Epa Overfiling After Harmon Industries v. Browner

• Publication year: 1999
• Pages: 95
• Citation: Vol. 28 No. 11 Pg. 95

28 Colo.Law. 95 Colorado Lawyer 1999.

1999, November, Pg. 95. EPA Overfiling After Harmon Industries v. Browner

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95

Vol. 28, No. 11, Pg. 95

The Colorado Lawyer
November 1999
Vol. 28, No. 11 [Page 95]

Specialty Law Columns
Natural Resource and Environmental Notes
EPA Overfiling After Harmon Industries v. Browner
by Asimakis P. Iatridis, Eugene J. Riordan, R. Woodruff Curran

In a September 16, 1999, decision, the U.S. Court of Appeals for the Eighth Circuit, in Harmon Industries, Inc. v Browner,1 determined that the U.S. Environmental Protection Agency ("EPA") cannot "overfile" pursuant to the Resource Conservation and Recovery Act ("RCRA").2 This means, at a minimum, that EPA cannot file an enforcement action against a regulated person who has resolved a state enforcement action under an EPA-authorized hazardous waste management program regarding the same violation

EPA delegates the power to administer and enforce RCRA to states that have programs conforming to RCRA. Colorado created a state hazardous waste program to implement RCRA through the Colorado Hazardous Waste Management Act.3 Colorado, as the delegated state, administers and enforces the state hazardous waste program in lieu of EPA administering the federal program

If, however, EPA determines that a delegated state such as Colorado is not enforcing the program in a satisfactory manner, EPA occasionally decides to enforce the state program against a regulated person. Additionally, when the delegated state has already commenced an enforcement action, but EPA is not satisfied with it, EPA sometimes "overfiles" by commencing its own enforcement action against the same person for the same violation. Through overfiling, EPA typically seeks its own penalties and remedies against the regulated person, in addition to those sought or obtained by the delegated state. For example, in Harmon, EPA sought over $2.3 million in penalties against Harmon Industries, Inc., even though Harmon had fully resolved the state enforcement action.

This article describes the decision in Harmon and outlines the decision's potential impact under Colorado's hazardous waste program and two other EPA-delegated programs in Colorado: the air quality and water quality programs.

Background

Overfiling is controversial for several reasons. First, it leads to double penalties for the same violation; one set of penalties from the state and one from EPA. Second, it creates uncertainty for the regulated entity when it negotiates settlement agreements with the state because it is not known if EPA will accept the terms of the state settlement or initiate its own federal enforcement action. Third, it discourages persons from conducting environmental self-audits and voluntarily reporting violations to a state pursuant to a state audit law. Colorado encourages the voluntary reporting of violations from self-audits by conferring immunity from enforcement for certain violations.4 EPA disapproves of Colorado's law, as well as similar laws in other states, and has, on occasion, sought penalties against some self-reporters through overfilings. Fourth, it strains federal-state relations to a degree that reduces the efficiency and cost-effectiveness of federal and state environmental enforcement programs. These costs are borne by taxpayers and the regulated community.

The Eighth Circuit's decision, which has been closely followed by the regulated community,5 will likely affect future enforcement actions and negotiations by the Colorado Department of Public Health and Environment ("CDPHE") and EPA against regulated entities under Colorado's hazardous waste program and, perhaps, other environmental programs.

The Harmon Case

Factual and Procedural Background

Harmon assembles circuit boards for railroad control and safety equipment in a plant in Missouri. During the 1970s and 1980s, employees used an organic solvent to clean soldering flux from equipment assembled at the plant. Waste solvents were collected in pails and dumped on the ground on Harmon's property by maintenance workers. In 1987, management discovered the practice, terminated it, and changed the manufacturing process to one that uses nonhazardous cleaning materials. Harmon expended $800,000 to convert the manufacturing processes and spends $125,000 annually to maintain them. On discovery of the violation, Harmon's management also began investigating the extent of the contamination.

In 1988, Harmon voluntarily reported its violations to the Missouri Department of Natural Resources ("MDNR") and met with the MDNR on a continuing basis to determine the extent of the contamination and develop an appropriate...