Board of County Commissioners v. Colorado Department of Public Health & Environment

218 P.3d 336, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20241, 2009 Colo. LEXIS 934, 2009 WL 3260654
CourtSupreme Court of Colorado
DecidedOctober 13, 2009
Docket07SC977, 07SC978
StatusPublished
Cited by6 cases

This text of 218 P.3d 336 (Board of County Commissioners v. Colorado Department of Public Health & Environment) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of County Commissioners v. Colorado Department of Public Health & Environment, 218 P.3d 336, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20241, 2009 Colo. LEXIS 934, 2009 WL 3260654 (Colo. 2009).

Opinions

Justice EID

delivered the Opinion of the Court.

Adams County ("the County") brought two suits against the Colorado Department of Public Health and Environment ("the Department") for its issuance of a radioactive materials license and a hazardous waste permit to Clean Harbors Deer Trail, LLC. ("Clean Harbors"), which intervened on the Department's behalf. In both cases, the trial courts dismissed the suits for lack of standing. The court of appeals upheld both decisions. Adams County v. Colo. Dep't of Pub. Health and Env't, 178 P.3d 1217, 1218 (Colo.App.2007) ("Adams County I"), Adams County v. Colo. Dep't of Pub. Health and Env't, 178 P.3d 1221, 1222 (Colo.App.2007) ("Adams County II ").

[338]*338We now reverse and hold that the County has standing to challenge the Department's issuance of the Heense and permit. Under our decision in Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977), a party has standing if, taking the allegations of the complaint as true, it demonstrates that (1) it has suffered an injury in fact; and (2) the injury was to a "legally protected interest as contemplated by statutory or constitutional provisions." Here, the County has satisfied both requirements. The County also has met specific prudential considerations that we must address because of a county's role vis-a-vis the state.

Under the Low-Level Radioactive Waste Act, § 24-60-2206(8), C.R.S. (2009), and the Hazardous Waste Siting Act, § 25-15-206(1), C.R.S. (2009), the Department may not issue a license or permit to an applicant until the applicant has first applied for and received a Certificate of Designation ("CD") 1 from the county in which the facility is to be located allowing for the disposal of the materials contemplated by the license or permit. In this case, the County has alleged that, notwithstanding the fact that Clean Harbors never applied for nor received such a CD, the Department issued a lHeense and permit to Clean Harbors. The County has therefore alleged an injury in fact to its authority to issue (or to refuse to issue) a CD for the disposal of the materials in question prior to the Department's issuance of a license or permit. The County has satisfied the second step of the Wimberly analysis as well because it has alleged an injury to an interest protected by the Low-Level Radioactive Waste Act and the Hazardous Waste Siting Act.

In addition, we hold that the County has met the prudential standing considerations set forth in Romer v. Board of County Commissioners, 956 P.2d 566, 578 (Colo.1998), under which a subordinate state agency has no standing to sue the state unless expressly permitted to do so by statute. In this case, we find that, under the Low-Level Radioactive Waste Act and the Hazardous Waste Siting Act, the County is not a subordinate state agency with regard to the issuance (or non-issuance) of a CD allowing for the disposal of materials contemplated by the license or permit. Instead, the authority to issue a CD is within the discretion of the county in which the disposal facility is to be located. Because we find that the County met the standing requirements of Wimberly, as well as our specific prudential considerations, we reverse the court of appeals.

1.

When called upon to consider whether a party has standing to bring an action, we accept as true the allegations set forth in the complaint. Dunlap v. Colo. Springs Cablevision, 829 P.2d 1286, 1289 (Colo.1992).

The Clean Harbors hazardous waste facility ("the Facility") is a private facility that bas existed in its current location in Adams County since 1987. Clean Harbors has owned the Facility since 2002. The Department is a state ageney charged with, among other things, regulating hazardous and radioactive wastes.

In 1988, the County passed a resolution ("the 1983 Resolution") conditionally approving a Certificate of Designation containing several restrictions. These restrictions prohibited the proposed Facility from accepting radioactive wastes and polychlorinated biphe-nyls ("PCBs") that contain a proscribed level of hazardous materials.

In March 1987, the Department 2 issued a hazardous waste permit ("the 1987 Permit") to the Facility.3 The 1987 Permit prohibited the same wastes prohibited by the 1983 Resolution-namely, any radioactive wastes and the proscribed PCBs. In November 1987, the County issued the CD-which had been conditionally approved in the 1983 Resolution-to the Facility, subject to the prohibitions [339]*339specified in the 1987 Permit. In 1998, the Department renewed and slightly amended the 1987 Permit to prohibit only radioactive wastes "above background levels," which the amended permit ("the 1998 Permit") defined.

Clean Harbors has owned and operated the Facility since 2002. Following the 2002 change in ownership, the County in 2004 approved the transfer of the Facility's CD to Clean Harbors. The transferred CD remained expressly subject to the conditions of the 1983 Resolution and the limitations in the 1998 Permit.

Beginning in 2005, Clean Harbors sought to become a low-level radioactive waste disposal site. Clean Harbors submitted to the Department an application to renew and amend the 1998 Permit. The County alleges that Clean Harbors proposed to accept and dispose of radioactive materials exceeding the limits defined in the 1987 and 1998 Permits.

In 2005, Clean Harbors also applied to the Department for a radioactive materials license.4 The County alleges that this leense would allow Clean Harbors to accept and dispose of certain low-level radioactive wastes otherwise prohibited by the CD. Because the license purported to authorize the disposal of low-level radioactive wastes, the Department submitted an application to the Rocky Mountain Low-Level Radioactive Waste Board ("Compact Board") to designate the Facility for disposal of radioactive waste pursuant to the Rocky Mountain Low-Level Radioactive Waste Compact ("the Compact").5 See § 24-60-2202, C.R.S. (2009) (discussing Compact Board approval at Article 4). >

The County objected to both applications-for the amended permit, and for the radioactive materials license (including the application for the Facility's designation as a regional disposal site under the Compact)claiming that the permit and license could not be issued until Clean Harbors first applied for and received from the County a CD allowing for the materials contemplated by the license and the permit.

In June 2005, the Compact Board designated the Facility as a regional disposal site under the Compact. In December 2005, the Department issued Clean Harbors the radioactive materials license ("the License") and the renewed hazardous waste permit ("the Permit").

The County filed two lawsuits seeking judicial review of the Department's actions.6

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218 P.3d 336, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20241, 2009 Colo. LEXIS 934, 2009 WL 3260654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-county-commissioners-v-colorado-department-of-public-health-colo-2009.