CHAPTER 15 CLEAN AIR ACT ENFORCEMENT: A FOCUS ON OVERFILING
| Jurisdiction | United States |
(2000)
CLEAN AIR ACT ENFORCEMENT: A FOCUS ON OVERFILING
Student, University of Utah College of Law
Salt Lake City, Utah
Sheila G. Bush
Attorney at Law
Pocatello, Idaho
Krista K. McIntyre
Stoel Rives LLP
Boise, Idaho
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I. Introduction
The amendments to the 1970 Clean Air Act ("CAA" or the "Act") marked the beginning of a new era of federal involvement in the area of environmental clean up. The CAA was unique in providing national standards for designated pollutants while creating a Federal-State partnership in the implementation and enforcement of these standards.2 Thirty years later, the boundaries of this delicate Federal-State relationship are still being tested, and one of the most intensive battles being waged is the authority of the United States Environmental Protection Agency ("EPA") to "overfile" a state enforcement action.
Overfiling, in its most controversial form, is where the "EPA exercises its authority to prosecute an alleged violator in an approved state that has already initiated its own enforcement action for the same requirements against the same defendant."3 According to the states, this process, creates tension by undermining states' ability to negotiate with polluters and wastes limited enforcement resources by duplicating enforcement.4 One state official has complained that "there is no EPA state partnership in some areas of environmental enforcement. EPA's perspective appears to be that they own the ranch and that we, the states, are the hired ranch hands."5 Regulated industry similarly argues that the threat of EPA overfiling negates incentive
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to negotiate with the state because state enforcement actions lack finality where there is possible subsequent federal action.6 As a practical matter, this forces industry to prepare for enforcement by both state and federal agencies for a single violation.7 The EPA argues however, that overfiling is necessary to create "an enforcement safety net" where a State fails to enforce its state program.8
With a recent decision by the Eighth Circuit limiting the EPA's overfiling authority under the Resource Conservation and Recovery Act ("RCRA"), the contemporary nature of the overfiling controversy can not be overstated.9 The extent of overfiling and its impact on industry is difficult, if not impossible, to assess. First, none of the parties involved agree on a definition of overfiling.10 Some define the term narrowly as a suit brought by the EPA subsequent to state settlement, while others define it as any action brought by the EPA to enforce the CAA regardless of the existence or absence of state action.11 Considering this definitional problem, it is no surprise that no one can agree on the frequency of EPA initiated overfiling actions. The EPA adamantly claims they use overfiling only in rare instances.12 However, industry and some states claim that overfiling is a common practice.13 Finally, there is no practical way to measure the impact of overfiling on the authority of the state or its ability to negotiate with industry. Interestingly, although states complain that overfiling undermines their negotiating authority, the
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states also use the threat of overfiling as a tool for negotiations claiming they cannot agree to a lesser settlement because the EPA will overfile.
Although the struggle over enforcement responsibilities arises in many of the major environmental laws, this paper specifically analyzes the federal government's authority to overfile under the CAA. First, this paper examines the statutory authority for enforcement given to EPA under the CAA. Second, this paper will analyze the EPA's authority to overfile under RCRA, focusing specifically on a recent decision in the Eight Circuit limiting EPA's authority to overfile under this act. Third, this paper will discuss the extent to which the RCRA decision can be imported into discussion of the EPA's overfiling under other environmental statutes, specifically the CAA. Finally, this paper will examine other possible trends in federal enforcement of state programs under the CAA outside the context of direct overfiling.
II. Federal Enforcement Authority Under the Clean Air Act
Prior to 1970, responsibility for protection of environmental concerns, including air quality, was predominately left to the states.14 Although most states, along with the federal government, had developed some environmental protection, these programs were inadequate for a number of reasons.15 The state statutory programs were often weak, states were ill-equipped to deal with transboundary pollution problems, and economic competition enticed states not to make their environmental laws more stringent than other states.16 Public interest in the resolution of environmental problems was also mounting.17 By 1970, the federal government determined that resolving these problems required increasing the federal government's regulatory role in environmental enforcement.18 The 1970 amendments to the CAA exemplified this shift and greatly expanded the federal enforcement role over air quality by authorizing the Administrator of the recently created EPA to promulgate national ambient air quality standards ("NAAQS").19 "Primary air quality standards were to be set at levels to protect public health, while secondary standards were to be set at levels that would protect agricultural production, ecosystems, and aesthetics."20 The states' role in this program was to provide for "implementation, maintenance,
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and enforcement" of these standards through the adoption of a state implementation plan ("SIP").21 The cooperation between the federal government and states to implement the CAA was a common scheme of most of the major environmental laws.22 However, the CAA is unique in that the centerpiece of the program- the NAAQS- lack enforceable provisions at the federal level absent an approved state program.23 The approved SIP is the only mechanism to enforce the federal standards.
The overlapping authority between the federal government and states "raises legal questions of when the state or federal government will be precluded from pursuing an action that has been resolved by the other governmental body."24 This unique division of federal and state responsibilities and the ambiguous limits of their respective roles inevitably creates conflict, and is at the center of the overfiling debate.
A. The EPA's Statutory Authority to Bring Concurrent Enforcement Actions
The term "overfile" derives from the concept that the EPA's action has been filed over, or on top of, an already resolved state enforcement action.25 In its strictest sense, overfiling occurs where a state has commenced an enforcement action against the operator of a non-complying source and after reaching a final settlement or verdict through negotiations or a judicial proceeding, the EPA pursues an additional complaint against the source for the same violations that were previously resolved.26 Overfiling is also used to describe federal action where the state has failed to act and federal enforcement of the SIP is initiated.27 Indirect overfiling is currently a popular enforcement strategy used by EPA to initiate actions in states where the state's enforcement program fails to meet EPA's expectations.
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EPA's overfiling authority under the Clean Air Act ("CAA") originates from Section 113, 42 U.S.C. § 7413. Specifically, sections 113(a)(1)28 and 113(b)29 enable the EPA to bring a civil enforcement action to enforce the requirements of a state implementation plan. The only statutory limitation discussed by these sections is that EPA first give the alleged violator notice of its intent to bring a civil action and second, to allow 30 days following the date of notice before bringing any action.30
Although the EPA does not have a stand-alone guidance document specifically interpreting CAA overfiling authority, through a variety of guidance documents dealing with other matters the EPA interprets § 113 of the CAA to provide federal enforcement authority regardless of the settlement of a parallel state enforcement proceeding. For example, the EPA's guidance regarding timely and appropriate response to high priority violations states that:
The Clean Air Act vests responsibility for enforcement of the law in the EPA. Therefore, EPA may move independently with respect to designation of a violation as a "High Priority Violation", and EPA shall assume the lead at any time in cases when it becomes apparent that the State is unable or unwilling to act
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in accordance with this policy to resolve the violation in a timely and appropriate manner."31
In addition, this guidance states that EPA "will consider overfiling" when State or local penalties fail to meet the criteria outlined by the EPA.32 In the memorandum, the EPA uses the threat of overfiling as incentive to adopt the EPA's guidance on enforcement.33 Specifically, the EPA states that "State and local enforcement agencies which use the BEN computer model ... to calculate economic benefit will receive less intensive EPA case-specific oversight."34 In addition, in encouraging states to increase their statutory maximum civil penalty under state law to at least $10,000 per day per violation, the EPA threatens that "States and municipalities with penalty authority of less than $10,000 per day per violation will be subject to more intensive EPA oversight and potential overfiling."35 Finally, the guidance provides that "[a] State or local enforcement agency which adopts a sound penalty policy implementing [the EPA's] penalty criteria and demonstrates a pattern of adherence to it will receive less case specific EPA oversight than agencies that do no [sic] adopt and adhere to such penalty policies."36
Additional guidance documents provide similar...
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