Harmon Prompts EPA Model Language on Enforcement Authority

Title:
Harmon Prompts EPA Model Language on Enforcement Authority
Practice:

As reported in the April 2000 UPDATE, the U.S. Court of Appeals for the Eighth Circuit held in Harmon Indus. v. EPA, 191 F.3d 894 (8th Cir. 1999), that EPA could not bring an enforcement action against a company if a state agency authorized to undertake hazardous waste regulation pursuant to RCRA had already resolved its concerns over the same violations. In response to Harmon, EPA has developed regulatory language that regional EPA offices can add to the state-specific federal regulations that govern the state's authorization to implement RCRA. Currently, 49 states and territories have been granted authority to implement the base, or initial, RCRA program. Many also are authorized to implement additional parts of the RCRA program that EPA has since promulgated.

The new language states that EPA retains the right to "take enforcement actions regardless of whether the State has taken its own actions,"  and is designed to clarify the agency's position that EPA has the right to enforce the law even if the state has already done so.  According to one agency official interviewed by the Bureau of National Affairs, EPA has told agency staff for states in the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) not to use the model language, because it would violate the court's ruling in Harmon.

Last year, EPA gave New Jersey primary responsibility to implement RCRA.