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WildEarth Guardians v. IRG Bayaud, LLC

United States District Court, D. Colorado

November 4, 2016




         THIS MATTER comes before the Court on the Putative Intevenor the Colorado Department of Public Health and Environment's (CDPHE) Motion to Intervene (# 90), the Defendants, the City and County of Denver (the City), IRG Bayaud, LLC (IRG), and Brent Anderson's Responses (# 95, 96) and the CDPHE's Reply (# 98). CDPHE also submitted a Notice in Response to Hearing (# 127) in further support of its request to intervene.

         I. Background

         Given the limited scope of this Order, the following represents an abbreviated version of the material facts. Plaintiff WildEarth Guardians (“WildEarth”), a nonprofit organization dedicated to environmental protection, initiated this lawsuit against Defendants under the Citizens' provisions of the Clean Water Act (CWA), 33 U.S.C. § 1251 and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B). WildEarth's lawsuit alleges that Defendants violated the terms of a National Pollutant Discharge Elimination System (NPDES) Permit issued by the CDPHE pursuant to the CWA and the parallel state statute, the Colorado Water Quality Control Act (WQCA), C.R.S. § 25-8-101, et seq.[1] CDPHE seeks to intervene in this action.

         In 2006, the CDPHE documented the discharge of contaminated groundwater from former General Chemical Corporation Facility (“the Site”) into the South Platte River. IRG purchased the Site in 2008. Following this sale, the CDPHE issued NPDES Permit No. CO-0046329 (“the Permit”) to IRG. The Permit allows for the limited discharge of pollutants from the Site, but requires IRG to conduct testing, comply with effluent limitations, and issue monthly reports to the CDPHE.

         From October 2008 through December of 2013, IRG complied, to a disputed degree, with the Permit.[2] In January of 2014, IRG stopped submitting reports to the CDPHE. Instead, it submitted a “Withdrawal of Renewal Application” and a “Notice of Withdrawal” to the CDPHE, requesting that the Permit be discharged. IRG later sent a letter to CDPHE, stating its belief that the Permit was expired. The CDPHE responded that the Permit remained in effect.

         When the CDPHE refused to terminate the Permit, IRG filed a lawsuit against the CDPHE in state court seeking, among other relief, a declaratory judgment that the Permit expired and a hearing to review the CDPHE's conclusions that a discharge of pollutants into the South Platte was continuing to occur. As relevant here, in July 2014, District Court for Denver County determined that 1) the Permit remains in effect and 2) the CDPHE did not abuse its discretion in concluding that IRG did not meet the requirements for termination of the Permit, because there continued to be a discharge from the Site. IRG has appealed that decision to the Colorado Court of Appeals, and the Court of Appeals has stayed resolution of the appeal pending further proceedings in this Court.

         Meanwhile, WildEarth initiated the instant lawsuit in April of 2014, asserting three claims against IRG, Mr. Anderson, and the City: (1) IRG and Mr. Anderson violated their NPDES Permit and thus the CWA; (2) in the alternative, if the Permit is no longer in effect, all Defendants are illegally discharging pollutants without a permit; and (3) hazardous waste from Defendants' Site is imminently and substantially endangering the public health and environment in violation of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. WildEarth seeks, among other relief, an order requiring IRG to comply with the Permit. Discovery in this action was completed in mid-2015, both parties filed dispositive motions by September of 2015 (which the Court has since denied), and the matter is set for a Pretrial Conference in January 2017.

         On October 28, 2015, CDPHE filed a motion to intervene[3] (# 91), seeking intervention both as a matter of right and, alternatively, for permissive intervention. Simultaneously, it filed a proposed Complaint in Intervention (# 90) that asserted a single claim under state law: that the Defendants' noncompliance with the Permit constituted a violation of 5 CCR § 1002-61. Following a discussion of CDPHE's motion at a hearing before this Court on November 2, 2016, CDPHE modified its request. It now asserts (# 127) that it “seeks to intervene . . . as to the issue of Defendants' liability under the Clean Water Act outlined in Plaintiff's First Claim for Relief.” The CDPHE also indicates that it wishes to be heard on the scope of any remedy that the Court might provide upon the Plaintiff's First Claim for Relief.

         Defendants IRG and Mr. Anderson oppose intervention.[4] They contend that: 1) they would suffer prejudice as a result of the late entry, as discovery would have to be re-opened and further proceedings to accommodate CDPHE will delay the case proceeding to trial; 2) the CDPHE will not be prejudiced if intervention is denied; and 3) the CDPHE's interest is adequately advanced by WildEarth.

         I. Analysis

         Motions to intervene are governed by Fed.R.Civ.P. 24, which includes intervention as a matter of right and permissive intervention. Intervention as a matter of right is proper upon timely application if the intervenor has a statutory right to intervene or an interest relating to the subject matter of the action, and is so situated that disposition of the action may impair the intervenor's ability to protect that interest. Fed.R.Civ.P. 24(a). Permissive intervention may be allowed where a statute grants a conditional right to intervene, or where an intervenor's claim or defense and the action have a common question of law or fact. Fed.R.Civ.P. 24(b). The Tenth Circuit follows a “liberal line in allowing intervention.” WildEarth Guardians v. USFS, 573 F.3d 992, 995 (10th Cir. 2009).

         The Court begins with intervention as a matter of right. In doing so, the Court first addresses whether the motion is timely, which involves examining whether any late intervention will prejudice the non-movant. The Court then turns to the movant's interest in the action's subject matter and whether that interest may be impaired by the action's disposition.[5] San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1188 (10th Cir. 2007) (en banc).

         A. Timeliness and ...

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