On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 88-04970).
Before: Scirica and Alito, Circuit Judges and Bassler, District Judge*fn*
In this appeal we must decide whether a party who has entered into a consent decree with the Environmental Protection Agency for the cleanup of a superfund site may intervene in subsequent litigation over the same site. We believe that, provided it can demonstrate it has a protectable interest, an early settlor may intervene in the later litigation as of right. On these facts, however, the right to intervene hinges on whether the applicant had a protectable interest at risk. Because it is unclear from the record whether the intervenor's interest was affected by the subsequent consent decree, we will vacate the district court's orders denying the motion to intervene and approving the subsequent consent decree, and remand for a determination of whether the second consent decree affected the intervenor's rights under the first decree.
This appeal arises out of the cleanup of the McAdoo site, a parcel of land in Schuylkill County, Pennsylvania. Once used for strip mining, the McAdoo site was used for waste incineration and recycling from 1975 until it closed in 1979. At that time there were approximately 6,800 storage drums and several 10,000 and 15,000 gallon storage tanks of hazardous waste at the site.
The Air Products Litigation
In 1987 the United States began proceedings over the release and threatened release of hazardous material at the McAdoo site.*fn1 On June 3, 1988, the government entered into a consent decree with 65 Potentially Responsible Parties (PRPs), the "Air Products defendants," who agreed to reimburse the government for approximately $790,000 of past costs and to undertake a remedial program to prevent any future release of hazardous substances.*fn2 They also agreed to pay all of the long term operations and maintenance costs. In exchange, the government agreed not to seek reimbursement for any of its past remedial costs and to allow the Air Products defendants to seek reimbursement for as much as 25% of their clean-up costs, provided the government could successfully recover those costs from other non-settling PRPs.*fn3
The agreement contained two other notable provisions. First, it contained a provision reserving the Air Products defendants' right to sue all non-settling parties for contribution. Second, it contained a provision stating the government's "present intent" not to include in any future settlement over the McAdoo site a covenant not to sue that was broader than the one contained in the Air Products consent decree.
On June 23, 1988 the government began proceedings against another group of PRPs, the "Alcan defendants." In this action, the government sought reimbursement for costs it had previously incurred and a declaration that the Alcan defendants were liable for future response costs. The Alcan defendants and the government reached an agreement in January, 1992. The resultant consent decree was filed in the district court on August 10, 1992, and notice was published in the Federal Register on August 19, 1992. 57 Fed. Reg. 37,556 (1992).
Under the terms of the consent decree the Alcan defendants agreed to reimburse approximately $2 million of the government's response costs. In exchange, the government agreed not to sue the Alcan defendants for: (1) any work covered in the Air Products consent decree, (2) any of the government's oversight costs, (3) response costs incurred before June, 1990, and (4) the government's enforcement costs.*fn4
As required by CERCLA, the district court reserved approval of the consent decree to allow for public comment. 42 U.S.C. § 9622(d)(2)(1988). On September 16, 1992, the Trustees of the McAdoo site, on behalf of the Air Products defendants, objected to the consent decree on the grounds that it would extinguish their right to sue the Alcan defendants for contribution. They also argued the covenant not to sue First Valley Bank over surface or ground water contamination violated a provision in the Air Products consent decree where the government stated its intention not to give any other PRP a covenant not to sue broader than the one contained in the Air Products consent decree.
The Trustees also moved to intervene in the government's suit against the Alcan defendants under CERCLA § 113(i), 42 U.S.C. § 9613(i)(1988), and Federal Rule of Civil Procedure 24(a).*fn5 On November 24, 1992, the district court denied the Trustees' motion, holding that § 113(i) was inapplicable, and that the Rule 24 application was untimely and did not reflect "a substantial and direct protectable interest in the litigation." This timely appeal followed.
The district court had jurisdiction under 42 U.S.C. §§ 9607 and 9613(b). We have jurisdiction under 28 U.S.C. § 1291 (1988) because the denial of a motion to intervene is a final, appealable order. See McKay v. Heyison, 614 F.2d 899, 903 (3d Cir. 1980); Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert. denied, sub nom. Fire Officers Union v. Pennsylvania, 426 U.S. 921, 49 L. Ed. 2d 375, 96 S. Ct. 2628 (1976). We review the denial of a motion to intervene as of right for abuse of discretion. However, our review "is 'more stringent' than the abuse of discretion review we apply to a denial of a motion for permissive intervention." Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992) (quoting Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir.) (internal citation and quotation omitted), cert. denied, sub nom. Castille v. Harris, 484 U.S. 947, 98 L. Ed. 2d 363, 108 S. Ct. 336 (1987)). We will reverse only if we find the district court "has applied an improper legal standard or reached a decision we are confident is incorrect." Id. (quoting Harris, 820 F.2d at 597).
In 1986 Congress passed the Superfund Amendment and Reauthorization Act ("SARA"), Pub. L. 99-499; 100 Stat. 1613 (codified in scattered sections of 42 U.S.C.), which amended CERCLA, 42 U.S.C. §§ 6911, 6911a, 9601-75. Congress' intent in passing SARA was to ensure rapid and thorough cleanup of toxic waste sites. See H.R. Rep. No. 253, 99th Cong., 2d Sess. 55 reprinted in 1986 U.S.C.C.A.N. 2835, 2837. Because Congress believed it could never provide EPA with ...