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9th Circuit Allows Non-Settling PRPs to Intervene in CERCLA Consent Decree Action by Genevieve J. Essig
Jenner & Block LLP - Chicago Office
Gabrielle Sigel
Jenner & Block LLP - Chicago Office
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July 2, 2010
Previously published on May 2010
On June 2, 2010, the U.S. Court of Appeals for the Ninth Circuit joined the Eighth and Tenth Circuits in holding that a non-settling PRP’s right to contribution under CERCLA was a legally sufficient interest to justify intervention as of right in a consent decree action between the federal government and settling PRPs. U.S. v. Aerojet Gen. Corp., No. 08-55996, 2010 WL 2179169 (9th Cir. Jun. 2, 2010). The action underlying Aerojet concerned the remediation of contaminated groundwater at a Superfund site. U.S. EPA had identified 67 PRPs, and the total cost of the cleanup is estimated at $87 million. In the present case, EPA proposed a consent decree providing 10 settling PRPs with immunity from contribution claims in return for payment of a fixed sum. EPA provided a public noticeand- comment period on the consent decree. A group of non-settling PRPs, who were not parties to the consent decree action but were defendants in other actions brought by local water providers involved in performing the cleanup, moved to intervene as of right after the close of the comment period. Most had submitted comments objecting to the consent decree. The district court denied intervention, but the court of appeals reversed, holding that the non-settling PRPs have a right under Fed. R. Civ. P. 24(a)(2) and CERCLA § 113(i) “to protect their interests in contribution and in the fairness of the proposed consent decree.” Aerojet at *9.
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