District of Columbia v. Potomac Electric Power Co.
826 F. Supp. 2d 227
D.D.C.2011Background
- The District of Columbia sued Pepco under RCRA, CERCLA, and D.C. Brownfield Act for six PCB releases at Pepco's 3400 Benning Road facility (1985–2003) that allegedly contaminated the Anacostia River sediment.
- PCBs are alleged to be hazardous substances that migrated to the river via storm water, overland flow, or groundwater, creating potential endangerment to aquatic life and human health.
- The parties settled to require Pepco to conduct RI/FS to assess contamination and potential cleanup options, memorialized in a proposed consent decree revised after public comments.
- Three environmental groups moved to intervene or participate as amici curiae, challenging entry of the consent decree; the District and Pepco opposed intervention but supported entry subject to conditions.
- The court held oral argument, then issued a memorandum denying intervention as a matter of right or permissively, but granting amici status and approving the consent decree with conditions, including public participation and a court status report.
- The court’s decision contemplated continued public input and a status review 18 months after decree entry to ensure timely progress on the RI/FS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether intervention as of right is warranted | Intervenors have a protectable interest and may be impaired by consent decree. | Disposition of action by consent decree would not impair intervenors' interests; they can participate as amici. | Intervention as of right denied |
| Whether permissive intervention should be allowed | Intervention would enhance public input and oversight. | Intervention would unduly delay and undermine settlement efficiency. | Permissive intervention denied |
| Whether proposed intervenors may participate as amici curiae | Amici input would aid the Court in evaluating the decree. | Amici have relevant expertise and public interest but cannot block settlement. | Amici curiae allowed |
| Whether the consent decree is fair, reasonable, and in the public interest | Decree advances corrective justice by requiring RI/FS and District oversight with accountability. | Decree appropriately allocates investigation, oversight, and preserves the District's ability to pursue further action. | Consent decree approved with supplementary conditions |
| Whether supplementary conditions ensure timely RI/FS and public participation | Public access and timing safeguards are essential and incorporated; a status report will monitor progress. | Decree already provides structure and timelines; additional reporting safeguards are prudent. | Conditions to require public publication and an 18-month status report upheld |
Key Cases Cited
- Fund for Animals, Inc. v. Norton, 322 F.3d 728 (D.C.Cir. 2003) (intervention factors and adequacy of representation)
- National Association for the Advancement of Natural, 146 F.3d 1042 (D.C.Cir. 1998) (standards for discretionary intervention by amici)
- United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968 (2d Cir. 1984) (interpretation of intervention in CERCLA context)