# Petition for Writ of Certiorari — United States v. Colorado > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0781%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1092 ## Text 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 t~ 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 we Le <4 2 ; a3 oa 73 fe > (im ee TO ae raliga s BE ant ac hihes VER ae Ck Sallie PRI eS, Se MS Sas ga ee ABeg anee, SAT aa Eas TAINS WS MY me ET CN Eye 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) I] 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 IV 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 V 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. — — ww © — “+ Sond . . . , » » > , , ’ ‘ ‘ ‘ ‘ . ‘ ’ ‘ ‘ wo) | 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 VI 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): | | eee 13 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) 2 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) 4 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 6 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 8 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). 9 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. 10 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, 1] 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 12 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. 13 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. 14 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 a 15 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 16 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). 17 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 18 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 19 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- 20 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. 21 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. 22 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 23 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). 24 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- 25 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 26 (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). 27 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) 2a 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). R. 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 3a 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. A. 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, | 4a 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). 5a 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’). B. 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. 6a 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 Ee 7a 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. 8a 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). 9a 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. A. 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. B. 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. C. 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. V. 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. A. 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 B. 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). C. 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’). eo 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) i [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0781%3A1. Public record. Not legal advice.