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WEST GOSHEN SEWER AUTHORITY



Plaintiff,



v.



UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.





Defendants.







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CIVIL ACTION



NO. 12-5353

Case 2:12-cv-05353-LFR Document 42 Filed 07/30/13 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MEMORANDUM

L. Felipe Restrepo, U.S. District Court Judge







July 29, 2013

On September 19, 2012, Plaintiff West Goshen Sewer Authority (“Plaintiff” or “West

Goshen”) filed an action against the Environmental Protection Agency (“Defendant” or “EPA”),

challenging the substance and lawfulness of a regulation adopted pursuant to the Clean Water

Act. Before this Court now is a Motion to Intervene as Defendant filed by the Delaware

Riverkeeper Network (“Movant” or “DRN”). Because I find that DRN has met the standard for

intervention, I will grant the motion.

I.

Procedural and Factual Background

The Clean Water Act (“CWA”) was adopted “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Section 303(d) of

the CWA requires states to identify water bodies in their jurisdictions that are not meeting

applicable water quality standards and are deemed to be impaired, via so called “303(d) lists,”

identifying the reasons for the impairments. 33 U.S.C. § 1313(d)(1)(A). Section 303 further

requires states to prepare a total maximum daily load (“TMDL”) for each water body on the list,

calculating the amount of the pollutant an impaired water body can naturally absorb and remain

Case 2:12-cv-05353-LFR Document 42 Filed 07/30/13 Page 2 of 13

unimpaired. 33 U.S.C. § 1313(d)(1)(C). Where states fail to meet their obligations, Congress

requires that EPA take action and develop these water quality standards and TMDLs. 33 U.S.C.

§ 1313(d)(2).

On January 24, 1996, the American Littoral Society, acting with its local affiliate,

Movant, filed suit against EPA to compel the agency to prepare TMDLs for Pennsylvania bodies

of water. American Littoral Soc’y v. U.S. EPA, No. 96-489 (E.D. Pa. 1996). Based on that

litigation, EPA entered into a consent decree (“the Consent Decree”) in which it agreed to a

specified timeframe for developing or approving TMDLs. (Doc. 30, Ex. 2-3.)



In 2008, EPA prepared and published a proposed TMDL for the entirety of the Chester

Creek watershed, including Goose Creek. (Compl. ¶ 50.) On June 30, 2008, EPA issued a final

TMDL, focusing exclusively on the Goose Creek watershed and addressing nutrient

impairments, specifically phosphorus. (Id. ¶ 50.) In 2011, EPA moved to have the Consent

Decree dismissed, providing the Court with a list of TMDLs that were established, in order to

demonstrate satisfaction of EPA’s responsibilities under the Consent Decree. (No. 96-489, Doc.

40.) The TMDL at issue here was among those put forth by EPA, and its establishment in 2008

was one of many TMDLs used to demonstrate compliance with the Consent Decree. (Id., Doc

40-3 at 40.) Pursuant to the motion, which was unopposed, the Hon. Berle Schiller dismissed the

Consent Decree on September 12, 2011. (Id., Doc. 41.)

On September 19, 2012, just over one year after Judge Schiller dismissed the Consent

Decree, West Goshen filed this action, challenging the methodology and process by which EPA

established the TMDL, along with EPA’s refusal to reconsider the substantive merits of the

TMDL. West Goshen asks this Court to vacate the Goose Creek TMDL. (Compl. ¶ 131.)



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Case 2:12-cv-05353-LFR Document 42 Filed 07/30/13 Page 3 of 13



After the filing of this suit, EPA and West Goshen began extensive, good-faith

negotiations on the matter. While the contours of an agreement continue to be fluid and appeared

to change up to the moment of a July 19, 2013 oral argument, the parties suggested that they

may, upon reaching an agreement, move for this case to be placed in civil suspense, giving EPA

approximately three years to re-evaluate the TMDL, while effectively tolling allegedly

unwaivable statutes of limitations.1

It appears that this litigation has not been widely publicized. Prior to the intervention

motion, the entire coverage of the matter consisted of a brief article on a subscription website,

“Law360.com.” However, on May 16, 2013, an anonymous caller alerted Movant Delaware

Riverkeeper Network, through its pollution hotline, about these proceedings. (Decl. of Maya Van

Rossum, Doc. No. 32-4 ¶ 12.) DRN is an environmental advocacy organization that “advocates

for the protection of the Delaware River, its tributary streams, and the habitats and communities

of the Delaware River watershed.” (Id. ¶ 3.) Because DRN, including its then and current

Executive Director was actively involved in the litigation that led to the 1997 Consent Decree;

because its members enjoy the use of the Delaware River watershed generally, and Goose Creek

specifically; and because DRN advocates for the protection of the entire Delaware River

watershed, DRN filed the instant motion to intervene, arguing its right to defend the TMDL.

(Doc. No. 32.)

On July 19, 2013, I heard argument from DRN, West Goshen and EPA. EPA

acknowledged DRN’s motion as timely filed by a sufficiently interested party, but asked that this


1 Leading up to the oral argument it was understood that the TMDL would be suspended during this time. However,
at oral argument, EPA represented to the Court that the suspension of the TMDL was no longer part of the tentative
agreement.



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Case 2:12-cv-05353-LFR Document 42 Filed 07/30/13 Page 4 of 13

Court delay ruling on the motion until after the contours of the agreement between West Goshen

and EPA are clearer. West Goshen opposed the motion on all grounds.

II. Legal Analysis



DRN seeks to intervene as of right, pursuant to Federal Rule of Civil Procedure 24(a)(2).

The Third Circuit requires a potential intervenor to establish “1) a timely application for leave to

intervene; 2) a sufficient interest in the underlying litigation; 3) a threat that the interest will be

impaired or affected by the disposition of the underlying action; and 4) that the existing parties to

the action do not adequately represent the prospective intervener’s interests.” Liberty Mut. Ins.

Co. v. Treesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005) (citing Kleissler v. U.S. Forest Serv.,

157 F.3d 964, 969 (3d Cir. 1998)). I will address each in turn.

a. DRN’s Motion is Timely

The factors for considering the timeliness of an intervention motion are: “1) the stage of

the proceeding; 2) the prejudice that delay may cause the parties; and 3) the reason for the

delay.” Benjamin v. Dep’t of Pub. Welfare of Pa., 701 F.3d 938, 949 (3d Cir. 2012) (quoting

Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 369 (3d Cir.

1995)) (internal citations omitted). “[D]elay should be measured from the time the proposed

intervenor knows or should have known of the alleged risks to his or her rights or the purported

representative’s shortcomings.” Id. The timeliness of a motion to intervene is determined by the

trial court in consideration of all circumstances. Choike v. Slippery Rock Univ. of Pa., 297 Fed.

App’x 138, 140 (3d Cir. 2008) (citing In re Fine Paper Antitrust Litig., 695 F.2d 494, 500 (3d

Cir. 1982).2 In reviewing the facts before me, I find that West Goshen had no reasonable notice


2 At argument, EPA conceded that Movant’s motion was timely.



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Case 2:12-cv-05353-LFR Document 42 Filed 07/30/13 Page 5 of 13

of the lawsuit, such that it unreasonably delayed the proceedings. Additionally, I do not find

significant prejudice to West Goshen should DRN be allowed to intervene.

In arguing that DRN’s motion was unreasonably delayed, West Goshen claims that

“national media outlets, including environmental law publications, reported on the suit,” and

hence, pursuant to Choike, 297 Fed. App’x at 142 (intervention denied), and Kitzmiller v. Dover

Area School District, 229 F.R.D. 463, 466 (M.D. Pa. 2005) (same), this Court should deny

intervention. However, an examination of those cases makes clear how different those

circumstances are than the circumstances before me here. In Chioke, the District Court noted that

multiple stages of the action were “well-publicized” and that the intervenors had actual

knowledge of the suit for months prior to filing their intervention motion. Choike v. Slippery

Rock Univ. of Pa., No. 06-622, 2007 WL 184778 at *3 (M.D. Pa. Jan. 22, 2007) (“What took the

[intervenors] eleven months to learn then, was not of the risk to their rights, but a legal theory to

pursue.”). Similarly, in Kitzmiller, the District Court found that the suit was the subject of

“intense media scrutiny,” and that the proposed intervenor again had actual knowledge of the suit

for four months prior to intervening. 229 F.R.D. at 466-67. Nothing of the sort exists here, with

no allegations that DRN knew of this matter prior to being alerted to it on its hotline.

Further, while West Goshen argues that “national media outlets, including environmental

law publications” covered this matter, at argument and in its papers it could point only to the

single article published by “Law360.com.” (Pl.’s Br. in Opp’n, Doc. No. 30 at 6.) Thus, I find

that this action was far from well publicized. Further, I believe it to be unreasonable to expect



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Case 2:12-cv-05353-LFR Document 42 Filed 07/30/13 Page 6 of 13

that a public interest organization use its limited resources to constantly monitor paid

subscription services for lawsuits in which it may have an interest.3

Thus, finding that DRN did not delay in the filing of its motion, I turn to the stage of the

proceeding and the potential for prejudice caused to West Goshen. In making this analysis, I note

that this case is at a unique stage. On the one hand, due to a judicial stay, little discovery has

taken place and West Goshen has not yet needed to respond to EPA’s motion to dismiss two

counts of the complaint. (Doc. No.’s 24-26, 39.) No claims have been decided on the merits and

little resources have been spent litigating them. On the other hand, the parties have been ably and

regularly engaging in good faith “settlement” negotiations over the course of multiple months.

See Choike, 297 Fed. App’x. at 141 (denying intervention at “relatively advanced” stage of

litigation, with discovery closed and settlement reached prior to intervention motion).

Here, however, the much discussed settlement agreement would not actually settle the

matter. Instead, it would freeze it, with the Court putting the case into civil suspense for up to

three years, while EPA re-evaluated the TMDL. If at the end of that period EPA and West

Goshen continue to disagree regarding the TMDL, the suit would be opened and litigation would

restart anew. Thus, to the extent that Movant “interferes” with negotiations and scuttles an

attempt to reach a temporary settlement, intervention may speed the disposition of this case on

the merits, rather than slow it down. Thus, unlike Choike, where the trial court found that

intervention would mean that “[m]atters which are ripe for resolution could be postponed for


3 At argument, West Goshen suggested that the fact that this action itself was searchable through the Eastern District
of Pennsylvania’s website was enough to put DRN on constructive notice, as a public interest organization. Because
every lawsuit in this district is available through PACER’s search function, this would essentially mean that anytime
any lawsuit is filed in federal court, a public interest organization is always and immediately put on constructive
notice. While such a standard would make this Court’s undue delay analysis far simpler—a public interest party
would almost always be found to have unduly delayed in moving to intervene in a pending action—I decline to
make such a holding.




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years,” 2007 WL 184778 at *2, intervention here may mean the merits of this case are heard

sooner than if the motion is denied.

On balance, considering the procedural posture of the matter, the lack of briefing on the

merits of the case, and the reality that a “settlement” might mean this case goes on for years,

while intervention may mean an earlier resolution on the merits, along with my belief that

movant did not delay, I find DRN’s motion timely filed.

b. DRN Has a Sufficient Interest in this Litigation

The standard for whether or not the movant has a sufficient interest is whether “the

claimed interest in the litigation . . . is specific to those seeking to intervene, is capable of

definition, and will be directly affected in a substantially concrete fashion by the relief sought.”

Benjamin, 701 F.3d at 951.4 The standard is a flexible, case specific one, particularly for

environmental cases such as this. See Kleissler, 157 F.3d at 971 (“The reality is that

[environmental regulation] cases frequently pit private, state, and federal interests against each

other. Rigid rules in such cases contravene a major premise of intervention—the protection of

third parties affected by pending litigation. Evenhandedness is of paramount importance.”).5 I

believe an examination of the history of this TMDL, along with an examination of DRN’s

mission and its membership, makes clear that DRN possesses a sufficient interest for the

purposes of intervention.

In 1996, DRN brought a lawsuit regarding EPA’s failure to establish TMDLs, and

seeking specific timelines for the establishment of those TMDLs. The suit led to a 1997 consent


4 Here, again, EPA conceded at argument that Movant possessed an interest.

5 The Third Circuit has not yet determined whether the requirements for intervening under Rule 24 are the same as
those for a party’s standing to bring suit. See Am. Auto. Ins. Co. v. Murray 658 F.3d 311, 318 n.4 (3d Cir. 2011)
(surveying other circuits).



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Case 2:12-cv-05353-LFR Document 42 Filed 07/30/13 Page 8 of 13

decree, under which multiple TMDLs were established, including the Goose Creek TMDL in

2008. In 2011, EPA sought and received Court permission to dismiss the Consent Decree, noting

that it had established its required TMDLs, including for Goose Creek. See Civ. No. 96-489,

Doc. 41. Then, one year after the close of that decree, this lawsuit was filed. The instant suit, if

successful, would end that very same TMDL.

At argument, West Goshen appeared to argue that the benefit of the Consent Decree was

not actually the effect of the TMDL, but something more akin to a procedural scheduling. So,

this argument goes, that schedule having been met, DRN’s interest in this TMDL has evaporated.

I disagree. While it is true that the Consent Decree does not appear to have given DRN a hand in

evaluating the science of TMDLs—and while I do not believe the decree gives DRN perpetual

standing to automatically challenge every action against a TMDL established pursuant to the

Consent Decree—the purpose of the Consent Decree was not scheduling for scheduling’s sake.

Instead, read more fairly, the purpose was to establish TMDLs to accomplish the Clean Water

Act’s explicit mission of “restor[ing] and maintain[ing]” bodies of water, 33 U.S.C. § 1251(a),

including various parts of the Delaware River watershed such as Goose Creek. While I make no

judgment at this stage about the underlying validity of the science used in establishing the Goose

Creek TMDL, DRN should be given the opportunity to defend the fruit of its very recent

litigation.6

Moreover, I need not only consider the Consent Decree when determining DRN’s

interest, given its very mission of protecting the Delaware River watershed, of which Goose

Creek is a part, and the sworn declarations of its Executive Director and other members of the


6 West Goshen, in its brief and argument, also argued that, among other things, because DRN did not submit
comment to the EPA on the establishment of the Goose Creek TMDL, it has not shown sufficient interest in Goose
Creek. I am not convinced that participating in the comment process stands above filing of a lawsuit which leads to a
14-year consent decree.



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group. (Doc. Nos. 32-4, 36, 40.) DRN members have “active physical involvement and

interaction with Goose Creek as a natural resource,” (Doc. 36 at 21), receive drinking water from

a water intake impacted by alleged pollution in Goose Creek, (Doc. No. 40 at 5-6), and are

exposed to the smell of the creek, also allegedly caused by this pollution, (Doc. No. 40 at 9-10).7

“Numerous other courts have granted intervention as of right where the particular

interests of a special interest group were threatened.” Am. Farm Bureau Fed’n v. U.S. EPA, 278

F.R.D. 98, 107 (M.D. Pa. 2011) (discussing standing of public interest groups). DRN advocates

for a watershed that includes Goose Creek. DRN’s members use the watershed and are affected

by pollution from Goose Creek. DRN’s litigation forced EPA to establish a TMDL governing

Goose Creek. As such, I agree with both Movant and EPA and find it clear that DRN has a

sufficient interest to intervene.

c. There is a Threat that DRN’s Interest will be Impaired by Disposition of the

Action


“In order to meet the requirements of Rule 24(a)(2), proposed intervenors must also

demonstrate that their interest might become affected or impaired, as a practical matter, by the

disposition of the action in their absence.” Mountain Top Condo. Ass'n, 72 F.3d at 368 (citing

United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1185 n.15 (3d Cir. 1994)) (emphasis in

original). “[T]he court must consider not only the nature of the relief sought (e.g., to vacate the

TMDL), but also the practical consequences of such a ruling.” Am. Farm, 278 F.R.D. at 109

(internal citation omitted). For many of the same reasons I found that Movant has a legally

sufficient interest in the outcome of this matter, I find that interest would be impaired by


7 At argument, West Goshen presented this Court with a map of the Delaware River watershed, to demonstrate
Goose Creek’s attenuated relationship with the Delaware River. Goose Creek may be small, but there seems to be
little disputing that it is, in fact, part of the Delaware River watershed and is a body of water covered under the
Clean Water Act.



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disposition of this action without DRN’s participation. Id. (“Having already found that

[environmental plaintiffs have] established a legally protectable interest related to this case, the

court can dismiss this argument.”) (finding threat to interest). Here, the relief sought by Plaintiff

West Goshen—the elimination of a TMDL established under the Consent Decree—would

deprive DRN of the benefit of its years-long Consent Decree requiring EPA to establish TMDLs

such as this one. Should West Goshen prevail, a significant amount of additional effluent will

presumably be deposited into a creek that is part of the Delaware River watershed, and which

impacts DRN members.8

West Goshen argues that Movant’s interest will not be impaired because it believes that

“there is considerable doubt regarding the nature of the impairment to Goose Creek which must

first be determined in order to protect the Creek and its designated uses.” (Doc. No. 34 at 11.)

West Goshen’s skepticism of the TMDL may eventually be validated. But, for the purposes of

this motion, West Goshen is effectively asking that its version of the science behind the

TMDL—the heart of the controversy before us here—is accepted as true, something that can

only be determined at the merits stage of this action.

Moreover, this Court notes that to the extent that the Consent Decree was about the

“timing” of when TMDLs were established, that argument cuts against West Goshen. As noted,

at least one of the proposed settlements, as explained to this Court, would effectively reach back

and delay the implementation of that TMDL for years. The Consent Decree was dismissed in

2011 because EPA demonstrated that it established TMDLs according to a judicially supervised

timeline. If, upon the filing of a lawsuit, those TMDLs can now be summarily dismissed or

delayed for years (with the needed cooperation of this Court and its suspense docket to do so),

8 It is worth noting again that this Court makes no finding regarding the core of this matter, including the Goose
Creek TMDL and the science it was based on.



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the party that was responsible for forcing the establishment of the TMDL in the first place, DRN,

has an interest that can be impaired by disposition of this litigation, through either this Court’s

ruling on the merits or through a settlement agreement.

d. The Existing Parties Do Not Adequately Represent DRN’s Interests

Last, DRN must demonstrate that its interest in preserving the TMDL may not be

adequately represented by EPA in this litigation. Mountain Top Condo, 72 F.3d at 368. “As the

Supreme Court stated, the requirement of [Rule 24(a)(2)] is satisfied if the applicant shows that

representation of his interest ‘may be’ inadequate; and the burden of making that showing should

be treated as minimal.” Id. (citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10,

(1972)) (internal quotations omitted). There is a presumption that the Government is an adequate

representative “particularly when the concerns of the proposed intervenor, e.g., a ‘public interest’

group, closely parallel those of the public agency,” Kleissler, 157 F.3d at 972. This makes

intuitive sense, as not every challenge to a governmental unit should, in of itself, be ripe for the

participation of an intervenor. But, when “an agency’s views are necessarily colored by its view

of public welfare rather than the more parochial views of a proposed intervenor whose interest is

personal to it, the burden is comparatively light.” Benjamin, 701 F.3d at 958.

In American Farm, the Court was persuaded, in part, that a similar

incongruence of interests may lead EPA to settle or otherwise resolve this
litigation in a matter unfavorable to their interests, or may dissuade EPA from
appealing a decision that adversely affects Movants' interests. As noted in
Kleissler, this can give a proposed intervenor ‘legitimate pause’ when considering
its confidence in adequate representation by the government.



278 F.R.D. at 111 (internal citations omitted). Here, no speculation is needed. EPA has already

considered settlement options that would directly contradict DRN’s stated interest of enforcing

and defending the Goose Creek TMDL. While these settlement discussions may no longer



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Case 2:12-cv-05353-LFR Document 42 Filed 07/30/13 Page 12 of 13

include suspension of the TMDL, EPA and Goose Creek have not shared with this Court the

current settlement proposals to analyze them. Left only with what is before me, including that the

government agency itself largely concedes that Movant should be allowed to intervene, I find

that DRN has adequately demonstrated that its interest in the matter may have already diverged

from those of EPA. As such, and finding that DRN has met each factor of the Third Circuit’s test

for intervention, I am compelled to grant DRN’s motion.

III.

Scope of Intervention

While EPA generally conceded at argument that DRN meets the standard to intervene as

of right, EPA asks that this Court grant a limited scope of intervention, such that DRN may

intervene only to the extent that it may participate in an actual defense of the merits of the

TMDL. Said differently, EPA asks this Court to disallow DRN from participating in the ongoing

settlement negotiations between EPA and West Goshen. Like West Goshen, EPA does not want

to bring a third-party into complicated, bilateral negotiations that are sufficiently advanced. The

Third Circuit has found it appropriate “in certain cases to conduct a two-step examination,

separately evaluating whether the applicant has a right to intervene at the merits stage and

whether he or she may intervene to participate in devising the remedy.” Benjamin, 701 F.3d at

951 (internal citations and quotations omitted). Here, effectively, EPA asks that DRN only be

allowed to participate in the merits stage, should the case get that far, not the potential remedy

stage, at least for now.

To the extent a Court finds limited intervention burdensome or inequitable, it may decide

it more appropriate to grant intervention in full. See Kleissler 27 F.R.D at 973 (“We explored the

viability of that form of relief with counsel at oral argument, but neither they nor we have been

able to arrive at a pragmatic application of that option here without unduly attenuating the



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applicants’ interests.”). Like in Kleissler, a limited intervention was discussed at argument, but,

now as then, this Court finds that it would be inefficient and unfair to do so, given the practical

realities of this case. See Forest Service Employees for Environmental Ethics v. U.S. Forest

Service, No. 08-323, 2009 WL 960244, 4 (W.D. Pa. Apr. 7, 2009) (finding for full intervention).

The proposed settlement agreement here would rely on this Court’s consent to that same

settlement agreement, by placing this matter on the suspense docket, in such a way that has

appeared, at this stage, to inevitably address the timing and implementation of the much

discussed TMDL. As noted above, this is something in which I believe DRN has an active and

legitimate interest, and I believe it would be both burdensome and impractical for the Court and

inequitable to DRN to take a bifurcated approach.9 Thus, I decline to limit intervention in this

way.

An implementing Order follows.










9 I will not force West Goshen and EPA to let DRN into bilateral settlement negotiations. However, I note that these
negotiations generally appear to rely on the placement of this matter onto the suspense docket. “The decision to stay
is one left to the district court as a matter of its discretion to control its docket.” Mendez v. Puerto Rican Int‘l Cos.,
Inc., 553 F.3d 709, 712 (3d Cir. 2009) (quoting Moses H. Cone Mem‘l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
20 n.3 (1983)). On July 25, 2013, through a letter to the Court, EPA and West Goshen informed me that they now
expect to share a draft settlement agreement with DRN. I believe this to be wise, for efficiency purposes, because
upon a request for placement of the matter on the suspense docket, this Court will listen to the input of all parties.





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