Unnecessary roughness or fair play?

Environmental enforcement is an aggressive contact sport. Beating an opponent often requires all-out tackling. Yet, sometimes the U.S. Environmental Protection Agency's (EPA) forceful approach can backfire and turn a winning strategy into a losing one.

Acting as stern as referees witnessing an out-of-control dog pile at a Monday night football game, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit threw down a penalty flag against EPA in a recent case. On Sept. 16, 1999, the panel ruled in Harmon Industries Inc. vs. Browner (8th Cir., No. 98-3775, 9/16/99) that EPA has no authority under the Resource Conservation and Recovery Act (RCRA) to bring an enforcement action against a company that has already settled with an authorized state agency for the same violations.

The appellate decision is a victory for the defendant Harmon Industries. The company operates a Missouri plant that assembles circuit boards for railroad equipment. In 1987, the facility voluntarily reported to the Missouri Department of Natural Resources (MDNR) that its maintenance workers had routinely discarded volatile solvent residue behind its plant without management's knowledge. Under the EPA-authorized program for implementing RCRA, the federal statute pertaining to hazardous waste management, MDNR negotiated a compliance plan with Harmon that did not impose a fine.

While Harmon was cooperating with MDNR, EPA initiated an administrative action against Harmon, seeking $2.3 million in penalties. In a practice known as "overfiling," EPA frequently files its own enforcement actions against suspected environmental violators even after the commencement of state-initiated enforcement actions.

On March 5, 1993, while the EPA's administrative enforcement action was pending, a Missouri state court judge approved a consent degree entered into by Harmon and MDNR. After the filing of the consent decree, Harmon litigated the EPA claim before an administrative law judge (ALJ), who imposed a civil fine of $587,000 against Harmon. The EPA Environmental Appeals Board affirmed the ALJ's decision. Harmon appealed the decision to federal district court, which ruled that EPA's decision to impose civil penalties violated RCRA and that EPA's actions violated the constitutional concept of res judicata (Latin for "thing decided"). This legal principle holds that a party cannot be subjected to the same allegations in a second suit by the same party for an act previously litigated.

The Eighth Circuit three-judge panel affirmed the lower federal court's ruling on both points. The panel pointed out that RCRA specifically allows states that have received authorization from the federal government to administer and enforce a program that operates "in lieu" of EPA's regulatory program.

The panel also ruled that EPA can initiate an enforcement action if it deems the state's enforcement action inadequate. However, the panel pointed out that before EPA can initiate such action, it must allow the state an opportunity to correct its deficiency and EPA must withdraw its authorization for the state to administer the RCRA program.

Not surprisingly, many industry representatives were pleased with the Eighth Circuit's decision. Thirty organizations submitted amicus curiae briefs supporting Harmon in the appeal.

In response to the three judge panel's decision, EPA filed a petition for rehearing of the case by the entire Eighth Circuit Court of Appeals, which consists of nine active judges.

In support of EPA's request for a rehearing, California, Connecticut, Iowa, Louisiana and New York joined together and filed an amicus curiae (Latin for friend of the court) brief on Nov. 24, 1999. These states argued that the Eighth Circuit panel had "shaken a critical part of the foundation of our hazardous waste laws — dual sovereignty." The states contended that RCRA explicitly allows dual sovereignty and does not condition this authority on program withdrawal. The states appeared to be concerned that EPA would be forced to withdraw RCRA authorization from the states in situations in which EPA differed with a state's position in an enforcement action.

On Jan. 24, 2000, the Eighth Circuit denied EPA's petition for rehearing. As far as the decision's national impact, it is only binding on the states in the Eighth Circuit — Missouri, Arkansas, Iowa, Minnesota, Nebraska, North Dakota and South Dakota. The other 11 federal circuit courts are not bound by the Eigth Circuit's decision.

At press time, it was uncertain as to whether EPA will appeal the case to the U.S. Supreme Court. For more information about the ongoing status of the case, check out the Eighth Circuit's Web site at www.wulaw.wustl.edu/8th.cir/opinions.html.

Even though the Eighth Circuit has ruled that overfiling is illegal, EPA's practice is still considered fair play in the rest of the country, at least until another appellate court makes a different call.

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This article appeared in the March 2000 issue of Environmental Protection magazine, Vol 11, No. 3, p. 8. Illustration by Eddie Eddings.

This article originally appeared in the 03/01/2000 issue of Environmental Protection.

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