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District of Columbia v. Potomac Electric Power Company

December 1, 2011

DISTRICT OF COLUMBIA, PLAINTIFF,
v.
POTOMAC ELECTRIC POWER COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Beryl A. Howell United States District Judge

MEMORANDUM OPINION

The District of Columbia brought this action against Pepco, a power generation company, pursuant to federal and D.C. environmental statutes. The District alleges that, between 1985 and 2003, there were six documented releases of toxic polychlorinated biphenyls ("PCBs") at a Pepco facility located at 3400 Benning Road, N.E., Washington, D.C. The District alleges that, over time, these environmentally damaging PCBs have seeped into sediment of the Anacostia River. The District and Pepco have reached a settlement that calls for Pepco to conduct a Remedial Investigation and Feasibility Study as the initial step in remedying the contamination. The parties have moved the Court to enter a consent decree that memorializes their settlement. Three environmental organizations -- the National Resources Defense Council, the Anacostia River-keeper, and the Anacostia Watershed Society -- have moved to intervene in this action or, in the alternative, for leave to participate as amici curiae. These organizations oppose entry of the consent decree in its current form. For the reasons explained below, the Court denies the motion to intervene but grants the proposed intervenors' request for leave to participate as amici curiae. In addition, the Court approves entry of the consent decree upon certain conditions outlined below.

I.BACKGROUND

The District of Columbia, through the District Department of the Environment (the "District," "DDOE," or the "plaintiff"), filed the Complaint in this action on February 1, 2011 against Potomac Electric Power Company and Pepco Energy Services, Inc. (collectively, "Pepco" or the "defendant"). Compl. at 1. The Complaint alleges claims under Section 7002(a)(1)(B) of the Resource Conservation and Recovery Act ("RCRA"), under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), and under Section 401(a)(2) of the District of Columbia Brownfield Revitalization Act of 2000 ("DCBRA"). Compl. ¶ 1.

Pepco and its affiliated companies constitute one of the largest energy delivery companies in the mid-Atlantic region. Id. ¶ 2. The plaintiff alleges that from 1985 to 2003 six documented releases of toxic PCBs occurred at Pepco's facility at 3400 Benning Road, N.E., Washington, D.C. (the "Facility"). Id.¶ 4. The Complaint alleges that these PCBs have migrated into the sediment of the Anacostia River via the storm water system, overland flow, or groundwater discharge. Id. PCBs meet the definition of solid waste under RCRA and a hazardous substance under CERCLA and DCBRA. Id. Thus, the plaintiff alleges that "Pepco's discharge of PCBs into the Anacostia has contributed to conditions which may pose an imminent and substantial endangerment to aquatic life in the Anacostia River, and to human health." Id. The plaintiff alleges that the "conditions at the Facility result from Pepco's generation, management and disposal of hazardous substances, and Pepco, as a 'generator,' may be liable for the costs of abating such conditions." Id.

The plaintiff and Pepco have reached a settlement pursuant to which Pepco has agreed to conduct a remedial investigation and feasibility study ("RI/FS") to study the conditions at the Facility and the adjacent areas of the river, to determine the link between the Facility and the PCBs in the river, and to assess clean-up options. The parties have memorialized this agreement in a proposed consent decree. The proposed consent decree was originally published for public comment on February 4, 2011, shortly after this action was filed. Pl.'s Mem. in Supp. of Pl.'s Mot. To Enter Consent Decree, ECF No. 24-1, at 1. On March 11, 2011, the plaintiff received comments on the proposed consent decree from the Natural Resources Defense Council, the Anacostia Watershed Society, and the Anacostia Riverkeeper. Id. at 1-2. On April 26, 2011, these three organizations (the "proposed intervenors") filed a motion to intervene as plaintiffs in this action. ECF No. 2.

The District considered the proposed intervenors' comments on the proposed consent decree and prepared a detailed written response. Pl.'s Mem. in Supp. of Pl.'s Mot. to Enter Consent Decree at 2. The District then revised the consent decree, including by incorporating some of the proposed intervenors critiques, and negotiated the revisions with Pepco. Id. The parties executed the revised consent decree on July 29, 2011 and filed it with the Court on August 17, 2011. Id.; see ECF No. 22.

The plaintiff has moved for the revised proposed consent decree to be entered. The proposed intervenors seek to intervene in this action and oppose entry of the consent decree. The plaintiff and Pepco oppose the motion to intervene. These motions are presently before the Court.

On November 22, 2011, the Court held oral argument on the motion to intervene and the motion to enter the consent decree. The proposed intervenors fully participated in oral argument on both motions. Following oral argument, the Court took the motions under advisement, but issued a Minute Order requesting that the parties submit a proposed order for entry of the consent decree. See Minute Order dated Nov. 22, 2011. The Court directed that the proposed order should indicate that acceptance of the proposed consent decree is contingent on two supplementary requirements relating to (1) ensuring public participation and access to information regarding the RI/FS and (2) providing the Court with a status report on the progress of the timely implementation of the RI/FS. Id. These two supplementary requirements are discussed further below.

II.MOTION TO INTERVENE

A.Legal Standard

"Federal Rule of Civil Procedure 24 sets forth the requirements for both intervention as of right and permissive intervention." Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 65 (D.D.C. 2004) (citing Fed. R. Civ. P. 24); see also Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003). Rule 24(a) provides for intervention as of right, stating that [o]n timely motion, the court must permit anyone to intervene who . . . is given an unconditional right to intervene by a federal statute [or] . . . 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 interests, unless existing parties adequately represent that interest.

Fed. R. Civ. P. 24(a). "As paraphrased by the D.C. Circuit, the rule indicates that an applicant's right to intervene depends on '(1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) whether the applicant's interest is adequately represented by existing parties.'" Leavitt, 329 F. Supp. at 65-66 (quoting Fund for Animals, 322 F.3d at 731); see also Jones v. Prince George's County, Md., 348 F.3d 1014, 1017 (D.C. Cir. 2003) (listing the four elements of Rule 24(a) as "timeliness, interest, impairment of interest, and adequacy of representation"). "In addition, an applicant for intervention as of right must demonstrate that it has standing by showing injury-in-fact, causation, and redressability." Leavitt, 329 F. Supp. at 66 (citing Fund for Animals, 322 F.3d at 732-33). "Specifically, the applicant must have suffered an injury in fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical." Id. (citing Byrd v. EPA, 174 F.3d 239, 243 (D.C. Cir. 1999)). "Second, the injury must be fairly traceable to the governmental conduct alleged." Id. "Finally, it must be likely that the requested relief will redress the alleged injury." Id.

"Alternatively, Rule 24(b) authorizes permissive intervention for an applicant who timely files a motion where a federal statute confers a conditional right to intervene or the applicant's claim or defense has a question of law or fact in common with the main action." Id. (citing Fed. R. Civ. P. 24(b)). "If a federal statute does not confer a conditional right to intervene, Rule 24(b)(2) ...


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