Envtl. Integrity Project v. Mirant Ash Mgmt. LLC

• Decision Date: 29 December 2010
• Docket Number: No. 01779,01779
• Parties: ENVIRONMENTAL INTEGRITY PROJECT, ET AL. v. MIRANT ASH MANAGEMENT, LLC, ET AL.
• Court: Court of Special Appeals of Maryland

ENVIRONMENTAL INTEGRITY PROJECT, ET AL.

v.MIRANT ASH MANAGEMENT, LLC, ET AL.

No. 01779

COURT OF SPECIAL APPEALS

OF MARYLAND

Filed: December 29, 2010

REPORTED

Woodward,

Matricciani,

Moylan, Charles E., Jr.

(Retired, Specially Assigned),

JJ.

Opinion by Matricciani, J. Appellants, the Environmental Integrity Project ("EIP"), the Potomack Riverkeeper ("PRK"), and several individual Maryland citizens ("Individual Appellants") (collectively, "appellants") appeal the denial of their motion to intervene in the Circuit Court for Charles County. Appellants sought to intervene in an action filed by the Maryland Department of the Environment ("MDE") against Mirant Maryland Ash Management, LLC, and Mirant Mid-Atlantic, LLC (collectively, "Mirant") seeking injunctive relief and civil penalties for alleged violations of the Clean Water Act at one of Mirant's facilities.

Appellants present two issues for our consideration, which we have rephrased as such:

I. Whether the circuit court erred in denying appellants' motion for intervention as a matter of right.

II. Whether the circuit court erred in denying appellants' motion for permissive intervention.

For the reasons set forth below, we answer both questions in the negative, and we affirm the judgment of the circuit court.¹

FACTS

Appellees lease and operate two power plants in Southern Maryland, including the Morgantown Generation Station in Morgantown, Maryland. The Morgantown plant generates electricity through the combustion of coal, which produces waste byproducts

(hereinafter referred to as coal combustion byproducts, or "CCBs"), including fly ash.² In order to dispose of the fly ash and other waste products created by their power plants, appellees own and operate the Faulkner Fly Ash Storage Facility near La Plata, Maryland.³ The Faulkner facility was previously owned and operated by the Potomac Electric Power Company (PEPCO).

Appellant Environmental Integrity Project⁴ is a nonprofit organization based in Washington, DC, that advocates for the enforcement of environmental laws, focusing on coal-burning plants, refineries, and factory farms. Appellant Potomac Riverkeeper⁵ is a nonprofit organization that advocates for the creation of new laws and the enforcement of existing state and federal laws affecting the Potomac River watershed. The five individual appellants are persons whose homes are located within ten to fifteen miles of the Faulkner facility, on either the Wicomico River or Potomac River.

On December 18, 2000, MDE and PEPCO, appellee's predecessor at the Faulkner facility, entered into a Complaint and Consent Order, through which the parties agreedthat PEPCO, and subsequently Mirant, would be responsible for installing a water treatment system to address discharges from the fly ash material to surface water and groundwater.⁶ Appellees maintain that this water treatment system was put in place and that it was in conformity with MDE regulations. On April 2, 2008, EIP and PRK sent a letter to Mirant's leadership notifying Mirant of their intent to sue for violations of the Clean Water Act at the Faulker facility. In its letter, EIP explained that its research indicated that the levels of toxic pollutants being discharged from the facility were in excess of Maryland's water quality criteria, among other violations. On May 29, 2008, MDE filed a civil enforcement action seeking injunctive relief and civil penalties pursuant to Md. Code Ann. (1982, 2007 repl. vol.), Environment Article §9-339 and §9-342, stating that the "existing leachate collection and treatment systems" put in place at the Faulkner facility "were insufficient to prevent the migration of pollutants from contaminating groundwater and surface waters."

On August 21, 2008, appellants filed a motion to intervene as a matter of right, pursuant to Md. Rule 2-214(a), or in the alternative, for permissive intervention pursuant to Md. Rule 2-214(b). MDE filed a response in support of appellants' motion to intervene, and appellees filed an opposition thereto. On September 23, 2009, the Circuit Court for Charles County denied the motion to intervene. Appellants timely noted this appeal.⁷ Additional facts will be provided as necessary.

DISCUSSION

I.

Appellants contend that the circuit court erred in denying their motion to intervene as a matter of right. Appellants argue that they are entitled to intervention as of right because their motion was timely filed, and because they meet the requirements for intervention. Appellants assert that they have specific interests that will be impacted by the litigation, that the disposition of the action could impair appellants' ability to protect these interests, and that the existing parties do not adequately represent appellants' interests.

A circuit court's denial of a motion to intervene is an appealable final order. Hiyab, Inc. v. Ocean Petroleum, LLC, 183 Md. App. 1, 9 (2008). See also Montgomery County v. Bradford, 345 Md. 175, 185 n.1 (1997) ("That denial of a motion to intervene is an appealable final order is well settled.").

Md. Rule 2-214(a) governs intervention as a matter of right, and provides:

(a) Of right. Upon timely motion, a person shall be permitted to intervene in an action: (1) when the person has an unconditional right to intervene as a matter of law; or (2) when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties.

(Emphasis added.)

Recognizing that previous Maryland case law did not explicitly articulate the appropriate standards for appellate review applicable to motions to intervene, the Court of Appeals recently adopted the standards articulated in federal intervention guidelines. See Maryland-National Capital Park & Planning Comm'n v. Town of Wash. Grove, 408 Md. 37, 65 (2009) (holding that the federal authority decided under Fed. R. Civ. P. 24, which is analogous to Md. Rule 2-214, is consistent with the development of Maryland law on intervention, and adopting the federal standards for appellate review). Under these standards, the denial of a motion to intervene as a matter of right, premised on any ground other than untimeliness, is reviewed de novo.

In Hartford Ins. Co. v. Birdsong, we set out the four-part test for determining whether a party qualifies for intervention as a matter of right: (1) the application for intervention must be timely; (2) the applicant must have an interest in the subject matter of the action; (3) disposition of the action would at least potentially impair the applicant's ability to protect its interest; and (4) the applicant's interest must be inadequatelyrepresented by existing parties. 69 Md. App. 615, 622 (1987) (adopting the federal standards under Fed. R. Civ. P. 24).

(1)

Appellees do not contest the fact that appellants' motion was timely filed.

(2)

Once timeliness has been established, appellants must demonstrate that they have an interest in the subject matter of the action. The Court of Appeals described the nature of such an interest in Maryland-National Capital Park & Planning Comm'n, 408 Md. at 75:

'The requirement which we have imposed on the applicant for intervention... is that he have an interest for the protection of which intervention is essential and which is not otherwise protected.' Put another way, 'whether the applicant for intervention has an interest which it is essential to protect may be equated with the requirement... that he is or may be bound by a judgment in the action.' It is not enough for a person seeking intervention to base its motion on concern that some future action in the proceedings may affect its interests adversely. Seeking intervention on such a basis is 'merely speculative and affords no present basis upon which to become a party to the proceedings.'

(quoting Citizens Coordinating Committee on Friendship Heights, Inc. v. TKU Associates, 276 Md. 705, 712 (1976)).

Appellants contend that they have direct, specific and substantial interests in the subject matter of the action.⁸ Specifically, appellants state that EIP is "interested in ensuring that state and federal water pollution control laws are fully enforced... particularly in light of the... serious public health and environmental risks associated with hazardous dumping of [CCBs]." Similarly, PRK is said to have "a specific interest in preventing and remediating any pollution of the waters of the Potomac River." Individual appellants Joan Bowling, Samuel Young Bowling, Sr., Edward L. Marshall, and Susanne L. Marshall live and own homes on the Wicomico River, between ten and fifteen miles downstream of the Faulkner facility. Individual appellant Clair Joseph Martin lives and owns a home on the Potomac River, approximately five miles downstream of the Faulkner facility. Individual appellants state that their ability to fish and recreate on the Wicomico and Potomac Rivers has been negatively impacted. Some also state that the proximity of the facility has decreased their property values.

Appellees counter that appellants' alleged interests are insufficient to support intervention, "because they are either generalized claims, are not directly related to thetransaction that is the subject of the action, or are not recognized interests under Maryland law." Appellees also argue that appellants have not demonstrated the requisite standing in order to intervene in the action. In support of this argument, appellees cite Duckworth v. Deane, 393 Md. 524 (2006), in which the Court of Appeals held that in order to demonstrate an interest sufficient for intervention, "the disposition of the action must 'directly' impact upon the applicant's interest," and that "'concerns [which] are indirect, remote, and speculative' are insufficient." Id. at 539-40. In addition, the Duckworth Co...