SW Legal studies in Business

EPA May Sue Polluter for Same Incident Already Prosecuted by State EPA
Description Appeals court held that the EPA could sue a polluter to demand greater penalties than were obtained by the state environmental agency for the same matter. Since the federal demand differed from the state demands, the matter was not completely overlapping and the Resource Conservation and Recovery Act (RCRA) authorizes EPA to take such action.
Topic Environmental Law
Key Words RCRA; Hazardous Wastes; Financial Assurances; Res Judicata
C A S E   S U M M A R Y
Facts Power Engineering Company (PEC) was discovered by the Colorado Department of Public Health and Environment (CDPHE) to be improperly discharging hazardous wastes. It ordered PEC to clean up contaminated soil and take other steps to comply with RCRA. CDPHE was held, in state court, to have violated the law and ordered to comply with the CDPHE demands. EPA intervened to demand that CDPHE seek financial assurances from PEC that it would comply with the order, but CDPHE did not seek such assurance. The EPA then filed its own action against PEC for the same violations. PEC defended that the matter was res judicata-settled by the CDPHE action and so not subject to federal prosecution also. The federal district court held that the EPA could maintain its own action for the same environmental offense that the state had already litigated and ordered PEC to provide financial assurances that the clean up would be done. PEC appealed.

Affirmed. The EPA's construction of RCRA, that authorizes it to file for financial assurances from alleged polluters, independent of an existing state enforcement action for the same violation, is a reasonable interpretation of the statute. The federal action is not prevented by res judicata since the federal action covers a different interest-the provision of financial assurance not sought by the state. The EPA demand is upheld.

Citation U.S. v. Power Engineering Co., 303 F.3d 1232 (10th Cir., 2002)

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