Overfiling occurs with the initiation of a federal enforcement action, either administrative or civil, following state enforcement with respect to violations that arise out of the same nucleus of operative facts; for example, when, after a state has settled with a polluter, the U.S. Environmental Protection Agency (the EPA or the Agency) finds the settlement inadequate and files a case against the same polluter based on the same violation just settled between the state agency and the polluter. The term has also been used in the context of action taken by the EPA to express its displeasure with a state’s enforcement of federal and state regulations under a delegated program. The presentation discusses the anatomy of this federal enforcement tool. Overfiling is dissected using the perspectives of the regulated community, the primacy states, and the federal regulators. Available case studies as well as recent litigation are highlighted.
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