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United States v. W.R. Grace & Co.

November 10, 1998

UNITED STATES OF AMERICA,
PLAINTIFF,
V.
W.R. GRACE & CO., -CONN.,
DEFENDANT.



The opinion of the court was delivered by: Joel A. Pisano United States Magistrate Judge

OPINION

JOEL A. PISANO, UNITED STATES MAGISTRATE JUDGE

Before the Court is Wayne Township's motion to intervene in this CERCLA case between the United States and W.R. Grace. Defendants filed opposition, while the United States filed papers but took no position on the motion to intervene. The Court heard oral argument from Wayne Township, the United States, and W.R. Grace on October 26, 1998, and reserved judgment in order to issue this opinion. For the reasons set forth below, Wayne Township's motion to intervene is denied.

BACKGROUND

Between 1948 and 1961, Rare Earths, Inc., processed monazite sand at an industrial site in Wayne, New Jersey. Rare Earths used the yield of this process to produce eyeglass polishing compound. Radioactive thorium was a by-product of the processing of the monazite sand. In accordance with then-applicable government standards, Rare Earths disposed of the thorium on site in Wayne. The plant discontinued processing monazite sand in 1962, and all operations at the Wayne site ceased in 1971.

W.R. Grace & Co. is the successor to Rare Earths, Inc. In the 1970s and 1980s, W.R. Grace and the federal government undertook to decontaminate the site. Originally, government studies recommended an "on-site treatment remedy," but political pressure later forced the government to seek an off-site disposal remedy. At oral argument, counsel informed the Court that the current off-site remedy consists of excavating the site and shipping the soil using trucks and railcars from New Jersey to a Utah desert.

In November 1995, the government initiated negotiations with W.R. Grace, seeking monetary contribution to the clean-up effort. The United States and W.R. Grace negotiated for three years, and in April 1998, filed a consent decree with the federal district court pursuant to § 122 of CERCLA, 42 U.S.C. § 9622(d)(1)(A). In September 1998, the Township of Wayne moved to intervene because, in its view, the amount of money provided by W.R. Grace pursuant to the consent decree is inadequate.

DISCUSSION

The Township of Wayne relies upon three bases in asserting that it has a right to intervene: (1) § 113(i) of CERCLA; (2) Federal Rule of Civil Procedure 24(a)(2) (Intervention of Right); and (3) Federal Rule of Civil Procedure 24(b) (Permissive Intervention). Cases apply the same essential test when determining whether or not to grant intervention under both CERCLA § 113(i) and Rule 24(a)(2). See United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1181 (3d Cir. 1994). Therefore, the discussion that follows will examine whether to grant intervention (1) as of right under Rule 24(a)(2) or CERCLA § 113(i); or (2) permissively under Rule 24(b).

I. Intervention as of Right

Rule 24(a)(2) states: Upon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. Fed. R. Civ. P. 24(a).

Similarly, CERCLA § 113(i) states:

In any action commenced under this chapter . . . any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person's ability to protect that interest, unless the President or the State shows that the person's interest is adequately represented by existing parties. 42 U.S.C.A. § 9613(i) (1995).

In order to intervene as of right, a four-part test must be satisfied: (1) the application to intervene must be timely, (2) the proposed intervenor must have a sufficient interest in the litigation, (3) as a practical matter, that interest must be affected or impaired by the disposition of the litigation, and (4) the applicant's interest must not be adequately represented by existing parties in the litigation. See United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1181 (3d Cir. 1994). There is no doubt that Wayne's application is timely, as the consent decree was filed in April 1998 ...


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