Full opinion text
MEMORANDUM AND ORDER MILLER, District Judge. This cause came before the court for trial without intervention of jury commencing December 5, 1988. Following thirty-one days of evidence and argument, the court now enters this memorandum opinion intended to comply with Fed.R.Civ.P. 52(a). The case involves several issues of law on which no court has ruled before. The United States Environmental Protection Agency (“EPA”) and a citizens’ group known as Supporters to Oppose Pollution, Inc. (“STOP”) claim that federal statutes and regulations have been violated in the operation of a hazardous waste disposal facility known as the Four County Landfill. The EPA and STOP bring their claims under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (“RCRA”), and its implementing regulations. The court holds that the EPA has proven that the Landfill has operated illegally since November 8, 1985 and so can operate no longer in its present status. Further, hazardous waste constituents buried at the Landfill have been released into the groundwater and air. Based on those and other violations of federal law, as well as the history of the Landfill’s operation, the court concludes that the Landfill should be closed permanently, that a civil penalty of $2,778,000 should be assessed against the defendants, and that the defendants should be ordered to implement a plan of action to correct their release of hazardous waste constituents into the groundwater. In Part I of this memorandum, the court sets forth the claims brought by the EPA and STOP and describes the location and geography of the Four County Landfill, the relationship between the defendants, and the regulatory history of the Landfill. In conjunction with the Landfill’s regulatory history, Part I of the memorandum also discusses the general regulatory scheme of RCRA. Part II of the memorandum discusses the defendants’ various technical challenges to the suit. In Part II, the court concludes: (A) that it has jurisdiction over the EPA’s suit although Indiana is an “authorized state” for purposes of RCRA enforcement; (B) that STOP’S asserted failure to give notice to the defendants or to the State of Indiana does not deprive the court of jurisdiction over its claims; (C) that the doctrines collectively described as “primary jurisdiction” do not preclude consideration of the claims brought by the EPA and STOP; and (D) that principles of collateral estoppel do not preclude the claims brought by the EPA and STOP, notwithstanding an earlier agreed order in state administrative proceedings. Part III addresses whether defendant Stephen Shambaugh may be held liable under RCRA as an “operator” of the Landfill although a corporate defendant also is an operator, and the court determines that he may be held liable. Part IV of the memorandum addresses the EPA’s claims. Part IV-A addresses the EPA’s claim that the Landfill has lost its interim status (its basis for operation pending final determination of its application for a permit to operate) because the certificate of compliance the defendants filed pursuant to RCRA was false. In Part IV-A-1, the court concludes that the mere filing of a certificate does not satisfy RCRA. The certificate must have been true. In Part IV-A-2, the court holds that the Landfill’s certificate was false because its insurance coverage was insufficient to meet the financial responsibility requirements that applied at the time of the certification. In reaching that conclusion, the court rejects the defendants’ arguments that its insurance coverage amounted to the level the EPA maintains was required, determines that the EPA’s interpretation of the regulatory requirements is correct, rejects the defendants’ argument that the EPA is estopped from enforcing the regulations because of misinformation provided to the Landfill’s insurance agent over the EPA’s “hot line”, and rejects the defendants’ argument that its good faith constitutes a defense to the EPA’s claim. In Part IV-A-3, the court concludes that the Landfill’s certificate of compliance was false because its groundwater monitoring system was inadequate at the time of its certification in November, 1985. In reaching that conclusion, the court rejects the defendants’ argument that the regulations upon which the EPA relies were inapplicable because the Landfill was in “assessment mode” rather than “detection mode”, rejects the defendants’ argument that a state administrative order and subsequent state inaction prevented them from complying with the regulations, rejects the defendants’ argument that their groundwater monitoring wells actually were in the best location to detect migrating hazardous waste constituents, and rejects the defendants’ argument that the EPA has mischar-acterized the “waste management area” for purposes of placement of monitoring wells. The court also concludes that one monitoring well critical to compliance with the regulations was inadequate under the regulations because it was sealed improperly- Part IV-B of the memorandum discusses the EPA’s claim that the defendants violated RCRA by placing hazardous waste in unlined cells for a period of several months. The court earlier held, on summary judgment, that the defendants had violated that provision. In Part IV-C of the memorandum, the court addresses the EPA’s contention that the Landfill’s groundwater monitoring system failed, even in 1988, to satisfy RCRA requirements. In that portion of the memorandum, the court holds that because of defects in the depth and construction of the defendants’ monitoring wells, and because of the defendants’ failure to determine both the extent of the uppermost aquifer and the permeability of the materials beneath the Landfill, the defendants have violated that RCRA regulation requiring an adequate groundwater monitoring system. In Part IV-D of the memorandum, the court finds that hazardous waste constituents have been released into the groundwater beneath the Four County Landfill and that corrective action is required. Part V of the memorandum addresses the additional claims raised by the inter-venor, STOP. Part V-A addresses STOP’S various claims that hazardous waste constituents have been released into the environment beyond the Four County Landfill’s boundaries. In that portion of the memorandum, the court finds that STOP has not proven that hazardous waste constituents have left the landfill site through the groundwater, but that STOP has proven that hazardous waste constituents have been spread to areas surrounding the Four County Landfill by wind dispersal and by surface water leaving the landfill site after coming into contact with hazardous waste. The remaining portions of Part V address, and reject, STOP’S other claims. In Part V-B, the court discusses STOP’S claim that the defendants improperly accepted ignitable waste. Part V-C analyzes STOP’S claim that the defendants improperly accepted free liquids. Part V-D addresses STOP’S contention that the defendants handled barrels of hazardous waste negligently. Part V-E discusses STOP’S claim that the defendants improperly accepted hazardous waste that was not listed on the manifests that accompanied the waste. In each of these parts, the court concludes that STOP has not proven its claim by a preponderance of the evidence. Part VI addresses the penalties to be imposed on the defendants for the violations that are found to have occurred. In that portion of the memorandum, the court determines that the Four County Landfill must be closed immediately because its failure to have sufficient insurance and an adequate groundwater monitoring system in November, 1985 ended its right to continue to operate under “interim status”, that is until its final application for a permit is granted. The court also determines in Part VI that the seriousness of the violations and the defendants’ poor performance record warrant closing the Four County Landfill permanently. In Part VI, the court also concludes that the defendants must undertake a corrective action plan to address the release of hazardous waste constituents into the groundwater, must pay civil penalties amounting to $2,778,000, and must pay the reasonable attorney fees and expenses incurred by STOP. I. BACKGROUND The EPA initiated this action pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, addressing a hazardous waste landfill known as the Four County Landfill (“the Landfill”) located in Fulton County, Indiana. Pursuant to 42 U.S.C. § 9613(i), the court allowed intervention by a citizens’ organization known as Supporters to Oppose Pollution, Inc., or “STOP”. The four defendants are the Landfill’s alleged owners and operators. Environmental Waste Control, Inc. (“Environmental Waste”) is an Indiana corporation that operates the Landfill. West Holding Company, an Indiana corporation, owns all Environmental Waste stock and the land on which the Landfill is located. James A. Wilkins is president of West Holding Company and until recently owned the land on which the Landfill is located. Stephen W. Shambaugh is president of Environmental Waste, vice-president of West Holding Company, and until recently was the sole shareholder of Environmental Waste. The court will refer to the defendants collectively as “EWC”. A. The EPA’s Claims The EPA’s second amended complaint states four claims for relief. In its first claim, the EPA contends that the Landfill should be closed, at least temporarily, because the Landfill lost its interim status to operate a land disposal facility on November 8, 1985, and since then has been operating illegally. The EPA seeks civil penalties and an order closing the Landfill until its final application for a permit to operate is finally resolved. In the second claim, the EPA alleges that EWC violated RCRA’s “minimum technology” requirements by disposing of hazardous wastes in areas not equipped with liners and required equipment between May 8, 1985 and August 19, 1986. In this claim, the EPA seeks civil penalties. The third claim alleges that the Landfill’s groundwater monitoring system does not comply with applicable regulations; the EPA seeks civil penalties and injunctive relief requiring the defendants to bring that system into compliance. With respect to each of these claims, the EPA seeks civil penalties of $25,000 per day of violation. The fourth claim alleges that a release of hazardous waste or hazardous waste constituents has occurred at the Landfill and asks the court to order a corrective measures study to determine the steps needed to deal with that release. B. STOP’S Claims STOP joins in the EPA’s four claims, but, unlike the EPA, seeks nothing short of permanent closure. Most of STOP'S additional claims are based on allegations that EWC has allowed hazardous waste or hazardous waste constituents to be released into the environment through the air, groundwater, and surface water. STOP contends that EWC failed to place cover over hazardous wastes after the wastes were deposited in the Landfill; that EWC has failed to install and implement a proper system for control of runoff from hazardous waste areas and run-on that flows onto hazardous waste areas; that EWC has allowed the integrity of the Landfill’s run-on and runoff control systems to be impaired; and that the Landfill has discharged contaminated water into the waters of the State of Indiana. STOP also claims that EWC improperly accepted ignitable and self-combustible materials; that EWC improperly received un-containerized liquid hazardous wastes; that Landfill personnel have handled containers of hazardous waste negligently, allowing the containers to rupture and leak; and that EWC has accepted loads of hazardous waste without the detailed chemical analysis required by regulations. C. The History of the Landfill’s Regulation and Ownership 1. Location and Geography The Four County Landfill is located near the communities of Culver, DeLong, and Leiters Ford in Fulton County, Indiana. The site on which the Landfill is located consists of approximately 61.5 acres astride State Road 17. The area surrounding the Landfill is rural and agricultural, consisting of open fields, wetlands, wooded lots and cultivated land, and year-round and seasonal homes. No hazardous waste generating industry is located near the Landfill. The Tippecanoe River runs less than one mile north-northeast from the Landfill; Kings Lake lies directly east of the Landfill. Three residences with domestic wells are located within 600 feet of the site; several more private wells that provide drinking water for local residents and water for domestic stock and farming are within one mile of the Landfill. The regional terrain is hilly, composed of sediments derived from past glacial action. The highly variable size and distribution of glacially derived sediments can affect the direction and velocity of groundwater flow. The earth below the Landfill is directly relevant to this action, but discussion of that geology is deferred to the pertinent portion of the opinion. 2. Relationship Between the Defendants Mr. Wilkins and his father first began operating a landfill on the Four County Landfill site in 1973. When the Wilkins’ landfill began operations, it was authorized to receive only non-hazardous wastes. After 1978, the State of Indiana required disposal facilities to separate general refuse from “separate area waste” consisting of commercial and industrial wastes, which included what now is designated “hazardous waste”. The Landfill did not, and was not required to, maintain records of the location within the facility of individual loads of “separate area waste”. Beginning in 1980, with occasional exceptions, the Landfill began to dispose only of hazardous wastes; late that year, the Landfill began to record placement of waste within the waste management area. Mr. Wilkins acquired the land on which the Landfill is located by way of quitclaim deed from his mother in 1978. On November 3, 1988, about a week after the court found him to be an “owner” for RCRA purposes, United States v. Environmental Waste Control, Inc., 698 F.Supp. 1422, 1430 (N.D.Ind.1988), he deeded the property to West Holding Company in exchange for half the stock of West Holding Company. Mr. Wilkins testified that he transferred the property to West because of prior confusion his ownership interest caused customers, regulators and others, but the court finds his explanation unconvincing. The transfer’s only reasonable purpose was to shield Mr. Wilkins from post-transfer liability under RCRA. Mr. Shambaugh formed EWC with Douglas Johnson in 1978. On October 1, 1978, Mr. Shambaugh and Mr. Johnson signed a ten-year lease with Mr. Wilkins that allowed Mr. Johnson and Mr. Shambaugh to operate a hazardous waste landfill on the Wilkins land. In March, 1985, Mr. Johnson transferred all his interest in the Landfill, including his EWC stock and his rights and duties under the lease, to Mr. Shambaugh. Mr. Shambaugh has been president of EWC since its creation. EWC has had no directors; its only other officers have been Mr. Johnson (who served as vice-president from 1978 to 1985) and Mr. Shambaugh’s wife (who served as secretary for a period of time). Mr. Wilkins has held no office with, and has owned no shares in, EWC. Mr. Shambaugh has been actively involved in the Landfill’s day-to-day activities. He shares final responsibility with Mr. Wilkins for virtually all decisions concerning the Landfill’s operations, other than the locations at which waste is to be placed. In 1985, when a downturn in the Landfill’s economic fortunes led to a layoff of most of the Landfill’s employees, he even operated heavy machinery at the Landfill. In November, 1988, Mr. Shambaugh transferred his EWC stock (consisting of all the shares of EWC) to West Holding Company in exchange for the half of West shares Mr. Wilkins did not receive. Although Mr. Shambaugh testified at trial, he tendered no explanation for that transfer. The court finds that his purpose must have been the same as Mr. Wilkins’: to shield himself from liability under RCRA. Neither Mr. Shambaugh nor Mr. Wilkins contributed cash to West, although Mr. Wilkins contributed certain equipment used in the Landfill’s operation. 3. RCRA and the Four County Landfill RCRA establishes a comprehensive federal regulatory program applicable to the generation, transportation, storage, treatment, and disposal of hazardous waste. RCRA and its implementing regulations required all persons who generate, transport, treat, store, or dispose of hazardous waste to notify the EPA of such activity by August 10, 1980. 42 U.S.C. § 6930. a. Interim Status A hazardous waste facility may be operated only in accordance with a permit. 42 U.S.C. § 6925(a). Because the EPA could not issue permits to all hazardous waste applicants before RCRA became effective, hazardous waste facilities that were in existence on November 19, 1980 benefit from a “grandfathering” provision: such a facility could obtain “interim status” to continue operation until the EPA or an authorized state takes final action with respect to the facility’s permit application. 50 Fed.Reg. 38,946. A facility must satisfy certain conditions to obtain interim status, including the filing of timely notice to the EPA that the facility treats, stores, or disposes of hazardous waste and the filing of an application for a hazardous waste permit. 42 U.S.C. § 6925(e). This application, the first stage of a two-stage process, has come to be described as the “Part A application” stage. Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 373 (7th Cir.1986); United States v. Conservation Chemical Co. of Illinois, 660 F.Supp. 1236, 1237 (N.D.Ind.1987). A facility is granted interim status if the EPA Administrator finds no reason to believe that an existing facility’s Part A application does not meet the disclosure requirements of 40 C.F.R. § 270.13. Such a facility is treated as having been issued a permit upon the filing of a Part A application and the giving of proper notice of its hazardous waste activities. 40 C.F.R. § 270.70. EWC obtained interim status in 1980. On August 18,1980, EWC notified the EPA that it was disposing of hazardous wastes at the Landfill. On November 18, 1980, EWC submitted Part A of an application for authorization to treat, store, or dispose of hazardous waste at the Landfill. Accordingly, EWC was accorded interim status pending final administrative disposition of its permit application, allowing it to operate its facility. See 42 U.S.C. § 6925(a), (e)(1); 40 C.F.R. §§ 270.10, 270.70(a). Since then, EWC has disposed of hazardous wastes within the meaning of 42 U.S.C. § 6903(5) at the Landfill, including those containing barium, cadmium, chromium, lead, mercury, certain waste water treatment sludges, emission control dust or sludge from secondary lead smelting, certain emission control dust and sludges from the primary production of steel in electric furnaces, spent solvent trichloroethylene and still bottoms from the recovery of spent trichloroethylene, spent solvent acetone and still bottoms from the recovery of spent acetone solvent, spent solvent creo-sols and still bottoms from the recovery of spent solvent creosols, and spent toluene solvent. The Landfill received more than 16,000 cubic yards of hazardous waste in 1986; from January 1 to July 21, 1987, the Landfill reported receiving about 30,000 cubic yards; the defendants thereafter ceased reporting the volumetric measurement of wastes received. The presence of hazardous wastes at the Landfill constitutes disposal within the meaning of RCRA. 42 U.S.C. § 6903(33). b. Regulation of Interim Status Facilities Congress authorized the Administrator of the EPA to promulgate regulations establishing performance standards for interim status facilities. 42 U.S.C. § 6924. These regulations are codified at 40 C.F.R. Part 265. RCRA authorized the EPA to approve state regulations that are substantially equivalent to the federal interim status regulations. 42 U.S.C. § 6926. Following approval, the state enforces its regulations in lieu of the federal regulations. 42 U.S.C. § 6926(c). On August 18,1982, the EPA granted Indiana Phase I interim authorization to promulgate interim status regulations. Indiana received final authority to promulgate interim status regulations on January 31, 1986. Accordingly, owners and operators who have interim status to operate under 42 U.S.C. § 6925(e) in the State of Indiana generally must comply with the standards and requirements of Title 320, Article 4.1-22 of the Indiana Administrative Code (now codified at 329 I.A.C. 3) in operating hazardous waste facilities. The EPA, however, retains authority to enforce violations of Subchapter III of RCRA in Indiana. The delegation to Indiana of final authority to promulgate interim status regulations did not include responsibility for any of the provisions added to RCRA by the Hazardous and Solid Waste Amendments of 1984 (“HSWA”), which include the provision concerning loss of interim status. 42 U.S.C. § 6925(e)(2); Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d at 382-383. 40 C.F.R. § 265.147 required owners and operators of hazardous waste facilities to meet certain financial responsibility requirements to establish financial assurance for liability to third parties. 42 U.S.C. § 6924(o)(1)(A) required owner-operators of existing landfills who conduct lateral expansion to install two or more liners and a leachate collection system above and between the liners; 42 U.S.C. § 6936(b) made this requirement applicable to interim status facilities with respect to waste received after May 8, 1985. c. Certification and the Part B Application Before Congress amended RCRA in 1984, a hazardous waste facility was not required to submit a “Part B application” seeking a final determination of its permit application until six months after the EPA requested it to do so. In 1984, Congress decided that interim status should not be allowed to last indefinitely. Accordingly, the 1984 amendments provided that by November 8, 1985, owners or operators of land disposal facilities that had been granted interim status were required to file a Part B application and certify that the facility was in compliance with all applicable groundwater monitoring and financial responsibility requirements. 42 U.S.C. § 6925(e)(2). A facility’s failure to satisfy these requirements would result in termination of its interim status on November 8, 1985. On November 7, 1985, EWC filed with the EPA its certificate of compliance with applicable interim status groundwater monitoring and financial responsibility requirements. EWC also filed its Part B application. II. JURISDICTION The court has jurisdiction pursuant to 42 U.S.C. § 6928 and 28 U.S.C. §§ 1331, 1345, and 1355. Venue is proper in this court; the Landfill is located within the Northern District of Indiana. EWC, however, raises several challenges to the court’s jurisdiction. The court must address each of the defendants’ theories challenging subject matter jurisdiction because jurisdiction is a matter that is to be determined at any stage of a proceeding, Darryl H. v. Coler, 801 F.2d 893, 907 n. 13 (7th Cir.1986); Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1055 (7th Cir.1983), cert. denied 465 U.S. 1007, 104 S.Ct. 1000, 79 L.Ed.2d 233 (1984). A. The EPA’s Claims in an Authorized State EWC has asserted throughout this litigation that because the State of Indiana was conferred with the statutory authorization to promulgate interim status regulations, the EPA lacks authority to bring this suit. 42 U.S.C. § 6926. EWC maintains that the EPA lacks authority to determine issues of groundwater monitoring and financial assurance because these matters are now controlled exclusively by state law. As noted above, the EPA’s first claim alleges loss of interim status because the Landfill’s certification of compliance with groundwater monitoring and financial assurance requirements was false. The EPA’s third claim alleges that EWC has failed to implement a groundwater monitoring program capable of determining the Landfill’s impact on the quality of the groundwater in the uppermost aquifer underlying the facility. EWC has not argued that the EPA’s second and fourth claims are outside the court’s jurisdiction. EWC also asserts that the court’s jurisdiction is impeded because Indiana’s enforcement referral to the EPA was improper. According to the 1985 Memorandum of Agreement between Indiana and the EPA, the EPA could take enforcement action only after it had determined that the state had not taken “timely and appropriate action”. EWC argues that no provision in the Agreement justifies any type of referral to the EPA and further argues that the EPA made no determination that Indiana had not taken “timely and appropriate” action on the matters contained in the EPA’s amended complaint. EWC also argues that Indiana did not authorize the enforcement referral. Because EWC has never specified the claims to which this argument is directed, the court must assume that it is intended to apply to the entire amended complaint. 1. The First Claim: Loss of Interim Status EWC has argued repeatedly that the EPA has no authority to determine whether the Landfill complies with the groundwater monitoring program requirements or the financial assurance requirements of the 1984 amendments known as HSWA because state law now governs those requirements. This argument is no stranger to this litigation. EWC raised this argument in its unsuccessful summary judgment motion, then renewed the argument at the close of the case. In the summary judgment ruling, the court held that the EPA had the authority under 42 U.S.C. § 6928 to proceed on the issues of groundwater monitoring and financial assurance requirements alleged in its first claim. United States v. Environmental Waste Control, Inc., 698 F.Supp. at 1435-1488. Although authorized to promulgate interim status regulations, Indiana has no authority to enforce any provisions found in the Hazardous and Solid Waste Amendments of 1984; loss of interim status is a provision contained in those amendments. Although jurisdiction is a matter that is to be determined at any stage of a proceeding, EWC has presented no new authority or argument to persuade the court to depart from its pretrial ruling finding jurisdiction over the EPA’s first claim. At trial, however, EWC raised a separate attack on the EPA’s ability to take enforcement action for the RCRA violations alleged in the EPA’s amended complaint. EWC contends that Indiana improperly referred this matter to the EPA for enforcement under the 1985 Memorandum Agreement between Indiana and the EPA because: (1) the assistant state agency commissioner who signed the referral letters had no authority to make a referral that only the Commissioner could make; and (2) under the Agreement, the EPA could take enforcement action only after it determined that the State had not taken “timely and appropriate action”. The referral at issue came from David Lamm, Assistant Commissioner for Solid and Hazardous Waste Management, Department of Environmental Management. The referral, dated July 26, 1986, informed the EPA that the Landfill apparently had violated minimum technology requirements of the 1984 amendments known as HSWA and falsely certified compliance with the groundwater monitoring requirements and financial assurance requirements. (EPA Exh. 36). This document was designated an “enforcement referral”. Mr. Lamm reasserted his request for enforcement action in a referral letter dated June 10,1987. (STOP Exh. 47). The 1985 Memorandum of Agreement provided only that the EPA may take enforcement action “upon determining that the State has not taken timely and appropriate enforcement action”. (EWC Exh. IIIII, p. 26). EWC maintains that the EPA did not determine whether the State had taken “timely and appropriate action”. In support of this argument, EWC points to language found in the more recent 1988 Memorandum of Agreement between the EPA and Indiana: “EPA will take enforcement action only upon determining that the State has not taken timely and appropriate action or upon request of the State.” (EPA Exh. 38, p. 26). In denying EWC’s summary judgment motion, the court held that the EPA had the authority under 42 U.S.C. § 6928 to proceed on the issues of groundwater monitoring and financial assurance requirements alleged in its first claim. 698 F.Supp. at 1435-1438. Section 6928(a) authorizes the EPA to bring an independent enforcement action, even in a RCRA authorized state. United States v. Conservation Chemical Co. of Illinois, 660 F.Supp. at 1244. See United States v. Allegan Metal Finishing Co., 696 F.Supp. 275, 282 (W.D.Mich.1988). The sole restriction on this enforcement authority is that the EPA must notify the state before commencing any action. 42 U.S.C. § 6928(a)(2). Section 6928 “explicitly reserves federal authority in the face of an authorized state program.” Wyckoff Co. v. Environmental Protection Agency, 796 F.2d 1197, 1201 (9th Cir.1986). EWC has not challenged the sufficiency of the EPA’s notice to Indiana. Instead, EWC contends that this enforcement proceeding is improper because it was triggered by a referral contrary to a written agreement or by the wrong person. That argument finds no support in the statute; 42 U.S.C. § 6928(a) neither creates a need for referral by a state nor designates the state official who must make such a referral. Further, Indiana, although authorized to promulgate interim status regulations, has no authority to enforce any provisions found in the 1984 amendments known as HSWA. Determining the loss of interim status is a provision found in the 1984 amendments. Indiana could not have determined whether the Landfill lost its interim status. It is difficult to see how Indiana’s allegedly improper referral of a matter within the EPA’s exclusive enforcement authority could affect the EPA’s right to act under HSWA. 2. The Second Claim: Minimum Technology Requirements The EPA’s second claim alleges violations of RCRA’s minimum technology requirements. This issue was also contained in the referral for enforcement from Indiana to the EPA. For the same reasons stated above, the court is vested with jurisdiction under § 6928(a). The minimum technology provision is a product of the 1984 amendments known as HSWA and a matter not delegated to the state for enforcement. Accordingly, any challenge to Indiana’s attempted enforcement referral to the EPA is immaterial. 3. The Third Claim: Groundwater Monitoring Requirements The third claim of the EPA’s amended complaint alleges that EWC failed to implement a groundwater monitoring program capable of determining the Landfill’s impact on the quality of the groundwater in the uppermost aquifer underlying the facility in violation of 40 C.F.R. § 265.90(a). Again, EWC relies upon the 1985 Memorandum of Agreement between Indiana and the EPA which provided that the EPA could take enforcement action only after determining that the State did not take timely and appropriate action. EWC asserts that the EPA did not determine whether Indiana had taken “timely and appropriate action”. The EPA does not suggest that the matters raised by its third claim arise under the 1984 HSWA provisions; the third claim, unlike the first and second claims, is not within the EPA’s exclusive administrative jurisdiction. This does not defeat the district court’s jurisdiction, however. Although the EPA may not have administrative authority over the violation alleged in the third claim, see Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 42 U.S.C. § 6928 vests jurisdiction in the district court to entertain an enforcement action directed at violations of RCRA. Rather, the proper inquiry is whether the contractual agreement between Indiana and the EPA controls when such an enforcement action can occur. The 1985 Memorandum of Agreement provides no interpretation of “timely and appropriate action”. William Muno, the Chief of the Enforcement Branch for the EPA’s Region V, testified that the EPA’s interpretation of “timely and appropriate” action under the 1985 Memorandum of Agreement requires formal state action within ninety days of discovery of violation, and a notice of violation or warning letter is not a formal action. The record before the court does not suggest that Indiana, the other party to the Agreement, has ever objected to either the EPA’s interpretation of the Agreement or the EPA’s enforcement action. Mr. Muno stated that the institution of this action demonstrates that the EPA had made such a determination. Indiana addressed the allegations of the EPA’s third claim in Notice of Violation V-209, contained in a letter dated October 11, 1985 (STOP Exh. 17). Notice of Violation V-209 alleged a failure to implement a program capable of determining the facility’s impact on groundwater, constituting a violation of 40 C.F.R. § 265.90. EWC’s principal consultant, Michael Johnson, testified that the state had taken no further action on V-209. EWC argues that the June, 1985 administrative order resolving Notice of Violation N-128 incorporated the violations contained in V-209, but introduced nothing to support that contention. Indiana took no formal enforcement action on V-209, and the EPA commenced this suit based, in part, upon the allegations contained in V-209, pursuant to 42 U.S.C. § 6928. Indiana has taken no action, in its proceedings to determine whether a final permit should be issued to the Landfill, that is inconsistent with the EPA’s enforcement proceedings. Finally, to eliminate the possibility that EWC will face apparently inconsistent directives from state and federal regulators, the EPA has stipulated that if its third claim is proven, the court should order implementation of the groundwater monitoring plan Indiana recently approved pursuant to the administrative order in Notice of Violation N-128. Nothing in the referral procedure deprives the court of its subject matter jurisdiction under 42 U.S.C. § 6928. See United States v. Conservation Chemical Co. of Illinois, 660 F.Supp. at 1244-1245. The court has subject matter jurisdiction over the EPA’s third claim. 4. The Fourth Claim: Corrective Action The EPA’s fourth claim is based upon the Administrator’s determination that a release has occurred at the Landfill. On June 5, 1987, the Regional Administrator, Valdas Adamkus, sent EWC a Determination of Release of Hazardous Waste into the Environment. (EPA Exh. 12). Section 6928(h) vests the court with subject matter jurisdiction. Once the Administrator determines that there is or has been a release of hazardous waste into the environment from a hazardous waste disposal facility, the Administrator may commence a civil action in the “United States district court in the district in which the facility is located for appropriate relief ...” 42 U.S.C. § 6928(h)(1). This provision was enacted as part of the 1984 amendments known as HSWA to allow the EPA to seek corrective action for release of hazardous wastes through either an administrative order or court order. United States v. Clow Water Systems, 701 F.Supp. 1345 (S.D.Ohio 1988); see United States v. Indiana Woodtreating Corp., 686 F.Supp. 218 (S.D.Ind.1988). The court has subject matter jurisdiction to entertain the allegations of the EPA’s fourth claim. B. STOP’S Failure to Give Notice EWC suggests that STOP failed to give timely notice as required of citizen groups by 42 U.S.C. § 6972(b), and that STOP’S failure to comply with this provision deprives the court of subject matter jurisdiction over STOP’S claims. 1. Notice Is Not Jurisdictional in Hazardous Waste Claim On July 8, 1987, STOP moved to intervene pursuant to 42 U.S.C. § 6972. The EPA responded by noting that intervention under this statutory provision was inappropriate, but directed STOP to the provisions of 42 U.S.C. § 9613(i). STOP filed an amended motion to intervene pursuant to § 9613(i) on October 21, 1987. The EPA chose not to oppose STOP’S intervention as long as STOP introduced no matters extraneous to the claims already before the court. The court granted the amended motion to intervene on November 6, 1987, and STOP’S complaint was deemed filed on November 13, 1987; its amended complaint was filed on November 29, 1988. EWC sought dismissal of STOP’S claims because those claims exceeded the scope of the EPA’s conditional accession to the intervention, but the court found that EWC had no standing to raise that argument. See United States v. Environmental Waste Control, Inc., 698 F.Supp. at 1440-1441. It was not until STOP had completed the first portion of its closing argument that EWC challenged the court’s jurisdiction on these grounds in its “Preliminary Tender of Supplementary Authority”. If the notice issue is not jurisdictional, EWC has waived it by failing to raise it in a timely manner. Indeed, if the issue is not jurisdictional, it is doubtful that one could say the issue has been raised at all. No motion has been filed; EWC simply alluded to the issue on the tenth page of their supporting authorities. If the matter of notice is jurisdictional, however, the indefensible untimeliness of the issue is of no moment. Subject matter jurisdiction may be raised at any stage of the proceedings. Principal Mutual Life Insurance Co. v. Juntunen, 838 F.2d 942, 944 (7th Cir.1988). For that matter, it is immaterial that EWC still has filed no motion to dismiss STOP’S claims for want of subject matter jurisdiction due to failure to give notice; the court must inquire into its jurisdiction whenever it is called into doubt. Kanzelberger v. Kanzelberger, 782 F.2d 774, 777 (7th Cir.1986). STOP offers a simple answer to this challenge to its participation in this suit: notice is not required for intervention. 42 U.S.C. § 9613(i), under which STOP was permitted to intervene, provides: In any action commenced under this chapter or under the Solid Waste Disposal Act [42 U.S.C. § 6901 et seq.] in a court of the United States, any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition may, as a practical matter, impair or impede the person’s ability to protect that interest, unless the President or the State shows that the person’s interest is adequately represented by existing parties. RCRA’s intervention provision, 42 U.S.C. § 6972(b)(1), provides that any person may intervene as of right in any action under § 6972(a)(1)(A). Neither § 6972(b)(1) nor § 9613(i) condition intervention on notice to any party by the prospective intervenor. The intervention provision of § 6972(b)(1) is separate from the notice provision, § 6972(b)(1)(A). Because STOP intervened, it contends, no notice requirement governed it. This approach is too facile. Under circumstances not presented here, a citizen group need not give notice before intervention. An intervenor might present no new claims; notice of claims already pending would be a pointless act. STOP’S role in this case, however, has exceeded that of a mere intervenor. STOP has presented its own claims and sought relief beyond that sought by the EPA. STOP’S additional claims must be viewed more properly as having been in the nature of a citizen’s suit under § 6972(a)(1)(A), which contains certain notice requirements. While STOP should not be penalized for having intervened in an existing enforcement action rather than filing a separate suit, neither may it evade notice requirements by doing so. Accordingly, the court cannot accept STOP’S facially attractive argument that it needed to give no notice to participate in this action. EWC has not specified the notice provision STOP allegedly failed to meet. RCRA contains a provision that conditionally allows citizens to commence an action against “any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter.” 42 U.S.C. § 6972(a)(1)(A). No action may be commenced under § 6972(a)(1)(A) less than sixty days after giving notice to the Administrator, the state in which the alleged violation occurred, and to any alleged violator. The statute contains an important exception, however: ... except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchap-ter III of this chapter [42 U.S.C. §§ 6921-6934] ... 42 U.S.C. § 6972(b)(1)(A). If the action contains allegations concerning hazardous waste management under 42 U.S.C. §§ 6921-6934, then, the action may be brought immediately after notification to those parties. STOP’S original and amended complaints each alleged violations of 42 U.S.C. § 6928. Accordingly, STOP was not required to give sixty days’ notice to the EPA, Indiana, and EWC. STOP was required to give notice before bringing suit, but the statute sets forth no minimum notice period. The elimination of the sixty-day notice requirement concerning hazardous waste management resulted from the 1984 amendments known as HSWA. See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074 (1st Cir.1986) (addressing retroactivity of elimination of sixty-day requirement). No reported decision addresses whether the resultant notice requirement — one that apparently can be satisfied by notice a day or an hour before filing suit — for such cases is a jurisdictional matter or merely a condition precedent to suit. Indeed, the Seventh Circuit has not addressed directly whether any of the notice provisions of § 6972(a)(1)(A) are jurisdictional or merely a condition precedent to suit. In Highland Park v. Train, 519 F.2d 681 (7th Cir.1975), cert. denied 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), however, the court addressed a virtually identical sixty-day notice provision in the Clean Air Amendments to the National Environmental Protection Act and concluded that the notice requirement is jurisdictional. See also Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir.1979), cert. denied 444 U.S. 1025, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980) (same result under Federal Water Pollution Control Act). The Highland Park court reasoned: The legislative history of section 304 shows ... that Congress intended to provide for citizens’ suits in a manner that would be least likely to clog already burdened federal courts and most likely to trigger governmental action which would alleviate any need for judicial relief. It was in response to these concerns that the statutory notice provisions were included in section 304. Congress’s intention would be frustrated if the statutory mandate of section 304(b) were ignored. 519 F.2d at 690-691 (footnotes omitted). The Ninth Circuit echoed these thoughts twelve years later in holding RCRA’s sixty-day notice provision jurisdictional. In Hallstrom v. Tillamook County, 844 F.2d 598, 600-601 (9th Cir.1987), cert. granted, — U.S. -, 109 S.Ct. 1526, 103 L.Ed.2d 832 (1989), the court reasoned that Congress intended to provide a non-adversarial period in which environmental conflicts might be resolved administratively. Litigation, the court held, “should be a last resort only after other efforts have failed.” 844 F.2d at 601. Accord, Walls v. Waste Resource Corp., 761 F.2d 311, 317 (6th Cir.1985) (notice provisions “were intended to give the EPA an opportunity to resolve issues regarding the interpretation of complex environmental standards by negotiation, unhindered by the threat of an impending lawsuit”); Garcia v. Cecos International, Inc., 761 F.2d 76, 81 (1st Cir.1985) (“Notice from potential private plaintiffs gives the EPA and the state an opportunity to investigate the alleged violation.”). This rationale vanishes, however, when the requisite notice with respect to hazardous waste may be satisfied by notice only a day, or perhaps even an hour, before filing suit. Environmental disputes concerning hazardous waste management are most unlikely to be resolved administratively within a single day. Accordingly, the court concludes that RCRA’s notice requirement is not a jurisdictional matter when the alleged violation involves hazardous waste management, and EWC cannot raise the issue at this stage of the proceedings. 2. Adequate Notice Was Given In any event, the record before the court discloses that those entitled to notice under the statute had ample notice of the violations undergirding STOP’S claims. In Hallstrom v. Tillamook County, 844 F.2d at 600, the Ninth Circuit noted that with respect to RCRA’s sixty-day notice provision, the circuits have split between the “pragmatic approach” of the Second, Third, Eighth, and District of Columbia Circuits, and the “jurisdictional prerequisite approach” of the First, Sixth, Seventh (and now the Ninth) Circuits. The “pragmatic approach” allows post-filing notice. For example, in Pymatuning Water Shed Citizens for a Hygienic Environment v. Eaton, 644 F.2d 995 (3rd Cir.1981), the district court had allowed notices to be given after the filing of suit and stayed the action until the notices were given and the sixty days had passed. The court, relying on an earlier Third Circuit case approving that practice, Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3rd Cir.1980), cert. denied 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981), affirmed the district court’s action. Similarly, in O’Leary v. Moyer’s Landfill, Inc., 523 F.Supp. 642 (E.D.Pa.1981), the court found post-filing notice sufficient when the defendants were not called on to defend the claims until more than sixty days had elapsed from the notice. The Seventh Circuit’s jurisdictional view of the notice requirement would preclude such an approach, but the cases adopting the “jurisdictional” approach under RCRA have addressed only the timing, and not the adequacy, of the notice. See, e.g., Garcia v. Cecos International, Inc., 761 F.2d 76 (plaintiff had amended his complaint after removal to allege RCRA violations; court concluded that § 6972 required notice sixty days before the filing of suit, rather than a delay of sixty days after post-filing amendment); Highland Park v. Train, 519 F.2d at 681 (no notice whatsoever). As to the sufficiency of the notice, the reported cases consistently have found that sufficient notice was given if the requisite parties had “notice-in-fact” of the alleged violations. For example, in Proffitt v. Commissioners, Township of Bristol, 754 F.2d 504 (3rd Cir.1985), the plaintiff showed that the county health officials had reported the alleged violations to the state agency and the EPA, and the plaintiff had visited the EPA and the state agency several times in the months before suit to discuss environmental problems at the defendant’s facility. The Third Circuit deemed this “notice-in-fact” sufficient. In Fishel v. Westinghouse Electric Corp., 617 F.Supp. 1531, 1536 (M.D.Pa.1985), the defendant contended that it received insufficient notice because the notice did not specify the regulations allegedly violated, the persons responsible for the violations, or the dates of the violations. The court held that the notice, which provided adequate information concerning the nature of the alleged violations, was sufficient. The court also noted that the EPA and the state agency had been investigating such violations at the defendant’s facility for several months before the notice. Accordingly, the court refused to dismiss the suit on notice grounds. See also Brewer v. Ravan, 680 F.Supp. 1176, 1181 (M.D.Tenn.1988); Utah State Department of Health v. Ng, 649 F.Supp. 1102 (D.Utah 1986) (series of letters between the plaintiff state agency and the defendants constituted notice-in-fact to the defendants). There must be some notice to the defendant and the agencies, and oral notice to some will not suffice. In Reeger v. Mill Service, Inc., 593 F.Supp. 360 (W.D.Pa.1984), the plaintiffs conceded they had given the defendants no written notice, but argued that nothing more than their oral complaints to the state agency and the EPA should be required because written notice would be useless. The court rejected the argument and dismissed the suit. The plaintiffs in McCastle v. Rollins Environmental Services, 514 F.Supp. 936 (M.D.La. 1981), do not appear to have realized that their complaint stated claims under RCRA and so had given no pre-filing notice to the EPA or the state. The court held that the complaint’s allegations brought it within the scope of RCRA and dismissed the complaint for want of notice. The plaintiffs moved for reconsideration, arguing that the state agency, which acts in the EPA’s stead, had received actual notice of the suit three days after the suit was filed. The court rejected that argument, distinguishing the Third Circuit’s “pragmatic approach” cases. The defendant and the agencies must have actual notice; that they should have known of the alleged violations is insufficient. In Walls v. Waste Resource Corp., 761 F.2d 311 (6th Cir.1985), the plaintiffs had alleged that the defendants, the state, and the EPA had had constructive notice for more than sixty days, but apparently did not explain the basis for that allegation. The court deemed the allegation insufficient to establish actual notice and affirmed the dismissal. By these standards, all necessary recipients of notice had notice-in-fact of STOP’S claims. STOP’S motion to intervene was not granted until almost four months after STOP served its proposed complaint on the EPA and EWC. STOP was not a party to the suit during those four months. The EPA and EWC had ample notice of STOP’S intended claim through receipt of the proposed complaint nearly four months before it was filed. To suggest that the state agency did not have notice-in-fact of STOP’S claims would be to ignore the record STOP has presented. Much of STOP’S case consisted of observations and reports by state inspectors and correspondence between the state agency and EWC concerning violations such as STOP alleges; the state agency even considered intervening in the EPA’s suit. (STOP Exh. 50). Indeed, as is discussed in sections that follow, EWC argues that the state agency had addressed or was addressing the very allegations STOP raises here. Indiana, although not served with STOP’S proposed intervenor’s complaint, had notice-in-fact of the violations STOP asserts. Accordingly, even if RCRA’s minimal notice provision in citizens’ suits concerning hazardous waste management is deemed jurisdictional, STOP satisfied its requirements. 3. Ancillary Jurisdiction Even were the court to hold that STOP failed to satisfy a jurisdictional notice requirement with respect to those of its claims that exceeded the EPA’s claims, the court would exercise its ancillary jurisdiction over those claims. When the right to intervene is absolute, no independent ground of federal jurisdiction need be shown to support the intervention; the intervention is properly regarded as coming within the court’s ancillary jurisdiction. 3B J. Moore & J. Kennedy, Moore’s Federal Practice ¶ 24.18[1], at 24-198 (1987). Section 9613(i) gives STOP the right to intervene if its interest relating to the subject matter of the action is so situated that the disposition of the action may, as a practical matter, impair or impede STOP’S ability to protect that interest. No right to intervene exists if the President or the state shows that existing parties adequately represent the intervenor’s interest, but § 9613(i) does not require the intervenor to prove the converse. The EPA chose not to object to STOP’S intervention and the court placed no conditions upon STOP’S intervention. As discussed above, STOP was not required to give pre-filing notice of its claims to the extent those claims did not exceed the scope of the EPA’s claims. STOP’S claims consist of alleged additional RCRA violations. RCRA contains no provision for citizen intervention in enforcement proceedings in authorized states. Middlesex County Board of Chosen Freeholders v. New Jersey Dept. of Environmental Protection, 645 F.Supp. 715, 719 (D.N.J.1986). In response to the court’s inquiry in final argument, counsel were unable to inform the court whether Indiana law allows citizen intervention in such actions. Even if Indiana law provides for such intervention, however, nothing in RCRA or the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq., suggests that states may restrict the broad statutory intervention rights of citizens by allowing intervention in state enforcement proceedings. Accordingly, even if STOP’S additional claims were subject to jurisdictional notice provisions of RCRA, dismissal is not required. Through the court’s ancillary jurisdiction, matters raised by the case can be adjudicated even if an independent basis for jurisdiction is absent. 7C C. Wright, A. Miller and M. Kane, Federal Practice and Procedure § 1917, at 460-461 (1986). The exercise of ancillary jurisdiction promotes judicial economy and fairness. The EPA filed this enforcement action alleging that the defendants violated provisions of RCRA. STOP’S additional claims, while different in nature, allege violations of RCRA; according to STOP witnesses, some of those claims have gone unresolved for some time. All alleged RCRA violations are contained in the same lawsuit. The exercise of ancillary jurisdiction would offend no Congressional purpose. As is discussed above, the notice requirements contained in RCRA exist to afford state and federal administrative agencies the opportunity to address citizens’ complaints before federal fora are called upon to act. Hallstrom v. Tillamook County, 844 F.2d at 600. The state and federal agencies had ample opportunity to act before STOP intervened; indeed, EWC premises its collateral estoppel argument on the proposition that Indiana already has acted. That the EPA already had instituted this suit demonstrates the EPA’s opportunity to act. With these principled in mind, the court finds subject matter jurisdiction exists over all of STOP’S claims. C. Primary Jurisdiction EWC argued in its summary judgment motion that the court should invoke the doctrine of primary jurisdiction on the first and third claims of the EPA’s amended complaint. EWC argued that the court should accord deference to the Indiana agency’s actions against the Landfill because of that agency’s technical and extensive experience on the specific issues found in those claims. The court disagreed. United States v. Environmental Waste Control, Inc., 698 F.Supp. at 1439-1440. The court’s pretrial ruling only addressed EPA’s claims; EWC lodged no primary jurisdiction challenge to STOP’S claims until STOP began to present its evidence. EWC objected to the introduction of any evidence related to claims that were subject of ongoing state court or state administrative proceedings. The court deferred ruling on the primary jurisdiction issue, overruled EWC’s objections, and allowed STOP’S evidence to be introduced. The doctrine of primary jurisdiction was created by courts and is designed to guide a court in determining whether or when it should refrain from or postpone the exercise of its jurisdiction so that an agency may first determine a question. K. Davis, Administrative Law Treatise § 22.1, at 81 (1983). The doctrine usually does nothing more than “allocate power between courts and agencies to make initial determinations”, which usually does not affect final determinations. Id. at 82. The term “primary jurisdiction” may be a “verbal coat of too many colors”, United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 39, 73 S.Ct. 67, 70, 97 L.Ed. 54 (1952) (Frankfurter, J., dissenting and describing “jurisdiction”), in that it encompasses four major, but distinguishable, doctrines: primary exclusive jurisdiction, true primary jurisdiction, statutory exemptions, and agency immunizations. M. Botein, Primary Jurisdiction: The Need for Better Court/Agency Interaction, 29 Rutgers L.Rev. 867, 868 (1976). “Primary exclusive jurisdiction” deprives the court of all power over a case except the very limited power to review an agency’s determination. “True primary jurisdiction” affords an agency the initial opportunity to consider a legal issue or find facts, but the court retains the power to render a judgment. Id. EWC’s assertions involving EPA’s and STOP’S claims could only fall, if at all, within the boundaries of these two doctrines. 1. The EPA’s Claims EWC has argued throughout these proceedings that the claims advanced by the EPA’s amended complaint were matters that Indiana has addressed or should address. EWC contends that if the court does not withhold judgment on the EPA’s claims, the Landfill will be subjected to inconsistent determinations. At the summary judgment stage, the court held that application of the doctrine of primary jurisdiction was inappropriate in this case. United States v. Environmental Waste Control, Inc., 698 F.Supp. at 1438-1440. The court determined, first, that Indiana was not empowered to resolve the loss of interim status issues presented in the first claim of the EPA’s amended complaint; second, that the third claim was an enforcement matter that fell within the provisions of the 1985 Memorandum of Agreement between the EPA and Indiana; and third, that the agency to whose expertise the court would defer is the very agency that initiated this action. EWC maintains that Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952), and Bradford School Bus Transit, Inc. v. Chicago Transit Authority, 537 F.2d 943 (7th Cir.1976), cert. denied 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977), require the court to withhold judgment on claims that are subject to any past or present state administrative agency actions. EWC has not, however, articulated or cited to any authority indicating that the primary jurisdiction doctrines on which they rely implicate a federal court’s deferral to a state administrative agency in an action brought under federal law. Cases cited by EWC do not convince the court that the doctrines so apply. See Montgomery Environmental Coalition Citizens Coordinating Committee on Friendship Heights v. Washington Suburban Sanitary Commission, 607 F.2d 378 (D.C.Cir.1979) (court invoked doctrine due to ongoing EPA administrative action involving a NDPES permit that would determine the permit and amount of discharge to be allowed at the defendant’s facility); Clark Oil Co. Inc. v. Texaco, Inc., 609 F.Supp. 1373 (D.C.Del.1985) (court stayed Economic Stabilization Act suit against a private defendant to allow Department of Energy to make an initial determination); Illinois Council on Long Term Care v. Miller, 579 F.Supp. 1140 (N.D.Ill.1983) (court invoked doctrine to allow the Secretary of Health and Human Services to determine whether amended medicare reimbursement plan formulated by State was adequate and reasonable). Far East Conference held that the issue presented was within the Federal Maritime Board’s exclusive jurisdiction and not subject to adjudication by a district court. 342 U.S. at 576-577, 72 S.Ct. at 495-496. Bradford School Bus Transit involved a federal agency which had, subsequent to the pending lawsuit, established complaint procedures and remedies for complaints such as the one presented in the action. In United States v. Conservation Chemical Co. of Illinois, 660 F.Supp. at 1245, the court addressed the issue briefly, but noted that the state agency had placed its action “on hold” pending the outcome of the f