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Creating a circuit split that is unlikely to be resolved soon, the 10th U.S. Circuit Court of Appeals ruled Sept. 4 that the U.S. Environmental Protection Agency can sue an environmental offender even after the EPA’s in-state counterpart has already sued the same defendant over the same issue. United States v. Power Engineering Corp., No. 01-1217. The 10th Circuit called the procedure “overfiling.” But a lawyer for the Colorado business subjected to the sequential prosecutions called it “Monday morning quarterbacking.” Attorneys general from eight states signed on to an amicus brief backing the federal stance. A like number of industry lawyers filed an opposing brief. Trouble arose in 1993 when Power Engineering, a Denver electroplating business, was cited by Colorado’s Department of Public Health and Environment for dumping chromium waste into the ground where it leached into the groundwater and then into the Platte River. Exercising the authority delegated to it under the federal Resource Recovery and Conservation Act (RCRA), the Colorado agency issued a series of orders directing Power to comply with hazardous waste laws, clean up the contaminated soil, conduct inspections and file reports. When Power failed to do so, the 10th Circuit said that the state agency fined it $1.3 million and then sued the company, converting its orders into enforceable judgments. But, according to Power attorney John F. McBride of Denver, after that case was over and his client’s cleanup had begun, the EPA filed suit in a Denver federal court demanding that Power provide $2.1 million in financial assurances that it would be able to finish the job. Power challenged the EPA’s right to file suit, but lost. Affirming that lower court ruling, the 10th Circuit reasoned that while an EPA delegation of authority under RCRA allowed a state to issue permits and regulate an environmental program, this function was not “inexorably intertwined” with the enforcement aspect of the program and that the EPA could step in to tie up loose ends. Three years ago, looking at the same statute and the same legislative history in the then-first impression case of Harmon Indus. v. Browner, 191 F.3d 894, the 8th Circuit had disallowed overfiling. That panel said that with an EPA delegation of authority, a state agency operated in lieu of the EPA and that “the administration and enforcement aspects of such a program are inexorably intertwined.” A U.S. Department of Justice spokesman declined to comment on the ruling or the split. Amicus attorney Scott M. DuBoff of Washington, D.C.’s Wright & Talisman questioned the wisdom of the decision, saying that after the EPA has made a delegation, “it should not be for the federal government to cherry pick … to nitpick every decision made by that [state] agency.” DuBoff predicted that despite the split, the 10th Circuit ruling will embolden the EPA. “It will tend to encourage inappropriate second-guessing,” he said. McBride predicted that the ruling will inhibit states that want to enter into consent decrees with violators of the RCRA. “There won’t be any closure in the circuit … with the specter of the EPA hanging around.” Maine Attorney General G. Steven Rowe led the states’ amicus effort. A deputy, Jeff Pidot, called the ruling “excellent.” Explaining that absent uniform enforcement, each state would be at the mercy of its neighbors, Pidot said, “We really believe that the environment is best served by having both state and federal oversight.” McBride said that because his client has nearly finished its cleanup, it was unlikely to seek Supreme Court review. The EPA never challenged Harmon. Now both sides will have to wait for a third ruling to tip the scales.

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