Colorado Department of Public Health & Environment, Hazardous Materials & Waste Management Division v. United States
693 F.3d 1214
10th Cir.2012Background
- Colorado seeks to enforce its hazardous waste prohibitions against the Pueblo Depot under CHWMA and 6 Colo. Code Regs. § 268.50.
- Congress mandated destruction of the Depot’s chemical weapons by 2017 and directed the DoD to pursue destruction in a manner protecting environment and public safety.
- The Depot stores thousands of tons of chemical weapons, including some leaking munitions, at igloos at the Pueblo Depot.
- Colorado had obtained authority to regulate hazardous waste in Colorado, and EPA authorized Colorado’s program; federal facilities may be subject to state regulation, with savings between statutes considered.
- Colorado issued or sought permits and compliance orders requiring timely destruction plans; the United States argued its activities were governed by federal destruction deadlines and methods.
- The district court held that federal law preempts Colorado’s enforcement against the Depot; Colorado appealed seeking to preserve state enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does federal law preempt Colorado’s storage prohibition? | Colorado | United States | Yes for preemption; reliance on 50 U.S.C. §§ 1512a, 1521 preempts enforcement |
| Is the conflict between Colorado’s regulation and Congress’s destruction mandate resolvable by field or express preemption? | Colorado | United States | Conflict preemption applies; impossible to comply with both, and Colorado’s regime interferes with Congress’s method |
| Do savings provisions in other statutes (CERCLA/RCRA) defeat preemption here? | Colorado | United States | Not controlling; the pertinent preemption is under 50 U.S.C. §§ 1512a, 1521 |
Key Cases Cited
- United States v. Colorado, 990 F.2d 1565 (10th Cir. 1993) (CERCLA savings clause allows state enforcement in the CERCLA context)
- Blue Circle Cement, Inc. v. Bd. of Cnty. Comm’rs, 27 F.3d 1499 (4th Cir. 1994) (state regulation can be preempted if it conflicts with federal objectives)
- ENSCO, Inc. v. Dumas, 807 F.2d 743 (8th Cir. 1986) (state hazmat regulation may be preempted by federal law)
- Arizona v. United States, 132 S. Ct. 2492 (2012) (conflict in enforcement can be as disruptive as a direct policy conflict)
- In re Universal Serv. Fund Tel. Billing Practice Litig., 619 F.3d 1188 (10th Cir. 2010) (preemption analysis involves whether state law obstructs federal objectives)