January 1999

Environmental Crimes Bulletin - Mystery of Dual Federal/State Enforcement Dispelled

3 min

One of the great mysteries concerning environmental enforcement in the United States has been the ability of the federal government to assess penalties against a violator of environmental laws even though a state, while acting as an extension of the federal government, may have already taken enforcement action against the violator for the exact same operative facts. Such dual enforcement exists because most federal environmental laws are implemented by states whose environmental programs have been approved by the federal government as satisfying the minimum standards set out in federal environmental regulations.

Proponents of the federal government's ability to take additional action on the heels of state action (often referred to as “overfiling”) argue that, although the states do the heavy lifting when it comes to actually implementing and enforcing the federal environmental agenda, the federal enforcement authorities need to retain some “quality control” authority to ensure that penalties are (1) sufficient to ensure deterrence, and (2) reasonably consistent across state lines.

Opponents of this power argue that it creates a confusing enforcement climate at best, and an unjust one at worst. In the words of one federal court that recently examined this issue of first impression: “Certainly, such a schizophrenic approach to enforcement of [environmental laws] would result in uncertainty in the public mind. With whom should it negotiate? Must it negotiate with both state and federal authorities? Should it insist that EPA sign off on all agreements with authorized state agencies?”

The court in Harmon Industries, Inc. v. Browner specifically examined the issue of federal “overfiling” in the context of Resource Conservation and Recovery Act (RCRA) — which regulates the handling of hazardous wastes from “cradle to grave” — and determined that, while EPA may (1) withdraw its authorization of a state program as a result of its disapproval of state enforcement methods or (2) act in the absence of state enforcement, EPA may not bring an enforcement action after the state has already reached an enforcement resolution with the violator.

This decision effectively nullified EPA's attempt to levy a heavy civil fine (originally $2.7 million) against Harmon Industries in the wake of the company's self-discovery of improper disposal practices during a routine audit, its voluntary disclosure of the improper practices to the state environmental authorities, and its having reached a consent agreement with the state. Although the consent decree did not impose a monetary penalty on Harmon, it did require a thorough environmental assessment and investigation to ensure that the disposal practice did not pose a threat to human health or the environment, which cost the company $1.4 million (excluding attorney fees) and will cost the company another $500,000 in monitoring costs during the next 30 years.

In addition, prior to disclosing its disposal activities to the state, Harmon had voluntarily changed its assembly process to state-of-the-art technology using nonhazardous cleaning materials, thus eliminating the prospect of continued noncompliance, at a cost of $800,000 up front and $125,000 in annual maintenance fees. When EPA deemed the penalty to be inadequate and filed an additional enforcement action, the court rejected EPA's action.

Because the state implementation provisions in RCRA bear a striking resemblance to similar provisions in most other major federal environmental laws, the impact of the Harmon Industries decision could be widespread. It very well may spell the end of EPA's ability to levy civil penalties following up state consent orders addressing the same violations. It no doubt will alter the dynamic between EPA and states (since EPA can still act in the absence of state enforcement). It may even prevent federal criminal actions on the heels of state criminal penalties for the same violations. Time will tell.