United States v. Mid-State Disposal, Inc.

131 F.R.D. 573, 1990 U.S. Dist. LEXIS 7065, 1990 WL 78123
CourtDistrict Court, W.D. Wisconsin
DecidedMay 25, 1990
DocketNos. 89-C-1017-S, 89-C-1023-S
StatusPublished
Cited by14 cases

This text of 131 F.R.D. 573 (United States v. Mid-State Disposal, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mid-State Disposal, Inc., 131 F.R.D. 573, 1990 U.S. Dist. LEXIS 7065, 1990 WL 78123 (W.D. Wis. 1990).

Opinion

ORDER

SHABAZ, District Judge.

At a 7:45 a.m. telephone status conference on March 28, 1990 the Court heard and granted a motion for entry of the consent decree filed by the United States on March 27, 1990. Later that day a motion to intervene was filed by American Seating Company, Primerica Corp. and Wick Building Systems, Inc. (“Intervenors”).

Intervenors argue that they intended their motion be filed prior to the entry of the consent decree. It will be considered so filed. The motions to intervene and to reconsider have been fully briefed and are ready for decision. The surreply filed by the United States on May 7, 1990 will not be considered because it was not filed in accordance with this Court’s briefing schedule as noted in intervenors’ May 15, 1990 objection.

FACTS

The Mid-State Disposal site, a landfill contaminated with hazardous substances which is located in the town of Cleveland, Marathon County, Wisconsin, was identified by the United States Environmental Protection Agency (EPA) as a site of environmental contamination and placed on the National Priorities List empowering the federal government to clean up the site and recover the costs of cleanup from statutorily defined “responsible parties,” or to compel the parties to perform the cleanup. Twenty-two companies were identified as responsible parties including the defendants and the intervenors. Twenty-eight municipalities who arranged for and disposed of municipal waste at the site were identified as contributors to the contamination. The companies were sent notices ad[575]*575vising them of their potential liability but the municipalities were not so notified.

On May 15, 1989 after approximately six and one half months of negotiations between a group of responsible parties and the United States of America and the State of Wisconsin, the non-settling responsible parties withdrew from the negotiations. An agreement between the remaining parties was then reached.

On November 15, 1989 the United States filed this civil action for injunctive relief and recovery of costs under Sections 106(a) and 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9606(a) and 9607, as amended by the Superfund Amendments and Reauthorization Act of 1986 (“CERCLA”) against the settlors and simultaneously lodged with the Court a proposed consent decree which resolves the claims asserted in this action by requiring the defendants to perform remedial actions to cost approximately $19 million and to fund future oversight costs of the EPA and the Wisconsin Department of Natural Resources (“WDNR”).

On November 17, 1989 the State of Wisconsin filed an action against the same defendants seeking past costs incurred by the WDNR for the response actions associated with the site. The court consolidated these two cases on November 28, 1989, pursuant to the State’s motion.

The United States published a notice of lodging the decree in the Federal Register pursuant to sec. 122 of CERCLA, 42 U.S.C. § 9622, on December 14, 1989. The public was provided an opportunity to comment on the proposed decree within thirty days of the notice. Written comments were received from Wick Building Systems, Inc. and the Central Wisconsin Communities. On December 28, 1989 the Central Wisconsin Communities objected to the control over the negotiations by defendant Weyerhaeuser. The objections filed by Wick Systems, Inc. on January 2, 1990 noted that the decree was for the sole benefit of Weyerhaeuser, that EPA refused to negotiate with them and that they were not given an opportunity to consider joining the consent decree. On February 23, 1990 Wick filed an objection to a late signing provision for Central Wisconsin Communities. These objections were addressed and rejected by the Court at the March 28, 1990 hearing.

Defendants in CERCLA actions may bring contribution actions against any other person that may be liable for the cleanup costs. CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1). To encourage settlement persons that enter into judicially approved settlement agreements are protected from such contribution actions. CERCLA § 113(f)(2), § 9613(f)(2).

OPINION

The Court will address the merits of the motion to intervene as if it were filed prior to the entry of the consent decree. Intervenors contend that they have a right to intervene pursuant to Rule 24(a), Federal Rules of Civil Procedure and section 113(i) of CERCLA, 42 U.S.C. § 9618(0 or in the alternative that they are entitled to permissive intervention under Rule 24(b), Federal Rules of Civil Procedure.

CERCLA section 113(0, 42 U.S.C. § 9613(i) provides:

In any action commenced under this chapter ... in a court of the United States, any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposi-. tion of the action may, as a practical matter, impair or impede the person’s ability to protect that interest unless the President or the States show that the person’s interest is adequately represented by existing parties.

Federal Rules of Civil Procedure, Rule 24(a) provides:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a prac[576]*576tical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Both sections establish a four part requirement for an intervention of right: (1) the motion is timely; (2) the applicant has a sufficient interest in the litigation; (3) disposition of the action may, as a practical matter, impair or impede that interest and (4) the interest is not adequately represented by an existing party to the litigation. See Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir.), cert. denied sub nom., 484 U.S. 947, 108 S.Ct. 336, 98 L.Ed.2d 363 (1987).

Federal Rules of Civil Procedure, Rule 24(b) provides for permissive intervention as follows:

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Bluebook (online)
131 F.R.D. 573, 1990 U.S. Dist. LEXIS 7065, 1990 WL 78123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mid-state-disposal-inc-wiwd-1990.