Defense Environment Alert

an exclusive biweekly report on defense policies for cleanup, compliance and pollution prevention

Vol. 18, No. 12

June 8, 2010

U.S. Disputes Colorado Appeal In Chemical Weapons Destruction Case

The U.S. government is asking a federal appeals court to uphold a lower court ruling that blocked the state of Colorado from enforcing a destruction schedule for the military's stockpiled chemical weapons in Pueblo, CO, arguing that in cases where state and federal law conflict, state law must yield to federal law.

"This case is a rare example of an instance where it is physically impossible to comply with a state law and a federal law at the same time," the U.S. government says in its June 1 response to Colorado's appeal. Federal law effectively requires the Army to store the chemical munitions on-site until they can be destroyed safely. The state contends state law bars any storage of chemical munitions at the depot. Because it would be impossible to comply with both, the Supremacy Clause requires that state law is preempted, the response says. The US. brief is available on InsideEPA.com. See page 2 for details.

At issue is a March 2 appeal filed by Colorado to the U.S. Court of Appeals for the 10th Circuit in the case Colorado Department of Public Health & Environment v. United States of America, et al. The state is attempting to enforce a 2017 deadline -- the same as that established by Congress in 2007 -- for destroying stockpiled chemical weapons housed at the Pueblo Chemical Depot (PCD) in Pueblo, CO. The depot stores about 2,600 tons of chemical agent in 780,000 munitions, according to the state.

Colorado alleges that the continued storage of chemical munitions at the depot violates state waste regulations because the regulations prohibit long-term storage of waste and require disposal. As a result, the state sought a mandatory injunction requiring the military to submit a treatment plan for the chemical weapons with a destruction completion date of Dec. 31, 2017, and to commit to interim milestones.

But the district court last September ruled that the "doctrine of conflict preemption" prevents the court from granting the state's request, saying that the state through its requirements cannot preempt existing federal law. The doctrine comes into play when a party cannot comply with both state and federal law or in cases where the state law poses an obstacle to executing federal law, the court said (Defense Environment Alert, Sept. 29).

The state now argues that the district court erred by reaching conclusions on Constitutional issues before determining if stored chemical weapons are hazardous waste. In addition, it contends the court failed to identify the conflict between state and federal law that led it to find the state requirement for a compliance schedule governing the destruction of the weapons was preempted by federal law (Defense Environment Alert, March 16).

But the U.S. government says the district court ruled correctly because the state requirements are preempted when it comes to their application to chemical munitions.

"The State cannot skirt preemption concerns just by requesting relief that it views as consistent with [the federal law's] framework," the United States says.

"The scope of relief is irrelevant to preemption analysis if a plaintiff bases his complaint on a state law that directly conflicts with federal law. In such a case, the plaintiff cannot demand any relief, even relief he thinks is consistent with Congress's intent," the legal brief says.

Because federal law "preempts any state law that would forbid" the storage of chemical weapons at Pueblo, "Colorado cannot prove that the Army is violating state law, and cannot request any relief at all," the United States says.