Periconi, LLC Environmental Law Blog

Under CERCLA, Responsible Parties Liable for Future Clean-Up Costs

2012-02-22T15:46:12Z

In State v. Solvent Chemical Co., 10-2026-cv (2nd Cir. Dec. 19, 2011), the Second Circuit Court of Appeals held that Solvent Chemical Company (“Solvent”) could obtain a declaratory judgment that two adjacent property owners were responsible for future costs incurred by Solvent under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675.

Over the past century, Solvent, E.I. du Pont de Nemours & Co. (“DuPont”) and Olin Corporation (“Olin”), owned adjacent properties in Niagara Falls, New York at which various hazardous substances were manufactured. In 1983, the State of New York sued Solvent and others for environmental contamination at the Solvent Site. In 1996, the New York Department of Environmental Conservation (“DEC”) issued a Record of Decision (“ROD”) requiring Solvent to undertake remedial action to cleanup the contamination on the property. Solvent subsequently entered into a consent decree obligating it to perform the remedies specified in the ROD in settlement of New York’s CERCLA claims. Solvent’s cleanup operations began in 1999 and are ongoing.

Solvent sued both Olin and DuPont under CERCLA seeking, in part, contribution for its response costs incurred under its consent decree with New York on the basis of the hazardous substances originating from their respective facilities. Solvent’s claims against DuPont and Olin were consolidated in a trial that lasted 19 days in late 2007. The parties stipulated that all response costs incurred through June 30, 2007 would be treated as “past costs,” and that all costs thereafter would be the subject of Solvent’s corresponding suit for a declaratory judgment that DuPont and Olin were liable for future cleanup costs.

The District Court for the Western District of New York awarded Solvent contribution for past costs, but declined to issue a declaratory judgment on the issue of future costs; the district court declined to declare liability mainly because the allocation of future costs would be premature. Solvent appealed the District Court’s denial of a declaratory judgment of liability for future cleanup costs under CERCLA. The Second Circuit Court of Appeals reversed.

In reversing the lower court, the Second Circuit relied not on CERCLA, but on the federal Declaratory Judgment Act, 28 U.S.C. § 2201(a), which lists five factors that a court must consider when determining whether a declaratory judgment may be issued:

Whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved;
Whether a judgment would finalize the controversy and offer relief from uncertainty;
Whether the proposed remedy is being used merely for procedural fencing or a race to res judicata;
Whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court; and
Whether there is a better or more effective remedy.

In this case, the Second Circuit held that the factors considered by the district court – but determined by it to be insufficient – were, in fact, sufficient to require a declaratory judgment in favor of Solvent.

In reviewing these factors under the Declaratory Judgment Act, the Court concluded:

the judgment would ‘serve a useful purpose in . . . settling the legal issues involved,’ the judgment is not being used for procedural gamesmanship or a race to res judicata, it will not increase friction between sovereign legal systems, and there is no ‘better or more effective remedy’ — in fact there would be no remedy for Solvent at all without declaratory relief. It does not matter that a declaratory judgment of liability alone will not ‘finalize the controversy and offer relief from [all] uncertainty.’ (internal citations omitted)

The Second Circuit stated that:

[t]he reasons given by the district court might justify a refusal to allocate cleanup responsibility; none of them, however, supports a refusal to grant a declaratory judgment as to liability itself. The district court has already decided that Olin and DuPont were liable for contribution as to historical losses. Save for the possibility that the DEC might in the future impose different remedies to clean up the [contaminants], none of the factors identified by the court distinguishes between past and future cleanup. (emphases in original)

Conclusion

A declaratory judgment is used by parties to declare the rights, duties, or obligations of one or more of those parties in a dispute. When a court issues a declaratory judgment, it is not necessarily the end of the litigation, but it is particularly useful in saving the parties (and the courts) substantial time and money.

Here, when the Second Circuit held that DuPont and Olin were responsible under CERCLA for the contamination on the property – and therefore also contribution to the remediation costs – it only left one (smaller) issue to be determined in the future, namely what amount of the contribution for future clean up costs would DuPont and Olin would be responsible. Thus, the parties never again have to litigate these facts as to whether DuPont and Olin are potentially responsible parties under CERCLA (or worry about the short 3-year statute of limitations for contribution claim under CERCLA); Solvent merely needs to seek “further relief” to establish the precise costs that each party will be required to pay.

This case is a perfect example of when potentially responsible parties under CERCLA can and should use a declaratory judgment action to break through the mire which can be CERCLA litigation (e.g., complex claims and defenses, weeks of trial, thousands of pages of documents and briefing, years of litigation, etc.), namely, when the potentially responsible parties are known and have already been allocated responsibility for past costs, even though there are still future costs that will need to be apportioned.

Revised Standards for Phase II Environmental Site Assessments

2012-02-13T19:33:21Z

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So far, in the Periconi, LLC Environmental Law Blog, we’ve discussed what to do before you purchase a contaminated property (see here) and what to do after you’ve purchased a contaminated property (see here), but there is a step that often takes place in between – i.e., between contract signing the closing on the purchase – that may be triggered by the results of your Phase I Environmental Site Assessment (“ESA”): the invasive Phase II ESA investigation.

In this blog post, we’ll summarize what a Phase II ESA is, when it is needed, and we’ll highlight recent changes made to the ASTM standards that guide Phase IIs.

Beyond the performance of the Phase I ESA as absolutely required, with very specific requirements in both the ASTM standard and in the EPA “all appropriate inquiries” standard, environmental professionals have had somewhat different approaches as to what the next step should be as part of “due diligence” – do you do a first-cut “subsurface investigation” that gives you some more information but is often insufficient to determine the full scope of remediation required, or do you undertake a Phase II ESA, which might (or might not) provide more than a subsurface investigation?

What is a Phase II Environmental Site Assessment?

A Phase II ESA is a more extensive investigation that results from the finding of “recognized environmental conditions” in the Phase I ESA. It involves “invasive” work on the property, typically, and as appropriate, soil, groundwater and surface water sampling. While not specifically required under the EPA’s “all appropriate inquiry” requirement, a Phase II is useful to a prospective purchaser or property owner to delineate the amount of contamination on the property, if any, and to understand what type of continuing obligations for which he will be responsible.

The Phase II ESA should not typically be performed before first undertaking a Phase I ESA because the purpose is to further investigate the areas of potential environmental concern (i.e., “recognized environmental conditions”) identified in the Phase I ESA. Without having obtained at least an oral report of a Phase I ESA – typically as quickly as 10 days from the start of the Phase I ESA – the Phase II will lack sufficient direction, or, more typically perhaps, it may focus on only a single problem that “everybody knows” is there, missing the other issues that only a Phase I ESA will uncover: the persons undertaking the Phase II ESA may well fail to investigate problems requiring an investigation, and, therefore, the resulting Phase II ESA may not be a reliable document.

Before beginning the Phase II ESA, a scope of work will need to be prepared in consideration of the “recognized environmental conditions” set forth in the Phase I ESA written report (or, at least, as noted, provided orally).

Where there are recognized environmental conditions on a property, the only way to truly assess potential liabilities (i.e., whether on-site contamination is due to on-site or off-site sources) is to undertake the invasive sampling in a Phase II ESA.

The fact that intrusive sampling is expensive further defines the reason why problems arise if a Phase II is performed without first undertaking a Phase I ESA. Without the results of the Phase I ESA, you may not have adequately defined the scope of the problems. For example, there will be added costs if the Phase II investigator misses installing one necessary well – and will have to “remobilize” a drilling rig – or if an unnecessary well is installed.

Revised Phase II ESA Standards

Like it did for Phase I ESAs and Continuing Obligations for contaminated properties, ASTM International (formerly, the American Society for Testing and Materials, or ASTM) has promulgated standards for the Phase II ESA. The ASTM Phase II ESA standards indicate that the scope of the Phase II may include:

preliminary subsurface investigation: soil or groundwater sampling in areas of suspected contamination;
groundwater monitoring wells; and
sometimes, to avoid unnecessary invasive work, a preliminary noninvasive screening method will be used, e.g., metal detectors to identify buried metal storage tanks, or a PID (photo-ionization-detector) meter, which is a volatile organic analyzer that can “smell” gases that are volatilizing or evaporating in the field, rather than require sample-taking and a 5-10 day wait to obtain laboratory results.

In 2011, ASTM revised its “Standard Practice for the Phase II Environmental Site Assessment Process” (E1903-11).

The new Phase II ESA Standards require the purchaser and the environmental consultant to agree upon a written statement of objectives that sets the scope of the investigation; thus, the new Standards contemplate an open communication between the purchaser and the environmental consultant, allowing for revisions during the Phase II, based on sampling results. A number of factors, including costs and objectives, will guide whether the Phase II ESA should be thorough enough as the sole means to determine what kind of remediation is needed at a particular site.

At Periconi, LLC, we work closely with environmental consultants to ensure that all of the necessary requirements are met so that owners of contaminated properties are fully protected from liability. Contact us if you need help choosing or working with an environmental consultant for a contaminated property, one who knows has to develop an investigation that will receive quick approval from the government because it meets the highest standards of reliability in results.

So, You’re Interested in Purchasing a Contaminated Property (or a Parcel Next to a Contaminated Property): An Overview of Phase I Environmental Site Assessments

2012-02-08T20:43:07Z

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We realized, while writing about the new “Continuing Obligations Standards” for contaminated properties (see here), that in order to give a comprehensive picture of what needs to be done if you’re thinking about purchasing a contaminated property, we need to start at the beginning: the Phase I Environmental Site Assessment. This has to take place before you purchase the contaminated property.

If you are interested in purchasing a contaminated property, or a parcel contiguous to a contaminated property, there are several steps that you must undertake, both before and after you purchase the property, to protect yourself from liability under the federal Superfund Act (i.e., the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA). Before you purchase the property, you must conduct a Phase I Environmental Site Assessment (“ESA”); you may even be familiar with this term. But what is a Phase I ESA and how does it help protect you?

What is a Phase I Environmental Site Assessment?

The Phase I ESA is a preliminary, non-invasive investigation of a contaminated property (e.g., no drilling or sampling) to determine the extent of contamination at the property.

The purpose of a Phase I ESA is to try to identify all potential environmental issues (known as “recognized environmental conditions” or “RECs”) with a property, so the prospective purchaser acquires an appropriate level of knowledge about the environmental conditions of the property in advance of purchasing it. A “recognized environmental condition” means the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum into structures on the property or into the ground, ground water or surface water of the property.

This due diligence is a key part to the “all appropriate inquiry” required by CERCLA, and interpreted by regulations (known as the AAI standards) developed by the U.S. Environmental Protection Agency, and must occur before the contaminated property transfers ownership. See, e.g., 40 CFR Part 312.

The first step in a Phase I ESA is to develop the information you have at hand, which will require the buyer to make a formal request for complete documentation from the seller. This work is usually performed, as a practical matter, by an environmental consultant or similar environmental professional, with the oversight of an environmental attorney.

Some of the information that the buyer may request includes:

Copies of prior environmental audits, assessments, investigations or other reports on environmental conditions or compliance at the site;
For all facilities on the property: all permits and pending permit applications; correspondence with government regulatory agencies; copies of notices of violation, administrative orders, consent orders, consent decrees, and civil orders; records of negotiations with enforcement agencies concerning environmental compliance; monitoring and non-compliance reports; past or present judicial actions, including citizen suits; and documents reflecting liens or encumbrances under any environmental laws or regulations;
Lists and descriptions of all “hazardous wastes” under RCRA that a facility at the site generates, treats, stores, transports or disposes of;
Description of all underground storage tanks presently or formerly on the property, whether the USTs have been registered, have been tested for “tightness” or “integrity” and results of those tests, dates of removal (if no longer present), and reports from any removal activities;
Any report, notice, correspondence, or other document relating to hazardous substances or wastes found on or disposed of or released from the property;
Copies of all material safety data sheets relating to substances used by the company(ies) operating on the property;
Copies of all insurance policies that provide coverage for environmental damages, with dates of coverage; and
List of pollution abatement or treatment devices which are or have been in use on the property.

ASTM Phase I ESA Standards

ASTM International, formerly known as the American Society for Testing and Materials or ASTM, is a private, professional standard-setting organization that has developed the Phase I ESA guidance that has become standard practice for all Phase I ESAs. See ASTM Standards: E1527-05.

Under the current ASTM Phase I ESA Standards, the Phase I ESA final report will include a discussion of the property based on a review of:

Title search: reconstruct the chain of title as far back as possible to determine if property ever used for on-site generation, storage or disposal of hazardous materials;
Historical facility records: manufacturing, etc., facilities have usually changed their practices over the years; areas that appear now not to pose any risk may have been used previously as lagoons, landfills, disposal areas;
Regulatory compliance records: businesses are required to maintain a variety of records on site and to file reports with federal/state environmental agencies, including hazardous waste manifests, permits, monitoring and discharge reports, spill reports. See discussion of compliance audits, below;
Neighboring properties: nearby properties can themselves be a source of contamination on the site to be purchased, and/or the contamination from the site can migrate “off-site”;
Off-site disposal: wherever the company has sent even its non-hazardous solid waste (as well as, of course, its hazardous wastes);
Database searches: about the property and nearby properties: spills, tanks, Superfund sites there and nearby; and
Site visits by consultant: on-site investigations, interviews of caretakers, managers, operational people, even neighbors.

Some of the investigation performed in a Phase I ESA is optional, e.g., asbestos and lead-based paint. The party seeking to have a Phase I performed should develop with the consultant and his attorney a plan of what additional work should be performed, if any, according to nature of property and how many “generations” of operations took place there.

Why You Need a Phase I ESA

As mentioned above, undertaking a Phase I is the first step to obtain the landowner liability protections under the federal Superfund Act. Thus, a proper Phase I ESA will provide you with:

1. The “baseline” conditions of the property, to help you establish what
conditions are present at the time of sale, so as to minimize any later arguments with the seller as to whether specified conditions pre-date the sale or occurred after it.

2. Satisfaction of recently enacted federal standards to demonstrate “all appropriate inquiry” by a prospective purchaser into the previous ownership and uses of the property “consistent with good commercial or customary practice” as defined in 42 U.S.C. §9601(35)(B). You need to meet this standard in order to qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations on CERCLA liability.

3. The means to identify “recognized environmental conditions” on the subject property, which is required by the AAI standards.

4. The ability to determine right kind of information you need to develop about the property or facility for, among other things, showing the property conditions at the time of sale. An accurate picture of property conditions, in addition to overcoming the fear and insecurity that comes with facing unknown and therefore frightening problems, also facilitates the contract negotiations, because parties are less likely to posture about theoretical protections or guarantees they think they need, and instead focus on the most likely concerns.

Continuing Actions to Obtain the CERCLA Landowner Liability Protections

As mentioned above, the Phase I is just the first step in obtaining the CERCLA landowner liability protections.

ASTM has also promulgated standards for the next steps for meeting the landowner liability protection requirements – namely, the revised Phase II ESA Standards and the newly published Continuing Obligations Standards, both of which are discussed in the Periconi, LLC Environmental Law Blog.

At Periconi, LLC, we work closely with environmental consultants to ensure that all of the necessary AAI requirements are met so that owners of contaminated properties are fully protected from liability. Contact us if you need help choosing or working with an environmental consultant for a contaminated property, one who knows has to develop an investigation that will receive quick approval from the government because it meets the highest standards of reliability in results.

How to Insure You Get the Landowner Liability Protections under Superfund

2012-02-08T20:42:23Z

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New guidelines published in 2011 assist landowners in insuring that they meet all the requirements — specifically the “continuing obligations” — to avail themselves of the landowner liability protections under the federal Superfund Act.

Landowner liability protections under the federal Superfund Act (the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, or “CERCLA”) include the innocent landowner defense to liability, and the contiguous property owner and the bona fide prospective purchaser exemptions from liability.

As an initial step in being able to obtain these protections, it has long been clear that a prospective purchaser must, prior to purchase, undertake a Phase I Environmental Site Assessment (“ESA”), for which EPA finally provided guidance in 2006 in its All Appropriate Inquiry standards, see 40 CFR Part 312.

The Phase I ESA is a preliminary, non-invasive, mostly documentary review of a contaminated property to determine the extent of contamination at the property. See ASTM Standards: E1527-05. The purpose of a Phase I ESA is to try to identify all potential environmental issues (known as “recognized environmental conditions” or “RECs”) with a property, so the prospective purchaser acquires an appropriate level of knowledge about the environmental conditions of the property in advance of purchasing it. This due diligence is a key part to the “all appropriate inquiry” required by the statute, and interpreted by regulations developed by the U.S. Environmental Protection Agency, something that must occur before the contaminated property transfers ownership.

But neither EPA nor Congress has provided any guidance on what a landowner needs to do after purchase to comply with the “continuing obligations” requirement of the 2002 amendments to the Superfund Act that created these new protections. And it’s clear that the protections can be lost if the landowner is not in compliance. The lack of clarity in the amendments engendered a fear, for example, that the third requirement, see below (“Taking reasonable steps as to releases of hazardous substances, [and] preventing or limiting human, environmental or natural resource exposure to prior releases of hazardous substances. . . “) might actually impose an affirmative obligation to remediate, i.e., stop migration of contamination that would otherwise lead to “human, [or] environmental . . . exposure to prior releases,” seemingly in contradiction to the absence of an obligation to remediate that the landowner liability protections seemed to give.

The new “Standard Guide for Identifying and Complying with Continuing Obligations” (E2790-11) has been released by ASTM International (formerly the American Society for Testing and Materials, or ASTM), a private professional standard-setting organization. This standard addresses compliance issues after a person purchases a contaminated property. The owner’s obligations for due diligence necessary to avail himself of the CERCLA liability exemptions (or defenses) also include requirements after the property has transferred to him.

The new ASTM Standard applies to continuing obligations for commercial real estate, as well as for forestland and rural properties, and includes properties contaminated by hazardous substances under CERCLA as well as by petroleum products (which are generally outside the scope of CERCLA). Such “continuing obligations” include stopping, preventing, or limiting human exposure to the contaminants on the property.

Specifically, the continuing obligations contemplated by CERCLA include:

Complying with any engineering controls and/or institutional controls (i.e., land use restrictions) established or relied upon in connection with a cleanup action at a property;
Not impeding the effectiveness or integrity of any engineering or institutional controls imposed on a property in connection with a response action;
Taking reasonable steps as to releases of hazardous substances, including stopping continuing releases, preventing threatened future releases, and preventing or limiting human, environmental or natural resource exposure to prior releases of hazardous substances;
Providing full cooperation, assistance and access to persons who are authorized to conduct response actions or natural resource restoration at a property;
Complying with information requests and administrative subpoenas, if necessary; and
Providing legally required notices with respect to releases of any hazardous substances at a property.

The new ASTM Continuing Obligations Standard focuses on the first three continuing obligations listed above, and attempts to formulate and clarify suggested industry methods and procedures for identifying and satisfying those continuing obligations in a manner that is “practical, efficient, and reasonable.”

The standard’s main drive is the development of a “continuing obligation plan,” which is “a plan prepared by the [property owner] to identify continuing obligations and procedures to be taken post-acquisition of the property to satisfy any continuing obligations.”

ASTM’s new continuing obligation standard utilizes a four-step approach to aid an owner of contaminated property in developing a continuing obligation plan which includes (1) identifying and organizing any continuing obligations; (2) determining the required next steps after purchasing the property; (3) monitoring the required continuing obligations; and (4) maintaining the continuing obligations throughout ownership of the property. In addition, the property owner may not take any affirmative steps in developing the property to move contaminated soil into areas not previously contaminated, or create pathways of migration of contaminated ground water to previously uncontaminated areas. But nothing in the ASTM standard suggests active remediation, e.g., contaminated soil removal or, say, biological agent treatment of groundwater.

By following these steps and developing a continuing obligation plan, the new ASTM standard help property owners in meeting their continuing obligations after purchase of a contaminated property, which, in turn, can help them avail themselves of the defenses and exemptions under CERCLA.

Other parts of the new standard discussed summarily include (1) compliance with land use restrictions established as a result of a response action – e.g., and not trying to build single family homes or a day care center on a property cleaned up only to industrial or commercial standards – and (2) not impeding the effectiveness or integrity of any institutional control used at a property – e.g., not breaching the integrity of a clean-soil or other cap.

If you own (or want to own) a contaminated property and are looking to avail yourself of the landowner liability protections under CERCLA, then following these new standards is critical.

Even though ASTM International is a private body, EPA has, in the past, largely adopted its prescriptive practices for Phase I and Phase II ESAs in its regulations or guidances. Pending any clearer guidance from the EPA, we think the same practice will be followed as to the “continuing obligations” standards, both pre- and post-remediation.

Although the standard attempts to make continuing due diligence easier, the new Continuing Obligation Standard only focuses on “technical, scientific, and procedural issues involved with identifying and performing appropriate continuing obligations under site-specific circumstances;” an environmental attorney is necessary to provide legal advice concerning the landowner liability protection under CERCLA, which, as the new standard notes: “involve complicated legal matters with potentially severe consequences.”

We here at Periconi, LLC have over 30 years experience in handling CERCLA matters, including the evaluation and use of landowner liability protections for prospective purchasers or owners of contaminated properties. If you are interested in owning or do own a contaminated property (or property next to a contaminated property), please contact us to see how we can help you.

Environmental Groups Denied Intervention in Suit Regarding RCRA Consent Decree

2012-01-10T22:12:33Z

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The federal Court of Appeals, D.C. Circuit recently denied three environmental groups’ motion to intervene in a lawsuit between the District of Columbia (“District”) and Potomac Electric Power Company and Pepco Energy Services, Inc. (collectively, “Pepco”), which concerned a consent decree under the Resource Conservation and Recovery Act (“RCRA”) entered into between the District and Pepco. See District of Columbia v. Potomac Electric Power Co., Civ. No. 11-00282. (D.D.C. Dec. 1, 2011).

The District sued Pepco alleging that between 1985 and 2003, the Pepco facility released toxic polychlorinated biphenyls (“PCBs”), and that over time, these PCBs seeped into the sediment of the nearby Anacostia River. The District and Pepco had reached a settlement of the RCRA claim that called for Pepco to conduct a Remedial Investigation and Feasibility Study (“RI/FS”) as the initial step in remedying the contamination. After the required public comment period, the parties subsequently moved for the D.C. Circuit to enter the consent decree that memorializes their settlement.

The environmental groups – the National Resources Defense Council, the Anacostia Riverkeeper, and the Anacostia Watershed Society – filed a motion to intervene in the lawsuit in order to oppose entry of the consent or, in the alternative, to participate in the lawsuit as amici curiae (i.e, “friends of the court”) as a way to voice their opposition.

During the public comment period – that is, prior to filing their motion to intervene – the environmental groups had a chance to, and did in fact, comment upon the proposed consent decree. In fact, the District actually considered the environmental groups’ comments and negotiated a revised RI/FS consent decree with Pepco based on some of these comments. Nevertheless, the environmental groups still opposed entry of this RI/FS consent decree – even including the revisions based groups’ comments.

Judge Beryl A. Howell, writing for the court, among deciding other issues not discussed in this blog post, denied the environmental groups’ motion to intervene both “as of right” and “by permission,” yet allowed them to participate as amici curiae in the lawsuit.

Under federal civil case procedure, there are two types of intervention: “as of right” and “permissive.” See Fed. R. Civ. P. 24.

A potential intervenor must be allowed to intervene as of right if it can show that its motion to intervene is timely; that it has an interest related to the subject of the lawsuit; that it is “so situated” that disposition of the lawsuit may, as a practical matter, impair or impede its ability to protect its interest; and that its interest is not adequately represented by the existing parties in the lawsuit. See Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 65-66 (D.D.C. 2004) (quotations omitted); see also Fed. R. Civ. P. 24(a).

Permissive intervention, on the other hand, is at a judge’s discretion, and takes into consideration whether the proposed intervention would “unduly delay or prejudice the adjudication of the original parties’ rights.” See Fed. R. Civ. P. 24(b).

First, the D.C. Circuit denied the environmental groups’ intervention as of right determining that the groups failed to show that they are “so situated” that entry of the consent decree would impair or impede their interests. Judge Howell noted that “[a]s a practical matter, denying intervention would not impair or impede the [environmental groups’] ability to protect their interests, which the [environmental groups] identify as interests in protecting human health, including the health of their members, and in protecting and restoring the Anacostia River, including abatement of toxic contamination in the river.” Judge Howell reasoned that the environmental groups’ interests would not be impaired or impeded at this time “[s]ince the settlement of the claims in this action would not resolve the ultimate question of how the pollution will be cleaned up.” Instead, the court recommended that the environmental groups might be better off, to the extent possible, attempting to intervene in, or even commencing themselves, future lawsuits concerning this pollution of the Anacostia River and the ultimate cleanup of the contaminants.

Moreover, Judge Howell concluded, even if the D.C. Circuit permitted the environmental groups to intervene in this action, they would have no legal right to block entry of the consent decree between the District and Pepco. See United States v. District of Columbia, 933 F. Supp. 42, 47 (D.D.C. 1996) (“[I]f such a citizen were allowed to block entry of a consent decree merely by objecting to its terms it would wreak havoc upon government enforcement actions. Moreover, it is well settled that the right to have its objections heard does not, of course, give the intervenor the right to block any settlement to which it objects.”).

Second, the D.C. Circuit denied the environmental group’s permissive intervention because the court determined that allowing such intervention would “unduly delay or prejudice the adjudication of the original parties’ rights.” Judge Howell determined that:

Intervention would likely delay the resolution of this action — and the associated RI/FS for the contaminated site — even further by triggering renewed negotiations over the terms of the consent decree in an attempt to resolve the proposed intervenors’ claims simultaneously with the District’s claims. In addition, allowing intervention would undermine part of the benefit of entering into a consent decree for the settling parties — namely, minimizing litigation and focusing on getting the RI/FS for the contaminated site underway expeditiously.

Finally, finding that a “finder-of-fact” (i.e., a judge) may benefit from their input in evaluating the merits of the proposed consent decree, the D.C. Circuit did allow the environmental groups to participate as amici curiae – which would allow them to make arguments in opposition to the consent decree before the court – since “the proposed intervenors are environmental organizations with relevant expertise and a stated concern for the issues at stake in this case.”

However, despite allowing the environmental groups to participate as amici curiae in the briefing and oral arguments concerning the entry of the proposed RI/FS consent decree, Judge Howell ultimately held that the consent decree was “fair and in the public interest” and “adequate, reasonable, and appropriate,” and rejected the environmental groups arguments in opposition.

Conclusion

In conclusion, although the D.C. Circuit denied the environmental groups’ motion to intervene, its decision did not really harm the groups’ interests insofar as: (1) according to the decision, even if allowed to intervene, the groups would not have been legally able to block a settlement agreement between the other parties, and (2) the groups were still allowed to participate as amici curiae, thereby having their arguments in opposition to the proposed RI/FS consent decree considered by the court.

Perhaps one of the factors Judge Howell considered particularly important in deciding to deny intervention for the environmental groups was that these groups already had a meaningful opportunity to comment upon – and thereby influence – the consent decree between the parties during the public comment period, and that the District actually negotiated changes to the consent decree based upon the environmental group’s comments.

Between this and the ability of the environmental groups to further present their arguments in opposition to the proposed consent decree through participation as amici curiae, the court determined that the environmental groups’ ability to protect their interests would not be practically impaired nor would the status quo of the Anacostia River be altered in any irreparable way by allowing the RI/FS consent decree to go forward. Judge Howell emphasized that this consent decree was just an initial step in determining the necessary remediation, and would not ultimately determine the final cleanup of the River or the parties responsible for the pollution.

James J. Periconi Named 2011 Environmental SuperLawyer

2011-12-29T17:34:31Z

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In 2011, Periconi, LLC founder and principal James Periconi was named a Superlawyer in Environmental Law for the second year in a row!

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Super Lawyers is an independent rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The status of “Superlawyer” is given to no more than approximately 5% of all attorneys, and is an honor given (unlike many other such) without payment or quid pro quo of any kind.