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May 11, 2005.


The opinion of the court was delivered by: JEROME SIMANDLE, District Judge


I. Background

A. The GEMS Landfill, Owned by Gloucester Township This case involves the sixty-acre Gloucester Environmental Management Services, Inc. ("GEMS") Landfill, a federal Superfund hazardous waste site, located in Gloucester Township, Camden County, New Jersey, which was owned by the Township of Gloucester and operated by Amadei Sand & Gravel, Inc., and GEMS, in the late 1950s through 1980. See State of New Jersey Dept. of Envtl. Prot. v. Gloucester Envtl. Mgmt. Servs., Inc., 719 F. Supp. 325, 328 (D.N.J. 1989). The State of New Jersey, Department of Environmental Protection ("NJDEP") originally brought the case in New Jersey Superior Court in 1980, seeking proper closure and remediation of the Landfill which was caused by the dumping of hazardous wastes; the case was eventually removed to federal court in 1984. Id. The United States also filed suit for recovery of response costs and other remedies under the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA" or "Superfund"), 42 U.S.C. § 9601, et seq., in 1992. The State and Federal cases were combined and coordinated for all purposes. Several hundred parties were joined as alleged generators or haulers of wastes to the GEMS Landfill, including many municipalities in Southern New Jersey, industrial plants, waste processing facilities, trucking companies and other institutions, both private and public.

  Congress has placed broad powers upon the United States Environmental Protection Agency ("EPA") to determine the appropriate responses and remedial actions to protect the environment at the nation's hazardous waste sites, subject to review in federal court, pursuant to the CERCLA or "Superfund" statute.

  In the early 1980s, the Landfill was placed by EPA on the National Priorities List ("NPL") pursuant to CERCLA. After reviewing the nature and extent of contamination, the EPA issued a Record of Decision ("ROD") on September 27, 1985, which called for various measures to be implemented at the GEMS Landfill including the installation of security fencing, the implementation of an environmental monitoring program, the installation of a clay cap and gas venting system, and the extraction and treatment of contaminated groundwater. According to the ROD, this groundwater could be treated completely on-site and discharged to surface water, or alternatively, treated partially on-site and conveyed to the regional publicly-owned treatment works ("POTW"), the Camden County Municipal Utilities Authority ("CCMUA").

  In this litigation, intensive exchange of pretrial discovery and scientific and engineering studies led to the preliminary (Phase I) remediation settlement in 1989 and the final (Phase II) remediation settlement in 1997 to provide for the cleanup of the GEMS Landfill, financed by the responsible parties, over a 30-year period. B. The 1997 Consent Decree

  On June 27, 1997, the parties to the suit entered into a Consent Decree, which had been negotiated over an extensive period of time, undergoing a period of public comment and review and a hearing, during which time no objection was raised with respect to the proposed remediation plan for the Landfill. The terms of the Consent Decree required the construction of a Groundwater Extraction System ("GWE") and an On-Site Groundwater Pre-Treatment ("OSPT") System as shown in the Pre-Trial Remedial Design Report which was attached to the Consent Decree, and the operation of the GWE and OSPT systems with discharge of the treated water to the Gloucester Township Municipal Utilities Authority ("GTMUA") sewerage system for final treatment at the CCMUA. This remedial action, including the extraction and treatment of contaminated groundwater underlying the Site, was selected by the EPA, with concurrence by the NJDEP, pursuant to CERCLA. All parties, including the United States, the NJDEP, Gloucester Township, and representatives of the hundreds of potentially responsible parties, urged the Court to adopt the Consent Decree. After public notice of the proposed Consent Decree and an opportunity for any opposition to be considered at a hearing, this Court approved the Consent Decree under the authority of CERCLA. C. The GTMUA Sewer Service Agreement

  In addition, the GTMUA and the Trust executed a Sewer Service Agreement ("Sewer Agreement") on May 28, 1997, which permitted the discharge of treated effluent from the GEMS Landfill to flow through the GTMUA's sewage system, and required the Trust to pay a $400,000 one-time connection fee along with annual user fees. The Sewer Agreement was attached to and was made part of the Consent Decree.

  The Trust paid the $400,000 connection fee to the GTMUA in two installments, and also paid its connection fee of over $1.7 million to the CCMUA, receiving from the CCMUA a permit for discharge. In addition, as of June 1999, the Trust constructed the GWE and OSPT systems, according to the terms of the Consent Decree, and prepared to begin the one-year "start-up" phase.

  D. The Discovery and Remediation of Radionuclides

  Prior to the start-up phase, the CCMUA requested that samples of effluent from the Landfill be analyzed for radionuclides. In late 1999 to 2000, a series of tests indicated low levels of radionuclides*fn1 in the wells of the Landfill, raising concerns with federal, state and local agencies. The analysis indicated the low level presence of gross alpha and gross beta particle activity, causing the CCMUA to issue a Cease and Desist Order on June 15, 1999, prior to the start-up. The CCMUA subsequently informed the Trust that it was sending the radionuclide data to the EPA and NJDEP for confirmation that the radionuclide levels found in the discharge would be acceptable for the system. The detection of the low-level radionuclides prompted careful study, reconsideration and actual testing. The Court convened a conference in March 2001, at which the Trust, the EPA, the NJDEP, and the CCMUA agreed to negotiate a plan to proceed with a baseline study and trial operation of the OSPT, with the effluent going to the CCMUA. The parties were subsequently involved in nearly a year-long negotiations process, which also determined what levels of radionuclides would be permitted during the trial operation of the OSPT. In July 2000, the Trust's radiation expert, Van Pelt Associates, had issued a report regarding the existence and concentrations of radionuclides in the GEMS area groundwater. The CCMUA also enlisted its own radiation consultant to develop a discharge standard for radionuclides. In August 2001, the CCMUA consultant proposed a discharge limit for radionuclides which would be applicable to the GEMS discharge during the trial operation of the OSPT.*fn2 The CCMUA then proceeded to public hearings regarding the proposed radionuclide discharge limits as recommended by its experts. The CCMUA had developed a Work Plan that proposed to govern the discharge of the GEMS effluent to the CCMUA, having received input from the EPA and the Trust, but no response or feedback from the NJDEP. The CCMUA then sent a letter to the NJDEP on August 31, 2001 stating its intention to apply the proposed standard to the GEMS discharge, giving it a 45-day period in which to comment. After the 45-day period, the CCMUA again notified the NJDEP of its intentions on October 25, 2001. The NJDEP replied by letter dated November 1, 2001, indicating that it had technical concerns regarding the CCMUA consultant's study, but stating that it would not share those concerns at that time. The parties were unable to reach agreement on the standard to be applied.

  In fall 2002, the CCMUA adopted the even more stringent national drinking water standards (MCLs) as the standard it would apply to radionuclides associated with any discharge from the GEMS Landfill.*fn3 The CCMUA notified the NJDEP and the EPA of its position that it would not accept the groundwater unless "all radionuclides are removed on-site to meet drinking water standards, and all other pollutants are removed on-site to meet normal industrial sewerage standards." The CCMUA therefore required that the pre-treated GEMS Landfill wastewater must meet the standards for drinking water (as far as radionuclides are concerned) before discharge to the CCMUA could be permitted.

  E. The Eight-Month Pilot Study

  Meanwhile, the Trust had submitted an application to the NJDEP in the summer of 2001 to permit the discharge of treated effluent from the OSPT System by surface water to Holly Run on a trial basis, as a contingency plan in the event the sewer trial could not be realized. The original proposed sewer trial would have provided for pre-treatment of the Landfill water and discharge of the water into the CCMUA system, whereas the contingency surface water trial would treat the water on-site and discharge it to Holly Run. A stipulation providing for a six-month sewer trial was submitted to the Court in March 2002, though a regional drought problem surfaced and the parties agreed to postpone the sewer trial. The parties thus agreed to implement a 90-day surface water pilot study, for which the Trust had previously obtained a surface water permit from the NJDEP. The Trust additionally added a solids removal system to its OSPT system to facilitate the removal of suspended solids from the effluent. The discharge to the CCMUA consequently never occurred, while the temporary pilot discharge of treated effluent to Holly Run went forward in accordance with the testing and measurement protocols to which all parties agreed.

  The surface water pilot study commenced on April 10, 2002, and continued for eight months.*fn4 During that time, in accordance with the pre-approved testing protocols, the Trust pumped and tested from the GEMS Landfill groundwater extraction wells, monitored weekly the readings they obtained of the effluent from and influent into the OSPT, and analyzed the levels of radionuclides in the treated groundwater that was then discharged into Holly Run. The Trust's engineering evaluation*fn5 of December 20, 2002 confirmed that the effluent from the OSPT System met drinking water standards for radionuclides:*fn6 Radionuclides are below the permit equivalent limits, which are the same as drinking water quality for radionuclide parameters. Routine monthly reports are submitted to the USEPA and NJDEP pursuant to the agency-approved Work Plan for Discharge to Surface Water Pilot Study and the surface water discharge permit equivalent. These reports continue to show compliance with the permit equivalent limits including radionuclides, except for the non-radiological parameters [total dissolved solids, ammonia, and chemical oxygen demand] noted above.

Of note, the GEMS treatment plant effluent data have consistently demonstrated that with the addition of solids removal (rather than solids return as originally provided for in the constructed design), the plant is capable of meeting Maximum Contaminant Levels (MCLs, i.e., drinking water quality) as the radionuclide permit limits for a discharge to the CCMUA.
(Discharge Alternatives Evaluation, GEMS Landfill, at 2-1) Thus, the engineering report found that radionuclides existed in very low levels, that on-site treatment further reduced the trace amounts of radionuclides, that the treatment on-site met all the standards contained in the Permit received by the Trust, and furthermore, that the effluent met the MCL discharge (drinking water) standard for radionuclides. The final data generated in December 2002 further confirmed that radionuclides pose no risk to human health.*fn7 It may be instructive for the Court to summarize these findings in TABLE I, below, by comparing the actual observed values of the GEMS Landfill water discharged after treatment during the eight month pilot study (Line 1 below), with the EPA's National Primary Drinking Water Standards (MCLs) promulgated in 2000 at 40 C.F.R. § 141.66 (Line 2 below), with the CCMUA's original proposed permit levels in 2001 (Line 3 below), and with the standards for discharge of radionuclides to sanitary sewer systems in New Jersey promulgated by the NJDEP at N.J.A.C. 7:28-11.2 (Line 4 below). TABLE I: Radionuclides Contained in GEMS Landfill Pretreated Effluent (2002-2003 Pilot Study)

  Radium-226 Radium-228 Uranium

 GEMS Pretreated TOTAL: 1.75 to 4.73 pCi/L 2.33 to 9.68 Effluent pCi/L

 EPA Drinking 5 pCi/L 5 pCi/L 30 pCi/L Water Standards ("MCLs")

 CCMUA's Original 60 pCi/L 42 pCi/L 220 pCi/L Proposed Permit Levels

 NJDEP Sanitary 400 pCi/L 800 pCi/L 20,000 pCi/L Sewer Limits

  These measured values for radium-226 and radium-228 in the GEMS pilot study, ranging from 1.75 to 4.73 picocuries per liter, represent the total of the combined raw results for the individual readings of each isotope. This means that the actual value for either component is lower than the combined value reflected in the chart. The lower individual values also demonstrate a significant margin of safety before the Drinking Water Standard of 5 pCi/L would be exceeded.

  The eight-month pilot study also yielded better data about the concentration of radionuclides in the untreated Landfill water, as measured by the pumped water influent into the on-site plant. After about six (6) months of running the pump-and-treat pilot study, the groundwater system was believed to reach steady state, and the radionuclide content did not vary significantly from month to month of measurements.

  The NJDEP, in a letter dated February 19, 2003, stated that its Bureau of Environmental Radiation ("BER") "believes that discharge to the CCMUA is an acceptable alternative." The NJDEP continued, however, to request additional sampling and gathering of information.

  F. May 2003 Order Enforcing the Consent Decree

  As the CCMUA had withdrawn its permit when the radionuclides issue arose, and the CCMUA and NJDEP were not in agreement regarding the conditions for accepting the discharge, the Trust filed a Motion to Enforce the Consent Decree on April 3, 2003. The Trust sought an order of this Court to move forward with the permitting process so that the CCMUA could issue a discharge permit which would allow pretreated effluent from the GEMS Site to be directed to CCMUA's plant. The GTMUA submitted its opposition to the motion, arguing that the GEMS Trust had materially breached the Sewer Service Agreement the two parties had entered into on May 28, 1997, by failing to comply with contractually required conditions. The EPA, meanwhile, on April 23, 2003, issued a letter to the Trust indicating that it should proceed with its efforts to obtain a permit from the CCMUA.*fn8 The NJDEP, having participated fully in the pilot study and confirming that the pretreated effluent posed no radionuclide problem, had no opposition to going forward with the remediation by discharge to CCMUA, subject to reasonable permit requirements by CCMUA. This Court issued an Opinion and Order, on May 29, 2003, that upheld the Consent Decree and ordered the CCMUA, with the NJDEP's cooperation, to finalize the draft permit. See State of New Jersey Dept. of Envtl. Prot. v. Gloucester Envtl. Mgmt. Servs., Inc., 264 F. Supp. 2d 165 (D.N.J. 2003).

  G. Final Permitting Following this Court's Order of May 29, 2003, the NJDEP and the CCMUA agreed on a draft permit, which became the subject of public hearings.*fn9 There was strenuous public opposition to the issuing of the CCMUA permit to receive this pretreated effluent into the regional sewage treatment system; according to counsel, the opposition centered upon the treatment of radionuclides that remained in the pretreated effluent, albeit in trace amounts. During the comment period, however, Carole Peterson, Chief, New Jersey Remediation Branch, EPA Region II, received a letter, dated September 9, 2003, from the NJDEP's Bruce Venner that stated that the Trust had not provided Classification Exception Area ("CEA") groundwater monitoring data, although the State had requested it in a meeting on June 24, 2003 and a letter of August 1, 2003. The CEA delineation report was approved by the State by letter dated July 6, 1998. A report of this type is required in every area determined to be a CEA. In this instance, because the CEA was being developed in recognition that a remedial action was to be taken at the GEMS Site, the CEA report for the GEMS Site specifically refers to the groundwater performance monitoring program attached to the Consent Decree as Appendix G. The "Groundwater Performance Monitoring Plan" requires hydraulic monitoring and groundwater monitoring with sampling to occur after operation of the remedial system begins. Furthermore, the Hydrogeological Remedial Action Work Plan — approved by both EPA and the State of New Jersey — states that groundwater performance monitoring of the aquifers underlying the GEMS Site will commence once continuous operations officially begin.

  While the CCMUA's public hearing process was taking place, NJDEP Commissioner Bradley Campbell wrote to CCMUA Executive Director Herman Engelbert on September 10, 2003, expressing for the first time "strong objections to the draft discharge permit." (See Certification of Bradley M. Campbell). Commissioner Campbell gave several reasons for his opposition, including the NJDEP's longstanding preference for an on-site remedy, his concerns about the failure of the Trust to provide data needed for the establishment of a CEA, an error in the CCMUA public notice related to the draft permit, and concerns expressed by interested citizens in the Camden County area. (Id.). By copy of that letter, Commissioner Campbell also requested that the EPA Regional Administrator reopen the ROD to consider an on-site remedy.

  Several telephone conferences were held with the parties and this Court, including one on November 6, 2003. During that conference, this Court allowed the NJDEP to supply to the CCMUA, on or before December 6, 2003, the NJDEP's comments on the permit record. (See Certification of Richard F. Engel, ¶ 3). On November 7, 2003, the NJDEP received a copy of a letter sent by the United States Nuclear Regulatory Commission ("NRC") to Congressman Robert Andrews on November 4, 2003, which raised questions about the sources of radioactivity in the Landfill. (See Campbell Cert. at ¶ 7). The NRC stated that eight of the primary responsible parties identified as having allegedly contributed some sort of waste to GEMS were also licensed to handle uranium, a substance that has been detected in ground water at the Landfill. (Id.). The NJDEP stated that it requested, but has not yet received, additional information regarding these licensees' activities to gain a clearer understanding of whether uranium may have been deposited at GEMS and, if so, in what amounts. (Id. at ¶ 8). The NJDEP forwarded the NRC letter to the parties and to the Court. The NRC completed its search for possible sources of radionuclides in 2004, which was exhaustive, turning up no information to indicate disposal of radioactive materials at GEMS.*fn10

  On December 5, 2003, the NJDEP commented to the CCMUA concerning the record of the public hearings, urging the CCMUA not to issue the permit. (See Engel Cert. at ¶ 4 and Ex. B). Commissioner Campbell voiced the same concerns about the NRC information, the Trust's alleged failure of monitoring groundwater, and NJDEP's preference for on-site treatment and wastewater management. (Id.)

  Meanwhile, the EPA Regional Administrator, Jane M. Kenny, by letter dated November 5, 2003, responded to Commissioner Campbell's request to reopen the ROD to consider an on-site remedy. (Quinn Decl., Ex. 14). She reviewed the allegation of the Trust's non-compliance with CEA monitoring and found it had no merit, since the particular requisites were not effective until the remedy was in operation, discharging the treated effluent to CCMUA. She also found that there was no basis for reopening the ROD, finding that "the remedial approach selected in the 1985 ROD and agreed to in the 1997 Consent Decree, as implemented by the GEMS Trust, is protective of human health and the environment." (Id. at p. 2). This conclusion was based on the modifications to the on-site groundwater pretreatment system, in which the GEMS Trust was installing suspended solids removal equipment to ensure that the radionuclide levels will not exceed the standard established by the federal and state Safe Drinking Water Acts, all consistent with the CCMUA's draft permit requiring such compliance. (Id.) On December 10, 2003, this Court conducted another telephone conference with the parties and ordered the NJDEP to file a motion by December 24, 2003 if the NJDEP wished to seek to modify the 1997 Consent Decree.

  Meanwhile, the CCMUA submitted to the EPA a memorandum dated December 8, 2003 by Dr. Nidal Rabah. (CCMUA Ex. D). Dr. Rabah, a consulting environmental engineer with PMK Group in Cranford, New Jersey, presented at the request of Camden County a "summary of a Preliminary Technical Review of the selected groundwater remedy in the Record of Decision (ROD) of the GEMS Landfill." (Id. at p. 1). Dr. Rabah's conclusions are said to be "considered preliminary and are contingent on further review and assessment of additional data and documents." (Id.) In these preliminary views, he urges further study of contaminant delineation and source assessment to detect whether "hotspots" of radionuclides are present, because many of the readings exceed the naturally-occurring background levels in the regional groundwater. (Id.) Dr. Rabah also questions whether there is sufficient certainty about the effectiveness of the on-site treatment system and the impacts upon the CCMUA system. (Id. at pp. 3-4). Dr. Rabah proposes reconsideration of groundwater reinjection at the Landfill, which he opines will be less costly than the selected remedy. (Id. at pp. 5-6). The EPA studied Dr. Rabah's suggestions and addressed them in some detail in the Memorandum of Brian Quinn, dated December 18, 2003 and the Memorandum of EPA Geologist Andy Crossland, dated December 17, 2003 attached thereto. (Quinn Cert. at ...

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