ELR Citation: ELR 20088
No(s). 89-C-1646 (D. Colo. Aug 14, 1991)

The court holds that the Environmental Protection Agency's (EPA's) listing of Basin F in the Rocky Mountain Arsenal on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) national priorities list (NPL) divests the court of jurisdiction over Colorado's attempts to enforce its hazardous waste management program at Basin F. Before EPA listed Basin F on the CERCLA NPL, the court held that Colorado's enforcement action under its federally approved Resource Conservation and Recovery Act program was not precluded by the federal government's ongoing CERCLA cleanup action. The court first notes that Colorado may not seek civil penalties against the state for violations of Colorado's RCRA program because RCRA §6001 does not waive the federal government's sovereign immunity to civil penalties. The court next holds that CERCLA §113(h) bars precompletion review of remedial actions at sites listed on the NPL. The court notes that Congress has effectively delegated to EPA the power to decide what cases a federal court may hear. However, given recent U.S. Supreme Court precedent, the court does not believe that this delegation of power violates the separation-of-powers doctrine.

[Arelated case is published at 19 ELR 20815.]

Counsel for Plaintiff
Bradley Bridgewater, Robert Foster
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

Counsel for Defendants
James Ellman, Daniel S. Miller, Timothy R. Gablehouse
Attorney General's Office, CERCLA Litigation Section
1560 Broadway, Ste. 250, Denver CO 80202
(303) 894-2299

Linnea Brown
Holme Roberts & Owen
1700 Lincoln, Ste. 4100, Denver CO 80203
(303) 861-7000