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United States v. Union Elec. Co.

ELR Citation: 26 ELR 20188
Nos. No. 94-3606, 64 F.3d 1152/41 ERC 1776/(8th Cir., 08/30/1995) rev'd

The court holds that nonsettling potentially responsible parties (PRPs) under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may intervene as of right under Fed. R. Civ. P. 24(a)(2) to oppose a consent decree between the U.S. government and settling PRPs regarding the cleanup of the Missouri Electric Works site in Cape Girardeau, Missouri. The court first notes that the near identity of language between Fed. R. Civ. P. 24(a)(2) and the CERCLA §113(i) intervention provision persuades it that the same standards, in most respects, should be applied to intervention under either provision. Considering the standards applicable to the question of intervention as of right under Rule 24, the court first holds that the nonsettling PRPs' motion for intervention was timely. No parties to the action were prejudiced by the delay in moving to intervene. The court next holds that the nonsettling PRPs had a recognized interest in the subject matter of the litigation and that their interest was likely to be impaired in this litigation. Addressing the requirements for intervention identified in §113(i) and Rule 24(a)(2), the court holds that the nonsettling PRPs have an interest relating to the subject of the action. Their interest is in potential contribution under §113(f)(1), and the contribution interest this section creates is directly related to the subject matter of the litigation, because it may be asserted during or following that litigation and it arises from the liability or potential liability of persons as the result of that litigation. The court also holds that the interests are substantial and legally protectable, because §113(f)(1) itself provides for legal protection of the interest in the primary litigation by providing for contribution claims. Moreover, it is precisely because settlement under §113(f)(2) would cut off the interest established by §113(f)(1) that the nonsettling PRPs have an interest in the present litigation sufficient to warrant intervention. The threat of cutting off the contribution rights of nonsettling PRPs due to the settlement creates a direct and immediate interest on the part of nonsettling PRPs in the subject matter of the litigation. Moreover,no finding of liability or assessment of excessive liability is required before the contribution interest arises. Also, although the interest here may be inchoate to the extent that the value of any contribution claim has not yet been determined, the interest is nonetheless sufficiently certain once a person has been identified as a PRP to support intervention. The court concludes that the interest itself is neither contingent nor speculative, but rather statutory, and that it existed from the inception of this litigation under CERCLA §§106 and 107. Next, the court holds that the nonsettling PRPs have presented a protectable interest that may, as a practical matter, be impaired in the disposition of the present litigation. The contribution interest of the prospective intervenors might be impaired by the present litigation, as it could bar or reduce the monetary value of the contribution claims of the nonsettling PRPs against the settling PRPs. The court also finds that an interest in the fairness of the consent decree is also a legally protectable interest and otherwise sufficient to support intervention. The court holds that there is no existing party to this litigation who can adequately represent the identified interests of the nonsettling PRPs. Both the existing plaintiffs and existing defendants have an interest in entry of the consent decree that is contrary to the interest of the intervenors who oppose entry of the decree on the ground that it is unfair to them. Also, the interests of the prospective intervenors cannot be subsumed within the shared interest of the citizens of the United States and presumed to be represented by the government. The intervenors interests have not been adequately protected by the negotiations and public comment procedures that preceded the drafting of the consent decree the U.S. Environmental Protection Agency seeks to impose in this litigation. Finally, the court notes that having found that the nonsettling PRPs were entitled to intervene as of right, the court need not consider whether the nonsettling PRPs should have been allowed permissive intervention pursuant to Fed. R. Civ. P. 24(b).

Counsel for Plaintiff
David Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Thomas B. Weaver
Armstrong, Teasdale, Schlafly & Davis
One Metropolitan Sq., St. Louis MO 63102
(314) 621-5070

Before Fagg and Bowman, JJ.: