United States any such civil penalties for ac-

tions arising out of the United States’ activi-

ties at the Rocky Mountain Arsenal:

Defendants shall not take any action to en-

force their Final Amended Compliance Order

No. 89-05-2301;

The parties and their counsel shall meet and

confer with the parties and their counsel from

cases 83-C-2379, 83-C-2386 and 86-C-2524

within eleven days after this memorandum

order is filed to determine what affect the

order has on those cases. They are encouraged

to use the good offices of the Special Master

previously appointed in facilitating this con-

ference. The parties shall report to this court

in writing by August 30, 1991, stating the

results of that meeting. The parties shall jointly

submit a brief draft order disposing of all mo-

tions in those cases affected by this order in a

manner consistent with this order; and

The clerk of this court shall enter a final judg-

ment consistent with this opinion.

52a

Dated at Denver, Colorado August 14, 1991.

BY THE COURT:

/s/_ Jim R. Carrigan

JIM R. CARRIGAN

United States Disirict Judge

CERTIFICATE OF MAILING

I certify that I mailed a true and correct copy of the

Order signed by Judge Carrigan to:

Magistrate Hilbert Schauer

Robert Foster, Esq.

Bradley Bridgewater, Esq.

U.S. Department of Justice

999 18th St. #501

Denver, CO 80202

James Ellman, Esq.

Nettie Corrigan, Esq.

First Assistant Attorney General

1560 Broadway #250

Denver, CO 80202

Linnea Brown, Esq.

1700 Lincoln #4100

Denver, CO 80203

Michael J. Norton

U.S. Attorney

/s/ ANITA MOORE

Deputy Clerk

Dated: August 14, 1991

Re: 89-C-1646

53a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

_ Civil Action No. 89-C-1646

UNITED STATES OF AMERICA

versus

STATE OF COLORADO AND

THE COLORADO DEPARTMENT OF HEALTH

[Filed Aug. 15, 1991]

JUDGMENT

Pursuant to and in accordance with the Order en-

tered by the Honorable Jim R. Carrigan, on August

14, 1991.

Itis ORDERED that Plaintiff, the United States of

America’s motion for summary judgment is granted:

defendants, State of Colorado and the Colorado De-

partment of He. Ith’s motion for summary judgment

is denied; defeudants’ counterclaims are dismissed;

and the United States shall not be subjected to civil

penalties; defendants shall not attempt to impose

upon or collect from the United States any civil pen-

alties for actions arising out of the United States’

activities at the Arsenal; defendants shall not take

54a

any action to enforce their Final Amended Compli-

ance Order No. 89-05-2301.

FOR THE COURT:

James R. Manspeaker, Chief

By:

/s/ Stephen P. Ehrlich

Chief Deputy Clerk

Approved:

/s/_ Jim R. Carrigan

United States District Judge

55a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 91-1360

UNITED STATES OF AMERICA

versus

STATE OF COLORADO AND

THE COLORADO DEPARTMENT OF HEALTH

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING IN BANC

Entered June 30, 1993

ORDER

Before McKay, CHIEF JUDGE, and Ho.itoway, Loaan,

SEYMOUR, Moore, ANDERSON, TACHA, BLADOCK,

BRORBY, EBEL and KELLY, Circuit Judges and

O’CoNnNoR*, Senior District Judge.

This matter comes on from consideration of

appellee’s petition for rehearing and suggestion for

rehearing in banc.

* Honorable Earl E. O’Connor, Senior Judge, United States

District Court for the District of Kansas, sitting by designation.

56a

Lpon consideration whereof, the petition for re-

hearing is denied by the panel that rendered the

decision.

In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing in

banc was transmitted to all of the judges of the court

who are in regular active service. No member of the

panel and no judge in active service on the court

having requested that the court be polled on rehear-

ing in banc, Rule 35, Federal Rules of Appellate

Procedure, the suggestion for rehearing in banc is

denied.

ENTERED FOR THE COURT:

By:

/s/_ Robert L. Hoecker

Clerk

57a

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 91-1360

UNITED STATES OF AMERICA

versus

STATE OF COLORADO AND

THE COLORADO DEPARTMENT OF HEALTH

Entered July 9, 1993

ORDER

Before McKay, CHieF JUDGE, and Ho..oway, Loaan,

SEYMOUR, Moore, ANDERSON, TACHA, BLADOCK,

BrorBy, EBEL and KELLY, Circuit Judges and

O’Connor*, Senior District Judge.

The order issued June 30, is reissued nunc pro tunc

to read as follows:

This matter comes on for consideration of appellee’s

petition for rehearing and suggestion for rehearing

in banc.

* Honorable Earl E. O’Connor, Senior Judge, United States

District Court for the District of Kansas, sitting by designation.

58a

Upon consideration whereof, the petition for re-

hearing is denied by the panel that rendered the

decision, except insofar as the opinion of April 6,

1993, was amended June 30, 1993.

In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing in

banc was transmitted to all of the judges of the court

who are in regular active service. No member of the

panel and no judge in active service on the court

having requested that the court be polled on rehear-

ing in banc, Rule 35, Federal Rules of Appellate

Procedure, the suggestion for rehearing in banc is

denied.

ENTERED FOR THE COURT:

By:

/s/ Robert L. Hoecker

Clerk

59a

APPENDIX F

DEPARTMENT OF HEALTH

STATE OF COLORADO

FINAL AMENDED COMPLIANCE ORDER No. 89-05-2301

IN THE MATTER OF UNITED STATES DEPARTMENT OF

THE ARMY, RocKyY MOUNTAIN ARSENAL

This Final Amended Compliance Order (“Final

Compliance Order”) is being issued by the Colorado

Department of Health through the Hazardous Mate-

rials and Waste Management Division (“CDH”) to

the United States Department of the Army (“Army”)

pursuant to CDH’s authority under Section 25-15-

308, C.R.S. (1982 & 1988 Supp.). This Final Amended

Compliance Order No. 89-05-2301 replaces and su-

persedes Compliance Order No. 89-05-2301 issued on

May 23, 1989, and the amendment dated May 30,

1989, and the Amended Compliance Order dated June

16, 1989.

GENERAL FINDINGS

1. The United States is the owner and the Army is

the operator of the Rocky Mountain Arsenal (“Arse-

nal”). The Arsenal is located in Commerce City, Colo-

rado, and occupies approximately 27 square miles

north of Denver's Stapleton Airport. Beginning in

1942, the United States has used the Arsenal for the

manufacture, assembly, detoxification, and disposal

60a

of chemical warfare agents, chemical products, incen-

diary munitions, chemical munitions, and chemical

agents, and other hazardous materials. From 1946

until about 1987, portions of the Arsenal were leased

to private industry.

2. In 1980, the Army submitted to the Environ-

mentai Protection Agency (“EPA”) a timely notifica-

tion form and Part A of its Resource Conservation

and Recovery Act (“RCRA”) permit application for

the Arsenal, and thereby achieved interim status for

the Arsenal pursuant to RCRA Section 3005(e). The

Army’s Part A permit application included Basin F as

a hazardous waste surface impoundment.

3. The Army constructed Basin F, a 92.7 acre

lined basin, in 1956 for the disposal of contaminated

Jiquid wastes generated in the course of Army and

Shell Oil Company manufacturing and processing

activities at the Arsenal. Basin F is located in section

26 of the Arsenal.

4. Basin F was used from 1957 until at least 1982

for the disposal of various hazardous and acutely

hazardous liquid wastes, many of which are listed

acutely hazardous wates, listed toxic hazardous

wastes, and exhibit the characteristics of hazardous

waste.

5. During 1988, the Army removed most of the

liquid hazardous waste remaining in Basin F and is

now storing that liquid in three tanks and at least

one surface impoundment.

6. The Army continues to store soils containing

acutely hazardous and toxic wastes in Basin F.

Unexcavated contaminated soils are stored within

Basin F, and excavated contaminated soils are stored

in a waste pile which is situated within Basin F.

7. The Army submitted the original RCRA Part B

permit applicatior for the Arsenal to the EPA on or

6la

about May 23, 1983, and submitted the original Ba-

sin F closure plan to EPA the following month.

8. On November 2, 1984, Colorado received au-

thorization from EPA to enforce its state hazardous

waste management laws in lieu of RCRA. 49 Fed.

Reg. 41,036 (1984).

9. In November 1984, upon receipt by Colorado of

authority from EPA to enforce state hazardous waste

management laws in lieu of RCRA, the Army submit-

ted its RCRA Part B permit application for the Arse-

nal and its Basin F RCRA closure plan to CDH.

10. After several iterations, CDH issued the final,

approved Basin F Closure plan (“Basin F Closure

Plar.”) on October 1, 1986, pursuant to 6 CCR 1007-

3, Part 265, subpart G.

11. The Basin F Closure Plan became effective

October 2, 1986, as a final order of CDH.

12. On October 14, 1987, the Army informed CDH

of its opinion that Basin F was no longer appropriate

for RCRA closure jurisdiction and that it was there-

fore withdrawing the Basin F Closure Plan and ter-

minating interim status.

13. The Army has performed a partial cleanup of

Basin F pursuant to what it has termed an “interim

response action” purportedly in compliance with

CERCLA.

14. On February 24, 1989, the Federal District

Court of Colorado held that a CERCLA action does

not take precedence over RCRA enforcement actions

and that state RCRA-based actions are preserved

despite an ongoing CERCLA action. State of Colo-

rado v. United States Dept. of the Army, Civil Action

No. 86-C-2524, at pp. 16, 18.

15. Basin F and all units containing Basin F haz-

ardous waste are regulated by state hazardous waste

62a

management laws and regulations pursuant to Sec-

tion 25-15-303, C.R.S. (1982 & 1988 Supp.).

16. On May 1, 2, 10, 15, 17, 19, 22, and 23, 1989,

inspectors for CDH conducted inspections pertaining

to hazardous waste management units containing

Basin F hazardous waste to evaluate compliance with

the state hazardous waste management laws and

implementing regulations.

17. On May 23, 1989, CDH issued Compliance

Order No. 89-05-2301 to the Army. That Order was

received by the Army via United States mail and/or

by fax on May 24, 1989. That Order was also received

by the Army by certified mail on May 24, 1989.

18. On May 30, 1989, CDH issued an Amended

Compliance Order No. 89-05-2301. That Order was

received by the Army via hand delivery on May 30,

1989.

19. OnJune 16, 1989, CDH issued Amended Com-

pliance Order No. 89-05-2301. That Amended Com-

pliance Order was received by the Department of

Justice on June 16, 1989 and by the Army at the

Arsenal on June 19, 1989 via hand delivery. The

Amended Compliance Order invited the Army to an

Informal Conference and invited the Army to provide

CDH with information to contest any findings or

explain any circumstances that tend to'mitigate the

stated violations.

20. On Friday, July 7, 1989, the Army submitted

te CDH a draft “Basin F Interim Response Action

Operation/Maintenance Manual and Inspection Pro-

cedures” CO & M Plan”). The O & M Plan includes

inspection schedules, a ground water monitoring plan,

an air quality monitoring plan, and a contingency

plan for Basin F. Such schedules and plans were

63a

ordered in the Amended Compliance Order dated

June 16, 1989.

21. The O & M Plan was not approved by CDH

because significant portions failed to comply with

RCRA/CHWMA regulations. The reasons therefore

were provided to the Army on August 7, 1989.

22. An Informal Conference was requested by the

Army. That conference was held on Monday, July 10,

1989 and was transcribed by a certified court re-

porter at the request of the Department of Justice.

23. On July 17, 1989 and August 21, 1989. the

Army submitted to CDH documents regarding lim-

ited measurements and sampling from the leak de-

tection systems of various Basin F hazardous waste

management units and and [sic] on July 17, 1989,

submitted a metallurgist’s letter regarding Tank No.

2. The Army has submitted no further information

regarding the status of the Basin F hazardous waste

Management units.

24. The Amended Compliance Order is revised in

order to reflect information received from the Army

since the issuance of the Amended Compliance Or-

—— der.

25. On July 14, 1989, the State of Colorado re-

ceived final authorization to operate its hazardous

waste management program as revised in the Sep-

tember 30, 1988 application in lieu of the federal

hazardous waste program.

26. The Amended Compliance Order is revised in

order to include the regulations authorized for state

implementation on July 14, 1989 by EPA.

Ere

64a

FIRST AND SECOND VIOLATIONS

(Failure To Comply With The Basin F Closure Plan)

27. The General Findings set forth in paragraphs

1 through 26 of this Final Compliance Order are

incorporated by reference as though fully set forth

herein.

Findings Of Fact

28. The Basin F Closure Plan provides that clo-

sure activities occur generally as follows. AH liquids

were to be removed from Basin F by October 1987,

stored on-site in tanks, and finally treated or dis-

posed by October 1988. The Army was to propose a

final excavation plan for the cleanup of Basin F con-

taminated soil by October 1987, and by April 1988 all

contaminated Basin F solids were to be stored in an

interim waste pile. By October 1988, the Army was to

submit work plans for the treatment and disposal of

Basin F solids,and by October 1991, all solids result-

ing from treatment of Basin F liquid and/or excava-

tion of Basin F are to be finally treated or disposed.

Concurrently with the removal and storage of haz-

ardous waste, the Army is to identify the extent of

waste migration beneath Basin F and continue ground

water assessment monitoring. Finally, by October

1987, an interim ground water containment/treat-

ment system was to be operated north of Basin F.

29. The Army has stated that its activities, with

respect to Basin F hazardous waste, have not been

performed pursuant to the Basin F Closure Plan. It

has violated almost every provision of the Basin F

Closure Plan. The Army has failed to comply with

schedules, health and safety requirements, require-

can

65a

ments for submission of work plans, and other re-

quirements contained in the Basin F Closure Plan.

Examples include the Army’s failure to: install an

interim groundwater treatment system; to conduct

the required soil contamination assessment; to pro-

pose soil performance standards; to excavate to such

soil performance standards and place all such exca-

vated soils into a waste pile; to timely rem*ve ali the

liquids from Basin F; to place all Basin F liquids in

storage tanks; and to complete treatment and dis-

posal of Basin F liquids.

Conclusions Of Law

30. Pursuant to 6 CCR 1007-3, Section 265.113(a)

(10-87), all hazardous wastes must be treated, re-

moved from the unit, or disposed of onsite in accor-

dance with the approved closure plan. Pursuant to

Section 265.113(b), closure activities must be com-

pleted in accordance with the approved closure plan.

31. The Army’s failure to comply with the sched-

ules, perform prescribed closure activities, submit

the required work plans, and comply with all other

requirements of the Basin F Closure Plan constitutes

violations of 6 CCR 1007-3, Section 265.113(a) and

(b) (10-87).

32. The Army’s failure to comply with the sched-

ules, perform prescribed closure activities, submit

the required work plans, and comply with all other

requirements of the Basin F Closure Plan constitutes

violations of a final agency order, the Basin F Closure

Plan.

| a

66a

THIRD VIOLATION

(Failure to Amend the Basin F Closure Plan)

33. The General Findings set forth in paragraphs

1 through 32 of this Final Compliance Order are

incorporated by reference as though fully set forth

herein.

Findings Of Fact

34. The Army claims unexpected events have oc-

curred during closure activities. The Army has made

major changes in operations and facility design which

affect the Basin F Closure Plan and which were not

authorized by the closure plan. For example, the

Army characterizes the existence of millions of gal-

ions in excess of the estimated quantity of Basin F

liquids as an unexpected event. The Army did not

have the tank capacity to contain all of the Basin F

liquid hazardous waste and constructed surface im-

poundments for storage of the waste, thus altering

the facility design and operation.

35. The Army changed the expected year of clo-

sure of Basin F. The Basin F Closure Plan requires

closure of Basin F and final management of liquid

and solid hazardous waste by October 1991. The

Army’s projections for a decision regarding the man-

ner of final closure of Basin F and management of

Basin F hazardous wastes is scheduled for 1993. The

final closure of Basin F and management of Basin F

hazardous waste probably will not be complete for

years thereafter.

36. The Army failed to amend the Basin F Clo-

sure Plan even though there were claimed unex-

pected events during closure, changes in the opera-

tions and facility design, and changes in the expected

year of closure.

67a

Conclusions of Law

37. 6 CCR 1007-3, Section 265.112(c)(1) (9-88),

requires that an owner or operator must amend a

closure plan whenever: (i) changes in operating plans

or facility design affect the closure plan; or (ii) there

is a change in the expected year of closure; or (iii) in

conducting partial or final closure activities, unex-

pected events require a modification off the closure

plan. Section 265.112(c)(2) requires submittal of an

amendment 60 days prior to a proposed change in

facility design or operation and no later than 30 days

after an unexpected event occurs during closure.

38. The Army’s failure to amend the Basin F Clo-

sure Plan when there were changes in the operating

plan and design, a change in the expected year of

closure, and unexpected events constitutes violations

of 6 CCR 1007-3, Section 265.112(c) (9-88).

FOURTH, FIFTH, AND SIXTH VIOLATIONS

(Storage of Hazardous Waste Without a Permit and

Without Interim Status—Tanks)

39. The General Findings, Findings of Fact, and

Conclusions of Law set forth in paragraphs 1 through

38 of this Final Compliance Order are incorporated

by reference as though fully set forth herein.

Findings Of Fact

40. During 1987, Shell, pursuant to an agree-

ment with the Army, constructed three tanks, each

with a capacity of approximately 1.33 million gallons,

for the purpose of storing hazardous waste pumped

from Basin F. The tanks are located northeast of

Basin F. A surface impoundment with a capacity of

68a

approximately forty thousand gallons was also con-

structed adjacent to the tanks and was used in the

transfer of Basin F liquid hazardous waste to the

tanks.

41. From May 1988 urtil about mid-September

1988, the Army pumped Basin F liquid hazardous

waste from Basin F to trucks, from the trucks to a

surface impoundment associated with the tanks, and

then into the tanks. Approximately 1 million gallons

of liquid were placed in each tank. According to a

letter by Don Campbell, Deputy Program Manager,

Rocky Mountain Arsenal, dated January 10, 1989,

the three tanks were finally topped off with Basin F

liquid hazardous waste on or about December 31,

1988.

42. The three tanks currently store a total of ap-

proximately 4 million gallons of Basin F liquid haz-

ardous waste. According to the Army’s representa-

tions during the May 1989 inspection, the Basin F

liquid hazardous waste will remain stored in the

tanks until completion of treatment and disposal of

Basin F liquid hazardous waste, scheduled for 1993.

43. The Basin F Closure Plan required tanks for

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