Full opinion text
ORDER BREMER, Chief United States Magistrate Judge. This case arises from Defendant Bayer Corporation’s (“Bayer”) refusal to allow Plaintiff Williams Pipeline Company (“Williams”) to enter its property to implement Williams’ planned remediation of the environmental contamination on Bayer’s property. The contamination has come from spills and leaks of petroleum hydrocarbons from above-ground storage tanks, and other releases on Williams’ land. Williams seeks a declaratory judgment allowing it access to Bayer’s land to install monitoring and recovery equipment for remediation of Bayer’s property. Bayer has filed a counterclaim based on state-law claims of strict liability, nuisance, trespass, negligence, and alleging violation of environmental protection statutes: Iowa Code § 455B.186; the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901 et seq. (1995 & Supp.1997); and the Clean Water Act (“CWA”), 33 U.S.C. §§ (1986 & Supp.1997). Bayer seeks the full cost of cleanup of its land, compensation for other losses, abatement, and the reasonable cost of litigation, including attorney and expert-witness fees. Trial was held on October 10 through 14, 1996. Written closing statements were filed by November 5, 1996. After the trial, the Court raised sua sponte the issue of whether it had subject matter jurisdiction over certain claims. Parties submitted written statements and supplemental authorities on February 20, 1997. At a hearing on February 26, 1997, counsel presented arguments on subject matter jurisdiction, and any related matters. On April 10, 1997, Bayer filed a Motion to Re-open Discovery and for Additional Time to File a Motion to Re-open Evidence. I. HISTORICAL AND PROCEDURAL BACKGROUND........................1307 A. Before 1985 ........................................................1308 B. 1985 to 1988 — First NPDES Permit Period.............................1309 C. 1989 to 1993 — Second NPDES Permit Period'...........................1311 D. 1994 to Present — Third NPDES Permit Period................... 1313 E. The Claims......................................................,.....1315 II. FURTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW............1316 A. Clean Water Act Claim.............................. 1316 1. Background..........................................:........1316 2. Citizen-Suit Provision........•.............■.....................1317 a. Exception to Citizen Suit Provision.........................1317 1) Violation...........................................1318 2) Commence an Action ................................1320 3) Comparable to Subsection 309(g)......................1323 4) Diligent Prosecution.................................1324 b. Alleged Violations within Scope............................1325 1) Discharge to Swamp.................................1325 2) Seepage from Swamp.................................1326 c. Conclusion..............................................1327 B. Resource Conservation and Recovery Act Claim.........................1327 1. Spills and Leaks without a Permit .....'.........................1327 2. Placing Groundwater in Surface Impoundment....................1329 C. Iowa Code Chapter 455B Claim.......................................1329 D. State Tort Law Claims...............................................1329 E. Damages...........................................................1331 1. Nature of Damages................................ 1331 2. Measure of Damages...........................................1331 a. Diminution of Market Value...............................1332 b. Special Damages.........................................1332 e. Injunctive Relief.........................................1332 F. Claim for Declaratory Relief......................:...................1333 G. Motion to Re-open Discovery.........................................1334 III. CONCLUSION..................................:...............'...........1335 V. APPENDIX A............................................................1336 The Court makes the following findings of fact and conclusions of law based on the record submitted. I. HISTORICAL AND PROCEDURAL BACKGROUND Williams transports petroleum products through its common-carrier interstate-pipeline system, which includes terminal facilities in several states. The Williams’ facility at issue in this case lies on 100 acres in Pleasant Hill, Iowa, approximately 2,000 feet north and within the flood plain, of the Des Moines River, a navigable water of the United States. (See Appendix A at 1-2.) Williams stores and transports more petroleum compounds than any other facility in Iowa. Bayer’s facility lies adjacent to Williams’ site, west and across S.E. 43rd Street. Bayer’s facility encompasses about 35 acres, of which approximately five acres is contaminated. A generating station owned by Iowa Power and Electric Company extends southwest, and is located south of Bayer’s property toward the Des Moines River. A Before 1985 A significant number of spills, leaks and other releases have occurred at the Williams site over the years. In one instance, tens of thousands of gallons of crude oil spilled from a pipeline break at the Williams site in approximately 1981 or 1982. Jack Clemens, director of the Iowa Department of Natural Resources’ (“DNR”) Environmental Protection Division Field Office 5, testified that his office responded to the spill, and he saw some of the oil settled in a wetland area, referred to as the swamp, on the southeastern end of the site. Williams was trying to clean the oil to use it again. Clemens testified the oil “was so thick they had to use special machines and front end loaders and mix straw with it, and they had to clean the straw out again.” Ex. 82, Clemens Dep. at 10. He said the attempt to clean the oil in the swamp was “one of the biggest [operations] that they ever had in the state of Iowa.” Id. Concerned about pollution as a result of spills and leaks of gasoline and diesel fuels, DNR initiated an environmental investigation on the Williams site. In January 1983, DNR directed Williams to have an environmental consulting firm investigate the site and prepare a report. Leggette, Brashears & Graham, Inc. (“Leggette”), conducted a preliminary investigation of possible hydrocarbon contamination of the shallow groundwater system at Williams’ Des Moines site. Leggette’s report, submitted in May 1983, confirmed the presence of hydrocarbon contamination in the groundwater system. After reviewing Leggette’s report, DNR required Williams to devise a remediation plan for DNR approval, and begin remediation efforts to reduce the gasoline or petroleum compounds in the groundwater that exceeded the state’s clean-up levels. DNR’s rules establish clean-up goals based on Iowa Administrative Code Chapter 135 (underground storage tank levels) and federal Environmental Protection Agency (“EPA”) standards. Steve Grgurich, who has worked in enforcement for approximately 11 years for DNR, testified that DNR’s goal for the Williams site was to have contaminant levels the same as the maximum contaminant levels for drinking water. In compliance with DNR’s directive, Williams contracted with Leggette to drill additional exploratory wells in September 1983 to further define the extent of contamination. In a January 1984 report, Leggette concluded the hydrocarbon-produet contamination on the Williams site consisted mainly of gasoline in a water emulsion, and the direction of the groundwater movement was to the south and southwest, toward the Des Moines River. The consultants determined that a test recovery well efficiently controlled the movement of groundwater within a radius of about 800 feet from the well after 50 hours of pumping. To remediate, Leggette recommended that Williams install a permanent system consisting of a permanent recovery well; water-pumping equipment, including an underground discharge pipe extending from the well head to the bum pond in the swamp area; a hydrocarbon pump to be installed above the water pump; a tank to store recovered hydrocarbons; a water-discharge-and-treatment system; and water-quality monitoring from the discharge pipe and from the swamp. The report described the water-discharge-and-treatment system as follows: 1. The water discharge from the recovery well should be pumped to the swamp in the burn pond area. 2. The swamp area should be used as a retention basin for ground-water discharge. 3. The movement of water from the swamp to the Des Moines River should be controlled by the valve in the existing piping system which connects the swamp with the river. 4. The swamp water should be treated by one or more floating aeration pumps. The function of these pumps is to reduce dissolved hydrocarbon components to levels acceptable to the State of Iowa. 5. When the water quality in the swamp meets surface water discharge standards, the discharge of water fi*om the swamp to [sic] Des Moines River should proceed. Ex. CA at 23. Leggette’s recommendations stated, “Additional water treatment -should be considered in the event that the water quality in the swamp area does not meet the State of Iowa requirements.” Id. at 24. The state approved the proposed system, and Williams applied to DNR for a permit under the National Pollutant Discharge Elimination System (“NPDES”) and the CWA to implement the system. Under Iowa law, all applications for discharge permits were subject to public notice and opportunity for public participation, including public hearings and written views. Iowa Code § 455B. 174(4)(b) (1983); 900 Iowa Admin. Code 64.5 (1983). The record does not indicate that Syntex Agribusiness, the owner of the Bayer facilities from approximately 1975 to 1985, ever submitted its views or participated in a public hearing regarding Williams’ permit request and proposed water-discharge-and-treatment system. B. 1985 to 1988 — First NPDES Permit Period On January 23,1985, DNR issued Williams an NPDES permit and modified the permit in February 1985. The permit authorized Williams “to operate the disposal system and to discharge the pollutants specified in this permit,” and the permit required Williams to comply with the effluent limitations, monitoring requirements and other terms set forth in the permit. Grgurieh explained, “the permit regulated the extraction of underground water and the discharge of it as it travels through the swamp for treatment and out into the waters of the State, ... surface drainage area to the Des Moines River.” (Partial Tr. at 20-21.) The monitoring system established by the permit designates the frequency of sampling of the wastewater and also the concentrations of contaminants discharged from the site to the river. The state described’ the permitted water-discharge- and-treatment-system in the same words as were used in Leggette’s 1984 report. In the permit, the state set effluent limitations and monitoring and reporting requirements. The permit identified two sites from which Williams was to collect samples to monitor wastewater: the recovery well and “the discharge from the swamp area at the dike prior to mixing with Iowa P[o]wer discharge.” Ex. 56, February 25, 1985, Permit at 3, n. 1. The permit stated that monitoring would not be required when no discharge from the swamp area was occurring. Id. Williams’ remediation plan initially consisted of pumping dissolved hydrocarbons out of the groundwater and discharging them into the swamp, which was to be used as a wetland biologic treatment area. Williams’ remediation system was patterned after a then commonly-accepted remediation plan, often called “pump and treat.” In March 1985, Williams installed a 45-feet-deep recovery well, RW-1, located at the southwest comer of the site. Ex. AY at 2. RW-1 contains a submersible groundwater-depression pump, and pumps groundwater from the site and into a pipe feeding into the swamp. RW-l’s pump can operate at varying speeds. Ron Frehner, Williams’ expert witness, testified that at faster speeds, the pump can extract contaminated groundwater from Bayer’s property. At DNR’s direction, Williams added to its remediation plan a submersible skimming pump to remove free-phase product from the well. Williams installed a floating aeration pump in the swamp as required under the permit. Treatment in the swamp involved breaking down the hydrocarbons through biodegradation and through volatilization. Williams monitors the outfall from the swamp to a drainage area adjacent to the Des Moines River. Bayer maintains that seepage from the swamp has in the past and continues to contaminate its land. The evidence does not support Bayer’s allegation. The Court finds that no contamination emanating from the swamp through seepage into groundwater contaminates Bayer’s property, because the swamp is not hydrologically connected to Bayer’s property. The Court also finds that no alleged seepage from the swamp into groundwater that reaches the Des Moines River contaminates Bayer’s property. In addition to its water-treatment-and-discharge system, Williams has instituted another remediation system on its property — a free-phase-produet culvert system. Grgurich testified he has had success with this emergency-response system over the years in extracting free-phase product out of the ground before it dissolves and causes a larger problem than already exists. At Williams’ site, four 36-inch culverts are dug into the ground and used as recovery wells around tank No. 620, an above-ground tank. Ex. AY at 2. Williams rotates two scavenger pumps among the four wells to remove free-phase product as needed, for example, following spills. After drilling through the ground, Williams’ employees use the pumps to extract free-phase product off the groundwater’s surface. Syntex Agribusiness planned to sell its property, including a research farm south of Carlisle, Iowa. On March 18, 1985, an appraisal listed the estimated value of Syntex Agribusiness’ plant facilities as $7,592,000 and the value of its research farm as $810,-000. See Ex. CP at 8-9. The appraiser based the estimate on the highest and best use of the plant for the continued production of biologicals and pharmaceuticals. Ex. CP at 1. In June 1985, Syntex Agribusiness sold its facilities, including the research farm, to Diamond Scientific Company (“Diamond Scientific”), a manufacturer of animal pharmaceuticals and a wholly owned subsidiary of Agrión. Ex. 17 at 30. The sale price of the plant was only $2,603,420, including land and improvements. Ex. 17 at 30. An appraisal report stated the sales price was below the market value because of “several different factors including promises made by the grantee concerning future employment of existing employees.” Id. In 1988, DNR inspected Williams’ groundwater remediation system and prepared a Report of Investigation. See Ex. AY at 3. The report noted that from the start of the remediation through June 1988, RW-1 had pumped 273 million gallons and recovered 385 gallons of free-phase product. In addition, 17,133 gallons of free-phase product had been recovered at tank No. 620. Williams filed for renewal of its permit in 1988. Iowa law provides the same notice and public-participation procedures in connection with requests for reissuance of an NPDES permit as it does for the initial issuance of a permit. 567 Iowa Admin. Code 64.8(1). The record does not indicate that Agrión ever submitted its views or participated in a public hearing regarding Williams’ request for reissuance of its NPDES permit. The state asked Williams to prepare a report to summarize the status of the recovery operation at the Williams site. Williams contracted with Leggette to produce the report. In June 1988, a Leggette hydrogeologist, John Dustman, and Grgurich met to discuss Williams’ recovery operation. Id at 2. Leggette submitted the status report on August 3,1988. Ex. CD. C. 1989 to 1998 — Second NPDES Permit Period In February 1989, Mobay Corporation (“Mobay”), a wholly owned subsidiary of Bayer Corporation, bought Diamond Scientific from Agrión. The sales price for the ongoing operation, including the farm, was $3,674,200. Ex. 17 at 30. The state modified and reissued Williams’ NPDES permit on May 10, 1989. In the permit, the state modified the effluent limitations for benzene, toluene and xylene. The state added a third required sampling location: from the tank used to store hydrostatic test water prior to discharge to the swamp. Ex. 57 at 3. The state modified the description of the permitted water-diseharge-andtreatment system as follows: 1. The water discharge from the recovery well should be pumped to the swamp in the bum pond area. 2. The movement of water from the swamp to the Des Moines River shall be controlled by the valve in the existing piping system which connects the swamp with the river. 3. When the water quality in the swamp meets permit limits, the discharge of water from the swamp to the Des Moines River may proceed. 4. Sample swamp at discharge pipe prior to discharge. Ex. 57 at 4. Similar to the 1985 permit, the 1989 permit lists the “receiving watercourse designation” as the “unnamed surface drainage area tributary to the Des Moines River.” The permit lists “the designated stream” as the Des Moines River. At DNR’s direction, Williams commissioned Leggette to prepare a November 1989 status report concerning Williams’ recovery and monitoring systems. The report discussed modifications Williams had made to the recovery system to improve efficiency, including the addition of the submersible pump in RW-1 to remove floating free-phase contamination in the well. Ex. Cl at 6. Use of the pump, the report stated, would probably result in less hydrocarbon reaching the swamp. Id. at 9. In 1990, Mobay gave Williams permission to install permanent groundwater monitoring wells on its property. Ex. CG. Williams installed the monitoring wells, MW-28, MW-29 and MW-30, in 1990. Williams gathered data from the wells to monitor the cleanup and submitted the information to DNR. Ex. 22 at 5. Mobay, too, installed monitoring wells on its property. Williams submitted to Grgurich the 1990 status report of the recovery operation prepared by Leggette. Ex. CD at 35. . On November 9, 1990, Grgurich completed a Report of Investigation concerning Williams. Ex. 18 at 13-14. Grgurich reported the results of the state’s investigation of concerns about alleged elevated hydrocarbons in the RW-1 discharge to the swamp in 1989. He stated that samples were collected from the swamp in late 1989 and early 1990, and were analyzed for amounts of hydrocarbons, benzene, toluene and xylene. The amounts were extremely low, and “No obvious deterioration of the swamp has been observed,” Grgurich concluded. Id. at 14. “The Department [DNR] recognizes the cleanup at the Williams Pipeline facility is on going,” Grgurich’s report stated. Id. He noted that in the past Williams had submitted annual status reports at DNR’s request. He directed Williams to provide another annual report by 1991 and each year thereafter, “until groundwater cleanup is complete.” Id. Grgurich stated the annual reports should include the following information: amount of contaminated water treated, amount of free-phase product recovered, summary of analysis of levels of hydrocarbons, benzene, toluene and xylene in samples taken from monitoring wells, and assurance that heavy petroleum hydrocarbons were not accumulating in the swamp’s sediment. These reports are available for public viewing at DNR. After reading the February 1991 report that showed hydrocarbons on the Mobay property, Grgurich instructed Williams to increase the pumping in the recovery zones in an attempt to reduce contamination levels around the monitoring wells on Moba/s property. A 1991 appraisal estimated the market value of Mobay’s real estate alone was $3,375,-000. Ex. 17 at 4. In making the estimate, the appraiser assumed the property could be sold to someone who would continue using the special licenses to operate the laboratory and production facilities. Id. If the property was sold to someone who would be converting the buildings to another use, the appraiser estimated the market value would drop to $1.2 million to $2 million. Id. The appraiser also based his opinion on the owner’s statement that no contamination spreading from the Williams site had been detected on the Mo-bay property. Id. at 49; On January 1, 1992, Mobay merged with Bayer and several other corporations to form Miles, Inc. (“Miles”), based in Pittsburgh, Pennsylvania. Diamond Scientific became a wholly owned subsidiary of Miles. The operation in Des Moines was administered by Miles Agriculture Division, Kansas City. Ex. 19. Miles planned to sell its Des Moines property and product licenses in Des Moines, and the company prepared a memorandum providing information for prospective buyers. Ex. 21. Miles announced its decision to its Des Moines employees on June 30, 1992. Ex. 21 at 28. The 1991 status report prepared by Leggette and submitted to Williams on February 3, 1992, stated that the results from samples collected from RW-1, the swamp, and the swamp discharge point “indicate that the method of water treatment is effective at reducing the dissolved hydrocarbon concentrations.” Ex. 22 at 4. The report also related information from the monitoring wells on the Miles site. Data from monitoring well MW-28 appeared clean. Monitoring wells MW-29 and MW-30 had slightly higher hydrocarbon concentrations. The report stated that groundwater in the vicinity of MW-29 and MW-30 was within the capture zone of RW-1, the system on Williams’ property. The report included an analysis of data from samples of swamp sediment. The data indicated the presence of heavy-end hydrocarbons in the sediments. Leggette concluded the contamination in the sediments most likely resulted from residual contamination that occurred during a 1982 release of creosote into the swamp. Id. at 5-6. On August 7, 1992, William Moran, an environmental engineer for Miles, wrote to John Haldiman, a Williams’ environmental engineer, stating he had recently become aware of Williams’ three groundwater monitoring wells on the Miles property and asking Haldiman to provide sampling and analytical data from the wells, including a sampling schedule. Ex. 19. Haldiman provided the requested information. Ex. 20. As required by DNR, Williams submitted annual site status reports for 1992 and 1993. The 1992 report, prepared by Leggette, stated no compounds were detected in MW-28 during the year, and that MW-29 and MW-30 had low to moderate concentrations of hydrocarbon compounds. On December 21, 1992, Jim Strieker, on behalf of DNR, conducted a site inspection at the Williams site. Ex. 22 at 2. Strieker’s inspection report showed that since December 1990, Williams had not submitted to DNR the required monthly monitoring reports or data from the recovery well discharge. In a letter dated February 16,1993, Clemens notified Williams that it was in violation of its NPDES permit. Ex. AY at 1. Clemens told Williams that it must immediately initiate the required monitoring and reporting. Strieker’s report also noted that Williams had sampled only six of the 30 monitoring wells in 1992, and Strieker recommended that all the monitoring wells should be sampled in 1993 to determine the continued and current extent of groundwater contamination. On February 23, 1993, Williams responded that it had monitored RW-l’s discharge from December 1990 to 1992 as required, but had never compiled and forwarded the information to DNR. Ex. AZ at 1. Williams sent the data and noted that no discharge from the swamp into the Des Moines River had occurred during the period. Williams also stated that it would revise its sampling schedule and collect samples from more monitoring wells to define the current extent of the groundwater contamination. Id. Williams’ 1993 annual report, prepared by the Terese Miller Environmental Group, stated that some, but not all, of the targeted compounds were detected in swamp samples collected in 1993. Ex. 27 at 5. The highest concentration of benzene and of fluid levels was found in MW-30, which “is within the anticipated capture zone of RW-1.” Id. In December 1993, Diamond Animal purchased Miles’ Diamond Scientific stock for $1.25 million, after declining to buy the land, stock, and plant for the $3.25 million asking price. Diamond Animal entered into a long-term lease of Miles’ Diamond Scientific facility for $150,000 per year. D. 199U to Present — Third NPDES Permit Period By February 1994, Williams had discussed with DNR its plan to extend its remediation system by adding an air-sparging and soil-venting system (“AS/SVE”) on its property and on Miles’ property, in an area directly west of the railcar loading rack on Williams’ property. This is the area of highest contamination. Ex. 27 at 1. In a February 22, 1994, letter to Clemens, Williams stated that the date by which Williams could accomplish the system expansion onto Miles’ property would depend on the availability of access to the property. Williams’ experts estimated that within three years of implementing the complete AS/SVE system, contamination levels would be significantly reduced. AS/SVE is a recovery and treatment system that reduces dissolved hydrocarbon concentrations by simultaneously treating the soil and the groundwater, thus speeding up the remediation process. During the AS/ SVE process, air-sparging wells inject oxygen into the saturated zone of the ground (the part of the subsurface that is. soaked with groundwater) to remove volatile compounds. When oxygen is injected below the contaminated area, bubbles form, rise, and carry dissolved contaminants into the unsaturated zone (that part of the subsurface located above groundwater). As oxygen concentrations in the ground rise, the biodegration of the hydrocarbons increases. A vacuum sucks air through underground walls to vaporize the volatile contaminated compounds found in the unsaturated zone. Tony Ying, Williams’ expert witness, testified that an advantage of the AS/SVE system is that it adapts to pull contaminants from the soil at high water levels. Grgurich testified that DNR considers AS/SVE to be a proven technology, and that AS/SVE has been recognized as a state-of-the-art, leading-edge remediation system for approximately two to three years. He testified he has seen AS/SVE used successfully at other sites, including one that was cleaned up in a couple years to the same level Williams is working towards, enabling DNR to stop monitoring the site. At that site, the system apparently extracted contaminates from under a building. On June 16, 1994, the state renewed Williams’ NPDES permit requiring Williams to comply with the conditions stated in the permit. The record does not indicate that Miles ever submitted its views or participated in a public hearing regarding Williams’ request for reissuanee of its permit. The new permit addressed Williams’ proposed use of AS/SVE by requiring the company to monitor “petroleum contact water after treating by air stripping prior to discharge,” in addition to mandating monitoring from the recovery well, at the discharge from the swamp area at the dike, and from the tank used to store hydrostatic test water prior to discharge to the swamp. Ex. 58 at 4. The state’s description of the permitted water-discharge-and-treatment system was essentially the same as in the previous permit. In March 1994, Clark Ridpath, Miles’ vice president, met with Steve Cropper, president and CEO of Williams. Ridpath told Cropper that Miles could not sell the property because of environmental contamination. Cropper proposed that Williams would investigate the nature and extent of contamination on the Miles property and remediate, using the AS/SVE process and the swamp. On July 5, 1994, Williams submitted to Miles a work plan for the proposed investigation and remediation. Williams asked for access to Miles’ site to properly analyze the nature and extent of contamination and begin remediation. After a Miles consultant expressed the opinion that AS/SVE would not successfully remediate Miles’ property, Miles rejected the work plan and denied Williams access to its property to further investigate or install AS/ SVE equipment. Ridpath asked Williams to buy the Miles site for $4.5 million rather than undertake remediation. On August 9 and 10, 1994, Williams conducted field tests of the proposed AS/SVE system. Ex. 30 at 1. Williams sent its field test results and proposed work plan for the new AS/SVE system to Grgurich on September 21, 1994. In the accompanying letter, Williams noted that because of problems with access to Miles’ property, all work was being conducted solely on Williams’ property. Williams planned to install 19 AS/SVE wells in its railcar loading rack area. Three skid-mounted AS/SVE units would be installed and connected to the wells. Williams discussed the proposed AS/SVE system with DNR officials and obtained their approval for use of the system.. Williams installed the new AS/SVE equipment and began operating the system in 1995. In 1995, Miles was renamed Bayer Corporation. The AS/SVE system on Williams’ site is designed to abate and remediate contamination on Bayer’s property, as well as reduce the contamination on Williams’ property. Beginning in 1995, Williams submitted quarterly status reports to DNR. The 1995 third-quarter report stated that benzene concentrations in off-site monitoring wells, including MW-29 on the Bayer site, were trending down. Ex. CV at 4. Figure 10 attached to the third-quarter report shows a slow downward trend in the amount of monitored contaminants in the wells over the years 1991 to 1995. Id. at 28. From 1993 to 1996, the contamination levels on Bayer’s property decreased in the following two areas: (1) where the concentration of benzene ranges from 100 to 1,000 parts per billion, and (2) where the concentration is greater than 1,000 parts per billion. Frehner testified, and the court finds, this decrease was due to the operation of the recovery well and AS/SVE system on Williams’ property. Clemens testified that DNR is concerned with reducing contamination on Bayer’s property as well as on Williams’ property. Grgurich’s department in DNR has not set a time limit for completion of remediation at the Williams or Bayer site. He testified he was surprised Bayer had not contacted his department regarding remediation efforts. Grgurich testified that, over the years, the level of gasoline or petroleum compounds in the groundwater on the Williams site has been considerably reduced in some wells. In some wells down-gradient, however, the contamination level has stayed the same or “gotten a bit more concentrated” despite recovery efforts. (Partial Tr. at 13.) The site is difficult to remediate, Grgurich testified, because it is so large, has high groundwater, and contains a large number of contaminants, which have accumulated over time. Nevertheless, Grgurich believes, and the court finds, that Williams has made a genuine effort to clean up the site under DNR’s direction, has spent a “considerable amount of money” to remediate the site, and has exceeded DNR’s requests in terms of the treatment equipment the company has installed. (Partial Tr. at 10.) To Grgurich’s knowledge, Williams has has done a “pretty fair” job of recovering spilled products, which reduces the amount of product that enters the groundwater and migrates off site. (Partial Tr. at 9-11). When a company is cooperating to meet DNR’s clean-up goals, the department generally does not initiate formal enforcement actions against the company. The department sets up a system, including site investigations and reports, to monitor the company’s remediation efforts. If, in the course of monitoring a company’s clean-up effort, DNR discovers that a company is not adequately cleaning up a site, the department typically asks the company to submit a work plan for improving site conditions. To enforce compliance if a remediation project is not proceeding at a reasonable pace, DNR has the authority to issue administrative enforcement orders and assess civil penalties. DNR issued no such order to Williams, although DNR considered the action. When contamination on a site reaches a level acceptable to the state, DNR permits the company to stop participating in the monitoring system it established for the site. E. The Claims On February 9, 1995, Miles sent notice to Williams, the EPA administrator, and DNR, as required by 33 U.S.C. § 1365(b)(1)(A), indicating its intent to sue Williams under the CWA, RCRA and Iowa’s environmental citizens suit statute. Neither the EPA nor the state of Iowa initiated a separate environmental action. In response to the notice, Williams filed the instant action seeking access to Bayer’s property to implement its planned AS/SVE remediation effort. Williams alleged it was entitled to access because such a right was implied by Bayer’s CWA claim. Bayer filed counterclaims, asserting that Williams had violated the CWA, RCRA, and various state laws. Williams argued Bayer’s counterclaims were barred by the applicable statutes of limitations, the doctrines of laches and unclean hands, failure to comply with statutory notice provisions, and lack of standing. The parties disagree as to the number of air-sparging wells required to treat the contaminated ground and whether such a regimen alone is sufficient to permanently remediate Bayer’s property. Bayer’s expert testified that effective remediation requires at least 120 air-sparging wells at a cost of $1.3 million, and treatment of the contamination under certain buddings at a cost of approximately $100,000. Bayer further alleges permanent remediation can be achieved only by building a slurry wall to physically isolate Bayer’s site from the Williams property. Evidence showed such a wall would cost from $1.7 to $3 million dollars. Bayer also suggested that the soil could be removed, washed, and replaced, at a cost of approximately $8 million. This, however, allegedly would not take care of contamination under the buildings. Williams proposes to use 19 to 21 airsparging wells on the Bayer site, at a cost of approximately $500,000. Ying testified that using AS/SVE on Bayer’s property could significantly reduce contamination to state-approved levels within three years. Because Williams has not had access to the Bayer site, this plan may have to be modified, and will require ongoing monitoring of its effectiveness. Bayer seeks to be made whole through compensation for the lost value of its land because of contamination. Even aggressive AS/SVE treatment, Bayer asserts, will not address the long-chain nonvolatile aromatic hydrocarbons and MTBE contamination present on Bayer’s property. Bayer claims it is entitled to recover the resultant loss in property value of approximately $2 million (the difference between its current leased value as contaminated property, approximately $1.7 million, and the actual market value, approximately $3 to $3.75 million). Bayer further seeks damages for restoring its land to a clean condition, which the company alleges will cost a minimum of approximately $4.4 million. Because Williams bases its claim for access to Bayer’s property solely on an implied right stemming from Bayer’s CWA claims, the Court will analyze Bayer’s counterclaims before addressing Williams’ claim. II. FURTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW A Clean Water Act Claim 1. Background Bayer claims that Williams , is in violation of the CWA in that it discharges a pollutant into a water of the United States without a permit regulating its discharge in violation of 33 U.S.C. § 1311(a) (1986). Bayer bases this claim on two allegations: (1) Williams is discharging pollutants into the swamp, a wetland, without a permit, in that Williams’ NPDES permit does not address such a discharge, but covers only the discharge from the swamp to outfall No. 1; and (2) Williams is discharging pollutants into the Des Moines River without a permit, in that Williams’ NPDES permit does not address the seepage of pollutants from the swamp to the groundwater that reaches the Des Moines River at a point other than that authorized in the permit. The CWA was enacted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Gwaltney v. Chesapeake Bay Found., 484 U.S. 49, 52, 108 S.Ct. 376, 379, 98 L.Ed.2d 306 (1987); United States Envtl. Protection Agency v. City of Green Forest, Ark., 921 F.2d 1394, 1398 (8th Cir.1990), cert. denied, 502 U.S. 956, 112 S.Ct. 414, 116 L.Ed.2d 435 (1991); 33 U.S.C. § 1251(a) (1986). To help accomplish that goal, section 301 of the Act prohibits the discharge by any person of any pollutant into navigable waters, except as authorized in specific sections of the Act. Gwaltney, 484 U.S. at 52, 108 S.Ct. at 378-79; Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1525 (11th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 482, 136 L.Ed.2d 377 (1996); 33 U.S.C. § 1311(a). One such section is § 402, which establishes the National Pollution Discharge Elimination System (NPDES). Gwaltney, 484 U.S. at 52, 108 S.Ct. at 378-79, 33 U.S.C. § 1342. Under that system, the EPA’s administrator issues NPDES permits, which authorize effluent discharges in compliance with conditions stated in the permit. Gwaltney, 484 U.S. at 52, 108 S.Ct. at 378-79; Green Forest, 921 F.2d at 1398, 33 U.S.C. § 1342(a). Specifically, the permits control the quantity, rate and concentration of effluents that may be discharged. City of Ames, Iowa v. Reilly, 986 F.2d 253, 254 (8th Cir.1993). The CWA authorizes a state to develop and administer its own permit program, as long as the program meets federal requirements and gains approval from EPA’s administrator. Gwaltney, 484 U.S. at 52, 108 S.Ct. at 378-79; Green Forest, 921 F.2d at 1398, 33 U.S.C. § 1342(b). If the EPA determines a state has adequate authority to implement and enforce a permit program, it will suspend issuance of federal permits. Gwaltney, 484 U.S. at 52, 108 S.Ct. at 378-79; Green Forest, 921 F.2d at 1398, 33 U.S.C. § 1342(c). The EPA has authorized the State of Iowa to establish and implement its own NPDES permit program. City of Ames, 986 F.2d at 255. The Iowa agency responsible for administering that program is the DNR’s Environmental Protection Division. When a person violates the CWA, the Act authorizes several enforcement options, including actions by federal and state government. Green Forest, 921 F.2d at 1399, 33 U.S.C. §§ 1319, 1342(b)(7). Additionally, the CWA’s citizen-suit provision empowers private citizens to bring civil actions against violators. Gwaltney, 484 U.S. at 52, 108 S.Ct. at 378-79; Green Forest, 921 F.2d at 1399, 33 U.S.C. §§ 1365(a)(1), 1365(f). 2. Citizen Suit Provision Bayer invokes federal court jurisdiction under CWA’s citizen suit provision, 33 U.S.C. § 1365(a) (1986). Under the citizen-suit provision, citizens may bring suit against a person alleged to be in violation of “an effluent standard or limitation under this chapter” or “an order issued by the Administrator or a State with respect to such a standard or limitation.” 33 U.S.C. § 1365(a)(1). The term “an effluent standard or limitation under this chapter” includes an unlawful act under section 1311, an effluent limitation or other limitation under sections 1311 or 1312, and the conditions of either a federal or state NPDES permit or permit condition. 33 U.S.C. § 1365® (1986 & Supp. 1996). Section 1311(a) makes it unlawful to discharge any pollutant except in compliance with the NPDES permit required in section 1342. Washington Wilderness Coalition v. Hecla Mining Co., 870 F.Supp. 983, 985 (E.D.Wash.1994). Thus, a citizen suit can be based on allegations that the defendant is discharging without an NPDES permit. Id. CWA’s private-enforcement provision has two purposes: (1) to foster agency enforcement, and (2) to act as an alternative enforcement mechanism absent agency enforcement. Connecticut Coastal Fishermen’s Assoc, v. Remington Arms Co., 777 F.Supp. 173, 178 (D.Conn.1991) (citations omitted), aff'd in part, rev’d in part by 989 F.2d 1305 (1993); accord Arkansas Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 380 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1094, 130 L.Ed.2d 1062 (1995). The citizen-suit provision puts the citizen in the role of a private attorney general. Green Forest, 921 F.2d at 1403. Where the government fails or declines to act, the CWA allows citizens acting as private attorneys general to bring suit. Id. at 1405. “That does not mean, however, that [a citizen-plaintiff] is ipso facto entitled to its own, ‘personalized’ remedy in this or any other CWA case.” Id. Citizen suits should not “considerably curtail the governing agency’s discretion to act in the public interest.” Arkansas Wildlife, 29 F.3d at 380. a. Exception to Citizenr-Suit Provision An exception to federal district court’s jurisdiction over citizen suits is provided in subsection 309(g), which states as follows: ■(6) Effect of order (A) Limitation on actions under other sections Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Administrator’s or Secretary’s authority to enforce any provision of this chapter; except that any violation.... (ii) -with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection ... shall not be the subject of a civil penalty-action under subsection (d) of this section or section 132 1(b) of this title or section 1365 of this title. 33 U.S.C. 1319(g)(6); Arkansas Wildlife, 29 F.3d at 378-79 n. 3. The CWA was intended to be enforced primarily by the government, and citizen suits are intended merely to supplement the government’s enforcement power, as explained by the Court in Gwaltney, 484 U.S. at 50, 108 S.Ct. at 378: The bar on citizen suits when governmental enforcement action is underway suggests that the citizen suit is meant to supplement rather than supplant governmental action. The legislative history of the Act reinforces this view of the role of the citizen suit. The Senate Report noted that “[t]he Committee intends the great volume of enforcement actions to be brought by the State,” and that citizen suits are proper only “if the Federal, State, and local agencies fail to exercise their enforcement responsibility.” Id. (quoting S.Rep. No. 92-414, p. 64 (1971), U.S.Code Cong. & Admin. News 1972, pp. 3668, 3730, reprinted in 2 A Legislative History of the Water Pollution Control Act Amendments of 1972, p. 1482 (1973)) (quoted in Green Forest, 921 F.2d at 1403). The government, representing society as a whole, is usually in the best position to vindicate societal rights and interests. Green Forest, 921 F.2d at 1405 (quoting Hudson River Fishermen’s Ass’n v. County of Westchester, 686 F.Supp. 1044 (S.D.N.Y.1988)). Congress has taken steps to expressly “recognize, preserve and protect the primary responsibility and rights of the States to prevent, reduce and eliminate pollution.” 33 U.S.C. § 125 1(b); North & South Rivers Watershed Ass’n v. Scituate, 949 F.2d 552, 555 (1st Cir.1991). Before reaching the merits of Williams’ and Bayer’s statutory claims, the Court must apply the criteria set forth in subsection 309(g) to determine whether Bayer’s CWA action is jurisdietionally barred. Specifically, the Court must determine, (1) whether DNR has commenced and is diligently prosecuting an enforcement action against Williams under a state law comparable to subsection 309(g); and (2) if so, whether the violations Bayer alleges are within the scope of that action. The burden of proving subject matter jurisdiction rests on the party asserting the claim. See, e.g., Hoekel v. Plumbing Planning Corp., 20 F.3d 839, 840 (8th Cir.), cert. denied, 513 U.S. 974, 115 S.Ct. 448, 130 L.Ed.2d 358 (1994). Bayer maintains this Court has jurisdiction, because DNR had not commenced and was not diligently prosecuting an enforcement action against Williams for a violation of the CWA. Bayer contends the state’s issuance of an NPDES permit to Williams does not amount to an enforcement action for purposes of subsection 309, and the mere fact that Williams has a permit does not constitute a jurisdictional bar. Williams asserts this Court does not have jurisdiction, because DNR has commenced the equivalent of ah enforcement action against Williams for a violation of the CWA and was diligently prosecuting the action. 1) Violation The CWA prohibits the unpermitted discharge by any person of any pollutant into navigable waters in the absence of an NPDES permit. Gwaltney, 484 U.S. at 52, 108 S.Ct. at 378-79; Hughey, 78 F.3d at 1525, 33 U.S.C. § 1311(a). To establish a CWA violation, plaintiffs must show the discharge of pollutants into navigable waters from a “point source.” 33 U.S.C. §§ 1311(a), 1362(12); Concerned Area Residents for Env’t v. Southview Farm, 834 F.Supp. 1410, 1417 (W.D.N.Y.1993). Whether a discharge occurred from a point source is a question of fact. Concerned Area Residents, 834 F.Supp. at 1417 (citations omitted). The CWA defines “point source” as any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. 33 U.S.C. § 1362(14); Missouri v. Department of the Army, 672 F.2d 1297, 1303-04 (8th Cir.1982). “The definition of a point source is to be broadly interpreted.” Dague v. City of Burlington, 935 F.2d 1343, 1354 (2d Cir.1991) (quoting United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.1979)), rev’d on other grounds by 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). An entire facility or industrial plant may be a point source. See Concerned Area Residents, 834 F.Supp. at 1418-19 (denying defendant farmer’s motion for summary judgment in CWA claim; holding material issues of fact existed concerning whether farm was a point source, where pollutants were conveyed by farmer’s manure-spreading activity and plowed furrows into navigable waters, and where discharges occurred from distinct sources, including a broken pipe and a truck, when discharges could have been more than isolated and transient incidents); Mahelona v. Hawaiian Elec. Co., 418 F.Supp. 1328, 1335 (D.Haw.1976) (stating electric generating plant was source of pollution under CWA, but discharge facility was proposed method of control and therefore could not also be source). “Discharges” include spilling and leaking. 33 U.S.C. § 1321(2); see. e.g.. United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir.1979) (holding spill from oil pipeline into waters of unnamed tributary violated CWA). “Discharge,” however, does not include the following: (B) discharges resulting from circumstances identified and reviewed and made a part of the public record with respect to a permit issued or modified under section 1342 of this title, and subject to a condition in such permit, and (C) continuous or anticipated intermittent discharges irom a point source, identified in a permit or permit application under section 1342 ... which are caused by events occurring within the scope of relevant operating or treatment systems. 33 U.S.C. § 1321(2)(B) & (C). Wetlands are navigable waters for purposes of the CWA. See 33 U.S.C. 1362(7) (defining “navigable waters” to mean “waters of the United States”); 40 CFR 122.2 (defining “waters of the United States” to include wetlands). Whether the legal concept of navigable waters includes groundwaters connected to surface waters is an unresolved question. Inland Steel Co. v. Envtl. Protection Agency, 901 F.2d 1419, 1422 (7th Cir.1990) (stating in dicta that a well that ended in groundwaters connected to navigable waters might be within scope of CWA) (citations omitted); Washington Wilderness Coalition v. Hecla Mining Co., 870 F.Supp. 983, 990 (.D.Wash.1994) (citations omitted) (noting courts are split on the issue of whether tributary groundwater that is naturally connected to surface water is subject to CWA; reviewing authorities and holding any pollutant that enters surface waters through groundwater is subject to regulation by NPDES permit). Some courts have held that CWA’s regulations do not assert authority over groundwaters based on the mere possibility the groundwaters might be hydrologically connected to surface waters. Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir.), cert. denied, 513 U.S. 930, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994); Kelley v. United States, 618 F.Supp. 1103, 1106-07 (W.D.Mich.1985). The majority of courts have held that groundwaters that are hydro-logically connected to surface waters are regulated waters of the United States, and that unpermitted discharges into such groundwaters are prohibited under section 1311. Friends of Santa Fe County v. LAC Minerals, Inc., 892 F.Supp. 1333, 1358 (D.N.M. 1995) (citations omitted). The Eighth Circuit has not addressed the issue. This Court finds persuasive the reasoning in Washington Wilderness Coalition, 870 F.Supp. 983, and the cases cited by that court. Because the CWA’s goal is to protect the quality of surface waters, the NPDES permit system regulates any pollutants that enter such waters either directly or through groundwater. See id. at 990. Here, Williams operates a facility on which the operation of above-ground tanks has resulted in spills and leaks, which have been more than isolated and transient incidents. The evidence shows that before 1985, a series of spills, leaks and other releases occurred at the Williams site. The record also shows that at least by 1981 to 1982, spilled oil on the site was released into the swamp. Bayer asserts, and Williams does not deny, that the swamp is a wetland. Based on the evidence, including DNR officials’ use of the term-wetland in describing the swamp area, the Court finds the swamp is a wetland area. The court holds that the Williams facility is a point source from which discharges of pollution occur. The discharges from the Williams site resulted in pollution entering the groundwater. Evidence submitted in reports on the record show the groundwater at the site moves south and southwest toward both the wetland swamp area and the Des Moines River. Based on Leggette’s reports concerning direction of groundwater movement at the Williams site, the Court finds the groundwater under the Williams site is hydrologically connected to surface waters, including the Des Moines River and the wetland swamp. The facts of this ease present more than the mere possibility that pollutants discharged into groundwater will enter “waters of the United States.” The Court holds therefore that a violation existed; the unpermitted discharges of pollutants through spills, leaks, and other releases into the groundwater and into the wetland area at the Williams site before Williams obtained its NPDES permit violated the CWA, and an ongoing violation would exist today if Williams were not operating a remediation system under the direction of DNR. 2) Commence an Action As noted above, citizens suits are barred only where the state has brought an action under a state law comparable to subsection 309(g). See 33 U.S.C. 1319(g)(6)( ii); Arkansas Wildlife, 29 F.3d at 378-79 n. 3; Scituate, 949 F.2d at 555. Bayer contends that DNR has not commenced an enforcement action against Williams for violation of the CWA. The only action DNR has taken under the CWA, Bayer argues, is issuance of the NPDES permit, and such action constitutes regulation, not enforcement. Here, the state’s enforcement effort included directing Williams to investigate and remediate, and reaching a settlement that included Williams’ designing and implementing of a remediation plan, obtaining an NPDES permit, complying with permit conditions, and submitting annual and then quarterly status reports, and included DNR’s site inspections. The parties have not cited, and the Court has not found, any case analyzing whether such corrective actions such as DNR took in this case include commencing an “action” for purposes of subsection 309(g). The CWA does not define “commencement.” Sierra Club v. Colorado Refining Co., 852 F.Supp. 1476, 1484 (D.Colo.1994). To determine the meaning of “commencement,” the Sierra Club court turned for guidance to the relevant state act’s specific procedures for the institution of enforcement proceedings. Id. at 1484 (adopting approach of Public Interest Research Group of New Jersey, Inc. v. Elf Atochem North America, Inc., 817 F.Supp. 1164, 1172 (D.N.J.1993)). Iowa’s procedures for the institution of enforcement proceedings provide that DNR’s director shall, “Take any action or actions allowed by law which, in the director’s judgment are necessary to enforce or secure compliance with the provisions of this part of this division or of any rule or standard established or permit issued pursuant thereto.” Iowa Code § 455B. 174(3) (1995). When substantial evidence shows a person has violated a provision, rule, standard or permit, the director, “may issue an order directing the person to desist ... or to take such corrective action as may be necessary to ensure that the violation will cease.” Iowa Code § 455B. 175(1) (1995) (emphasis added). Iowa law gives DNR’s director discretion to choose the commencement method and corrective action deemed most effective under the circumstances to ensure a violation ceases. The CWA also does not define “action.” Under subsection 309(g), “action” does not mean a lawsuit. Sierra Club, 852 F.Supp. at 1483. While 33 U.S.C. § 1365(b)(1)(B) bars a citizen suit if the state “has commenced or is diligently prosecuting a civil or criminal action in a court,” subsection 309(g) refers only to prosecution of “an action under a State law comparable to this subsection;” the phrase “in a court” is not found in subsection 309(g). Id. at 1484; Connecticut Coastal, 111 F.Supp. at 181; accord Scituate, 949 F.2d at 555-56 (citizen suit is barred even when a state is not prosecuting a penalty action, but only a compliance action). Nor is any phrase such as “an administrative proceeding” or “formal administrative action” found in subsection 309(g). When determining whether states have commenced an action within the meaning of subsection 309(g), the Eighth Circuit has held that states “are afforded some latitude in selecting the specific mechanisms of their enforcement program.” Arkansas Wildlife, 29 F.3d at 380 (stating as long as state’s laws authorized penalty assessments, citizens suit was precluded even if state chose not to use penalty assessments in specific instance). The Arkansas Wildlife court held that Arkansas’ issuing of an administrative order to a manufacturer with the manufacturer’s consent, rather than issuing a Notice of Violation, constituted commencing an action within the meaning of subsection 309(g). Id. The court noted that after the administrative consent order was issued, third parties could intervene, and certain notice and hearing procedures became available to third parties. Id. Moreover, once the manufacturer consented to the order, it became subject to further penalties for failure to comply with the order. Id. Iowa courts recognize that DNR can reach a negotiated settlement agreement with a violator without entering a formal consent order. See Blue Chip Enter, v. Dep’t of Natural Resources, 528 N.W.2d 619, 624 (Iowa 1995) (stating in dicta that administrative law judge could have found a settlement agreement existed based on memorandum referencing negotiated remedial action, the remedial action taken by company, and the fact agency took no further action with respect to company for six years). In general, Iowa courts recognize a person’s right to waive his or her due process right to a hearing. See, e.g., In re Marriage of Seyler, 559 N.W.2d 7, 10 n. 1 (Iowa 1997); Messina v. Iowa Dep’t of Job Service, 341 N.W.2d 52, 60 (Iowa 1983). Settling with a violator is within a government agency’s discretion, even though citizens might have preferred more stringent terms than those worked out by the government. Green Forest, 921 F.2d at 1403 (approving dismissal of a citizen suit filed before a regulatory agency reached an out-of-court settlement with the violator; recognizing preeminent role government plays in CWA enforcement scheme); accord, Rueth v. United States Envtl. Protection Agency, 13 F.3d 227, 230 (7th Cir.1993) (holding EPA had discretion to issue final order or to seek administrative penalties; court lacked jurisdiction under CWA to review preenforcement actions). The CWA “was not intended to enable citizens to commandeer the federal enforcement machinery.” Id. (quoting Dubois v. Thomas, 820 F.2d 943 (8th Cir.1987)). In the following example, the Supreme Court underscored the importance of not curtailing the government’s discretion: Suppose that the Administrator identified a violator of the Act and issued a compliance order under § 309(a). Suppose further that the Administrator agreed not to assess or otherwise seek civil penalties on the condition that the violator take some extreme corrective action, such as to install particularly effective but expensive machinery, that it otherwise would not be obliged to take. If citizens could file suit .., in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator’s discretion to enforce the Act in the public interest would be curtailed considerably. The same might be said of the discretion of state enforcement authorities. Gwaltney, 484 U.S. at 60-61, 108 S.Ct. at 383. “An Administrator unable to make concessions is unable to obtain them,” and a private plaintiff then becomes “captain of the litigation.” Supporters to Oppose Pollution v. Heritage Group, 973 F.2d 1320, 1324 (7th Cir.1992). In this case, the interests of third parties are protected by notice and hearing procedures, as discussed below. Third parties have access to DNR’s public records concerning the Williams site. See 567 Iowa Admin. Code 64.5(6). When DNR directed Williams to engage environmental consultants to investigate the existence and extent of pollution on the site, Williams complied. After investigations showed the magnitude of pollution, including contamination on the Bayer site, DNR directed Williams to take remedial steps under DNR’s supervision, Williams again complied. DNR had the authority to assess financial penalties for Williams’ CWA violations but chose" instead to require compliance and negotiate a settlement without assessing penalties. Because Williams complied with DNR’s directives, DNR did not have to file an administrative order ór a Notice of Violation to begin administrative proceedings. Compliance was at hand. Williams had the right to comply or, if it chose not to comply, assert its right to a hearing after DNR issued a formal order or assessed penalties. DNR approved the remediation plan it directed Williams to submit, and the state set permit conditions, including monitoring of wells on Bayer’s property, and issued Williams an NPDES permit to implement the plan. Clemens testified that Williams’ actions in obtaining the NPDES permit were part of Williams’ remediation and cleanup activity at the site. (Ex. 82, Clemens Dep. at 49.) Contrary to Bayer’s assertion, the conditions in the NPDES permit thus were part of DNR’s enforcement effort. Syntex Agribusiness, the previous owner of the Bayer site, did not take advantage of the opportunity to submit written views or participate in a public h