Harmon Industries v. Browner 191 F.3d 894 (8th Cir. 1999)
EPA has the authority to delegate responsibility to States
for administering and enforcing the Clean Water Act, the Clean
Air Act, and the Resource Conservation and Recovery Act (RCRA).
To qualify for delegation, States must satisfy EPA that
they can operate the programs in a manner that meets all Federal
EPA retains supervisory authority, and can revoke the
delegation at any time.
EPA never revokes authority though, since they they'd
have to take over the job and it would cost them a lot of money.
EPA also had the authority to take enforcement action of
its own when it does not believe that a State has adequately addressed a
This is known as overfiling.
Harmon was manufacturing circuit boards. Turns out,
employees had been dumping solvents into the soil behind the plant for 14
years without anybody noticing. When Harmon's management became aware of
the dumping, they contacted the Missouri Dept. of Natural Resources (MDNR)
and reported the RCRA violation.
In response, MDNR found that the dumping did not pose a
threat to human health or the environment, and developed a plan whereby
Harmon would clean up the disposal area.
Harmon asked MDNR to not enforce any monetary penalties.
MDNR brought the matter to the attention of EPA, who
recommended an $800k penalty.
Meanwhile, EPA initiated an independent enforcement action
and sought $2.3M in penalties.
While the EPA case was still pending, Harmon and MDNR
entered a Missouri State Court and settled the case for $0.
When EPA's enforcement action came before an
Administrative Law Judge (ALJ), the judge assessed a $586k penalty.
Harmon appealed, claiming that they had already settled the case with
The Environmental Appeals Board affirmed. Harmon
The Federal Trial Court overturned the penalty. EPA
The Trial Court found that EPA's decision to impose civil
penalties violated RCRA and contravened the principles of res
The Trial Court looked at the plain language of RCRA
(42 U.S.C. §6926) and found that it said that the State programs
operated "in lieu of" the Federal program. Therefore Federal
action was precluded if the State had been delegated the authority to
EPA unsuccessfully argued that they had authority to
independently pursue enforcement as part of their overfiling
EPA looked to §6928 which says that EPA just has
to give notice if they want to go after a polluter in a delegated
State. However, the Court found that could only initiate an enforcement
action if the State decided not to take action. Here, the State did
take action, it's just that EPA didn't like the result.
The Appellate Court affirmed, and declared the concept of overfiling
to be unconstitutional.
The Appellate Court found that RCRA's statutory
structure and principles of federalism preclude EPA from enforcing
The Appellate Court found that if EPA is dissatisfied
with Missouri's enforcement practice, EPA's only recourse is to formally
withdraw the State's authorization under RCRA.
Btw, the 10th Circuit specifically rejected
this argument in United States v. Power Engineering Co. (3030 F.2d
1232 (10th Cir. 2002), and found that EPA does have the ability
to overfile. Eventually this will get worked out by the U.S.
If EPA does not have overfiling authority, what's
to stop individual States from luring business to their State by promising
lax enforcement and minimal penalties for environmental violations?