United States v. Aerojet General Corp.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA; 
CALIFORNIA DEPARTMENT OF TOXIC
SUBSTANCES CONTROL,
Plaintiffs-Appellees,
APW NORTH AMERICA; CARDINAL
INDUSTRIAL FINISHES; EEMUS
MANUFACTURING CORP.;
INTERNATIONAL MEDICATION
SYSTEMS, LTD.; NORF JAMES JEBBIA
TESTAMENTARY TRUST; ROC-AIRE
CORPORATION; JANNEBERG MARITAL
TRUST; SMITTYBILT, INC.; SOUTHERN No. 08-55996
CALIFORNIA EDISON COMPANY;
D.C. No.

ANDRUSS FAMILY TRUST,
Defendants-Appellees, 2:07-cv-06873-
ABC-RC
v.
OPINION
AEROJET GENERAL CORP.; ART
WEISS, INC.; ASTRO SEAL, INC.; DEL
RAY INDUSTRIAL ENTERPRISES, INC.;
SHELLEY LINDERMAN, as Trustee of
the Linderman Trust; M & T
COMPANY; MULTI CHEMICAL
PRODUCTS INC.; QUAKER CHEMICAL
CORPORATION; TIME REALTY
INVESTMENTS INC.; DON TONKS;
ROY TONKS; TONKS PROPERTIES;
ART WEISS,
Intervenors-Appellants.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding

7825
7826 UNITED STATES v. AEROJET GENERAL CORP.
Argued and Submitted
October 5, 2009—Pasadena, California

Filed June 2, 2010

Before: Cynthia Holcomb Hall, William A. Fletcher and
Richard R. Clifton, Circuit Judges.

Opinion by Judge William A. Fletcher
7828 UNITED STATES v. AEROJET GENERAL CORP.

COUNSEL

M. Alice Thurston, Lisa Elizabeth Jones, US DEPARTMENT
OF JUSTICE, Washington, D.C., Elizabeth Ann Rushton,
 UNITED STATES v. AEROJET GENERAL CORP. 7829
OFFICE OF THE CALIFORNIA ATTORNEY GENERAL,
Los Angeles, California, for the plaintiffs-appellees.

Brian Donald Langa, DEMETRIOU, DEL GUERCIO,
SPRINGER & FRANCIS, Los Angeles, California, Catherine
Mitchell Wieman, Peter A. Nyquist, ALSTON & BIRD, Los
Angeles, California, Robert Stephen Niemann, SEYFARTH
SHAW, San Francisco, California, Carla Margolis Blanc,
SOUTHERN CALIFORNIA EDISON COMPANY, Rose-
mead, California, for the defendants-appellees.

James Carlyle Macdonald, Thomas Jay Bois, II, BOIS &
MACDONALD, Irvine, California, Bradley L. Bunch, LAW
OFFICES OF McCOLLUM & BUNCH, Fresno, California,
Stephen Robert Onstot, WALSWORTH FRANKLIN BEV-
INS & McCALL, Los Angeles, California, Stephen Arthur
Tuggy, LOCKE LORD BISSELL & LIDDELL, Los Angeles,
California, Lawrence Allen Hobel, COVINGTON & BURL-
ING, San Francisco, California, for the intervenors-appellants.

OPINION

W. FLETCHER, Circuit Judge:

The Comprehensive Environmental Response, Compensa-
tion, and Liability Act, 42 U.S.C. §§ 9601-9675
(“CERCLA”), requires certain polluters to pay for cleaning up
contaminated sites. After identifying a contaminated site, the
federal Environmental Protection Agency (“EPA”) and state
environmental agencies typically negotiate with potentially
responsible parties (“PRPs”) over their shares of comparative
responsibility for cleanup (“response”) costs. CERCLA
allows PRPs to seek contribution from one another in order to
apportion response costs equitably. But CERCLA bars contri-
bution claims against PRPs that have obtained administra-
tively or judicially approved settlements with the government.
7830 UNITED STATES v. AEROJET GENERAL CORP.
CERCLA thus provides an incentive for PRPs to settle by
leaving non-settling PRPs liable for all of the response costs
not paid by the settling PRPs.

We consider a question that has split the federal courts:
May a non-settling PRP intervene in litigation to oppose a
consent decree incorporating a settlement that, if approved,
would bar contribution from the settling PRP? We join the
Eighth and Tenth Circuits in holding that the answer is “yes.”

I. Background

A. Investigation and Negotiation

The San Gabriel Basin is a groundwater reservoir in eastern
Los Angeles County that serves as a source of drinking water
for more than one million people. In 1979, the EPA discov-
ered groundwater contamination in the basin. In 1984, it des-
ignated much of the basin as a site on the CERCLA National
Priorities List for investigation and cleanup. The EPA divided
the site into eight “Operable Units.” The South El Monte
Operable Unit (“SEMOU”) covers approximately eight square
miles in the south central portion of the San Gabriel Basin.

The EPA’s initial investigation determined that SEMOU
groundwater contained volatile organic compounds (“VOCs”)
that required containment and remediation. Throughout the
1990s, the EPA sent Notice of Liability Letters to PRPs,
requesting that they participate in a Remedial Investigation
and Feasibility Study (“RI/FS”). Thirty-three PRPs partici-
pated in the RI/FS process. By 1999, the EPA had completed
the RI/FS and had identified numerous industrial facilities in
the SEMOU that were potential sources of the VOCs.

In September 2000, the EPA issued an Interim Record of
Decision (“IROD”) based on the RI/FS. The IROD prescribed
a 30-year remedial plan to clean contaminants from the
groundwater and stop their spread. As part of the plan, local
 UNITED STATES v. AEROJET GENERAL CORP. 7831
water providers (“Water Entities”) would pump the contami-
nated water, clean the water, and then sell the treated water
to their customers. The EPA projected the estimated cost of
VOC cleanup at $14 million, plus an additional $14 million
for costs incurred by the state and federal governments.

In March 2002, the EPA sent Special Notice Letters pursu-
ant to § 122(e) of CERCLA, 42 U.S.C. § 9622(e), to 67 PRPs
it had identified as current or former owners or operators of
facilities in the basin that had used hazardous substances. The
letters asked the PRPs to present good faith offers to comply
with the IROD remedial plan and to pay the EPA’s past costs
in the SEMOU.

In the meantime, the Water Entities sought to require the
PRPs to pay for the water treatment response costs. After
lengthy negotiations, in July 2002 the Water Entities and thir-
teen PRPs (“Group of 13”) entered into an agreement (“G13
Agreement”). The G13 Agreement provided that the Group of
13 would pay $4.7 million to fund VOC cleanup in exchange
for a standstill agreement under which the Water Entities
would agree not to bring suit against the group during the
period that the funds were being used. The Water Entities also
agreed to “use good faith efforts” to support efforts of the
Group of 13 to obtain an approved settlement that would bar
contribution claims by other PRPs against Group of 13 mem-
bers.

On August 28, 2003, the EPA issued a unilateral adminis-
trative order to 41 PRPs that had not yet entered into agree-
ments or made good faith offers, requiring each of them to
take remedial action.

The remedial plan contained in the 2000 IROD addressed
only VOC contamination. Soon after the issuance of the
IROD, the EPA detected perchlorate in SEMOU groundwater
at concentrations higher than the state’s drinking water advi-
sory levels. In 2005, the EPA issued an Explanation of Signif-
7832 UNITED STATES v. AEROJET GENERAL CORP.
icant Differences (“ESD”) to update the IROD remedial plan
to address perchlorate contamination.

By 2007, estimated response costs had increased substan-
tially. The EPA’s VOC response cost estimate had increased
from $14 million to $26 million. The ESD estimated an addi-
tional $46 million for perchlorate remediation. The estimated
costs incurred by the state and federal governments had also
increased from $14 million to $15 million. The total cost to
clean up VOC and perchlorate contamination in the SEMOU
groundwater was now estimated at $87 million.

B. Suits by the Water Entities (SEMOU Cases)

While they were negotiating the agreement with the Group
of 13, the Water Entities filed four suits in the Central District
of California against other PRPs (the SEMOU Cases).1 On
March 31, 2003, the district court consolidated the four cases.

Under the terms of the G13 Agreement, the Water Entities
could not sue the Group of 13. However, the PRP defendants
in the SEMOU Cases were not so bound. The defendants filed
third-party complaints against the Group of 13, as well as
against other PRPs not sued by the Water Entities. Their
third-party complaints sought contribution from the Group of
13 and the other PRPs. The defendants also filed counter-
claims against the Water Entities. The district court appointed
a Special Master to facilitate settlement. In October 2004, the
district court stayed discovery while the parties focused on
settlement discussions.
1
The SEMOU Cases are: San Gabriel Basin Water Quality Authority v.
Aerojet-General Corp., No. CV 02-4565; San Gabriel Valley Water Co.
v. Aerojet-General Corp., No. CV 02-6346; Southern California Water
Co. v. Aerojet-General Corp., No. CV 02-6340; City of Monterey Park v.
Aerojet-General Corp., No. CV 02-5909.
 UNITED STATES v. AEROJET GENERAL CORP. 7833
C. Agreement among the EPA, the Water Entities, and the
Group of 10

In March 2007, ten PRPs from the Group of 13 (“Group of
10”) entered into an agreement with the Water Entities, the
EPA, and the state (“G10 Agreement”). The Group of 13 had
become the Group of 10 when two members applied success-
fully for “ability to pay” status, see CERCLA § 122(g)(7), 42
U.S.C. § 9622(g)(7), and a third member declined to partici-
pate. The Group of 10 agreed to provide an additional $3.4
million to pay for cleanup of perchlorate contaminants in the
SEMOU.

D. Appeal in This Case

In October 2007, the EPA filed a suit in the Central District
of California against the Group of 10, lodging a proposed
consent decree incorporating both the G13 Agreement of
2002 and the G10 Agreement of 2007. The consent decree, if
approved by the court, would protect the Group of 10 from
contribution claims by non-settling PRPs. The PRP defen-
dants in the SEMOU Cases were not parties to the EPA’s suit.

The Department of Justice published notice of the proposed
consent decree in the Federal Register on November 8, 2007
and provided a thirty-day public comment period. See Notice
of Lodging of Two Consent Decrees, 72 Fed. Reg. 63,185
(Nov. 8, 2007). A group of PRPs, including most of the
defendants in the SEMOU Cases, submitted comments object-
ing to the proposed consent decree. We will call this group
“Applicants.” Applicants did not include any of the Group of
13 or the Group of 10. Applicants complained that the EPA
had not provided sufficient information about the proposed
consent decree’s allocation of cleanup costs. Applicants fur-
ther complained that they were “unaware as to whether [a
Non-Binding Preliminary Allocation of Responsibility] has
been prepared by EPA.” In December 2007, Applicants sub-
7834 UNITED STATES v. AEROJET GENERAL CORP.
mitted Freedom of Information Act requests to the EPA. They
received some information in response on February 19, 2008.

In March 2008, Applicants moved to intervene as of right
in the EPA’s suit against the Group of 10 under Federal Rule
of Civil Procedure 24(a)(2) and § 113(i) of CERCLA, 42
U.S.C. § 9613(i). The district court denied intervention and
entered the consent decree the next day.

The Applicants timely appealed, contending that the district
court erred in denying their motion to intervene as of right
under Rule 24(a)(2) and § 113(i). That appeal is before us in
this case.

E. Appeal in the SEMOU Cases

In the SEMOU Cases, plaintiff Water Entities and third-
party defendants Group of 10 requested a judicial order in
May 2008 approving a proposed settlement between plaintiffs
and third-party defendants that mirrored the proposed consent
decree in the EPA’s suit against the Group of 10. Defendants
in the SEMOU Cases included the Applicants who had sought
to intervene to oppose the proposed consent decree in the suit
brought by the EPA against the Group of 10. The district
court in the SEMOU Cases entered judgment approving the
settlement, dismissing with prejudice all claims against the
Group of 10, and barring any claims for contribution by non-
settling PRPs. Five of the defendants (all of whom are Appli-
cants for intervention in the suit brought by the EPA)
appealed. That appeal is before us in a separate case. By sepa-
rate order filed today, we vacate the district court’s judgment
in the SEMOU Cases and remand for further proceedings con-
sistent with this opinion. See San Gabriel Basin Water Qual-
ity Auth. v. Linderman, No. 08-56589.

II. Standard of Review

We review de novo a district court’s denial of a motion to
intervene as of right, except for the court’s determination of
 UNITED STATES v. AEROJET GENERAL CORP. 7835
timeliness, which we review for abuse of discretion. United
States v. Alisal Water Corp., 370 F.3d 915, 918-19 (9th Cir.
2004); Calif. Dep’t of Toxic Substances Control v. Commer-
cial Realty Projects, Inc., 309 F.3d 1113, 1118-19 (9th Cir.
2002).

III. Discussion

The Applicants seek to intervene as of right under both
Federal Rule of Civil Procedure 24(a)(2) and § 113(i) of
CERCLA. We require applicants for intervention as of right
pursuant to Rule 24(a)(2) to meet a four-part test:

(1) the motion must be timely; (2) the applicant must
claim a “significantly protectable” interest relating to
the property or transaction which is the subject of the
action; (3) the applicant must be so situated that the
disposition of the action may as a practical matter
impair or impede its ability to protect that interest;
and (4) the applicant’s interest must be inadequately
represented by the parties to the action.

California ex rel. Lockyer v. United States, 450 F.3d 436, 440
(9th Cir. 2006) (quoting Sierra Club v. EPA, 995 F.2d 1478,
1481 (9th Cir. 1993)). “In determining whether intervention
is appropriate, courts are guided primarily by practical and
equitable considerations, and the requirements for interven-
tion are broadly interpreted in favor of intervention.” Alisal,
370 F.3d at 919.

Section 113(i) of CERCLA provides a right to intervene in
almost identical terms to Rule 24(a)(2):

In any action commenced under this chapter or under
the Solid Waste Disposal Act in a court of the United
States, 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 dispo-
7836 UNITED STATES v. AEROJET GENERAL CORP.
sition 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 per-
son’s interest is adequately represented by existing
parties.

42 U.S.C. § 9613(i). The two provisions differ only in provid-
ing a different burden of proof for the fourth part of the test.
Under Rule 24(a)(2), the burden of showing inadequate repre-
sentation is on the applicant; under § 113(i), to avoid inter-
vention, the government must show that the applicant’s
interests are adequately represented. Commercial Realty Proj-
ects, 309 F.3d at 1118-19.

We consider the four parts in turn.

1. Timeliness

The parties do not dispute the timeliness of the Applicants’
motion to intervene. Applicants acted promptly after learning
of the proposed consent decree. They submitted comments,
filed Freedom of Information Act requests, and ultimately
moved to intervene, all within a span of four months.

2. Significantly Protectable Interest

An applicant for intervention must have a “significantly
protectable interest,” meaning that “(1) it asserts an interest
that is protected under some law, and (2) there is a ‘relation-
ship’ between its legally protected interest and the plaintiff’s
claims.” Lockyer, 450 F.3d at 440-41 (citation and internal
quotation marks omitted). Applicants here seek to intervene to
protect their rights to contribution under CERCLA, and to
ensure that the consent decree embodies a fair and reasonable
allocation of liability.

[1] By its plain language, CERCLA provides to a non-
settling PRP a statutory right to contribution from other PRPs.
 UNITED STATES v. AEROJET GENERAL CORP. 7837
Section 113(f)(1) provides that “[a]ny person may seek contri-
bution from any other person who is liable or potentially lia-
ble under section 9607(a) of this title, during or following any
civil action under section 9606 of this title or under section
9607(a) of this title.” 42 U.S.C. § 9613(f)(1). Courts are
instructed to resolve contribution claims by allocating “re-
sponse costs among liable parties using such equitable factors
as the court determines are appropriate.” Id. Section 113(f)(2),
however, makes the right of contribution unavailable against
any PRP that enters into an approved settlement with “the
United States or a State”:

A person who has resolved its liability to the United
States or a State in an administrative or judicially
approved settlement shall not be liable for claims for
contribution regarding matters addressed in the set-
tlement. Such settlement does not discharge any of
the other potentially liable persons unless its terms
so provide, but it reduces the potential liability of the
others by the amount of the settlement.

42 U.S.C. § 9613(f)(2).

[2] Only two circuits, the Eighth and the Tenth, have con-
sidered whether non-settling PRPs may intervene in litigation
that threatens to cut off their rights to contribution under
§ 113(f). Both circuits have held that such PRPs have interests
sufficient to support intervention as of right. See United States
v. Albert Inv. Co., Inc., 585 F.3d 1386 (10th Cir. 2009);
United States v. Union Elec. Co., 64 F.3d 1152 (8th Cir.
1995). District courts have split on the question. Compare
United States v. Acorn Eng’g Co., 221 F.R.D. 530, 534-39
(C.D. Cal. 2004) (holding interest not legally sufficient to
support intervention as of right), United States v. ABC Indus.,
153 F.R.D. 603, 607-08 (W.D. Mich. 1993) (same), and Ari-
zona v. Motorola, Inc., 139 F.R.D. 141, 145-46 (D. Ariz.
1991) (same), with United States v. Exxonmobil Corp., 264
F.R.D. 242, 246-48 (N.D. W. Va. 2010) (holding interest
7838 UNITED STATES v. AEROJET GENERAL CORP.
legally sufficient); United States v. Acton Corp., 131 F.R.D.
431, 433-34 (D.N.J. 1990) (same).

[3] We join the Eighth and Tenth Circuits in holding that
non-settling PRPs have a significant protectable interest in lit-
igation between the government and would-be settling PRPs.
As non-settling PRPs, Applicants in this case are potentially
liable for response costs under § 107(a) of CERCLA, 42
U.S.C. § 9607(a). Section 113(f)(2) provides that approval of
a consent decree will cut off their contribution rights under
§ 113(f)(1). The proposed consent decree in the EPA’s suit
against the Group of 10 will therefore directly affect Appli-
cants’ interest in maintaining their right to contribution. See
Union Elec., 64 F.3d at 1166-67. Further, because non-
settling PRPs may be held liable for the entire amount of
response costs minus the amount paid in a settlement, Appli-
cants have an obvious interest in the amount of any judicially-
approved settlement. See CERLCA § 107(a), 42 U.S.C.
§ 9607(a); CERCLA § 122(h)(4), 42 U.S.C. § 9622(h)(4). The
larger the settlement amount, the smaller the remaining
amount for which the non-settling PRPs may be liable.

Appellees contend that § 113(f)(1) creates only a contin-
gent or speculative interest in non-settling PRPs, and that
Applicants’ interest is therefore not significantly protectable.
Some district courts have agreed. For example, the district
court in United States v. Vasi determined that:

Beazer’s [the applicant’s] potential right to contribu-
tion does not constitute a direct, substantial, legally
protectable interest in the Vasi case. If anything,
Beazer has a remote economic interest . . . .

Beazer’s right to contribution is at present a contin-
gency, and not something which it owns. Beazer has
not been declared a responsible party, nor have the
Vasi defendants been found responsible parties.
 UNITED STATES v. AEROJET GENERAL CORP. 7839
Beazer cannot demonstrate that a substantial interest
will be impaired by the Vasi proceedings.

Nos. 5:90-cv-1167, 5:90-cv-1168, 1991 WL 557609, at *5
(N.D. Ohio Mar. 6, 1991); see also Motorola, 139 F.R.D. at
146 (offering similar reasoning).

[4] We disagree. Although only parties found liable can be
made to pay a contribution claim, the statute explicitly pro-
vides an interest in such a claim to any “liable or potentially
liable” person. CERCLA § 113(f)(1). Moreover, the statute
provides that the interest arises during or following a civil
action under §§ 106 or 107 of CERCLA. Therefore, under the
statute, a non-settling PRP need not have first been found lia-
ble in order for the contribution interest to arise. See Union
Elec., 64 F.3d at 1167 (“[N]o finding of liability is required,
nor assessment of excessive liability, before the contribution
interest arises.”).

[5] These interests are sufficient to satisfy the requirements
of Rule 24(a)(2) and § 113(i) that the interest be “significantly
protectable.” CERCLA provides a contribution right and
requires that consent decrees be substantively fair. See CER-
CLA § 113(f)(1); United States v. Montrose Chem. Corp. of
Cal., 50 F.3d 741, 743 (9th Cir. 1995) (noting proposed con-
sent decrees must be “fair, reasonable and consistent with the
objectives of CERCLA”). Thus, Applicants’ interests in con-
tribution and in a fair and reasonable allocation of liability are
“protected under some law.” Lockyer, 450 F.3d at 440-41.
There is a “relationship” between Applicants’ “legally pro-
tected interest and the plaintiff’s claims,” id., because the res-
olution of appellees’ claims will have a direct effect on
Applicants. See Donnelly v. Glickman, 159 F.3d 405, 410 (9th
Cir. 1998).

Appellees would have us rely on arguments based on pol-
icy and legislative intent as a justification for concluding that
non-settling PRPs’ interests are not sufficient to support inter-
7840 UNITED STATES v. AEROJET GENERAL CORP.
vention. Some district courts have been persuaded by policy
arguments against intervention, based upon the desirability of
giving the EPA leverage to encourage early settlement. These
arguments include the desire “to ensure rapid and thorough
cleanup of toxic waste sites,” Acorn, 221 F.R.D. at 536; to
avoid “the expenditure of limited resources on protracted liti-
gation,” id. at 537; and “to encourage early settlement by par-
ties potentially responsible for cleanup costs,” Motorola, 139
F.R.D. at 145. These courts believe that allowing intervention
would be inconsistent with “CERCLA’s joint and several lia-
bility scheme and its policy favoring early settlements.” Id. A
non-settling PRP “could refuse to engage in meaningful set-
tlement negotiations” until other parties reached a settlement,
and only then seek to intervene, which could “cause delays in
implementation of the clean up . . . and effectively thwart the
settlement process.” Vasi, 1991 WL 557609, at *4.

There are, however, countervailing policy arguments in
favor of treating all PRPs fairly, an interest that is itself
embodied in the statutory scheme. Section 113(f)(1) confers
a right to contribution on a non-settling PRP. Allowing non-
settling PRPs to intervene in CERCLA litigation to represent
their own interests helps “ensure that the costs of [hazardous
waste site] cleanup efforts [are] borne by those responsible for
the contamination.” Burlington N. & Santa Fe Ry. Co. v.
United States, 129 S. Ct. 1870, 1874 (2009). Further, even if
intervention is allowed, the approval of a settlement will still
cut off the non-settling PRPs contribution interest, thus keep-
ing intact “the intent of § 113(f)(2) to induce prompt settle-
ment.” Union Elec., 64 F.3d at 1166.

[6] But we do not rely on arguments based on policy. We
agree with the Eighth and Tenth Circuits that § 113(f) and
113(i) of CERCLA are unambiguous. See Albert, 585 F.3d at
1394-96; Union Elec., 64 F.3d at 1158 & n.1, 1165-66 (citing
Hazardous Waste Treatment Council v. South Carolina (In re
Sierra Club), 945 F.2d 776, 779 (4th Cir. 1991)). Section
113(f) confers a right of contribution. Like Rule 24(a)(2),
 UNITED STATES v. AEROJET GENERAL CORP. 7841
§ 113(i) confers a right to intervene on “any person” who
“claims an interest” in the litigation, should the disposition of
the action “impair or impede” that interest. Section 113(i)
contains no restriction on intervention by non-settling PRPs.
See Union Elec., 64 F.3d at 1165. Nor does the right of inter-
vention in § 113(i) need to be restricted in order to give effect
to the contribution provisions of § 113(f). Indeed, precisely
because § 113(f)(2) cuts off the contribution right of non-
settling PRPs, § 113(i) gives them the right to intervene upon
timely application. We therefore hold that Applicants have
significant protectable interests that support intervention as of
right.

3. Impairment of Interests

[7] Under Rule 24(a)(2) and § 113(i), an applicant must be
situated such that the disposition of the action may, as a prac-
tical matter, impair or impede its ability to protect its interests.

[8] This requirement need not detain us long. It follows
from our discussion of Applicants’ significant protectable
interests that disposition of this action may impair or impede
those interests. It is undisputed that “[d]isposition of the pres-
ent litigation could bar or reduce the monetary value of the
contribution claims of the prospective intervenors against the
settling PRPs.” Union Elec., 64 F.3d at 1167. Non-settling
PRPs may be held jointly and severally liable for the entire
amount of response costs minus the amount of the settlement.
CERCLA §§ 107(a) & 122(h)(4). Thus, as a practical matter,
it is highly likely that the amount that the Group of 10 pays
in settlement will affect the amount the non-settling PRPs
ultimately have to pay, either in settlement or after trial, to
satisfy their own liability for response costs.

Proposed intervenors’ interests “might not be impaired if
they have ‘other means’ to protect them,” even if the lawsuit
would affect those interests. Lockyer, 450 F.3d at 442 (quot-
ing Alisal, 370 F.3d at 921) (emphasis in original). But Appli-
7842 UNITED STATES v. AEROJET GENERAL CORP.
cants have no such “other means” in this case. Appellees
contend that Applicants have already protected their interests
through participation in the SEMOU Cases, and that interven-
tion here would replicate the process already made available
in those cases. Participation in the SEMOU Cases, however,
has not provided Applicants with a direct opportunity to chal-
lenge the fairness of the settlements prior to their entry as a
consent decree.

Appellees also contend that CERCLA’s notice and com-
ment procedure provided Applicants with an “other means”
by which to protect their interests. Notice and comment pro-
cedures do provide non-settling PRPs some degree of protec-
tion against an unfair consent decree. Some district courts
have relied on the existence of these procedures to buttress a
determination that intervention as of right is not available.
See, e.g., Acorn, 221 F.R.D. at 538-39; United States v. Mid-
State Disposal, Inc., 131 F.R.D. 573, 577 (W.D. Wis. 1990).
We disagree with those courts. Once a consent decree has
been negotiated and agreed upon, the interests of the govern-
ment and would-be settling PRPs are essentially aligned and
are adverse to those of non-settling PRPs who oppose entry
of the decree. In the case now before us, Applicants had been
involved in the settlement process and had made their views
known to the government. The EPA and the Group of 10 had
already agreed to the terms of the proposed consent decree,
despite Applicants’ opposition, before comments were sought.
It is unrealistic to expect the government to abandon or sub-
stantially modify the proposed consent decree in response to
Applicants’ comments at this late stage of the process.

[9] The statutory scheme reflects a Congressional intent
that the interests of entities other than the government and set-
tling PRPs be considered as part of the settlement process.
When a settlement is submitted for judicial approval, a court
is required to evaluate whether a proposed consent decree is
“fair, reasonable and consistent with the objectives of CER-
CLA” before approving it. Montrose, 50 F.3d at 743. A court
 UNITED STATES v. AEROJET GENERAL CORP. 7843
must consider the substantive fairness of the consent decree
to non-settling PRPs by assessing whether liability has been
roughly apportioned based upon “some acceptable measure of
comparative fault.” United States v. Cannons Eng’g Corp.,
899 F.2d 79, 87 (1st Cir. 1990); see Montrose, 50 F.3d at 746.
Applicants have the right to participate in this process and to
have their interests considered by the court. We conclude that
the notice and comment procedure does not provide Appli-
cants with sufficient “other means” by which to protect their
interests, see Lockyer, 450 F.3d at 442, and that those interests
will be impaired if Applicants are not afforded the right of
intervention.

4. Adequacy of Representation

“This Court considers three factors in determining the ade-
quacy of representation: (1) whether the interest of a present
party is such that it will undoubtedly make all of a proposed
intervenor’s arguments; (2) whether the present party is capa-
ble and willing to make such arguments; and (3) whether a
proposed intervenor would offer any necessary elements to
the proceeding that other parties would neglect.” Arakaki v.
Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003).

[10] The parties to this appeal do not contend that the
existing parties adequately represent Applicants’ interests.
Indeed, the would-be settling PRPs’ interests are directly
opposed to those of the Applicants. The would-be settling
PRPs wish to limit their share of liability and to bar the non-
settling PRPs from obtaining contribution. The EPA, having
invested substantially in the settlement negotiations, has an
interest in securing approval of the decree. These interests are
directly opposed to those of the non-settling PRPs, who seek
to challenge the proposed decree. “Because of this difference
in interest, the EPA can hardly be expected to litigate with the
interests of the non-settling PRPs uppermost in its mind.”
Union Elec., 64 F.3d at 1170.
7844 UNITED STATES v. AEROJET GENERAL CORP.
[11] Under Rule 24(a)(2), Applicants bear the burden of
showing that their interests are not adequately represented by
the existing parties. Under § 113(i), the government bears the
burden of showing the non-settling PRPs’ interests are ade-
quately represented. Under either standard, we conclude that
the interests of the non-settling PRPs are not adequately rep-
resented by the existing parties.

Conclusion

[12] For the foregoing reasons, we hold that Applicants
have a right to intervene under Rule 24(a)(2) and § 113(i) of
CERCLA to protect their interests in contribution and in the
fairness of the proposed consent decree. We therefore reverse
and remand for further proceedings consistent with this opin-
ion.

REVERSED AND REMANDED.