United States of America v. Dominion Energy, Inc. et al

Filing 49

OPINION entered by Judge Sue E. Myerscough on 4/15/2014. The Court DENIES Fall River's revised Motion to Intervene, d/e 25 because Fall River does not have a statutory right to intervene under the Clean Air Act, 42 U.S.C. § 7604(b)(1)( B), and cannot meet the requirements for permissive intervention under Federal Rule of Civil Procedure 24(b). Therefore, the Motion to Enforce and/or Modify the Consent Decree, d/e 17 , the Motion for a Temporary Restraining Order and/or Preliminary Injunction, d/e 15 , and the initial Motion to Intervene, d/e 13 are DENIED AS MOOT. Finally, the Court DENIES Dominion's Motion for Sanctions, d/e 38 after finding that sanctions are not warranted. (MAS, ilcd)

E-FILED

Tuesday, 15 April, 2014 05:32:10 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CITY OF FALL RIVER,
Proposed Plaintiff-Intervenor
v.
DOMINION ENERGY, INC.,
BRAYTON POINT ENERGY, LLC,
KINCAID GENERATION, LLC, and
EQUIPOWER RESOURCES CORP.
Defendants.

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No. 13-cv-03086

OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:
After the Court entered a Consent Decree in this case, the City
of Fall River, Massachusetts filed a Motion to Intervene (d/e 13 and
revised as d/e 25), a Motion for a Temporary Restraining Order
and/or a Preliminary Injunction (d/e 15), and a Motion to Enforce
and/or Modify the Consent Decree (d/e 17). Dominion Energy, Inc.
later filed a Motion for Sanctions (d/e 38). After considering the

arguments of the parties and the City of Fall River, the Court
DENIES all of these pending motions.
I.

BACKGROUND

A. The Consent Decree Signed by the United States and
Dominion Resolved Civil Claims Against Power Plants in
Illinois, Indiana, and Massachusetts.
One section of a 96-page Consent Decree negotiated and
signed by Plaintiff United States (“United States”) and Dominion
Energy, Inc. (“Dominion”),1 Dominion Brayton Point, LLC, and
Kincaid Generation, LLC that this Court entered on July 18, 2013
has incited a vigorous dispute that led to the four currently pending
motions. Under the Consent Decree, Dominion agreed to spend
$9.75 million to implement environmental mitigation projects in
specific locations affected by Defendants’ power plants in Kincaid,
Illinois; Hammond, Indiana; and Brayton Point, Massachusetts.
Consent Decree, d/e 3, § IX, ¶ 109. These projects included the

1 While not an original party to the instant action or the Consent Decree, EquiPower Resources
Corp. replaced Dominion Energy as the entity responsible for executing obligations in the
Consent Decree related to the Brayton Point and Kincaid plants when EquiPower Resources
Corp. acquired those two plants after the Court entered the Consent Decree. See Notice
Related to Consent Decree, d/e 11 at 1-2 (noting also the name change of “Dominion Energy
Brayton Point LLC” to “Brayton Point Energy, LLC”). Because Dominion retained sole
responsibility to complete the environmental projects outlined in the Consent Decree,
Dominion is the party responding to Fall River’s currently pending Motions. See id., App. I, ¶
4.

Page 2 of 36

“Northeast Clean Energy and Clean Diesel Projects” (the “Northeast
Projects”). Id., App. A., § XI.
For the Northeast Projects, Dominion was required to
“consult[ ]” with the Town of Somerset, Massachusetts, where
Dominion’s Brayton Point power plant was located, and the City of
Fall River, Massachusetts, which lies within 2.5 kilometers of the
Brayton Point plant, about proposing projects. Id. ¶ A; Fall River
Memorandum, d/e 26 at 3. Dominion was then required to submit
“one or more” project proposals to the U.S. Environmental
Protection Agency (“EPA”) for approval to implement specified types
of projects in “either or both municipalities.” Id. The Consent
Decree also stated that although the “Parties’ expectation” was that
half of the maximum $1.6 million allotted for the Northeast Projects
“will be spent in Somerset . . . the final distribution will depend on
the Projects (and their costs) that can be proposed and implemented
within the time frames and other requirements set out in this
Appendix.” Id. ¶ B. The Consent Decree also required Dominion to
submit all of the project proposals—not only the Northeast Projects
proposals—to the EPA for approval within 120 days of the Court
entering the Consent Decree. Id. § II, ¶ A.
Page 3 of 36

B. The Complaint Filed by the United States Alleged
Violations of the Clean Air Act at the Kincaid Power
Station in Illinois.
On April 2, 2013, the United States brought a civil
enforcement action against Dominion and its subsidy Kincaid
Generation, LLC, alleging that Dominion made unpermitted
modifications to the Kincaid Power Station, in violation of the
Prevention of Significant Deterioration provisions of the Clean Air
Act (“CAA”), Title V of the CAA, and the State Implementation Plan
(“SIP”) adopted by Illinois and approved by the EPA. See Complaint,
d/e 1. These provisions all seek to reduce the emission of
pollutants such as nitrogen oxides, sulfur dioxide, and particulate
matter harmful to human health and the environment. See
Government’s Response, d/e 32-1 at 2. The United States joined
Dominion Energy Brayton Point, LLC, which operated the Brayton
Point Power Station in Somerset, Massachusetts, as a necessary
party under Federal Rule of Civil Procedure 19(a). See Complaint,
d/e 1 ¶ 1.
The scope of the Consent Decree was much broader than the
United States’ Complaint here. While the Complaint alleged only
“modification” violations at the Kincaid Plant in Illinois, the Consent
Page 4 of 36

Decree resolved all civil claims of the United States against
Dominion for unpermitted modifications made at the Kincaid,
Brayton Point, and State Line power plants. Compare id. ¶¶ 37-45
with Consent Decree, d/e 3 ¶ 121. The Consent Decree also
resolved all past claims by the United States arising from “opacity”
violations at the State Line Station in Hammond, Indiana. Consent
Decree, d/e 1 ¶ 121. Notably, before the Court entered the Consent
Decree on July 18, 2013, the United States clarified that the
Consent Decree did not resolve alleged violations of opacity
standards at the Brayton Point power plant in Somerset,
Massachusetts. The United States made this clarification in
response to a question from a group of environmental organizations
that sued Dominion Energy Brayton Point, LLC for opacity
violations under the CAA and the Massachusetts SIP. See U.S.
Memorandum, d/e 7-1 at 19-20. During the public-comment
period before the Consent Decree was entered, this group of
organizations (consisting of the Conservation Law Foundation,
Clean Water Action, Toxics Action Center, and the Coalition for
Clean Air South Coast) (the “Massachusetts Plaintiffs”) inquired
how the Consent Decree would affect their pending lawsuit. Id. at
Page 5 of 36

19. In response, the United States explained that although the
Consent Decree resolves opacity claims at the State Line plant in
Indiana, the “express terms of the Consent Decree . . . do not
purport to resolve any opacity violations at Brayton Point.” Id. at
20.
C. The Consent Decree Named Fall River as One of Two
Municipalities That Could Benefit from the
Environmental Mitigation Projects.
On July 11, 2013, less than two weeks after the United States
moved to enter the Consent Decree and one week before the Court
actually entered the Consent Decree on July 18, 2013,
representatives from Dominion Energy met with the employees of
Fall River who were to be involved in preparing proposals for the
Northeast Projects. See Aff. of Kenneth Pacheco, d/e 14-2 ¶ 3. At
this meeting, Dominion gave Fall River “Proposal Guidelines”
requiring Fall River and Somerset to submit proposals to Dominion
by August 1, 2013. See Aff. of James Smith, 29-3 ¶ 5. The
Proposal Guidelines also stated that Dominion’s deadline to submit
proposals to the EPA was 120 days after the Court entered the
Consent Decree. Proposal Guidelines, d/e 30-1 at 9. The Proposal
Guidelines were dated June 24, 2013, and stated in a footnote that
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“the United States soon will move to enter the Consent Decree,
which will then take effect when the Court enters it.” Id. The
subsequent entry of the Court’s Consent Decree on July 18, 2013
set Dominion’s 120-day deadline to November 14, 2013. See Fall
River Memorandum, d/e 26 at 7. Fall River contends Dominion
never told Fall River that the Court had entered the Consent Decree
triggering the 120-day deadline. Id.
Somerset submitted a proposal to Dominion Energy on August
1, 2013, the date of the deadline. See Dominion Memorandum, Att.
E, d/e 29-2 at 25. On December 17, 2013, Fall River officials read
in a local newspaper that Somerset was expected to receive the full
$1.6 million of funding for the Northeast Projects because Fall River
had failed to submit a proposal. Aff. of Christie DiOrio, d/e 14-1 ¶
12. The next day, Fall River submitted a proposal, exceeding
Dominion’s deadline to submit proposals to the EPA by more than
one month. See Aff. of Kevin Hennessy, d/e 29-2 ¶ 23. Dominion
told Fall River that Dominion had to refuse Fall River’s proposal
because Dominion had already submitted the selected plans to the
EPA and could not extend the 120-day deadline imposed in the
Consent Decree. See Fall River Memorandum, d/e 16-5 at 2.
Page 7 of 36

Fall River responded by filing a Motion for a Temporary
Restraining Order and/or Preliminary Injunction, a Motion to
Intervene, and a Motion to Enforce and/or Modify the Consent
Decree in this Court on January 14, 2014. Pursuant to Federal
Rule of Civil Procedure 24(c), Fall River attached a proposed
complaint to the Motion to Intervene, alleging claims against
Dominion’s Brayton Point plant identical to those in the complaint
filed by the Massachusetts Plaintiffs in their Massachusetts lawsuit:
opacity and smoke emission violations of the Massachusetts SIP,
violations of monitoring requirements of the Massachusetts SIP,
and violations of acid rain monitoring requirements. Compare Fall
River Proposed Complaint in Intervention, d/e 31-1 with
Complaint, d/e 1 in Conservation Law Foundation, Inc., Clean
Water Action, and Toxics Action Center v. Dominion Energy Brayton
Point, LLC, No. 13-10346 (D. Mass. filed Feb. 22, 2013).
On January 15, 2014, at a telephone hearing on the Motion
for a Preliminary Injunction, the United States agreed not to
conduct further review of the plans Dominion had submitted for the
Northeast Projects until the Court resolved Fall River’s Motion to
Intervene. See Minute Entry dated Jan. 15, 2014 and Joint
Page 8 of 36

Stipulation, d/e 22. The Court also set a briefing schedule at the
hearing that allowed Fall River to revise any of its motions and reply
to the responses to Fall River’s motions. See Order, d/e 19.
Dominion Energy later filed a Motion for Sanctions against Fall
River (d/e 38). On April 7, 2014, despite some technical difficulties,
the Court held an interstate video hearing on Fall River’s Motion to
Intervene.
Dominion and Fall River argue at length about why Fall River’s
proposal was tardy. In short, Fall River blames Dominion for failing
to tell Fall River when the Court entered the Consent Decree
triggering Dominion’s 120-day deadline. Dominion blames Fall
River for not submitting a timely proposal. While this factual
disagreement may bear on the balancing test the Court conducts
when considering a Motion for a Temporary Restraining Order
and/or Preliminary Injunction, the disagreement is irrelevant to the
Motion to Intervene. Further, the Court’s DENIAL of the Motion to
Intervene moots the Motion for a Preliminary Injunction and the
need to resolve who was at fault for Fall River’s untimely
submission.

Page 9 of 36

II.

ANALYSIS

1. Fall River Seeks to Intervene under Federal Rule of Civil
Procedure 24.
Federal Rule of Civil Procedure 24 provides three avenues
proposed plaintiff–intervenors may take to intervene in a federal
case. Because the citizen-suit provision of the CAA blocks Fall
River from taking any of these routes to intervention, the Court
DENIES the Motion to Intervene.
A. Fall River Cannot Intervene Under Fed. R. Civ. P.
24(a) Because The Clean Air Act Does Not Provide
Fall River with an Unconditional Right to
Intervene.
Under Rule 24(a)(1), the court must permit anyone to
intervene who has an unconditional right to intervene under federal
statute and who files a timely motion to intervene. The CAA allows
citizens to prosecute violations of the CAA by bringing civil actions
in federal courts. 42 U.S.C. § 7604(a). However, a citizen cannot
sue under this “citizen-suit provision” of the CAA if the state or
federal government “has commenced or is diligently prosecuting”
violations of “the standard, limitation, or order” of the CAA the

Page 10 of 36

citizen also wishes to enforce.2 Id. at § (b)(1)(B). This section of the
citizen-suit provision (the “intervention section”) ensures that
courts are not overburdened with citizen suits that are duplicative
of ongoing governmental actions under the CAA. Although the
intervention section serves to restrict citizen suits when the state or
federal government has started to prosecute “any such action,” the
CAA grants the citizens a right to intervene in the government’s
case “as a matter of right.” Id. Further, the citizen-suit provision of
the CAA also includes a venue provision, which states that “[a]ny
action respecting a violation by a stationary source of an emissions
standard or limitation or an order respecting such standard or
limitation may be brought only in the judicial district in which such
source is located.” Id. at § (c)(1) (emphasis added).
The United States and Dominion argue Fall River must allege
Dominion violated the same “standard, limitation, or order” of the
CAA that the United States alleged in its Complaint in order to
obtain this unconditional right to intervene. Fall River disagrees

“(b) No action may be commenced—(B) if the Administrator or State has
commenced and is diligently prosecuting a civil action in a court of the United
States or a State to require compliance with the standard, limitation, or order,
but in any such action in a court of the United States any person may
intervene as a matter of right.”

2

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but concedes that the claims in its proposed complaint, which
allege violations of opacity, smoke, and monitoring requirements at
the Brayton Point plant, are not identical to claims in the United
States’ Complaint, which involve violations of modifications
requirements at the Kincaid plant.
Relying on a federal district court case from Colorado, United
States v. Kerr-Mcgee Corp., Fall River argues that the proposed
intervenor’s claims do not need to be the same the United States’
claims. Rather, Fall River’s claims need only stem from the “same
nexus of facts and law” as the claims the United States alleges in its
Complaint. Fall River Reply, d/e 44 at 2. Kerr-Mcgee does not
persuade this Court that Fall River has a right to intervene based
on its proposed complaint.
In United States v. Kerr-Mcgee Corp., a Colorado district court
allowed a group of organizations to intervene in a case brought by
the United States under the CAA where the first claim in the
group’s proposed two-count complaint, which alleged that the
defendant failed to install oxidation catalysts, mirrored the United
States’ complaint, and the second claim alleged that the failure to
install oxidation catalysts also breached the defendant’s operating
Page 12 of 36

permits. 2008 U.S. Dist. LEXIS 24494, at *2, n.2 (D. Colo. Mar. 26,
2008). Because of the many differences between Kerr-Mcgee and
the present action, Kerr-Mcgee does not actually support Fall
River’s argument.
In Kerr-Mcgee, one of the counts in the proposed intervenor’s
complaint was identical to one of the counts in the United States’
complaint, so Kerr-Mcgee could indisputably intervene under the
CAA. Additionally, the conduct underlying the second count in the
proposed intervenor’s complaint in Kerr-Mcgee was the same as the
conduct alleged in the intervenor’s first claim and thus, the United
States’ mirrored claim.
In contrast to Kerr-Mcgee, none of the conduct underlying Fall
River’s proposed complaint forms the basis of the Complaint in this
case. Even if Kerr-Mcgee stands for the proposition Fall River
contends it does—that the citizen-suit provision allows intervention
in a governmental action when citizens assert the “same nexus of
facts and law”—Kerr-Mcgee does not support Fall River’s
intervention because Fall River’s proposed complaint is based on
different facts altogether.

Page 13 of 36

Although Fall River briefly cited U.S. v. Duke Energy Corp.,
171 F. Supp. 2d 560, 565 (M.D.N.C 2001) in the Reply to
Dominion’s Response to the Motion to Intervene, counsel for Fall
River repeatedly relied on Duke Energy during the video hearing.
See Fall River Reply, d/e 44 at 2. However, Duke Energy does not
support Fall River’s position. The issue in Duke Energy was
whether the defendant’s failure to obtain permits necessary to
modify a power plant fell under the definition of an “emission
standard or limitation” that could be enforced under the CAA’s
citizen-suit provision. 171 F. Supp. 2d at 562–65. Because the
district court determined that the failure to obtain the permits
could be prosecuted under the citizen-suit provision, a group of
public-interest organizations had an “unconditional right to
intervene” in the United States’ case against the power plant. Id. at
565.
If Fall River, like the organizations that sought intervention in
Duke Energy, were in fact alleging the same violations as the United
States in this case, Duke Energy may have been applicable. At
best, Duke Energy demonstrates how the intervention clause of the

Page 14 of 36

citizen-suit provision applies when the claims of the intervenors and
the United States are identical.
Whether claims of prospective intervenors must mirror claims
of the United States under the citizen-suit provision of the CAA is
perhaps seldom addressed in case law because the plain language
of the statute so clearly requires uniformity. This intervention
section serves to grant certain third parties a right to intervene and
yet restricts the ability of third parties to bring their own
independent actions under the CAA. Various courts have simply
assumed that the intervention section applies when a citizen and
the government are seeking to enforce the same limitation,
standard, or order of the CAA.
When analyzing the intervention section of the citizen-suit
provision of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(B)—a
verbatim reproduction of the CAA’s intervention section—a
Connecticut federal district court injected the word “same” before
the phrase, “standard, limitation, or order,” to express the
understanding that the intervention section applied when the
government’s and third party’s claims were identical. The court
granted the defendant’s motion to dismiss after finding that the
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State of Connecticut was “diligently prosecuting” an enforcement
suit against the defendant “to require compliance with the [same]
standard, order or limitation” plaintiff was seeking to enforce.
Conn. Fund for the Env’t v. Contract Plating Co., Inc., 631 F. Supp.
1291, 1294 (D. Conn. 1986).
Similarly, when a district court in the Eastern District of Texas
reviewed the CAA’s intervention statute, the court noted that if a
citizens’ group was seeking to prosecute the “same CAA standard,
limitation, or order” that the State of Texas had started to diligently
prosecute, the court would lack jurisdiction over the citizen’s
independent action. Glazer v. Am. Ecology Envtl. Servs. Corp., 894
F. Supp. 1029, 1035 (E.D. Tex. 1995). On the other hand, if the
alleged violations in citizens’ and state’s suits involved a “different
CAA standard, limitation or order” or were based on “different
activity,” the intervention section would not apply to prohibit the
plaintiff’s cause of action. Id. To determine whether the “same”
violations were alleged in both suits, the district court needed only
to compare the pleadings in both cases. Id. (“Certainly, Congress
did not intend to overburden the courts by requiring protracted
litigation regarding the similarities between the state’s action and
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the citizen suit.”). Further, a court from the District of Maryland
relied on Glazer to find that the EPA’s enforcement of a single
standard against an emission source did not bar citizen suits
seeking to enforce different standards against the same emission
source. See Dodge v. Mirant Mid-Atl., LLC, 732 F. Supp. 2d 578,
585–86 (D. Md. 2010).
This Court agrees with the Contract Plating, Glazer, and
Dodge courts’ interpretation of the plain language of the
intervention section of the CAA. The Court notes that Congress
chose to use the definite article “the” in that phrase rather than
“any” or “a.” The similarly worded citizen-suit provision of the
Resource Conservation and Recovery Act (“RCRA”) bars citizen suits
when a federal or state entity is enforcing compliance with “such
permit, standard . . . or order.” 42 U.S.C. § 6972(b)(1)(B); see
Adkins v. VIM Recycling, Inc., 644 F.3d 483, 494 (7th Cir. 2011)
(finding that an earlier governmental action would prohibit a
plaintiff’s citizen suit under the RCRA “if it sought to require
compliance with the same requirements that the plaintiffs seek to
enforce in this suit”) (emphasis added). No doubt this language
more clearly requires compliance with the same standard or order.
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However, the word “the” is included in the intervention section of
the CAA for good reason: if citizens could intervene in cases brought
by the United States when alleging CAA violations different from
those of United States, citizens would be barred from bringing
independent actions against defendants for violations the United
States chose not to prosecute. Fall River’s argument to allow
intervention based on allegations that differ from those of the
United States would essentially gut the citizen-suit provision.
The Ninth Circuit case, United States v. Stone Container
Corp., 196 F.3d 1066 (9th Cir. 1999), provides an example of how
the CAA’s citizen-suit provision works to ensure citizens can act as
“private attorney generals” to enforce violations the United States
does not pursue. In Stone Container, a citizens’ group filed a 21count complaint against a defendant for violating the CAA. 196
F.3d at 1067. The United States then filed a separate suit against
the same defendant. Id. The citizens’ group intervened in the
governmental suit based on three of the counts in its own complaint
that mirrored three counts in the United States’ suit. Id. at 1068.
After the court allowed the group to intervene, the group dismissed
the three identical violations from its own suit and proceeded in the
Page 18 of 36

independent case on the remaining 18 violations that the United
States had not sought to prosecute. Id. Consent decrees were then
entered in both cases: one between the United States and the
defendant, and the other between the citizens’ group and the
defendant in the independent action. Id.
Unlike the intervenors in Stone Container, Fall River is
seeking intervention, rather than an independent action, to
prosecute opacity and monitoring violations of the CAA that differ
from the United States’ allegations of unpermitted modifications.
Therefore, Fall River does not have a statutory right to intervene
and cannot intervene under Federal Rule of Civil Procedure 24(a)(1).
B. Fall River Does Not Meet the Requirements for
Permissive Intervention Under Fed. R. Civ. P.
24(b).
Fall River does not argue intervention under Federal Rule of
Civil Procedure 24(a)(2), which requires a proposed intervenor to
show that disposing of an action would impair its ability to guard a
protectible interest. Rather, Fall River seeks permissive
intervention under Rule 24(b):
(1) In General. On timely motion, the court may permit
anyone to intervene who:

Page 19 of 36

(b) has a claim or defense that shares with the main
action a common question of law or fact.
The Seventh Circuit requires that permissive intervenors file a
timely motion and show 1) a question of law or fact in common with
the main action and 2) independent jurisdiction. See, e.g., Ligas ex
rel. Foster v. Maram, 478 F.3d 771, 775 (7th Cir. 2007); Flying J,
Inc. v. Van Hollen, 578 F.3d 569, 573 (7th Cir. 2009) (“Like anyone
who wants to maintain an action in federal court, the [proposed
intervenor] has to have standing in the Article III sense . . . .”).
Even if these requirements are met, the Court has discretion
whether to allow the intervention and should consider the impact of
intervention on all of the parties. Ligas, 478 F.3d at 775.
The differences in the violations alleged in Fall River’s and the
United States’ complaints demonstrate that Fall River does not
share a question of law or fact with the present action. Indeed, Fall
River does not suggest a common question of law or fact in the
Motion to Intervene. Fall River does reference the “common
questions of law and fact that surround the harms suffered by Fall
River based on the emissions at issue in this Action” when replying
to Dominion’s and the United States’ Responses to the Motion to

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Enforce and/or Modify the Consent Decree. See Fall River Reply,
d/e 41 at 4. However, the Complaint in this cause of action
involves only alleged violations at the Kincaid power plant in
Illinois. And while the Consent Decree resolves some claims against
the Brayton Point plant, nowhere in its four corners does it purport
to resolve the opacity and monitoring claims Fall River alleges in its
proposed complaint. See Alliance to End Repression v. City of
Chicago, 742 F.2d 1007, 1011 (7th Cir. 1984) (“[T]he scope of a
consent decree must be discerned within its four corners.”) (citing
United States v. Armour & Co., 402 U.S. 673, 682 (1971) (internal
citations omitted).
Additionally, the Seventh Circuit’s second requirement for
intervention—independent jurisdiction—is another insurmountable
obstacle Fall River cannot clear because of the venue and notice
requirements of the CAA’s citizen-suit provision. To independently
pursue the claims in the proposed complaint, Fall River would also
have to satisfy the notice requirement of the citizen-suit provision,
which means Fall River would have to give the EPA Administrator,
the State of Massachusetts, and the proper Defendant 60 days’
notice before filing Fall River’s complaint. See 42 U.S.C.
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§ 7604(b)(1). Nothing in the record indicates Fall River gave such
notice.
Even more problematic, however, is the venue requirement of
the citizen-suit provision of the CAA. See 42 U.S.C. § 7604(c)(1).
The Seventh Circuit has recognized the contrast of the CAA, one of
several statutes “with ‘special’ i.e. mandatory, venue provisions
which are explicit in limiting venue. . . .” against other statutes that
“allow permissive venue.” In re VMS Sec. Litig., 21 F.3d 139, 144
(7th Cir. 1994). The CAA clearly states that “any action respecting
a violation by a stationary source of an emission standard . . . may
be brought only in the judicial district in which such source is
located.” 42 U.S.C. § 7604(c)(1).
Fall River argues that venue is proper in “this District . . .
because violations that are the subject of the Complaint occurred in
this District.” Fall River Motion to Intervene, d/e 26 at 16. The
“Complaint” Fall River cites to, however, is the United States’
Complaint, not Fall River’s proposed complaint. See id. (citing
Docket Entry “1,” which is the Complaint filed by the United
States). And Fall River’s proposed complaint—not the Complaint
initiating the underlying suit—must be the basis of independent
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jurisdiction. See FED. R. CIV. P. 24(c) (stating that a motion to
intervene must “be accompanied by a pleading that sets out the
claim or defense for which intervention is sought”).
In a footnote to the venue paragraph of Fall River’s proposed
complaint, Fall River asserts that this Court has jurisdiction over
Fall River’s claims because this Court entered a Consent Decree
that resolved alleged claims against the Brayton Point plant.
Revised Proposed Complaint, d/e 25-1 at 2 n.1. The unpermitted
modification claims related to Brayton Point in the Consent Decree,
however, are completely different than the opacity and monitoring
violations Fall River alleges in its proposed complaint. Fall River
provides no authority to show how the scope of the Consent Decree,
which is permissibly broader than the scope of the United States’
Complaint, expands this Court’s power to hear unrelated
allegations of violations at the Brayton Point plant in
Massachusetts. Therefore, sitting in Illinois, this Court does not
have independent jurisdiction over Fall River’s proposed complaint
and will not permit Fall River to intervene.
Although Fall River emphasizes why the Motion to Intervene is
timely in the memorandum supporting the Motion, the Court will
Page 23 of 36

not address timeliness because Fall River cannot meet the other
requirements of Fed. R. Civ. P. 24(a)(1) and (b)(1)(B). See Fall River
Memorandum, d/e 26 at 8-13.
In conclusion, Fall River lacks a statutory right to intervene
under the CAA because the claims in the proposed complaint Fall
River filed pursuant to Rule 24(c) differ from the claims the United
States alleged in its Complaint in this case. Accordingly, Fall River
cannot intervene under Rule 24(a)(1). Additionally, this Court will
not allow Fall River to intervene under Rule 24(b) because Fall River
cannot show a common question of law or fact or independent
jurisdiction to pursue its claims in this Court. The Court DENIES
Fall River’s revised Motion to Intervene (d/e 25) and DENIES AS
MOOT Fall River’s initial Motion to Intervene (d/e 13). Fall River
acknowledges that the Court’s denial of the Motion to Intervene
MOOTS the Motion for a Preliminary Injunction (d/e 15). Therefore,
the Court DENIES AS MOOT Fall River’s Motion for a Preliminary
Injunction (d/e 15).
2. The Denial of the Motion to Intervene Moots the Motion to
Enforce and/or Modify the Consent Decree, But Further
Discussion is Warranted.

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In the Motion to Enforce/Modify the Consent Decree, Fall
River asks this Court to enforce Dominion’s compliance with the
Consent Decree and modify the Consent Decree to allow the EPA to
accept Fall River’s proposal directly. Fall River Motion, d/e 17 at 5.
Fall River concedes that the Court’s denial of the Motion to
Intervene moots the Motion to Enforce and/or Modify the Consent
Decree. See Fall River Reply, d/e 41 at 2. This could be the end of
the discussion on this Motion because the Court denied the Motion
to Intervene. The lively dispute between Fall River and the Parties
about the applicability of Blue Chip Stamps v. Manor Drug Store,
421 U.S. 723 (1975), however, compels further discussion.
This disagreement about Blue Chip Stamps arises from Fall
River’s assertion that Fall River can enforce and/or modify the
Consent Decree as an intended beneficiary of the Consent Decree.
In Blue Chip Stamps, the Supreme Court stated:
[A] well-settled line of authority from this Court
establishes that a consent decree is not enforceable
directly or in collateral proceedings by those who
are not parties to it even though they were intended
to be benefited by it.
Id. at 750.

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The Parties and Fall River dispute the applicability of this
holding from Blue Chip Stamps because after that case, the
Seventh Circuit allowed an intended third-party beneficiary to
intervene and enforce a consent decree without citing Blue Chip
Stamps. In South v. Rowe, 759 F.2d 610 (7th Cir. 1985), the
Seventh Circuit found that an inmate was an intended beneficiary
with a right to intervene under Rule 24(a)(2) and enforce a Consent
Decree between a former inmate and the State of Illinois. Fall River
relies on Rowe for the proposition that an intended beneficiary
could modify a Consent Decree and argues that Blue Chip Stamps
only applied to private damages actions brought under the
Securities and Exchange Commission’s Rule 10b-5. Fall River
Reply, d/e 41 at 2-3.
The only other time the Seventh Circuit has referenced the
holding in Blue Chip Stamps as prohibiting an intended beneficiary
from modifying a consent decree was in a concurring opinion. See
Gautreaux v. Pierce, 707 F.2d 265 (7th Cir. 1983). Although the
majority in that case did not decide whether third parties could
intervene and modify a consent decree, Judge Posner briefly
acknowledged that Blue Chip Stamps bars third parties from
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enforcing consent decrees. Id. at 273 (“It might make a difference if
the appellants were third-party beneficiaries of the decree, though
there is authority that it would not, see Manor Drug Stores v. Blue
Chip Stamps, 339 F. Supp. 35, 38 (C.D. Cal.1971), rev’d on other
grounds, 492 F.2d 136 (9th Cir.1973), rev’d on other grounds, 421
U.S. 723 (1975).”) (Posner, J., concurring).
Other circuits have more specifically ruled on the applicability
of Blue Chip Stamps, complicating the dispute over this issue
between the United States, Dominion, and Fall River. In brief, the
Second, Ninth, Tenth, and D.C. Circuits have narrowed Blue Chip
Stamps to prohibit only incidental beneficiaries from enforcing nongovernmental consent decrees. See, e.g., Berger v. Heckler, 771
F.2d 1556, 1565 (2d Cir.1985) (“[W]e think that [Blue Chip Stamps]
was not intended to preclude nonparties from intervening to enforce
a consent decree where otherwise authorized by the federal rules of
civil procedure.”); Hook v. State of Ariz., Dep’t of Corr., 972 F.2d
1012, 1014-15 (9th Cir. 1992)(“The holding in Blue Chip Stamps is
thus limited to incidental beneficiaries or beneficiaries of consent
decrees where the government was the plaintiff; it does not apply to
intended third party beneficiaries.”); Floyd v. Ortiz, 300 F.3d 1223,
Page 27 of 36

1226 (10th Cir. 2002) (“[I]ntended third-party beneficiaries of
consent decrees have standing to enforce those decrees.”); Beckett
v. Air Line Pilots Ass’n, 995 F.2d 280, 288 (D.C. Cir. 1993) (“Blue
Chip Stamps is best read as prohibiting, at most, suits to enforce
consent decrees by incidental third party beneficiaries, or, perhaps,
by third party beneficiaries of a consent decree obtained by the
Government.”).
However, with the exception of the Tenth Circuit, the circuits
that have adopted this more narrow reading of Blue Chip Stamps
require third parties to show that the consent decree they are
seeking to enforce conferred not only a benefit, but enforcement
power to the third-party beneficiary. See, e.g., Consol. Edison, Inc.
v. Ne. Utils., 426 F.3d 524, 528 (2d Cir. 2005) (rejecting the right of
a third party to enforce a contract because “the parties to the
Agreement clearly created a third-party right, but just as clearly
they took pains to assure that the right was limited ... [and] not a
right to sue”); United States v. FMC Corp., 531 F.3d 813, 821 (9th
Cir. 2008)(finding third party could not enforce a governmental
consent decree when the decree “disclaim[ed] an intent to grant
rights to third parties”); SEC v. Prudential Secs., Inc., 136 F.3d 153,
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159 (D.C. Cir. 1998) (“When a consent decree or contract explicitly
provides that a third party is not to have enforcement rights, that
third party is considered an incidental beneficiary even if the parties
to the decree or contract intended to confer a direct benefit upon
that party.”); Hodges by Hodges v. Pub. Bldg. Comm’n of Chicago,
864 F. Supp. 1493, 1508 (N.D. Ill. 1994) (“[O]nly the Government
can seek enforcement of its consent decrees; therefore, even if the
Government intended its consent decree to benefit a third party,
that party could not enforce it unless the decree so provided.”)
(relying on Beckett v. Air Line Pilots Ass’n, 995 F.2d 280, 288 (D.C.
Cir.1993) (internal citations omitted); see also Pure Country, Inc. v.
Sigma Chi Fraternity, 312 F.3d 952, 958 (8th Cir. 2002) (“In order
for a third party to be able to enforce a consent decree, the third
party must, at a minimum, show that the parties to the consent
decree not only intended to confer a benefit upon that third party,
but also intended to give that third party a legally binding and
enforceable right to that benefit.”).
The Ninth Circuit observed that when applying the narrow
reading of Blue Chip Stamps to a consent decree to which the
government is a party, courts can view Blue Chip Stamps and its
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progeny in two ways: either third-party beneficiaries never have
standing to enforce governmental consent decrees unless the
consent decree specifically says they do, or third-party beneficiaries
are presumed to be incidental unless the consent decree clearly
makes them intended beneficiaries. FMC Corp., 531 F.3d at 821.
Either way, the court’s decision turns on whether the consent
decree contains language that shows the parties’ intention to give
third parties enforcement power. Therefore, even if the Seventh
Circuit chose to adopt the narrower reading of Blue Chip Stamps,
this Court should still look to the language of the Consent Decree to
determine whether the Parties, one of which is the government,
conferred enforcement power to third parties like Fall River. See,
e.g., Dunn v. Carey, 808 F.2d 555, 559 (7th Cir. 1986) (“Consent
decrees are judgments as well as contracts.”); Golden v. Barenborg,
53 F.3d 866, 870 (7th Cir. 1995) (relying on “the manifestation of
the parties’ intent expressed through the language of the contract”
to determine whether a third party is an intended or incidental
beneficiary under Illinois law).
Three provisions of the Consent Decree demonstrate the intent
of the United States and Dominion not to include but to explicitly
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exclude, third parties from enforcing or modifying the Consent
Decree. Paragraph 187 grants the power to enforce the Consent
Decree only to “any Party to this Consent Decree.” Consent Decree,
d/e 6 ¶ 187. Permitted modifications to the Consent Decree can be
made only “by a subsequent written agreement signed by the
Parties.” Id. ¶ 188. And to further ensure that third parties did not
interfere, paragraph 198 states: “This Consent Decree does not
limit, enlarge, or affect the rights of any Party to this Consent
Decree against third parties.” Id. ¶ 198. Accordingly, under Blue
Chip Stamps and its progeny and general principles of contract law,
Fall River cannot modify or enforce the Consent Decree as an
intended beneficiary.
Furthermore, the denial of the Motion to Intervene moots Fall
River’s Motion to Enforce and/or Modify the Consent Decree as a
party as well as Fall River’s argument that Fall River can seek
modification under Federal Rule of Civil Procedure 60. Nat’l
Acceptance Co. of Am., Inc. v. Frigidmeats, Inc., 627 F.2d 764, 766
(7th Cir. 1980) (“‘[I]t is well-settled that . . . one who was not a party
lacks standing to make a (60(b) motion.’”) (citing 11 C. Wright & A.
Miller, Federal Practice and Procedure s 2865 at 225–26 (1973)); see
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also United States v. 8136 S. Dobson St., Chicago, Ill., 125 F.3d
1076, 1082 (7th Cir. 1997) (“The person seeking relief [under Fed.
R. Civ. P. 60] must have been a party.”). Therefore, the Court
DENIES Fall River’s Motion to Modify and/or Enforce the Consent
Decree.
3. The Court Denies Dominion’s Motion for Sanctions and
Fall River’s Request for Expenses.
On March 7, 2014, Dominion filed a Motion for Sanctions (d/e
38) under Federal Rule of Civil Procedure 11 with an accompanying
18-page memorandum (d/e 39). Dominion asserts that Fall River
failed to conduct a reasonable pre-filing inquiry into whether Fall
River’s legal arguments were supported by existing law and whether
Fall River had evidentiary support for its factual contentions. See
Dominion Memorandum, d/e 39 at 18. Rule 11(b) requires an
attorney to certify that the claims, defenses, and legal contentions
she submits to the court are warranted by existing law or by a
nonfrivolous argument to extend, modify or reverse existing law, or
establish new law. The belief on which this certification is based is
formed after a reasonable investigation or inquiry. FED. R. CIV. P.
11(b).

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Advisory Committee Notes to Rule 11 advise that a “reasonable
inquiry” may depend on a variety of factors, including the time
available for an investigation and whether counsel had to rely on a
client for information. FED. R. CIV. P. 11 advisory committee’s note
to amend. 1983. The district court has discretion to impose
sanctions when submissions are filed for an improper purpose or
without a reasonable investigation of the facts and law. Gay v.
Chandra, 682 F.3d 590, 596 (7th Cir. 2012). Courts must also
consider whether sanctions would further the purpose of Rule 11,
which is to deter comparable conduct by similarly situated
attorneys. FED. R. CIV. P. 11(c)(4). Sanctions are appropriate when
the court finds that an attorney should have known her position
was “groundless.” Cuna Mut. Ins. Soc’y Office and Prof’l Emps. Int’l
Union, Local 39, 443 F.3d 556, 560 (7th Cir. 2006).
Dominion asserts that Fall River’s filings are “baseless, are not
warranted by existing law, and contain false allegations.” Dominion
Memorandum, d/e 39 at 1–2. In support of the Motion for
Sanctions, Dominion discusses Fall River’s failure to cite Blue Chip
Stamps when Fall River was seeking to modify and/or enforce the
Consent Decree as a third-party beneficiary. Id. at 12–14.
Page 33 of 36

Dominion also argues that Fall River’s failure to recognize that this
Court did not have jurisdiction over Fall River’s proposed complaint
is another reason sanctions are warranted. Id. at 14–18.
Additionally, Dominion highlights Fall River’s ignorance of the
Consent Decree provisions regarding third parties. Dominion
Motion, d/e 38, ¶ 6.
In response, Fall River asserts once again that Fall River has
an unconditional right to intervene under the CAA and that South
v. Rowe, the Seventh Circuit case that allowed a third-party to
intervene and enforce a consent decree, trumps any applicability of
Blue Chips Stamps to this case. Fall River Response, d/e 45 at 4–
8. Fall River also contends that this Court has jurisdiction because
Brayton Point Station is a defendant in this case and a defendant in
the Consent Decree, and the Consent Decree disposes of the United
States’ claims against the Brayton Point Station. Id. at 8–10. Fall
River also asks for attorney’s fees and costs in responding to the
Motion for Sanction. Id. at 11–15; see FED. R. CIV. P. 11(c)(2)
(stating that the court may award reasonable expenses, including
attorney’s fees and costs, to the prevailing party of a motion for
sanctions).
Page 34 of 36

Although some of Fall River’s assertions are problematic—
such as Fall River’s claim that the parties “acknowledge” that Blue
Chip Stamps is limited to securities’ actions or that this Court has
jurisdiction over Fall River’s proposed complaint—Fall River’s
submissions do not warrant sanctions. Fall River’s failure to cite
Blue Chip Stamps does not justify the harsh penalty of sanctions.
See Thompson v. Duke, 940 F.2d 192, 198 (7th Cir. 1991)
(“[O]mission of a citation that arguably does not control, while
imprudent and unprofessional, is not, standing alone, a basis for
sanctions”). Additionally, when confronted with Blue Chip Stamps
in the United States’ and Dominion’s responses to Fall River’s
Motion to Intervene, Fall River addressed the case and conceded
that if Fall River could not intervene, Fall River could not enforce or
modify the Consent Decree. See Fall River Reply, d/e 41 at 2.
Therefore, the Court DENIES Dominion’s Motion for Sanctions
(d/e 38) and Fall River’s request for expenses and attorney’s fees
under Rule 11.
III.

CONCLUSION

The Court DENIES Fall River’s revised Motion to Intervene
(d/e 25) because Fall River does not have a statutory right to
Page 35 of 36

intervene under the Clean Air Act, 42 U.S.C. § 7604(b)(1)(B),
and cannot meet the requirements for permissive intervention
under Federal Rule of Civil Procedure 24(b). Therefore, the
Motion to Enforce and/or Modify the Consent Decree (d/e 17),
the Motion for a Temporary Restraining Order and/or
Preliminary Injunction (d/e 15), and the initial Motion to
Intervene (d/e 13) are DENIED AS MOOT. Finally, the Court
DENIES Dominion’s Motion for Sanctions (d/e 38) after finding
that sanctions are not warranted.
ENTERED: April 15, 2014
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
United States District Court
Judge

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