                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3775
                                    ___________

Harmon Industries, Inc.,                 *
                                         *
            Appellee,                    *
                                         *
   v.                                    *
                                         *
Carol M. Browner, in her official        *
capacity as Administrator of the         *
United States Environmental              *
Protection Agency; United States         *
of America; United States                *
Environmental Protection Agency,         *
                                         *
            Appellants.                  *
                                         * Appeal from the United States
_____________________________            * District Court for the
                                         * Western District of Missouri.
Pacific Legal Foundation; Michigan       *
Manufacturers Association;               *
Mississippi Manufacturers                *
Association; Illinois Manufacturers      *
Association; South Carolina              *
Chambers of Commerce;                    *
Environmental Federation of              *
Oklahoma; Arkansas                       *
State Chamber of Commerce;               *
Associated Industries of Arkansas,       *
Inc.; Wisconsin Manufacturers and        *
Commerce; The Texas Natural              *
Resource Conservation Commission;        *
American Forest & Paper Associa-         *
tion; American Iron & Steel             *
Institute; American Petroleum           *
Institute; Chamber of Commerce of       *
the United States; Chemical             *
Manufacturers Association; Corporate    *
Environmental Enforcement Council;      *
Commercial Affairs Committee of         *
the Hazardous Waste Action              *
Coalition; National Association of      *
Manufacturers; National Mining          *
Association; National Petrochemical     *
& Refiners Association; Rubber          *
Manufacturers Association; Utility      *
Solid Waste Activities Group;           *
Washington Legal Foundation;            *
Missouri Chamber of Commerce;           *
Associated Industries of Missouri,      *
                                        *
            Amici on Behalf             *
            of Appellee.                *



                                  ___________

                            Submitted: April 22, 1999
                                Filed: September 16, 1999
                                 ___________

Before BEAM and HANSEN, Circuit Judges, and MOODY,1 District Judge.
                            ___________

HANSEN, Circuit Judge.


      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas, sitting by designation.

                                       -2-
       Harmon Industries, Inc., (Harmon) filed this action pursuant to the
Administrative Procedure Act, 5 U.S.C. § 706 (1994), seeking judicial review of a final
decision of the United States Environmental Protection Agency (EPA). The district
court2 granted summary judgment in favor of Harmon and reversed the decision of the
EPA. The EPA appeals. We affirm.

                                          I.
                FACTS AND PROCEDURAL BACKGROUND

       Harmon Industries operates a plant in Grain Valley, Missouri, which it
utilizes to assemble circuit boards for railroad control and safety equipment. In
November 1987, Harmon’s personnel manager discovered that maintenance
workers at Harmon routinely discarded volatile solvent residue behind Harmon’s
Grain Valley plant. This practice apparently began in 1973 and continued until
November 1987. Harmon’s management was unaware of its employees' practices
until the personnel manager filed his report in November 1987. Following the
report, Harmon ceased its disposal activities and voluntarily contacted the Missouri
Department of Natural Resources (MDNR). The MDNR investigated and
concluded that Harmon’s past disposal practices did not pose a threat to either
human health or the environment. The MDNR and Harmon created a plan whereby
Harmon would clean up the disposal area. Harmon implemented the clean up plan.
While Harmon was cooperating with the MDNR, the EPA initiated an
administrative enforcement action against Harmon in which the federal agency
sought $2,343,706 in penalties. Meanwhile, Harmon and the MDNR continued to
establish a voluntary compliance plan. In harmonizing the details of the plan,


      2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

                                          -3-
Harmon asked the MDNR not to impose civil penalties. Harmon based its request
in part on the fact that it voluntarily self-reported the environmental violations and
cooperated fully with the MDNR.

       On March 5, 1993, while the EPA's administrative enforcement action was
pending, a Missouri state court judge approved a consent decree entered into by the
MDNR and Harmon. In the decree, MDNR acknowledged full accord and
satisfaction and released Harmon from any claim for monetary penalties. MDNR
based its decision to release Harmon on the fact that the company promptly self-
reported its violation and cooperated in all aspects of the investigation. After the
filing of the consent decree, Harmon litigated the EPA claim before an
administrative law judge (ALJ). The ALJ found that a civil penalty against Harmon
was appropriate in this case. The ALJ rejected the EPA’s request for a penalty in
excess of $2 million but the ALJ did impose a civil fine of $586,716 against
Harmon. A three-person Environmental Appeals Board panel affirmed the ALJ’s
monetary penalty. Harmon filed a complaint challenging the EPA’s decision in
federal district court on June 6, 1997. In its August 25, 1998, summary judgment
order, the district court found that the EPA’s decision to impose civil penalties
violated the Resource Conservation and Recovery Act and contravened principles
of res judicata. See Harmon Indus., Inc. v. Browner, 19 F. Supp.2d 988 (W.D. Mo.
1998). The EPA appeals to this court.3

                                      II.
                                  DISCUSSION

A. The Permissibility of Overfiling


      3
       Approximately thirty different organizations filed six amicus curiae briefs in
support of Harmon Industries.

                                         -4-
      When reviewing a federal agency’s interpretation of a federal statute, a
federal court must defer to the agency’s interpretation only if it finds that the
agency’s interpretation is consistent with the plain language of the statute or
represents a reasonable interpretation of an ambiguous statute. See Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45
(1984). We review de novo a district court’s findings and conclusions regarding the
correctness of an agency’s statutory interpretations. See Moore v. Custis, 736 F.2d
1260, 1262 (8th Cir.1984).

       The Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901-
6992K (1994), permits states to apply to the EPA for authorization to administer
and enforce a hazardous waste program. See 42 U.S.C. § 6926(b). If authorization
is granted, the state’s program then operates “in lieu of” the federal government’s
hazardous waste program. Id. The EPA authorization also allows states to issue
and enforce permits for the treatment, storage, and disposal of hazardous wastes.
Id. "Any action taken by a State under a hazardous waste program authorized under
[the RCRA] [has] the same force and effect as action taken by the [EPA] under this
subchapter." 42 U.S.C. § 6926(d). Once authorization is granted by the EPA, it
cannot be rescinded unless the EPA finds that (1) the state program is not
equivalent to the federal program, (2) the state program is not consistent with
federal or state programs in other states, or (3) the state program is failing to
provide adequate enforcement of compliance in accordance with the requirements
of federal law. See 42 U.S.C. § 6926(b). Before withdrawing a state’s
authorization to administer a hazardous waste program, the EPA must hold a public
hearing and allow the state a reasonable period of time to correct the perceived
deficiency. See 42 U.S.C. § 6926(e).

      Missouri, like many other states, is authorized to administer and enforce a
hazardous waste program pursuant to the RCRA. Despite having authorized a state

                                        -5-
to act, the EPA frequently files its own enforcement actions against suspected
environmental violators even after the commencement of a state-initiated
enforcement action. See Bryan S. Miller, Harmonizing RCRA’s Enforcement
Provisions: RCRA Overfiling in Light of Harmon Industries v. Browner, 5
Environmental Law. 585 (1999). The EPA’s process of duplicating enforcement
actions is known as overfiling. See id. The permissibility of overfiling apparently
is a question of first impression in the federal circuit courts. See Harmon, 19 F.
Supp.2d at 995. After examining this apparent issue of first impression, the district
court concluded that the plain language of section 6926(b) dictates that the state
program operate "in lieu" of the federal program and with the "same force and
effect" as EPA action. Accordingly, the district court found that, in this case, the
RCRA precludes the EPA from assessing its own penalty against Harmon. See id.

      The EPA contends that the district court’s interpretation runs contrary to the
plain language of the RCRA. Specifically, the EPA cites section 6928 of the
RCRA, which states that:

              (1) Except as provided in paragraph (2), whenever on the basis
      of any information the [EPA] determines that any person has violated
      or is in violation of any requirement of this subchapter, the [EPA] may
      issue an order assessing a civil penalty for any past or current
      violation, requiring compliance immediately or within a specified time
      period, or both, or the [EPA] may commence a civil action in the
      United States district court in the district in which the violation
      occurred for appropriate relief, including a temporary or permanent
      injunction.

             (2) In the case of a violation of any requirement of [the RCRA]
      where such violation occurs in a State which is authorized to carry out
      a hazardous waste program under section 6926 of this title, the [EPA]
      shall give notice to the State in which such violation has occurred prior
      to issuing an order or commencing a civil action under this section.

                                         -6-
42 U.S.C. § 6928(a)(1) and (2).

       The EPA argues that the plain language of section 6928 allows the federal
agency to initiate an enforcement action against an environmental violator even in
states that have received authorization pursuant to the RCRA. The EPA contends
that Harmon and the district court misinterpreted the phrases “in lieu of” and "same
force and effect" as contained in the RCRA. According to the EPA, the phrase “in
lieu of” refers to which regulations are to be enforced in an authorized state rather
than who is responsible for enforcing the regulations. The EPA argues that the
phrase "same force and effect" refers only to the effect of state issued permits. The
EPA contends that the RCRA, taken as a whole, authorizes either the state or the
EPA to enforce the state’s regulations, which are in compliance with the regulations
of the EPA. The only requirement, according to the EPA, is that the EPA notify the
state in writing if it intends to initiate an enforcement action against an alleged
violator.

      Both parties argue that the plain language of the RCRA supports their
interpretation of the statute. We also are ever mindful of the long-established plain
language rule of statutory interpretation, see Walker v. Dilworth, 2 U.S. (2 Dall.)
257, 259 (1796), as we inquire into the scope of the EPA’s enforcement powers
under the RCRA. Such an inquiry requires examining the text of the statute as a
whole by considering its context, "object, and policy." Pelofsky v. Wallace, 102
F.3d 350, 353 (8th Cir. 1996).

      An examination of the statute as a whole supports the district court’s
interpretation. The RCRA specifically allows states that have received
authorization from the federal government to administer and enforce a program that
operates “in lieu of” the EPA’s regulatory program. 42 U.S.C. § 6926(b). While the

                                         -7-
EPA is correct that the “in lieu of” language refers to the program itself, the
administration and enforcement of the program are inexorably intertwined.

       The RCRA gives authority to the states to create and implement their own
hazardous waste program. The plain “in lieu of” language contained in the RCRA
reveals a congressional intent for an authorized state program to supplant the
federal hazardous waste program in all respects including enforcement.
Congressional intent is evinced within the authorization language of section
6926(b) of the RCRA. Specifically, the statute permits the EPA to repeal a state’s
authorization if the state’s program “does not provide adequate enforcement of
compliance with the requirements of” the RCRA. Id. This language indicates that
Congress intended to grant states the primary role of enforcing their own hazardous
waste program. Such an indication is not undermined, as the EPA suggests, by the
language of section 6928. Again, section 6928(a)(1) allows the EPA to initiate
enforcement actions against suspected environmental violators, except as provided
in section 6928(a)(2). Section 6928(a)(2) permits the EPA to enforce the hazardous
waste laws contained in the RCRA if the agency gives written notice to the state.
Section 6928(a)(1)and (2), however, must be interpreted within the context of the
entire Act. Harmonizing the section 6928(a)(1) and (2) language that allows the
EPA to bring an enforcement action in certain circumstances with section 6926(b)’s
provision that the EPA has the right to withdraw state authorization if the state’s
enforcement is inadequate manifests a congressional intent to give the EPA a
secondary enforcement right in those cases where a state has been authorized to act
that is triggered only after state authorization is rescinded or if the state fails to
initiate an enforcement action. Rather than serving as an affirmative grant of
federal enforcement power as the EPA suggests, we conclude that the notice
requirement of section 6928(a)(2) reinforces the primacy of a state's enforcement
rights under RCRA. Taken in the context of the statute as a whole, the notice
requirement operates as a means to allow a state the first chance opportunity to

                                         -8-
initiate the statutorily-permitted enforcement action. If the state fails to initiate any
action, then the EPA may institute its own action. Thus, the notice requirement is
an indicator of the fact that Congress intended to give states, that are authorized to
act, the lead role in enforcement under RCRA.

       The "same force and effect" language of section 6926(d) provides additional
support for the primacy of states' enforcement rights under the RCRA when the
EPA has authorized a state to act in lieu of it. The EPA argues that the "same force
and effect" language is limited to state permits because the words appear under a
heading that reads: "Effect of State Permit." The EPA contends that the "same
force and effect" language indicates only that state-issued permits will have the
same force and effect as permits issued by the federal government. The EPA
claims that the district court was incorrect when it applied the "same force and
effect" language to encompass the statute's enforcement mechanism. We disagree.

        Regardless of the title or heading, the plain language of section 6926(d) states
that "[a]ny action taken by a State under a hazardous waste program authorized
under this section shall have the same force and effect as action taken by the [EPA]
under this subchapter." 42 U.S.C. § 6926(d). In this context, the meaning of the
text is plain and obvious. "Any action" under this provision broadly applies to any
action authorized by the subchapter, and this language is not limited to the issuance
of permits. The state authorization provision substitutes state action (not excluding
enforcement action) for federal action. It would be incongruous to conclude that
the RCRA authorizes states to implement and administer a hazardous waste
program "in lieu of" the federal program where only the issuance of permits is
accorded the same force and effect as an action taken by the federal government.
Contrary to the EPA's assertions, the statute specifically provides that a "[s]tate is
authorized to carry out [its hazardous waste program] in lieu of the Federal program
. . . and to issue and enforce permits." 42 U.S.C. § 6926(b). Issuance and

                                          -9-
enforcement are two of the functions authorized as part of the state's hazardous
waste enforcement program under the RCRA. Nothing in the statute suggests that
the "same force and effect" language is limited to the issuance of permits but not
their enforcement. We believe that if Congress had intended such a peculiar result,
it would have stated its preference in a clear and unambiguous manner. Absent
such an unambiguous directive, we will apply a common sense meaning to the text
of the statute and interpret its provisions in a manner logically consistent with the
Act as whole. See Windsor on the River Assoc., Ltd. v. Balcor Real Estate Fin.,
Inc., 7 F.3d 127, 130 (8th Cir. 1993) (requiring courts to give effect to all the words
used by Congress); see also Minnesota Transp. Reg. Bd. v. United States, 966 F.2d
335, 339 (8th Cir. 1992) ("Section and subchapter titles cannot alter the plain
meaning of a statute; they can only assist in clarifying ambiguity").

       Utilizing a sort of reverse plain language argument, the EPA contends that
its approach is logically consistent with the framework of the RCRA. The EPA
cites the statute's citizen suit provision for the proposition that limitations on a
parties' right to act are expressly stated within the statute itself. See 42 U.S.C. §
6972(b)(1)(B). Section 6972(b)(1)(B) provides that "if the [EPA] or State has
commenced and is diligently prosecuting a civil or criminal action in a court of the
United States or a State," then a private citizen suit is not permitted. Id. The EPA
argues that if Congress had intended to limit the EPA's right to file an enforcement
action, it would have expressly stated its intention as it did in the citizen suit
context. We find the EPA's argument unpersuasive. Section 6972(b)(1)(B) of the
RCRA provides the parameters for private litigation. In the course of providing
such parameters, Congress apparently found it necessary to delineate exactly when
and how a private citizen may initiate a civil action against an alleged
environmental violator. In contrast, section 6926 of the RCRA addresses the
interplay between federal and state authorization. Section 6926 also contains
express language that establishes the primacy of states' enforcement rights once the

                                         -10-
EPA has granted a state authorization. The mere fact that Congress did not choose
to employ the exact same language as contained in an unrelated part of the act does
not detract from the plain language used in the state authorization section. Again,
Congress provided that the state's program should operate in lieu of the federal
program and that the state action should operate with the same force and effect as
action taken by the EPA. See 42 U.S.C. § 6926(b) and (d). We find the language
contained in the state authorization section of the Act to be as unambiguous as the
citizen suit provision. In fact, we find it revealing that, under the citizen suit
provision, Congress chose to forbid a private citizen from acting if the EPA or a
state was diligently pursing a civil action. See 42 U.S.C. § 6972(b)(1)(B). Utilizing
the same reverse plain language argument, one can assume that if Congress
intended to allow the federal government and the states to initiate competing
enforcement actions, it would have chosen the words "and/or" rather than simply
"or." The word "or" indicates that Congress did not contemplate competing
enforcement actions between the federal government and the states. Thus, when
the EPA has authorized a state program, the plain language of the text indicates that
primary enforcement powers are vested in the states. See 42 U.S.C. § 6926.



       Even assuming some ambiguity exists in the statutory language, the primacy
of the states’ enforcement rights, once the EPA has authorized a state to act, is
illustrated further through the RCRA’s legislative history. The United States House
of Representatives stated after its hearings that, through the RCRA, it intended to
vest primary enforcement authority in the states. See H. R. Rep. 1491, 94th Cong.,
2nd Sess. 24, reprinted in 1976 U.S.C.C.A.N. 6262 ("It is the Committee's intention
that the States are to have primary enforcement authority and if at any time a State
wishes to take over the hazardous waste program it is permitted to do so, provided
that the State laws meet the Federal minimum requirements for both administering
and enforcing the law"). The House Report states that although the “legislation

                                        -11-
permits the states to take the lead in the enforcement of the hazardous wastes [sic]
laws[,] . . . the Administrator [of the EPA] is not prohibited from acting in those
cases where the state fails to act, or from withdrawing approval of the state
hazardous waste plan and implementing the federal hazardous waste program
pursuant to . . . this act.” 1976 U.S.C.C.A.N. 6269. The House Report also states
that the EPA, “after giving the appropriate notice to a state that is authorized to
implement the state hazardous waste program, that violations of this Act are
occurring and the state [is] failing to take action against such violations, is
authorized to take appropriate action against those persons in such state not in
compliance with the hazardous waste title.” Id. at 6270. The House Report thus
supports our interpretation of the statute - that the federal government’s right to
pursue an enforcement action under the RCRA attaches only when a state’s
authorization is revoked or when a state fails to initiate any enforcement action.

        There is no support either in the text of the statute or the legislative history
for the proposition that the EPA is allowed to duplicate a state’s enforcement
authority with its own enforcement action. The EPA argues that the statute and
legislative history support its contention that it may initiate an enforcement action
if it deems the state’s enforcement action inadequate. The EPA’s argument misses
the point. Without question, the EPA can initiate an enforcement action if it deems
the state’s enforcement action inadequate. Before initiating such an action,
however, the EPA must allow the state an opportunity to correct its deficiency and
the EPA must withdraw its authorization. See 42 U.S.C. § 6926(b) and (e).
Consistent with the text of the statute and its legislative history, the EPA also may
initiate an enforcement action after providing written notice to the state when the
authorized state fails to initiate any enforcement action. See 42 U.S.C. §
6928(a)(2);1976 U.S.C.C.A.N. 6270. The EPA may not, however, simply fill the
perceived gaps it sees in a state’s enforcement action by initiating a second


                                         -12-
enforcement action without allowing the state an opportunity to correct the
deficiency and then withdrawing the state’s authorization.4

       A contrary interpretation would result in two separate enforcement actions.
Such an interpretation, as explained above, would derogate the RCRA’s plain
language and legislative history. Companies that reach an agreement through
negotiations with a state authorized by the EPA to act in its place may find the
agreement undermined by a later separate enforcement action by the EPA. While,
generally speaking, two separate sovereigns can institute two separate enforcement
actions, those actions can cause vastly different and potentially contradictory
results. Such a potential schism runs afoul of the principles of comity and
federalism so clearly embedded in the text and history of the RCRA. When
enacting the RCRA, Congress intended to delegate the primary enforcement of
EPA-approved hazardous waste programs to the states. See 1976 U.S.C.C.A.N.
6262, 6270. In fact, as we have noted above, the states' enforcement action has the
“same force and effect as an action taken by” the EPA. See 42 U.S.C. § 6926(d).
In EPA authorized states, the EPA’s action is an alternative method of enforcement
that is permitted to operate only when certain conditions are satisfied. See 42
U.S.C. § 6926(b) and (e); 42 U.S.C. § 6928(b). The EPA’s interpretation simply
is not consistent with the plain language of the statute, its legislative history, or its
declared purpose. Hence, it is also an unreasonable interpretation to which we
accord no deference. Therefore, we find that the EPA's practice of overfiling, in
those states where it has authorized the state to act, oversteps the federal agency's
authority under the RCRA.

      4
       The EPA cites Wyckoff Co. v. EPA, 796 F.2d 1197 (9th Cir. 1986), for the
proposition that federal enforcement is not prohibited even in states authorized under
the RCRA. Wyckoff, however, is more illustrative of the EPA’s authority to act in
place of a state enforcement action. Wyckoff did not involve overfiling and competing
enforcement actions.

                                          -13-
B. Res Judicata

       As an alternative basis to support its grant of summary judgment, the district
court concluded that principles of res judicata also bar the EPA's enforcement
action by reason of the Missouri state court consent decree. The EPA argues that
the state court judgment has no effect on its enforcement action against Harmon
because the two actions lack the elements essential for a finding of res judicata.
We review de novo a district court's summary judgment determinations. See JN
Exploration & Prod. v. Western Gas Resources, 153 F.3d 906, 909 (8th Cir.1998).


      Principles of res judicata embodied in the Full Faith and Credit Act, 28
U.S.C. § 1738 (1982), see also U.S. Const. art. 4, § 1, require federal courts to give
preclusive effect to the judgments of state courts whenever the state court from
which the judgment emerged would give such an effect. See Hickman v. Electronic
Keyboarding, Inc., 741 F.3d 230, 232 (8th Cir. 1984). In this case, we must
determine whether Missouri law would give res judicata effect to the consent
decree entered between Harmon and the MDNR in Missouri state court.

      In Missouri, res judicata requires "(1) [i]dentity of the thing sued for; (2)
identity of the cause of action; (3) identity of the persons and parties to the
action; and (4) identity of the quality of the person for or against whom the
claim is made." Prentzler v. Schneider, 411 S.W.2d 135, 138 (Mo. 1966) (en
banc).

      In this case, the four Missouri law res judicata requirements are satisfied.
In both the state court action and the EPA administrative enforcement action,
the parties sought to enforce a hazardous waste program pursuant to the RCRA.
In both the state action and the agency action, the complaints named Harmon


                                        -14-
as the defendant. In addition, both actions involved the enforcement of
regulations based upon identical facts and legal principles. The only dispute
is whether the parties are identical.

       A party is identical when it is the same party that litigated a prior suit or
when a new party is in privity with a party that litigated a prior suit. See
United States v. Gurley, 43 F.3d 1188, 1197 (8th Cir. 1994), cert. denied, 516
U.S. 817 (1995). Privity exists when two parties to two separate suits have "a
close relationship bordering on near identity." Id. (internal quotations omitted);
see also Hickman, 741 F.2d at 233. As the United States and the State of
Missouri are not the same party, we must resolve whether their relationship in
the enforcement action is nearly identical.

       The statutory language of the RCRA provides the framework for the party
identity analysis. Pursuant to 42 U.S.C. § 6926(b), the federal program
operates “in lieu of” the state program. Section 6926(d) of the same statute
mandates that “[a]ny action taken by a State under a hazardous waste program
authorized under this section shall have the same force and effect as action taken
by the [EPA] under this subchapter.” 42 U.S.C. § 6926(d). As we determined in
Part II(A) of this opinion, the plain language of the RCRA permits the State of
Missouri to act in lieu of the EPA. When such a situation occurs, Missouri’s action
has the same force and effect as an action initiated by the EPA. Accordingly, the
two parties stand in the same relationship to one another. The EPA argues that it
has enforcement interests sufficiently distinct from the interests of the State of
Missouri. We explained in Hickman, however, that privity under Missouri law is
satisfied when the two parties represent the same legal right. See Hickman, 741
F.2d at 233. As the district court correctly indicated, privity is not dependent upon
the subjective interests of the individual parties. See Harmon, 19 F. Supp.2d at 998;

                                        -15-
see also Hickman, 741 F.2d at 233. In this case, the State of Missouri advanced the
exact same legal right under the statute as the EPA did in its administrative action.
Accordingly, the identity of the parties requirement is satisfied.

       The EPA contends that even if principles of res judicata are satisfied under
Missouri law, the doctrine of sovereign immunity precludes applying res judicata
to the United States unless the United States was the actual party in the prior
lawsuit. Before addressing the merits of the EPA’s claim, we note that the EPA did
not raise the sovereign immunity defense before the district court. Harmon argues
that in failing to raise the issue at the district court level, the EPA has waived its
right to assert sovereign immunity on appeal. Sovereign immunity, however, is a
jurisdictional threshold matter and it is well-established that questions of subject
matter jurisdiction can be raised for the first time on appeal. See DeWitt Bank &
Trust Co. v. United States, 878 F.2d 246 (8th Cir. 1989), cert. denied, 494 U.S.
1016 (1990).

        Turning to the merits of the EPA’s sovereign immunity defense, we conclude
that the defense is forestalled by the United States Supreme Court’s decision in
Montana v. United States, 440 U.S. 147 (1979). In Montana, the Supreme Court
held that “one who prosecutes or defends a suit in the name of another to establish
and protect his own right is as much bound as he would be if he had been a party
to the record.” 440 U.S. at 154 (internal quotations and alterations omitted). The
Court found in Montana that although the United States was not a party to a prior
suit, it "had a sufficient laboring oar in the conduct of the state-court litigation to
actuate principles of estoppel." Id. at 155.5 The EPA argues that it had no laboring


      5
      Montana involved principles of collateral estoppel as opposed to res judicata.
440 U.S. at 154. We do not believe such a distinction is relevant in the context of this
case.

                                         -16-
oar in the State of Missouri’s enforcement action. Such an argument ignores the
RCRA. Unlike the present case, Montana did not involve a statute that authorized
the state to proceed “in lieu of” the federal government and “with the same force
and effect” as the federal government. In Montana, the United States controlled the
details of the prior suit directly. In RCRA cases, however, the federal government
authorizes the state to act in its place. It cedes its authority to the state pursuant to
the authorization plan contained in the statute. See 42 U.S.C. § 6926(b). The
“laboring oar” is pulled on much earlier in the process. It occurs at the
authorization stage when the EPA grants the state permission to enforce the EPA's
interests through the state's own hazardous waste program. After authorization, the
state “prosecutes” enforcement actions “in lieu of” the federal government and
operates as if it were the EPA. See 42 U.S.C. § 6926(b) and (d). Hence, pursuant
to Montana, the United States must be bound by prior judgments involving state
action as authorized by the RCRA. See also United States v. County of Cook,
Illinois, 167 F.3d 381, 389 (7th Cir. 1999) (questioning when sovereign immunity
to claim preclusion exists); United States v. ITT Rayonier, Inc., 627 F.2d 996, 1002
(9th Cir. 1980) (applying res judicata against the EPA). Accordingly, we find that
principles of res judicata as defined by Missouri law foreclose the EPA's
enforcement action against Harmon.

C. The Statute of Limitations Defense

       Harmon argues that the EPA’s enforcement claim is barred by a five-year
statute of limitations. See 28 U.S.C. § 2462. The district court found that the
statute of limitations did not affect this action. Although our decision in this case
precludes our need to address this issue and Harmon did not file a cross-appeal, we
note that Harmon's statute of limitations claim entirely lacks merit. Harmon
continuously polluted from 1973 to 1987. The EPA initiated its enforcement action
in 1991. Hence, the EPA’s action fell within the five-year statute of limitations.

                                          -17-
See Cornerstone Realty, Inc. v. Dresser Rand. Co., 993 F. Supp. 107, 114-15 (D.
Conn. 1998). Accordingly, Harmon’s statute of limitations argument fails.




                                      III.
                                  CONCLUSION

      For the reasons stated herein, we affirm the judgment of the district court.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -18-
