Overfiling: can the EPA pursue a case where the state has taken enforcement action? What courts have done since Harmon.

• Author: Dempsey, Angela
• Position: Harmon Industries, Inc. v. Browner

In many federally created environmental programs, standards are set at the federal level to achieve consistency and economies of scale. However, the U.S. Environmental Protection Agency (EPA) delegates implementation and enforcement to the individual states. These delegations, (1) also referred to as authorizations, are usually contingent upon the individual state implementing and enforcing the program in a manner consistent with the EPA's interpretation of the law, the science, and sometimes the facts of a particular case. (2) If the EPA is dissatisfied with a state's handling of a program, the delegation may be withdrawn. If the authorized state fails to take appropriate action in a case, the EPA may take the lead in that case.

"Overfiling" is when the EPA enforces a provision for which a particular state has authorization in instances when the state fails to enforce its program properly or take timely and appropriate action. (3) The EPA takes the lead in a very small percentage of cases either because the state fails to take timely and appropriate action or because the state asked the EPA to take the lead. (4) In 1999, the Eighth Circuit Court of Appeals held, in what the court termed a case of first impression, that the EPA could not "overfile" in a delegated program where the state had already "taken enforcement action." Harmon Industries, Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999). (5) Since 1999, other federal administrative, district, and circuit courts of appeal have consistently clarified, distinguished, or chosen not to follow the reasoning of the Harmon court.

Harmon

Harmon Industries, Inc., assembles circuit boards for railroad control and safety equipment in Grain Valley, Missouri. (6) For approximately 14 years the employees of Harmon Industries disposed of various volatile organic compounds (VOCs) on the ground behind the Harmon facility. (7) EPA Region VII sent several letters to Missouri's Department of Natural Resources indicating that these violations were a "high priority matter" and that enforcement action should be initiated and should include both compliance and civil penalties. (8)

On September 30, 1991, EPA Region VII, apparently dissatisfied with Missouri's enforcement efforts, filed a four-count administrative complaint assessing a penalty of $2,343,706. (9) On March 3, 1993, a Missouri state court approved a consent decree entered into between MDNR and Harmon that did not include civil penalties. (10) On December 12, 1994, a federal administrative law judge found Harmon liable for $586,716 in civil penalties. (11) This administrative order was appealed to the Federal District Court for the Western District of Missouri, which granted Harmon's motion for summary judgment, holding that the EPA overstepped its authority when overfiling against Harmon. (12) The EPA appealed the district court's decision to the Eighth Circuit Court of Appeals.

On September 16, 1999, the Eighth Circuit held that where a state had negotiated a settlement in the form of a consent decree and the defendant had already begun to comply with the settlement agreement, the EPA was prohibited from bringing a civil penalty action for the matters covered by the state action. (13) The court also found that the EPA's decision to authorize Missouri's hazardous waste program under the Resource Conservation and Recovery Act (RCRA) (14) established privity between the EPA and the state and, therefore, the principles of res judicata provided an additional basis to bar the EPA's enforcement action in light of the state court consent decree. (15) This privity finding was based in large part on language found in RCRA [section] 3006(b), 42 U.S.C. [section] 6926(b), that the state program operates "in lieu of' the federal program and that "any action taken by a state ... has the same force and effect as action taken by EPA." (16)

After the three-judge panel issued the Harmon decision, the EPA petitioned the Eighth Circuit for rehearing en banc, arguing that the panel misinterpreted RCRA. (17) Five states (New York, California, Iowa, Louisiana, and Connecticut) filed an amicus brief supporting the EPA's position. (18) While two judges agreed to rehear the case, the majority denied the petition on January 1, 2000. (19) The EPA did not seek a writ of certiorari from the U.S. Supreme Court. Although the EPA expressed some concern when the Eighth Circuit first issued the Harmon decision, (20) the agency has adopted Harmon's ruling only in the authorized states located in the Eighth Circuit (21) where it is binding. (22) Florida, of course, is located within the 11th Circuit, and therefore Harmon is not binding in Florida. (23)

The Harmon court made broad statements regarding the EPA's ability to bring an action and affirmatively held that the EPA could bring an action where an authorized state failed to act. (24) Conversely, where a state initiates action, the EPA is prohibited from taking action. (25) However, as the facts of the Harmon case do not neatly fit with this reading of the decision, these statements are dicta. At the time the EPA filed its administrative complaint, the state had not filed any action and did not file the settlement until one year and seven months after the EPA's complaint was filed.

Another issue, which Harmon doesn't make clear, is what constitutes "initiating enforcement action." In similar contexts, such as federal civil rules of procedure, statutes of limitation, and citizen suits, that term connotes filing a civil complaint. (26) Additionally, at least one administrative case holds that filing an administrative complaint or notice of violation is not "initiating enforcement action." See In re: Bil-Dry Corporation, No. 98-4 (E.P.A. Envtl. App. Bd., Jan. 18, 2001).

Federal District Court Decisions since Harmon

Since Harmon, several federal district court decisions have arguably changed the state of the law in this area. These cases include most notably U.S. v. Murphy Oil USA, Inc., 143 F. Supp. 2d 1054 (W.D. Wisc. 2001); U.S. v. Power Engineering Company, 125 F. Supp. 2d 1050 (D. Colo. 2000); and U.S. v. Flanagan, 126 F. Supp. 2d 1284 (C.D. Cal. 2000).

For example, in Murphy's Oil the court accepted the EPA's interpretation of Harmon and limited it to...