Sierra Club v. US Dept. of Energy, Civ. A. No. 89-B-181.

• Decision Date: 12 April 1990
• Docket Number: Civ. A. No. 89-B-181.
• Citation: 734 F. Supp. 946
• Parties: SIERRA CLUB, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, and Rockwell International Corporation, a Delaware corporation, Defendants.
• Court: U.S. District Court — District of Colorado

734 F. Supp. 946

SIERRA CLUB, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, and Rockwell International Corporation, a Delaware corporation, Defendants.

Civ. A. No. 89-B-181.

United States District Court, D. Colorado.

April 12, 1990.

Adam Babich, Cornwell & Blakey, Denver, Colo., for plaintiff.

Craig Schaffer, Environmental Defense Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., William G. Pharo, Asst. U.S. Atty., Denver, Colo., Ben Underwood, U.S. Dept. of Energy, Washington, D.C., and Gregory Fess, U.S. Dept. of Energy, Golden, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

This is a citizen's enforcement action under the Resource Conservation and Recovery Act (RCRA). Plaintiff Sierra Club moves for partial summary judgment seeking declarations that certain materials mixed with plutonium, once burned and now stored at the Rocky Flats Plant, are subject to RCRA regulations as hazardous waste within the meaning of Subtitle C of RCRA, 42 U.S.C. §§ 6901-6991i.

Rocky Flats is owned by defendant United States Department of Energy (DOE) and was operated by its contractor, defendant Rockwell International Corporation (Rockwell). Rockwell also filed a Motion for Partial Summary Judgment but Sierra Club and Rockwell recently entered into a settlement agreement resulting in Rockwell's dismissal.

DOE does not dispute Sierra Club's factual or legal assertions. Rather, DOE argues that I should decline to rule on plaintiff's motion for partial summary judgment because determination of RCRA's applicability is "logically related" only to the appropriate scope of injunctive relief. DOE also relies on the doctrine of primary jurisdiction to assert that I should delay this litigation indefinitely to await the outcome of negotiations contemplated by a November 3, 1989 DOE/State of Colorado Agreement.

There has been extensive briefing by all parties. Oral argument on Sierra Club's motion was heard Friday, March 30, 1990 at 1:30 p.m. Upon consideration of the parties' submissions and of the applicable law, I determine that there are no genuine issues of fact material to Sierra Club's motion, Sierra Club is entitled to judgment as a matter of law, and there is no persuasive reason to defer this ruling. Accordingly, I hold that: 1) all substances listed at 40 C.F.R. Part 261, Subpart D or possessing characteristics set forth at 40 C.F.R. Part 261, Subpart C, and that defendants have burned in an incinerator or are storing pending treatment in a plutonium recovery process are RCRA Subtitle C hazardous wastes; 2) all substances (except plutonium) mixed with listed hazardous wastes are RCRA Subtitle C hazardous wastes; and 3) all residues (except plutonium) from incineration or other treatment in a plutonium recovery process of hazardous wastes are RCRA Subtitle C hazardous wastes.

Congress enacted RCRA to end ever-increasing damage to the environment and public health resulting from mismanagement of hazardous waste. 42 U.S.C. § 6901(b)(5). See generally Wycoff Co. v. EPA, 796 F.2d 1197 (9th Cir.1986). RCRA and its accompanying regulations establish a comprehensive program for handling hazardous wastes. The United States Environmental Protection Agency (EPA) is charged with administering RCRA. However, RCRA is implemented in Colorado largely by regulations promulgated by the state under the Colorado Hazardous Waste Management Act, C.R.S. §§ 25-15-301 et seq. Colorado's hazardous waste regulations, 6 CCR 1007-3, are substantially identical to the EPA's regulations found at 40 C.F.R. Parts 260-270. Consequently, analysis of the federal scheme overlays and defines that of Colorado.

Generally, RCRA prohibits the treatment, storage, or disposal of hazardous waste at both private and governmental facilities without a permit issued by EPA or an authorized state. 42 U.S.C. § 6925(a); See also 42 U.S.C. § 6961. RCRA requires that the owner or operator of all facilities for treatment, storage, or disposal of hazardous waste apply for hazardous waste permits by November 19, 1980, or within 6 months after changes in the law first subject the facilities to regulation. 42 U.S.C. § 6925(a).

Congress deemed it impractical to halt all hazardous waste activity pending the issuance of permits. Therefore, RCRA allows existing facilities such as Rocky Flats to "be treated as having been issued a permit" pending issuance or denial of an actual permit" or to operate under "interim status." 42 U.S.C. § 6925(e)(1); United States v. T & S Brass and Bronze Works, Inc., 681 F.Supp. 314, 316 (D.S.C.) aff'd in part, vacated in part, 865 F.2d 1261 (4th Cir.1988).

Since November 1980, DOE, through its operator, has been obligated, but has failed, to apply for a RCRA permit for hazardous waste operations at Rocky Flats. Throughout that time, DOE has claimed that either all hazardous waste at Rocky Flats was exempt from the RCRA permit requirements or that RCRA does not apply to mixed radioactive and hazardous waste. In July 1986, after the Colorado Department of Health threatened to close Rocky Flats unless DOE managed its mixed waste in compliance with RCRA, EPA issued a notice that RCRA applies to "mixed waste." 51 Fed.Reg. 24504 (July 3, 1986). Two years later, EPA announced that it would treat the notice as if it were a regulatory change to allow facilities such as Rocky Flats to gain interim status under 42 U.S.C. § 6925(e)(1). However, DOE has never gained interim status with respect to that waste. Nor has DOE applied for a permit or interim status for residues that are stored, treated, or incinerated at the plant.

Furthermore, DOE never applied for a permit to treat, store, or dispose of the mixed waste. Until recently this mixed waste was burned in building 771. Plutonium was then recovered from the ash. This mixed waste is now stored at the plant.

Recently, DOE agreed to shut down the building 771 incinerator until the EPA or Colorado issues a final RCRA permit authorizing mixed waste incineration. However, DOE did not agree to treat, store, or dispose of the mixed waste formerly burned in building 771 or the residue from prior incineration at building 771 in compliance with RCRA. Similarly, DOE has not agreed to "close" (i.e. decontaminate) the incinerator in compliance with RCRA regulations. Accordingly, the issue before me is ripe for determination.

RCRA has statutory and regulatory definitions of "hazardous waste." The broad statutory definition, 42 U.S.C. § 6903(5), primarily governs actions to abate imminent and substantial risks to the public and environment. See e.g., 42 U.S.C. § 6973. Sierra Club's motion, however, involves the regulatory definition which applies to the RCRA Subtitle C regulatory program. See 42 U.S.C. § 6925(a); See also Chemical Waste Management, Inc. v. EPA, 869 F.2d 1526 (D.C.Cir.1989) (CWM).

EPA has listed RCRA Subtitle C hazardous wastes at 40 C.F.R. Part 261, Subpart D. Additionally, EPA set characteristics that identify hazardous waste at 40 C.F.R. Part 261, Subpart C. DOE admits that halogenated solvents, xylene, methanol and carbon tetrachloride have been incinerated in building 771. See DOE's Final Environmental Impact Statement for the Rocky Flats Plant Site, dated April 1980. These substances are listed in 40 C.F.R. Part 261, Subparts C and D.

EPA's definition of RCRA Subtitle C hazardous waste is supplemented by regulations known as 1) the "mixture rule" and 2) the "derived from rule." See generally, CWM, 869 F.2d at 1538 n. 14, and at 1539. Under the "mixture rule," a solid waste mixed with a listed hazardous waste is a hazardous waste. 40 C.F.R. § 261.3(a)(2)(iv). Thus, for example, used kimwipes contaminated with solvents listed under 40 C.F.R. Part 261, Subpart D not only contain hazardous waste, the kimwipes themselves are hazardous waste. Under the mixture rule, all of the trash formerly burned in building 771 and now stored onsite that is or has been mixed with substances listed at 40 C.F.R. Part 261, Subpart D, is hazardous waste. 40 C.F.R. § 261.3(a)(2)(iv).

The "derived from rule," subject to certain exceptions not at issue here, provides that "any solid waste generated from the treatment ... of a hazardous waste ... is a hazardous waste." 40 C.F.R. § 261.3(c)(2)(i); CWM, 869 F.2d at 1530; See 54 Fed.Reg. 1056, 1063 (preamble to proposed rule regarding land disposal restrictions, Jan. 11, 1989) ("all of the residues from treating the original listed wastes are likewise considered to be the listed waste by virtue of the derived-from rule"). See also 45 Fed.Reg. 33084, 33096 (May 19, 1980). Consequently, residue from the burning of waste listed at 40 C.F.R. Part 261, Subpart D, or possessing characteristics set forth at 40 C.F.R. Part 261, Subpart C, is also hazardous waste regardless of whether it contains substances on the Subpart D list or exhibits Subpart C characteristics.

An exception to the definition of hazardous and solid waste is provided in 42 U.S.C. § 6903(27). That section states that a "source, special nuclear, or byproduct material as defined by the Atomic Energy Act," 42 U.S.C. § 2011 et seq., (AEA) is not solid waste.

DOE, however, does not claim that the AEA shields it from RCRA regulation. To the contrary, Sierra Club and DOE agree that the AEA "appears directed only to the radioactive component of nuclear waste," and that the hazardous component of "mixed waste" must be managed as hazardous waste whether or not the radioactive component of the mixed waste is subject to regulation. 52 Fed.Reg. 15937, 15940 (May 1, 1987); 10 C.F.R. § 962.3(b); See Legal Environmental Assistance Foundation (LEAF) v. Hodel, 586 F.Supp. 1163 (E.D.Tenn.1984). Once the plutonium is separated from the hazardous waste, the plutonium itself is clearly no longer subject to RCRA. Moreover, it is undisputed that RCRA regulation of the materials at issue here will not prevent plutonium recovery, but plutonium mixed with this...