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
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).
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.
Baker is a member of the Monumental Baptist Church, a member
church of Interfaith, and lives approximately two miles from the
Site. Id., ¶ 26; Affidavit of Lawrence Baker ("Baker Aff."), ¶
1. From March 1973 through May 1990, Baker
worked approximately one-half mile from the Site. Amended
Complaint, ¶ 26; Baker Aff., ¶ 7. From the summer of 1991
through mid-1993, Baker worked as a security guard on property
adjoining the Site. Amended Complaint, ¶ 26; Baker Aff., ¶ 2.
During this period, Baker alleges that he observed "a
greenish/yellowish ooze" on the site, usually after rainfall.
Amended Complaint, ¶ 26; Baker Aff., ¶ 3. Mr. Baker's employment
requires him to use the Jersey City Authority gas pumps adjacent
to the Site once or twice a month. Amended Complaint, ¶ 26.
Baker considers the Site a "blight on the neighborhood." Id.,
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
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.
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.
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 ...