ELR Citation: ELR 20418
No(s). 94-D-2004 (10th Cir. Nov 18, 1996)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempts a Denver zoning ordinance that conflicts with a U.S. Environmental Protection Agency (EPA) remedial order at the Denver Radium Superfund site. The court first holds that Denver's zoning ordinance is in actual conflict with EPA's remedial order, because it is impossible for the site owner to comply with both. Further, the zoning ordinance stands as an obstacle to the objectives of CERCLA, whose purpose is to effect the expeditious and permanent cleanup of hazardous waste sites and to allow EPA the flexibility needed to address site-specific problems. The court rejects Denver's argument that because CERCLA expressly preempts state and local permit requirements, Congress did not intend to impliedly preempt state or local substantive law. The court would need especially reliable indications of an intent so contrary to the overall objectives of CERCLA, and the court does not find any in either CERCLA or its legislative history. The court also holds that Denver's zoning ordinances are not applicable or relevant and appropriate requirements of state law. Although the U.S. Supreme Court has held that the term "state" in §136 of the Federal Insecticide, Fungicide, and Rodenticide Act includes political subdivisions, extending this holding would produce a result contrary to CERCLA's overall objectives. The court next holds that it lacks jurisdiction to review Denver's arguments that the remedy violates CERCLA §121 and that when two remedies are available to EPA, EPA should choose the remedy that complies with both CERCLA and local law. Although presented as a defense to EPA's declaratory judgment action against Denver, the arguments are a challenge to EPA's chosen remedy, and the court is barred from reviewing that challenge under CERCLA §113(h).

[The district court opinion is published at 26 ELR 21110. Briefs are digested at ELR BRIEFS & PLEADS. 66503.]

Counsel for Plaintiff
T. Shaun Sullivan, Ass't City Attorney
City Attorney's Office
9500 Civic Center Dr., Denver CO 80229
(303) 538-7210

Counsel for Defendants
Daniel W. Pinkston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before EBEL, KELLY, and BRISCOE, Circuit Judges.