United States v. Hooker Chemicals & Plastics Corp.

101 F.R.D. 444, 20 ERC 1857, 38 Fed. R. Serv. 2d 1225, 20 ERC (BNA) 1857, 1984 U.S. Dist. LEXIS 19591
CourtDistrict Court, W.D. New York
DecidedFebruary 10, 1984
DocketNo. CIV-79-988C
StatusPublished
Cited by5 cases

This text of 101 F.R.D. 444 (United States v. Hooker Chemicals & Plastics Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hooker Chemicals & Plastics Corp., 101 F.R.D. 444, 20 ERC 1857, 38 Fed. R. Serv. 2d 1225, 20 ERC (BNA) 1857, 1984 U.S. Dist. LEXIS 19591 (W.D.N.Y. 1984).

Opinion

CURTIN, Chief Judge.

I.

Pending before the court is the application of the Province of Ontario and the Minister of the Environment [Ontario]1 to intervene in an environmental lawsuit commenced in December, 1979, against Hooker Chemical and Plastics Corporation [Occidental].2 The present action concerns Occidental’s dumping of thousands of tons of chemicals at its S-Area Landfill in Niagara Falls, New York, for a period of approximately 28 years, ending in 1975.

The S-Area Landfill is situated on about eight acres of land and is bordered on the south by the Robert Moses Parkway, beyond which flows the Niagara River. Immediately to the east of the S-Area Landfill is the Niagara Falls Drinking Water Treatment Plant. The S-Area is, in part, situated upon land which has been reclaimed from the Niagara River. Among the many concerns of the United States and New York State is the landfill’s proximity to the water treatment plant. The endangerment of the water supplied to the people of Niagara Falls has also been a matter of great concern to. the private citizens of that City and to the people of Western New York generally.

The case is presently in a settlement posture. Beginning in October, 1980, counsel embarked upon a series of negotiations aimed at arriving upon a satisfactory settlement of this case. After more than three years of discussion, counsel for all parties announced that they had agreed upon a settlement and proposed judgment. Approval by each of the parties was finalized when all of the necessary signatures were placed upon the agreement and when it was lodged with the court on January 10, 1984.

At this juncture, it is important to note that approval by the parties and the lodging of the agreement with the court do not signal the end to this matter. A settlement by the parties only means that they have arrived at a formula which resolves their differences to their mutual satisfaction. However, the agreement reached by the parties will be subject to extensive and intensive public scrutiny. Specifically, there is a 30-day period after the lodging of the agreement, during which time interested persons may submit their comments and criticisms. The United States has agreed to extend this period for an additional 30 days. Following this, the court will conduct public hearings, during which witnesses will be called, examined, and cross-examined by the parties. The purpose of these [446]*446hearings is to develop a complete and accurate record. Only after the development of such a record will the court decide whether or not the agreement ought to be approved. It is only upon court approval that the settlement and proposed judgment can become effective as the judgment of this court. See United States v. Hooker Chemical and Plastics Corp., 540 F.Supp. 1067 (W.D.N.Y.1982) (Hyde Park Landfill).

Ontario contends that it is entitled to intervene in this action as a matter of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. In the alternative, Ontario seeks permissive intervention pursuant to Rule 24(b). The complaint in intervention seeks relief under four theories, three of which concern the application of federal environmental statutes,3 and a fourth which is a common law nuisance claim.

For the reasons stated below and to the extent indicated herein, the motion of the Province of Ontario and the Minister of the Environment to intervene in this action as a matter of right shall be granted. Fed.R. Civ.P. 24(a)(2).

II.

Intervention as a matter of right pursuant to Rule 24(a)(2) is appropriate when an applicant satisfies four requirements. These are: 1) an interest in the subject matter of the action; 2) disposition of the action might, as a practical matter, impair its interest; 3) the representation of its interest might be inadequate; and 4) the application is timely. Restor-A-Dent Dental Laboratories, Inc. v. Certified Alloy Products, Inc., 725 F.2d 871 at 873-874 (2d Cir.1984); LaRouche v. Federal Bureau of Investigation, 677 F.2d 256, 257 (2d Cir. 1982); United States Postal Service v. Brennan, 579 F.2d 188, 191 (2d Cir.1978).4

Only Occidental and Niagara Falls argue that the applicant lacks a sufficient interest in the subject matter of this case to qualify for intervention as of right. Occidental and Niagara Falls are also the only parties which argue that Ontario’s motion is untimely and that the disposition of the case will not impair the interests of the Province. The State of New York does not oppose the motion. The United States does not oppose permissive intervention by Ontario but argues that intervention as of right is precluded because Ontario’s interests are adequately represented by the United States and by New York State.

The most seriously disputed point concerning the pending intervention motion is the adequacy of the representation being supplied by the United States and New York State with respect to what Ontario says its interests are. The burden of showing that present representation may be inadequate rests with the applicant. United States Postal Service v. Brennan, supra, 579 F.2d at 191. In the usual case, the burden is “minimal.” Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). However, a different standard is often applied when a state is a party to an action and intervention is sought by its citizens or by a political subdivision of that state. In such circumstances, courts in some cases have invoked the parens patriae doctrine, under which there is a strong presumption that the state is adequately representing the interest of its citizens. A minimal showing of possible inadequate representation is not sufficient to overcome this presumption. Environmental Defense Fund, [447]*447Inc. v. Higginson, 631 F.2d 738, 740 (D.C.Cir.1979); 3B Moore’s Federal Practice, it 24.07[4] at 24-72. On the contrary, when the parens patriae doctrine is invoked, a strong showing of inadequacy is required, and intervention as of right is far less likely. 7A Wright and Miller, Federal Practice and Procedure, § 1909 at 530-31 (1972).

A similar standard for measuring the adequacy of representation is often applied in public interest litigation in which the United States is a party. This is particularly true in antitrust cases. See, e.g., United States v. Hartford Empire Co., 573 F.2d 1, 2 (6th Cir.1978); United States v. Associated Milk Producers, Inc., 534 F.2d 113, 117 (8th Cir.1976).

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Related

United States v. Hooker Chemical & Plastics Corp.
776 F.2d 410 (Second Circuit, 1985)
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607 F. Supp. 1052 (W.D. New York, 1985)
United States v. Hooker Chemicals & Plastics Corp.
749 F.2d 968 (Second Circuit, 1984)

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101 F.R.D. 444, 20 ERC 1857, 38 Fed. R. Serv. 2d 1225, 20 ERC (BNA) 1857, 1984 U.S. Dist. LEXIS 19591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hooker-chemicals-plastics-corp-nywd-1984.