U.S. v. State of Colo.

Page 1565

990 F.2d 1565

36 ERC 1377, 61 USLW 2620, 23 Envtl.

L. Rep. 20,800

UNITED STATES of America, Plaintiff-Appellee, v. STATE OF COLORADO and Colorado Department of Health Defendants-Appellants State of Alaska, State of Arkansas, State of California State of Connecticut, State of Indiana, State of Iowa, State of Kansas, Commonwealth of Kentucky, State of Michigan State of Minnesota, State of Missouri, State of Nebraska, State of Nevada, State of New Mexico, State of New York, State of North Carolina, State of Ohio, State of Oregon, Commonwealth of Pennsylvania, State of Tennessee, State of Utah, and State of Wyoming, Amici Curiae.

No. 91-1360.

United States Court of Appeals, Tenth Circuit.

April 6, 1993.

Rehearing Denied June 30, 1993.

Gale A. Norton, Atty. Gen., State of CO (Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Patricia S. Bangert, Deputy Atty. Gen., Lynn B. Obernyer, First Asst. Atty. Gen., Natural Resources Section, Casey A. Shpall, First Asst. Atty. Gen., Laura E. Perrault, Asst. Atty. Gen., CERCLA Litigation Unit, with her, on the briefs), Denver, CO, for defendants-appellants.

John T. Stahr, Atty., Dept. of Justice, Environment and Natural Resources Div. (Roger Clegg, Acting Asst. Atty. Gen., David C. Shilton, Bradley S. Bridgewater, Attys., Dept. of Justice, Environment and Natural Resources Div., with him, on the brief), Washington, D.C., for plaintiff-appellee.

Lee Fisher, Atty. Gen., State of OH, and Jack A. Van Kley, Asst. Atty. Gen., Environmental Enforcement Section, State of OH, Columbus, OH, filed a brief on behalf of amici curiae. Charles E. Cole, Atty. Gen., State of AK, Juneau, AK, Winston Bryant, Atty. Gen., State of AR, Little Rock, AR, Daniel E. Lungren, Atty. Gen., State of CA, Theodora Berger, Roderick E. Walston, Walter E. Wunderlich, Sara J. Russell, and Richard Tom, Los Angeles, CA, Richard Blumenthal, Atty. Gen., State of CT, Hartford, CT, Linley E. Pearson, Atty. Gen., State of IN, Indianapolis, IN, Bonnie J. Campbell, Atty. Gen., State of IA, Des Moines, IA, Robert T. Stephan, Atty. Gen., State of KS, Topeka, KS, Randall G. McDowell, Manager, Natural Resources and Environmental Protection Cabinet, Com. of KY, Frankfort, KY, Frank J. Kelley, Atty. Gen., State of MI, Lansing, MI, Hubert H. Humphrey, III, Atty. Gen., State of MN, and Stephan Shakman, St. Paul, MN, William L. Webster, Atty. Gen., State of MO, and Shelley A. Woods, Jefferson City, MO, Don Stenberg, Atty. Gen., State of NE, Lincoln, NE, Frankie Sue Del Papa, Atty. Gen., State of NV, Carson City, NV, Tom Udall, Atty. Gen., State of NM, Santa Fe, NM, Robert Abrams, Atty. Gen., State of NY, and Nancy Stearns, New York State Dept. of Law, Environmental Protection Bureau, New York City, Lacy H. Thornburg, Atty. Gen., State of NC, Raleigh, NC, Charles S. Crookham, Atty. Gen., State of OR, Salem, OR, Ernest D. Preate, Jr., Atty. Gen., Com. of PA, and Donald A. Brown, Director, Office of Chief Counsel, Bureau of Hazardous Sites & Superfund Enforcement, Harrisburg, PA, Charles W. Burson, Atty. Gen., State of TN, Nashville, TN, Paul Van Dam, Atty. Gen., State of UT, and Jan Graham, Sol. Gen., Salt Lake City, UT, and Joseph B. Meyer, Atty. Gen., State of WY, Cheyenne, WY, appeared on behalf of amici curiae.

Before BALDOCK and HOLLOWAY, Circuit Judges, and EARL E. O'CONNOR, Senior District Judge. ^*

BALDOCK, Circuit Judge.

This case examines the relationship between the Resource Conservation and Recovery Act of 1976 ("RCRA"), Pub.L. No. 94-580, 90 Stat. 2795, as amended by the Hazardous and Solid Waste Amendments of 1984 ("HSWA"), Pub.L. No. 98-616, 98 Stat. 3221 (codified as amended at 42 U.S.C. §§ 6901-6981 (West 1983 & Supp.1992)), and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), Pub.L. No. 96-510, 94 Stat. 2767, as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613 (codified as amended at 42 U.S.C. §§ 9601-9675 (West 1983 & Supp.1992) and 26 U.S.C. § 9507 (West Supp.1992)). At issue is whether a state which has been authorized by the Environmental Protection Agency ("EPA") to "carry out" the state's hazardous waste program "in lieu of" RCRA, see 42 U.S.C. § 6926(b) (West Supp.1992), is precluded from doing so at a hazardous waste treatment, storage and disposal facility owned and operated by the federal government which the EPA has placed on the national priority list, see id. § 9605(a)(8)(B), and where a CERCLA response action is underway. See 42 U.S.C. § 9604 (West 1983 & Supp.1992).

I.

The Rocky Mountain Arsenal ("Arsenal") is a hazardous waste treatment, storage and disposal facility subject to RCRA regulation, see 42 U.S.C. § 6924(a) (West Supp.1992), which is located near Commerce City, Colorado in the Denver metropolitan area. The United States government has owned the Arsenal since 1942, and the Army operated it from that time until the mid-1980's. Without reiterating its environmental history, suffice it to say that the Arsenal is "one of the worst hazardous waste pollution sites in the country." Daigle v. Shell Oil Co., 972 F.2d 1527, 1531 (10th Cir.1992) (footnote omitted). The present litigation focuses on Basin F which is a 92.7 acre basin located within the Arsenal where millions of gallons of liquid hazardous waste have been disposed of over the years.

A.

Congress enacted RCRA in 1976 "to assist the cities, counties and states in the solution of the discarded materials problem and to provide nationwide protection against the dangers of improper hazardous waste disposal." H.R.Rep. No. 1491, 94th Cong., 2d Sess. 11 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6249. RCRA requires the EPA to establish performance standards, applicable to owners and operators of hazardous waste treatment, storage and disposal facilities "as may be necessary to protect human health and the environment." ¹ 42 U.S.C. § 6924(a) (West Supp.1992). The EPA enforces RCRA standards by requiring owners and operators of facilities to obtain permits, ² see 42 U.S.C. § 6925 (West 1983 & Supp.1992), and by issuing administrative compliance orders and seeking civil and criminal penalties for violations. Id. § 6928. The EPA may authorize states to "carry out" their own hazardous waste programs "in lieu of" RCRA and to "issue and enforce permits for the storage, treatment, or disposal of hazardous waste" so long as the state program meets the minimum federal standards. ³ 42 U.S.C. § 6926(b) (West Supp.1992). See also H.R.Rep. No. 1491(I) at 32, reprinted in 1976 U.S.C.C.A.N. at 6270 (under RCRA, states retain "primary authority" to implement hazardous waste programs). However, RCRA does not preclude a state from adopting more stringent requirements for the treatment, storage and disposal of hazardous waste. 42 U.S.C. § 6929 (West Supp.1992). See also Old Bridge Chems., Inc. v. New Jersey Dep't of Envtl. Protection, 965 F.2d 1287, 1296 (3d Cir.) ("RCRA sets a floor not a ceiling for state regulation of hazardous wastes"), cert. denied, --- U.S. ----, 113 S.Ct. 602, 121 L.Ed.2d 538 (1992). Once the EPA authorizes a state to carry out the state hazardous waste program in lieu of RCRA, "[a]ny action taken by [the] State [has] the same force and effect as action taken by the [EPA]...." 42 U.S.C. § 6926(d) (West 1983). The federal government must comply with RCRA or an EPA-authorized state program "to the same extent as any person...." ⁴ 42 U.S.C. § 6961 (West 1983). In short, RCRA provides "a prospective cradle-to-grave regulatory regime governing the movement of hazardous waste in our society." ⁵ H.R.Rep. No. 1016(I), 96th Cong., 2d Sess. 17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6120. See also Old Bridge, 965 F.2d at 1292 (RCRA is "principal federal statute regulating the generation, transportation, and disposal of hazardous wastes").

B.

Because RCRA only applied prospectively, it was "clearly inadequate" to deal with " 'the inactive hazardous waste site problem.' " H.R.Rep. No. 1016(I), at 17-18, reprinted in 1980 U.S.C.C.A.N. at 6120. Consequently, Congress enacted CERCLA in 1980 "to initiate and establish a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites." Id. at 22, reprinted in 1980 U.S.C.C.A.N. at 6125. Among its provisions, CERCLA required the President to revise the "national contingency plan for the removal of ... hazardous substances" which would "establish procedures and standards for responding to releases of hazardous substances...." 42 U.S.C. § 9605(a) (West Supp.1992). See also 40 C.F.R. pt. 300 (1992). When "any hazardous substance is released or there is a substantial threat of such a release into the environment," CERCLA authorizes the President to

act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance ... at any time ... or take any other response measure consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment.

42 U.S.C. § 9604(a)(1) (West Supp.1992). CERCLA finances these government response actions through the Hazardous Substance Superfund, see id. § 9611(a)(1); 26 U.S.C. § 9507 (West Supp.1992), and permits the government to seek reimbursement from responsible parties by holding them strictly liable. Id. § 9607(a). See also H.R.Rep. No. 1016, at 17, 1980 U.S.C.C.A.N. at 6120 (CERCLA establishes "a Federal cause of action in strict liability to enable [the EPA] to pursue rapid recovery of the costs ... of [response] actions"). See, e.g., United States v. Hardage, 982 F.2d 1436, 1443 (10th Cir.1992). CERCLA also requires the President to develop a national priority list, as part of the national contingency plan, which identifies "priorities among releases...