Thursday, September 6, 2012

Colorado Department Of Public Health v. United States

Sep 5: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-1554. Appealed from the United States District Court for the District of Colorado. The Appeals Court explains that since the 1950s, the United States has stored chemical weapons at the Army's weapons depot located near Pueblo, Colorado (Depot). Congress has now mandated that the Army destroy those weapons by 2017. Separately, Congress authorized the State of Colorado to regulate hazardous waste in that State. Invoking that regulatory authority, Plaintiff-Appellant Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (Colorado or CDPHE), has declared the chemical weapons stored at the Depot awaiting destruction to be hazardous waste. In this action, Colorado seeks to enforce against the Depot Colorado's regulation prohibiting storage of any hazardous waste.
    The Appeals Court said, "The specific question presented by this appeal is whether Congress's mandate that the Army destroy these chemical weapons at the Depot by 2017 preempts Colorado's enforcement against the Depot of its regulation prohibiting storage of any hazardous waste. This case thus lies at the intersection of congressional mandates that, under these circumstances, support opposing positions. Based on the fact that Congress 1) delegated to Colorado the authority to regulate hazardous waste, so long as the State's regulations are at least as stringent as federal hazardous waste regulations, and 2) required federal agencies to follow such state hazardous waste regulation, Colorado argues that the United States, in operating the Depot, must comply with the State's prohibition against storing hazardous waste. Based instead on the fact that Congress mandated that the Army destroy the chemical weapons at the Depot and gave the Army until 2017 to complete their destruction, the United States argues it cannot comply with Colorado's regulation prohibiting the storage of any hazardous waste."
    The Appeals Court continued and concluded, "This difficult case requires us, then, to choose between opposing congressional mandates. Ultimately we are persuaded by the detailed manner with which Congress has addressed and mandated the destruction of the chemical weapons stored at the Depot to conclude that that federal law preempts Colorado's attempt to regulate that destruction process by enforcing its prohibition of the storage of hazardous waste against the Depot. Therefore, having jurisdiction under 28 U.S.C. § 1291, we affirm the district court's decision to dismiss Colorado's claims against the United States. . . we conclude that 50 U.S.C. §§ 1512a and 1521 preempt Colorado's application of its prohibition against the storage of any hazardous waste restricted from land disposal against the United States' storage of chemical weapons at the Depot."
    Access the complete opinion and dissent (click here). [#Haz, #CA10]
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