Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision

Vicky L. Peters, Laura E. Perrault, and Susan Mackay Smith

Vicky L. Peters is senior assistant Attorney General, Laura E. Perrault is assistant Attorney General, and Susan Mackay Smith is legal assistant with the Natural Resources Section of the Colorado Attorney General's Office.

[23 ELR 10419]

Does the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ suspend the states' authority to enforce environmental laws at sites selected by the federal government for remedial action? The United States has taken that position to avoid compliance with state laws at federally owned hazardous waste sites. The issue recently came to a head before the Tenth Circuit Court of Appeals in a case concerning the U.S. Army's Rocky Mountain Arsenal (Arsenal), located near Denver, Colorado.² The court held that CERCLA does not preempt the states' rights to exercise independent authority to protect their citizens' health and welfare, and the environment. Because the U.S. Environmental Protection Agency (EPA) delegated its authority to enforce the Resource Conservation and Recovery Act (RCRA) to Colorado,³ the court ruled, the state "has the authority to enforce [RCRA] at the Arsenal, and '[a]ny action taken by [Colorado] … [has] the same force and effect as action taken by the [EPA]…."⁴

Background

The Site

The U.S. Army purchased the Arsenal property in 1942 for war-effort production. The Army used the 27 square mile site to make chemical and incendiary weapons, including mustard gas, white phosphorous, phosgene, and napalm. After World War II, the Army used the Arsenal for destroying and disposing of chemical warfare agents, testing high explosives, mixing hydrazine rocket fuel for the Air Force, and producing Sarin nerve agent. Additionally, the Army leased portions of the facility to private industry, primarily Shell Chemical Company. For 35 years, Shell produced a wide assortment of pesticides at the Arsenal, including aldrin, dieldrin, malathion, and parathion.

The decades of military and private manufacturing generated huge amounts of industrial waste. The Army and Shell discharged millions of gallons of liquid waste into unlined natural depressions in the ground and buried solid waste and munitions in unlined pits. Accidents and spills, some totaling hundreds of thousands of gallons, contributed to contamination at the site. Hundreds of migrating waterfowl, attracted by the open waste ponds, died from exposure to toxic chemicals. As early as 1954, farmers complained of damage to their crops and livestock from Arsenal-contaminated well water. In 1956, the Army responded by constructing Basin F — an asphalt-lined surface impoundment. The Army designed Basin F to have a maximum life span of 15 years, but Army reports from the 1960s state that the basin's liner was damaged and leaking. The Army also attempted deep-well injection of liquid wastes, but abandoned the practice after causing earthquakes in the Denver metropolitan area.

In 1975, the Colorado Department of Health (CDH) discovered off-site contamination — diisopropylmethyl-phosphonate (DIMP) and dicyclopentadiene (DCPD)⁵ — in ground and surface waters north of the Arsenal boundary. In the early 1980s, the Army and Shell ceased production and disposal activities at the site. By November 1988, when the Army declared that the sole remaining mission of the installation was cleanup, the Arsenal clearly qualified as "one of the worst hazardous waste pollution sites in the country."⁶

Today, millions of gallons of contaminated liquid remain in three storage tanks and a newly constructed, double-lined surface impoundment. Hundreds of thousands of cubic yards of contaminated soil remain within the former Basin F. Investigators have found dieldrin in soil throughout three-quarters of the property, a result of windblown deposition from spills and the dried-up disposal basins.⁷ The extent of contamination and other dangers remains unknown, despite the fact that the federal government, [23 ELR 10420] to date, has taken nine years and spent over $100 million on a remedial investigation.

Enforcement

In 1975, the CDH issued three cease and desist orders mandating that the Army and Shell clean up all sources of DCPD and DIMP at the Arsenal, cease discharging contaminants, monitor the groundwater, and prevent future releases. These orders were an early indication of the need for cooperation between the United States and Colorado in addressing contamination of the facility. In the years before 1986, the United States generally recognized its obligation to work with state regulators to comply with state and federal hazardous waste regulations. Indeed, in 1982, the Army, EPA, Shell, and the CDH signed a memorandum of agreement that acknowledged that both RCRA's and CERCLA's requirements apply to the Arsenal.

Between 1980 and 1985, the Army submitted various RCRA part A and B permit applications, and amended applications for the facility to EPA, and then to the state. The Army responded to an EPA requirement for submission of a closure plan for Basin F in June 1983, although both EPA and the CDH found the Army's plan to be deficient and EPA ordered the Army to revise and resubmit the plan. In 1984, after EPA authorized Colorado to implement the Colorado Hazardous Waste Management Act (CHWMA) in lieu of the federal RCRA program,⁸ the Army resubmitted its 1983 plan to the CDH. The CDH again rejected the plan and, after determining that several subsequent versions of the Army's closure plan were inadequate, it issued its own Basin F closure plan in October 1986. In November 1986, the state sued the Army as operator of Basin F under the CHWMA, alleging violations of groundwater protection regulations.⁹

Also in 1986, the United States abandoned its policy of RCRA compliance, claiming that CERCLA's comprehensive scheme precluded independent application of EPA-authorized, state RCRA programs at federal facilities such as the Arsenal. The Army announced it would not comply with Colorado's Basin F closure plan, but would clean up the area pursuant to a CERCLA interim action. Colorado responded by amending its suit to seek enforcement of its Basin F CHWMA closure plan. In the meantime, cleanup and closure of Basin F lagged seriously behind the schedules mandated by the closure plan.

The Litigation

The District Court Decisions

In Colorado v. Department of Army, the federal district court initially denied the Army's motion to dismiss the state's enforcement suit, declaring: "Nothing in the cited statutes indicates that a CERCLA action should take precedence over a RCRA enforcement action. On the contrary, it appears that CERCLA was intended to operate independently of and in addition to RCRA and that the statutory schemes are not mutually exclusive."¹⁰

Recognizing the conflict of interest inherent in the U.S. attempt to allow the Army, a liable party, to manage cleanup of the facility without outside oversight, the court found that Colorado was best situated to ensure protection of its natural resources and citizens. The district court stated:

The same Justice Department attorneys have repeatedly claimed to represent both the Army and the E.P.A. in this action, even though the Army is a defendant and the E.P.A. acts for the United States as a plaintiff….

Since it is the E.P.A.'s job to achieve a cleanup as quickly and thoroughly as possible, and since the Army's obvious financial interest is to spend as little money and effort as possible on the cleanup, I cannot imagine how one attorney can vigorously and whole-heartedly advocate both positions….

… Having the State actively involved as a party would guarantee the salutary effect of a truly adversarial proceeding that would be more likely, in the long run, to achieve a thorough cleanup.

I conclude that the E.P.A.'s potential monitoring of the Army's Basin F cleanup operation under CERCLA does not serve as an appropriate or effective check on the Army's efforts.¹¹

The court's legal analysis, however, seemed to rely heavily on CERCLA § 120(a)(4), which preserves application of state laws concerning removal and remedial action at federal facilities that are not listed on CERCLA's national priorities list (NPL).¹² Seventeen days after the district court's ruling, EPA listed Basin F on the NPL.¹³ That same day, the United States moved the district court for reconsideration of its decision in light of the listing. The court never ruled on that motion and the Army continued to defy the CDH's authority and ignore the CHWMA's requirements. On September 1, 1989, the CDH issued a compliance order citing the Army for over 40 additional CHWMA violations at Basin F, then in the final stages of a controversial Army "interim response action."¹⁴ The state ordered the Army to submit various plans and reports, including a closure plan for the basin. The state directed the Army not to implement any work plans, closure plans, or postclosure plans for the Basin F site without state approval.

The federal government responded by filing a new lawsuit, asking the district court to declare that the state had no authority to enforce the CHWMA at a CERCLA site.¹⁵ The United States argued, in part, that CERCLA § 113(h)'s ban on preenforcement review precluded Colorado from enforcing hazardous waste laws at the Arsenal.

CERCLA § 113(h) states: "No Federal court shall have jurisdiction under Federal law … to review any challenges to removal or remedial action selected under section 9604, [23 ELR 10421] or to review any order issued under 9606(a)…."¹⁶ Congress intended § 113(h) to prevent potentially responsible parties (PRPs) from delaying or halting cleanups through legal maneuvering.¹⁷ The section thus precludes federal jurisdiction over "challenges" to a CERCLA response action except under specified circumstances, such as when the response at issue is already complete. The United States asserted that § 113(h) barred enforcement of the CDH's compliance order as a "challenge" to a CERCLA response action. The district court reluctantly adopted the U.S. reasoning and, on August 8, 1991, enjoined Colorado from taking "any action" to enforce the CHWMA at Basin F.¹⁸

The Appeal

On appeal, the state argued that RCRA and CERCLA are complementary, not mutually exclusive, and that listing a site on the NPL is irrelevant to a federal court's exercise of subject matter jurisdiction. Colorado emphasized the necessity of giving states a substantial voice in decisions affecting the cleanup and management of federal facilities, especially because a Department of Justice policy, known as the "unitary executive theory," cripples EPA enforcement powers by forbidding EPA lawsuits against other federal agencies.¹⁹ Colorado maintained that its compliance order did not challenge a CERCLA response action, that the Basin F interim response action had been completed to the Army's satisfaction by the date of the order's issuance, and that the federal reading of § 113(h) would render meaningless CERCLA §§ 114(a), 120(i), and 302(d), all of which clearly recognize state enforcement authority.²⁰

Section 114(a) states: "Nothing in this chapter shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State."²¹

Section 302(d) states: "Nothing in this chapter shall affect or modify in any way the obligation or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants."²²

And under § 120(i): "Nothing in this section [120] shall affect or impair the obligation of any department, agency, or instrumentality of the United States to comply with any requirement of the Solid Waste Disposal Act (including corrective action requirements)."²³

The Tenth Circuit analyzed the language of § 113(h), noting that well-settled rules of statutory construction obligate courts to construe harmoniously the provisions of potentially conflicting statutes whenever possible and to give meaning to every provision of a statute.²⁴ The court concluded that "an action by Colorado to enforce the final amended compliance order, issued pursuant to its EPA-delegated RCRA authority, is not a 'challenge' to the Army's CERCLA response action."²⁵

The court held that the U.S. interpretation of § 113(h) not only conflicts with §§ 114(a) and 302(d) but also with RCRA's citizen suit provision.²⁶ The court explained that § 7002 allows citizens — defined to include states — to bring suit under two circumstances: under § 7002(a)(1)(A), to enforce explicit requirements that are either in the law or have become effective pursuant to law, and under § 7002(a)(1)(B), to abate situations that may present an imminent and substantial endangerment to the public or environment.²⁷ RCRA expressly prohibits § 7002(a)(1)(B) suits at sites where EPA or a state is pursuing a remedy under CERCLA.²⁸ Agency action precludes suits under § 7002(a)(1)(A), however, only if EPA or the state has "commenced and is diligently prosecuting" a RCRA enforcement action.²⁹ Thus, Congress intended to allow citizen enforcement of RCRA at CERCLA sites where PRPs persist in violating statutory or regulatory provisions. Accordingly, the court concluded that Congress must not have intended CERCLA response actions to bar state enforcement of RCRA.³⁰

Interestingly, the court did not stop at rejecting the argument that § 113(h) precludes the independent enforcement of state law. Rather, it found that even if § 113(h) did apply, Colorado could still enforce its RCRA compliance order in state court. The court explained:

Even if an action by Colorado to enforce the final amended compliance order would be a "challenge" to the Army's CERCLA response action, the plain language of § [113(h)] would only bar a federal court from exercising jurisdiction over Colorado's action. Colorado, however, is not required to invoke federal court jurisdiction to enforce the final amended compliance order. Rather, Colorado can seek enforcement of the final amended compliance order in state court. Therefore, § [113(h)] cannot bar Colorado from taking "any" action to enforce the final compliance order.³¹

The United States, recognizing it could not ignore the language in CERCLA §§ 114(a), 302(d), or 120(i), proposed that the court construe those sections as mere acknowledgements of the federal government's responsibility to incorporate applicable or relevant and appropriate requirements (ARARs) into cleanup plans selected under CERCLA § 121(d),³² unless those ARARs are waived pursuant to § 121(d)(4). In short, the federal government argued that the CERCLA remedy selection process defined and limited the role of state laws at CERCLA sites.

[23 ELR 10422]

The court rejected this reasoning, in part because Congress left §§ 114 and 302 — enacted in 1980 — unchanged in 1986 when the Superfund Amendments and Reauthorization Act³³ incorporated the ARARs' process into CERCLA § 121's remedy selection provisions.³⁴ The court also noted that CERCLA sites need to satisfy ARARs only at the completion of remedial action; ARARs do not operate to protect the public or environment while a site is being investigated and cleaned up.³⁵ Thus, under the federal government's interpretation, once a facility is on the NPL, it would be immune, during the remedial investigation/feasibility study process and pending implementation of a remedy, from regulation under laws designed to ensure responsible management of dangerous substances. The irrationality of such a reading of CERCLA is particularly apparent with regard to the Arsenal, where remedial studies have been ongoing for almost 10 years and the actual cleanup will take decades.

The court specifically noted that its interpretation of §§ 114(a) and 302(d) did not render the ARAR's provision irrelevant. That process, the court pointed out, is useful for states that do not have independent regulatory authority, such as an authorized RCRA program, at particular hazardous waste sites.³⁶ The court ruled that "nothing in CERCLA supports the contention that Congress intended the ARAR's provision to be the exclusive means of state involvement in hazardous waste cleanup."³⁷

The Tenth Circuit quickly dismissed a U.S. argument that listing a federal facility on the NPL precludes application of state law to that site under § 120(a)(4). Section 120(a)(4) states: "State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States when such facilities are not included on the National Priorities List."³⁸

The court relied on CERCLA § 120(i), which clarifies that nothing in § 120 "affect[s] or impair[s]" the federal government's obligation to comply [with] any RCRA requirements, including corrective action requirements.³⁹ The court ruled: "Placement on the national priority list simply has no bearing on a federal facility's obligation to comply with state hazardous waste laws which have been authorized by an EPA delegation of RCRA authority or a state's ability to enforce such laws."⁴⁰

The United States also maintained that CERCLA § 122(e)(6), which governs "inconsistent response," bars enforcement of the CHWMA at the Arsenal. Section 122(e)(6) states:

When either the President, or a potentially responsible party pursuant to an administrative order or consent decree under [CERCLA], has initiated a remedial investigation and feasibility study for a particular facility under this chapter, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the President.⁴¹

Congress intended § 122(e)(6) "to avoid situations in which the [potentially responsible party] begins work at a site that prejudges or may be inconsistent with what the final remedy should be or exacerbates the problem."⁴² Such a rationale clearly has no application to an action, ordered by a state pursuant to an EPA-authorized RCRA program, to ensure that releases of contamination are addressed safely and appropriately.

The court rejected EPA's guidance that asserts EPA's authority under § 122(e)(6) to veto state-issued compliance orders,⁴³ noting:

EPA's interpretation … has several problems, not the least of which is that it permits the EPA to preempt state law contrary to § [114(a)] and to modify a responsible party's obligations and liabilities under state RCRA programs contrary to § [302(d)]. Section [122(e)(6)] makes absolutely no mention of RCRA-authorized state actions, and it seems highly suspect that Congress intended this provision which is buried within a subsection entitled "notice provisions" in a section addressing settlements with private responsible parties to resolve conflicts between state-RCRA laws and CERCLA response actions.⁴⁴

Thus, the court concluded: "Because the EPA's interpretation of § [122(e)(6)] is contrary to the plain and sensible meaning of §§ [122, 114(a), and 302(d)], and, when applied to federal facilities, § [120], we do not afford it any deference."⁴⁵

The court noted a potential conflict between § 121(e)(1), which exempts certain CERCLA response actions from federal, state, and local permitting requirements, and §§ 114(a) and 302(d), which appear to preserve such requirements. However, because Colorado's final compliance order did not mandate that the Army obtain a RCRA permit, the court declined to decide whether Colorado could require the Army to obtain RCRA permits.⁴⁶

Implications

The court's holding clarifies that states are equal partners with the federal government in providing protection for the public health and welfare, even at hazardous waste sites. The ruling empowers states to enforce the express mandate of CERCLA that federal agencies comply with environmental laws to the same extent as other PRPs. Indeed, the Tenth Circuit's recognition that CERCLA § 113(h) would not preclude states from enforcing environmental laws in state courts — even if such enforcement were to "challenge" ongoing CERCLA actions — illustrates that Congress did not intend § 113 to provide federal [23 ELR 10423] agencies with an end run around CERCLA §§ 114(a) and 302(d). Considering the poor compliance record of the federal government and the limitations on EPA's enforcement powers at federal sites, the states' independent enforcement role is essential to ensuring expeditious cleanup of these facilities.

Although the case before the Tenth Circuit involved a federal facility, the federal government's interpretation of CERCLA §§ 113(h), 114, 121, and 302 would also have exempted private facilities from state regulation during the potentially protracted remedial investigation/feasibility study process and pending implementation of remedial action, since those sections apply equally to nonfederal facilities. The federal government's argument would also have exempted PRPs from other federal environmental laws, in addition to RCRA, because many of those laws rely on states as primary enforcers. Thus, the court's opinion thwarted an attempt to open a dangerous loophole in the Superfund process that threatened to exempt thousands of the worst toxic waste sites from regulation under those federal environmental laws that delegate enforcement authority to the states.

The Tenth Circuit's vindication of the states' traditional authority to protect their citizens and environment should act as a catalyst to encourage states and EPA to develop cooperative, constructive relationships at hazardous waste sites. Historically, conflicts over the states' role in cleanup decisions at federal facilities and private sites have cost taxpayers millions of dollars and consumed the resources of scores of government regulators and attorneys.⁴⁷ Effective partnerships between EPA and states can redirect these resources into better, quicker cleanups, and away from expensive and unnecessary litigation.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 007-075.

2. United States v. Colorado, 23 ELR 20800 (10th Cir. 1993).

3. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-078.

4. 23 ELR at 20801 (quoting 42 U.S.C. § 6926(d), ELR STAT. RCRA 032).

5. DIMP is a byproduct of the production of Sarin nerve agent: DIMP occurs very few other places in the world. DIMP in groundwater is difficult to treat, because its mobility makes it less likely to adsorb onto carbon filtration systems. Shell used DCPD in pesticide operations. State experts believe that DCPD is a fingerprint of the groundwater contamination plume from Basin F.

6. Id. at 20801.

7. An abbreviated list of other contaminants includes chlorinated solvents, organochlorine pesticides, heavy metals, n-nitrosodimethylamine, and 1,2-Dibromo-3-chloropropane.

8. 49 Fed. Reg. 41036 (Oct. 19, 1984).

9. Colorado v. U.S. Dep't of Army, 707 F. Supp. 1562, 19 ELR 20815 (D. Colo. 1989).

10. Id. at 1569-70, 19 ELR at 20818.

11. Id. 19 ELR at 20818-19.

12. 42 U.S.C. § 9620(a)(4), ELR STAT. CERCLA 048 (emphasis added).

13. 54 Fed. Reg. 10512, 10515-16 (Mar. 13, 1989). On July 27, 1987, when EPA listed most of the Arsenal on the NPL, the Agency declined to list Basin F based on its policy of not listing sites that were subject to RCRA's corrective action authority. 52 Fed. Reg. 27620 (July 22, 1987).

14. CDH Compliance Order No. 89-05-2301.

15. United States v. Colorado, 22 ELR 20088 (D. Colo. 1991), rev'd, 23 ELR 20800 (10th Cir. 1993).

16. 42 U.S.C. § 9613(h), ELR STAT. CERCLA 040.

17. United States v. Colorado, 23 ELR 20800, 20804 (10th Cir. 1993).

18. United States v. Colorado, 22 ELR 20088, 20091, rev'd, 23 ELR 20800 (10th Cir. 1993).

19. The Department of Justice does not allow federal agencies to sue one another, or issue one another unilateral orders. See Maine v. Department of Navy, 702 F. Supp. 322, 338 n.8, 19 ELR 20614, 20622, n.8 (D. Me. 1988) (Magistrate's opinion) (noting U.S. position that EPA has no authority to proceed against the federal government).

20. 42 U.S.C. §§ 9614, 9620(i), and 9652(d), ELR STAT. CERCLA 041, 051, 065.

21. Id. § 9614, ELR STAT. CERCLA 041.

22. Id. § 9652(d), ELR STAT. CERCLA 065.

23. Id. § 9620(i), ELR STAT. CERCLA 051.

24. United States v. Colorado, 23 ELR at 20803 (10th Cir. 1993).

25. Id.

26. 42 U.S.C. § 6972, ELR STAT. RCRA 055.

27. Id. § 6972(a)(1)(A) and (B), ELR STAT. RCRA 055.

28. Id. § 6972(b)(2)(B) and (C), ELR STAT. RCRA 056.

29. Id. § 6972(b)(1)(B), ELR STAT. RCRA 056.

30. United States v. Colorado, 23 ELR at 20805 (10th Cir. 1993).

31. Id. (emphasis added).

32. 42 U.S.C. § 9621(d), ELR STAT. CERCLA 053.

33. Pub. L. No. 99-499, 100 Stat. 1613.

34. As the court noted, "[c]ertainly Congress could not have intended the ARARs provision to be the exclusive means of state involvement in hazardous waste cleanup as provided under §§ [114(a)] and [302(d)] when the ARARs concept did not even come into being until six years after CERCLA was enacted." Colorado, 23 ELR at 20806.

35. Id.

36. Id.

37. Id. (emphasis in original).

38. 42 U.S.C. § 9620(a)(4), ELR STAT. CERCLA 048 (emphasis added).

39. Id. § 9620(i), ELR STAT. CERCLA 051.

40. United States v. Colorado, 23 ELR at 20806 (10th Cir. 1993).

41. 42 U.S.C. § 9622(e)(6), ELR STAT. CERCLA 057.

42. 132 CONG. REC. S14919 (daily ed. Oct. 3, 1986).

43. 54 Fed. Reg. 10520 (Mar. 13, 1989).

44. United States v. Colorado, 23 ELR at 20807 (10th Cir. 1993).

45. Id. (quotations omitted).

46. Id. at 20806.

47. See Carolyn L. Buchholz, Can a Jurisdictional Showdown Under Superfund Be Avoided?, 19 ELR 10327 (1989).