On Appeal from the United States District Court for the District of New Jersey (D.C. Nos. 95-cv-02097 and 00-cv-1451) District Judge: Honorable Dennis M. Cavanaugh
Before: Ambro, Van Antwerpen, and Stapleton,
The opinion of the court was delivered by: Van Antwerpen, Circuit Judge
Appellant Honeywell International, Inc. challenges an injunction entered against it after the District Court found it had violated the citizen suit provision of the Resource Conservation and Recovery Act, ("RCRA"), 42 U.S.C. § 6972(a)(1)(B). The District Court had jurisdiction over this claim pursuant to 42 U.S.C. § 6972. We have jurisdiction over Honeywell's consolidated appeals pursuant to 28 U.S.C. § 1291 and will affirm.
Starting in 1895, Mutual Chemical Company of America ("Mutual"), later the largest chrome manufacturer in the world, operated a chromate chemical plant in Jersey City, New Jersey. Its process resulted in a waste residue that had a high pH and high concentrations of hexavalent chromium. Mutual piled this waste at a tidal wetlands site along the Hackensack River. The piling of the waste created a land-mass (the "Site") which is the subject of this appeal. The Site consists of some 1,500,000 tons of the waste, 15 to 20 feet deep, on some 34 acres. The Site's high pH prevents the hexavalent chromium from reducing naturally to its less-toxic trivalent form, and enhances its ability to leach freely into surface water and groundwater. The hexavalent chromium is highly soluble, a known carcinogen to humans, and toxic to the environment.*fn1
Mutual continued dumping until 1954, when it was succeeded by the Allied Corporation, in turn succeeded by AlliedSignal, Inc., and then Honeywell. The site was never cleaned up.
The State of New Jersey first sought a permanent remedy for the Site in 1982, about the time a "green stream" and "yellowish-green plumes" were observed in surface water on the Site. In 1983, a Honeywell official described it as an "extremely contaminated site, visible to the naked eye" with "yellow water... draining into the Hackensack River," and concluded "there's something terribly not right with the site." Honeywell did not act, however, until seven years later, about two years after NJDEP had ordered it to do so. The result was not a permanent remedy but rather an "interim" measure consisting of poured concrete and asphalt over 17 acres of the Site and a plastic liner "cap" over the remaining 17 acres.*fn2 This was intended to last only five years while a permanent remedy was to be studied and implemented. Honeywell had told NJDEP that the interim measure would not prevent all discharges, even assuming proper maintenance; in any event, as the District Court found, and as we discuss infra, the interim measure was constantly in need of repair, having succumbed to, among other things, a phenomenon called "heaving" caused by the waste.*fn3
In a 1993 consent order arising from litigation over the Site, AlliedSignal promised $60 million towards a permanent containment solution and NJDEP reserved the right to compel a full cleanup at higher cost. The order also stated that the permanent remedy would be put in place through the NJDEP's usual process, which was to: (I) delineate, or identify, all of the conditions needing remedy; (ii) analyze remedial alternatives and select a remedy; and (iii) take "remedial action." The District Court found, and the record shows, that these steps were not taken or completed.
In 1995, a local community organization, Interfaith Community Organization ("ICO"), and five individual plaintiffs sued Honeywell's predecessor AlliedSignal and the then-owners of the Site under the citizen suit provision of RCRA, § 6972(a)(1)(B), alleging the Site "may present an imminent and substantial endangerment to health or the environment." At the conclusion of a two-week bench trial, the District Court found for plaintiffs and enjoined Honeywell to clean up the Site through excavation of the contamination.*fn4
Honeywell challenges plaintiffs' standing, the District Court's imminent and substantial endangerment determination, and the District Court's remedial injunction. We review legal conclusions of standing de novo, see Public Interest Research Group of New Jersey v. Magnesium Elektron, Inc., 123 F.3d 111, 119 (3d Cir. 1997), and the underlying factual determinations for clear error. See Gen. Instrument Corp. v. Nu-Tek Electronics & Mfg., Inc., 197 F.3d 83, 86 (3d Cir. 1999). The injunction is reviewed for an abuse of discretion, which requires a showing that the District Court's ruling "rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact." Ameristeel Corp. v. Int'l. Bhd. of Teamsters, 267 F.3d 264, 267 (3d Cir. 2001); see also Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 402 (1990).
We have not previously determined the standard of review for RCRA endangerment determinations. Other courts of appeals consider it a question of fact. See Parker v. Scrap Metal Processors, Inc. 386 F.3d 993, 1014-15 (11th Cir. 2004) (reviewing jury's RCRA endangerment finding for sufficiency of the evidence); Cox v. City of Dallas, 256 F.3d 281, 300-01 (5th Cir. 2001) (concluding district court "did not clearly err" in finding RCRA endangerment); Dague v. City of Burlington, 935 F.2d 1343, 1355-56 (2d Cir. 1991) (concluding district court's endangerment "finding" was not error), rev'd on other grounds, 505 U.S. 557 (1992). We will accordingly not disturb the determination here absent clear error. Clear error exists "only if [a finding] is completely devoid of a credible evidentiary basis or bears no rational relationship to the supporting data." Shire U.S., Inc. v. Barr Labs., Inc., 329 F.3d 348, 352 (3d Cir. 2003); see also United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (reviewing court, on the entire evidence, must be left with the definite conviction that a mistake has occurred). "This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently." Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985). As long as the District Court's account of the evidence is "plausible in light of the record," we may not reverse even if convinced that we "would have weighed the evidence differently." Id. at 574. Additionally, where findings of fact are based on live testimony, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Fed. R. Civ. P. 52(a).
Honeywell first challenges plaintiffs' standing. The Constitution, Art. III, § 2, limits the federal judicial power to the resolution of "cases and controversies." McConnell v. Federal Election Com'n, 540 U.S. 93, 225 (2003); Friends of Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 180 (2000). One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue.
McConnell, 540 U.S. at 225. "Standing is a threshold jurisdictional requirement," Magnesium Elektron, 123 F.3d at 117, and we have an obligation to examine our own jurisdiction and that of the district courts. Id.; see also FW/PBS Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990). As such, "[p]laintiffs must have standing at all stages of the litigation... and they bear the burden of proving it." Magnesium Elektron, 123 F.3d at 117.
Three requirements constitute the "irreducible constitutional minimum" of standing. McConnell, 540 U.S. at 225 (internal quotation omitted). First, a plaintiff must demonstrate an "injury in fact" that is "concrete," "distinct and palpable," and "actual or imminent." Id. (internal quotations omitted); Laidlaw, 528 U.S. at 180. It must be "an invasion of a concrete and particularized legally protected interest," id. at 227 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)), and may not be either "conjectural or hypothetical," Laidlaw, 528 U.S. at 180, or "too remote temporally."
McConnell, 540 U.S. at 226 (internal quotation omitted). That said, "an identifiable trifle is enough." United States v. Students Challenging Recruiting Agency Procedures, 412 U.S. 669, 689 n. 14 (1973); see also Gen. Instrument Corp., 197 F.3d at 87 (same); Pub. Interest Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990) (same).
Second, a plaintiff must demonstrate "a causal connection between the injury and the conduct complained of – the injury has to be 'fairly trace[able] to the challenged action of the defendant, and not... th[e] result [of] some third party not before the court." McConnell, 540 U.S. at 225 (internal quotations and citations omitted). Third, a plaintiff must show the "substantial likelihood that the requested relief will remedy the alleged injury in fact." Id. at 225-26 (internal quotation omitted). It must be "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Laidlaw, 528 U.S. at 181. Thus, "[a]lthough standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal,... it often turns on the nature and source of the claim asserted." McConnell, 540 U.S. at 227 (internal quotations omitted).
1. Standing of Individual Plaintiffs
Laidlaw, the Supreme Court's most recent explication of the injury-in-fact requirement in litigation arising under the federal environmental laws, instructs that courts may not "raise the standing hurdle higher than the necessary showing for success on the merits in an action." Laidlaw, 528 U.S. at 181. The action in Laidlaw arose under the citizen suit provision of the Clean Water Act, which authorizes federal district courts to entertain suits initiated by "'a person... having an interest which is or may be adversely affected.'" Id. at 173; 33 U.S.C. §§ 1365(a), (g).
In Laidlaw, one plaintiff averred, inter alia, that he would like to "camp" and "picnic... near" the river at issue, "but would not do so because he was concerned that the water was polluted by [defendant's] discharges." Laidlaw, 528 U.S. 181-82. Another plaintiff averred, inter alia, that she had previously "picnicked, walked" and "birdwatched... along" the river at issue and that she "no longer engaged in these activities because she was concerned about harmful effects from discharged pollutants." Id. at 182. The Court held that such statements "adequately documented injury in fact" because they averred "use of the affected area" and because they were "persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity.'" Id. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). The Court distinguished its decision in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), in which it had declined to find standing upon "'averments which state only that one of [the organization's] members uses unspecified portions of an immense tract of territory....'" Id. at 183 (quoting Lujan, 497 U.S. at 889). Further, the Court explained,
[T]he affiants' conditional statements... [cannot] be equated with the speculative "'some day' intentions" to visit endangered species half-way around the world that we held insufficient to show injury in fact in Defenders of Wildlife [, 504 U.S. at 564]....
[W]e see nothing "improbable" about the proposition that a company's continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms. The proposition is entirely reasonable, the District Court found it was true in this case, and that is enough for injury in fact.
Id. at 184-85. Under Laidlaw, the individual Plaintiffs' averments here are sufficient to establish injury-in-fact. One plaintiff averred, inter alia, that she has lived all of her life less than a quarter mile from the Site; that "I continue to be concerned about the risk to my health and the health of my son that may continue to be caused by exposure to waste from the adjacent [Site] when we pass by [it] and shop at the [supermarket one block from the Site]"; that the Hackensack River runs less than a quarter mile behind her home; that "[w]hen I was younger, I used to walk by the river on my way to events at Roosevelt Stadium"; that "[w]hen my sons were younger, they used to fish in the river"; that the "river is now dirty and contaminated with chromium and other pollutants"; that "[b]ecause of this pollution, I will no longer walk near or use the river and my sons will no longer fish in the river"; and that "[i]f the river were cleaner, I would walk next to the river and my sons would fish in it." She reaffirmed these statements in deposition testimony.
A second plaintiff averred, inter alia, that since 1991 she has also lived less than a quarter mile from the Site; that "I am concerned about the risk to my health and the health of my husband that may be caused by our exposure to chromiumbearing waste from the [Site] both at our home and when we pass by the Site and shop [a block from the Site]"; that the Hackensack River runs less than a quarter mile behind her home; that "I walk or bike by the river with my children almost every day when the weather is warm"; that "[t]he river is dirty and contaminated with other pollutants, which detracts from my enjoyment of the river"; and that "[i]f the river were cleaner, I would enjoy recreating near the river more." This plaintiff also reaffirmed these statements in her deposition.
Another plaintiff averred, inter alia, that he too lives less than a quarter mile from the Site; that "I am concerned about the risk to my health and the health of my family that may be caused by our exposure to chromium-bearing waste from the [Site] both at our home and when we pass by the site and shop at the [supermarket one block from the Site]"; that the Hackensack River flows less than a quarter mile behind his home; that "[t]he river is dirty and I understand it to be contaminated with chromium wastes, among other pollutants;" that "I avoid going near the river, because it is unpleasant to look at and because I am afraid that it may be harmful to my health"; and that "if the river were cleaner, I would enjoy walking near it." This plaintiff also reaffirmed these statements in deposition testimony.
A fourth plaintiff averred, inter alia, that for fifty years he has lived about two miles from the Site; that he must use "Jersey City Incinerator Authority gas pumps once or twice a month" located "adjacent to the [Site]"; and that he is "concerned about the risk to my health... that may continue to be caused by exposure to waste at the [Site] when I go to the ...