ELR Citation: ELR 20800
No(s). 91-1360 (10th Cir. Apr 6, 1993)

The court reverses a district court ruling that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(h)'s preenforcement review bar prohibits a state from enforcing hazardous waste regulations, which implement the Resource Conservation and Recovery Act (RCRA), at a federal facility that the U.S. Environmental Protection Agency (EPA) has listed on the national priorities list (NPL). The U.S. Army, operator of the Rocky Mountain Arsenal in Denver, Colorado, had submitted a RCRA permit application in 1980 that listed a portion of the facility (Basin F) as a hazardous waste surface impoundment. In 1984, the Army began a remedial investigation and feasibility study (RI/FS) under CERCLA. Also in 1984, EPA authorized Colorado to implement the Colorado Hazardous Waste Management Act (CHWMA) in lieu of RCRA. In 1989, EPA listed Basin F on the NPL. Later in 1989, Colorado issued a CHWMA compliance order to the Army. The Army filed a declaratory judgment action in which the district court enjoined Colorado from enforcing its CHWMA order.

The court holds that although CERCLA §113(h) bars federal courts from reviewing "challenges" to CERCLA response actions, Colorado's enforcement of an order issued pursuant to EPA-delegated RCRA authority is not a challenge to the Army's response action. Congress expressed its intent that CERCLA work in conjunction with other hazardous waste laws and CERCLA §§114 & 302 provide that CERCLA does not affect obligations under state law or preempt states from imposing additional requirements. As a federal facility, the Rocky Mountain Arsenal is subject to RCRA regulation and, following EPA's delegation of RCRA authority to Colorado, action taken by Colorado under the CHWMA has the same force and effect as EPA action. The state's CHWMA order does not seek to stop the Army's CERCLA response action but merely seeks compliance with the CHWMA during the course of the action. The court notes that RCRA's citizen suit provision prohibits imminent hazard citizen suits (under RCRA §7002(a)(1)(B)) where a CERCLA response action is underway but does not prohibit citizen suit enforcement (under RCRA §7002(a)(1)(A)) with respect to such sites. The court notes that even if a state enforcement action were a challenge to the CERCLA response action, §113(h) only limits the jurisdiction of federal courts and, thus, would not prevent state court enforcement.

The court holds that CERCLA §120(a)(4), which preserves application of state law to federal facilities that are not on the NPL, does not preclude enforcement of the CHWMA at facilities that are on the list. CERCLA §120(i), which preserves the obligations of federal agencies to comply with RCRA, indicates that Congress did not intend to prevent states from discharging EPA-delegated RCRA responsibilities. Thus, placement of a site on the NPL has no bearing on a federal facility's obligation to comply with EPA-authorized state hazardous waste laws. The court rejects as "without merit" the federal government's contention that CERCLA's provision for state input in selection of cleanup standards bars independent enforcement of state law.

The court holds that CERCLA §121(e)(1), which exempts certain remedial action from federal, state, and local permits, has no application to the case because Colorado's compliance order did not require the Army to obtain a permit. Finally, the court holds that CERCLA §122(e)(6), which prevents potentially responsible parties from undertaking unapproved remedial action at sites where the government is conducting an RI/FS, does not exempt federal facilities from state enforcement orders. The court rejects an EPA interpretation of §122(e)(6), published at 54 Fed. Reg. 10520 (1989), in which EPA asserted authority to withhold authorization to a potentially responsible party from going forward with state-ordered RCRA corrective action, because the interpretation would permit EPA to preempt and modify state-law obligations contrary to CERCLA.

[The district court decision is published at 22 ELR 20088.]

Counsel for Plaintiff-Appellee
John T. Stahr, David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants-Appellants
Raymond T. Slaughter, Chief Deputy Attorney General; Laura E. Perrault, Ass't Attorney General
Attorney General's Office
State of Colorado Department of Law
1525 Sherman St., 5th Fl., Denver CO 80203
(303) 866-4500

Counsel for Amicus Curiae
Jack A. Van Kley, Ass't Attorney General
Attorney General's Office
Environmental Enforcement Section
30 E. Broad St., 25th Fl., Columbus OH 43266
(614) 466-4320

Charles E. Cole, Attorney General
Attorney General's Office
P.O. Box 110300, Juneau AK 99811
(907) 465-3600

Frank J. Kelley, Attorney General
Attorney General's Office
P.O. Box 30212, Lansing MI 48909
(517) 373-1110