The opinion of the court was delivered by: Greenaway, Jr., U.S.C.J.*fn1
This matter comes before this Court on a motion by defendant PPG Industries, Inc. ("Defendant" or "PPG") for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), or, alternatively, for abstention, or a stay, against plaintiffs Interfaith Community Org., Inc., Graco Community Org., and Natural Resources Defense Council, Inc. (collectively, "Plaintiffs"). For the reasons set forth below, Defendant's motion shall be denied.
Plaintiffs bring this suit under the Resource Conservation and Recovery Act ("RCRA"), alleging that Defendant PPG contributed to chromium waste that may present an imminent and substantial endangerment to health or the environment.
Beginning in the mid-1920s, a chrome production facility was operated at 880 Garfield Avenue, Jersey City, New Jersey ("Garfield Site"). (Def. PPG Indus., Inc.'s Statement of Material Facts Not in Dispute in Supp. of its Mot. for Summ. J. ("Def.'s 56.1") ¶ 1.) From 1954 to 1963, this facility was utilized by PPG. (Id. ¶¶ 2-3.) The chrome production generated waste by-products on the site, one of which is a toxic chemical called hexavalent chromium. (Pls.' Response to Def.'s Statement of Material Facts and Pls.' Statement of Additional Material Facts in Opp. to Def.'s Mot. for Summ. J. ("Pls.' 56.1") ¶ 35; Def. PPG Indus. Inc.'s Resp. to Pls.' Statement of Additional Material Facts ("Def.'s 56.1 Reply") ¶ 35.)
The contamination caused by chromium production sites, including the Garfield Site, became the subject of litigation in New Jersey state court when the New Jersey Department of Environmental Protection ("DEP") filed an action against PPG, and other chrome production facility operators, in 2005.*fn2 (Def.'s 56.1 ¶¶ 5-6.) The DEP sought remediation of the chromium waste, pursuant to the New Jersey Spill Compensation and Control Act (the "Spill Act"), N.J. Stat. Ann. 58:10-23.11 to 23.24. (Certification of Joseph F. Lagrotteria, Esq. in Support of Mot. for Summ. J., Jul. 7, 2009 ("Lagrotteria Cert."), Ex. 2.)
On February 19, 2009, a proposed settlement was announced between the DEP and PPG, and a Consent Judgment was ultimately entered ("Consent Judgment").*fn3 (Def.'s 56.1 ¶ 13; Pls.' 56.1 ¶ 51; Def.'s 56.1 Reply ¶ 51.) The Garfield Site is included among the site remediations required under the Consent Judgment. (Def.'s 56.1 ¶ 14.) The Consent Judgment provides, among other things, that PPG shall remediate, with a five-year goal for completion, the soils and sources of contamination at the relevant sites. (Id. ¶¶ 17-18.) The remediation is governed by the terms of the Consent Judgment and the "Applicable Remedial Provisions," meaning all applicable statutes, regulations, and laws, including the DEP Commissioner's Chromium Policy (as it now exists or may be adopted in the future).(Id. ¶ 19.) Currently, the most stringent standard for chromium levels, as expressed in the Chromium Policy, is 20 parts per million ("ppm"). (See Pls.' 56.1 ¶¶ 42, 55; Def.'s 56.1 Reply ¶ 55.)
The Consent Judgment also has a claim release provision, releasing the DEP's RCRA claims against PPG:
Plaintiffs and Jersey City covenant not to sue and agree not to assert any claim against PPGor to take any further administrative, legal or equitable action available . . . regarding any discharge or release of Hazardous Substances . . . or any imminent and substantial endangerment posed by any discharge or release . . . under the Spill Act, CERCLA [Comprehensive Environmental Response, Compensation, and Liability Act], RCRA, common law, and any other local law or state or federal statute, regulation, or other authority.
After the DEP had commenced its state court action, Plaintiffs filed a notice of intent to sue under the RCRA, in February of 2006. (Id. ¶ 8.) Three years later, on February 3, 2009, shortly before the Consent Judgment was announced,*fn4 Plaintiffs initiated this suit. (Docket Entry No. 1.)
The imminent and substantial endangerment citizen suit provision of the RCRA provides, in pertinent part,
any person may commence a civil action on his own behalf . . . against any person, including the United States and any other governmental instrumentality or agency . . . who has contributed or is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.
42 U.S.C. § 6972(a)(1)(B).
Plaintiffs seek to require Defendant to remediate the Garfield Site proportional to Defendant's historical share of waste production. (Def.'s 56.1 ¶¶ 10-11; Pls.' 56.1 ¶¶ 10-11.) In particular, Plaintiffs seek a full delineation of chromium hazards, permanent removal of all contaminated soils, remediation of all indoor contamination, and complete remediation of contaminated groundwater. (See Docket Entry No. 1.)
Plaintiffs' allegations of an imminent and substantial danger is based, at least in part, on recently released information regarding hexavalent chromium. Particularly relevant is the "finalized risk assessment," formulated by the DEP's Division of Science, Research & Technology, and sent to the DEP Commissioner in April of 2009. (Pls.' 56.1 ¶ 52; Def.'s56.1 Reply ¶ 52; Decl. of Richard Webster in Opposition to Def.'s Mot. for Summ. J., Jul. 30, 2009 ("Webster Decl."), Ex. 12.) The risk assessment concludes that a human cancer slope factor corresponds to a soil remediation criterion for hexavalent chromium of 1 ppm.*fn5 (Webster Decl., Ex. 12.)
Based on this risk assessment, Plaintiffs filed a Petition for Rulemaking, requesting that the DEP promulgate a soil remediation standard for hexavalent chromium of 1 ppm. (Pls.' 56.1 ¶ 53.) Plaintiffs also petitioned for a remediation standard of 6 ppm, a standard Plaintiffs derived from the DEP risk assessment. (Id. ¶ 54.) The DEP denied both requests in June of 2009. (Id. ¶ 55.)
Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c), when the moving party demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir. 2009). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Justofin v. Metro. Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004). This Court views "the facts in the light most favorable to the nonmoving party and draw[s] all inferences in that party's favor." Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007) (internal citation omitted). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
When the moving party has the burden of proof on an issue at trial, that party has "the burden of supporting their motions 'with credible evidence . . . that would entitle [them] to a directed verdict if not controverted at trial.'" In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting Celotex, 477 U.S. at 331). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.
Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The non-movant cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Exp., Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to "set forth specific facts showing that there is a genuine issue for trial").
Defendant asserts several grounds for bringing this suit to a halt, with either the grant of summary judgment, or, alternatively, the grant of abstention or a stay.
In the first instance, Defendant contends that summary judgment should be granted because this action is moot as a result of the Consent Judgment. This Court disagrees.
The mootness principle draws from "Article III of the Constitution, 'under which the exercise of judicial power depends upon the existence of a case or controversy.'" DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964)).
Simply put, "federal courts are without the power to decide questions that cannot affect the rights of litigants in the case before them." Id. (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). An action may become moot at any stage of litigation, when a court "cannot grant 'any effectual relief'" in favor of the plaintiff. Calderon v. Moore, 518 U.S. 149, 150 (1996) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Even the availability of a "partial remedy," one that is not "fully satisfactory," avoids mootness. Id. (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992)).
PPG argues that because the Consent Judgment expressly resolved - through the claim release provision - all of the DEP's RCRA claims against PPG, Plaintiffs' claims are now moot. This overlooks the central issue in mootness: the availability of remedies.
Plaintiffs seek remedies outside of those provided in the Consent Judgment. Although the Consent Judgment addresses the same concern which underlies Plaintiffs' suit here - hazardous waste at the Garfield Site - it does not provide for all of the remedies that Plaintiffs seek, or that this Court may provide. Under the RCRA, this Court may order Defendant "to take such  action as may be necessary" to resolve an imminent and substantial endangerment. 42 U.S.C. § 6972(a); see also United States v. Price, 688 F.2d 204, 213-14 (3d Cir. 1982) (concluding § 6972(a)(1)(B) contains "expansive language" conferring upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes). In other words, the Consent Judgment requires that PPG remediate chromium levels to DEP's current standard of 20 ppm, but this Court could potentially, for instance, order remediation to a standard lower than 20 ppm.*fn6
PPG relies heavily on Ohio Valley, in which a district court found that a citizen suit was rendered partially moot by the West Virginia Department of Environmental Protection's ("WVDEP") prosecution. Ohio Valley Environmental Coalition, Inc. v. Hobet Mining, LLC, No. 3:08-0088, 2008 WL 5377799 (S.D.W. Va. Dec. 18, 2008). In Ohio Valley, the plaintiffs brought suit against the defendant, Hobet Mining, for its violations of effluent permits under the Clean Water Act. Id. at *3. After plaintiffs filed the complaint, Hobet Mining entered into a mandatory consent decree with WVDEP to cease violations of its permits. Id. at *3-4. The court concluded that plaintiffs' action was moot because there was no "realistic prospect that violations alleged in [plaintiffs'] complaint will continue notwithstanding the consent decree." Id. at *7.
Ohio Valley is easily distinguished. In Ohio Valley, the defendant had already agreed to do what, substantively, the plaintiffs' sought to require it to do: cease permit violations.*fn7 The consent decree provided the full remedy that the plaintiffs sought.*fn8
Here, PPG has not agreed to provide all the remedies which Plaintiffs seek. Furthermore, in contrast with permitting cases, PPG's liability cannot be established simply by establishing "compliance" or "non-compliance" with pre-existing state standards and regulations. Rather, the extent of Defendant's liability, if any, must be determined by a court. Therefore, PPG, unlike Hobet Mining, may be liable under the RCRA even if it complies with the state standards incorporated in the Consent Judgment. See Honeywell, 399 F.3d at 259-60 (holding a court may grant relief "as necessary" to abate endangerment, regardless of state standards).
There remains effectual relief that this Court may grant outside of the scope of relief provided for in the Consent Judgment.*fn9 This case is not moot.
B. Res Judicata / Full Faith & Credit
Defendant also argues that summary judgment should be granted because the Consent Judgment must be afforded Full Faith & Credit, and is, in essence, a res judicata bar to this suit. Plaintiffs counter that Full Faith and Credit is not required ...