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March 12, 2002


The opinion of the court was delivered by: Cavanaugh, District Judge.


This matter is an environmental cause of action involving numerous motions by all parties. In this Opinion, the Court shall address three motions addressing section 7002, 42 U.S.C. § 6972 of the Resource Recovery Conservation Act ("RCRA"). The first motion is by Defendant Honeywell International, Inc. (formerly "AlliedSignal, Inc.") ("Honeywell") to dismiss Plaintiffs' RCRA count in the Amended Complaint for lack of standing. Second, Plaintiffs' Interfaith Community Organization ("Interfaith"), Lawrence Baker, Martha Webb Herring, Margaret Webb, Reverend Winston Clarke and Margarita Navas have cross-moved for partial summary judgment on this same count, seeking to have the Court decide, as a matter of law, that Plaintiffs have standing under RCRA to bring this citizen suit. Third, Defendants W.R. Grace & Company, Ecarg, Inc., and W.R. Grace, Ltd. (collectively "the Grace Defendants") along with Plaintiff Interfaith have moved jointly for partial summary judgment against Honeywell on Plaintiffs RCRA claim, seeking to have this Court conclude, as a matter of law, that not only do Plaintiffs have standing, but that no genuine issues of material fact exist as to Honeywell's liability under RCRA.*fn1 Having decided to address these motions together, the Court's Opinion will first focus on the issue of standing and then turn to whether partial summary judgment is warranted against Honeywell with regard to Plaintiffs' RCRA claim.

The Court, having meticulously reviewed the submissions of all parties regarding the three motions described above, and for the reasons stated in this Opinion, holds that Defendant Honeywell's motion to dismiss for lack of standing is denied. Further, Plaintiff Interfaith's motion for partial summary judgment on the issue of standing to bring a citizen suit under RCRA is granted. Lastly, the joint motion by Interfaith and the Grace Defendants seeking to establish Honeywell's liability under RCRA as a matter of law is denied.


The Court's "Background" section adopts a substantial portion of the facts stated in a prior opinion in this case insofar as they remain accurate. See Interfaith Community Organization v. AlliedSignal Inc., 928 F. Supp. 1339 (N.J. 1996).

The Parties

This is an action brought by Plaintiffs Interfaith Community Organization ("Interfaith"), Lawrence Baker ("Baker"), Martha Webb Herring ("Herring"), Margaret Webb ("Webb"), Reverend Winston Clarke ("Clarke") and Margarita Navas ("Navas") (collectively the "Plaintiffs") against Defendants Honeywell International, Inc. ("Honeywell"), Roned Realty of Jersey City, Inc. and Roned Realty of Union City, Inc. (together "Roned") and W.R. Grace & Co. ("Grace USA"), ECARG, Inc. ("ECARG") and W.R. Grace, Ltd. ("Grace England") (together "Grace Companies") (collectively the "Defendants") seeking declaratory and injunctive relief mandating the cleanup of environmental contamination at the Roosevelt Drive In site in Jersey City, New Jersey (the "Site").

Interfaith is a not-for-profit corporation incorporated under the laws of the State of New Jersey. Amended Complaint, § 19. Interfaith alleges its interest in chromium contamination in Hudson County and at the Site arose from its (1) inability to locate non-chromium contaminated land in Hudson County upon which it could construct 600 units of affordable single-family housing and (2) the discovery that member churches were built on land contaminated with chromium. Id., §§ 20-21; Affidavit of Reverend Geoffrey Curtiss ("Curtiss Aff."), §§ 4-5. Members of Interfaith reside and work in the vicinity of the Site, frequently drive by the Site and sometimes shop in stores near the Site. Amended Complaint, § 23. The remaining Plaintiffs described below are all members of Interfaith.

Herring and Webb are members of the Monumental Baptist Church that claim to live within one-quarter mile of the Site. Id., ¶¶ 28, 30. Herring and Webb have both worked and shopped in locations on or near the Site, such as the Pathmark supermarket located approximately one block from the Site and the Valley Fair store, a former retail establishment located on the Site. Id. Like Baker, Herring asserts the Site's present condition adversely affects her aesthetic interests. Id., ¶¶ 29, 31.

Clarke is an individual member of Interfaith and lives less than one-quarter mile from the Site. Id., ¶ 32. Clarke also claims to shop regularly at the Pathmark supermarket near the Site. Id. Clarke asserts that he has paid membership fees to Interfaith since 1994 and is concerned about the health risks associated with chromium near his home. Third Affidavit of Reverend Winston Clarke, ¶¶ 3, 7, 8. Clarke also has expressed a concern that the chromium contamination in Hudson County has had a negative impact on the value of his property. While Interfaith did not provide for individual membership until November 1999, Clarke has regularly participated in Interfaith meetings since 1994 and has since possessed voting authority within the organization. Curtiss Aff., ¶ 9.

In August 1991, Navas moved into a condominium located less than one-quarter mile from the Site. Amended Complaint, ¶ 34. Eight months later, in April 1992, Navas was diagnosed with sarcoidosis, a rare disease that affects the organs of the body and causes pain in the chest, back and joints. Affidavit of Margarita Navas ("Navas Aff."), ¶ 3. Navas is concerned that her condition may be caused or aggravated, at least in part, by the chromium waste near her home. See id., ¶ 6; Amended Complaint, ¶ 34. Navas also alleges that her current exposure to the Site includes shopping at the Parkmark supermarket a few times a week. Id., ¶ 35.

Honeywell, previously named AlliedSignal, Inc. ("AlliedSignal"), is incorporated under the laws of the State of Delaware. Id., ¶ 38. Mutual Chemical Company of America ("Mutual"), a prior subsidiary of AlliedSignal, owned and operated a chromate chemical production facility across the street from the Site from approximately 1905 to 1954. Id. The Site was used during this time to dispose of chrome ore residue from the chromate plant. In 1954, Allied Chemical and Dye Corporation acquired Mutual and sold the Site to Amy Joy Realty Corporation for the construction of a drive-in movie theater. Id. In March 1955, Allied Chemical and Dye Corporation executed a merger agreement with Mutual and thereby agreed to exonerate, indemnify and hold Mutual harmless against all future liability. Id. A few years later, the merged company changed its name to the Allied Corporation and through a merger with Signal Companies, Inc. in 1985, became AlliedSignal, Inc. Id. AlliedSignal, Inc. and Honeywell, Inc. merged in the latter half of 1999 to become Honeywell International, Inc.

Grace-USA is a corporation formed under the laws of the State of Connecticut. Id., ¶ 41. Grace-England is a direct subsidiary of Grace USA with a registered office in London, England. Id. ECARG is a New Jersey corporation and a subsidiary of W.R. Grace & Co. Id. Grace-USA and Grace-England were the sole stockholders of Grace Retail Corporation ("Grace Retail"), which acquired two parcels of land constituting the largest portion of the Site. Id., ¶ 42. In November 1986, the Channel Acquisition Company ("Channel") acquired Grace Retail and pursuant to a letter agreement, Grace Retail was to distribute some of its assets, including its portion of the Site, to Grace USA and Grace England. Id., ¶ 43. This transfer, however, never occurred. Id. Nevertheless, Grace USA and Grace England were unaware the transfer did not occur and acted as owners of the parcels until October 14, 1994. Id. On October 14, 1994, then-owner Channel conveyed the parcels to ECARG. Id., ¶ 44.

Roned Realty of Jersey City and Roned Realty of Union City are corporations incorporated under the laws of the State of New Jersey. Id., ¶ 45. The records of the Jersey City Assessor's Office list a Roned Realty Corp. as the owner of a subdivided parcel of the Site. Id., ¶ 45. It is unclear if the owner is either Roned Realty of Jersey City or Roned Realty of Union City. Id.

Chromium Contamination at the Site

At present, the Site is 32.2 acres of paved land enclosed by a chain link fence. See Declaration of Michael Caffrey, Exhibit A. Mutual owned and operated a chromate chemical production facility (the "Facility") on West Side Avenue and Route 440 in Jersey City, New Jersey until 1954. Id. The Facility extracted chromium from chromium ores to produce chromate chemicals. Id., ¶ 46. The process generated chromium-bearing waste that Mutual transported through a pipeline onto the Site. Id. In addition to the chromium-bearing waste, Mutual dumped unknown amounts of other refuse at the Site. Id. By December 5, 1953, waste at the Site was piled in an area covering approximately ten acres and measuring ten to thirty feet in height. Id.

The Site's groundwater flows toward the Hackensack River. Id., ¶ 48. Plaintiffs assert that pollutants leach into the groundwater, are carried from the Site, and are discharged into the Hackensack River. Id. Drainage ditches lined with a polyvinyl chloride, a layer of another geotextile and gravel are located at the northern and southern edges of the Site leading to the Hackensack River. Id., ¶ 47. Plaintiffs further allege that during high tide, water from the Hackensack River enters the drainage ditches and chromium is washed from the drainage ditches into the Hackensack River. Id.

Potential Health Risks of Chromium

The chromium found at the Site is primarily trivalent and hexavalent chromium. Both forms raise environmental and human health concerns, but hexavalent chromium is by far the more toxic form of chromium compound. Airborne chromium and chromium compounds are categorized as carcinogenic by Environmental Protection Agency ("EPA") standards, but other organizations, such as the National Toxicity Institute, consider all compounds containing chromium to have carcinogenic potential. See Risk Assessment for Chromium Sites in Hudson County, New Jersey, 3-16, 3-17 (April 1989), attached as Exhibit 45 to Plaintiffs Memorandum in Opposition to [Honeywell International, Inc.]'s Motion to Dismiss Plaintiffs Amended Complaint and in Support of Plaintiffs Cross Motion for Partial Summary Judgment on the Issue of Standing. Hexavalent chromium can also cause non-carcinogenic ailments by penetrating human skin to cause or exacerbate allergic and irritative effects on the respiratory system, kidneys, and skin. Id. at 3-5, 3-19, 3-20, 3-22.

NJDEP Administrative Consent Order

In 1983, Honeywell informed the New Jersey Department of Environmental Protection ("NJDEP") that the Site was contaminated with chromium-bearing waste. Id., ¶ 61. In that same year, sampling and analysis was conducted at the Site by a contractor hired by the Grace Companies. Id., ¶ 67. The Grace Companies have taken no further action with regard to the Site. Id. In 1987 and 1988, Roned completed an Interim Remedial Action on its portion of the Site, placing a one-foot soil cover and asphalt cover over parts of the Site. Id., ¶ 69. Roned has not adopted additional measures to cleanup the portion of the Site it owns. Id.

On December 2, 1988, NJDEP issued a Directive entitled In the Matter of the Hudson County Chromate Chemical Production Waste Sites and Allied Signal [sic] Inc.; PPG Industries Inc.; Occidental Chemical Corp.; and Maxus Energy Corp. The Directive made numerous factual findings. AlliedSignal (presently Honeywell) was found to be a successor in interest to Mutual, who operated a plant that generated chromate chemical waste, some of which contained hexavalent chromium. Id., ¶¶ 1, 4. The Directive also found that at the time AlliedSignal sold the Roosevelt Drive In Site in 1954, it possessed "specialized knowledge that the chromate chemical production waste might present environmental and public health risks." Id., ¶ 12. AlliedSignal was further found to have taken no measures to prevent any potential harm from its waste production. Id., ¶ 12, 16. Lastly, the ACO found that:

The [NJDEP] has determined that the uncontrolled discharges of hazardous substances from the chromate chemical production waste at the Sites . . . are within an area of high population density in the State of New Jersey and that the risk of human exposure to chromate chemical production waste at the Site . . . is ongoing. Chromium compounds contained in the chromate chemical production waste are toxic to humans and include demonstrated human carcinogens. These conditions create a substantial risk of imminent damage to public health and safety and imminent and severe damage to the environment.

Id, ¶ 18.

The Directive ordered Honeywell (then AlliedSignal) to undertake interim remedial actions to remove, or arrange for the removal of, certain hazardous substances, namely chromium-bearing waste, from the Site and from other locations also contaminated with chromium waste. Id., ¶ 12.

Honeywell contends that it has performed Interim Remedial Measures ("IRM") at the Site pursuant to the Directive. The Directive ordered Honeywell to undertake IRMs at several locations where Mutual's waste had allegedly been deposited, including the Site. The Directive provided that Honeywell "shall" submit an interim remedial work plan, and upon receipt of NJDEP approval, "immediately" commence implementation of IRMs designed to prevent the further discharge of chromium-bearing waste. Id., ¶ 31, 33.

Pursuant to the Directive, Honeywell conducted an IRM at the Site by regrading a portion of the Site and placing a polyvinyl chloride cover over the regraded portion. Amended Complaint, ¶ 61. Thereafter, as part of the IRM and under NJDEP supervision, Honeywell installed a new bulkhead over the existing bulkhead along the Hackensack River. Id., ¶ 61. When the initial polyvinyl chloride cover was damaged by high winds, Honeywell repaired and reinforced the cover. Id., ¶ 62.

On June 17, 1993, Honeywell entered into an Administrative Consent Order ("ACO") with NJDEP. Id., ¶ 64. The ACO requires Honeywell to conduct a remedial investigation and feasibility study ("RI/FS") for eighteen locations, including the Site. Id. The ACO establishes a process for conducting a RI/FS at the Site and selecting an appropriate remedial action. Id., ¶ 63. Pursuant to the AGO, Honeywell has committed $10 million to conduct the RI/FS and $50 million to remediate the eighteen locations referenced in the ACO, including the Site. Id. The ACO also provides that if the remediation cost for all eighteen locations exceeds this set amount, Honeywell shall implement a full remediation effort unless it disagrees with the appropriateness of the remedies selected. Id. Plaintiffs allege that Honeywell has not faithfully committed itself to the remediation of the Site. Id.

Procedural History

Plaintiffs filed a complaint (the "Complaint") on May 3, 1995. At a status conference held on July 27, 1995, Plaintiffs were granted leave to amend the Complaint. The ...

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