561 F.2d 904 (D.C. Cir. 1977), 76-1664, Natural Resources Defense Council v. Costle

Docket Nº:76-1664, 76-1665.
Citation:561 F.2d 904
Party Name:Envtl. NATURAL RESOURCES DEFENSE COUNCIL et al. v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency, Firestone Tire and Rubber Company, et al., Appellants. NATURAL RESOURCES DEFENSE COUNCIL et al. v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency, Union Carbide Corporation, et al., Appellants.
Case Date:June 15, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 904

561 F.2d 904 (D.C. Cir. 1977)




Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Firestone Tire and Rubber

Company, et al., Appellants.



Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Union Carbide Corporation, et

al., Appellants.

Nos. 76-1664, 76-1665.

United States Court of Appeals, District of Columbia Circuit

June 15, 1977

Page 905

Charles F. Lettow, Washington, D.C., with whom Robert C. Barnard, Washington, D.C., was on the brief, for appellants.

Jacques B. Gelin, Atty., Dept. of Justice, Washington, D.C., with whom Peter R. Taft, Asst. Atty. Gen., Raymond N. Zagone, Thomas A. Pursley, III, Robert A. Kerry, Attys., Dept. of Justice and Ridgway M. Hall, Jr., Atty., E.P.A., Washington, D.C., were on the brief, for federal appellees.

Ronald J. Wilson, Washington, D.C., with whom J. G. Speth and Edward L. Strohbehn, Jr., Washington, D.C., were on the brief, for appellees, Natural Resources Defense Council, et al.

Richard E. Schwartz, Washington, D.C., entered an appearance for appellee, American Iron and Steel Institute.

Michael R. Berman, Chicago, Ill., entered an appearance for appellee, Citizens For a Better Environment.

Before MacKINNON, ROBB and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

This appeal arises out of a settlement agreement reached by the parties in this

Page 906

case following remand from this court. 1 The settlement agreement obligates the Administrator of the Environmental Protection Agency to establish by rule-making various sets of regulations under the provisions of the Federal Water Pollution Control Act Amendments of 1972 2 relating to the discharge of named pollutants. In motions before the District Court the appellants here, assorted rubber and chemical companies, sought to intervene in this action in order to participate in the District Court proceedings involving the implementation and oversight of the settlement agreement. The District Court denied their motions for intervention. The single question presented for review is whether the appellants are entitled to intervene as of right pursuant to Rule 24(a)(2), Fed.R.Civ.P. 3 We hold that they are, reverse the District Court, and remand the case to allow intervention.


This action began in 1973 with a lawsuit filed by various environmental groups (hereinafter "NRDC") 4 against the Administrator of the Environmental Protection Agency (hereinafter "EPA") seeking declaratory and injunctive relief against EPA with respect to its duty under Section 307(a) 5 of the Federal Water Pollution Control Act Amendments of 1972 (hereinafter "the Act") to regulate toxic discharges into American waters. The District Court dismissed the complaint. On appeal, as noted, this court reversed and remanded for additional proceedings because the District Court had acted without having the entire administrative record before it.

Following remand, the parties, NRDC and EPA, entered into private negotiations aimed at settling the case. In early March 1976 the parties gave notice that a settlement had been reached and submitted a proposed settlement agreement to the court for approval on 31 March 1976. The settlement agreement included settlement of three related cases which had been filed in the District Court, 6 which were later consolidated with the lead case. Into one of these cases, intervention by various companies and trade associations had already been granted. 7

By the terms of the settlement, as noted, EPA is required to establish by rule-making a series of regulations relating to various named pollutants; by the agreement EPA will be promulgating these regulations under sections 301, 304 and 306 of the Act 8 as well as section 307. The agreement provides that EPA would regulate the pollutants on an industry-by-industry basis and also sets a priority and timetable for studies and rule-making. After allowing for and

Page 907

receiving comments from the public on the proposed agreement, including comments from appellants, on 9 June 1976 the District Court entered an order consolidating the cases, approving the agreement and directing compliance with its terms. 9

Appellants filed their motions for intervention in two groups and at two different times. On 29 March 1976 the first group (hereinafter "Union Carbide") 10 moved to intervene as parties defendant; according to this group, their counsel first became aware of the settlement agreement in mid-March. On 23 April 1976 the other group (hereinafter "Firestone") 11 moved to intervene as parties defendant; their contention is that they first learned of the settlement agreement when it was offered to the court on 31 March 1976. Appellants sought intervention, as noted, in order to ensure their full rights of participation in the "crucial decisions" 12 to be made before the District Court in the oversight and implementation of the agreement. By an order and memorandum of 29 April 1976 the District Court denied the motions to intervene. 13 The court ruled that the motions were not timely because of "the age of the cases, (and) the fact that they are on the verge of settlement. . . ." In addition, the court concluded that the interests of Union Carbide and Firestone would not be impaired because "no challenges to the validity of regulations formulated pursuant to it (the agreement) shall be pretermitted." Finally, the court held that the interests of Union Carbide and Firestone in the promulgation of lawful regulations would be adequately represented by EPA and the existing industry intervenors. For the reasons set out below, we consider that the District Court erred and remand for intervention by right to be allowed.


Whether a motion to intervene is timely "is to be determined from all the circumstances." 14 More particularly, this court has noted:

(T)he amount of time which has elapsed since the litigation began is not in itself the determinative test of timeliness. Rather, the court should also look to the related circumstances, including the purpose for which intervention is sought . . . and the improbability of prejudice to those already in the case. Hodgson v. United Mine Workers of America. 15

Judged by these standards, it is clear that the District Court abused the "sound discretion" 16 it is accorded to assess timeliness. In relying upon the age of the case and its closeness to settlement, the Court failed to take into account "the purpose for which intervention (was) sought," namely, the concern for participation in the implementation of the agreement. In Hodgson, supra, for example, this court allowed an application for intervention seven years after the case was filed when, as here, the applicant

Page 908

did not seek to reopen the settled issues in the case but sought to participate in an upcoming, remedial phase of the litigation. Thus, in light of appellants' purposes here, it does appear that their motions were timely, as they were presented contemporaneously with the proffering to the court of the settlement agreement.

Even if there was a delay in seeking intervention because, as appellees assert, appellants should have known much earlier from the pleadings on the public record that a settlement agreement could have been very expansive in scope, a determination of timeliness would also have to weigh, as Hodgson instructs, whether that delay would unfairly disadvantage the original parties. Again in light of appellants' purpose, their intervention would not have prejudiced the original parties: intervention was not sought to upset the settlement agreement but to participate in its future administration, were it to be approved. And, in the language of Hodgson, 17 "this limited goal" of future participation "does not appear to impose any untoward burden" on the original parties where, as shall be seen, questions may arise about the proper working of the settlement agreement, with possible benefit to the court from appellants' participation in their resolution. In short, then, as measured by the purpose of the intervention and the possible prejudice to the parties established standards under Rule 24 18 the motions should have been ruled timely.


In assessing whether the denial of intervention works a practical impairment of appellants' interests, it may be helpful to focus more carefully on relevant provisions of the settlement. As noted, the agreement obligates EPA to initiate rule-making proceedings for the regulation of named pollutants; 19 the rule-making is to proceed on an industry-by-industry basis 20 with timetables and priorities set out in the agreement. 21 The regulations will be establishing effluent limitations and guidelines, new source standards of performance and pretreatment standards for each industrial category. The agreement does not provide for review or approval by the District Court of the merits of the ultimate regulations; indeed, review of the regulations promulgated is presumably vested by the Act exclusively in the courts of appeals. 22 In fact, the District Court was careful to note that its "approval of the agreement creates no precedent on the legality of the specific regulations which may emerge." 23 The agreement does set out grounds, however, for EPA to decide that it will not initiate rule-making with respect to particular pollutants within an industrial, or a so-called "point-source" category or subcategory. 24

Page 909

When EPA decides upon such an exclusion, it must promptly submit a statement under oath to the parties explaining and justifying the exclusion; the parties may presumably invoke the continuing jurisdiction of the District Court to review whether the exclusion squares with...

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