Hazardous Waste Incinerator Siting in Colorado
| Publication year | 1993 |
| Pages | 1267 |
1993, June, Pg. 1267. Hazardous Waste Incinerator Siting in Colorado
The issue of local government control over siting of hazardous waste disposal facilities, particularly hazardous waste incinerators, is among the most controversial environmental issues today. Attempts by local governments to control the hazardous waste disposal facility siting process are limited by the doctrine of preemption at both the state and federal levels. However, state governments may grant some authority to local governments in the siting process.(fn1) In Colorado, several hazardous waste incinerators are in operation or at some stage in the approval process.
In the midst of a rising tide of concern by local governments that they should have more direct involvement in the hazardous waste incinerator siting process, the Colorado legislature passed the State Hazardous Waste Incinerator Siting Act ("Incinerator Act") in the 1992 legislative session.(fn2) This legislation specifically establishes the authority of local governments to issue Certificates of Designation ("CDS") for hazardous waste incinerators and sets specific requirements for the CD approval process. This legislation will undoubtedly have a significant impact on future hazardous waste incinerator siting in Colorado.
This article first analyzes the background of local government control over hazardous waste facility siting in Colorado and the cases which have been decided on this issue. Next, the article analyzes the major provisions of the Incinerator Act and discusses some of the federal preemption issues which it may raise. The authors have attempted to raise practical legal issues of importance to attorneys representing the proponents of an incinerator, as well as the local governments involved and citizens' groups which may be challenging an incinerator.
Prior to construction of a hazardous waste disposal site, the developer must go through the lengthy and complicated process of applying for a Part B permit for the site from the Colorado Department of Health ("CDOH") pursuant to the Resource Conservation and Recovery Act ("RCRA")(fn3) and the corresponding Colorado statute.(fn4) The Part B permit application process involves a detailed analysis of the proposed site by the developer, which is reviewed by the CDOH and the Environmental Protection Agency ("EPA").(fn5) This process can take several years to complete and cost the developer millions of dollars. Thus, long before the local government reviews a CD application, a proposed site has undergone extensive review to obtain a Part B RCRA permit.
Much of the controversy over local governmental control of hazardous waste facility siting has centered around the issue of preemption of local government authority by state and federal waste disposal
The Colorado courts have addressed the issue of state preemption of local government authority over hazardous waste disposal sites in two major cases. First, in U.S. Pollution Control v. Board of County Commissioners,(fn9) the Colorado Court of Appeals held that the State Hazardous Waste Siting Act ("Waste Act") preempts all county or other local regulations concerning construction of hazardous waste disposal sites and that any proceedings conducted or permits issued outside the scope of the Waste Act are void.(fn10) The basis of the court's decision was that the state legislature had enacted only one hazardous waste siting act, which contained provisions specifically addressing procedures for approving the application of a party to operate a hazardous waste site. The court noted that the siting of hazardous waste disposal facilities is a matter of statewide concern. Thus, the local government could not establish its own procedure for issuance of a special use permit as a basis for preventing the siting of a hazardous waste disposal facility.(fn11)
The decision by the Court of Appeals in U.S. Pollution Control was followed by the decision in Whelden v. Board of County Commissioners,(fn12) in which landowners sought judicial review of the decision of a Board of County Commissioners granting a developer's application to build and operate a waste disposal facility. Once again, the Court of Appeals held that the Waste Act preempted all county or other local regulations concerning siting of hazardous waste disposal sites. In Whelden, the Court of Appeals specifically held that it was not necessary for the court to examine the issue of the Board of County Commissioners' authority to grant a conditional use...
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