30 ELR 10615 | Environmental Law Reporter | copyright © 2000 | All rights reserved

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

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, and 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 10615]

The Resource Conservation and Recovery Act (RCRA),¹ the Clean Water Act (CWA),² and the Clean Air Act (CAA)³ 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),⁴ each encourages states, to varying degrees, to take primary responsibility for implementing the statutory regime.⁵ 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 fully or partially approved programs under each of these statutes.⁶

State interests, however, are not always coincident with the federal interests reflected in EPA's policies—states may be more interested in attracting business⁷ or in promoting compliance rather than in assuring tough enforcement [30 ELR 10616] of environmental laws.⁸ 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.⁹

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 program¹⁰; (2) EPA may pursue its own enforcement action, or "overfile."¹¹ 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.¹² Although audits of state enforcement practices would suggest that EPA also has had ample opportunity to engage in overfiling,¹³ historically, EPA has overfiled in only a limited number of circumstances.¹⁴ Indeed, until recently [30 ELR 10617] 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.¹⁵ Nonetheless, overfiling remains a "hot button" issue for both regulated entities and states.¹⁶

Recent decisions of the Eighth Circuit Court of Appeals in Harmon Industries, Inc. v. Browner,¹⁷ the Fourth Circuit Court of Appeals in United States v. Smithfield Foods, Inc.,¹⁸ and the District Court for the Western District of Missouri in Citizens Legal Environmental Action Network, Inc. (CLEAN) v. Premium Standard Farms, Inc.,¹⁹ 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, Part I contains the first section of the Article which explores various situations in which federal courts, administrative law judges, and EPA officials have discussed overfiling in the context of RCRA, the CWA, and the CAA over the last 20 years.²⁰ Part II, which will be published next month, will contain four sections. Section One in Part II of the Article contains a summary. The second section of the Article then summarizes the Eighth Circuit's analysis in Harmon, the Fourth Circuit's analysis in Smithfield,²¹ and the district court's analysis in CLEAN. In light of these decisions, Section Three 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.²² Section Four 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.²³ Finally, the Article concludes with Section Five, which contains 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.²⁴

I. The History of Overfiling Prior to Harmon, Smithfield, and CLEAN

The Sixth Circuit Court of Appeals, in Buckeye Power, Inc. v. EPA,²⁵ was the first and only federal appellate court to speak to the issues of overfiling and res judicata in the [30 ELR 10618] 1970s.²⁶ In Buckeye Power, which involved a challenge by public utilities to EPA's approval of a state implementation plan (SIP) under the CAA, the Sixth Circuit reflected in dicta on the state-federal relationship following approval of a SIP:

Once a plan is approved, the state may enforce the provisions of its plan against its citizens in its own courts. . . . However, it is important to note that such an undertaking on the part of the state does not detract from the Administrator's primary ability to enforce federally the provisions of every state plan against citizens of that state which drew the plan.²⁷

Recognizing the principle of concurrent federal-state enforcement jurisdiction, the Sixth Circuit also recognized the tension inherent in a concurrent jurisdiction structure in which a regulated entity can face enforcement actions from two separate sovereigns, discussing in a footnote the hypothetical overfiling issue: "It would seem to us that the court which first acquired jurisdiction of enforcement proceedings would have exclusive jurisdiction to proceed to determine the litigation, and its judgment would be res judicata of the issues litigated."²⁸

Notably, this perspective on the state-federal enforcement relationship does not adequately describe the normal judicial practice in a dual, concurrent enforcement system regarding exclusive jurisdiction.²⁹ Moreover, it neither adequately [30 ELR 10619] accounts for statutory language that may preserve or circumscribe federal enforcement authority under the various statutes,³⁰ nor adequately accounts for some of the nuances associated with the application of the principles of res judicata.³¹ Nonetheless, for purposes of this Article, it provides a good starting point for understanding the discussion that follows, as arguments over EPA's authority to overfile generally fall into two categories: (1) whether EPA has statutory authority to take or continue enforcement action when a state with an approved program has taken enforcement action,³² and (2) whether EPA is barred under res judicata from bringing or continuing an enforcement action when the state's enforcement action has resulted in a final administrative or court order.³³

A. Questions Regarding EPA's Statutory Authority to Overfile

Somewhat interestingly, prior to Harmon, Smithfield, and CLEAN, the only reported judicial decisions in which regulated entities raised questions about EPA's statutory authority to overfile appear to have arisen under RCRA³⁴; none of the reported "overfiling" decisions under the CWA and the CAA appear to have included any claim that EPA lacked statutory authority to pursue an enforcement action concurrent with or subsequent to an enforcement action by a state with an approved program under the CWA or the CAA.³⁵ Under RCRA, parties have raised the argument that EPA lacks statutory authority to bring an enforcement action in a state with an approved program in two factual settings—when EPA brings an enforcement action in the absence of state action and when EPA brings an enforcement action after a state has concluded an administrative or judicial enforcement proceeding.

1. Delegation of Authority to a State Does Not Negate EPA's Enforcement Authority Under RCRA When the State Has Not Taken Enforcement Action

The Ninth Circuit Court of Appeals, in Wyckoff Co. v. EPA,³⁶ was the first federal circuit court of appeals to address the argument that EPA's approval of a state RCRA program deprived EPA of statutory authority to pursue RCRA enforcement actions in such state. Wyckoff owned two wood treatment plants in Washington State, a state which had received interim authorization from EPA pursuant to RCRA § 3006(c).³⁷ EPA issued orders under RCRA § 3013 requiring Wyckoff to submit written proposals for monitoring, testing, analysis, and reporting of the hazardous waste at the facilities because of information it received indicating that the storage and release of hazardous wastes at each of these facilities "'may present a substantial hazard to human health or the environment.'"³⁸ Wyckoff brought an action seeking a declaratory judgment that EPA lacked authority to issue the orders and moved for a preliminary injunction restraining EPA from enforcing the orders.³⁹ The district [30 ELR 10620] court denied the motion for a preliminary injunction and Wyckoff appealed.⁴⁰

The Ninth Circuit applied an abuse of discretion standard in evaluating the district court decision, looking to make sure that the district court considered relevant factors and did not misapprehend the law in concluding that Wyckoff had little chance of success on the merits.⁴¹

The court noted that Wyckoff did not allege that EPA misconstrued RCRA § 3013, rather Wyckoff argued "that section 3013 did not apply in the State of Washington at the time the orders were issued, because federal regulation under the Act had been superseded by the implementation of a federally approved state regulatory program under section 3006" of RCRA, which provides for federal authorization of state hazardous waste programs.⁴² The Ninth Circuit quoted the language of RCRA § 3006(c), which provides: "The Administrator shall, if the evidence submitted shows the existing State program to be substantially equivalent to the Federal program under this subchapter, grant an interim authorization to the State to carry out such program in lieu of the Federal program."⁴³ The court further quoted the language of RCRA § 3006(d), which provides that any action a state takes under an authorized program "shall have the same force and effect as action taken by the Administrator under this subchapter."⁴⁴ The court summarized Wyckoff's argument as follows: Wyckoff claims EPA lacks authority to issue the orders under RCRA § 3013 because RCRA § 3013 is "part of the 'Federal program' that is supplanted by an authorized state program under section 3006."⁴⁵

The Ninth Circuit began its analysis by focusing on the two-part test for review of agency interpretation of a statute from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.⁴⁶ Under Chevron, the court initially asks whether Congress has spoken directly to the issue. If so, the review is concluded. If the court concludes Congress has not spoken to the issue, however, the court must determine whether the agency interpretation is "a permissible construction of the statute."⁴⁷ Looking to the language of RCRA, the Ninth Circuit stated: "We can discern no clear congressional intent that section 3006 be read to disable EPA from issuing orders under section 3013 wherever an authorized state program operates 'in lieu of the Federal program.'"⁴⁸ Moreover, looking to the language of RCRA § 3008(a)(2), which states that when taking enforcement action in an authorized state, 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," the Ninth Circuit concluded "it is clear that Congress did not intend, by authorizing a state program 'in lieu of the Federal program,' to preempt federal regulation entirely."⁴⁹

Having concluded that Congress did not clearly intend to completely preclude federal regulation in states with authorized programs, the Ninth Circuit next found EPA's interpretation of RCRA § 3006 to be reasonable. "EPA's conclusion that its power to issue orders under section 3013 survives in those states where an authorized state program is operating is plainly consistent with a straightforward reading of the Act."⁵⁰ Accordingly, because the district court had not misapprehended the law, the Ninth Circuit affirmed the district court's denial of Wyckoff's request for a preliminary injunction.⁵¹

2. Reasonable State Enforcement Action May Preclude EPA Enforcement Action

Shortly after the Ninth Circuit's decision in Wyckoff, the Seventh Circuit Court of Appeals, in Northside Sanitary Landfill, Inc. v. Thomas,⁵² had an opportunity to speak in dicta to the overfiling issue under RCRA. Northside Sanitary Landfill did not involve EPA enforcement action. Rather, Northside Sanitary Landfill concerned a petition for review of an EPA order denying a hazardous waste permit application.⁵³ Northside petitioned for review because it desired to contest statements the EPA Region V Administrator made during the permitting process that it believed were inaccurate and would result in closure and post-closure obligations covering a much larger area than Northside believed was appropriate.⁵⁴ Once the state of Indiana received authorization under RCRA § 3006 "to determine the closure requirements for any facility in [Indiana] whose interim status [30 ELR 10621] has been terminated by the EPA," however, the Seventh Circuit Court of Appeals concluded that Northside had no standing to challenge comments made by the EPA Administrator because EPA had no legal authority to determine which areas of Northside's facility would need to be closed.⁵⁵

Although Northside Sanitary Landfill was not an enforcement action, the Seventh Circuit, in dicta, nonetheless spoke to the "overfiling" issue by discussing the impact of state authorization on EPA enforcement:

Even if the EPA is dissatisfied with, for example, the enforcement action taken by a state against a specific hazardous waste disposal facility, or the settlement agreement reached between the state and the facility, so long as the state has exercised its judgment in a reasonable manner and within its statutory authority, the EPA is without authority to commence an independent enforcement action or to modify the agreement.⁵⁶

3. District Court Decisions Embracing Wyckoff and Distinguishing Northside Sanitary Landfill

In at least two cases after Northside Sanitary Landfill, United States v. Conservation Chemical Co. of Illinois,⁵⁷ and United States v. Environmental Waste Control, Inc.,⁵⁸ defendants tried to rely on the dicta in Northside Sanitary Landfill to support an argument that EPA lacked authority to bring an enforcement action in Indiana, a state with an approved RCRA program, even though Indiana, for all practical purposes, had not taken enforcement action. In each instance, the court distinguished Northside Sanitary Landfill as a "standing" case and ruled that EPA could take enforcement action.⁵⁹

Without mentioning Wyckoff, the Conservation Chemical court followed much of the Wyckoff court's reasoning: "When the EPA wishes to bring an action in a RCRA-authorized state, all that is required of the EPA is that it must first notify that state of its intent."⁶⁰ But the Conservation Chemical court did not entirely disavow the Seventh Circuit's language in Northside Sanitary Landfill, as it emphasized the importance of state-federal cooperation and cited legislative history suggesting that EPA "is not prohibited from acting in those cases where the state fails to act."⁶¹ Noting that state administrative action had been placed on hold pending the outcome of the federal enforcement action, the Conservation Chemical court stated: "Because the state has chosen not to act there is no prohibition to the EPA bringing this independent enforcement action."⁶²

The court in Environmental Waste Control ruled similarly, citing both Conservation Chemical and Wyckoff, based partly on the fact that EPA submitted into evidence enforcement referrals from the Indiana Department of Environmental Management to Region V of EPA.⁶³

4. Decisions of Administrative Law Judges Foreshadow the Harmon Analysis

Notably, because none of the federal court decisions discussed above involved a consecutive enforcement scenario, in which federal enforcement followed after the conclusion of a state enforcement action, these decisions fail to provide a factual foundation for evaluating the appropriateness of the Seventh Circuit's summary of the state-federal enforcement relationship described in dicta in Northside Sanitary Landfill. Nonetheless, from the mid-1980s into the mid-1990s, administrative law judges (ALJs) faced a series of cases involving EPA's authority to pursue enforcement action under RCRA following the conclusion of a state enforcement action in states with approved RCRA programs.⁶⁴ These ALJ decisions provide a useful opportunity [30 ELR 10622] to explore issues that remained largely unresolved and continued to percolateuntil the Eighth Circuit's recent decision in Harmon.

a. In re BKK Corp.

The first case to raise EPA's statutory authority to overfile under RCRA was In re BKK Corp.⁶⁵ BKK operated a hazardous waste treatment, storage, and disposal facility in California.⁶⁶ California had received interim authorization to administer the RCRA hazardous waste program from EPA in June 1981.⁶⁷ The California Department of Health Services (DOHS) and EPA conducted an inspection in June 1983 which found violations of various hazardous waste requirements.⁶⁸ BKK entered into a complex comprehensive settlement agreement with the DOHS on December 20, 1983, which called for site characterization, leachate control and other work that likely would cost over $ 1.3 million, and provided for reimbursement of $ 47,500 of DOHS' administrative costs.⁶⁹ EPA then issued a Determination of Violation on December 29, 1983, addressing the same general issues identified during the site inspection.⁷⁰ BKK filed an answer along with a motion for judgment as a matter of law contending "that EPA lacked authority to bring an enforcement action against a hazardous waste facility licensed and operating under a federally authorized state hazardous waste program, where the state has already pursued enforcement action and achieved results with regard to the same matters."⁷¹

[] Initial Decision—BKK I. In ruling in favor of BKK, the ALJ noted that RCRA's legislative history evidenced Congress' intent that states have primary RCRA enforcement responsibility.⁷² The ALJ further stated that EPA seemed to be disregarding the language of RCRA § 3006(d), which 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 Administrator under this subtitle."⁷³ The ALJ then evaluated each of EPA's objections to the settlement between BKK and DOHS, concluding that they were insubstantial, and finding that "at the very least . . . the agreement was a settlement of issues subject to serious dispute and in no sense a 'sweetheart' deal designed to thwart or avoid EPA enforcement."⁷⁴ The ALJ concluded:

There would appear to be little point in a person or firm subject to RCRA negotiating seriously with a state, which has been granted authorization to administer its own hazardous waste program, for the settlement of alleged violations of the regulations and little point in the state acting vigorously to enforce its own program, if EPA is going to take enforcement action in any event.⁷⁵

[] Intervening Policy Statements. Following the Initial Decision in BKK I, EPA issued guidance documents to the EPA Regional Offices describing when EPA enforcement action would be appropriate in states with delegated authority.⁷⁶ [30 ELR 10623] "In general, these documents encourage EPA enforcement action where state action is not timely, does not remedy environmental harm or is not sufficiently vigorous to remove economic benefits accruing from violations or to deter repeat violations."⁷⁷

[] Final Order—BKK II. EPA appealed the ALJ's Initial Decision in BKK I to the Chief Judicial Officer (CJO) who issued a final order on May 10, 1985.⁷⁸ On appeal, EPA made several arguments. First, EPA claimed to have unfettered authority to take enforcement action even in states with delegated authority.⁷⁹ Second, EPA claimed that it had authority to take action when state action is inadequate.⁸⁰ Third, it claimed that the DOHS action should not be considered an enforcement action.⁸¹

The CJO rejected EPA's claim of unfettered discretion. Acknowledging that RCRA § 3008(a)(2) authorizes EPA enforcement action in states with delegated authority, the CJO noted that the question was not whether EPA had such authority, but whether RCRA places restrictions on such authority.⁸² Focusing on the "in lieu of" language in RCRA § 3006(c) and the "same force and effect" language in RCRA § 3006(d), the CJO concluded that RCRA, in fact, did place restrictions on EPA's ability to bring enforcement actions in states with delegated authority: "EPA cannot take enforcement action for RCRA violations in the face of reasonable and appropriate enforcement action for the same violations brought by an authorized state."⁸³

With respect to EPA's claim that it can take enforcement action when state action is inadequate, the CJO, referencing the intervening guidance documents, agreed with EPA's statement of its authority, but disagreed with its assertion that the state's action was inadequate in this instance, agreeing instead with the ALJ's conclusion that the state's action was reasonable and appropriate.⁸⁴ In addition, the CJO rejected EPA's claim that the state action did not qualify as a true enforcement action as being "wholly without merit" given that the settlement agreement gave the state the ability to take additional enforcement action if BKK were to fail to complete performance under the agreement.⁸⁵

[] Order on Petition for Rehearing—BKK III. Following the CJO's Final Order in BKK II, Region IX, the EPA Office of Regional Counsel, and the EPA Office of Enforcement and Compliance Monitoring jointly petitioned the EPA Administrator for reconsideration of the Final Order.⁸⁶ Notably, in petitioning for reconsideration, the Agency accepted "the factual finding that the State of California took reasonable and appropriate enforcement action against BKK," and accepted the "policy" result that the "EPA should stay its hand in the face of reasonable and appropriate enforcement action by an authorized state," but challenged the legal conclusion that EPA was required "to stay its hand in the face of reasonable and appropriate enforcement action by an authorized state."⁸⁷ The Administrator ruled that because of the concessions by EPA, the controversy with BKK was at an end and BKK was entitled to dismissal of the complaint.⁸⁸ The Administrator went further, however, and ordered that "the final order of the Chief Judicial Officer and the initial decision of the Administrative Law Judge are vacated and shall have no precedential effect."⁸⁹

[30 ELR 10624]

b. In re Martin Electronics, Inc.

Roughly contemporaneously with the enforcement action in In re BKK, EPA also pursued an enforcement action against Martin Electronics, Inc. (Martin), a company that manufactured ordinance and pyrotechnic devices at a facility in Florida.⁹⁰ In 1980, Martin informed EPA that it generated and managed hazardous wastes and filed a Part A hazardous waste permit application with EPA to obtain interim status for its chrome-plating sludge drying beds pursuant to RCRA § 3005.⁹¹ Florida had received interim authorization to administer the RCRA hazardous waste program from EPA in May 1982.⁹² The Florida Department of Environmental Regulation (FDER) conducted inspections prior to 1984 in which various violations were identified, including the lack of a groundwater monitoring system relating to the sludge drying beds.⁹³ In December 1983, Martin signed a draft consent order with the FDER which required Martin to install a groundwater monitoring system and provided for the payment of $ 107 in administrative costs.⁹⁴ FDER and EPA conducted inspections in February and March 1984 which found violations of various hazardous waste requirements.⁹⁵ EPA then issued a complaint and order to Martin on June 6, 1984, addressing the groundwater issues as well as other issues identified during the site inspection and seeking penalties of about $ 48,000 for the groundwater monitoring violations alleged in the complaint.⁹⁶ Martin "filed a motion to dismiss the complaint on the basis of res judicata since the primary subject matter of the complaint had been already concluded with the State of Florida [such that] the Agency had no jurisdiction to bring another action based on the same violation."⁹⁷

[] Initial Decision—Martin I. The Initial Decision in In re Martin Electronics (Martin I)⁹⁸ was issued on June 21, 1985, several weeks after the Final Order was issued in BKK II and a few months before the Administrator issued his Order on Petition for Rehearing in BKK III in which he vacated the ALJ's Initial Decision in BKK I and the CJO's Final Order in BKK II. Because the Final Order had been issued in BKK II, the ALJ in Martin I understood BKK II to establish binding precedent.

The applicability of BKK to this case is inescapable and clear. The only real issue before me, at this juncture, is whether or not the action taken by the State of Florida was timely and appropriate. My review of this record indicates that the timeliness aspect of the State action is not an issue and, therefore, the only aspect . . . I need to consider . . . [is] whether the State action was appropriate.⁹⁹

Because the groundwater monitoring system had been installed and was operational prior to the issuance of EPA's complaint, the ALJ concluded that "the only issue remaining is whether or not the rather nominal administrative costs assessed by the State of Florida would render their action inappropriate given the rather sizeable civil penalty proposed by the Agency in its complaint."¹⁰⁰

In evaluating the appropriateness of Florida's assessment of administrative costs, the ALJ focused significant attention on two of EPA's intervening policy documents, Alvin Alm's June 26, 1984, memorandum "Implementing the State/Federal Partnership in Enforcement: State/Federal Enforcement 'Agreements'"¹⁰¹ and Lee Thomas' December 21, 1984, memorandum "Enforcement Response Policy."¹⁰² The ALJ stated:

These policy memoranda suggest that the Agency recognizes and authorizes EPA to take independent and direct Federal action against violators in a delegated state, based on the perceived inadequacyof the penalty assessed by the state, only in very limited circumstances . . . [30 ELR 10625] where the penalty assessed by the state was egregiously small. Such determination must be judged according to the state's penalty policy. . . . The Agency, at the time it approved the Florida State RCRA program, was aware of the limitations that the State program had relative to its ability to assess penalties associated with negotiated administrative consent decrees. The Agency had to have known that the State could not assess civil penalties in such cases, but was rather limited, by the regulations, to the assessment of administrative costs associated with such agreement. . . . Consequently, . . . there is nothing in this record to suggest that the administrative costs assessed [were] egregiously small when judged by the State's policy and legal limitations.¹⁰³

[] Decision on Motion to Reconsider—Martin II. EPA filed a motion to reconsider, which was followed shortly by the Administrator's decision in BKK III.¹⁰⁴ The ALJ thus reconsidered his initial decision in light of the Administrator's decision in BKK III.¹⁰⁵ In affirming his initial decision, the ALJ highlighted several points. First, the ALJ noted that the record contained no indication that EPA had expressed reservations about FDER's resolution of the enforcement action with Martin prior to the execution of the administrative consent agreement.¹⁰⁶ Second, the ALJ noted that Florida's choice to resolve the Martin situation through an administrative consent agreement rather than a civil enforcement action in which it might have obtained penalties was eminently reasonable.¹⁰⁷ The ALJ further recognized that the fact that different units of government might choose different enforcement strategies does not make one right and the other wrong, it simply evidences that there is more than one way to solve a problem.¹⁰⁸ The ALJ further emphasized that "Congress envisioned that those closest to the problem should have the right to . . . choose that course of action most likely to result in the desired goal."¹⁰⁹

[] Intervening Policy Statements. In light of the disputes raised in BKK and Martin, the Deputy Administrator, A. James Barnes, asked the General Counsel for an opinion on EPA's overfiling authority.¹¹⁰ Not surprisingly, the General Counsel concluded "that RCRA itself imposes no legal restrictions on overfiling, but that the Administrator may adopt appropriate policies limiting the circumstances under which EPA may overfile."¹¹¹

The General Counsel's opinion focused on five primary justifications for its conclusion. First, the opinion assumed that RCRA § 3006(d) can be interpreted to limit EPA's enforcement authority only in an absolute sense (i.e., if RCRA § 3006(d) limits EPA's ability to overfile) it must do so absolutely, not just when a state has taken timely and appropriate enforcement action as suggested by the ALJ in BKK.¹¹² The opinion then dismissed this interpretation by noting that "it is unlikely that Congress would have buried such an important limit on federal enforcement powers in Section 3006(d), a provision concerning state permits."¹¹³ Second, the opinion limited the relevance of the "same force and effect" language in RCRA § 3006(d) by emphasizing that RCRA § 3006(d) does not address federal enforcement, but simply provides that state permits shall have the same effect as permits issued by EPA.¹¹⁴ Third, the opinion noted that had Congress intended to limit federal enforcement power it would be expected to do so in the enforcement section, as it did in § 1423 of the Safe Drinking Water Act.¹¹⁵ Fourth, the opinion limited the relevance of the "in lieu of" language in RCRA § 3006(b) & (c) by indicating that it refers only to implementation, not enforcement, and by emphasizing that it [30 ELR 10626] cannot be squared with RCRA § 3008(a)(2), which authorizes EPA to bring an enforcement action after notifying an approved state of its intent to do so.¹¹⁶ Fifth, the opinion acknowledged legislative history from the House Report to RCRA suggesting that EPA's authority to overfile may be limited,¹¹⁷ but disregarded it by focusing instead on legislative history from the Senate Report which "indicates an intent to draw 'on the similar provisions of the Clean Air Act of 1970 and the Federal Water Pollution Control Act of 1972' in allocating responsibilities between EPA and the states under section 3008."¹¹⁸ The opinion then evaluated the case law under the CAA and the CWA¹¹⁹ from which it concluded that the language of RCRA could not be interpreted to limit EPA's ability to overfile.¹²⁰

In light of the General Counsel's opinion, the Deputy Administrator's Guidance on RCRA Overfiling directed as follows: "Regions should continue to overfile RCRA enforcement actions when the state fails to take timely and appropriate action. Overfiling should be employed in cases where the state's action is clearly inadequate."¹²¹

[] Order on Sua Sponte Review—Martin III. Following the issuance of the Deputy Administrator's Guidance on RCRA Overfiling (Overfiling Guidance), the CJO in Martin requested that the parties brief the issues in light of the Overfiling Guidance and the General Counsel's opinion.¹²² Subsequently, "EPA issued an interpretative rule that has the effect of retroactively eliminating the legal basis on which EPA had brought charges against [Martin] for violating groundwater monitoring regulations."¹²³ As a result, Martin requested dismissal of EPA's complaint relating to the groundwater violations and the CJO dismissed that portion of EPA's complaint without prejudice.¹²⁴ Given that the ALJ's basis for dismissing the complaint, "that RCRA bars overfiling in an authorized state when the state has taken adequate enforcement action," was inconsistent with the General Counsel's opinion, the CJO further concluded that it was necessary to vacate the ALJ decision to "assure that it does not establish an erroneous precedent."¹²⁵

c. Subsequent Consecutive Enforcement Administrative Cases Generally Have Followed the General Counsel's Opinion

Over the next several years, ALJs decided a handful of RCRA "consecutive enforcement" cases.¹²⁶ With one exception,¹²⁷ the ALJs in each of these cases ruled consistently with the General Counsel's opinion, holding that RCRA did not statutorily constrain EPA's authority to overfile when a [30 ELR 10627] state had already commenced and concluded an enforcement action.¹²⁸

For example, in In re Southern Timber Products, Inc.,¹²⁹ Southern Timber claimed that because the state of Mississippi had an approved RCRA program and had signed off on Southern Timber's closure of the facility, EPA was precluded from pursuing federal enforcement.¹³⁰ The ALJ concluded, however, "that the only prerequisite to federal enforcement in an authorized state is notice to the state of the violation."¹³¹

Similarly, in each of the administrative decisions in In re Harmon Electronics, Inc.,¹³² the ALJ and the members of the Environmental Appeals Board (EAB) stuck to the EPA party line, holding that EPA had statutory authority to overfile even though the state of Missouri, with an approved RCRA program, had concluded an enforcement action.¹³³

The only exception was In re Beaumont Co.,¹³⁴ which involved a facility that generated hazardous waste without an EPA identification number and stored waste without notifying EPA or complying with various requirements for storage facilities.¹³⁵ West Virginia had been granted final authorization to administer its hazardous waste program on May 29, 1986.¹³⁶ The West Virginia Department of Natural Resources (WVDNR) issued Beaumont a Notice of Civil Administrative Penalty, proposing a penalty of $ 5,600.¹³⁷ Beaumont appealed the penalty assessment, resulting in a decision of the West Virginia Water Resources Board imposing a penalty of $ 2,000.¹³⁸ EPA subsequently issued a complaint against Beaumont seeking over $ 1 million in penalties.¹³⁹ Beaumont moved to dismiss, claiming, among other things, that RCRA § 3006 prohibits EPA from overfiling when a state has taken enforcement action.¹⁴⁰

The ALJ ruled partially in favor of Beaumont, holding that RCRA § 3006 limits EPA's authority to overfile.¹⁴¹ First, the ALJ found that the "plain language" of RCRA § 3006 "is clearly not limited to permits," but encompasses the program, including the authority to enforce permits.¹⁴² Second, the ALJ pointed out that RCRA §§ 3006 and 3008 are not in conflict to the extent that EPA can act when the state fails to act and can withdraw authorization if a state program is inadequate.¹⁴³ With respect to the General Counsel's discussion of the legislative history, the ALJ was even more forceful. "In a gross understatement, the General Counsel concedes that 'different passages in the legislative history point in different and inconsistent directions.'"¹⁴⁴ The ALJ further rejected the General Counsel interpretation of the legislative history, emphasizing that the House Report should have taken precedence over the Senate Report.¹⁴⁵

[30 ELR 10628]

This decision was short-lived, however, as the EAB, on an interlocutory appeal, reversed the decision of the ALJ.¹⁴⁶ Relying on its recent holding in Harmon Electronics, the EAB ruled that "to the extent that the . . . decision was based on the conclusion that the Agency lacks overfilling (sic) authority in an authorized state where the State has taken some enforcement action of its own, the decision is reversed."¹⁴⁷

5. Summary of the Statutory Authority Decisions

Prior to the Eighth Circuit's decision in Harmon, the reported judicial decisions largely spoke to the question of EPA's statutory authority to overfile only in the absence of state action. Not surprisingly, these decisions resoundingly affirmed that even in a state with an approved RCRA program, EPA has the ability to bring an enforcement action when the state has not taken enforcement action.¹⁴⁸

The Seventh Circuit, in Northside Sanitary Landfill, was the only court to speak to the overfiling issue under RCRA in the context of consecutive enforcement actions. Its dicta suggested that EPA may not be able to pursue an enforcement action if a state with an approved program had reasonably concluded an enforcement action.¹⁴⁹ Although parties in administrative proceedings initially found ALJs who were sympathetic to evaluations of the statutory language that foreshadowed the Seventh Circuit's dicta in Northside Sanitary Landfill,¹⁵⁰ following the issuance of the General Counsel's opinion in 1986, ALJs increasingly toed the EPA party line regarding overfiling,¹⁵¹ and the only one who did not toe the party line found himself reversed by the EAB.¹⁵²

Nonetheless, the arguments the defendants raised in the administrative decisions, and the rationales several ALJs applied in concluding that EPA was precluded from overfiling under RCRA, foreshadowed many of the arguments and much of the analysis in the Eighth Circuit's discussion of EPA's statutory authority to overfile in Harmon.¹⁵³

B. Res Judicata as a Bar to Federal Enforcement Action

As highlighted in the following cases and the discussion of Harmon, Smithfield, and CLEAN in Section Three in Part II, the issues of issue and claim preclusion through collateral estoppel and res judicata, although separate from the statutory authority question, remain very closely related to the statutory authority question.¹⁵⁴

[30 ELR 10629]

1. United States v. ITT Rayonier, Inc.—Res Judicata Applied to Bar CWA Enforcement Action

The first case to present the res judicata issue was United States v. ITT Rayonier, Inc.,¹⁵⁵ in which the Ninth Circuit Court of Appeals held that res judicata barred a federal enforcement action following a resolution of the same issues in state court.

a. Procedural History of the ITT Rayonier Dispute

ITT Rayonier involved a dispute under the CWA regarding the appropriate interpretation to be given to a footnote attached to ITT Rayonier's discharge permit.¹⁵⁶ EPA approved the state of Washington's permit program in November 1973, transferring to the Washington Department of Ecology (WDOE) the authority to issue permits.¹⁵⁷ When WDOE issued ITT Rayonier a permit in August 1974, EPA had not yet promulgated effluent limitations for pulp mills.¹⁵⁸ Accordingly, in addition to incorporating discharge limitations based on prior legislation, WDOE and ITT Rayonier included a footnote in the permit which provided that "limitations will be modified to be consistent with the applicable final effluent guidelines when promulgated by EPA in the Federal Register, or as thereafter modified by final action consequent upon appeal from such guidelines."¹⁵⁹ The permit separately set forth a compliance schedule by which ITT Rayonier was to meet the permit standards.¹⁶⁰

Notably, although EPA did not exercise its veto authority¹⁶¹ when WDOE issued the permit to ITT Rayonier, EPA did express concern about ITT Rayonier's implementation plans in November 1975, suggesting to WDOE that ITT Rayonier would be a candidate for federal enforcement if WDOE did not take action.¹⁶² In response, WDOE issued a compliance order in December 1975. ITT Rayonier promptly appealed the order to the state Pollution Control Hearings Board (Board), asserting that the footnote "extended its compliance schedule pending final judicial approval of EPA's proposed effluent guidelines."¹⁶³ The Board disagreed with ITT Rayonier's construction of the permit and ordered ITT Rayonier to meet its permit compliance schedule.¹⁶⁴ ITT Rayonier appealed the Board's decision to state superior court, which issued a stay of the Board's order pending the appeal.¹⁶⁵

Before the state superior court ruled on the appeal, EPA, in March 1997, issued a notice of violation to ITT Rayonier and WDOE under CWA § 309(a)(1).¹⁶⁶ A few weeks later, the state superior court reversed the Board's decision, finding that the footnote excused compliance pending judicial approval of tinal effluent limitations.¹⁶⁷ Shortly there thereafter in April 1977, EPA filed its own enforcement action in in federal court seeking injunctive relief and civil penalties.¹⁶⁸ In October 1977, the federal "district court granted EPA's motion for summary judgment on the injunctive phase of the case and ordered immediate compliance with the permit," concluding that the footnote pertained "only to substitution of standards and not to modification of the compliance schedule."¹⁶⁹ ITT Rayonier appealed the district court's injunction order to the Ninth Circuit Court of Appeals.¹⁷⁰ While the appeal of the federal district court's decision was pending, the Washington Supreme Court affirmed the state superior court's decision an favor of ITT Rayonier's interpretation of the footnote, concluding that "the importance of final standards prior to (the expenditure of funds) establishes the natural interdependence of the standards . . . and the compliance schedule . . . ."¹⁷¹

In its appeal to the Ninth Circuit Court of Appeals, ITT Rayonier argued "that the judgment in the state enforcement action operates to preclude EPA's action."¹⁷² The district court had rejected this argument, concluding that no privity exists between WDOE and EPA for enforcement purposes given the broad language of CWA § 402(I), "which provides: 'Nothing in this section (pertaining to [national pollution discharge elimination system] NPDES) shall be construed to limit the authority of the [EPA] Administrator to take [enforcement] action. . . .'"¹⁷³

b. Ninth Circuit's Analysis of the CWA and Res Judicata

The Ninth Circuit began its analysis of the res judicata question with the following recitation of the law:

Under the doctrine of res judicata, "a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." . . . Under collateral [30 ELR 10630] estoppel principles, once an issue is actually litigated and necessarily determined, that determination is conclusive in subsequent suits based on a different cause of action but involving a party or privy to the prior litigation. . . . The purposes of these judicially created rules are to conserve judicial resources, protect litigants from multiple lawsuits, and foster certainty and reliance in legal relations. . . .

In the absence of "countervailing statutory policy," collateral estoppel bars relitigation of factual questions or mixed questions of law and fact. . . . We look to the statutory language and history of [the CWA]to determine if it creates a "special circumstance" warranting an exception to the normal rules of preclusion.¹⁷⁴

The Ninth Circuit found that the language of the CWA, as well as the legislative history of the CWA, reflect that the state and federal governments share a "'dual' or 'concurrent' enforcement authority"¹⁷⁵ which "does not per se negate the application of res judicata principles."¹⁷⁶ The Ninth Circuit further noted that state and federal enforcement actions are based on permits issued under a single act of Congress, the CWA, under which EPA retains authority to veto state-issued permits and to revoke state authority to issue permits.¹⁷⁷ Even though CWA § 402(I) "reserves EPA's authority to bring an enforcement action notwithstanding an approved state permit system with concomitant enforcement powers," such that state and federal enforcement actions could be filed concurrently, the court stated: "This does not necessarily preclude the operation of collateral estoppel after one action reaches finality."¹⁷⁸ Highlighting that "res judicata is a rule promoting harmony and cooperation between courts," the Ninth Circuit could "not perceive how the need for uniformity under [the CWA] is best promoted by conflicting judicial constructions and repeated agency prosecutions."¹⁷⁹ Accordingly, the Ninth Circuit concluded that the CWA does not manifest

countervailing policy reasons to abrogate the doctrine known generically as res judicata. If the EPA is dissatisfied with state enforcement efforts or the lack thereof it can revoke permit-issuing authority or bring an independent action in federal court. Where, as here, a state court has entered a final judgment on an identical issue, the EPA cannot invoke [the CWA] to avoid any preclusive effect that judgment may have.¹⁸⁰

c. Ninth Circuit's Analysis of Privity Between WDOE and EPA

Having concluded that the CWA does not abrogate res judicata, the Ninth Circuit next evaluated whether res judicata should bar EPA's action. Recognizing that the state and federal actions concerned the same operative facts, the Ninth Circuit noted that EPA's argument against the application of collateral estoppel was limited to its claim that "it was neither a party nor privy to the prior state court action."¹⁸¹ The Ninth Circuit proceeded to list a variety of reflections on "privity" for res judicata purposes, beginning with the U.S. Supreme Court's "substantial identity" language.¹⁸² Specifically, the court noted that a non-party "may be bound if he had a sufficient interest and participated in the prior action," that a "'privy' may include those whose interests are represented by one with authority to do so," and that a "non-party may be bound if a party is so closely aligned with its interests as to be its 'virtual representative.'"¹⁸³

Having laid this foundation, the Ninth Circuit concluded that "the interests of WDOE and the EPA were identical and their involvement sufficiently similar . . . . They share more than an abstract interest in enforcement."¹⁸⁴ The Ninth Circuit noted that WDOE took action in response to prompting by EPA, that WDOE took the same position asserted by EPA regarding the footnote in the permit, and that EPA did not suggest that WDOE failed to argue its position forcefully in the state court proceedings.¹⁸⁵ Acknowledging that the relationship between the state and EPA was not a strict agency relationship, the Ninth Circuit nonetheless concluded that however the relationship was labeled, it was "sufficiently 'close' under the circumstances to preclude relitigation of the issue already resolved in state court."¹⁸⁶

[30 ELR 10631]

2. Subsequent Cases Suggest Res Judicata May Have Limited Impact

Since the Ninth Circuit's decision in ITT Rayonier, and prior to Harmon, the question of res judicata had been raised, generally unsuccessfully, in only a handful of "overfiling" cases involving EPA enforcement action under the CAA, the CWA, and RCRA.¹⁸⁷ For example, in United States v. Lehigh Portland Cement Co.,¹⁸⁸ one of Lehigh's facilities was in violation of the Iowa SIP fugitive dust regulations.¹⁸⁹ The Iowa Department of Environmental Quality (IDEQ) had issued Lehigh a notice of violation which resulted in a consent order entered on March 5, 1984.¹⁹⁰ EPA commenced an enforcement action regarding the same violations on April 4, 1984.¹⁹¹ The defendant moved to dismiss arguing that the doctrines of issue and claim preclusion prevented the federal government from bringing an action in light of IDEQ's consent order resolving the same claims under state law.¹⁹²

The court rejected the defendant's argument. First, the court found no statutory limitation on EPA's authority to bring "an action when there is or was a parallel state proceeding."¹⁹³ The court specifically noted that by repealing "a statutory section which stated that federal enforcement was permitted only when violations resulted from a state's failure to take responsible grounds to enforce its standards," Congress must have intended not to bar federal agency enforcement action.¹⁹⁴ Second, the court distinguished the Ninth Circuit's decision in ITT Rayonier, noting that in ITT Rayonier "the previous action ended with a decision rendered by a state supreme court," whereas in the instant case, "there was no previous state court action, but rather an administrative consent order issued by a state agency."¹⁹⁵

Similarly, in United States v. Town of Lowell,¹⁹⁶ the town of Lowell argued that EPA should be precluded from bringing an enforcement action for the town of Lowell's violations of its discharge permit under the CWA because of an interlocutory administrative consent decree the town of Lowell had entered with the Indiana Stream Pollution Control Board (ISPCB).¹⁹⁷ The court described this claim as "groundless," noting that EPA invoked jurisdiction under CWA § 402(I), "which provides, 'Nothing in this section shall be construed to limit the authority of the Administrator to take action pursuant to section 1319 of this title.'"¹⁹⁸ The court found that the Ninth Circuit's decision in ITT Rayonier "actually supports the proposition that Federal enforcement is not precluded by a state agency proceeding."¹⁹⁹ "Since the consent decree . . . is not a determinative finding of fact, and the violations of the NPDES permit persist despite this agreement, the EPA's interest in bringing an independent action is proper."²⁰⁰

Most recently, in United States v. Environmental Waste Control, Inc.,²⁰¹ Environmental Waste Control (EWC) claimed that EPA and a citizens group, Supporters to Oppose Pollution (STOP), that had been allowed to intervene in a RCRA enforcement action, were precluded from bringing enforcement actions by virtue of a state administrative consent decree.²⁰² The court found this argument unavailing:

It does not appear that the administrative order in Cause N-128 would preclude any issues the EPA and STOP present in this action. On close analysis, it is apparent that EWC does not seek protection of the rules of collateral estoppel, but rather seeks immunity from suit by anyone but the State of Indiana based on future violations.²⁰³

Specifically, the court noted that because the violations alleged by EPA and STOP had occurred subsequent to entry of the administrative order in 1985, the order could not have addressed such violations and collateral estoppel cannot apply [30 ELR 10632] to such violations.²⁰⁴ The court further noted that EWC had failed to show "that the agreed administrative order in Cause N-128 constitutes the type of actual final decision on the merits required for issue preclusion."²⁰⁵

3. Summary of the Res Judicata Cases

Although the Ninth Circuit's decision in ITT Rayonier may have suggested that EPA would experience difficulty pursuing enforcement actions once states had commenced and concluded an enforcement action, the subsequent cases in which res judicata has been raised have shown that res judicata is hardly a panacea for regulated entities. Demonstrating both identity of claims and identity of parties has proven to be more difficult than the ITT Rayonier case might have suggested.²⁰⁶ Moreover, in many jurisdictions, administrative resolutions are not given the same preclusive effect as judicial resolutions.²⁰⁷

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

Part II will contain four separate sections. Section Two will explore in detail the decisions in Harmon, Smithfield, and CLEAN; Section Three will evaluate the statutory analysis arguments regarding overfiling under RCRA, the CWA, and the CAA in light of these cases; Section Four will address the res judicata arguments regarding overfiling under RCRA, the CWA, and the CAA in light of these cases; and Section Five will outline some thoughts on how EPA, the states, and the regulated parties are likely to respond to these recent decisions regarding overfiling.

1. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

2. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

3. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

4. Id. § 6912, ELR STAT. RCRA § 2002 (describing the authority of the EPA Administrator under RCRA); 33 U.S.C. § 1251(d), ELR STAT. FWPCA § 101(d) (identifying the EPA Administrator as the person to administer the CWA (except as otherwise expressly provided)); 42 U.S.C. § 7601, ELR STAT. CAA § 301 (describing authority of the EPA Administrator under the CAA).

5. See, e.g., 42 U.S.C. § 6926, ELR STAT. RCRA § 3006 (providing mechanism for states to administer and enforce hazardous waste program under RCRA); id. § 6991c, ELR STAT. RCRA § 9004 (providing mechanism for states to administer and enforce underground storage tank (UST) program under RCRA); 33 U.S.C. § 1342(b), ELR STAT. FWPCA § 402(b) (providing mechanism for states to administer and enforce the point source discharge permit program under the CWA); 33 U.S.C. § 1344(g), ELR STAT. FWPCA § 404(g) (providing mechanism for states to administer and enforce the permit program for discharging and filling "wetlands" under the CWA); 33 U.S.C. § 1318(c), ELR STAT. FWPCA § 308(c) (providing authorization of state programs for inspection and monitoring of point sources under the CWA); 42 U.S.C. § 7411(c), ELR STAT. CAA § 111(c) (providing for delegation to states of authority to implement and enforce new source performance standards under the CAA); 42 U.S.C. § 7412(1), ELR STAT. CAA § 112 (providing for delegation to states of authority and responsibility to implement and enforce emission standards and prevention requirements associated with hazardous air pollutants under the CAA). For a more extensive comparison of the statutory language authorizing state programs under each statute, see Section Four in Part II. See also ENVIRONMENTAL LAW INSTITUTE, COMPARISON OF FEDERAL-STATE ALLOCATION OF RESPONSIBILITY IN FIVE ENVIRONMENTAL STATUTES (1995).

6. The Environmental Council of the States (ECOS) maintains a list of approved programs under the various federal statutes which can be reviewed on its website. See RCRA http://www.sso.org/ecos/states/statutes/rcra.htm; CWA http://www.sso.org/ecos/states/statutes/cwa.htm; and CAA http://www.sso.org/ecos/states/statutes/caa.htm (each visited on Mar. 2, 2000).

7. Indeed, the environmental legislation of the 1970s is justified primarily as a necessary federal response to the states' inability to manage environmental issues with interstate impacts in a responsible manner. See, e.g., Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1211-12 (1977). For example, Congress expressed its concern that interstate competition for industry would lead to lower environmental standards in the debate regarding amendments to the CAA in 1970 and 1977. The legislative history in 1970 set forth the following rationale for federal establishment of new source performance standards: "The promulgation of Federal emission standards for new sources . . . will preclude efforts on the part of States to compete with each other . . . to attract new plants and facilities without assuring adequate control of . . . emissions." H.R. REP. No. 91-1146, at 3 (1970), reprinted in 1970 U.S.C.C.A.N. 5356, 5358. The legislative history to the CAA Amendments of 1977 contained the following statement in describing the need for the prevention of significant deterioration program:

Without national guidelines for the prevention of significant deterioration a State deciding to protect its clean air resources will . . . become the target of "economic-environmental blackmail" from new industrial plants that will play one State off against another with threats to locate in whichever State adopts the most permissive pollution controls.

H.R. REP. No. 95-294, at 134 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1213.

More recently, there has been a significant debate among the legal community regarding the validity of the premise that in the absence of federal minimum standards, states will fail to adequately protect the environment. Compare Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992) with Jerome M. Organ, Limitations on State Agency Authority to Adopt Environmental Standards More Stringent Than Federal Standards: Policy Considerations and Interpretive Problems. 54 MD. L. REV. 1373, 1392-93 (1995) and Kirsten H. Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "to the Bottom"?, 48 HASTINGS L.J. 274 (1997); and compare Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535 (1997) with Scott R. Saleska & Kirsten H. Engel, "Facts Are Stubborn Things": An Empirical Reality Check in the Theoretical Debate Over the Race-to-the-Bottom in State Environmental Standard-Setting, 8 CORNELL J.L & PUB. POL'Y 55 (1998).

8. For example, the differing perspectives EPA and the states have on promoting compliance has manifested itself in an ongoing debate regarding audit privilege statutes. EPA's audit policy—Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 60 Fed. Reg. 66706 (Dec. 22, 1995)—allows for mitigation of gravity-based penalties for facilities that self-report violations in compliance with the several conditions set forth in the audit policy. Several states, by contrast, have passed broader audit privilege statutes offering regulated entities greater protection when self-reporting violations. See E. Blaine Rawson, Overfiling and Audit Privileges Strain EPA-State Relations, 13 NAT. RESOURCES & ENV'T 483 (1999); David Sive, Environmental Audits, SD88 ALI-ABA 199 (Westlaw 1999) (listing state statutes providing for audit protection). See also Nancy K. Stoner & Wendy J. Miller, National Conference of State Legislatures Study Finds That State Environmental Audit Laws Have No Impact on Company Self-Auditing and Disclosure of Violations, 29 ELR 10265 (May 1999); John-Mark Stensvaag, The Fine Print of State Environmental Audit Privileges, 16 UCLA J. ENVTL. L. & POL'Y 69 (1997-1998).

Other commentators also have highlighted that states appear to have a greater interest than EPA in promoting compliance through methods other than strict enforcement of environmental laws. See, e.g., 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, 53, 63 (2000); Cliff Rechtschaffen, Deterrence vs. Cooperation and the Evolving Theory of Environmental Enforcement, 71 S. CAL. L. REV. 1181, 1184 (1998); David R. Hodas, Enforcement of Environmental Law in a Triangular Federal 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, 1616 (1995).

9. See Markell, supra note 8, at 43-61 (discussing several audits of state and federal enforcement practices and highlighting several shortcomings, including inadequate monitoring of regulated entities, failure to pursue timely enforcement, and failure to recover penalties sufficient to negate any economic benefit the violator experienced as a result of failing to comply with the law); Hodas, supra note 8, at 1603-17 (discussing inadequate enforcement by EPA and states under the CWA).

10. See, e.g., 42 U.S.C. § 6926(e), ELR STAT. RCRA § 3006(e) (providing mechanism for withdrawal of state authorization of Subtitle C program under RCRA following notice that state program is not being administered and enforced in accordance with statutory requirements); 42 U.S.C. § 6991c(e), ELR STAT. RCRA § 9004(e) (providing mechanism for withdrawal of state authorization of the UST program under RCRA following notice that state program is not being administered and enforced in accordance with statutory requirements); 33 U.S.C. § 1342(c)(3), ELR STAT FWPCA § 402(c)(3) (providing mechanism for withdrawal of authorization of state program to administer and enforce the point source discharge permit program under the CWA following notice that state program is not being administered and enforced in accordance with statutory requirements); 33 U.S.C. § 1344(I), ELR STAT. FWPCA § 404(I) (providing mechanism for withdrawal of authorization of state program to administer and enforce the permit program for discharging and filling "wetlands" under the CWA following notice that state program is not being administered and enforced in accordance with statutory requirements); 42 U.S.C. § 7412(1)(6), ELR STAT. CAA § 112(1)(6) (providing mechanism for withdrawal of authority and responsibility to implement and enforce emission standards and prevention requirements associated with hazardous air pollutants under the CAA following notice that the state program is not being administered and enforced in accordance with statutory requirements). See ENVIRONMENTAL LAW INSTITUTE, FEDERAL OVERSIGHT OF AUTHORIZED STATE ENVIRONMENTAL PROGRAMS: REFORMING THE SYSTEM 4-6 (1995) [hereinafter FEDERAL OVERSIGHT].

11. The term "overfiling" appears to have been coined by EPA in 1986. See Steven D. Cook, State/Federal Enforcement of the Clean Air Act and Other Federal Pollution Laws: Federal Overfiling on State Enforcement Proceedings, 1987 BYUL. Rev. 1085; U.S. EPA, GUIDANCE ON RCRA OVERFILING (May 19, 1986) (available from ELR Document Service, ELR Order No. AD-3708); In re Martin Elecs., Inc., No. RCRA-84-45-R at 2 (July 28, 1986) (order for sua sponte review—citing "Guidance on RCRA Overfiling"). Commentators generally define "overfiling" narrowly—limiting the "overfiling" scenario to circumstances in which EPA brings an action subsequent to a state enforcement action, see, e.g., Cook, supra, Markell, supra note 8, at 85. For purposes of this Article, however, "overfiling" will be defined to encompass a broader set of circumstances—EPA engages in overfiling whenever it takes enforcement action in a state with an approved program, regardless of whether its enforcement action arises subsequent to a concluded state enforcement action, contemporaneous with a state enforcement action or in the absence of a state enforcement action.

12. Withdrawal of program approval has been largely ineffective as a tool to influence state behavior because states understand that EPA is unlikely to withdraw program approval given that it generally lacks the resources to take responsibility for implementing programs. See Rena I. Steinzor & William F. Piermattei, Reinventing Environmental Regulation Via the Government Performance and Results Act: Where's the Money?, 28 ELR 10563, 10573 n.105 (1998). Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 MD. L. REV. 1141, 1175 (1995). Indeed, although EPA has threatened to withdraw program approval in some cases, it has not done so to date. U.S. GAO, EPA AND THE STATES—ENVIRONMENTAL CHALLENGES REQUIRE A BETTER WORKING RELATIONSHIP, 18 GAO/RCED 95-64 (1995), cited in Markell, supra note 8, at 93 n.363. Congress appears to have anticipated that withdrawal of state program approval would be a rare event: "'[A] total takeover [of a state's national pollutant discharge elimination system (NPDES) permit program] would result in chaos both at the State and Federal level. It should be exercised only when there is clear evidence that the entire state program has fallen into disrepair.'" 118 CONG. REC. 10241 (Mar. 27, 1972) (statement of Rep. Henry Reuss (D-Wis.)), quoted in Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 890 F. Supp. 470, 495, 26 ELR 20457, 20469 (D.S.C. 1995).

Nonetheless, by threatening withdrawal of program approval, EPA sometimes can cajole states into making incremental changes in state programs. For example, "Texas and Utah modified their environmental audit and immunity laws because of EPA's threatened withdrawal of delegated authority." Rawson, supra note 8, at 486 (citing States Change Laws at the Behest of EPA, CHEMICAL WK., Apr. 9, 1997).

13. See supra note 9.

14. Steven A. Herman, Assistant Administrator of EPA's Office of Enforcement and Compliance Assurance (OECA) testified before the Senate Committee on Environment and Public Works in 1997 as follows:

Statistics show that overfiling is in fact a rare event. As reported by a state-by-state survey conducted by ECOS, the Agency overfiled on about 30 cases or 0.3% of all federal enforcement action during fiscal years 1992 through 1994. During fiscal years 1994 and 1995, the Agency overfiled on a total of 18 cases or about 0.1% of state enforcement cases. From October 1995 through September 1996, there was a total of four overfiling cases.

The Relationship Between Federal and State Governments in the Enforcement of Environmental Laws: Hearings Before the Senate Comm. on Env't and Public Works, 105th Cong. 7 (1997) (statement of Steven A. Herman, Assistant Administrator, OECA, U.S. EPA) [hereinafter Herman Testimony], quoted in Markell, supra note 8, at 85-86.

15. See, e.g., EPA v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 20 ELR 20035 (N.D. Ind. 1989), aff'd, 917 F.2d 327, 21 ELR 20007 (7th Cir. 1990), cert. denied, 499 U.S. 975, 111 S. Ct. 1621 (1991) (RCRA); United States v. ITT Rayonier, Inc., 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980) (CWA); United States v. Town of Lowell, Ind., 637 F. Supp. 254 (N.D. Ind. 1985) (CWA); United States v. Lehigh Portland Cement Co., No. 84-3030, 1984 WL 2853 (N.D. Iowa Dec. 12, 1984) (CAA).

In addition to the judicial decisions identified above, there have been a number of administrative decisions, particularly under RCRA. See, e.g., In re Harmon Elecs., Inc., No. RCRA VII-91-H-0037, 1993 WL 326423, 30 ELR 47074 (EPA Aug. 17, 1993) (original order), aff'd, 1994 WL 730509, 30 ELR 47009 (EPA Dec. 12, 1994) (initial decision), aff'd, RCRA Appeal No. 94-4, 1997 WL 133778, 27 ELR 40616 (EPA Mar. 24, 1997) (final order), rev'd, Harmon Ind., Inc. v. Browner, 19 F. Supp. 2d 988, 29 ELR 20035 (W.D. Mo. 1998), aff'd, 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999); In re Beaumont Co., No. RCRA-III-231, 1994 WL 711200 (EPA Oct. 20, 1994) (order granting in part motion for accelerated decision), rev'd, RCRA Appeal No. 94-3, 1997 WL 273141 (EPA Apr. 22, 1997) (decision on interlocutory appeal); In re Southern Timber Prods., Inc., RCRA Appeal No. 89-2, 1990 WL 303833, 3 E.A.D. 371 (EPA Nov. 13, 1990) (final decision) (available from the ELR Document Service, ELR Order No. ALJ-165), motion denied, 1992 WL 82626, 3 E.A.D. 880 (EPA Feb. 28, 1992) (available from the ELR Document Service, ELR Order No. ALJ-165); In re Martin Elecs., Inc., No. RCRA-84-45-R, 1985 WL 57142 (EPA June 21, 1985) (initial decision) (available from the ELR Document Service, ELR Order No. ALJ-47) (Martin I), reconsideration denied by, 1986 WL 69018 (EPA Jan. 14, 1986) (decision on motion to reconsider) (available from the ELR Document Service, ELR Order No. ALJ-57) (Martin II), review granted by, 1986 WL 69038 (EPA July 28, 1986) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-82), aff'd in part & vacated in part by, 1987 WL 109670, 2 E.A.D. 381 (EPA June 22, 1987) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-96) (Martin III); In re BKK Corp., No. RCRA-IX-84-0012, 1984 WL 50073 (EPA Apr. 13, 1984) (opinion and order on motion for an accelerated decision) (available from the ELR Document Service, ELR Order No. ALJ-31) (BKK I), aff'd by, RCRA Appeal No. 84-5, 1985 WL 57139, 2 E.A.D. 35 (EPA May 10, 1985) (final order) (available from the ELR Document Service, ELR Order No. ALJ-32) (BKK II), vacated by, RCRA Appeal No. 84-5, 1985 WL 57150, 2 E.A.D. 93 (EPA Oct. 23, 1985) (order on petition for reconsideration) (available from the ELR Document Service, ELR Order No. ALJ-53) (BKK III).

A few other cases have arisen under the broader view of overfiling that encompasses disputes arising in the concurrent enforcement context. See, e.g., United States v. SCM Corp., 615 F. Supp. 411, 15 ELR 21007 (D. Md. 1985); United States v. Cargill, 508 F. Supp. 734, 11 ELR 20649 (D. Del. 1981); United States v. Interlake, Inc., 429 F. Supp. 193, 7 ELR 20494 (N.D. Ill. 1977).

In addition, a handful of cases have discussed as part of a holding, or in dicta, EPA's authority to act in the absence of enforcement action in a state with an approved program. See, e.g., Wyckoff Co. v. EPA, 796 F.2d 1197, 16 ELR 20866 (9th Cir. 1986); Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 17 ELR 20215 (7th Cir. 1986) (dicta); Buckeye Power, Inc. v. EPA, 481 F.2d 162, 3 ELR 20634 (6th Cir. 1973) (dicta); Waste Management of Ill., Inc. v. EPA, 714 F. Supp. 340, 19 ELR 21465 (N.D. Ill. 1989) (dicta); United States v. T&S Brass & Bronze Works, Inc., 681 F. Supp. 314, 18 ELR 20905 (D.S.C. 1988) (dicta); United States v. Rogers, 685 F. Supp. 201 (D. Minn. 1987) (dicta); In re CID-Chem. Waste Management of Ill., Inc., RCRA Appeal No. 97-11, 1988 WL 391528 (EPA Aug. 18, 1988) (dicta); In re Triangle Metallurgical, Inc., No. RCRA-V-W-87-R-009, 1987 WL 290498 (EPA Dec. 9, 1987) (dicta) (opinion and order denying motion to dismiss).

16. See, e.g., Gary A. Jonesi, Environmental Enforcement Becomes Federalism's Hazardous Battleground, Daily Env't Rep. (BNA), May 8, 2000, at B-1; Markell, supra note 8; Rechtschaffen, supra note 8; Rawson, supra note 8; Steinzor & Piermattei, supra note 12; Herman Testimony, supra note 14; Hodas, supra note 8; Percival, supra note 12; William D. Benton, Application of Res Judicata and Collateral Estoppel to EPA Overfiling, 16 B.C. ENVTL. AFF. L. REV. 199 (1988); Cook, supra note 11; U.S. EPA. GUIDANCE ON RCRA OVERFILING (May 19, 1986) (available from ELR Document Service, ELR Order No. AD-3708); Memorandum from Lee Thomas, U.S. EPA Administrator, on Enforcement Response Policy, to all EPA regions (Dec. 21, 1984); Memorandum from Alvin L. Alm, Deputy Administrator of EPA, on Implementing State/Federal Partnership in Enforcement: State/Federal Enforcement "Agreements," to all EPA regions (June 26, 1984); and U.S. EPA, INTERIM NATIONAL CRITERIA FOR A QUALITY HAZARDOUS WASTE MANAGEMENT PROGRAM UNDER RCRA (May 1984) (EPA OSWER Doc. No. 530-SW-84-006).

17. 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999).

18. 191 F.3d 516, 30 ELR 20076 (4th Cir. 1999).

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

20. See infra notes 25-207 and accompanying text.

21. See infra Section Two in Part II.

22. See infra Section Three in Part II.

23. See infra Section Three in Part II.

24. See infra Section Five in Part II.

25. 481 F.2d 162, 3 ELR 20634 (6th Cir. 1973).

26. The Eighth Circuit Court of Appeals and the Third Circuit Court of Appeals also issued decisions in the 1970s in which they discussed res judicata in the general context of state and federal enforcement, but their decisions did not directly relate to the overfiling issue. See Reserve Mining Co. v. EPA, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975); United States v. Pennsylvania Envtl. Hearing Bd., 584 F.2d 1273, 8 ELR 20689 (3d Cir. 1978). In the Reserve Mining case, Reserve Mining argued that previous litigation in state court should bar the state of Minnesota from litigating issues decided in the state court. The Eighth Circuit, however, ruled that previous non-final state court decisions which did not address the merits of the question of the facility's pollution did not warrant applying res judicata in this case. 514 F.2d at 534, 5 ELR at 20614. In the Pennsylvania Environmental Hearing Board case, the Third Circuit simply noted in dicta that the parties had not "raised or argued the question of whether the now-final determination of the Pennsylvania Environmental Hearing Board precludes further inquiry into the matters raised on this appeal under principles of Res judicata," and then directed readers to discussions of the possible application of res judicata to administrative decisions. 584 F.2d at 1276 n.15, 8 ELR at 20690 n.15 (citing Painters Dist. Council No. 38 v. Edgewood Contracting Co. 416 F.2d 1081 (5th Cir. 1969) and 2 K. DAVIS, ADMINISTRATIVE LAW TREATISE ch. 18 (1958 & Supp. 1970)).

Other courts in the 1970s discussed in dicta the state-federal relationship contemplated under the CWA and the CAA without discussing the overfiling issue directly. For example, in Save the Bay v. Administrator, 556 F.2d 1282, 7 ELR 20674 (5th Cir. 1977), a case involving a challenge to EPA's refusal to veto a permit issued by a state agency, the Fifth Circuit referenced the legislative history of the CWA in describing the relationship between EPA and a state with an approved program under the CWA:

If the State fails to carry out its responsibility or misuses the permit program, the Administrator is fully authorized to withdraw his approval of the State plan or in the case of an individual permit which does not meet regulations and guidelines in the Act, preclude the issuance of such permit. It is intended, however, that the Administrator shall not take such action except upon a clear showing of failure on the part of the State to follow the guidelines or otherwise to comply with the law.

Id. at 1287, 7 ELR at 20676 (quoting 118 CONG. REC. 33750 (1972) (statement of Rep. Jones). The court also cited the statement of Congressman Wright: "'The managers expect the Administrator to use this [veto] authority judiciously; it is their intent that the Act be administered in such a manner that the abilities of the States to control their permit programs will be developed and strengthened.'" Id. at 1294, 7 ELR at 20680 (quoting 118 CONG. REC. 33761 (1972) (statement of Rep. Wright). The court's conclusion is particularly eloquent:

We have been called upon to examine a statutory scheme that has the potential for the optimum of federalism. The legislation contains problems of accommodation that will require additional interstitial interpretation and environmental exploration as the partners pirouette. The success of their federalist venture will depend not only upon the grace, but also the substance of movement by both partners in the ballet. We have endeavored to ink a most self-effacing role for the federal judiciary, one which should foster a harmonious background to the dance and necessitate intervention only when a point of unmelodious discord seriously threatens the contrapuntal balance.

Id. at 1296-97, 7 ELR at 20681. See also Shell Oil Co. v. Train, 585 F.2d 408, 410, 412, 9 ELR 20023, 20024 (9th Cir. 1978) (noting that Congress envisioned that the states would have the major role in operating the CWA permit program but also noting that states are not acting as the EPA's agents).

27. Buckeye Power, 481 F.2d at 167, 3 ELR at 20635 (citing 42 U.S.C. §§ 1857c-8 and 1857c-9(b)(1)&(2) (1973 Supp.)).

28. Id. (Emphasis added.) The court justified this statement by noting that because "both federal and state courts acquire jurisdiction by a single Act of Congress, we do not think that Congress ever intended that the parties defendant to enforcement proceedings would be subject to double penalties, i.e., penalties in each jurisdiction." Id.

29. Federal courts have consistently rejected the premise that whichever sovereign files first obtains exclusive jurisdiction. Instead, in concurrent enforcement cases, courts generally have been asked to decide whether they should refrain under the principles of abstention from hearing a federal enforcement action when a state with an approved program is in the process of pursuing an administrative or judicial enforcement action. See, e.g., United States v. SCM Corp., 615 F. Supp. 411, 15 ELR 21007 (D. Md. 1985) (refusing to dismiss claims based on abstention and denying request for stay); United States v. Cargill, Inc., 508 F. Supp. 734, 11 ELR 20649 (D. Del. 1981) (refusing to dismiss claims based on abstention, but granting limited stay); United States v. Interlake, Inc., 429 F. Supp. 193, 7 ELR 20494 (N.D. Ill. 1977) (granting stay based on Pullman Abstention).

For example, in Cargill, the court was asked to dismiss or stay the federal government's CWA enforcement action in light of the defendant's ongoing implementation of a consent decree it had entered with the state. 508 F. Supp. at 737, 11 ELR at 20650. The court found that none of the possible bases for abstention—the Pullman Abstention, the Burford Abstention, and the Younger Abstention—warranted dismissing or staying EPA's enforcement action. Id. at 745-47, 11 ELR at 20654-55. The "Pullman Abstention" comes into play "where a constitutional issue has been presented which might be mooted or presented in a different posture by a state court determination of unelucidated pertinent state law." Id. at 745, 11 ELR at 20654 (citing Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643 (1941)). The court found the Pullman Abstention unwarranted because Cargill had not clearly shown a serious constitutional claim, the existence of an unsettled question of state law, or that an interpretation of an unsettled question of state law will negate the need to resolve the constitutional issue. Id. at 746, 11 ELR at 20654-55 (distinguishing the decision in Interlake. 429 F. Supp. at 193, 7 ELR at 20494 (finding Pullman Abstention applicable in case under the CAA)). The Burford Abstention comes into play "where the exercise of federal jurisdiction would substantially interfere with a state's efforts to enforce a coherent system of purely state regulation of importance to the state. Id. at 745, 11 ELR at 20654 (citing Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098 (1943)). The court found the Burford Abstention "singularly inappropriate," given that the CWA represents a "pervasive federal system of regulation" from which Congress has carved out some areas for state regulation. Id. at 746-47,11 ELR at 20655. The Younger Abstention comes into play "where absent special circumstances federal jurisdiction is sought to restrain criminal proceedings or state nuisance proceedings" similar to criminal proceedings. Id. at 745, 11 ELR at 20654 (citing Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971)). The court distinguished Younger because EPA's action was not brought to restrain state nuisance proceedings but to vindicate an independent purpose under federal law which would impact the state nuisance action only if the court imposed a remedy in the federal action inconsistent with the state imposed remedy. Id. at 747.

Nonetheless, because the federal enforcement proceeding had resulted in a cessation of Cargill's implementation of the state consent decree (to the detriment of the environment), the Cargill court concluded that under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S. Ct. 1236 (1976), a limited stay would be appropriate. Cargill, 508 F. Supp. at 748-50, 11 ELR at 20656. "No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counseling against that exercise is required." Id. (quoting Colorado River Water Conservation Dist., 424 U.S. at 818-19, 96 S. Ct. at 1246-47). Notably, in SCM Corp., 615 F. Supp. at 411, 15 ELR at 21007, an enforcement action under the CAA, the court refused to follow Cargill and denied the request for a stay under the Colorado River doctrine. Id. at 419 n.24, 15 ELR at 21011 n.24.

For a more extensive discussion of the abstention principles in the context of state/federal environmental enforcement, see Hodas, supra note 8, at 1595-602; William D. Benton, Application of Res Judicata and Collateral Estoppel to EPA Overfiling, 16 B.C. ENVTL AFF. L. REV. 199, 269-77 (1988). Although the concurrent enforcement scenario arguably presents the same type of federalism tension as the consecutive enforcement scenario, the legal issues are framed much differently in the consecutive enforcement scenario. As the preceding discussion suggest, in the concurrent enforcement scenario, the focus is on judicial discretion under the abstention doctrine or some variation. By contrast, in the consecutive enforcement scenario, in which the state has concluded its enforcement action while EPA's enforcement action continues, the focus is on EPA's ability to continue to pursue an enforcement action either due to limitations on EPA's statutory authority or to the application of res judicata. This Article focuses solely on the statutory authority and res judicata issues presented in the consecutive enforcement scenario in which the state has concluded its enforcement action prior to EPA's filing of its enforcement action while EPA's enforcement action continues.

30. See infra Section Three in Part II.

31. See infra Section Four in Part II.

32. See infra Section Three in Part II.

33. See infra Section Four in Part II.

34. See, e.g., EPA v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 20 ELR 20035 (N.D. Ind. 1989), aff'd, 917 F.2d 327, 21 ELR 20007 (7th Cir. 1990), cert. denied, 499 U.S. 975, 111 S. Ct. 1621 (1991) (RCRA); Wyckoff Co. v. EPA, 796 F.2d 1197, 16 ELR 20866 (9th Cir. 1986); Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 17 ELR 20215 (7th Cir. 1986) (dicta); Waste Management of Ill., Inc. v. EPA, 714 F. Supp. 340, 19 ELR 21465 (N.D. Ill. 1989) (dicta); United States v. T&S Brass & Bronze Works, Inc., 681 F. Supp. 314, 18 ELR 20905 (D.S.C. 1988) (dicta); United States v. Rogers, 685 F. Supp. 201 (D. Minn. 1987) (dicta).

35. See, e.g., United States v. ITT Rayonier, Inc., 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980) (defendant did not assert lack of statutory authority, but argued that res judicata barred the claim); United States v. Town of Lowell, Ind., 637 F. Supp. 254 (N.D. Ind. 1985) (defendant also only argued res judicata); United States v. SCM Corp., 615 F. Supp. 411, 15 ELR 21007 (D. Md. 1985) (defendant claimed federal action should be barred by res judicata and should be stayed or dismissed due to abstention/preemption, not lack of statutory authority); United States v. Lehigh Portland Cement Co., No. 84-3030, 1984 WL 2853 (N.D. Iowa Dec. 12, 1984) (res judicata, not lack of statutory authority); United States v. Cargill, Inc., 508 F. Supp. 734, 11 ELR 20649 (D. Del. 1981) (defendant claimed federal action should be stayed or dismissed due to abstention/preemption, not lack of statutory authority); United States v. Interlake, Inc., 429 F. Supp. 193, 7 ELR 20494 (N.D. Ill. 1977) (defendant also argued abstention instead of lack of statutory authority). This may be because the statutory language in the CWA and the CAA is so much different than under RCRA that regulated parties concluded that such arguments were untenable. See infra Section Three in Part II (discussing the analysis of the statutory language under the CWA and the CAA).

36. 796 F.2d 1197, 16 ELR 20866 (9th Cir. 1986).

37. Id. at 1198-99, 16 ELR at 20866-67.

38. Id. at 1198, 16 ELR at 20866, RCRA § 3013 authorizes EPA to order the owner or operator of a facility to conduct monitoring, testing, analysis, and reporting EPA deems reasonable "to ascertain the nature and extent of such hazard." 42 U.S.C. § 6934(a), ELR STAT. RCRA § 3013(a). Notably, RCRA § 3013 does not contain any express language indicating that a state can seek approval of its own monitoring, testing, analysis, and reporting program.

39. Wyckoff Co., 796 F.2d at 1197-98, 16 ELR at 20866-67.

40. Id. The Ninth Circuit noted that a party seeking preliminary relief must clearly show either probable success on the merits and possible irreparable injury or sufficiently serious questions going to the merits to justify litigation with the equities decidedly favoring the party seeking relief. Id. at 1198, 16 ELR at 20866 (citing Lydo Enters. v. City of Las Vegas, 745 F.2d 1211, 1212 (9th Cir. 1984)). The Ninth Circuit further noted that where the public health and welfare depend on enforcement of a federal environmental statute a weighing of the public interest is especially important in deciding whether to grant preliminary relief. Id. (citing United States v. Akers, 785 F.2d 814, 823, 16 ELR 20538, 20543 (9th Cir. 1986)).

41. Id.

42. Id. at 1199, 16 ELR at 20866-67 (citing 42 U.S.C. § 6926, ELR STAT. RCRA § 3006).

43. Id. (quoting id. § 6926(c), ELR STAT. RCRA § 3006(c)).

44. Id. (quoting id. § 6926(d), ELR STAT. RCRA § 3006(d)).

45. Id. at 1200, 16 ELR at 20867-68. The court stated: "The linchpin of Wyckoff's argument is that the term 'program' in section 3006 encompasses 'the sum of the hazardous waste management authorities and activities described any where in subtitle C' of the Act, including section 3013." Id. at 1199-200, 16 ELR at 20866-67.

46. 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781-82, 14 ELR 20507, 20508 (1984).

47. Wyckoff Co., 796 F.2d at 1200, 16 ELR at 20866-67 (quoting Chevron, 467 U.S. at 842-43, 14 ELR at 20508).

48. Id. The court noted that RCRA does not even define "program" or "Federal program," and that nowhere does the statute or the legislative history make clear "that EPA's section 3013 power is part of the 'Federal program' to be supplanted under section 3006." Id.

49. Id. Indeed, the Ninth Circuit interpreted RCRA § 3008(a)(2) not as a reservation of federal authority, but as a limitation on federal authority: "In other words, were section 3008(a)(2) to be eliminated from the Act, the apparent effect would not be to withdraw federal authority under section 3008 wherever authorized state programs are in effect; rather, it would be to free federal section 3008 authority of the notice requirement." Id. at 1201, 16 ELR at 20867.

50. Id. The question of EPA's authority to take enforcement action under state law resulting in imposition of federal penalties as opposed to state penalties in a state with an approved RCRA program has arisen recently in a criminal enforcement action. See United States v. Elias, No. 4:98-CR-70 (D. Idaho Apr. 26, 2000) (finding that EPA could pursue 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). For a more significant discussion of the issues raised in Elias, see infra Section Five in Part II.

51. Wyckoff Co., 796 F.2d at 1200, 16 ELR at 20866-67 (quoting Chevron, 467 U.S. at 842-43, 14 ELR at 20508).

52. 804 F.2d 371, 17 ELR 20215 (7th Cir. 1986).

53. Id. at 375-76, 17 ELR at 20217.

54. Id.

55. Id. at 381-82, 17 ELR at 20220.

56. Id. at 382, 17 ELR at 20220. The Seventh Circuit's dicta in Northside Sanitary Landfill regarding constraints on EPA's ability to overfile under RCRA should be contrasted with the dicta in other cases regarding EPA's authority to overfile under the CWA and the CAA. For example, in United States v. ITT Rayonier, Inc., 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980), the Ninth Circuit discussed in dicta EPA's ability to take enforcement action when a state with an approved NPDES program had already taken enforcement action: "If the EPA is dissatisfied with state enforcement efforts or lack thereof it can revoke the permit issuing authority or bring an independent action in a federal court." 627 F.2d at 1002, 10 ELR at 20948. Similarly, in United States v. Lehigh Portland Cement Co., No. 84-3030, 1984 WL 2853 (N.D. Iowa Dec. 12, 1984), the court discussed in dicta EPA's ability to take enforcement action under the CAA when a state has an approved SIP, stating that there is no statutory "limitation on the EPA . . . in bringing an action when there is or was already a parallel state proceeding." 1984 WL 2853, at * 3. See supra note 28 and accompanying text (discussing dicta in Buckeye Power).

57. 660 F. Supp. 1236, 17 ELR 20970 (N.D. Ind. 1987)

58. 698 F. Supp. 1422, 19 ELR 20674 (N.D. Ind. 1988).

59. Conservation Chem., 660 F. Supp. at 1243-45, 17 ELR at 20974-75; Environmental Waste Control, Inc., 698 F. Supp. at 1437, 19 ELR at 20681.

60. Conservation Chem., 660 F. Supp. at 1244, 17 ELR at 20974.

61. Id. at 1245, 17 ELR at 20975 (quoting 5 U.S.C.C.A.N. 6238, 6269).

62. Id.

63. 698 F. Supp. at 1437-38, 19 ELR at 20681. Other courts and administrative law judges likewise have stated, generally in dicta, that EPA retains enforcement authority in a state with an approved RCRA program. See Waste Management of Ill., Inc. v. EPA, 714 F. Supp. 340, 19 ELR 21465 (N.D. Ill. 1989) (stating in dicta that "the Administrator may take enforcement action in a state with its own hazardous waste program, as long as he informs the state before taking action"); United States v. T&S Brass & Bronze Works, Inc., 681 F. Supp. 314, 316, 18 ELR 20905, 20906 (D.S.C. 1988) (citing Conservation Chem. for the proposition that even though South Carolina has an approved program, EPA retains authority to enforce the state regulations under RCRA); United States v. Rogers, 685 F. Supp. 201 (D. Minn. 1987) (stating that RCRA empowers EPA to enforce violations which occur in an authorized state merely by notifying the state in conformance with the requirements of 42 U.S.C. § 6928(a)(2), ELR STAT. RCRA § 3008(a)(2)); In re CID-Chem. Waste Management of Ill., Inc., RCRA Appeal No. 97-11, 1988 WL 391528 (EPA Aug. 18, 1988); In re Triangle Metallurgical, Inc., No. RCRA-V-W-87-R-009, 1987 WL 290498 (EPA Dec. 9, 1987) (dicta) (opinion and order denying motion to dismiss).

64. In re Beaumont Co., No. RCRA-III-231, 1994 WL 711200 (EPA Oct. 20, 1994) (order granting in part motion for accelerated decision), rev'd, RCRA Appeal No. 94-3, 1997 WL 273141 (EPA Apr. 22, 1997) (decision on interlocutory appeal); In re Harmon Elecs., Inc., No. RCRA VII-91-H-0037, 1993 WL 326423, 30 ELR 47074 (EPA Aug. 17, 1993) (original order), aff'd, 1994 WL 730509, 30 ELR 47009 (EPA Dec. 12, 1994) (initial decision), aff'd, RCRA Appeal No. 94-4, 1997 WL 133778, 27 ELR 40616 (EPA Mar. 24, 1997) (final order), rev'd, Harmon Ind., Inc. v. Browner, 19 F. Supp. 2d 988, 29 ELR 20035 (W.D. Mo. 1998), aff'd, 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999); In re Southern Timber Prods., Inc., RCRA Appeal No. 89-2, 1990 WL 303833, 3 E.A.D. 371 (EPA Nov. 13, 1990) (final decision) (available from the ELR Document Service, ELR Order No. ALJ-165), motion denied, 1992 WL 82626, 3 E.A.D. 880 (EPA Feb. 28, 1992) (available from the ELR Document Service, ELR Order No. ALJ-165); In re Martin Elecs., Inc., No. RCRA-84-45-R, 1985 WL 57142 (EPA June 21, 1985) (initial decision) (available from the ELR Document Service, ELR Order No. ALJ-47) (Martin I), reconsideration denied by, 1986 WL 69018 (EPA Jan. 14, 1986) (decision on motion to reconsider) (available from the ELR Document Service, ELR Order No. ALJ-57) (Martin II), review granted by, 1986 WL 69038 (EPA July 28, 1986) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-82), aff'd in part & vacated in part by, 1987 WL 109670, 2 E.A.D. 381 (EPA June 22, 1987) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-96) (Martin III); In re BKK Corp., No. RCRA-IX-84-0012, 1984 WL 50073 (EPA Apr. 13, 1984) (opinion and order on motion for an accelerated decision) (available from the ELR Document Service, ELR Order No. ALJ-31) (BKK I), aff'd, RCRA Appeal No. 84-5, 1985 WL 57139, 2 E.A.D. 35 (EPA May 10, 1985) (final order) (available from the ELR Document Service, ELR Order No. ALJ-32) (BKK II), vacated by, RCRA Appeal No. 84-5, 1985 WL 57150, 2 E.A.D. 93 (EPA Oct. 23, 1985) (order on petition for reconsideration) (available from the ELR Document Service, ELR Order No. ALJ-53) (BKK III).

65. No. RCRA-IX-84-0012, 1984 WL 50073 (EPA Apr. 13, 1984) (opinion and order on motion for an accelerated decision) (available from the ELR Document Service, ELR Order No. ALJ-31) (BKK I), aff'd by, RCRA Appeal No. 84-5, 1985 WL 57139, 2 E.A.D. 35 (EPA May 10, 1985) (final order) (available from the ELR Document Service, ELR Order No. ALJ-32) (BKK II), vacated by, RCRA Appeal No. 84-5, 1985 WL 57150, 2 E.A.D. 93 (EPA Oct. 23, 1985) (order on petition for reconsideration) (available from the ELR Document Service, ELR Order No. ALJ-53) (BKK III).

66. Id. at * 1.

67. Id. (citing 46 Fed. Reg. 29935) (June 4, 1981). The ALJ recognized that because RCRA § 3006(c) provided only a 24-month period of interim authorization, California's interim authorization had lapsed prior to the inspection conducted on June 8-9, 1983. Nonetheless, the ALJ stated that because EPA had not indicated that it regarded "the authorization as anything other than fully effective . . . this decision is based upon the assumption interim authorization to the state is in effect." Id. at * 12.

68. Id.

69. Id. at * 4. Although the $ 47,500 was described as reimbursement of administrative costs rather than a penalty, the Chief Judicial Officer (CJO) noted that "it is tantamount to [a penalty], and any difference between the meaning of the terms costs and penalty is largely semantic." BKK II, 1985 WL 57139 at * 4, n.9.

70. BKK I at * 1. EPA apparently believed that BKK should have paid a total civil penalty of $ 72,500 for three separate violations. BKK II, 1985 WL 57139 at * 4, n.3.

71. BKK I at * 4.

72. Id. at * 12. The ALJ noted that:

The reasons for this would seem to be especially compelling during the period of interim authorization which is granted upon a finding that the state program is "substantially equivalent" to the federal program . . . so that the hazardous waste program in states that had previously instituted such programs not come to a halt pending implementation of the federal program.

Id. (citing House Committee on Interstate and Foreign Commerce Report, H. REP. No. 94-1461, at 29 (Sept. 9, 1976), reprinted in 1976 U.S.C.C.A.N. 6269).

73. Id. at * 13.

74. Id. at * 16.

75. Id. The ALJ noted that RCRA § 3006(e) "would appear to be a dead letter and the intent of Congress that primary enforcement responsibility be with the states surely would be frustrated, if EPA can maintain the instant proceeding." Id. The ALJ further noted that EPA documents supported his decision that EPA is precluded from taking enforcement action when a state with delegated authority has taken appropriate enforcement action to require compliance. The ALJ specifically referenced language in a notice letter from EPA to the DOHS as well as a memorandum from EPA enforcement counsel to Regional Administrators and Counsel. The letter to the DOHS, dated August 25, 1983, stated in part that should "the State fail to order compliance by a date certain and/or remedy the deficiencies noted in our inspection report, EPA would exercise its right to initiate enforcement action under Section [3008](a)(2) of RCRA." Id. The memorandum from the Enforcement Counsel dated March 15, 1982, "provided essentially that if, at the end of the time period mentioned in the notification letter to the state, the state agency has not initiated enforcement action or indicated its willingness to do so, EPA may proceed to take action as the enforcing authority." Id.

76. Memorandum from Lee Thomas, U.S. EPA Administrator, on Enforcement Response Policy, to all EPA regions (Dec. 21, 1984); Memorandum from Alvin L. Alm, Deputy Administrator of EPA, on Implementing State/Federal Partnership in Enforcement: State/Federal Enforcement "Agreements," to all EPA regions (June 26, 1984); Interim National Criteria for a Quality Hazardous Waste Management Program Under RCRA (May 1984) (EPA OSWER Doc. No. 530-SW-84-006); all cited in, In re BKK Corp., RCRA Appeal No. 84-5, 1985 WL 57139, 2 E.A.D. 35 (EPA May 10, 1985) (final order) (available from the ELR Document Service, ELR Order No. ALJ-32) (BKK II), vacated by Order on Petition for Reconsideration, 1985 WL 57150, 2 E.A.D. 93 (EPA Oct. 23, 1985) (order on petition for reconsideration) (available from the ELR Document Service, ELR Order No. ALJ-53) (BKK III).

77. Id.

78. In re BKK Corp., RCRA Appeal No. 84-5, 1985 WL 57139, 2 E.A.D. 35 (EPA May 10, 1985) (final order) (available from the ELR Document Service, ELR Order No. ALJ-32) (BKK II), vacated by, Order on Petition for Reconsideration, 1985 WL 57150, 2 E.A.D. 93 (EPA Oct. 23, 1985) (order on petition for reconsideration) (available from the ELR Document Service, ELR Order No. ALJ-53) (BKK III).

79. Id. at * 1.

80. Id. at * 3.

81. Id. at * 4.

82. Id. at * 2.

83. Id. at * 3. The CJO expressed significant concern anout the consequences of EPA's claimed authority. If the Agency had unfettered authority to act in the face of reasonable and appropriate state action, a party could never rely upon such state action to finally resolve a controversy. This would chill the willingness of a party to put forth the effort and expenditure necessary to comply with a state's enforcement action, thereby frustrating RCRA's legislative design, in which states were to "take the lead in the enforcement of the hazardous waste laws." Id. (quoting House Committee on Interstate and Foreign Commerce Report, H. REP. No. 94-1461, at 31 (Sept. 9, 1976), reprinted in 1976 U.S.C.C.A.N. 6269).

Surely Congress did not intend parties to comply with state action which is supposed to have "the same force and effect as action taken by the Administrator," while simultaneously authorizing the Agency to take enforcement action against those same parties without regard to the adequacy of the state's action; such a legislative scheme would be pointless and could arbitrarily subject parties to double penalties.

Id. at * 3. In a footnote, the court discussed Buckeye Power, Inc. v. EPA, quoting the language excerpted supra at note 28 and accompanying text. Id. at * 3-* 4 n.9 (quoting Buckeye Power Inc. v. EPA, 481 F.2d 162, 167, 3 ELR 20634, 20635 (6th Cir. 1973)). The court also briefly discussed res judicata, citing United States v. ITT Rayonier, Inc., 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980), discussed infra at notes 155-86 and accompanying text, noting that it technically was inapplicable because the state enforcement action involved an administrative settlement agreement rather than a judicial decree. Id.

84. Id. at * 4, n.14.

85. Id.

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

87. Id.

88. Id. at * 2.

89. Id. at * 2. The Administrator set forth the following as his rationale for vacating the final order and initial decision:

The remainder of the controversy is strictly intra-Agency, with petitioners' views of the law competing against those of the Chief Judicial Officer and the Administrative Law Judge. Although the views of any one of these representatives of the Agency may ultimately prevail, I am not convinced that continued debate in this forum will produce the cross section of views that is needed to intelligently weigh all pertinent considerations. In particular, the absence of state representatives from this forum is troubling, for their views are obviously important, if not crucial, in a state/federal system in which the overwhelming majority of enforcement actions are to be initiated by the states. Therefore, in my opinion, the debate should be broadened. Also, it should be made less formal, for the strictures of formal adjudicatory proceedings seem ill-suited to the type of debate I envision as being necessary to fully air the very important issues raised here. Accordingly, I am going to vacate this proceeding without deciding the controversy, so that debate can continue informally.

Id.

90. In re Martin Elecs., Inc., No. RCRA-84-45-R, 1985 WL 57142 (EPA June 21, 1985) (initial decision) (available from the ELR Document Service, ELR Order No. ALJ-47) (Martin I), aff'd, 1986 WL 69018 (EPA Jan. 14, 1986) (decision on motion to reconsider) (available from the ELR Document Service, ELR Order No. ALJ-57) (Martin II), vacated on other grounds by, 1987 WL 109670, 2 E.A.D. 381 (EPA June 22, 1987) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-96) (Martin III).

91. Id. at *2.

92. Id. at *3.

93. Id.

94. Id. The initial draft of the consent order called for three groundwater monitoring wells. At the request of EPA, the consent order was modified to require four groundwater monitoring wells. The modified consent order was executed by Martin on March 24, 1984, and by the FDER on March 26, 1984. Id. Because the state of Florida pursued an administrative enforcement action rather than a judicial enforcement action, it was precluded by state statutes and regulations from seeking to recover penalties and was limited to recovering administrative costs. Id.

95. Id. at *1. Apparently, at the time of the March 1984 inspection, "the groundwater monitoring system had been installed." Id. at *4.

96. Id. at *1, *5.

97. Id. at *3, Although the argument is phrased in terms of res judicata, Martin's argument refers to and tracks BKK's argument in In re BKK, namely that EPA lacks statutory authority to pursue an enforcement action in a state with an approved program when such state has taken an appropriate enforcement action.

98. Id. at *4.

99. Id. at *5.

100. Id.

101. Id. at *6 (citing Memorandum from Alvin L. Alm. Deputy Administrator of EPA, on Implementing State/Federal Partnership in Enforcement: State/Federal Enforcement "Agreements," to all EPA regions (June 26, 1984)). The ALJ quoted the "Adequacy of Penalty" section of the Alm memorandum, which states as follows:

For types of violations identified in national program guidance as requiring a penalty or equivalent sanction, EPA generally will not consider taking direct enforcement action on the basis of the adequacy of the amount of penalty imposed unless clear national guidance has been defined, in consultation with States, and is being applied in practice in EPA Regions. EPA may, however, take direct enforcement action for recovery of additional penalties in instances in which a State penalty is determined to be grossly deficient, e.g., de minimis, after considering all of the circumstances of the case and the national interest. In making this determination, EPA will give every consideration to the State's own penalty authority and any applicable State penalty policy.

Id.

102. Id. at *7 (citing Memorandum from Lee Thomas, U.S. EPA Administrator, on Enforcement Response Policy, to all EPA regions (Dec. 21, 1984); Memorandum from Alvin L. Alm, Deputy Administrator of EPA, on Implementing State/Federal Partnership in Enforcement: State/Federal Enforcement "Agreements," to all EPA regions (June 26, 1984)). The ALJ quoted a footnote in the section entitled "EPA Action in Authorized States":

EPA may also consider assessing a penalty if it feels that the penalty assessed by the State was egregiously small, as judged according to the State's penalty policy or procedures established by the State for determining penalty amounts. Before initiating any penalty-only action, EPA must weight the benefit of that action with the need to take action against handlers that are out of compliance with applicable requirements.

Id.

103. Id. The ALJ, noting the discrepancy between the $ 48,000 cost assessment in BKK and the $ 107 cost assessment in Martin did note "that Florida officials could benefit substantially from conferring with . . . colleagues in California to determine just what that State considers to be permissably (sic) included in arriving at an administrative cost assessment." But the ALJ also noted that the amount of penalties EPA requested in its complaint "is considerably higher than the facts in this situation would warrant." Id. at 8. In reaching this conclusion, the ALJ highlighted that EPA's penalty, which incorporated an increase based on culpability and lack of cooperation, was unjustified given that Martin had been pursuing the delisting of its waste, had received "mixed signals" from the FDER regarding its responsibility to install a groundwater monitoring system during the delisting process, and had promptly installed the system when informed unequivocally that it must do so. Id. Further, the ALJ noted that when EPA notified the FDER of its intent to bring an action against Martin, the FDER responded by asking EPA to refrain from taking action and asking whether "enforcement against Martin [is] appropriate exercise of EPA's enforcement efforts in Florida, given the number of other sites in the state that are not currently subject to either State or Federal enforcement." Id. at *9. The ALJ further concluded that because the FDER had already entered into a consent agreement resolving the primary concerns of EPA and had objected to EPA's proposed enforcement action, EPA "might have been over-zealous in bringing this action under the circumstances of this case." Id.

104. No. RCRA-84-45-R. 1986 WL 69018 (EPA Jan. 14, 1986) (decision on motion to reconsider) (available from the ELR Document Service, ELR Order No. ALJ-57) (Martin II), vacated on other grounds by, 1987 WL 109670, 2 E.A.D. 381 (EPA June 22, 1987) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-96) (Martin III).

105. Id. at *3.

106. Id. EPA did not notify the FDER of its intent to bring an enforcement action until after the execution of the consent agreement.

107. Id. at *4. "There is nothing in this record to suggest that the State of Florida 'caved in' on an important environmental issue to a recalcitrant and consistent violator. In fact, the record shows the opposite." Id.

108. Id.

109. Id. The ALJ further noted that "if the Agency wishes to retain the unfettered authority to bring enforcement actions in the face of reasonable and appropriate state action, it should clearly say so in its policy document and regulations." Id.

110. In re Martin Elecs., Inc., No. RCRA-84-45-R, 1986 WL 69038 at *2 (EPA July 28, 1986) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-82). The Order for Sua Sponte Review had attached to it the Deputy Administrator's Guidance on RCRA Overfiling and the General Counsel's Opinion—Effect on EPA Enforcement of Enforcement Action Taken by State With Approved RCRA Program.

111. Id. The actual statement from the General Counsel's opinion reads as follows:

RCRA allows the Administrator to exercise complete prosecutorial discretion in deciding whether to commence federal enforcement when a state has taken action. The contrary reading—that RCRA bars such actions—is unsupported by the statute and legislative history. Such a reading would bar any federal action when the state had enforced, regardless of the timeliness or appropriateness of the state action.

Id. at *3.

112. Id. at *4.

113. Id.

114. Id. at *5.

115. Id. The opinion noted that in SDWA § 1423, 42 U.S.C. § 300h-2(a) (1), Congress required EPA "to make a finding that a state abused its enforcement discretion prior to commencement of federal enforcement. Congress certainly would have provided similar language in the later enacted RCRA had it chosen to impose a similar requirement."

116. Id. The General Counsel stated that the language of RCRA § 3008(a)(2) "has no meaning if the Administrator's enforcement powers terminate upon interim or final authorization" of a state program." Id.

117. Id. "The House Report states that 'the Administrator is not prohibited from acting in those cases where states fail to act. . . .' House Committee on Interstate and Foreign Commerce Report 94-1461 (Sept. 9, 1976) at 31, U.S. Code Cong. and Admin. News, 94th Cong. 2d Sess. (1976) at 6261."

118. In re Martin Elecs., Inc., No. RCRA-84-45-R, 1986 WL 69038 at *6 (EPA July 28, 1986) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-82) (citing S. REP. No. 94-988 at 17 (1976)) The General Counsel's Opinion acknowledged that "different passages in the legislative history point in different and inconsistent directions." Id.

119. The General Counsel's opinion cited the following cases addressing the issue of overfiling under the CAA: United States v. SCM Corp., 615 F. Supp. 411, 15 ELR 21007 (D. Md. 1985); United States v. Lehigh Portland Cement Co., No. 84-3030, 1984 WL 2853, (N.D. Iowa Dec. 12, 1984); United States v. Harford Sands, Inc., 575 F. Supp. 733, 14 ELR 20337 (D. Md. 1983); and United States v. Chevron, U.S.A., Inc., No. EP-80-CA-265 (W.D. Tex. 1981). In re Martin Elecs., Inc., 1986 WL 69038 at *6 (EPA July 28, 1986) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-82). The General Counsel's opinion cited cases the following cases addressing the issue of overfiling under the CWA: Aminoil U.S.A., Inc. v. California State Water Resources Control Bd., 674 F.2d 1227, 12 ELR 20,594 (9th Cir. 1982); United States v. ITT Rayonier, Inc., 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980); and United States v. Cargill, Inc., 508 F. Supp. 734, 11 ELR 20649 (D. Del. 1981). In re Martin Elecs., Inc., 1986 WL 69038 at *7 (EPA July 28, 1986) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-82).

120. In re Martin Elecs., Inc., 1986 WL 69038 at *6-*8 (EPA July 28, 1986) (order for sua sponte review) (availablefrom the ELR Document Service, ELR Order No. ALJ-82).

121. Id. at *3. The Guidance further suggested that to understand when state action is clearly inadequate, "the Regions should look to the June 26, 1984 guidance document entitled 'Implementing the State/Federal Partnership in Enforcement: State/Federal Enforcement Agreements' and the 'Enforcement Response Policy,' issued December 21, 1984." Id. See supra notes 101-02 and accompanying text for a discussion of these documents.

The Guidance also emphasized the importance of greater cooperation between EPA and the states. Regions should make every effort to assure that there has been thorough consultation with the state before overfiling. If the Regional enforcement office has concerns about whether the relief requested and penalties to be assessed by the state comport with EPA's oversight policies on enforcement response and penalty amount, these concerns should be made known to the state before the state matter proceeds to judgment or settlement. It should be emphasized that coordination and cooperation with the states in advance of issuance of compliance orders regarding the appropriateness of the terms of those orders will eliminate many of the instances where overfilings are necessary.

Id.

122. Id. at *2.

123. In re Martin Elecs., Inc., 1987 WL 109670 at *1, 2 E.A.D. 381 (EPA June 22, 1987) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-96) (Martin III).

124. Id. at *2-3

125. Id. at *3.

126. See In re Beaumont Co., No. RCRA-III-231, 1994 WL 711200 (EPA Oct. 20, 1994) (order granting in part motion for accelerated decision), rev'd, RCRA Appeal No. 94-3, 1997 WL 273141 (EPA Apr. 22, 1997) (decision on interlocutory appeal); In re Harmon Elecs., Inc., No. RCRA VII-91-H-0037, 1993 WL 326423, 30 ELR 47074 (EPA Aug. 17, 1993) (original order), aff'd, 1994 WL 730509, 30 ELR 47009 (EPA Dec. 12, 1994) (initial decision), aff'd, RCRA Appeal No. 94-4, 1997 WL 133778, 27 ELR 40616 (EPA Mar. 24, 1997) (final order), rev'd, Harmon Ind., Inc. v. Browner, 19 F. Supp. 2d 988, 29 ELR 20035 (W.D. Mo. 1998), aff'd, 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999); and In re Southern Timber Prods., Inc., RCRA Appeal No. 89-2, 1990 WL 303833, 3 E.A.D. 371 (EPA Nov. 13, 1990) (final decision) (available from the ELR Document Service. ELR Order No. ALJ-165), motion denied, 1992 WL 82626, 3 E.A.D. 880 (EPA Feb. 28, 1992) (available from the ELR Document Service, ELR Order No. ALJ-165).

127. See In re Beaumont Co., No. RCRA-III-231, 1994 WL 711200 (EPA Oct. 20, 1994) (order granting in part motion for accelerated decision), cert. granted, 1994 WL 730741 (EPA Dec. 15, 1994) (certification for interlocutory appeal), rev'd, RCRA Appeal No. 94-3, 1997 WL 273141 (EPA Apr. 22, 1997) (decision on interlocutory appeal), discussed infra notes 134-47.

128. See In re Harmon Elecs., Inc., No. RCRA VII-91-H-0037, 1993 WL 326423, 30 ELR 47074 (EPA Aug. 17, 1993) (original order), aff'd, 1994 WL 730509, 30 ELR 47009 (EPA Dec. 12, 1994) (initial decision), aff'd, RCRA Appeal No. 94-4, 1997 WL 133778, 27 ELR 40616 (EPA Mar. 24, 1997) (final order), rev'd, Harmon Ind., Inc. v. Browner, 19 F. Supp. 2d 988, 29 ELR 20035 (W.D. Mo. 1998), aff'd, 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999); and In re Southern Timber Prods., Inc., RCRA Appeal No. 89-2, 1990 WL 303833, 3 E.A.D. 371 (EPA Nov. 13, 1990) (final decision) (available from the ELR Document Service, ELR Order No. ALJ-165), motion denied, 1992 WL 82626, 3 E.A.D. 880 (EPA Feb. 28, 1992) (available from the ELR Document Service, ELR Order No. ALJ-165).

129. RCRA Appeal No. 89-2, 1990 WL 303833, 3 E.A.D. 371 (EPA Nov. 13, 1990) (final decision) (available from the ELR Document Service, ELR Order No. ALJ-165)

130. Id. at *4.

131. Id. "The [Mississippi Commission on Natural Resource's] determination that the impoundment was properly closed is, of course, relevant to the closure issue and must be accorded such weight as its analysis intrinsically warrants. But that ruling is neither dispositive nor preclusive of EPA's independent authority and obligation to consider whether Southern Pine's closure is in accordance with applicable statutory and regulatory requirements." Id. at *5.

132. No. RCRA VII-91-H-0037, 1993 WL 326423, 30 ELR 47074 (EPA Aug. 17, 1993) (original order) (Harmon I), aff'd, 1994 WL 730509, 30 ELR 47009 (EPA Dec. 12, 1994) (initial decision), aff'd, RCRA Appeal No. 94-4, 1997 WL 133778, 27 ELR 40616 (EPA Mar. 24, 1997) (final order) (Harmon II), rev'd, Harmon Ind., Inc. v. Browner, 19 F. Supp. 2d 988, 29 ELR 20035 (W.D. Mo. 1998), aff'd, 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999).

133. Harmon I, No. RCRA VII-91-H-0037, 1993 WL 326423, 30 ELR 47074 at *2 (EPA Aug. 17, 1993) (original order) (denying Harmon's motion to strike, the ALJ ruled as follows: "Even though a state is authorized to carry out its own hazardous waste program, the brute fact is EPA is only required to give notice to that jurisdiction before issuance of its complaint for a compliance order."); Harmon II, RCRA Appeal No. 94-4, 1997 WL 133778 at *7, 27 ELR 40616, 40618 (EPA Mar. 24, 1997) (final order):

We need not dwell for long on this statutory argument. It is well settled that, even when the authorized State has taken action, RCRA nevertheless authorizes the Agency to take its own action. Harmon has not offered any persuasive reasons to reopen this well-established reading of the statute, and we decline to do so.

134. No. RCRA-III-231, 1994 WL 711200 (EPA Oct. 20, 1994) (order granting in part motion for accelerated decision) (Beaumont I), rev'd, RCRA Appeal No. 94-3, 1997 WL 273141 (EPA Apr. 22, 1997) (decision on interlocutory appeal) (Beaumont II).

135. Beaumont I, No. RCRA-III-231, 1994 WL 711200 (EPA Oct. 20, 1994), at *1.

136. Id. at *13 n.1 (citing 51 Fed. Reg. 17739 (May 15, 1986)).

137. Id. at *2. The Director of the WVDNR ultimately reduced the penalty to $ 4,224. Id.

138. Id. at *1.

139. Id.

140. Id. at *1-*3. Beaumont also claimed that EPA's enforcement action was barred under the principles of res judicata and collateral estoppel. Id.

141. Id. at *7-*8. Having concluded that RCRA § 3006 limits EPA's authority to overfile, the ALJ applied principles of res judicata to flesh out the extent to which the WVDNR's enforcement action limited EPA's ability to take enforcement action. Id. at *9-*12. The ALJ first noted that under West Virginia law, the principles of res judicata apply to administrative determinations. Id. at *9-*10. The ALJ further noted that West Virginia law no longer imposes a strict requirement of privity for purposes of res judicata, and that "by virtue of RCRA § 3006(d), DNR was EPA's representative as a matter of law in the proceeding before the West Virginia Water Resources Board." Id at *11. While the ALJ concluded that EPA was prohibited from pursuing some of its claims because they had been encompassed within the WVDNR's enforcement action, the ALJ also concluded that some of EPA's claims did not represent "overfiling" because they were not encompassed within the WVDNR's enforcement action. Id. at *11-*12.

142. Id. at *7. The ALJ noted that under the General Counsel's limited interpretation, RCRA § 3006(d) becomes mere surplusage because the language of § 3006(b)&(c) would already have demonstrated that state permits are to have the same effect as federal permits. Id.

143. Id. at *8.

144. Id. (quoting General Counsel's Opinion at 6 (supra note 118)).

145. Id. The ALJ's discussion highlights the discrepancy in the General Counsel's discussion of the legislative history:

He cites a Senate Report (S. Rep. No. 988, 94th Cong., 2d Sess. 17 (June 25, 1976)), for the proposition that Congress intended to draw on the similar provisions of the Clean Air Act of 1970 and the Federal Water Pollution Control At of 1972 in allocating responsibilities between EPA and the states under Section 3008. This proposition is rejected: firstly, because it is contrary to the plain language of § 3006(d) and secondly, because Senate bill S. 2150 was passed in lieu of the House bill after amending its language to contain the text of the House bill (U.S. Code Cong. & Adm. News (1976) at 6238). Accordingly, House Report No. 94-1491 is the relevant legislative history. Because neither the Clean Water Act nor the Clean Air Act contains a provision similar to RCRA § 3006(d), case law under these statutes is not controlling.

Id.

146. Beaumont II, RCRA Appeal No. 94-3, 1997 WL 273141 at *2 n.6 (EPA Apr. 22, 1997) (decision on interlocutory appeal).

147. Id.

148. See Wyckoff Co. v. EPA, 796 F.2d 1197, 16 ELR 20866 (9th Cir. 1986) (discussed supra at notes 36-51 and accompanying text); EPA v. Environmental Waste Control, Inc., 698 F. Supp. 1422, 19 ELR 20674 (N.D. Ind. 1988); United States v. Conservation Chem. Co. of Ill., 660 F. Supp. 1236, 17 ELR 20970 (N.D. Ind. 1987) (discussed supra at notes 57-63 and accompanying text). See also cases discussed supra in note 63.

149. See 804 F.2d 371, 17 ELR 20215 (7th Cir. 1986) (discussed supra at notes 52-56 and accompanying text). As noted supra at note 56, however, other courts spoke in dicta to the consecutive enforcement question in the context of the CWA and the CAA, generally stating that EPA's had authority to overfile in consecutive enforcement scenarios under those statutes.

150. In re Martin Elecs., Inc., No. RCRA-84-45-R, 1985 WL 57142 (EPA June 21, 1985) (initial decision) (available from the ELR Document Service, ELR Order No. ALJ-47) (Martin I), reconsideration denied by, 1986 WL 69018 (EPA Jan. 14, 1986) (decision on motion to reconsider) (available from the ELR Document Service, ELR Order No. ALJ-57) (Martin II), review granted by, 1986 WL 69038 (EPA July 28, 1986) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-82), aff'd in part and vacated in part by, 1987 WL 109670, 2 E.A.D. 381 (EPA June 22, 1987) (order for sua sponte review) (available from the ELR Document Service, ELR Order No. ALJ-96) (Martin III). In re BKK Corp., No. RCRA-IX-84-0012, 1984 WL 50073 (EPA Apr. 13, 1984) (opinion and order on motion for an accelerated decision) (available from the ELR Document Service, ELR Order No. ALJ-31) (BKK I), aff'd by, RCRA Appeal No. 84-5, 1985 WL 57139, 2 E.A.D. 35 (EPA May 10, 1985) (final order) (available from the ELR Document Service, ELR Order No. ALJ-32) (BKK II), vacated by, RCRA Appeal No. 84-5, 1985 WL 57150, 2 E.A.D. 93 (EPA Oct. 23, 1985) (order on petition for reconsideration) (available from the ELR Document Service, ELR Order No. ALJ-53) (BKK III).

151. In re Harmon Elecs., Inc., No. RCRA VII-91-H-0037, 1993 WL 326423, 30 ELR 47074 (EPA Aug. 17, 1993) (original order) (Harmon I), aff'd, 1994 WL 730509, 30 ELR 47009 (EPA Dec. 12, 1994) (initial decision), aff'd, RCRA Appeal No. 94-4, 1997 WL 133778, 27 ELR 40616 (EPA Mar. 24, 1997) (final order) (Harmon II), rev'd Harmon Ind., Inc. v. Browner, 19 F. Supp. 2d 988, 29 ELR 20035 (W.D. Mo. 1998), aff'd, 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999); In re Southern Timber Prods., Inc., RCRA Appeal No. 89-2, 1990 WL 303833, 3 E.A.D. 371 (EPA Nov. 13, 1990) (final decision) (available from the ELR Document Service, ELR Order No. ALJ-165), motion denied, 1992 WL 82626, 3 E.A.D. 880 (EPA Feb. 28, 1992) (available from the ELR Document Service, ELR Order No. ALJ-165); In re CID-Chem. Waste Management of Ill., Inc., RCRA Appeal No. 97-11, 1988 WL 391528 (EPA Aug. 18, 1988); In re Triangle Metallurgical, Inc., No. RCRA-V-W-87-R-009, 1987 WL 290498 (EPA Dec. 9, 1987) (dicta) (opinion and order denying motion to dismiss).

152. In re Beaumont Co., No. RCRA-III-231, 1994 WL 711200 (EPA Oct. 20, 1994) (order granting in part motion for accelerated decision) (Beaumont I), rev'd, RCRA Appeal No. 94-3, 1997 WL 273141 (EPA Apr. 22, 1997) (decision on interlocutory appeal) (Beaumont II).

153. See infra Section Two in Part II.

154. Res judicata, or claim preclusion, and collateral estoppel, or issue preclusion, are two common-law affirmative defenses designed to promote the efficient use of judicial resources by avoiding relitigation of issues and claims that have already been decided. As the Supreme Court stated in Montana v. United States, 440 U.S. 147, 99 S. Ct. 970 (1979):

A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a "right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . . ." Southern Pacific R.R. Co. v. United States, 168 U.S. 1, 48-49, 18 S. Ct. 18, 27, 42 L. Ed. 355 (1897). Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L. Ed. 195 (1877); Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S. Ct. 865, 867, 99 L. Ed. 1122 (1955); 1B J. Moore, Federal Practice P0.405[1], pp. 621-24 (2d ed. 1974) (hereinafter 1B Moore); Restatement (Second) of Judgments § 47 (Tent. Draft No. 1, Mar. 28, 1973) (merger); id., § 48 (bar). Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5, 99 S. Ct. 645, 649, 58 L. Ed. 2d 552 (1979); Scott, Collateral Estoppel by Judgment, 56 Harv. L. Rev. 1, 2-3 (1942); Restatement (Second) of Judgments § 68 (Tent. Draft No. 4, Apr. 15, 1977) (issue preclusion). Application of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions. Southern Pacific R. Co., supra, 168 U.S., at 49, 18 S. Ct., at 27; Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 37 S. Ct. 506, 507, 61 L. Ed. 1148 (1917). To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.

440 U.S. at 153. Consistent with a growing trend toward using the term "res judicata" broadly to encompass both res judicata and collateral estoppel, see Benton, supra note 16, at 230, and because in most cases of interest the concern is claim preclusion, this Article will generally discuss these concepts under the broad labelof res judicata.

155. 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980).

156. Id. at 998, 10 ELR at 20946.

157. Id. (citing 39 Fed. Reg. 26061 (1974)).

158. Id. at 999, 10 ELR at 20946-47.

159. Id.

160. Id.

161. CWA § 402(d) provides that EPA has the authority to veto a permit that a state with an approved program has proposed issuing. 33 U.S.C. § 1342(d).

162. ITT Rayonier, Inc., 627 F.2d at 999, 10 ELR at 20946-47.

163. Id.

164. Id.

165. Id.

166. Id.

167. Id.

168. Id.

169. Id.

170. Id.

171. Id. at 1000, 10 ELR at 20947 (quoting ITT Rayonier, Inc. v. Department of Ecology, 586 P.2d 1155, 1160 (Wash. 1978)).

172. Id. Notably, ITT Rayonier did not assert that EPA lacked statutory authority under the CWA to pursue an enforcement action in light of its delegation of authority to the state of Washington.

173. Id. (quoting 33 U.S.C. § 1342(I), ELR STAT. FWPCA § 402(I)).

174. Id. (quoting Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973 (1979)).

175. Id. at 1000-01, 10 ELR at 20947 (citing 33 U.S.C. § 1342(I), ELR STAT. FWPCA § 402(I) and S. REP. No. 92-414 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3675). The Ninth Circuit further stated: "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. The state is given 30 days to commence 'appropriate enforcement action.' 33 U.S.C. § 1319(a)(1)." Id. at 1002, 10 ELR at 20948. See infra Section Three in Part II, discussing EPA's enforcement authority under CWA § 309. The Ninth Circuit also referred to the "'delicate partnership' between state and federal agencies" created in the CWA. ITT Rayonier, Inc., 627 F.2d at 1001, 10 ELR at 20947 (citing Save the Bay v. Administrator, 556 F.2d 1282, 1284, 7 ELR 20674 (5th Cir. 1977)).

176. ITT Rayonier, Inc., 627 F.2d at 1001, 10 ELR at 20947 (citing Ma Chuck Moon v. Dulles, 237 F.2d 241, 243 (9th Cir. 1956), cert. denied, 352 U.S. 1002, 77 S. Ct. 559 (1957)).

177. Id. at 1002, 10 ELR at 20948. See 33 U.S.C. § 1342(c)(3) & (d), ELR STAT. FWPCA § 402(c)(3) & (d). The Ninth Circuit noted:

Congress has stated FWPCA does not involve a "delegation" of federal authority. House Conf. Rept. No. 95-830, 95th Cong., 1st Sess., reprinted in (1977) U.S.Code Cong. & Admin. News, pp. 4424, 4479. Although the NPDES state permit program is established under state law and functions "in lieu" of federal authority, the source of the federal/state "partnership" can be traced to a single act of Congress (FWPCA). Regardless whether the state's enforcement position can be accurately described as a "delegee" of powers, its authority vis a vis NPDES permits is derived from FWPCA and is revocable by EPA.

Id.

178. Id. at 1001, 10 ELR at 20947. The Ninth Circuit further noted that courts have assumed the CWA does not abrogate the doctrine of res judicata. Id. (citing Reserve Mining Co. v. EPA, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975); United States v. Pennsylvania Envtl. Hearing Bd., 584 F.2d 1273, 8 ELR 20689 (3d Cir. 1978); and Buckeye Power, Inc. v. EPA, 481 F.2d 162, 3 ELR 20634 (6th Cir. 1973) which are discussed supra in notes 6-7 and accompanying text).

179. Id.

180. Id. at 1002, 10 ELR at 20948.

181. Id.

182. Id. at 1003, 10 ELR at 20948 (citing Chicago, R.I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 46 S. Ct. 420 (1926)).

183. Id. (citing Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973 (1979); Ma Chuck Moon v. Dulles, 237 F.2d 241, 243 (9th Cir. 1956), cert. denied, 352 U.S. 1002, 77 S. Ct. 559 (1957), Aerojet Gen'l Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.), cert. denied, 423 U.S. 908, 96 S. Ct. 210 (1975), and RESTATEMENT OF JUDGMENTS § 83 (1942)).

184. Id.

185. Id.

186. Id. at 1003, 10 ELR at 20949. The Ninth Circuit noted:

The propriety of the state court's construction of footnote f is not before this court. The doctrine of res judicata does not depend on whether the prior judgement was free of error. Milliken v. Meyer, 311 U.S. 457, 61 S. Ct. 339, 85 L. Ed. 278 (1940). If it did, judgments would lack finality, the very rational of the rule of res judicata.

Id.

187. See EPA v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 20 ELR 20035 (N.D. Ind. 1989), aff'd, 917 F.2d 327, 21 ELR 20007 (7th Cir. 1990), cert. denied, 499 U.S. 975, 111 S. Ct. 1621 (1991); United States v. Town of Lowell, Ind., 637 F. Supp. 254 (N.D. Ind. 1985); and United States v. Lehigh Portland Cement Co., No. 84-3030, 1984 WL 2853 (N.D. Iowa Dec. 12, 1984). See also Benton, supra note 29, at 254-55.

The question of res judicata also has come up in the citizen suit context on a number of occasions. See, e.g., Comfort Lake Ass'n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351, 356-57, 28 ELR 20604 (8th Cir. 1998) (holding that a stipulation agreement concluding diligently prosecuted state administrative enforcement action, while not res judicata of the CWA citizen suit claims, nonetheless precluded citizen suit for civil penalties); EPA v. City of Green Forest, 921 F.2d 1394, 1402-05, 21 ELR 20610, 20613-14 (8th Cir. 1990), cert. denied, 502 U.S. 956, 112 S. Ct. 414 (1991) (holding that prior filed CWA citizen suit was nonetheless barred by res judicata effect of consent decree in subsequent EPA action); Old Timer, Inc. v. Blackhawk-Central City Sanitation Dist., 51 F. Supp. 2d 1109, 1112 (D. Colo. 1999) (noting that case law is split on whether a state administrative action is sufficient to preclude a citizen suit under CWA § 309(g)(6)(A)(ii) and citing representative cases on either side of the issue); Hodas, supra note 8, at 1632-46 (discussing cases coming down on either side of the issue). For a more extensive discussion of the impact of CWA § 309(g)(6)(A), see infra Sections Three and Four in Part II.

188. No. 84-3030, 1984 WL 2853 (N.D. Iowa Dec. 12, 1984).

189. Id. at *1.

190. Id.

191. Id.

192. Id.

193. Id. at *3.

194. Id. (citing the Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 453, 493 (codified in scattered sections of 42 U.S.C.)).

195. Id. at *4. The court also noted that because the consent decree did not contain any penalties, Lehigh would not be subject to double penalties. Id.

196. 637 F. Supp. 254 (N.D. Ind. 1985).

197. Id. at 257. The state of Indiana had received authorization to run the national pollutant discharge elimination system permit program on January 1, 1975. Id. at 256.

198. Id. at 257 (citing 33 U.S.C. § 1342(I), ELR STAT. FWPCA § 402(I)).

199. Id. The court quoted the Ninth Circuit's decision in ITT Rayonier as follows: "If the EPA is dissatisfied with state enforcement efforts or lack thereof it can revoke the permit issuing authority or bring an independent action in a federal court." Id. (quoting United States v. ITT Rayonier, Inc., 627 F.2d 996, 1002, 10 ELR 20945, 20948 (9th Cir. 1980)).

200. Id. The court further stated in dicta: "Even though the State of Indiana has assumed the authority over the NPDES permit program, the EPA is not precluded from stepping in to enforce the FWCPA." Id. (citing United States v. Chevron, U.S.A., Inc., 19 ERC 1462, 1464 (W.D. Tex. 1983), and United States v. Lehigh Portland Cement Co., No. 84-3030, 1984 WL 2853 (N.D. Iowa Dec. 12, 1984)).

201. 710 F. Supp. 1172, 20 ELR 20035 (N.D. Ind. 1989), aff'd on other grounds, 917 F.2d 327 (7th Cir. 1990), cert. denied, 499 U.S. 975 (1991).

202. Id. at 1195, 20 ELR at 20045.

203. Id. at 1197, 20 ELR at 20046.

204. Id. at 1198, 20 ELR at 20046-47. The court sharply criticized EWC's argument:

EWC essentially argues that as long as it is in compliance with the remedial steps provided by the agreed administrative order (or, perhaps more accurately, as long as Indiana takes no further action based on the violations giving rise to the agreed administrative order), it is absolved from responsibility for later violations, at least at the hands of any party other than Indiana. EWC seeks to expand the doctrine of collateral estoppel into areas heretofore unimagined and, by any definition, illogical. A party found to have violated the law yesterday is not thereby rendered immune as to tomorrow's violations; even an injunctive decree does not abrogate the law so as to forgive tomorrow's violations.

Id.

205. Id. at 1200, 20 ELR at 20047-48. The EWC court also discussed the privity issue in dicta: Although noting that the "virtual representative" test is not a part of Indianalaw, the court nonetheless noted that:

the EPA might be deemed a party to the state administrative action under Indiana's collateral estoppel rules by virtue of 42 U.S.C. § 6926(d), which provides, "Any action taken by a State hazardous waste program authorized under this section shall have the same force and effect as action taken by the Administrator under this subchapter." Arguably, the Indiana agency acted as the EPA's legal representative as a matter of law. Because the EPA alleges violations outside the state agency's jurisdiction or that occurred after the agreed administrative order, however, the court need not resolve that issue.

Id. at 1201, 20 ELR at 20048. Other cases likewise have concluded that res judicata did not bar EPA enforcement actions based on the specific facts of each case. See, e.g., United States v. Citizens Utilities Co. of Ill., No. 92-C-5132, 1993 WL 286463 (N.D. Ill. July 28, 1993) (holding that res judicata did not bar an enforcement action under CWA because issues were distinct); Antrim Mining, Inc. v. Davis, 775 F. Supp. 165 (M.D. Pa. 1991) (holding that a prior citizen suit did not preclude government from subsequently bringing an enforcement action because citizens are not in privity with government and because government claims concern violations subsequent to resolution of citizens suit); 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) (discussing cases under CWA § 309(g)(6)(a)); Hodas, supra note 8 at 1627-51 (discussing preclusion of citizen suits under the CWA).

206. See, e.g., Citizens Utilities Co. of Ill., 1993 WL 286463, reconsideration granted in part, 1993 WL 478933; Davis, 775 F. Supp. at 165. For a more extensive discussion of issues associated with the "identity of claims," see infra Section Three and Section Four in Part II (discussing "identity of claims" in CLEAN and generally discussing the application of the "identity of claims" issue in analyzing the res judicata effect of an enforcement action by a state with an approved program).

207. See, e.g., EPA v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 20 ELR 20035 (N.D. Ind. 1989), aff'd, 917 F.2d 327, 21 ELR 20007 (7th Cir. 1990), cert. denied, 499 U.S. 975, 111 S. Ct. 1621 (1991); Annaco, Inc. v. Hodel, 675 F. Supp. 1052, (E.D. Ky. 1987); United States v. Town of Lowell, Ind., 637 F. Supp. 254 (N.D. Ind. 1985); United States v. Lehigh Portland Cement Co., No. 84-3030. 1984 WL 2853 (N.D. Iowa Dec. 12, 1984). See infra Section Four in Part II (discussing res judicata impact of various approaches to state enforcement action).

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