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Commonwealth, Dep't of Environmental Protection v. Atlantic Richfield Co.

September 16, 2009

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF
v.
ATLANTIC RICHFIELD COMPANY, DEFENDANT



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Before the court is Lockheed Martin Corporation's ("LMC") motion for leave to intervene in the captioned case for the purpose of opposing a Consent Decree pending before the court between current Plaintiff and Defendant. (Doc. 8.) LMC filed this motion pursuant to Federal Rule of Civil Procedure 24, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9613(i), and Local Rule 7.1. Plaintiff filed a response to LMC's motion (Doc. 14), to which LMC replied (Doc. 15).*fn1 The motion is now ripe for disposition.

I. Background

On April 30, 2009, Plaintiff, the Pennsylvania Department of Environmental Protection ("PADEP"), filed a complaint in this court against LMC. (No. 09-cv-821, Doc. 1.) Subsequently, on May 15, 2009, PADEP filed the current complaint against Defendant, Atlantic Richfield Company ("ARCO"). (No. 09-cv-913, Doc. 1.) Both complaints concern the cleanup of radioactive materials kept at the Quehanna Nuclear Reactor Facility ("Quehanna Site") located in Clearfield County, Pennsylvania. (Doc. 8 at 2; 39 Pa. Bull. 3137 (June 20, 2009).)

The Quehanna Site has been mostly owned and operated by the Commonwealth since the 1950s. 39 Pa. Bull. 3137 (June 20, 2009). Various companies have conducted activities at the Quehanna Site relating to the processing, storage, handling, and remediation of radioactive materials. Id. LMC and ARCO are two of the companies involved in using radioactive material on the Quehanna Site. During the period beginning in the 1950's and ending sometime in the early 2000's, large amounts of strontium-90 ("Sr-90") and cobalt-60 ("Co-60") were stored at the Quehanna Site.*fn2 Id.

For the past fifteen years, PADEP has been working to cleanup the Quehanna Site and has expended over $30 million in these efforts. Id. In 2003 and 2004, the United States agreed to reimburse the Commonwealth for $10 million of the Commonwealth's cleanup expenditures. The Commonwealth subsequently filed suit against ARCO and LMC for $1,450,000 and $20 million respectively. Id.

On June 19, 2009, PADEP filed a notice of proposed Consent Decree with ARCO in the Pennsylvania Bulletin. 39 Pa. Bull. 3137 (June 20, 2009). The terms of the Consent Decree indicate that ARCO will reimburse the Commonwealth for $995,000 worth of the Quehanna Site cleanup expenditures, and also ARCO "receives contribution protection and cannot be sued by any other entity with respect to the Commonwealth's cleanup expenditures." Id. Following this notice, a sixty day comment period was set during which interested persons could submit written comments on the proposed Consent Decree to the PADEP. Id.

II. Discussion

a. Standard

LMC seeks intervention as of right pursuant to Federal Rule of Civil Procedure 24(a)(2) and § 113(i) of CERCLA, or alternatively permissive intervention under Federal Rule of Civil Procedure 24(b).

LMC claims they may have established intervention of right under Rule 24(2), which reads:

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Fed.R.Civ.P. 24(a)(2). LMC further claims that ยง 113(i) of CERCLA gives them a concurrent right to ...


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