SOUTH RIVER WATERSHED ALLIANCE, INC. and JACQUELINE ECHOLS v. DEKALB COUNTY, GEORGIA
Civil Action No. 1:19-cv-04299-SDG
IN
Filed 08/31/20
OPINION AND ORDER
This matter is before the Court on Defendant DeKalb County, Georgia‘s (DeKalb) motion to dismiss [ECF 30] and motion to strike [ECF 43]. Following a careful review of the record, and with the benefit of oral argument, DeKalb‘s motion to strike is DENIED and its motion to dismiss is GRANTED.
I. BACKGROUND
The Court treats the following facts as true for purposes of this Order.1 Plaintiff South River Watershed Alliance, Inc. (South River) is a non-profit membership organization which advocates to protect and restore the water quality
and biodiversity of the South River and Chattahoochee River watersheds.2 Plaintiff Jacqueline
DeKalb owns and operates a Water Collection and Transmission System (WCTS) designed to collect and transport wastewater to three locations: (1) DeKalb‘s Snapfinger Creek water treatment facility; (2) DeKalb‘s Pole Bridge Creek water treatment facility; and (3) the City of Atlanta‘s R.M. Clayton water reclamation center.5 Pursuant to specific effluent limitations set forth in National Pollutant Discharge Elimination System (NPDES) permits issued by the Georgia Environmental Protection Department (EPD), DeKalb is required to collect the wastewater, transport it to these facilities, treat it, then discharge it into the respective surface waters.6 According to Plaintiffs, DeKalb has repeatedly spilled
wastewater — including untreated sewage — into surface waters before the wastewater reached the treatment facilities.7
On December 13, 2010, the United States and Georgia — on behalf of the United States Environmental Protection Agency (EPA) and EPD, respectively — filed a Complaint against DeKalb for violations of the CWA and Georgia Water Quality Control Act (GWQCA) (hereinafter, the 2010 Complaint).8 The 2010 Complaint alleged that, since 2006, DeKalb‘s WCTS experienced hundreds of overflows of untreated wastewater — known as sanitary sewer overflows (SSOs)9 — that contained pollutants.10 Many of these overflows resulted in the discharge of sewage into the South River and Chattahoochee watersheds.11
On December 21, 2011, United States District Court Judge William S. Duffey approved a Consent Decree executed by DeKalb, the EPA, and the EPD. United States v. DeKalb Cnty., Ga., No. 1:10-CV-4039-WSD, 2011 WL 6402203 (N.D. Ga.
Dec. 20, 2011).12 The stated objectives of the Consent Decree are for DeKalb “to use its best efforts to prepare and implement all plans, measures, reports, and construction, maintenance, and operational activities . . . to achieve the goals of: (1) full compliance with the CWA, the GWQCA, and the regulations promulgated thereunder, and (2) the elimination of all SSOs.13 The Consent Decree required DeKalb to pay a one-time civil penalty in the amount of $453,000 to the United States and Georgia.14 It also required DeKalb to expend at least $600,000 on a Supplemental Environmental
The Consent Decree additionally contained numerous provisions requiring DeKalb to remediate the WCTS. For example, the Consent Decree required DeKalb to implement a comprehensive program to ensure effective Capacity, Management, Operations, and Maintenance (CMOM), which included a Continuing Sewer Assessment and Rehabilitation Program.16 The Consent Decree
established timelines for DeKalb to develop and submit certain projects to the EPA or EPD for review and approval, then once approved, for DeKalb to implement the programs.17 As part of the Continuing Sewer Assessment and Rehabilitation Program, DeKalb identified a list of “priority areas” that required more immediate improvement. These highest priority areas were included in the CMOM program and entitled the Priority Area Sewer Assessment and Rehabilitation Program (PASARP).18 As of 2018, the PASARP included approximately 838 miles of sewer line, representing 31% of the sewer line in the WCTS.19 The Consent Decree mandated that, within 8.5 years from its date of entry (i.e., June 20, 2020), DeKalb identify, delineate, assess, and rehabilitate the WCTS in the priority areas.20 In contrast, the remaining approximately 69% of sewer lines not included in the priority areas (i.e., non-priority areas) were subject to assessment and rehabilitation under an Ongoing Sewer Assessment and Rehabilitation Program.21
Unlike the priority areas, the Consent Decree contained no timetable or deadline for DeKalb to assess and rehabilitate the non-priority areas.22
At the time the Court entered the Consent Decree, DeKalb maintained a flow and rainfall monitoring program that could be used to “assess capacity availability in various sewer segments, and to prioritize sanitary sewers for rehabilitation, repair and/or replacement.”23 The Consent Decree stated that DeKalb “shall use the flow and rainfall monitoring data to develop a dynamic hydraulic model.”24 The Consent Decree defined “model” as a “computer-based dynamic hydraulic model.”25 The Consent Decree required DeKalb to integrate computer-based dynamic hydraulic models for all sewer sheds into one model for the entire WCTS by December 20, 2017.26
The Consent Decree also contained a provision outlining the prospective penalties that could be assessed against DeKalb in the event of noncompliance. For example, for each spill of 10,000 gallons or less, a penalty of $500 may be assessed.27 If a spill of more than 10,000 gallons occurs, a penalty ranging from $500 to $2,000 may be assessed.28
model (also known as a “steady-state” hydraulic mode).31 The EPA and PED expressly authorized DeKalb to implement the static model.32
On July 15, 2019, Plaintiffs mailed DeKalb a notice letter, setting forth their intent to file a citizen suit under the CWA.33 Plaintiffs subsequently initiated this action on September 24, 2019.34 Plaintiffs filed their Amended Complaint on February 24, 2020, asserting one count against DeKalb under the CWA and seeking both monetary and injunctive relief.35 DeKalb filed the instant motion to dismiss on March 9, 2020.36 On April 14, 2020, Plaintiffs filed their response in opposition to DeKalb‘s motion to dismiss.37 DeKalb filed its reply on May 11, 2020.38 On the same day, DeKalb filed its motion to strike certain evidence relied on by Plaintiffs in their response brief — i.e., a report from Randall Grachek and a declaration from
Dustin Mimnaugh.39 Plaintiffs filed a response in opposition to DeKalb‘s motion to strike on May 26, 2020.40 DeKalb filed its reply on June 9, 2020.41
II. DISCUSSION
A. DeKalb‘s Motion to Strike
DeKalb requests that the Court strike the report of Randall Grachek and the declaration of Dustin Mimnaugh. DeKalb contends this evidence is not based on either individual‘s personal knowledge, but is instead impermissible speculation dressed up as opinion testimony. DeKalb additionally asserts the evidence is irrelevant to the resolution of the issues in this case. Plaintiffs, conversely, argue the evidence should be considered because they set forth facts within the knowledge of the offering individual.
Motions to strike are governed by
v. Zip Wireless Prod., Inc., 716 F. Supp. 2d 1275, 1290 (N.D. Ga. 2010) (citing Stephens v. Trust for Pub. Land, 479 F. Supp. 2d 1341, 1346 (N.D. Ga. 2007)). See also TracFone, 716 F. Supp. 2d at 1290 (“Motions to strike . . . are often considered time wasters.”).
Since
Court finds this alternative persuasive for purposes of ruling on DeKalb‘s motion to dismiss. As such, DeKalb‘s motion to strike is DENIED, but the Court will consider the parties’ arguments concerning the probative value of the challenged exhibits.
B. DeKalb‘s Motion to Dismiss
DeKalb argues that Plaintiffs’ claims are barred by the EPA‘s and EPD‘s diligent prosecution of DeKalb‘s alleged violations of the CWA and NPDES permits in accordance with the Consent Decree. Plaintiffs, conversely, contend the Consent Decree is insufficient to ensure DeKalb‘s compliance with the CWA and NPDES permits, and even if it is, the government is not diligently prosecuting DeKalb for its violations.
i. Background on the CWA
Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52 (1987) (citing
certain pollutants into waterways when the discharge would otherwise violate the CWA.
CWA‘s enforcement scheme, as it permits citizens to abate pollution when the government cannot or will not command compliance.” Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 526 (5th Cir. 2008) (citing Gwaltney, 484 U.S. at 62).
Private citizens, however, do not possess the unfettered ability to file suit. The CWA contains express limitations. Relevant here, a citizen-suit may not be commenced:
[I]f 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.
ii. Analysis
DeKalb‘s motion rises and falls on whether Plaintiffs’ claim is barred by the EPA‘s and EPD‘s diligent prosecution of DeKalb‘s CWA violations. The Court finds Plaintiffs’ claim is barred and the Amended Complaint must be dismissed.
1. The Applicable Motion to Dismiss Standard
As a threshold matter, there is an open question as to what standard governs DeKalb‘s motion to dismiss. DeKalb invokes both Rules
requisite to invoke the Court‘s jurisdiction, then
In Louisiana Environmental Action Network, the Fifth Circuit embarked on an extensive analysis of the legislative history underpinning the CWA, relevant Supreme Court precedent dictating whether a provision is a jurisdictional or claim-processing rule, and similar statutory provisions. 677 F.3d at 745-49. The
Fifth Circuit ultimately
The Court here finds the Fifth Circuit‘s detailed analysis persuasive and well-reasoned. Congress did not provide a clear statement in the CWA that the diligent prosecution bar is a jurisdictional requirement. Absent such a statement,
the Court will treat the diligent prosecution provision as non-jurisdictional; as such, DeKalb‘s motion to dismiss is controlled by the standards applicable to
2. Rule 12(b)(6)
To withstand a motion to dismiss for failure to state a claim under
that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. A complaint must also present sufficient facts to “‘raise a reasonable expectation that discovery will reveal evidence’ of the claim.” Am. Dental Ass‘n, 605 F.3d at 1289 (quoting Twombly, 550 U.S. at 556).
At the motion to dismiss stage, “all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.” FindWhat Inv‘r Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011) (quoting Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)). This principle, however, does not apply to legal conclusions. Iqbal, 556 U.S. at 678.
As a general rule,
First, conversion will not occur if the court properly takes judicial notice of attached exhibits. Second, a document attached to the pleadings as an exhibit may be
considered if it is central to the plaintiff‘s claim and the authenticity of the document is not challenged. Third, the conversion is harmless and does not require notice if the parties, inter alia, made all arguments and submitted all the documents they would have even with sufficient notice.
Adamson v. Poorter, No. 06-15941, 2007 WL 2900576, at *2 (11th Cir. Oct. 4, 2007) (citations omitted). See also Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (“Our Rule 12(b)(6) decisions have adopted the ‘incorporation by reference’ doctrine . . . under which a document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment only if the attached document is: (1) central to the plaintiff‘s claim; and (2) undisputed.”).
Here, DeKalb points the Court to evidence outside the four corners of the Amended Complaint: (1) documents filed in the 2010 litigation; (2) the 2011 Consent Decree; (3) the NDPES permits; and (4) documents concerning the EPA‘s and EPD‘s enforcement of — and DeKalb‘s performance under — the Consent Decree.42 Plaintiffs relied on many of these documents — such as the Consent Decree and NPDES permits in the Amended Complaint — to form their claim. The review of these documents is therefore integral to the proper
consideration and resolution of Plaintiffs’ claims and DeKalb‘s defenses. Moreover, these documents are all public records susceptible to judicial notice. Universal Express, Inc. v. Sec. & Exch. Comm., 177 F. App‘x 52, 53 (11th Cir. 2006) (“Public records are among the permissible facts that a district court may consider.”) (citing Stahl v. U.S. Dep‘t of Agric., 327 F.3d 697, 700 (8th Cir. 2003) (“The district court may take judicial notice of public records and may thus consider them on a motion to dismiss.”)). See also Henderson v. Sun Pharm. Indus., Ltd., 809 F. Supp. 2d 1373, 1379 (N.D. Ga. 2011) (“[T]he Court is permitted to take judicial notice of documents made publicly available by a government entity.”). Moreover, no party has raised a challenge as to the authenticity of any of these documents. Therefore, the Court will consider DeKalb‘s exhibits without converting this motion to dismiss into one for summary judgment.
3. Plaintiffs’ Claims Are Barred by the Diligent Prosecution Provision.
DeKalb asserts two arguments regarding the Consent Decree. First, DeKalb contends the 2011 Consent Decree, standing alone, is enough to establish diligent prosecution to bar Plaintiffs’ citizen suit. Second, DeKalb argues the EPA‘s and EPD‘s ongoing efforts to require compliance with the Consent Decree establish diligent prosecution.
To determine if a citizen suit is barred by the diligent prosecution provision, the Court must undertake a two-part inquiry:
First, a court must determine whether a prosecution by the state (or the EPA Administrator) to enforce the same ‘standard, order, or limitation’ was pending on the date that the citizens’ suit commenced. Second, if the answer to the previous question is affirmative, a court must also determine whether the prior pending action was being ‘diligently prosecuted’ by the state [or EPA] at the time that the citizens’ suit was filed.
Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co., 808 F. Supp. 2d 868, 883 (S.D. W. Va. 2011) (citing
1. The 2010 Complaint and 2011 Consent Decree Cover the Same Standard, Order, or Limitation as Plaintiffs’ Citizen Suit.
For the first prong, “the CWA‘s diligent prosecution bar will prohibit citizen suits during the actual litigation as well as after the litigation has been terminated by a . . . consent decree.” Moss v. Sal Lapio, Inc., No. CV 19-3210, 2020 WL 3259983, at *5 (E.D. Pa. June 16, 2020) (citing Godfrey v. Upland Borough, 209 F. Supp. 3d 804, 809-10 (E.D. Pa. 2016)). The litigation and subsequent consent decree “must seek to enforce the same standard, limitation, or order as the citizen suit.” Appalachian Voices v. Duke Energy Carolinas, LLC, No. 1:17-cv-1097, 2018 WL 6984857, at *4 (M.D.N.C. Aug. 13, 2018) (citing Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc.,
728 F.3d 868, 874 (9th Cir. 2013))). See also Cox v. Bd. of Cnty. Comm‘rs of Franklin Cnty., 436 F. Supp. 3d 1070, 1079 (S.D. Ohio 2020) (“[A] diligent prosecution bar only applies to those issues sought to be addressed in a citizen action that overlap with those issues sought to be addressed by the government‘s suit.“).
To make this determination, “the court may rely primarily on a comparison of the pleadings filed in the two actions.” Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, 141 F. Supp. 3d 428, 440 (M.D.N.C. 2015). The Court‘s comparison “need not reveal identical claims for the action to cover the same standards and limitations.” Id. A citizen suit is barred if it seeks to “enforce specific permit conditions that fall within the scope of a broader agency enforcement action.” Appalachian Voices, 2018 WL 6984857, at *4 (citing Cmty. of Cambridge Envtl. Health & Cmty. Dev. Grp. v. City of Cambridge, 115 F. Supp. 2d 550, 556 (D. Md. 2000)).
Here, a comparison of the 2010 Complaint and Plaintiffs’ Amended Complaint, as well as the 2011 Consent Decree, reveals substantial overlap in the standards and limitations on which the government and Plaintiffs base their claims. There is no dispute that both actions concern impermissible sewage discharges from the WCTS into the waterways of DeKalb County in violation of the
Plaintiffs’ claim here is aimed directly at DeKalb‘s continued violation of the same
2. Plaintiffs Have Not Plausibly Alleged a Lack of Diligent Prosecution.
For the second prong of the analysis, the Court must ascertain whether the EPA and EPD are diligently prosecuting the claims raised in their 2010 Complaint and addressed by the 2011 Consent Decree. “A
The diligent prosecution bar “does not require government prosecution to be far-reaching or zealous.” Piney Run, 523 F.3d at 459 (citing Karr, 475 F.3d at 1197). To meet their burden, Plaintiffs must do more than “show[ ] that the agency‘s prosecution strategy is less aggressive than [they] would like or that it did not produce a completely satisfactory result.” Piney Run, 523 F.3d at 459. See also Karr, 475 F.3d at 1197 (“Nor must an agency‘s prosecutorial strategy coincide with that of the citizen-plaintiff. . . . [C]itizens [are permitted] to act where the EPA has failed to do so, not where the EPA has acted but has not acted aggressively enough in the citizens’ view.“); N. & S. Rivers Watershed Ass‘n, Inc. v. Town of Scituate, 949 F.2d 552, 558 (1st Cir. 1991) (“[V]iolations may continue despite everything reasonably possible being done by the State and Appellee to correct them.“). Plaintiffs must instead show that the government‘s actions are incapable of requiring compliance with the applicable standards. Piney Run, 523 F.3d at 459.
However, the government is not entitled to unlimited deference. The Court cannot merely “accept[] at face value [ ] the potentially self-serving statements of a state agency and the violator with whom it settled regarding their intent with respect to the effect of the settlement.” Milwaukee II, 382 F.3d at 760. A citizen suit is proper when “there is a realistic prospect that the violations alleged in its complaint will continue notwithstanding the government-backed consent decree.” City of Dallas, 529 F.3d at 528-29 (5th Cir. 2008). See also Yadkin Riverkeeper, 141 F. Supp. 3d at 441 (“To overcome this presumption, the citizen-plaintiff
DeKalb‘s first contention—that the existence of the 2011 Consent Decree alone is sufficient to establish diligent prosecution—does not pass muster. As the Consent Decree itself expressly states:
This Consent Decree is not a permit, or a modification of any permit, under any federal, State, or local laws or regulations. The County is responsible for achieving and maintaining compliance with all applicable federal, state, and local laws, regulations and permits; and the County‘s compliance with this Consent Decree shall be no defense to any action commenced pursuant to any such laws, regulations, or permits, except as set forth herein. The United States and the State do not, by their consent to the entry of this Consent Decree, warrant or aver in any manner that the County‘s compliance with any aspect of this Consent Decree will result in compliance with provision of the
CWA ,33 U.S.C. § 1251 et seq. , or with any other provisions of federal, state, or local laws, regulations, or permits.47
The Consent Decree additionally states that it does not “limit the rights of third parties, not a party to this Consent Decree, against the County.”48 Neither South River nor Echols were parties to the Consent Decree.
Moreover, to permit a Consent Decree to automatically immunize a polluter from all citizen suits would be to rewrite the
DeKalb‘s second argument—that the EPA‘s and EPD‘s ongoing efforts to require compliance with the Consent Decree establish diligent prosecution—is more persuasive. In support of their argument that the Consent Decree has not been diligently prosecuted, Plaintiffs point to the following: (1) repeated sewage discharges from the WCTS in both priority and non-priority areas; (2) DeKalb‘s failure to meet the June 20, 2020 deadline in the Consent Decree to rehabilitate the WCTS in the priority areas; (3) the Consent Decree‘s failure to establish a timeline for DeKalb to rehabilitate the WCTS in non-priority areas; (4) the amount of civil penalties levied by the EPA and EPD are too low to force DeKalb‘s compliance with the
Treated as true, Plaintiffs’ well-pleaded factual allegations and reasonable inferences drawn therefrom are troubling. Plaintiffs have identified serious problems with DeKalb‘s WCTS that have caused the ongoing discharge of raw sewage into public waterways. But the narrow question the Court must answer at this juncture is whether Plaintiffs’ allegations, taken as true, overcome the heavy presumption of diligence afforded to the government to state a plausible claim under the
Plaintiffs point to evidence showing that, since entry of the Consent Decree, discharges from the WCTS into the watersheds have not decreased in either priority or non-priority areas.49 Hundreds of separate discharges occurred from July 2014 through April 2019, dumping millions of gallons of untreated sewage into the watersheds.50 However, such an “unsatisfactory result does not necessarily imply lack of diligence.” Karr, 475 F.3d at 1197 (citing Scituate, 949 F.2d at 558 (“[V]iolations may continue despite everything reasonably possible being done by the State . . . to correct them.“); Milwaukee II, 382 F.3d at 759 (“[D]iligence does not require a state agency to have perfect foresight . . . the statute does not require that the State succeed; it requires only that the State try, diligently.“)).
To the contrary, the evidence shows the government has repeatedly levied fines against DeKalb for its noncompliance with the Consent Decree,
Plaintiffs argue the dollar amount of the fines is too low. According to Plaintiffs, it is more economically beneficial for DeKalb to continue polluting and pay the fines than fork over the millions—perhaps billions—needed to actually fix the sewer lines. Plaintiffs’ desire for DeKalb to be punished more for its continued violations is outside the scope of the Court‘s role in this case. The law is clear: “[A] citizen-plaintiff cannot overcome the presumption of diligence merely by showing that the agency‘s prosecution strategy is less aggressive than [they] would like or that it did not produce a completely satisfactory result.” Piney Run, 523 F.3d at 459. See also Karr, 475 F.3d at 1197 (“Nor must an agency‘s prosecutorial strategy coincide with that of the citizen-plaintiff.“); Scituate, 949 F.2d at 558 (“Merely because the State may not be taking the precise action Appellant wants it to or moving with the alacrity Appellant desires does not entitle Appellant to injunctive relief.“).
Further, the Court does not possess the institutional expertise of the EPA and EPD regarding sewer lines and wastewater discharges. Thus, “when presented with a consent decree,” the Court “must be particularly deferential to the agency‘s expertise.” Piney Run, 523 F.3d at 459. See also Karr, 475 F.3d at 1197 (“Particularly when the EPA chooses to enforce the
As Plaintiffs point out, the schedule of fines in the Consent Decree is lower than the statutory maximum penalties available under the
Similarly, Plaintiffs argue the futility of the Consent Decree is evidenced by (1) DeKalb‘s failure to meet the June 20, 2020 deadline to rehabilitate the WCTS in priority areas, and (2) the fact that the Consent Decree did not set forth specific deadlines for DeKalb to rehabilitate the WCTS in non-priority areas. Plaintiffs’ first rationale concerning DeKalb‘s missed June 20 deadline fails for the same reason as their reliance on the continued spills. As a threshold matter, “the fact that an agency has entered into a consent decree with a violator that establishes a prospective schedule of compliance does not necessarily establish lack of diligence.” Piney Run, 523 F.3d at 459. Just because DeKalb missed the June 20, 2020 deadline does not mean the government lacked diligent prosecution. Put another way, Plaintiffs cannot transmute DeKalb‘s breach into factual allegations of non-diligent prosecution by the government to state a plausible
Plaintiffs’ second rationale concerning the non-priority areas is likewise unavailing. The Court notes that the premise of Plaintiffs’ argument is undisputed—unlike priority areas, the Consent Decree does not establish a timeline for DeKalb to stop spills, or rehabilitate the WCTS, in non-priority areas. But Plaintiffs’ precise argument has been previously rejected. Piney Run, 523 F.3d at 461 (“[T]he Association‘s complaint about the absence of a final compliance deadline in the Consent Judgment is unavailing.“). The absence of a strict timeline for DeKalb to remediate the WCTS in non-priority areas seems to be another concession made by the government to reach the totality of the Consent Decree, which the Court must respect. Karr, 475 F.3d at 1197 (“[P]articularly
Finally, Plaintiffs argue DeKalb‘s implementation of a static hydraulic model—rather than a dynamic hydraulic model as required by the Consent Decree—with the EPA‘s and EPD‘s permission, demonstrates a lack of diligent prosecution. This raises an issue regarding DeKalb‘s alleged breach of the Consent Decree, not a freestanding violation of the
At bottom, the Court does not take lightly Plaintiffs’ allegations and evidence of DeKalb‘s repeated discharge of sewage into public waterways. Plaintiffs, understandably, want DeKalb to take more aggressive, effective, and immediate actions to ameliorate the WCTS and eliminate these discharges. This is hardly a controversial or indefensible position. But the Court‘s agreement with Plaintiffs’ ultimate goals does not change the regulatory scheme enacted by Congress in the
Plaintiffs, however, are not completely without remedy. Based on DeKalb‘s continued discharges and non-compliance with the Consent Decree, the government and DeKalb have reached an agreement in principle to amend the Consent Decree.53 This process will culminate in a public notice-and-comment period and proposed amended Consent Decree, which the Court may approve or reject. Plaintiffs, as intervenors
III. CONCLUSION
DeKalb‘s motion to strike [ECF 43] is DENIED and motion to dismiss [ECF 30] is GRANTED. The Clerk is DIRECTED to close the case.
SO ORDERED this the 31st day of August 2020.
Steven D. Grimberg
United States District Court Judge