Appeal from an order of the District Court for the Western District of New York, John T. Curtin, Chief Judge, denying the applications of four environmental groups, supported by the State of New York, to intervene in an action by the United States against Hooker Chemical & Plastics Corporation and certain of its affiliates and the City of Niagara Falls. The action, relating to dangers caused by the disposal of toxic chemical wastes in a dump site near the Niagara River, was brought pursuant to the "imminent hazard" and "emergency" provisions of the Safe Drinking Water Act, 42 U.S.C. § 300i, the Resource Conservation and Recovery Act, 42 U.S.C. § 6973, and the Clean Water Act, 33 U.S.C. § 1364. Appellants contend that the district court erred in denying their applications to intervene as of right under F.R. Civ. P. 24(a). Affirmed.
Before: FRIENDLY, MESKILL and PIERCE, Circuit Judges.
The appellants are four environmental organizations. Two, the Ecumenical Task Force ("ETF") and Niagara Environmental Action ("NEA") are New York organizations; many members of ETF and all members of NEA are directly affected by industrial pollution of the Niagara River. The two others, Pollution Probe Foundation ("PPF") and Operation Clean Niagara ("OCN") are Canadian organizations; many members of PPF and all members of OCN live in the Niagara region of the Province of Ontario and are directly affected by pollution of the Niagara River both by itself and as it flows into Lake Ontario. The appeals are from an order of Chief Judge Curtin of the District Court for the Western District of New York denying the appellants' applications to intervene under F.R. Civ. P. 24(a). ETF, PPF and OCN appealed only insofar as the order denied intervention as of right under F.R. Civ. P. 24(a); NEA appealed from the denial both of intervention as of right under Rule 24(a) and of permissive intervention under Rule 24(b), but has not briefed the latter point, which we regard as waived.
This action was begun on December 20, 1979, when the United States filed a complaint against Hooker Chemicals & Plastics Corporation, its parent, Hooker Chemical Corporation, Hooker Chemical Corporation's parent, Occidental Petroleum Investment Corporation, and the latter's parent, Occidental Petroleum Corporation (collectively, "Hooker"); and the City of Niagara Falls, New York (the "City"). The State of New York (the "State") was soon joined as a defendant upon a motion by Hooker pursuant to F.R. Civ. P. 19(a); having requested and received permission to be realigned as a plaintiff, the State filed its own complaint against Hooker and the City. The City and Hooker also filed cross-claims against one another.
The action concerns Hooker's use of an approximately four-acre landfill on the American bank of the Niagara River (the "S-area") to dispose of more than 70,000 tons of hazardous chemical wastes between 1947 and 1975. The complaint of the United States, as amended on June 18, 1980, alleged that migration from the S-Area of a number of dangerous chemicals, many of them carcinogenic, was contaminating the Niagara River and, in some cases, the public drinking water supplied by the Niagara Falls Drinking Water Treatment Plant ( the "Plant"), which is located approximately 200 yards east of the S-area dump site. According to the allegations made in the complaint, the porous nature of the soil in the S-Area landfill permits toxic wastes dumped by Hooker to mix with shallow subsurface water and then "leach out" eastwards toward the Niagara River. The complaint alleged further that, given the nature of the soil in the vicinity of the S-area and the Plant, and the load-bearing capacity and age of the Plant's pipes, there is a high probability that some of the Plant's subsurface pipes would crack or leak within the next 50 years, with the additional consequent danger that Hooker's chemical wastes might directly enter the water supply in high enough concentration to cause "a human health disaster." The complaint alleged that Hooker's conduct created "an imminent and substantial endangerment to the health of persons" under § 1431 of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300i;*fn1 "an imminent and substantial danger to health or the environment" under § 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973;*fn2 and "an imminent and substantial endangerment to the health of persons or to the welfare of persons" under § 504 of the Clean Water Act ("CWA") 33 U.S.C. § 1364.*fn3 It also alleged that Hooker's "unreasonable interference" with the interest of the United States in protecting the health of its citizens, including those traveling in interstate commerce, constituted a public nuisance.*fn4 Finally, the complaint alleged that Hooker had deposited wastes in navigable waters of the United States without obtaining a permit from the Secretary of the Army in violation of § 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407. We summarize the rather complex and specific relief sought in the complaint:
1. A mandatory injunction requiring Hooker, inter alia,
(a) to install and maintain a perpetual monitoring program for all subsurface water at the S-area;
(b) to install grout curtain vaults down to and penetrating the bedrock encircling both the S-area and the Plant;
(c) within the grout curtain vaults, to cover the entire area with a suitable clay cap, graded with top soil and seeded;
(d) to install a leachate collection system and destroy any leachate subsequently collected by it;
(e) to vent the area within the grout curtain in a specified manner, and filter gas that is vented;
(f) to isolate all pipes and structures of the Plant, seal off the current water intake system, construct an alternative intake system that will be free of leachate migrating from the S-area, and pay for the installation and operation of an optimized pilot granular activated carbon treatment system at the Plant; (or, as an alternative to these measures, construct a new drinking water treatment plant); also, to pay for continuous monitoring of the public drinking water supply until the remedial measures are completed;
(g) to clean the water distribution system used to provide water to the public, and replace all systems for which cleanup cannot be accomplished to the levels required by the EPA and the State of New York;
(h) to perform in perpetuity any additional remedial measures which the EPA determines to be necessary on the basis of the monitoring reports.
2. An order to the City of Niagra Falls to cooperate fully with the implementation of all the remedial measures required by the mandatory injunction.
3. An order requiring Hooker either to deposit $500,000,000 in an annuity trust account to assure accomplishment of these measures or to obtain a bond insuring the availability of the necessary funds.
4. An order requiring Hooker to reimburse the United States for funds expended for remedial actions related to the discharge of wastes in the S-area landfill.
5. Retention of jurisdiction by the court until all remedial measures had been effectuated.
6. An aware of costs and any other relief the court should find just and appropriate.
The complaint of the State of New York alleged "on behalf of itself and as parens patriae on behalf of all residents and citizens of the State of New York" seven causes of action for public nuisance and three cause of action for violations of N.Y. Environmental Conservation Law §§ 17-0501, -0701, -0803. For relief the State sought a judgment directing Hooker to:
abate the nuisance at the S-area landfill . . . by taking such actions as the court shall find to be necessary and sufficient to completely and permanently abate the migration and threat of migration of these chemical wastes, including all actions necessary and sufficient to protect permanently the safety of the water furnished by the City of Niagara Falls Water Treatment Plant.
The State also sought compensatory and punitive damages, as well as civil penalties for the alleged violations of the Environmental ...