Guidance on RCRA Overfiling
May 19, 1985
SUBJECT: Guidance on RCRA Overfiling
FROM: A. James Barnes
TO: Regional Administrators, Regions I-X
Assistant Administrator, OSWER
Assistant Administrator, OECM
In several recent administrative enforcement cases, EPA has been
required to address the issue of EPA's authority to "overfile" under RCRA--
that is, to file an enforcement action when a state has acted to enforce the
same requirements. Because the administrative decisions did not
conclusively resolve the point, I asked the General Counsel for an opinion
on the issue.
In response, the General Counsel recently issued an opinion concluding
generally 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, or recommend overfiling to the
Department of Justice. A copy of that opinion is attached.
I have also asked the Agency's staff offices concerned with RCRA
enforcement to determine, in consultation with our Regional offices and
states administering RCRA programs, whether there is a need for additional
guidance or overfiling. That effort is now underway. Unless and until
additional guidance is issued, Regional decisions on overfiling under RCRA
are to be governed by this memorandum and existing guidance on the subject.
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. In
determining whether an action is 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 for further
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
In order to assure that full consideration has been given to these
actions, and their potential effects on Federal/State relations, the
Regions's senior managers--i.e., Waste Division Director and Regional
Counsel (or higher level, if desired)--should review and approve these cases
May 9, 1986
SUBJECT: Effect on EPA Enforcement of Enforcement
Action Taken By State With Approved RCRA
FROM: Francis S. Blake
General Counsel (A-130)
TO: Lee M. Thomas
If a state takes enforcement action under an approved RCRA program, does
RCRA bar a subsequent federal action to remedy the same violations? Does
the answer hinge on whether the state action was timely or appropriate?
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
timelines or appropriateness of the state action.
On May 10, 1985, an EPA Judicial Officer entered a final order in the
matter of BKK Corporation, Docket No. IX-84-0012 ( RCRA ( 3008 ) 84-5 ).
That order dismissed an administrative enforcement action brought by EPA
Region IX against the corporation for violations of various provisions of the
Resource Conservation and Recovery Act ( RCRA ), on the basis that RCRA
barred a federal action if a State had taken "timely and appropriate"
enforcement action. On petition for reconsideration filed by several EPA
staff offices, the Administrator, on October 28, 1985, dismissed the
complaint, but ruled
that the earlier BKK decision would "have no precedential effect." Decision
on Reconsideration at 4.
This opinion examines the effect of state enforcement on EPA enforcement
under RCRA. As the exchange of pleadings in the BKK matter makes clear, EPA
staff agreed with the industry respondent that EPA should generally not take
civil enforcement action if a state has taken timely and appropriate
enforcement action, but contended that this was a policy matter, not a
requirement of statutory or case law. The dispute is not a trivial one. As
we show below, if RCRA limits federal enforcement based on prior state
enforcement, it would be difficult to confine those limits to cases where
the state action is timely and appropriate. It is our opinion that EPA's
decisions whether to defer to prior state enforcement are a matter of
enforcement discretion and policy, not statutory requirements.
Below, we examine RCRA, other relevant statutes, the legislative
history, and judicial decisions hearing on the effect of enforcement by
approved RCRA states.
A. Relevant Statutory Provisions
The starting point in analyzing the Administrator's enforcement powers
under RCRA is the language of the statute. Section 3008(a)(1) authorizes
the Administrator, except as provided in Section 3008(a)(2), to take an
enforcement action whenever he determines that anyone has violated a
Subtitle C requirement. 1/
1/ After a state program has been approved, it operates "in lieu of the
Federal program . . . ." Section 3006(b). The requirements of an
authorized state program are considered Subtitle C requirements.
Section 3008(a)(2) states:
In the case of a violation of any
requirement of this subtitle where
such violation occurs in a State which
is authorized to carry out a hazardous
waste program under section 3006, the
Administrator shall give notice to the
State in which such violations has
occurred prior to issuing an order or
commencing a civil action. 2/
2/ Prior to 1980, EPA was required to provide states with 30 days' prior
notice. The 30 day waiting period was deleted in 1980, Solid Waste
Disposal Act Amendments of 1980, Pub. L. No. 96-482, Section 13, 94
Stat. 2234, 94 Stat. 2339-30, and now EPA need only provide "notice."
Section 3008(a)(3) provides that EPA's enforcement action may include
revocation of a state-issued RCRA permit.
On the face of the statute, the only prerequisite to an EPA enforcement
action in an authorized state is finding that a violation of the authorized
state program has occurred or is occurring and that notice of EPA's intent
to take action has been provided to the state. Once EPA fulfills the
Section 3008(a) requirements, it may issue an administrative order requiring
compliance with applicable Subtitle C requirements, impose administrative
penalties, suspend or revoke the violator's RCRA permit ( whether issued by
EPA or the state ), and seek judicial relief in federal district court.
It has been argued, however, that Section 3006 of the Act somehow
restricts EPA's enforcement authority. Section 3006 governs "Authorized
State Hazardous Waste Programs," and Section 3006(d) provides:
(d) Effect of State Permit. -
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.
This provision was the principal statutory basis for the Judicial Officer's
May 10, 1985 decision. He read it as limiting the otherwise broad federal
enforcement power under Section 3008 and concluded that under the statute
EPA can only overfile when a state's action was untimely and inadequate.
First, the "timely and appropriate" qualifications that the Judicial Officer
relied on simply cannot be found in the text of Section 3006(d). To read
Section 3006(d) as applying to state enforcement actions thus raises serious
problems. If any enforcement action taken by the state has the same force
and effect as an EPA enforcement action, EPA would never be able to take an
enforcement action regardless of the inadequacy of a state action. A
settlement or judgment binding on the state would, under this reading, also
bind EPA under principles of res judicata. See, e.g., Brown v. Felsen, 442
U.S. 127, 131 ( 1979 ) ( final judgment on merits bars further claims
by parties or their privies based on the same cause of action ); Montana
v. United States, 440 U.S. 147, 153 ( 1979 ). It is unlikely that
Congress would have buried such an important limit on federal
enforcement powers in Section 3006(d), a provision concerning state
On its face, Section 3006(d) does not address federal enforcement
powers. Section 3006 is entitled, "Authorized State Hazardous Waste
Programs." Section 3006(d) itself is entitled "Effect of State Permit."
It's principal purpose is plainly to assure not only that a state will have
authority to issue permits, but also that those permits have the same effect
and are enforceable to the same extent, as if they had been issued by EPA.
By contrast, if Congress had meant to limit federal enforcement power,
we would expect them to do this in the enforcement provision, Section 3008.
This expectation is confirmed by the analogous provision in the Safe
Drinking Water Act. In Section 1423, 3/ Congress specifically required
EPA to make a finding that a state abused its enforcement discretion prior
to commencement of federal enforcement.
3/ Section 1423 provides in part that:
(a)(1) Whenever the Administrator finds during a period during which a
State has primary enforcement responsibility for underground water
sources (within the meaning of section 300h-1(b)(3) of this title or
section 300h-4(c) of this title) that any person who is subject to a
requirement of an applicable underground injection control program in
such State is violating such requirement, he shall so notify the State
and the person violating such requirement. If the Administrator finds
such failure to comply extends beyond the thirtieth day after the date
of such notice, he shall give public notice of such findings and request
the State to report within 15 days after the date of such public notice
as to the steps being taken to bring such person into compliance with
such requirement (including reasons for anticipated steps to be taken to
bring such person into compliance with such requirement and for any
failure to take steps to bring such person into compliance with such
. (A) such failure to comply extends beyond the
sixtieth day after the date of the notice given
pursuant to the first sentence of this
. (B)(i) the State fails to submit the report
requested by the Administrator within the time
period prescribed by the preceding sentence, or
. (ii) the State submits such report within
such period but the Administrator, after
considering the report, determines that by
failing to take necessary steps to bring such
person into compliance by such sixtieth day the
State abused its discretion in carrying out
primary enforcement responsibility for
underground water sources,
-- the Administrator may commence a civil action under subsection (b)(1) of
this section. (emphasis added)
Congress certainly would have provided similar language in the later enacted
RCRA had it chosen to impose a similar requirement. 4/
4/ See also Clean Water Act, Section 402(h), which bars the Administrator
from seeking a sewer ban in an enforcement action against a municipality
in a state with an approved NPDES program if the state has "commenced
appropriate enforcement action . . . ." See also n. 8 and associated
It has also been suggested that Section 3006(b) and (c) implicitly limit
EPA's authority under Section 3008. Section 3006(c) provides in pertinent
part that "the Administrator shall, if the evidence submitted shows the
existing State program to be substantially equivalent to the Federal program
under this subtitle, grant an interim authorization to the State to carry
out such program in lieu of the Federal program pursuant to this subtitle .
. ." Section 3006(b) similarly provides that on final authorization, the
state "is authorized to carry out such programs in lieu of the Federal
program . . . ." Some have contended that these provision mean that once a
state is authorized it exercises its enforcement authority in lieu of EPA.
The notion that the "in lieu of" language bars federal enforcement
cannot be squared with the plain language of Section 3008(a)(2), which
requires the Administrator to notify an approved state "prior to issuing an
order or commencing a civil action . . . ." This language has no meaning if
the Administrator's enforcement powers terminate upon interim or final
In any event, in context the "in lieu of" language evidently refers to
the state's implementation of the authorized state program in lieu of the
federal hazardous waste program, not to whether the state or EPA may enforce
the state program in a particular case. Sections 3006(b) and (c) allow the
state to issue RCRA permits instead of EPA and to substitute its regulatory
and permitting program for that of EPA. Without these provisions, the
regulated requirements -- with them, the regulated community does not have
to comply with the federal requirements in those areas for which the state
has been granted authorization. 5/
5/ The result is not affected by the provision of Section 3006(b) that
specifically authorizes a state with final authorization to "enforce
permits . . . ." Section 3008 rules out a reading that this was meant
to deprive EPA of its enforcement powers.
B. The Legislative History and Case Law
While the language and structure of the statute support unfettered
federal enforcement power in authorized states, different passages in the
legislative history point in different and inconsistent directions. The
House Report states that "the Administrator is not prohibited from acting in
those cases where the state fails 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. This
language certainly suggests some sort if limitation on federal enforcement
power when a state has acted. 6/
6/ When the House Report discussed EPA's power to act "where the states
fail to act," it may have been referring to the then-applicable
requirement that EPA wait 30 days after notifying an approved state
before commencing enforcement action. That requirement, as noted above
( n. 2, supra ) was deleted in 1980.
The Senate Report, by contrast, 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. S. Rep. No. 988, 94th Cong., 2d Sess. 17
( 1976 ). To understand what the Senate Committee meant, we must examine
those laws and how the courts have interpreted them.
1. Case Law Under the Clean Air Act
Section 113(a)(1) of the CAA authorizes the Administrator to order
compliance or bring a civil enforcement action for violation of a SIP.
42 U.S.C. Section 7413(a)(1). The only prerequisite to filing suit in
district court is that EPA must notify the alleged violator and the state
thirty days prior to bringing a civil action. Prior to the 1970 CAA
Amendments, federal enforcement was permitted only where the violation
resulted from "the failure of a state to take reasonable action to enforce
such standards." Air Quality Act of 1967, 81 Stat. 485, 493. However,
Congress chose to delete this limitation on federal enforcement actions
during consideration of the 1970 amendments. See generally A Legislative
History of the Clean Air Act Amendments of 1970, U.S. Senate Committee on
Public Works, 93d Cong. 2d Sess. 113, 133, 146, 163 ( 1974 ).
Defendants accused of SIP violations have argued that federal
enforcement actions for SIP violations should be stayed or dismissed on the
grounds that such actions would relitigate issues already decided in a prior
state proceeding or would duplicate a contemporaneous state enforcement
action. The courts which have considered such challenges have rejected that
view on the grounds that the only prerequisite to suit are those set out in
the statute: notice to the alleged violator and a lapse of thirty days. 7/
7/ Defendants in suits brought under Section 113(a)(1) have also urged the
courts to stay or dismiss these actions under the doctrine of Colorado
River Water Conservation District v. United States, 424 U.S. 800
( 1976 ).
The Colorado River doctrine as clarified in Moses H. Cone Memorial
Hospital v. Mercury Construction Corp., 103 S. Ct. 927 ( 1983 ), gives
the federal courts the discretion to stay or dismiss an action involving
the contemporaneous exercise of concurrent state and federal
jurisdiction. Colorado River identified a number of prudential factors
to be considered, including the timing of actions, the convenience of the
forums, and the need to avoid piecemeal litigation. 424 U.S. at 818-
819. Cone Memorial Hospital required two additional factors to be taken
into consideration: whether federal law provides the rule of decision on
the merits, and whether the state court proceeding will adequately
protect the parties' interests. Id. at 941, 942. The Court emphasized
that only exceptional circumstances could justify a refusal to exercise
federal jurisdiction. Hence, the party invoking the doctrine must
demonstrate, beyond "any substantial doubt," the existence of parallel
state-court litigation that will adequately achieve the complete and
prompt resolution of the issues pending in federal court. See id. at
943. The Court in the United States v. SCM Corp., 615 F. Supp. 411 ( d.
Md. 1985 ), noted that in a case brought under Section 113(a)(1), it
would be improper to apply the Colorado River doctrine where the state
action had already been concluded or where EPA seeks relief not sought or
obtained in the state action. 615 F. Supp. at 417, 418. See also United
States v. Lehigh Portland Cement. No. C 84-3030, slip op. at 8 ( N.D.
Iowa Dec. 12, 1984 ) (rejecting argument for stay).
The statutory language and legislative history do not otherwise limit EPA's
ability to bring an enforcement action when there is or was a parallel
state proceeding. See, e.g., United States v. SCM Corp., 615 F. Supp.
411, 416 ( D. Md. 1985 ) ( existence of state administrative consent
order did not bar EPA action seeking civil penalties and injunctive
relief for SIP violations ); United States v. Lehigh Portland Cement Co.,
No. C 84-3030, slip op. at 6 ( N.D. Iowa Dec. 12, 1984 ) ( state consent
order did not preclude subsequent EPA action for SIP violation ); United
States v. Chevron, U.S.A., Inc. No. EP-80-CA-265, slip op. at 3 ( W.D.
Tex. June 10, 1981 ) ( pending state lawsuit which had imposed temporary
injunction for SIP violation did not bar EPA suit for permanent
injunction and civil penalties ). Cf. United States v. Harford Sands,
Inc., 575 F. Supp. 733, 735 ( D. Md. 1983 )( state agreement on compliance
schedule does not bar federal action under CAA Section 113(a)(3) ).
The recent decision in United States v. SCM Corp., 615 F. Supp. 411 ( D.
Md. 1985 ), explains how state enforcement actions are taken into account
under Section 113(a)(1). Notwithstanding the existence of a state
enforcement action, EPA has the right to press in federal court its claims
regarding the issue of defendant's liability and that penalties are
appropriate for the violations. Id. at 418. The court reasoned that if a
state enforcement action were to preclude Federal action to enjoin or punish
the same violation, a state could nullify the federal enforcement scheme
providing for minimal penalties. Allegations of the sufficiency of state
action may be taken into account when the court considers the
appropriateness of relief but do not affect the liability under federal law
or preclude the court from hearing a case on its merits. Id. at 419. The
court's reasoning in SCM, supra, applies equally to RCRA enforcement.
2. Case Law Under the Clean Water Act
The Clean Water Act, in contrast to RCRA, gives the Administrator two
options: under Section 309(a)(1), 33 U.S.C. Section 1319(a)(1), he may
notify the alleged violator and the state of an alleged violation and issue
a compliance order or bring a civil action under Section 309(b) if the state
has not "commenced appropriate enforcement action" after the thirtieth day;
or pursuant to Section 309(a)(3), 33 U.S.C. Section 1319(a)(3), he may
proceed directly against the alleged violator under Section 309(b) without
giving notice. 8/
8/ The Clean Water Act thus differs from RCRA in that notice under Section
309(a)(1) is not a condition precedent to federal enforcement. See
United States v. City of Colorado Springs, 455 F.Supp. 1364, 1366-67
( D. Colo. 1978 ) ( decision to proceed unilaterally under Section
309(a)(3) is within sound discretion of Administrator ). In addition,
EPA enforcement action under Section 309(a)(1) is expressly limited to
cases in which the state has not "commenced appropriate enforcement
action." Hence, if EPA chooses to notify under 309(a)(1), that
provision, unlike Section 3008(b) of RCRA, contemplates that EPA will
wait for the state to initiate appropriate enforcement action in the
first instance. See Colorado Springs, 455 F. Supp. at 1366 (comparing
Section 309(a)(1) with 309(a)(3)).
In United States v. ITT Rayonier, Inc. 627 F. 2d 996, 1001 ( 9th Cir.
1980 ), the court recognized EPA's ability to being an action under Section
309(a)(1) notwithstanding the existence of a state enforcement proceeding.
Noting the references in the legislative history to "dual" or "concurrent"
enforcement authority, the court determined that enforcement actions for
effluent limitations violations could have been filed in both state and
federal courts. See also Aminoil, U.S.A., Inc. v. California State Water
Resources Control Board, 674 F. 2d 1227, 1230 ( 9th Cir. 1982 ); United
States v. Cargill, 508 F. Supp. 734, 740 ( D. Del. 1981 ). 9/
9/ In United States v. Cargill, 508 F. Supp. 734, 740 ( D. Del. 1981 ),
the court approved the filing of a federal enforcement action under
Section 309(a) of the Clean Water Act after a parallel state filing, but
suggested in dicta that such an action could be brought only if after
"notification the state has not commenced appropriate enforcement action
. . . ." Clean Water Act, Section 309(a)(1), quoted in United States v.
Cargill, supra. (Emphasis in original). RCRA contains no language
similar to Section 309(a)(1) of the Clean Water Act requiring EPA to
defer to "appropriate" state enforcement. Moreover, the Cargill court
did not discuss Section 309(a)(3), which separately authorizes federal
enforcement but contains no limiting language. Finally, in its discussion
on the merits, the court relied on abstention doctrines, not the
limitations in Section 309(a)(1).
Aminoil, which held that EPA could not be joined as a party to a suit
filed in state court for review of a state order defining a certain area as
"wetlands," acknowledged that the statutory provision for concurrent state
and federal jurisdiction could force a defendant to relitigate the wetlands
issue at the federal level after the state administrative agencies and
courts had reached a decision. 674 F. 2d at 1233. The court observed,
however, that EPA involvement in the state enforcement action could
interfere with the Agency's obligation to independently exercise its
supervisory authority under Section 309(a)(1). Id. at 1236.
Although Rayonier and Cargill either dismissed or stayed EPA's
enforcement actions, the restrictions those cases placed on EPA enforcement
action do not arise out of any statutory restriction on federal enforcement
power. Rayonier dismissed the EPA action on res judicata grounds, reasoning
that the central issue in the case, which involved the construction of a
state-issued permit, had previously been litigated in a state enforcement
action and a final determination on the merits had been reached in state
court. 627 F. 2d at 1002. As the Ninth Circuit noted in Aminoil, the
issues presented in Rayonier "may be sui generis," in particular because
the decision depended upon a finding that, in the peculiar circumstances of
that case, EPA and the state agency where in privity. 674 F.2d at 1236.
And Cargill held that a limited stay was warranted under the Colorado
River 10/ doctrine, giving weight to the consideration that the federal
action had caused the defendant to halt its pollution control efforts.
10/ Colorado River Water Conservation District v. United States, 424 U.S.
800 ( 1976 ). See supra n. 7. The Supreme Court's subsequent decision in
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 103 S. Ct.
924 ( 1983 ), calls Cargill into question. Cone stressed that because a
stay is as much a refusal to exercise federal jurisdiction as a dismissal, it
would be an abuse of discretion for a federal court to grant either a stay of
a dismissal unless there is no substantial doubt that the state court will
adequately address the merits of the dispute. 103 S. Ct. at 943. Relying on
Cone, the court in the United States v. SCM refused to follow Cargill,
reasoning that EPA should not be deprived of its right to seek a
determination of liability and additional penalties under federal law. 615
F. Supp. at 418. See also United States v. Lehigh Portland Cement, slip op.
at 8 ( Cargill does not apply in CAA case where EPA was seeking to augment
defendant's pollution control measures ).
508 F. Supp. at 749-50.
As we have shown, if either Section 3006(d) or the "in lieu of" language
in Sections 3006(b) and (c) were read to apply to state enforcement actions,
any action taken by the state must preclude EPA enforcement action for the
same violation, regardless of the adequacy of the state action. In contrast
to provisions of other statutes, such as Section 1423 of the Safe Drinking
Water Act ( Administrator may act if he determines that state abused its
discretion ) or Section 309(a)(1) of the Clean Water Act ( EPA must act if
state has not taken "appropriate" action ), Section 3008(a)(2) of RCRA does
not provide for any limitations on EPA's enforcement power. On the other
hand, if such limitations are read into Sections 3006(b), (c), and (d),
there would be no statutory basis for lifting the prohibition on EPA
enforcement when the State's action is untimely or inappropriate, a result
that would be so inconsistent with Congress's approach to similar issues in
other environmental statutes that it should not be inferred without
conclusive evidence of legislative intent.
Thus, we conclude that the only prerequisites to EPA enforcement action
in an authorized state are those set out in Section 3008(a)(2): a finding
of violation and notice. This reading is supported by the language of
section 3008(a)(2) itself, by the structure of RCRA, and by the case law
construing comparable provisions of the Clean Air Act and Clean Water Act.
It should be emphasized that the issue addressed in this opinion
concerns the statutory constraints on federal enforcement. We believe that
it is entirely appropriate and consistent with RCRA for EPA, as a matter of
discretion, to avoid taking civil enforcement action if a state has taken
timely and appropriate enforcement action.
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