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20 ELR 20399 | Environmental Law Reporter | copyright © 1990 | All rights reserved United States v. Ashland Oil, Inc.No. 88-1487 (W.D. Pa. June 19, 1989)The court approves a Federal Water Pollution Control Act (FWPCA) consent decree providing for soil and groundwater cleanup, water monitoring, and reimbursement of approximately $ 800,000 in government expenditures for a one million gallon diesel fuel spill in the Monongahela River. The court also grants several citizens permissive intervention under Federal Rule of Civil Procedure 24(b), entitling them to be notified of any proposed modifications to the consent decree and to file objections, present evidence, and brief all issues raised in any future modification proceeding. The court denies the citizens' motion to intervene as class plaintiffs because FWPCA § 505 does not provide for class actions. The court also denies citizens' motion for intervention of right under Federal Rule of Civil Procedure 24 because FWPCA § 505 disallows the citizens' intervention in the United States' suit to remedy a wholly past event. Moreover, none of the citizens' interests will be impaired by the suit's disposition. Rather than raising claims for strict liability, damages, and other relief in the complaint in intervention, judicial economy requires the citizens to seek relief in their pending class action suit. Counsel for Plaintiffs Counsel for Defendant Thomas Donovan David Fawcett Jr. Counsel for Intervenor Smith, J.: On January 2, 1988, an oil storage tank at the Ashland Oil, Inc., facility at Floreffe, Pennsylvania, collapsed, spilling approximately one million gallons of diesel fuel into the Monongahela River. The spill contaminated drinking water, killed wildlife, disrupted business, and damaged the environment for at least 100 miles downstream. Fuel oil remaining on the Ashland facility premises has contaminated the soil and groundwater and threatens to continue to seep into the Monongahela in the future. Responding immediately to the spill, the Coast Guard, Environmental Protection Agency, Pennsylvania Department of Environmental Resources, and Ashland Oil attempted to contain the spill and retrieve the oil that had fouled the Monongahela and Ohio Rivers. Almost as swiftly, a number of proposed class action suits were filed against Ashland Oil and Skinner Tank Lines, consolidated by Judge Teitelbaum to Miscellaneous No. M-14670. The United States and, by consented intervention, the Commonwealth of Pennsylvania filed this action asserting that Ashland Oil had violated the Clean Water Act, 33 U.S.C. §§ 1251, 1319(b), and other federal and state environmental laws.1 The United States, the Commonwealth of Pennsylvania, and Ashland Oil have requested the court to enter the consent decree which was filed in this court on July 6, 1988. Notice of the proposed consent decree was published in the Federal Register on July 19, 1988, at 53 Fed. Reg. 27245. Also before the court are the Motion to Consolidate this action with the class action litigation at Misc. No. 14670, and the Motion to Intervene, filed by the proposed class plaintiffs. We grant, as limited by the terms of this memoranda, the motion to intervene. We deny the motion to consolidate, and, having considered the objections of the private intervenors to the consent decree, approve the consent decree. Plaintiff-intervenors Edward Mikula, Sara Ann Kohl, James Mancini, Richard and Bobbye Caine Navickas, Timothy and Michelle O'Brien and Victor and Susan Sutey, seek to intervene in this action on their own behalf and on behalf of the classes they seek to represent as named plaintiffs in Misc. No. M-14670. Plaintiff-intervenors have already submitted, on September 16, 1988, the only set of public comments to the proposed consent decree. We deny intervention by plaintiffs as class representatives. The legislative history of the Clean Water Act, under which law this action is chiefly proceeding, clearly states that class actions and damage actions are not provided by Section 505, 33 U.S.C. § 1365. See Sen. Rep. No. 414, 92d Cong., 1st Sess. 81, reprinted in 1972 U.S. Code [20 ELR 20400] Cong. & Ad. News 3668, 3746-47; City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 1014 [9 ELR 20679] (7th Cir. 1979) cert. denied 444 U.S. 1025 (1980). The moving parties object to any intervention by the private litigants, arguing that they do not meet the conditions of Fed. R. Civ. P. 24(a)(1) for intervention of right. We agree with this contention. The governmental action in this matter is designed solely to remedy the January 2, 1988, spill and any after effects. Under Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392 [15 ELR 20385] (5th Cir. 1985), this is one wholly past event, and 33 U.S.C. § 1365 does not permit citizen suits or intervention of right in suits to remedy wholly past events. Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. , 98 L. Ed. 2d 306, 108 S. Ct. 376 [18 ELR 20142] (1987). The moving parties also correctly argue that since this action and the proposed consent decree bind only the signatories thereto and reserve great latitude for future actions to modify the consent decree as well as for independent actions by the parties themselves, the intervenors do not qualify for intervention of right under Fed. R. Civ. P. 24(a)(2). The intervenors claim interests relating to the subject matter of this litigation, thus satisfying the first requirement of Rule 24(a)(2), but do not meet the second part of the test, because they cannot show that their interests will be impaired in any way by disposition of this matter. We grant, within appropriately narrow limits, the request for permissive intervention. Fed. R. Civ. P. 24(b). For reasons of judicial economy the multiple claims for strict liability, damages, punitive damages, and other relief sought in the proposed complaint in intervention should be raised in the class action litigation without delaying this matter through introduction of duplicative claims. The intervenors may intervene only insofar as their claims for remediation of the spill are identical to the action now pending. The intervenors shall therefore be notified of any proposed modifications to the consent decree, and shall be entitled to brief all issues raised in any future modification proceeding, as well as filed objections and present evidence, in any future modification hearings. See United States v. United States Steel Corp., 87 F.R.D. 709 (W.D. Pa. 1980) (Cohill, C.J.). Having considered at some length the proposed consent decree, the objections thereto filed by the intervenors, and the copious memoranda which very ably set forth each party's position, we grant the motions to enter the consent decree. It is therefore ORDERED that proposed-intervenors' Motion to Intervene is granted as provided above. The Motion to Consolidate is denied as moot. The Consent Decree is approved, and entered this day as an Order of Court.2 The Clerk may mark this matter closed. 1. In September, 1988, Ashland Oil was indicted for criminal violation of the Clean Water Act, 33 U.S.C. § 1319(c). Ashland Oil pleaded no contest to the charge and was fined approximately $ 2.25 million by Judge Diamond on March 9, 1989. 2. We are concerned, however, about the relative brevity of the Court's retention of jurisdiction. Consent Decree § XXV, 51. We invite any party, including the intervening parties, to petition for a modification of this provision in accordance with the terms of the consent decree. We also shall treat the objection to the 5000 mg/kg limit for soil contaminants, Consent Decree § VIII.B.1, 14, as a petition for modification of consent decree. The parties are invited to file any supplemental memoranda in support of their positions on or before July 10, 1989. No reply briefs shall be received. Thereafter that matter will be set for hearing as appropriate. 20 ELR 20399 | Environmental Law Reporter | copyright © 1990 | All rights reserved |