United States v. B.F. Goodrich Co.

No. 89-0005-P (CS) (W.D. Ky. November 27, 1989)

The court holds that Kentucky may intervene as a matter of right under § 113(i) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in a consent decree between the United States Environmental Protection Agency (EPA) and two companies for hazardous waste cleanup costs. The court holds that Kentucky should be permitted to intervene to litigate whether its own state standards are legally applicable, relevant, or appropriate to formulating the consent decree. Further proceedings may be necessary for inclusion of the state standards in the consent decree unless EPA justifies their exclusion. Additionally, the court holds that Kentucky's reliance on CERCLA § 121(f)(2)(B) is premature, since intervention under that section revolves around the legitimacy of EPA's justification for declining to adopt state standards.

Counsel for Plaintiff
Kimberly D. Allan
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20004
(202) 633-2000

Robert Caplan
Hazardous Waste Law Branch
Environmental Protection Agency, 345 Courtland St., NE, Atlanta GA 30365
(404) 347-2641

Counsel for Defendants
Tom Harrison
Day, Berry & Howard
City Place, Hartford CT 06103-3499
(203) 275-0100

Carolyn Brown
Greenebaum, Doll & McDonald
1400 Vine Ctr. Tower, Lexington KY 40508
(606) 231-8500

[20 ELR 20296]

Simpson, J.:

Memorandum Opinion and Order

The Commonwealth of Kentucky ("Kentucky") seeks to intervene in this action brought by the United States on behalf of the Administrator of the Environmental Protection Agency (hereinafter collectively referred to as "EPA") against The B.F. Goodrich Company and The BOC Group, Inc. under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. The initial complaint sought injunctive relief to abate actual or threatened release of hazardous substances and a money judgment for alleged clean-up costs. A consent decree has been filed and the parties have indicated they will request the court to enter it.

In 1983 and 1984, two landfill sites in the Calvert City, Kentucky area, used for waste disposal by B.F. Goodrich, the BOC Group, Inc. and Air Products and Chemicals, Inc., were placed on the National Priorities List as posing a threat to the public health, welfare and the environment. See 42 U.S.C. § 9605(a)(8). In 1985 the EPA, Goodrich and BOC agreed on the performance of a Remedial Investigation and Feasibility Study and the EPA then compiled what it believed to be an adequate remedial action plan to be implemented for clean-up of the sites. The Commonwealth of Kentucky did not take an active role in the negotiation process, though it was afforded the opportunity to do so. The Commonwealth filed comments on the consent decree upon the EPA's listing of it in the Federal Register. The Commonwealth asserts that it may intervene as of right as permitted by 42 U.S.C. § 9621(f)(2)(B).

We will permit Kentucky to intervene, but not under the statute it relies upon.

Under 42 U.S.C. § 9621(d)(2)(A), remedial action selected by the President (through his designee, the EPA Administrator) must incorporate certain state environmental standards if they are legally applicable or relevant and appropriate under the circumstances.

The EPA may decline to incorporate the state environmental [20 ELR 20297] standard, even though it is legally applicable or relevant and appropriate, if it finds justifications as set forth in 42 U.S.C. § 9621(d)(4).

Under § 9621(f)(2)(B), the particular section upon which Kentucky relies, a state may contest a decision by the EPA to not adopt a legally applicable or relevant and appropriate state standard, and the justification for such decision, by intervening as a matter of right in a lawsuit such as this. The state then bears the burden of establishing, on the administrative record, that the justification relied upon by the EPA for not adopting the state standard is not supported by substantial evidence.

In this case, Kentucky's reliance on § 9621(f)(2)(B) is misplaced since intervention under that section would be premature. Litigation under § 9621(f)(2)(B) revolves around the legitimacy of the EPA's justification for declining to adopt state standards which are legally applicable or relevant and appropriate. Here, the EPA has not justified a decision not to adopt state standards because the EPA has not conceded that the state standards in question are legally applicable or relevant and appropriate. Thus, Kentucky could not meet its burden of proof under § 9621(f)(2)(B) because there has been no finding by the EPA which Kentucky could show was not supported by substantial evidence. Intervention under §9621(f)(2)(B) must be denied.

In this case, the threshold question has not been resolved. That is: Are the state standards in issue legally applicable or relevant and appropriate? If not, they need not be included in the consent decree. If they are legally applicable or relevant and appropriate, they must be included unless the EPA justifies their exclusion under § 9621(d)(4).

Therefore, we believe that Kentucky should be permitted to intervene in this action under 42 U.S.C. § 9613(i), a general intervention provision, as a matter of right, in order to litigate whether the state standards it urges are indeed legally applicable or relevant and appropriate under the circumstances presented here. Resolution of those issues will determine the propriety of and necessity for further proceedings under CERCLA in the context of this court determining whether, and in what form, the consent decree should be entered.

IT IS THEREFORE ORDERED that the motion of the Commonwealthof Kentucky to intervene is GRANTED pursuant to Fed. R. Civ. P. 24(a)(2) and 42 U.S.C. § 9613(i), and the answer and counterclaim tendered will be FILED of record herein.