United States v. W.R. Grace & Co.-Conn.

185 F.R.D. 184, 43 Fed. R. Serv. 3d 1344, 48 ERC (BNA) 1632, 1999 U.S. Dist. LEXIS 4649, 1999 WL 199001
CourtDistrict Court, D. New Jersey
DecidedApril 7, 1999
DocketNo. Civ.A. 98-2045
StatusPublished
Cited by9 cases

This text of 185 F.R.D. 184 (United States v. W.R. Grace & Co.-Conn.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. W.R. Grace & Co.-Conn., 185 F.R.D. 184, 43 Fed. R. Serv. 3d 1344, 48 ERC (BNA) 1632, 1999 U.S. Dist. LEXIS 4649, 1999 WL 199001 (D.N.J. 1999).

Opinion

OPINION

WOLIN, District Judge.

This matter comes before the Court on the appeal by the Township of Wayne (the “Township”) of Magistrate Judge Pisano’s Opinion and Order dated November 10,1998. For the reasons stated herein, the Court will affirm the decision of the Magistrate Judge.

BACKGROUND

I. Facts

The following factual background is excerpted from Magistrate Judge Pisano’s Opinion and Order dated November 10,1998 (the “opinion”):

Between 1948 and 1961, Rare Earths, Inc., processed monazite sand at an industrial site in Wayne, New Jersey. Rare Earths used the yield of this process to produce an eyeglass polishing compound. Radioactive thorium was a byproduct of the processing of the monazite sand. In accordance with then-applicable government standards, Rare Earths disposed of the thorium on site in Wayne. The plant discontinued processing monazite sand in 1962, and all operations at the Wayne site ceased in 1971.
W.R. Grace & Co. is the successor to Rare Earths, Inc. In the 1970s and 1980s, W.R. Grace and the federal government undertook to decontaminate the site. Originally, government studies recommend an “on-site treatment remedy,” but politi[186]*186cal pressure later forced the government to seek an off-site disposal remedy. At oral argument, counsel informed the Court that the current off-site remedy consists of excavating the site and shipping the soil using trucks and railcars from New Jersey to a Utah desert.
In November 1995, the government initiated negotiations with W.R. Grace, seeking monetary contribution to the cleanup effort. The United States and W.R. Grace negotiated for three years, and in April 1998, filed a consent decree with the federal district court pursuant to § 122 of CERCLA, 42 U.S.C. § 9622(d)(1)(A). In September 1998, the Township of Wayne moved to intervene because, in its view, the amount of money provided by W.R. Grace pursuant to the consent decree is inadequate.

II. The Magistrate Judge’s Opinion and Order

The Township’s motion to intervene was delegated by the Court to Magistrate Judge Pisano in accordance with Local R. 72.1(a)(1) of the New Jersey Federal Practice Rules. W.R. Grace & Co.-Conn. (“W.R.Grace”) opposed the motion, as it does this appeal. The United States of America (the “United States”), on behalf of the Environmental Protection Agency (“E.P.A.”) and other governmental entities, submitted a brief neither supporting nor opposing the Township’s motion, as it does again in this appeal. The Township asserted three bases for its intervention: (1) intervention pursuant to § 113(i) of CERCLA (42 U.S.C. § 9613(0) (“§ 113(i)”); (2) intervention as of right under Fed.R.Civ.P. 24(a)(2) (“R.24(a)(2)”); or (3) permissive intervention under Fed. R.Civ.P. 24(b) (“R.24(b)”).

Judge Pisano outlined the four-part test applied to determine whether a party is entitled to intervention as of right: (1) the application to intervene must be timely; (2) the proposed intervenor must have a sufficient interest in the litigation; (3) the interest must be affected or impaired by the disposition of the litigation; and (4) the proposed intervenor’s interest must not be adequately represented by existing parties in the litigation. See Opinion at 4; United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1182 (3d Cir.1994). Noting that this four-part test is employed to evaluate intervention under both R. 24(b)(2) and § 113(i), the judge used the same analysis to evaluate intervention under the first two grounds advanced by the Township. See Opinion at 3; Alcan, 25 F.3d at 1181 & n. 9.1

The judge singled out the second and fourth prongs of the test as the disputed elements, and proceeded with an analysis of whether the Township had a “sufficient interest” in the litigation. See Opinion at 4. Most cases applying this standard in the CERCLA context involve the attempted intervention of potentially responsible parties (“PRPs”) in settlements reached between the federal government and other PRPs. See, e.g., Alcan, 25 F.3d at 1179; United States v. Union Elec. Co., 64 F.3d 1152, 1156 (8th Cir.1995); United States v. Acton Corp., 131 F.R.D. 431, 432 (D.N.J.1990). The courts addressing this situation have generally found that a non-settling PRP may intervene if it has an interest in a right of contribution from other PRPs which may be affected by the settlement. See Alcan, 25 F.3d at 1184; Union Elec., 64 F.3d at 1166-67; Acton, 131 F.R.D. at 433-34.

As Judge Pisano aptly noted, however, this ease presents a different question, that is, “whether a local municipality has a right to intervene in litigation between the United States and a PRP.” Opinion at 6. The judge cited to the legislative history of CERCLA, which indicates that the right of intervention authorized under § 113(i) should be limited to those intervenors who raise “issues ... directly related to the selection of remedy.” See Opinion at 7 (quoting United States v. Vasi, Nos. 5:90 CV 1167, 5:90 CV [187]*1871168, 1991 WL 557609, at *3 n. 2 (N.D.Ohio March 6,1991)).

Observing that the Township did not object to the form or method of the remedial efforts, and furthermore that the Township had not specified any legal basis for intervention aside from its conclusory statement that the proposed W.R. Grace settlement would “impair or impede the Township’s ability to protect its interest,” the judge concluded that the Township had not demonstrated a sufficient interest in the litigation such that intervention was warranted. See Opinion at 7-8.

Turning to the fourth prong of the intervention test, the judge held that the Township’s interests could be adequately represented by the federal government, because the entities had agreed upon the same method of remediation. See Opinion at 9-10. Additionally, the judge noted that the Township had had an opportunity to participate in the settlement proceeding by filing objections to the proposed settlement during the allotted time period. See Opinion at 10.

Judge Pisano also declined to grant permissive intervention under R. 24(b), noting that the rule was completely discretionary and that intervention would be of no benefit to the parties and would serve only to delay the implementation of the consent decree and the related decontamination of the Wayne site. See Opinion at 11.

III. Arguments on Appeal

The Township’s chief motivation appears to be its concern that the proposed settlement reached between W.R. Grace and the United States “releases W.R. Grace of current and future cleanup liability for far too low a price.” See Township’s Moving Brief at 2. The Township seeks to intervene “to protect its interests in the litigation.” Id at 2-3.

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185 F.R.D. 184, 43 Fed. R. Serv. 3d 1344, 48 ERC (BNA) 1632, 1999 U.S. Dist. LEXIS 4649, 1999 WL 199001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wr-grace-co-conn-njd-1999.