ELR Citation: ELR 20432
No(s). s. 1:92CV00078GFG, 1:92CV00088GFG (E.D. Mo. Aug 19, 1994)

The court enters a consent decree under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) among the United States, Missouri, and several potentially responsible parties (PRPs) at the Missouri Electric Works, Inc. Superfund site in Cape Giradeau, Missouri. The court first holds that the nonsettling PRPs may not intervene as of right under Fed. R. Civ. P. 24(a)(1) or CERCLA §113(i). Rule 24(a)(1) and §113(i) require the nonsettlors to show a significantly protectable interest in the lawsuit that is more than peripheral or insubstantial in order to intervene as of right. The court holds that a claim for contribution under §113(f), which the nonsettlors claim will be impaired by entry of the consent decree, is not a significantly protectable interest in light of the structure and design of CERCLA as a whole. The nonsettlors' contribution claims are too speculative and are contingent on litigation that has not begun and may never be pursued, the outcome of which may or may not result in liability attributable to the nonsettlors. Further, to allow the intervention of nonsettling PRPs for the purpose of hindering consent decrees with other parties would subvert CERCLA's encouragement of settlement agreements. Thus, the court does not believe that a claim for contribution under §113(f)(1) can constitute a protectable interest for the purpose of warranting the intervention of a nonsettling PRP in the consent decree of settling PRPs. The court further holds that permissive intervention under Fed. R. Civ. P. 24(b)(2) is not warranted, because the parties to the case have already agreed to the terms of the consent decree and intervention would prolong the settlement process and delay cleanup of the site. The court next holds that the consent decree is procedurally fair. The U.S. Environmental Protection Agency's (EPA's) lengthy negotiations with the settling PRPs were open to all PRPs, and the PRPs were given more than adequate notice, information, and opportunities to participate. While the impact of an agreement on nonsettling parties may be used to indicate procedural fairness, failure of all parties to reach an agreement with the government is not necessarily indicative of procedural unfairness. Furthermore, under CERCLA, EPA is at liberty to negotiate and settle with whomever it chooses. The court next holds that the consent decree is substantively fair. The nonsettlors are not bound by the liability allocation formula to which they object and may contest their liability in a future proceeding. The court also holds that the allocation formula is not arbitrary or capricious. The formula is a product of extensive negotiations and study, and basing liability proportionally on the volume of contaminated oil contained in particular types of electrical equipment disposed of at the site is not devoid of a rational basis. The court next holds that the consent decree is a reasonable partial settlement and serves the public interest. Finally, the court holds that the consent decree is consistent with CERCLA's objectives.

Counsel for Plaintiff
Madeline B. Cole, Ass't U.S. Attorney
U.S. Attorney's Office
414 U.S. CtHse.
1114 Market St., St. Louis MO 63101
(314) 539-2200

Counsel for Defendants
John F. Cowling, George M. Von Stamwitz
Armstrong, Teasdale, Schlafly & Davis
One Metropolitan Sq., St. Louis MO 63102
(314) 621-5070