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United States v. Hooker Chems. & Plastics Corp.

Citation: 14 ELR 20875
No. Nos. 84-6110, -6112, 749 F.2d 968/21 ERC 1961/(2d Cir., 11/15/1984) Denial of citizen group intervention aff'd

The court rules that the district court did not abuse its discretion in denying appellant citizens groups' claim of a right of intervention under Rule 24(a) of the Federal Rules of Civil Procedure (FRCP) in a government hazardous waste cleanup action brought under the imminent hazard provisions of three federal statutes. Initially the court rules that the citizen suit provision of the Federal Water Pollution Control Act (FWPCA), Safe Drinking Water Act (SDWA), and Resource Conservation and Recovery Act (RCRA) do not create a statutory right of intervention pursuant to FRCP 24(a)(1) in imminent hazard actions brought under those statutes. The court analyzes the language and legislative history of the FWPCA citizen suit section and concludes that they demonstrate that citizen actions were to be limited to enforcement of administratively promulgated effluent limitations and similar standards. This was to preclude reopening in an enforcement action the complex technical and economic issues concerning the allowable levels of pollution discharges that were supposed to be resolved once and for all in the standard-setting process. The court also rejects a claim that intervention should be allowed, because the facts pleaded by the government would support an effluent limit enforcement action.

Turning to the SDWA and RCRA citizen suit provisions, the court finds less congressional guidance, but comes to the same conclusion. Both statutes allow citizen actions to enforce, and intervention in government actions to enforce, "requirements" prescribed under the Acts. The court rejects appellants' argument that the imminent hazard provisions establish substantive requirements, and thus qualify for citizen enforcement and intervention. Instead, it concludes that the SDWA and RCRA provisions were modelled on the FWPCA provision and equally limit citizen actions or intervention in cases under the imminent hazard provisions, in which the court must decide how much pollution control is required without EPA standards for reference.

The court next rules that appellants did not qualify for intervention as of right under FRCP Rule 24(a)(2), allowing intervention by persons with interests that may be impaired by a decision in the case, but only when those interests will not be represented adequately by existing parties. The court notes that Rule 24(a)(2) is a flexible provision whose several requirements were intended to be read together and applied on a case-by-case basis. The court rules that appellants do not quality under the rule because they failed to show inadequacy of representation by the existing governmental parties. The federal, state, and provincial parties were litigating as parens patriae, representing the interests of all their citizens. In such cases, intervention requires a strong showing of inadequate representation. The need must be particularly strong in cases like this one, where the government seeks to act quickly to counter an "imminent hazard" and where the case is complicated by the absence of administratively-established standards of adequate pollution control. The instant litigation promises to be very complex, and should government and the intervenor disagree over remedies, resolution of the issue would require analysis of exceptionally complex scientific and technical issues.

The court points out that the standard of review of the district judge's refusal to allow intervention is abuse of discretion. While this tends to blur the distinction between Rule 24(a)(2) intervention as of right, and Rule 24(b) permissive intervention, discretion is necessary in order to apply the flexible standard of 24(a)(2) to the facts of each case. The court rules that the district court did not abuse its discretion. The record does not establish that appellants made a strong showing of inadequacy of representation.The court below is in a better position to weigh the utility and disruption of intervention at this late stage in the litigation, having had this and related cases before it for over four years. The court adds that appellants could have achieved substantially the same role in the case by accepting the judge's offer of an elevated amici curiae position. Their failure to present solid grounds for rejecting the offer is added support for denial of their intervention request.

Counsel for Appellants
Howard R. Berman
Harvard Univ. Law School, Cambridge MA 02138
(617) 495-3100

Barbara Morrison
Jay, Klait & Morrison
1032 Ellicott Sq. Bldg., Buffalo NY 14203
(716) 855-2151

Robert J. Sugarman
Sugarman, Denworth & Hellegers
101 N. Broad St., Center Plaza, 16th Floor, Philadelphia PA 19107
(215) 751-9733

Counsel for Appellees
Geroge Berger, Louis Nizer, Martin H. Wasser
Phillips, Nizer, Benjamin, Krim & Ballon
40 W. 57th St., New York NY 10019
(212) 977-9700

Thomas H. Truitt, William R. Weissman, Donna Brown Grossman
Wald, Harkrader & Ross
1300 19th St. NW, Washington DC 20036
(202) 828-1200

Lloyd C. Guerci, Dirk D. Snel, Wendy B. Jacobs
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5403

Beryl Kuder, Ass't Attorney General
Department of Law, Capitol, Albany NY 12224
(518) 474-7330

Joel E. Schweitzer
Gellman, Brydges, Schrof & Schweitzer
800 Main St., Niagara Falls NY 14301
(716) 285-5152

Before Meskill and Pierce, JJ.