Court Affirms Ban On Epa Overfilling

The United States Court of Appeals for the Eighth Circuit affirmed a district court action dismissing an enforcement action by EPA. Harmon Industries Inc. v. Browner, No. 98-3775 (8th Cir. September 16, 1999). (See EnviroChecklist October 1998, for a discussion of the District Court Decision.) Harmon Industries discovered that its maintenance employees had been dumping used solvents in an area on the company's property without knowledge of management. The company immediately ordered the activity stopped and reported it to the Missouri Department of Natural Resources. The DNR found that the disposal practices had not posed a threat to either human, health or the environment. The DNR and Harmon entered into a Consent Decree approved by a state court judge that did not include any penalties but required Harmon to implement a remediation plan. When EPA found out about the activities, it instituted its own enforcement action and imposed a civil penalty of $586,000. The District Court granted summary judgment in favor of Harmon. The Circuit Court affirmed because after EPA granted Missouri the right to operate its own hazardous waste program under the Resource Conservation and Recovery Act ("RCRA") that state program then operated "in lieu of" the federal government's hazardous waste program. When Missouri took its enforcement action, that enforcement action had the same force and effect as if it had been taken by EPA. According to the Court "there is no support either in the text of the statute or the legislative history for the proposition that the EPA is allowed to duplicate a state's enforcement authority with its own enforcement action." If it wants to do so, then EPA must revoke the state's authority to operate its own program. As an alternative holding, the District Court had held that under principles of resjudicata EPA was barred from its enforcement action. The Circuit Court also affirmed this holding based upon its reading of Missouri law. The only question was whether the parties were identical or nearly identical. The court found that since under RCRA Missouri's action had the same enforcement effect as an action initiated by EPA, the two parties "stand in the same relationship to one another."