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EPA Develops Model RCRA "Overfiling" Language

December 1, 2000

In response to the 1999 federal appeals court ruling in Harmon Industries v. EPA, the United States Environmental Protection Agency has developed model language for use in future approvals of state hazardous waste programs. In Harmon Industries, the Eighth Circuit Court of Appeals held that EPA could not impose penalties under the Resource Conservation and Recovery Act (RCRA) for violations that have been resolved under an EPA-approved state hazardous waste program. This so-called practice of "overfiling" occurs when both EPA and a state agency bring separate enforcement actions against the same person for the same violation. EPA's new model language expressly allows EPA to "take enforcement actions regardless of whether the State has taken its own actions" under the state program. EPA intends to use this model language in all future Federal Register notices regarding hazardous waste program approvals for states outside of the Eighth Circuit.

In Harmon Industries, Harmon Industries, Inc. (Harmon) challenged EPA's authority to overfile after it sought more than $2 million in penalties for RCRA violations that had been resolved by the Missouri Department of Natural Resources (MDNR). Harmon argued that prior resolution of the underlying violations with the state precluded EPA from imposing an additional penalty under RCRA. The district court agreed with Harmon, stating that "the plain language of [RCRA] provides that the MDNR operates ‘in lieu of' or instead of the federal program." The court further noted that, because MDNR had effectively resolved all of the issues concerning Harmon's violations, "EPA does not and should not have the authority to impose its own separate penalties" for the same violations. "Were it otherwise, none of the state's powers would ever have the ‘same force and effect' because EPA could modify, by piecemeal measures, any action taken by the states," the court stated. The Eighth Circuit affirmed the district court's ruling, stating that Missouri's RCRA program, which is authorized by EPA, acted in lieu of the federal program, and that MDNR's settlement of Harmon's hazardous waste violations prevents EPA from "overfiling" MDNR's penalty decisions. The appeals court held that allowing overfiling would undermine congressional intent to give states primary RCRA enforcement authority. Additionally, the court found that MDNR and EPA acted as "identical" parties in the enforcement action, and that previously decided issues should not be relitigated.

EPA's new model state program approval language indicates that it is not applicable to states located within the Eight Circuit, which includes South Dakota, North Dakota, Nebraska, Minnesota, Iowa, Missouri, Arkansas. The Harmon Industries decision, however, is not binding precedent in other federal judicial circuits, including the Sixth Circuit, which includes Michigan. EPA has included its model overfiling language in the authorizations of at least eight state hazardous waste programs since the Harmon decision. Michigan's hazardous waste program, which was recently revised by the newly-promulgated Part 111 rule amendments, will likely be reauthorized by EPA Region 5 using the model language in the near future.

This article was prepared by Jeffrey L. Woolstrum, a partner in our Environmental Department, and previously appeared in the December, 2000 edition of the Michigan Environmental Compliance Update, a monthly newsletter prepared by the Environmental Department and published by M. Lee Smith Publishers.