United States of America v. Reilly Tar

United States Court of Appeals
For the Eighth Circuit
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No. 20-2786
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United States of America; State of Minnesota, by its Attorney General Keith
Ellison,1 its Department of Health and its Pollution Control Agency; City of St.
Louis Park; City of Hopkins
Plaintiffs - Appellees
v.
Reilly Tar and Chemical Corporation; Housing and Redevelopment Authority of
St. Louis Park; Oak Park Village Associates; Rustic Oaks Condominium, Inc.;
Philips Investment Co.
Defendants
Daikin Applied Americas Inc.; Super Radiator Coils LP
Movants - Appellants
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Appeal from United States District Court
for the District of Minnesota
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Submitted: May 10, 2022
Filed: August 5, 2022
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1 Keith Ellison has been appointed to serve as the Attorney General of the State
of Minnesota, and is substituted as appellee pursuant to Federal Rule of Appellate
Procedure 43(c).

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Before ERICKSON, MELLOY, and KOBES, Circuit Judges.
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ERICKSON, Circuit Judge.
For nearly forty years, there has been ongoing efforts to environmentally
remediate the Reilly Tar & Chemical Corporation site in St. Louis Park, Minnesota.
In 2019, the site’s original consent decree and remedial action plan were amended
in a fashion that some neighboring parties oppose. At issue is whether the
neighboring parties may intervene to oppose the amended consent decree. Because
the neighboring parties lack Article III standing, we hold they may not, and we
affirm the judgment of the district court.2
I. BACKGROUND
Between 1917 and 1972, a subsidiary of Reilly Tar & Chemical Corporation
(“Reilly Tar”) operated a coal distillation and wood treatment business in the City
of St. Louis Park, Minnesota (the “Reilly Tar Site”). As a result of Reilly Tar’s
operations, environmentally toxic chemicals seeped into aquifers below and
contaminated the surrounding areas’ drinking water. In 1972, the City of St. Louis
Park agreed to purchase the Reilly Tar Site “as is.” The City agreed to hold Reilly
Tar “harmless from any and all claims” that the State of Minnesota might assert,
make no claim against Reilly Tar relating to soil and water impurities, and assume
full responsibility to restore the property to “any condition that may be required by
the Minnesota Pollution Control Agency” (the “MPCA”). Shortly thereafter, the
United States and State of Minnesota sued Reilly Tar pursuant to the Resource
Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6973, and the
Comprehensive Environmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. §§ 9606–07.
2 The Honorable Paul A. Magnuson, United States District Judge for the
District of Minnesota.

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A. The 1986 Consent Decree
In 1986, the United States, the State of Minnesota, Reilly Tar, the City of St.
Louis Park, the City of Hopkins, the Housing & Redevelopment Authority of St.
Louis Park, Oak Park Village Associates, and Philip’s Investment Company entered
a consent decree and integrated remedial action plan (collectively, the “1986
Consent Decree”). The 1986 Consent Decree identified certain chemical substances
to be remediated through a water treatment pump program and a groundwater
monitoring plan. It sought to flush out identified contaminants including,
maintenance substances like “solvents and degreasers,” polynuclear aromatic
hydrocarbons (“PAH”), and phenolic compounds. To accomplish this goal, the 1986
Consent Decree implemented a “granular activated carbon (GAC) treatment
system,” which is known as the “Pump Program.” The Pump Program required
Reilly Tar to pump and treat at least 200 million gallons of water per year (with a
minimum of 10 million gallons per month) in order to “remove and/or control the
flow of PAH and Phenolic Contaminants in aquifers beneath St. Louis Park” and
minimize the migration of those contaminants. The program would continue “until
such time as the [Environmental Protection Agency] Regional Administrator and
Director approve[d] discontinuing use of the system” pursuant to certain “cessation
criteria.” The 1986 Consent Decree also required Reilly Tar to investigate various
leaking aquifer wells and to abandon or reconstruct any well identified.
B. The 2019 Consent Decree
Over the next decades, Reilly Tar merged with another company to form
Vertellus Specialties, Inc., and the resultant company declared bankruptcy. In
response, the parties to the 1986 Consent Decree decided to amend their agreement
with a view towards dismissing any claims they might have against Reilly Tar and
remove Reilly Tar and its successors as parties to the 1986 Consent Decree. The
amendments also sought to have only the Environmental Protection Agency
(“EPA”), the State of Minnesota, and the City of St. Louis Park remain as active
members of the amended consent decree. The proposed three remaining active

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parties sought the district court’s approval to update and amend the 1986 Consent
Decree to reflect four developments: “(1) changes in the understanding of the
toxicology of the relevant contaminants . . . ; (2) modifications to the conceptual site
model; (3) continuing implementation of the remedy; and (4) [an update about] the
status of the Parties.”
The proposed amended consent decree also included an accompanying
remediation plan (collectively, the “2019 Consent Decree”), which defined the
targeted “Chemicals of Interest” to mean “site-related [PAH] and other site-related
contaminants identified in the [a]mended” remediation action plan. The amended
remediation action plan contained three tables that identified PAH compounds,
benzene, and other chemicals to be remediated. The 2019 Consent Decree did not
contain the 1986 Consent Decree’s “solvents and degreasers” language.
The 2019 Consent Decree also altered the Pump Program. In this new plan,
contaminated water still needed to be treated by GAC or another method approved
by the EPA, MPCA, and the Minnesota Department of Health (“MDH”) and their
successors, but the 1986 Consent Decree’s explicit 200-million-gallon pumping
quota was removed. The 2019 Consent Decree gave the parties greater flexibility to
change the specifics of the well pumping program, allowing the parties to determine
where the well pumping process would take place and the rate of pumping, subject
to EPA’s approval with input from the City of St. Louis Park, the MPCA, and the
MDH. If a party sought to end water pumping at a particular location, a schedule
for a cessation pilot test was required.
The 2019 Consent Decree added a contribution provision, which was not
present in the 1986 Consent Decree. This provision provided that the City of St.
Louis Park would have no liability to the federal government and would be entitled
“to protection from contribution actions or claims as provided by CERCLA Section
113(f)(2) [(42 U.S.C. § 9613(f)(2))], or as may be otherwise provided by law, for
the ‘matters addressed’” in the amended consent decree. “Matters addressed” was
defined as “all response actions taken or to be taken and all response costs incurred

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or to be incurred, at or in connection with the Site, by the United States or any other
person,” subject to certain identified exceptions.
C. Proposed Intervenors Daikin Applied Americas, Inc. & Super
Radiator Coils LP
Daikin Applied Americas, Inc., and Super Radiator Coils LP (collectively, the
“Proposed Intervenors”) owned property about 0.2 miles downgradient from the
Reilly Tar Site (the “Proposed Intervenors’ Site”). From approximately 1949 until
1998, that property was used for metal fabrication. Since 2015, the Proposed
Intervenors have been remediating contamination from perchloroethylene (“PCE”)
and its degrading compounds at their property. PCE is a chlorinated volatile organic
compound (a “CVOC”). Part of the Proposed Intervenors’ remediation process is
they must test the groundwater and soil and send the results to the MPCA. The
Proposed Intervenors allege that the MPCA has recently begun requiring them to
investigate and remediate additional contaminants they believe are migrating from
the Reilly Tar Site onto their property.
In November 2019, after the proposed 2019 Consent Decree was published in
the Federal Register for comment, the Proposed Intervenors submitted a public
comment. The EPA and MPCA responded to their comments and then submitted
the proposed 2019 Consent Decree to the district court for approval. Dissatisfied
with the responses to their comments and the terms of the proposed amended decree,
the Proposed Intervenors moved to intervene. The Proposed Intervenors argued that
multi-aquifer wells were leaking contaminants despite the 1986 Consent Decree and
that the proposed 2019 Consent Decree would worsen the spread of contaminants.
According to the Proposed Intervenors and their environmental consultants, the
Reilly Tar Site was the source of PAHs, phenolics, volatile organic compounds
(“VOCs”), CVOCs (including PCE), and other contamination, yet the proposed
2019 Consent Decree did “nothing to remediate or reduce the migration” of those
contaminants. They also asserted the changes to the Pump Program and other
remedies actually “threaten[ed] to increase the migration of such contaminants”

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from the Reilly Tar Site to the Proposed Intervenors’ Site and surrounding
neighborhoods. The Proposed Intervenors alleged they had already suffered harm
as a result of the contamination migration coming from the Reilly Tar Site and they
would be further injured by the entry of the 2019 Consent Decree because (a) the
MPCA had delayed the Proposed Intervenors’ remediation efforts until they had
investigated the contaminants coming from the Reilly Tar Site, and (b) the new
decree would increase the influx of PCE and other contaminants from the upgradient
site, significantly increasing their remediation costs. The Proposed Intervenors
sought the following relief: (1) remediation for “solvents and degreasers,” which,
they contended, included remediation for CVOCs and VOCs; (2) monitoring for
CVOCs and VOCs so that the affected parties would understand the full impact of
the migration from the Reilly Tar Site; (3) continuation of the Pump Program as
originally implemented; and (4) protection of any contribution rights the Proposed
Intervenors may have.
Following a hearing, the district court found the Proposed Intervenors lacked
Article III standing because they could not demonstrate their alleged harm was
traceable to the 2019 Consent Decree or otherwise redressable. The court concluded
that neither the 1986 Consent Decree nor the proposed 2019 Consent Decree
required Reilly Tar to remediate for CVOCs, including PCE. The district court
further concluded that the Proposed Intervenors’ sole interest was not the 2019
Consent Decree, but rather in creating a new consent decree that would make Reilly
Tar newly responsible for PCE contamination.
If Reilly Tar was found responsible for PCE or other contamination on the
Proposed Intervenors’ Site, the court concluded that the 2019 Consent Decree’s
contribution provision would not affect their potential contribution rights. In other
words, the 2019 Consent Decree engendered no new harm to the Proposed
Intervenors. The court noted that even if the Proposed Intervenors had Article III
standing, they had no statutory right of intervention under CERCLA or under
Federal Rule of Civil Procedure 24. The district court entered the 2019 Consent

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Decree and denied the Proposed Intervenors’ request for permission to file a motion
for reconsideration. The Proposed Intervenors now appeal.
II. DISCUSSION
The Proposed Intervenors assert they are harmed by the 2019 Consent Decree
because (1) the new provisions increase the flow of CVOCs (including PCE) and
other contaminants onto their property which will increase the cost of their MPCA-
decreed remediation, and (2) it severs their potential contribution rights against the
parties responsible for the contamination migration. In response, the United States,
State of Minnesota, the MPCA, and City of St. Louis Park (collectively, the
“Government”) argue the Proposed Intervenors’ alleged harms are speculative and
do not establish standing. They contend that CVOCs (like PCE) were never part of
either the 1986 or 2019 Consent Decree and that the 2019 Consent Decree leaves the
Proposed Intervenors’ potential contribution rights intact.
To intervene, interested parties must demonstrate they meet the elements of
Article III standing plus the requirements of Federal Rule of Civil Procedure 24. See
Fed. Trade Comm’n v. Johnson, 800 F.3d 448, 451–52 (8th Cir. 2015). We review
the district court’s determinations on both standing and intervention de novo,
“accept[ing] as true all material allegations in the motion to intervene
and . . . constru[ing] the motion in favor of the prospective intervenor.” Nat’l Parks
Conservation Ass’n v. EPA, 759 F.3d 969, 973–74 (8th Cir. 2014).
A party seeking to pursue relief in federal court must establish it has Article
III standing by demonstrating: (1) it “suffered an injury in fact,” (2) that injury “is
fairly traceable to the defendant’s challenged action,” and (3) there is a likelihood
“that the injury will be redressed by a favorable judicial decision.” Cross v. Fox, 23
F.4th 797, 800 (8th Cir. 2022) (quoting Hawse v. Page, 7 F.4th 685, 688 (8th Cir.
2021)). An “injury in fact” has been construed by the Supreme Court as meaning
“an invasion of a legally protected interest that is concrete and particularized and
actual or imminent, not conjectural or hypothetical.” Schumacher v. SC Data Ctr.,

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Inc., 33 F.4th 504, 509 (8th Cir. 2022) (quoting Spokeo, Inc. v. Robins, 578 U.S.
330, 339 (2016)) (internal quotation marks omitted). The injury is considered “fairly
traceable” to the defendant’s conduct if, for instance, “the defendant will be
compelled to cause the alleged injury to the intervenor if the plaintiff prevails.” Am.
C.L. Union of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1093 (8th Cir. 2011).
Even assuming the Proposed Intervenors show a concrete injury by having to
spend money to remediate their property,3 there are causality issues that preclude
Article III standing. The Proposed Intervenors’ contention that the 2019 Consent
Decree will increase the migration of CVOC contaminants from the Reilly Tar Site
to their own property is based on two unfounded assumptions: (1) it presumes that
the CVOC contaminants were subject to remediation by the 1986 Consent Decree,
and (2) the 2019 Consent Decree significantly changes CVOC remediation at the
Reilly Tar Site.
The Proposed Intervenors acknowledge the 1986 Consent Decree is silent
about CVOCs (including PCE) and thus rely on the decree’s remediation of certain
“solvents and degreasers” as evidence that it covered CVOCs. They read too much
into “solvents and degreasers” since the 1986 Consent Decree never defined
“solvents and degreasers,” nor did it provide any meaningful contextual clues
indicating the phrase was intended to encompass CVOCs. The remedial action plan
attached to the 1986 Consent Decree stated its purpose, noting it was designed to
“remove and/or control the flow of PAH and Phenolic Contaminants.” Its
appendices specify the types of “PAH Compounds to be Monitored” without
mentioning CVOCs. In the one instance where the 1986 Consent Decree uses the
3 The Proposed Intervenors’ assertions of generalized threats to “public health”
are insufficient to demonstrate injury in fact. See Carney v. Adams, 592 U.S. ____,
141 S. Ct. 493, 498 (2020) (“[A] grievance that amounts to nothing more than an
abstract and generalized harm to a citizen’s interests . . . does not count as an ‘injury
in fact.’ And it consequently does not show standing.”).

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word “volatiles,”4 it is remote from the provisions regarding “solvents and
degreasers,” it is not qualified as “chlorinated volatiles, and it is in a context that has
no connection to CVOC remediation. The 1986 Consent Decree did not cover
CVOCs.
We are unpersuaded by the Proposed Intervenors’ argument that the 2019
Consent Decree’s deletion of the “solvents and degreasers” language relieves Reilly
Tar of its duty to remediate CVOCs. The 1986 Consent Decree never covered
CVOCs, and the 2019 Consent Decree maintains the status quo regarding CVOC
remediation. The 2019 Consent Decree defines its targeted “Chemicals of Interest”
to mean “site-related [PAH] and other site-related contaminants identified in the
[a]mended [remedial action plan].” The amended remedial action plan contains
three tables of Chemicals of Interest—none of which have been identified as CVOCs
by the parties. Given that neither consent decree required Reilly Tar to clean-up
CVOCs (and more specifically, PCE), the entry of the 2019 Consent Decree is not a
causal link of the Proposed Intervenors’ harm because that decree does not alter
Reilly Tar’s preexisting duties regarding PCE. See Tarek ibn Ziyad Acad., 643 F.3d
at 1093 (noting an intervenor satisfies the traceability requirement if the defendant
will be compelled to cause the injury if the plaintiff prevails).
The Proposed Intervenors next contend Reilly Tar is the source of massive
CVOC and other contamination migration and the 2019 Consent Decree’s
revamping of the Pump Program plus other remediation measures are exacerbating
that migration onto their property. They claim the MPCA is forcing them to
investigate and pay for Reilly Tar’s contamination on their own property. Assuming
these assertions are true, the Proposed Intervenors have failed to trace their alleged
injury to the entry of the 2019 Consent Decree. Because PCE was never part of
either consent decree, the Proposed Intervenors’ additional expenditures are not a
result of the entry of the 2019 Consent Decree—they would have spent money on
4 Benzene and naphthalene are VOCs that were included in the 1986 Consent
Decree, but they are not CVOCs.

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PCE remediation regardless of the 2019 Consent Decree. Any additional money the
Proposed Intervenors expend to remediate PCE and other contaminants (their
alleged harm) is traceable to (1) the MPCA’s demands and/or (2) the nonexistence
of a consent decree requiring Reilly Tar to remediate for CVOCs (specifically, PCE),
which are not part of this litigation.
All parties admit (and the 2019 Consent Decree acknowledges) that CVOCs
are present on or near the Reilly Tar Site. If Reilly Tar is found to be legally
responsible for contamination on the Proposed Intervenors’ Site, the contribution
provision in the 2019 Consent Decree does not infringe upon the Proposed
Intervenors’ right to seek contribution. The 2019 Consent Decree declares that the
contribution provision only applies to “matters addressed” in that decree, referring
to “costs incurred or to be incurred” and “response actions taken or to be taken” at
or in connection with the Reilly Tar Site. See 42 U.S.C. § 9613(f) (discussing
CERCLA contribution provisions and “matters addressed” in a CERCLA
settlement); see also 42 U.S.C. § 9607(a) (CERCLA liability). The Government has
assured the Proposed Intervenors that they “simply have no cost responsibilities” at
the Reilly Tar Site. In other words, the Government recognizes that nothing in the
2019 Consent Decree hinders the Proposed Intervenors from seeking contribution
from other parties (including the settlors) if the Proposed Intervenors establish those
parties are responsible for the remediation costs on the Proposed Intervenors’ Site.
Given this assurance and the conclusion that the 2019 Consent Decree does
not alter Reilly Tar’s CVOC remediation obligations, the Proposed Intervenors have
not shown a traceable or redressable injury, which are requirements for Article III
standing. Because the Proposed Intervenors lack standing, we have no authority to
analyze their remaining claims. See Johnson, 800 F.3d at 451.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
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