# United States of America v. Drummond Company Inc

> District Court, N.D. Alabama · August 31, 2020

URL: https://www.frixlaw.com/law-library/cases/9989693

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** August 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9989693

## How later opinions describe it (automated extraction)

- holding the intervenors would be “limited to challenging the portion of the remedy” with which they had a right to intervene under Rule 24(a)
- noting the court may require an intervenor to contribute towards another party’s attorney’s fees when they have benefitted from the other party’s prosecution of the suit before they intervened

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA, )
AND THE JEFFERSON COUNTY )
BOARD OF HEALTH, )
)
Plaintiffs, ) Civil Action Number
) 2:19-cv-00240-AKK
v. )
)
DRUMMOND COMPANY, INC. )
D/B/A ABC COKE, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

The United States (representing the Environmental Protection Agency) and the
Jefferson County Board of Health filed this action against Drummond Company,
Inc. for violations of the Clean Air Act (the “CAA”) and Drummond’s Title V
permit. Doc. 1. The parties have resolved their dispute and have asked the court to
approve their consent decree. Docs. 7-10. Shortly after the parties filed their motion
to approve the consent decree, doc. 7, Gasp, “a nonprofit group focused on fighting
air pollution,” filed a motion to intervene pursuant to Federal Rule of Civil Procedure
24(a). See doc. 12 at 1. The parties concede that Gasp has the statutory right to
intervene under Rule 24(a)(1) and 42 U.S.C. §§ 7604(a)(1), 7604(b)(1)(B). See doc.
13 at 3. And they concede also that Gasp’s motion is timely. See doc. 13 at 2 and
Fed. R. Civ. P. 24(a)(1). The only issue of contention is the scope of the proposed
intervention, with Gasp contending it has the right to participate fully in this matter
as a party. Doc. 16 at 2. On the other hand, the parties would like to constrain

Gasp’s intervention – basically to opposing the issuing of the consent decree and to
appealing this court’s decision. Doc. 13 at 2. After a full review of the motion, the
briefings (docs. 12-16), and relevant case law, this court concludes that the motion

to intervene is due to be granted.
I.

The CAA provides a person a right to sue “on his own behalf— . . . against any
person . . . who is alleged to have violated . . . an emission standard or limitation
under this chapter . . . ,“ 42 U.S.C. § 7604 (a)(1), or who is “alleged to have violated
. . . or to be in violation of any condition of [its] permit[,]” 42 U.S.C. § 7604 (a)(3).
But no person or entity can commence a civil suit “if the Administrator or State has

commenced and is diligently prosecuting a civil action . . . to require compliance
with the standard, limitation, or order[.]” 42 U.S.C. § 7604(b)(1)(B). Instead, in
that case, the entity or “person may intervene as a matter of right.” Id. Indeed, courts
have long recognized that “[t]he citizen suit provision of the Clean Air Act provides

a right to intervene to enforce the law[.]” Del. Valley Citizens’ Council for Clean
Air v. Pennsylvania, 674 F.2d 970, 973 (3d Cir. 1982). Moreover, the right provided
by Section 7604(b)(1)(B) is “an unconditional right to intervene” as required by Rule
24(a)(1) in these circumstances. See In re Volkswagen “Clean Diesel” Mktg., Sales
Practice, & Products Liab. Litig., 894 F.3d 1030, 1039-1040 (9th Cir. 2018).

II.
This lawsuit is before the court on the Environmental Protection Agency’s and
Jefferson County Board of Health’s contentions against Drummond for “violations

of the requirements of the CAA” and violations of its permit. Doc. 1 at §§ 1, 96-99.
As a “person” for the purposes of the CAA, Gasp may intervene in this action as a
matter of right. See 42 U.S.C. § 7604(b)(1)(B). Although the parties do not contest
this right, the parties request nonetheless that the court limit the scope of Gasp’s

intervention. Doc. 13 at 2-3. In particular, the parties ask the court to limit Gasp “to
only filing a brief in opposition to the motion to enter [the consent decree],
participating in any oral argument, and having a right to appeal.” Id. at 3. In support

of their position, the parties note that this court has the power and discretion to place
conditions on an intervenor’s involvement in a case to a degree. Id.
The parties are generally correct, and, indeed, certain instances require that the
court place conditions on an intervenor’s participation in a case. But, the court’s

power and discretion have limits. A review of Eleventh Circuit case law shows the
requested conditions are not within the power provided by Federal Rule of Civil
Procedure 24, the court’s inherent case management authority, or the CAA.
A.

The plain text of Rule 24(a)(1) does not place any conditions on the intervenor’s
status. Fed. R. Civ. P. 24(a)(1). Further, “the [intervenors] are to be treated as
original parties and stand on equal footing with the original parties.” Chiles v.
Thornburgh, 865 F.2d 1197, 1215 (11th Cir. 1989). See also In re Bayshore Ford

Truck Sales, Inc., 471 F.3d 1233, 1246 (11th Cir. 2006) (same). Even so, an advisory
committee note to Rule 24(a) suggests the court has power to place “appropriate
conditions or restrictions [on an intervenor] responsive among other things to the
requirements of the efficient conduct of the proceedings.” Fed. R. Civ. P. 24(a)

advisory committee note to the 1966 amendment. The Eleventh Circuit has adopted
this view and acknowledged the court’s power to place conditions on intervenors in
several instances. United States v. S. Fla. Water Mgmt. Dist., 922 F.2d 704, 710, n.

9 (11th Cir. 1991) (citing the 1966 advisory committee note to Rule 24(a) and
stating, “the District Court may choose to condition their intervention in the case on
such terms as will be consistent with the fair, prompt conduct of this litigation.”).
But, it is unclear where this power ends, and, critically, the power is not unfettered.

For example, the Eleventh Circuit has held that a grant of intervention “for the
limited purpose of responding to [the defendant’s] motion for injunctive relief” was
improper. In re Bayshore Ford Truck Sales, Inc., 471 F.3d at 1247, 1247, n.33. The
court noted, “we do not believe that a court may impose conditions that effectively
rewrite” Rule 24. Id.

The court may, however, limit intervention to only those claims in which
intervenors have a right to intervene.1 After all, “the scope of [an intervenor’s]
participation in the case should correspond with the scope of [the intervenor’s]

interest.” S. Fla. Water Mgmt. Dist., 922 F.2d at 707, n. 4. Such a limitation follows
“standard party practice” where “Defendants . . . right to participate in the case
extends only to issues relating to the counts for which they are named parties.” Id.
at 707, n. 4. But this limitation does not render the results the parties seek. As the

parties concede, Gasp is not attempting to expand the scope of the litigation at all.2
Consequently, this is not a situation where the court may “limit the ability of the
intervening parties to expand the scope of a proceeding beyond the issues litigated

by the original parties[.]” Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d
1234, 1269 (11th Cir. 2001).

1 See United States v. S. Fla. Water Mgmt. Dist., 922 F.2d 704, 707, 711 (11th Cir. 1991)
(recommending the intervenor’s involvement in the case be limited to those claims in which they
had the right to intervene); see also Howard v. McLucas, 782 F.2d 956, 959-961 (11th Cir. 1986)
(holding the intervenors would be “limited to challenging the portion of the remedy” with which
they had a right to intervene under Rule 24(a)).

2 See doc. 13 at 4 (“Gasp’s proposed complaint in intervention (DN 12-4) states the same claims
for relief as the complaint filed in this matter by the United States and JCBH.”). To the extent the
parties’ Non-Opposition to the Motion is arguing that Gasp’s intervention will “alter[] the nature
of these proceedings[,]” such argument will be addressed in subsection D. Doc. 13 at 5.
Put simply, under Rule 24(a)(1) and the relevant case law, Gasp has the right to
intervene in the entire case.

B.
Prohibiting Gasp from filing a complaint or conducting discovery would exceed
the court’s discretionary case management authority. The parties are generally

correct that the court has the authority to manage its docket. And, certainly, the court
may place conditions that are related to its “management of pre-trial activities,
including discovery and scheduling.” Johnson, 263 F.2d at 1269 (citing Chudasama
v. Mazda Motor Corp., 123 F.2d 1353, 1366 (11th Cir. 1997) and United States v.

McCutcheon, 86 F.3d 187, 190 (11th Cir. 1996)). This includes placing limits on
discovery, imposing deadlines, and other “housekeeping” matters.3 Here, however,
the parties have requested more than limitations related to case management. The

parties want the court to foreclose Gasp from filing its complaint and conducting any
discovery. Doc. 13 at 3. The court declines to do so because its case management
discretion “is not unfettered,” and this discretion should not “materially prejudice”
“a litigant’s rights[,]” Chudasama, 123 F.2d at 1366-67, especially where, as here,

3 See Howard, 782 F.2d at 961 (recommending the district court “limit discovery narrowly to the
single issue which intervenors are permitted to address and set and enforce strict time limits”); S.
Fla. Water Mgmt. Dist., 922 F.2d. at 710, n. 9 (suggesting the district court could “allow the other
parties to produce documents in a single set for the [intervenors] to share . . . ,” and “require the
[intervenors] to respond to interrogatories regarding each of their members who claim an interest
in the proceedings”); McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1073, n. 7 (5th Cir. 1970)
(noting the court may require an intervenor to contribute towards another party’s attorney’s fees
when they have benefitted from the other party’s prosecution of the suit before they intervened).
the court has not entered any case management deadlines and discovery has not
commenced.

C.

The CAA also does not provide authority for limiting the scope of Gasp’s
intervention. Instead, as mentioned previously, the CAA allows intervention “in any
such action . . . as a matter of right.” See 42 U.S.C. § 7604(b)(1)(B). Section
7604(b)(1)(B) prohibits only the filing of a separate citizen suit “if the Administrator
or State has commenced and is diligently prosecuting a civil action . . . .” Id.
Therefore, because Gasp does not seek to file a separate lawsuit, it is irrelevant to

the court’s analysis that the EPA is already “diligently prosecuting” this action.4
D.
Finally, the pending motion for entry of the consent decree does not change the

analysis. Congress enacted the CAA citizen suit provision to allow citizens to “goad
the responsible agencies to more vigorous enforcement of the anti-pollution
standards . . . .” Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218 (3d Cir.
1979) (citing S. Rep. No. 1196, 91st Cong., 2d Sess. 2, 35-36 (1970) and 116 Cong.

Rec. (1970) at pp. 32902, 32918). In doing so, Congress provided an unconditional

4 See Doc. 13 at 2, n.1. (“Permitting the proposed complaint by Gasp to be filed, where the United
States is already ‘diligently prosecuting’ the same claims, is not at all clear in light of the statutory
bar under Section 304(b)(1)(B). . . The United States reserves its right to challenge any such
pleadings . . . .”).
right to citizens to intervene in actions filed by the government so that citizens can
advocate for full enforcement of the CAA. 42 U.S.C. § 7604(b)(1)(B). That the

government has reached a proposed settlement with the alleged tortfeasor does not
change the analysis. In fact, where, as here, the parties agreed on settlement terms
before the suit was filed, an argument can be made that a citizen’s right to intervene

may be even more essential. As GASP notes, the parties filed the proposed consent
decree and the complaint on the same day. See docs. 1 & 2-1 (filed Feb. 8, 2019).
After a period for public comment, the parties moved for the court to enter the
consent decree. Doc. 7 (filed Jan. 14, 2020). Prior to this motion, allegedly, Gasp

had no reason to believe the EPA and the Jefferson County Board of Health would
not fully enforce the CAA (assuming, of course, Gasp is correct that the proposed
consent decree does not fully enforce the CAA). Doc. 12 at 8. And shortly after the

parties’ motion to enter the consent decree, Gasp timely filed the motion to intervene.
Doc. 12. In that respect, that a consent decree “has already been lodged” and
“resolves all of the claims alleged in the complaint,” docs. 13 and 14, is not a proper
basis to limit Gasp’s intervention. To hold otherwise would mean that the

government and those bound by the CAA can limit an intervenor’s ability to enforce
the CAA by simultaneously filing a consent decree and a complaint. Such a practice
would severely limit citizens’ unconditional right to intervene and would thwart

Congress’s purpose in enacting Section 7604(b)(1)(B).
III.
To close, Gasp has an unconditional, statutory right to intervene under Federal
Rule 24(a)(1).. There is no support under Rule 24(a)(1), the Eleventh Circuit
precedent, or the CAA to impose the limitations the parties seek. Therefore, Gasp’s
motion to intervene, doc. 12, is GRANTED. Gasp may file its Proposed Complaint
in Intervention, doc. 12-4, as a separate docket entry. The parties’ Motion to Enter
the Consent Decree, doc. 7, is STAYED pending a 90-day discovery period and is
SET for a hearing at 3:30 p.m. on December 18, 2020.° Gasp’s brief in opposition,
if any, is due on December 7, 2020, and the Parties’ replies, if any, are due December
15, 2020. Finally, a joint case management plan that factors in the November 30,
2020 cut-off for discovery is due by September 15, 2020.
DONE the 31st day of August, 2020.

— Aba bho tee
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

> The court will continue to monitor the developments related to Covid-19 and will let the parties
know by the end of November whether the hearing will be in person or by video conference.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989693. Public record. Not legal advice.