25 F.3d 1174 (3rd Cir. 1994), 93-1099, United States v. Alcan Aluminum, Inc.

Docket Nº93-1099.
Citation25 F.3d 1174
Party NameFed.R.Serv.3d 1075, 24 Envtl. UNITED STATES of America v. ALCAN ALUMINUM, INC.; Champion Auto Generator Service, Inc.; International Flavors and Fragrances, Inc.; Kalama Chemical, Inc.; Schultz Electroplating, Inc.; S & W Waste, Inc.; McAdoo Associates, Inc.; Payso, Inc.; Edward L. Payer; Noreen Payer v. AT & T TECHNOLOGIES, INC.; CPS Chemicals Com
Case DateMay 25, 1994
CourtUnited States Courts of Appeals, United States Court of Appeals (3rd Circuit)

Page 1174

25 F.3d 1174 (3rd Cir. 1994)

Fed.R.Serv.3d 1075,

24 Envtl.

UNITED STATES of America

v.

ALCAN ALUMINUM, INC.; Champion Auto Generator Service,

Inc.; International Flavors and Fragrances, Inc.; Kalama

Chemical, Inc.; Schultz Electroplating, Inc.; S & W Waste,

Inc.; McAdoo Associates, Inc.; Payso, Inc.; Edward L.

Payer; Noreen Payer

v.

AT & T TECHNOLOGIES, INC.; CPS Chemicals Company, Inc.;

East Coast Pollution Control, Inc.; Knoll International,

Inc.; Lehigh Structural Steel Company; John E. Potochny;

Beatrice/Hunt Wesson, Inc.; Procter & Gamble

Manufacturing Company; 21 International, Inc.; Special

Metals Corporation; Activated Metals & Chemicals, Inc.;

Teledyne Vasco, A Division of Teledyne Industries, Inc.;

Teledyne Wah Chang Huntsville, A Division of Teledyne

Industries, Inc.; Witco Corporation, on behalf of itself

and the Richardson Company; CBP Resources; First Valley Bank,

The Trustees of the McAdoo Associates Site Trust Fund ("the

Trustees"), proposed intervenors, Appellants.

No. 93-1099.

United States Court of Appeals, Third Circuit

May 25, 1994

Argued Dec. 2, 1993.

Page 1175

[Copyrighted Material Omitted]

Page 1176

[Copyrighted Material Omitted]

Page 1177

Antoinette R. Stone (argued), Buchanan Ingersoll, Philadelphia, PA, for appellants.

John T. Stahr (argued), U.S. Dept. of Justice, and Evelyn Ying, U.S. Dept. of Justice, Washington, DC, for appellee, U.S.

Douglas F. Schleicher (argued), Saul, Ewing, Remick & Saul, Philadelphia, PA, for appellee, Intern. Flavors and Fragrances, Inc.

Robert B. McKinstry, Jr. (argued), Ballard, Spahr, Andrews & Ingersoll, Philadelphia, PA, for appellee, First Valley Bank.

Joel Schneider, Manta & Welge, Philadelphia, PA, for appellee, Kalama Chemical, Inc.

Allen E. Ertel, Allen E. Ertel & Associates, Williamsport, PA, for appellee, Schultz Electroplating, Inc.

Page 1178

Mark N. Cohen, Margolis, Edelstein & Scherlis, Philadelphia, PA, for appellee, S & W Waste, Inc.

Howard M. Klein, Conrad, O'Brien, Gellman & Rohn, Philadelphia, PA, for appellee, AT & T Technologies, Inc.

David E. Loder, Duane, Morris & Heckscher, Philadelphia, PA, for appellee, Lehigh Structural Steel Co.

Rodney B. Griffith and Janice V. Quimby-Fox, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for appellee, Beatrice/Hunt Wesson, Inc.

Theodore L. Garrett, Covington & Burling, Washington, DC and Frederick W. Rom, Lavin, Coleman, Finarelli & Gray, Mount Laurel, NJ, for appellee, Procter & Gamble Mfg. Co.

Randall L. Sarosdy, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, for appellee, 21 Intern., Inc.

Before: SCIRICA and ALITO, Circuit Judges and BASSLER, District Judge [*].

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this appeal we must decide whether a party who has entered into a consent decree with the Environmental Protection Agency for the cleanup of a superfund site may intervene in subsequent litigation over the same site. We believe that, provided it can demonstrate it has a protectable interest, an early settlor may intervene in the later litigation as of right. On these facts, however, the right to intervene hinges on whether the applicant had a protectable interest at risk. Because it is unclear from the record whether the intervenor's interest was affected by the subsequent consent decree, we will vacate the district court's orders denying the motion to intervene and approving the subsequent consent decree, and remand for a determination of whether the second consent decree affected the intervenor's rights under the first decree.

I.

FACTS & PROCEDURE

This appeal arises out of the cleanup of the McAdoo site, a parcel of land in Schuylkill County, Pennsylvania. Once used for strip mining, the McAdoo site was used for waste incineration and recycling from 1975 until it closed in 1979. At that time there were approximately 6,800 storage drums and several 10,000 and 15,000 gallon storage tanks of hazardous waste at the site.

The Air Products Litigation

In 1987 the United States began proceedings over the release and threatened release of hazardous material at the McAdoo site. 1 On June 3, 1988, the government entered into a consent decree with 65 Potentially Responsible Parties (PRPs), the "Air Products defendants," who agreed to reimburse the government for approximately $790,000 of past costs and to undertake a remedial program to prevent any future release of hazardous substances. 2 They also agreed to pay all of the long-term operations and maintenance costs. In exchange, the government agreed not to seek reimbursement for any of its past remedial costs and to allow the Air Products defendants to seek reimbursement for as much as 25% of their cleanup costs, provided the government could successfully recover those costs from other non-settling PRPs. 3

The agreement contained two other notable provisions. First, it contained a provision reserving the Air Products defendants' right to sue all non-settling parties for contribution. Second, it contained a provision stating the government's "present intent" not to include

Page 1179

in any future settlement over the McAdoo site a covenant not to sue that was broader than the one contained in the Air Products consent decree.

The Alcan Litigation

On June 23, 1988 the government began proceedings against another group of PRPs, the "Alcan defendants." In this action, the government sought reimbursement for costs it had previously incurred and a declaration that the Alcan defendants were liable for future response costs. The Alcan defendants and the government reached an agreement in January, 1992. The resultant consent decree was filed in the district court on August 10, 1992, and notice was published in the Federal Register on August 19, 1992. 57 Fed.Reg. 37,556 (1992).

Under the terms of the consent decree the Alcan defendants agreed to reimburse approximately $2 million of the government's response costs. In exchange, the government agreed not to sue the Alcan defendants for: (1) any work covered in the Air Products consent decree, (2) any of the government's oversight costs, (3) response costs incurred before June, 1990, and (4) the government's enforcement costs. 4

As required by CERCLA, the district court reserved approval of the consent decree to allow for public comment. 42 U.S.C. Sec. 9622(d)(2) (1988). On September 16, 1992, the Trustees of the McAdoo site, on behalf of the Air Products defendants, objected to the consent decree on the grounds that it would extinguish their right to sue the Alcan defendants for contribution. They also argued the covenant not to sue First Valley Bank over surface or ground water contamination violated a provision in the Air Products consent decree where the government stated its intention not to give any other PRP a covenant not to sue broader than the one contained in the Air Products consent decree.

The Trustees also moved to intervene in the government's suit against the Alcan defendants under CERCLA Sec. 113(i), 42 U.S.C. Sec. 9613(i) (1988), and Federal Rule of Civil Procedure 24(a). 5 On November 24, 1992, the district court denied the Trustees' motion, holding that Sec. 113(i) was inapplicable, and that the Rule 24 application was untimely and did not reflect "a substantial and direct protectable interest in the litigation." This timely appeal followed.

The district court had jurisdiction under 42 U.S.C. Secs. 9607 and 9613(b). We have jurisdiction under 28 U.S.C. Sec. 1291 (1988) because the denial of a motion to intervene is a final, appealable order. See McKay v. Heyison, 614 F.2d 899, 903 (3d Cir.1980); Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert. denied, sub nom. Fire Officers Union v. Pennsylvania, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976). We review the denial of a motion to intervene as of right for abuse of discretion. However, our review "is 'more stringent' than the abuse of discretion review we apply to a denial of a motion for permissive intervention." Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir.1992) (quoting Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir.) (internal citation and quotation omitted), cert. denied, sub nom. Castille v. Harris, 484 U.S. 947, 108 S.Ct. 336, 98 L.Ed.2d 363 (1987)). We will reverse only if we find the district court "has applied an improper legal standard or reached a decision we are confident is incorrect." Id. (quoting Harris, 820 F.2d at 597).

II.

DISCUSSION

In 1986 Congress passed the Superfund Amendment and Reauthorization Act ("SARA"), Pub.L. 99-499; 100 Stat. 1613 (codified in scattered sections of 42 U.S.C.), which amended CERCLA, 42 U.S.C.

Page 1180

Secs. 6911, 6911a, 9601-75. Congress' intent in passing SARA was to ensure rapid and thorough cleanup of toxic waste sites. See H.R.Rep. No. 253, 99th Cong., 2d Sess. 55 reprinted in 1986 U.S.C.C.A.N. 2835, 2837. Because Congress believed it could never provide EPA with adequate money or manpower, the new law tried to maximize the participation of responsible parties in the cleanup. Id.

  1. Claims under Sec. 113(i).

    Among the sections added to CERCLA in 1986 was Sec. 113(i), which permits interested parties to intervene as of right in actions under CERCLA or the Solid Waste Disposal Act. 42 U.S.C. Sec. 9613(i). 6 The government challenges the Trustees' ability to intervene in its suit against the Alcan defendants arguing that, under Sec. 113(i), intervention is restricted to persons who wish to raise health or environmental concerns. Agreeing with the government, the district court held the Trustees could only challenge the consent decree through CERCLA's public comment provision, Sec. 122(d)(2). See United States v. Alcan Aluminum, Inc., No. 88-4970, at 2 n. 1 (E.D.Pa. Dec. 1, 1992) (order denying motion to intervene).

    When interpreting a statute we look first to the language itself....

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130 practice notes
  • 239 F.R.D. 404 (W.D.Pa. 2006), Civ. A. 3:06-74, United States ex rel. Frank M. Sheesley Co. v. St. Paul Fire and Marine Ins. Co.
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • November 7, 2006
    ...reasonable steps to protect its interest, its application should not fail on timeliness grounds." United States v. Alcan Aluminum, 25 F.3d 1174, 1182 (3d Page 409 The interest at stake must be " significantly protectable," which binding precedent interprets to mean " a l......
  • 229 F.R.D. 339 (D.Mass. 2005), C. A. 02-11315, In re Sonus Networks, Inc. Securities Litigation
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • August 15, 2005
    ...have known, of the risk to its rights." In re Safeguard Scientifics, 220 F.R.D. at 47 (citing United States v. Alcan Aluminum, Inc., 25 F.3d 1174, (3rd Cir.1994)); see also Mountain Top Condominium Ass'n. v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3rd Cir.1995). As descri......
  • 495 B.R. 274 (Bkrtcy.W.D.Pa. 2013), 10-26337-JAD, In re Shubh Hotels Pittsburgh, LLC
    • United States
    • Federal Cases United States Bankruptcy Courts Third Circuit
    • July 9, 2013
    ...Top Condominium Association v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir.1995), citing U.S. v. Alcan Aluminum Inc., 25 F.3d 1174, 1185 (3d Cir.1994). Because Mr. Lewis' interest in the financial viability of his companies is merely economic, it is not a " sufficient ......
  • In re Shubh Hotels Pittsburgh, LLC, 070913 PAWBC, 10-26337-JAD
    • United States
    • Federal Cases United States Bankruptcy Courts Third Circuit
    • July 9, 2013
    ...Top Condominium Association v. Dave Stabbert Master Builder, Inc. , 72 F.3d 361, 366 (3d Cir. 1996), citing U.S. v. Alcan Aluminum Inc. , 25 F.3d 1174, 1185 (3d Cir. 1994). Because Mr. Lewis' interest in the financial viability of his companies is merely economic, it is not a "sufficie......
  • Request a trial to view additional results
128 cases
  • 239 F.R.D. 404 (W.D.Pa. 2006), Civ. A. 3:06-74, United States ex rel. Frank M. Sheesley Co. v. St. Paul Fire and Marine Ins. Co.
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • November 7, 2006
    ...reasonable steps to protect its interest, its application should not fail on timeliness grounds." United States v. Alcan Aluminum, 25 F.3d 1174, 1182 (3d Page 409 The interest at stake must be " significantly protectable," which binding precedent interprets to mean " a l......
  • 495 B.R. 274 (Bkrtcy.W.D.Pa. 2013), 10-26337-JAD, In re Shubh Hotels Pittsburgh, LLC
    • United States
    • Federal Cases United States Bankruptcy Courts Third Circuit
    • July 9, 2013
    ...Top Condominium Association v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir.1995), citing U.S. v. Alcan Aluminum Inc., 25 F.3d 1174, 1185 (3d Cir.1994). Because Mr. Lewis' interest in the financial viability of his companies is merely economic, it is not a " sufficient ......
  • In re Shubh Hotels Pittsburgh, LLC, 070913 PAWBC, 10-26337-JAD
    • United States
    • Federal Cases United States Bankruptcy Courts Third Circuit
    • July 9, 2013
    ...Top Condominium Association v. Dave Stabbert Master Builder, Inc. , 72 F.3d 361, 366 (3d Cir. 1996), citing U.S. v. Alcan Aluminum Inc. , 25 F.3d 1174, 1185 (3d Cir. 1994). Because Mr. Lewis' interest in the financial viability of his companies is merely economic, it is not a "sufficie......
  • Rowe v. E.I. DuPont De Nemours & Co., 082611 NJDC, 06-1810 (RMB/AMD)
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Courts. 3th Circuit. District of New Jersey
    • August 26, 2011
    ...of an intervention request is determined by the totality of the circumstances.'" Id. (quoting United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1181 (3d Cir. 1994)). Courts consider: "(1) the stage of the proceeding; (2) the prejudice that delay may cause the parties; and (3) t......
  • Request a trial to view additional results
3 books & journal articles
  • The constitutional rights of nonsettling potentially liable responsible parties in the allocation of CERCLA liability.
    • United States
    • Environmental Law Vol. 27 Nbr. 2, June 1997
    • June 22, 1997
    ...1991); United States v. Mid-State Disposal, Inc., 131 F.R.D. 573, 576-77 (W.D. Wis. 1990); see also United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1181 (3d Cir. 1994) (holding that PRPs who had actually settled have a tangible interest in their contribution claims that supported inter......
  • Intervention by non-settling PRPs in CERCLA actions.
    • United States
    • Environmental Law Vol. 41 Nbr. 3, June 2011
    • June 22, 2011
    ...Aerojet Gen., 606 F.3d at 1147; Acton, 131 F.R.D. at 432; Union Elec., 64 F.3d at 1155-56. (19) See United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1182 (3d Cir. 1994) ("[T]o the extent there is a temporal component to the timeliness Inquiry, it should be measured from the point w......
  • The Common Law of Liable Party CERCLA Claims.
    • United States
    • Stanford Law Review Vol. 70 Nbr. 1, January 2018
    • January 1, 2018
    ...No. 99-499, 100 Stat. 1613 (codified as amended in scattered sections of the U.S. Code); see also United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1184 (3d Cir. 1994"Congress amended CERCLA because it wanted to encourage early settlement."). (21.) See 42 U.S.C. [section] 9613(......

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