March 20, 1986
THE MUMFORD COVE ASSOCIATION, INC.; HALEY FARMS ESTATES, INC.; MARION ACKERMAN, CHERYL M. BARRETT, PETER J. BARTINIK, MARIANNE BARTINIK, CATHERINE BELAIR, WAYNE BERGE, ROBERT G. BOGGS, PHYLLIS BOGGS, ARTHUR S. BOOTH, ELLEN L. BOOTH, KATHLEEN F. BRAGAW, LOUIS K. BRAGAW, HENRY L. BRALY, MARY S. BRALY, HARRIETT BROWN, MALCOLM BROWN, MURIEL W. BUCKLEY, WILLIAM C. BYRNES, HARRIET M. CARAMELLA, SEVERN S. CARLSON, HUGH D. CASEY, HENRY J. CHAMBERLAIN, MARY M. CHAMBERLAIN, WILLIAM S. CLARK, JOHN J. CONDRON, MARGUERITE CONDRON, DAVID M. COTE, MARCHIA B. COTE, DAVID P. DEAN, DAVID L. DEIBEL, RUTH W. DELAP, JAMES DUFFY, EDYTHE DUFFY, HENRY F. DURHAM, GAIL C. EDDY, DAVID F. FALVEY, ESQ., H. PATRICIA FALVEY, ELEANOR G. FEINBERG, GLEN S. FEINBERG, LINDA R. FEINBERG, GREGORY E. GARDINER, LINDA J. GARDINER, HARRY D. GAULT, JR., RALPH M. GIFFORD, JUDITH N. GIFFORD, JOHN M. GRAY, III, KENNETH GRUBE, GEORGE GUERTIN, M. MADELINE GUERTIN, JOSEPH HANZEL, JOANN B. HARRINGTON, JOHN HEWES, DOROTHY HOYT, PAUL C. HUBER, DOROTHY A. HUBER, HELENE LAVIGUEUR, ANGELO C. LAZAROS, MARILYN LEONARD, WALLACE MACPEEK, JEAN F. MAZZELLA, MIRIAM MORGAN, WAYNE N. MULLER, ROSALIE MULLER, JACK MURATORE, RALPH OLESEN, GALE OLESEN, EDWARD OLIVEIRA, HELEN OLIVEIRA, ARTHUR G. OLSON, RITA M. PEASE, SALVATORE PENNELLA, SANDRA PENNELLA, JOHN A. PESCATELLO, HAROLD M. PINGREE, JR., JOYCE O. REGAN, WARD M. RITCHEY, J. LOUISE ROBERTS, MALCOLM J. ROBERTSON, MARGARET ROBERTSON, WILLIAM SEIBERT, ARTHUR J. SHAW, III, MARIE SHAW, JEREMIAH SHEA, HERMAN E. SHEETS, EARL W. SMITH, RUTH E. STOCKER, WARREN C. STOCKER, HELEN H. STOCKWELL, COLLEEN ANN SULLIVAN, HOWARD R. SWENSON, ALFRED W. THATCHER, ELEANOR V. WALKER, GEORGE J. WALKER, JOSEPH WARNER, ERNEST H. TREFF, DORTHEA WARNER, DOROTHY WINDHORST, DAVID H. SWENSON, LAURA SWENSON, PLAINTIFFS-APPELLEES; STANLEY J. PAC, COMMISSIONER OF ENVIRONMENTAL PROTECTION, PLAINTIFF-INTERVENOR,
THE TOWN OF GROTON, CONNECTICUT, DEFENDANT; THE CITY OF GROTON AND THE CITY OF NEW LONDON, APPELLANTS
Appeal by the Cities of Groton and New London, Connecticut, from an order of the United States District Court for the District of Connecticut (Cabranes, J.) that denied its motion to intervene in a pending suit instituted by Mumford Cove Association, Inc., et al,. against the Town of Groton to enforce a sewage abatement order, pursuant to Fed. R. Civ. P. 24(a)(2) and Rule 24(b). Affirmed.
Before: MANSFIELD, MESKILL and CARDAMONE, Circuit Judges
CARDAMONE, Circuit Judge:
Two Connecticut cities seek to inject themselves into a federal suit brought against a Connecticut town to compel its compliance with an order requiring the town to shift the site of sewage discharge. At the root of the cities' motion to intervene are several concerns. Foremost is that enforcement of the order would result in pollution of the Thames River that flows between the two cities. Also significant is the related costly burden of constructing the necessary outfall. Nevertheless, neither concern furnishes grounds to intervene. First, since the Order that contemplates discharge into the Thames River is final its terms are no longer subject to challenge under Connecticut law. Further, because the cities take issue with the Order's terms rather than its enforceability, their claimed grounds for intervening do not relate to the subject matter of the federal enforcement suit.
Second, all that can be accomplished at this late date is postponement of the inevitable. Congress had concluded that the purity and usefulness of our waters may not be measured in dollars and cents alone. Fueling the national effort to cleanse them is money raised by taxes which, no matter how devised, are never convenient or acceptable. Yet, so long as similar burdens are impartially imposed on other municipalities these cities may not complain that the "rules of justice" have been trampled upon. The Federalist, No. 10, at 57 (J. Madison) (Sesquicentennial ed. 1937). Consequently, we affirm the order denying the motion to intervene.
Plaintiffs, the Mumford Cove Association, Inc., a non-profit corporation of property owners, and its individual members, brought an action under the citizen's suit-provisions of the Clean Water Act, 33 U.S.C. § 1365 (1982) (the Act) against the Town of Groton, Connecticut (Town), where the individual plaintiffs reside. The Commissioner of the Department of Environmental Protection of the State of Connecticut (DEP) successfully moved to intervene as a plaintiff pursuant to Fed. R. Civ. P. Rule 24(a) and (b). The Mumford Cove Association and its individual members own property immediately adjacent to Mumford Cove, a shallow estuarine tidal basin in Groton connecting to Fisher's Island Sound, which is a part of Long Island Sound, Mumford Cove is a navigable water of the United States subject to protection under the Clean Water Act.
For more than a decade the Town of Groton's sewage treatment plant has been discharging effluent into Fort Hill Brook, upstream from Mumford Cove. The sewage plant began operating in 1974, replacing a smaller facility, and its discharge has changed Mumford Cove from a tidal saltwater embayment, abounding in diverse plant and animal life and fit for human use, into a brackish water choked by a monoculture of algae excluding beneficial aquatic plant life.
In 1971 the DEP issued Order No. 964 requiring the Town to cease discharging its treated sewage into Mumford Cove and to construct an outfall pipeline to serve the expanded sewage treatment plant, scheduled to begin operations in 1974. Following issuance of the 1971 Order, the Town evaluated various outfall alternatives and on the basis of an expert's report the DEP modified Order No. 964, directing the construction of an outfall that would result in a discharge to the navigation channel of the Thames River. The diversion plan specified in the state permit requires construction of a pipeline through a portion of the City of Groton. The Town of Groton objected to the modified order and requested an administrative hearing in which the City of Groton joined. On the bases of extensive testimony and numerous exhibits the hearing officer approved, and the Commissioner of DEP affirmed, Order No. 964 modified directing the outfall to the Thames River. Accordingly, the DEP issued its Final Determination Order No. 964 Modified on September 27, 1976. No appeal was taken from this final determination.
On November 30, 1984 plaintiffs instituted the instant action against the Town. The complaint consists of five counts. Counts one and two charge that the Town violated both its federal discharge permit and Order No. 964 issued pursuant to the Act, in that it has failed to construct the Thames River outfall. The remaining three counts assert pendent state nuisance and negligence causes of action. Leave to intervene was granted the DEP on January 30, 1985. On February 20, 1985 the Cities of Groton and New London (the Cities) simultaneously filed a motion for leave to intervene as defendants under Rule 24(a) and (b) and moved to dismiss plaintiffs' complaint on the grounds that enforcement of Order No. 964 was not ripe. The City of New London is located along the west bank of the Thames River across the river from the City and Town of Groton, both situated on the east bank of the Thames River. New London discharges its sewage effluent into the Thames River. The Cities' motion to intervene was denied by the United States District Court for the District of Connecticut (Cabranes, J.) in an oral decision on April 29, 1985. It is from that denial that the Cities appeal.
B. The District Court's Decision
The district court's decision identified the Cities' interests as rising from their status as intervenors in the state proceeding and their asserted rights to participate in the instant matter pursuant to federal regulations concerning the awarding and distribution of construction grants. The court considered the issue between plaintiffs and the Town as one of "enforcement of a state discharge permit" issued pursuant to the Act. The district judge further noted that any person may participate in state administrative proceedings regarding a state discharge permit under the terms of Connecticut's broadly permissive intervention statute. Conn. Gen. Stat. § 22a-19. But it held that the Cities did not have the "requisite significantly protectable interest in the subject of this litigation that would justify intervention in this federal lawsuit."
The district court affirmed the finality of the DEP administrative proceeding that resulted in Order No. 964 and held that the permit's effluent diversion provisions were not at issue in this federal proceeding. After denying intervention of right under Fed. R. Civ. P. 24(a)(2), it agreed with plaintiffs that intervention by the Cities would likely "unduly delay or prejudice the adjudication of the rights of the original parties" and also denied permissive intervention under Fed. R. Civ. P. 24(b)(2). The district court granted appellants amici curiae status on May ...
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