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United States v. Power Eng'g Co.

ELR Citation: 33 ELR 20027
Nos. No. 01-1217, 303 F.3d 1232/(10th Cir., 09/04/2002) Aff'd EPA assurance requirements

The court holds that the U.S. Environmental Protection Agency (EPA) may seek to enforce the Resource Conservation and Recovery Act's (RCRA's) financial assurances requirements against an engineering company even though the state of Colorado already initiated an enforcement action against the company for the same violations under the state's RCRA-approved program. The state filed suit against the company but did not demand financial assurances even though EPA requested it to do so. EPA, therefore, filed its own suit against the company demanding financial assurances. The company argued that because an authorized state program operates in lieu of the federal program, EPA may not file an enforcement action after the state has done so. The company argued that the term "program" in RCRA §3006(b) incorporates the exclusive responsibility to enforce criminal provisions. The court first holds, however, that the statute does not define "program," and the meaning of the term is ambiguous. Because RCRA is ambiguous regarding whether EPA overfiling is permissible, the court defers to EPA's reasonable interpretation of the Act. EPA argued that the term "program" refers only to the administration of the regulatory program, not to its enforcement, and that §3006(b) simply provides that once authorization has taken place, state requirements replace federal requirements. The court further holds that the wording of §3006 lends support to EPA's interpretation because the administration of authorized state programs and the enforcement of state regulations are addressed in separate clauses of the relevant sentence. It is reasonable to conclude that while §3006(b) prevents EPA from denying the effect of a state permit, it does not prevent EPA from taking action when a violation occurs. The court finally holds that EPA's suit is not barred by res judicata.

[Prior decisions in this litigation are published at 28 ELR 21325, 29 ELR 20058, 30 ELR 20067, and 31 ELR 20335.]

Counsel for Plaintiff
Robert H. Oakley
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
John F. McBride
Law Offices of Robert T. McAllister
1120 Lincoln St., Ste. 1600, Denver CO 80203
(303) 830-0566