United States District Court, D. Delaware
STATE OF DELAWARE DEPARTMENT OF NATURAL RESOURCES & ENVIRONMENTAL CONTROL, Plaintiff,
MOUNTAIRE FARMS OF DELAWARE, INC., Defendant.
B. Scott, William J. Kassab, Delaware Department of Justice,
Dover, DE - attorneys for Plaintiff.
Michael Parkowski, Michael W. Arrington, Michael W. Teichman,
Parkowski, Guerke & Swayze, P.A., Wilmington, DE -
attorneys for Defendant.
T. Brockstedt, Stephen A. Spence, Baird Mandalas Brockstedt,
LLC, Lewes, DE; Philip C. Federico, Brent Ceryes, Schochor,
Federico and Staton, P.A., Baltimore, MD - attorneys for
Noreika, U.S. District Judge.
before the Court is the motion of Gary and Anna-Marie Cuppels
and more than 690 others similarly situated (collectively,
“Intervenors”) to intervene in this case pursuant
to Rule 24 of the Federal Rules of Civil Procedure and the
rights of intervention afforded by the Clean Water Act
(“CWA”) and the Federal Resource Conservation and
Recovery Act (“RCRA”). (D.I. 4). For the reasons
set forth below, the motion to intervene is GRANTED.
Intervenors are residents and property owners who reside
within five miles of a poultry processing plant and disposal
facilities owned and operated by Defendant Mountaire Farms of
Delaware, Inc. and its related companies, Mountaire
Corporation and Mountaire Farms, Inc. (collectively,
“Mountaire”). (D.I. 4 at 1). The Intervenors
allege that “Mountaire has disposed of billions of
gallons of highly contaminated wastewater and liquefied
sludge on lands near the Intervenors' residences, ”
which has seeped into the groundwater and caused nitrates to
spread “for miles” and reach “dangerously
high” concentrations in the surrounding area.
(Id. at 2). The Intervenors claim that the
groundwater contamination has rendered their water
undrinkable, caused adverse health effects and caused the
Intervenors' property to lose “substantial
2, 2018, the Intervenors sent letters to Mountaire and the
State of Delaware Department of Natural Resources &
Environmental Control (“DNREC”) notifying them of
Intervenors' intent to sue Mountaire for violations of
the CWA and RCRA under the relevant citizen-suit provision of
each statute. (See D.I. 4-3 at pgs. 4-16 of 83;
see also D.I. 9 at 1). In their letter to DNREC, the
Intervenors requested to meet with DNREC to discuss concerns
about Mountaire's alleged misconduct and to offer
assistance in investigating. (D.I. 9 at 1-2; see
also D.I. 4-3 at pgs. 15-16 of 83). DNREC declined to
“commit” to a meeting. (D.I. 9 at 2). The
Intervenors followed up with DNREC with requests for meetings
and offers of the assistance of experts retained by
Intervenors. (D.I. 9 at 2; see also Id. (follow-up
requests sent on May 22, May 25 and May 30 of 2018)). DNREC
did not respond to the follow-up requests. (Id.).
4, 2018, DNREC initiated the present action against Mountaire
for violations of the CWA, 33 U.S.C. § 1251 et
seq., and RCRA, 42 U.S.C. § 6901 et seq.
(D.I. 1 ¶¶ 31-39). In its Complaint, DNREC requests
that the Court declare Mountaire to be in violation of the
CWA and RCRA, and DNREC seeks an injunction that, inter
alia, prohibits Mountaire from further contaminating
groundwater and requires Mountaire to investigate the
contamination and provide residents with an alternative water
supply. (Id. at 7-8 (Prayer for Relief)). On the
same day this case was filed, DNREC filed a parallel
proceeding in the Superior Court for the State of Delaware,
alleging violations of state environmental laws and
referencing the same federal laws at issue in this litigation
(i.e., the CWA and RCRA). (See generally
Complaint, DNREC v. Mountaire Farms of Delaware,
Inc., No. S18M-06-002 (Del. Super. Ct. June 4, 2018);
see also Id. ¶ 3 (“DNREC enforces
numerous environmental statutes and regulations, including
federal delegation of administration of [RCRA] codified at 42
U.S.C. § 6901 et seq.; federal delegation of
administration of the [CWA] codified at 33 U.S.C. § 1251
et seq. . . .”)). DNREC admits that, in the
state court action, it is ultimately seeking court approval
of a Proposed Consent Decree between DNREC and Mountaire that
would “require Mountaire to pay a civil penalty and
take corrective measures that will address its violations of
Delaware environmental statutes and regulations, as well as
its violations of the CWA and RCRA that are the basis for the
Federal Case.” (D.I. 8 at 2).
29, 2018, Intervenors filed the present motion to intervene
(D.I. 4) and proposed intervenor complaint (D.I. 4-2). The
motion seeks intervention as a matter of right under Rule
24(a) primarily based on the statutory rights of intervention
provided by the CWA and RCRA, and also seeks permissive
intervention under Rule 24(b) in the alternative. (D.I. 4 at
3-4; see also D.I. 9 at 5-8). DNREC and Mountaire
oppose intervention. (See D.I. 7 (Mountaire's
opposition); D.I. 8 (DNREC's opposition)).
Motion to Intervene
of the Federal Rules of Civil Procedure sets out the
circumstances by which a person or entity may intervene in an
action. Rule 24(a)(1) requires the Court to permit
intervention as a matter of right to anyone “given an
unconditional right to intervene by a federal statute.”
Fed.R.Civ.P. 24(a)(1). Similarly, Rule 24(a)(2) requires the
Court to permit intervention to anyone who “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)(2). Unlike intervention as of right under
Rule 24(a), Rule 24(b) affords the Court discretion in
allowing intervention of anyone “given a conditional
right to intervene by a federal statute” or anyone who
“has a claim or defense that shares with the main
action a common question of law or fact.” Fed.R.Civ.P.
24(b)(1)(A) & (B); see also Brody By &
Through Sugzdinis v. Spang, 957 F.2d 1108, 1124 (3d Cir.
1992) (“Whether to grant permissive intervention under
Rule 24(b) . . . is within the discretion of the district
court . . . .”). A timely motion is a prerequisite to
intervention under both Rule 24(a) and Rule 24(b).
See Fed. R. Civ. P. 24(a) (“On timely motion,
the court must permit anyone to intervene who . . .
.”); Fed.R.Civ.P. 24(b)(1) (“On timely motion,
the court may permit anyone to intervene who . . . .”).
Citizen Suits and Intervention under the CWA and
and RCRA each provide citizens with a right to initiate civil
actions against persons or entities (including the
government) who violate the statute or standards, orders,
etc. promulgated thereunder. See, e.g., 33 U.S.C.
§ 1365(a)(1) (CWA permitting citizen suits alleging any
“violation of (A) an effluent standard or limitation
under this chapter or (B) an order issued by the
Administrator or a State with respect to such a standard or
limitation”); 42 U.S.C. § 6972(a)(1)(A) (RCRA
permitting citizen suits alleging any “violation of any
permit, standard, regulation, condition, requirement,
prohibition, or order which has become effective pursuant to
this chapter”); 42 U.S.C. § 6972(a)(1)(B) (RCRA
permitting citizen suits against those “who ha[ve]
contributed or who [are] contributing to the past or present
handling, storage, treatment, transportation, or disposal of
any solid or hazardous waste which may present an imminent
and substantial endangerment to health or ...