United States of America et al v. Atlantic Richfield Company et al

Filing 59

OPINION AND ORDER: The Court DENIES the applicants' Motion to Intervene 15 . The Magistrate Judge's Opinion 34 is AFFIRMED, and the applicants' objection to the Magistrate Judges Opinion and Order 35 is DENIED. Signed by Judge Philip P Simon on 2/9/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

UNITED STATES OF AMERICA and
STATE OF INDIANA,
Plaintiffs,
v.
ATLANTIC RICHFIELD COMPANY
and E.I. DU PONT DE NEMOURS AND
COMPANY,

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NO. 2:14CV312-PPS/PRC

Defendants.

OPINION AND ORDER
This case concerns the Environmental Protection Agency’s longstanding efforts
to clean up a number of residential areas of East Chicago, Indiana that, for decades,
have been known to be polluted by the defendants, Atlantic Richfield Company and E.I.
Du Pont De Nemours and Company. In the fall of 2014, the United States and the State
of Indiana brought this action and simultaneously filed a Consent Decree. After holding
a hearing on the proposed decree, I decided that it was fair and reasonable, approved
the Consent Decree and promptly closed the case. Two years went by, and work began
on the clean up of the affected areas. But somewhere along the way, a group of citizens
became understandably frustrated with the lack of progress being made by the EPA.
This frustration was borne out of the news that some citizens would have to evacuate
their homes due to contamination levels more severe than previously thought.

Those citizens, along with a community group they have formed, sought to
intervene in this lawsuit. The matter was initially handled by Magistrate Judge Cherry
who denied the motion to intervene as untimely since it came more than two years after
the case was closed. The would-be intervenors now seek review of Judge Cherry’s
decision. While I am sympathetic to the concerns of the citizens who seek better action
from their government, and particularly from the EPA, ultimately, I agree with Judge
Cherry. Intervention in a case that has been closed for two years, and where there are
settled expectations by the parties, strikes me as a dubious proposition. So I will affirm
Judge Cherry’s decision and therefore deny the motion to intervene.
Background
It is not hyperbole to say that this case involves nothing short of an
environmental catastrophe. The history of the case is lengthy and complicated. For our
purposes, the relevant part of the story begins in 2009, when residential areas in East
Chicago, Indiana were added to what’s known as the Superfund’s National Priorities
List, signaling that the area was contaminated and that the contamination posed a risk
to residents’ health. There are two affected areas: the EPA gives them the monikers
“OU-1” and “OU-2.” OU-1 is in turn divided into three zones. Zone 1 has a large
housing project (soon to be razed) and a now shuttered elementary school in it. Zones 2
and 3 are primarily residential neighborhoods with single family homes and thousands
of residents. Appended to this Opinion is a map of the affected area. [See also DE 50-5 at
2.]

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For reasons that are not entirely clear to me, this case only involves Zone 1 and
Zone 3 of OU-1. Zone 2 of OU-1 and the entirety of OU-2 are simply not part of this
case. I was told at oral argument that the clean up of those areas is being handled
through an EPA administrative process that is somewhat opaque to me. [See DE 53 at
35-36.] I further was told that Zone 2 was left out of this case and the resulting Consent
Decree because “of the time-critical nature of some of the work” to be done there. [Id. at
36.] I’m not quite sure what that means. I would think all of the work is “time-critical.”
The bottom line is that the remedial work being contemplated or actually done in Zone
2 is simply not part of this case.
In any event, the placement of the affected areas on the National Priorities List
triggered the EPA’s duty to investigate, select, and execute a remediation plan for the
area under the Comprehensive Environmental Response, Compensation, and Liability
Act, commonly referred to as “CERCLA.” 42 U.S.C. § 9601 et. seq. In this case, the EPA
refers to the affected area of East Chicago as the “USS Lead Superfund Site.” I’ll just
refer to it as the Site.
After placing the Site on the National Priorities List in 2009, three years went by.
Finally, in November 2012, the EPA announced its proposed plan for the cleanup of the
Site and invited the public to comment on the proposed plan – for a period of 60 days –
before the final remedy was selected. The EPA also held a public meeting on July 25,
2012 to discuss the cleanup process. After all the study, and taking into account the
public hearing and comments that were received, the EPA formally selected a remedy

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based on the full administrative record, and issued a document known as the Record of
Decision. The Record of Decision serves essentially as a blueprint for the cleanup
process. See https://www.epa.gov/superfund/record-decision-rod-guidance.
Although the Record of Decision relates to the entirety of OU-1, to repeat, this case and
the resulting consent decree only involve Zone 1 and Zone 3 of OU-1. [DE 2-1 at 10-11.]
On September 3, 2014, the United States and the State of Indiana filed a
complaint in federal court against defendants Atlantic Richfield and Dupont and, on the
same day, filed a Notice of Lodging of Proposed Consent Decree. The government
published the proposed Consent Decree in the Federal Register, commencing the
required 30-day period for public comments. On October 28, 2014, I held a hearing
regarding the Consent Decree. [DE 10.] At the hearing, I was particularly interested in
why Zone 2 was being excluded from the litigation and counsel for the government told
me that the cleanup of Zone 2 would be handled in the “second phase” of the process.
[DE 12 at 4.] I was satisfied that the Consent Decree was fair, reasonable and in the
public interest so I approved it, entered judgment and the case was closed that day. [DE
8-1, 9.] Since entering judgment, the only action in this case has been the government’s
status report, filed in September 2016. [DE 11.]
Although the case has been closed, the cleanup efforts have been ongoing,
though, as the applicants have alleged, not entirely smoothly. In July 2016, the East
Chicago Housing Authority informed residents of the West Calumet Housing Complex
that soil testing had revealed extremely high levels of contaminants in the soil. The East

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Chicago Housing Authority decided to demolish the public housing complex, and it
gave residents 60 to 90 days to move out. Since being notified of the East Chicago
Housing Authority’s plans, every resident of the housing complex has been relocated.
This alarm bell, and other purported delays, prompted the applicants to file this motion
to intervene on November 1, 2016. Magistrate Judge Cherry denied the motion, and the
applicants objected, seeking review of that decision. I held an oral argument on the
issue, in which I heard from the applicants and the government, as well as the original
defendants, who agree with the government that intervention is not warranted.
Discussion
There is an initial kerfuffle in this case as to what the proper standard of review
is. The applicants cite 28 U.S.C. § 636(b)(1)(C), which provides that my review of a
magistrate judge’s proposed findings and recommendations of certain types of motions
is de novo. But in this case, the Magistrate Judge’s decision was not a proposed finding
or recommendation. The types of motions subject to de novo review are specified in
§ 636(b)(1)(A), which allows district court judges to “designate a magistrate judge to
hear and determine any pretrial matter pending before the court,” except for what are
essentially dispositive motions. Although a magistrate judge cannot be designated to
hear and determine dispositive motions, a judge may designate a magistrate judge to
issue proposed findings of fact and recommendations for the disposition of those
motions. Those decisions are subject to de novo review by district judges.

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Here, the motion to intervene decided by Magistrate Judge Cherry is not one of
those specified motions that he wasn’t permitted to “hear and determine.” So
§ 636(b)(1)(A) seemingly applies, and therefore I “may reconsider any pretrial matter ...
where it has been shown that the magistrate judge’s order is clearly erroneous or
contrary to law.” Federal Rule of Civil Procedure 72 speaks more broadly than
§ 636(b)(1)(A). It says that Magistrate Judges cannot decide matters that are “dispositive
of a party’s claim.” For starters, it is questionable whether a would-be intervenor is a
“party” under Rule 72. On the other hand, certainly nothing could be more dispositive
to the citizens who are trying to intervene in this case than being told by the Magistrate
Judge that they can’t. At least one district court has held that because a motion to
intervene is a final appealable order, the District Court Judge’s review of the Magistrate
Judge’s opinion must be de novo. Ind. Petroleum Marketers & Convenience Store Ass’n v.
Huskey, 2014 WL 496825, at *2 (S.D. Ind. Feb. 6, 2014) (citing Reich v. ABC/York-Estes
Corp., 64 F.3d 316, 321 (7th Cir. 1995)).
I will side-step the issue of whether the review is de novo or for clear error in this
case because the standard of review does not affect the decision. Whether I am
reviewing Judge Cherry’s opinion de novo or under the clear error standard, my
conclusion is the same. Intervention is improper under the facts of this case.
Intervention
Applicants seek to intervene in this matter via three avenues: Rules 24(a) and
24(b) of the Federal Rules of Civil Procedure and § 113(i) of CERCLA. Under Rule

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24(a), applicants must demonstrate that: (1) the application is timely; (2) the applicants
have an interest relating to the property or transaction that is the subject of the action;
(3) the disposition of the action may impair or impede the applicants’ ability to protect
that interest; and (4) no existing party adequately represents the applicants’ interest.
Fed. R. Civ. P. 24(a); Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 640, 657 (7th Cir.
2013).
Section 113(i) of CERCLA provides a right to intervene in almost identical terms:
[A]ny 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 in these two provisions is that, under CERCLA,
the burden for meeting the fourth factor – that no existing party adequately represents
the applicants’ interest – is the government’s burden, not the applicants’. In the
alternative, the applicants seek to intervene under Rule 24(b), which governs permissive
intervention. Rule 24(b) provides that “[o]n a timely motion, the court may permit
anyone to intervene who ... has a claim or defense that shares with the main action a
common question of law or fact.”
Both CERCLA and Rule 24 require that the application be timely, “a
determination to be made from all the circumstances.” City of Bloomington, Ind. v.
Westinghouse Elec. Corp., 824 F.2d 531, 534 (7th Cir. 1987). This is hardly a binary
inquiry. Instead, as is true in a lot of areas of the law, it involves digesting various bits
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of information and arriving at a reasonable conclusion based on things like “the length
of time the intervenor knew or should have known of her or his interest in the case; the
extent of the prejudice to the original litigating parties from the intervenor’s delay; the
extent of prejudice to the would-be intervenor if her or his motion is denied; and any
usual circumstances.” Id. (quoting United States v. Kemper Money Mkt. Fund, Inc., 704
F.2d 389 (7th Cir. 1983)). As this quote from the Seventh Circuit suggests, it’s a rather
fuzzy inquiry.
The Magistrate Judge found that the motion to intervene was not timely because
the applicants first learned of their interest in this matter in July 2012, when they
received notice of the proposed cleanup plan prior to a public meeting. They had
further notice of the Consent Decree and this litigation in September 2014, when the
Consent Decree was published in the Federal Register, the EPA and Department of
Justice issued a press release summarizing the Consent Decree, a copy was mailed to
residents, and a local newspaper ran an article about the Consent Decree. The
Magistrate Judge also analyzed the prejudice to the applicants and the existing parties
and found that both weighed in favor of finding the motion untimely. Lastly, the
Magistrate Judge found that no unusual circumstances outweighed the other timeliness
factors.
The applicants raise four objections to the Magistrate Judge’s conclusions. They
argue that the opinion starts the timeliness clock with notices that pre-date the actual
lawsuit by two years; the opinion misconstrues the actual prejudice to the existing

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parties; the opinion conflates the “prejudice to the applicants” factor with the “length of
time the applicants knew of their interest” factor; and finally that unusual
circumstances warrant intervention at this time. I disagree. Applying the less
deferential de novo standard of review, I independently find that the Magistrate Judge’s
conclusions are correct.
First, this case had been closed for more than two years when the applicants
sought to intervene. Prior to the filing of the complaint, the EPA engaged in extensive
efforts to inform the citizens of the affected areas about the hazards and clean up and to
solicit public comments since at least 2012. In July 2012, the EPA announced its
proposed plan for the cleanup of the site and held a public meeting on July 25, 2012. The
EPA advertised the public meeting in local English and Spanish-language newspapers
and kept a copy of the proposed plan at the public library. [DE 24-4 at 12.] Even more to
the point, before the meeting, the EPA mailed to every resident living within two miles
of the Site a copy of the proposed plan. At the meeting, 42 people attended, including 15
residents, the East Chicago Mayor, and local news organizations. [DE 24-4 at 12.] Those
in attendance provided oral comments on the proposed plan. The EPA also received
written comments from both private citizens and parties that were potentially
financially responsible for the cleanup. [DE 24-2 at 10-11.]
All of the public outreach described above occurred before this case was
initiated. But considerable outreach has taken place since as well. The complaint in this
case was filed September 3, 2014. [DE 1.] On the same day, the government also filed

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the proposed Consent Decree. [DE 2.] Notice of the lodging of the Consent Decree was
published in the publicly available Federal Register, 79 Fed. Reg. 53,447 (Sept. 9, 2014).
[DE 4 at 2-3.] Moreover, the EPA and the Department of Justice issued a press release
summarizing the substance of the Consent Decree, and a local newspaper ran an article
about the Consent Decree. [DE 24-2 at 15, 98-100, 101-03.] After I accepted the parties’
Consent Decree, there were two additional public information sessions held to discuss
the cleanup activities. [DE 24-4 at 14.] Since that time, the EPA has engaged with
residents as part of their efforts to test and clean up the contamination. [See generally DE
24-4 at 14-16.]
The applicants raise a few issues with the Magistrate Judge’s conclusions on this
point: they attack the form of notice; they fault the Magistrate Judge for starting the
clock two years too early; and they claim that the severity of the problem just became
known to them. As to the form of notice, they argue that most residents disregarded
these public mailings and announcements and that the publication of the Consent
Decree via publication in the Federal Register, the EPA’s press release, and one
newspaper is too remote. To which I ask, what more could have been done by way of
notice? Short of going door to door and personally telling each resident about the
environmental hazard and the proposed remediation plan, it is difficult to imagine
more effective notice. So I can’t be as dismissive of the EPA’s efforts as the applicants
are: mailed notices, public meetings, and public court filings were sufficient in this case
to put the applicants on notice that their rights might be impaired, especially

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considering that several residents did submit comments on the proposed plan and
attended the July 25, 2012 public meeting. [DE 24-2 at 10.]
Applicants also argue that it was not until recently that they learned of the
severity of the contamination at their particular properties. But the precise nature of the
impact to their interests isn’t what matters. Instead, my inquiry turns on how long the
applicants knew or should have known that the litigation could impact their interests.
See Heartwood, Inc. v. U.S. Forest Serv., Inc., 316 F.3d 694, 701 (7th Cir. 2003) (“A
prospective intervenor must move promptly to intervene as soon as it knows or has
reason to know that its interests might be adversely affected by the outcome of the
litigation.”) (emphasis added). In other words, it isn’t about how bad the impact is; it’s
about whether there might be an adverse impact at all.
The applicants also argue that the Magistrate Judge’s opinion starts the
timeliness clock before the litigation even began. But this argument ignores the
Magistrate Judge’s next conclusion: the applicants had notice that their rights might be
impaired by this litigation when the proposed Consent Decree was filed with the Court,
published in the Federal Register, and summarized in EPA and Department of Justice
press releases, and again when the final Consent Decree was accepted, mailed to
residents, and discussed in the local newspaper. Yet, they still waited two years to
intervene.
I will admit that pointing to the citizens’ lack of timely action seems a bit unfair.
The irony of the situation is not lost on me. The defendants in this case (or their

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predecessor companies) polluted the areas in East Chicago going all the way back to the
year 1900. What’s more, the EPA has known of the environmental harm in the affected
areas for several decades but only relatively recently took action to begin to ameliorate
the problem. For the citizens to now be told that they are the ones that are too late is
probably a little hard to swallow. But for better or worse, the case law regarding
intervention is clear, and the constraints that apply to would-be intervenors simply are
not the same as those that apply to the government in addressing environmental issues.
Therefore, given the lengthy delay, this factor weighs heavily in favor of finding the
motion untimely.
The prejudice to the original litigating parties also favors finding the motion
untimely. The EPA and the defendants have been operating under the Consent Decree
in this case for well over three years. They have settled expectations. This timeliness
factor “insures that existing parties to the litigation are not prejudiced by the failure of
would-be intervenors to act in a timely fashion.” City of Bloomington, 824 F.2d at 535
(quoting Garrity v. Gallen, 697 F.2d 452, 455 (1st Cir. 1983)). The Magistrate Judge found
that intervention here would be highly prejudicial to the existing parties, who have
already “negotiated, settled, and obtained judgment in this case.” Magistrate Judge Op.
at 6. The Magistrate Judge further found that intervention could potentially endanger
public health by delaying the EPA’s cleanup process. Id. at 6-7.
Here, the parties engaged in extensive negotiations to finalize the Consent
Decree, which is both complex and comprehensive. Final judgment has been entered,

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and the case has been closed for three years. The EPA has already begun its cleanup
activities, including taking thousands of samples from residences’ yards and cleaning
properties, and the defendants have already made substantial payments in funding
these activities. Under similar circumstances, where a settlement had already been
reached months or years prior, courts have had no trouble concluding that motions to
intervene were untimely. See, e.g., NAACP v. New York, 413 U.S. 345, 367 (1973) (motion
to intervene filed three months after the suit had been initiated, and after a motion for
summary judgment, was untimely); City of Bloomington, 824 F.2d at 535 (eleven-month
delay “clearly establishes” the motion was untimely); United Nuclear Corp. v. Cannon,
696 F.2d 141 (1st Cir. 1982) (seven and a half months was untimely).
It is also a little hard to conceive what intervention at this point would look like.
For example, what precisely would the EPA have to do to satisfy the interests of the
intervenors? There are thousands of residents in the affected areas. What if they are
demanding different approaches to an issue? Adding to the prejudice component,
intervention would result in additional burdens being placed on the government,
including the requirement to provide the intervenors with progress reports, endowing
the intervenors with alternative dispute resolution rights under the Consent Decree,
and providing a mechanism to enforce a settlement that they did not negotiate.
Moreover, as the Magistrate Judge correctly found, there would be little, if any,
prejudice to the intervenors at this point in the litigation because they have had ample
opportunity to provide input in this matter. As previously explained, notice of the

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lodging of the Consent Decree was published in the Federal Register, providing a thirtyday period in which members of the public, including the applicants, could submit
comments. [DE 4 at 2-3.] Several public meetings were also held in which members of
the public could raise their concerns. The applicants continue to have other avenues
available to them in order to have their voices heard, whether through Community
Advisory Groups or direct contact with EPA employees. Indeed, the government has
substantially increased its outreach to the community affected by the cleanup efforts.
[DE 53 at 24.]
The applicants claim that the Magistrate Judge conflated this analysis with the
length of time they knew of their interest in the matter. I discern no such mistake.
Rather, the prior opportunities to submit their views to the court and to the
government, and the future opportunities to do so, are what persuade me to find that
there would be no prejudice to the applicants. See City of Bloomington, 824 F.2d at 537
(finding that there was no prejudice to the would-be intervenors because they had
already been afforded an opportunity to present their views to the court).
The applicants also point to several “unusual circumstances” that they argue
support finding the motion is timely. This factor allows would-be intervenors to
advance a convincing justification for their tardiness that could militate in favor of
finding the motion timely. See id. First, the applicants claim that the notices were
inadequate as written and that the notices did not capture the extent or severity of the
contamination at the site. But this is a Superfund site. By the very nature of this

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designation, the extent of the contamination is severe. The fact that it may be more
severe than first thought doesn’t change the analysis. As previously explained, I do not
believe that the notices were inadequate. And in any event, as I see it, the timeliness
clock starts when the applicants learn their interests might be impaired – not when they
learn how severely. The applicants argue that they are part of an environmental justice
community that the EPA failed to protect. Although the applicants are part of an
environmental justice community, they point to no case law suggesting that this fact is
enough to overcome the other considerations.
Finally, the applicants point to the status report filed on September 2, 2016,
which indicates that the EPA is reexamining the chosen remedy for Zone 1, the area
where the East Chicago Housing Authority previously had a public housing complex.
[DE 11 at 3-4.] As noted above, the residents have already been relocated from the
housing complex and the housing authority plans on demolishing it. It is true that this
change in circumstances may lead to the Record of Decision being modified and so too
the Consent Decree. Under the terms of the Consent Decree, material modifications
must be agreed to by the United States and the settling defendants and “shall be
effective upon approval by the Court.” [DE 8 at 56.] Thus, any modification that
“fundamentally alters the basic features of the selected remedy,” i.e., a material
modification, requires the government to seek and obtain my approval. The EPA has
also represented that any material modification would have to go through notice and
comment before becoming effective. See generally 42 U.S.C. §§ 9622(d)(2), 9617(a)

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(requiring notice and comment “before adoption of any plan for remedial action” under
CERCLA). The government confirmed that the situation affecting the East Chicago
Housing Authority complex will likely present a material modification of the selected
remedy, which would require the government to request approval from this Court. [DE
53 at 47-48.]
At oral argument, I asked the government lawyer whether, if a major
modification to the Consent Decree occurred and required court approval, would the
applicants be given another opportunity to intervene at that time. The lawyer replied
that it would and even conceded that government’s timeliness argument would likely
go out the window in that circumstance. [DE 53 at 53.] That’s not to say that
intervention would necessarily be proper at that time. The government would still be
able to contend that they are adequately representing the interests of the would-be
intervenors and that intervention, even at that time, might run head long into CERCLA
§ 113(h) which prohibits intervention while the remediation is ongoing. See 42 U.S.C.
§ 9613(h); see also Pollack v. U.S. Dep’t of Def., 507 F.3d 522, 525 (7th Cir. 2007) (“[C]ourts
generally may not review challenges to CERCLA cleanup efforts ... but they may review
such challenges when brought in citizen suits-so long as the citizen litigants wait until
the cleanup is done before suing.”). All of this is neither here nor there at this point
because, as Magistrate Judge Cherry observed, there is no pending request to modify
the Consent Decree, and the mere chance that it may be modified is not enough to
warrant overriding the other three factors that weigh so heavily in favor of

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untimeliness. So I will cross that bridge when we get there. If a major modification is
done to the Record of Decision and the parties seek to modify the Consent Decree as a
result, then I can consider an intervention motion at that time anew.
The applicants are understandably frustrated with the slow pace at which the
cleanup process has occurred. The government has known about these risks for a long,
long time. But the government and the defendants have been in agreement on the
remedy for over three years at this point. I agree with the Magistrate Judge that the
applicants’ motion to intervene is untimely. Because the motion is untimely, the
applicants’ motion to intervene under Rule 24(a), Rule 24(b), or CERCLA must be
denied. People Who Care v. Rockford Bd. of Ed., 68 F.3d 172, 179 (7th Cir. 1995) (an
untimely motion to intervene must be denied). Although their motion to intervene is
denied, I am optimistic that the residents of East Chicago will have their voices heard
and their input considered, since the government represented to this Court that its
“door remains open.” [DE 24 at 9.]
Based on the foregoing, the Court DENIES the applicants’ Motion to Intervene
[DE 15]. The Magistrate Judge’s Opinion [DE 34] is AFFIRMED, and the applicants’
objection to the Magistrate Judge’s Opinion and Order [DE 35] is DENIED.
SO ORDERED.
ENTERED: February 9, 2018.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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OU-1
OU-2

US SMELTER & LEAD REFINERY
LAKE COUNTY, EAST CHICAGO, INDIANA

USS Lead Operable Units
Monday, December 18, 2017

1.16.2018

1

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Referred to in 1.16.2018 Oral Argument