Cal. Dept. of Toxic Substances v. Commer. Realty

• Decision Date: 25 October 2002
• Docket Number: No. 01-55636.,No. 01-55630.,No. 01-55638.,No. 01-55633.,01-55630.,01-55633.,01-55636.,01-55638.
• Citation: 309 F.3d 1113
• Parties: The CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL; The Hazardous Waste Control Account, and the Hazardous Substance Account, Plaintiffs-Appellees, v. COMMERCIAL REALTY PROJECTS, INC.; L.A. Metromall, LLC; Atlantic Richfield Company; Chevron U.S.A., Inc., a Pennsylvania Corporation; Minnesota Mining & Manufacturing Company; Mobil Oil Corporation, a New York Corporation; Shell Oil Company; Shell Chemical Co., a Delaware Corporation; Union Oil Company Of California, a California Corporation; Unocal Corporation; a Delaware Corporation; Standard Oil Company of California, a Delaware Corporation; Richfield Poli Corporation, a Delaware Corporation; Long Beach Oil Development Company, a Nevada Corporation; Southern California Gas Company, a California Corporation; Humble Oil & Refining Co, a Delaware Corporation; Tidewater Oil Company, a Delaware Company; ALLIED SIGNAL INC., a Delaware Company; Gulf Oil Corporation, a Pennsylvania Corporation; Exxon Corporation, a New Jersey Corporation; Phillips Petroleum Company; City of Bellflower; City of Gardena; City of Compton; City of Palos Verdes, Defendants-Appellees. and City of Buena Park; City of Hawthorne; City of Hermosa Beach; City of Huntington Park; City of Norwalk; City of Paramount; City of Redondo Beach; City of Seal Beach; City of South Gate; City of Torrance, Municipal Corporations, Applicants in intervention-Appellants, and City of Lynwood, Applicant in intervention-Appellant, and City of Lawndale, Applicant in intervention-Appellant, and City of Long Beach, Applicant in intervention-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

309 F.3d 1113

The CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL; The Hazardous Waste Control Account, and the Hazardous Substance Account, Plaintiffs-Appellees, v. COMMERCIAL REALTY PROJECTS, INC.; L.A. Metromall, LLC; Atlantic Richfield Company; Chevron U.S.A., Inc., a Pennsylvania Corporation; Minnesota Mining & Manufacturing Company; Mobil Oil Corporation, a New York Corporation; Shell Oil Company; Shell Chemical Co., a Delaware Corporation; Union Oil Company Of California, a California Corporation; Unocal Corporation; a Delaware Corporation; Standard Oil Company of California, a Delaware Corporation; Richfield Poli Corporation, a Delaware Corporation; Long Beach Oil Development Company, a Nevada Corporation; Southern California Gas Company, a California Corporation; Humble Oil & Refining Co, a Delaware Corporation; Tidewater Oil Company, a Delaware Company; ALLIED SIGNAL INC., a Delaware Company; Gulf Oil Corporation, a Pennsylvania Corporation; Exxon Corporation, a New Jersey Corporation; Phillips Petroleum Company; City of Bellflower; City of Gardena; City of Compton; City of Palos Verdes, Defendants-Appellees. and City of Buena Park; City of Hawthorne; City of Hermosa Beach; City of Huntington Park; City of Norwalk; City of Paramount; City of Redondo Beach;

City of Seal Beach; City of South Gate; City of Torrance, Municipal Corporations, Applicants in intervention-Appellants, and City of Lynwood, Applicant in intervention-Appellant, and City of Lawndale, Applicant in intervention-Appellant, and City of Long Beach, Applicant in intervention-Appellant.

No. 01-55630.

No. 01-55633.

No. 01-55636.

No. 01-55638.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2002.

Filed October 25, 2002.

Lisa Bond, Richards, Watson & Gershon, Los Angeles, CA, for applicants-in-intervention-appellants Cities of Buena Park, Hawthorne, Hermosa Beach, Huntington Park, Paramount, Redondo Beach, Seal Beach, South Gate and Torrance.

Jeremy G. March, Thever & Associates, Los Angeles, CA, for applicant-in-intervention-appellant City of Lynwood.

Richard Motevideo and Treg A. Julander, Rutan & Tucker, LLP, Costa Mesa, CA, for applicant-in-intervention-appellant City of Lawndale.

Lisa Peskay Malmsten, Deputy City Attorney, Long Beach, CA, for applicant-in-intervention-appellant City of Long Beach.

Dennis A. Ragen, Deputy Attorney General, San Diego, CA, for plaintiff-appellee California Department of Toxic Substance Control.

Andrew H. Perellis and Miles A. Zvi, Seyfarth Shaw, Chicago, IL, for defendants-appellees Commercial Realty Projects, Inc. and L.A. Metromall, LLC.

James J. Dragna and Greg A. Christianson, McCutchen, Doyle, Brown & Enersen, LLP, Los Angeles, CA, for defendants-appellees Atlantic Richfield Company, Chevron U.S.A., Inc., Exxon Mobil Corp., Honeywell International Inc., Phillips Petroleum Co., Shell Chemical Co., Shell Oil Co., Southern California Gas Co., Texaco Inc., Union Oil Company of California, and Unocal Corp.

Laura J. Carroll and Jeffrey D. Wexler, Luce, Forward, Hamilton & Scripps, LLP, Los Angeles, CA, for defendant-appellee Long Beach Oil Development Co.

Daniel Romano and Kenneth H. Moss, Law Offices of Daniel Romano, Los Angeles, CA, for amicus curiae City of Carson, Carson Redevelopment Agency, and Community Facilities District No. 95-1 of the City of Carson.

Appeal from the United States District Court for the Central District of California; Mariana R. Pfaelzer, District Judge, Presiding. D.C. No. CV-95-08773-MRP.

Before: FERNANDEZ, RAWLINSON, Circuit Judges, and SHEA,^* District Judge.

RAWLINSON, Circuit Judge.

Applicants-In-Intervention/Appellants Cities of Buena Park, Hawthorne, Hermosa Beach, Huntington Park, Paramount Redondo Beach, Seal Beach, South Gate, Torrance, Lynwood, Lawndale and Long Beach (sometimes collectively referred to as "Cities") appeal the denial of their motions to intervene in this action for recovery of environmental response costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA," 42 U.S.C. §§ 9601-75). Cities also challenge the district court's approval of a consent decree to which the parties stipulated. Because Cities' motions to intervene are untimely, we affirm the district court's order denying those motions. As Cities are not parties to this action, they are not entitled to appeal the district court's approval of the consent decree.

BACKGROUND

From 1959 to 1965, a municipal Class II rubbish disposal facility was operated at a 157-acre landfill in Carson, California (the "Landfill"). Approximately 6.6 million cubic yards of waste, some of which contained hazardous substances, were deposited at the Landfill.

In 1982, the California Department of Health Services, Toxic Substance Control Program ("DTSC") identified the waste disposed at the Landfill and estimated that 4 percent of the material could be considered hazardous. The DTSC divided the Landfill into two operable units ("OUs"): the Upper OU which includes the soil, waste zone, and the ground water immediately beneath the Landfill; and the Lower OU, which includes the ground water beneath the Upper OU.

In October 1995, the DTSC issued a Final Remedial Action Plan (the "Plan") which assigned 80% of the aggregate liability for the hazardous waste in the upper OU to generators of waste sent to the Landfill. Defendants-Appellees Atlantic Richfield Company ("ARCO"), Chevron U.S.A., Inc. ("Chevron"), Exxon Mobil Corp. ("Exxon"), Phillips Petroleum Co. ("Phillips"), Shell Chemical Co. ("Shell Chemical"), Shell Oil Co. ("Shell Oil"), Southern California Gas Co. ("Gas"), Texaco Inc. ("Texaco"), Union Oil Company of California ("Union"), and Unocal Corp. ("Unocal") (sometimes collectively referred to as "Oil Companies"), among others, were identified as potentially responsible parties for the waste. Cities were not identified as potentially responsible parties in the Plan. The Plan, however, indicated that the allocation of responsibility was "non-binding" and did not "limit strict joint, and several liability under CERCLA and other laws."

On December 27, 1995, the DTSC filed an action in federal district court against Commercial Realty Projects, Inc. and L.A. Metromall, LLC, owners of the Landfill (sometimes jointly referred to as "Landowners"), seeking recovery of environmental response costs under CERCLA and state law. On the same day, the parties lodged a consent decree ("Landowner Consent Decree") with the district court. Under the Landowner Consent Decree, Landowners agreed to establish a $26 million escrow account, which would cap Landowners' liability to fund the Plan.

On July 17, 1996, Oil Companies moved to intervene in the action against Landowners to oppose the Landowner Consent Decree which, due to the $26 million cap, potentially shifted a significant portion of the recovery response costs from Landowners to Oil Companies. On July 26, 1996, the district court denied Oil Companies' motion to intervene, which Oil Companies appealed.

On August 19, 1997, Landowners filed a separate action against Oil Companies asserting contribution claims under CERCLA, and other related claims. Beginning September 21, 1998, we stayed Oil Companies' appeal to permit the parties to pursue settlement discussions with the aid of the Ninth Circuit mediator. The Ninth Circuit mediator suspended the Ninth Circuit mediation to allow a larger group to participate in settlement negotiations under the supervision of a magistrate judge. The DTSC, Oil Companies and Long Beach Oil Development Co. ("Long Beach Oil") subsequently participated in a series of settlement conferences before the magistrate judge.

In August 1999, Oil Companies invited forty-four potentially responsible parties, including Cities, to participate in settlement negotiations with the DTSC and the Landowners. Most refused to attend. In a letter dated September 3, 1999, Oil Companies cited evidence linking Cities and the other potentially responsible parties to the Landfill, and invited those parties to a second meeting to be held on September 22, 1999, but required execution of a confidentiality agreement in order to participate. While Cities' representatives arrived for the meeting, most, if not all of the Cities refused to execute the confidentiality agreement and were not permitted to attend the meeting.

During the same time settlement negotiations were proceeding, Phillips, Union Oil, Unocal and the Shell companies submitted administrative claims under the California Tort Claims Act to Cities in relation to response cost for the Landfill. Oil Companies also served notice upon municipal waste generators of their intent to file suit under the Resource Conservation Recovery Act.

In November 1999, as part of a global settlement with the DTSC, Oil Companies submitted settlement offers to Cities for contribution toward remedial costs at the Landfill in exchange for a full release from liability and contribution protection. Cities rejected the offer. In January 2000, Oil Companies and the DTSC again invited Cities to join in global settlement discussions. Most, if not all, the Cities again refused to participate.

In February 2000, Shell, Union Oil, and Unocal filed an action in federal court against Cities and others, seeking contribution toward remedial costs at the Landfill under CERCLA, and for other legal and equitable relief. Phillips filed a similar complaint.

In May 2000, Oil Companies extended the magistrate judge's invitation to Cities to attend settlement negotiations to be conducted among Oil Companies, Landowners and the DTSC. Most, if not all, either refused to attend or declined to join in global settlement discussions. In September 2000, the DTSC and Oil Companies made a final unsuccessful attempt to include Cities in a global settlement.

In October 2000, the parties settled. On October 20, 2000, the DTSC issued a "Notice to Interested Parties" that it was...