Harmon Limits RCRA Enforcers to One Bite

Ridgway M. Hall Jr.

Editors' Summary: In Harmon Industries, Inc. v. Browner, the Eighth Circuit held that once a state with an authorized RCRA program has taken an enforcement action against a defendant, EPA may not maintain a separate enforcement action based on the same set of facts, a practice commonly referred to as "overfiling." The Eighth Circuit held that the Agency's practice of overfiling violated both the language of RCRA and the doctrine of res judicata. This decision has enormous significance for EPA's RCRA enforcement policy, because for years, EPA has asserted the right to overfile whenever it decides that the relief sought in a parallel state action is inadequate. This Dialogue summarizes the essential facts and proceedings that led to the Eighth Circuit's decision and then analyzes the court's holdings. It ends with a discussion on the implications of the Harmon case, concluding that the decision is sound both as a matter of legal analysis and federal-state enforcement policy.

Ridgway M. Hall Jr. is a partner in the Washington, D.C., office of the law firm of Crowell & Moring LLP where he has practiced for two decades in all areas of environmental law and litigation.

[29 ELR 10781]

On September 16, 1999, the U.S. Court of Appeals for the Eighth Circuit, in a closely watched case of first impression under the Resource Conservation and Recovery Act (RCRA),¹ held that once a state with an authorized RCRA program has taken enforcement action against a defendant, the U.S. Environmental Protection Agency (EPA) may not maintain a separate enforcement action based on the same facts.² In doing so the court affirmed the judgment of the Western District Court of Missouri,³ which had reversed an earlier decision in EPA's favor by the Environmental Appeals Board (EAB).⁴ Like the district court, the Eighth Circuit based its holding on two independent and equally sufficient grounds: (1) the language of RCRA itself, which allows an authorized state to implement and enforce the RCRA program "in lieu of" EPA, and (2) res judicata. In applying res judicata against the United States, the court rejected EPA's argument that sovereign immunity barred giving preclusive effect against the United States to a judgment obtained by the state agency. Finally, in dictum the court upheld the "continuing violation" doctrine in rejecting Harmon Industries, Inc. v. Browner's (Harmon's)⁵ statute-of-limitations defense.

This case has enormous significance for EPA's RCRA enforcement policy. EPA for years has asserted the right to "overfile," that is, to file its own enforcement action based on the same set of facts whenever EPA decides that the relief sought in a parallel state action is inadequate. EPA has used this asserted "right" sparingly under RCRA and other statutory programs where the implementation and enforcement responsibility has been delegated to state agencies. However, EPA has asserted that this right to overfile is necessary to ensure that states do a conscientious job of enforcing environmental laws and regulations and to provide reasonable consistency in enforcement nationwide. The regulated community has vigorously objected on the grounds that this duplicative practice frustrates the purpose of RCRA in allowing states to operate the program "in lieu of" EPA, leads to uncertainty as to whether a company must resolve a dispute with both an authorized state and EPA in order to be certain that it has finally resolved potential liabilities, and results in wasteful duplication. The Eighth Circuit's decision is a vindication of this position.

This Dialogue will first summarize the essential facts and the proceedings below, including both the federal and state enforcement actions. It will then analyze the Eighth Circuit's holdings on both the statutory construction and res judicata issues. It will discuss briefly the statute-of-limitations holding and conclude with a discussion of the significance of the case. As a hint of the significance of this case, it is worth noting that approximately 25 different organizations filed 6 amicus curiae briefs urging the Eighth Circuit to affirm the district court's decision.⁶

[29 ELR 10782]

Factual and Procedural Background

Harmon operates a plant in Grain Valley, Missouri, where it assembles circuit boards for railroad control and safety equipment. From 1973 until November 1987, Harmon's employees routinely discarded waste organic solvents on the ground behind the plant. These solvents were hazardous waste under RCRA, and their disposal in that fashion was illegal as of November 19, 1980.

Prior to 1987, Harmon's management was unaware of this practice. During a safety inspection, Harmon's personnel manager discovered the practice, ordered its cessation, and voluntarily disclosed these facts to the Missouri Department of Natural Resources (MDNR). The MDNR was at all relevant times authorized by EPA to implement the RCRA hazardous waste regulatory program pursuant to statutory provisions that will be discussed below.

The MDNR investigated and concluded that Harmon's past disposal practices did not pose a threat to human health or the environment. Harmon ceased use of the hazardous solvent, substituting a nonhazardous cleaning material. Harmon contended that this process change had an initial cost exceeding $ 800,000 and ongoing annual operating costs of approximately $ 125,000. Harmon agreed with the MDNR to carry out a site assessment and cleanup action. While the MDNR issued a notice of violation, it agreed that because of Harmon's voluntary disclosure and cooperation, it would enter a consent decree with Harmon embodying the remedial and compliance measures, but would not impose a penalty.

During the ensuing negotiations, the MDNR advised EPA of Harmon's violations. When the MDNR declined EPA's request to insist on a substantial monetary penalty, EPA Region VIII, which oversees the Missouri RCRA program, filed its own administrative complaint against Harmon on September 30, 1991. EPA alleged that Harmon operated a hazardous waste landfill without a permit or interim status, failed to have a groundwater monitoring program, failed to establish and maintain financial assurance for closure and post-closure care and third-party liability insurance coverage, and failed to provide timely notification as a hazardous waste generator. EPA sought $ 2,343,706 in penalties.

Shortly thereafter the MDNR and Harmon finalized their consent decree, which was filed with the Circuit Court in Jackson County, Missouri. It was approved and entered as a court order on March 5, 1993. The Missouri Attorney General's office alleged in the petition accompanying the consent decree that it was entered in satisfaction of the very same violations that had been alleged in EPA's administrative complaint. The decree provided that "Harmon's compliance with this Consent Decree constitutes full satisfaction and release from all claims arising from allegations contained in plaintiff's petition."⁷

EPA never contended that the terms of the consent decree violated RCRA or exceeded the scope of the MDNR's enforcement authority. EPA instead proceeded with its own administrative complaint before an administrative law judge (ALJ). The ALJ rejected Harmon's defenses of improper overfiling and res judicata, reduced the proposed penalty to $ 586,716, and entered judgment in that amount.⁸ Harmon appealed to the EAB.

The EAB began its analysis with the relevant provisions of RCRA. RCRA § 3006(b) provides in pertinent part as follows:

Any State which seeks to administer and enforce a hazardous waste program pursuant to this subchapter may develop and, after notice and opportunity for public hearing, submit to the Administrator [of EPA] an application … for authorization of such program…. [Upon authorization s]uch State is authorized to carry out such program in lieu of the Federal program under this subchapter in such State ….⁹

The statute requires that the state program be "equivalent to" and "consistent with" the federal program, and provide "adequate enforcement."¹⁰ Missouri's program had been authorized by EPA under this statutory provision in 1985. Section 3006(d), entitled "Effect of State Permit," states: "Any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the [EPA] Administrator under this subchapter."¹¹ The relevant enforcement provisions are contained in § 3008(a)(2):

In the case of a violation of any requirement of this subchapter where such violation occurs in a State which is authorized to carry out a hazardous waste program under section [3006], the Administrator shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section.¹²

These provisions are at the heart of the federal-state partner-ship that Congress established as national policy.¹³

Harmon contended that under these provisions EPA could bring an enforcement action in an authorized state only if EPA gives advance notice to the state of its intention to bring such an action and the state fails to bring an action of its own. The EAB disagreed, upholding EPA's staff position that EPA retains the authority under RCRA to bring its own enforcement action notwithstanding any action by the state.

On the issue of res judicata, the EAB recognized that the Full Faith and Credit Act¹⁴ requires that a federal court give "the same preclusive effect to a prior state court judgment that the state court would give to the judgment."¹⁵ However, the EAB concluded that Missouri would give no preclusive effect to the consent decree "because the [EPA] was not in privity with the state of Missouri with respect to the consent decree."¹⁶ Privity requires "an identity of interest" between the party to the decision and the party against whom res judicata is invoked. The EAB concluded that EPA has an interest [29 ELR 10783] in national uniformity and rigorous enforcement that is not necessarily shared by states, which might be more interested in encouraging regulated industries "to remain in or relocate to the state, thereby preserving or bolstering the state's economy."¹⁷ Because of this alleged lack of identity of interest between EPA and the MDNR, the EAB concluded that there was no privity between EPA and the state, hence no res judicata.

The federal district court granted summary judgment reversing the EAB on both issues. While recognizing that there had been cases in which EPA brought enforcement actions in authorized states where the state had received notice and declined to take action on its own¹⁸ or where a state had filed a separate administrative action and then put that case "on hold" pending the outcome of EPA's suit,¹⁹ the court recognized that the present case was one of first impression in the federal courts.

Turning first to the statutory language, the district court stated:

The Court finds that the plain language of section 3006(b) provides that the MDNR operates "in lieu of" or instead of the federal program…. The concept of co-existing enforcement powers is inconsistent with EPA's delegation of authority and the legislative history. Indeed, such a concept would predictably result in confusion, inefficiency, duplicative agency expenditures and would thwart the public policy of early and non-judicial dispute resolution.²⁰

The court then held that the "same force, and effect" language of § 3006(d) means that any enforcement action by a state has the same binding effect as if the action were taken by EPA.

The court held that any contrary interpretation would not only do violence to the statutory language and purpose but would create considerable "uncertainty in the public mind."²¹ The court described the dilemma in which this would put the regulated community:

With whom should it negotiate? Must it negotiate with both state and federal authorities? Should it insist that EPA sign off on all agreements with authorized state agencies?

In this case, MDNR signed a consent decree and the issue has effectively been resolved. The EPA does not and should not have the authority to impose its own separate penalties after Plaintiff negotiates a settlement with an authorized state agency and that settlement is approved by an appropriate state judicial authority.²²

Turning to the res judicata issue, the district court held that res judicata under Missouri law, like that of many other states, requires that four elements be satisfied: (1) identity of the thing sued for, (2) identity of the cause of action, (3) identity of the persons and parties to the action, and (4) the identity of the "quality," or capacity, of the person for or against whom the claim is made. The district court found that the first two were clearly satisfied. The fourth was satisfied because Harmon was the named defendant in both actions, sued in the same capacity. The third element, identity of the parties to both actions, required an analysis of the relationship between EPA and the state to determine whether there was an "identity of interest" between them in each of the proceedings.

The district court held that the "interest" at issue was the legal right being asserted, not the possible different policy interests that might guide EPA or the state in enforcing the right. The court concluded that with respect to the legal interest at issue, i.e., enforcement of RCRA, the MDNR stood in the shoes of EPA, and, thus, the third element was satisfied. Accordingly, the district court granted summary judgment for Harmon on res judicata. EPA appealed, and it is to the decision of the Eighth Circuit that we now turn.

The Statutory Language Precludes Overfiling

The Eighth Circuit began its legal analysis by noting that in reviewing a federal agency's interpretation of a federal statute, a court defers to the agency's interpretation if it finds that the agency's interpretation "is consistent with the plain language of the statute or represents a reasonable interpretation of an ambiguous statute."²³ The court stated that it reviewed de novo a district court's findings and conclusions regardingthe correctness of an agency's statutory interpretations.

The Eighth Circuit then proceeded to undertake its own analysis of the relevant RCRA provisions. It focused on the "in lieu of" language in § 3006(b) and the "same force and effect" language in § 3006(d). The court noted that EPA based its alleged right to "overfile" on § 3008(a)(2), quoted above. EPA argued that the district court misinterpreted the "in lieu of" and "same force and effect" language in RCRA. EPA's position was that the phrase "in lieu of" simply refers to which regulations EPA may enforce, i.e., the state regulations in an authorized state and the EPA regulations in a nonauthorized state.

The Eighth Circuit rejected EPA's argument as contrary to the plain language of the statute. The court held that the "in lieu of" language refers to the RCRA regulatory program, and "the administration and enforcement of the program are inexorably intertwined."²⁴ The court held that RCRA's grant of authority to the states to create and implement their own program would be meaningless if they could adopt regulations but not enforce them. Consequently, their enforcement of these regulations is "in lieu of" enforcement action by EPA.

EPA next argued that the phrase "same force and effect" refers only to the effect of state-issued permits, because that language appears under a heading that reads "Effect of State Permit." EPA argued from this that neither it nor a court is required under this provision to give the "same force and effect" to a state enforcement action. The court disagreed, stating:

Regardless of the title or heading, the plain language of section [3006(d)] states that "any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action [29 ELR 10784] taken by the [EPA] under this subchapter." In this context, the meaning of the text is plain and obvious. "Any action" under this provision broadly applies to any action authorized by the subchapter, and this language is not limited to the issuance of permits.²⁵

The court held that such action included in particular state enforcement action.

Like the district court, the Eighth Circuit found support for its interpretation in the legislative history. It quoted language from the House Report expressing the intent of Congress to vest primary enforcement authority in the states.²⁶ The court concluded that this report supports its interpretation that in an authorized state EPA's right to bring its own enforcement action exists only when EPA has given advance notice to the state and the state fails to initiate any enforcement action, or when EPA has revoked a state's authorization to implement the RCRA program. The court squarely rejected EPA's argument that it may initiate an enforcement action whenever it deems the state's enforcement action inadequate. The statutory language was designed to avoid the uncertainty and duplication that such a policy would introduce.

The Eighth Circuit's decision has support in dictum from the only other court of appeals' case that appears to have considered this issue. In Northside Sanitary Landfill, Inc. v. Thomas,²⁷ a landfill operator challenged comments by the EPA Regional Administrator on a closure plan on the grounds that only the authorized state of Indiana had the authority to determine the location of the alleged disposal of hazardous waste. The Seventh Circuit dismissed the petition for review for lack of standing. However in the course of its decision, the court discussed the state's primary authority for enforcement:

Even if the EPA is dissatisfied with, for example, the enforcement action taken by a state against a specific hazardous waste disposal facility, or the settlement agreement reached between the state and the facility, so long as the state has exercised its judgment in a reasonable manner and within its statutory authority, the EPA is without authority to commence an independent enforcement action or to modify the agreement.²⁸

Neither the district court nor the Eighth Circuit in Harmon discussed Northside, perhaps because it is clearly dictum. Nevertheless, it does reflect the similar views of another circuit court of appeals.

Res Judicata

While the ruling on statutory interpretation clearly disposed of the case, the Eighth Circuit, like the district court, elected to address the res judicata issue as well. It followed precisely the same reasoning as the district court in concluding that all four elements of the test required for res judicata had been met. In particular, it held the "identity of the persons and parties" test was met because of the privity between EPA and the MDNR. The court held that since the MDNR was bringing an enforcement action based on the same alleged violations which were the subject of EPA's overfiling, "Missouri's action has the same force and effect as an action initiated by the EPA. Accordingly, the two parties stand in the same relationship to one another."²⁹ The court might have added that Missouri and EPA also stand in the same relationship to the defendant.

Before the court of appeals, EPA raised for the first time the argument that even if principles of res judicata are satisfied under Missouri law, the doctrine of sovereign immunity precludes applying res judicata to the United States unless the United States was the actual party in the prior lawsuit. The court rejected this defense based on Montana v. United States,³⁰ which held that "one who prosecutes or defends a suit in the name of another to establish and protect his own right is as much bound as he would be if he had been a party to the record."³¹ Montana involved the application of estoppel in a case where the United States had taken a "laboring oar" in the conduct of state court litigation. In Harmon the Eighth Circuit held that EPA had taken a sufficient "laboring oar" in authorizing the state of Missouri to bring enforcement actions "in lieu of" EPA and "with the same force and effect …."³² Consequently, the court concluded that the United States is bound by prior judgments involving state actions by an authorized state agency.

The Statute-of-Limitations Defense

Harmon had argued in the district court that EPA's enforcement claim was barred by 28 U.S.C. § 2462's five-year statute of limitations because all of the actions that were the subject of the enforcement proceeding were committed no later than 1982, nine years before EPA brought its enforcement action. It is somewhat surprising that the Eighth Circuit even addressed this issue since, as it acknowledged, its decision on the statutory construction and res judicata issues precluded any need to address the issue and Harmon did not file a cross-appeal. Nevertheless, perhaps to provide clarity at the court of appeals level, the Eighth Circuit observed that Harmon's pollution activities continued until 1987 and that this constituted a continuing course of violation that continued into the period within five years of the commencement of EPA's enforcement action. Therefore, like the district court and the EAB before, the Eighth Circuit rejected Harmon's statute-of-limitations defense.

What Are the Implications of Harmon?

As of this writing the time has not yet elapsed for the United States to seek en banc review or a writ of certiorari. However, given the fact that the Eighth Circuit unanimously affirmed a well-reasoned district court decision on two equally sufficient grounds, it seems at this point highly likely that the decision will stick. The decision seems solid as a matter of statutory analysis and makes practical sense.

While Harmon has established the law for all states within the Eighth Circuit,³³ it is not clear at this point [29 ELR 10785] whether EPA will take the position that it is free to disregard Harmon outside the Eighth Circuit. To do so would create an inappropriate inconsistency across the nation, which is something EPA has generally sought to avoid. Where Harmon is in effect, however, companies may now rely on the finality of judgments and settlements achieved with state agencies without the fear that they may be second-guessed by EPA. Under the Harmon analysis even the pendency of a state enforcement proceeding should prevent EPA from overfiling. This is a measurable improvement in conditions prior to Harmon.

One issue that was not addressed in the case but that could arise in the future is what happens if EPA seeks to overfile an enforcement action that a state is currently prosecuting but has not yet concluded. While the pending state action could not constitute res judicata, the statutory analysis in Harmon provides the basis for dismissing any such federal overfiling.

A somewhat more difficult question might arise as to what EPA would be allowed to do if the state commences an enforcement action but fails to diligently prosecute it. Under such circumstances, the burden should be on EPA to demonstrate that the state proceeding was a clear sham. Unless EPA can demonstrate to the satisfaction of a district court that the state proceeding was not maintained diligently or in good faith, so as to constitute the functional equivalent of "state inaction," EPA should not be allowed to proceed with its own enforcement case. Indeed Harmon could be read to hold that even under these circumstances EPA's only remedy would be to revoke the state program and that overfiling is precluded so long as state authorization is in place.

The Harmon decision comes at a time when there have been a number of strains in the uneasy partnership between the EPA regional offices and the states with authorized programs under RCRA, as well as the Federal Water Pollution Control Act (FWPCA) permit programs and the Clean Air Act (CAA), under which all states have state implementation plans. All such states have lead responsibility for enforcement, with a residual right in favor of EPA to bring an enforcement case in the face of state inaction after appropriate notice. The language of the relevant enforcement provisions under the CAA and the FWPCA differ somewhat from that of RCRA, but each statute allows for federal enforcement where the state fails to take appropriate action to enforce a federally mandated program.³⁴ It remains to be seen how courts will address overfiling issues under those statutes. Harmon provides significant precedent for courts to construe those statutes so as to further an efficient and predictable federal-state enforcement partnership similar to the one that the Eighth Circuit has found Congress intended under RCRA.

EPA would do well to consider the soundness of the Eighth Circuit's analysis in Harmon and discontinue nationwide its policy of overfiling. It should be willing to give full faith and credit to state enforcement decisions under other statutory programs as well, even though it might not always agree with the actions taken, except perhaps in those exceedingly rare cases where EPA can demonstrate by clear and convincing evidence that the state enforcement proceeding was simply a sham. Even in those cases, at least under RCRA, as noted above Harmon indicates that EPA's only remedy is to revoke the state's authority to manage the RCRA program rather than to overfile. EPA would be giving up very little in accepting Harmon, and in return it would take a giant step toward the improvement of federal-state relations.

Finally, as noted above, some 25 substantial and somewhat diverse organizations filed amicus briefs in support of Harmon, including the U.S. and state chambers of commerce, a wide variety of industrial trade associations, and the Texas Natural Resource Conservation Commission, while no one filed an amicus brief in support of EPA's position.³⁵ The fact that no state agencies supported EPA on this issue is hardly surprising. However, it is perhaps surprising that no environmental group supported EPA. This indicates that either some of the environmental groups had doubts about the legal soundness of EPA's position or, more likely, they regarded the issue as one of low priority from their perspective. The implications of this are that EPA can in all likelihood abandon its overfiling policy under all of its environmental laws without being attacked by environmentalists as "caving in" on enforcement.

Will the absence of the specter of EPA looming in the background cause enforcement by state agencies to decline? That is a tough question. Given the broad public political support for environmental protection, states have ample incentives to enforce their laws properly. Furthermore, if they really do a poor job, EPA can revoke the program. On balance, therefore, Harmon seems sound both as a matter of legal analysis and federal-state enforcement policy.

1. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

2. Harmon Indus., Inc. v. Browner, No. 98-3775, 1999 WL 718443, 29 ELR 21412 (8th Cir. Sept. 16, 1999).

3. Harmon Indus., Inc. v. Browner, 19 F. Supp. 2d 988, 29 ELR 20035 (W.D. Mo. 1998).

4. Harmon Elecs., Inc., RCRA (3008) Appeal No. 94-4, ELR ADMIN. MAT. 40616 (Mar. 24, 1997). This 70-page opinion contains an extensive discussion of the relevant facts, agency proceedings at the federal and state level, and the legal issues.

5. No. 98-3775, 1999 WL 718443, 29 ELR 21412 (8th Cir. Sept. 16, 1999).

6. Id. at * 1, n.3, 29 ELR at 21412 n.3. The amicus entities were Pacific Legal Foundation, Michigan Manufacturers Association, Mississippi Manufacturers Association, Illinois Manufacturers Association, South Carolina Chambers of Commerce, Environmental Federation of Oklahoma, Arkansas State Chamber of Commerce, Associated Industries of Arkansas, Inc., Wisconsin Manufacturers and Commerce, the Texas Natural Resource Conservation Commission, American Forest and Paper Association, American Iron and Steel Institute, American Petroleum Institute, Chamber of Commerce of the United States, Chemical Manufacturers Association, Corporate Environmental Enforcement Council, Commercial Affairs Committee of the Hazardous Wastes Action Coalition, National Association of Manufacturers, National Mining Association, National Petrochemical and Refiners Association, Rubber Manufacturers Association, Utility Solid Waste Activities Group, Washington Legal Foundation, Missouri Chamber of Commerce, and Associated Industries of Missouri.

7. Harmon Indus., Inc. v. Browner, 19 F. Supp. at 992, 29 ELR at 20036.

8. Harmon Elecs., Inc., No. RCRA-VII-91-H-0037, ELR ADMIN. MAT. 47009 (Dec. 12, 1994).

9. 42 U.S.C. § 6926(b), ELR STAT. RCRA § 3006(b).

10. Id.

11. Id. § 6926(d), ELR STAT. RCRA § 3006(d).

12. Id. § 6928(a)(2), ELR STAT. RCRA § 3008(a)(2).

13. Id. § 6902(a)(7), ELR STAT. RCRA § 1003(a)(7).

14. 28 U.S.C. § 1738.

15. Harmon Elecs., Inc., RCRA (3008) Appeal No. 94-4, ELR ADMIN. MAT. 40616, 40619 (Mar. 24, 1997) (quoting Opening Brief of Appellant Harmon Electronics at 45 n.13, quoting United States v. Bliss. No. 84-2086C(1), 1988 WL 169817, 20 ELR 20879 (E.D. Mo. Sept. 27, 1988)).

16. Id. ADMIN. MAT. 40619.

17. Id.

18. E.g., United States v. Rogers, 685 F. Supp. 201 (D. Minn. 1987).

19. E.g., United States v. Conservation Chem. Co. of Ill., 660 F. Supp. 1236, 17 ELR 20970 (N.D. Ind. 1987).

20. Harmon Indus., Inc. v. Browner, 19 F. Supp. 2d 988, 995, 29 ELR 20035, 20038 (W.D. Mo. 1998).

21. Id. at 996, 29 ELR at 20038.

22. Id.

23. 1999 WL 718443, at *2, 29 ELR 21412, 21412 (citation omitted).

24. Id. at * 3, 29 ELR at 21413.

25. Id. at * 5, 29 ELR at 21413 (citation omitted).

26. Id. at * 6, 29 ELR at 21414, citing H.R. REP. No. 94-1491, at 24 (1976), reprinted in 1976 U.S.C.C.A.N. 6262 (1976).

27. 804 F.2d 371, 17 ELR 20215 (7th Cir. 1986).

28. Id. at 382, 17 ELR at 20220 (emphasis added).

29. 1999 WL 718443, at * 8, 29 ELR at 21415.

30. 440 U.S. 147 (1979).

31. Id. at 154.

32. 1999 WL 718443, at * 9, 29 ELR at 21415.

33. The Eighth Circuit includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

34. See 33 U.S.C. § 1319(a), ELR STAT. FWPCA § 309(a), and 42 U.S.C. §§ 7413(a) and (b), ELR STAT. CAA §§ 113(a) and (b). For a tangential discussion of this issue in the FWPCA context, see United States v. Smithfield Foods, Inc., No. 97-2709, 1999 U.S. App. LEXIS 22092, at * 19-20 (4th Cir. Sept. 14, 1999).

35. See supra note 6 and accompanying text.