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INTERFAITH COMMUNITY ORG. v. HONEYWELL INTERNATIONAL

June 13, 2002

INTERFAITH COMMUNITY ORGANIZATION; LAWRENCE BAKER; MARTHA WEBB HERRING; MARGARET WEBB; REVEREND WINSTON CLARKE; MARGARITA NAVAS; HACKENSACK RIVERKEEPER, INC., CONSOLIDATED PLAINTIFF; WILLIAM SHEEHAN, CONSOLIDATED PLAINTIFF; PLAINTIFFS,
V.
HONEYWELL INTERNATIONAL, INC.; W.R. GRACE & COMPANY; ECARG, INC.; W.R. GRACE, LTD.; RONED REALTY OF JERSEY CITY, INC.; RONED REALTY OF UNION, INC.; DEFENDANTS.



The opinion of the court was delivered by: Dennis M. Cavanaugh, United States District Judge

OPINION

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.

BACKGROUND

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 (Study Area 7)

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.

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. ("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, ¶ 23.

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.

Each Roned entity was formed for the purposes of owning Trader Horn properties in particular locales. Roned-Union was formed to own properties in Union County, whereas Roned-JC was created to own properties in Jersey City, New Jersey. Navlen Decl., ¶ 5. The Roned Defendants allege that they have taken no part in contaminating the Trader Horn Site.

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.

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 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.

DISCUSSION

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, Inc.

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[3][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 exists on the Trader Horn Site and that the COPR may, in some form or fashion, ...


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