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Colorado v. Department of the Army

Citation: 19 ELR 20815
No. No. 86-C-2524, 707 F. Supp. 1562/29 ERC 1137/(D. Colo., 02/24/1989)

The court holds that Colorado may pursue its enforcement action under the Resource Conservation and Recovery Act (RCRA) against the United States Army for violations of state hazardous waste regulations at a portion of the Rocky Mountain Arsenal, even though the Environmental Protection Agency (EPA) is supervising an ongoing cleanup action for the Rocky Mountain Arsenal as a whole under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Colorado's hazardous waste regulations are part of its authorized program under RCRA, and the state has also sued the Army under CERCLA. While most of the Rocky Mountain Arsenal site is on the National Priorities List (NPL) and the area overall is the subject of a CERCLA cleanup action, the particular area involved in Colorado's RCRA action is not listed on the NPL. The court holds that the ongoing CERCLA cleanup does not preclude Colorado's RCRA enforcement action. CERCLA was intended to operate independently of RCRA, and CERCLA and RCRA are not mutually exclusive. CERCLA §120(a)(4) preserves state enforcement actions at federal facilities that are not listed on the NPL, and CERCLA §120(i) requires the federal government to comply with RCRA, whether or not the facility is listed on the NPL. If the state were unable to pursue its RCRA action, the Army's cleanup efforts would go unchecked by any party whose interest is in any real sense adverse to that of the Army, since the same Justice Department attorneys represent both EPA and the Army in the CERCLA context. It is EPA's job to clean up as quickly and as thoroughly as possible, and it is in the Army's financial interest to spend as little money and effort as possible on the cleanup. Colorado's involvement as a party would therefore guarantee that the proceedings surrounding the cleanup were in fact adversarial. The court also holds Colorado's action is not barred by the federal government's sovereign immunity. RCRA §6001 waives the government's immunity as to objective and ascertainable requirements, and the state's hazardous waste regulations, which are nearly identical to the federal regulations under RCRA, are sufficiently specific and precise.

[A decision in a companion case appears at 15 ELR 20337.]

Counsel for Plaintiff
Michael Hope, Ass't Attorney General
CERCLA Litigation Section
One Civil Center Plaza, 1560 Broadway, Ste. 250, Denver CO 80202
(303) 866-4343

Counsel for Defendant
David L. Anderson, Thomas K. Bick, Brian V. Faller
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-5272

David S. Maus, Ass't U.S. Attorney
1200 Byron G. Rogers Federal Office Bldg., Drawer 3615, Denver CO 80294
(303) 844-2064