United States v. Colorado

No. 89-C-1646 (D. Colo. August 14, 1991)

The court holds that the Environmental Protection Agency's (EPA's) listing of Basin F in the Rocky Mountain Arsenal on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) national priorities list (NPL) divests the court of jurisdiction over Colorado's attempts to enforce its hazardous waste management program at Basin F. Before EPA listed Basin F on the CERCLA NPL, the court held that Colorado's enforcement action under its federally approved Resource Conservation and Recovery Act program was not precluded by the federal government's ongoing CERCLA cleanup action. The court first notes that Colorado may not seek civil penalties against the state for violations of Colorado's RCRA program because RCRA § 6001 does not waive the federal government's sovereign immunity to civil penalties. The court next holds that CERCLA § 113(h) bars precompletion review of remedial actions at sites listed on the NPL. The court notes that Congress has effectively delegated to EPA the power to decide what cases a federal court may hear. However, given recent U.S. Supreme Court precedent, the court does not believe that this delegation of power violates the separation of powers doctrine.

[Arelated case is published at 19 ELR 20815.]

Counsel for Plaintiff
Bradley Bridgewater, Robert Foster
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

William G. Pharo, Ass't U.S. Attorney
633 17th St., Ste. 1600, Denver CO 80202
(303) 294-1300

Counsel for Defendants
James Ellman, Daniel S. Miller, Timothy R. Gablehouse
Attorney General's Office, CERCLA Litigation Section
1560 Broadway, Ste. 250, Denver CO 80202
(303) 894-2299

Linnea Brown
Holme Roberts & Owen
1700 Lincoln, Ste. 4100, Denver CO 80203
(303) 861-7000

[22 ELR 20089]

Carrigan, J.:

Memorandum Opinion and Order

Plaintiff, United States of America, commenced this action seeking declaratory and injunctive relief to prevent the defendants, State of Colorado and the Colorado Department of Health, from asserting state administrative authority to regulate hazardous waste management activities at Basin F, a hazardous waste disposal pond on the Rocky Mountain Arsenal (the Arsenal) northeast of Denver, Colorado. Defendants have moved for partial summary judgment. They seek an order declaring that The Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended ("CERCLA"), 42 U.S.C. §§ 9601-9675 (1982 & Supp. V 1987) does not preclude their asserting regulatory authority over the Basin F cleanup. Plaintiff has responded by opposing the defendants' motion and itself seeking summary judgment based on the contention that the defendants' asserted authority to regulate would unlawfully challenge and interfere with the federal government's ongoing CERCLA response action.

The parties have exhaustively briefed the issues and presented oral argument. Both motions are ripe for decision. Jurisdiction exists pursuant to 28 U.S.C. § 1331.

In October 1984, the United States Army, acting pursuant to CERCLA, commenced a remedial investigation/feasibility study (RI/FS) at the Arsenal.¹ On November 2, 1984, Colorado was authorized by the EPA to administer its own hazardous waste management program under the Colorado Hazardous Waste Management Act (CHWMA), Colo. Rev. Stat. § 25-15-301 et seq. (1989) in lieu of the federal Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq. On August 21, 1987, the Arsenal, excluding Basin F, was listed on the National Priorities List (NPL). On February 17, 1989, the United States and Shell Oil Co. submitted, in this court's case No. 83-C-2379, a Federal Facility Agreement with respect to the Arsenal. That agreement was executed by the EPA, the Army, the Department of the Interior, the Agency for Toxic Substances and Disease Registry and Shell Oil Company.

In November 1984, the Army submitted to the Colorado Department of Health (CDH) a plan to close Basin F. Almost a year later, in October 1985, the CDH disapproved the Army's plan, prompting the Army to submit to the CDH a second closure plan in December 1985. The CDH also found the Army's second plan deficient, and in May 1986, issued its own Basin F Proposed Partial Closure Plan. Colorado's final Modified Basin F Closure Plan was issued October 1, 1986. According to Colorado, after the Army made clear that it was not going to comply with that plan, the State amended its complaint in Colorado v. United States Dept. of Army, No. 86-C-2524 (D. Colo. November 30, 1987) (first amended complaint) to seek enforcement of the State plan.

On February 24, 1989, in Colorado v. United States Dept. of Army, this court responded to motions filed by the United States to contest Colorado's attempts at enforcing compliance with its closure plan, by stating:

"In the First Amended Complaint, the plaintiff asserts claims against the Army for: (1) failure to close Basin F in compliance with the Basin F Closure Plan (First Claim); (2) failure to comply with Colorado's Ground Water Monitoring Regulations, a claim with three subclaims, and essentially a reassertion of three of the claims set forth in the plaintiff's initial complaint (Second Claim); and (3) failure to pay annual operating and waste volume fees, in violation of §§ 100.31(a) and (b) of State Fee Regulations, 6 CCR 1007-3, Part 100.

* * *

The Army has moved to dismiss the plaintiff's First Amended Complaint, asserting that the United States has not waived its sovereign immunity as to these claims under RCRA § 6001, [42 U.S.C. § 6961]. Defendant Army's argument in part emphasizes that I presently have pending before me two actions directed at cleanup of the Arsenal as a whole. As stated above, these consolidated cases are State of Colorado v. United States, Civil Action No. 83-2386, and United States v. Shell Oil Company, Civil Action No. 83-C-2379. Both cases were filed under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq. CERCLA was amended by the 1986 Superfund Amendments and Reauthorization Act ("SARA"), Pub. L. 99-499, 100 Stat. 1615.

Defendant Army does not dispute that RCRA § 6001 [42 U.S.C. § 6961], read in conjunction with RCRA § 7002 [42 U.S.C. 6972], contains a waiver of federal sovereign immunity. Rather, the Army asserts that sovereign immunity is not waived under those sections when there is an ongoing CERCLA cleanup action at the site that addresses hazardous waste requirements that are the same in substance as those sought to be enforced by the state under RCRA. In essence, the Army argues that CERCLA's enforcement and response provisions pre-empt and preclude a state RCRA enforcement action with respect to the cleanup of hazardous wastes at the Arsenal." Colorado v. United States Dept. of Army, 707 F. Supp. 1562, 1564-65 [19 ELR 20815] (D. Colo. 1989).

In that action, this court held that because Basin F was not listed on the National Priorities List, "RCRA enforcement by the State is not precluded by CERCLA. . . ." Colorado v. United States Dept. of Army, 707 F. Supp. at 1570.

On September 1, 1989, the state issued its Compliance Order seeking to force the Army: (1) to amend the final closure plan; (2) to close Basin F in a manner protective of human health and the environment pursuant to the requirements of the amended plan, the CHWMA; and (3) to comply with the other CHWMA requirements during the closure process.

Defendants assert that under Colorado's hazardous waste management program, all hazardous wastes must be treated, removed from the site, or disposed of on site in accordance with the state's approved closure plan. 6 Colo. Code Regs. § 265.113(a) (1989). To comply with the CHWMA, a site must, among other things, be closed in a manner that is protective of human health and the environment by controlling, minimizing, or eliminating releases of hazardous waste to ground or surface waters and to the air, and by removing or decontaminating contaminated soils. 6 Colo. Code Regs. §§ 265.111(b) and 265.112(b)(4).

As a preliminary matter, I note that in two of their counterclaims, the state defendants seek civil penalties against the federal government for violating the CHWMA. Defendants, however, have conceded that under Mitzelfelt v. Department of Air Force, 903 F.2d 1293 [20 ELR [22 ELR 20090] 21183] (10th Cir. 1990), those penalties cannot be assessed. In Mitzelfelt the Tenth Circuit held that RCRA § 6001, 42 U.S.C. § 6961, did not waive the sovereign immunity of the United States with respect to civil penalties. Further, the defendants have provided no evidence that Congress has enacted any clarifying language in any amendments to RCRA that would entitle it to assess civil penalties for violations of RCRA. Therefore, the plaintiff is entitled to summary judgment on this issue.

At the heart of the remaining dispute is the question whether the State of Colorado has authority to regulate the Basin F area at the Arsenal. In Colorado v. United States Dept. of the Army, 707 F. Supp. 1562, I concluded that Colorado could, through enforcement of the CHWMA, regulate Basin F. Seventeen days after that ruling, however, on March 13, 1989, the EPA listed Basin F on the National Priority List (NPL) to become effective April 12, 1989. Thus, the dispositive question here is whether placing Basin F on the NPL divested this court of subject matter jurisdiction, after years of litigation, over Colorado's attempts to enforce the CHWMA at Basin F. The jurisdiction in question vested when Colorado v. United States Dept. of Army was filed on December 15, 1986.

Except as provided by 42 U.S.C. § 9613(a) and (h), United States District Courts have exclusive original jurisdiction over all controversies arising under CERCLA. 42 U.S.C. § 9613(b). Plaintiff asserts that § 9613(h) divests this court of subject matter jurisdiction. In pertinent part, that section states:

"Timing of review. No Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action selected under section 104 [42 U.S.C. § 9604], or to review any order issued under section 106(a) [42 U.S.C. § 9606(a)], in any action except one of the following:

* * *

(4) An action under section 310 [42 U.S.C. § 9659] (relating to citizens suits) alleging that the removal or remedial action taken under section 104 [42 U.S.C. § 9604] or secured under section 106 [42 U.S.C. § 9606] was in violation of any requirement of this Act. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site."

Although subsections (b) and (h) may appear to be in conflict, they are not. Subsection (b) provides that the district courts have exclusive jurisdiction over controversies arising under CERCLA. Pursuant to subsection (h), however, that jurisdiction does not attach until after a remedial action is completed.

Unquestionably, certain portions of CERCLA's legislative history indicate that Congress did not intend that § 9613(h) bar pre-completion judicial review in cases such as this. In deciding a question of statutory construction, however, I must begin with the words of the statute. Demarest v. Manspeaker, 111 S. Ct. 599, 602 (1991). Legislative history "can be a legitimate guide to a statutory purpose obscured by ambiguity, but '[i]n the absence of a clearly expressed legislative intention to the contrary, the language of the statute itself must ordinarily be regarded as conclusive.'" Burlington N.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461 (1987) (citations omitted).

Moreover, the United States Supreme Court has held that if a statute's terms are unambiguous, judicial inquiry into Congressional intent is inappropriate, unless exceptional circumstances dictate otherwise. Id.; Demarest, 111 S. Ct. at 603. Thus absent ambiguity in the statutory language, lower federal courts are bound to apply a literal interpretation to a statute's words even where it may be apparent that Congress must have intended something other than the narrow, exact meaning of the statutory language.

In another CERCLA case this court proceeded to a lengthy and expensive trial and thereafter granted the state injunctive relief based on the court's reading of the statute as implying authority to employ mandatory injunction procedures as the most efficacious means of providing the state the practical, enforceable participation in CERCLA cleanups this court felt Congress clearly had intended. State of Colorado v. Idarado Mining Co., 707 F. Supp. 1227 [19 ELR 20794] (D. Colo. 1989). The Court of Appeals, however, reversed, applying a narrow, literal reading of the statute that denied the state injunctive relief. State of Colorado v. Idarado Mining Co., 916 F.2d 1486 (10th Cir. 1990).

In United States v. Durre, 87-CR-386 (D. Colo. 1987), this court looked beyond literal statutory language to conclude that 28 U.S.C. § 1821(a)'s legislative history indicated that Congress did not intend prison inmates to be paid witness fees when subpoenaed and brought by writ to court to testify on behalf of fellow inmates. Similarly interpreting congressional intent, the Tenth Circuit affirmed in a split decision. Demarest v. Manspeaker, 884 F.2d 1343 (10th Cir. 1989). But the United States Supreme Court reversed, holding that resort to legislative history was improper because the statute was unambiguous. Demarest, 111 S. Ct. at 604. Ninety-one days after the Supreme Court announced its decision in Demarest, the President signed into law a bill plainly stating that incarcerated witnesses are not entitled to witness fees under § 1821, thus expressing the intent this court initially, but erroneously, had found to be implied. Thus was proved the adage that the best way to change an unreasonable law is to enforce it.

Section 9613(h) unambiguously indicates that this court lacks jurisdiction for pre-completion review of the remedial action presently underway at Basin F now that it has been placed on the NPL. Therefore I conclude, as I must, that judicial inquiry into Congressional intent is prohibited. The statute's legislative history is irrelevant; if Congress intends a different result it is for Congress to amend the statute.

I note that this court has been divested of subject matter jurisdiction by the executive branch's action, through its agency, the EPA, (a party to this overall litigation) placing Basin F on the NPL. In other words, the executive, at the request of its litigant agency, has divested a federal court of its power to fully adjudicate a matter that has been in litigation before it for years. By thus granting the executive branch authority to place sites on the NPL, Congress has apparently delegated a portion of its authority to decide what cases a federal district court has the power to hear.

While it seems irrational in the context of separation of powers to allow the executive branch, after litigating a suit for years, suddenly to divest the court of jurisdiction by the administrative act of adding the site at issue to a list, that is the plain meaning of the statute's words. Unfortunately, CERCLA was enacted rather hastily near the end of a session and as the result of many last minute compromises. Thus some of the statute's provisions are not clear, and it contains many interstitial spaces left by Congress to be filled by judicial interpretation. The language here at issue, however, which results in revoking this court's subject matter jurisdiction, is clear.

Article III of the United States Constitution and the Judiciary Act of 1789 relegate to Congress authority to define the jurisdiction of this court. Thus a court can be divested of statutory jurisdiction in a particular case by legislation even if not enacted until after the court has begun processing the case. Bruner v. United States, 343 U.S. 112, 115 (1952); compare Phillips Petroleum Co. v. United States Environmental Protection Agency, 803 F.2d 545, 551 [17 ELR 20387] (10th Cir. 1986) (Congress may expand a court's jurisdiction while a case is pending before it.)

Here, however, the question is somewhat more complicated than in Bruner; i.e., whether Congress may be statute delegate to an executive branch administrator acting in the name of the President, the power to divest a federal district court of jurisdiction during litigation of a case over which that court otherwise has jurisdiction. Recent separation of powers cases have not bolstered, but rather have eroded, that historic buttress of judicial branch independence. See, e.g., Mistretta v. United States, 488 U.S. 361 (1989) (delegation by Congress to sentencing commission appointed by the President with the advice and consent of the Senate). Therefore there is no reason for this court to anticipate that the Supreme Court would disapprove the delegation by Congress to the President in this case.

Any attempt by Colorado to enforce the CHWMA would require this court to review the remedial actions selected under 42 U.S.C. § 9604 prior to their completion. Such a review is expressly prohibited by § 9613. Therefore, although the statute's legislative history indicates that Congress did not intend to foreclose such judicial review in all situations, I conclude that until the ongoing remedial action at Basin F is completed, CERCLA prohibits this court from reviewing it. In addition, Colorado is precluded from enforcing Final Amended Compliance Order No. 89-05-2301.

Accordingly IT IS ORDERED that:

(1) Plaintiff's motion for summary judgment is granted;

[22 ELR 20091]

(2) Defendants' motion for summary judgment is denied;

(3) Defendants' counterclaims are dismissed;

(4) The United States shall not be subjected to civil penalties provided in Colo. Rev. Stat. § 25-15-309 (1982), and the defendants shall not attempt to impose upon or collect from the United States any such civil penalties for actions arising out of the United States' activities at the Rocky Mountain Arsenal;

(5) Defendants shall not take any action to enforce their Final Amended Compliance Order No. 89-05-2301;

(6) The parties and their counsel shall meet and confer with the parties and their counsel from cases 83-C-2379, 83-C-2386 and 86-C-2524 within eleven days after this memorandum order is filed to determine what affect the order has on those cases. They are encouraged to use the good offices of the Special Master previously appointed in facilitating this conference. The parties shall report to this court in writing by August 30, 1991, stating the results of that meeting. The parties shall jointly submit a brief draft order disposing of all motions in those cases affected by this order in a manner consistent with this order; and

(7) The clerk of this court shall enter a final judgment consistent with this opinion.

1. Colorado contests when the Army commenced its RI/FS. (Defendants motion for partial summary judgment, at 47 n.1).