enforcement action
against Smithfield, but the Commonwealth took no action.

In April 1996, the Virginia Department of Environmental Quality
informed the Board that it had evidence of Smithfield's numerous
CWA violations and recommended that legal action be initiated. At
their meeting in May 1996, the Board decided to do nothing until it
was sure Smithfield was aware of the violations.

When it became apparent to the EPA that Virginia did not intend
to initiate legal action against Smithfield for its CWA violations, the
EPA filed its own action. The EPA invited Virginia to join the suit,
but the Commonwealth declined, electing instead to file its own
enforcement action in the Circuit Court of the County of Isle of
Wight. Virginia's enforcement action alleged that Smithfield violated
its 1992 Permit discharge limits on other substances, but did not
include claims for violations oftried to mitigate its violations by
evaluating Smithfield's other business practices. In doing so, the court
found that during the relevant period Smithfield cut back on the num-
ber of times it curtailed production to achieve compliance, ignored the
advice of its own consultants who pointed out serious deficiencies in
the operation and maintenance of Smithfield's existing wastewater
treatment plant, and dismissed evidence that its treatment plant
employees were inadequately trained. Other than agreeing to connect
to HRSD, the court found that Smithfield "apparently believed they
could discharge as much and as frequently as they wanted into the
Pagan River . . . ." See id. at 351.

The district court's finding of liability, with which we agree, was
based on the notion that Smithfield impermissibly ignored its explicit
obligations under its 1992 Permit by failing to comply with effluent
limitations for