Opposition Brief — United States v. Colorado

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

UNITED STATES OF AMERICA,

Petitioner,

vs.

STATE OF COLORADO AND COLORADO DEPARTMENT

OF HEALTH,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

STATE OF COLORADO AND COLORADO DEPARTMENT

OF HEALTH TO THE UNITED STATES’ PETITION FOR

WRIT OF CERTIORARI

GALE A. NORTON CASEY A. SHPALL*

Attorney General First Assistant Attorney General

STEPHEN K. ERKENBRACK MARY L. LIVINGSTON

Chief Deputy Attorney General Assistant Attorney General

TIMOTHY M. TYMKOVICH

Solicitor General Attorneys for Respondents

PATRICIA S. BANGERT

Deputy Attorney General Natural Resources/CERCLA Unit

1525 Sherman Street, Sth Floor

Denver, Colorado 80203

Telephone: (303) 866-5131

*Counsel of Record

BEST AVAILABLE COPY [a

QUESTION PRESENTED

The State of Colorado issued a compliance order to correct

the Army’s mismanagement of hazardous waste at the Basin F area

of the Rocky Mountain Arsenal. The question presented is whether

the Army’s initiation of CERCLA activities bars the State from

enforcing its EPA-authorized RCRA hazardous waste management

authority, including inspections, monitoring, and emergency response

requirements.

TABLE OF CONTENTS

REASONS WHY THE PETITION SHOULD BE DENIED . .

I. A UNANIMOUS COURT OF APPEALS

CORRECTLY GAVE EFFECT TO EACH

PROVISION OF CERCLA AND RCRA. THUS.

THERE IS NO CONFLICT REGARDING

FEDERAL LAW REQUIRING RESOLUTION BY

NE as ohare ee. rn kau ws

A. Congress Crafted RCRA and CERCLA to

Work Together as a Comprehensive

Regulatory Scheme to Address the Hazardous

ee

B. The Petition Does Not Present an Adequate

Legal Question Warranting Review by the

re rn ie i tO

|. Day-to-day Management of Hazardous Wastes

Under CHWMA is Expressly Preserved

Despite the Designation of the Arsenal as a

a ee

Te

TABLE OF CONTENTS

PAGE

2. The United States’ Arguments that CERCLA does

not Preserve State Authority are Misplaced... 22

a. Colorado’s Exercise of Independent Authority

is not a "Challenge" Prohibited by CERCLA

aes RTI, gc 6 4 bs 6 a we ok 8 a ein sw ae

b. CERCLA Section 122(e)(6) does not Prohibit

Colorado from Independently Enforcing its

Hazardous Waste Laws. ......-....-.--- 24

II. THERE IS NO SPLIT IN THE CIRCUITS AND NO

OTHER CIRCUIT HAS ADDRESSED THE ISSUE

WHICH WAS BEFORE THE TENTH CIRCUIT. .. 25

III. BECAUSE CONGRESS IS RECONSIDERING

CERCLA THIS TERM, REVIEW BY THIS COURT

IS NOT WARRANTED IN THIS CASE. ........ 27

EE gs oe cee hse came ee ne epawseane 28

SE, cg 1 ss ak ae ere ko a es ae ee eo A-1

I OE a ooo bs aaa a 6 ol ae AGS a ee eee B-1

iV

TABLE OF AUTHORITIES

CASES PAGE

Boarhead Corp. v. Erickson, 923 F.2d 1011 (3d Cir. 1991)... 25

Crooks v. Harrelson, 282 U.S. 55 ack ee oe 27

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982) ... 27

New York v. United States, 112 S. Ct. 2408 | Se ee eae. 1]

Primate Protection League v. Tulane Education Fund, 111 S.

ee): | nae mene « 5 23

Schalk v. Reilly, 900 F.2d 1091 (7th Cir.), cert. denied, 498

Wa WROD oo exec eee ee 25

State of Colorado v. United States Dep't of the Army, 707 F.

Supp. 1569 (D. Colo. 1989) ................ 6, 7

et) Ee eI Pp A 25, 26

STATUTES AND REGULATIONS

Colorado Hazardous Waste Management Act, Colo. Rev.

Stat. §§ 25-15-301 et seg. (1989 & Supp. 1993) ...... 3

mUSC. 8 ME) 0... 23

TABLE OF AUTHORITIES

STATUTES AND REGULATIONS PAGE

Resource Conservation and Recovery Act of 1976, §§ 1001-

11012. 42 U.S.C. §§ 6901-6987 (1982 & Supp. V

Pree ie te ee a 2,3

§ 3004(u), 42 U.S.C. § 6924(u) -..-- eee eee 3

§ 3004(v), 42 U.S.C. § 6924(v) ..--- eee ee eee 3

§ 3006(b), 42 U.S.C. § 6926(0) ..-.--- eee eres 3, 12

§ 3006(d), 42 U.S.C. § 69264) .--.--- eee 12

§ 3008(h), 42 U.S.C. § 6928(h) ....-- eee eer ere 3

§ 6001, 42 U.S.C. $961 ... 2... eee cece ee eeeee: 12

Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, §§ 101-405, 42 U.S.C. §§

9601-9675 (1988 & Supp. V).....--. 2-2 eee: 1,3

§ 106(a), 42 U.S.C. § 9606(a) ........ 66. 11, 18-20

§ 113(h), 42 U.S.C. §9613(h) ... 0... ee. 22, 23, 25

§ 114(a), 42 U.S.C. § 9614) .....-..------- passim

§ 120, 42 U.S.C. $9620... 2... - ee eee eee eee 12

§ 120(a), 42 U.S.C. §9620(a) .....- 2-22 ee eee eee 6

§ 120(), 42 U.S.C. § 9620) .....-----. eee passim

vi

TABLE OF AUTHORITIES

STATUTES AND REGULATIONS

@ 121, 42 U.S.C. $9621 ............

RULES

49 Fed. Reg. 41,036 (Oct. 19, 1984)....__-

32 Fed. Reg. 27619 .................

54 Fed. Reg. 10,522-23 (1989) ......._._.

54 Fed. Reg. 10512, 10515-16 (Mar. 13. 1989)

54 Fed. Reg. 10523 (1989) .........._

a

LEGISLATIVE HISTORY

132 Cong. Rec. $14895 (daily ed. Oct. 3, 1986)

Vii

TABLE OF AUTHORITIES

LEGISLATIVE HISTORY PAGE

132 Cong. Rec. $14918 (daily ed. Oct. ara 20

138 Cong. Rec. H9136-37 (daily ed. Sept. 23, 1992) ....... 14

Federal Facilities Compliance Act of 1992, P.L. 102-386,

106 Stat. 1505 (Oct. 6, 1992) ..... re ae wee 13

H.R. Rep. No. 141, 101st Cong., Ist Sess. 3 (1989) ....... 13

H.R. Rep. No. 253, 99th Cong., 2d Sess. 266 (1985) ...... 22

MISCELLANEOUS

EPA, Federal Facility Compliance Strategy, at VII-1

(November 1988) ......----- +e erect reeee 14

Greater State Role, National Standards Advocated by EPA,

Agency Official Testifies, 24 Env’t Rep. (BNA) 1229

(Nov. 5, 1993) . 0... cc wcrc cece ccc nccens 27

Mark Squillace, Cooperative Federalism Under the Surface

Mining Control and Reclamation Act: Is This Any

Way to Run a Government?, 15 Env. Law Rptr.

10039, 10039 (Feb. 1985) ........---- ee eeeee 11

viii

No. 93-786

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

UNITED STATES OF AMERICA,

Petitioner,

VS.

STATE OF COLORADO AND COLORADO DEPARTMENT

OF HEALTH,

Respondents.

BRIEF IN OPPOSITION FOR RESPONDENTS

STATE OF COLORADO AND COLORADO DEPARTMENT

OF HEALTH TO THE UNITED STATES’ PETITION FOR

WRIT OF CERTIORARI

STATUTORY PROVISIONS INVOLVED

Section 114(a) of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980 (CERCLA), 42

U.S.C. 9601-9675, provides:

(a) Additional State liability or requirements

with respect to release of substances within

State.

Nothing in this chapter 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).

Section 120(i) of CERCLA provides:

(i) Obligations under Solid Waste Disposal

Act

~

Nothing in this section shall affect or impair the

obligation of any department, agency, OF

instrumentality of the United States to comply with

any requirement of the Solid Waste Disposal Act

(including corrective action requirements).

42 U.S.C. § 9620(i).

Section 302(d) of CERCLA provides in relevant part:

(d) 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 common

law, with respect to releases of hazardous substances

or other pollutants or contaminants.

42 U.S.C. § 9652(d). -

Other related CERCLA provisions are reproduced in the

appendix to this brief in opposition, as are relevant portions of the

Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§

6901-6987.

STATEMENT OF THE CASE

To meet the burgeoning task of managing and cleaning up

toxic waste facilities that pose threats to public health and the

environment, Congress has legislated a comprehensive enforcement

2

scheme of compatible laws that give both the federal and State

governments active roles. Central to this scheme are the Resource

Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6987

("RCRA"), and the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675

("CERCLA"). RCRA sets up a management program to deal with

hazardous materials from _ initial generation through treatment,

storage, and final disposal.'_ The United States Environmental

Protection Agency ("EPA") may authorize states to "carry out" their

own hazardous waste programs "in lieu of" the federal RCRA. 42

U.S.C. § 6926(b).? As the court of appeals explained, RCRA

establishes a prospective cradle-to-grave regulatory program for

hazardous waste generated, treated or stored after 1980. Petitioner’s

Appendix ("Pet. App.") at 5a. CERCLA, on the other hand, contains

no substantive requirements or standards for the daily operation and

management of hazardous waste sites; it is a remedial statute designed

for responding to and financing the actual cleanup of contaminated

sites. Pet. App. at 6a-7a.

The present case arises out of Colorado’s efforts to exercise

its federally-authorized role in the management and cleanup of

hazardous wastes at the Rocky Mountain Arsenal located northeast of

Denver, Colorado. The Arsenal is a 27-square mile, federally-owned

facility which has been operated by the United States Army since

1942. For most of the intervening 50 years, the Army generated,

treated, stored and disposed of hazardous materials at the Arsenal,

such as pesticides, nerve gas and byproducts of its chemical warfare

' RCRA also provides for corrective action where treatment, storage or

disposal units have leaked, releasing hazardous wastes into the environment.

42 U.S.C. § 6924 (u), (v) (RCRA § 3004 (u), (v)), 42 U.S.C. § 6928 (h)

(RCRA § 3008 (h)). See App. infra pp. A-1 to A-3.

* Colorado’s program, the Colorado Hazardous Waste Management Act,

Colo. Rev. Stat. §§ 25-15-301 - 313 (1989) ("CHWMA"), was authorized

in 1984. 49 Fed. Reg. 41,036 (Oct. 19, 1984).

3

a

manufacturing activities. Since 1989, the sole mission of the Army

at the Arsenal has been site cleanup.

The crux of the present litigation is not who has authority to

determine the appropriate remedy for the entire Arsenal, as the

United States claims (United States’ Petition ["Pet."] at 11), but rather

the proper management of huge quantities of liquid and solid

hazardous wastes from the 92.7 acre waste pond within the Arsenal

known as Basin F- See Pet. App. at 3a. This is a critical distinction.

RCRA regulation of on-going hazardous waste management activities

requires compliance with protective procedures not contemplated by

the CERCLA process. For example, unlike RCRA, CERCLA does

not address the need for routine inspections of equipment and waste

storage units to ensure their physical integrity. See ARARs

discussion infra p. 21. Thus, RCRA fills a regulatory void in the

CERCLA process for the day-to-day management of hazardous wasies

and the units in which they are stored, treated or disposed.’

3 The Basin F experience demonstrates the unique and necessary role

RCRA plays in the management of hazardous wastes at CERCLA sites. In

closing Basin F to eliminate the source of extensive groundwater

contamination, liquid and solid hazardous wastes were removed and placed

into newly constructed storage units pending ultimate treatment. These

storage units (3 tanks, 2 ponds, and a waste pile) still store Basin F wastes

today, and are typical of the type of facility regulated by RCRA. Colorado’s

Final Amended Compliance Order ("FACO") reveals that the CERCLA

process, as employed by the Army, failed to address routine management of

these units once constructed. Thus, leaks in two tanks and breached primary

liners in the ponds and wastepile went undetected until after the State

conducted its RCRA inspections. See FACO paras. 16, 123-24, 133, 173-

194, Pet. App. at 62a, 82a, 83a, 94a-97a. Those inspections discovered the

Army’s lack of routine recordkeeping and inspection procedures ordinarily

designed to monitor the integrity of storage units. Id. at paras. 120-134,

223-228, Pet. App. at 82a-84a, 103a. Such procedures are fundamentai

requirements of RCRA. The conditions found by the State in its inspections

underscores the need for these requirements to protect the health and

environment of the citizens of Colorado.

4

i

The facts of this case are not as presented by the United

States in its petition. The State will attempt to correct the

misstatements of fact below.‘

The Army initially conceded that RCRA applies to Basin F.

At the time CERCLA was enacted in December, 1980, the Army

admitted that RCRA properly applied to portions of the Arsenal,

including Basin F. The Army accordingly submitted the required

RCRA Part A permit application to EPA in November, 1980.° The

Part A application identified Basin F as a hazardous waste surface

impoundment subject to RCRA regulation. In 1982, the Army

entered into a Memorandum of Agreement with the State of

Colorado, the EPA, and Shell Oil Company,° which recognized

Basin F as a RCRA hazardous waste Storage facility, and by which

the Army agreed to conduct closure and post-closure operations at the

basin pursuant to RCRA and “applicable State requirements." In

1983, the Army submitted to EPA a revised RCRA Part A application

and a detailed Part B application, which included a RCRA closure

plan for Basin F. After review, both the EPA and the Colorado

Department of Health ("CDH") declared the closure plan deficient.

In May 1984, the EPA issued a Notice of Deficiency to the Army for

its entire Part B RCRA application, which included requirements for

several of the Arsenal’s RCRA units and, notably; Basin F.

* "(T]he brief in opposition should address any perceived misstatements

of fact or law set forth in the petition which have a bearing on the question

of what issues would properly be before the Court if certiorari were

granted.” Sup. Ct. R. 15.1.

° RCRA provides a two-step permit application process, the steps of

which are commonly referred to as Part A and Part B. See Pet. App. at 8a,

n.7.

* Shell Oil Company is the other Arsenal polluter, having caused

widespread contamination with its pesticide manufacturing conducted over

the course of approximately 30 years.

5

In November 1984, the EPA authorized Colorado to

administer and enforce the Colorado Hazardous Waste Management

Act ("“CHWMA") "in lieu of" the federal RCRA program. See supra

note 2. That month, the Army submitted its Part B application to

CDH. Just as EPA had done, CDH requested the Army revise the

Basin F closure plan. Despite the United States’ current claims to the

contrary (see, e.g., Pet. at 11), the Army persevered in its attempts

to address Basin F under the aegis of the State’s CHWMaA program

by submitting a new Basin F closure plan to CDH in December 1985.

CDH found the new closure plan inadequate, and issued its

own draft partial closure plan for public comment in May 1986.

Pursuant to CHWMA, the Army participated in the June 1986 public

meeting on the State’s draft plan, and later provided lengthy

comments on the plan. On October 1, 1986, Colorado issued its final

Modified Basin F Closure Plan, which incorporated most of the

Army’s comments. One year later, the Army abruptly reversed its

position on the applicability of RCRA, and informed Colorado that it

intended to clean up Basin F solely pursuant to CERCLA.

Thus, while the United States alleges that it began a CERCLA

remedial investigation and feasibility study in October 1984 (Pet. at

11), it was not until October 1987, three months after most of the

Arsenal was listed on the CERCLA National Priorities List

("NPL"),’ that the Army notified the State that it was withdrawing

~

? The Arsenal was listed on the NPL on July 11, 1987. 52 Fed. Reg.

27619. Basin F was excluded from that listing because EPA believed that

it would be cleaned up pursuant to RCRA/CHWMA. 54 Fed. Reg. 10512,

10515-16 (Mar. 13, 1989). Basin F itself was not listed on the NPL until

March 13, 1989 (id.), exactly 17 days after a federal district court opinion

in the State’s underlying enforcement case held that CERCLA section 120(a)

clearly preserves State authorities at federal facilities not on the NPL. State

of Colorado v. United States Dep't of the Army, 707 F. Supp. 1569 (D.Colo.

1989) (App. infra p. B-1). Interestingly, on the very same day that Basin

F was listed, the United States moved the district court for reconsideration

of its opinion based on the fact that Basin F was listed. ;

6

Te

its RCRA Part B application for the Arsenal’s RCRA units.

Therefore, though the United States has relied on revisionist history

throughout this litigation, the record shows that the Army recognized

the application of RCRA/CHWMA to Basin F Closure until October

1987. As the court of appeals found, the Army responded to the

State’s Basin F closure plan by suddenly questioning the State’s

RCRA jurisdiction. Pet. App. at 10a. Thus began the jurisdictional

confrontation that has culminated in the case now before the Court.

The Final Amended Compliance Order ("FACO"), the subject

of the immediate lawsuit, resulted from Colorado’s attempts to

exercise its EPA-authorized RCRA authority following the federal

district court’s February 1989 decision. State of Colorado v. United

States Dep’t of the Army, App. infra pp. B-i to B-21. Having had its

independent authority recognized by the district court, the State

reinspected Basin F and issued the FACO to address the CHWMA

violations discovered there. CDH issued the FACO to the Army in

September 1989. At that time, the Army was in the final stages of

the first of two CERCLA interim response actions ("IRAs") to deal

with liquid hazardous wastes stored at Basin F. The FACO does not,

as alleged by the United States (see, e.g., Pet. at 4), seek to "assert

direct control over cleanup of the Site, independently of CERCLA, by

issuing an administrative compliance order dictating response

activities under [CHWMAJ]."_ Nor does it require the Army to obtain

permits for activities at Basin F, as the United States disingenuously

implies.° Pet. at 24. The compliance order merely seeks to assert

* Notably, during this same period, the Army continued to recognize

CHWMA at other Arsenal RCRA facilities. For example, the Salts Storage

Container Facility, which stored upwards of 76,000 drums of waste from

nerve gas incineration, was closed on October 15 , 1986 pursuant to a CDH-

amended closure plan.

” The FACO does require the Army to update the information contained

in its existing RCRA permit applications. These applications are the means

by which the State gains information from any RCRA interim status facility

necessary to ensure the safe management of hazardous wastes. See Pet.

7

some authority over the ongoing treatment, storage and disposal of

hazardous wastes at the Arsenal. It does this by requiring the Army

to submit an amended Basin F closure plan, and update the existing

Part A application to reflect the newly constructed units that are

storing Basin F wastes, or that will treat or dispose of such wastes.

It also requires that certain plans and schedules addressing soil

contamination, monitoring, and groundwater contamination be

submitted to CDH as required by CHWMA. Pet. App. at 14a.

Lastly, the compliance order noted 42 separate violations of the

CHWMaA, including failure to adequately inspect the Basin F

hazardous waste storage tanks, ponds and waste pile for deterioration,

and failure to report or properly respond to the leaking tanks used to

store liquids removed from Basin F. CDH’s order also cited the

Army for failing to maintain operating and maintenance records and

emergency response plans necessary for compliance with CHWMA.

The United States’ charge that the interim action at Basin F

"has been impeded by Colorado’s refusal to channel its input through

CERCLA’s ARARs process" (Pet. at 18) totally misrepresents the

facts. As the court of appeals found, the State never impeded, nor

attempted to impede, cleanup at the basin. Pet. App. at 21a.

The United States asserts that when the Army "requested"

Colorado to identify ARARs for the excavation IRA, the State did not

respond. Pet. at 12. This claim is patently false. By letter received

August 24, 1987, the Army notified Colorado that written

identification of ARARs were due by 5 p.m. August 28, 1987. In the

limited time allotted, Colorado was only able to submit a letter that

identified RCRA/CHWMA as Basin F ARARs, and contained specific

technical guidance documents pertaining to the siting of hazardous

waste disposal facilities, and to methods for review of such sites.

Also attached was a complete Arsenal-wide ARARs identification that

the State had previously submitted, and that pertained to individual

App. at 35a.

sites such as Basin F. Additionally, Colorado commented on the

Army’s Preliminary Draft Basin F IRA ARARs document on

November 19, 1987.

The United States’ implication that Colorado has opted out of

the entire CERCLA process at the Arsenal is equally unfounded.

See, e.g., Pet. at 19-21, 25-26. In fact, the State has drafted and

submitted to both the Army and EPA well over 12,000 pages of

formal comments pursuant to the CERCLA process. These legal and

technical comments are part of the official administrative record, and

pertain to all aspects of the CERCLA remedial investigation and

feasibility study ("RI/FS"), including each of the dozen or more

interim response actions at the Arsenal. State comments cover

everything from ARARs identification to analysis of alternatives, risk

characterizations, proposed plans, and ffinal decision and

implementation documents. Furthermore, CDH employs several full

time professional staff working on CERCLA aspects of the Arsenal:

the State also retains outside experts in hydrogeology, human and

environmental toxicology, and biostatistics to review and comment on

Army proposals. The United States is acutely aware of this; in fact,

it has reimbursed the State for the Army’s share of $2 million in

CERCLA response costs incurred by the State prior to 1989."

Since then, Colorado has expended considerable additional funds--well

over $4 million--to participate as fully as the Army allows it to in the

CERCLA RI/FS process for the entire Arsenal.

The problem is not the State’s alleged unwillingness to

participate. Rather, it is the Army’s efforts to shut the State out by

disregarding the State’s input into the CERCLA process, and its

noncompliance with State law. If the State had as much impact on

the CERCLA process as the United States suggests (Pet. at 22), it

would not need to bother with enforcement orders to assure

'° These response costs exclude any expenditures the State incurred in

attempting to enforce compliance with CHWMA.

9

compliance with State law.

REASONS WHY THE PETITION SHOULD BE DENIED

By misrepresenting the facts, the United States depicts the

legal issues as far more confrontational than they are in reality. The

United States implies that if its petition is granted, the Court will have

before it a situation where the State is dictating an inconsistent

cleanup remedy and refusing to participate at all in the Army’s

CERCLA process. See Pet. at 17. Much as these fabricated

circumstances would make for a compelling controversy requiring

resolution by this Court, these are not the facts of this case. Should

the Court determine to review this case, it will not have facts before

it from which to decide a direct conflict between state and federal

law, nor will it confront a reticent State lying in wait as the Army

selects its CERCLA remedy." Furthermore, as discussed in detail

below, the United States’ legal arguments fall short of meeting the

standard required to warrant this Court’s review. There is no

important conflict regarding federal law in this case, and no split

exists between the circuits.

I. A UNANIMOUS COURT OF APPEALS

CORRECTLY GAVE EFFECT TO EACH

PROVISION OF CERCLA AND RCRA. THUS,

THERE IS NO CONFLICT REGARDING

FEDERAL LAW REQUIRING RESOLUTION BY

THIS COURT.

The court of appeals accurately portrays the State’s assertion

'! "Unless [the brief in opposition addresses Petitioner's misstatements

of fact or law], the Court may grant the petition in the mistaken belief that

the issues presented can be decided, only to learn upon full consideration ...

that such is not the case." Sup Ct. R. 15.1. See supra note 4.

10

:

of its RCRA authority at the Arsenal as a congressionally approved

“attempt to enforce requirements of its federally authorized hazardous

waste laws and regulations, consistent with its ongoing duty to protect

the health and environment of its citizens." Pet. App. at 27a. The

disagreement which lies at the heart of this litigation is not so much

between the United States and Colorado as it is between the Army

(and other federal polluters) and Congress. The Army is clearly

unhappy with Congress over its choice to preserve, in CERCLA, the

States’ independent RCRA authority at federal facil ity CERCLA sites.

The United States’ invocation of public policy arguments

opposing CERCLA’s preservation of state RCRA authority

notwithstanding, the court of appeals’ decision in this case does not

raise important issues demanding this Court’s review. State

participation or control has become commonplace in environmental

legislation. "One of the hallmarks of the environmental legislation

passed by Congress in the 1970’s was its increased reliance on a

regulatory framework that has come to be known as cooperative

federalism.""* In its decision, the court of appeals merely

acknowledges the cooperative federalism Congress preserved in

enacting CERCLA. See 42 U.S.C. §§ 9606(a), 9614(a), 9620(i) and

9652(d).

'? Mark Squillace, Cooperative Federalism Under the Surface Mining

Control and Reclamation Act: Is This Any Way to Run a Government?, 15

Env. Law Rptr. 10039, 10039 (Feb. 1985). This Court has recently cited

as examples of Congress’ scheme of cooperative federalism RCRA, the

Clean Water Act, and the Occupational Safety and Health Act. New York

v. United States, 112 S. Ct. 2408, 2424 (1992).

11

A. Congress Crafted RCRA and

CERCLA to Work Together as a

Comprehensive Regulatory Scheme

to Address the Hazardous Waste

Crisis.

RCRA is designed to provide detailed standards and

requirements for the management of hazardous wastes from

generation to permanent disposal. In RCRA, Congress encouraged

EPA to authorize states to “carry out" their own hazardous waste

programs “in lieu of" RCRA. Thus, Congress provided that state

enforcement of EPA-authorized State hazardous waste management

laws has “the same force and effect as action taken by [EPA]." 42

U.S.C. § 6926 (b), (d)

Congress supplemented existing hazardous waste law with

CERCLA in an attempt to ensure the prompt cleanup of the thousands

of polluted sites around the country. Congress attempted to achieve

this massive cleanup goal by setting up a joint RCRA/CERCLA

regulatory scheme that expressly preserves the ability of states to

enforce their own hazardous waste laws at sites also addressed by

CERCLA. In order to ensure that federal polluters were accountable

to the states, Congress further provided an explicit waiver of the

federal government’s sovereign immunity in RCRA section 6001 (42

U.S.C. § 6961, App. infra p. A-4) and, in CERCLA section 120(i)

(42 U.S.C. § 9620(i)), provided that nothing in CERCLA was to

affect a federal facility’s obligation to comply with a state’s EPA-

authorized RCRA program.”

‘3 In submitting the conference report for the Superfund Amendments

and Reauthorization Act of 1986 ("SARA") to the Senate, Senator Dole

described the proposed section 120, regarding federal facility compliance, as

“clarifying” that CERCLA and RCRA require federal facilities to comply

with all federal and state laws:

This section [RCRA section 6001], together with section

12

ha naenneeriaininemneeateneneae beeen

120 of CERCLA, can leave no doubt that Federal facilities

are subject to State laws, including State fees and penalties

Thus, Federal facilities are subject to all State

administrative and court procedures and sanctions,

including penalties and injunctions. I am pleased the

conferees chose to clarify these points. It is essential that

the Government elected by the people to protect them not

to [sic] be excused from protecting the public health under

a Federal statute such as Superfund [CERCLA]. Such

double standards are anathema to those of us who believe

that the Federal Government's primary task is to protect

the public, not to contaminate it.

132 Cong. Rec. $14895 (daily ed. Oct. 3, 1986). Another of the conference

report's principal authors also noted past problems with federal polluters

circumventing state and federal environmental] laws: "[N]o loophole, it

seems, 1S too small to be found by the Federal Government." Jd. at $14903

(remarks of Sen. Stafford).

The attitude of being above the law repeatedly expressed by federal polluters

led a frustrated Congress to pass the Federal Facilities Compliance Act of

1992, P.L. 102-386, 106 Stat. 1505 (Oct. 6, 1992). This Act amends

RCRA to clarify that States may assess penalties against the federal

government for RCRA violations. The committee report accompanying the

House version of the bill related that “federal facilities present some of the

very worst [RCRA] compliance problems" and that "(significant

noncompliance by DOD facilities involving violations of [RCRA

requirements} continue{s] to be reported" by state and federal oversight

agencies. H.R. Rep. No. 14], 10Ist Cong., Ist Sess. 3 (1989). During

floor debates on the conference bill. Congressman Dingell, a member of the

conference committee, stated that:

The bill is designed to ensure that authority to enforce

Federal facilities’ compliance with State or Federal

hazardous waste provision [sic] accompanies the

responsibility for administering those provisions. In almost

every case this means the States, which is entirely

consistent with the underlying intent expressed by Congress

in RCRA that the States be the primary implementers of

this country’s hazardous waste laws.

13

Congress’ preservation of state authority is especially

important at federal facility sites, such as the Rocky Mountain

Arsenal, where the extent of cleanup is being determined by the

federal polluter. At federal facilities, EPA is severely constrained by

the requirement that the "federal family" speak with one voice."

The lower courts both recognized that the relationship between EPA

and the Army prevents EPA’s monitoring of the CERCLA cleanup

from serving as “an effective check on the Army’s efforts." Pet.

App. at 13a. See also App. infra pp. B-16 to B-18. The court of

appeals correctly held that independent state authority is not only

necessary, but congressionally mandated, to provide an effective

process for achieving federal facility cleanups.

In spite of the clear limitation on EPA's oversight at federal

facilities, the United States contends that a state’s only role in

protecting its citizens from federally-created contamination is simply

to comment on the federal polluters’ cleanup decisions. This

interpretation provides little comfort to a state or its citizens.

The United States interprets CERCLA as nullifying the State’s

138 Cong. Rec. H9136-37 (daily ed. Sept. 23, 1992) (emphasis added).

‘4 EPA recognizes its enforcement limitations at federal facilities:

States are not subject to the same constraints as EPA

regarding enforcement actions against Federal facilities.

As a result, States generally may exercise a broader range

of authorities and enforcement tools than EPA to address

violations at Federal facilities. States should use the full

range of their enforcement authorities to address Federal

facility violations to the same extent they are used for non-

federal facilities while meeting the requirements of timely

and appropriate enforcement response.

EPA, Federal Facility Compliance Strategy, at VII-1 (November 1988)

(emphasis added).

14

eT

independent authority to apply and enforce any State environmental

laws, including CHWMA, at the Arsenal from the time the RI/FS was

initiated until after the final remedial action is implemented. The

United States alleges that the RI/FS commenced in 1984. The final

remedial action is currently projected to be selected in 1995, and

implementation will consume at least an additional ten years. The

United States argues that CERCLA precludes State authority over

hazardous waste management at the Arsenal for the intervening 20-

plus years. The court of appeals correctly rejected this argument that

CERCLA abrogates Colorado’s authority to protect the health and

environment of its citizens pursuant to its federally-authorized

hazardous waste management program.

Protecting its citizens from the potentially adverse effects

resulting from the mismanagement of hazardous wastes, especially

during protracted CERCLA remedial activities, is a real concern for

the states. For example, during the Army’s interim remediation

efforts at Basin F, noxious emissions detected two to three miles from

the Arsenal boundary caused Arsenal neighbors and workers to

repeatedly experience adverse health effects, including headaches,

respiratory problems, and rashes. See Pet. App. at 12a, n.11. Due

to the Army’s refusal to recognize the State’s RCRA authority, the

State was powerless to protect its citizens, short of evacuating the

Surrounding neighborhoods.

The policy disagreement expressed in the United States’

petition is not an issue of "immense practical importance" (Pet. at 17)

because CERCLA and RCRA authorities have been successfully

melded at other federal facility sites. For example, at the

Department of Energy’s Hanford and Rocky Flats sites, state RCRA

authority and federal CERCLA authority co-exist to address

hazardous waste management and contaminant cleanup. Indeed, EPA

has recognized the importance of the congressionally mandated

CERCLA/RCRA/state law interface in its listing policy. In that

policy, EPA states that the

15

potential overlap between RCRA and CERCLA

cleanup authorities is the result of Congressional

design not site listings.

x KX KX KX *X

How RCRA authorities are affected (if at all) when

CERCLA also applies to a site is a matter that varies

| greatly depending upon the facts of the site. In some

cases, the NPL site is physically distinct from the

| RCRA-regulated hazardous waste management units,

and corrective action or closure at the regulated units

may proceed under RCRA, while at the same time a

cleanup action is proceeding at another area of the

property under CERCLA, without the risk of

inconsistency or duplication of response action. In

other cases, the releases or contaminant plumes may

overlap, such that a comprehensive solution under

one statute may be the most efficient and desirable

solution. The questions of which authority should

control, and of how to avoid potential duplication or

inconsistency, are often implementation issues to be

resolved in light of the facts of the case and after

consultation between EPA and the concerned State.

54 Fed. Reg. 10,522-23 (1989).

In support of its assertion that the appellate court’s decision

raises important issues, the United States paints a harrowing picture

of states ignoring the CERCLA process,’* coming in at the last

'S The United States alleges that the State refused to cooperate with the

CERCLA efforts. Pet. at 12, 18. This is not the case, as discussed supra

pp. 8-9. Moreover, in 1990 the Army, EPA, the State, and Shell Oil

Company (the Arsenal’s other polluter) entered into an agreement

recognizing and setting out the oversight roles of the State and EPA at the

16

minute to sabotage EPA’s dutiful efforts and wreak general havoc.'®

Such unbridled speculation is unsupported and unreasonable.”

Given the current fiscal realities, it will always be desirable,

if not necessary, to avoid duplicative cleanup efforts. The United

States can be expected to defer to State-initiated cleanups with

increasing frequency. See, e. &., infra note 27. Moreover, states can

be expected to exercise their independent enforcement authorities at

CERCLA sites only in cases where sufficient state involvement is not

allowed, or at facilities which routinely violate state laws requiring

site’s incinerator, constructed to burn Basin F liquid wastes. Tough public

Cpposition to the incinerator made State support critical to community

acceptance of the project. The success of this project demonstrates the

State’s cooperative participation in the Arsenal’s CERCLA process when

given the opportunity.

‘© A scenario equally harrowing to that painted by the United States

would be likely under its proffered interpretation of CERCLA. States would

be relegated to the unenviable position of begging and cajoling federal

authorities to comply with state law. The federal government, pressured to

move forward with the cleanup, and at federal facilities to preserve

resources, gives short shrift to the states’ views and proceeds with an

unacceptable response action. The states’ only remedy at such point would

be to wait until completion of the remedy and then sue under CERCLA to

undo the work that had already transpired, resulting in delay to ultimate

cleanup and gross waste of resources by all parties. Congress surely

envisioned neither scenario. Rather, it intended that state and federal

governments work together to achieve the common goal of cleanup.

'7 In fact, the Army’s actions immediately following the denial of its

petition for rehearing on June 30, 1993, belie its arguments that chaos wil]

result unless the court of appeals decision recognizing state authority is

overturned. The Army approached the State to request to enter into a

CHWMA compliance order on consent to set out a schedule for

demonstrating CHWMA compliance at the incinerator which treats Basin F

liquids and the related Basin F ponds and tanks. Agreement on the

compliance order was quickly reached, so that the order was signed on

August 6, 1993. (In the order, the United States reserved all its rights to

proceed with the present appeal. )

17

responsible management of hazardous wastes during the lengthy

CERCLA process. The preservation of state authority, however,

ensures that the states’ efforts to protect their citizens and the

environment are taken seriously by the United States, an important

goal recognized by Congress and reflected in the several provisions

of CERCLA discussed below.

B. The Petition Does Not Present an

Adequate Legal Question

Warranting Review by the Court.

Like its policy arguments, the United States’ legal argument

that there is a conflict of laws, or an otherwise important federal

question, fails to justify review. Congress expressly preserved

independent state authority in CERCLA. The United States’

arguments to the contrary are without merit. Colorado’s exercise of

its RCRA authority does not "challenge" any CERCLA remedy, and

is not precluded by CERCLA section 122(e)(6).

1. Day-to-day Management of Hazardous Wastes Under

CHWMA is Expressly Preserved Despite~ the Designation of the

Arsenal as a CERCLA Site.

CERCLA is clear on its face. No fewer than four provisions

unequivocally preserve the application of state environmental laws at

contaminated sites, like the Arsenal, regardless of whether those sites

are also subject to CERCLA. 42 U.S.C. §§ 9606(a), 9614(a),

9620(i) and 9652(d).

Congress explicitly preserved the states’ authority to regulate

hazardous substances under state law, independent of CERCLA,

through the following language in CERCLA section 114(a), entitled

"Relationship to other law:"

Nothing in this chapter [CERCLA] shall be construed

o

lo

cineca eile

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).

In the CERCLA section dealing with "savings provisions,"

Congress clarified that:

Nothing in this chapter [CERCLA] shall affect or

modify in any way the obligations or liabilities of any

person under other Federal or State law, including

common law, with respect to releases of hazardous

substances or other pollutants or contaminants.

42 U.S.C. § 9652(d) (CERCLA section 302(d)).

And again, under CERCLA section 106(a), Congress

emphasized that CERCLA cleanup authorities were to be exercised

"[iJn addition to any other action taken by a State or local

government." 42 U.S.C. § 9606(a) (App. infra p. A-1) (emphasis

added). ‘Thus, the express language of CERCLA confirms that

Congress intended to supplement existing environmental law with

CERCLA authorities, not supersede it. Taken together, the "savings

clauses" of CERCLA sections 114(a), 302(d) and 106(a) leave no

doubt as to Congress’ intent to protect states’ authority to enforce

their environmental laws at CERCLA sites.

The United States argues that the CERCLA section 121

ARARs scheme, enacted in the Superfund Amendments and

Reauthorization Act of 1986 ("SARA"), has superseded the earlier

enacted savings clauses (Pet. at 24-25). However, the United States

conveniently ignores another key provision, enacted along with the

ARARs section, which unequivocally reaffirms congressional intent

to preserve existing state authorities. In the "Federal Facilities"

19

section of SARA, Congress provides that:

Nothing in this section shall affect or impair the

obligation of any department, agency, OF

instrumentality of the United States to comply with

any requirement of the Solid Waste Disposal Act

[RCRA] (including corrective action requirements).

42 U.S.C. § 9620(i) (CERCLA section 120(i)) (emphasis added).

Thus, Congress never intended state RCRA programs to be limited by

CERCLA. As Senator Mitchell, one of the SARA conferees,

explained:

Section 6001 of [RCRA] clearly states that federal

agencies are to be "subject to, and comply with, all

Federal, State, interstate, and local requirements,

both substance and procedural." This section,

together with section 120 of CERCLA, can leave no

doubt that Federal facilities are subject to State laws,

including State fees and penalties.

132 Cong. Rec. $14918 (daily ed. Oct. 3, 1986).

In enacting SARA Congress could easily have repealed the

savings clauses of sections 114(a), 302(d) and 106(a), yet it chose to

retain them. The United States’ suggestion that these provisions

merely refer to the ARARs process (Pet. at 24-25) is illogical

considering that all of these provisions were enacted years before the

ARARs scheme ever existed.”*

18 The United States is also wrong in its assertion that recognizing

independent state authority makes the CERCLA ARARs process "a dead

letter" (Pet. at 25). CERCLA applies to a wide variety of sites, including

sites where RCRA jurisdiction does not “exist; ¢.g., sites where the

contaminants released do not meet the definition of “hazardous wastes"

subject tc RCRA. Also, as the court of appeals noted, the ARARs scheme

20

The present litigation questions the authority of the State to

require the management and closure of a hazardous waste disposal

facility (Basin F) in a manner that is protective of human health and

the environment as required by state and federal hazardous waste

laws. Congress’ mandate in section 120(i) that the United States

continue to comply with state RCRA programs preserves this

authority. The ARARs process is not sufficient to ensure responsible

management. For example, most, if not all, of the monitoring,

inspection, and reporting requirements of CHWMA are not

considered to be ARARs by the United States, because EPA does not

recognize "procedural" requirements as state standards which the

remedy must attain pursuant to CERCLA section 121(d)(2)."° Yet

these requirements are the means by which the State ensures the safe

management of hazardous waste.”

is particularly valuable for states which either do not have their own

hazardous waste programs or choose not to exercise their independent

enforcement authority, because it ensures that at least some of RCRA’s

requirements are met at CERCLA sites. Pet. App. at 34a.

The United States mischaracterizes the role of the states in the

CERCLA process. The ARARs process does not provide the states a "full

Opportunity to participate" (Pet. at 22) because state identified ARARs may

be ignored or waived. In fact, the Army is currently denying that

Colorado’s Basic Standards for Groundwater are ARARs for its groundwater

cleanup offsite.

” These are the types of requirements Colorado attempts to enforce with

the FACO. The State’s intent is to protect the health and environment of its

citizens from the hazards of cleanup activities. Indeed, the violations

discussed by the United States in note 6 of its petition, such as the

unreported leaking tanks and breached liners, point to the need for state

oversight of ongoing hazardous waste management at the Arsenal. See supra

note 3.

21

2. The United States’ Arguments that CERCLA does not

Preserve State Authority are Misplaced.

a. Colorado’s Exercise of Independent

Authority is not a “Challenge”

Prohibited by CERCLA Section

113(h).

The court of appeals properly determined that CERCLA

section 113(h) does not apply in the present case. Section 113(h)

denies federal court jurisdiction, with a few exceptions, to review

challenges to CERCLA removal or remedial actions. As the court of

appeals noted, section 113(h)

does not bar federal courts from reviewing a

CERCLA response action prior to its completion;

rather, it bars federal courts from reviewing any

"challenges" to a CERCLA response action. 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 implicitly

repealed RCRA’s enforcement provisions contrary to

Congress’ expressed intention.

Pet. App. at 19a (emphasis added). See also Pet. App. at 27a-28a.

Congress never contemplated that section 113(h) would

preclude a state from enforcing its own hazardous waste laws and

regulations. Section 113(h) was enacted to “prevent private

responsible parties from filing dilatory, interim lawsuits which have

the effect of slowing down or preventing EPA’s cleanup activities."

H.R. Rep. No. 253, 99th Cong., 2d Sess. 266 (1985). Colorado’s

22

ee DUDUlU

independent and complementary RCRA regulatory scheme is not

intended to, nor will it, slow down or prevent CERCLA cleanup

activities.

The United States’ interpretation of section 113(h) would

preclude Colorado from acting to protect the health, welfare, and

environment of its citizens from the time a CERCLA investigation

begins until cleanup is completed. As discussed supra p. 15, the

Arsenal's CERCLA cleanup is expected to take decades to complete.

Congress clearly did not intend, nor did it provide, that owners and

operators of hazardous waste facilities could simply cease compliance

with state hazardous waste management laws for extended periods of

time. See, e.g., CERCLA § 120(i) (42 U.S.C. § 9620(i)).

Furthermore, review by this Court of the United States’

primary argument, that CERCLA section 113(h) precludes federal

court jurisdiction, is unnecessary because the unique procedural

history of this case is unlikely to be repeated. The State filed its

original CHWMA enforcement action in state court. See Pet. App.

at 10a. The United States successfully removed the state case to

federal district court pursuant to 28 U.S.C. § 1442(a)(1).7 This

Court has since determined that such removal is improper. Primate

Protection League v. Tulane Education Fund, 111 S. Ct. 1700, 1705

(1991). Thus, future cases involving state law claims, such as those

alleged in the FACO, will most certainly be decided by state courts.

*! Tronically, after removing the state law case to federal court. the

United States argued that the federal court lacked jurisdiction to address the

State law claims.

23

b. CERCLA Section 122(e)(6) does not

Prohibit Colorado from

Independently Enforcing its

Hazardous Waste Laws.

Under a section governing EPA’s settlements with private

polluters, CERCLA contains a provision which precludes private

parties from undertaking any remedial action not pre-approved by

EPA. The United States argues that the “common sense import of

Section 122(e)(6)" is that it precludes independent state enforcement

unless specifically authorized by EPA. Pet. at 25-26. The court of

appeals rightfully rejected this argument by properly reconciling

section 122(e)(6) with the savings clauses and other provisions of

CERCLA, easily concluding that the purpose of section 122(e)(6) was

to prevent ill-advised actions by responsible parties from interfering

with EPA’s ultimate cleanup plans. Pet. App. at 36a-39a. This

interpretation is supported by the EPA’s listing policy, on which the

United States so heavily relies (Pet. at 26):

[CERCLA section 122(e)(6)’s] authorization

mechanism would not affect normal hazardous waste

management requirements under RCRA, such as

complying with manifest, 90-day storage, and

labeling requirements; any RCRA-regulated

hazardous waste management units operating at a

CERCLA site must continue to comply with RCRA

hazardous waste management requirements, even if a

CERCLA response action is underway.

54 Fed. Reg. 10523 (1989) (emphasis added). Thus, it is the United

States, not the court of appeals, which fails to give meaning to every

provision of CERCLA.

24

Il. THERE IS NO SPLIT IN THE CIRCUITS AND

NO OTHER CIRCUIT HAS ADDRESSED THE

ISSUE WHICH WAS BEFORE THE TENTH

CIRCUIT.

The United States’ attempt to portray a split in the circuits on

the issue of independent state authority is deceptive. Not one of the

three cases cited by the United States addresses the issue before the

Tenth Circuit, nor has any other court of appeals faced the question

of the interaction of concurrent RCRA and CERCLA authority at

federal facility cleanup sites.”

The United States cites to Boarhead Corp. v. Erickson® and

Schalk v. Reilly* as conflicting decisions, but fails to explain the

relevance of these CERCLA suits by private citizens and a potentially

responsible party which attempted to halt implementation of CERCLA

selected remedies at private party sites. The court of appeals noted

that, unlike the present case, both Boarhead and Schalk involved

private party challenges to CERCLA remedial actions clearly

proscribed by CERCLA section 113(h). Pet. App. at 22a-24a. In

contrast, this case involves the state asserting its EPA-authorized

RCRA authority to oversee the management of hazardous wastes

where a CERCLA remedy has yet to be selected. This question was

not before, nor addressed by, the Seventh or the Third Circuits.

In the case upon which the United States relies most, United

States v. Akzo Coatings,* the Sixth Circuit expressly held that the

= Thus, no other court has had to interpret CERCLA section 120(i),

which expressly preserves RCRA/CHWMA authorities at federal facilities.

* 923 F.2d 1011 (3d Cir. 1991).

* 900 F.2d 1091 (7th Cir.), cert. denied, 498 U.S. 981 (1990).

* 949 F.2d 1409 (6th Cir. 1991).

25

terms of a court-entered consent decree, “and not the language of

CERCLA," preempted an alternative state remedy. 949 F.2d at

1455. Thus, Akzo is also irrelevant to the issues raised in the present

case. Moreover, the Sixth Circuit faced facts very different from

those before the Tenth Circuit. In Akzo, the EPA had selected a

CERCLA remedy, entered into a settlement with the responsible

party, and lodged a consent decree with the court. The State of

Michigan challenged EPA’s selected CERCLA remedy by advancing

an inconsistent alternative remedy: i.e., excavation and incineration

as compared to the EPA’s soil washing remedy - compliance with

both of which would be physically impossible. The Sixth Circuit

limited its holding to a recognition that CERCLA proscribes state

“interference with the proper implementation of the [consent] decree"

once entered.” Jd. at-1458.

In contrast, the present case involves Colorado’s enforcement

of its environmental laws to ensure that the day-to-day management

of hazardous wastes at the Arsenal are conducted in a manner

protective of human health and the environment. There is no final

selected remedy at the Arsenal, and the State is not attempting to

propose an alternative remedy -- inconsistent or not. As the court of

appeals wisely concluded, “[uJnlike the state in Akzo Coatings,

Colorado is asserting its independent EPA-authorized RCRA authority

rather than challenging the selection of a CERCLA remedy." Pet.

App. at 34a, n.21.

Because there is no split in the circuits, this case does not

warrant the Court’s review. Furthermore, this Court should give

Congress the opportunity to address the policy issues presented by

% The United States incorrectly broadens the Akzo court's holding to

conclude that "CERCLA precludes imposition of ‘independent state

remedies’ once a CERCLA action is underway." Pet. at 19 (emphasis

added). Rather, the court expressly limited its holding to circumstances

where a final remedy has been selected and a consent decree lodged with the

court. 949 F.2d at 1455, 1456.

26

this case prior to review by this Court.

Ill. BECAUSE CONGRESS IS RECONSIDERING

CERCLA THIS TERM, REVIEW BY THIS

COURT IS NOT WARRANTED IN THIS CASE.

The United States’ argument that independent state authority

would result in chaos at CERCLA sites is directed to the wrong

forum. CERCLA is to be reauthorized during this congressional

term. If the United States can present a compelling policy argument

that CERCLA should preclude state law at cleanup sites, it should

address its concerns to Congress.”’

Congress clearly intended that CERCLA co-exist with state

environmental laws, rather than preclude them. The United States

urges this Court to override Congress’ clear choice, preclude states

from exercising their historic police powers, and leave the sole

regulation of federal facility cleanups to the federal polluter. This

Court should decline to engage in such an exercise of judicial

legislation. Indeed, this Court has admonished petitioners to seek

relief from results which they believe Congress could not have

intended "from the law making authority, and not [from] the courts."

Crooks v. Harrelson, 282 U.S. 55, 60 (1930). See also Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 575-76 (1982) ("The

remedy for any dissatisfaction with the results in particular cases lies

” It appears that during reauthorization Congress will address the role

of the states at CERCLA sites. An assistant EPA administrator recently

testified before Congress that EPA is considering recommending legislative

changes to increase state authority at CERCLA sites, including proposing

that CERCLA programs be delegated to the states. Greater State Role,

National Standards Advocated by EPA, Agency Official Testifies, 24 Env’t

Rep. (BNA) 1229 (Nov. 5, 1993).

27

with Congress and not with this Court. Congress may amend the

statute; we may not.").

CONCLUSION

The United States depicts a simplistic and inaccurate view of

the issues in this case: that Congress intended the ARARs scheme to

constitute the sole role of state law at CERCLA sites. Rather, as the

lengthy court of appeals decision demonstrates, this is a complicated

regulatory area involving the interplay between two very technical

statutes, both of which are before Congress for reauthorization.

Review of the case by this Court would be a needless expenditure of

judicial resources.

Thus, the petition for writ of certiorari should be denied.

Respectfully submitted.

GALE A. NORTON

Attorney General

STEPHEN K. ERKENBRACK

Chief Deputy Attorney General

TIMOTHY M. TYMKOVICH

Solicitor General

PATRICIA S$. BANGERT

Deputy Attorney General

CASEY A. SHPALL*

First Assistant Attorney General

MARY L. LIVINGSTON

Assistant Attorney General

Attorneys for Respondents

Natural Resources/CERCLA Unit

1525 Sherman Street, 5th Floor

Denver, Colorado 80203

Telephone: (303) 866-5131

*Counsel of Record

December 1993

29

APPENDIX A

STATUTORY PROVISIONS INVOLVED

Section 106 of the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. 9606 provides:

§ 9606. Abatement actions [CERCLA § 106]

(a) Maintenance, jurisdiction, etc.

In addition to any other action taken by a State or local

government, when the President determines that there may be an

imminent and substantial endangerment to the public health or welfare

or the environment because of an actual or threatened release of a

hazardous substance from a facility, he may require the Attorney

General of the United States to secure such relief as may be necessary

to abate such danger or threat, and the district court of the United

States in the district in which the threat occurs shall have jurisdiction

to grant such relief as the public interest and the equities of the case

may require. The President may also, after notice to the affected

State, take other action under this section including, but not limited

to, issuing such orders as may be necessary to protect public health

and welfare and the environment.

KK KK

Sections 3004, 3008 and 6001 of the Resource Conservation and

Recovery Act, 42 U.S.C. 6923 et seq., provide in part:

§ 6923. Standards applicable to transporters of hazardous

waste [RCRA § 3003]

2K KKK

A-1l

(u) Continuing releases at permitted facilities

Standards promulgated under this section shall require, and

a permit issued after November 8, 1984, by the Administrator or a

State shall require, corrective action for all releases of hazardous

waste or constituents from any solid waste management unit at a

treatment, storage, or disposal facility seeking a permit under this

subchapter, regardless of the time at which waste was placed in such

unit. Permits issued under section 6925 of this title shall contain

schedules of compliance for such corrective action (where such

corrective action cannot be completed prior to issuance of the permit)

and assurances of financial responsibility for completing such

corrective action.

(v) Corrective action beyond facility boundary

As promptly as practicable after November 8, 1984, the

Administrator shall amend the standards under this section regarding

corrective action required at facilities for the treatment, storage, OF

disposal, of hazardous waste listed or identified under section 6921

of this title to require that corrective action be taken beyond the

facility boundary where necessary to protect human health and the

environment unless the owner or operator of the facility concerned

demonstrates to the satisfaction of the Administrator that, despite the

owner or operator’s best efforts, the owner or operator was unable to

obtain the necessary permission to undertake such action. Such

regulations shall take effect immediately upon promulgation,

notwithstanding section 6930(b) of this title, and shall apply to--

(1) all facilities operating under permits issued under

subsection (c) of this section, and

(2) all landfills, surface impoundments, and waste pile units

(including any new units, replacements of existing units, or lateral

expansions of existing units) which receive hazardous waste after July

26, 1982.

A-2

Pending promulgation of such regulations, the Administrator shall

issue corrective action orders for facilities referred to in paragraphs

(1) and (2), on a case-by-case basis, consistent with the purposes of

this subsection.

KK KK

§ 6928. Federal enforcement [RCRA § 3008]

KK KK

(h) Interim status corrective action

(1) Whenever on the basis of any information the

Administrator determines that there is or has been a release of

hazardous waste into the environment from a facility authorized to

operate under section 6925(e) of this title, the Administrator may

issue an order requiring corrective action or such other response

measure as he deems necessary to protect human health or the

environment or the Administrator may commence a civil action in the

United States district court in the district in which the facility is

located for appropriate relief, including a temporary or permanent

injunction.

(2) Any order issued under this subsection may include a

Suspension or revocation of authorization to operate under section

6925(e) of this title, shall state with reasonable specificity the nature

of the required corrective action or other response measure, and shall

specify a time for compliance. If any person named in an order fails

to comply with the order, the Administrator may assess, and such

person shall be liable to the United States for, a civil penalty in an

amount not to exceed $25,000 for each day of noncompliance with

the order.

KK KK

§ 6961. Application of Federal, State, and local law to

Federal facilities RCRA § 6001]

Each department, agency, and instrumentality of the

executive, legislative, and judicial branches of the Federal

Government (1) having jurisdiction over any solid waste management

facility or disposal site, or (2) engaged in any activity resulting, or

which may result, in the disposal or management of solid waste or

hazardous waste shall be subject to, and comply with, all Federal,

State, interstate, and local requirements, both substantive and

procedural (including any requirement for permits or reporting or any

provisions for injunctive relief and such sanctions as may be imposed

by a court to enforce such relief), respecting control and abatement

of solid waste or hazardous waste disposal in the same manner, and

to the same extent, as any person is subject to such requirements,

including the payment of reasonable service charges. Neither the

United States, nor any agent, employee, or officer thereof, shall be

immune or exempt from any process or sanction of any State or

Federal Court with respect to the enforcement of any such injunctive

relief. The President may exempt any solid waste management

facility of any department, agency, or instrumentality in the executive

branch from compliance with such a requirement if he determines it

to be in the paramount interest of the United States to do so. No

such exemption shall be granted due to lack of appropriation unless

the President shall have specifically requested such appropriation as

a part of the budgetary process and the Congress shall have failed to

make available such requested appropriation. Any exemption shall be

for a period not in excess of one year, but additional exemptions may

be granted fur periods not to exceed one year upon the President's

making a new determination. The President shall report each January

to the Congress all exemptions from the requirements of this section

granted during the preceding calendar year, together with his reason

for granting each such exemption.

A-4

APPENDIX B

STATE OF COLORADO, Plaintiff,

UNITED STATES DEPARTMENT

OF THE ARMY, Defendant.

Civ. A. No. 86-C-2524.

United States District Court,

D. Colorado.

Feb. 24, 1989.

MEMORANDUM OPINION

AND ORDER

CARRIGAN, District Judge.

Plaintiff, State of Colorado, commenced this action against

the defendant, United States Department of the Army ("the Army")

in the District Court for the City and County of Denver, Colorado,

seeking an injunction to halt alleged present and future violations of

certain Colorado statutes and regulations concerning hazardous waste

management and control. The Army removed the case to this court.

The area giving rise to the lawsuit is known as "Basin F." It

is a hazardous waste disposal pond situated within the Rocky

Mountain Arsenal ("the Arsenal"). The arsenal is a federally

controlled site occupying about 27 square miles near Commerce City,

a suburban area northeast of Denver, Colorado. The Arsenal was

constructed in 1942 to manufacture and assemble chemical warfare

agents, chemical products and incendiary munitions. It also has been

B-1

used for detoxification and disposal of these toxic materials. Portions

of the Arsenal have been leased to private operators, including Shell

Oil Company ("Shell") for the manufacture of pesticides and

herbicides. The United States owns and the Army operates the

Arsenal. (Shell is a defendant in a companion CERCLA case, No.

83-C-2379. These two cases have been consolidated with a third, 83-

C-2386.)

The Army constructed Basin F in 1956 to store and dispose

of contaminated liquid wastes generated by the Army’s and Shell’s

chemical manufacturing and processing activities. Basin F began

receiving contaminated liquid wastes in October 1956.

As originally filed in the state court, the instant action

concerns solely Basin F. The State’s complaint asserted numerous

claims against the Army based on Colorado’s Ground Water

Monitoring Regulations [Colorado Hazardous Waste Regulations, 6

CCR 1007-3, ("Interim Status Standards for Owners and Operators

of Hazardous Waste Treatment, Storage and Disposal Facilities, 6

CCR 1007-3, Part 265, Subpart F), issued pursuant to the Colorado

Hazardous Waste Management Act ("the CHWMaA"), Title 25-15,

part 3, C.R.S. (1982)]. These claims include: (1) failure to provide

and monitor complying upgradient monitoring wells, in violation of

§ 265.91(a)(1) (First Claim); (2) failure to submit a specific ground

water monitoring program, in violation of § 265.93(d)(2) (Second

Claim); (3) failure to determine impact of Basin F on ground water

quality, in violation of 6 CCR 1007-3, § 265.93(d)(2) (Third Claim);

and (4) failure adequately to monitor and report ground water quality

assessment, in violation of §§ 265.93(d)(5) and (7). The Army

subsequently removed the action to this court.

On January 14, 1987, the Army filed a motion to dismiss or,

in the alternative, for summary judgment or partial summary

judgment, regarding the claims set forth in the plaintiff's complaint.

The issues raised in the motion were fully briefed by the parties.

B-2

On December 4, 1987, the plaintiff filed its First Amended

Complaint setting forth new claims and allegations. The First

Amended Complaint alleges that in June, 1983, the Army submitted

to the United States Environmental Protection Agency ("E.P.A") a

plan to close Basin F. It further alleges that, subsequent to E.P.A.’s

authorization to the State of Colorado to operate the State’s hazardous

waste management program, the Colorado Department of Health

("CDH") issued a final plan to close Basin F, pursuant to State

Closure Regulations (6 CCR 1007-3, Part 265, Subpart G). The

Basin F Closure Plan ("the Plan") became effective October 2, 1986,

as a final order of the CDH. Defendant did not appeal, or otherwise

seek review of the Plan. Pursuant to the Plan’s terms, it is alleged,

the Army was required to complete certain remedial steps effecting

Basin F’s closure by October 2, 1987.

In the First Amended Complaint, the plaintiff asserts claims

against the Army for: (1) failure to close Basin F in compliance with

the Basin F Closure Plan (First Claim); (2) failure to comply with

Colorado’s Ground Water Monitoring Regulations, a claim with three

subclaims, and essentially a reassertion of three of the claims set forth

in the plaintiff's initial complaint (Second Claim); and (3) failure to

pay annual operating and waste volume fees, in violation of

§§ 100.31(a) and (b) of State Fee Regulations, 6 CCR 1007-3, Part

100.

Plaintiff asserts that the Attorney General of the State of

Colorado has standing and authority to prosecute this suit, pursuant

to Executive Order No. D0012-86, issued February 4, 1986, under

C.R.S. § 24-31-101(1)(a) (1982). The State Attorney General filed

this action at the request of the CDH pursuant to C.R.S. §§ 24-4-

106(3) and 25-15-308(2) (1982) seeking to halt present violations and

prevent future violations of the CHWMA, as well as the Colorado

Hazardous Waste Regulations, and to enforce the final order issued

by CDH to close "Basin F." Plaintiff further asserts that this action

is properly filed against the Army as defendant because Congress has

waived sovereign immunity as to civil actions against federal entities

B-3

to enforce state requirements regarding hazardous waste management

and disposal. For this proposition the State cites § 6001 of the Solid

Waste Disposal Act, as amended by the Resource Conservation Act

of 1976 ("RCRA") [42 U.S.C. §§ 6901-6987], 42 U.S.C. § 6961.

The Army has moved to dismiss the plaintiff's First Amended

Complaint, asserting that the United States has not waived its

sovereign immunity as to these claims under RCRA § 6001, [42

U.S.C. § 6961]. Defendant Army’s argument in part emphasizes that

I presently have pending before me two actions directed at cleanup of

the Arsenal as a whole. As stated above, these consolidated cases are

State of Colorado v. United States, Civil Action No. 83-2386, and

United States v. Shell Oil Company, Civil Action No. 83-C-2379.

Both cases were filed under the Comprehensive Environmental

Response, Compensation and Liability Act of 1980 (" CERCLA"), 42

U.S.C. §§ 9601 et seg. CERCLA was amended by the 1986

Superfund Amendments and Reauthorization Act ("SARA"), Pub.L.

99-499, 100 Stat. 1615.

Defendant Army does not dispute that RCRA § 6001 [42

U.S.C. § 6961], read in conjunction with RCRA § 7002 [42 U.S.C.

§ 6972], contains a waiver of federal sovereign immunity. Rather,

the Army asserts that sovereign immunity is not waived under those

sections when there is an ongoing CERCLA cleanup action at the site

that addresses hazardous waste requirements that are the same in

substance as those sought to be enforced by the state under RCRA.

In essence, the Army argues that CERCLA’s enforcement and

response provisions pre-empt and preclude a state RCRA enforcement

action with respect to the cleanup of hazardous wastes at the Arsenal.

Plaintiff State has responded by opposing the motion.

Initially, I deny as moot the Army’s first dispositive motion

addressing the State’s complaint, except for that portion of the

defendant’s argument that is reasserted in its second motion to

dismiss.

At a hearing on the plaintiff's motion for injunctive relief, I

briefly heard oral argument on the defendant’s dismissal motion.

More recently, the State has reasserted its position by moving for

partial summary judgment, and the Army has filed an Opposition

memorandum to that motion. In addition, the parties have filed

supplemental briefs at the court’s request addressing whether the State

is preciuded from pursuing this action because the Army has

commenced interim cleanup measures at Basin F: whether and to

what extent the State will have a role in the Arsenal clean up if the

instant action is dismissed; and whether the State is proceeding under

RCRA § 7002, [42 U.S.C. § 6972] in this case. The parties also

have filed briefs on whether the State’s action is barred by the

Supremacy Clause.

The issues thus have been fully briefed and orally presented

by the parties. The matter is ripe for decision.

It is fundamental that the Untied States cannot be sued without

its consent, and this immunity protects federal agencies such as the

Army. In the absence of an express statutory waiver of immunity, an

action against the United States must be dismissed for lack of

jurisdiction. United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84

L.Ed. 888 (1940); United States v. Testan, 424 U.S. 392, 96 S.Ct.

948, 47 L.Ed.2d 114 (1976). A waiver of immunity must be strictly

construed and must be confined to the terms and conditions specified.

Stubbs v. United States, 620 F.2d 775 (10th Cir.1980); Reynolds v.

United States, 643 F.2d 707 (10th Cir. 1981).

Section 6001 of RCRA, [42 U.S.C. § 6961], provides in

pertinent part:

"Each department, agency, and instrumentality of the

executive, legislative and judicial branches of the

Federal Government ... engaged in any activity

resulting, or which may result, in the disposal or

management of solid or hazardous waste shall comply

= B-5

with all Federal, State, interstate, and local

requirements, both substantive and procedural

(including any requirements for permits or reporting

or any provisions for injunctive relief and such

sanctions as may be imposed by a court to enforce

such relief), respecting control and abatement of solid

waste or hazardous waste disposal in the same

manner, and to the same extent, as amy person is

subject to such requirements, including the payment

of reasonable service charges. Neither the United

States, nor any agent, employee, or officer thereof,

shall be immune or exempt from any process or

sanction of any State enforcement of any such

injunctive relief ...." 42 U.S.C. § 6961. (Emphasis

added).

Relevant portions of RCRA § 7002, [42 U.S.C. § 6972]

provide as follows: |

"(a) In general.

... [A]ny person may commence a civil action on his

own behalf--(1)(A) against any person (including (a)

the United States, and (b) any other governmental

instrumentality or agency, to the extent permitted by

the eleventh amendment to the Constitution) who is

alleged to be in violation of any permit, standard,

regulation, condition, requirement, or order which

has becoine effective pursuant to this Act [42 U.S.C.

§§ 6901 et seq.]...."

xxx kee *

"(b) Actions prohibited.

xxx ue *

B+

—————

(2)(B) No action may be commenced under

subsection (a)(1)(B) of this section if the

Administrator, in order to restrain or abate acts or

conditions which may have contributed or are

contributing to the activities which may present the

alleged endangerment--

(i) has commenced and is diligently

prosecuting an action under section

7003 of this Act [42 U.S.C. § 6973}

Or under section 106 of the

Comprehensive Environmental

Response, Compensation and

Liability Act of 1980 [42 U.S.C

§ 9606],

(ii) is actually engaging in a removal

action under section 104 of the

Comprehensive Environmental

Response, Compensation and

Liability Act of 1980 [42 U.S.C.

§ 9604];

(iii) has incurred costs to initiate a

Remedial Investigation and

Feasibility Study under section 104

of the Comprehensive Environmental

Response, Compensation and

Liability Act of 1980 [42 U.S.C.

9604] and is diligently proceeding

with a remedial action under that

Act; or

(iv) has obtained a court order

(including consent decree) or issued

an administrative order under section

B-7

106 of the Comprehensive

Environmental Response,

Compensation and Liability- Act of

1980, or section 7003 of this Act [42

U.S.C. §§ 9606, 6973] pursuant to

which a responsible party is

diligently conducting a removal

action, Remedial Investigation and

Feasibility Study (RIFS), or

proceeding with a remedial action."

The term "person" who is authorized to commence such an action is

defined elsewhere to include the State. 42 U.S.C. § 6903(15).

The Army stresses that these sections must be reconciled with

certain CERCLA provisions that govern the manner in which federal

agencies must undertake CERCLA cleanup actions and which specify

the state role in those cleanup efforts. Defendant cites RCRA § 1006,

[42 U.S.C. § 6905], in support of its argument that Congress

intended that RCRA and CERCLA be integrated to avoid conflicts

and to eliminate cleanup duplication. RCRA § 1006, [42 U.S.C.

§ 6905], states in relevant part:

"(a) Nothing in this Act [42 U.S.C. §§ 6901 et seq.]

shall be construed to apply (or to authorize any State,

interstate, or local authority to regulate) any activity

or substance which is subject to the Federal Water

Pollution Control Act ..., the Safe Drinking Water

Act ..., the Marine Protection, Research and

Sanctuaries Act of 1972 ..., or the Atomic Energy

Act of 1954 ..., except to the extent that such

application (or regulation) is not inconsistent with the

requirements of such Acts."

"(b)(1) The [EPA] Administrator shall integrate all

provisions of this Act [42 U.S.C. §§ 6901 et seq.]

B-8

for purposes of administration and enforcement and

Shall avoid duplication, to the maximum extent

practicable, with the appropriate provisions of the

Clean Air Act ..., the Federal Water Pollution

Control Act ..., the Federal Insecticide, Fungicide,

and Rodenticide Act ..., the Safe Drinking Water Act

..., the Marine Protection, Research and Sanctuaries

Act of 1972 ..., and such other Acts of Congress as

grant regulatory authority to the Administrator. Such

integration shall be effected only to the extent that it

can be done in a manner consistent with the goals and

policies expressed in this Act ... and in the other acts

referred to in this subsection."

RCRA §§ 1006(a) and (b), [42 U.S.C. § 6905(a) and (b)], were

enacted as part of the 1976 RCRA amendments to the Solid Waste

Disposal Act. The Army asserts that RCRA §§ 1006(a) and (b) do

not specifically mention CERCLA because CERCLA was not enacted

until 1980. However, the Army does not explain why there has been

no amendment to include CERCLA in the list during the intervening

eight years.

The issue before me thus concerns whether the provisions of

RCRA and CERCLA can be harmoniously construed so as to permit

the State to pursue a RCRA suit against the Army seeking

enforcement of state hazardous waste cleanup and abatement laws at

Basin F at the same time as other pending actions instituted under

CERCLA are addressing the entire Arsenal cleanup. It is undisputed

that the plaintiff's action here seeks to enforce, against the Army,

state hazardous waste management laws and regulations (the

CHWMA and regulations promulgated thereunder) administered "in

lieu of’ the federal RCRA program to the extent that the State has

been so authorized by the E.P.A. 42 U.S.C. § 6926(b).

At a recent hearing, the State asserted that Basin F, and

perhaps other areas within the Arsenal, are RCRA units. On the

B-9

other hand, the Army contends that the entire Arsenal constitutes an

on-going CERCLA cleanup site, and that the E.P.A. is the primary

enforcement authority. Basin F still has not been placed on the

National Priorities List ("the NPL"), although the Army for years has

been assuring this court that it would be so designated. Nevertheless,

after much fine-tuning, the main point of the Army’s argument is that

permitting the State to “carve out" Basin F and proceed under RCRA,

separate and apart from the Army’s CERCLA cleanup anticipated for

the Arsenal as a whole, will defeat CERCLA’s aims and frustrate its

purpose.

The matter has been further complicated because (1) the

Army has not completed a CERCLA Remedial Investigation and

Feasibility Study for Basin F, or even for the Arsenal, and the Record

of Decision is not expected to be completed until 1993; (2) the Army

projected to the State, pursuant to RCRA, that Basin F would be

cleaned up and closed by October 1987; and (3) in March 1988, the

Army commenced implementing certain * interim respoise" cleanup

measures at Basin F and certain cleanup actions are substantially

completed and still underway.

In United Staes v. Shell Oil Co., 605 F.Supp. 1064

(D.Colo.1985), this court discussed in some detail the overriding

purposes for which RCRA and CERCLA were enacted and the goals

sought to be accomplished by each statutory scheme. As indicated

there, RCRA was enacted to close the regulatory gap that existed

because pre-RCRA federal environmental laws did not effectively

regulate the disposal of environmental pollutants, including solid and

hazardous wastes, on land. That opinion stated:

"RCRA provides for the promulgation of

regulations by the [USEPA] applicable to generators

of hazardous waste, transporters of hazardous waste,

and owners and operators of hazardous waste

treatment, storage and disposal facilities. The

regulations established requirements respecting,

B-10

among other things, record keeping practices,

labeling practices, use of appropriate containers, use

of a manifest system, and the design, construction,

operation and maintenance of facilities." Jd. at 1070.

In Shell, supra, \ cited a Congressional Report [H.R.Rep. No. 96-

1016, 96th Cong., 2d Sess. 22, reprinted in 1980 U.S.Code Cong.

& Ad.News 6119, 6125] declaring that RCRA was enacted as a

prospective "cradle-to-grave" regulatory regime that applies to past

sites only to the extent that they are posing an imminent hazard. Jd.

CERCLA was enacted to clean up inactive hazardous waste

disposal sites. It established "‘a comprehensive response and

financing mechanism to abate and control the vast problems associated

with abandoned and inactive hazardous waste disposal sites.’" Id. at

1071. CERCLA was enacted to fill the regulatory gap left open by

existing law. I further stated in Shell:

"[W]hile pre-CERCLA law could prevent

further pollution from the contemporary generation

and disposal of hazardous wastes, it could not

effectively abate the ongoing environmental

deterioration resulting from wastes which had been

dumped in the past. CERCLA was enacted to

address this problem. It is by its very nature

backward looking. Many of the human acts that have

caused the pollution already had taken place before

its enactment; physical and chemical processes are at

their pernicious work, carrying destructive forces into

the future."

"The decision was made in CERCLA to clean

up these inactive hazardous waste sites....". Id. at

1072.

Defendant sets forth several policy arguments in support of

B-11

its contention that CERCLA enforcement and remediation should be

given exclusive jurisdiction and preclude RCRA enforcement through

the present action. Included in the Army’s broad policy arguments

are the general assertions (1) that the court should give precedence to

CERCLA because it is the more recent, specific statutory scheme for

cleaning up hazardous waste contamination at federal facilities; (2)

that enforcement under RCRA would disrupt the ongoing cleanup at

the Arsenal and would impermissibly duplicate the CERCLA cleanup

activities; and (3) that State RCRA enforcement would undermine the

goals and policies that Congress set forth in CERCLA. Defendant

cites various CERCLA provisions in support of these broad policy

arguments.

For example, the State’s closure plan and monitoring

requirements are effectuated through a state permit process. In

contrast, CERCLA § 121(e)(1), [42 U.S.C. § 9621(e)(1)], exempts

CERCLA sites from having to acquire state or federal permits for

remedial action conducted on site. Thus, the Army contends, the

delays incurred in obtaining permits for RCRA enforcement would

frustrate Congress’s intent in enacting CERCLA as an effort to "speed

up" the cleanup process. (I note that the instant CERCLA action has

been pending since December 1983, and despite the court’s frequent

cajoling, the parties have constantly delayed efforts to bring the case

to trial; nor have they proposed an overall plan for clean up as

contemplated by CERCLA).

The Army further argues that the State’s interest in having its

administrative requirements satisfied with respect to Basin F are

protected. In support of this argument, the Army relies on CERCLA

§ 121(d), [42 U.S.C. § 9621(d)], which provides that a State’s

environmental standards, including state RCRA requirements, shall

be considered in determining the level of cleanup at a CERCLA site

and will be applied to the extent that they are applicable, relevant and

appropriate ("ARAR"). At nearly every hearing, however, the State

has complained that it is being left out of the process and by-passed

in decisions made by the Army and the EPA.

B-12

aetna

Next, the Army asserts, the Arsenal has been listed on the

National Priorities List ("the NPL"), and Basin F has been proposed

for listing and should be placed on the NPL "early in 1988." It is

now February 1989. Pursuant to CERCLA § 120, [42 U.S.C.

§ 9620], the Army argues, the E.P.A., not the State of Colorado, is

ultimately responsible for overseeing and approving all Arsenal

cleanup activities. However, neither party has advised the court that

Basin F has been listed on the NPL.

The Army contends that it began its CERCLA Remedial

Investigation and Feasibility Study at the Arsenal in October 1984.

The interim remedial action plan for Basin F was proposed in June

1986 and transmitted to the State on December 4, 1987. The Army’s

brief also outlines the interim response actions taken with respect to

the Arsenal and Basin F. Defendant Army argues that the cleanup of

the Arsenal and Basin F are "inextricably related."

Last, argues the Army, once a CERCLA cleanup is

underway, the State’s participation rights are defined and governed by

CERCLA. CERCLA § 120(f), [42 U.S.C. § 9620(f)], affords the

State the opportunity to participate in the planning and selection of

remedial action. CERCLA § 121(f), [42 U.S.C. § 9621(f)], outlines

the State’s right to participate in the cleanup remedy selection process

and to seek review of the remedy selected. As indicated above,

pursuant to CERCLA § 121(d) and (e)(2), [42 U.S.C. §§ 9621 (d)

and (e)(2)], the State may seek compliance with its own standards,

such as permit requirements or other administrative requirements, if

it is concerned that the CERCLA cleanup will not ensure adequate

protection. The statute sets forth procedure the State can utilize to

challenge judicially the United States’ remedial action plan prior to its

implementation. CERCLA § 121(f)(3)(B), [42 U.S.C.

§ 9621(f)(3)(B)).

Similarly, CERCLA §§ 117, [42 U.S.C. §9617)], and

113(k), [42 U.S.C. § 9613(K)], provide for public participation in the

cleanup process by providing an opportunity for the public to submit

B-13

written and oral comments, and to have a public meeting near the

facility. RCRA, in contrast, does not provide for formal public

participation.

In assessing the defendant’s arguments, I first must examine

other relevant CERCLA provisions.

CERCLA § 114(a), [42 U.S.C. § 9614(a)], states:

"(a) Nothing in this Act 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."

Additionally, CERCLA § 302), [42 U.S.C. § 9652(d)], provides in

pertinent part: ;

"(d) Nothing in this Act shall affect or modify in any

way the obligations or liabilities of any person under

other Federal or State law, including common law,

with respect to releases of hazardous substances or

other pollutants or contaminants..."

Even more explicitly, CERCLA § 120, part of SARA, [42 U.S.C.

§ 9620] states in pertinent part:

"(a)(1) Each department, agency, and instrumentality

of the United States (including the executive,

legislative, and judicial branches of government) shall

be subject to, and comply with, this Act in the same

manner and to the same extent, both procedurally and

substantively, as any nongovernmental entity,

including liability under section 107 of this Act [42

U.S.C. § 9607]. Nothing in this section shall be

construed to affect the liability of any person or

B-14

entity under sections 106 and 107 [42 U.S.C.

§§ 9606 and 9607]."

* XK KK *

"(a)(4) State 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 Priorities

List. The preceding sentence shall not apply to the

extent a State law would apply any standard or

requirement to such facilities which is more stringent

than the standards and requirements applicable to

facilities which are not owned or Operated by any

such department, agency or instrumentality ."

(Emphasis added).

* * KK K *

"(i) Nothing in this section shall affect or impair the

obligation of any department, agency, or instrumentality of

the United States to comply with any requirement of the Solid

Waste Disposal Act [42 U.S.C. §§ 6901 et seq.] (including

corrective action requirements). "

Tenets of statutory construction provide that whenever a

legislative body enacts a statute, it has in mind previous statutes

relating to the same subject matter. The new provision is presumed

to be in accord with the legislative policy embodied in prior statutes

and all statutes should be construed together. 2A Sutherland

Statutory Construction § 51.02 (Sands 4th ed.). As I emphasized in

Shell, "... CERCLA must be construed in light of previous statutes

relating to environmental pollution, ...," and notably, that includes

RCRA. Shell, 605 F.Supp. at 1070.

B-15

Nothing in the cited statutes indicates that a CERCLA action

should take precedence over a RCRA enforcement action. On the

contrary, it appears that CERCLA was intended to operate

independently of and in addition to RCRA, and that the statutory

schemes are not mutually exclusive. See Mardan Corp. v. C.G. G

Music, Ltd., 600 F.Supp. 1049 (D.Ariz.1984) aff'd 804 F.2d 1454

(9th Cir. 1986).

In fact, CERCLA § 120(a)(4), [42 U.S.C. § 9620(a)(4)],

preserves state enforcement actions at federal facilities that are not

listed on the National Priorities List. CERCLA § 120(i), [42 U.S.C.

9620(i)], requires the federal government to comply with the Solid

Waste Disposal Act, and now RCRA, whether or not the facility is

listed on the NPL. It is undisputed that Basin F is not listed on the

NPL.

I realize that CERCLA was enacted after RCRA. However,

I cannot read a conflict into statutes enacted on the same subject

matter where none exists. Nor can I supply an amendment to a

statute that Congress has chosen not to amend for over eight years.

The Army was one of the active polluters at Basin F. The

Army thus is jointly and severally liable for the contamination at

Basin F and its alleged harmful impact on the community that borders

the Arsenal. Were I to dismiss this action, the Army’s cleanup

efforts would go unchecked by any parties whose interest are in any

real sense adverse to those of the Army. The same Justice

Department attorneys have repeatedly claimed to represent both the

Army and the E.P.A. in this action, even though the Army is a

defendant and the E.P.A. acts for the United States as a plaintiff.

These Justice Department lawyers repeatedly have rejected this court’s

suggestions that representing these opposing parties constitutes a

conflict of interest.

Since it is the E.P.A.’s job to achieve a clean up as quickly

and thoroughly as possible, and since the Army’s obvious financial

B-16

— EE

interest is to spend as little money and effort as possible on the

cleanup, I cannot imagine how one attorney can vigorously and

wholeheartedly advocate both positions. For this reason, among

others, I have been reluctant to approve the proposed "consent

decree," which is fundamentally an agreement between the two

polluters, the Army and Shell, to restrict future uses of Arsenal land

and thereby limit cleanup standards, thus lowering costs for both

defendants.

The Army, in effect, seeks full and unbridled discretion,

subject only to E.P.A.’s input through the same attorneys who

represent the Army, to regulate the Basin F cleanup, a process that

has been ongoing for more than five years and is still nowhere near

completion or resolution. CERCLA was enacted to “speed up" the

cleanup process, not delay it.

Moreover, once the Army has satisfied what it considers to

be its cleanup obligations, the State is responsible to its citizens if the

process has not been thorough. Having the State actively involved as

a party would guarantee the salutary effect of a truly adversary

proceeding that would be more likely, in the long run, to achieve a

thorough cleanup.

Sites like the Arsenal, and especially Basin F, must be

considered in the long range perspective of generations yet unborn

and centuries still far over time’s horizon. Indeed, if the instant

CERCLA action fails to achieve an adequate cleanup, it is the people

of Colorado who ultimately must pay either the price of cleanup, or

the price of not cleaning up this, the worst hazardous and toxic waste

site in America. It is not inappropriate that the present and future

victims of this poison legacy, left in their midst by the Army and

Shell, should have a meaningful voice in its cleanup. In RCRA,

Congress has plainly provided them that voice through representation

by the State. I hold that RCRA enforcement by the State is not

precluded by CERCLA in the circumstances here presented.

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I conclude that the E.P.A.’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. As long as

both of these federal agencies are represented in the Arsenal

CERCLA actions by the same Justice Department lawyers who have

professed that they have no conflict of interest, even though one of

their clients is a plaintiff and another a defendant in the same

consolidated action, there is no vigorous independent advocate for the

public interest.

As an additional argument, the defendant asserts that the

instant action is barred by sovereign immunity because the state

regulatory standards sought to be applied are not precise or objective,

and are ill-suited for uniform application. Defendant contends that

RCRA § 6001, [42 U.S.C. § 6961], must be strictly construed and

does not extend to circumstances in which the state has failed to

promulgate objective and ascertainable regulations by which federal

compliance can be fairly gauged. In support, the defendant cites State

of Fla. Dept. of Environmental Regulation v. Silvex Corp., 606

F.Supp. 159 (M.D.Fla.1985) and Kelly v. United States, 618 F.Supp.

1103 (W.D.Mich. 1985).

In Silvex, the State of Florida sued the United States Navy,

among other defendants, asserting a claim for negligently releasing

hazardous waste materials in violation of certain state statutes that

permitted the State to take emergency action when the spillage of

hazardous waste material posed an imminent threat to public health,

safety and welfare. Florida contended that the Navy had consented

to be sued under RCRA § 6001, [42 U.S.C. § 6961]. The Navy

moved for dismissal on the ground that the state statutes sought to be

enforced were not "requirements" as envisioned by Congress in

RCRA § 6001, [42 U.S.C. § 6961]. The Army’s argument in the

instant case tracks the Navy’s argument in the Silvex case.

In her analysis of the issue, Judge Black reviewed RCRA’s

legislative history and similar sovereign immunity waiver provisions

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contained in analogous federal environmental laws.

court’s opinion stated, in pertinent part:

The district

"A legislative report discussing the pre-

RCRA bill then before the Senate indicates the RCRA

was intended to force federal agencies dealing with

hazardous waste ‘to comply with State and local

controls on solid waste and hazardous waste disposal

as if they were private citizens.’ This includes

compliance with all substantive and procedural

requirements, ‘and specifically any requirements to

obtain permits.’ Senate Report No. 94-988, 70th

Cong., 2nd Session, at 24 (1976); 122 Cong.Rec.

32,631 (Sept. 27, 1976). The requirements referred

to in the Senate report are more in the nature of

regulatory guidelines and ascertainable standards that

a federal agency dealing with hazardous waste would

have to meet."

"Senate Report No. 94-988 further states that

section 6961 parallels the waiver provision of the

Clean Air Act, 42 U.S.C. § 7418, and the Federal

Water Pollution Control Act, 33 U.S.C. § 1323...

The legislative history of these provisions

demonstrates a similar intent to have requirements

defined as objective state standards of control..

"

"The courts interpreting requirements as used

in federal environmental legislation have also limited

the term to a state’s regulatory requirements. Courts

reviewing the waiver provisions of the Clean Air Act,

the FWPA [Federal Water Pollution Act], and the

Noise Control Act, 42 U.S.C. § 4903(b), the

language of which, ..-, directly parallels section

6961, consistently have held that requirements is a

limited term which cannot be expanded to include the

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kinds of state law liability provisions that the [State]

relies on in this case...." (citations omitted).

xx*xx* x *®

" _. To achieve uniformity and consistency in

state environmental regulation, sovereign immunity is

partially waived to require federal entities to comply

with state standards. This narrow intrusion into

federal sovereign immunity has required that courts

strictly define requirements as objective and

ascertainable state regulations; e.g., state pollution

standards or limitations, compliance schedules,

emissions standards, and control requirements..."

(citations omitted). /d. at 162-163.

The district court concluded that RCRA’s legislative history and

certain analogous federal statutes containing similar immunity waiver

provisions have strictly defined "requirements" as synonymous with

state objective regulations. Florida’s action against the Navy was

dismissed because the state statutes failed to set forth the specific,

precise standards intended by the term "requirements" contained in

RCRA § 6001, [42 U.S.C. § 6961].

The case of Kelly v. United States, supra, is similar. There

the district court considered the waiver provision contained in the

Federal Water Pollution Control Act, 33 U.S.C. § 1323(a), in the

context of state claims under Michigan’s water and environmental

laws being asserted against a federal agency. The court dismissed the

state claims because the state statutes did not provide "objective,

quantifiable standards subject to uniform application." Kelly, 618

F.Supp. at 1108.

I have set forth in an appendix to this order the pertinent state

regulations that apply to this action, including the regulations the

Army has allegedly violated. As emphasized by the State in its brief,

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these regulations track, almost verbatim, the federal regulations

promulgated by E.P.A., pursuant to RCRA, that already apply to all

federal agencies. Compare 6 CCR 1007-3, Subpart F, §§ 265.90

through 265.94 with 40 C.F.R. Part 265, Subpart F, §§ 265.90

through 265.94. Based on my review of these state regulations, I find

and conclude that they set forth sufficiently specific and precise

standards, subject to uniform application, to Satisfy the term

“requirements” as used in RCRA § 6001, [42 U.S.C. § 6961].

As can be clearly seen, RCRA § 6001, [42 U.S.C. § 6961],

is all-encompassing since it provides that federal facilities are subject

to “all Federal, State, Interstate, and local requirements, both

substantive and procedural....". Giving the words used their plain,

ordinary meaning, it is difficult to imagine a clearer statement of

legislative intent: federal facilities such as Basin F at the Rocky

Mountain Arsenal are subject to state and local requirements

respecting the treatment and disposal of hazardous waste provided that

those state and local requirements set out specific and precise

standards subject to uniform application. Having found that the

Colorado regulations satisfy these standards, I conclude that the

Army's motion to dismiss based on this argument must be denied.

Accordingly, it is ORDERED that the defendant’s motion to

dismiss the First Amended Complaint, or in the alternative for

Summary judgment or partial summary judgment, is denied.

The plaintiff State of Colorado is ORDERED to amend to

update [sic] its pending Motion for Preliminary Injunction and Motion

for Partial Summary Judgment within 11 days, if it desires to do so,

and apply for an expedited hearing specifying which issues remain for

decision.

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