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United States v. Gateway Energy & Coke Company, LLC

United States District Court, S.D. Illinois

November 7, 2014

UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
GATEWAY ENERGY & COKE COMPANY, LLC, et al., Defendants. GLENN GRAFF, KELLY GRAFF, HILDRETH MADDOX and PEGGY MADDOX, Proposed Plaintiffs-Intervenors,

MEMORANDUM & ORDER

DAVID R. HERNDON, District Judge.

I. Introduction and Background

Pending before the Court is proposed intervenors Glenn Graff, Kelly Graff, Hildreth Maddox and Peggy Maddox ("the Graffs") motion to intervene (Doc. 20). The Graffs, pursuant to Federal Rule of Civil Procedure 24, move to intervene in this action: (1) to sever the United States' and the State of Ohio's claims involving the Ohio Haverhill facility from those involving the Illinois Gateway facility and transfer the claims against the Ohio Haverhill facility to the United States District Court for the Southern District of Ohio, where the Graffs' citizen enforcement action against the Ohio facility has been pending for four years and (2) to challenge the sufficiency of the proposed Consent Decree as a tool to cleanse the environment. Defendants oppose the motion arguing that this litigation is all but resolved and that intervention is unnecessary and would delay resolution of this matter and performance of the work resulting emissions reductions called for by the Consent Decree (Doc. 25). Further, defendants argue that allowing the proposed intervenors to intervene and seek transfer to take discovery and conduct evidentiary hearing would result in significant prejudice to the existing parties and considerable delay in implementing the relief established by the proposed consent decrees.

On June 26, 2013, the United States of America, the State of Illinois and the State of Ohio filed suit against Gateway Energy & Coke Company, LLC ("GECC"), Haverhill Coke Company, LLC ("HCC") and SunCoke Energy, Inc. ("SunCoke") for claims under the Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq, the Illinois Environmental Protection Act ("Illinois Act"), 4125 ILCS 5/1 et seq., and Chapter 3745 of the Ohio Revised Code ("ORC") (Doc. 2). Plaintiffs seek injunctive relief and civil penalties against GECC, HCC and SunCoke for violations of these statutes and the implementing regulations. The claims relate to two facilities - the "Gateway Facility" in Granite City, Illinois, owned and operated by GECC and SunCoke and the "Haverhill Facility" in Franklin Furnace, Ohio, owned and operated by HCC and SunCoke. Both facilities manufacture metallurgical coke utilizing the same horizontal heat recovery coke oven technology to produce coke and employ the same air pollution control devices to minimize emissions from the cokemaking process.

In December 2008, the Governments issued the first Notice of Violations ("NOV") for the alleged CAA violations at the Haverhill Facility. Since that time, the Governments issued numerous NOVs for Haverhill Facility and one for the Gateway Facility. Because of the similarities of the facilities and the violations, the Governments initiated negotiations with defendants in 2010 to resolve the alleged violations. Since 2010, the parties have participated in extensive negotiations, exchanged many drafts of the proposed consent decree and exchanged many documents. The proposed consent decree culminated after a years-long process of extensive fact-finding, settlement discussion, and independent agency evaluation of the potential case against each defendant. During this process, the United States had numerous telephone calls and met in person with counsel for the proposed intervenors at their request to consider any information the proposed intervenors might with to provide regarding the Haverhill facility. As the parties neared settlement, the Governments, with defendants' permission, shared a draft of the proposed consent decree with the proposed intervenors, who provided comments on October 9, 2012 and January 23, 2013. The governments carefully reviewed written comments by the proposed intervenors on the draft consent decree.

The same day the complaint was filed, the United States filed a notice of lodging of the proposed consent decree in this case that would resolve defendants' CAA liability for all alleged CAA violations, including resolution of all NOVs, and for future CAA violations associated with installation of the redundant Heat Recovery System Generators (Doc. 3). The proposed consent decree would require: (1) the installation of process equipment to provide redundancy that will allow hot cooking gases to be routed to a pollution control device instead of vented directly to the atmosphere in the event of equipment downtime; (2) installation of a continuous emissions monitor for sulfur dioxide at one bypass vent per process unit (two at the Haverhill Facility and one at the Gateway Facility); (3) payment of a civil penalty of $1.995 million, of which 1.27 million will go to the United States, $575, 000 to the State of Illinois, and $150, 000 to the State of Ohio; and (4) performance of a lead hazard abatement supplemental environmental project at a cost of $255, 000 at the Gateway Facility. Thereafter, the United States published that notice of lodging in the Federal Register for public comments. The proposed intervenors requested extensions of time of the comment period twice and the Governments allowed these requests; thus extending the comment period to October 3, 2013. The proposed intervenors timely filed comments. Also, the Governments received about 1800 pages of additional material from the proposed intervenors after the close of the comment period.

The proposed intervenors are Ohio residents, who own real property that neighbors the Haverhill Facility. On September 14, 2009, the proposed intervenors filed suit against SunCoke and HCC in the Southern District of Ohio, Graff, v. Haverhill North Coke Co., 1:09-cv-0670. The complaint in the Southern District of Ohio alleges claims under the citizen suit provision of the CAA, a claim pursuant to the imminent and substantial endangerment provision of the Resource Conservation & Recovery Act ("RCRA") and Ohio common law claims such as negligence, nuisance, trespass, ultrahazardous activity or abnormally dangerous activity and intentional infliction of emotional distress. The Ohio suit includes broader claims that extend beyond the complaint at bar.

On November 6, 2023, the proposed intervenors filed the motion to intervene (Doc. 20). Both defendants and plaintiffs filed their responses on November 25, 2013 (Docs. 25 & 26) and the proposed intervenors filed a reply on December 5, 2013 (Doc. 30). On April 10, 2014, the Court deferred ruling on the motion to intervene finding that it was premature as the Governments were still considering public comments on the proposed consent decree (Doc. 38). On August 11, 2014, plaintiffs moved to approve the proposed consent decree (Docs. 40 & 41). That same day, defendants filed a non-opposition to plaintiffs' motion to enter consent decree (Doc. 42). As the motion to intervene is ripe, the Court turns to address the merits.

II. Applicable Standard

In considering a motion to intervene, the Court must accept as true the nonconclusory allegations of the motion. Id. "[C]ourts have been reluctant to interpret statutes to grant an unconditional right to intervene to private parties." Phar-Mor, Inc. v. Coopers & Lybrand, 22 F.3d 1228, 1232 (3d Cir.1994) (construing Rule 24(a)(1) narrowly in the context of the right of private parties to intervene in bankruptcy cases under 11 U.S.C. § 1109(b)); Fuel Oil Supply & Terminaling v. Gulf Oil Corp., 762 F.2d 1283, 1286 (5th Cir.1985) (same). "The statutes that do confer an absolute right to intervene generally confer that right upon the United States or a federal regulatory commission." Id. (citing C. Wright & A. Miller, Federal Practice and Procedure, Civil § 1906).

Federal Rule of Civil Procedure 24(a), subtitled "Intervention of Right, " provides:

On timely motion, the court must permit anyone to intervene 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 the disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, ...

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