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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