585 F.3d 1386 (10th Cir. 2009), 08-6267, United States v. Albert Inv. Co., Inc.

Docket Nº:08-6267.
Citation:585 F.3d 1386
Opinion Judge:PAUL KELLY, Jr., Circuit Judge.
Party Name:UNITED STATES of America; State of Oklahoma, Plaintiffs-Appellees, v. ALBERT INVESTMENT COMPANY, INC; American Airlines, Inc.; Apac Arkansas, Inc.; Apac Oklahoma, Inc.; Bartlett Collins Company; Bell Helicopter; Bridgestone/Firestone North American Tire, LLC; Butler Aviation; CNH America LLC, f/k/a Case Corporation; Chevron Environmental Management
Attorney:William George (Debra Tsuchiyama Baker, Michael Connelly and John Muir of Connelly, Baker & Wotring, L.L.P., Houston, TX, with him on the briefs) for Movant-Appellant. Gerald Hilsher of McAfee & Taft, P.C., Tulsa, OK (Stephen L. Jantzen of Ryan, Whaley, Coldiron, Shandy, P.C., with him on the bri...
Judge Panel:Before KELLY, McKAY, and LUCERO, Circuit Judges.
Case Date:November 10, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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585 F.3d 1386 (10th Cir. 2009)

UNITED STATES of America; State of Oklahoma, Plaintiffs-Appellees,

v.

ALBERT INVESTMENT COMPANY, INC; American Airlines, Inc.; Apac Arkansas, Inc.; Apac Oklahoma, Inc.; Bartlett Collins Company; Bell Helicopter; Bridgestone/Firestone North American Tire, LLC; Butler Aviation; CNH America LLC, f/k/a Case Corporation; Chevron Environmental Management Company; City of Amarillo; City of Oklahoma City; City of Tulsa; Conocophillips Company; CRST International, Inc.; Cummins Southern Plains, Inc.; Schlumberger Technologies Corporation Dowell Schlumberger; Emerson Electric Company; Fibercast; Ft. James Operating Company; General Tire, Inc.; Goodyear Tire & Rubber Company; Halliburton; Howard Pontiac GMC, Inc.; Hudiberg Chevrolet, d/b/a Hudiberg Investments; Illinois Tool Works, Inc.; IMCO d/b/a General Dynamics OTS, f/k/a Intercontinental Manufacturing Company, Inc.; Kawneer Company, Inc; Marathon Electric; Natural Gas Pipeline; Oklahoma Department of Mental Health; Oklahoma Department Of Transportation; Roadway Express, Inc.; Sears Roebuck And Company; Shell Oil Company; BC Imports, Inc., f/k/a Steve Bailey Honda; UE, Inc., f/k/a United Engines, Inc.; United Parcel Service, Inc.; Western Farmers; Willis Shaw Express, Inc.; Hilti, Inc.; Interstate Brands Continental Baking; Tyson Foods, Inc.; Wal-Mart Stores, Inc.; Kraft General Foods, Inc., Defendants-Appellees.

Union Pacific Railroad Company, Movant-Appellant.

No. 08-6267.

United States Court of Appeals, Tenth Circuit.

November 10, 2009

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William George (Debra Tsuchiyama Baker, Michael Connelly and John Muir of Connelly, Baker & Wotring, L.L.P., Houston, TX, with him on the briefs) for Movant-Appellant.

Gerald Hilsher of McAfee & Taft, P.C., Tulsa, OK (Stephen L. Jantzen of Ryan, Whaley, Coldiron, Shandy, P.C., with him on the brief) Oklahoma City, OK, for Defendants-Appellees.

Joan Pepin, U.S. Department of Justice, Environmental & Natural Resources Division, Appellate Section, Washington, D.C. (Robert H. Oakley and Samuel D. Blesi, of U.S. Department of Justice, Environmental & Natural Resources Division, Appellate Section, Washington, D.C.; Daniel P. Lennington, Office of Attorney General, State of Oklahoma, Oklahoma City, OK; James A. Bove, Office of General Counsel, Environmental Protection Agency, Washington, D.C.; Pamela J. Travis, Office of Regional Counsel, Environmental Protection Agency, Dallas, TX; John C. Cruden, Acting Assistant Attorney General, Washington, D.C., on the brief), for Plaintiffs-Appellees.

Before KELLY, McKAY, and LUCERO, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Movant-Appellant Union Pacific Railroad Co. (" Union Pacific") appeals from the district court's denial of its motion to intervene in an action brought by Plaintiffs-Appellees (United States and the State of Oklahoma) under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (" CERCLA"). " [A]n order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to the action." WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992, 994 (10th Cir.2009) (internal quotation marks and citation omitted). Therefore, we have jurisdiction under 28 U.S.C. § 1291. Because Union Pacific has an interest in the underlying action, and a statutory right to intervene, we reverse and remand.

Background

When the Missouri Pacific Railroad Company merged with the Missouri-Kansas-Texas Railroad Company (" MKT") in 1989, it acquired from the MKT a 12-acre lot in Oklahoma City. The Missouri Pacific, and the MKT before it, leased the lot to the Double Eagle Refining Company and Double Eagle Lubricants, Inc., which used the property to re-refine waste oil. Aplees. Supp.App. A-2 to A-3. These operations contaminated the Double Eagle site with various hazardous substances. Aplees. Supp.App. A-3. In 1989, the United States Environmental Protection Agency added the site to its National Priorities List. Between 1989 and 1999, the EPA and the Oklahoma Department of Environmental Quality spent more than $30 million cleaning up the groundwater and surface waste at the site.

The Union Pacific Railroad Company acquired the Double Eagle Superfund Site in 2003, as part of its merger with the Missouri Pacific Railroad Company. Aplees. Supp.App. A-3. In 2006, the United States and the State of Oklahoma (collectively, the " government") sued Union Pacific for unreimbursed cleanup costs and natural resources damages related to the Double Eagle site under CERCLA's damages provisions, 42 U.S.C. § 9607(a)(2)-(3). Aplees. Supp.App. A-4 to A-8. The government sought to hold Union Pacific jointly and severally liable for the entire damages. Aplees. Supp.App. A-6 to A-8. That action is pending.

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In the action underlying this appeal, the government sued Defendants-Appellees, some 44 other potentially responsible parties (PRPs), for the entire cleanup costs and natural resources damages at the Double Eagle site. Aplt.App. A-18 to A-28. Although the limitations period on the government's friendly suit had already run, the government lodged a consent decree less than a week later. Aplt.App. A-29 to A-109; corrected at Aplt.App. A-110 to A-183. The consent decree memorialized a settlement agreement that the 44 defendants would enjoy immunity from contribution actions or claims for the Double Eagle site, as provided by § 113(f)(2) of CERCLA, 42 U.S.C. § 4613(f)(2). Aplt.App. A-49. The settling defendants would collectively pay nearly $6.5 million, ranging from $49,680 to $625,586 per defendant. Aplt.App. A-103 to A-106. The consent decree provided for a 30-day notice and comment period. Aplt.App. A-53 to A54. The United States published the notice in the Federal Register. 73 Fed.Reg. 41118 (July 17, 2008). Union Pacific timely submitted the sole comments opposing the consent decree. Aplt.App. at A-195 to A-206.

On October 10, 2008, Union Pacific filed a motion to intervene as of right in the underlying action pursuant to Fed.R.Civ.P. 24(a)(2), and CERCLA § 113(i), 42 U.S.C. § 9613(i). Aplt.App. A-184 to A-207. Alternatively, Union Pacific asked the district court to allow permissive intervention under Fed.R.Civ.P. 24(b)(1)(A). Aplt.App. A-192. Union Pacific pointed to its potential contribution rights against the settling defendants and argued that it is entitled to protect those legally cognizable interests. Aplt.App. A-190. According to Union Pacific, because the government's claims against the settling defendants are already time-barred, the primary purpose and effect of the consent decree is for the settling defendants to " obtain immunity from Union Pacific's CERCLA contribution claims." Aplt.App. A-187. Both the government and the settling defendants opposed Union Pacific's motion to intervene. Aplt.App. A-208 to A275.

On December 11, 2008, the district court denied Union Pacific's motion, concluding that Union Pacific did not have a legally sufficient interest to justify intervention as of right. Aplt.App. A-327. The district court also denied permissive intervention because " permitting Union Pacific to intervene at this stage would unduly delay the settlement and would prejudice the rights of Plaintiffs and Defendants...." Aplt.App. A-328. Union Pacific appealed the denial. Aplt.App. A-329.

Discussion

We review the denial of a motion to intervene as of right de novo and denial of a motion for permissive intervention for an abuse of discretion. DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935, 942 (10th Cir.2005) (citing City of Stilwell v. Ozarks Rural Elec. Coop. Corp., 79 F.3d 1038, 1042 (10th Cir.1996)). The government suggests that we review a motion to intervene as of right for abuse of discretion because San Juan County v. United States, 503 F.3d 1163 (10th Cir.2007) (en banc), adopted a more practical, fact-based approach to the interest requirement for such motions. Fed. & State Aplees. Br. (" Gov't Br.") at 13-14. We cannot agree; we have consistently reviewed denials of motions to intervene as of right using a de novo standard. San Juan County, 503 F.3d at 1199 (" No party has suggested that our review is other than de novo...."); WildEarth Guardians, 573 F.3d at 995 (" Our review of these factors is de novo.").

A. CERCLA

Because Union Pacific claims that CERCLA establishes its interest in the

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underlying suit, we begin with that statute's recovery and contribution provisions. CERCLA provides two means for private parties to recover costs associated with cleaning up hazardous substances. First, § 107 of CERCLA authorizes private parties as well as state and federal governments to recover the costs of a cleanup from potentially responsible parties (" PRPs"). 42 U.S.C. § 9607(a). The government brought suits against Union Pacific and the 44 settling defendants under this provision. The second provision, § 113 of CERCLA, is the one at the center of this appeal. 42 U.S.C. § 9613(f). Section 113(f) provides a limited right for one responsible or potentially responsible party to seek contribution from other responsible or potentially responsible parties. Union Pacific's contribution right is created by § 113(f)(1), which provides:

Any person may seek contribution from any other person who is...

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