City of Bloomington, Ind. v. Westinghouse Elec. Corp.

• Citation: 824 F.2d 531
• Decision Date: 19 June 1987
• Docket Number: No. 85-2881,85-2881
• Parties: , 8 Fed.R.Serv.3d 474, 17 Envtl. L. Rep. 21,185 The CITY OF BLOOMINGTON, INDIANA, the Utilities Service Board of Bloomington, Indiana, Monroe County, Indiana, Plaintiffs, and Indiana Public Interest Research Group (InPIRG), Proposed Intervening Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORP., Monsanto Company, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, and The State of Indiana, the Environmental Management Board of the State of Indiana, Intervening Plaintiffs, and Indiana Public Interest Research Group (InPIRG), Proposed Intervening Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORP., Defendant and Third Party Plaintiff-Appellee, v. MONSANTO CO., Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 531

824 F.2d 531

26 ERC 1037, 8 Fed.R.Serv.3d 474, 17

Envtl. L. Rep. 21,185

The CITY OF BLOOMINGTON, INDIANA, the Utilities Service

Board of Bloomington, Indiana, Monroe County,

Indiana, Plaintiffs, and Indiana Public Interest Research Group (InPIRG), Proposed Intervening Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORP., Monsanto Company, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellee,

and

The State of Indiana, the Environmental Management Board of

the State of Indiana, Intervening Plaintiffs, and Indiana Public Interest Research Group (InPIRG), Proposed Intervening Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORP., Defendant and Third Party Plaintiff-Appellee, v. MONSANTO CO., Third Party Defendant-Appellee.

No. 85-2881.

United States Court of Appeals Seventh Circuit.

Argued April 17, 1986.

Decided June 19, 1987.

Gary A. Davis, Knoxville, Ind., for plaintiffs-appellants.

A. Bruce White, Karaganis & White, Ltd., Chicago, Ill., David R. Berz, Weil, Gotshal & Manges, Ellen J. Durkee, Dept. of Justice, Washington, D.C., for defendants-appellees.

Before CUDAHY and COFFEY, Circuit Judges and FAIRCHILD, Senior Circuit Judge.

COFFEY, Circuit Judge.

The plaintiff-appellant Indiana Public Interest Research Group ("InPIRG") appeals the district court's denial of its motion to intervene pursuant to Federal Rule of Civil Procedure 24 in a consolidated suit brought by the United States, the State of Indiana, and the City of Bloomington, Indiana, against Westinghouse Electric Corporation. We affirm.

I

In 1981, the City of Bloomington, Indiana, filed suit against the Westinghouse Electric Corporation ("Westinghouse"), alleging that Westinghouse had contaminated the city's sewer system and its Winston-Thomas sewage treatment plant with large quantities of polychlorinated biphenyls ("PCBs"). Plaintiffs alleged that PCBs are extremely toxic chemicals which cause cancer, liver damage, suppression of the immune system, birth defects, and impairment of reproductive capacity in laboratory animals. The city's suit, based on diversity jurisdiction, asserted claims against Westinghouse under Indiana common law theories. In June, 1981, the city amended its complaint to further allege that Westinghouse had also contaminated Bloomington's Lemon Landfill with PCBs.

In January, 1983, the United States filed a separate action against Westinghouse pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6973, and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Secs. 9604, 9606, 9607, seeking the cleanup of two sites not owned by the City of Bloomington, Neal's Landfill and Neal's Dump, where Westinghouse had disposed of PCBs. The State of Indiana promptly intervened as a plaintiff in the federal government's suit.

In October, 1983, after substantial discovery in the city's case, the city and Westinghouse commenced settlement negotiations, that were publicized in the local media. The city and Westinghouse announced at a joint press conference the decision to seek a settlement. In December, 1983, the federal government and the state of Indiana agreed to join in these negotiations, and the parties announced that both suits were to be stayed until the parties could work out a settlement. The negotiations were lengthy because of the immensity and impact of the contamination problem, the number of parties involved, the complexity of the problem as well as the time required to comply with the statutory hearings necessary for public input. The parties also needed time for public hearings to get input for the negotiations. The parties engaged in discussions for more than a year until December, 1984. During this time, the city's attorneys and technical experts held public meetings to apprise concerned citizens of the progress of the settlement negotiations. InPIRG filed a motion to intervene in the United States' suit on September 21, 1984, but the court took no action on the motion at that time. InPIRG, the would-be intervenor here, is a non-profit corporation founded "for the purposes of carrying out research, public education, and litigation in areas of public interest including environmental quality, consumer protection, citizen participation in government, and government responsiveness."

On December 3, 1984, the parties held a joint press conference at which they announced that they had agreed on a proposed consent decree, and copies of the proposed consent decree were distributed to members of the public. Two days after this announcement, the federal Environmental Protection Agency held a public information meeting to discuss the terms of the proposed settlement. Experts from the agency, the Indiana State Board of Health, the City of Bloomington and Westinghouse made presentations and fielded questions concerning the consent decree. The Bloomington City Council sponsored a series of public information meetings to discuss the terms of the settlement.

On March 6 and on March 20, 1985, the Bloomington City Council held meetings to consider whether the city would accept the proposed agreement. After hearing extensive public comment, including comments from the Indiana Public Interest Research Group, the City Council approved the consent decree. In May, 1985, all of the parties agreed to accept the consent decree and on May 20, 1985, the proposed decree was filed with the district court.

On May 24, 1985, pursuant to the requirements of 28 C.F.R. Sec. 507, the U.S. Department of Justice filed notice of the proposed consent decree in the Federal Register and solicited public comments. The United States submitted the comments it received from members of the public, including comments from InPIRG, to the district court for its consideration. On June 8, 1985, the district court consolidated the city's case with the United States' case subject to final entry of the consent decree.

On June 24, 1985, InPIRG filed a motion pursuant to Federal Rule of Civil Procedure 24 to intervene in the City of Bloomington's action against Westinghouse and an amended motion to intervene in the United States' case. The district court denied InPIRG's motions, holding that they were untimely, and approved the consent decree on August 22, 1985. InPIRG appeals the denial of its motion to intervene. ¹

II

The issue in this case is whether InPIRG's motion to intervene pursuant to Federal Rule of Civil Procedure 24 was timely. ² "Whether appellants claim intervention of right or by permission, Rule 24 requires that the application be timely, a determination to be made from all the circumstances." Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 674 F.2d 970, 974 (3d Cir.1982). See also NAACP v. New York, 413 U.S. 345, 365-66, 93 S.Ct. 2591, 2602-03, 37 L.Ed.2d 648 (1973); Garrity v. Gallen, 697 F.2d 452, 455 (1st Cir.1983), United Nuclear Corporation v. Cannon, 696 F.2d 141, 143 (1st Cir.1982), Stallworth v. Monsanto Company, 558 F.2d 257, 263 (5th Cir.1977). In NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973), the United States Supreme Court stated:

"Intervention in a federal court suit is governed by Fed.Rule Civ.Proc. 24. Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of both Rule 24(a) and Rule 24(b), that the application must be 'timely.' If it is untimely, intervention must be denied. Thus, the court where the action is pending must first be satisfied as to timeliness. Although the point to which the suit has progressed is one factor in the determination of timeliness, it is not solely dispositive. Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court's ruling will not be disturbed on review."

Id. 413 U.S. at 365-66, 93 S.Ct. at (footnotes omitted). "[I]t has been uniformly held that the district court's determination of whether the requested intervention is timely may be reversed only for abuse of discretion." Jones v. Caddo Parish School Board, 735 F.2d 923, 926 (5th Cir.1984). See also United States v. Kemper Money Market Fund, Inc., 704 F.2d 389, 391 (7th Cir.1983).

" 'Timeliness' ... 'is not a word of exactitude or of precisely measurable dimensions.' " Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir.1977) (quoting McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir.1971)). "[T]imeliness is not limited to chronological considerations but 'is to be determined from all the circumstances.' " Id. (quoting United States v. United States Steel Corp., 548 F.2d 1232, 1235 (5th Cir.1977)). See also United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). In United States v. Kemper Money Market Fund, Inc., 704 F.2d 389 (7th Cir.1983) this court enumerated four factors to be considered in determining whether a motion to intervene was timely. We stated:

"Among the factors to be considered are: the length of time the intervenor knew or should have known of her or his interest in the case; the extent of prejudice to the original litigating parties from the intervenor's delay; the extent of prejudice to the would-be intervenor if her or his motion is denied; and any unusual circumstances."

Id. at 391. See also Garrity v. Gallen, 697 F.2d 452, 455 (1st Cir.1983); United Nuclear Corporation v. Cannon, 696 F.2d 141 (1st Cir.1982); Culbreath v. Dukakis, (1st Cir.1980); Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir.1977).

Initially, in determining whether InPIRG's motion to intervene was timely we must consider "the length of time [InPIRG] knew or should have known of [its] interest in the case." Kemper, 704 F.2d at 391. See also Stallworth v. Monsanto Co., 558 F.2d 257, 264-65 (5th Cir.1977) (discussing the policies underlying this consideration).

In its brief, InPIRG states that it...