United States of America et al v. Gateway Energy & Coke Company, LLC et al

Filing 45

ORDER DENYING 20 MOTION to Intervene filed by Peggy Maddox, Kelly Graff, Hildreth Maddox, Glenn Graff. Signed by Judge David R. Herndon on 11/7/14. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
et al.,
Plaintiffs,
GLENN GRAFF, KELLY GRAFF,
HILDRETH MADDOX and PEGGY MADDOX,
Proposed Plaintiffs-Intervenors,
v.
No. 13-0616-DRH

GATEWAY ENERGY & COKE
COMPANY, LLC, et al.,
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:

I. Introduction and Background
Pending before the Court is proposed intervenors Glenn Graff, Kelly Graff,
Hildreth Maddox and Peggy Maddox (“the Graffs”) motion to intervene (Doc. 20).
The Graffs, pursuant to Federal Rule of Civil Procedure 24, move to intervene in
this action: (1) to sever the United States’ and the State of Ohio’s claims involving
the Ohio Haverhill facility from those involving the Illinois Gateway facility and
transfer the claims against the Ohio Haverhill facility to the United States District
Court for the Southern District of Ohio, where the Graffs’ citizen enforcement
action against the Ohio facility has been pending for four years and (2) to challenge
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the sufficiency of the proposed Consent Decree as a tool to cleanse the
environment. Defendants oppose the motion arguing that this litigation is all but
resolved and that intervention is unnecessary and would delay resolution of this
matter and performance of the work resulting emissions reductions called for by
the Consent Decree (Doc. 25).

Further, defendants argue that allowing the

proposed intervenors to intervene and seek transfer to take discovery and conduct
evidentiary hearing would result in significant prejudice to the existing parties and
considerable delay in implementing the relief established by the proposed consent
decrees.
On June 26, 2013, the United States of America, the State of Illinois and the
State of Ohio filed suit against Gateway Energy & Coke Company, LLC (“GECC”),
Haverhill Coke Company, LLC (“HCC”) and SunCoke Energy, Inc. (“SunCoke”) for
claims under the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq, the Illinois
Environmental Protection Act (“Illinois Act”), 4125 ILCS 5/1 et seq., and Chapter
3745 of the Ohio Revised Code (“ORC”) (Doc. 2). Plaintiffs seek injunctive relief
and civil penalties against GECC, HCC and SunCoke for violations of these statutes
and the implementing regulations.

The claims relate to two facilities – the

“Gateway Facility” in Granite City, Illinois, owned and operated by GECC and
SunCoke and the “Haverhill Facility” in Franklin Furnace, Ohio, owned and
operated by HCC and SunCoke. Both facilities manufacture metallurgical coke
utilizing the same horizontal heat recovery coke oven technology to produce coke
and employ the same air pollution control devices to minimize emissions from the
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cokemaking process.
In December 2008, the Governments issued the first Notice of Violations
(“NOV”) for the alleged CAA violations at the Haverhill Facility. Since that time,
the Governments issued numerous NOVs for Haverhill Facility and one for the
Gateway Facility. Because of the similarities of the facilities and the violations, the
Governments initiated negotiations with defendants in 2010 to resolve the alleged
violations.

Since 2010, the parties have participated in extensive negotiations,

exchanged many drafts of the proposed consent decree and exchanged many
documents. The proposed consent decree culminated after a years-long process
of extensive fact-finding, settlement discussion, and independent agency evaluation
of the potential case against each defendant. During this process, the United States
had numerous telephone calls and met in person with counsel for the proposed
intervenors at their request to consider any information the proposed intervenors
might with to provide regarding the Haverhill facility.

As the parties neared

settlement, the Governments, with defendants’ permission, shared a draft of the
proposed consent decree with the proposed intervenors, who provided comments
on October 9, 2012 and January 23, 2013. The governments carefully reviewed
written comments by the proposed intervenors on the draft consent decree.
The same day the complaint was filed, the United States filed a notice of
lodging of the proposed consent decree in this case that would resolve defendants’
CAA liability for all alleged CAA violations, including resolution of all NOVs, and for
future CAA violations associated with installation of the redundant Heat Recovery
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System Generators (Doc. 3). The proposed consent decree would require: (1) the
installation of process equipment to provide redundancy that will allow hot cooking
gases to be routed to a pollution control device instead of vented directly to the
atmosphere in the event of equipment downtime; (2) installation of a continuous
emissions monitor for sulfur dioxide at one bypass vent per process unit (two at the
Haverhill Facility and one at the Gateway Facility); (3) payment of a civil penalty of
$1.995 million, of which 1.27 million will go to the United States, $575,000 to the
State of Illinois, and $150,000 to the State of Ohio; and (4) performance of a lead
hazard abatement supplemental environmental project at a cost of $255,000 at the
Gateway Facility. Thereafter, the United States published that notice of lodging in
the Federal Register for public comments. The proposed intervenors requested
extensions of time of the comment period twice and the Governments allowed these
requests; thus extending the comment period to October 3, 2013. The proposed
intervenors timely filed comments. Also, the Governments received about 1800
pages of additional material from the proposed intervenors after the close of the
comment period.
The proposed intervenors are Ohio residents, who own real property that
neighbors the Haverhill Facility.

On September 14, 2009, the proposed

intervenors filed suit against SunCoke and HCC in the Southern District of Ohio,

Graff, et al. v. Haverhill North Coke Co. et al., 1:09-cv-0670. The complaint in the
Southern District of Ohio alleges claims under the citizen suit provision of the CAA,
a claim pursuant to the imminent and substantial endangerment provision of the
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Resource Conservation & Recovery Act (“RCRA”) and Ohio common law claims
such as negligence, nuisance, trespass, ultrahazardous activity or abnormally
dangerous activity and intentional infliction of emotional distress. The Ohio suit
includes broader claims that extend beyond the complaint at bar.
On November 6, 2023, the proposed intervenors filed the motion to
intervene (Doc. 20).

Both defendants and plaintiffs filed their responses on

November 25, 2013 (Docs. 25 & 26) and the proposed intervenors filed a reply on
December 5, 2013 (Doc. 30). On April 10, 2014, the Court deferred ruling on the
motion to intervene finding that it was premature as the Governments were still
considering public comments on the proposed consent decree (Doc. 38).

On

August 11, 2014, plaintiffs moved to approve the proposed consent decree (Docs.
40 & 41). That same day, defendants filed a non-opposition to plaintiffs’ motion
to enter consent decree (Doc. 42). As the motion to intervene is ripe, the Court
turns to address the merits.
II. Applicable Standard
In considering a motion to intervene, the Court must accept as true the
nonconclusory allegations of the motion. Id. “[C]ourts have been reluctant to
interpret statutes to grant an unconditional right to intervene to private
parties.” Phar-Mor, Inc. v. Coopers & Lybrand, 22 F.3d 1228, 1232 (3d
Cir.1994) (construing Rule 24(a)(1) narrowly in the context of the right of private
parties to intervene in bankruptcy cases under 11 U .S.C. § 1109(b)); Fuel Oil

Supply & Terminaling v. Gulf Oil Corp., 762 F.2d 1283, 1286 (5th
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Cir.1985) (same). “The statutes that do confer an absolute right to intervene
generally confer that right upon the United States or a federal regulatory
commission.” Id. (citing C.

Wright

&

A.

Miller, Federal

Practice

and

Procedure, Civil § 1906).
Federal Rule of Civil Procedure 24(a), subtitled “Intervention of Right,”
provides:
On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the
subject of the action and is so situated that the disposing of the action
may as a practical matter impair or impede the movant's ability to
protect its interest, unless existing parties adequately represent that
interest.
Here, the Court finds that intervention is not warranted under either Rule
24(a)(1) or Rule 24(a)(2). As stated in their pleadings, the proposed intervenors
wish to intervene in this action seeking to sever/transfer the claims against the
Haverhill facility to the Southern District of Ohio where their CAA citizen suit,
which is much broader than this action, is pending. They reiterate that they do
not seek intervention to prosecute a complaint in this judicial district, but instead
seek to: (a) sever an improperly joined defendant and transfer that portion of the
action to the Southern District of Ohio and (2) challenge the adequacy of the
proposed consent decree.

The Court finds that these reasons do not support

intervention; but that these reasons along with others detailed below actually
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support denying intervention.
First, the Court notes that defendant HCC was not improperly joined in this
lawsuit. The governments’ claims in this case against the Haverhill Facility and the
Gateway Facility arose out of the “same transactions or occurrences” and many of
the questions of law and fact are common to both facilities. Both facilities are
owned and operated by affiliated companies, produce the same product,
metallurgical coke, use the same heat recovery coke oven technology, and employ
the same air pollution devices to minimize emissions.

Also, plaintiffs have

asserted similar CAA claims against the facilities and the relief imposed is the same.
Moreover, defendant HCC has not argued that it was improperly joined; instead it
has actively participated in this this litigation.
Pursuant to Rule 24(a)(1) of the Federal Rules of Civil Procedure, “the court
must permit anyone to intervene who: (1) is given an unconditional right to
intervene by a federal statute[.]” Fed.R.Civ.P. 24(a)(1).

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 citizen
also wishes to enforce.1 Id. at § (b)(1)(B). This section of the citizen-suit provision

1 “(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.”

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(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.
As to Rule 24(a)(1), the Court finds that the proposed intervenors do not have
a right to intervene under Rule 24(a)(1) in that they already have a CAA suit on file
in the Southern District of Ohio that is much broader than the one at bar. The
complaint in the Southern District of Ohio does contain claims under the CAA but
also includes claims arising under Ohio state common law based in tort which are
based on different facts and different claims of relief. The intervention clause
applies when the claims of the intervenors and the claims of the United States are
the identical and that is not the case here. See USA v. Dominion Energy, Inc. et al.,
13-03086; 2014 WL1476600 *5 (C.D. Ill. April 15, 2014)( “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.”). The Court agrees with the reasoning set forth by District Judge
Myerscough in Dominion Energy:
“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
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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. 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 against defendants
for violations the United States chose not to prosecute.”

Id.

Here, the proposed intervenors are seeking intervention to sever the claims of

the Haverhill portion of this action and to transfer those claims to the Southern
District of Ohio where its broader complaint is pending. These claims clearly
differ from the allegations asserted in this lawsuit.

To allow the proposed

intervenors to intervene based on allegations that differ from those of the United
States would essentially gut the citizen-suit provision. Thus, the Court finds the
proposed intervenors do not have a statutory right to intervene under Rule 24(1).
As to Rule 24(a)(2), the Seventh Circuit has parsed this language into a
four-part test, under which a party wishing to intervene of right must show (1)
timeliness; (2) an interest relating to the subject matter of the main action; (3) at
least potential impairment of that interest if the action is resolved without the
intervenor; and (4) lack of adequate representation by existing parties. E.g., Reid

L. v. Ill. State Bd. of Educ., 289 F.3d 1009, 1017 (7th Cir. 2002). All these
requirements

must

be

met

before

intervention

Goldschmidt, 673 F.2d 182, 185 n. 4 (7th Cir.1982).
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is

allowed. Wade

v.

Under this standard, the Court finds that the proposed intervenors cannot
establish a lack of adequate representation by the existing parties. The Court finds
that the record reflects that the Governments have adequately represented them in
this litigation and have thoroughly considered their positions prior to and during
this litigation. As stated above, even though not technically a party to this case, the
proposed intervenors have been participating actively in this case as if they were
parties in this litigation. They have submitted comments in November 2012 and
January 2013, made comments on the proposed consent decree prior to its
lodging, met and conferred with the plaintiffs about their concerns. Further, the
proposed intervenors requested and received two extensions of time to submit
comments after the proposed consent decree was lodged. In addition, after the
public comment period expired, the proposed intervenors submitted about 1800
pages of documents to the Governments to review.

In response to all the

comments, the Goverments prepared a Responsive Summary that provides a
detailed response to all of the substantive comments received (Doc. 41-1). The
Responsive Summary included responses to comments that pertained to other
potential claims that are not alleged in the complaint such as claims of trespass and
intentional infliction of emotional distress as alleged in the Graff litigation. After
an extensive review of the comments received, the Governments believed that the
proposed consent decree is fair, reasonable and consistent with the CAA and in the
public interest. While the Governments may have not agreed with the proposed
intervenors comments or positions, it does not mean that the Governments were
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not diligent in pursuing this litigation or that the Governments were not adequately
representing the proposed intervenors. Thus, the proposed intervenors’ interests
have been addressed.
Accordingly, the Court DENIES the proposed intervenors’ motion to
intervene (Doc. 20).
IT IS SO ORDERED.
Signed this 7th day of November, 2014.

Digitally signed
by David R.
Herndon
Date: 2014.11.07
16:16:35 -06'00'

United States District Court

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