Missouri v. Independent Petrochemical Corp.

No. 83-2670 C (2) (E.D. Mo. October 16, 1986)

In cost recovery and injunctive relief actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the common law of nuisance brought by the United States and Missouri, the court consolidates discovery and trial on issues of liability under CERCLA § 107. The court declines to consolidate discovery on issues of damages, and stays all such unconsolidated discovery. The court declines to join the United States involuntarily in the State's action, since sovereign immunity has not been waived under CERCLA or the Administrative Procedure Act. Finally, the court holds that the United States is not an indispensable party under Federal Rule of Civil Procedure 19(b).

[Other opinions in this case appear at 15 ELR 20161 and 16 ELR 20352.]

Counsel for Plaintiff
Paul Otto, Shelley Woods, David Taylor, Ass't Attorneys General
8th Fl., Broadway Office Bldg., 221 W. High St., Jefferson City MO 65102
(314) 751-3321

Counsel for Defendant
F. William McCalpin
Lewis & Rice
611 Olive St., Suite 1400, St. Louis MO 63101
(314) 444-7600

[17 ELR 20241]

Filippine, J.:

Memorandum and Order

This matter is before the Court on the motions of Syntex Agribusiness, Inc. to consolidate discovery and to join the United States as a party and the motion of Russell Bliss for appointment of counsel.

This litigation arises from the cleanup efforts by the United States and State of Missouri in response to disposal of hazardous waste in eastern Missouri. Syntex has moved to consolidate discovery in this action with other actions initiated by the State and the United States. The State actions allege claims for recovery of response costs under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607 (CERCLA) and under the common law of nuisance. The action by the United States seeks injunctive relief under § 106 of CERCLA, 42 U.S.C. § 9606, as well as recovery of response costs under § 107. All of these actions have their genesis in the production of hazardous waste at a Verona, Missouri, chemical plant.

The Court is of the opinion that common issues of fact and law exist and that discovery should be consolidated with a view toward a consolidated trial on the issues of whether defendants are persons liable within the meaning of § 107 of CERCLA and the applicability of statutory defenses. Consolidation will include discovery on relevant activities of potentially responsible parties and other persons and the relationships between these persons and entities. Discovery on damages, including the issue of consistency of response actions with the National Contingency Plan and the scientific and engineering issues relating to hazardous waste, will not be consolidated at this time. This ruling is without prejudice to further motions for consolidation or protective orders. Consolidated discovery will proceed according to a schedule to be set by Magistrate Jackson. All other discovery will be stayed until further order of this Court.

Syntex has also moved for the joinder of the United States as a party under Fed. R. Civ. P. 19(a). The United States has intervened to oppose joinder and argues that it is not a party needed for just adjudication under Rule 19(a) and sovereign immunity prevents its involuntary joinder. The Court finds that even assuming the United States is a party who should be joined under Rule 19(a), sovereign immunity prevents involuntary joinder of the United States.

It is well settled that the United States cannot be sued without its consent. United States v. Mitchell, 463 U.S. 206, 212 (1983). Any action affecting the government's programmatic interests is a suit against the government barred by sovereign immunity. Hawaii v. Gordon, 373 U.S. 57, 58 (1962); 14 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure § 3655 (1985). Sovereign immunity operates to preclude the involuntary joinder of the United States in appropriate cases, 7 C. Wright, A. Miller and M. Kane, Federal Practice and Procedure § 1617 (1986). In the instant case the defendants want to force the joinder of the United States in litigation which would adjudicate the propriety of its acts and its rights under CERCLA with respect to the defendants. Sovereign immunity clearly precludes joinder unless there has been a waiver.

Although waiver of sovereign immunity may be found in the authorizing statute, CERCLA does not include a waiver. Jefferson County v. United States, No. 85-935C(1), slip op. at 4 (E.D. Mo. Sept. 10, 1986) (order granting motion to dismiss). The Administrative Procedure Act (APA) provides a waiver of sovereign immunity for judicial review of agency action in cases where a statute does not preclude review or the injurious action is committed by law to agency discretion. 5 U.S.C. §§ 701-02.

The cases which have faced the question of APA review of agency actions under CERCLA have squarely held that CERCLA precludes agency review within the meaning of § 701 of the APA limiting the waiver of sovereign immunity. These cases have examined CERCLA legislative history and determine that judicial review of agency action prior to the agency's initiation of an enforcement action would hinder and delay the United States' ability to promptly respond to the problems created by the disposal of hazardous waste. Lone Pine Steering Committee v. E.P.A., 777 F.2d 882, 887 [16 ELR 20009] (3d Cir. 1985), cert. denied, 106 S. Ct. 1970 (1986); J. V. Peters v. E.P.A., 767 F.2d 263 [15 ELR 20646] (6th Cir. 1985); Jefferson County v. United States, No. 85-935C(1), (E.D. Mo. Sept. 10, 1986). The forced joinder of the United States to litigate issues arising from its actions under CERCLA is in essence a pre-enforcement review of agency action precluded by CERCLA and therefore not within the APA's waiver of sovereign immunity. Since no waiver exists, the Court is without jurisdiction to force the joinder of the United States.

Although the Court has not reached the issue of whether the United States is a party needed for just adjudication, the Court finds that even if the United States came within Rule 19(a), it would not be an indispensable party within 19(b) requiring dismissal of the State's action. Rule 19(b) provides:

(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether [17 ELR 20242] in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

The Court finds that in equity and good conscience the action should proceed without the United States. As a practical matter, dismissal of actions of this sort would force the United States and individual states to jointly litigate CERCLA enforcement actions, tying up the limited resources of each and diverting attention from the immediate and serious problem of hazardous waste cleanup. The Court perceives that any potential prejudice to the United States' interests is not sufficient to outweigh the important policy objectives of CERCLA. Prejudice to the existing parties is not a factor in this case and the absence of the United States would not prevent a complete determination of the rights between the State and the defendants. Additionally, dismissal would leave the State without a remedy until the United States chose to sue since there is no forum which can compel the United States' joinder. Finally, the Court notes that Syntex's inability to discover federal government documents is not a proper reason for joinder of the United States. Hefley v. Textron, Inc., 713 F.2d 1487, 1498 (10th Cir. 1983); Costello Publishing Co. v. Rotelle, 670 F.2d 1035, 1044 (D.C. Cir. 1981).

Accordingly,

IT IS HEREBY ORDERED that the motion of Syntex Agribusiness, Inc. to consolidate discovery be and is GRANTED And that Missouri v. Independent Chemical Corp., No. 83-2670C(2) [16 ELR 20352]; Missouri v. Bliss, No. 84-1447C(4) [16 ELR 20361]; Missouri v. Syntex USA, Inc., No. 85-2856C(6); and United States v. Bliss, No. 84-200C(1) are consolidated for discovery as set out above.

IT IS FURTHER ORDERED that all discovery disputes in the consolidated cases be and are referred to United States Magistrate Carol E. Jackson.

IT IS FURTHER ORDERED that the motion of Syntex Agribusiness, Inc. to join the United States as a party be and is DENIED.

IT IS FURTHER ORDERED that themotion of Russell Bliss for appointment of counsel be and is DENIED.