Overfiling: Can the EPA Pursue a Case Where the State has Taken Enforcement Action? What Courts Have Done Since Harmon
In many federally created environmental programs, standards are set at the federal level to achieve consistency and economies of scale. However, the U.S. Environmental Protection Agency (EPA) delegates implementation and enforcement to the individual states. These delegations,1 also referred to as authorizations, are usually contingent upon the individual state implementing and enforcing the program in a manner consistent with the EPA’s interpretation of the law, the science, and sometimes the facts of a particular case.2 If the EPA is dissatisfied with a state’s handling of a program, the delegation may be withdrawn. If the authorized state fails to take appropriate action in a case, the EPA may take the lead in that case.
“Overfiling” is when the EPA enforces a provision for which a particular state has authorization in instances when the state fails to enforce its program properly or take timely and appropriate action.3 The EPA takes the lead in a very small percentage of cases either because the state fails to take timely and appropriate action or because the state asked the EPA to take the lead.4 In 1999, the Eighth Circuit Court of Appeals held, in what the court termed a case of first impression, that the EPA could not “overfile” in a delegated program where the state had already “taken enforcement action.” Harmon Industries, Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999).5 Since 1999, other federal administrative, district, and circuit courts of appeal have consistently clarified, distinguished, or chosen not to follow the reasoning of the Harmon court.
Harmon
Harmon Industries, Inc., assembles circuit boards for railroad control and safety equipment in Grain Valley, Missouri.6 For approximately 14 years the employees of Harmon Industries disposed of various volatile organic compounds (VOCs) on the ground behind the Harmon facility.7 EPA Region VII sent several letters to Missouri’s Department of Natural Resources indicating that these violations were a “high priority matter” and that enforcement action should be initiated and should include both compliance and civil penalties.8
On September 30, 1991, EPA Region VII, apparently dissatisfied with Missouri’s enforcement efforts, filed a four-count administrative complaint assessing a penalty of $2,343,706.9 On March 3, 1993, a Missouri state court approved a consent decree entered into between MDNR and Harmon that did not include civil penalties.10 On December 12, 1994, a federal administrative law judge found Harmon liable for $586,716 in civil penalties.11 This administrative order was appealed to the Federal District Court for the Western District of Missouri, which granted Harmon’s motion for summary judgment, holding that the EPA overstepped its authority when overfiling against Harmon.12 The EPA appealed the district court’s decision to the Eighth Circuit Court of Appeals.
On September 16, 1999, the Eighth Circuit held that where a state had negotiated a settlement in the form of a consent decree and the defendant had already begun to comply with the settlement agreement, the EPA was prohibited from bringing a civil penalty action for the matters covered by the state action.13 The court also found that the EPA’s decision to authorize Missouri’s hazardous waste program under the Resource Conservation and Recovery Act (RCRA)14 established privity between the EPA and the state and, therefore, the principles of res judicata provided an additional basis to bar the EPA’s enforcement action in light of the state court consent decree.15 This privity finding was based in large part on language found in RCRA §3006(b), 42 U.S.C. §6926(b), that the state program operates “in lieu of” the federal program and that “any action taken by a state. . . has the same force and effect as action taken by EPA.”16
After the three-judge panel issued the Harmon decision, the EPA petitioned the Eighth Circuit for rehearing en banc, arguing that the panel misinterpreted RCRA.17 Five states (New York, California, Iowa, Louisiana, and Connecticut) filed an amicus brief supporting the EPA’s position.18 While two judges agreed to rehear the case, the majority denied the petition on January 1, 2000.19 The EPA did not seek a writ of certiorari from the U.S. Supreme Court. Although the EPA expressed some concern when the Eighth Circuit first issued the Harmon decision,20 The agency has adopted Harmon ’s ruling only in the authorized states located in the Eighth Circuit21 where it is binding.22 Florida, of course, is located within the 11th Circuit, and therefore Harmon is not binding in Florida.23
The Harmon court made broad statements regarding the EPA’s ability to bring an action and affirmatively held that the EPA could bring an action where an authorized state failed to act.24 Conversely, where a state initiates action, the EPA is prohibited from taking action.25 However, as the facts of the Harmon case do not neatly fit with this reading of the decision, these statements are dicta. At the time the EPA filed its administrative complaint, the state had not filed any action and did not file the settlement until one year and seven months after the EPA’s complaint was filed.
Another issue, which Harmon doesn’t make clear, is what constitutes “initiating enforcement action.” In similar contexts, such as federal civil rules of procedure, statutes of limitation, and citizen suits, that term connotes filing a civil complaint.26 Additionally, at least one administrative case holds that filing an administrative complaint or notice of violation is not “initiating enforcement action.” See In re: Bil-Dry Corporation, No. 98-4 (E.P.A. Envtl. App. Bd., Jan. 18, 2001).
Federal District Court Decisions since Harmon
Since Harmon, several federal district court decisions have arguably changed the state of the law in this area. These cases include most notably U.S. v. Murphy Oil USA, Inc., 143 F. Supp. 2d 1054 (W.D. Wisc. 2001); U.S. v. Power Engineering Company, 125 F. Supp. 2d 1050 (D. Colo. 2000); and U.S. v. Flanagan, 126 F. Supp. 2d 1284 (C.D. Cal. 2000).
For example, in Murphy’s Oil the court accepted the EPA’s interpretation of Harmon and limited it to cases in which there is a state-court-approved settlement agreement. The EPA sued Murphy’s Oil USA, Inc., a petroleum refinery in Superior, Wisconsin, for environmental violations under the Clean Air Act (CAA), Clean Water Act (CWA), RCRA, and Emergency Planning and Community Right to Know Act (EPCRA).27 The court specifically rejected Harmon ’s reasoning that the “structure of acts such as the CAA and the RCRA bring the federal government and the state into such a close working relationship as to make them equivalent to the same party for purposes of res judicata.”28 The court found Harmon unpersuasive because Harmon read too much into the phrases “in lieu of”29 and “same force and effect,”30 While giving inadequate effect to the provisions in the statute that indicated Congress’ intent to give the EPA its own independent enforcement authority.31 Murphy’s Oil further held that any fairness and resource considerations in initiating sequential enforcement actions against the same alleged polluter should be left to the agency’s discretion.32
In Power Engineering, the Colorado District Court held that if a state enforcement action did not address a particular issue, the EPA could initiate action to address that issue. The court even goes as far as to conclude that Harmon “incorrectly misinterprets the RCRA.”33 Power Engineering operated a metal finishing and chrome plating facility located in Denver, Colorado. In Power Engineering, Colorado’s earlier enforcement action did not address the issue of financial assurance.34 The EPA initiated its own enforcement action in federal court based solely on Colorado’s authorized hazardous waste financial assurance requirements.35 In ruling on both parties’ motions for summary judgment, the court held that the EPA’s case should not be considered “overfiling” because it did not duplicate any action taken by the state.36
The Power Engineering court considered the clarity of RCRA’s language and what level of deference the EPA should be afforded.37 The court was persuaded by the plain language of the statute, which clearly indicated that the administration and enforcement were not “inextricably intertwined” as the Harmon court stated.38 The Power Engineering court was also influenced by the fact that other sections of RCRA reflect the EPA’s statutory interpretation of the power to overfile, citing 40 C.F.R. §271.19, which states in relevant part: “(e) Under Section 3008(a)(3) of RCRA, EPA may terminate a State-issued permit or bring an enforcement action in accordance with the procedures of 40 C.F.R. Part 22 in the case of a violation of a State program requirement.”39 The Power Engineering court also found unpersuasive the defendant’s isolated excerpts of congressional testimony on the purpose of federal oversight.40 Furthermore, the court rejected Harmon ’s conclusions about the applicability of res judicata even in a case where there is a consent decree with a state.41 On April 24, 2001, Power Engineering submitted a notice of appeal to the 10th Circuit Court of Appeals.
Flanagan is a criminal case in which the District Court for the Central District of California denied defendant’s motion to dismiss a four-count indictment for RCRA violations.42 The motion to dismiss was based on Harmon and related cases and the meaning of the phrase “in lieu of the Federal program” found in §6928(d)(2)(a).43 In denying the motion to dismiss, the Flanagan court recognized that Harmon is not about if, but when the EPA can bring a civil enforcement action in federal court after it has authorized a state program.44 Interpreting Harmon, the Flanagan court stated that when authorizing a state, the EPA does not lose its civil enforcement power, but only “its primary role in enforcing hazardous waste regulations.”45
Another problem with Harmon, which the U.S. District Court for the Western District of Missouri (the same district as Harmon ) has recognized, is Harmon ’s statement that the proper remedy for lax enforcement is withdrawal of authorization.46 Harmon suggests withdrawal of authorization as a viable case-by-case option for the EPA in cases where the state’s enforcement action is inadequate.47 However, this is a drastic remedy that should only be exercised in extreme circumstances.48
U.S. v. Elias
In U.S. v. Allen Elias, 269 F.3d 1003 (9th Cir. 2001), decided October 23, 2001, the Ninth Circuit held that the EPA maintains enforcement power after a state receives RCRA authorization. Despite arguments to the contrary, the Elias decision shows that Harmon ’s overfiling limitation applies only to cases where a court-sanctioned settlement has been reached with the state.49 Elias also questioned Harmon ’s reasoning and conclusions.50
Elias is a criminal case in which Allen Elias was convicted of three RCRA-related counts and one count of making material misstatements.51 Elias operated Evergreen Resources, a fertilizer company located near Soda Springs, Idaho, which generated cyanide-laced sludge waste.52 Cyanide is a characteristically reactive waste and therefore falls within the definition of “hazardous waste” pursuant to 40 C.F.R. §261.23.53 Evergreen stored the cyanide waste in a 25,000-gallon tank, which Elias subsequently decided to use to store sulfuric acid, and therefore needed to remove the cyanide waste.54
On two consecutive days Elias ordered two employees into the tank with no safety equipment and, without knowledge of the danger of the sludge, to wash the sludge out of a valve opening at the end of the 36-foot-long-by-11-foot-high tank.55 After only 15 minutes in the tank on the first day, the employees complained of sore throats and nasal passages, and were unable to remove the sludge.56 However, on the second day, the employees cut a larger hole in the end of the tank, removed about a third of the sludge within 45 minutes, and one of the employees collapsed.57 The employee had extremely toxic levels of cyanide in his blood, which caused irreversible brain damage.58 At the time, the case was the Justice Department’s only conviction of an employer for knowingly exposing a worker to hazardous waste.59
Elias argued that the three RCRA charges in the indictment against him should be dismissed because Idaho’s authorized hazardous waste program replaced and supplanted federal RCRA law, effectively stripping the United States of enforcement authority.60 Elias’ argument was based, like the defendant’s in Harmon, on the language of 42 U.S.C. §6926(b), that “such state is authorized to carry out such program in lieu of the Federal program under this subchapter. . . . ”61 The court then proceeded to reconcile that provision with 42 U.S.C. §6928, the “federal enforcement” provision enacted the same year as 42 U.S.C. §6926(b).62
The court discusses its prior decision in Wyckoff Co. v. EPA, 796 F.2d 1197 (9th Cir. 1986), where the court deferred to the EPA’s interpretation of §6926’s “in lieu of” provision under Chevron USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). The Wyckoff court found that the EPA’s conclusion, that its power to issue orders under §6934 survives in authorized states, is plainly consistent with a straightforward reading of RCRA.63 Therefore, under Chevron, where the EPA’s interpretation is “reasonable” or not “arbitrary and capricious,” the court was prohibited from substituting its own analysis of the statute. The Elias court finds the Wyckoff decision controlling, but continues to walk through the analysis.64 Calling the EPA’s agreement with Idaho “abundantly clear,” the court points out that the EPA’s rule authorizing Idaho’s program states that “the Agency retains authority under Section 6928 of RCRA to undertake enforcement actions in authorized states.”65
The Elias court’s reasoning is consistent with the theory behind authorizations and delegations. Many federal environmental laws were originally enacted to avoid inconsistent state standards and what has been termed a “race to the bottom” among states to attract industry.66 However, implementation by the EPA in all 50 plus jurisdictions is not practical or physically possible. Therefore, the EPA authorizes or delegates many programs, while maintaining authority to ensure consistent application of federal requirements. This consistency is achieved through annually negotiated program grants and memoranda of understanding/agreement with authorized states and also through oversight activities and overfiling when necessary.
The Elias court specifically considered the “in lieu of” language analyzed by Harmon and rejected the notion that the three words “in lieu of” preclude the EPA from bringing a civil enforcement action in an authorized state.67 The court also considers RCRA’s legislative history in determining that the EPA maintains enforcement power in authorized states.68 Relying in part on U.S. v. Flanagan discussed above, the court concluded that Harmon itself does not preclude federal enforcement action in an authorized state. The court asserted that Harmon is not about if, but when, the EPA can bring a civil enforcement action in federal court after it has authorized a state program.69
Upon first reading there may be a tendency to try to distinguish Flanagan and Elias as criminal cases. However, these courts were considering the same language in 42 U.S.C. §§6926 and 6928 as Harmon. Moreover, the courts are cognizant of the availability of both criminal and civil enforcement actions. The Elias court specifically concluded that, “under RCRA, the federal government retains both its criminal and civil enforcement powers.”70
Conclusion
Based on all of the above case law and analysis, the author believes it is fairly clear that the EPA can initiate an enforcement action or “overfile” before an authorized state concludes an enforcement action.71 If the state has already concluded an enforcement action and the authorized state’s action or settlement does not address a particular issue, EPA can initiate enforcement action on that nonaddressed issue to ensure timely and appropriate enforcement action.72 where there is a settlement regarding the same issue, the case law is less clear. The next case will probably turn on the egregiousness of the violations and other less measurable factors present in all litigation. One thing is for sure: The Eighth Circuit has not had the last word on “overfiling.” It will be interesting to see what the Tenth Circuit does with Power Engineering and what the U.S. Supreme Court does when it eventually receives an “overfiling” case.
1 Delegation does not always mean that federal authority is transferred to the state. As used in connection with National Pollutant Discharge Elimination System (NPDES), Underground Injection Control (UIC), and Public Water System (PWS) programs, the term does not connote any transfer of federal authority to a state.
2 Currently the District of Columbia, Guam, and all states, except Alaska, Hawaii, and Iowa are authorized for the Resource Conservation and Recovery Act (RCRA) base program. The EPA is currently reviewing an authorization package submitted by Hawaii. All of the cases discussed in this article arose in a state authorized by EPA for at least the RCRA base program. To see which other elements of the RCRA program have been adopted by a particular state go to http://www.epa.gov/epaoswer/hazwaste/state/authstat.htm.
3 See www.epa.gov/OSWRCRA/general/orientat/rom311.pdf.
4 The Role of Deterrence-Based Enforcement in a “Reinvented” State/Federal Relationship: the Divide Between Theory and Reality, 24
Harv. Envtl. L. Rev. 1, 86 (2000). In some cases, states may choose to ask the EPA to take the lead on a case based on unique factors, including the operator owning several facilities in different states within the region or if the case has likely precedential value. For guidance on what the EPA expects from the states, see the EPA’s Enforcement Response Policy (ERP) at www.epa.gov/oeca/ore/rcra/cmp/031596.pdf. For a discussion of the benefits of overfiling, including consistency and deterrence, see Overfiling: Policy Arguments in Support of the Gorilla in the Closet, 48
UCLA L. Rev. 375 (2000); See also Overfiling Under Federalism: Federal Nipping at State Heels to Protect the Environment, 49
Emory L. J. 373 (2000).
5 Hereinafter “ Harmon III. ” Harmon III does not fit neatly into the commonly used definition of overfilling because in Harmon the EPA filed an administrative complaint before the state settled the case.
6 Harmon III, 191 F.3d at 896.
7 Id. at 896–97.
8 In Re Harmon Industries, Inc., Final Order, RCRA (3008) Appeal number 94-4, decided March 24, 1997 (hereinafter “ Harmon I ” )
9 Id.
10 Harmon III, 191 F.3d at 897.
11 Harmon I, Final Order RCRA (3008) Appeal no. 94-4. On March 24, 1997, the Environmental Appeals Board (EAB) issued a final order upholding the penalty of $586,716.
12 Harmon Industries, Inc. v. Browner, 19 F. Supp. 2d 988, 994 (W.D. Missouri, 1998) (hereinafter “ Harmon II ”).
13 Harmon III, 191 F.3d 894.
14 4 2 U.S.C. §6901-6992K (1994).
15 For commentary on Harmon ’s privity finding under both Missouri and New York law, see 1999-2000 Survey of New York Law, 51
Syracuse L. Rev. 437.
16 Harmon III, 191 F.3d at 899–900. Because this language is absent from the Clean Water Act (CWA), at least one court has found that Harmon does not apply to the CWA. U.S. v. City of Rock Island, Illinois, et al. (C.D. Ill. 2001); see also U.S. v. City of Youngstown, 109 F. Supp 739 (N.D. Ohio 2000); but see State Water Control Board v. Smithfield Foods, Inc., 542 S.E.2d 766 (Va. 2001) (involving a federal National Pollutant Discharge Elimination System (NPDES) permit and related state permit, which is currently being appealed to the Supreme Court of Virginia). See In re: Zoo Med Laboratories, Inc. , Docket No. FIFRA -09-0886-C-98-11, for a discussion of Harmon ’s applicability to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §136 et seq.
17 See Federal Appeals Court Denies Rehearing On Ruling Against EPA Overfiling Authority,
Daily Env’t Rep. (BNA) Vol. 31, No. 5 at 188. (Feb. 4, 2000).
18 Harmon III, 191 F.3d at 904.
19 Daily Env’t Rep. (BNA) Vol. 31, No. 5 at 188. (Feb. 4, 2000).
20 S ee www.heartland.org/environment/jan00/court.htm.
21 1999-2000 Survey of New York Law, 51
Syracuse L. Rev. 437 n.75 and corresponding text. The Eighth Circuit encompasses Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota (all of these states except Iowa are authorized). Unfortunately, for the EPA these states fall into four different EPA regions. See www.epa.gov/epaoswer/osw/regions.htm.
22 See In re: Bil-Dry Corporation, No. 98-4 (E.P.A. Envtl. App. Bd., Jan. 18, 2001).
23 The EPA’s jurisdiction is divided into 10 regions throughout the country. Region 4 is located in the Southeast and encompasses Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee.
24 For example, adopting the reasoning of the court in Horizon Coal Corp. , 876 F. Supp. 1512 (N.D. Ohio 1993), rev’d on other grounds, 43 F.3d 234 (6th Cir. 1994), the Harmon court agreed that “it would be against public policy to promulgate a law whereby states can apply for and receive authorization from the United States to aid in the implementation and enforcement of that law if subsequent decisions issued under the authority of just such an approved program are not to be considered binding upon the United States.” Harmon III, 191 F.3d at 994 (quoting Horizon, 876 F. Supp. at 1518).
25 Harmon III, 191 F.3d at 901–02.
26 Fed. R. Civ. P. 3.
27 U.S. v. Murphy Oil USA, Inc., 143 F. Supp. 2d at 1062. The opinion after trial, which does not directly address “overfiling” issues can be found at U.S. v. Murphy Oil USA, Inc., 155 F. Supp. 2d at 1117 (W.D. Wisc. 2001).
28 U.S. v. Murphy Oil USA, Inc., 143 F. Supp. 2d at 1092. For another court’s holding that Harmon does not apply to the CAA, see U.S. v. LTV Steel Co., 118 F. Supp. 2d 827 (N.D. Ohio 2000) (holding that the CAA contains language which seems to anticipate overfiling).
29 RCRA §3006(b), 42 U.S.C. §6926(b).
30 RCRA §3006(d), 42 U.S.C. §6926(d).
31 See RCRA §3008(a)(2), 42 U.S.C. §6928(a)(2).
32 U.S. v. Murphy Oil USA, Inc., 143 F. Supp. 2d at 1092. The court expressed some concern about overfiling not necessarily being an effective use of finite agency resources. However, the court deferred to the EPA’s judgment on these policy issues, unlike Harmon. EPA Region 10 has addressed this concern in guidance which states, “Decisions to overfile are not made lightly, are made by senior managers in the Region and are made in a broader context: what is going on with a state’s enforcement/compliance program, the particulars of the situation at hand and what benefits are to be gained by EPA’s action in this case. True overfilling situations are few and are taken where Federal action would create important deterrence.” See yosemite.epa.gov/R10/enforce.NSF/dfc74aae099c57048825650f0070cb1e/b7549ee58a1c715888256905005d747d/$FILE/strategy.pdf.
33 U.S. v. Power Engineering Co., 125 F. Supp. 2d at 1059.
34 Id. at 1054.
35 Id. The case was previously appealed to the 10th Circuit on the issue of the denial of defendant’s motion to modify the EPA’s temporary injunction. U.S. v. Power Engineering, 191 F.3d 1224, 1229 (10th Cir. 1999) (the court “assumed without deciding. . . that the EPA may [overfile] even after the state has taken its own enforcement actions”).
36 U.S. v. Power Engineering Co., 125 F. Supp. 2d at 1071.
37 Id. at 1059–61.
38 Id. at 1059.
39 Id. at 1062.
40 Id. at 1063.
41 Id. at 1065.
42 Flanagan, 126 F. Supp. 2d at 1285.
43 Id. at 1286–89.
44 Id. at 1289.
45 Id. at 1289 (emphasis in original).
46 See Citizens Legal Environmental Action Network, Inc. (CLEAN) v. Premium Standard Farms, Inc. (W.D. Mo.) 2000 WL 220464 (Feb 23, 2000), fn 24, which states in pertinent part: “First, wholesale withdrawal of state enforcement authority is a drastic measure warranted only by drastic circumstances. [A] total takeover [of a state’s NPDES program] would result in chaos both at the State and Federal level. It should be exercised only when there is clear evidence that the entire State program has fallen into disrepair.”
47 Harmon III, 191 F.3d at 901. RCRA authorization is a long and complicated process that cannot be revoked and granted while still minimizing and otherwise regulating hazardous waste. See www.epa.gov/epaoswer/hazwaste/state/index.htm.
48 See CLEAN, 2000 WL 220464.
49 Elias, 269 F.3d at 1010.
50 Id.
51 Id. at 1007. The material misstatements charge was a violation of 18 U.S.C. §1001. Elias was convicted after a three-and-a-half-week trial and sentenced to 204 months in prison and $63 million in restitution. The restitution order was reversed by the 9th Circuit.
52 Id.
53 Id. at 1016-17 ( Elias also considers and rejects defendant’s argument that §261.23 and related EPA guidance do not provide adequate notice to defendants).
54 Id. at 1007.
55 Id.
56 Id.
57 Id.
58 Seattle Times, 1/9/00.
59 Seattle Times, 1/9/00.
60 Elias, 269 F.3d at 1009.
61 Id.
62 Id. at 1010–11.
63 Elias, 269 F.3d at 1010. The Harmon court chose not to consider Wyckoff, despite the fact that it considered the same sections of RCRA. Harmon III, 191 F.3d n.4.
64 Id.
65 Id. at 1010. Florida’s delegation is at 50 Fed. Reg. 3908 (January 29, 1985). The Florida Department of Environmental Protection’s Memorandum of Agreement with EPA Region IV for the RCRA program provides in pertinent part, “EPA may take enforcement action against any person determined to be in violation of RCRA in accordance with Section 3008(a)(2). EPA will take enforcement action upon determining that the State has not taken timely and appropriate enforcement action or upon request from the state.” To view this agreement in its entirety, go to www.dep.state.fl.us/legal/legaldocuments/opagree/agreements/EPA/EPAhwp_8_10_01.pdf.
66 Plater, et al., Environmental Law and Policy: Nature, Law and Society (American Case Book Series, 2d ed. 1998) 312–14. See also Harmon Industries v. Browner, 28
Ecology L.Q. 253. (2001).
67 Elias, 269 F.3d at 1009.
68 Id. at 1011–12.
69 Id. at 1011.
70 Id. at 1011.
71 This is true under the facts of Harmon, see Harmon III, 191 F.3d at 901 and Harmon II, 19 F. Supp. 2d at 996. See also Waste Management of Illinois, Inc. v. EPA, 714 F. Supp. 340 (N.D. Ill.1989).
72 See U.S. v. Power Engineering Company, 125 F. Supp. 2d at 1059–61. The court even goes as far as to conclude that Harmon “incorrectly misinterprets the RCRA.”
Angela Dempsey is a senior assistant general counsel at the Florida Department of Environmental Protection. She practices civil litigation primarily enforcing the Resource Conservation and Recovery Act and related statutes. Ms. Dempsey received her J.D., with honors, from the University of Florida in 1993 and her B.S. from San Diego State University in 1990. She previously was an assistant state attorney in Orlando.
This article was written by the author in her individual capacity and does not necessarily reflect the opinion of the Florida Department of Environmental Protection.
This column is submitted on behalf of the Environmental and Land Use Law Section, Sid Ansbacher, chair, and Robert Manning, editor.
