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
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,
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.
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 Amended Complaint was
filed on August 2, 1995.
In Count I of the Amended Complaint, Plaintiffs allege
Defendants violated section 7002(a)(1)(B) of the Resource
Conservation and Recovery Act ("RCRA"),
42 U.S.C. § 6972(a)(1)(B), because the chromium-bearing waste present at the
Site presents an imminent and substantial endangerment to health
or the environment. Amended Complaint, ¶¶ 71-74. The remaining
counts of Plaintiffs Amended Complaint have been dismissed. See
Interfaith Community Organization v. AlliedSignal, Inc.,
928 F. Supp. 1339, 1341, 1351, 1353 (N.J. 1996).
At present, twelve motions are pending in this matter. This
Opinion only addresses three of those twelve motions. The first,
filed by Defendant Honeywell on June 6, 2000, is to dismiss
Count One of Interfaith's Amended Complaint for lack of
standing. The second motion, also filed on June 6, 2000, is a
cross-motion by Plaintiff Interfaith for partial summary
judgment on this same count. The final motion addressed in this
Opinion is by the Grace Defendants and Plaintiff for partial
summary judgment as to Honeywell's liability on Plaintiffs' RCRA
claim. This motion was filed on August 2, 2001.
I. Defendant Honeywell's motion and Plaintiff Interfaith's
cross-motion as to standing to bring a citizen suit under
A. RCRA and the right to bring a citizen suit.
Beginning in the late 1970's and through the present day,
considerable attention has been focused on the harmful effects
of hazardous waste. See 1 S. Cooke, The Law of Hazardous
Waste, § 1.01 at 1-2 (2001). This increased public awareness led
to the passage of numerous federal and state statutory schemes
intended to "control the management of hazardous waste and to
accelerate the cleanup of disposal sites containing these
wastes." Id. One of the more comprehensive federal
environmental statutes is the Resource Conservation and Recovery
Act, 42 U.S.C. § 6901, et seq., which was enacted in 1976 to
provide a "multifaceted approach toward solving the problems
associated" with improperly disposed hazardous waste. Id., §
1.05 at 1-5 (citing H.R.Rep. No. 1491, 94th Cong., 2d.
Sess., pt. 1, at 2 (1976),
reprinted in 1976 U.S.Code Cong. & Admin. News 6238, 6239).
RCRA is primarily targeted at reducing "the generation of
hazardous waste and . . . ensur[ing] the proper treatment,
storage and disposal of that waste which is nonetheless
generated, `so as to minimize the present and future threat to
human health and the environment.'" Meghrig v. KFC Western,
Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996)
(citing 42 U.S.C. § 6902(b)).
Aside from the authority RCRA provides federal and state
authorities to enforce its mandates, section 7002(a) of RCRA
also creates a private right of action for individuals to bring
citizen suits, permitting private citizens to enforce RCRA's
directives.*fn2 Through the citizen suit, private individuals
and entities, like Plaintiffs, can act as "private attorneys
general" or "citizen watchdogs" to monitor enforcement and
compliance with mandatory cleanup duties. 3 S. Cooke, The Law of
Hazardous Waste, § 16.03 at 16-83 (2001).
Generally, RCRA provides for three distinct types of citizen
suits. First, Section 7002(a)(1)(A) authorizes citizen suits
against any person or entity who is in violation of "any permit,
standard, regulation, condition, requirement, prohibition, or
order which has become effective pursuant" to RCRA.
42 U.S.C. § 6972(a)(1)(A). Second, Section 7002(a)(2) of RCRA permits any
person to commence an action against the Administrator of the
Environmental Protection Agency ("EPA") for a failure by the EPA
"to perform any [non-discretionary] act or duty" under RCRA.
42 U.S.C. § 6972(a)(2). Lastly, Section
7002(a)(1)(B), as amended in 1984, permits a civil suit against
any person or entity "who has contributed or who is contributing
to the past or present handling, storage, treatment,
transportation, or disposal of any solid or hazardous waste
which may present in imminent and substantial endangerment to
health or the environment." 42 U.S.C. § 6972(a)(1)(B);
Meghrig, 516 U.S. at 484, 116 S.Ct. 1251. It is this final
type of citizen suit that is at issue in this Opinion.
B. Standing In General.
Standing is not merely a pretrial formality, but rather a
constitutional directive that defines and limits the power of
federal courts to hear only actual "cases" or "controversies."
See U.S. CONST., ART. III, § 2, cl. 1. "The constitutional
power of federal courts cannot be defined, and indeed has no
substance, without reference to the necessity to adjudge the
legal rights of litigants in actual controversies." Valley
Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d
700 (1982) (quoting Liverpool S.S. Co. v. Commissioners of
Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885)).
As such, the Supreme Court has repeatedly stated that:
[A]t an irreducible minimum, Article III requires the
party who invokes the court's authority to show that
he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct
of the defendant, and that the injury fairly can be
traced to the challenged action and is likely to be
redressed by a favorable decision.
Valley Forge Christian College, 454 U.S. at 472, 102 S.Ct. 752
(internal citations and quotation marks omitted). In short,
standing requires injury-in-fact, causation and redressability.
Steel Company v. Citi zens for a Better Environment,
523 U.S. 83, 103-04, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
The injury-in-fact requirement for standing requires that a
plaintiff allege a "distinct and palpable" injury. Warth v.
Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343
(1975); Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct.
1717, 109 L.Ed.2d 135 (1990). The injury must be "real, earnest
and vital," Chicago & Grand Trunk R. Co. v. Wellman,
143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (1892), rather than merely
abstract, conjectural or hypothetical. See Los Angeles v.
Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675
(1983). The injury does not have to be substantial; "an
`identifiable trifle' will suffice." Public Interest Research
Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc.,
913 F.2d 64, 71 (1990) (hereinafter "Powell Duffryn") (quoting
United States v. Students Challenging Regulatory Agency
Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 37
L.Ed.2d 254 (1973)). For example, an injury that harms the
aesthetic and recreational interests of a plaintiff has been
held to constitute a sufficient injury-in-fact to support
standing. Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct.
1361, 31 L.Ed.2d 636 (1972). In another instance, the Court of
Appeals for the Second Circuit has held that an affidavit
stating that an environmental group member had driven over a
polluted body of water and was offended at its appearance stated
a sufficient injury to justify standing. See Friends of the
Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir.
A plaintiff is not required to show causation with "absolute
scientific rigor." Powell Duffryn, 913 F.2d at 72. Rather, a
defendant's conduct need only be "fairly traceable" to the
alleged injury to the plaintiff. Id.; Whitmore, 495 U.S. at
110 S.Ct. 1717 (citing Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450
(1976)). This inquiry basically asks the following question; Is
there a "substantial likelihood that defendants conduct caused
plaintiffs harm[?]" Powell Duffryn, 913 F.2d at 72 (citing
Duke Power Co. v. Carolina Environmental Study Group, Inc.,
438 U.S. 59, 75 n. 20, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978)).
A plaintiff must also demonstrate that a favorable decision
will redress the alleged injury. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992); Whitmore, 495 U.S. at 155, 110 S.Ct. 1717 (citing
Simon v. Eastern Kentucky Welfare Rights Organization,
426 U.S. 26, 41, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). This inquiry
focuses on whether the plaintiff will "benefit in a tangible way
from the court's intervention." Warth, 422 U.S. at 508, 95
S.Ct. 2197. Said differently, the redressability prong "focuses
on the connection between the plaintiffs injury and the judicial
relief sought." Powell Duffryn, 913 F.2d at 73 (citing Allen
v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 82 L.Ed.2d
Even allegations of possible future injury can justify
standing. However, the threatened injury must be immediate and
impending to satisfy the requirements of Art. III. Whitmore,
495 U.S. at 158, 110 S.Ct. 1717 (citing Babbitt v. Farm
Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895
(1979)). In United States v. Students Challenging Regulatory
Agency Procedures (SCRAP), an environmental group challenged
the Interstate Commerce Commission's decision to apply a
surcharge on railroad freight rates, claiming that ICC's action
cause increased use of nonrecyclable goods as
compared to recyclable goods, thus resulting in the
need to use more natural resources to produce such
goods, some of which resources might be taken from
the Washington area, and resulting in more refuse
that might be discarded in national parks in the
SCRAP, 412 U.S. at 688, 93 S.Ct. 2405. The group members
alleged that this would cause them to suffer "economic,
recreational and aesthetic harm." SCRAP, 412 U.S. at 678, 93
S.Ct. 2405. The Supreme Court found standing in this case,
observing that the SCRAP members stated "specific and
perceptible harm sufficient to survive a motion to dismiss for
lack of standing." SCRAP, 412 U.S. at 679, 93 S.Ct. 2405.
While this holding has been characterized as the "outer limit of
the law," it has not, to date, been overruled. See Whitmore,
495 U.S. at 159, 110 S.Ct. 1717.
C. Associational Standing.
An association or organization's standing to initiate suit on
behalf of its members exists "when  its members would
otherwise have standing to sue in their own right,  the
interests at stake are germane to the organization's purpose,
and  neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit." Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145
L.Ed.2d 610 (2000) (citing Hunt v. Washington State Apple
Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53
L.Ed.2d 383 (1977)). An association can assert standing "[e]ven
in the absence of injury to itself" as long as the individual
members or individuals that possess the "indicia of membership"
would individually have a justiciable case. Warth, 422 U.S. at
511, 95 S.Ct. 2197; Hunt, 432 U.S. at 343-44, 97 S.Ct. 2434.
D. Analysis of whether Interfaith and its members have
The first inquiry in determining whether an association, such
as Interfaith, has standing to sue on behalf of its members
requires this Court to assess whether Interfaith members "would
otherwise have standing to sue in their own right." Friends of
the Earth, Inc., 528 U.S. at 181, 120 S.Ct. 693. This requires
the Court to ascertain if Plaintiffs have suffered an injury
that is fairly traceable to Defendants' alleged conduct and
capable of being fairly redressed by a favorable decision by
this Court. Valley Forge Christian College, 454 U.S. at 472,
102 S.Ct. 752.
Contrary to Defendant Honeywell's proffered arguments,
Interfaith has not merely asserted an "abstract question of wide
public significance" or a "generalized grievance." Valley Forge
Christian College, 454 U.S. at 475, 102 S.Ct. 752; Flast v.
Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).
Plaintiffs have asserted real and imminently threatening
environmental concerns that affect their health, aesthetic,
recreational and environmental interests. The Supreme Court has
held that "aesthetic and environmental well-being, like economic
well-being, are important ingredients of the quality of life in
our society, and the fact that particular environmental
interests are shared by the many rather than the few does not
make them less deserving of legal protection through the
judicial process." Sierra Club, 405 U.S. at 734, 92 S.Ct.
1361. Plaintiffs' assert that they are particularly affected by
chromium contamination at the Site. While this presents a
general concern for all residents in Hudson County, Plaintiffs'
claim to be specifically affected by Defendant's alleged failure
to fully remediate the Site. Case law favors Plaintiffs on this
In Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., Plaintiffs were environmental groups that
brought a citizen suit against Laidlaw Environmental Services
(TOC), Inc. ("Laidlaw") alleging a failure to comply with a
National Pollutant Discharge Elimination System permit obtained
under the Clean Water Act, 33 U.S.C. § 11341(a)(1), by permitting
mercury to discharge into the North Tyger River in South
Carolina. Friends of the Earth, Inc., 528 U.S. at 175-76, 120
S.Ct. 693. Laidlaw argued that Plaintiffs lacked standing
because the "organizations failed to show that any of their
members had sustained or faced the threat of any injury in fact
from Laidlaw's activities." Id. at 181, 120 S.Ct. 693.
In contrast, the Supreme Court noted a member of one of the
plaintiff organizations, Kenneth Lee Curtis,
averred . . . that he lived a half-mile from
Laidlaw's facility; that he occasionally drove over
the North Tyger River, and that it looked and smelled
polluted; and that he would like to fish, camp, swim
and picnic in and near the river . . . as he did when
he was a teenager, but would not do so because he was
concerned that the water was polluted by Laidlaw's
Id. at 181-82,