Shenandoah Riverkeeper et al v. Ox Paperboard, LLC

Filing 12

ORDER GRANTING STATE OF WEST VIRGINIA'S UNOPPOSED MOTION 10 TO INTERVENE AS PLAINTIFF. WVDEP is ordered to file forthwith its Complaint in Intervention. Signed by Chief Judge John Preston Bailey on 5/16/2011. (tlg)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

SHENANDOAH RIVERKEEPER and
POTOMAC RIVERKEEPER, INC.,
Plaintiffs,
v.

Civil Action No. 3:11-CV-17
(BAILEY)

OX PAPERBOARD, LLC,
Defendant.
ORDER GRANTING STATE OF WEST VIRGINIA’S
UNOPPOSED MOTION TO INTERVENE AS PLAINTIFF
Currently pending before this Court is the State of West Virginia’s Unopposed Motion
to Intervene as Plaintiff [Doc. 10], filed May 10, 2011. Specifically, the State of West
Virginia, by and through the West Virginia Department of Environmental Protection, moves
for an order allowing it to intervene in this action as a party plaintiff. Neither the plaintiffs,
Shenandoah Riverkeeper and Potomac Riverkeeper, Inc., nor the defendant, Ox
Paperboard, LLC, oppose the motion. For the reasons that follow, this Court will GRANT
the motion.
BACKGROUND
On March 3, 2011, Shenandoah Riverkeeper and Potomac Riverkeeper, Inc.
(collectively “Citizen Groups”) instituted this action as a citizen suit under § 505 of the Clean
Water Act (“CWA”), 33 U.S.C. § 1365 [Doc. 1]. The suit seeks declaratory relief, injunctive
relief, and the imposition of civil penalties by the Citizen Groups against Ox Paperboard,
LLC (“Ox Paperboard”) for alleged violations of the CWA for discharges of the specific
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pollutants of biochemical oxygen demand (“BOD”), total suspended solids (“TSS”), and
ammonia nitrogen from its Halltown Mill facility located in Jefferson County, West Virginia.
The Citizen Groups also allege that Ox Paperboard is in violation of the conditions and
limitations contained in its West Virginia National Pollutant Discharge Elimination System
Permit Number WV0005517 (the “Permit”), which was issued by the West Virginia
Department of Environmental Protection (“WVDEP”) pursuant to § 402 of the CWA.
On May 10, 2011, the WVDEP filed the instant Motion to Intervene as Plaintiff [Doc.
10] and in support thereof attached a proposed Complaint in Intervention [Doc. 10-1]. The
proposed Complaint seeks declaratory relief, injunctive relief, and the imposition of civil
penalties against Ox Paperboard for alleged violations of the discharges of pH, total
residual chlorine (“TRC”), dissolved oxygen (“DO”), and BOD five-day testing, as well as
failure to perform monitoring and/or reporting as required by the Permit for TRC, chloride,
total recoverable zinc, total recoverable aluminum, total recoverable lead, total recoverable
copper, TSS, DO, and flow measurements. In addition, the WVDEP alleges water quality
violations, inaccurate reporting in the required Discharge Monitoring Reports (“DMRs”), and
failure to properly maintain the sequencing batch reactor (“SBR”) system at the facility as
required by the Permit. Because WVDEP’s action arises from the same nucleus of
operative facts, shares common questions of law and fact, and forms part of the same case
or controversy as the action brought by the Citizen Groups, WVDEP asks that it be granted
permission to intervene as a matter of right under Rule 24(a)(2) of the Federal Rules of
Civil Procedure or, alternatively, as a matter of judicial discretion under Rule 24(b)(1)(B).
Neither the Citizen Groups nor Ox Paperboard oppose WVDEP’s intervention.

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DISCUSSION
I.

Applicable Standards
A.

Intervention of Right

Pursuant to Rule 24(a), “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 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.” Fed. R. Civ. P. 24(a)
(emphasis added).
B.

Permissive Intervention

Pursuant to Rule 24(b), “the court may permit anyone to intervene who: (A) is given
a conditional right to intervene by a federal statute; or (B) has a claim or defense that share
with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1) (emphasis
added). Under this same section, “the court may permit a federal or state governmental
officer or agency to intervene if a party’s claim or defense is based on: (A) a statute or
executive order administered by the officer or agency; or (B) any regulation, order,
requirement, or agreement issued or made under the statute or executive order.” Fed. R.
Civ. P. 24(b)(2) (emphasis added). Finally, in determining whether permissive intervention
is proper, “the court must consider whether the intervention will unduly delay or prejudice
the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
II.

Analysis
A.

Intervention of Right

In its motion, the WVDEP argues that it has a right to intervene pursuant to Rule
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24(a)(2). To intervene under this provision, an absentee must satisfy three elements,
namely that: (1) the absentee claims an interest relating to the property or transaction that
is the subject of the action, (2) the absentee is so situated that the disposition of the action
may as a practical matter impair or impede the absentee’s ability to protect that interest,
and (3) the existing parties do not adequately represent the absentee’s interest. See Fed.
R. Civ. P. 24(a)(2). The Court will consider each element, in turn.
1.

Sufficient Interest

First, the WVDEP argues that it has an interest relating to the waters that are the
subject of the Citizen Groups’ action against Ox Paperboard. This Court agrees.
It is well established that “interests in property are the most elementary type of right
that Rule 24(a) is designed to protect.” Diaz v. Southern Drilling Corp., 427 F.2d 1118,
1124 (5th Cir. 1970). This “most elementary type of right” extends to a state’s legally
protectable interest in the quality of its waterways. See Georgia v. U.S. Army Corps of
Eng’rs, 302 F.3d 1242 (11th Cir. 2002) (holding that Florida had legally protectable interest
in the quality and quantity of water in the river, river basin, and bay into which the river
flowed, for purposes of determining its right to intervene).
In the instant case, the WVDEP undisputably has a legal interest in enforcing and
ensuring compliance with the terms and conditions of the Permit it issued Ox Paperboard.
This interest is further supported by the WVDEP’s authority under the West Virginia Water
Pollution Control Act (“WPCA”), W.Va. Code § 22-11-22, to regulate discharges into the
waters of West Virginia. Accordingly, this Court finds the first element satisfied.
2.

Effect of the Action on the Interest

Next, the WVDEP argues that it is so situated that the disposition of the Citizen
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Groups’ action may as a practical matter impair or impede the WVDEP’s ability to protect
its interest in the waters of West Virginia. This Court agrees.
The focus of this requirement is whether the absentee will be practically
disadvantaged if not permitted to intervene, not whether the absentee will be legally bound
as a matter of res judicata. See Spring Constr. Co. v. Harris, 614 F.2d 374 (4th Cir.
1980). However, several courts have held that stare decisis by itself supplies the practical
disadvantage that is required for intervention under Rule 24(a)(2). See Stone v. First
Union Corp., 371 F.3d 1305 (11th Cir. 2004).
In the instant case, resolution of the dispute between the Citizen Groups and Ox
Paperboard may affect the conditions under which Ox Paperboard discharges pollutants
into the waters of West Virginia. If not granted intervention, the WVDEP would be forced
to bring a separate action concerning the same subject of the Citizen Groups’ action – the
discharge of pollutants in violation of the Permit. Consequently, WVDEP faces a potential
disadvantage in the form of the stare decisis effect of any decision regarding interpretation
of the Permit in the Citizen Groups’ action. Accordingly, this Court finds the second
element satisfied.
3.

Adequacy of Representation

Finally, the WVDEP argues that the Citizen Groups’ action will not adequately
represent its interests. This Court agrees.
The most important factor in determining adequacy of representation is how the
interest of the absentee compares with the interests of the present parties. See Brennan
v. N.Y.C. Bd. of Educ., 260 F.3d 123 (2d Cir. 2001).
In the instant case, there is no question that the WVDEP has a more significant
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interest than the Citizen Groups in the waters alleged to have been polluted by Ox
Paperboard. First, the WVDEP issued the Permit that the Citizen Groups allege Ox
Paperboard violated. Second, the WVDEP has alleged violations that are not covered in
the Citizen Group’s action. In fact, by not opposing the instant motion, this Court can only
assume that the Citizen Groups do not dispute that the WVDEP has a more significant
interest for purposes of this element. Accordingly, this Court finds that the third element
is satisfied. As a result, this Court finds that the WVDEP has a right to intervene in this
action as a matter of right pursuant to Rule 24(a)(2).
B.

Permissive Intervention

Alternatively, the WVDEP argues that it should be permitted to intervene pursuant
to Rule 24(b)(1)(B) because the WVDEP “has a claim or defense that shares with the main
action a common question of law or fact” and because intervention will not “unduly delay
or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(1)(B) &
24(b)(3). However, to the extent that this Court has already concluded that the WVDEP
has a right to intervene, this Court need not decide whether the requirements for
permissive joinder are satisfied.
CONCLUSION
For the foregoing reasons, this Court finds that the WVDEP’s Motion to Intervene
as Plaintiff [Doc. 10] should be, and hereby is, GRANTED. Accordingly, the WVDEP is
hereby ORDERED to file forthwith its Complaint in Intervention.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.

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DATED: May 16, 2011.

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