Department of Natural Resources & Environmental Control v. Mountaire Farms of Delaware, Inc., C.A. No. 18-838 (MN)

375 F.Supp.3d 522

State of Delaware DEPARTMENT OF NATURAL RESOURCES & ENVIRONMENTAL CONTROL, Plaintiff,

v.MOUNTAIRE FARMS OF DELAWARE, INC., Defendant.

C.A. No. 18-838 (MN)

United States District Court, D. Delaware.

Signed March 25, 2019

Devera B. Scott, William J. Kassab, Delaware Department of Justice, Dover, DE – attorneys for Plaintiff.

F. Michael Parkowski, Michael W. Arrington, Michael W. Teichman, Parkowski, Guerke & Swayze, P.A., Wilmington, DE – attorneys for Defendant.

Chase T. Brockstedt, Stephen A. Spence, Baird Mandalas Brockstedt, LLC, Lewes, DE; Philip C. Federico, Brent Ceryes, Schochor, Federico and Staton, P.A., Baltimore, MD – attorneys for proposed Intervenors.

MEMORANDUM OPINION

NOREIKA, U.S. DISTRICT JUDGE:

Presently before the Court is the motion of Gary and Anna-Marie Cuppels and more than 690 others similarly situated (collectively, "Intervenors") to intervene in this case pursuant to Rule 24 of the Federal Rules of Civil Procedure and the rights of intervention afforded by the Clean Water Act ("CWA") and the Federal Resource Conservation and Recovery Act ("RCRA"). (D.I. 4). For the reasons set forth below, the motion to intervene is GRANTED.

I. BACKGROUND

The Intervenors are residents and property owners who reside within five miles of a poultry processing plant and disposal facilities owned and operated by Defendant Mountaire Farms of Delaware, Inc. and its related companies, Mountaire Corporation and Mountaire Farms, Inc. (collectively, "Mountaire"). (D.I. 4 at 1). The Intervenors allege that "Mountaire has disposed of billions of gallons of highly contaminated wastewater and liquefied sludge on lands near the Intervenors' residences," which has seeped into the groundwater and caused nitrates to spread "for miles" and reach "dangerously high" concentrations in the surrounding area. (Id. at 2). The Intervenors claim that the groundwater contamination has rendered their water undrinkable, caused adverse health effects and caused the Intervenors' property to lose "substantial value." (Id. ).

On May 2, 2018, the Intervenors sent letters to Mountaire and the State of Delaware Department of Natural Resources & Environmental Control ("DNREC") notifying them of Intervenors' intent to sue Mountaire for violations of the CWA and RCRA under the relevant citizen-suit provision of each statute. (See D.I. 4-3 at pgs. 4-16 of 83; see also D.I. 9 at 1). In their letter to DNREC, the Intervenors requested to meet with DNREC to discuss concerns about Mountaire's alleged misconduct and to offer assistance in investigating. (D.I. 9 at 1-2; see also D.I. 4-3 at pgs. 15-16 of 83). DNREC declined to "commit" to a meeting. (D.I. 9 at 2). The Intervenors followed up with DNREC with requests for meetings and offers of the assistance of experts retained by Intervenors. (D.I. 9 at 2; see also id. (follow-up requests sent on May 22, May 25 and May 30 of 2018) ). DNREC did not respond to the follow-up requests. (Id. ).

On June 4, 2018, DNREC initiated the present action against Mountaire for violations of the CWA, 33 U.S.C. § 1251 et seq. , and RCRA, 42 U.S.C. § 6901 et seq. (D.I. 1 ¶¶ 31-39). In its Complaint, DNREC requests that the Court declare Mountaire to be in violation of the CWA and RCRA, and DNREC seeks an injunction that, inter alia , prohibits Mountaire from further contaminating groundwater and requires Mountaire to investigate the contamination and provide residents with an alternative water supply. (Id. at 7-8 (Prayer for Relief) ). On the same day this case was filed, DNREC filed a parallel proceeding in the Superior Court for the State of Delaware, alleging violations of state environmental laws and referencing the same federal laws at issue in this litigation (i.e. , the CWA and RCRA). (See generally Complaint, DNREC v. Mountaire Farms of Delaware, Inc. , No. S18M-06-002 (Del. Super. Ct. June 4, 2018); see also id. ¶ 3 ("DNREC enforces numerous environmental statutes and regulations, including federal delegation of administration of [RCRA] codified at 42 U.S.C. § 6901 et seq. ; federal delegation of administration of the [CWA] codified at 33 U.S.C. § 1251 et seq. ...") ). DNREC admits that, in the state court action, it is ultimately seeking court approval of a Proposed Consent Decree between DNREC and Mountaire that would "require[ ] Mountaire to pay a civil penalty and take corrective measures that will address its violations of Delaware environmental statutes and regulations, as well as its violations of the CWA and RCRA that are the basis for the Federal Case." (D.I. 8 at 2).

On June 29, 2018, Intervenors filed the present motion to intervene (D.I. 4) and proposed intervenor complaint (D.I. 4-2). The motion seeks intervention as a matter of right under Rule 24(a) primarily based on the statutory rights of intervention provided by the CWA and RCRA, and also seeks permissive intervention under Rule 24(b) in the alternative. (D.I. 4 at 3-4; see also D.I. 9 at 5-8). DNREC and Mountaire oppose intervention.¹ (See D.I. 7 (Mountaire's opposition); D.I. 8 (DNREC's opposition) ).

II. LEGAL STANDARDS

A. Motion to Intervene

Rule 24 of the Federal Rules of Civil Procedure sets out the circumstances by which a person or entity may intervene in an action. Rule 24(a)(1) requires the Court to permit intervention as a matter of right to anyone "given an unconditional right to intervene by a federal statute." FED. R. CIV. P. 24(a)(1). Similarly, Rule 24(a)(2) requires the Court to permit intervention to anyone who "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)(2). Unlike intervention as of right under Rule 24(a), Rule 24(b) affords the Court discretion in allowing intervention of anyone "given a conditional right to intervene by a federal statute" or anyone who "has a claim or defense that shares with the main action a common question of law or fact." FED. R. CIV. P. 24(b)(1)(A) & (B) ; see also Brody By & Through Sugzdinis v. Spang , 957 F.2d 1108, 1124 (3d Cir. 1992) ("Whether to grant permissive intervention under Rule 24(b)... is within the discretion of the district court ...."). A timely motion is a prerequisite to intervention under both Rule 24(a) and Rule 24(b). See FED. R. CIV. P. 24(a) ("On timely motion, the court must permit anyone to intervene who ...."); FED. R. CIV. P. 24(b)(1) ("On timely motion, the court may permit anyone to intervene who ....").

B. Citizen Suits and Intervention under the CWA and RCRA

The CWA and RCRA each provide citizens with a right to initiate civil actions against persons or entities (including the government) who violate the statute or standards, orders, etc. promulgated thereunder. See, e.g. , 33 U.S.C. § 1365(a)(1) (CWA permitting citizen suits alleging any "violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation"); 42 U.S.C. § 6972(a)(1)(A) (RCRA permitting citizen suits alleging any "violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter"); 42 U.S.C. § 6972(a)(1)(B) (RCRA permitting citizen suits against those "who ha[ve] contributed or who [are] contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment"). Both the CWA and RCRA also permit civil actions against the Administrator for failing to perform certain acts or duties that are not committed to the Administrator's discretion. See 33 U.S.C. § 1365(a)(2) ; 42 U.S.C. § 6972(a)(2).

Citizens must satisfy certain notice requirements prior to initiating civil suits under both the CWA and RCRA. See 33 U.S.C. § 1365(b)(1)(A) & (b)(2) (CWA requiring sixty days' notice prior to initiating suit against alleged violator or Administrator); 42 U.S.C. § 6972(b)(1) & (c) (RCRA requiring sixty days' notice prior to initiating suit for certain violations under (a)(1)(A) or against Administrator under (a)(2) ); 42 U.S.C. § 6972(b)(2)(A) (RCRA requiring ninety days' notice prior to initiating suit under hazardous-waste provision at (a)(1)(B) ). The CWA and RCRA also prohibit citizens from filing suits in certain instances where the Administrator or State has already commenced and is diligently prosecuting an action against the alleged violator. See 33 U.S.C. § 1365(b)(1)(B) (CWA diligent-prosecution bar); 42 U.S.C. § 6972(b)(1)(B) & (b)(2)(B)(i) & (C)(i) (RCRA diligent-prosecution bar). RCRA includes additional prohibitions against citizen suits under the hazardous-waste provision where the Administrator or State is engaged in removal or remedial proceedings. See 42 U.S.C. § 6972(b)(2)(B)(ii)-(iv) & (C)(ii)-(iii).

Although the CWA and RCRA include prohibitions on citizen suits where the Administrator or State has already commenced an action, both statutes afford citizens a right to intervene in such a pending action. The CWA provides:

No action may be commenced ... under subsection (a)(1) of this section ... if the Administrator or State has commenced and is diligently prosecuting a civil or criminal 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 citizen may intervene as a matter of right.

33 U.S.C. § 1365(b). Similarly, RCRA provides that, "[i]n any action under subsection (a)(1)(A) of this section in a court of the United States, any person may intervene as a matter of right." 42 U.S.C. § 6972(b). As to actions already commenced by the Administrator or State under the hazardous-waste subsection ...