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West Goshen Sewer Authority v. United States Environmental Protection Agency

United States District Court, Third Circuit

July 29, 2013



L. FELIPE RESTREPO, District Judge.

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 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.)

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, "" 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 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 ...

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