which is supposed to have "the same force and effect as action taken by the Administrator," while simultaneously authorizing the Agency to take enforcement action against those same parties without regard to the adequacy of the state's action; such a legislative scheme would be pointless and could arbitrarily subject parties to double penalties.9 9 If EPA could step in and take enforcement action of its own in the face of reasonable and appropriate state enforcement action, BKK would be subjected to double penalties. Under the terms of the settlement agreement between BKK and the State of California, BKK is required to reimburse the State for $47,500 in administrative costs incurred by the State. Although this amount is not termed a penalty, it is tantamount to one, and any difference between the meaning of the terms costs and penalty is largely semantic. Also, the settlement agreement provides that if BKK fails to abide by the terms of the agreement, it will be assessed a civil penalty of $1,000 (or such lesser amount as the state may determine) for each noncompliance and day of noncompliance. Any legislative scheme which would allow double penalties conflicts with the principles embodied in res judicata. In that regard, in Buckeye Power Inc. v. EPA, 481 F.2d 162, 167 (1973), the U.S. Court of Appeals for the Sixth Circuit stated: It would seem to us that the court which first acquired jurisdiction See also U.S. v. ITT Rayonier, 627 F.2d 996 (9th Cir. 1980) (Clean Water Act). The state enforcement action in the instant case was a settlement agreement between BKK and the state that was voluntarily executed without the intervention or approval of a court. (Indeed, although the state threatened to initiate state court action, it was unnecessary for the state to carry out its threat, since BKK agreed to enter into a settlement agreement. Accordingly, state court action has never been initiated here.) Since the settlement agreement was not "approved" by a judgment (i.e., a consent decree or consent order), res judicata, which literally translated means "the matter has been decided by a judgment," is technically inapplicable. See EPA brief at p. 19, n. 13. Despite the technical inapplicability of res judicata, informal state settlement agreements (i.e., those not approved by court judgment) may still operate to bar future federal action based upon the underlying administrative and equitable principles embodied in the doctrine of res judicata. See Warner-Jenkinson Company v. Allied Chemical, 567 F.2d 184, 189 (1977) (dissenting opinion). In any event, even if informal state settlement agreements cannot bar future federal actions based upon res judicata (or for that matter, reliance upon the equitable principles embodied in that doctrine), the result here is not changed. RCRA clearly precludes Agency action in the face of reasonable and appropriate enforcement action by a state authorized to carry out its own hazardous waste program, without reference to whether or not such state enforcement action has been approved by a state court judgment. For all the foregoing reasons the Region's claim that it has unfettered authority to take enforcement action for RCRA violations is rejected. EPA cannot take enforcement action for RCRA violations in the face of reasonable and appropriate enforcement action for the same violations by an authorized state. 10 It should be noted that this holding is strictly limited to the facts in this case.11 B As an alternative to its "blanket" claim of unfettered authority, the Region claims that EPA can at least take enforcement action when state action is inadequate. I agree. In this case, far from being inadequate, the State's action was reasonable and appropriate.12 The presiding officer concluded as much based upon a detailed analysis set forth at pp. 28-35 of his initial decision. 13 I agree with this 10 See n. 13, infra. 11 This opinion is limited in that it holds that Agency action barred in the face of reasonable and appropriate state action by a state with authority to carry out its own hazardous waste program. BKK admits that EPA may "step in" when state action is inadequate. I agree. 12 BKK has expended a good deal of time and expense in an effort to fully comply with such action. The Region has not alleged that BKK failed to abide by the terms of the settlement agreement. Indeed, it is asserted, without challenge, that BKK has expended (or will ultimately expend) $1,306,000 to comply with the agreement. Fundamental fairness surely requires that EPA stay its hand in circumstances where, as here, the state's action is reasonable and appropriate, and a party has made (or is making) good faith efforts to comply with such action. 13 The presiding officer found the settlement agreement, in combination with state imposed modifications to the interim status document (ISD), to be the "substantial equivalent" of Agency action. The term "substantially equivalent" is contained in RCRA §3006(c). In that regard 3006(c) provides: *** The Administrator shall, if the evidence shows the existing * The term is contained in no other section of RCRA, and I am not convinced that analysis of the issues is furthered by also using the term as a test for measuring the sufficiency of state enforcement action; RCRA uses it solely to measure the acceptability of a state's interim program. Therefore, until the need arises to look at the matter more closely, I prefer to measure the sufficiency of state enforcement action to see if it is reasonable and appropriate, rather than substantially equivalent to Agency action. Here the state enforcement action was a settlement agreement. The presiding officer compared the settlement agreement, in combination with state imposed modifications to the ISD, with the complaint and found one to be the substantial equivalent of the other. Although he used the term "substantially equivalent," clearly the presiding officer's findings would lead to the conclusion that the settlement agreement was reasonable and appropriate given the RCRA violations alleged to have been committed by BKK in this case. conclusion. Therefore, since this point has been fully and completely addressed by the presiding officer at pp. 28-35 of the initial decision, it need not be repeated here; the Region has not presented any new arguments that would warrant changing the presiding officer's findings. 14 C The Region makes two other claims which merit discussion. First, the Region claims that it was inappropriate, based on procedural grounds, for the presiding officer to have issued an accelerated decision in this case. Similar to a summary judgment in the Federal court context, an accelerated decision is appropriate only where no genuine issue of material fact is in dispute and a party is otherwise entitled to a judgment as a matter of law. The Region claims that an accelerated decision was inappropriate since there were material issues of fact in dispute. The Region's argument is a bit convoluted. (See pp. 25-30, Region's Appeal Brief.) The issues which the Region identified as being in dispute are only material to the question of whether or not a violation (or violations) of the hazardous waste laws has been committed. 15 However, the accelerated decision was not intended to, nor did it address this question. Rather, the presiding officer merely concluded that the State's settlement agreement constituted adequate enforcement ac 14 I take notice of the fact that since the complaint, EPA has issued more detailed guidance to the Regions on what enforcement actions are appropriate or adequate for specific kinds of RCRA violations. In general, these documents encourage EPA enforcement action where state action is not timely, does not remedy environmental harm or is not sufficiently vigorous to remove economic benefits accruing from violations or to deter repeat violations. See, e.g., Lee M. Thomas, Enforcement Response Policy (December 21, 1984) (memorandum to all Regions); Interim National Criteria for a Quality Hazardous Waste Management Program under RCRA (May, 1984) (EPA document 530-SW-84-006, issued by EPA's Office of Solid Waste and Emergency Response); Alvin L. Alm, Implementing the State/Federal Partnership in Enforcement: State/Federal Enforcement "Agreements" (June 26, 1984) (memorandum to all Regions). Nothing in this decision is intended to prevent any Region from vigorously pursuing an enforcement action when it believes an authorized state's action fails to meet the standards of adequacy set forth in the above-referenced guidance. To promote common understanding between EPA and authorized states in RCRA enforcement matters, Regions should use these guidance documents to draft MOA's which specify some of the more common types of state enforcement actions which the Region would consider appropriate or adequate in given sets of circumstances. 15 The facts identified by the Region as being in dispute were whether leachate was migrating beyond the hazardous waste disposal site and whether an aquifer was underlying BKK's facility. This dispute is not being resolved here: the presiding officer did not determine whether there is an actual or threatened release from the facility nor whether an aquifer was underlying BKK's facility. tion; and, in the face of such adequate enforcement action, EPA was precluded from taking enforcement action of its own. The presiding officer simply compared the terms of the settlement agreement with the terms of the Agency's administrative complaint and concluded, as a matter of law, that one was the substantial equivalent of the other. There was no disputed issue of fact material to that determination; accordingly, the case was ripe for an accelerated deci sion. Another claim made by the Region is that the State-BKK agreement does not appear to be a true enforcement action. The Region states: The Agreement cites no statutory authority for en- Region's Brief, p. 7. The Region appears to be arguing that the settlement agreement contains no "teeth," leaving the State (or the Region) no recourse should BKK choose not to abide by its terms. If that is the Region's argument, it is wholly without merit. 16 The settlement agreement makes the State's waiver of its statutory enforcement authority conditional upon BKK's "completion of * * * performance in compliance with [the settlement] agreement." (Settlement Agreement, ¶9.) Clearly, under the terms of the settlement agreement, if BKK fails to 16 It should be noted that the Region has made no allegation that BKK has failed to comply with the terms it agreed to in the settlement agreement. And the record contains no evidence indicating that BKK failed to comply with those terms. Accordingly, even if the Region's argument had merit, which it does not, it would not be ripe for consideration unless and until BKK breached the settlement agreement. complete performance, the State is no longer obligated to stay its hand and it may take whatever action it deems appropriate. 17 Any other argument of the Region which is inconsistent with this opinion, although not expressly addressed herein has been considered and is rejected. Also, a final point should be made. The Region has not challenged the validity of the State's enforcement action on the grounds that entering into settlement agreements is contrary to the grant of interim authorization pursuant to § 3006. If such a challenge had been made, it could only succeed, if, for example, the Memorandum of Agreement (MOA) between Region IX and California, for some reason specifically excluded from the State's grant of interim authorization the right to execute settlement agreements. The MOA currently contains no such prohibition. CONCLUSION For all of the foregoing reasons the initial decision dismissing the Region's complaint is affirmed. So ordered. 17 By the same token, if the State fails to take appropriate action to ensure that BKK completes performance of the settlement agreement, EPA would no longer have to stay its hand, for under such circumstances the State's enforcement action against BKK would no longer be appropriate. |