United States v. Bliss

132 F.R.D. 58, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20982, 1990 U.S. Dist. LEXIS 10449, 1990 WL 115472
CourtDistrict Court, E.D. Missouri
DecidedJuly 30, 1990
DocketNo. 84-200C(1)
StatusPublished
Cited by4 cases

This text of 132 F.R.D. 58 (United States v. Bliss) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bliss, 132 F.R.D. 58, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20982, 1990 U.S. Dist. LEXIS 10449, 1990 WL 115472 (E.D. Mo. 1990).

Opinion

ORDER AND MEMORANDUM

NANGLE, District Judge.

IT IS HEREBY ORDERED that the motion by the cities of Eureka, Missouri, and Fenton, Missouri, to intervene and file a complaint be and is denied.

The cities of Eureka and Fenton (“the Cities”) seek to intervene and file a complaint against various defendants named in the instant consolidated actions.1 The [59]*59Cities’ interest in intervention stems from their concern about the use of nearby Times Beach as a locus for dioxin clean-up activities related to these consolidated cases. The Syntex defendants and the United States have filed memoranda in opposition to the intervention. Upon careful consideration of the various memoranda and the applicable law, the Court denies the Cities leave to intervene and file their complaint.

Intervention as of right in a CERC-LA2 action such as this, by entities other than the United States and individual states, is governed by 42 U.S.C. § 9613(i),3 and is also subject to the general provisions of Fed.R.Civ.P. 24.4 The four requirements for intervention as of right, which are found in these authorities and are generally recognized, are that the would-be intervenor:

(1) make a timely application for intervention,
(2) have an interest in the subject of the action,
(3) be so situated that without intervention, the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect his interest, and
(4) have an interest not adequately protected by the existing parties.

See, e.g., New Orleans Public Service v. United Gas Pipe Line, 732 F.2d 452 (5th Cir.1984); Fritts v. Niehouse, 604 F.Supp. 823 (W.D.Mo.1984).

The timeliness of the motion to intervene is a threshold consideration. Arkansas Electric Energy Consumers v. Middle South Energy, Inc., 772 F.2d 401 (8th Cir.1985). Furthermore,

The decision as to timeliness is committed to the district court’s discretion ... Although the issue is determined from all the circumstances ... three factors receive particular attention: “how far the proceedings have gone when the movant seeks to intervene, prejudice which resultant delay might cause to other parties, and the reason for the delay.”

Id. at 403 (citations omitted). In Arkansas Electric, the Eighth Circuit found a petition for intervention filed twelve days after the complaint was untimely enough, in the circumstances, to support denial of intervention. Id. In the instant case, the Cities seek to intervene in a matter now six years old,5 which, insofar as it concerns the defendants against whom the Cities desire to plead, appears to be close to resolution. This imminent resolution takes the form of two consent decrees, recently lodged with the Court, which are the product of lengthy, sensitive and complex negotiations between the parties based on careful study by the Environmental Protection Agency [60]*60(“EPA”) and the Missouri Department of Natural Resources (“DNR”). To the extent intervention poses a threat of disruption to the consent decree process, which has been carefully monitored by the Court throughout negotiations, the untimeliness of the Cities’ motion threatens significant prejudice to the existing parties. Such a threat to a negotiated consent decree has proved important in several Courts of Appeals decisions upholding the denial of belated intervention. See, e.g., Bloomington, Indiana v. Westinghouse Electric Corp., 824 F.2d 531, 536 (7th Cir.1987) [consolidated environmental cases]; Jones v. Caddo Parish School Board, 735 F.2d 923 (5th Cir.1984); Aleut Corporation v. Tyonek Native Corporation, 725 F.2d 527 (9th Cir. 1984).

In light of the lengthy pendency of these cases and their high media profile, the Cities cannot reasonably claim not to have been aware of the pendency or significance of the consolidated cases during recent years. Opportunities for public participation have been numerous. The EPA’s two-year-old Record of Decision (“ROD”) concerning the relevant sites, upon which the consent decrees will be based in part, was signed almost two years ago; a lengthy public comment period preceded its signing. The EPA has released other documents concerning the clean-up effort,6 and has held public meetings in connection with each,7 which were open to and attended by residents of the Cities. Moreover, the Director of the DNR once discussed intervention with the Cities’ counsel, who advised that the Cities were not interested in intervention.8 The Cities’ own statement of the facts, contained in its reply memorandum, demonstrates that the Cities have long been aware of the dioxin problem and this litigation, and have participated in various aspects of the state and federal processes addressing both.

For the foregoing reasons, the Cities’ motion to intervene in this litigation at this extremely advanced stage is untimely. The Cities proffered justification for the delayed effort to intervene in the case is that the Cities only recently became concerned that the state and federal governments did not adequately represent the Cities’ interest in this litigation. Because the Court rejects the contention that the governments do not adequately represent the Cities’ interests, as discussed below, the Court finds this an inadequate excuse for the lateness of the attempt to intervene.

The Court is persuaded that intervention is not necessary to adequately protect the Cities’ interests in the dioxin cleanup. The Cities are understandably concerned that they have input in the Court’s consideration of the proposed consent decrees. The Cities need not, however, achieve party status in order to have their input considered. The proposed consent decrees having been lodged with the Court, they will be published, and the Cities, along with any other interested persons and entities so inclined, will be able to submit written comments on the proposal to the Department of Justice, which must then file the comments with the Court. See 42 U.S.C. § 9622. As it did with the ROD, the United States intends to file with the Court a “responsiveness summary” prepared by the EPA addressing significant comments received on the proposed consent decrees.

Furthermore, the State of Missouri and the United States, as governmental entities acting in the public interest, are both presumed to adequately represent the interests which the Cities assert. Particularly where, as here, the would-be inter[61]*61venors’ complaint is patterned after the complaint of an existing plaintiff, in this case the United States,

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132 F.R.D. 58, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20982, 1990 U.S. Dist. LEXIS 10449, 1990 WL 115472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bliss-moed-1990.