United States v. United States Steel Corporation

Civ. No. 75-H-735-S (N.D. Ala. June 23, 1976)

ELR Digest

The court denies the United Steelworkers Union's motion to intervene in this Clean Air Act enforcement proceeding because the union's interest in worker employment is adequately represented by the defendant United States Steel. On June 9, 1975, plaintiff filed an action to enjoin operation of five open-hearth furnaces at defendant's Ensley Operation in Jefferson County, Alabama, claiming that their particulate emissions violated national air quality standards promulgated under § 109 of the Clean Air Act, 42 U.S.C. § 1857c-4, ELR 41201, and the Alabama Implementation Plan approved May 31, 1972, by Environmental Protection Agency (EPA). The parties filed a proposed consent decree on the same day that the complaint was filed, proposing to allow furnace operation, even though in violation of emission standards, until June 30, 1976. Following notice of the proposed decree, 40 Fed. Reg. 26050, the court rejected the proposal on the groundthat compliance extension was not possible except through a statutory request by the governor, and on July 23, 1975, the court entered a permanent injunction to take effect on July 1, 1976. On June 16, 1976, EPA rejected defendant's request for extension of the decree, and on June 17, the Steelworkers moved to intervene, claiming that they face a loss of employment from entry of the injunction and attack as arbitrary EPA's refusal to modify the decree.

Only the governor of a state may initiate an action to postpone a compliance date for an air pollution source. 42 U.S.C. § 1857c-5(f). Natural Resources Defense Council v. EPA, 489 F.2d 390, 4 ELR 20204 (5th Cir. 1974). The instant action was commenced under 42 U.S.C. § 1857c-8(b) as an enforcement action, rather than an action to obtain a postponement of compliance, thus necessitating the court's refusal to sign the proposed consent decree.

Denial of intervention need not be based on the ground that granting intervention would indirectly cause a postponement in violation of the Act, since intervenors fail to satisfy the four-way test of Rule 24(a) of the Federal Rules of Civil Procedure: (1) a demonstrated interest in the subject matter of the controversy, (2) an interest affected by disposition of the action, (3) inadequate representation by existing parties, and (4) timely application for intervention. There is some doubt that intervenors have a legally-protected interest in the controversy. More serious, however, is the objection that the defendant adequately represents the intervenors' interest. United States Steel has spent thousands of dollars to postpone the closing of the furnaces. If the intervenors felt that these efforts were inadequate, they should have intervened in 1975 when the decree was proposed, rather than delaying their action until EPA announced in June of 1976 that it would not seek to modify the court order. Indeed, the closing of these furnaces has been projected since the 1972 approval of the Alabama Implementation Plan. Also, the closing of the furnaces was implicit in the defendant's decision not to clean up its Ensley Operation as it has its other operations following the 1970 enactment of the Clean Air Act. However regrettable the loss of jobs may be, EPA's 1976 decision did not constribute to the situation.

The full text of this opinion is available from ELR (11 pp. $1.50, ELR Order No. C-1081).

Counsel for Plaintiff
Raymond W. Mushal
Land and Natural Resources Division
Department of Justice
Washington DC 20530
(202) 739-2773

Charles A. Perry, Asst. U.S. Attorney
Federal Building
Birmingham AL 35203
(205) 254-1785

Counsel for Intervenor United Steelworkers of America, Local 1489
Jerome A. Cooper
Cooper, Mitch & Crawford
409 N. 21st St.
Birmingham AL 35203
(205) 328-9576

Hancock, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]