Colo. Dep't of Pub. Health & Env't, Hazardous Materials & Waste Management Division v. United States

693 F.3d 1214

COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT, HAZARDOUS MATERIALS AND WASTE MANAGEMENT DIVISION, Plaintiff–Appellant,

v.UNITED STATES of America, United States Department of Defense, Leon E. Panetta, as United States Secretary of Defense, Frank Kendall, Under Secretary of Defense for Acquisition, Technology and Logistics, Assembled Chemical Weapons Alternatives Program, Conrad F. Whyne, as Acting Program Manager of Assembled Chemical Weapons Alternatives Program, United States Department of the Army Pueblo Chemical Depot, Timothy M. Greenhaw, Lieutenant Colonel, as Commander of United States Department of the Army Pueblo Chemical Depot, Defendants–Appellees.

No. 09–1554.

United States Court of Appeals, Tenth Circuit.

Sept. 5, 2012.

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:08–CV–01883–RPM).¹

David E. Kreutzer, First Assistant Attorney General (John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Richard E. Lotz, Assistant Attorney General, with him on the briefs), Denver, CO, for Plaintiff–Appellant.

Maggie B. Smith (Ignacia S. Moreno, Assistant Attorney General, Lisa E. Jones, Alan D. Greenberg, Sambhav N. Sankar, with her on the brief), United States Department of Justice, Washington D.C., for Defendants–Appellees.

Before LUCERO, EBEL, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

Since the 1950s, the United States has stored chemical weapons at the Army's weapons depot located near Pueblo, Colorado (“Depot”). Congress has now mandated that the Army destroy those weapons by 2017. Separately, Congress authorized the State of Colorado to regulate hazardous waste in that state. Invoking that regulatory authority, Plaintiff–Appellant Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (“Colorado” or “CDPHE”), has declared the chemical weapons stored at the Depot awaiting destruction to be hazardous waste. In this action, Colorado seeks to enforce against the Depot Colorado's regulation prohibiting storage of any hazardous waste.

The specific question presented by this appeal is whether Congress's mandate that the Army destroy these chemical weapons at the Depot by 2017 preempts Colorado's enforcement against the Depot of its regulation prohibiting storage of any hazardous waste. This case thus lies at the intersection of congressional mandates that, under these circumstances, support opposing positions. Based on the fact that Congress 1) delegated to Colorado the authority to regulate hazardous waste, so long as the State's regulations are at least as stringent as federal hazardous waste regulations, and 2) required federal agencies to follow such state hazardous waste regulation, Colorado argues that the United States, in operating the Depot, must comply with the State's prohibition against storing hazardous waste. Based instead on the fact that Congress mandated that the Army destroy the chemical weapons at the Depot and gave the Army until 2017 to complete their destruction, the United States argues it cannot comply with Colorado's regulation prohibiting the storage of any hazardous waste.

This difficult case requires us, then, to choose between opposing congressional mandates. Ultimately we are persuaded by the detailed manner with which Congress has addressed and mandated the destruction of the chemical weapons stored at the Depot to conclude that that federal law preempts Colorado's attempt to regulate that destruction process by enforcing its prohibition of the storage of hazardous waste against the Depot. Therefore, having jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's decision to dismiss Colorado's claims against the United States.

I. BACKGROUND

A. Colorado's federally-derived authority to regulate hazardous waste

In 1976, Congress enacted the Resource Conservation and Recovery Act (“RCRA”), see42 U.S.C. §§ 6901–6992k, in part to establish “a comprehensive regulatory scheme for the transportation, treatment, and disposal of hazardous wastes.” United States v. Magnesium Corp., 616 F.3d 1129, 1131–32 (10th Cir.2010) (citing RCRA's Subtitle C, codified at 42 U.S.C. §§ 6921–6939f). Congress charged the federal Environmental Protection Agency (“EPA”) with administering RCRA. See United States v. Power Eng'g Co., 303 F.3d 1232, 1236 (10th Cir.2002). Nevertheless, a state can apply to the EPA “for authorization to administer and enforce its own hazardous waste program [so long as] its program is equivalent to the federal program and provides adequate enforcement.” Id.; see42 U.S.C. § 6926(b).

Colorado has enacted its own hazardous waste program, see Colorado Hazardous Waste Management Act (“CHWMA”), Colo.Rev.Stat. §§ 25–15–301 to –327, and in 1984, the EPA authorized Colorado “to operate its hazardous waste program in lieu of the federal program,” 49 Fed.Reg. 41,036 (Oct. 19, 1984). See also United States v. Colorado, 990 F.2d 1565, 1571 (10th Cir.1993). CDPHE administers Colorado's hazardous waste management program.

Colorado has promulgated regulations to implement CHWMA. SeeColo.Rev.Stat. § 25–15–302(2). Most relevant here, 6 Colo.Code Regs. § 1007–3:268.50, like its federal counterparts, see42 U.S.C. § 6924(j); 40 C.F.R. § 268.50(a)(2), (b), (c), generally prohibits the storage of “hazardous wastes” which are restricted from land disposal. 6 Colo.Code Regs. § 1007–3:268.50(a).²

A state can adopt “more stringent” regulations than federal law requires. 42 U.S.C. § 6929; see also Colorado, 990 F.2d at 1569. Thus, “RCRA sets a floor, not a ceiling, for state regulation of hazardous wastes.” Safety–Kleen, Inc. v. Wyche, 274 F.3d 846, 863 (4th Cir.2001) (quotation omitted). Important here, however, a state's authority to enact more stringent hazardous waste regulations does not insulate the state's regulations from federal-law preemption. See Blue Circle Cement, Inc. v. Bd. of Cnty. Comm'rs, 27 F.3d 1499, 1504–05 (10th Cir.1994); ENSCO, Inc. v. Dumas, 807 F.2d 743, 744–45 (8th Cir.1986). Therefore, a state's “more stringent” hazardous waste regulation may still be preempted if, for example, it frustrates the purpose or objective of a federal law. See Blue Circle Cement, 27 F.3d at 1504–09 (citing cases); ENSCO, 807 F.2d at 744–45. This conclusion, that federal law can preempt conflicting state hazardous waste regulations, is consistent with RCRA's savings provision, which provides only that “[n]othing in this subchapter [referring to RCRA 42 U.S.C. §§ 6901–6992k] shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those imposed by [federal] regulations.” ³42 U.S.C. § 6929 (emphasis added).

Pursuant to the Federal Facilities Compliance Act, the federal government and its agencies must comply with an EPA authorized state program regulating hazardous waste, such as Colorado's, “ ‘to the same extent, as any person....’ ” Colorado, 990 F.2d at 1569 (quoting 42 U.S.C. § 6961(a)). The United States has thus waived its sovereign immunity from state-imposed permit requirements, as well as conditions imposed by the state for the storage, treatment and disposal of hazardous waste. See United States v. New Mexico, 32 F.3d 494, 495, 497 (10th Cir.1994); Colorado, 990 F.2d at 1569 n. 4. This waiver of sovereign immunity, however, again does not insulate a state regulation from federal preemption.

B. The Pueblo Chemical Depot

The Depot is one of several Army installations where the United States stores chemical weapons. Currently, the Army is storing “more than 2600 tons of ... mustard agent in mortars and projectile munitions” at the Depot, in ninety-eight “igloos,” which are “earthen-covered concrete structures.” (Aplt.App. at 82; Aple. Supp.App. at 36 ¶ 3; 55 ¶ 3.) Four of these ninety-eight igloos contain leaking chemical weapons and “contaminated personal protective equipment.” ⁴ (Aplt.App. at 83.) The other ninety-four igloos contain chemical munitions that remain usable as weapons.

C. Congress's mandate that the Department of Defense destroy the United States' stockpile of chemical weapons

In 1985, Congress directed the Secretary of Defense (“Secretary”) to destroy the United States' then-existing stockpile of chemical weapons. 50 U.S.C. § 1521(a). In 1994, Congress forbade the Secretary from transporting “any chemical munition that constitutes part of the chemical weapons stockpile out of the State in which that munition [wa]s located on October 5, 1994.” Id. § 1512a(a). Thus, Congress has mandated that the Department of Defense (“DOD”) destroy the Depot's chemical weapons in Colorado.

Congress further directed the Secretary, in destroying these weapons, to provide for—

(A) maximum protection for the environment, the general public, and the personnel who are involved in the destruction of the lethal chemical agents and munitions ..., including but not limited to the use of technologies and procedures that will minimize risk to the public at each site; and

(B) adequate and safe facilities designed solely for the destruction of lethal chemical agents and munitions.

Id. § 1521(d)(1) (2011).

In order to comply with Congress's directive to destroy the United States' chemical weapons, the DOD originally intended to incinerate these weapons. See Chem. Weapons Working Grp., Inc. v. U.S. Dep't of the Army, 111 F.3d 1485, 1487–88 (10th Cir.1997). Before doing so, however, Congress required that the Army conduct testing to verify the viability of this method of destruction. See 50 U.S.C. § 1521(k) (1990; subsequently amended); see also Chem. Weapons Working Grp., 111 F.3d at 1487–88. By 1993, the Army had determined that it could incinerate the chemical weapons. See Chem. Weapons Working Grp., 111 F.3d at 1487–88. Several storage sites other than the Depot then began the process of building incineration plants and incinerating their...