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Colorado federal court rejects challenge to EPA's hazardous waste enforcement authority

Release Date: 12/5/2000
Contact Information:
John Moscato 303 312 7346 Tom Sitz 303 312 6918,

Release Date: 12/5/2000
Contact Information:
News Office 303 312 6780

      Denver -- In a decision issued Nov. 24, the U.S. District Court for the District of Colorado concluded that EPA has the authority to bring an enforcement action under the federal Resource Conservation and Recovery Act (RCRA) even if a state with an authorized hazardous waste program has taken an enforcement action against the same violator (U.S. v. Power Engineering Co., No 97-B-1654 (D. Colo. Nov. 24, 2000)).
Although the court noted that EPA’s action did not duplicate the state’s actions, it nevertheless ratified EPA’s ability to enforce federal laws regardless whether the state has concluded an action involving similar violations, an uncommon practice that is referred to as “overfiling.”

In ruling for EPA, the court rejected Power Engineering’s reliance on a September 1999 federal appeals court decision that had concluded that EPA exceeded its authority by pursuing RCRA civil penalties after a state settled similar claims under equivalent state laws against the same violator (Harmon Industries Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999)). In his decision Chief Judge Lewis T. Babcock wrote, “With all due respect, I conclude that the Harmon decision incorrectly interprets the RCRA.”

At issue in the Power Engineering case was whether the company is obligated under RCRA to secure financial assurances to cover the closure and post-closure cleanup costs at its Denver, Colo., facility where the state has an authorized hazardous waste program and has taken an enforcement action involving other types of RCRA violations against the company. Citing Harmon, the company argued that the federal government does not have the authority under RCRA to “overfile” a state enforcement action.

EPA argued that the Harmon case disregarded the plain language of RCRA, which gives EPA broad authority to pursue RCRA enforcement actions in states with authorized programs, and that Harmon misread the law’s mandate when it concluded that authorized states act “in lieu of” the federal program and that any action by the state has the “same force and effect” as action by the EPA. The court in the Harmon case said these two phrases are evidence that Congress intended an authorized state program to “supplant the federal hazardous waste program in all respects, including enforcement.”

In commenting on the Harmon 8th Circuit’s interpretation of this language, Judge Babcock wrote, “I find no evidence that Congress intended such an outcome.” The “same force and effect” language refers to permits, not enforcement, and merely ensures that regulated entities generally do not need both federal and state permits for the same activity, according to the judge’s ruling.

“This decision upholds the right of the federal government to assure uniform enforcement of environmental laws among the states,” said Lois Schiffer, Assistant Attorney General in charge of the Environment Division at the Justice Department.

EPA repeatedly has criticized the Harmon decision as legally erroneous and for ignoring the fact that federal enforcement historically has helped states to implement environmental programs. The November 24 court order in Power Engineering is the first court ruling since Harmon to test these issues.

“We are pleased that the court has vindicated the Agency’s longstanding interpretation. Judge Babcock’s sound opinion reaffirms EPA’s authority under the law to protect human health and the environment through enforcement. It is impossible to maintain a level-playing field and deter noncompliance without the ability to take action against violators,” said Carol Rushin, EPA’s enforcement director in Denver. “The court’s decision confirms what we have always maintained. That is, that the environment and public health are best served when the states and the federal government are able to work in concert, rather than to the exclusion of one another.”

Judge Babcock also supported EPA’s position that it is not barred from enforcing as a result of a state lawsuit on similar issues because EPA was not formally a party to the state litigation and did not exercise substantial control over the state’s lawsuit.
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The District Court opinion in U.S. v. Power Engineering Co. can be downloaded at http://www.co.uscourts.gov/opinions/ltb_97b1654.pdf