United States v. City & County of Denver

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk

December 19, 1996

TO: ALL RECIPIENTS OF THE CAPTIONED OPINION

RE: 96-1091, U.S. v. City & County of Denver
November 18, 1996

Please be advised of the following correction to the captioned decision:

On the cover page, the parties represented by attorneys should have been
switched, and the names of the Environmental Protection Agency attorneys have been
added.

Attached is the corrected version of the cover page.

Very truly yours,

Patrick Fisher, Clerk

Susie Tidwell
Deputy Clerk
 PUBLISH

UNITED STATES COURT OF APPEALS
Filed 11/18/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Counter-Defendant-
Appellee, No. 96-1091
vs.

DENVER, CITY AND COUNTY OF;
DOROTHY A. NEPA, in her official
capacity as Administrator of the
Department of Zoning Administration of
the City and County of Denver,

Defendants-Counter-Claimants-
Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 94-D-2004)

T. Shaun Sullivan, Assistant City Attorney (Daniel E. Muse, City Attorney, Robert M.
Kelly and Thomas Bigler, Assistant City Attorneys, with him on the brief), Denver,
Colorado for Defendants-Counter-Claimants-Appellants.

Daniel W. Pinkston, Attorney, U.S. Department of Justice, Environment and Natural
Resources Division, Washington, D.C. (Lois J. Schiffer, Assistant Attorney General,
Washington, D.C., Henry L. Solano, U.S. Attorney and Linda A. Surbaugh, Assistant
U.S. Attorney, Denver, Colorado, Martin W. Matzen and Elinor Colbourn, Attorneys,
U.S. Department of Justice, Environmental and Natural Resources Division, Washington,
D.C., George Wyeth, Attorney, U.S. Environmental Protection Agency, Washington,
D.C., and Wendy I. Silver, Attorney, U.S. Environmental Protection Agency, Denver,
Colorado, with him on the brief), for Plaintiff-Counter-Defendant-Appellee.

Before EBEL, KELLY and BRISCOE, Circuit Judges.
KELLY, Circuit Judge.

Defendant-Appellant City and County of Denver appeals from a grant of summary

judgment in favor of Plaintiff-Appellee United States on the United States’ declaratory

judgment action. The district court granted summary judgment on the grounds that

Denver’s zoning ordinance is preempted by the Comprehensive Environmental

Responses, Compensation, and Liability Act of 1980 (CERCLA), Pub. L. No. 96-510, 94

Stat. 2767 (codified as amended at 42 U.S.C. §§ 9601-9675). Our jurisdiction arises

under 28 U.S.C. § 1291. We affirm.

Background

Congress enacted CERCLA to provide a mechanism for the prompt and efficient

cleanup of hazardous waste sites. See United States v. Akzo Coatings of Am., 949 F.2d

1409, 1417 (6th Cir. 1991). The Act authorizes the EPA to issue orders requiring

potentially responsible parties to clean up hazardous waste sites. 42 U.S.C. § 9606(a).

The EPA also may conduct its own cleanup, and then seek contribution from potentially

responsible parties, which includes current and past owners of the site, as well as the

owners and transporters of the waste held at the site. 42 U.S.C. §§ 9604, 9607(a).

Section 9621 of CERCLA establishes the cleanup standards that must be met, including

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all applicable or relevant and appropriate requirements of federal and state environmental

laws.

Waste sites subject to CERCLA include virtually any place where hazardous

substances are located. Any site listed on the National Priorities List under CERCLA

§ 9605(a)(8)(B), is subject to EPA-funded cleanup activity. These EPA cleanups are

financed by the Superfund, an $8.5 billion fund created by EPA taxes and fees. See 26

U.S.C. § 9507.

The core of the CERCLA cleanup program is the National Contingency Plan, 40

C.F.R. Part 300 (1995), which specifies the roles of the federal and state governments in

responding to hazardous waste sites, and establishes the procedures for making cleanup

decisions. The Plan provides that once a hazardous waste site is identified, it should be

evaluated to determine whether a remedial action is required. This evaluation involves an

intensive remedial investigation/feasibility study, which identifies the possible remedial

alternatives. On the basis of that study, the EPA proposes the selected remedy, after

which there follows a period for public comment. The cleanup plan is then finalized, and

the EPA’s remedy decision is documented in a record of decision.

The Denver Radium Superfund Site is divided into eleven operable units

comprising over forty locations which were contaminated by radioactive waste in the

early 1900s. In 1983, the EPA placed the Denver Radium Superfund Site on the National

Priorities List of the country’s most contaminated sites. This designation prompted a long

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series of studies, public meetings, formal decisions and environmental cleanups pursuant

to CERCLA and the National Contingency Plan. By September 1987, records of decision

had been issued for ten of the eleven operable units. Each decision primarily identified

excavation, removal and replacement of the contaminated soil as the proper cleanup

remedy.

In December 1990, the EPA and Colorado Department of Health (CDH) made

available for public comment a draft of the remedial investigation/feasibility study for

OU-VIII, the last operable unit to be considered. The site consists of three parcels, the

largest of which is owned by the S.W. Shattuck Chemical Company. It is the only

operable unit at the Denver Superfund Site for which private, as opposed to government,

parties are responsible.

On March 29, 1991, the EPA and CDH issued for public comment a proposed

remediation plan for OU-VIII that identified excavation and replacement as the preferred

alternative, but specifically encouraged comment on all seven of the available

alternatives, noting that the preferred alternative could be modified. On January 28,

1992, the EPA and CDH issued the record of decision for the site indicating that the

preferred alternative was now on-site solidification of contaminated soils on the Shattuck

parcel. The decision considered the comments submitted by various parties, including

Denver, and was accompanied by detailed responses to the comments. Denver strongly

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supported excavation and replacement, but none of Denver’s comments claimed that on-

site remediation would violate its zoning ordinances.

Pursuant to CERCLA § 9606(a), the EPA issued a remedial order effective August

31, 1992, requiring Shattuck to perform the on-site remedy for OU-VIII. Shattuck is

subject to civil penalties--and possibly punitive damages--for willful violation of or

failure to comply with the EPA Order. See 42 U.S.C. §§ 9607(c)(3), 9612(c). Shattuck

agreed to comply with the order and began to do so. On May 11, 1994, Denver issued a

cease and desist order to Shattuck based on asserted violations of Denver zoning

ordinances, which prohibit the maintenance of hazardous waste in areas zoned for

industrial use. On June 10, 1994, Shattuck filed an appeal of the order with the Denver

Board of Adjustment for Zoning Appeals. The Board upheld the cease and desist order

on November 15, 1994. The United States was not a party to those proceedings.

After the Board decision, representatives of the United States and Denver met to

attempt to resolve the issues. These negotiations failed, and the United States filed the

complaint in this case seeking a declaratory judgment that the cease and desist order is

void and unenforceable. On February 22, 1996, the district court entered an order

granting the United States’ motion for summary judgment, denying Denver’s cross-

motion for summary judgment, and enjoining Denver from enforcing its zoning ordinance

against Shattuck. This appeal followed.

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 Discussion

We review the grant of summary judgment de novo, and apply the same legal

standard used by the district court under Rule 56(c). Goldsmith v. Learjet, Inc., 90 F.3d

1490, 1493 (10th Cir. 1996). Summary judgment is appropriate if “there is no genuine

issue as to any material fact and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). We construe the factual record and reasonable inferences

therefrom in the light most favorable to the nonmovant. Gullickson v. Southwest Airlines

Pilots’ Ass’n, 87 F.3d 1176, 1183 (10th Cir. 1996).

I. Conflict Preemption

The Supremacy Clause of the Constitution, art. VI, § 2, invalidates state laws that

“interfere with, or are contrary to the laws of [C]ongress, made in pursuance of the

[C]onstitution.” Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604 (1991)

(quoting Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 211 (1824)). Federal law preempts

state law explicitly if the language of the federal statute reveals an express congressional

intent to do so. Barnett Bank of Marion County v. Nelson, 116 S. Ct. 1103, 1107-08

(1996). In the absence of such language, the state’s law may still be preempted implicitly,

in either of two ways. “Field preemption” occurs where the federal scheme of regulation

is so pervasive that Congress must have intended to leave no room for the States to

supplement it. Id. at 1108. “Conflict preemption” occurs where it is impossible to

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comply with both the federal and state laws, or the state law stands as an obstacle to the

accomplishment of Congress’s objectives. Id.

This is a case of conflict preemption. Denver concedes that it is impossible for

Shattuck to comply with both Denver’s zoning ordinance and the EPA’s remedial order.

This zoning ordinance also stands as an obstacle to the objectives of CERCLA, whose

purpose is to effect the expeditious and permanent cleanup of hazardous waste sites, and

to allow the EPA the flexibility needed to address site-specific problems. CERCLA

§ 9621(b)(1) (expressing a preference for on-site, permanent remedies); H.R. Rep. No.

99-253(I), 99th Cong., 2d Sess., at 58, reprinted in 1986 U.S.C.C.A.N. 2835, 2840

(stating that the EPA should select efficient and permanent cleanups when possible); id.

at 2839 (stating that the 1986 amendments to CERCLA were designed in part to leave the

EPA sufficient flexibility to address site-specific problems). A zoning ordinance which

bars the maintenance of hazardous waste dramatically restricts the range of options

available to the EPA, and in this case the ordinance would prevent a permanent on-site

remedy. We agree with the district court that Denver’s zoning ordinance is in actual

conflict with the EPA’s remedial order.

Denver contends, however, that Congress did not intend to preempt local zoning

ordinances. Relying on Cipollone v. Ligget Group, Inc., 112 S. Ct. 2608 (1992), Denver

argues that because CERCLA contains only a single express preemption provision--

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§ 9621(e)(1),1 which preempts state or local permit requirements--Congress did not intend

to preempt state or local substantive law. Essentially, Denver argues that implied

preemption cannot exist when Congress has included an express preemption clause in the

statute.

Denver’s reliance on Cipollone is misplaced. The Supreme Court has held in

Freightliner Corp. v. Myrick, 115 S. Ct. 1483, 1488 (1995), that an express preemption

provision does not necessarily preclude an implied preemption analysis. See also Montag

v. Honda Motor Co., 75 F.3d 1414, 1417 (10th Cir.), cert. denied, 65 U.S.L.W. 3248

(U.S. Oct. 7, 1996) (No. 95-1885) (citing Myrick and addressing implied preemption

despite express preemption clause). Instead, Cipollone holds that implied preemption is

precluded by an express preemption clause only when that clause provides a “reliable

indicium of congressional intent with respect to state authority.” 112 S. Ct. at 2618

(quoting Malone v. White Motor Corp., 435 U.S. 497, 505 (1978)). In this case, the

district court held that the express preemption provision contained in § 9621(e)(1) is not a

sufficiently “reliable indicium” of Congress’s intent. We agree. In our view, to hold that

Congress intended that non-uniform and potentially conflicting zoning laws could

override CERCLA remedies would fly in the face of Congress’s goal of effecting prompt

cleanups of the literally thousands of hazardous waste sites across the country. We would

1
Section 9621(e)(1) of CERCLA provides that “[n]o Federal, State, or local permit shall
be required for the portion of any removal or remedial action conducted entirely onsite, where
such remedial action is selected and carried out in compliance with this section.”

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need especially reliable indications of an intent so contrary to the overall objectives of

CERCLA, and we do not find any in either CERCLA or its legislative history.

For the same reasons, we reject Denver’s argument that its zoning ordinances

constitute “a state environmental or facility siting law” and thus fall within the definition

of “applicable or relevant and appropriate requirements”of state law, with which the EPA

must comply if the state requirements are more stringent than federal law. See 42 U.S.C.

§ 9621(d)(2)(A)(ii). Denver argues that Wisconsin Pub. Intervenor v. Mortier, 111 S. Ct.

2476 (1991), supports its contention. Mortier held that the use of the term “state” in

§ 136v of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C.

§§ 136-136y, included “political subdivisions” of the state. However, neither FIFRA nor

its legislative history reflect the same urgent need for large-scale prompt and efficient

remediation activity, essential to public health, that is reflected in CERCLA. See

CERCLA § 9613(h) (precluding judicial review of the EPA’s remedial order until after

the EPA’s remedy has been completed). We will not apply Mortier in this context when

to do so would produce a result so contrary to the overall objectives of CERCLA as

expressed consistently in the Act itself, as well as in the legislative history, which is

“sufficiently specific, clear and uniform to be a reliable indicator of intent,” Miller v.

Commissioner, 836 F.2d 1274, 1282 (10th Cir. 1988). If Congress had wished to include

local zoning ordinances within the definition of “state law” it would surely have so stated.

See, e.g., RCRA, 42 U.S.C. § 6929 (referring to “State or political subdivision”).

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 II. The § 9613(h) Jurisdictional Bar

Denver also makes two arguments to defeat the EPA’s chosen remedy. First,

Denver argues that the remedy chosen by the EPA does not comply with the requirements

of CERCLA § 9621. Second, Denver contends that where two remedies are available to

the EPA, it should choose the remedy that complies with both CERCLA and local law.

We conclude that addressing these arguments would require us to examine EPA’s

remedial action, which we are without jurisdiction to review pursuant to CERCLA

§ 9613(h).

Section 9613(h) provides that no federal court shall have jurisdiction to review any

challenges to removal or remedial action selected by the EPA under §§ 9604 or 9606(a).

There are five exceptions to this jurisdictional bar, none of which Denver claims is

applicable. In enacting this jurisdictional bar, Congress intended to prevent time-

consuming litigation which might interfere with CERCLA’s overall goal of effecting the

prompt cleanup of hazardous waste sites. Boarhead Corp. v. Erickson, 923 F.2d 1011,

1019 (3d Cir. 1991).

In past cases addressing § 9613(h), the challenging party initiated the action.

Denver claims its challenge is distinguishable because it is actually a “defense” to EPA’s

declaratory judgment action. Denver cites the case of United States v. Colorado, 990

F.2d 1565 (10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994), in support of its

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argument. In that case, the United States brought a declaratory judgment action seeking

an injunction to prevent the State of Colorado from asserting regulatory authority over the

cleanup of a hazardous waste site. Colorado counter claimed, requesting an injunction to

enforce its compliance order against the United States. The court held that Colorado’s

counter-claim did not constitute a “challenge” to the remedy chosen by the EPA, and

therefore was not barred by § 9613(h), because Colorado’s requirements were not

inconsistent with the chosen remedy.

Aside from the procedural similarities, the Colorado case is clearly distinguishable.

First, Colorado’s compliance order “[did] not seek to halt the Army’s . . . response

action,” but “merely [sought] to ensure that the cleanup [was] in accordance with state

laws which the EPA has authorized Colorado to enforce under [the Resource

Conservation and Recovery Act (RCRA), Pub. L. No. 94-580, 90 Stat. 2795 (codified at

42 U.S.C. §§ 6901 et seq.)].” Colorado, 990 F.2d at 1576. In other words, Colorado’s

compliance order imposed additional requirements, unlike Denver’s zoning ordinance,

which imposes contrary or inconsistent requirements. Denver contends that its zoning

ordinance also imposes only additional requirements, but it misses the point that in the

Colorado case, the state imposed additional requirements not inconsistent with the

particular remedy chosen, while Denver’s zoning ordinance imposes “additional

requirements” on the EPA’s selection of a remedy which are inconsistent with that

remedy. No matter how Denver characterizes its zoning ordinance, it still constitutes a

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challenge to EPA’s chosen remedy, and we are barred from reviewing that challenge

under § 9613(h).

Second, in the Colorado case, the state’s compliance order was pursuant to RCRA,

which authorizes the EPA to allow states to carry out their own hazardous waste

programs in lieu of the federal RCRA program. Colorado, 990 F.2d at 1569. The court

held that § 9613(h) did not bar enforcement actions authorized under RCRA, in part

because “[w]hen Congress has enacted two statutes which appear to conflict, we must

attempt to construe their provisions harmoniously.” 990 F.2d at 1575. Moreover, the

court concluded that the plain language of both CERCLA and RCRA provides for state

enforcement of its RCRA responsibilities despite an ongoing CERCLA response action.

Id. at 1579. By contrast, in this case Denver’s zoning ordinance is not pursuant to any

federal mandate, and thus does not raise similar concerns about consistency between

congressional enactments.

AFFIRMED.

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