United States v. Albert Inv. Co., Inc.

FILED
United States Court of Appeals
Tenth Circuit

November 10, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA;
STATE OF OKLAHOMA,

Plaintiffs - Appellees, No. 08-6267

v.

ALBERT INVESTMENT COMPANY,
INC; AMERICAN AIRLINES, INC.;
APAC ARKANSAS, INC.; APAC
OKLAHOMA, INC.; BARTLETT
COLLINS COMPANY; BELL
HELICOPTER;
BRIDGESTONE/FIRESTONE
NORTH AMERICAN TIRE, LLC;
BUTLER AVIATION; CNH
AMERICA LLC, f/k/a Case
Corporation; CHEVRON
ENVIRONMENTAL MANAGEMENT
COMPANY; CITY OF AMARILLO;
CITY OF OKLAHOMA CITY; CITY
OF TULSA; CONOCOPHILLIPS
COMPANY; CRST
INTERNATIONAL, INC.; CUMMINS
SOUTHERN PLAINS, INC.;
SCHLUMBERGER TECHNOLOGIES
CORPORATION DOWELL
SCHLUMBERGER; EMERSON
ELECTRIC COMPANY;
FIBERCAST; FT. JAMES
OPERATING COMPANY; GENERAL
TIRE, INC.; GOODYEAR TIRE &
RUBBER COMPANY;
HALLIBURTON; HOWARD
PONTIAC GMC, INC.; HUDIBERG
CHEVROLET, d/b/a Hudiberg
Investments; ILLINOIS TOOL
WORKS, INC.; IMCO d/b/a General
Dynamics OTS, f/k/a Intercontinental
Manufacturing Company, Inc.;
KAWNEER COMPANY, INC;
MARATHON ELECTRIC; NATURAL
GAS PIPELINE; OKLAHOMA
DEPARTMENT OF MENTAL
HEALTH; OKLAHOMA
DEPARTMENT OF
TRANSPORTATION; ROADWAY
EXPRESS, INC.; SEARS ROEBUCK
AND COMPANY; SHELL OIL
COMPANY; BC IMPORTS, INC.,
f/k/a Steve Bailey Honda; UE, INC.,
f/k/a United Engines, Inc.; UNITED
PARCEL SERVICE, INC.; WESTERN
FARMERS; WILLIS SHAW
EXPRESS, INC.; HILTI, INC.;
INTERSTATE BRANDS
CONTINENTAL BAKING; TYSON
FOODS, INC.; WAL-MART STORES,
INC.; KRAFT GENERAL FOODS,
INC.,

Defendants - Appellees.
_____________________

UNION PACIFIC RAILROAD
COMPANY,

Movant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 08-CV-00637-C)

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William George (Debra Tsuchiyama Baker, Michael Connelly and John Muir of
Connelly, Baker & Wotring, L.L.P., Houston, Texas, with him on the briefs) for
Movant - Appellant.

Gerald Hilsher of McAfee & Taft, P.C., Tulsa, Oklahoma (Stephen L. Jantzen of
Ryan, Whaley, Coldiron, Shandy, P.C., with him on the brief) Oklahoma City,
Oklahoma, for Defendants-Appellees.

Joan Pepin, U.S. Department of Justice, Environmental & Natural Resources
Division, Appellate Section, Washington, D.C. (Robert H. Oakley and Samuel D.
Blesi, of U.S. Department of Justice, Environmental & Natural Resources
Division, Appellate Section, Washington, D.C.; Daniel P. Lennington, Office of
Attorney General, State of Oklahoma, Oklahoma City, Oklahoma; James A. Bove,
Office of General Counsel, Environmental Protection Agency, Washington, D.C.;
Pamela J. Travis, Office of Regional Counsel, Environmental Protection Agency,
Dallas, Texas; John C. Cruden, Acting Assistant Attorney General, Washington,
D.C., on the brief), for Plaintiffs - Appellees.

Before KELLY, McKAY, and LUCERO, Circuit Judges.

KELLY, Circuit Judge.

Movant-Appellant Union Pacific Railroad Co. (“Union Pacific”) appeals

from the district court’s denial of its motion to intervene in an action brought by

Plaintiffs-Appellees (United States and the State of Oklahoma) under the

Comprehensive Environmental Response, Compensation, and Liability Act, 42

U.S.C. §§ 9601-9675 (“CERCLA”). “[A]n order denying intervention is final and

subject to immediate review if it prevents the applicant from becoming a party to

the action.” WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992, 994 (10th

Cir. 2009) (internal quotation marks and citation omitted). Therefore, we have

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jurisdiction under 28 U.S.C. § 1291. Because Union Pacific has an interest in the

underlying action, and a statutory right to intervene, we reverse and remand.

Background

When the Missouri Pacific Railroad Company merged with the Missouri-

Kansas-Texas Railroad Company (“MKT”) in 1989, it acquired from the MKT a

12-acre lot in Oklahoma City. The Missouri Pacific, and the MKT before it,

leased the lot to the Double Eagle Refining Company and Double Eagle

Lubricants, Inc., which used the property to re-refine waste oil. Aplees. Supp.

App. A-2 to A-3. These operations contaminated the Double Eagle site with

various hazardous substances. Aplees. Supp. App. A-3. In 1989, the United

States Environmental Protection Agency added the site to its National Priorities

List. Between 1989 and 1999, the EPA and the Oklahoma Department of

Environmental Quality spent more than $30 million cleaning up the groundwater

and surface waste at the site.

The Union Pacific Railroad Company acquired the Double Eagle Superfund

Site in 2003, as part of its merger with the Missouri Pacific Railroad Company.

Aplees. Supp. App. A-3. In 2006, the United States and the State of Oklahoma

(collectively, the “government”) sued Union Pacific for unreimbursed cleanup

costs and natural resources damages related to the Double Eagle site under

CERCLA’s damages provisions, 42 U.S.C. § 9607(a)(2)-(3). Aplees. Supp. App.

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A-4 to A-8. The government sought to hold Union Pacific jointly and severally

liable for the entire damages. Aplees. Supp. App. A-6 to A-8. That action is

pending.

In the action underlying this appeal, the government sued Defendants-

Appellees, some 44 other potentially responsible parties (PRPs), for the entire

cleanup costs and natural resources damages at the Double Eagle site. Aplt. App.

A-18 to A-28. Although the limitations period on the government’s friendly suit

had already run, the government lodged a consent decree less than a week later.

Aplt. App. A-29 to A-109; corrected at Aplt. App. A-110 to A-183. The consent

decree memorialized a settlement agreement that the 44 defendants would enjoy

immunity from contribution actions or claims for the Double Eagle site, as

provided by § 113(f)(2) of CERCLA, 42 U.S.C. § 4613(f)(2). Aplt. App. A-49.

The settling defendants would collectively pay nearly $6.5 million, ranging from

$49,680 to $625,586 per defendant. Aplt. App. A-103 to A-106. The consent

decree provided for a 30-day notice and comment period. Aplt. App. A-53 to A-

54. The United States published the notice in the Federal Register. 73 Fed. Reg.

41118 (July 17, 2008). Union Pacific timely submitted the sole comments

opposing the consent decree. Aplt. App. at A-195 to A-206.

On October 10, 2008, Union Pacific filed a motion to intervene as of right

in the underlying action pursuant to Fed. R. Civ. P. 24(a)(2), and CERCLA §

113(i), 42 U.S.C. § 9613(i). Aplt. App. A-184 to A-207. Alternatively, Union

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Pacific asked the district court to allow permissive intervention under Fed. R.

Civ. P. 24(b)(1)(A). Aplt. App. A-192. Union Pacific pointed to its potential

contribution rights against the settling defendants and argued that it is entitled to

protect those legally cognizable interests. Aplt. App. A-190. According to Union

Pacific, because the government’s claims against the settling defendants are

already time-barred, the primary purpose and effect of the consent decree is for

the settling defendants to “obtain immunity from Union Pacific’s CERCLA

contribution claims.” Aplt. App. A-187. Both the government and the settling

defendants opposed Union Pacific’s motion to intervene. Aplt. App. A-208 to A-

275.

On December 11, 2008, the district court denied Union Pacific’s motion,

concluding that Union Pacific did not have a legally sufficient interest to justify

intervention as of right. Aplt. App. A-327. The district court also denied

permissive intervention because “permitting Union Pacific to intervene at this

stage would unduly delay the settlement and would prejudice the rights of

Plaintiffs and Defendants . . . .” Aplt. App. A-328. Union Pacific appealed the

denial. Aplt. App. A-329.

Discussion

We review the denial of a motion to intervene as of right de novo and

denial of a motion for permissive intervention for an abuse of discretion.

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DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935,

942 (10th Cir. 2005) (citing City of Stilwell v. Ozarks Rural Elec. Coop. Corp.,

79 F.3d 1038, 1042 (10th Cir. 1996)). The government suggests that we review a

motion to intervene as of right for abuse of discretion because San Juan County v.

United States, 503 F.3d 1163 (10th Cir. 2007) (en banc), adopted a more

practical, fact-based approach to the interest requirement for such motions. Fed.

& State Aplees. Br. (“Gov’t Br.”) at 13-14. We cannot agree; we have

consistently reviewed denials of motions to intervene as of right using a de novo

standard. San Juan County, 503 F.3d at 1199 (“No party has suggested that our

review is other than de novo ....”); WildEarth Guardians, 573 F.3d at 995 (“Our

review of these factors is de novo.”).

A. CERCLA

Because Union Pacific claims that CERCLA establishes its interest in the

underlying suit, we begin with that statute’s recovery and contribution provisions.

CERCLA provides two means for private parties to recover costs associated with

cleaning up hazardous substances. First, § 107 of CERCLA authorizes private

parties as well as state and federal governments to recover the costs of a cleanup

from potentially responsible parties (“PRPs”). 42 U.S.C. § 9607(a). The

government brought suits against Union Pacific and the 44 settling defendants

under this provision. The second provision, § 113 of CERCLA, is the one at the

center of this appeal. 42 U.S.C. § 9613(f). Section 113(f) provides a limited

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right for one responsible or potentially responsible party to seek contribution

from other responsible or potentially responsible parties. Union Pacific’s

contribution right is created by § 113(f)(1), which provides:

Any person may seek contribution from any other person who is
liable or potentially liable 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. Such claims shall be brought in
accordance with this section and the Federal Rules of Civil
Procedure, and shall be governed by Federal law. In resolving
contribution claims, the court may allocate response costs among
liable parties using such equitable factors as the court determines are
appropriate. Nothing in this subsection shall diminish the right of
any person to bring an action for contribution in the absence of a
civil action under section 9606 of this title or section 9607 of this
title.

Id. § 9613(f)(1). Section 113(f)(2) limits that contribution right, cutting it off

against PRPs who settle with the government:

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
settlement. 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.

Id. § 9613(f)(2). No one disputes that the consent decree with the 44 settling

defendants would trigger § 113(f)(2) and eliminate Union Pacific’s contribution

right as to the settling defendants. For that reason, Union Pacific seeks to

intervene in the underlying suit.

B. Intervention as of Right

Union Pacific sought intervention as of right under both Federal Rule of

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Civil Procedure 24(a)(2) and CERCLA. Rule 24(a)(2) provides intervention as of

right to anyone who, “[o]n timely motion, . . . claims an interest relating to the

property or transaction that is the subject of the action, and is so situated that

disposing of the action may as a practical matter impair or impede the movant’s

ability to protect its interest, unless existing parties adequately represent that

interest.” Fed. R. Civ. P. 24. We have summarized the requirements for

intervention as of right as: “(1) the application is ‘timely’; (2) ‘the applicant

claims an interest relating to the property or transaction which is the subject of

the action’; (3) the applicant’s interest ‘may as a practical matter’ be ‘impaired or

impeded’; and (4) ‘the applicant’s interest is [not] adequately represented by

existing parties.’” Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1249 (10th

Cir. 2001) (alteration in original) (quoting Coalition of Arizona/New Mexico

Counties v. Dep’t of Interior, 100 F.3d 837, 840 (10th Cir. 1996)).

Section 113(i) of CERCLA sets out a nearly identical intervention as of

right.

In any action commenced under this chapter [CERCLA] . . . 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 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. § 9613(i). The only difference between CERCLA’s intervention

provision and Rule 24’s intervention as of right is that CERCLA places the

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burden of demonstrating that the existing parties adequately represent the

potential intervenor’s interests on the government instead of the movant. United

States v. Union Elec. Co., 64 F.3d 1152, 1158 (8th Cir. 1995); United States v.

Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994).

Because both Rule 24(a)(2) and CERCLA require the same elements for

intervention as of right, we examine each element in turn.

1. Timeliness

The Appellees do not dispute that Union Pacific’s motion to intervene was

timely. As noted by the district court, Union Pacific filed its motion shortly after

the action was filed in the district court and before any scheduling order. Aplt.

App. A-1 to A-14, A-325.

2. Sufficient Interest

The central dispute in this case is whether Union Pacific’s contribution

right is an interest legally sufficient for intervention as of right. The district court

determined that Union Pacific’s interest in its contribution right was not legally

sufficient. Aplt. App. A-327. Although the district court noted that the consent

decree would extinguish Union Pacific’s contribution right, it declined to follow

the Eighth Circuit’s holding that a non-settling PRP’s contribution right under

CERCLA is sufficient for intervention. Aplt. App. A-326 (discussing Union

Elec., 64 F.3d at 1166). Instead, the district court adopted the reasoning used by

the Central District of California in United States v. Acorn Engineering Co., 221

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F.R.D. 530, 534 (C.D. Cal. 2004). According to the district court, the Acorn

Engineering court deemed § 113(i) ambiguous “and thus consideration of the

legislative history is appropriate.” Aplt. App. A-326. The district court

continued, “Upon consideration, that ‘legislative history demonstrates that non-

settling PRPs seeking intervention in order to undermine the consent decree and

protect their contribution interests were specifically intended to be exempted from

the coverage provided by section 113(i).’” Aplt. App. A-326 (quoting Acorn

Eng’g, 221 F.R.D. at 536). The court added that intervention in this case would

skew CERCLA’s early settlement incentives because it would delay the

government’s settlement with these 44 defendants. “That Union Pacific was

unable to reach a settlement does not now create a right to interfere in the

settlement reached by the other parties.” Aplt. App. A-327.

We recently reconsidered what interests are legally sufficient for

intervention as of right. In San Juan County, the en banc court said that the

interest requirement is “not a mechanical rule. It requires courts to exercise

judgment based on the specific circumstances of the case.” 503 F.3d at 1199. At

minimum, “[t]he applicant must have an interest that could be adversely affected

by the litigation. But practical judgment must be applied in determining whether

the strength of the interest and the potential risk of injury to that interest justify

intervention.” Id.

Subsequently, we applied San Juan County’s practical standard to economic

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interests. WildEarth Guardians, 573 F.3d at 995. In WildEarth Guardians, a mine

owner sought intervention as of right in an environmental group’s suit opposing

the Forest Service’s plans to vent methane gas from the owner’s mine. Id. at 994.

This court reversed the district court’s denial of intervention, based on the mine

owner’s economic stake in the litigation. “If WildEarth is successful in this

litigation, operation of the West Elk Mine will be impaired, or even halted.” Id.

at 995. We explained that “‘[t]he threat of economic injury from the outcome of

litigation undoubtedly gives a petitioner the requisite interest.’” Id. at 996

(quoting Utahns for Better Transp. v. U.S. Dep’t of Transp., 295 F.3d 1111, 1115

(10th Cir. 2002)).

Union Pacific argues that its statutory right to contribution under CERCLA

is a sufficient interest for intervention as of right. As noted, if the district court

approves the settlement, § 113(f)(2) of CERCLA would eliminate the settling

defendants’ contribution liability to Union Pacific. 42 U.S.C. § 9613(f)(2). In

the government’s separate suit against Union Pacific, it seeks to hold Union

Pacific jointly and severally liable for the entire $30 million in damages, offset by

the nearly $7 million in damages in the consent decree in this matter. Aplt. Br. at

23. If the court enters the consent decree, Union Pacific will not have an

opportunity to seek contribution from the settling defendants.

This court has never decided whether a non-settling PRP’s contribution

right under CERCLA is a legally sufficient interest for intervention in a consent

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decree with other settling defendants. However, Union Pacific points to another

circuit that has considered this question. Aplt. Br. at 27-28. In United States v.

Union Electric Co., the Eighth Circuit held that a non-settling PRP’s contribution

interest is “substantial and legally protectable.” 64 F.3d at 1166. The Eighth

Circuit concluded that these situations warrant intervention “precisely because §

113(f)(2) would cut off the interest established by § 113(f)(1) . . . .” Id. at 1166-

67. That potential harm “creates a direct and immediate interest on the part of the

non-settling PRPs in the subject matter of the litigation.” Id. at 1167. Further,

the Eighth Circuit rejected the argument put forth by the government and the

settling PRPs that a non-settling PRP’s contribution interest was “too contingent”

on a chain of events. Id. Rather, the interest is present and not dependent on any

future events: “[N]o finding of liability is required, nor assessment of excessive

liability, before the contribution interest arises. Only the recovery on a

contribution claim must await the outcome of this or further litigation, not the

right to bring such a claim.” Id. The potential intervenor needs only to be

“identified as a PRP to support intervention.” Id.

The government and the settling defendants offer four main arguments why

this court should find that Union Pacific’s interest in its CERCLA contribution

right is not legally sufficient for intervention as of right.

First, the government argues that contribution under § 113(f)(1) is a

“qualified right” that the statute makes unavailable against the settling

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defendants. Gov’t Br. at 18. The government argues that one must read

subsections (1) and (2) of § 113(f) as a whole “for a complete understanding of

the contribution right.” Gov’t Br. at 19. Because CERCLA itself circumscribes

the contribution right that it creates, the government claims, Union Pacific’s

contribution right has always been impaired. Gov’t Br. at 18-19. A district court

has applied this reasoning to find that CERCLA’s contribution right is not a

“direct, substantial, legally protectable interest.” United States v. Browning-

Ferris Indus. Chem. Servs., Inc., 1989 U.S. Dist. LEXIS 16596, at *8-9 (M.D. La.

Nov. 15, 1989). The Government correspondingly argues that Union Electric was

wrongly decided because the Eighth Circuit in that case did not consider whether

§ 113 limits the contribution right. Gov’t Br. at 35-38.

We read § 113(f) as a whole and find that a contribution right exists until

settlement with the government eliminates that right. That the statute, rather than

the settlement, impairs the right upon a certain event does not mean that Union

Pacific never has an interest in the underlying litigation. If anything, the fact of

statutory impairment means that approval of the consent decree will certainly

impair the right.

The government also applies its “qualified right” interpretation to claim

that a subsequent Eighth Circuit decision undermines Union Electric because the

court held that § 113(f)(1) is “at all times limited by” § 113(f)(2). Gov’t Br. at 19

(quoting United States v. BP Amoco, 277 F.3d 1012, 1015 (8th Cir. 2002)). BP

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Amoco in no way amended Union Electric’s holding that a non-settling PRP has a

sufficient interest for intervention as of right. In BP Amoco, a party that had

already intervened claimed that § 113(f)(2)’s contribution bar constituted an

unconstitutional taking. BP Amoco, 277 F.3d at 1017. But BP Amoco considered

a very different question: whether a vested property interest existed. Id. The

court found that the party lacked a vested property interest given the limitation of

§ 113(f)(2). Id. These tests are distinct. Of course, one claiming an economic

interest may lack a present, vested property interest for the purposes of

challenging a taking but still have a legally sufficient interest for intervention as

of right. BP Amoco presents that very situation: the district court allowed a non-

settling PRP to intervene in a proposed consent decree between the government

and settling PRPs. Id. at 1015. While the intervenor had a sufficient economic

interest to intervene, his contribution right had not vested into a property interest

for the government to take. Id. at 1017.

Second, the government and the settling defendants, like the district court,

argue that § 113(i) is ambiguous and that such ambiguity allows courts to

consider legislative history in interpreting that provision. Unsurprisingly, they

also claim CERCLA’s legislative history indicates that courts should deny

intervention as of right in this situation. Gov’t Br. at 21-38;

Defendants/Appellees’ Br. (“Aplees. Br.”) at 23-42. These arguments depend

heavily on the same district court case that the district court below used, Acorn

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Engineering, and clash with the Eighth Circuit’s decision to the contrary in Union

Electric.

“As we always do in cases requiring statutory construction, we begin with

the plain language of the law.” United Keetoowah Band of Cherokee Indians of

Okla. v. U.S. Dep’t of Hous. & Urban Dev., 567 F.3d 1235, 1241 (10th Cir. 2009)

(internal quotation marks and citation omitted). “We must assume that the

ordinary meaning of the words Congress uses conveys its intent. Furthermore,

where the language of the statute is plain, it is improper for this Court to consult

legislative history in determining congressional intent.” Id. (internal quotation

marks and citation omitted). We look to legislative history to construe a statute

only when its language is ambiguous.

Surprisingly, given their reliance on this argument, neither the government

nor the settling defendants identify precisely what language in § 113(i) is

ambiguous. The government points only to the conflicting case law as “prima

facie evidence that reasonably well-informed persons can differently interpret”

the provisions. Gov’t Br. at 22. In their brief, the settling defendants barely

improve upon the government’s circular reasoning. Their sole evidence of

ambiguity consists of Acorn Engineering’s determination that § 113(i) is facially

ambiguous. Aplee. Br. at 27 (excerpting Acorn Eng’g Co., 221 F.R.D. at 535-36).

The relevant portion of § 113(i) reads: “any person may intervene as a matter of

right when such person claims an interest relating to the subject of the action and

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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.” 42 U.S.C. § 9613(i).

Acorn Engineering acknowledged that “any person” is unambiguous, but

commented with respect to the rest of the subsection, “To say that this language is

‘plain’ on its face is nothing short of absurd.” However, beyond this conclusory

statement, the Acorn Engineering court failed to specify which word or words are

ambiguous.

The collective failure to identify the ambiguities in § 113 makes resorting

to legislative history problematic. Section 113(i) is clear: any intervenor must

have an interest in the ongoing litigation, such that the outcome of that case may

impair that interest. Although this language is very broad, a statute’s breadth

does not make it ambiguous.

What’s more, the legislative history put forth by the government and the

settling defendants does not convince us that Congress intended that non-settling

PRPs could not intervene. The Appellees point to proposed versions of the

Superfund Amendments and Reauthorization Act of 1986 (“SARA”), which

restricted Section 113(i) to persons claiming “a direct public health or

environmental interest” in the litigation. Aplees. Br. at 35; Gov’t Br. at 23-24

(citing H.R. Rep. No. 99-253(III), at 24 (1985), reprinted in 1986 U.S.C.C.A.N.

3038, 3047). Congress did not pass that bill, however. The law that Congress

passed does not contain the proposed limitation on intervention, which leads us to

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conclude that Congress intended the broad intervention right that it created. After

all, “[w]e must assume that the ordinary meaning of the words Congress uses

conveys its intent.” United Keetoowah Band, 567 F.3d at 1241. While Congress

may have primarily intended to extend the intervention right to those affected by

contamination, no language suggests an intent to prevent intervention by non-

settling PRPs. The decision in Acorn Engineering likewise provides no contrary

legislative history.

The government and the settling defendants also attempt to show a “general

legislative intent” in the text and legislative history of CERCLA and SARA to

encourage early settlement. Gov’t Br. at 28-29; Aplee. Br. at 28-30. If non-

settling PRPs could intervene in the action underlying the settlement between

other PRPs and the government, litigation expenses would increase and, so their

argument goes, settlement incentives would decrease. Gov’t Br. at 28. The

Appellees claim that the policy preference for early settlement forbids

intervention in this situation. Acorn Engineering used this same policy rationale

to justify its denial of intervention, 221 F.R.D. at 536-37, as did the district court

below. Aplt. App. at A-326 to A-327 (citing United States v. ABC Indus., 153

F.R.D. 603, 607 (W.D. Mich. 1993); Arizona v. Motorola, Inc., 139 F.R.D. 141,

146 (D. Ariz. 1991); United States v. Beazer East, Inc., Nos. 5:90 CV 1167, 5:90

CV 1168, 1991 WL 557609, at *3 (N.D. Ohio Mar. 6, 1991); United States v.

Mid-State Disposal, Inc., 131 F.R.D. 573 (W.D. Wis. 1990)).

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 This argument suffers from the same inadequacies as the more specific

appeal to legislative history. First, no ambiguity in § 113 opens the door to

legislative history. Second, the legislative history does not demonstrate

congressional intent against intervention by non-settling PRPs. Intervention can

be read consistently with a policy for prompt settlement:

[T]he incentive to prompt settlement in § 113(f)(2) remains intact; it
simply is not the sole purpose of § 113 taken as a whole. By its
terms, subsection 113(f)(1) provides for contribution, subsection
113(f)(2) provides for the termination of that interest as to settling
PRPs, and subsection 113(i) provides for intervention to protect that
and other interests of persons affected by the litigation.

Union Electric, 64 F.3d at 1166. A brief delay for the court to consider a non-

settling PRP’s interest is not inconsistent with a general goal of early settlement

and might actually result in decreased litigation costs.

More importantly, CERCLA specifically provides for, and therefore

contemplates, any delay caused by intervention. Reading CERCLA’s general

intent to encourage early settlement as always defeating intervention by non-

settling PRPs would require us to ignore § 113(i). Section 113(i) not only allows

intervention, but also requires intervention to be timely. Any delay is properly

considered under intervention’s timeliness requirement, instead of being confused

with the existence of an interest. This confusion has led the district courts cited

by the court below to deny intervention. See ABC Industries, 153 F.R.D. at 607

(“treating this interest as a ‘direct’ one would confer all nonsettling PRPs who are

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somehow financially affected by a de minimis settlement agreement the right to

intervene to a litigation at the time when it is almost at a close”) (emphasis

added); Motorola, 139 F.R.D. at 145 (quoting Beazer East, 1991 WL 557609, at

*4 (barring a non-settling PRP’s intervention because it could intervene at the last

moment, delay cleanup, and “effectively thwart the settlement process”)). But see

Mid-State Disposal, 131 F.R.D. at 576-77 (denying intervention because of

untimeliness and adequacy of public notice and comment). We cannot ignore

Congress’s balance between § 113(i) and early settlement, despite some district

courts’ willingness to the contrary. In addition, intervention as of right “may be

subject to appropriate conditions or restrictions responsive among other things to

the requirements of efficient conduct of the proceedings.” San Juan County, 503

F.3d at 1189; see also Beauregard, Inc. v. Sword Servs., LLC, 107 F.3d 351, 352-

53 (5th Cir. 1997) (“It is now a firmly established principle that reasonable

conditions may be imposed even upon one who intervenes as of right.”). The

district court has the ability to lessen any potential delay by denying discovery or

by denying an evidentiary hearing. See Motorola, 139 F.R.D. at 148 (denying

discovery in settlement matter); Dravo Corp. v. Zuber, 804 F. Supp. 1182, 1187

(D. Neb. 1992) (same); United States v. Union Electric, 132 F.3d 422, 430 (8th

Cir. 1997) (denying evidentiary hearing); BP Amoco, 277 F.3d at 1017 (district

court denial of discovery did not abuse discretion where intervenor had a

“meaningful and sufficient opportunity to present arguments and submit evidence

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in opposition”); United States v. Cannons Eng’g Corp., 899 F.2d 79, 94 (1st Cir.

1990) (no abuse of discretion where intervenor had opportunity to argue fully the

issues and did not advise court of particular matter requiring live testimony).

Congress’s overall legislative goals support intervention in this situation.

Congress designed CERCLA to promote both “timely cleanup . . . and to ensure

that the costs of such cleanup efforts were borne by those responsible for the

contamination.” Burlington N. & Santa Fe. Ry. Co. v. United States, 129 S. Ct.

1870, 1874 (2009) (internal quotation marks and citations omitted). Allowing

intervention furthers the latter of those goals because Union Pacific will have the

opportunity to argue that the consent decree will result in it paying more than its

fair share of the cleanup costs. In this case, intervention is consistent with a

timely cleanup because the government has already remedied the hazardous waste

at the Double Eagle site. Although certainly not dispositive, any delay at this

stage only postpones the allocation of costs and does not endanger the public

health. In sum, the legislative history simply does not support the argument that

Congress intended to foreclose intervention by non-settling PRPs.

The third main argument against intervention is that Union Pacific’s

interest in its contribution right is “too remote, speculative and contingent to

warrant intervention.” Gov’t Br. at 44-46; see also Aplee. Br. at 50-52. To

recover contribution from the settling defendants, Union Pacific must first be

found liable in the separate suit, be held liable for a disproportionate share of the

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cleanup costs, and then establish the settling defendants’ liability. Gov’t Br. at

44-45.

That causal chain might be too attenuated for intervention as of right if

Union Pacific sought to protect some specific dollar value that it might obtain

from the settling defendants. But Union Pacific seeks to protect a substantive

right that currently exists: the statutory right to seek contribution from the settling

defendants. CERCLA allows any PRP to bring contribution claims against other

PRPs before it is held liable. 42 U.S.C. § 9613(f)(1); Union Electric, 64 F.3d at

1167 (“[N]o finding of liability is required, nor assessment of excessive liability,

before the contribution interest arises.”).

Fourth, the settling defendants argue that Union Pacific’s lack of

participation in settlement negotiations supports denial. Aplee. Br. at 42-43. If

non-settling PRPs could intervene in consent decree approval actions, so the

argument goes, “they could effectively hold hostage the efforts of the government

in effectuating the stated purpose of CERCLA.” Aplee. Br. at 42. The district

court below similarly stated, “Here, Union Pacific was invited to participate in the

settlement negotiations. That Union Pacific was unable to reach a settlement does

not now create a right to interfere in the settlement reached by the other parties.”

Aplt. App. at A-327.

The converse is actually more accurate: that Union Pacific did not settle

does not diminish its right to intervene. Union Pacific’s decision not to settle is

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not relevant to the existence of its interest in this litigation. Union Pacific could

intervene in this action only when the other parties settled and the government

filed the lawsuit and proposed consent decree. Union Pacific moved to intervene

in this suit in a timely manner. Its strategic decision not to settle before the

government brought this suit does not damage its interest in the suit or its right to

intervene.

None of the arguments dissuade us that Union Pacific has an interest

legally sufficient for intervention as of right. Union Pacific has a present right to

pursue the settling defendants, as fellow PRPs, for contribution. That

contribution right is “an interest relating to the subject of” the underlying action,

as required by both Rule 24(a)(2) and § 113(i) of CERCLA. This interest is

sufficient under San Juan County, which only looks to see whether the potential

intervenor’s interest could be adversely affected by the litigation. 503 F.3d at

1199. San Juan County requires the court to weigh the strength of Union

Pacific’s interest and the potential risk of injury. Id. Both point toward

intervention. The government seeks to hold Union Pacific liable for the full cost

of cleanup, minus the offset from the proposed settlement, a total of about $23

million. The statute recognizes an important interest in seeking contribution to

share that burden. The risk of injury is great because judicial approval will

automatically cut off the right to seek contribution from the settling defendants as

PRP’s. WildEarth Guardians also supports this analysis because the “threat of

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economic injury from the outcome of litigation undoubtedly gives a petitioner the

requisite interest.” 573 F.3d at 996 (internal quotation marks and citations

omitted). An interest in preventing an economic injury is certainly sufficient for

intervention as of right.

3. Impairment of Interest

We next examine whether the disposition of this action may impair or

impede Union Pacific’s ability to protect its interest, its statutory right to seek

contribution. Given the nature of Union Pacific’s contribution right, the

disposition of this action will likely bar Union Pacific from protecting its interest

vis-a-vis these settling defendants. By CERCLA’s terms, a settling party “shall

not be liable for claims for contribution regarding matters addressed in the

settlement.” 42 U.S.C. § 9613(f)(2). Here, the consent decree directly addresses

the liability of the settling defendants as to the cleanup of the Double Eagle site.

If the court approves the consent decree, Union Pacific will be barred from

seeking contribution from any of the settling defendants if Union Pacific is later

found liable in its own action with the government. Therefore, as a practical

matter, Union Pacific’s interest may be impeded by the disposition of the case.

The government argues that denial of intervention will minimally affect

Union Pacific because intervention will give Union Pacific only the ability to

brief the court as a party, not to veto the settlement. Gov’t Br. at 39. This

argument misstates the purpose and requirements of intervention as of right.

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Although the court may ultimately decide against Union Pacific and still

extinguish its contribution right (as to the settling defendants) by approving the

settlement, that does not make Union Pacific any less interested or its interest any

less impaired by the disposition of the case. “Allowing Union Pacific to

intervene does not mean that it can veto the settlement. Union Pacific is only

asking for a ‘seat at the table and an opportunity to speak its piece.’ The district

court can still approve the consent decree if it finds that the settlement is

reasonable, fair and consistent with CERCLA.” Aplt. Br. at 46 (quoting United

States v. ExxonMobil Corp., C.A. No. 1:07-cv-00060, 2007 WL 4563490, at *5

(D.N.H. Dec. 20, 2007)). Thus, while Union Pacific is not guaranteed a victory

and the district court may, in the appropriate use of its discretion, deny discovery

or an evidentiary hearing, Union Pacific may fully participate as a party in the

litigation. See San Juan County, 503 F.3d at 1209 (Kelly, J., concurring)

(“[Intervenors] are given the opportunity to make arguments, present evidence,

register objections, and appeal adverse decisions.”).

The notice-and-comment mechanism is not an adequate substitute for

intervention, contrary to the government’s claims. Gov’t Br. at 39. The

government solicits comments regarding proposed consent decrees as a matter of

practice. Gov’t Br. at 11 n.6. Union Pacific submitted comments to the Attorney

General within the comment period, and the Department of Justice will file them

with the district court. Id. As Judge Lucero observed during oral arguments,

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however, the government is free to ignore the comments because the notice-and-

comment mechanism is not statutorily mandated. The district court may also

disregard Union Pacific’s comments in the absence of any requirement to consider

them or any appellate review of the court’s consideration of comments. The

failure to consider adequately an intervenor’s objections, on the other hand, is

subject to appellate review. San Juan County, 503 F.3d at 1209 (Kelly, J.,

concurring). For these reasons, Union Pacific’s ability to protect its interests will

be impaired if it is not a party to this action.

4. Adequate Representation

The final requirement for intervention as of right is that Union Pacific’s

interests are not adequately represented by the existing parties. As noted above,

in the CERCLA context, the burden rests with the government to demonstrate that

Union Pacific’s interests are sufficiently represented. See 42 U.S.C. § 9613(i).

The government admits that it does not adequately represent Union Pacific’s

interests. Gov’t Br. 16 n.7. Because the parties to this appeal do not dispute this

requirement, it favors intervention as of right.

Because Union Pacific has demonstrated all four requirements for

intervention as of right—timeliness, interest, impairment, and inadequate

representation— the district court erred in denying the motion for intervention as

of right, and on remand Union Pacific shall be allowed to intervene. Because we

find that Union Pacific has a right to intervene, we do not reach the district

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court’s denial of the motion for permissive intervention.

REVERSED and REMANDED. All pending motions are DENIED.

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