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14 ELR 20381 | Environmental Law Reporter | copyright © 1984 | All rights reserved United States v. StringfellowNo. CV-83-2501-MML (C.D. Cal. February 17, 1984)The court rules that citizens living near a hazardous waste disposal site may not intervene as of right in a government clean-up action, but allows permissive intervention with restrictions. Initially, the court rules that none of the statutory provisions cited by applicants, § 1431 of the Safe Drinking Water Act, § 7003 of the Resource Conservation and Recovery Act, and §§ 311 and 504 of the Federal Water Pollution Control Act, confer an unconditional right of intervention. The citizen suit provisions of the statutes allow intervention only in actions to enforce regulatory requirements, not in imminent hazard actions. Next, the court holds that FED. R. CIV. P. 24(a)(2) does not confer a right of intervention on applicants. Although they do have the requisite interest in the outcome of the litigation, their chances of being disadvantaged by the outcome are limited by the presence in the suit of parties with similar interests. In addition, applicants have failed to overcome the strong presumption that the sympathetic parties, state and federal agencies, will adequately represent their interests. The court does rule that applicants may be allowed to intervene under FED. R. CIV. P. 24(b) because their claim overlaps that of plaintiffs. But the court conditions permissive intervention, holding that applicants may not raise claims not raise by the original parties, intervene in the cost recovery claims, nor initiate discovery unless they confer with all parties and obtain the concurrence of at least one original plaintiff. [Related cases are published at 14 ELR 20385 and 20388 — Ed.] Counsel for Plaintiffs James R. Arnold, Ass't U.S. Attorney John K. Van De Kamp, Attorney General; Theodora Berger, Thomas E. Warriner, Donald A. Robinson Counsel for Defendants Lawrence A. Salibra II James Vernon, Richard Doty Martin J. Foley Robert L. Ackerly Vincent Fish LUCAS, J.: Order Granting Leave To Intervene The motion of Concerned Neighbors in Action ("CNA") and Penny Newman came on for hearing before the Court, the Honorable Malcolm M. Lucas, District Judge, Presiding, on October 3, 1983. Having carefully considered the papers filed and the oral argument of counsel, the Court grants CNA and Newman leave to intervene permissively pursuant to Federal Rule of Civil Procedure 24(b). Plaintiffs United States of America and the State of California filed suit on April 21, 1983 seeking an order compelling (1) abatement of the releases and threatened releases of hazardous substances from the Stringfellow Acid Pits, located in Glen Avon, California; (2) all actions necessary to remedy the conditions which have caused or may contribute to or present an imminent and substantial endangerment to the public health, welfare and environment caused by such releases; and (3) reimbursement of all funds expended by plaintiffs for the response, removal, and remedial costs and damage to natural resources. Plaintiffs named thirty-one waste generator, transporter, and owner individuals and companies as defendants in the action. CNA, a non-profit corporation, and Penny Newman, a resident, taxpayer, Glen Avon property owner, and chairperson of CNA, have moved the Court for leave to intervene. The applicants assert an unconditional right to intervene pursuant to Federal Rule of Civil Procedure 24(a) (intervention as of right) and the right to intervene by permission of the Court pursuant to Rule 24(b). Plaintiffs oppose intervention as of right, and support permissive intervention. Plaintiffs urge that certain conditions be placed on such intervention. Defendants oppose applicants' motion for intervention as of right, but concede that CNA and Newman may intervene permissively, subject to limitations that the Court may impose in its discretion. The Court concludes, for the following reasons, that applicants cannot intervene as of right. The Court permits applicants to intervene under Rule 24(b) subject to certain conditions. Federal Rule of Civil Procedure 24(a) provides: Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (a) No Statute Confers an Unconditional Right to Intervene Applicants argue that they have the right to intervene under: (1) Section 1431 of the Safe Drinking Water Act, 42 U.S.C. § 300(i)(a); ("SDWA") (2) Section 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6973; ("RCRA") (3) Sections 514 and 311 of the Clean Water Act, 33 U.S.C. § 1364, 1321 ("CWA"). The Court will discuss each statute in turn. Safe Drinking Water Act, 42 U.S.C. § 300(i)(a) Plaintiffs assert in their First Amended Complaint, Sixth Claim for Relief, a claim under the "Emergency Powers" provision of the SDWA. This provision states: the Administrator [of the Environmental Protection Agency], upon receipt of information that a contaminant which is present in or is likely to enter a public water system may present an imminent and substantial endangerment to the health of such persons, may take such actions as he may deem necessary in order to protect the health of such persons . . . . The action which the Administrator may take may include . . . (2) commencing a civil action for appropriate relief, including a restraining order or permanent or temporary injunction. Applicants contend that the "Citizen suit" provision of the SDWA confers an unconditional right to intervene in this "imminent danger" proceeding by the Administrator. This "Citizen suit" section provides: (a) Except as provided in §§ (b) of this section, any person may commence a civil action on his own behalf — (1) against any person . . . who is alleged to be in violation of any requirement prescribed by or under this title . . . (b) No civil action may be commenced — (1) . . . (B) If the Administrator, the Attorney General, or the State has commenced and is diligently prosecuting a civil action in a court of the United States to require compliance with such requirement, but in any such action in a Court of the United States any person may intervene as a matter of right . . . . 42 U.S.C. § 300j-8. (Emphasis added.) The Court finds that the right to intervene set forth in the Citizen Suit provision, 42 U.S.C. § 300j-8, is limited to cases in which the Administrator seeks compliance with a "requirement" of the SDWA. Plaintiffs in the instant case do not seek such compliance, but sue for injunctive relief to remedy an "imminent and substantial endangerment to health." SDWA's citizen suit provision does not apply. See Town of North Hempstead v. Village of North Hills, 482 F. Supp. 900, 904 [10 ELR 20404] (E.D.N.Y. 1979) (Court dismissed plaintiffs' claim under 42 U.S.C. § 300j-8, stating that the statute authorized a civil action only where a violation of a regulation prescribed by or under the Act was alleged). Resource Conservation and Recovery Act, 42 U.S.C. § 6973 Plaintiffs' Third Claim for Relief, First Amended Complaint is based on the "Imminent Hazard" provision of RCRA, 42 U.S.C. § 6973 (1982) which provides in part: upon receipt of evidence that the handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit . . . to immediately restrain any person contributing to such handling, storage, treatment, transportation, or disposal to stop such handling . . . or to take such other action as may be necessary . . . . Applicants CNA and Newman seek to intervene under RCRA's citizen suit provision, which is similar to that of SDWA: (a) Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf (1) against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this Act; (b) No action may be commenced under paragraph (a)(1) of this section . . . (2) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with such permit, standard, regulation, condition, requirement, or order; provided, however, that in any such action in a court of the United States, any person may intervene as a matter of right. 42 U.S.C. § 6972 (Emphasis added.) Like that of SDWA, the Citizen Suit provisions of RCRA do not mention any right to intervene in actions brought pursuant to the Administrator's emergency powers. United States v. Hooker Chemicals & Plastics Corporation, 540 F. Supp. 1067 [12 ELR 20701] (W.D.N.Y. 1982). In Hooker, supra, the court held that the Citizen Suit provision of RCRA did not confer a right to intervene in the Imminent Hazard provision. The federal government sued Hooker, owner of an industrial waste disposal facility, pursuant to the emergency relief provision of RCRA and other statutes. Local property owners and a public interest group applied to intervene based on RCRA's Citizen Suit provision. The court allowed intervention in the government's emergency relief action brought under 42 U.S.C. § 6973. The court pointed out that RCRA's Citizen Suit provision extended only to RCRA actions seeking compliance with a "permit, standard, regulation, condition, requirement, or order." 540 F. Supp. at 1080-1081 n.7. Plaintiffs in Hooker, like those in the instant case, did not seek such compliance, but injunctive relief pursuant to 42 U.S.C. § 6973. Id. The Court is not persuaded by applicants' claim that the Imminent Hazard section of RCRA "provides an alternative or supplementary procedure" to the Citizens Suit section. Applicants cite United States v. Olin Corporation, Civil Action No. 80-PT-5300-NE (N.D. Ala. 1982), an unpublished opinion, in support of their argument. In Olin, the City of Triana, Alabama, moved to intervene in a suit by the United States against Olin Corporation pursuant to, inter alia, Federal Rule of Civil Procedure 24(a) and RCRA § 6972. The court stated that, in its complaint, the United States generally categorized Olin's activities as being "unlawful." Id. at p. 4. The City therefore had the right to intervene pursuant to the Clean Water Act, 33 U.S.C. § 1365(b)(1)(B), by virtue of Section § 1365(f), which defined "effluent standard or limitation" as "(1) an unlawful act under subsection (a) of Section 1311 of this title." Id. Without citing any authority, the Olin court then found that because of RCRA § 6973(a)'s similarity to CWA § 1364, RCRA's citizen suit provision also allowed intervention. Contra Hooker, supra, and United States v. Reilly Tar & Chemical Corporation, 546 F. Supp. 1100 [12 ELR 20954] (D. Minn. 1982) (Court stated that § 6973 was never intended to "be used as a substitute procedure [14 ELR 20383] for chronic and recurring pollution problems that may be dealt with under other statutes." 546 F. Supp. at 1110). Clean Water Act, 33 U.S.C. § 1365 Applicants also claim that the Clean Water Act, 33 U.S.C. § 1365, provides a statutory right to intervene. However, the Court finds that, like that of RCRA and SDWA, the plain language of the statute's emergency relief and citizens' suit provisions does not confer such an unconditional right to intervene. Plaintiffs' Fourth and Fifth Claims for Relief are based on Sections 504 and 311 of the CWA, 33 U.S.C. § 1364 and § 1321, respectively. Section 504 of the Clean Water Act, 33 U.S.C. § 1364 provides as follows: Notwithstanding any other provision of this Act, the Administrator [of the Environmental Protection Agency] upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment to the health of persons . . . may bring suit on behalf of the United States in the appropriate district court to immediately restrain any person causing or contributing to the alleged pollution to stop the discharge of pollutants causing or contributing to such pollution or to take such other action as may be necessary. Section 311 prohibits the discharge of hazardous substances into navigable waters of the United States, providing that whenever such substance is discharged or there is a substantial threat of such discharge the President is authorized to act to remove this substance. 33 U.S.C. § 1321(b)(3) and (c). Finally, Section 505, 33 U.S.C. § 1365, provides for citizens suits: Section 505 states in pertinent part: (a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf (1) against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (b) an order issued by the Administrator or a State with respect to such a standard or limitation . . . The district courts shall have jurisdiction . . . to enforce such an effluent standard or limitation or such an order . . . as the case may be, and to apply any appropriate civil penalties under section 309(d) of this Act (33 USC § 1319). (b) No action may be commenced — under subsection (a)(1) of this section — if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right. 33 U.S.C. § 1365 (Emphasis added.) Section 505(f) defines the term "effluent standard or limitation": The term "effluent standard or limitation under this Act" means (1) effective July 1, 1973, an unlawful act under subsection (a) of Section 301 of this Act (33 USC § 1311); (2) an effluent limitation or other limitation under section 301 or 302 of this Act (33 USC § 1311 or 1312); (3) standard of performance under section 306 of this Act (33 USC § 1316); (4) prohibition, effluent standard pretreatment standards under section 307 of this Act (33 USC § 1317); (5) certification under section 401 of this Act (oo USC § 1341); or (6) a permit or condition thereof issued under section 402 of this Act (33 USC § 1342), which is in effect under this Act (including a requirement applicable by reason of section 313 of this Act (33 USC § 1323)). The Court concludes that, because violations of §§ 1321 and 1364 are not expressly enumerated among the violations of "effluent standards or limitations," citizens do not have a statutory right to intervene in emergency relief actions under 33 U.S.C. § 1365. The legislative history of the Clean Water Act is consistent with this finding. The Senate Report stated: "The provision in this bill is carefully restricted to actions where violations of standards and regulations or a failure on the part of officials to act are alleged." S. REP. NO. 414, 92d Cong., 2d Sess., reprinted in (1972) U.S. CODE CONG. AND AD. NEWS 3745. Finally, judicial interpretations of the Clean Water Act's citizen suit provision seem also to preclude intervention by applicants in the emergency relief proceedings. For example, in Stream Pollution Control Board v. United States Steel Corporation, 512 F.2d 1036 [5 ELR 20261] (7th Cir. 1975), plaintiff sued under the federal common law of nuisance to abate pollution of a Lake Michigan tributary. A private citizen claimed an unconditional right to intervene under the citizen suit provision of the CWA. Upholding the district court's denial of the motion to intervene, the Seventh Circuit stated: Under 33 U.S.C. § 1365(b)(1)(B) . . . a private citizen . . . is entitled to intervene if, and only if, the underlying action was commenced and is being prosecuted to require compliance with a "standard, limitation, or order" within the meaning of the 1972 Act. We hold that an action to abate a nuisance . . . is not such an action and that the motion to intervene was therefore correctly denied. Id. at 1041. In the instant case, plaintiffs, like that of plaintiff in Stream Control, seek to abate an imminent and substantial endangerment. This is not an action to require compliance with a "standard, limitation, or order," therefore, § 1365 does not confer any right to intervene on applicants in this suit. In addition, the court's discussion of § 1365 in City of Philadelphia v. Stepan Chemical Company, 544 F. Supp. 1135 [12 ELR 20915] (E.D. Pa. 1982) supports this view. In Stepan, the court held that the citizen suit provision of CWA did not provide the City with a cause of action for damages: cleanup costs in removing hazardous substances discharged into the Delaware River in violation of 33 U.S.C. § 1321. The court stated that § 1365 "evidence(d) a congressional intent to carefully channel citizen participation in the enforcement of the Act . . . its sole purpose is to provide private parties with a mechanism to compel the enforcement of effluent standards promulgated pursuant to the Act." Id. at 1145, 1146. Applicants CNA and Penny Newman cite United States v. Hooker Chemicals & Plastics Corporation, 540 F. Supp. 1067 [12 ELR 20701] (W.D.N.Y. 1982), in support of their motion to intervene under CWA. Indeed, in Hooker, the court held that the citizen suit provision of CWA allowed intervention, but that of RCRA did not. (See discussion of RCRA, supra). Unlike the Stringfellow case, the underlying action in Hooker involved claims for relief under § 1319 of CWA. Section 1319 authorizes penalties for violations of the "effluent standards" established by § 1311. The citizen suit provision, § 1365, expressly authorizes suits on such claims. In conclusion, the Court finds that none of the statutes cited by applicants expressly confer "an unconditional right to intervene" pursuant to FED. R. CIV. PROC. 24(a)(1). (b) No Intervention as of Right under Fed. R. Civ. Proc. 24(a)(2) The Ninth Circuit has established a four-part test for determining whether applications to intervene as of right should be granted pursuant to Rule 24(a)(2): (1) The applicant's motion must be timely;* (2) The applicant must assert an interest relating to the property or transaction; (3) The applicant must be so situated that without intervention, the disposition may, as a practical matter, impair or impede his ability to protect that interest; and (4) The applicant's interest must be adequately represented by the other parties. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 [13 FLR 20983] (9th Cir. 1983) (Citing Smith v. Pangilian, 651 F.2d 1320 (9th Cir. 1981)). Applying this test to the instant case, the Court finds that applicants do not properly intervene under 24(a)(2). (1) Applicants have an "Interest" An applicant for intervention need only show that she has a "protectable interest" in the outcome of the litigation of sufficient [14 ELR 20384] magnitude to warrant inclusion in the action. Smith, supra. It is obvious that applicants CNA and Penny Newman possess such an interest: Living and working in the neighborhood of the Site, they claim a direct and substantial interest in the immediate abatement of further toxic waste releases, and cleanup of past releases. (2) Practical Impairment of Applicants' Interests The purpose of the second requirement of Rule 24(a)(2) is to allow intervention by those who might be practically disadvantaged by the disposition of the action. 7A WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE § 1908, p. 514. Stare decisis may supply this practical disadvantage; however, the stare decisis problem is "greatly lessened where there are parties already in the suit whose position on the issues is the same as the absent parties." Blake v. Pallan, 554 F.2d 947 (9th Cir. 1977). (3) Adequacy of Current Representation For the purposes of determining adequacy of current representation, the Ninth Circuit has outlined a three-part test: (i) Are the interests of the present party in the suit sufficiently similar to that of the absentee such that the legal arguments of the latter will undoubtedly be made by the former; (ii) Is that present party capable and willing to make such arguments; and (iii) If permitted to intervene, would the intervenor add some necessary element to the proceedings which would not be covered by the parties in the suit? County of Fresno v. Andrus, 622 F.2d 436 (9th Cir. 1980). In addition to this showing, applicants must overcome the presumption of adequacy of representationby state and federal governmental agencies: "In the absence of a very compelling showing to the contrary, it will be assumed that the United States adequately represents the interest of its citizens . . . The very rare cases in which a member of the public is allowed to intervene . . . are cases in which a very strong showing of inadequate representation has been made." 7A WRIGHT, MILLER & KANE, supra at § 1909, pp. 528-531 (Citing Cascade Natural Gas Co. v. El Paso Natural Gas Co., 386 U.S. 129 (1967)). Under the Ninth Circuit test and the requirement of a compelling showing of inadequate representation, applicants cannot properly intervene under Rule 24(a)(2). (i) Applicants and Existing Parties Share Similar Interests Both applicants and plaintiffs seek the expeditious abatement and cleanup of the Stringfellow site. However, applicants allege certain "conflicts of interest" among existing plaintiffs that would hinder vigorous litigation by existing plaintiffs. For example, applicants allege that the United States Air Force was the ninth largest dumper of toxic wastes at the site, but plaintiffs have not named it as a defendant. However, the United States agrees that permissive intervention is appropriate with respect to the claims of intervenors seeking relief against the Air Force. The Court finds that both federal and state governments, by initiating the suit and vigorously advocating their claims, actively represent the interests of the applicants. In addition, existing defendants have filed counterclaims against plaintiffs, and thus share similar interests of proposed intervenors in their claims against the government. (ii) Existing Parties are Capable and Willing to Make these Arguments Applicants assert seventeen claims in their proposed complaint. The factual allegations and the first nine claims almost duplicate the First Amended Complaint. The applicants' adoption of the allegations and claims of the First Amended Complaint demonstrates that existing plaintiffs are capable and willing to make these arguments. Applicants' claims for nuisance, strict liability and negligence, while not part of the plaintiffs' suit, will not be impaired by allowing the existing parties to complete the litigation on the present claims. (iii) No Necessary Element will be Added by Intervention Although applicants CNA and Penny Newman, as residents of Glen Avon, have suffered more directly and immediately from the effects of the toxic wastes, this point of view does not add any "necessary" element to the suit. Finally, regarding the showing of inadequacy of representation required, applicants aregue that they need make only a "minimal" showing of inadequacy. In support of this contention, applicants cite Sagebrush Rebellion, supra. In that case, the Sagebrush Rebellion, a non-profit group interested in land use, sued the Secretary of Interior. The group challenged the legality of (former) Secretary Andrus's actions in recommending the creation of a national conservation area in Idaho. The Audubon Society (and fifteen others) sought to intervene as of right, as they supported the creation of the conservation area. The Ninth Circuit found that Audubon demonstrated sufficient interest and inadequacy of current representation. In finding Secretary Watt's representation inadequate, the court emphasized that he was previously head of the Mountain States Legal Foundation, which representated Sagebrush Rebellion in the action. Sagebrush represented a special case in which applicants for intervention were defending the actions of a former government official against a group which had been represented by the present secretary. In the instant case, applicants have cited no similar "changes in viewpoint" which satisfy their burden of showing inadequacy of representation by existing parties. In conclusion, the Court finds that although applicants have an interest in the litigation, their interests are adequately represented by existing parties, and they cannot intervene as of right pursuant to Rule 24(a)(2). FED. R. CIV. PROC. 24(b) provides in relevant part: (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common . . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. As discussed earlier in this Order, the first nine claims in applicants' proposed complaint in intervention are identical to those in plaintiffs' First Amended Complaint. Thus, the two have common questions of fact or law, and permissive intervention is appropriate. Pursuant to Rule 24(b), the Court imposes conditions upon granting applicants' motion to intervene. 7A WRIGHT, MILLER & KANE, supra at § 1922, p. 623-624; Van Hoomissen v. Xerox Corp., 497 F.2d 180, 181 (9th Cir. 1974). The Court therefore imposes the following conditions on intervention: (1) No Claims Shall Be Asserted Which Have Not Been Asserted by the Original Parties The Court finds that allowing applicants to assert their individualized damage and other claims would burden and expand an already complex litigation, and could jeopardize the possibility of settlement. Applicants are thus permitted to intervene in the litigation of the issues raised by the original parties. (2) Applicants May Not Intervene in Cost Recovery Claims The applicants can assert no claim with a question of law or fact in common with the Second, Fifth, Seventh and Eighth claims of the First Amended Complaint. In these claims, the governments seek reimbursement under CERCLA for the costs of cleaning up the site. Thus, applicants' interest is more like that of a taxpayer, and they lack standing to pursue these claims. See Flast v. Cohen, 392 U.S. 83 (1968). (3) Restrictions on Intervenors' Power to Initiate Discovery or Motions The Court wishes to minimize any delay and confusion involved in discovery in this large, complex case. Therefore, the Court holds that applicants may initiate no motion or discovery unless they have (a) met and conferred with all parties or their authorized representatives; (b) and obtained the concurrence of at least one current party to the initiation of such motion or discovery. The Court emphasizes that applicants shall have the right to [14 ELR 20385] attend all depositions and to participate to an extent not duplicative of the original parties, and toreceive copies of all discovery to the same extent as any other party herein. IT IS FURTHER ORDERED that the Clerk shall serve, by United States mail, copies of this Order on counsel for the parties in this matter. * The parties agree that the application was timely. 14 ELR 20381 | Environmental Law Reporter | copyright © 1984 | All rights reserved |