Richard Patrick Jobb, born in McCormick, Wash., 17 March 1920, enlisted in the Navy 28 February 1942. He was at Guadalcanal for America's first amphibious operation of the Pacific War. Hearing a call of a patrol subjected to enemy fire near the Namara River 26 January 1043, Pharmacist's Mate Third Class Jobb rushed forward 150 yards through intense enemy fire to aid the wounded. He continued to dress casualties under fire until he was himself hit and killed. For his courageous devotion to duty Jobb was posthumously awarded the Silver Star.
(DE-707: dp. 1,450; 1. 306'; b. 36'10" ; dr. 9'8" ; s. 24 k.;cpl. 186; a. 2 5", 4 40mm., 10 20mm., 3 21" tt., 2 dct., 8 dcp., 1 dcp. (h.h.) ; cl. Rudderow)
Jobb (DE-707) was laid down by Defoe Shipbuilding Co., Bay City, Mich., 20 December 1943; launched 4 March 1944; sponsored by Mrs. S. L. Jobb, mother of Pharmacist's Mate Third Class Jobb; and commissioned at New Orleans 4 July 1944, Lt. Comdr. Herbert M. Jones in command.
Following her shakedown training off Bermuda, Jobb was assigned to a hunter-killer patrol group in the Atlantic. A hurricane forced her back to Norfolk 13-15 September, after which she steamed to New York to prepare for Pacific service. Jobb sailed 23 October and proceeded via the Panama Canal and Bora Bora to Humboldt Bay, New Guinea 21 November. With the invasion of the Philippines then underway, Jobb escorted a convoy to Leyte Gulf 28 November. She remained at Leyte until 12 December, when she screened a slow tow convoy for Mindoro. Next day Japanese snooper aircraft appeared, followed by bombers. In the raids of the next few days, Jobb's gunners shot down at least two of the attackers. After seeing the tows safely to Mindoro, she next sailed via Leyte to New Guinea, where she arrived Hollandia 28 December.
The ship joined a convoy for newly assaulted Lingayen Gulf 8 January 1945; but, after striking a reef in the Philippines 16 January, she returned to Leyte Gulf for repairs. Following further work on her propellers at Manus, Jobb returned to the Philippines in February to escort convoys carrying troops and supplies. During these critical months, she protected support convoys to Palawan, Mindoro, and Mindanao as the conquest of the Philippines proceeded apace.
Jobb departed Morotai 4 June to take part in the landings at Brunei Bay, Borneo. She patrolled as troops went ashore 10 June and captured the strategic Bay without opposition. Later in the month, she screened a resupply convoy from Morotai. She arrived Leyte 8 July for repairs before conducting antisubmarine patrol between the Philippines and Ulithi until the close of hostilities.
The veteran ship steamed to Okinawa 23 August and in the months that followed operated between the various island bases in support of the occupation and reorganization of the Pacific area. Jobb arrived Pearl Harbor 31 December and reached San Francisco 9 January 1946. She later moved to San Diego, decommissioned 13 May 1946, and entered the Pacific Reserve Fleet. At present she is berthed at Stockton, Calif.
Jobb received three battle stars for World War 11 service.
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Barrel Roll In A 707? History-Making Pilot Ends Silence
Alvin ``Tex'' Johnston, the Boeing test pilot whose barrel roll over a Gold Cup course in a commercial jet 35 years ago was one of the most famous maneuvers in aviation history, has broken a long silence about the incident in his memoirs.
The book - ``Tex Johnston: Jet Test Pilot'' - was six years in the writing. It is being published by the Smithsonian Institution, which has ordered Johnston not to divulge too much detail in pre-publication interviews.
Most of the story, however, can be pieced together from an interview this week at Johnston's home in an Everett mobile-home park.
On Aug. 7, 1955, Johnston, then Boeing's chief test pilot, had been flying over the Olympic Peninsula and the Pacific Ocean at the controls of Boeing's new Dash 80, the prototype for the 707.
The plane was the company's pride and joy, its entry into the age of commercial jet aircraft. It had been agreed beforehand that Johnston would fly it over Lake Washington, where 250,000 people - including several of the nation's top aviation executives - were gathered for a Gold Cup hydroplane race, the feature event of Seafair.
Johnston, wearing a flight suit and his trademark cowboy boots, was in the pilot's seat. Alongside him, in the co-pilot's seat, was Jim Gannett. A Boeing engineer, along for the ride, also was in the cabin with a camera.
As the aircraft flew over the race course, Johnston put it into a barrel roll, a spin on its axis. Its enormous wings turned 360 degrees. As the plane briefly flew upside down, the crowd below gasped in amazement.
Inside the aircraft's cabin, the Boeing engineer placed his camera next to the windshield and clicked off a sequence of photographs.
The barrel roll went so smoothly that a glass of water could have been placed on the instrument panel, and not a drop would have been spilled because of the gravitational forces present in such a maneuver.
After passing over the race course, Johnston made a wide turn and then returned - repeating the roll.
The throngs below oohed and aahed. They had just witnessed aviation history. But if they expected to read about it in the next day's newspapers, they were disappointed. Not a word appeared.
There were rumors that Boeing had quashed the stories. But Carl Cleveland, then head of Boeing public relations, says that's not so. ``The press just dropped the ball.''
Cleveland, long retired, says that at the time of the maneuver, he was on a yacht in Lake Washington with assorted bigwigs in the airline industry, including Bill Allen, then president of Boeing.
``After the first barrel roll, Bill Allen turned to me and said, `I don't think we should have anything in the papers about that.' But I said, `All those people just saw it. I don't know how we can stop it.' ''
Cleveland says the reporters covering the race simply forgot to mention it ``for some damned reason.'' He guesses that members of the press, mostly sports writers, were more interested in the outcome of the race than in what was happening overhead.
The story spread across the country, however, embellished with the telling until it became a part of aviation folklore.
Johnston - the man who pulled it off - never talked. Now, at age 75, he's finally breaking the self-imposed silence in his memoirs.
``My publisher doesn't want me to talk much about the incident until the book comes out,'' says Johnston, who lives with his wife of 55 years, DeLores .
But he responds to several questions about the incident during an interview in the small office in his home. There is a wooden model of the 707 at his elbow, and the walls are covered with photographs of his days as a test pilot and big-game hunter.
The barrel roll, Johnston concedes, was ``the most famous maneuver in aviation history . . . I still get 10 to 15 letters a week from people wanting to know about it. Most of them want photographs.''
With a grin, he adds, ``It sold a lot of airplanes.''
Did Allen know he was going to do it? ``Hell, no, he didn't know.''
But Johnston does not deny that he knew exactly what he was going to do that day. He knew the limits of both man and machine and made two carefully calculated maneuvers. There was nothing spontaneous about it. He just didn't bother to inform the front office beforehand.
Johnston wasn't the only one who kept mum about the Gold Cup incident.
Allen refused to discuss the subject in interviews for years. Finally, in 1970 - 15 years after the barrel-roll incident - he broke his silence, telling how he felt that day.
Allen said that when Johnston performed the first barrel roll, he thought it was a mistake, that something had gone wrong.
When he saw Johnston do the second barrel roll, Allen said, he thought the test pilot had either lost his mind or the aircraft was in serious difficulty.
He said he turned to Larry Bell of Bell Aircraft, who had a heart condition that required regular medication, and said:
``Give me one of those damned (heart) pills. I need it worse than you do.''
Allen said he called Johnston into the office the next morning and asked why he had done it. He said Johnston told him he had absolute faith in the airplane and that the barrel roll, while sensational from the ground, had been well within the limits of the aircraft.
Responding to Allen's comments now, Johnston says there was never any danger to the fans below. The maneuver pulled only ``one g'' - the exact force of gravity - and was almost like sitting in an easy chair.
``I wouldn't have done anything to jeopardize the aircraft,'' Johnston adds.
According to Johnston, the time spent writing the book was more difficult than performing aerial stunts or hunting big game.
``There were several times when I wanted to tear up the whole thing (manuscript) and quit,'' says Johnston, who looks pretty much as he did in his test-pilot days, except for a graying mustache.
Johnston says he tells, in the book, how he fell in love with flying as a boy in Kansas, taking lessons in high school and flying and learning to fix airplanes while earning a degree in engineering from Kansas State University.
He barnstormed for a time with Inman Brothers Flying Circus, performing acrobatics in open-cockpit biplanes while a stuntman walked on the wings and hung from inner tubes slung over the wheels.
``I sold tickets and baby-sat the circus' lion, Thor,'' Johnston says. ``When it rained, I slept with the lion inside a Ford Tri-motor.''
As this country geared up for World War II, Johnston ferried airplanes to various military bases around the country. In 1944, he signed on with Bell Aircraft of Buffalo, N.Y., and was chief test pilot for this nation's first jet airplane, Bell's XP-59, which he flew to 43,000 feet - the first time a U.S. plane went above 40,000 feet.
``Those early jet engines,'' he says, ``had a life expectancy of just five hours . . . and some were ready to quit before that.''
Bell asked Johnston to help correct a deadly problem - wings falling off its P-51 fighter planes when student pilots engaged in simulated dogfights. He found the fatal flaw by pushing the airplane close to - but never beyond - its limits.
When this country got hold of two German Focke-Wulf 190s that had cracked up and been rebuilt, Johnston was asked to test them - to see what the Germans had discovered about combat aircraft that would help U.S. fighter pilots.
``Captured data from Germany indicated that swept wings improved performance,'' Johnston says. ``So Boeing modified a P-63 interceptor fighter to a swept-wing design, and I tested it.''
Johnston continued on the frontiers of aviation, testing the rocket-engined X-1 for the Air Force, with his friend Jack Woolams. Original plans called for the aircraft to be able to withstand 9 g's (nine times the pull of gravity). It was decided to beef it up to 18 g's.
``A good thing, too,'' says Johnston, because Chuck Yeager (``The Right Stuff'') accidentally went supersonic during a test flight in the X-1, slammed against the roof of the cockpit and was knocked unconscious. The aircraft attained incredible speeds as it bounced around crazily in the sky. Yeager pulled out just short of slamming into the ground.
Johnston lost one of his closest test-pilot friends, Ed Allen, during the war. Allen was flying a prototype B-29 over Seattle in 1943 when the aircraft developed problems and slammed into the Frye Packing Plant, just short of Boeing field. Thirty-two died.
He would lose another, Jack Woolams, after the war when both decided to enter the first postwar Thompson Trophy Race, aviation's premier test of aircraft speed and maneuverability.
Woolams was killed in a practice flight the day before the Thompson race, which required pilots to fly just a few feet off the ground as they went around four pylons. Although he was heartsick, Johnston went ahead with the race - in a modified P-39 Cobra II. He attained speeds of 420 mph and averaged 374.8 mph in breaking the record by 90 mph and winning the $19,200 first prize. Johnston gave half the check to Woolam's widow.
Bell was looking for markets for its newest product, helicopters. Johnston marketed them, showing the petroleum industry how they could be used in exploring for oil. But he preferred airplanes and was told ``Boeing is the best in the business.''
After testing B-47s and XB-52s at Boeing's Wichita plant, he moved to Seattle, where he tested the Dash 80, prototype 707-120s and 320s and then was moved into the space program - first as assistant program director for Dyna-Soar and then as director of Boeing Atlantic Test Center (BATC) in Florida for the Saturn program.
``It was a lot of fun but not as good as flying,'' says Johnston, who retired in 1968.
Johnston seldom flies today, ``because it's too expensive for a retiree.'' He also has given up big-game hunting, a sport that once took him all over the world, resulted in numerous trophies and cemented friendships with people such as the late radio and TV personality Arthur Godfrey.
``My last hunt soured me,'' says Johnston, describing how he and several other hunters flew over the ice floes in Alaska to track down polar bears. ``I shot one, but it was all so unsportsmanlike that I said `no more.' I gave away all my guns after that.''
With that Johnston grew silent. But there was one more question. Why was he called ``Tex'' if he was born in Kansas?
``I had been flying down in the Dallas area when I went up to Buffalo to work for Bell, and I walked in in these cowboy boots, and somebody said, `Hey, Tex is here!' Well, the name just stuck.
``When your mother makes the mistake of naming you `Alvin,' `Tex' isn't so bad.''
As of April 2011, training to become a Hospital Corpsman begins at Basic Medical Technician Corpsman Program (BMTCP) located at Joint Base Fort Sam Houston in San Antonio, Texas.
Because of the need for hospital corpsmen in a vast array of foreign, domestic, and shipboard duty stations, as well as with United States Marine Corps units, the Hospital Corps is the largest occupational rating (Navy Enlisted Classification-HM) in the United States Navy, with about 25,000 members active duty and reserve. [ clarification needed ]
The basic training for hospital corpsmen is conducted at the Medical Education and Training Campus, located at the Joint Base, Ft. Sam Houston, TX. Originally located at Great Lakes IL. one of the Navy's "A" schools (primary rating training). Upon graduation, the hospital corpsman is given the Navy Enlisted Classification (NEC) code of HM-0000, or "quad-zero" in common usage. Students go through an 18-week course that provides in-depth and extensive training into the application of emergency medical techniques, disease and pathologies, and nursing techniques.
NECs are not as analogous to MOS in the United States Army and Marine Corps, or AFSC in the Air Force as the rate in the Navy. There are primary NECs, and secondary NECs. For example, a hospital corpsman who completes Field Medical Training Battalion (FMTB) and earns the NEC HM-8404, moves that NEC to primary and has a secondary NEC of HM-0000. If that hospital corpsman attends a "C" School, then the NEC earned at the "C" School becomes their primary and HM-8404 becomes the secondary. Some hospital corpsmen go on to receive more specialized training in roles such as medical laboratory technician, radiology technician, aerospace medicine specialist, pharmacy technician, operating room technician, etc. This advanced education is done through "C" schools, which confer additional NECs. Additionally, hospital corpsmen (E-5 and above) may attend independent duty corpsman training, qualifying for independent duty in surface ships and submarines, with diving teams, and Fleet Marine Force Recon teams, as well as at remote shore installations. In addition to advanced medical training, these Hospital Corpsmen receive qualification in sanitation and public health.
Of note is the Field Medical Training Battalion (FMTB), with locations at Camp Del Mar and Camp Johnson, where sailors bound for service with USMC operating forces earn the NEC HM-8404, Field Medical Service Technician. FMTB provides specialized training in advanced emergency medicine and the fundamentals of Marine Corps life, while emphasizing physical conditioning, small arms familiarity, and basic battlefield tactics. As of 2010 [update] , this rigorous training is 8 weeks. Training for the Fleet Marine Force (FMF) familiarizes navy corpsmen with the Marines. A bond and mutual respect is often formed between Marines and their assigned hospital corpsmen, earning respect apart from their Navy shipmates. FMF hospital corpsmen are issued the Marine Corps service uniforms and camouflage uniforms (MARPAT) while assigned to the Marine Corps and also have the option to go Marine Corps Regulations. They are then issued a new seabag containing the Marine uniforms (except dress blues) with uniform matching Navy rate chevrons instead of the Marine rank chevrons, and collar rank insignias, and wear those instead of traditional Navy uniforms. The Navy's new digitized camouflage working uniform are worn by sailors stationed at other naval facilities.
Hospital corpsmen can further specialize they may undergo further training to become Special Amphibious Reconnaissance Corpsman, or SARC. They are usually found in both the FMF Recon, Marine Division Recon and MARSOC units. They are trained and skilled in combat, including combatant swimming, opened/closed circuit scuba diving, military free-fall and amphibious operations. They act as advisers regarding health and injury prevention, and treat illnesses from decompression sickness as well as other conditions requiring hyperbaric treatment.
Hospital corpsmen who have received the warfare designator of enlisted fleet marine force warfare specialist are highly trained members of the Hospital Corps who specialize in all aspects of working with the United States Marine Corps operating forces. Attainment of this designation is highly prized among all corpsmen. The enlisted fleet marine force warfare designation for hospital corpsmen is the only US Navy warfare device awarded solely by a US Marine Corps general officer. This awarding authority cannot be delegated to US Navy officers. However, obtaining the title of "FMF" is a rigorous procedure and not every hospital corpsman who has been with a Marine Corps unit will wear the FMF warfare device. U.S. Navy officers in the medical community (Medical Corps (doctor), Nurse Corps, Dental Corps, Medical Service Corps) can earn and wear the officer equivalent to this insignia. Additionally any sailor attached to a USMC unit can earn and wear an FMF warfare device. (e.g., administrative rates such as logistic specialists) provided they complete all the qualifications for the FMF warfare specialist.
The first physician assistants were selected from Navy corpsmen who had combat experience in Vietnam. The Navy trained its own physician assistants drawing from the ranks of qualified independent duty hospital corpsmen at the Naval School of Health Sciences in Portsmouth, VA until 1985, then at San Diego, CA and current the Interservice Physician's Assistant Program (IPAP) with a university affiliation of the University of Nebraska Medical Center (UNMC). It is conducted in two phases the first phase at the Graduate School and Academy of Health Sciences at AMEDDC&S, Ft. Sam Houston, TX and the second phase at various medical facilities and specialties. When training completed they become officers in the Medical Service Corps (MSC). Former Navy hospital corpsmen are also represented in many medical disciplines, as physicians, nurses, medical administrators and other walks of life. After completing their training, a physician assistant is promoted to the rank of lieutenant junior grade (O-2).
Providence St. Joseph Hospital Eureka
Changes to our visitation policy are in effect until further notice. We are monitoring this matter closely and will make adjustments, as necessary. Learn more about our safety and crisis care guidelines.
St. Joseph Hospital has been serving the health care needs of Humboldt County since 1920. Comprised of two campuses, St. Joseph Hospital, Eureka and the General Hospital campus are located within a quarter mile of each other in Eureka. We offer comprehensive health services and are growing to meet the needs of our community.
If you are planning on visiting someone at St Joseph Hospital, Eureka, then we are here to help ensure that your visit is as smooth and easy as possible. We have provided this website as a helpful tool in providing you with the information that you need when planning a visit.
For over 100 years, St. Joseph Hospital has enjoyed tremendous community support. Today, more than ever, St. Joseph Hospital depends on contributions from our grateful patients and community members. You gifts, no matter the size, make a tremendous difference in the lives of our families, friends and neighbors here on the North Coast.
The Foundation dedicates its funds to priority capital needs, core programs, scholarships and new program support. If you have any questions or would like more information about our Foundation, please call 707-445-8121.
- ^ Treadgold, Warren T. (1997), A History of the Byzantine State and Society, Stanford, CA: Stanford University Press, p.𧉕, ISBNـ-8047-2630-2 , http://books.google.com/books?id=nYbnr5XVbzUC
- ^ Venning, Timothy, ed. (2006). A Chronology of the Byzantine Empire. Palgrave Macmillan. p.𧆿. ISBNف-4039-1774-4.
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Lettris is a curious tetris-clone game where all the bricks have the same square shape but different content. Each square carries a letter. To make squares disappear and save space for other squares you have to assemble English words (left, right, up, down) from the falling squares.
Boggle gives you 3 minutes to find as many words (3 letters or more) as you can in a grid of 16 letters. You can also try the grid of 16 letters. Letters must be adjacent and longer words score better. See if you can get into the grid Hall of Fame !
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New and used parts for Italian built Harley-Davidson Sprint motorcycles.
Moto Italia (formerly located at motomacchi.com) features a huge inventory of parts for Aermacchi and lightweight Harley-Davidson two-stroke and four-stroke motorcycles.
Moto Italia has been in the Aermacchi Harley-Davidson parts business since 1985. Our inventory consists of over 1/2 million dollars in new Aermacchi Harley-Davidson parts and accessories. Our stock has grown from sources in the United States, England and Italy. A few of the highlights of Moto Italia’s collection are a 1964 250cc CRTT Sprint, a 250cc Chimera, a “Dale’s Harley Shop” 1975 SX-250 Desert Racer (prototype MX-250) and production version MX-250.
Throughout this website, you will find graphics of Aermacchi and/or Harley-Davidson motorcycles, however, we are not affiliated with the Harley-Davidson Motor Company or Aermacchi. We are an independent shop.
- Day 1
- 00:03 &ndash 707, Yoosung
- 02:21 &ndash Jaehee
- 04:35 &ndash Zen
- 07:00 &ndash Yoosung
- 08:00 &ndash Zen, Jumin
- 10:04 &ndash 707, Jumin
- 11:58 &ndash Yoosung, 707
- 12:50 &ndash Jaehee
- 13:48 &ndash Jumin, 707
- 15:00 &ndash Zen
- 16:50 &ndash 707
- 18:02 &ndash Yoosung
- 18:58 &ndash Jumin, Zen
- 19:40 &ndash Jumin, Jaehee
- 21:50 &ndash Zen
- 22:30 &ndash Yoosung
- 23:15 &ndash Jaehee, Jumin, 707, Zen, Yoosung
Although you can earn hearts from Jumin and 707 in Casual mode, these character routes are only available in Deep mode. Think of these hearts as free points to convert into HG rather than affection ratings.
- Day 2
- 00:38 &ndash Jaehee
- 03:03 &ndash Zen
- 07:00 &ndash Yoosung
- 08:05 &ndash Jumin, Jaehee
- 11:45 &ndash Yoosung
- 12:43 &ndash 707, Zen
- 15:00 &ndash Zen
- 17:23 &ndash 707, Jumin, Yoosung
- 19:02 &ndash Zen, Yoosung
- 20:05 &ndash Zen [Email opportunity]
- 21:35 &ndash Jaehee
- Day 3
- 00:00 &ndash Zen, 707
- 03:04 &ndash Yoosung, Jaehee, Jumin [Email opportunity]
- 07:30 &ndash Zen, Juminn
- 10:50 &ndash Jumin, Jaehee, 707 [Email opportunity]
- 12:15 &ndash Zen, Jaehee, Yoosung
- 13:05 &ndash Jaehee, Yoosung [Email opportunity x2]
- 15:30 &ndash Zen, Jaehee
- 17:56 &ndash Yoosung, Zen [Email opportunity]
- 19:42 &ndash 707, Jaehee
- 21:15 &ndash Yoosung, Jaehee, Zen
- 23:00 &ndash Yoosung, Zen [Email opportunity x2]
- Day 4
- 00:18 &ndash Jaehee
- 03:24 &ndash707, Yoosung
- 07:00 &ndash Jaehee, Jumin [Email opportunity]
- 09:05 &ndash Jaehee, 707, Jumin [Email opportunity]
- 10:00 &ndash Yoosung
- 12:50 &ndash Jaehee, Yoosung [Email opportunity]
- 15:00 &ndash Zen, Joosung, Jaehee [Email opportunity]
- 17:04 &ndash 707, Jaehee [Email opportunity]
- 19:18 &ndash Yoosung, Zen, Jaehee [Email opportunity]
- 21:08 &ndash Jaehee
- 22:00 &ndash Zen, Yoosung, 707 [Email opportunity]
- 23:15 &ndash Jaehee, Yoosung, Zen [Email opportunity]
یواساس جاب (دییی-۷۰۷)
یواساس جاب (دییی-۷۰۷) (به انگلیسی: USS Jobb (DE-707) ) یک کشتی بود که طول آن ۳۰۶ فوت (۹۳ متر) بود. این کشتی در سال ۱۹۴۴ ساخته شد.
|آباندازی:||۲۰ دسامبر ۱۹۴۳|
|آغاز کار:||۴ مارس ۱۹۴۴|
|اعزام:||۴ ژوئیه ۱۹۴۴|
|وزن:||۱٬۴۵۰ long ton (۱٬۴۷۳ تن)|
|درازا:||۳۰۶ فوت (۹۳ متر)|
|پهنا:||۳۷ فوت (۱۱ متر)|
|آبخور:||۱۳ فوت ۹ اینچ (۴٫۱۹ متر)|
|سرعت:||۲۴ گره (۴۴ کیلومتر بر ساعت؛ ۲۸ مایل بر ساعت)|
این یک مقالهٔ خرد کشتی یا قایق است. میتوانید با گسترش آن به ویکیپدیا کمک کنید.
STATE OF COLO. v. U.S. DEPT. OF THE ARMY
STATE OF COLORADO, Plaintiff, v. UNITED STATES DEPARTMENT OF THE ARMY, Defendant.
United States District Court, D. Colorado. https://leagle.com/images/logo.png
Attorney(s) appearing for the Case
Michael R. Hope, Deputy Atty. Gen., CERCLA Litigation Section, Denver, Colo., for plaintiff.
Michael Norton, U.S. Atty., Denver, Colo., for defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff, State of Colorado, commenced this action against the defendant, United States Department of the Army ("the Army") in the District Court for the City and County of Denver, Colorado, seeking an injunction to halt alleged present and future violations of certain Colorado statutes and regulations concerning hazardous waste management and control. The Army removed the case to this court.
The area giving rise to the lawsuit is known as "Basin F." It is a hazardous waste disposal pond situated within the Rocky Mountain Arsenal ("the Arsenal"). The arsenal is a federally controlled site occupying about 27 square miles near Commerce City, a suburban area northeast of Denver, Colorado. The Arsenal was constructed in 1942 to manufacture and assemble chemical warfare agents, chemical products and incendiary munitions. It also has been used for detoxification and disposal of these toxic materials. Portions of the Arsenal have been leased to private operators, including Shell Oil Company ("Shell") for the manufacture of pesticides and herbicides. The United States owns and the Army operates the Arsenal. (Shell is a defendant in a companion CERCLA case, No. 83-C-2379. These two cases have been consolidated with a third, 83-C-2386.)
The Army constructed Basin F in 1956 to store and dispose of contaminated liquid wastes generated by the Army's and Shell's chemical manufacturing and processing activities. Basin F began receiving contaminated liquid wastes in October 1956.
As originally filed in the state court, the instant action concerns solely Basin F. The State's complaint asserted numerous claims against the Army based on Colorado's Ground Water Monitoring Regulations [Colorado Hazardous Waste Regulations, 6 CCR 1007-3, ("Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities, 6 CCR 1007-3, Part 265, Subpart F), issued pursuant to the Colorado Hazardous Waste Management Act ("the CHWMA"), Title 25-15, part 3, C.R.S. (1982)]. These claims include: (1) failure
to provide and monitor complying upgradient monitoring wells, in violation of § 265.91(a)(1) (First Claim) (2) failure to submit a specific ground water monitoring program, in violation of § 265.93(d)(2) (Second Claim) (3) failure to determine impact of Basin F on ground water quality, in violation of 6 CCR 1007-3, § 265.93(d)(2) (Third Claim) and (4) failure adequately to monitor and report ground water quality assessment, in violation of §§ 265.93(d)(5) and (7). The Army subsequently removed the action to this court.
On January 14, 1987, the Army filed a motion to dismiss or, in the alternative, for summary judgment or partial summary judgment, regarding the claims set forth in the plaintiff's complaint. The issues raised in the motion were fully briefed by the parties.
On December 4, 1987, the plaintiff filed its First Amended Complaint setting forth new claims and allegations. The First Amended Complaint alleges that in June, 1983, the Army submitted to the United States Environmental Protection Agency ("E.P.A.") a plan to close Basin F. It further alleges that, subsequent to E.P.A.'s authorization to the State of Colorado to operate the State's hazardous waste management program, the Colorado Department of Health ("CDH") issued a final plan to close Basin F, pursuant to State Closure Regulations (6 CCR 1007-3, Part 265, Subpart G). The Basin F Closure Plan ("the Plan") became effective October 2, 1986, as a final order of the CDH. Defendant did not appeal, or otherwise seek review of the Plan. Pursuant to the Plan's terms, it is alleged, the Army was required to complete certain remedial steps effecting Basin F's closure by October 2, 1987.
In the First Amended Complaint, the plaintiff asserts claims against the Army for: (1) failure to close Basin F in compliance with the Basin F Closure Plan (First Claim) (2) failure to comply with Colorado's Ground Water Monitoring Regulations, a claim with three subclaims, and essentially a reassertion of three of the claims set forth in the plaintiff's initial complaint (Second Claim) and (3) failure to pay annual operating and waste volume fees, in violation of §§ 100.31(a) and (b) of State Fee Regulations, 6 CCR 1007-3, Part 100.
Plaintiff asserts that the Attorney General of the State of Colorado has standing and authority to prosecute this suit, pursuant to Executive Order No. D0012-86, issued February 4, 1986, under C.R.S. § 24-31-101(1)(a) (1982). The State Attorney General filed this action at the request of the CDH pursuant to C.R.S. §§ 24-4-106(3) and 25-15-308(2) (1982) seeking to halt present violations and prevent future violations of the CHWMA, as well as the Colorado Hazardous Waste Regulations, and to enforce the final order issued by CDH to close "Basin F." Plaintiff further asserts that this action is properly filed against the Army as defendant because Congress has waived sovereign immunity as to civil actions against federal entities to enforce state requirements regarding hazardous waste management and disposal. For this proposition the State cites § 6001 of the Solid Waste Disposal Act, as amended by the Resource Conservation Act of 1976 ("RCRA") [42 U.S.C. §§ 6901-6987], 42 U.S.C. § 6961.
The Army has moved to dismiss the plaintiff's First Amended Complaint, asserting that the United States has not waived its sovereign immunity as to these claims under RCRA § 6001, [42 U.S.C. § 6961]. Defendant Army's argument in part emphasizes that I presently have pending before me two actions directed at cleanup of the Arsenal as a whole. As stated above, these consolidated cases are State of Colorado v. United States, Civil Action No. 83-2386, and United States v. Shell Oil Company, Civil Action No. 83-C-2379. Both cases were filed under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601 et seq. CERCLA was amended by the 1986 Superfund Amendments and Reauthorization Act ("SARA"), Pub.L. 99-499, 100 Stat. 1615.
Defendant Army does not dispute that RCRA § 6001 [42 U.S.C. § 6961], read in conjunction with RCRA § 7002 [42 U.S.
C. § 6972], contains a waiver of federal sovereign immunity. Rather, the Army asserts that sovereign immunity is not waived under those sections when there is an ongoing CERCLA cleanup action at the site that addresses hazardous waste requirements that are the same in substance as those sought to be enforced by the state under RCRA. In essence, the Army argues that CERCLA's enforcement and response provisions pre-empt and preclude a state RCRA enforcement action with respect to the cleanup of hazardous wastes at the Arsenal.
Plaintiff State has responded by opposing the motion. Initially, I deny as moot the Army's first dispositive motion addressing the State's complaint, except for that portion of the defendant's argument that is reasserted in its second motion to dismiss.
At a hearing on the plaintiff's motion for injunctive relief, I briefly heard oral argument on the defendant's dismissal motion. More recently, the State has reasserted its position by moving for partial summary judgment, and the Army has filed an opposition memorandum to that motion. In addition, the parties have filed supplemental briefs at the court's request addressing whether the State is precluded from pursuing this action because the Army has commenced interim cleanup measures at Basin F whether and to what extent the State will have a role in the Arsenal clean up if the instant action is dismissed and whether the State is proceeding under RCRA § 7002, [42 U.S.C. § 6972] in this case. The parties also have filed briefs on whether the State's action is barred by the Supremacy Clause.
The issues thus have been fully briefed and orally presented by the parties. The matter is ripe for decision.
It is fundamental that the United States cannot be sued without its consent, and this immunity protects federal agencies such as the Army. In the absence of an express statutory waiver of immunity, an action against the United States must be dismissed for lack of jurisdiction. United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940) United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A waiver of immunity must be strictly construed and must be confined to the terms and conditions specified. Stubbs v. United States, 620 F.2d 775 (10th Cir. 1980) Reynolds v. United States, 643 F.2d 707 (10th Cir.1981).
Section 6001 of RCRA, [42 U.S.C. § 6961], provides in pertinent part:
"Each department, agency, and instrumentality of the executive, legislative and judicial branches of the Federal Government . engaged in any activity resulting, or which may result, in the disposal or management of solid or hazardous waste shall comply with all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirements for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges. Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State enforcement of any such injunctive relief. " 42 U.S.C. § 6961. (Emphasis added).
Relevant portions of RCRA § 7002, [42 U.S.C. § 6972] provide as follows:
"(a) In general. . [A]ny person may commence a civil action on his own behalf — (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this Act [42 U.S.C. §§ 6901 et seq.]. " * * * * * * "(b) Actions prohibited. * * * * * *
(2)(B) No action may be commenced under subsection (a)(1)(B) of this section if the Administrator, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment — (i) has commenced and is diligently prosecuting an action under section 7003 of this Act [42 U.S.C. § 6973] or under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. § 9606], (ii) is actually engaging in a removal action under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. § 9604] (iii) has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. 9604] and is diligently proceeding with a remedial action under that Act or (iv) has obtained a court order (including consent decree) or issued an administrative order under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or section 7003 of this Act [42 U.S.C. §§ 9606, 6973] pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and Feasability Study (RIFS), or proceeding with a remedial action."
The term "person" who is authorized to commence such an action is defined elsewhere to include the State. 42 U.S.C. § 6903(15).
The Army stresses that these sections must be reconciled with certain CERCLA provisions that govern the manner in which federal agencies must undertake CERCLA cleanup actions and which specify the state role in those cleanup efforts. Defendant cites RCRA § 1006, [42 U.S.C. § 6905], in support of its argument that Congress intended that RCRA and CERCLA be integrated to avoid conflicts and to eliminate cleanup duplication. RCRA § 1006, [42 U.S.C. § 6905], states in relevant part:
"(a) Nothing in this Act [42 U.S.C. §§ 6901 et seq.] shall be construed to apply (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the Federal Water Pollution Control Act . the Safe Drinking Water Act . the Marine Protection, Research and Sanctuaries Act of 1972 . or the Atomic Energy Act of 1954 . except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts." "(b)(1) The [EPA] Administrator shall integrate all provisions of this Act [42 U.S. C. §§ 6901 et seq.] for purposes of administration and enforcement and shall avoid duplication, to the maximum extent practicable, with the appropriate provisions of the Clean Air Act . the Federal Water Pollution Control Act . the Federal Insecticide, Fungicide, and Rodenticide Act . the Safe Drinking Water Act . the Marine Protection, Research and Sanctuaries Act of 1972 . and such other Acts of Congress as grant regulatory authority to the Administrator. Such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies expressed in this Act . and in the other acts referred to in this subsection."
RCRA §§ 1006(a) and (b), [42 U.S.C. § 6905(a) and (b)], were enacted as part of the 1976 RCRA amendments to the Solid Waste Disposal Act. The Army asserts that RCRA §§ 1006(a) and (b) do not specifically mention CERCLA because CERCLA was not enacted until 1980. However, the Army does not explain why there has been no amendment to include CERCLA in the list during the intervening eight years.
The issue before me thus concerns whether the provisions of RCRA and CERCLA can be harmoniously construed so as to permit the State to pursue a RCRA suit against the Army seeking enforcement of state hazardous waste cleanup and abatement laws at Basin F at the same
time as other pending actions instituted under CERCLA are addressing the entire Arsenal cleanup. It is undisputed that the plaintiff's action here seeks to enforce, against the Army, state hazardous waste management laws and regulations (the CHWMA and regulations promulgated thereunder) administered "in lieu of" the federal RCRA program to the extent that the State has been so authorized by the E.P.A. 42 U.S.C. § 6926(b).
At a recent hearing, the State asserted that Basin F, and perhaps other areas within the Arsenal, are RCRA units. On the other hand, the Army contends that the entire Arsenal constitutes an on-going CERCLA cleanup site, and that the E.P.A. is the primary enforcement authority. Basin F still has not been placed on the National Priorities List ("the NPL"), although the Army for years has been assuring this court that it would be so designated. Nevertheless, after much fine-tuning, the main point of the Army's argument is that permitting the State to "carve out" Basin F and proceed under RCRA, separate and apart from the Army's CERCLA cleanup anticipated for the Arsenal as a whole, will defeat CERCLA's aims and frustrate its purpose.
The matter has been further complicated because (1) the Army has not completed a CERCLA Remedial Investigation and Feasibility Study for Basin F, or even for the Arsenal, and the Record of Decision is not expected to be completed until 1993 (2) the Army projected to the State, pursuant to RCRA, that Basin F would be cleaned up and closed by October 1987 and (3) in March 1988, the Army commenced implementing certain "interim response" cleanup measures at Basin F and certain cleanup actions are substantially completed and still underway.
In United States v. Shell Oil Co., 605 F.Supp. 1064 (D.Colo.1985), this court discussed in some detail the overriding purposes for which RCRA and CERCLA were enacted and the goals sought to be accomplished by each statutory scheme. As indicated there, RCRA was enacted to close the regulatory gap that existed because pre-RCRA federal environmental laws did not effectively regulate the disposal of environmental pollutants, including solid and hazardous wastes, on land. That opinion stated:
"RCRA provides for the promulgation of regulations by the [USEPA] applicable to generators of hazardous waste, transporters of hazardous waste, and owners and operators of hazardous waste treatment, storage and disposal facilities. The regulations established requirements respecting, among other things, record keeping practices, labeling practices, use of appropriate containers, use of a manifest system, and the design, construction, operation and maintenance of facilities." Id. at 1070.
In Shell, supra, I cited a Congressional Report [H.R.Rep. No. 96-1016, 96th Cong., 2d Sess. 22, reprinted in 1980 U.S.Code Cong. & Ad.News 6119, 6125] declaring that RCRA was enacted as a prospective "cradle-to-grave" regulatory regime that applies to past sites only to the extent that they are posing an imminent hazard. Id.
CERCLA was enacted to clean up inactive hazardous waste disposal sites. It established "`a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites.'" Id. at 1071. CERCLA was enacted to fill the regulatory gap left open by existing law. I further stated in Shell:
"[W]hile pre-CERCLA law could prevent further pollution from the contemporary generation and disposal of hazardous wastes, it could not effectively abate the ongoing environmental deterioration resulting from wastes which had been dumped in the past. CERCLA was enacted to address this problem. It is by its very nature backward looking. Many of the human acts that have caused the pollution already had taken place before its enactment physical and chemical processes are at their pernicious work, carrying destructive forces into the future."
"The decision was made in CERCLA to clean up these inactive hazardous waste sites. " Id. at 1072.
Defendant sets forth several policy arguments in support of its contention that CERCLA enforcement and remediation should be given exclusive jurisdiction and preclude RCRA enforcement through the present action. Included in the Army's broad policy arguments are the general assertions (1) that the court should give precedence to CERCLA because it is the more recent, specific statutory scheme for cleaning up hazardous waste contamination at federal facilities (2) that enforcement under RCRA would disrupt the ongoing cleanup at the Arsenal and would impermissibly duplicate the CERCLA cleanup activities and (3) that State RCRA enforcement would undermine the goals and policies that Congress set forth in CERCLA. Defendant cites various CERCLA provisions in support of these broad policy arguments.
For example, the State's closure plan and monitoring requirements are effectuated through a state permit process. In contrast, CERCLA § 121(e)(1), [42 U.S.C. § 9621(e)(1)], exempts CERCLA sites from having to acquire state or federal permits for remedial action conducted on site. Thus, the Army contends, the delays incurred in obtaining permits for RCRA enforcement would frustrate Congress's intent in enacting CERCLA as an effort to "speed up" the cleanup process. (I note that the instant CERCLA action has been pending since December 1983, and despite the court's frequent cajoling, the parties have constantly delayed efforts to bring the case to trial nor have they proposed an overall plan for clean up as contemplated by CERCLA).
The Army further argues that the State's interest in having its administrative requirements satisfied with respect to Basin F are protected. In support of this argument, the Army relies on CERCLA § 121(d), [42 U.S.C. § 9621(d)], which provides that a State's environmental standards, including state RCRA requirements, shall be considered in determining the level of cleanup at a CERCLA site and will be applied to the extent that they are applicable, relevant and appropriate ("ARAR"). At nearly every hearing, however, the State has complained that it is being left out of the process and by-passed in decisions made by the Army and the EPA.
Next, the Army asserts, the Arsenal has been listed on the National Priorities List ("the NPL"), and Basin F has been proposed for listing and should be placed on the NPL "early in 1988." It is now February 1989. Pursuant to CERCLA § 120, [42 U.S.C. § 9620], the Army argues, the E.P.A., not the State of Colorado, is ultimately responsible for overseeing and approving all Arsenal cleanup activities. However, neither party has advised the court that Basin F has been listed on the NPL.
The Army contends that it began its CERCLA Remedial Investigation and Feasibility Study at the Arsenal in October 1984. The interim remedial action plan for Basin F was proposed in June 1986 and transmitted to the State on December 4, 1987. The Army's brief also outlines the interim response actions taken with respect to the Arsenal and Basin F. Defendant Army argues that the cleanup of the Arsenal and Basin F are "inextricably related."
Last, argues the Army, once a CERCLA cleanup is underway, the State's participation rights are defined and governed by CERCLA. CERCLA § 120(f), [42 U.S.C. § 9620(f)], affords the State the opportunity to participate in the planning and selection of remedial action. CERCLA § 121(f), [42 U.S.C. § 9621(f)], outlines the State's right to participate in the cleanup remedy selection process and to seek review of the remedy selected. As indicated above, pursuant to CERCLA § 121(d) and (e)(2), [42 U.S.C. §§ 9621(d) and (e)(2)], the State may seek compliance with its own standards, such as permit requirements or other administrative requirements, if it is concerned that the CERCLA cleanup will not ensure adequate protection. The statute sets forth procedure the State can utilize to challenge judicially the United States' remedial
action plan prior to its implementation. CERCLA § 121(f)(3)(B), [42 U.S.C. § 9621(f)(3)(B)].
Similarly, CERCLA §§ 117, [42 U.S.C. § 9617)], and 113(k), [42 U.S.C. § 9613(k)], provide for public participation in the cleanup process by providing an opportunity for the public to submit written and oral comments, and to have a public meeting near the facility. RCRA, in contrast, does not provide for formal public participation.
In assessing the defendant's arguments, I first must examine other relevant CERCLA provisions.
CERCLA § 114(a), [42 U.S.C. § 9614(a)], states:
"(a) Nothing in this Act shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State."
Additionally, CERCLA § 302(d), [42 U.S.C. § 9652(d)], provides in pertinent part:
"(d) Nothing in this Act shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants. "
Even more explicitly, CERCLA § 120, part of SARA, [42 U.S.C. § 9620] states in pertinent part:
"(a)(1) Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this Act in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 107 of this Act [42 U.S.C. § 9607]. Nothing in this section shall be construed to affect the liability of any person or entity under sections 106 and 107 [42 U.S.C. §§ 9606 and 9607]." * * * * * * "(a)(4) State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States when such facilities are not included on the National Priorities List. The preceding sentence shall not apply to the extent a State law would apply any standard or requirement to such facilities which is more stringent than the standards and requirements applicable to facilities which are not owned or operated by any such department, agency or instrumentality." (Emphasis added). * * * * * * "(i) Nothing in this section shall affect or impair the obligation of any department, agency, or instrumentality of the United States to comply with any requirement of the Solid Waste Disposal Act [42 U.S.C. §§ 6901 et seq.] (including corrective action requirements)."
Tenets of statutory construction provide that whenever a legislative body enacts a statute, it has in mind previous statutes relating to the same subject matter. The new provision is presumed to be in accord with the legislative policy embodied in prior statutes and all statutes should be construed together. 2A Sutherland Statutory Construction § 51.02 (Sands 4th ed.). As I emphasized in Shell, ". CERCLA must be construed in light of previous statutes relating to environmental pollution, . " and notably, that includes RCRA. Shell, 605 F.Supp. at 1070.
Nothing in the cited statutes indicates that a CERCLA action should take precedence over a RCRA enforcement action. On the contrary, it appears that CERCLA was intended to operate independently of and in addition to RCRA, and that the statutory schemes are not mutually exclusive. See Mardan Corp. v. C.G.C. Music, Ltd., 600 F.Supp. 1049 (D.Ariz.1984) aff'd 804 F.2d 1454 (9th Cir.1986).
In fact, CERCLA § 120(a)(4), [42 U.S.C. § 9620(a)(4)], preserves state enforcement actions at federal facilities that are not listed on the National Priorities List. CERCLA § 120(i), [42 U.S.C. 9620(i)], requires
the federal government to comply with the Solid Waste Disposal Act, and now RCRA, whether or not the facility is listed on the NPL. It is undisputed that Basin F is not listed on the NPL.
I realize that CERCLA was enacted after RCRA. However, I cannot read a conflict into statutes enacted on the same subject matter where none exists. Nor can I supply an amendment to a statute that Congress has chosen not to amend for over eight years.
The Army was one of the active polluters at Basin F. The Army thus is jointly and severally liable for the contamination at Basin F and its alleged harmful impact on the community that borders the Arsenal. Were I to dismiss this action, the Army's cleanup efforts would go unchecked by any parties whose interest are in any real sense adverse to those of the Army. The same Justice Department attorneys have repeatedly claimed to represent both the Army and the E.P.A. in this action, even though the Army is a defendant and the E.P.A. acts for the United States as a plaintiff. These Justice Department lawyers repeatedly have rejected this court's suggestions that representing these opposing parties constitutes a conflict of interest.
Since it is the E.P.A.'s job to achieve a clean up as quickly and thoroughly as possible, and since the Army's obvious financial interest is to spend as little money and effort as possible on the cleanup, I cannot imagine how one attorney can vigorously and wholeheartedly advocate both positions. For this reason, among others, I have been reluctant to approve the proposed "consent decree," which is fundamentally an agreement between the two polluters, the Army and Shell, to restrict future uses of Arsenal land and thereby limit cleanup standards, thus lowering costs for both defendants.
The Army, in effect, seeks full and unbridled discretion, subject only to E.P.A.'s input through the same attorneys who represent the Army, to regulate the Basin F cleanup, a process that has been ongoing for more than five years and is still nowhere near completion or resolution. CERCLA was enacted to "speed up" the cleanup process, not delay it.
Moreover, once the Army has satisfied what it considers to be its cleanup obligations, the State is responsible to its citizens if the process has not been thorough. Having the State actively involved as a party would guarantee the salutary effect of a truly adversary proceeding that would be more likely, in the long run, to achieve a thorough cleanup.
Sites like the Arsenal, and especially Basin F, must be considered in the long range perspective of generations yet unborn and centuries still far over time's horizon. Indeed, if the instant CERCLA action fails to achieve an adequate cleanup, it is the people of Colorado who ultimately must pay either the price of cleanup, or the price of not cleaning up this, the worst hazardous and toxic waste site in America. It is not inappropriate that the present and future victims of this poison legacy, left in their midst by the Army and Shell, should have a meaningful voice in its cleanup. In RCRA, Congress has plainly provided them that voice through representation by the State. I hold that RCRA enforcement by the State is not precluded by CERCLA in the circumstances here presented.
I conclude that the E.P.A.'s potential monitoring of the Army's Basin F cleanup operation under CERCLA does not serve as an appropriate or effective check on the Army's efforts. As long as both of these federal agencies are represented in the Arsenal CERCLA actions by the same Justice Department lawyers who have professed that they have no conflict of interest, even though one of their clients is a plaintiff and another a defendant in the same consolidated action, there is no vigorous independent advocate for the public interest.
As an additional argument, the defendant asserts that the instant action is barred by sovereign immunity because the state regulatory standards sought to be applied are not precise or objective, and are ill-suited for uniform application. Defendant contends that RCRA § 6001, [42 U.S. C. § 6961], must be strictly construed and does not extend to circumstances in which
the state has failed to promulgate objective and ascertainable regulations by which federal compliance can be fairly gauged. In support, the defendant cites State of Fla. Dept. of Environmental Regulation v. Silvex Corp., 606 F.Supp. 159 (M.D.Fla. 1985) and Kelly v. United States, 618 F.Supp. 1103 (W.D.Mich.1985).
In Silvex, the State of Florida sued the United States Navy, among other defendants, asserting a claim for negligently releasing hazardous waste materials in violation of certain state statutes that permitted the State to take emergency action when the spillage of hazardous waste material posed an imminent threat to public health, safety and welfare. Florida contended that the Navy had consented to be sued under RCRA § 6001, [42 U.S.C. § 6961]. The Navy moved for dismissal on the ground that the state statutes sought to be enforced were not "requirements" as envisioned by Congress in RCRA § 6001, [42 U.S.C. § 6961]. The Army's argument in the instant case tracks the Navy's argument in the Silvex case.
In her analysis of the issue, Judge Black reviewed RCRA's legislative history and similar sovereign immunity waiver provisions contained in analogous federal environmental laws. The district court's opinion stated, in pertinent part:
"A legislative report discussing the pre-RCRA bill then before the Senate indicates the RCRA was intended to force federal agencies dealing with hazardous waste `to comply with State and local controls on solid waste and hazardous waste disposal as if they were private citizens.' This includes compliance with all substantive and procedural requirements, `and specifically any requirements to obtain permits.' Senate Report No. 94-988, 70th Cong., 2nd Session, at 24 (1976) 122 Cong.Rec. 32,631 (Sept. 27, 1976). The requirements referred to in the Senate report are more in the nature of regulatory guidelines and ascertainable standards that a federal agency dealing with hazardous waste would have to meet." "Senate Report No. 94-988 further states that section 6961 parallels the waiver provision of the Clean Air Act, 42 U.S.C. § 7418, and the Federal Water Pollution Control Act, 33 U.S.C. § 1323. The legislative history of these provisions demonstrates a similar intent to have requirements defined as objective state standards of control. " "The courts interpreting requirements as used in federal environmental legislation have also limited the term to a state's regulatory requirements. Courts reviewing the waiver provisions of the Clean Air Act, the FWPA [Federal Water Pollution Act], and the Noise Control Act, 42 U.S.C. § 4903(b), the language of which, . directly parallels section 6961, consistently have held that requirements is a limited term which cannot be expanded to include the kinds of state law liability provisions that the [State] relies on in this case. " (citations omitted). * * * * * * ". To achieve uniformity and consistency in state environmental regulation, sovereign immunity is partially waived to require federal entities to comply with state standards. This narrow intrusion into federal sovereign immunity has required that courts strictly define requirements as objective and ascertainable state regulations e.g., state pollution standards or limitations, compliance schedules, emissions standards, and control requirements. " (citations omitted). Id. at 162-163.
The district court concluded that RCRA's legislative history and certain analogous federal statutes containing similar immunity waiver provisions have strictly defined "requirements" as synonymous with state objective regulations. Florida's action against the Navy was dismissed because the state statutes failed to set forth the specific, precise standards intended by the term "requirements" contained in RCRA § 6001, [42 U.S.C. § 6961].
The case of Kelly v. United States, supra, is similar. There the district court considered the waiver provision contained
in the Federal Water Pollution Control Act, 33 U.S.C. § 1323(a), in the context of state claims under Michigan's water and environmental laws being asserted against a federal agency. The court dismissed the state claims because the state statutes did not provide "objective, quantifiable standards subject to uniform application." Kelly, 618 F.Supp. at 1108.
I have set forth in an appendix to this order the pertinent state regulations that apply to this action, including the regulations the Army has allegedly violated. As emphasized by the State in its brief, these regulations track, almost verbatim, the federal regulations promulgated by E.P.A., pursuant to RCRA, that already apply to all federal agencies. Compare 6 CCR 1007-3, Subpart F, §§ 265.90 through 265.94 with 40 C.F.R. Part 265, Subpart F, §§ 265.90 through 265.94. Based on my review of these state regulations, I find and conclude that they set forth sufficiently specific and precise standards, subject to uniform application, to satisfy the term "requirements" as used in RCRA § 6001, [42 U.S.C. § 6961].
As can be clearly seen, RCRA § 6001, [42 U.S.C. § 6961], is all-encompassing since it provides that federal facilities are subject to "all Federal, State, Interstate, and local requirements, both substantive and procedural. " Giving the words used their plain, ordinary meaning, it is difficult to imagine a clearer statement of legislative intent: federal facilities such as Basin F at the Rocky Mountain Arsenal are subject to state and local requirements respecting the treatment and disposal of hazardous waste provided that those state and local requirements set out specific and precise standards subject to uniform application. Having found that the Colorado regulations satisfy these standards, I conclude that the Army's motion to dismiss based on this argument must be denied.
Accordingly, it is ORDERED that the defendant's motion to dismiss the First Amended Complaint, or in the alternative for summary judgment or partial summary judgment, is denied.
The plaintiff State of Colorado is ORDERED to amend to update its pending Motion for Preliminary Injunction and Motion for Partial Summary Judgment within 11 days, if it desires to do so, and apply for an expedited hearing specifying which issues remain for decision.
Code of Colorado Regulations
6 CCR 1007-3
265.77 Additional reports.
In addition to submitting the annual report and unmanifested waste reports described in 265.75 and 265.76, the owner or operator must also report to the Department