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Clean Air Act Enforcement: A Focus on Overfiling

Teresa A. Hill, Sheila G. Bush, Krista K. McIntyre, Air Quality Regulation for the Natural Resources Industry (2000)

The amendments to the 1970 Clean Air Act (“CAA” or the “Act”) marked the beginning of a new era of federal involvement in the area of environmental clean up. The CAA was unique in providing national standards for designated pollutants while creating a Federal-State partnership in the implementation and enforcement of these standards.2 Thirty years later, the boundaries of this delicate Federal-State relationship are still being tested, and one of the most intensive battles being waged is the authority of the United States Environmental Protection Agency (“EPA”) to “overfile” a state enforcement action.

Overfiling, in its most controversial form, is where the “EPA exercises its authority to prosecute an alleged violator in an approved state that has already initiated its own enforcement action for the same requirements against the same defendant.”3 According to the states, this process, creates tension by undermining states' ability to negotiate with polluters and wastes limited enforcement resources by duplicating enforcement.4 One state official has complained that “there is no EPA state partnership in some areas of environmental enforcement. EPA's perspective appears to be that they own the ranch and that we, the states, are the hired ranch hands.”5 Regulated industry similarly argues that the threat of EPA overfiling negates incentive [15-2] to negotiate with the s