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Harmon Indus., Inc. v. Browner

Citation: 29 ELR 21412
No. No. 98-3775, 191 F.3d 894/49 ERC 1129/(8th Cir., 09/16/1999) aff'd

The court holds that the U.S. Environmental Protection Agency's (EPA's) practice of overfiling in those states where it has authorized state enforcement of the Resource Conservation and Recovery Act (RCRA) oversteps the Agency's authority under the Act. EPA initiated a RCRA enforcement action against a manufacturer even though the manufacturer and an authorized state agency were negotiating a settlement for the same violation. The court first holds that the plain language of RCRA § 3006(b) dictates that an authorized state program operates "in lieu" of the federal program and with the "same force and effect" as an EPA action. Thus, the primary RCRA enforcement powers are vested with the state and EPA is precluded from assessing its own penalty against a party where the state has already initiated action. Further, RCRA § 3006(b)'s provision authorizing EPA's repeal of an inadequate state's authorization and RCRA § 3008's requirement that EPA give an authorized state notice before initiating an enforcement action reinforce the primacy of state enforcement rights. In addition, legislative history indicates that Congress intended to vest primary enforcement authority in the states.

The court next holds that principles of state law as defined by state law foreclose the EPA's enforcement action against the manufacturer. Both the state and EPA sought to enforce a hazardous waste program pursuant to RCRA, named the manufacturer as the defendant, and involved the enforcement of regulations based on identical facts and legal principles. And the state and EPA are in privity because the state advanced the exact same legal right under RCRA as EPA did in its administrative action.

[The district court's decision in this litigation is published at 29 ELR 20035. Briefs and Pleadings in this litigation are digested at ELR BRIEFS & PLEADS. 66680 and 66687.]

Counsel for Appellee
Terry J. Satterlee
Lathrop & Gage
2345 Grand Blvd., Ste. 2800, Kansas City MO 64108
(816) 292-2000

Counsel for Appellants
James C. Bohling
U.S. Attorney's Office
400 E. 9th St., Ste. 5510, Kansas City MO 64106
(816) 426-3122

Before: Beam and Moody,1 JJ.