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United States v. Denver, City & County of

ELR Citation: 26 ELR 21110
Nos. 94-D-2004, 916 F. Supp. 1058/42 ERC 1563/(D. Colo., 02/22/1996)

The court holds that a municipal cease-and-desist order requiring the owner of part of a Superfund site to stop performing a remedy selected by the U.S. Environmental Protection Agency (EPA) violates the Supremacy Clause of the U.S. Constitution. The city claimed that the remedy, which involved solidifying and burying radiation-contaminated soils on site, violated its zoning code. The court first holds that §121(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not an express preemption provision. The court holds, however, that the cease-and-desist order is void and unenforceable pursuant to the Supremacy Clause. It is physically impossible for the site owner to comply with both the EPA order and the cease-and-desist order. In addition, the cease-and-desist order frustrates the full effectiveness of CERCLA, the record of decision (ROD) for the site, and the EPA order. The court holds that the ROD was promulgated in conformity with federal law and that EPA had authority under CERCLA to issue the order to the site owner. Thus, the cease-and-desist order is in direct conflict with the ROD and the EPA order and is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The court further holds that pursuant to CERCLA §113(h), it lacks subject matter jurisdiction to consider the municipality's challenge to the ROD. The court next declines to consider the U.S. government's claim that the cease-and-desist order violates CERCLA §121(e)(1). The court permanently enjoins the municipality from attempting to enforce the zoning ordinance against the owner or its contractors with respect to the EPA remedy.

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

Counsel for Defendants
Robert M. Kelly
Law Offices of Robert M. Kelly
445 Union Blvd., Lakewood CO 80228
(303) 980-8222