ELR Citation: ELR 20072
No(s). 89-B-181 (D. Colo. Aug 13, 1991)

The court holds that the U.S. Department of Energy (DOE) violated the Resource Conservation and Recovery Act (RCRA) by storing mixed residues without a RCRA permit at the Rocky Flats Nuclear Weapons Plant in Colorado, and that DOE must obtain a permit for the illegally stored mixed residues within two years or cease plutonium processing. When operating, Rocky Flats generates radioactive constituents mixed with hazardous waste, including mixed wastes and mixed residues. In 1986, the U.S. Environmental Protection Agency (EPA) determined that RCRA applies to mixed radioactive and hazardous waste. An earlier court order in this litigation, 20 ELR 21044, held that DOE's mixed residues were subject to RCRA, yet DOE never obtained interim status or a permit for the mixed residues.

The court first holds that DOE may store up to 55 gallons of newly generated liquid mixed residues in satellite accumulation areas without violating RCRA's permit requirement. The court next holds that DOE may store newly generated mixed residues in specified locations that have interim status without violating a 1601 cubic yard limit on storage of mixed waste, because under RCRA, no operative distinction exists between mixed waste and mixed residues. Plutonium is not a regulated substance under RCRA, and the only difference between mixed waste and mixed residues is that mixed residues contain a higher concentration of plutonium. Further, the 1601 limit did not limit the total capacity for plantwide storage of mixed waste but only the total capacity for interim status container storage. Thus, the 1601 limit applies only to storage units with interim status and not to those without interim status. Since the court concludes that DOE can store newly generated mixed residues without violating RCRA's permit requirement, the court denies the plaintiff's request for an injunction prohibiting restart of plutonium processing operations after a two-year lapse. The court next holds that the plaintiff has established that DOE is storing 599.5 cubic yards of existing mixed residues in violation of RCRA. The court holds that an equitable order is necessary to secure compliance with RCRA, because the record shows that DOE flagrantly disregarded RCRA's permit process, engaged in a constant pattern of delay and obfuscation, and maintained an attitude that DOE is a governmental agency that can indefinitely avoid RCRA's mandates with impunity. For example, in the face of EPA's determination that DOE's mixed waste is subject to RCRA, DOE persisted in its meritless claim to the contrary. Only on the court's questioning at hearing did DOE admit a longstanding RCRA violation of storing mixed residues without a permit or interim status. Thus, the court rules that DOE must within two years obtain a permit for the mixed residues or cease operations at Rocky Flats that generate hazardous waste or mixed radioactive and hazardous waste.

[The court's earlier order is published at 20 ELR 21044, and pleadings in this case are published at ELR PEND. LIT. 66151.]

Counsel for Plaintiff
Adam Babich
1515 Arapahoe St., Tower 3, Ste. 1100, Denver CO 80202
(303) 820-4497

Counsel for Defendant
Mary Elizabeth Ward
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

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