Waterlegacy v. United States Environmental Protection AgencyWaterlegacy v. United States Environmental Protection Agency
MEMORANDUM OPINION AND ORDER
This is an action for declaratory judgment and injunctive relief pursuant to the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq. and the Administrative Procedure Act
On March 10, 2014, the EPA filed an unopposed motion to vacate its approval of the variance and remand the matter to the agency for further consideration. Three days later, Mesabi Nugget moved to intervene for the limited purposes of delaying remand for thirty days to allow it to discuss the issue with the EPA and preventing the variance from being vacated during the period of remand. Because the Court concludes that Mesabi Nugget has satisfied the requirements for intervention it will grant Mesabi Nugget’s request for intervention. The Court will also grant the EPA’s unopposed motion for remand, but will remand the matter without vacating the December 2012 variance approval.
BACKGROUND
I. DECEMBER 2012 VARIANCE APPROVAL
A. Regulatory Structure
Under the CWA, Mesabi Nugget is prohibited from discharging any pollutant into waters of the United States from a point source, such as its facility, unless the discharge is authorized by a permit under the National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C. §§ 1311(a), 1342(a)(1). The EPA has delegated to the Minnesota Pollution Control Agency (“MPCA”) the authority to issue NPDES permits for discharges of pollutants within Minnesota that comply with or are more stringent than federal permit conditions. See In re Alexandria Lake Area Sanitary Dist. NPDES/SDS Permit No. MN0040738,
B. Mesabi Nugget’s Variance
Mesabi Nugget’s iron production facility was originally governed by an NPDES permit issued in June 2005 which granted the facility variances from Minnesota water quality standards for certain types of discharges for a period of five years. (Am. Compl. ¶¶ 76-77, Nov. 27, 2013, Docket No. 23; Administrative Record (“R.”) at 654, Nov. 15, 2013, Docket No. 20.) The 2005 variance expired on June 30, 2010, and Mesabi Nugget voluntarily ceased discharging from the facility because the MPCA had not extended its water quality variances. (Am. Compl. ¶ 85; R. at 64.) In June 2010 Mesabi Nugget applied to the MPCA for another variance, requesting “a continuation of the variances from the water quality standards for the 5-year term of the reissued permit.” (R. at 654.)
On January 30, 2012, the MPCA provided public notice of its intent to issue Mesabi Nugget a variance from compliance with Minnesota water quality standards. (Am.
On October 23, 2012, the MPCA Citizens’ Board approved the MPCA’s proposed findings of fact, conclusions of law, and order approving the issuance of an NPDES permit to Mesabi Nugget containing a variance from Minnesota water quality standards. (R. at 1370-90.) The MPCA then requested approval of the variance from the EPA (R. at 41.) On December 27, 2012, the EPA approved the variance granted by the MPCA for Mesabi Nugget’s facility through August I, 2021. (R. at 3-24.)
II. PROCEDURAL HISTORY
WaterLegaey, the MCEA, and the Bands each filed separate petitions appealing the EPA’s variance approval to the EPA Environmental Appeals Board. (Compl., Ex. B at 2-3, June 3, 2013, Docket No. 1.) Both the EPA and Mesabi Nugget filed motions to dismiss the petitions for lack of jurisdiction. (Id., Ex. B at 3.) On March 19, 2013, the Board granted the motions to dismiss, finding that it lacked jurisdiction to review the EPA’s approval of a water quality standards variance issued pursuant to Section 303(e) of the CWA and 40 C.F.R. part 131. (Id., Ex. B at 7.) The Board explained that review of the EPA’s decision could instead be properly sought in federal district court pursuant to the Administrative Procedure Act. (Id.)
On June 3, 2013 WaterLegaey filed a complaint in this Court against the EPA challenging its December 27, 2012 approval of the variance, and requesting declaratory judgment and injunctive relief. (Compl., June 3, 2013, Docket No. 1.) The Bands and the MCEA initiated separate lawsuits against the EPA seeking identical relief. (See Civ. No. 13-1324, Compl., June 3, 2013, Docket No. 1; Civ. No. 13-1393, Compl., June 10, 2013, Docket No. 1.) The EPA filed an answer in each of the cases disputing the allegations that its approval of the variance was arbitrary and capricious and asserting as defenses that the complaints failed to state claims upon which relief could be granted. (Answer, Aug. 27, 2013, Docket No. 13; Civ. No. 13-1324, Answer, Aug. 27, 2013, Docket No. 12; Civ. No. 13-1393, Answer, Aug. 27, 2013, Docket No. 14.)
On August 27, 2013, the three cases were consolidated. (Order, Aug. 27, 2013, Docket No. 12.) Pursuant to stipulation, the Plaintiffs filed a single amended complaint in the present action on November 27, 2013. (Order, Nov. 26, 2013, Docket No. 22; Am. Compl.) The EPA was not “required to file an amended answer in order to preserve [its] denial of all claims made by plaintiffs.” (Id. ¶ 2.)
A. Consent Motion to Remand to the EPA with Vacatur
On March 10, 2014, the EPA brought an unopposed motion for a voluntary remand with vacatur. (Defs.’ Unopposed Mot. for Voluntary Remand with Vacatur, Mar. 10, 2014, Docket No. 26.) In the motion the EPA explains:
Upon further review of this matter, EPA has determined that it should reconsider the request for a variance by the Minnesota Pollution Control Agency that EPA granted in the December 27, 2012, Variance Approval Decision. EPA therefore requests a remand of the December 27, 2012, Variance Approval Decision. EPA intends to disapprove the variance request on remand under section 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c). Under these unique circumstances, EPA requests that the Court vacate the December 27, 2012, Variance Approval Decision before remanding the matter to EPA
(Id. ¶ 3.) The EPA notes that “[w]hile vaca-tur is not always appropriate when an agency requests a voluntary remand, as noted above, given EPA’s intention to disapprove the variance request on remand, EPA requests that the Court vacate the December 27, 2012, Variance Approval Decision prior to remanding the matter to EPA” (Id. ¶ 4.) Finally, with respect to resolution of the pending case, the EPA states that because the motion for remand and vacatur is unopposed “it is the parties’ intention to file a stipulation of
B. Motion to Intervene
The day after the motion for remand was filed, Mesabi Nugget delivered a letter to United States Magistrate Judge Leo I. Bris-bois indicating that its “ability to operate will be affected by EPA’s motion” and requesting “that the court delay its action on the EPA’s motion” for several days to allow Mesabi Nugget the opportunity to prepare “a response to the motion seeking limited relief.” (Letter, Mar. 12, 2014, Docket No. 28.)
On March 13, 2014, Mesabi Nugget brought a motion for intervention and “related relief.” (Mot. for Inteivention & Related Relief, Mar. 13, 2014, Docket No. 29.) In the motion, Mesabi Nugget seeks leave “to intervene in the above-entitled lawsuit for the purpose of opposing EPA’s March 10, 2014 Motion for Voluntary Remand.” (Id. at 2.) Mesabi Nugget also requests that the Court
[d]elay[ ] any order granting EPA’s Motion for Remand for a period of 30 days to allow for Mesabi to meet with defendant EPA as to the basis for the EPA’s decision to allow remand of the Variance that is the subject of this litigation, after which meeting Mesabi will not object to EPA’s request for this Court to remand the Variance back to EPA for further proceedings, except to object to the request to vacate the Variance.
(Id.) Finally, Mesabi Nugget requests that “[t]o the extent that an order remanding the Variance is issued in the future” the Court “abstain from vacating the Variance while the remand proceedings take place.” (Id.; see also Mem. of Law in Supp. of Mot. to Intervene at 2, Mar. 13, 2014, Docket No. 31.)
ANALYSIS
I. MOTION TO INTERVENE
Mesabi Nugget seeks to inteivene as a matter of right, and in the alternative seeks permissive intervention.
On timely motion, the court must permit anyone to inteivene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) 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). A party seeking mandatory inteivention under Rule 24(a) must establish that “(1) it has a recognized interest in the subject matter of the litigation; (2) the interest might be impaired by the disposition of the case; and (3) the interest will not be adequately protected by the existing parties.” S.D. ex rel. Barnett v. U.S. Dep’t of Interior,
The parties do not dispute, and the Court finds, that Mesabi Nugget meets the criteria for intervention as of right or permissive intervention due to its interest in the variance and the fact that its interest in maintaining the variance is not adequately represented by the parties to the litigation. Plaintiffs do, however, oppose Mesabi Nugget’s motion for intervention on a number of other bases, including that the motion contains fatal procedural flaws, is moot in light of the EPA’s unopposed motion for remand, and is untimely. The Court will address each of these arguments in turn.
A. Procedural Flaws
1. Scope of Intervention
Plaintiffs first challenge Mesabi Nugget’s motion for intervention on the basis that “[i]t is not even clear whether Mesabi seeks to intervene as a plaintiff or defendant.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 6, Mar. 20, 2014, Docket No. 37.) Courts have “recognized that the resolution of a Rule 24 motion requires flexibility” and engage in “a practical analysis of the facts and circumstances of each ease” even where a motion to intervene is not “conventional” and does not fit neatly into the contours of “the analytical framework established by Rule 24.” United States v. Petters, Civ. No. 08-5348,
Here, Mesabi Nugget clearly seeks intervention for a limited purpose and therefore need not specify whether it seeks intervention as a plaintiff or defendant. In other words, Mesabi Nugget does not wish to file claims, defend against the allegations in the amended complaint, or engage with the merits of the lawsuit. Instead, Mesabi Nugget seeks to intervene for the limited purpose of addressing issues that are ancillary to the merits of the lawsuit. Mesabi Nugget does not dispute that the case—which challenges the propriety of the EPA’s December 27, 2012 approval of the variance —should be remanded for reconsideration by the EPA, but brings its motion to intervene solely to delay entry of the unopposed motion for remand for a period of thirty days and to challenge the collateral issue of whether the variance should be vacated during the pendency of the remand proceedings. Plaintiffs have identified, and the Court has found, no authority that would prevent Mesabi Nugget from intervening for the limited purposes it has identified. Instead, applying a flexible and commonsense understanding of Rule 24, the Court concludes that Mesabi Nugget’s failure to seek intervention as either a party plaintiff or party defendant does not provide a basis to deny its motion.
2. Failure to Include Pleading
Relatedly, Plaintiffs argue that Mesabi Nugget’s motion to intervene is improper under Rule 24 because it fails to include a pleading. Plaintiffs contend that “before the Court can consider the merits, Mesabi must conform its Motion by filing a pleading and then re-noticing the parties.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 6.)
Here, the Court concludes that Mesabi Nugget’s brief in support of its motion to intervene provides sufficient notice to the Court and the parties of its interests and the basis for its motion to satisfy Rule 24(c). In its brief Mesabi Nugget has clearly identified its interest in the variance and its rationale for seeking a thirty-day meet and confer period and challenging the vacatur of the variance. Indeed, given Mesabi Nugget’s request for limited intervention, which does not seek to challenge the allegations in the Amended Complaint or assert independent claims, the briefing submitted in connection with Mesabi Nugget’s motion provides far more relevant information to the Court and the parties than would a formal pleading. Furthermore, the Court notes that Plaintiffs do not seek denial of Mesabi Nugget’s motion due to the failure to file a pleading, instead Plaintiffs merely request refiling of the instant motion. Given the important timing concerns of the remand identified by Plaintiffs, the Court concludes that requiring Mesabi Nugget to refile its motion would elevate form over substance and merely serve to delay the relief sought by Plaintiffs. Accordingly, because Mesabi Nugget’s brief meets the standards of Rule 24(e)’s pleading requirement, by apprising the Court and the parties of the purpose and scope of its proposed intervention, the Court will consider the motion on the merits, despite the lack of a formal pleading.
3. Arguments Responsive to Motion for Remand
Plaintiffs also contend that Mesabi Nugget’s motion is improper because it offers argumentation that is responsive to the unopposed motion for remand, arguing that “[a] motion to intervene can only deal with whether a party is entitled to appear in a ease” and “Mesabi is not entitled to proffer a response to the Unopposed Motion until and unless it is granted intervention.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 6.) Although Plaintiffs do not contend that this “impermissible” inclusion of a response to the motion for remand is a basis to deny Mesabi Nugget’s motion, they request that the motion be “conformed and the parties re-noticed” before the Court hears the motion. (Id. at 7.)
Plaintiffs have cited, and the Court has found, no authority for the proposition that a proposed intervenor cannot include in its motion for intervention arguments against a pending motion that the intervenor would make if intervention was allowed. Indeed, where, as here, Mesabi Nugget seeks intervention for the limited purpose of challenging a pending motion it would make little sense for its motion to intervene not to include its position with respect to the pending motion. In other words, Mesabi Nugget’s arguments about the motion for remand are essential to understanding the basis for its motion for intervention, and are therefore not improper. Finally, as explained more fully below, the parties’ interest in the expeditious remand of this case would not be furthered by requiring Mesabi Nugget to refile its motion for intervention. Although Plaintiffs are correct that Mesabi Nugget has no right to have its responses to the motion for remand considered if its motion for intervention is denied, the Court has identified no procedural deficiency in Mesabi Nugget providing its arguments regarding the motion for remand to the Court. See Sackman,
B. Mootness
Plaintiffs next argue that the motion to intervene must be denied because, in light of the filing of the unopposed motion for remand, no case or controversy exists. Specifically Plaintiffs argue “[n]ow that the EPA has formally changed course, the Court lacks jurisdiction to adjudicate the ‘present or future legality' of the Variance Decision because there is no longer a case or controversy between the existing parties.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 11.)
“ ‘The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy.’” Ringo v. Lombardi,
Because the present case remained open when Mesabi Nugget filed its motion to intervene, neither this ease, nor the motion, is moot. Although the EPA had filed an unopposed motion requesting remand and vacatur prior to the filing of the motion for intervention, the Court had not yet ruled on that motion. Therefore, currently before the Court are several cases or controversies that are sufficient to satisfy the jurisdictional requirements of Article III. First, by filing a motion for intervention prior to the entry of final judgment in the case, Mesabi Nugget put at issue “the merits and the propriety of intervention.” Robert F. Booth Trust,
As support for its position that the case is moot, Plaintiffs rely upon Save Greers Ferry Lake, Inc. v. Dep’t of Defense,
C. Timeliness
Both motions for intervention as of right and for permissive intervention must be timely, see Fed.R.Civ.P. 24, and “the timeliness of a motion to intervene is a threshold issue,” Ritchie Special Credit Invs., Ltd.,
1. Extent Litigation Has Progressed
Plaintiffs’ primary argument regarding timeliness is that Mesabi Nugget’s motion to intervene is untimely because the parties have “agreed to a full resolution” of the case, in the form of the unopposed motion for remand, making this “the final stage of litigation.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 13-14 (emphasis in original).) The factor examining the extent of progress in the litigation typically weighs against finding a motion for intervention to be timely where the motion is brought after the “litigation is nearly wrapped up.” Tweedle v. State Farm Fire & Cas. Co.,
Here, although the parties to the litigation have reached a resolution in the form of a remand, the parties have engaged in no discovery or motion practice and no proceedings regarding the merits of the litigation have occurred. See Midwest Realty Mgmt. Co. v. City of Beavercreek,
Furthermore, where, as here intervention is sought for a limited purpose, courts have analyzed the issue of timeliness narrowly, as the period of time elapsing between the event giving rise to the limited intervention and the motion to intervene. See Sackman,
2. Mesabi Nugget’s Knowledge and Reason for Delay
It is undisputed that Mesabi Nugget had knowledge of this very highly publicized litigation as soon as, or shortly after, it was filed in June 2013. (See, e.g. Exhibit List, Exs. B-C (news coverage of the lawsuit).) It is also undisputed that Mesabi Nugget has been aware of the position of the Plaintiffs in this matter for several years, as they participated actively in opposing the approval of the variance sought in June 2010. But Mesabi Nugget argues that it did not know or have reason to know that the EPA would cease to
3. Prejudice
Finally, Plaintiffs argue that they will be prejudiced by intervention because “the existing parties will be subjected to litigation costs and burdensome delays ... all so Mesabi can block the case’s resolution” and that the parties would be prejudiced by the Court’s refusal “to allow the EPA to voluntarily reconsider the Variance Decision.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 15, 16.) But Plaintiffs’ arguments regarding prejudice misconstrue the scope and purpose of Mesabi Nugget’s motion for intervention. It is true that courts have denied motions to intervene as untimely where the motion threatened to jeopardize the parties’ settlement agreement. See United States v. Alisal Water Corp.,
II. UNOPPOSED MOTION FOR REMAND WITH VACATUR
Neither Plaintiffs nor Mesabi Nugget dispute that remand to the EPA for reconsideration of the variance approval is appropriate in this case, and the Court has found no evidence of bad faith or untimeliness on the part of the agency that would render remand inappropriate. See Citizens Against Pellis-sippi Parkway Extension, Inc.,
Even where the Court orders remand, it retains discretion to determine whether the agency action or decision should remain in effect while the agency seeks to correct the action or decision. See Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin.,
As an initial matter, the Court notes that there is a split in the ease law regarding whether a court has the authority to order vacatur during the pendency of remand where, as here, a court has made no determination on the merits of the agency’s decision. See Carpenters Indus. Council v. Salazar,
With respect to the first prong of the vacatur inquiry—the seriousness of the deficiencies in the agency action—vacatur is appropriate where “the Court has significant doubts as to “whether the agency chose correctly’ ” in taking the action. Am. Petroleum Inst. v. Johnson,
Here, although the EPA has indicated that it intends to disapprove the variance request on remand, it has proffered no explanations for its action nor has it provided the Court with any reasons why its original approval of the variance was not the product of reasoned decisionmaking, or was otherwise arbitrary and capricious. Frito-Lay, Inc. v. U.S. Dep’t of Labor, Civ. No. 12-1747,
With respect to the second prong of the vacatur inquiry—the disruptive consequences of vacatur—the Court finds that this factor also weighs against vacatur. The EPA has represented to the Court that vacatur of the variance approval would have no effect on Mesabi Nugget’s current operations, as it does not currently discharge under its existing permit until at least September 1, and would, in any case, be shielded from liability for actions taken that are consistent with its existing permit until the EPA actually reverses its approval of the variance and a new permit is issued. Courts have typically declined to remand with vacatur where vacatur would not actually have the effect of undoing the agency action. See Sugar Cane Growers,
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
a. The motion is GRANTED only to the extent it seeks voluntary remand of this matter to the EPA.
b. The motion is DENIED to the extent it seeks vacatur of the December 27, 2012, Variance Approval Decision during the pendency of the'remand. The denial of vacatur is without prejudice and any party, including intervenor-Mesabi Nugget, may move for vacatur should the circumstances and timing of remand become different than currently represented by Defendants and therefore warrant such relief.
2. Mesabi Nugget’s Motion for Intervention and Related Relief [Docket No. 29] is GRANTED in part and DENIED in part as follows:
a. The motion is GRANTED to the extent it seeks intervention for the limited purpose of opposing the March 10, 2014 Unopposed Motion for a Voluntary Remand With Vacatur.
b. The request that the remand to the EPA be without vacatur is GRANTED
c. The motion is DENIED to the extent it seeks a thirty-day delay prior to the entry of this Order.
Notes
. Plaintiffs oppose Mesabi Nugget's motion to intervene. (Joint Response to Mesabi Nugget's Mot. to Inteivene, Mar. 20, 2014, Docket No. 37; Response to Mesabi Nugget’s Mot. for Intervention & Related Relief, Mar. 20, 2014, Docket No. 35.) The EPA opposes Mesabi Nugget’s request for "other relief"—namely the thirty-day delay in ordering remand and eliminating vacatur from the EPA’s remand motion—but "takes no position on Mesabi's motion to intervene." (EPA’s Response to Mesabi Nugget's Mot. to Intervene and For Related Relief at 3 n. 1, Mar. 20, 2014, Docket No. 36.)
. Plaintiffs and the EPA also object to Mesabi Nugget setting a hearing on its motion to intervene in front of United States Magistrate Judge Leo I. Brisbois. (See Notice of Hearing on Mot., Mar. 13, 2014, Docket No. 30.) Plaintiffs contend that although motions to intervene are nondispositive matters properly heard by magistrate judges, Mesabi Nugget's motion also seeks denial of vacatur ”[s]o, via these backdoor means, Mesabi has impermissibly set before a magistrate judge a dispositive-motion hearing that no other party wanted—and Mesabi’s not even a party to the case yet.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 7; see also EPA’s Response to Mesabi Nugget’s Mot. to Intervene and For Related Relief at 2 ("Because Mesabi’s motion to intervene is intertwined with its motion for ‘related relief' ... this matter should be heard by Judge Tunheim in its entirety.”).) Because this Court, not the Magistrate Judge, heard argument on the motion to intervene and for related relief and took that motion and the unopposed motion for remand under advisement, (Ct. Minutes, May 7, 2014, Docket No. 49) the parties’ objections to Mesabi Nugget’s motion on this basis are moot.
. The Court does not believe that the EPA’s request for remand here is frivolous or in bad faith; it cites Mineta only for the proposition that, even where the parties’ agree, a live case or controversy remains and the Court has jurisdiction to assess the propriety of an agency’s request for remand.
. Although Mesabi Nugget’s motion initially sought a thirty-day period in which to meet and confer with the EPA prior to the Court entering an order remanding the matter, Mesabi Nugget represented at oral argument that this thirty-day delay is no longer necessary. At the time Mesabi Nugget filed its motion for intervention and related relief, its facility was actively discharging pursuant to its NPDES permit. Therefore, Mesabi Nugget requested the additional time to allow it to prepare for the cessation of discharge allowed under the variance. Pursuant to the terms of its permit, however, the facility does not discharge between April 1 and September 1 at the earliest. Consequently, the concern about immediately ceasing discharge in the event of remand and vacatur—and the reason for the thirty-day meeting and confer period—is no longer present. Furthermore, the EPA represented at oral argument that it would be unable to share with Mesabi Nugget the reasons for its change of opinion regarding the variance approval decision as that rationale is protected by attorney client privilege, and will be disclosed to everyone—including Plaintiffs and Mesabi Nugget—when the EPA issues its decision reversing the variance. Therefore, to the extent Mesabi Nugget is continuing to request a thirty-day delay in the entry of this Order remanding the case to the EPA for the purposes of learning the reasons for the EPA's decision, the Court denies the request as futile. In light of the representations of the parties, an additional thirty-day delay in remanding this matter would serve no purpose, and therefore the Court will not delay in entering this Order.