Timeliness hurdle blocks attempt to intervene in consent decree

East Chicagoans say they were not fully informed about the extent of the contamination at the USS Lead Superfund Site. (Photo courtesy of Samuel Honderson)

Although a federal judge sympathized the with East Chicago residents who have been waiting years for their neighborhoods to be decontaminated, he ultimately held that their quest to intervene in a consent decree was untimely.

Neighbors and homeowners living near the USS Lead Superfund Site had attempted to intervene in a settlement agreement reached with Atlantic Richfield Co. and E.I. du Pont de Nemours and Co. over lead and arsenic pollution in the soil. They filed their motion in 2016, two years after the consent decree had been approved by the U.S. District Court for the Northern District of Indiana.

The residents knew the case was closed, but they argued the cleanup was progressing too slowly and public-health and environmental threats remained. They asserted the U.S. Environmental Protection Agency had not implemented a remediation plan, failed to inform the residents, and even misled them, about contamination levels.

Judge Philip Simon, the same judge who approved the consent decree, acknowledged the frustration. He had to tell the East Chicagoans they were too late even though the EPA knew of the problems in the area for decades but only recently started acting.

“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,” Simon wrote in his February order.

In explaining his decision, Simon also noted he was uncertain how allowing a new party to intervene after the decree has been in place would impact the cleanup. He wondered how the government would satisfy the interests of the thousands of residents in the affected areas, especially if they demanded a different approach to an issue.

The residents answered that question in the brief they filed with their motion to intervene. Specifically, they would be in a better position to protect their interests and enforce the decree. Also, they would be included in the notification process, so they would know what the EPA was doing and any changes it was making to the remediation plan.

To date, the residents have not filed an appeal, but they have until the beginning to April to decide.

Simon pointed out the residents might still have an opportunity to intervene. Referring to an exchange he had with the government’s attorney at the oral arguments, the judge noted that if a “major modification” was made to the consent decree, that could provide a way for other parties to join.

That is not a sure path to intervention, Simon conceded. The government would still be able to argue that it is adequately representing the interests of the residents. In addition, an intervention might still be barred by Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because section 113 (h) prohibits intervention while the remediation is ongoing.

Simon concluded with a gentle reminder to the government of its message to the court that the people who live in East Chicago will not be completely left out of the process.

“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,” Simon wrote, “since the government represented to this Court that its ‘door remains open.’”

The case is United States of America and State of Indiana, v. Atlantic Richfield Company and E.I. du Pont de Nemours and Company, 2:14-cv-000312. Attorneys from Goldberg Kohn Ltd. and environmental clinics from the law schools at Northwestern University and the University of Chicago are representing the residents pro bono. At oral argument, the government was represented by the U.S. Department of Justice.•