30 ELR 10732 | Environmental Law Reporter | copyright © 2000 | All rights reserved

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

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.

[30 ELR 10732]

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.

II. The Decisions in Harmon, Smithfield, and CLEAN

A. The Harmon Decision

The Eighth Circuit Court of Appeals' decision in Harmon⁵ represents the first federal appellate court decision addressing the issue of overfiling under RCRA in the context of consecutive enforcement actions.⁶ In Harmon, the Eighth Circuit had to decide whether EPA has authority to pursue an enforcement action against a regulated entity when a state with an approved program under RCRA is pursuing an administrative enforcement process regarding the same violation that culminates in a judicially approved consent decree.⁷

1. Harmon's Facts and Procedural History

In 1987, Harmon discovered that its employees had been dumping hazardous solvent residue behind one of its facilities for several years.⁸ Harmon stopped using and disposing of the solvents⁹ and voluntarily reported its discovery to the [30 ELR 10733] Missouri Department of Natural Resources (MDNR),¹⁰ the state agency responsible for administering the state's approved RCRA program.¹¹ Following an investigation by the MDNR, Harmon, in consultation with the MDNR, developed a "cleanup plan" for the contaminated area.¹² The dialogue between the MDNR and Harmon resulted in a consent decree, which a Missouri state court judge approved on March 5, 1993.¹³

While Harmon was cooperating with the MDNR in developing a cleanup plan and working out the details of the consent decree, EPA instituted an administrative enforcement action against Harmon asking for $ 2,343,706 in civil penalties.¹⁴ After the consent decree was filed and approved by a Missouri state court judge, Harmon litigated EPA's administrative enforcement action before an ALJ who found in favor of EPA and assessed a civil penalty of $ 586,716.¹⁵ Harmon appealed to the Environmental Appeals Board (EAB), which affirmed the penalty the ALJ assessed.¹⁶ Harmon then challenged EPA's ruling in federal district court and won on summary judgment based on the district court's conclusion that EPA was precluded from overfiling because the plain language of RCRA § 3006(b) provides that state-authorized programs operate "in lieu of" the federal program and with the "same force and effect" as EPA action.¹⁷ EPA then appealed to the Eighth Circuit Court of Appeals.

2. The Eighth Circuit's Statutory Analysis in Harmon

The Eighth Circuit began its analysis by describing the standard of judicial review under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.¹⁸ "When reviewing a federal agency's interpretation of a federal statute, a federal court must defer to the agency's interpretation only if it finds that the agency's interpretation is consistent with the plain language of the statute or represents a reasonable interpretation of an ambiguous statute."¹⁹

EPA argued that the district court's interpretation of RCRA contradicts the plain language of RCRA. EPA pointed to RCRA § 3008(a)(2) to support its argument that the "plain language" of RCRA allows EPA "to initiate an enforcement action against an environmental violator even in states that have received authorization" under RCRA.²⁰ EPA argued that because RCRA § 3008(a)(2) allows EPA to initiate an enforcement action, the district court misinterpreted the "in lieu of" and "same force and effect" language of RCRA § 3006.²¹ EPA claimed that "in lieu of" refers only to the program, i.e., to which set of regulations (state or federal) are applicable in an authorized state, not to who has responsibility for enforcing them.²² EPA further contended that the "same force and effect" language "refers only to the effect of state issued permits."²³ EPA asserted that RCRA overall "authorizes either the state or EPA to enforce the state's regulations," and simply requires EPA to "notify the state in writing if it intends to initiate an enforcement action against an alleged violator."²⁴

Noting that the "long-established plain language rule of statutory interpretation . . . requires examining the text of the statute as a whole by considering its context, 'object, and policy,'"²⁵ the Eighth Circuit concluded that "an examination of the statute as a whole supports the district court's interpretation" that RCRA does not authorize overfiling by EPA.²⁶

[30 ELR 10734]

Focusing on the "in lieu of" language in RCRA § 3006(b), the Eighth Circuit agreed with EPA that the "'in lieu of' language refers to the program itself," but noted that "the administration and enforcement of the program are inexorably intertwined."²⁷ The Harmon court further found that the "'in lieu of' language contained in the RCRA reveals a congressional intent for an authorized state program to supplant the federal hazardous waste program in all respects including enforcement."²⁸ The Eighth Circuit concluded that because RCRA § 3006(b) of "the statute permits the EPA to repeal a state's authorization if the state's program 'does not provide adequate enforcement of compliance with the requirements of' the RCRA. . . . Congress intended to grant states the primary role of enforcing their own hazardous waste program."²⁹

Moreover, the Harmon court dismissed EPA's argument that RCRA § 3008 authorizes overfiling:

Harmonizing the section [3008](a)(1) and (2) language that allows the EPA to bring an enforcement action in certain circumstances with section [3006](b)'s provision that the EPA has the right to withdraw state authorization if the state's enforcement is inadequate manifests a congressional intent to give the EPA a secondary enforcement right in those cases where a state has been authorized to act that is triggered only after state authorization is rescinded or if the state fails to initiate an enforcement action.³⁰

The Harmon court further found this conclusion reinforced by the notice requirement of RCRA § 3008(a)(2):

Taken in the context of the statute as a whole, the notice requirement operates as a means to allow a state the first chance opportunity to initiate the statutorily-permitted enforcement action. If the state fails to initiate any action, then the EPA may institute its own action. Thus, the notice requirement is an indicator of the fact that Congress intended to give states, that are authorized to act, the lead role in enforcement under RCRA.³¹

Although EPA tried to suggest that the "same force and effect" language in RCRA § 3006(d) simply meant that "state-issued permits will have the same force and effect as permits issued by the federal government," the Eighth Circuit found this argument unavailing due to the plain language of RCRA § 3006(d).³² Because RCRA § 3006(b) "specifically provides that a 'state is authorized to carry out [its hazardous waste program] in lieu of the Federal program . . . and to issue and enforce permits," the Eighth Circuit concluded that "any action" includes "issuance and enforcement" of permits.³³ The Harmon court stated: "Nothing in the statute suggests that the 'same force and effect' language is limited to the issuance of permits but not their enforcement. We believe that if Congress had intended such a peculiar result, it would have stated its preference in a clear and unambiguous manner."³⁴

EPA also referred to the citizen suit language of RCRA § 7002(b)(1)(B) to argue that because Congress knew how to expressly limit an entity's authority to act, had Congress intended to impose such a limit on EPA "it would have expressly stated its intention as it did in the citizen suit context."³⁵ The Harmon court rejected this argument, noting first that Congress need not use the same language in different sections of the statute, and second that the "in lieu of" language and "same force and effect" language is just "as unambiguous as the citizen suit provision."³⁶ Moreover, the Eighth Circuit turned the tables on EPA by looking at the language in the citizen suit provision to support its conclusion that RCRA does not authorize overfiling:

In fact, we find it revealing that . . . Congress chose to forbid a private citizen from acting if the EPA or a state was diligently pursuing a civil action. . . . One can assume that if Congress intended to allow the federal government and the states to initiate competing enforcement actions, it would have chosen the words "and/or" rather than simply "or." The word "or" indicates that Congress did not contemplate competing enforcement actions between the federal government and the states.³⁷

The Harmon court buttressed its conclusion by looking to RCRA's legislative history. Specifically, the Harmon court referred to three different statements in the House Committee Report to support its conclusion that EPA may not overfile, concluding that the House Report "supports our interpretation of the statute—that the federal government's right to pursue an enforcement action . . . attaches only when [30 ELR 10735] a state's authorization is revoked or when a state fails to initiate any enforcement action."³⁸

The Eighth Circuit thus held that "there is no support either in the text of the statute or the legislative history for the proposition that the EPA is allowed to duplicate a state's enforcement authority with its own enforcement action."³⁹ It further justified its decision by critiquing the alternative construction of the statute proposed by EPA:

A contrary interpretation would result in two separate enforcement actions. Such an interpretation, as explained above, would derogate the RCRA's plain language and legislative history. Companies that reach an agreement through negotiations with a state authorized by the EPA to act in its place may find the agreement undermined by a later separate enforcement action by the EPA. While, generally speaking, two separate sovereigns can institute two separate enforcement actions, those actions can cause vastly different and potentially contradictory results. Such a potential schism runs afoul of the principles of comity and federalism so clearly embedded in the text and history of the RCRA.⁴⁰

The Eighth Circuit concluded that because EPA's interpretation "is not consistent with the plain language of the statute, its legislative history, or its declared purpose," it is "an unreasonable interpretation to which we accord no deference."⁴¹ Accordingly, the Eighth Circuit held that EPA is not authorized to overfile in states with authorized state RCRA programs when the state has taken enforcement action.⁴²

3. The Eighth Circuit's Res Judicata Analysis in Harmon

EPA also challenged the district court's alternative holding that in light of the state court consent decree res judicata barred EPA's enforcement action.⁴³ The Harmon court noted that the principles of full faith and credit "require federal courts to give preclusive effect to the judgments of state courts whenever the state court from which the judgment emerged would give such an effect."⁴⁴ The court further noted that "in Missouri, res judicata requires '(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality of the person for or against whom the claim is made.'"⁴⁵

Applying these factors, the Harmon court found that "the only dispute is whether the parties are identical."⁴⁶ The court stated that for purposes of res judicata, a party is considered identical if it is the same party or a party "in privity with a party that litigated a prior suit," and that "privity exists when two parties to two separate suits have 'a close relationship bordering on near identity.'"⁴⁷ The court noted that the statutory language of RCRA "provides the framework for the party identity analysis."⁴⁸ Based on its previous interpretation of the "in lieu of" language and the "same force and effect" language, the Eighth Circuit concluded that "the two parties stand in the same relationship to one another," [30 ELR 10736] thus satisfying the identity of the parties requirement.⁴⁹ In reaching this conclusion, the court rejected EPA's argument that its enforcement interests are sufficiently distinct from the state of Missouri's as to negate the identity of the parties, holding that "privity is not dependent upon the subjective interests of the individual parties."⁵⁰

The court also rejected EPA's argument that "the doctrine of sovereign immunity precludes applying res judicata to the United States unless the United States was the actual party in the prior lawsuit," concluding that the U.S. Supreme Court's decision in Montana v. United States⁵¹ negated EPA's argument.⁵² The Eighth Circuit noted that in Montana, the Supreme Court found that "although the United States was not a party to a prior suit, it 'had a sufficient laboring oar in the conduct of the state-court litigation to actuate principles of estoppel.'"⁵³ Although EPA argued "that it had no laboring oar in the state of Missouri's enforcement action," the court stated that this argument ignores the language and structure of RCRA⁵⁴

[With RCRA t]he "laboring oar" is pulled on much earlier in the process. It occurs at the authorization stage when the EPA grants the state permission to enforce the EPA's interests through the state's own hazardous waste program. After authorization, the state "prosecutes" enforcement actions "in lieu of" the federal government and operates as if it were the EPA. . . . Hence, pursuant to Montana, the United States must be bound by prior judgments involving state action as authorized by the RCRA.⁵⁵

Accordingly, the Eighth Circuit found that the Missouri law relating to res judicata precluded EPA's enforcement action.⁵⁶

B. The Smithfield Decision

The sameweek that the Eighth Circuit issued its opinion in Harmon, the Fourth Circuit Court of Appeals issued its decision in Smithfield.⁵⁷ In Smithfield, the Fourth Circuit had to decide whether EPA could pursue an enforcement action under the CWA in a state with an approved program when the state had engaged in only nominal administrative enforcement efforts.

1. Smithfield Facts and Procedural History

Smithfield involved a CWA enforcement action against a pork processing facility in Virginia, a state that had received authority to administer the national pollutant discharge elimination system (NPDES) permit program.⁵⁸ The Virginia State Water Control Board (VSWCB) issued Smithfield an NPDES permit in 1986, which it modified in 1990 to impose phosphorous limitations more stringent than required in other states.⁵⁹ Even though the modified permit contained a compliance schedule giving Smithfield three years to bring its facility into compliance with the new phosphorous limitations, Smithfield appealed the permit modification.⁶⁰ Smithfield's challenge to the 1990 permit modifications resulted in the negotiation of several administrative orders, the final one in May 1991, in which Smithfield agreed to study the feasibility of connecting the wastewater treatment system to the Hampton Roads Sanitation District (HRSD) and the VSWCB agreed to defer the commencement date for the compliance schedule under the 1990 modified permit.⁶¹

When Smithfield's modified permit expired in 1991, the VSWCB prepared a draft permit containing the same compliance schedule originally set forth in the 1990 modified permit—a 1993 compliance deadline for phosphorous and a 1994 compliance deadline for other substances—and forwarded it to EPA for review.⁶² Although Smithfield expressed its concern that the draft permit contained requirements inconsistent with the administrative orders, when the final permit was issued in 1992 with the same compliance schedule, Smithfield neither challenged the 1992 permit nor requested a modification.⁶³

Smithfield failed to meet both the 1993 compliance deadline for phosphorous and the 1994 compliance deadline for other substances.⁶⁴ In November 1994, the VSWCB amended its May 1991 Order, agreeing that Smithfield could comply with its permitted effluent limitations by connecting to the HRSD and agreeing to hold the May 13, 1994, compliance deadline for substances other than phosphorous in abeyance.⁶⁵ To connect to the HRSD, however, Smithfield needed to (1) upgrade its wastewater treatment system to meet pretreatment standards, (2) get a pipeline built to connect its facility with the HRSD, and (3) have the HRSD upgrade its facility to treat Smithfield's wastewater.⁶⁶ By 1994, Smithfield began to appear in EPA's Quarterly Noncompliance Report (QNCR) and "EPA began [30 ELR 10737] to closely track Virginia's efforts to bring Smithfield into compliance."⁶⁷

By 1996, EPA concluded that Virginia did not intend to take legal action against Smithfield. Accordingly, EPA filed its own action "seeking injunctive relief and penalties for a range of effluent limit violations, submission of false [discharge monitoring reports (DMRs)], submission of late reports, and destruction of records."⁶⁸ Although EPA invited Virginia to join in its action, Virginia declined to do so and instead filed its own enforcement action in state court, focused only on Smithfield's violation of its discharge limitations for substances other than phosphorous.⁶⁹ In response to EPA's motion for summary judgment on liability for discharging pollutants in violation of the limitations contained in its 1992 Permit and for submitting false DMRs late, Smithfield claimed that it had not violated the phosphorous limits in the 1992 permit because the orders of the VSWCB superseded the 1992 Permit limits.⁷⁰ Smithfield further argued that if it were deemed to have violated the 1992 Permit limits. CWA § 309(g)(6)(a) barred EPA from pursuing its claim.⁷¹ The district court rejected Smithfield's arguments and, in August 1997, granted summary judgment for EPA ultimately imposing a penalty of $ 12.6 million for 6,982 days of violations, taking into account mitigating and aggravating factors.⁷²

While EPA proceeded with its action, Virginia also proceeded with its state court action. In July 1997, the state court ruled that the May 1991 Order superseded the 1992 Permit, such that Smithfield's compliance obligations with respect to the state-imposed phosphorous limits required Smithfield simply to connect "to HRSD within three months of availability."⁷³

Based on this state court decision, Smithfield requested that the federal district court reverse its liability finding regarding the violations of the state-imposed phosphorous limits.⁷⁴ When the district court refused to do so, Smithfield appealed.⁷⁵

2. The Smithfield Decision

First, Smithfield claimed that the May 1991 Order should have been interpreted to take precedence over the 1992 Permit limits for phosphorous.⁷⁶ The Fourth Circuit rejected this claim, agreeing with the district court "that the 1992 Permit could not have incorporated any of the [VWSCB's] orders."⁷⁷ Second, Smithfield claimed that CWA § 309(g)(6)(A)(ii) barred EPA's claim.⁷⁸ The Fourth Circuit rejected this argument as well, again agreeing with the district court that CWA § 309(g)(6)(A)(ii) does not bar EPA's claim because Virginia's enforcement scheme was not sufficiently comparable to the administrative penalty provisions encompassed within CWA § 309(g).⁷⁹ Third, Smithfield claimed that the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,⁸⁰ and CWA § 510⁸¹ preclude EPA from bringing an enforcement action when a regulated entity and a state have agreed to corrective actions more stringent than required under the CWA.⁸² Once again, the Fourth Circuit rejected Smithfield's claim, agreeing with the district court that the Gwaltney language was not controlling and that the language of CWA § 510 actually authorized the federal government to enforce more stringent state standards once they are incorporated into a permit.⁸³ Accordingly, the Fourth Circuit affirmed the district court'sdecision holding Smithfield liable for violating the state-imposed phosphorous limits.⁸⁴

C. The CLEAN Decision

More recently, in CLEAN,⁸⁵ the District Court for the Western District of Missouri had an opportunity to explore the res [30 ELR 10738] judicata question in greater depth in the context of a citizen suit filed under both the CWA and the CAA.⁸⁶ CLEAN, "a not-for-profit organization comprised of farmers, ranchers, and other citizens who live and work near PSF's farms," brought suit in July 1997 because ofconcerns about health and environmental problems resulting from PSF's operations, including its storage of animal waste, its land application of animal waste, and its unauthorized discharges of waste into public waterways.⁸⁷ On January 19, 1999, the state of Missouri, which had received EPA approval of its NPDES program,⁸⁸ sued PSF asserting violations of the Missouri Clean Water Law.⁸⁹

Several months later, PSF and the state reached a settlement "which they memorialized in a court-approved Consent Judgment."⁹⁰ As part of the Consent Judgment, PSF agreed to pay an "unprecedented" fine of $ 650,000, and agreed to spend up to $ 25 million on new technologies to reduce the impact of its operations on the environment, as directed by a team of national experts.⁹¹ The Consent Judgment not only released PSF from the specific claims asserted by the state, it also released PSF "from any claims arising from facts known to the State at the time of the settlement, whether under Missouri environmental law (including the Missouri Clean Water Law and the Missouri Air Conservation Law), or the federal CWA or CAA."⁹² Based on the Consent Judgment, PSF sought summary judgment asserting that res judicata barred CLEAN's CWA and CAA claims.⁹³

The court began its analysis by noting that because res judicata is an affirmative defense, PSF, as the party seeking summary judgment, has the burden of proof on factual grounds to support its res judicata claim and on demonstrating the absence of disputes regarding relevant facts.⁹⁴ Noting that the principles of "full faith and credit" require a federal court to accord a state judgment the same res judicata effect as the state would give it, the court described Missouri's standards for res judicata: "Under Missouri law, res judicata requires '(1) the identity of the thing sued for; (2) the identity of the cause of action; (3) identity of parties to the action; and (4) the identity of the quality of the person for or against whom the claim is made.'"⁹⁵ In applying the res judicata requirements, the court focused on two questions: "(i) whether the two lawsuits were about the same thing, and (ii) whether they were brought by the same party."⁹⁶

1. Were CLEAN's and the State's Lawsuits About the Same Thing?

Under Missouri law, "claims are identical when they are based upon the same 'transaction,' or when they involve the same subject matter and require the same evidence in order to be sustained."⁹⁷ The court emphasized that "res judicata bars separate suits for the same wrong, but not for two or more distinct wrongs."⁹⁸ The court further highlighted that the substantive law of the CWA recognizes that each day of violation of an effluent standard or limitation is separately actionable, as would be each failure to obtain a permit.⁹⁹ With this background, the court engaged in a count by count comparison of CLEAN's complaint and the state's complaint, and concluded that in each instance, the state's complaint was narrower than CLEAN's such that the claims were not identical and at least some of CLEAN's claims would not be barred by res judicata.¹⁰⁰

[30 ELR 10739]

PSF further argued, however, that res judicata should not be constrained by the precise phrasing of the state's complaint, but should apply to bar as well any claims that could have been presented in the state's complaint.¹⁰¹ PSF asserted that "the State either knew of the violations alleged by CLEAN or could have discovered them through reasonable diligence."¹⁰² In rejecting PSF's argument, the court referred back to its definition of the same "transaction," noting that additional claims should be encompassed within the state's complaint for purposes of evaluating its res judicata effect only to the extent that such "claims arise from the same nucleus of operative fact as . . . those asserted."¹⁰³ The court concluded that because the unspecified allegations regarding PSF's nonpermitted operations and other nonpermitted releases each represent a separate violation of the CWA, they involve separate "transactions." Therefore, they are not subsumed within the state's complaint and do not operate to bar claims based on such allegations.¹⁰⁴

Finally, PSF argued that the scope of the res judicata effect of the Consent Judgment should not be evaluated based solely on the allegations in the state's complaint, but should be determined based as well on the language of the Consent Judgment itself.¹⁰⁵ The court responded by acknowledging that "the claim-preclusive effect of a consent judgment may reach beyond the claims that were specifically asserted—so long as the parties clearly intended that result."¹⁰⁶ The court then noted that the Consent Judgment "releases two broad sets of claims: (i) those specifically enumerated in the State's Petition or the judgment itself, and (ii) those that arise from facts known to the State when it executed the judgment."¹⁰⁷

PSF argued that the Consent Judgment barred all of CLEAN's claims because the state "was aware of the facts underlying those claims" at the time it executed the judgment.¹⁰⁸ The court found two problems with this argument. First, the court stated, quite accurately, that the state could not have "known" of some of CLEAN's allegations because they post-date the Consent Judgment.¹⁰⁹ Second, the court noted that PSF also had produced "scant evidence to prove what the state did and did not know when it executed the Consent Judgment."¹¹⁰ According to the court, with respect to CLEAN's first count, PSF essentially argued that because the state enforces the CWA's permit regime, and because it alleged that PSF had operated one facilitywithout a necessary permit, "the State knew about PSF's alleged failure to obtain CWA permits."¹¹¹ The court discounted this argument, however, stating that "it does not prove that the state knew the types and volumes of discharges produced by PSF's other fourteen facilities."¹¹² The court further discounted PSF's reliance on the jurisdictional "notice" CLEAN provided to the state prior to commencing its citizen [30 ELR 10740] suit.¹¹³ Moreover, the court found that with respect to CLEAN's second count, PSF had "failed to demonstrate, with particularity, which CLEAN alleged spills were within the MDNR's knowledge and which were not," despite CLEAN's acknowledgment "that PSF had illegally discharged animal waste 'with the knowledge and apparent acquiescence of the MDNR.'"¹¹⁴ The court similarly dismissed PSF's claims relating to allegations in the third through fifth count's of CLEAN's complaint.¹¹⁵

In sum, the court noted that pending its resolution of the "identity of the parties" issue, PSF's "identity of the claims" arguments would bar only a limited number of CLEAN's claims:

In essence, PSF argues that the State knew about CLEAN's alleged violations because one of its agencies enforces the laws that CLEAN now invokes. That is speculation, hardly more than an assertion of constructive knowledge, and it does not warrant summary judgment in PSF's favor. . . . Even if PSF could prove what the State knew when it settled the case, it could not demonstrate the State's knowledge of intervening violations alleged by CLEAN. For these reasons, the first lawsuit's preclusive effect reaches, at the very most, to those claims and violations to which the Petition and Consent Judgment specifically refer.¹¹⁶

2. Were the Claims Brought by the Same Party?

The court began its analysis of the "identity of the parties" question by noting that "the requirement is met when two parties are either identical or in privity with each other," and that two parties are in privity with each other when they "represent the same legal right."¹¹⁷ Tracking the Harmon court's analysis which looked to the language of RCRA to determine whether EPA and the state were in privity, the court noted that whether the state and CLEAN are in privity depends on "whether they represent the same legal interest with respect to the laws at issue," the CWA and the CAA.¹¹⁸ The court highlighted that the CWA and the CAA do not contain the "same force and effect" or "in lieu of" language that the Harmon court emphasized in analyzing RCRA.¹¹⁹ Instead, the court stated that the CWA and the CAA bar a citizen suit "only when a state has 'diligently prosecuted' an action with respect to the same violations."¹²⁰

The court then began its analysis of whether the state "diligently prosecuted" the violations alleged in CLEAN's complaint by noting that even though there is a heavy presumption that state prosecution is "diligent"¹²¹ courts must decide "for themselves whether the claims at issue were diligently prosecuted."¹²² The court emphasized that several factors inform the "diligence" determination, including the extent of the government's efforts to seek compliance with the standards, limitations, or orders which the citizen suit alleges were violated,¹²³ the extent of the government's monitoring [30 ELR 10741] of the polluter's activities after settlement and prior to the citizen suit,¹²⁴ the possibility that the polluter's settlement with the government will not preclude continued violations alleged in the citizen suit,¹²⁵ and the size of any penalties compared to the economic benefits the polluter derived from not complying with the law, or to the penalties the state has imposed for similar violations.¹²⁶

In applying these factors, the court separated the claims addressed in the Consent Judgment "into two broad categories: those specifically alleged by the state in the Petition or the Judgment, and those broadly resolved based upon any facts known to the state at the time of settlement."¹²⁷ The court had little problem concluding that the state had diligently prosecuted the claims specifically alleged in the petition and the Consent Judgment, noting that the penalties were substantial and that the Consent Judgment required the expenditure of $ 20 million for a Capital Improvement Program "designed to develop and implement improved waste-handling and storage system technologies."¹²⁸

The court also had little problem concluding that the state had not diligently prosecuted the claims it generally released based on facts known to the state at the time it executed the Consent Judgment.¹²⁹ First, the courtnoted that the provision in the Consent Judgment "evidences no prosecution at all, much less a diligent one," because it releases PSF from legal obligations the state had not specifically sought to enforce.¹³⁰ Second, the court indicated, perhaps somewhat misleadingly, that "PSF may have paid no penalties for the purportedly 'resolved' violations."¹³¹ Third, the court noted, again perhaps somewhat misleadingly, that the broadly phrased release did not "subject PSF to any new legal obligations that it did not otherwise bear, at least with respect to the broadly-waived, unasserted violations," because "it neither provides nor ensures that PSF will comply with the standards at issue in CLEAN's lawsuit."¹³² Finally, the court noted that there was "scant evidence that the state is now enforcing those broadly-released claims that CLEAN now asserts."¹³³ Thus, the court ruled "that the State did not 'diligently prosecute' the hypothetical violations that it waived through its broadly-phrased release."¹³⁴ Because diligent prosecution "defines the extent to which the State and CLEAN are in privity with each other," the court concluded "that res judicata does not bar the unspecified claims supposedly 'known' to the State at the time of settlement."¹³⁵

D. Summary of Harmon, Smithfield, and CLEAN

The Eighth Circuit's decision in Harmon is significant for two reasons. First, it is significant because it is the first federal appellate court to opine that EPA lacks the statutory authority to overfile under RCRA, i.e., to continue to pursue an enforcement action when a state with an approved program has brought and concluded an enforcement action associated with the same violations. Second, it is significant because it is the first federal appellate court since the Ninth Circuit in ITT Rayonier to find a factual situation resulting in the application of res judicata as a bar to an EPA enforcement action under RCRA, the CWA, or the CAA. But how significant is the Harmon decision? When viewed in light of the Fourth Circuit's contemporaneous decision in Smithfield and the district court's recent decision in CLEAN, the Eighth Circuit's decision in Harmon may be much less significant than it first appeared.

[30 ELR 10742]

Although the Harmon decision may encourage EPA to be more circumspect in deciding whether to "overfile,"¹³⁶ it is almost certain to result in an increased number of situations in which parties challenge EPA enforcement actions not only under RCRA, but also under the CWA and the CAA, by claiming that EPA lacks statutory authority to overfile or is barred from overfiling due to res judicata.¹³⁷ Thus, courts likely will have a chance to enlighten us on the extent to which the Harmon, Smithfield, and CLEAN decisions impact the enforcement and settlement decisions of EPA, states, and regulated entities under RCRA, the CWA, and the CAA. Anticipating this growth in "overfiling" litigation, the next section of this Article evaluates how Harmon's statutory authority analysis likely will be applied in subsequent "overfiling" cases under RCRA, the CWA, and the CAA, while the following section of the Article evaluates how the res judicata analysis likely will be applied in subsequent "overfiling" cases under RCRA, the CWA, and the CAA.

III. Evaluation of EPA's Statutory Authority to Overfile Under RCRA, the CWA, and the CAA in Light of Harmon, Smithfield, and CLEAN

Understanding the scope of EPA's statutory authority to overfile requires a general understanding of the independent authority of the federal and state governments. Congress, by enacting the various environmental statutes, such as RCRA, the CWA, and the CAA, has authorized EPA to implement a regulatory and enforcement program at the federal level.¹³⁸ With a few exceptions, Congress also has recognized that states have the authority to develop separate, possibly more stringent, regulatory and enforcement programs at the state level.¹³⁹ Thus, in many ways, Congress contemplated a dual enforcement scenario in which each sovereign could pursue an independent enforcement action under its own laws.¹⁴⁰

In addition, however, Congress expressly encouraged states to request EPA approval of the state programs so that the states could take primary responsibility for implementing the federal statutory regime.¹⁴¹ The question of EPA's statutory authority to overfile thus centers around the legal significance of EPA's decision to "approve" a state program. EPA essentially claims that "approval" has no legal significance relating to EPA's enforcement authority—it simply amounts to a public acknowledgment that the state program is substantially equivalent to the federal program and signals that EPA will be more likely to defer to the state's efforts to implement and enforce the statutory regime.¹⁴² Regulated entities, by contrast, claim that approval implicates an alteration of the dual enforcement relationship such that the actions of a state with an approved program may legally constrain EPA's enforcement authority at least to some extent.¹⁴³

A. Evaluating the Harmon Court's Interpretation of EPA's Statutory Authority to Overfile Under RCRA—RCRA Probably Should Be Interpreted to Constrain EPA's Authority to Overfile, but Perhaps Not as Much as Harmon Suggests

While EPA may not like the result in Harmon, it should not be surprised by it. Although the Eighth Circuit's decision in Harmon runs contrary to EPA's allegedly "well-established [30 ELR 10743] reading of the statute"¹⁴⁴ supporting its claim to unfettered discretion,¹⁴⁵ the decision is well grounded in the language of RCRA. The "in lieu of" and "same force and effect" language found in RCRA § 3006 provide the court with a "plain language" foundation for concluding that RCRA precludes overfiling when a state with an approved program has brought and concluded an enforcement action associated with the same violations.¹⁴⁶ The language of the citizen suit provision in RCRA § 7002 and the notification language in RCRA § 3008 (as embellished by the court) reinforce the court's "plain language" reading of "in lieu of" and "same force and effect."¹⁴⁷

Moreover, EPA was receiving signals suggesting that its interpretation may be untenable as early as the mid-1980s, with the decisions of the ALJs in In re BKK Corp. (BKK I & II) and In re Martin Electronics, Inc. (Martin I & II), which signals were echoed in the mid-1990s, as reflected in the ALJ's decision in In re Beaumont Co. (Beaumont I).¹⁴⁸ Following the issuance of the General Counsel's opinion,¹⁴⁹ however, EPA apparently got too caught up in its own "press clippings" to look more objectively and dispassionately at the extent to which Congress limited its authority to overfile in RCRA.

Some have questioned the Eighth Circuit's analysis based on an argument that the Eighth Circuit misapplied Chevron.¹⁵⁰ The Eighth Circuit summarized Chevron as follows: "When reviewing a federal agency's interpretation of a federal statute, a federal court must defer to the agency's interpretation only if it finds that the agency's interpretation is consistent with the plain language of the statute or represents a reasonable interpretation of an ambiguous statute."¹⁵¹ The Eighth Circuit avoided addressing whether EPA's interpretation of RCRA was reasonable by finding that EPA's interpretation of the statute was not consistent with the "plain language" of RCRA.¹⁵² A result-oriented court that wanted to uphold EPA's right to overfile under RCRA well could conclude that the "plain language" of RCRA is ambiguous, allowing the court to ask whether EPA's interpretation (that RCRA gives it unfettered discretion to overfile once it provides the state with notice) "represents a reasonable interpretation of an ambiguous statute." A court focusing on the overfiling issue in this construct would be much more likely to find that EPA's interpretation is reasonable and that RCRA authorizes overfiling.¹⁵³

1. Does RCRA Preclude Overfiling Whenever a State With an Approved Program Takes Enforcement Action, or Only When a State With an Approved Program Has Taken "Appropriate" Enforcement Action?

Assuming its continuing vitality for the present, however, the Harmon decision presents a problem for EPA in that it embraces a different threshold for EPA action than the Seventh Circuit in Northside Sanitary Landfill, Inc. v. Thomas,¹⁵⁴ and the ALJs in BKK I & II and Martin I & II had suggested and EPA has embraced as a matter of discretionary policy. The Seventh Circuit in Northside Sanitary Landfill and the ALJs in BKK I & II and Martin I & II suggested that EPA was precluded from overfiling only when a state with an approved program took "reasonable and appropriate" enforcement action and was allowed to overfile if a state with an approved program failed to act or took "inadequate" enforcement action.¹⁵⁵ By contrast, in Harmon, the Eighth Circuit's language appears to limit EPA to bringing an enforcement action in a state with an approved program only when the state has failed to act.¹⁵⁶ Of course, given that the facts of Harmon suggest that the MDNR's enforcement action was reasonable and appropriate,¹⁵⁷ the Eighth Circuit or another court could fairly easily distinguish and limit Harmon by interpreting it to apply only when the state enforcement action is adequate. This would allow EPA to overfile if a state with an approved program failed to take enforcement action or took enforcement action that was inadequate.¹⁵⁸ But which approach is more consistent with the language of RCRA?

[30 ELR 10744]

The General Counsel's opinion and the Eighth Circuit's opinion in Harmon present in stark relief the interpretational choice the language of RCRA appears to present. Taken at face value, the language of RCRA does not appear to allow the "middle-ground" threshold for EPA enforcement action reflected in Northside Sanitary Landfill, BKK I & II, and Martin I & II. The language appears instead to provide a somewhat black and white choice—either EPA can bring an enforcement action in a state with an approved program, regardless of the adequacy or inadequacy of the state enforcement action, once EPA has provided the notice required by RCRA § 3008,¹⁵⁹ or EPA cannot bring an enforcement action in a state with an approved program if the state has pursued an enforcement action, regardless of the adequacy or inadequacy of the state's enforcement action.¹⁶⁰ Intriguingly, both the General Counsel and the Eighth Circuit used this understanding of their alternative choices to justify their decisions.¹⁶¹

To understand this choice, one probably needs to compare the two differing descriptions of congressional intent that are reflected in these competing interpretations. The EPA view postulates that even though Congress intended to encourage states to invest significant resources in developing approved state programs it also intended to infringe on state programs by allowing EPA to supersede the state's enforcement decisions whenever it wanted. The regulated entity view postulates that because Congress intended to encourage states to invest significant resource in developing approved state programs, it must have intended to preclude EPA from bringing enforcement actions in states with approved programs when such states take any enforcement action regardless of how inadequate it might be.¹⁶²

As the Eighth Circuit highlights in Harmon, however, because EPA's interpretation would allow EPA unfettered discretion to bring enforcement actions regardless of state enforcement efforts, EPA's interpretation would run afoul of the principles of comity and federalism embedded in the text and history of RCRA.¹⁶³ Moreover, because the federal government needs states to take primary enforcement authority given that the federal government lacks the resources to conduct primary enforcement in all the states,¹⁶⁴ the federal government should be trying to make sure states have an incentive to take primary enforcement authority. Although the availability of some federal funds to support aspects of approved programs provides some incentive for states to maintain approved programs under RCRA, the major incentive for most states likely is the "control" that states have over implementation and enforcement decisions once the state's program is approved.¹⁶⁵ If RCRA were to be interpreted to authorize EPA to overfile regardless of what the state has done in terms of enforcement, states really would have little "control" and little incentive to seek or maintain approved state programs under RCRA. This would significantly undercut the federal goal of encouraging states to take primary responsibility for implementation and enforcement of the federal regulatory regime under RCRA.¹⁶⁶

As the General Counsel asserts, however, interpreting RCRA in a way that precludes EPA from bringing enforcement actions in states with an approved program, even when a state's enforcement efforts are inadequate, also appears somewhat nonsensical.¹⁶⁷ If EPA cannot bring an enforcement action in such circumstances EPA's only choice would be withdrawing approval of state programs that are engaging in inadequate enforcement. EPA well might claim that it needs the "chisel" of overfiling to avoid using the "sledgehammer" of program withdrawal. If EPA can overfile regardless of the adequacy of the state enforcement action, however, the "sledgehammer" of program withdrawal would have little meaning as states would be unlikely to perceive their operation of an approved program as having any real benefit that would be lost by program withdrawal.

These contrasting perspectives may miss the point, however. When one reflects on the analysis in CLEAN and similar citizen suit cases, one reaches the conclusion that the "middle-ground" threshold of "adequate" enforcement described in Northside Sanitary Landfill, BKK I & II, and Martin I & II perhaps should be the standard. Although the CLEAN case involved citizen suits under the CWA and the CAA, the citizen suit language of the three statutes is virtually [30 ELR 10745] identical.¹⁶⁸ It would seem odd to interpret RCRA to allow citizens to bring a citizen suit whenever the state is not engaged in "diligent prosecution,"¹⁶⁹ but preclude EPA from bringing an enforcement action any time a state with an approved program takes any enforcement action, regardless of whether the state's enforcement action reflects "diligent prosecution."¹⁷⁰ Moreover, as a matter of policy, a "middle-ground" threshold of "adequate" enforcement makes more sense. If EPA were willing to allow states control over their approved programs without "overfiling" interference, provided that the programs encompassed "adequate" enforcement activities, states with approved programs likely would be more inclined to assure "adequate" enforcement to protect the regulated parties in their state from overfiling and to avoid withdrawal of program approval, because maintaining approval of the state program under those circumstances would have value to the state.

Thus, an interpretation of RCRA that precludes EPA from "overfiling" when a state has taken "appropriate" or "adequate" enforcement action would best serve EPA's twin policy goals of promoting efficient enforcement of the federal regulatory regime through use of approved state programs while promoting consistent enforcement across the country by assuring "adequate" enforcement within states with approved programs.

2. What Is "Appropriate" Enforcement Action?

Of course, even if EPA's authority to overfile were limited to circumstances in which state enforcement efforts are "inadequate," a key question will be what constitutes "adequate" or "appropriate" enforcement action?

The ALJ decisions in BKK I & II and Martin I & II again shed some light on the analysis of "adequate" enforcement by suggesting that if EPA approves a state program in which the state is not allowed to assess penalties in an administrative enforcement action, EPA may be constrained from complaining about the lack of penalties when the state pursues administrative rather than judicial enforcement.¹⁷¹ EPA memoranda from the mid-1980s also provide some context for evaluating whether state enforcement efforts are adequate.¹⁷²

To some extent, Harmon and Smithfield also shed some light on adequate and inadequate enforcement. Although a strong argument can be made that any enforcement action that results in compliance should be adequate, there can be little doubt that an enforcement action should be considered adequate when it operates as a deterrent to noncompliance.¹⁷³ Even though the MDNR did not impose penalties, the state's enforcement action in Harmon should be considered "adequate." It resulted in Harmon incurring costs in excess of $ 1 million to investigate the extent of the contamination caused by the improper disposal when the ALJ concluded that the economic benefit derived from the improper disposal was only $ 6,000.¹⁷⁴ This sends a loud "deterrence" signal to Harmon and others within the RCRA regulated community that any improper waste storage, treatment, or disposal will be very costly to resolve, even in the absence of civil penalties. Harmon hardly got a "sweetheart" deal.¹⁷⁵ By overfiling in Harmon to obtain civil penalties EPA was engaged in overkill—essentially seeking double penalties given the enormous costs the state required Harmon to incur investigating the consequences of the improper disposal.

By contrast, in Smithfield, the state's enforcement efforts were clearly inadequate because they facilitated noncompliance rather than serving as a deterrent to noncompliance. The VSWCB had allowed the Smithfield facility to remain out of compliance for years without imposing any meaningful penalties and allowed Smithfield to enjoy significant cost savings due to avoided costs associated with not having to alter its manufacturing operations or to install the necessary treatment equipment in a timely manner to assure prompt compliance with effluent limitations.¹⁷⁶ Virginia's treatment of Smithfield looked very much like a "sweet-heart" deal. The state's enforcement efforts in Smithfield did not send a deterrence signal to Smithfield and others within the regulated community; rather the state's efforts communicated to Smithfield and others in the regulated community that the state likely will assist them in looking for ways to defer compliance. Smithfield thus presents EPA with an entirely appropriate circumstance for bringing an enforcement action to assure that national uniform standards are implemented in a uniform manner.

In defining "adequate" enforcement, courts likely would look as well to the various interpretations of "diligent prosecution" under the citizen suit provisions of RCRA, the CWA, and the CAA. The case law on "diligent prosecution," however, provides little in the way of concrete direction, given that the decisions have pretty much run the gamut.¹⁷⁷ On the one hand, some courts have held that administrative [30 ELR 10746] enforcement with nominal penalties represents diligent prosecution.¹⁷⁸ On the other hand, some courts, like the District Court for the Western District of Missouri in CLEAN, have been much more stringent in deciding whether state or federal enforcement represents diligent prosecution.¹⁷⁹

The diligent prosecution cases, however, also highlight what might become a key issue—when has a state with an approved program taken "enforcement action"? One commentator criticized the Harmon decision on this point, asserting that under the Harmon court's framework, "EPA should have been allowed to pursue its enforcement action because Missouri had not taken enforcement action" when EPA filed its administrative complaint.¹⁸⁰ This commentator relies on citizen suit cases and the Federal Rules of Civil Procedure to highlight that "enforcement action" should mean the filing of a complaint in court.¹⁸¹ The CLEAN court, however, understood the Harmon court to be saying that the investigatory activity and settlement discussion in Harmon that preceded EPA's administrative complaint represented sufficient "enforcement action" to bar EPA from concluding prosecution of its administrative enforcement action.¹⁸²

This issue remains wide open for competing judicial interpretations, and given the various interpretations of "diligent prosecution," this issue almost certainly will inspire a variety of interpretational debates among parties and courts. While the "judicial complaint" approach has the simplicity of being a clear standard (which could facilitate more prompt judicial enforcement by states), it is somewhat unrealistic to say that the type of "enforcement actions" the state of Missouri undertook in Harmon were not a sufficient exercise of the state's authority to promote compliance and deter violations. To some extent, the "enforcement action" question likely is intertwined with the "adequate" question—judicial enforcement with nominal consequences could be "enforcement action," but might not be "adequate"; administrative enforcement with significant consequences could be "adequate," but might not be viewed as "enforcement action."¹⁸³

B. Evaluating EPA's Statutory Authority to Overfile Under the CWA

As the previous section highlights, the Eighth Circuit essentially looked at four aspects of RCRA's language to reach its conclusion in Harmon that EPA lacks statutory authority to overfile when a state with an approved RCRA program has taken enforcement action—the "in lieu of" language, the "same force and effect" language, the use of the conjunctive "or" in the citizen suit provision, and the notice provision.¹⁸⁴ The language of the CWA differs in many respects from that of RCRA. As a consequence, the CWA lacks some of the cornerstones that supported the Eighth Circuit's conclusion in Harmon. This section begins with an evaluation of how the language of the CWA compares with the four aspects of RCRA's language that the Eighth Circuit emphasized in Harmon. The section then looks at other language in the CWA that EPA and regulated entities likely would address in making arguments for and against EPA's statutory authority to overfile under the CWA.¹⁸⁵

1. No "In Lieu of" or "Same Force and Effect" Language in the CWA

Given that the Harmon court's analysis begins with the "in lieu of" language and the "same force and effect" language of RCRA § 3006(b) & (d),¹⁸⁶ it would be reasonable to assume that the existence of the "in lieu of" and "same force and effect" language played a large role in supporting its conclusion that EPA lacked statutory authority to overfile under RCRA when a state with an approved program had taken enforcement action. Significantly, the CWA does not provide that an approved state program operates "in lieu of" the federal program or with the "same force and effect" as the federal program. Given that the Eighth Circuit placed such emphasis on this language in deciding Harmon, the absence of this language in the CWA inherently weakens the regulated parties' claim that the CWA should be interpreted similarly to RCRA to preclude EPA overfiling when a state with an approved CWA program has taken enforcement action and strengthens EPA's claim that its statutory authority to overfile under the CWA is broader than under RCRA.¹⁸⁷

[30 ELR 10747]

2. Similar Citizen Suit Language

By contrast, the CWA's citizen suit provision, CWA § 505(b)(1)(B),¹⁸⁸ mirrors that of RCRA with respect to the use of the singular conjunctive "or" as opposed to the dual conjunctives "and/or." The Eighth Circuit suggested that Congress' choice of the conjunctive "or" was significant because it "indicates that Congress did not contemplate competing enforcement actions between the federal government and the states."¹⁸⁹ Of course, in Harmon, the court did not focus on this in isolation, but in conjunction with the "in lieu of" language and "same force and effect" language. Thus, while this language would support a regulated entity's claim that EPA lacks statutory authority to overfile under the CWA when a state with an approved program has taken enforcement action, it offers less support under the CWA than under RCRA.

3. Distinctive (and Confusing) Notification Language

The CWA also contains a notice provision in CWA § 309¹⁹⁰ that shares some similarities with, but is largely different than, RCRA's notice provision. CWA § 309(a)(1) provides that EPA shall bring an enforcement action only if "the State has not commenced appropriate enforcement action" beyond the 30th day after receiving notice from EPA.¹⁹¹ Even more clearly than the RCRA notice language discussed in Harmon,¹⁹² this language suggests two things. First, it suggests that a state with an approved program perhaps should be considered to have primary enforcement authority given that EPA explicitly is directed to give the state 30 days after notice to take enforcement action before EPA is authorized to take its own enforcement action. Second, it makes it clear that once EPA gives a state the notice provided for in CWA § 309(a)(1), EPA can "overfile" only when a state with an approved program fails to take "appropriate" enforcement action.¹⁹³

CWA § 309(a)(1) also provides, however, that EPA can bring an enforcement action without providing any notice to the state and without waiting for the state to take enforcement action.¹⁹⁴ This strongly undercuts any suggestion that the CWA places substantive limits on EPA's overfiling authority.

4. Other Language

The CWA also has language different from the RCRA language highlighted in Harmon that EPA and regulated parties likely would highlight in trying to persuade a court that EPA either has authority, or lacks authority, to overfile under the CWA when a state with an approved program has taken some enforcement action. Specifically, regulated parties likely would focus on four additional clauses to support their argument that EPA lacks statutory authority to overfile under the CWA when a state with an approved program has taken some enforcement action.

First, CWA § 101, which describes congressional goals and policy, contains explicit language regarding the state-federal relationship: "It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . . . It is the policy of Congress that the States . . . implement the permit programs under section 1342 and 1344 of this title."¹⁹⁵ Although regulated entities likely will emphasize this language in an effort to constrain EPA's authority to overfile, EPA almost certainly will assert that it really doesn't speak directly to the overfiling question. Rather, it simply supports the general premise that EPA should be encouraging states to develop state programs for EPA approval, without wrestling with the more difficult question about what to do when a state appears not to be implementing its program in a manner consistent with the CWA's overarching objective of "restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters."¹⁹⁶

Second, CWA § 309(a)(2) describes a period of "federally assumed enforcement" when "violations of permit conditions or limitations . . . are so widespread that such violations appear to result from a failure of the State to enforce such permit conditions or limitations effectively. . . ."¹⁹⁷ The section requires EPA to notify the state when the state's program has such widespread violations and provides that if the "failure extends beyond the thirtieth day after such notice," [30 ELR 10748] EPA shall provide public notice of such failure thereby triggering the commencement of a period of "federally assumed enforcement" during which EPA "shall enforce any permit condition or limitation with respect to any person" by issuing a compliance order or bringing a civil action.¹⁹⁸ Regulated parties likely will assert that this period of "federally assumed enforcement" during which EPA "shall enforce any permit condition or limitation with respect to any person" supports the inference that during other periods there should be no federal enforcement. EPA certainly would respond, however, that this argument is premised on the assumption that enforcement authority is presumptively exclusive—that because EPA apparently has enforcement authority to the exclusion of the states during this period of "federally assumed enforcement," the states must have enforcement authority to the exclusion of EPA during other periods—an argument that runs directly counter to the concurrent authority perspective on environmental statutes to which virtually all courts have subscribed over the last three decades.¹⁹⁹ Indeed, the language describing the period of "federally assumed enforcement" is every bit as consistent with a concurrent enforcement regime as it is with an exclusive enforcement regime. Under a concurrent enforcement model, the state and federal governments have shared authority except when the state demonstrates a widespread failure to enforce its program at which point the federal enforcement authority continues to the exclusion of the state's.

Third, CWA § 309(g), which addresses administrative penalties, contains an express limitation on federal enforcement authority in one specific context.²⁰⁰ As discussed in Smithfield and CLEAN,²⁰¹ CWA § 309(g)(6)(A) provides that "any violation . . . with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, . . . shall not be the subject of a civil penalty action under subsection (d) of this section . . . or section 1365 of this title."²⁰² One commentator has noted that while Congress enacted CWA § 309(g)(6)(A) to enable EPA to pursue penalties more easily,²⁰³ some members of Congress may have been concerned that the "EPA might too often seek penalties in cases where states had already obtained them."²⁰⁴ The commentator thus described CWA § 309(g)(6)(A) as "a compromise" in which Congress gave EPA expanded authority to pursue administrative enforcement, but restricted EPA's authority to pursue certain enforcement actions if a state with an approved program was diligently prosecuting, or had already prosecuted, the matter under state law comparable to the CWA.²⁰⁵

On the one hand, the existence of CWA § 309(g)(6)(A) gives regulated entities a compelling argument regarding one express circumstance in which Congress has constrained EPA's ability to overfile. On the other hand, it also gives EPA a compelling argument that Congress knew how to constrain EPA's authority to overfile, and that its failure to do so on a broader scale evidences Congress' intent to restrict EPA's authority to overfile in only a limited set of circumstances.

Fourth, the title of CWA § 402(c), "Suspension of federal program upon submission of State program," contains language from which regulated parties might infer that the federal authority to enforce the program is suspended once a state submits a program for approval.²⁰⁶ The specific language of CWA § 402(c)(1), however, gives EPA a basis for countering this inference, as it states only that EPA "shall suspend the issuance of permits under subsection (a) of this section."²⁰⁷ In addition, CWA § 402 reserves to EPA veto authority over permits a state with an approved program intends to issue, again suggesting that EPA is not yielding all of its authority to the state.²⁰⁸ Moreover, there is specific language in CWA § 402(I), entitled "Federal enforcement not limited," in which Congress reserves EPA's enforcement authority: "Nothing in the section shall be construed to limit the authority of the [EPA] to take action pursuant to section 1319 of this title."²⁰⁹

5. Summary of the Evaluation of EPA's Statutory Authority to Overfile Under the CWA

On the whole, with the exception of CWA § 309(g)(6)(A), which explicitly, partially constrains EPA's ability to overfile in very specific circumstances, the language of the CWA provides regulated parties a much less compelling basis than the language of RCRA for arguing that EPA lacks the statutory authority to overfile. The CWA does not contain the "in lieu of" language and "same force and effect" language that were significant in the Eighth Circuit's analysis of RCRA in Harmon. Moreover, the notice provision in CWA § 309(a)(1) gives EPA complete discretion as to whether it provides the state with notice, thus completely negating the inference the Eighth Circuit drew in Harmon that the notice provision under RCRA indicates the state [30 ELR 10749] should be given an opportunity to take action first. The only language directly comparable between RCRA and the CWA is the use of the conjunctive "or" in the citizen suit provision, but there is nothing in the Harmon court's analysis to suggest that this standing alone is a sufficient basis on which to conclude that Congress intended to constrain EPA's statutory authority to overfile when a state with an approved program has taken enforcement action. In addition, the remaining language of the CWA, including the language of CWA § 309(a)(2) describing the period of "federally assumed enforcement," and the language of CWA § 402, which provides for the suspension of EPA's permit program, but also reserves for EPA the right to veto state permits, and the right to bring enforcement actions under CWA § 309, supports an interpretation of the CWA in which EPA has the statutory authority to overfile outside of the specific constraints of CWA § 309(g)(6)(A).

C. Evaluating EPA's Statutory Authority to Overfile Under the CAA

The language of the CAA also is markedly different than the language of RCRA when it comes to the issue of EPA's statutory authority to overfile.²¹⁰

1. No "In Lieu of" or "Same Force and Effect" Language in the CAA

Significantly, the CAA, like the CWA, does not provide that an approved state program operates "in lieu of" the federal program or with the "same force and effect" as the federal program. Once again, given that the Eighth Circuit placed such emphasis on this language in deciding Harmon, the absence of this language in the CAA inherently weakens the regulated parties' claim that the CAA should be interpreted similarly to RCRA to preclude EPA overfiling when a state with an approved CAA program has taken enforcement action and strengthens EPA's claim that its statutory authority to overfile under the CAA is broader than under RCRA.

2. Similar Citizen Suit Language

The CAA's citizen suit provision mirrors that of the CWA and RCRA with respect to the use of the singular conjunctive "or" as opposed to the dual conjunctives "and/or."²¹¹ Once again, the Harmon court suggested that Congress' choice of the conjunctive "or" was significant because it "indicates that Congress did not contemplate competing enforcement actions between the federal government and the states."²¹² Of course, in Harmon, the court did not focus on this in isolation, but in conjunction with the "in lieu of" language and "same force and effect" language. Thus, while this language would support a regulated entity's claim that EPA lacks statutory authority to overfile under the CAA when a state with an approved program has taken enforcement action, it offers less support under the CAA than under RCRA.

3. Comparable Notification Language

The CAA also contains a notice provision in CAA § 113²¹³ with language that imposes a notice obligation similar in effect to the interpretation the Harmon court gave to the notification language under RCRA.²¹⁴ While the RCRA provision discussed in Harmon requires EPA to give notice to a state with an approved program "prior to issuing an order or commencing a civil action,"²¹⁵ and the CWA's provision discussed above gave EPA the option of providing notice and waiting 30 days or pursuing enforcement action immediately,²¹⁶ CAA § 113(a)(1) requires EPA to give notice and provides that EPA may bring an enforcement action at any time after the 30th day following the issuance of the notice.²¹⁷ Thus, as the Harmon court noted in discussing the RCRA notice provision, given that CAA § 113(a)(1) explicitly requires EPA to give the state 30 days before EPA is authorized to take its own enforcement action, one can infer that a state with an approved program perhaps should be considered to have primary enforcement authority.

4. Other Language

Much like the CWA, the CAA also has language not found in RCRA that EPA and regulated parties likely would highlight in trying to persuade a court that EPA either has authority, or lacks authority, to overfile under the CAA when a state with an approved program has taken some enforcement action. Specifically, regulated parties likely would focus on two additional clauses to support their argument that EPA lacks statutory authority to overfile under the CAA when a state with an approved program has taken some enforcement action, while EPA also would highlight several clauses supporting its right to overfile.

First, CAA § 101(a)(3), which describes the declaration of purpose for the CAA, contains explicit language regarding the role of states, providing that "air pollution prevention . . . and air pollution control at its source is the primary responsibility of States and local governments."²¹⁸ Although regulated entities likely will emphasize this language in an effort to constrain EPA's authority to overfile, EPA likely will highlight that this language does not speak [30 ELR 10750] directly to the overfiling question. While the statutory language supports the general premise of the CAA that states should initially and primarily be responsible for developing state implementation plans (SIPs)²¹⁹ to assure attainment of the national ambient air quality standards (NAAQS),²²⁰ it does not address the more difficult question about what to do when a state appears not to be implementing its program in a manner consistent with the CAA's overarching objective of "protecting and enhancing the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population."²²¹ The fact that CAA § 110 specifically provides for states to submit their SIPs for EPA approval further highlights that although states may have primary responsibility for developing plans to control air pollution, they are nonetheless answerable to EPA with respect to demonstrating that their SIPs will assure attainment of the NAAQS.²²²

Second, the CAA, like the CWA, contains language in the enforcement section, CAA § 113, describing a "period of federally assumed enforcement" when "violations of an applicable implementation plan or an approved permit program under subchapter V of this chapter are so widespread that such violations appear to result from a failure of the State . . . to enforce the plan or permit program effectively."²²³ The section requires EPA to notify the state when the state's program has such widespread violations. It further provides that if the "failure extends beyond the thirtieth day after such notice (90 days in the case of such permit program)," EPA shall provide public notice of such failure thereby triggering the commencement of a "period of federally assumed enforcement" during which EPA "may enforce any requirement or prohibition of such plan or permit program with respect to any person" by issuing a compliance order, issuing an administrative penalty order or bringing a civil action.²²⁴ Regulated parties likely will assert that this "period of federally assumed enforcement" supports the inference that during other periods there should be no federal enforcement. As noted in the discussion of the CWA, however, this argument is premised on the faulty assumption that enforcement authority is presumptively exclusive—that because EPA appears to have enforcement authority to the exclusion of the states during this period of "federally assumed enforcement," the states must have enforcement authority to the exclusion of EPA during other periods. This argument runs directly counter to the concurrent authority perspective on environmental statutes to which virtually all courts have subscribed over the last three decades.²²⁵ Indeed, the language describing the "period of federally assumed enforcement" is every bit as consistent with a concurrent enforcement regime as it is with an exclusive enforcement regime. Under a concurrent enforcement model, the state and federal governments have shared authority except when the state demonstrates a widespread failure to enforce its program at which point the federal enforcement authority continues to the exclusion of the state's.

From EPA's perspective, the most significant language addressing the overfiling issue that is present in the CAA, but not present in RCRA, is express language preserving EPA's enforcement authority. Several separate sections authorize states to develop programs for implementing specific aspects of the CAA while expressly preserving for EPA the right to pursue enforcement action. For example, with respect to new source performance standards, CAA § 111(c)(1) allows states to seek EPA approval of a state program for implementing the new source performance standards, but CAA § 111(c)(2) specifically states "nothing in this subsection shall prohibit the [EPA] from enforcing any applicable standard of performance under this section."²²⁶ CAA § 112, addressing regulation of hazardous air pollutants, also authorizes states to seek EPA approval of a state program for implementing the hazardous air pollutant program, but similarly states "nothing in this subsection shall prohibit the [EPA] from enforcing any applicable emission standard or requirement under this section."²²⁷

Similar language exists in CAA § 114(b), dealing with recordkeeping, inspections, and monitoring.²²⁸ Similar language also exists with respect to the permit program under Subchapter V of the CAA.²²⁹ Finally, with respect to the Prevention of Significant Deterioration program, which is to be implemented through the SIP, CAA § 167 specifically provides: "The [EPA] shall, and a state may, take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part. . . ."²³⁰ This language again suggests strongly that EPA has overfiling authority.

5. Summary of the Evaluation of EPA's Statutory Authority to Overfile Under the CAA

On the whole, the language of the CAA provides regulated parties a much less compelling basis for arguing that EPA lacks the statutory authority to overfile than does the language of RCRA. The CAA does not contain the "in lieu of" language and "same force and effect" language that were significant in the Eighth Circuit's analysis of RCRA in Harmon. The only language directly comparable between RCRA and the CAA is the use of the conjunctive "or" in the citizen suit provision, and the notice provision in CAA § 113(a)(1) under which EPA, before commencing an enforcement action, must wait 30 days after notice. This would indicate that the state should be given an opportunity to take action first, possibly to the exclusion of EPA. There is nothing in the Harmon court's analysis, however, to suggest that [30 ELR 10751] these two points standing alone would be a sufficient basis on which to conclude that Congress intended to constrain EPA's statutory authority to overfile when a state with an approved program has taken enforcement action. Moreover, the remaining language of the CAA, including the language of CAA § 113(a)(2) describing the period of "federally assumed enforcement," and the language in several different sections expressly precluding any constraint on EPA's right to pursue an enforcement action, supports an interpretation of the CAA in which EPA has the statutory authority to overfile.

D. Comparing EPA's Statutory Authority to Overfile Under RCRA, the CWA, and the CAA

When one looks closely at the specific language in RCRA, the CWA, and the CAA, it becomes apparent that although the precise extent to which RCRA precludes EPA overfiling may remain subject to dispute for some time, Congress clearly preserved for EPA broader authority to overfile in states with approved programs under the CWA and the CAA than under RCRA. This may simply be an unintended consequence of Congress' "patchwork quilt" approach to environmental regulation. Alternatively, Congress may have made a deliberate choice to allow EPA broader overfiling authority under the CWA and the CAA than under RCRA. There is at least some rational basis on which to conclude that the latter rationale explains EPA's broader overfiling authority under the CWA and the CAA. Given the greater potential for interstate externalities associated with air and water pollution than with contamination from the disposal of hazardous waste, Congress well might have concluded that it needed to allow EPA broader overfiling authority under the CWA and the CAA than under RCRA to counterbalance the concern that states would be more inclined to be lenient in enforcing the CWA and the CAA than RCRA.²³¹ In any event, regardless of whether Congress made a deliberate choice to retain broader overfiling authority for EPA under the CWA and the CAA than under RCRA, a comparison of the language of the CWA and the CAA with the language of RCRA on which the Eighth Circuit focused on concluding that EPA was precluded from overfiling under RCRA demonstrates that the Eighth Circuit's decision in Harmon is unlikely to provide a basis on which regulated parties can expect to challenge successfully EPA's authority to overfile under the CWA and the CAA.

IV. Res Judicata as a Bar to EPA Enforcement Action When a State With an Approved Program Has Taken Enforcement Action

Because courts consistently have held that the federal environmental statutes do not abrogate the common-law defense of res judicata, regulated parties may be able to use state enforcement actions to shield themselves from federal overfiling actions, even when a statute such as the CWA or the CAA appears to permit overfiling.²³² Although the courts in ITT Rayonier and Harmon focused their res judicata analysis on the "identity of the parties"—whether EPA was in privity with the state—the CLEAN decision highlights that the "identity of the claims" can be just as significant an issue in deciding whether res judicata bars EPA enforcement action when a state with an approved program has taken enforcement action.²³³ Notably, because it is through the principle of full faith and credit that state enforcement actions may bar federal enforcement actions under the principle of res judicata, state law, not federal law, determines whether a state action has res judicata impact on subsequent federal action.²³⁴

A. Evaluating How the "Identity of the Claims" Analysis Likely Will Impact the Application of Res Judicata and Possibly Guide the Conduct of States and Regulated Entities

The decisions in ITT Rayonier and Harmon well might lead an inattentive observer to conclude that there is little value in focusing on the analysis of the "identity of the claims" in evaluating the applicability of res judicata. Because the state and federal court actions in ITT Rayonier were not traditional [30 ELR 10752] enforcement cases involving allegations of a series of violations, but focused instead on the interpretation of a permit, the parties clearly were asserting claims regarding the same operative facts.²³⁵ Similarly, even though the allegations in the state and federal actions in Harmon involved a series of acts resulting in several counts alleging different violations, such that it was at least possible that the claims were not coextensive and identical, the Eighth Circuit stated: "In both the state court action and the EPA administrative enforcement action, the parties sought to enforce a hazardous waste program pursuant to the RCRA. . . . Both actions involved the enforcement of regulations based upon identical facts and legal principles."²³⁶

The CLEAN decision, however, highlights a scenario more likely to arise when a regulated party has engaged in conduct over time giving rise to a series of possible violations. Given that the state enforcement agency drafts the complaint containing the alleged violations, and given that each day of violation of a given standard or limitation is a separate actionable offense,²³⁷ it is entirely possible that the state's complaint will not address every conceivable violation attributable to the regulated party's conduct, leaving open the possibility that EPA can assert claims that would not be barred by res judicata because they are different from the claims the state asserted.²³⁸ In such circumstances, the attorney for a regulated party desirous of settling all claims relating to the alleged violations has a challenging task. While the client frequently wants as few alleged violations made public and wants to pay as little as possible to resolve such claims, to assure the client of the greatest possible protection under res judicata, the attorney may need to advise her client to ask the state to add additional allegations to the complaint and increase the amount of the penalty the state is requesting. Alternatively, the regulated party can seek to have the release contained in the consent decree drafted as broadly as possible. As the CLEAN court's analysis suggests, however, the scope of the res judicata bar may not be based on the breadth of the release contained in the consent decree.²³⁹

A separate but related question concerns the type of enforcement action which enables a party to claim res judicata. The ITT Rayonier, Harmon, and CLEAN cases present much of the continuum of possible enforcement actions. ITT Rayonier presents the easiest case, as it involved claims that were fully litigated to the highest court in the state.²⁴⁰ Claims that have been fully adjudicated are uniformly given res judicata effect,²⁴¹ even if the decision is considered erroneous.²⁴² Harmon and CLEAN are representative of an increasingly common situation in which issues are not fully litigated but are resolved through a consent decree entered by a court. Because such judicially approved consent decrees represent a judicial act they are entitled to res judicata effect, to the extent that there is an identity of the claims and an identity of the parties.²⁴³

Administrative resolutions are more problematic. The Supreme Court, in United States v. Utah Construction & Mining Co.,²⁴⁴ has held that administrative resolutions may be "entitled to preclusive effect when the agency acts in an adjudicatory, judicial, or quasi-judicial capacity."²⁴⁵ Although there have not been any cases under RCRA, the CWA, and the CAA to date in which EPA was barred from pursuing an enforcement action as a result of a prior state administrative decree, largely because none of the administrative decrees in question appear to have resulted from a quasi-judicial process, it is conceivable that in a state that applies res judicata broadly to encompass a wide variety of administrative resolutions, EPA could be barred from overfiling based on an administrative settlement.²⁴⁶

Therefore, even before addressing issues associated with "identity of the parties," res judicata does not promise to be a complete panacea for regulated parties seeking to avoid having EPA overfile. Absent tremendous thoroughness by the state in drafting its enforcement action, the "identity of the claims" analysis may leave the door open for a subsequent enforcement action by EPA focusing on claims not encompassed within the state's complaint. Moreover, administrative resolutions (if not resulting from a quasi-judicial process) are unlikely to garner the protection of res judicata. Thus, to maximize the possibility of raising a res judicata defense, regulated parties likely will need to encourage state regulators to "throw the book at them" to assure that all possible claimed violations are encompassed within a complaint and will need to ask states to pursue judicial resolution (through filing of a consent decree in court) rather than the administrative resolution that has become so common.

B. Evaluating How the "Identity of the Parties" Analysis Likely Will Impact the Application of Res Judicata and Possibly Guide the Conduct of States and Regulated Entities

The "identity of the parties" or "privity" analysis presents some interesting issues. The Harmon court noted that the [30 ELR 10753] statutory language of RCRA "provides the framework for the party identity analysis."²⁴⁷ Focusing on the "in lieu of" language and the "same force and effect" language, the Harmon court concluded that "the two parties stand in the same relationship to each other, thus satisfying the 'identity of the parties'" requirement.²⁴⁸ In reaching this conclusion, the Eighth Circuit rejected EPA's argument that its enforcement interests were distinct from those of the state, noting that "privity is not dependent upon the subjective interests of the individual parties."²⁴⁹

The CLEAN court also focused on statutory language in evaluating the identity of the parties, but emphasized that the "in lieu of" and "same force and effect" language of RCRA shaped the Harmon court's conclusion "that the State and EPA represented the same legal right."²⁵⁰ Highlighting that neither the CWA nor the CAA contains the "in lieu of" or "same force and effect" language, the CLEAN court stated that "the citizens (or federal government) are the same party as the State only as to that which the state has diligently prosecuted."²⁵¹ The court then began its analysis of "diligent prosecution" distinguishing between claims specifically asserted in the complaint or referenced in the Consent Judgment (which were diligently prosecuted) and unidentified claims generally released through the broad language of the release contained in the Consent Judgment (which were not diligently prosecuted).²⁵² The CLEAN court thus found that privity existed (and res judicata applied) only with respect "to those specific incidents that CLEAN's complaint shares with the State's Petition or the Consent Judgment, including the exhibits thereto."²⁵³ Because the CLEAN court's dicta suggests this approach to "diligent prosecution" also should be the basis for determining the privity relationship between the state and federal government, it suggests that "privity" will be much harder to establish under the CWA and the CAA than under RCRA.

To some extent this analysis makes sense. As reflected above in the analysis of EPA's statutory authority to overfile under RCRA, the CWA and the CAA, Congress retained for EPA broader authority to overfile under the CWA and the CAA than under RCRA. Given the Eighth Circuit's reference to statutory authority as a basis for evaluating the "identity of the parties," it should not be surprising that privity is more likely to be found under RCRA than under the CWA and the CAA. Even though the Eighth Circuit refused to account for differences in the parties' subjective interests in evaluating privity, the statutory structure inherently implicates different understandings of the parties' subjective interests. As noted above, air and water pollution present a greater risk of interstate externalities than does the disposal of hazardous waste. Because a state's enforcement actions under the CWA and the CAA might not fully account for these externalities, perhaps EPA should not be viewed as being in privity with states for purposes of state enforcement actions as readily under the CWA and the CAA as under RCRA.

Even so, the CLEAN court's analysis is somewhat disturbing in the lack of deference it gives to the state's enforcement actions in deciding the identity of the parties question. In Connecticut Fund for the Environment v. Contract Plating Co., Inc.,²⁵⁴ the court stated that the presumption of diligence "may be overcome only with 'persuasive evidence that the state has engaged in a pattern of conduct in its prosecution of the defendant that could be considered dilatory, collusive, or otherwise in bad faith.'"²⁵⁵ Phrased differently, courts perhaps should ask whether state enforcement represents a "sweetheart" deal.²⁵⁶ In discussing the presumption of diligence, however, the LEAN court never referred to the frequently cited language from Connecticut Fund for the Environment, even though it cited Glazer v. American Ecology Environmental Services Corp., a decision that explicitly referenced the language from Connecticut Fund for the Environment.²⁵⁷

Although PSF had the burden of proof on its affirmative defense of res judicata, it should have had the benefit of the presumption in favor of the state's diligent prosecution. Indeed, PSF well could argue that absent CLEAN's production of "persuasive evidence" of conduct by the state that could be considered "dilatory, collusive, or otherwise in bad faith," the court should have found in its favor that the state's prosecution was diligent. The CLEAN court made no reference to the state's conduct being dilatory, collusive, or in bad faith. Indeed, the CLEAN court would be hard pressed to describe how an enforcement action resulting in an unprecedented penalty of up to $ 1 million together with a commitment to invest up to $ 25 million in capital improvements would fall within the confines of "dilatory, collusive, or bad faith" prosecution. The state's resolution hardly represents a "sweetheart" deal—it should have a deterrent effect on both PSF and others. Nonetheless, the court concluded that the state could not have diligently prosecuted claims contained in its broad release, failing to even consider the possibility that the state's settlement may have been a conscious choice to promote faster compliance using new technologies that could then be integrated into other facilities' permits.

V. Conclusion—The Future of Overfiling Exploring How Harmon, Smithfield, and CLEAN May Impact the Relationship Among Regulated Entities, States, and EPA

This conclusion identifies several probable scenarios relating to state and federal enforcement of environmental law in light of the recent decisions in Harmon, Smithfield and CLEAN.

[30 ELR 10754]

A. Increased Litigation Regarding EPA's Authority to Overfile

Given the recent cases in which the Harmon court's overfiling decision has been raised as an issue,²⁵⁸ EPA's authority to overfile under RCRA, the CWA, and the CAA likely will be challenged with increasing frequency. These challenges will be based on both EPA's alleged lack of statutory authority to overfile and on res judicata.

Although the Eighth Circuit in Harmon held that EPA lacked statutory authority to overfile under RCRA when a state with an approved program has concluded an enforcement action and that res judicata barred EPA's enforcement action, the overfiling issue under RCRA is far from resolved. EPA has taken the position that Harmon is binding only in the Eighth Circuit,²⁵⁹ essentially inviting the opportunity to relitigate the overfiling issues in other circuits.

As noted in the discussion of Harmon, it is conceivable that a different court applying the two-part Chevron test could find RCRA's statutory language ambiguous and conclude that EPA's interpretation that RCRA allows overfiling is reasonable.²⁶⁰ It also is conceivable that other courts may conclude that RCRA precludes EPA from overfiling not when a state with an approved program takes any enforcement action, but only when state enforcement action is "adequate" or "appropriate."²⁶¹ Litigation also likely will explore whether state enforcement activities constitute "enforcement action" sufficient to preclude EPA overfiling.²⁶²

If a court concludes that EPA has a statutory authority to overfile under RCRA, that likely will provide a basis for negating any res judicata claim as the court will likely find that EPA is not in privity with the state. Moreover, for the reasons discussed in CLEAN relating to the "identity of claims" element of res judicata, even if a court decides that EPA and a state with an approved program are in privity, res judicata may not bar EPA from overfiling under RCRA if some of the claims EPA wishes to pursue were not addressed in the underlying state complaint and consent decree.²⁶³ Thus, many questions remain to be resolved with respect to EPA's authority to overfile under RCRA.

To a large extent, EPA's authority to overfile under the CWA and the CAA is lessuncertain than under RCRA. Given the vast differences in statutory language between the language of RCRA and the language of the CWA and the CAA, challenges to EPA's statutory authority to overfile under the CWA and the CAA are unlikely to succeed.²⁶⁴ The language in CWA § 319(g)(6)(A) provides the only circumstance in which regulated entities can claim that EPA lacks statutory authority to overfile. Unfortunately, CWA § 319(g)(6)(A) only precludes EPA from pursuing a civil penalty action, not other types of enforcement actions.²⁶⁵ Moreover, as the courts in Smithfield and CLEAN highlight, CWA § 319(g)(6)(A) only precludes EPA enforcement if the state statute is comparable and if the state has engaged in "diligent prosecution."²⁶⁶

Similarly, although some situations comparable to the situation in ITT Rayonier may arise in which res judicata will serve to bar EPA from overfiling, the CLEAN case suggests that in many situations, EPA will be able to defeat res judicata claims either because there is not an identity of the claims,²⁶⁷ or because the statutory language of the CWA and the CAA makes it more plausible that EPA will be able to show that it is not in privity with the state—that there is no identity of the parties.²⁶⁸

B. Efforts by Regulated Entities and States to Avoid EPA Overfiling

Although an increase in litigation over EPA's overfiling authority is likely to occur as regulated entities become more assertive in contesting EPA's overfiling authority, regulated parties likely will be desirous of avoiding litigation over EPA's overfiling authority both to avoid the transaction costs of litigating the issue and to avoid the risk of double penalties if EPA is found to have the authority to overfile given the specific facts of the case. Accordingly, it is likely that regulated entities and states with approved programs will attempt to structure enforcement scenarios to reduce the likelihood of EPA overfiling. To do so, regulated entities seeking to minimize the risk of litigation relating to EPA's overfiling authority likely will seek to assure that state enforcement actions appear to be "appropriate" enforcement actions that reflect "diligent prosecution."²⁶⁹ This means Harmon may have a counterintuitive impact on state enforcement actions—instead of promoting "sweetheart" deals based on Harmon's holding that any state enforcement action will preclude EPA overfiling, Harmon may promote more situations in which state enforcement reflects "appropriate" enforcement.

Indeed, in light of the issues remaining unresolved following Harmon and the CLEAN court's res judicata analysis, to provide the best argument that EPA lacks statutory authority to overfile under RCRA, the CWA, and the CAA, and that res judicata bars EPA's enforcement action, regulated entities basically need to ask states with approved programs to "throw the book at them." Regulated entities need to assure that state complaints reflect all possible claims and that the settlement of such claims reflects a penalty commensurate with resolution of all such claims. Moreover, regulated entities desirous of preserving res judicata claims are likely to want all state enforcement actions resolved through judicial consent decrees rather than administrative actions.²⁷⁰

Regardless of whether these efforts to structure state enforcement actions legally insulate regulated entities from EPA overfiling (particularly under the CWA and the CAA, which have language favoring EPA with respect to its overfiling authority), they effectively may eliminate the risks of EPA overfiling because EPA may be less likely to [30 ELR 10755] use its scarce enforcement resources to pursue overfiling in situations in which a state with an approved program has taken "appropriate" enforcement action. Of course, EPA's overfiling history, see Part I, suggests this last point may not be entirely accurate. Nonetheless, regulated entities seeking to avoid overfiling likely will rationally conclude that accepting higher than desired penalties in a state enforcement action may be the necessary price to pay to minimize the likelihood of EPA overfiling.

C. EPA's Efforts to Preserve Overfiling Authority

Harmon may serve as a "wake-up" call to EPA regarding its need to be more circumspect in exercising its overfiling authority by overfiling in cases like Smithfield, in which state enforcement efforts clearly are inadequate, and not in cases like Harmon and CLEAN, in which state enforcement actions appear to reflect "appropriate" penalties within the bounds of "diligent prosecution."²⁷¹

Assuming EPA continues to seek "unfettered discretion" to overfile (which may already exist under the CWA and the CAA, if not under RCRA), further litigation regarding EPA's overfiling authority is almost a certainty. Nonetheless, EPA has the ability, through careful selection of the cases in which it elects to overfile, to bolster its chances for success in arguing in favor of its overfiling authority.

Moreover, EPA not only has the ability to select cases for which the factual and procedural structure make a decision in favor of its overfiling authority more likely, it also has the ability to change the context in which the overfiling question gets raised. RCRA, the CWA, and the CAA all provide for criminal enforcement.²⁷² Although the Eighth Circuit's analysis in Harmon may mean that EPA lacks statutory authority under RCRA to pursue any enforcement action—civil or criminal—once a state with an approved program has taken enforcement action,²⁷³ the res judicata defense would not operate to bar EPA from pursuing criminal enforcement.

Accordingly, it is entirely possible that EPA, seeking to eliminate the res judicata defense, will look more frequently at overfiling with criminal enforcement actions. Given the lack of any clear delineation in RCRA, the CWA, and the CAA, between violations appropriate for civil enforcement and violations appropriate for criminal enforcement,²⁷⁴ there likely is little to constrain EPA from pursuing enforcement by filing criminal complaints rather than civil complaints.

Although res judicata will not operate as a bar to criminal enforcement, regulated entities likely would respond to criminal overfiling by claiming that the principles of double jeopardy should preclude EPA from pursuing criminal enforcement. Although traditional principles of double jeopardy do not preclude separate sovereigns from bringing independent enforcement actions, at least one commentator has suggested that with respect to criminal enforcement of environmental law, double jeopardy should apply to preclude one sovereign from bringing a criminal enforcement action when another sovereign has taken enforcement action.²⁷⁵

If EPA pursues criminal enforcement actions, litigation not only will address the double jeopardy question, but also likely will deal with questions of penalties—specifically, whether the EPA can enforce state law (in a state with an approved program) but seek federal penalties.²⁷⁶

D. Summary of Overfiling Under RCRA, the CWA, and the CAA After Harmon, Smithfield, and CLEAN

The tension between state and federal enforcement of environmental law has been present within the federal environmental regulatory regime for 30 years. Although some parties have raised the specific issue of EPA's authority to overfile over the years, the recent decisions in Harmon, Smithfield, and CLEAN suggest that if EPA continues to pursue overfiling with "unfettered discretion" overfiling will become an issue that is litigated with increasing frequency. Although EPA has broader authority to overfile under the CWA and the CAA than under RCRA, parties likely will try to use Harmon (likely unsuccessfully) to challenge EPA's authority to overfile under the CWA and the CAA. Litigation regarding EPA's authority to overfile under RCRA likely will grow as well given the many issues left unresolved by the Eighth Circuit's decision in Harmon. Although Harmon, when viewed along with the decisions in Smithfield and CLEAN, does not represent the dramatic alteration of the state-federal enforcement regime that some may have hoped, it likely will reinvigorate those seeking to limit federal enforcement authority and embolden them to contest EPA's authority to overfile in more and more circumstances. Stay tuned . . . the overfiling story has more chapters yet to be written.

1. 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980).

2. 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999).

3. 191 F.3d 516, 30 ELR 20076 (4th Cir. 1999).

4. No. 97-6073-CV-SJ-6, 2000 WL 220464 (W.D. Mo. Feb. 23, 2000).

5. 191 F.3d at 894, 29 ELR at 21412, aff'g 19 F. Supp. 2d 988, 29 ELR 20035 (W.D. Mo. 1998), rev'g RCRA Appeal No. 94-4, 1997 WL 133778, ADMIN. MAT. 40616 (EPA Mar. 24, 1997) (final order), aff'g No. RCRA VII-91-H-0037, 1994 WL 730509. ADMIN. MAT. 47009 (EPA Dec. 12, 1994) (initial decision).

6. Although EPA commenced its administrative enforcement action prior to the state of Missouri's filing of a civil lawsuit against Harmon, the state of Missouri's administrative enforcement efforts had been ongoing for many months prior to EPA's commencement of its enforcement action. Moreover, EPA continued to prosecute its action even after the entry of the consent decree in state court. Id. at 897, 29 ELR at 21412. For these reasons, Harmon appropriately fits within the consecutive enforcement set of cases.

7. Id.

8. Id. at 896, 29 ELR at 21412. Approximately 30 gallons per month were dumped behind the facility during this period. 19 F. Supp. 2d at 990, 29 ELR at 20035.

9. Harmon, 19 F. Supp. 2d at 990, 29 ELR at 20036. Shortly after discovering the unlawful disposal:

Harmon changed its assembly process to a state of the art technology using a nonhazardous cleaning material to remove flux from equipment being assembled. As a result, Harmon ceased generating hazardous waste. Harmon contends that the change to its assembly process had an initial cost exceeding $ 800,000 and has ongoing annual costs of approximately $ 125,000.

Id.

10. Id. Harmon discovered the unlawful disposal in November 1987. After hiring consultants to investigate the impact of the disposal on the soils and groundwater, Harmon met with the MDNR in June 1988 and provided the MDNR with a copy of the Phase I Report. Id.

11. Id. "The State of Missouri was authorized to administer its own hazardous waste program on November 20, 1985." Id. See also 50 Fed. Reg. 47740 (Nov. 20, 1985).

12. Harmon, 19 F. Supp. 2d at 990, 29 ELR at 20036. Harmon claimed that it spent over $ 1.4 million on the site investigation and cleanup plan as of early 1994 and that it anticipated additional spending in excess of $ 500,000 over the 30-year post-closure period. Id. at 991, 29 ELR at 20036.

13. Harmon, 191 F.3d at 897, 29 ELR at 21412. In the decree, the MDNR released Harmon from any claim for monetary penalties based on Harmon's prompt self-reporting of the violation and its co-operation in all aspects of the investigation. Id.

14. EPA issued its complaint on September 30, 1991, three years after Harmon reported the release to the MDNR and began working with the MDNR on developing and implementing an appropriate investigation plan, and shortly after Harmon and the MDNR had begun working on drafts of a consent decree, but 18 months prior ro the filing of the judicially approved consent decree in Missouri state court. Harmon, 19 F. Supp. 2d at 991-92, 29 ELR at 20036-37.

15. In re Harmon Elecs., Inc., No. RCRA VII-91-H-0037, 1994 WL 730509, ADMIN. MAT. 47009 (EPA Dec. 12, 1994) (initial decision). The ALJ imposed gravity-based penalties for each of the four counts in EPA's complaint: Count 1—operation of a hazardous waste landfill without a permit or interim status—$ 141,050; Count 2—failure to have a groundwater monitoring program for a hazardous waste landfill—$ 135,005; Count 3—failure to establish and maintain financial assurance for closure and post-closure of its landfill—$ 251,875; and Count 4—failure to timely notify EPA and/or register as a hazardous waste generator—$ 52,714. In addition, the ALJ imposed an economic benefit penalty of $ 6,072, designed to recapture any economic gain Harmon experienced by failing to comply with the RCRA regulations. Id. at *1, *30.

16. In re Harmon Elecs., Inc., RCRA Appeal No. 94-4, 1997 WL 133778, ADMIN. MAT. 40616 (EPA Mar. 24, 1997) (final order).

17. Harmon, 191 F.3d at 897, 29 ELR at 21412 (citing Harmon, 19 F. Supp. 2d at 988, 29 ELR at 20035).

18. 467 U.S. 837, 842-45, 14 ELR 20507, 20508 (1984).

19. Id.

20. Id. RCRA § 3008(a)(2) provides:

In the case of a violation of any requirement of [the RCRA] where such violation occurs in a State which is authorized to carry out a hazardous waste program under section [3006] of the title, the [EPA] shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section.

42 U.S.C. § 6928(a)(2), ELR STAT. RCRA § 3008(a)(2).

21. Harmon, 191 F.3d at 897, 29 ELR at 21412.

22. Id. For a discussion of the extent to which EPA may be able to enforce state law but seek federal penalties, see Jerry Organ, Environmental Federalism Part I: The History of Overfiling Under RCRA, the CWA, and the CAA Prior to Harmon, Smithfield, and CLEAN, 30 ELR 10615, 10620 n.50 (Aug. 2000) [hereinafter Part I] (discussing United States v. Elias, No. 98-0070-E-BLW, 30 ELR 20558 (D. Idaho Apr. 26, 2000), which found that EPA could pursue a criminal enforcement action seeking to impose federal penalties for violations of state law in a state with an approved RCRA program when EPA's approval of the state program reserved to EPA the right to impose federal penalties).

23. Harmon, 191 F.3d at 897, 29 ELR at 21412.

24. Id. at 898-99, 29 ELR at 21413. Not surprisingly, these arguments closely follow the analysis contained in the General Counsel's opinion, discussed in Part I, supra note 22, 30 ELR at 10625-26 nn.110-21 and accompanying text.

25. Harmon, 191 F.3d at 899, 29 ELR at 21413 (citing Walker v. Dilworth, 2 U.S. 257, 259 (1796); Pelofsky v. Wallace, 102 F.3d 350, 353 (8th Cir. 1996)).

26. Id.

27. Id. For reasons discussed infra at notes 184-230 and accompanying text, the statement that "the administration and enforcement of the program are inexorably intertwined" may not be accurate under the CWA and the CAA.

28. Harmon, 191 F.3d at 899, 29 ELR at 21413.

29. Id.

30. Id.

31. Id. Notably, the Harmon court is adding a slight judicial gloss to the "notice" language. RCRA § 3008(a)(2) does not expressly provide that EPA must wait to see whether an authorized state will take action following notice from EPA. Rather, it simply provides that EPA "shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section." 42 U.S.C. § 6928(a)(2), ELR STAT. RCRA § 3008(a)(2) (emphasis added). For a comparison of this notice language with notice language in the CWA and the CAA, see infra notes 190-94 and the accompanying text (CWA) and notes 213-17 and the accompanying text (CAA).

32. Harmon, 191 F.3d at 899-900, 29 ELR at 21413. EPA based this argument on the section heading, which reads "Effect of State Permit." Id. at 899, 29 ELR at 21413.

33. Id. at 899-900, 29 ELR at 21413. RCRA § 3006(d) provides that "any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the [EPA] under this subchapter." 42 U.S.C. § 6926(b), ELR STAT. RCRA § 3006(b).

34. Harmon, 191 F.3d at 900, 29 ELR at 21413.

35. Id. RCRA § 7002(b)(1)(B) precludes a citizen from commencing an action "if the [EPA] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance. . . ." 42 U.S.C. § 6972(b)(1)(B), ELR STAT. RCRA § 7002(b)(1)(B).

36. Harmon, 191 F.3d at 901, 29 ELR at 21414.

37. Id. (emphasis in original). Notably, in contrast with the cases discussed in Part I, supra note 22, 30 ELR at 10618 n.29, which acknowledged dual enforcement possibilities and focused on abstention or preemption as means of addressing conflicts resulting from dual enforcement, this statement implicitly suggests that the first entity, state or federal, to pursue an enforcement action, might be entitled to exclusive jurisdiction. This harkens back to the Sixth Circuit's statement in Buckeye Power, Inc. v. EPA, 481 F.2d 162, 3 ELR 20634 (6th Cir. 1973), discussed in Part I, supra note 22, 30 ELR at 10617-18 nn.25-29, in which the Sixth Circuit assumed the first agency to file would obtain exclusive jurisdiction. For a discussion of the CWA and the CAA citizen suit language, see infra notes 188-89 and the accompanying text (CWA) and notes 211-12 and the accompanying text (CAA).

38. Harmon, 191 F.3d at 901, 29 ELR at 21414. First, the House Report states: "'It is the Committee's intention that the States are to have primary enforcement authority and if . . . a State wishes to take over the hazardous waste program it is permitted to do so, provided that the State laws meet the Federal minimum requirements for both administering and enforcing the law.'" Id. (quoting H.R. REP. No. 94-1491, at 24 (1976), reprinted in 1976 U.S.C.C.A.N. 6262). Second, the House Report states that EPA "is not prohibited from acting in those cases where the state fails to act, or from withdrawing approval of the state hazardous waste plan and implementing the federal hazardous waste program." Id. (quoting 1976 U.S.C.C.A.N. 6269). Third, the House Report states that EPA "after giving appropriate notice to [an authorized state] . . . that violations of this Act are occurring and the state [is] is failing to take action against such violations, is authorized to take appropriate action against those persons in such state not in compliance with the hazardous waste title." Id. (quoting 1976 U.S.C.C.A.N. 6270).

39. Id. The Eighth Circuit further stated:

The EPA argues that the statute and legislative history support its contention that it may initiate an enforcement action if it deems the state's enforcement action inadequate. The EPA's argument misses the point. Without question, the EPA can initiate an enforcement action if it deems the state's enforcement action inadequate. Before initiating such an action, however, the EPA must allow the state an opportunity to correct its deficiency and the EPA must withdraw its authorization. . . . Consistent with the text of the statute and its legislative history, the EPA also may initiate an enforcement action after providing notice to the state when the authorized state fails to initiate any enforcement action. . . . . The EPA may not, however, simply fill the perceived gaps it sees in a state's enforcement action by initiating a second enforcement action without allowing the state an opportunity to correct the deficiency and then withdrawing the state's authorization.

Id. at 901-02, 29 ELR at 21414 (emphasis added). The Eighth Circuit specifically distinguished the holding in Wyckoff Co. v. EPA, 796 F.2d 1197, 16 ELR 20866 (9th Cir. 1986) noting that "Wyckoff did not involve overfiling and competing enforcement actions." Id. at 902 n.4, 29 ELR at 21414 n.4. In a recent article, Gary Jonesi criticized the Eight Circuit's analysis as being internally inconsistent. Jonesi notes that if, after deeming the state's enforcement action inadequate, EPA has to allow the state an opportunity to correct its deficiency and then withdraw the state's authorization before it can commence its own enforcement action, then under the Eighth Circuit's res judicata analysis, EPA will not be able to bring an enforcement action against the offender, but would only be able to pursue subsequent enforcement actions against other offenders following withdrawal. Gary A. Jonesi, Environmental Enforcement Becomes Federalism's Hazardous Battleground, Daily Env't Rep. (BNA), May 8, 2000, at B-5.

40. Harmon, 191 F.3d at 902, 29 ELR at 21414.

41. Id.

42. Id. Notably, about a week prior to the Eighth Circuit's decision in Harmon, the Tenth Circuit issued an opinion in United States v. Power Engineering Co., 191 F.3d 1224, 30 ELR 20067 (10th Cir. 1999), in which it discussed in dicta the overfiling issue under RCRA. "As noted, the district court stated, and neither party challenges, that EPA may bring an overfile action under RCRA to enforce state implementing regulations." Id. at 1233, 30 ELR at 20070. "We assume without deciding for purposes of this appeal . . . that the EPA may [enforce the state's hazardous waste regulations] even after the state has taken its own [administrative] enforcement action." Id. at 1229, 30 ELR at 20068 (acknowledging that the district court, in Harmon Indus., Inc. v. Browner, 19 F. Supp. 2d 988, 994, 996, 29 ELR 20035, 20035, 20038 (W.D. Mo. 1998), held that EPA could not overfile).

43. Harmon, 191 F.3d at 902, 29 ELR at 21414.

44. Id.

45. Id. (quoting Prentzler v. Schneider, 411 S.W.2d 135, 138 (Mo. 1966) (en banc)).

46. Id. at 902-03, 29 ELR at 21414. The court stated:

In both the state court action and the EPA administrative enforcement action, the parties sought to enforce a hazardous waste program pursuant to the RCRA. In both the state action and the agency action, the complaint named Harmon as the defendant. In addition, both actions involved the enforcement of regulations based upon identical facts and legal principles.

Id.

47. Id. at 903, 29 ELR at 21414 (citing United States v. Gurley, 43 F.3d 1188, 1197, 25 ELR 20486, 20489-90 (8th Cir. 1994), cert. denied, 516 U.S. 817 (1995)).

48. Id.

49. Id.

50. Id. (citing Hickman v. Electronic Keyboarding, Inc., 741 F.2d 230, 233 (8th Cir. 1984)).

51. 440 U.S. 147 (1979).

52. Harmon, 191 F.3d at 903, 29 ELR at 21414-15.

53. Id.

54. Id. at 903-04, 29 ELR at 21415.

55. Id. at 904, 29 ELR at 21415 (citing United States v. ITT Rayonier, 627 F.2d 996, 1002, 10 ELR 20945, 20948 (9th Cir. 1980)).

56. Id.

57. 191 F.3d 516, 30 ELR 20076 (4th Cir. 1999). The Fourth Circuit filed the Smithfield decision on September 14, 1999, id., while the Eighth Circuit filed the Harmon decision on September 16, 1999. Harmon, 191 F.3d at 897, 29 ELR at 21412.

58. Smithfield, 191 F.3d at 520, 30 ELR at 20076.

59. Id.

60. Id. at 521, 30 ELR at 20077. Smithfield appealed the modification because it believed the modification to be technologically infeasible. Id. at 520, 30 ELR at 20076-77.

61. Id.

62. Id. The permit did not incorporate any of the extensions reflected in the prior administrative orders.

63. Id. at 522, 30 ELR at 20077. Smithfield's restraint in challenging the permit may have resulted from an October 10, 1991, letter from Debra Thompson, an environmental engineer with the VSWCB, in which she responded to Smithfield's concerns regarding inconsistencies between the draft permit and the administrative orders by "stating that 'any special order agreementsrelative to compliance with water quality standards, the Permit regulation and associated studies that have been approved by the Board take precedence over the . . . Permit." Id. Notably, EPA received a copy of the letter from Thompson to Smithfield. Id.

64. Id.

65. Id. Both parties acknowledged "that the amendment did not alter, modify, or amend any other term or condition of the May 1991 Order or of the 1992 Permit." Id.

66. Id. Because of delays in completing the pipeline and the HRSD upgrade, one of Smithfield's outfalls was not connected to the HRSD until June 1996, while the other was not connected until August 1997. Id.

67. Id. at 522-23, 30 ELR at 20077. EPA claimed that Smithfield did not appear in the QNCRs sooner because of Smithfield's false and inaccurate reporting and the VSWCB's willingness to permit Smithfield to continue to exceed its 1992 Permit limits. Id.

68. Id. at 523, 30 ELR at 20078.

69. Id. The Virginia complaint, for instance, did not include claims for violations of the phosphorous limitations, false reporting, or late reporting. Id.

70. Id.

71. Id. CWA § 309(g)(6)(A)(ii) provides that EPA shall not pursue a civil penalty under subsection 309(d) for violations "with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection." 33 U.S.C. § 1319(g)(6)(A)(ii), ELR STAT. CWA § 309(g)(6)(A)(ii).

72. Smithfield, 191 F.3d at 523, 30 ELR at 20078.

73. Id. at 523-24, 30 ELR at 20078. Notably, when the commonwealth appealed the circuit court's decision to the Supreme Court of Virginia, the Supreme Court reversed and vacated the judgment, finding that because of "the Commonwealth's continued agreement with Smithfield that the May 1991 Orders modified the phosphorous limitations set out in the 1992 Permit." Smithfield "failed to demonstrate a justiciable controversy between the parties." Treacy v. Smithfield Foods, Inc., 500 S.E.2d 503, 507 (1998).

74. Smithfield, 191 F.3d at 524, 30 ELR at 20078.

75. Id.

76. Id.

77. Id. First, the Fourth Circuit highlighted Smithfield's admission "that the May 1991 Order explicitly states that 'nothing herein shall be construed as altering, modifying, or amending any term or condition contained in [the] Permit." Id. The Fourth Circuit also described the district court's reasoning, noting that the district court "found it illogical that correspondence written before the 1992 permit was finalized could change the terms of a subsequently-issued document," and concluded that none of the orders issued subsequent to the 1992 Permit could have modified the 1992 Permit because the orders were not issued in compliance with the procedures for modifying a permit. Id. (quoting United States v. Smithfield Foods, Inc., 965 F. Supp. 769, 788 (E.D. Va. 1997)).

78. Id.

79. Id. at 525, 30 ELR at 20078. Virginia's enforcement scheme was not sufficiently comparable to CWA § 309(g) because it did not authorize the assessment of administrative penalties without the permission of the violator and because it "did not provide adequate procedures for notice and public participation." Id. Although Virginia amended its statute in 1996 to authorize administrative penalties without the consent of the violator and to allow citizens to seek judicial review of VWSCB orders, the court concluded that the timing of these amendments made them irrelevant to the CWA § 309(g)(6)(A) analysis. Id. at n.2 & n.3, 30 ELR at 20078 n.2 & n.3.

80. 484 U.S. 49, 18 ELR 20142 (1987).

81. CWA § 510 authorizes states to adopt effluent limitations more stringent than the CWA requires. 33 U.S.C. § 1370, ELR STAT. CWA § 510.

82. Smithfield, 191 F.3d at 525, 30 ELR at 20078. Smithfield emphasized the Gwaltney Court's recognition "that there would be cases under the CWA in which it would be counter-productive to assess penalties against violators who had agreed to take corrective actions not otherwise required." Id. (citing Gwaltney, 484 U.S. at 60-61, 18 ELR at 20144-45). Smithfield further argued that Virginia's decision to impose more stringent standards consistent with its authority under CWA § 510 would be worthless if Virginia is precluded from implementing and enforcing the more stringent standards in the way it sees fit. Id.

83. Id. at 526, 30 ELR at 20079 (citing 42 U.S.C. § 1319(a)(1) & (3), ELR STAT. CWA § 309(a)(1) & (3)).

84. Id.

85. No. 97-6073-CV-SJ-6, 2000 WL 220464 (W.D. Mo. Feb. 23, 2000).

86. Id. at *1.

87. Id.

88. Id. (citing MO. REV. STAT. § 644.026.1(13) (1999); 46 Fed. Reg. 32069-70 (June 19, 1981)). EPA also has approved Missouri's State Implementation Plan under the CAA which is enforced through the Missouri Air Conservation Law, MO. REV. STAT. § 643.010 et seq. See 40 C.F.R. Part 52, Subpart AA, §§ 52.1319-52.1340 (1999).

89. CLEAN, 2000 WL 220464, at *1. The Missouri Clean Water Law § 644.076 Mo. Rev. Stat., is Missouri's state legislative analogue to the federal CWA. Id.

90. Id.

91. Michael Mansur, Hog Farm OKs Deal on Waste Issue, KANSAS CITY STAR, July 30, 1999, at A1. PSF also agreed to pay additional fines of $ 350,000 if it failed to comply with its obligations regarding the installation of the new technologies.

92. CLEAN, 2000 WL 220464, at *1.

93. Id. Although the United States had intervened in the case as a plaintiff, the court specifically noted that PSF was not seeking summary judgment against the federal government's claims. "Various conclusions reached by the court might speak to whether the Government's case is barred, and the parties may want to invoke this order if summary judgment is later sought against the United States. As of now, however, the question is premature." Id. at *2 n.2. The question appears likely to be raised given EPA's recent efforts to step up enforcement, including issuing PSF a notice of violation under the CAA. Michael Mansur, Federal Actions Pressure Hog Farms—Notice of Violation Cites Clean Air Act, KANSAS CITY STAR, Apr. 29, 2000, at A1.

94. CLEAN, 2000 WL 220464, at *2.

95. Id. at *3 (quoting Prentzler v. Schneider, 411 S.W.2d 135, 138 (Mo. 1966) (en banc) and Harmon Industries, Inc. v. Browner, 191 F.3d 894, 902, 29 ELR 21412, 21414 (8th Cir. 1999)). The court further noted that "Missouri courts accord the same res judicata effect to consent judgments as to litigated ones." Id. at *3 (citing Gunning v. State Farm Mut. Auto Ins. Co., 598 S.W.2d 479, 481 (Mo. Ct. App. 1980)). See William Daniel Benton, Application of Res Judicata and Collateral Estoppel to EPA Overfiling, 16 B.C. ENVTL. AFF. L. REV. 199, 240-47 (1988) (discussing application of res judicata to final judgments, consent decrees, and administrative decisions).

96. CLEAN, 2000 WL 220464, at *3. The court acknowledged that the first and second elements are "largely overlapping" and essentially merged them into the question about whether the two lawsuits were about the same thing. The court further noted that the parties did not dispute the fourth element—the identity of the person against whom the claim is made—as PSF was the defendant in both actions. Id.

97. Id. at *4 (citing Lay v. Lay, 912 S.W.2d 466, 472 (Mo. 1996) (en banc)).

98. Id. at *4. The court discussed this in the context of separate disputes among litigants: "If Smith hits Jones with his car, Jones may not sue separately for negligence and battery. . . . But if Smith hits Jones with his car on one day, then throws eggs at Jones's house the next, a suit for negligence/battery will not bar a later action for property damage." Id. (citations omitted).

99. Id. at *5 (citing Save Our Bays & Beaches v. City & County of Honolulu, 904 F. Supp. 1098, 1125, 26 ELR 20595, 20607-08 (D. Haw. 1994) and Maryland Waste Coalition v. SCM Corp., 616 F. Supp. 1474, 1483, 16 ELR 20158, 20162-63 (D. Md. 1985)).

100. Id. at *5-*7. The court described CLEAN's first count as referencing seven different occasions on which PSF constructed and operated pollution sources without the necessary permits. By contrast, the court described the state's fifth count as alleging that PSF lacked an operating permit for one facility. Id. at *5.

The court described CLEAN's second count as referencing numerous violations of permits PSF had obtained, including 31 separate major discharges, 12 separate overflows resulting from containment failure, 28 separate releases from ruptured pipes, and 6 instances of stormwater runoff. Once again, the court described the state's claims as "considerably narrower"—with the first count addressing two instances of releases at one facility and the fourth count referencing deficient construction of piping systems resulting in numerous unspecified releases. Moreover, the court noted that the state's complaint did not encompass ongoing releases which were addressed in CLEAN's complaint. Id. at *6.

The court described CLEAN's third count as referencing the over-application of animal waste on land creating an unacceptable risk of stormwater runoff. Although the court noted that the state's third count "appears roughly similar in scope, alleging that PSF applied more than the allowable quantity of effluent to certain enumerated fields 'in numerous instances,'" it fails to address ongoing violations resulting in the two counts concerning "different violations at different times—and thus (at least some) different 'transactions.'" Id. at *7.

The court described CLEAN's fourth count as alleging that PSF's lagoons fail to meet the permitted seepage standards and noted that the state's complaint did not contain any counterpart. Id.

The court described CLEAN's fifth count as alleging "that PSF failed to obtain CAA permits for the construction and operation of air contaminant sources," again noting that the state's petition contained no allegations of violations of the CAA or analogous state law. Id. Nonetheless, PSF argued that the state's petition contained a nuisance claim that subsumed CLEAN's CAA claims. The court found this argument unavailing, noting that it is not clear whether the complaints are "speaking of the same pollutants, the same facilities that emit them, or the same dates." Id. n.8.

101. Id. at *6 (citing King Gen. Contractors v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo. 1991) (en banc)).

102. Id.

103. Id. (citing Healy v. Moore, 100 S.W.2d 601, 605 (Mo. Ct. App. 1936) ("This rule applies to every question falling within the purview of the original action, both in respect to matters of claim and defense, but it does not extend to matters which might have been litigated under issues formed by additional pleadings.")).

104. Id.

105. Id. at *7.

106. Id. (citing CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4443, at 386-87 (1988); Larken, Inc. v. Wary, 189 F.3d 729, 733 n.9 (8th Cir. 1999) (res judicata did not extend to unasserted claims, where consent judgment did not manifest such intent)).

107. Id. at *8. Specifically, the Consent Judgment released:

PSF not only from those claims asserted in the State's Petition (including certain effluent spills specifically referenced by the Consent Judgment), but also "any and all" claims "of whatever kind and nature" pertaining to the Missouri Clean Water Law, the Missouri Air Conservation Law, the federal Clean Water Act, and the federal Clean Air Act which have or could be asserted based upon "facts known to the State of Missouri . . . at the time of execution of this Consent Judgment".

Id.

108. Id.

109. Id. The court noted that "the State could not have 'known' in July 1999, for example, that PSF was violating its NPDES permits by dumping excessive effluent into the State's waterways in the months that followed." Id.

110. Id.

111. Id.

112. Id. The court drew two questionable inferences from the contents of the complaint and Consent Judgment. First, the court stated: "The State's assertion of but a single violation suggests its ignorance of the others." Id. Although this is one plausible inference, it is no more plausible than the inference that the state knew of the other violations but exercised prosecutorial discretion in limiting the number of violations it alleged in its complaint. Second, the court stated:

The record presents circumstantial evidence that casts doubt upon PSF's factual claim. The State broadly released all "known" claims against PSF, in exchange for no consideration over and above that secured for releasing those claims that the State had specifically asserted, . . . suggesting that the State had solid knowledge about little beyond what it alleged.

Id. n.10. Although an argument can be made that the state did not receive additional consideration for releasing all "known" claims, see extended discussion of the "consideration" question at *13-*14, discussed infra at notes 129-35 and accompanying text, the court acknowledges that PSF may have been willing to agree to the "consideration" reflected in the Consent Judgment only because of the broadly phrased release in the Consent Judgment. Id. at *14 n.24. More significantly, the court again highlights one possible inference—that the lack of additional consideration suggests "that the State had solid knowledge about little beyond what it alleged"—when another inference is equally plausible—that the state knew of other violations and viewed them as being adequately addressed by the penalty and affirmative remedial obligations to which PSF agreed in the Consent Judgment.

113. Id. at *9. Although the "notice" identified spills CLEAN had become aware of by reviewing records of the MDNR, the court again highlighted that some of the spills at issue in the CLEAN suit were not reported to the MDNR at the time of the ConsentJudgment because some spills didn't occur until after the Consent Judgment. Id.

114. Id. The court recognized that PSF might be able to produce additional information regarding the state's knowledge to support its res judicata argument. Id. n.12.

115. Id. at *9-*10. For a description of the third through fifth counts, see supra note 100.

116. Id. at *10. The parties and the court appear to miss what should perhaps be an obvious point. Not only did the state receive the jurisdictional "notice" CLEAN had to provide to allow it to commence a citizen suit, but the state also had record notice, i.e., constructive notice, of the allegations in CLEAN's complaint itself, which was a public record. Moreover, PSF likely could find a state employee who would be obligated to testify truthfully that he or she, in fact, had read the allegations set forth in CLEAN's complaint. Thus, although the court correctly distinguishes claims relating to events that transpired after the entry of the Consent Judgment, the court's very narrow interpretation of what historical claims/transactions are covered by the Consent Judgment probably misses the mark.

117. Id. (citing Dilallo v. City of Maryland Heights, 996 S.W.2d 675, 677 (Mo. Ct. App. 1999) and Harmon Industries, Inc. v. Browner, 191 F.3d 894, 903, 29 ELR 21412, 21415 (8th Cir. 1999)).

118. CLEAN, 2000WL 220464, at *11.

119. Id.

120. Id. (citing 33 U.S.C. §§ 1319(g)(6)(A)(ii) and 1365, ELR STAT. FWPCA §§ 309(g)(6)(A)(ii) and 505). The court rejected PSF's argument that "diligent prosecution" is irrelevant to the application of res judicata, noting that determining the finality of the state court decision depends upon whether the parties are identical—a statutory question that requires assessment of whether the state "diligently prosecuted" the claims at issue. Id. at *12. For further discussion of the relationship between "diligent prosecution" and res judicata, see infra notes 247-57 and accompanying text.

121. CLEAN, 2000 WL 220464, at *11. The court identified several reasons for this presumption:

deference to state (and federal) decision-making and enforcement authority, protection of litigants' interest in the finality of their cases, preservation of the incentives that polluters might have to settle charges with state or federal authorities, and recognition of the limited and interstitial role that citizen suits occupy in the overall enforcement regime.

Id. (citing, among others, Williams Pipe Line Co. v. Bayer Corp., 964 F. Supp. 1300, 1321-24 (S.D. Iowa 1997); Arkansas Wildlife Fed'n v. ICI Ams., Inc., 29 F.3d 376, 380, 24 ELR 21573, 21575 (8th Cir. 1994)). Notably, the court did not discuss thoroughly the manner in which other courts have treated this presumption. Although the CLEAN court cites Glazer v. American Ecology Envtl. Servs. Corp., 894 F. Supp. 1029, 1036-37, 26 ELR 20108, 20111-12 (E.D. Tex. 1995) for the proposition that state prosecutions are presumed diligent, it failed to note the language in Glazer suggesting that the "presumption may be overcome only with 'persuasive evidence that the state has engaged in a pattern of conduct in its prosecution of the defendant that could be considered dilatory, collusive or otherwise in bad faith.'" Id. at 1037, 26 ELR at 20111. (quoting Connecticut Fund for the Env't v. Contract Plating Co., 631 F. Supp. 1291, 1293, 16 ELR 20667, 20668 (D. Conn. 1986)). See infra notes 247-57 and accompanying text (discussing the impact of this analysis on the privity question).

122. CLEAN, 2000 WL 220464, at *11. The court supported this statement by reference to the legislative history of the CWA:

It should be emphasized that if the agency had not initiated abatement proceedings following notice or if the citizen believed efforts initiated by the agency to be inadequate, the citizen might choose to file the action. In such case, the courts would be expected to consider the petition against the background of the agency action and could determine that such action would be adequate to justify suspension, dismissal, or consolidation of the citizen petition. On the other hand, if the court viewed the agency action as inadequate, it would have jurisdiction to consider the citizen action notwithstanding any pending agency action.

Id. at *13 (quoting Federal Water Pollution Control Act Amendments of 1972, S. REP. No. 92-414 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3746).

123. Id. (citing Frilling v. Village of Anna, 924 F. Supp. 821, 837, 26 ELR 21356, 21363-64 (S.D. Ohio 1996)). The court also contrasted Jones v. City of Lakeland, 175 F.3d 410, 414, 29 ELR 21108, 21109 (6th Cir. 1999) ("It is clear that the [state] is attempting to remedy the specific problems plaintiffs cite in their complaint."); and Murray v. Bath Iron Works Corp. 867 F. Supp. 33, 44, 25 ELR 20547, 20551-52 (D. Me. 1994) (citizen suit under the CWA not precluded by general state abatement action not specifically targeted toward discharges to water).

124. CLEAN, 2000 WL 220464, at *13 (citing, among others, Williams Pipe Line, 964 F. Supp. at 1324-25 and Arkansas Wildlife Fed'n, 29 F.3d at 380, 24 ELR at 21575).

125. Id. (citing, among others, Atlantic States Legal Found. v. Eastman Kodak Co., 933 F.2d 124, 127, 21 ELR 21047, 21 ELR 21048-49 (2d Cir. 1991)).

126. Id. (citing Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 890 F. Supp. 470, 491-92, 26 ELR 20457, 20466-67 (D.S.C. 1995), rev'd on other grounds, 149 F.3d 303, 28 ELR 21444 (4th Cir. 1998), rev'd, 120 S. Ct. 693, 30 ELR 20246 (2000) and Comfort Lake Ass'n v. Dresel Contracting, Inc., 138 F.3d 351, 357, 28 ELR 20604, 20606 (8th Cir. 1998)).

127. Id.

128. Id.

129. Id.

130. Id. (citing Glazer v. American Ecology Envtl. Servs. Corp., 894 F. Supp. 1029, 1035-37, 26 ELR 20108, 20110-12 (E.D. Tex. 1995) (a broadly phrased release in a CAA and RCRA enforcement action was found not to constitute an enforcement action to require compliance with the standard under the CAA's citizen suit provision)).

131. Id. at *14. The court compared language of the Consent Judgment with language of a prior draft of the Consent Judgment to reach its conclusion that "PSF may have paid no penalties for the purportedly 'resolved' violations." The court reached this conclusion, however, even though it acknowledged that "it cannot be assumed that PSF was willing to consent to a limited release," and that it may have been "unlikely" that PSF would have done so. Id. n.24.

132. Id. at *14. This is somewhat misleading for two reasons. First, in concluding that the state did diligently prosecute the claims specifically identified in the petition and the Consent Judgment, the court did not focus on whether the Consent Judgment "subjected PSF to any new legal obligations it did not otherwise bear," nor did it ask whether the Consent Judgment "ensures that PSF will comply with the standards at issue in CLEAN's lawsuit." Id. at *13. Indeed, by noting that the state can diligently prosecute even if it does not establish a firm date by which a polluter will comply with a specific standard, the court suggested that these considerations were not essential to the determination of whether a state diligently prosecuted a claim. Id. (citing Williams Pipe Line Co. v. Bayer Corp., 964 F. Supp. 1300, 1324 (S.D. Iowa 1997), Jones v. City of Lakeland, 175 F.3d 410, 414, 29 ELR 21108, 21109 (6th Cir. 1999)). Second, just as one can surmise that PSF would have been unlikely to pay the penalties provided for in the Consent Judgment with only a limited release, one can also surmise that PSF would not have agreed to embark on a $ 20 million Capital Improvement Program if it did not believe that the investment was designed to address all of the claims identified in the Consent Judgment, including the unspecified claims based on facts known to the state at the time of the execution of the Consent Judgment.

133. Id. at *14.

134. Id. In response to a separate and distinct argument, the court elaborated somewhat on what diligent prosecution means. The court noted that in entering the Consent Judgment, the state court judge found "that this Consent Judgment does protect the public interest and furthers the purposes of the Federal Clean Water Act, Federal Clean Air Act and Missouri environmental laws, including the Missouri Clean Water Law and the Missouri Air Conservation Law." Id. at *15. Responding to these findings, the court stated: "whether a violation was 'diligently prosecuted' within the meaning of a particular federal statute is a distinct question from whether a settlement's terms are generally fair to the people of Missouri—as well as from whether the settlement broadly 'furthers' the statutes at issue." Id.

135. Id. In reaching this conclusion, the court specifically rejected PSF's argument that the statutory remedy for lax enforcement is withdrawal of a state's authority to implement the federal statutory regime rather than case-by-case avoidance of res judicata, noting that withdrawal is a drastic remedy, that it is not exclusive, and that the language of CWA § 309(g)(6)(A)(ii) suggests that the res judicata determination should be based on the "diligent prosecution" standard. Id. n.26.

136. If one looks at the facts of BKK, see Part I, supra note 22, 30 ELR at 10622-23 nn.65-85 and accompanying text, Martin, see Part I, supra note 22, 30 ELR at 10624-25 nn.90-105 and accompanying text, Beaumont, see Part I, supra note 22, 30 ELR at 10627-28 nn.134-47 and accompanying text, and Harmon, see supra notes 5-56 and accompanying text, for example, one has to ask whether these really are appropriate cases on which EPA should be investing its scarce resources in an effort to establish the principle of its unfettered discretion to overfile under RCRA. Indeed, in Martin, the state of Florida actually indicated to EPA that there were much more appropriate targets for its enforcement efforts, but EPA didn't listen. See Part I, note 22, 30 ELR at 10625 n.103. It is precisely because EPA, with some frequency, pursues overfiling enforcement efforts that seem somewhat ill-advised, indeed somewhat inconsistent with EPA's own guidance, see Part I, supra note 22, 30 ELR at 10616 n.11 (citing U.S. EPA, GUIDANCE ON RCRA OVERFILING (May 19, 1986) (available from ELR Document Service, ELR Order No. AD-3708)), that regulated parties are arguing for the protection offered by an interpretation of RCRA (and other statutes) under which EPA cannot overfile when a state with an approved program has taken enforcement action. Were EPA more judicious in exercising its enforcement authority in an overfiling context—not to do so with less frequency, but to make sure more of the cases look like Smithfield than like Harmon—much of the regulated community's concern about overfiling likely would be alleviated.

137. This trend is already becoming evident. CLEAN provides one example of an instance in which a party sought to apply the Harmon court's res judicata analysis to preclude continuation of a preexisting citizen suit. As noted supra note 93, the issue of EPA's authority to overfile is almost certain to be argued in CLEAN. United States v. Power Eng'g Co., 191 F.3d 1224, 30 ELR 20067 (10th Cir. 1999), is another case in which overfiling under RCRA is mentioned. In addition, EPA is arguing about the impact of Harmon in three CAA enforcement cases. See United States v. City of Youngstown, No. 4:98CV2438 (N.D. Ohio Oct. 26, 1998); United States v. LTV Steel Co., No. 1:98CV3012 (N.D. Ohio Dec. 29, 1998); United States v. Solutia Inc., No. 00-CV-046-D (D. Wyo. Mar. 7, 2000), cited in Jonesi, supra note 39, at B-7 n.45. The issues are coming up in administrative cases as well. See In re Davis-Monthan Air Force Base, No. CAA-09-98-17, 1999 WL 1120333 (EPA Nov. 19, 1999) (order denying motion to dismiss) (Harmon overfiling raised in context of asbestos enforcement action); In re Bil-Dry Corp., No. RCRA-III-264, 1998 WL 743914 (EPA Oct. 8, 1998) (initial decision) (declining to adopt the district court's rationale in Harmon).

138. See Part I, supra note 22, 30 ELR at 10615 n.4 and accompanying text.

139. See, e.g., 42 U.S.C. § 7416, ELR STAT. CAA § 116 (providing that except for preemption of certain state regulation of moving sources, "nothing in this chapter shall preclude or deny the right of any State or any political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution," and further providing that no state or political subdivision may adopt or enforce any emission standard or limitation which is less stringent than a standard or limitation in effect under an applicable state implementation plan or under sections CAA §§ 111 or 112; 33 U.S.C. § 1370, ELR STAT. FWPCA § 510) (similarly authorizing states to adopt or enforce standards or limitations that are more stringent than, but not less stringent than, any effluent limitation, effluent standard, prohibition, pretreatment standard, or standard of performance in effect under the CWA).

140. See ENVIRONMENTAL LAW INST., FEDERAL OVERSIGHT OF AUTHORIZED STATE ENVIRONMENTAL PROGRAMS: REFORMING THE SYSTEM 4-6 (1995).

141. See Part I, supra note 22, 30 ELR at 10615 n.5 and accompanying text.

142. According to the General Counsel's Opinion, and the arguments EPA has made, the only legal significance associated with the approval of a state program under RCRA is that EPA has to provide notice to the states prior to bringing an enforcement action. See General Counsel's Opinion, discussed in Part I, supra note 22, 30 ELR at 10625 nn.110-21 and accompanying text; Harmon Indus., Inc. v. Browner, 191 F.3d 894, 897, 29 ELR 21412 (8th Cir. 1999). See also FEDERAL OVERSIGHT, supra note 140, at 4-6 (discussing the availability of some federal funds once a state has an approved program).

143. See Harmon, 191 F.3d at 897, 29 ELR at 21412; Beaumont I, discussed in Part I, supra note 22, 30 ELR at 10627 nn.134-37 and accompanying text; Martin I & II, discussed in Part I, supra note 22, 30 ELR at 10624-25 nn.90-103 and accompanying text; BKK I & II, discussed in Part I, supra note 22, 30 ELR at 10622-23 nn.65-85 and accompanying text.

144. In re Harmon Elecs., Inc., RCRA Appeal No. 94-4, 1997 WL 133778 at *7, ADMIN. MAT. 40616 (EPA Mar. 24, 1997) (final order).

145. See In re BKK Corp., RCRA Appeal No. 84-5, 1985 WL 57139 at *1, 2 E.A.D. 35 (EPA May 10, 1985) (final order) (available from the ELR Document Service, ELR Order No. ALJ-32) (BKK II).

146. See supra notes 18-30 and accompanying text (discussing statutory analysis in Harmon).

147. See supra notes 31-37 and accompanying text (discussing Harmon court's analysis of RCRA's notification provision). The statutory language and the legislative history provide more support for the Eighth Circuit's interpretation than for EPA's interpretation. EPA's purported limitations on "in lieu of" and "same force and effect" are unsupported by the language of the statute. Moreover, the General Counsel's reliance on the legislative history and the language of the CWA and the CAA is misguided. As the ALJ noted in In re Beaumont Co., No. RCRA-III-231, 1994 WL 711200, at *7-*8 (EPA Oct. 20, 1994) (order granting in part motion for accelerated decision) (Beaumont I), and as the Eighth Circuit acknowledged in Harmon, supra notes 38-39 and accompanying text, the legislative history supports the Eighth Circuit's interpretation not the General Counsel's interpretation. Further, the language of the CWA and CAA relating to federal-state relationships differs markedly enough that it is largely irrelevant to understanding what Congress meant by the "in lieu of" and "same force and effect" language in RCRA. See infra notes 184-230 and accompanying text.

148. See Part I, supra note 22, 30 ELR at 10622 nn.72-75 and 30 ELR at 10623 nn.78-85 and accompanying text (BKK I & II), 30 ELR at 10624-25 nn.98-109 and accompanying text (Martin I & II) and 30 ELR at 10627 nn.134-45 and accompanying text (Beaumont I).

149. See Part I, supra note 22, 30 ELR at 10625-26 nn.110-21 and accompanying text.

150. Jonesi, supra note 39, at B-4.

151. Harmon Industries, Inc. v. Browner, 191 F.3d 894, 897, 29 ELR 21412 (8th Cir. 1999) (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 842-45, 14 ELR 20507, 20508 (1984)).

152. See supra notes 18-42 and accompanying text.

153. See Jonesi, supra note 39, at B-4.

154. 804 F.2d 371, 382, 17 ELR 20215, 20220-21 (7th Cir. 1986); Part I, supra note 22, 30 ELR at 10622 nn.72-75 and 30 ELR at 10623 nn.78-85 and the accompanying text (discussing BKK I & II respectively) and 30 ELR at 10624-25 nn.98-109 (discussing Martin I & II).

155. Northside Sanitary Landfill, 804 F.2d at 382, 17 ELR at 20220-21; Part I, supra note 22, 30 ELR at 10622 nn.72-75 and 30 ELR at 10623 nn.78-85 and the accompanying text (discussing BKK I & II respectively) and 30 ELR at 10624-25 nn.98-109 (discussing Martin I & II).

156. Harmon, 191 F.3d at 899, 29 ELR at 21413.

157. Even though the ALJ imposed an economic benefit penalty of only $ 6,072—which quantifies the economic gain Harmon received from its failure to comply with RCRA, see supra note 15, the MDNR's enforcement efforts resulted in Harmon expending over $ 2 million to change its manufacturing process and investigate the site. See supra notes 9-12. Given the "penalty" embedded within Harmon's investigative costs, it would seem quite reasonable and appropriate that the MDNR did not seek additional penalties from Harmon.

158. As discussed supra note 39 and accompanying text, EPA's ability to take enforcement action when a state takes adequate enforcement action may be constrained by res judicata arguments. But a court willing to interpret RCRA to allow overfiling when a state takes inadequate enforcement action will likely apply the principles of res judicata much like the court did in CLEAN such that it does not operate as a bar to the EPA enforcement action.

159. General Counsel's Opinion, cited in In re Martin Elecs., Inc., No. RCRA-84-45-R, 1986 WL 69038, at *3-*5 (EPA July 28, 1986) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-82).

160. Harmon, 191 F.3d at 899, 29 ELR at 21413.

161. See Part I, supra note 22, 30 ELR at 10625-26 nn.110-21 and accompanying text (discussing General Counsel's opinion) and supra notes 38-40 and accompanying text (discussing Eighth Circuit's analysis in Harmon).

162. EPA could still withdraw its approval of the state program and then pursue enforcement action, but as noted supra in note 39, this would not enable EPA to overcome the limitation on overfiling with respect to the party against which the state took enforcement action, it would only apply prospectively to give EPA enforcement authority.

163. Harmon, 191 F.3d at 902, 29 ELR at 21414.

164. See Part I, supra note 22, 30 ELR at 10616 n.12 and accompanying text.

165. A recent ECOS article shows that even though EPA funding of state environmental programs has declined significantly as a percentage of state expenditures on environmental protection between 1986 and 1996, states have continued to seek to obtain delegation of more and more programs. R. Steven Brown, The States Protect the Environment, ECOSTATES MAG., Summer 1999, at n.p. It is now available online at http://www.sso.org/ecos/publications/statesarticle.htm (visited on July 21, 2000). Of course, because of the obligation imposed on states to develop programs to assure compliance with water quality standards, 33 U.S.C. § 1313, ELR STAT. FWPCA § 303, and ambient air standards, 42 U.S.C. § 7410, ELR STAT. CAA § 110, states have significant incentives to maintain approved programs under the CWA and the CAA so that the states (rather than EPA) establish the initial structure defining the extent to which the various regulated entities share in the burden of assuring compliance with the standards.

166. Of course, the significant number of states with approved programs allows an inference that states continue to see value in having an approved state program. See Brown, supra note 165. But with a handful of states recently in dialogue with EPA about relinquishing state programs under RCRA, perhaps states are perceiving less value in maintaining an approved program in an environment in which EPA has unfettered discretion to overfile. See Part I, supra note 22, 30 ELR at 10616 nn.8-12 and accompanying text. For the reasons discussed supra note 165, regarding the obligations states have to assure compliance with ambient standards, states have a greater incentive to maintain approved programs under the CWA and the CAA even if EPA has virtually unfettered discretion to overfile.

167. General Counsel's Opinion, cited in In re Martin Elecs., Inc., No. RCRA-84-45-R, 1986 WL 69038, at *3-*5 (EPA July 28, 1986) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-82).

168. Compare 42 U.S.C. § 6972, ELR STAT. RCRA § 7002, with 33 U.S.C. § 1365, ELR STAT. FWPCA § 505, and 42 U.S.C. § 7604, ELR STAT. CAA § 304.

169. See 42 U.S.C. § 6972(b)(1)(B), ELR STAT. RCRA § 7002(b)(1)(B).

170. See United States v. Cargill, Inc., 508 F. Supp. 734, 741, 11 ELR 20649, 11 ELR 20652 (D. Del. 1981):

To hold that a citizen could bring an independent suit even though a state suit was pending when the state suit was not being vigorously prosecuted and to deny the [EPA] such a right would yield the absurd result of denying the [agency] charged with primary enforcement responsibility the same power which is granted to citizens.

171. See Part I, supra note 22, 30 ELR at 10622 nn.72-75 and accompanying text (discussing BKK I & II) and 30 ELR at 10624-25 nn.98-109 and accompanying text (discussing Martin I & II).

172. Id. (discussing EPA guidance as highlighted in in BKK I & II and Martin I & II).

173. A deterrence-based model of enforcement operates on the assumption that regulated parties are rational actors—they will choose to comply with the law when they perceive the costs of noncompliance as exceeding the costs of compliance. See David L. Markell, The Role of Deterrence-Based Enforcement in a "Reinvented" State/Federal Relationship: The Divide Between Theory and Reality, 24 HARV. ENVTL. L. REV. 1, 11-14 (2000); Clifford Rechtschaffen, Deterrence vs. Cooperation and the Evolving Theory of Environmental Enforcement, 71 S. CAL. L. REV. 1181, 1186-88 (1998).

174. See supra notes 12-15 and accompanying text. This is consistent with EPA's audit policy, U.S. EPA, INCENTIVES FOR SELF-POLICING: DISCOVERY, DISCLOSURE, CORRECTION AND PREVENTION OF VIOLATIONS, 60 Fed. Reg. 66706 (Dec. 22, 1995), and its civil penalty policy, U.S. EPA, POLICY ON CIVIL PENALTIES (Feb. 16, 1984), ADMIN. MAT. 35083. For an extended discussion of EPA's penalty policies, see Markell, supra note 172 at 9-29.

175. See Part I, supra note 22, 30 ELR at 10622 n.74 and accompanying text (discussing fact that BKK did not get a "sweetheart" deal from the DOHS).

176. See supra notes 58-75 and accompanying text.

177. See David R. Hodas, Enforcement of Environmental Law in a Triangular System: Can Three Not Be a Crowd When Enforcement Authority Is Shared by the United States, the States, and Their Citizens?, 54 MD. L. REV. 1552, 1631-47 (1995) (discussing a variety of judicial interpretations given to diligent prosecution defense to citizen suits in CWA § 309(g)(6)); Steven Russo, States, Citizens, and the Clean Water Act: State Administrative Enforcement and the Diligent Prosecution Defense, 4 N.Y.U. ENVTL. L.J. 211 (1995) (same).

178. See, e.g., Arkansas Wildlife Fed'n v. ICI Ams., Inc., 29 F.3d 376, 24 ELR 21573 (8th Cir. 1994), cert. denied, 513 U.S. 1147 (1995); North & South Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552, 22 ELR 20437 (1st Cir. 1991). See also Sierra Club v. Hyundai Am., Inc., 23 F. Supp. 2d 1177, 1179 n.1 (D. Or. 1997) (containing a list of cases giving states significant latitude in types of enforcement action that will preclude citizen suits).

179. See, e.g., Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514, 516, 26 ELR 21637 (9th Cir. 1996), cert. denied, 519 U.S. 1144 (1997); CLEAN, 2000 WL 220464. A closer look at the CLEAN court's analysis makes the point. The Consent Judgment under consideration in CLEAN requires PSF to pay a fine of $ 650,000 (possibly up to $ 1 million) and to invest up to $ 25 million on new technologies for managing wastes on its hog farms with the goal of significantly reducing the wastewater problems and odor problems associated with its operations. See Mansur, supra note 91 and accompanying text. The Attorney General for the state of Missouri described the settlement as "unprecedented." Id. In committing to invest in specific technologies (to be identified by a panel of national experts), PSF agreed to go beyond the minimum requirements of the state of Missouri's Clean Water Law. Id. Although environmentalists complained that the settlement was inadequate, it is hard to comprehend how a settlement in which a party pays a fine of up to $ 1 million and agrees to invest $ 25 million on new technologies beyond those required by law could be viewed as "inadequate."

180. Jonesi, supra note 39, at B-5.

181. Id.

182. CLEAN, 2000 WL 220464, at *10 (describing state action as "enforcement action").

183. It will be interesting to watch how this unfolds in the coming years. A Supreme Court decision on "diligent prosecution" in any context likely would go far to inform the "enforcement action" issue as well.

184. See supra notes 25-42 and accompanying text.

185. As noted previously, prior to Harmon parties had not argued that EPA lacked statutory authority to overfile under the CWA. See Part I, supra note 22, 30 ELR at 10619 n.35 and accompanying text. Similarly, commentators generally have assumed, without much analysis, that the CWA authorizes EPA to overfile, except as reflected in CWA § 309(g)(6)(A)(ii). See Hodas; supra note 177, at 1569-70; William D. Benton, Application of Res Judicata and Collateral Estoppel to EPA Overfiling, 16 B.C. ENVTL. AFF. L. REV. 199, 206-08 (1988).

186. See supra notes 25-42 and accompanying text.

187. See supra notes 119-20 and accompanying text (discussing CLEAN court's emphasis on absence of this language in the CWA). Although the "in lieu of" language is missing from the statute, it does appear in the legislative history. "[Section 402] provides for State programs which function in lieu of the Federal program and does not involve a delegation of Federal authority." H.R. CONF. REP. No. 95-830, at 104 (1977), reprinted in 1977 U.S.C.C.A.N. 4424, 4479, quoted in Benton, supra note 184, at 208 n.37.

188. 33 U.S.C. § 1365(b)(I)(B), ELR STAT. FWPCA § 505(b)(1)(B). "[No action may be commenced] if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order. . . ." (Emphasis added.)

189. Harmon Indus., Inc. v. Browner, 191 F.3d 894, 901, 29 ELR 21412, 29 ELR 21414 (8th Cir. 1999).

190. 33 U.S.C. § 1319(a)(1), ELR STAT. FWPCA § 309(a)(1).

191. Id. The specific language provides: "If beyond the thirtieth day after the Administrator's notification the State has not commenced appropriate enforcement action, the Administrator shall issue an order requiring such person to comply with such condition or limitation or shall bring a civil action in accordance with subsection (b) of this section." Id.

192. See supra note 31 and accompanying text.

193. The legislative history of the CWA supports this point. "The Committee does not intend this jurisdiction of the Federal government to supplant state enforcement. Rather the Committee intends that the enforcement power of the Federal government be available in cases where States . . . are not acting expeditiously and vigorously to enforce control requirements." S. REP. No. 92-414 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3730, quoted in United States v. Cargill, Inc., 508 F. Supp. 734, 741, 11 ELR 20649, 20652 (D. Del. 1981). See supra notes 153-82 and accompanying test (discussing whether RCRA precludes overfiling only when a state with an approved program takes "adequate" or "appropriate" enforcement action and discussing contours of "adequate" enforcement action).

194. Id. The specific language provides:

Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any condition or limitation which implements section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title in a permit issued by a State under an approved permit program under section 1342 or 1344 of this title, he shall proceed under his authority in paragraph (3) of this subsection or he shall notify the person in alleged violation and such State of such finding.

33 U.S.C. § 1319(a)(1), ELR STAT. FWPCA § 309(a)(1) (emphasis added). Courts have recognized the two options available to EPA. See, e.g., United States v. ITT Rayonier, Inc., 627 F.2d 996, 1002, 10 ELR 20945, 20948 (9th Cir. 1980) ("Only if the EPA decides to exercise its enforcement option of issuing a notice of violation to the state agency, rather than immediately prosecuting, is a waiting period prescribed.")

195. 33 U.S.C. § 1251(b), ELR STAT. FWPCA § 101(b).

196. Id. § 1251(a), ELR STAT. FWPCA § 101(a).

197. Id. § 1319(a)(2), ELR STAT. FWPCA § 309(a)(2).

198. Id.

199. See, e.g., ITT Rayonier, 627 F.2d at 1002, 10 ELR at 20948 (citing CWA §§ 309(b) & 402(b)(7) for the proposition that the CWA "contemplates concurrent enforcement actions"); Buckeye Power Co. v. EPA, 481 F.2d 162, 167, 3 ELR 20634, 20635 (6th Cir. 1973) (recognizing concurrent enforcement jurisdiction under the CAA); United States v. Cargill, Inc., 508 F. Supp. 734, 741, 11 ELR 20649, 20652 (D. Del. 1981) (recognizing concurrent enforcement jurisdiction under the CWA).

200. 33 U.S.C. § 1319(g), ELR STAT. FWPCA § 309(g). In general terms, the CWA authorizes civil enforcement actions, in which EPA or a state may seek injunctive relief and penalties, 33 U.S.C. § 1319(b) & (d), ELR STAT. FWPCA § 309(b) & (d), criminal enforcement actions, in which EPA or a state may seek to punish a violator through fines or imprisonment, id. § 1319(c), ELR STAT. FWPCA § 309(c), or administrative action in which EPA or a state may seek administrative penalties, id. § 1319(g), ELR STAT. FWPCA § 309(g).

201. See supra notes 76-79 and accompanying text (Smithfield) and note 120 and accompanying text (CLEAN).

202. 33 U.S.C. § 1319(g)(6)(A), ELR STAT. FWPCA § 309(g)(6)(A).

203. Hodas, supra note 177, at 1583 n.158. Prior to the enactment of CWA § 309(g)(6)(A), EPA could not impose administrative penalties, and had to bring a civil action to enable a court to impose a civil penalty. Id. (citing 33 U.S.C. § 1319(d) (1982), amended by 33 U.S.C. § 1319(g) (1988 & Supp. V 1993)).

204. Id.

205. Id. Notably, this "comparable state law" provision also provided states lacking the authority to impose administrative penalties, of which there were a significant number as of 1995, id. at 1589 n. 193 (noting that roughly half the states as of 1995 lacked administrative penalty authority), an incentive to enact an administrative penalty regime to be able to take advantage of the protections available to their regulated entities under CWA § 309(g)(6)(A). Of course, the specific language of CWA § 309(g)(6)(A) only prohibits a "second bite" in the context of a civil penalty action under CWA § 309(d), it does not prohibit a "second bite" in a civil action seeking injunctive relief, a criminal action under CWA § 309(c), or an administrative action under CWA § 309(g)(6)(A).

206. 33 U.S.C. § 1342(c), ELR STAT. FWPCA § 402(c).

207. Id. § 1342(c)(1), ELR STAT. FWPCA § 402(c)(1).

208. Id. § 1342(d), ELR STAT. FWPCA § 402(d).

209. Id. § 1342(I), ELR STAT. FWPCA § 402(I).

210. As noted previously, prior to Harmon, parties had not argued that EPA lacked statutory authority to overfile under the CAA. See Part I, supra note 22, 30 ELR at 10619 n.35 and accompanying text.

211. 42 U.S.C. § 7604(b)(1)(b), ELR STAT. CAA § 304(b)(1)(B). "[No action may be commenced] if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order. . . ." (Emphasis added.) The only difference between this provision and the provisions in RCRA and the CWA is that this provision refers only to a "civil action" while the RCRA and CWA citizen suit provisions refer to a "civil or criminal action." See 42 U.S.C. § 6972(b)(1)(B), ELR STAT. RCRA § 7002(b)(1)(B) and 33 U.S.C. § 1365(b)(1)(B), ELR STAT. FWPCA § 505(b)(1)(B).

212. Harmon Indus., Inc. v. Browner, 191 F.3d 894, 901, 29 ELR 21412, 29 ELR 21414 (8th Cir. 1999).

213. 42 U.S.C. § 7413(a)(1), ELR STAT. CAA § 113(a)(1).

214. See supra note 31 and accompanying text.

215. 42 U.S.C. § 6928(a)(2), ELR STAT. RCRA § 3008(a)(2).

216. See supra notes 190-93 and accompanying text.

217. The specific language provides:

At any time after the expiration of 30 days following the date on which such notice of a violation is issued, the Administrator may, . . . (A) issue an order requiring [compliance] . . . (B) issue an administrative penalty order in accordance with subsection (d) of this section, or (C) bring a civil action in accordance with subsection (b) of this section.

42 U.S.C. § 7413(a)(1), ELR STAT. CAA § 113(a)(1).

218. Id. § 7401(a)(3), ELR STAT. CAA § 101(a)(3).

219. Id. § 7410, ELR STAT. CAA § 110.

220. Id. § 7409, ELR STAT. CAA § 109.

221. 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a).

222. 42 U.S.C. § 7410(a), (c), (k)-(m), ELR STAT. CAA § 110(a), (c), (k)-(m). Most significantly, if the state fails to satisfy its obligations for preparing a SIP as set forth in CAA § 110, EPA may promulgate a Federal Implementation Plan. Id. § 7410(c), ELR STAT. CAA § 110(c).

223. Id. § 7413(a)(2), ELR STAT. CAA § 113(a)(2).

224. Id.

225. See Part I, supra note 22, 30 ELR at 10618 n.29 and accompanying text.

226. 42 U.S.C. § 7411(c)(1) & (2), ELR STAT. CAA § 111(c)(1) & (2).

227. Id. § 7412(l)(1) & (7), ELR STAT. CAA § 112(l)(1) & (7).

228. Id. § 7414(b), ELR STAT. CAA § 114(b).

229. Id. § 7661a(e), ELR STAT. CAA § 502a(e). This section provides that EPA "shall suspend the issuance of permits promptly upon publication of notice of approval of a permit program under this section," but further provides that "nothing in this subsection should be construed to limit the [EPA's] ability to enforce permits issued by a state." Id.

230. Id. § 7477, ELR STAT. CAA § 167 (emphasis added).

231. The environmental costs and the economic benefits of enforcement decisions under RCRA generally are both internalized within the state engaged in regulating the activity (a regulated entity enjoys the benefits of lenient enforcement while the immediate neighbors of the regulated entity suffer the consequences of lenient enforcement). By contrast, while the economic benefits of enforcement decisions under the CWA and the CAA are internalized within the state engaged in regulating the activity, the environmental costs are not completely internalized; the extreme mobility of air and water pollution means that other states absorb some of the environmental costs of the enforcement decisions under the CWA and the CAA. Accordingly, without suggesting in any way that state political processes necessarily incorporate an appreciation of all costs and benefits associated with enforcement decisions, see, e.g., Richard J. Lazarus, Pursuing "Environmental Justice": The Distributional Effects of Environmental Protection, 87 NW. U. L. REV. 787 (1993) (discussing environmental justice and the disproportionate extent to which some under represented communities face environmental risks), one could surmise that, in general, the political process will incorporate fewer environmental costs in the state's enforcement decisions under the CWA and the CAA than under RCRA. This failure to account for all environmental costs in making enforcement decisions makes it more likely that states will be more inclined to be lenient in making enforcement decisions under the CWA and the CAA than under RCRA, providing at least a theoretical justification for a broader overfiling authority for EPA under the CWA and the CAA than under RCRA. For a general discussion of the need for uniform federal environmental regulation and concerns about lenient state regulation of the environment, see Part I, supra note 22, 30 ELR at 10615-16 nn.7-14 and accompanying text.

Moreover, for the reasons discussed supra at notes 165 and 166 and accompanying text, states will have greater incentives to maintain state programs under the CWA and the CAA rather than under RCRA, even if EPA has virtually unfettered discretion to overfile under the CWA and the CAA. The obligation on states to assure compliance with ambient standards or face federal implementation plans (in which EPA would be deciding the political questions regarding how the burden of assuring compliance gets distributed among various state constituencies) gives states a significant reason to maintain approved state programs even if EPA is engaged in overfiling activity that impacts the state "control" on a case-by-case basis.

232. See, e.g., Harmon, 191 F.3d at 902, 29 ELR at 21414; ITT Rayonier, 627 F.2d at 1002, 10 ELR at 20948; Part I, supra note 22, 30 ELR at 10630 n.178 (citing other cases).

233. See Part I, supra note 22, 30 ELR at 10630 nn. 174-86 and accompanying text (discussing ITT Rayonier), 30 ELR at 10620-21 nn.45-56 and accompanying text (discussing Harmon), and 30 ELR at 10624-26 nn.97-116 and accompanying text (discussing CLEAN).

234. See Benton, supra note 185, at 242; Harmon, 191 F.3d at 902, 29 ELR at 21414 (citing Hickman v. Electronic Keyboarding, 741 F.2d 230, 232 (8th Cir. 1984)); ITT Rayonier, 627 F.2d at 1002 n.7, 10 ELR at 20948 n.7; CLEAN, 2000 WL 220464, at *3. But see Jonesi, supra note 39, at B-4 (criticizing as "inconsistent and unworkable" a scheme of applying 50 different bodies of state common law to determine whether res judicata bars EPA enforcement action).

235. ITT Rayonier, 627 F.2d at 1002, 10 ELR at 20948.

236. Harmon, 191 F.3d at 902, 29 ELR at 21414.

237. CLEAN, 2000 WL 220464, at *5 (citing Save Our Bays & Beaches v. City & County of Honolulu, 904 F. Supp. 1098, 1125, 26 ELR 20595, 20607-08 (D. Haw. 1994), and Maryland Waste Coalition v. SCM Corp., 616 F. Supp. 1474, 1483 (D. Md. 1985)).

238. Id. at *5-*7.

239. Id.

240. See ITT Rayonier, Inc. v. Department of Ecology, 586 P.2d 1155 (Wash. 1978).

241. See Benton, supra note 185, at 240 (citing WRIGHT ET AL., supra note 106, §§ 4432, 4433). This is true even when the claims have not been appealed to a higher court. Id.

242. See United States v. ITT Rayonier, Inc., 627 F.2d 996, 1004, 10 ELR 20945, 20949 (9th Cir. 1980) ("The doctrine of res judicata does not depend on whether the prior judgment was free of error. Milliken v. Meyer, 311 U.S. 457, 462, 61 S. Ct. 339, 342, 85 L.Ed. 278 (1940). If it did, judgments would lack finality, the very rationale of the rule of res judicata.").

243. See Benton, supra note 185, at 241 (citing 1B J. MOORE ET AL., MOORE'S FEDERAL PRACTICE. P0.409[1.-1], at 306). When claims are resolved through a consent agreement, without having been fully litigated, issues can arise regarding whether collateral estoppel—issue preclusion—should apply. States vary in the extent to which they give collateral estoppel effect to a consent judgment. Id. at 242.

244. 384 U.S. 394 (1966).

245. See Benton, supra note 185, at 244 (citing Utah Construction, 384 U.S. at 394).

246. See Benton, supra note 185, at 243-47 (citing several cases in which administrative decrees were not given preclusive effect, including, among others. United States v. Lehigh Portland Cement Co., No. 84-3030, 1984 WL 2853 (N.D. Iowa Dec. 12, 1984), discussed in Part I, supra note 22, 30 ELR at 10631 nn.188-95 and accompanying text). See also supra notes 177-79 and accompanying text (discussing wide array of judicial interpretations of whether administrative enforcement represents "diligent prosecution" so as to preclude citizen suits).

247. Harmon, 191 F.3d at 903, 29 ELR at 21415.

248. Id.

249. Id.

250. CLEAN, 2000 WL 220464, at *11.

251. Id. (citing CWA § 505(b)(1)(A)). The court further noted that in light of the language of CWA § 309(g)(6)(A), the "diligent prosecution" standard also describes the relationship between federal and state enforcement. Id. at n.15.

252. See supra notes 127-35 and accompanying text.

253. CLEAN, 2000 WL 220464, at *17.

254. 631 F. Supp. 1291, 16 ELR 20667 (D. Conn. 1986).

255. Id. at 1293, 16 ELR at 20668, quoted in Glazer v. American Ecology Envtl. Servs. Corp., 894 F. Supp. 1029, 1037, 26 ELR 20108, 20111-12 (E.D. Tex. 1995).

256. See Part I, supra note 22, 30 ELR at 10622 n.74 and accompanying text (describing state enforcement action as not being a "sweetheart" deal).

257. See supra note 121 and accompanying text.

258. See supra note 137.

259. See EPA Asks Justice Department to Appeal RCRA "Overfiling" Decision, INSIDE EPA WKLY. REP., Nov. 5, 1999, at 19.

260. See supra notes 151-53 and accompanying text.

261. See supra notes 154-83 and accompanying text.

262. See supra notes 180-83 and accompanying text.

263. See supra notes 232-46 and accompanying text.

264. See supra notes 184-31 and accompanying text.

265. See supra notes 200-05 and accompanying text.

266. See supra note 79 and accompanying text and notes 120-35 and accompanying text.

267. See supra notes 97-116 and accompanying text.

268. See supra notes 120-35 and accompanying text.

269. See supra notes 235-39 and accompanying text.

270. See supra notes 240-46 and accompanying text.

271. See supra notes 254-57 (critiquing the CLEAN court's finding that state enforcement did not represent "diligent prosecution" of all claims referred to in the consent decree).

272. See 42 U.S.C. § 6928(d), ELR STAT. RCRA § 3008(d); 33 U.S.C. § 1319(c), ELR STAT. FWPCA § 309(c); 42 U.S.C. § 7413(c), ELR STAT. CAA § 113(c).

273. Compare Harmon, 191 F.3d at 894, 29 ELR at 21412 with United States v. McDonald & Watson Waste Oil Co., 933 F.2d 35, 42-46, 21 ELR 21449, 21451-52 (1st Cir. 1991) (holding that EPA can bring criminal enforcement action under federal RCRA in state with an approved program). The McDonald & Watson decision is consistent with cases like Wyckoff in which courts consistently held that EPA could bring civil enforcement actions in states with approved programs when the state had not taken action. See Part I, supra note 22, 30 ELR at 10619-20 nn.36-51 and accompanying text.

274. See Richard J. Lazarus, Fairness in Environmental Law, 23 ENVTL. L. 705, 732-38 (1997).

275. Katherine Kellner, Separate But Equal: Double Jeopardy and Environmental Enforcement Actions, 28 ENVTL. L. 169 (1998).

276. See supra note 22 and accompanying text (discussing recent decision in United States v. Elias, No. 98-0070-E-BLW. 30 ELR 20558 (D. Idaho Apr. 26, 2000), which raises this very issue).

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