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Environmental Federalism Part II: The Impact of Harmon, Smithfield, and CLEAN on Overfiling Under RCRA, the CWA, and the CAA

September 2000

Citation: ELR 10732

Author: Jerry Organ

In Environmental Federalism Part 1: The History of Overfiling Under RCRA, the CWA, and the CAA Prior to Harmon, Smithfield, and CLEAN, the history of judicial and administrative decisions relating to overfiling under the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Clean Air Act (CAA) was analyzed. The history showed that the U.S. Environmental Protection Agency (EPA), with limited exceptions, generally was understood to have overfiling authority under RCRA, the CWA, and the CAA. The limited exceptions focused on two situations. First, some courts in dicta and some administrative law judges (ALJs) had suggested that EPA lacked the statutory authority to overfile under RCRA when a state with an approved program had taken some enforcement action. Second, the Ninth Circuit in United States v. ITT Rayonier, Inc.1 had indicated that in at least one circumstance under the CWA res judicata would bar EPA from overfiling.

Environmental Federalism Part II: The Impact of Harmon, Smithfield, and CLEAN on Overfiling Under RCRA, the CWA, and the CAA evaluates the decisions in Harmon Industries, Inc. v. Browner,2 United States v. Smithfield Foods, Inc.,3 and Citizens Legal Environmental Action Network, Inc. (CLEAN) v. Premium Standard Farms, Inc. (PSF),4 and then takes a careful look at how the statutory authority and res judicata arguments impact EPA's authority to overfile under RCRA, the CWA, and the CAA. Part II contains four separate sections. Section Two explores in detail the decisions in Harmon, Smithfield, and CLEAN; Section Three evaluates the statutory analysis arguments regarding overfiling under RCRA, the CWA, and the CAA in light of these cases; Section Four addresses the res judicata arguments regarding overfiling under RCRA, the CWA, and the CAA in light of these cases; and Section Five outlines some thoughts on how EPA, the states, and the regulated parties are likely to respond to these recent decisions regarding overfiling.

Professor Organ teaches Property, Environmental Law, and Regulation of Hazardous Substances at the University of Missouri-Columbia School of Law in Columbia, Missouri. Prior to joining the law school faculty, Professor Organ spent five years with Foley & Lardner, practicing in the area of environmental law. After graduating with a B.A. from Miami University in 1982, he earned his J.D. from the Vanderbilt University School of Law in 1985. He is grateful to the students in his fall 1999 Environmental Law class with whom he explored the contours of EPA's overfiling authority, especially Brad Beall who provided research assistance. He also is grateful for the financial support provided by the Bill L. and Julia W. Thompson Faculty Research Fellowship, the W. Dudley McCarter Faculty Research Fellowship, the Charles Rehm Faculty Research Fellowship, and the spiritual and personal support of his wife. Debbie, his five children, and the "village" it takes to help them all make it through each week.