The opinion of the court was delivered by: Dennis M. Cavanaugh, United States District Judge
This matter comes before the Court on motion by Defendants Roned Realty
of Jersey City, Inc. and Roned Realty of Union, Inc. for summary judgment
as to all claims and cross-claims against them. The Court, having
carefully reviewed the submissions of all parties regarding this motion,
holds that Defendant's motion is granted in part and denied in part.
The facts in this matter are extensive and thus, this Opinion shall
only summarize the facts that are pertinent to the present motion. The
Court presumes that all parties of record are familiar with the prior
opinions in this matter, which discuss the factual background of this case
in greater detail. See Interfaith Community Organization v.
AlliedSignal, Inc., 928 F. Supp. 1339 (D.N.J. 1996) and Interfaith
Community Organization, et al. v. Honeywell International, Inc. et al.,
188 F. Supp.2d 486 (D.N.J. 2002).
The site in question consists of three sites called the Roosevelt
Drive-In Site, the Trader Horn Site and the Clean Machine Car Wash Site,
collectively referred to as Study Area 7. See Rule 56.1 Statement of
Undisputed Facts in Support of Roned Realty of Jersey City, Inc.'s and
Roned Realty of Union, Inc.'s Motion for Summary Judgment ("Roned 56.1
Statement"), ¶ 1; Defendant Honeywell International Inc.'s Response
to Rule 56.1 Statement of Undisputed Facts in Support of Roned Realty of
Jersey City, Inc.'s and Roned Realty of Union, Inc.'s Motion for Summary
Judgment (Honeywell's 56.1 Response"), ¶ 1. The present motion
addresses a dispute concerning the Trader Horn Site, a 1.2 acre parcel of
land located at 485 Route 440 that is adjacent to the Roosevelt Drive-In
Site and the Clean Machine Car Wash Site. Roned 56.1 Statement, ¶¶
2-3; Honeywell's 56.1 Response, ¶¶ 2-3. The Roned Defendants have no
connection to the Roosevelt Drive-In or Clean Machine Car Wash Sites.
Roned 56.1 Statement, ¶ 21; Honeywell's 56.1 Response, ¶ 21.
Mutual Chemical Company of America ("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. This Facility
extracted chromium from chromium ores to produce chromate chemicals.
Id., ¶ 46. The process generated chromium-bearing waste or chromium
ore processing residue ("COPR") that Mutual transported through a
pipeline onto Study Area 7. Roned 56.1 Statement, ¶ 4. In addition to
the chromium-bearing waste, Mutual apparently dumped unknown amounts of
other refuse at the Site. Additionally, Honeywell asserts that the State
of New Jersey granted it riparian rights to deposit COPR in to the
Hackensack River. Honeywell's 56.1 Response, ¶ 23.
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. ("Roned-JC") and Roned Realty of Union, Inc.
("Roned-Union") (together "the Roned Defendants") 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 Study Area 7 (the "Site").
Interfaith Community Organization et al. v. Honeywell International,
Inc. et al., 188 F. Supp.2d 486, 489 (D.N.J. 2002).
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 six hundred 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. The remaining individual Plaintiffs are members of Interfaith that
reside and work in the vicinity of the Site, frequently drive by the Site
and sometimes shop in stores near the Site. Amended Complaint, ¶
Honeywell is incorporated under the laws of the State of Delaware.
Id., ¶ 38. Mutual, a prior subsidiary of Honeywell, 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 COPR 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.
Between March 1955 and 1999, Allied Chemical and Dye Corporation
underwent corporate reorganization and eventually came to be known as
Honeywell International, Inc. See Interfaith Community Organization,
188 F. Supp.2d at 490.
Grace-USA is a corporation formed under the laws of the State of
Connecticut. Amended Complaint, ¶ 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 (the Roosevelt Drive-In Site
and the Clean Machine Car Wash). 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 that 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, Inc. and Roned Realty of Union, Inc. are
corporations incorporated under the laws of the State of New Jersey since
1979. Id., ¶ 45; Declaration of Edward Navlen ("Navlen Decl."),
¶¶ 2-3. The Trader Horn Site is owned by Roned-JC as evidenced by
quitclaim deed recorded on August 30, 1995. Fourth Declaration of Michael
J. Caffrey, Exhibit 70; Roned 56.1 Statement, ¶ 15; Honeywell 56.1
Response, ¶ 15; Second Declaration of Edward Navlen, Exhibit A.
Roned-Union never owned any portion of the Trader Horn Site. Roned 56.1
Statement, ¶ 15; Honeywell 56.1 Response, ¶ 15; Declaration of
Edward Navlen ("Navlen Decl."), ¶¶ 6-7. At present, the Trader Horn
Site is occupied by a retail store.
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 the more toxic 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 Plaintiff's Memorandum in
Opposition to [Honeywell International, Inc.]'s Motion to Dismiss
Plaintiff's Amended Complaint and in Support of Plaintiff's 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.
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 that 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 at the Site presents an imminent and substantial endangerment to
health or the environment. Amended Complaint, ¶¶ 71-74. The remaining
counts of Plaintiff's Amended Complaint have been dismissed. See
Interfaith Community Organization v. AlliedSignal, Inc., 928 F. Supp. 1339,
1341, 1351, 1353 (D.N.J. 1996).
On or about May 17, 1996, the Roned Defendants filed an answer to the
Amended Complaint along with various cross-claims. On January 3, 1997,
the Roned Defendants amended their cross-claims.
The Grace Defendants filed their Third Amended Cross-Claims on October
4, 2000 seeking relief under RCRA, CERCLA, the New Jersey Spill
Compensation and Control Act and common law. The Grace Defendants
cross-claim against the Roned Defendants was asserted in its original
Answer and Cross-Claim and seeks contribution from the Roned Defendants
under New Jersey law. Honeywell has also asserted cross-claims against
the Roned Defendants seeking injunctive relief under RCRA and declaratory
relief and contribution under CERCLA, the New Jersey Spill Act, the New
Jersey Joint Tortfeasors Contribution Law.
I. Summary Judgment Standard.
Summary judgment eliminates unfounded claims without recourse to a
costly and lengthy trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986). Under Federal Rule of Civil Procedure 56(c), summary judgment is
proper where "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden
of showing that no genuine issue of material fact exists rests initially
on the moving party. See Celotex, 477 U.S. at 323. A litigant may
discharge this burden by exposing "the absence of evidence to support the
nonmoving party's case." Id. at 325. However, this effort requires more
than "simply show[ing] that there is some metaphysical doubt as to
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). In evaluating a summary judgment motion a court
must view all evidence in the light most favorable to the nonmoving
party. See Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587; Abraham v.
Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Boyle v. County of
Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998)); Goodman v. Mead Johnson
& Co., 534 F.2d 566, 573 (3d Cir. 1976). The Court's role is not "to
weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue of fact for trial." Anderson,
477 U.S. at 248-49; Abraham, 183 F.3d at 287.
Once the moving party has made a properly supported motion for summary
judgment, the burden shifts to the non-moving party to "set forth
specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). The substantive law determines which facts are material. Id. at
248. "Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary
judgment." Id. No issue for trial exists unless the non-moving party can
demonstrate sufficient evidence favoring it, such that a reasonable jury
could return a verdict in that party's favor. See id. at 249.
II. Roned Realty of Union, Inc.
A review of the submissions of counsel in connection with the present
motion shows that Roned-Union does not have any connection or interest in
the Trader Horn Site or Study Area 7 that would permit this Court to
impose liability upon it for environmental harm. See Brief in Support of
Roned Defendants' Motion for Summary Judgment On All Claims at 8-9;
Plaintiff's Brief in Opposition to Roned Defendants' Motion for Summary
Judgment on All Claims at 2-9 (focusing on Roned-JC); Brief of Defendant
Honeywell International Inc. in Opposition to the Roned Defendants'
Motion for Summary Judgment on All Claims at 1 (noting that Honeywell
opposes the Roned Defendants' motion "only so far as it applies to
defendant Roned Realty of Jersey City, Inc."). Accordingly, this Court
holds that Roned-Union, as well as all claims and cross-claims against
it, are dismissed as a matter of law pursuant to Rule 56 of the Federal
Rules of Civil Procedure. The remaining issues discussed in this Opinion
shall focus on the remaining Roned entity, Roned Realty of Jersey City,
III. Interfaith's RCRA Claim Against Roned-JC.
Under RCRA, liability can be established by meeting the requirements of
a four-part analysis that looks to whether Roned-JC; "(1) has contributed
or is contributing to, (2) the past or present handling, storage,
treatment, transportation, or disposal of, (3) any solid or hazardous
waste that, (4) presents an imminent and substantial endangerment to
health or the environment." Interfaith Community Organization,
188 F. Supp.2d at 502 (citing 42 U.S.C. § 6972(a)(1)(B) and 3 S. Cooke, The
Law of Hazardous Waste, § 15.01[a] at 15-6 (2001)). For the
purposes of this motion, the Court will assume that prong three of the
above analysis is met; that is, that chromium, in some instances
hexavalent chromium, contained in the chromium ore processing residue
located on Study Area 7 is a form of solid or hazardous
waste as defined
by RCRA. See, e.g., Interfaith Community Organization, 188 F. Supp.2d at
502-03 (finding that chromium waste is a form of hazardous and solid
waste under RCRA); U.S. v. Power Engineering Co., 10 F. Supp.2d 1145,
1157-58 (D.Colo. 1998), affirmed by 191 F.3d 1224, 1231 (10th Cir.
1999), cert. denied, 529 U.S. 1086 (2000) (finding that hexavalent
chromium is clearly a form of hazardous waste and also a form of solid
waste under RCRA and Colorado regulations); Steel Manufacturers Ass'n v.
E.P.A., 27 F.3d 642, 645 (D.C. Cir. 1994) (electric arc furnace dust is
considered to be a form of hazardous waste by the EPA because, in part,
it contains hexavalent chromium); 40 C.F.R. § 261.24 (Under RCRA, the
EPA has classified waste that contains five parts per million (ppm) or
more of chromium as hazardous). The "has contributed or is contributing
to" the "past or present handling, storage, treatment, transportation, or
disposal of" requirement under RCRA presents an interesting issue with
regard to Roned-JC because all of the active dumping of COPR on the Site
occurred many years prior to Roned-JC's assuming possession of the Trader
Horn Site. Roned-JC argues that the mere fact that it is the record owner
of the Trader Horn Site is insufficient to make it liable under RCRA
because it never generated or transported any COPR onto the Trader Horn
Site. Roned-JC further argues that upon taking possession of the site, it
merely moved its business into the pre-existing commercial space, which
was operated at the time as a men's clothing store. On this basis,
Roned-JC argues that it could not have known that an environmental danger
was created by the Trader Horn Site's contaminated condition. Navlen
Decl. ¶¶ 7-9. In contrast, Plaintiff Interfaith contends that
Roned-JC has contributed and is presently contributing to the handling,
storage or disposal or hazardous chromium waste by its "studied
indifference" to the Trader Horn Site's condition after learning of the
environmental threat. Interfaith claims that Roned-JC should have taken
specific measures to clean up the Trader Horn Site after learning that it
was contaminated to abate the harm. Roned-JC responds that by permitting
Honeywell to enter onto the Trader Horn Site and conduct remedial
efforts, Roned, in effect, took such measures, and thus was not
`indifferent' to the Trader Horn Site's condition.
This Court agrees with Roned-JC that it has taken no active role in
contributing to the contamination of the Trader Horn Site. However, RCRA
is a comprehensive statutory scheme and as such, courts have imposed RCRA
liability on parties that have contributed to the handling or disposal of
hazardous waste by "passive inaction" or "studied indifference." See
U.S. v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981),
affirmed, 688 F.2d 204 (3d Cir. 1982). In light of Congress'
guiding instruction that RCRA's use of the phrase "contributing to" should
be interpreted liberally, this Court adopts the reasoning in Price as
persuasive and holds that passive inaction or studied indifference can
create liability under RCRA. Furthermore, RCRA is not primarily targeted
at punishing environmentally unsound acts, but rather 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 (1996) (citing_42 U.S.C. § 6902(b)).
As such, this Court finds Roned-JC's potential culpability to be
irrelevant. The record is clear that Roned-JC is aware that COPR
the Trader Horn Site and that the COPR may, in some form or