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U.S. v. Alcan Aluminum

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


filed: May 25, 1994.

UNITED STATES OF AMERICA
v.
ALCAN ALUMINUM, INC.; CHAMPION AUTO GENERATOR SERVICE, INC.; INTERNATIONAL FLAVORS AND FRAGRANCES, INC.; KALAMA CHEMICAL, INC.; SCHULTZ ELECTROPLATING, INC.; S&W WASTE, INC.; MCADOO ASSOCIATES, INC.; PAYSO, INC.; EDWARD L. PAYER; NOREEN PAYER V. AT&T TECHNOLOGIES, INC.; CPS CHEMICALS COMPANY, INC.; EAST COAST POLLUTION CONTROL, INC.; KNOLL INTERNATIONAL, INC.; LEHIGH STRUCTURAL STEEL COMPANY; JOHN E. POTOCHNY; BEATRICE/HUNT WESSON, INC.; PROCTER & GAMBLE MANUFACTURING COMPANY; 21 INTERNATIONAL, INC.; SPECIAL METALS CORPORATION; ACTIVATED METALS & CHEMICALS, INC.; TELEDYNE VASCO, A DIVISION OF TELEDYNE INDUSTRIES, INC.; TELEDYNE WAH CHANG HUNTSVILLE, A DIVISION OF TELEDYNE INDUSTRIES, INC.; WITCO CORPORATION, ON BEHALF OF ITSELF AND THE RICHARDSON COMPANY; CBP RESOURCES; FIRST VALLEY BANK THE TRUSTEES OF THE MCADOO ASSOCIATES SITE TRUST FUND ("THE TRUSTEES"), PROPOSED INTERVENORS, APPELLANTS

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*

Author: Scirica

SCIRICA, Circuit Judge.

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.

I.

FACTS & PROCEDURE

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.

The Alcan Litigation

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).

II.

Discussion

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 adequate money or manpower, the new law tried to maximize the participation of responsible parties in the cleanup. Id.

A. Claims under § 113(i).

Among the sections added to CERCLA in 1986 was § 113(i), which permits interested parties to intervene as of right in actions under CERCLA or the Solid Waste Disposal Act. 42 U.S.C. § 9613(i).*fn6 The government challenges the Trustees' ability to intervene in its suit against the Alcan defendants arguing that, under § 113(i), intervention is restricted to persons who wish to raise health or environmental concerns. Agreeing with the government, the district court held the Trustees could only challenge the consent decree through CERCLA's public comment provision, § 122(d)(2). See United States v. Alcan Aluminum, Inc., No. 88-4970, at 2 n.1 (E.D. Pa. Dec. 1, 1992) (order denying motion to intervene).

When interpreting a statute we look first to the language itself. See Reves v. Ernst & Young, 122 L. Ed. 2d 525, 113 S. Ct. 1163, 1169 (1993). Section 113(i) states, without qualification, that "any person" who meets § 113(i)(2)'s four requirements can intervene as of right in "any action" commenced under CERCLA. We do not believe Congress would have used the phrase "any person may intervene" or "any action under this chapter" if it had intended to restrict intervention to only those persons raising a particular, but unidentified, claim.

Moreover, § 113's language mirrors the language in Federal Rule of Civil Procedure 24(a).*fn7 That language was added to the rule in 1966 to relax the interest requirement and "to foster more flexible, pragmatic judicial treatment of intervention as of right." Carl Tobias, Standing to Intervene, 1991 Wis. L. Rev. 415, 430 (1991); see James W. Moore, 3B Moore's Federal Practice, P 24.09-1[2], at 24-301 ("The liberalization of Rule 24(a) was not aimed at revising the nature of the applicant's interest, but was focused mainly on relaxing the requirement that the applicant would be bound . . . ). Thus, the same language the government here claims restricts intervention was added to Rule 24 to facilitate intervention. See Fed. R. Civ. P. 24, Notes of Advisory Committee on Rules 1966 Amendment at 100-01 (West 1993); New Orleans Public Serv. Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.) (en banc), cert. denied, sub nom. Morial v. United Gas Pipe Line Co., 469 U.S. 1019, 83 L. Ed. 2d 360, 105 S. Ct. 434 (1984). We do not believe Congress would have used the same language in § 113(i) as was used in Rule 24(a) if it had intended to reach such a different result.

Pointing to the legislative history, the government asks us to find a more limited meaning behind the statute's broad language.*fn8 "But we do not resort to legislative history to cloud a statutory text that is clear." Ratzlaf v. United States, 126 L. Ed. 2d 615, 114 S. Ct. 655, 662 (1994); see also Negonsott v. Samuels, 122 L. Ed. 2d 457, 113 S. Ct. 1119, 1122-23 (1993) ("Where [Congress's] will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.") (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 73 L. Ed. 2d 973, 102 S. Ct. 3245 (1982)). Thus, although we recognize a House report suggests a more limited construction, we cannot ignore the clarity of § 113's language. Consequently, we believe that any interested party can intervene under § 113(i).

B. Intervention under Rule 24(a) and § 113(i).

Because of their similarity, courts apply essentially the same test when determining whether to grant an application for intervention under both Rule 24(a) and § 113(i). See, e.g., Utah v. Kennecott Corp., 801 F. Supp. 553, 571-72 (D. Utah 1992); Arizona v. Motorola, Inc., 139 F.R.D. 141, 144 (D. Ariz. 1991); United States v. Acton Corp., 131 F.R.D. 431, 433 (D.N.J. 1990).*fn9 As we explained in Brody and Harris, cases under Rule 24(a), an applicant can intervene as of right where:

(1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the Disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation.

Brody, 957 F.2d at 1115; Harris, 820 F.2d at 596.

The district court denied the Trustees' motion to intervene because it found their motion was untimely, and it believed the Trustees did not have a protected interest at stake in the litigation. The Trustees claim their application was timely because it was filed less than two months after they learned the consent decree might jeopardize their right to sue for contribution, and because the government persuaded them to refrain from intervening earlier by giving them false assurances that the Alcan consent decree would not compromise their rights. They also claim their right to seek contribution is a legally protectable interest which the consent decree, if approved, would extinguish. 1. Timeliness

The Alcan litigation began on June 23, 1988. The consent decree was filed on August 9, 1992 and the Trustees moved to intervene on September 22, 1992. Arguing the Trustees waited more than four years before moving to intervene, the government claimed the Trustees' motion was untimely. The district court also believed the Trustees' motion was untimely, stating, "upon consideration of the current status of the litigation and the knowledge of the Trustees regarding the Discussions leading up to the current consent decree, the motion is untimely." We disagree.

The government misconstrues the timeliness requirement. As used here, timeliness is not just a function of counting days; it is determined by the totality of the circumstances. See NAACP v. New York, 413 U.S. 345, 366, 37 L. Ed. 2d 648, 93 S. Ct. 2591 (1973). See generally, James W. Moore, 3B Moore's Federal Practice § 24.13 (timeliness is not merely a function of when the motion was filed relative to the filing of the action). Although the point to which the litigation has progressed is one factor to consider, it is not dispositive. NAACP, 413 U.S. at 366; National Wildlife Fed'n v. Burford, 278 U.S. App. D.C. 320, 878 F.2d 422, 433 (D.C. Cir. 1989), rev'd. on other grounds, sub nom. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). Moreover, the timeliness requirement is "'an elemental form of latches or estoppel.'" Stallworth v. Monsanto, 558 F.2d 257, 266 (5th Cir. 1977) (citation omitted). As such, timeliness should not prevent intervention where an existing party induces the applicant to refrain from intervening. Cf. id. at 267 ("Since the plaintiffs urged the district court to make it more difficult for the appellants to acquire information about the suit early on, we do not think they should now be heard to complain that the appellants should have . . . appreciated its significance sooner."). Consequently, where a party takes reasonable steps to protect its interest, its application should not fail on timeliness grounds. Cf. NAACP, 413 U.S. at 367.

This occurred here. The record demonstrates that the Trustees were aware of the Alcan litigation, and kept in touch with the government's counsel in order to protect their rights. On November 18, 1991, the Trustees' counsel wrote a letter to the government attorney handling the case, confirming the content of their November 1, 1991 telephone conversation. That letter indicates that when, during the course of their conversation, the Trustees' counsel voiced concerns about the possibility of the Alcan consent decree destroying the Trustees' contribution right, the government's attorney assured him that the consent decree would not compromise the Trustees' claim.*fn10 That letter, which the government does not challenge, demonstrates the Trustees' intent to contest any consent decree that compromised their right to contribution and that the Trustees refrained from taking earlier action, in part, because of assurances given by the government.

Under these circumstances, the Trustees had no reason to believe they should try to intervene because the government led them to believe their interests were not at stake in the litigation.*fn11 Since the government induced the Trustees to refrain from intervening earlier, and the Trustees reasonably relied on that representation, the government cannot credibly complain the motion was untimely. Stallworth, 558 F.2d at 267.

We also believe that, to the extent there is a temporal component to the timeliness inquiry, it should be measured from the point which an applicant knows, or should know, its rights are directly affected by the litigation, not, as the government contends, from the time the applicant learns of the litigation. In so holding, we are breaking no new ground. The Court of Appeals for the District of Columbia Circuit came to the same Conclusion in National Wildlife Federation v. Burford, 278 U.S. App. D.C. 320, 878 F.2d 422 (D.C. Cir. 1989), rev'd. on other grounds, sub nom. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). There, ASARCO, a company that had staked mining claims on lands affected by a Bureau of Land Management policy sought to intervene in litigation challenging the implementation of that policy. ASARCO's motion was filed 3 years after the litigation began, but, due to a change in the way the agency construed its policy, only 73 days after ASARCO learned its interests were directly affected. Id. at 433-34. After the district court denied ASARCO's motion to intervene on timeliness grounds the District of Columbia Circuit reversed stating:

the salient factor is not when ASARCO's motion to intervene was filed with respect to the filing of NWF's original suit . . . . Rather, the relevant time from which to assess ASARCO's right of intervention is when ASARCO knew or should have known that any of its rights would be directly affected by this litigation.

Id. at 433-34.

The Court of Appeals for the Fifth Circuit came to the same Conclusion in Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977). There, a group of black employees sued Monsanto over civil rights violations resulting from Monsanto's seniority system. When the two sides began settlement negotiations Monsanto sought court approval to alert its white employees to the possible impact the proposed settlement would have on them. The plaintiffs opposed Monsanto's motion and the court agreed. Id. at 260-61. When a group of white employees eventually sought to intervene under Rule 24(a) the plaintiffs opposed arguing the motion was untimely. Id. at 262, 267. When the district court denied the motion to intervene, the Fifth Circuit reversed. Holding that timeliness should be measured from the point an applicant knows, or should know, of the risk to its rights, the court explained:

[A] rule making knowledge of the pendency of the litigation the critical event would be unsound because it would induce both too much and too little intervention. It would encourage individuals to seek intervention at a time when they ordinarily can possess only a small amount of information concerning the character and potential ramifications of the lawsuit, and when the probability that they will misJudge the need for intervention is correspondingly high. Often the protective step of seeking intervention will later prove to have been unnecessary, and the result will be needless prejudice to the existing parties and the would-be intervenor if his motion is granted, and purposeless appeals if his motion is denied. In either event, scarce judicial resources would be squandered, and the litigation costs of the parties would be increased.

558 F.2d at 264-65.

We agree. To the extent the length of time an applicant waits before applying for intervention is a factor in determining timeliness, it should be measured from the point at which the applicant knew, or should have known, of the risk to its rights. The point at which the applicant should have known its rights were at risk is usually a factual determination. Nonetheless, where a party induces an applicant to refrain from intervening and there is reasonable reliance, the applicant's motion should not fail on timeliness grounds.

Here, the Trustees moved to intervene 43 days after notice of the lodging of the consent decree, the point at which they became aware of the potential risk to their contribution claim. On these facts we believe their application was timely.

2. Air Products Defendants' Interest in the Litigation.

We next address whether the Air Products' defendants had a sufficient interest in the litigation, the second prong of the intervention test. The district court held "[the Trustees] do not have a substantial and direct protectable interest in this litigation since the Trustees' claim to contribution is not involved." The Trustees contend they have a statutory right to sue for contribution which approval of the consent decree would extinguish. The government claims the district court was correct because the right to contribution is not a substantive legal right, but instead is merely a contingency.

a. Sufficient legal interest.

Section 113(f)(1) gives early settling parties a right to sue other PRPs for contribution. *fn12 The Trustees contend their contribution right is sufficient to support a motion to intervene. In response, the government points to several cases in which courts have found the right to sue for contribution to be merely a contingency rather than a substantive legal right. See, e.g., Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 638-41 (1st Cir. 1989); Arizona v. Motorola, Inc., 139 F.R.D. 141; United States v. Vasi, 22 Chem. Waste Litig. Rep. 218 (N.D. Ohio 1991); United States v. Browning-Ferris Industries, 19 Chem. Waste Litig. Rep. 436 (M.D. La. 1989); United States v. Wheeling Disposal Serv., Inc., No. 92-0132-CV-W-1, slip. op. (W.D. Mo. Oct. 1, 1992). But see United States v. Acton Corp., 131 F.R.D. 431, 433-34 (D.N.J. 1990) ("The . . . defendants are not asserting only an economic interest; they seek to protect a statutory right that later may be extinguished.").

With the exception of United States v. Browning-Ferris Industries, 19 Chem. Waste Litig. Rep. 436 (discussed infra at note 14), however, none of the cases cited by the government is analogous because they involve either non-settling parties attempting to intervene in the consent decree of parties who are settling, see Acton, 131 F.R.D. at 432-33; Vasi, 22 Chem. Waste Litig. Rep. at 219; Wheeling Disposal, No. 92-0132-CV-W-1, Slip Op. at 1-3, or non-interested intervenors asserting the rights of third parties, see New Orleans Public Service Inc. v. United Gas Pipe Line Co. ("NOPSI "), 732 F.2d 452, 466 (5th Cir.) (en banc) (city asserting the rights of its power supplier), cert. denied, sub nom. Morial v. United Gas Pipe Line Co., 469 U.S. 1019, 83 L. Ed. 2d 360, 105 S. Ct. 434 (1984); Dingwell, 884 F.2d at 638-41 (insurer asserting the rights of its insured). Where the proposed intervenor has not yet settled with the government, it is unclear what, if any, liability it will have. Thus, any contribution right it might have depends on the outcome of some future dispute in which the applicant may, or may not, be assigned a portion of liability. In that situation, courts have properly found the interest of non-settlor applicants to be merely contingent.*fn13

Here, the applicants have already settled with the government. When a PRP settles with the government it accepts a specific liability. Unlike the interest of an applicant who has not yet settled, which is contingent in the sense that it may never ripen, the interest of an applicant who has already settled is contingent only in the sense that it cannot be valued. However, the fact that the interest cannot be valued does not mean it does not exist. The act of settling transforms a PRP's contribution right from a contingency to a mature, legally protectable interest.*fn14

Our Conclusion is in line with the policies behind the SARA amendments. Congress amended CERCLA because it wanted to encourage early settlement. See United States v. Cannons Engineering Corp., 720 F. Supp. 1027, 1048 (D. Mass. 1989), aff'd, 899 F.2d 79 (1st Cir. 1990); Motorola, 139 F.R.D. at 148 ("Congress created CERCLA to encourage settlement, thereby reducing 'the time and expense of enforcement litigation that necessarily diverts time and money from cleanup and restoration.'") (citation omitted). SARA, therefore, gives preference to early settlors by exposing a non-settling PRP to liability for the rest of the cleanup cost even if that exposure exceeds the amount the non-settlor's actions added to the overall cost of the cleanup. Cannons Engineering, 720 F. Supp. at 1040 (the statutory scheme is designed to discourage 'free riders' by imposing a greater share of clean-up costs on those who delay agreeing to contribute to remedial action.); see also, Daniel R. Avery, Enforcing Environmental Indemnification Against A Settling Party Under CERCLA, 23 Seton Hall L. Rev. 872, 886 (1993) ("The shifting of responsibility for settlement shortfall to not-settling PRPs therefore provides a real and meaningful incentive for PRPs to settle, and creates 'a corresponding detriment to their more recalcitrant counterparts.'").

Permitting intervention should encourage settlements. A PRP, when deciding whether or not to settle, knows the settlement will cap its liability. See 42 U.S.C. § 9613(f)(2); Motorola, 139 F.R.D. at 145. It also knows it may be able to reduce its liability by suing a non-settling PRP for contribution. See 42 U.S.C. § 9613(f)(1). Given Congress' intent in amending CERCLA, and the development of the interest requirement under Rule 24(a), we believe early settlors have a sufficiently protectable interest in the litigation to permit their intervention.

The government also contends the Trustees' interest is merely economic and is insufficient to support a motion to intervene. Some courts have stated a purely economic interest is insufficient to support a motion to intervene. See NOPSI, 732 F.2d at 464 ("It is plain that something more than an economic interest is necessary"); Motorola, 139 F.R.D. at 146 (remote economic interest is not enough to support intervention). But the Air Products defendants have more than just an economic interest.

For example, in NOPSI the Court of Appeals for the Fifth Circuit rejected the City of New Orleans' application to intervene in a settlement between its power supplier, NOPSI, and one of NOPSI's suppliers, United Gas Pipe Line Co. Id. at 455. The Fifth Circuit found the city's interest in the litigation was only economic because the City's only concern in the litigation was to ensure its power costs would not be increased by an adverse decision against NOPSI. Id. at 464-66. By way of explanation, the court described the type of interest that would support a motion to intervene, stating:

What is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant. This is reflected by the requirement that the claim the applicant seeks intervention in order to assert be a claim as to which the applicant is the real party in interest. The real party in interest requirement . . . 'applies to intervenors as well as plaintiffs' as does also the rule that 'a party has no standing to assert a right if it is not his own.'"

Id. at 464 (quoting United States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir. 1969)).

The same is true of Arizona v. Motorola, Inc., 139 F.R.D. 141. There, the U.S. District Court for the District of Arizona denied the application of Motorola, a defendant in a suit brought by the State of Arizona and the City of Phoenix, when it moved to intervene in a second lawsuit brought by the State of Arizona against the City of Phoenix. Citing the Fifth Circuit's analysis in NOPSI, the court held Motorola's interest was only contingent because Motorola was not the real party in interest. Id. at 144-46.

The rule that emerges from these cases is that a party has more than an economic interest where it is the real party in interest and where the applicant would have standing to raise the claim. NOPSI, 732 F.2d at 464. This rationale favors intervention here because the Trustees are the true party in interest with respect to the right to sue non-settlors for contribution.*fn15 Because we believe the right to seek contribution under § 113(f)(3)(B) is a legally cognizable interest we must next determine whether that interest is involved in this litigation.

b. Interest in this litigation.

Under CERCLA, one of the benefits of settling with the government is that a party becomes immune from contribution claims "regarding matters addressed in the settlement." 42 U.S.C. § 9613(f)(2)(1988).*fn16 It appears the statute allows the government to immunize a late settlor from an early settlor's contribution suit by settling with the government. Id.*fn17 It would appear that if the Alcan consent decree covered the operations and maintenance which the Air Products defendants agreed to pay, the Air Products defendants could not sue for contribution. See supra note 15. Thus, whether the Air Products defendants have an interest at stake in this litigation depends on whether the Alcan consent decree addresses operations and maintenance.

The district court did not expressly determine whether operations and maintenance was addressed in the Alcan consent decree. Instead, it stated, "the Trustees may not intervene as of right under [Rule] 24(a) since they do not have a substantial and direct protectable interest in this litigation since the Trustees' claim to contribution is not involved." Order at 2 n.1. The district court's statement could be interpreted as an implicit declaration that operations and maintenance is not covered by the Alcan consent decree, i.e., the Trustees' contribution claim is not involved in the Alcan litigation because operations and maintenance is not a part of the consent decree.

We are hesitant to impose this interpretation, however, because neither party who negotiated the Alcan consent decree supports it. The Alcan defendants vigorously challenge this interpretation. They claim operations and maintenance is a matter addressed in the consent decree, and approval of the decree will immunize them from any future contribution claim regarding operations and maintenance. Under their reading of the district court's order, the Air Products defendants have an interest in the litigation, it is simply not a legally protectable interest. The government, both in its brief and at oral argument, was unwilling to give an opinion on the issue.

On these facts, the right to intervene hinges on whether operations and maintenance is addressed in the Alcan consent decree. But on the record before us we are unable to make this determination. Moreover, we are uncertain whether the district court's decision to deny intervention was based on a belief that the Trustees' interest was not at stake or that the Trustees' interest, while at stake, was not sufficiently protectable to warrant intervention. Therefore, we will remand the case to the district court for the purpose of determining whether operations and maintenance is an issue addressed in the Alcan consent decree.*fn18

If on remand the district court determines operations and maintenance is covered in the Alcan consent decree, we believe the Air Products defendants have a sufficient interest in the Alcan litigation to warrant intervention.*fn19 On the other hand, if the district court finds operations and maintenance is not covered in the Alcan consent decree we do not believe the Air Products defendants would have the right to intervene since their interest would not be at issue in the Alcan litigation. We express no opinion on their right to seek contribution in a later action.

III.

Conclusion

For the foregoing reasons, we will vacate the district court orders denying intervention and approving the Alcan consent decree. We will also remand the case for the district court to determine whether operation and maintenance, as covered in the Air Products consent decree, is addressed by the Alcan consent decree.


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