Environmental Federalism Part I: The History of Overfiling Under RCRA, the CWA and the CAA Prior to Harmon, Smithfield and CLEAN

The Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Clean Air Act (CAA) represent federal regulatory regimes for protecting the environment. Although each statute initially places administrative responsibility in the hands of the U.S. Environmental Protection Agency (EPA), each encourages states, to varying degrees, to take primary responsibility for implementing the statutory regime. States have responded to this opportunity by seeking and obtaining approval of state programs under RCRA, the CWA, and the CAA - over 80% of the states have full or partially approved programs under each of these statutes.State interests, however, are not always coincident with the federal interests reflected in EPA=s policies--states may be more interested in attracting business or in promoting compliance rather than in assuring tough enforcement of environmental laws. States, therefore, can and do exercise prosecutorial discretion in ways different than EPA may desire, e.g., the state may elect not to take enforcement action, or not to impose penalties, or not to impose significant penalties, when EPA may believe significant penalties are appropriate.What can EPA do when it believes a state with an approved program has failed to take appropriate enforcement action? Generally speaking, EPA has been understood to have two options under RCRA, the CWA, and the CAA: (1) EPA may withdraw approval of a state program; (2) EPA may pursue its own enforcement action, or "overfile." In reality, the first option--withdrawing approval of state programs--has become largely meaningless as EPA has not exercised its authority to withdraw state program approval and states have come to see EPA=s withdrawal of program approval as something of an empty threat. Although audits of state enforcement practices would suggest that EPA also has had ample opportunity to engage in overfiling, historically, EPA has overfiled in only a limited number of circumstances. Indeed, until recently there have been relatively few reported judicial decisions dealing with overfiling issues in the narrow context of EPA enforcement action following enforcement action by a state with an approved program under RCRA, the CWA, or the CAA. Nonetheless, overfiling remains a "hot button" issue for both regulated entities and states.Recent decisions of the Eighth Circuit Court of Appeals in Harmon Industries, Inc. v. Browner, the Fourth Circuit Court of Appeals in United States v. Smithfield Foods, Inc., and the District Court for the Western District of Missouri in Citizens Legal Environmental Action Network, Inc. (CLEAN) v. Premium Standard Farms, Inc., by presenting contrasting perspectives on EPA's ability to "overfile" under RCRA, the CWA, and the CAA, have brought renewed attention to the overfiling issue. This Article explores the overfiling issue under RCRA, the CWA, and the CAA in light of the decisions in Harmon, Smithfield, and CLEAN. To put the decisions in Harmon, Smithfield, and CLEAN in context, the first section of the Article explores various situations in which federal courts, administrative law judges, and EPA officials have discussed overfiling over the last 20 years. The second section of the Article then summarizes the Eighth Circuits analysis in Harmon, the Fourth Circuit's analysis in Smithfield, and the district courts analysis in CLEAN. In light of these decisions, the third section of the Article addresses the statutory arguments that can be made in favor of and against EPA's authority to overfile under RCRA, the CWA and the CAA. The fourth section of the article then addresses the arguments that can be made in favor of and against having res judicata operate as a bar to EPA overfiling under RCRA, the CWA and the CAA. Finally, the Article concludes with a discussion of how regulated parties and states may consider trying to structure enforcement activities to minimize the extent to which overfiling occurs and how EPA may conduct its enforcement activities to preserve overfiling options to the extent possible.