ELR Citation: ELR 21044
No(s). 89-B-181 (D. Colo. Apr 12, 1990)

The court holds that wastes stored at the Department of Energy's Rocky Flats, Colorado, Plant are hazardous wastes subject to the Resources Conservation and Recovery Act (RCRA). Under RCRA regulations, when hazardous wastes are mixed with other wastes, the whole mixture is subject to RCRA requirements, and when hazardous wastes are burned, the residue is subject to RCRA requirements even if the residue is not itself hazardous. Although the waste is stored for later recovery of its plutonium content, it is not destined for immediate reuse and is not in a continuous stream from one production process to another. The court next declines to invoke the doctrine of initial primary jurisdiction to delay its ruling in this case pending ongoing negotiations between the Department of Energy and Colorado. Initial primary jurisdiction is a discretionary doctrine that allows courts to defer to an administrative agency for its views where enforcement of a claim requires the resolution of issues that have been placed in the special competence of the agency. In this case, the Environmental Protection Agency (EPA) is primarily responsible for implementing RCRA, and EPA's position is clear that the mixed waste is hazardous. Moreover, Colorado has opposed delay of the court's ruling, and RCRA's citizen suit provision sets out narrow circumstances when citizen suits are to be delayed pending administrative action.

Counsel for Plaintiff
Adam Babich
Cornwell & Blakey
17th Street Plaza, Ste. 2650, 1225 17th St., Denver CO 80202
(303) 295-2500

Counsel for Defendants
Craig Schaffer
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 786-5236

William G. Pharo, Ass't U.S. Attorney
633 17th St., Ste. 1600, Denver CO 80202
(303) 294-1300