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Raritan Baykeeper, Inc. v. NL Industries

May 26, 2010

RARITAN BAYKEEPER, INC. ET AL., PLAINTIFFS,
v.
NL INDUSTRIES, INC., ET AL., DEFENDANTS.



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

FOR PUBLICATION

OPINION

Presently before the Court is defendant NL Industries, Inc.'s ("NL") Motion to Dismiss plaintiffs Raritan Baykeeper, Inc. d/b/a NY/NJ Baykeeper and Edison Wetlands Association, Inc.'s (collectively "Raritan Baykeeper") Complaint without prejudice on abstention grounds, or alternatively for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Procedure 12(b)(6). For the reasons set forth below, NL's Motion to Dismiss is granted on abstention grounds and Raritan Baykeeper's Complaint is dismissed without prejudice.*fn1

I. Background

Raritan Baykeeper brought this citizen suit pursuant to section 7002(a)(1)(B) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), and section 505(a)(1) of the Federal Water Pollution Control Act (the "CWA"), 33 U.S.C. § 1365(a)(1), seeking remediation of contaminated sediments in the Raritan River located adjacent to a site formerly owned by NL (the "NL Site"). Amended Compl. at ¶¶ 1-2. Raritan Baykeeper also seeks a declaratory judgment, injunctive relief, imposition of civil penalties, and an award of costs, including attorneys' fees and expert witnesses' fees. Id. at ¶ 2.

The NL Site is located at 1000 Chevalier Avenue, Sayreville, New Jersey and consists of approximately 440 acres surrounded on three sides by the Raritan River. Id. at ¶ 52. The Garden State Parkway, U.S. Route 9, and State Highway 35 cross the NL Site. Id. NL acquired the site in the early 1930s. Id. at ¶ 53. From 1935 until 1982, NL manufactured titanium dioxide pigments on the site for use in various products. Id. In 1982, NL leased a portion of the property known as the "Marsulex Tract" and sold two sulfuric acid plants located on the Marsulex Tract to C-I-L Corporation of America ("C-I-L"). In 1989, Marsulex purchased the two sulfuric acid plants and took assignment of the lease from C-I-L. Id. Sulfuric acid was manufactured on the Marsulex Tract by both C-I-L and Marsulex. Id. NL assumed responsibility for environmental issues on the Marsulex Tract through a settlement agreement with Marsulex that was executed in 1997. Id.

The NL Site contains a lagoon system comprised of three lagoons covering 15 acres (the "Tertiary Lagoon"). Affidavit of Thomas T. Griffin, P.E. ("Griffin Affidavit") at Exhibit F, page 3.*fn2 The Tertiary Lagoon was used for the containment and settling of effluent from the plant and storm water runoff prior to discharge into the Raritan River pursuant to a New Jersey Department of Environmental Protection ("NJDEP") permit. Id.The NL Site also contains an area known as the North Ditch that is allegedly discharging contaminants into the Raritan River. Griffin Affidavit at Exhibit B, Part II, section 3. Raritan Baykeeper alleges that discharge from both the Tertiary Lagoon and the North Ditch are contributing to contamination of the Raritan River sediments adjacent to the NL Site. Amended Compl. at ¶ 67.

In 1988, NL began an environmental investigation of the NL Site as required by New Jersey's Environmental Cleanup Responsibility Act ("ECRA"), now known as the Industrial Site Recovery Act ("ISRA"). Id. at ¶ 54. The NJDEP issued an Administrative Consent Order ("ACO") on May 18, 1989, requiring NL to investigate environmental contamination on the NL Site, submit a clean-up plan to the NJDEP for approval, and implement the approved clean-up plan. Id.; Griffin Affidavit at Exhibit A. Investigation of environmental contamination and clean-up at the NL Site are ongoing under the ACO. Amended Compl. at ¶ 54.

The Borough of Sayreville ("Sayreville") designated the NL Site as an area in need of redevelopment pursuant to the Local Redevelopment and Housing Law in 1996. Affidavit of Christopher R. Gibson ("Gibson Affidavit") at Exhibit A, page 1. In 2005, the Sayreville Economic and Redevelopment Agency ("SERA") acquired the NL Site through eminent domain for the purpose of redevelopment. Amended Compl. at ¶ 55. O'Neill Properties Group. L.P. ("O'Neill") was selected as redeveloper for the NL Site. Id. Subsequently, O'Neill created Sayreville Seaport Associates, L.P. ("SSA") in order to purchase and redevelop the NL Site. Id. at ¶ 44. In 2008, NL, SERA, SSA, and Middlesex County entered into an agreement governing the sale of the NL Site (the "2008 Agreement"). Id. at ¶ 56. The 2008 Agreement calls for transfer of the NL Site through three separate closings. Id. at ¶ 57. At the first closing, which occurred in October 2008, SSA purchased a portion of the NL Site known as C Parcels, and Middlesex County purchased easements across the C Parcels and the B Parcel that run along the entire waterfront. Id. At the second closing, Middlesex County will purchase Parcel A to be held in the County's Open Space Inventory. Id. The purchase of Parcel A will be funded through grants obtained by SERA from the NJDEP and Sayreville. Id. In exchange for the grants, NJDEP and Sayreville will hold conservation easements on Parcel A. Id. Also at the second closing, SSA will purchase an easement on Parcel A for the construction of an access road and turnaround, and for development rights on Parcel A which would then be transferred to Parcel B and the C Parcels. Id. At the third closing, SSA will purchase Parcel B. Id. Extensive redevelopment is planned for the NL Site consisting of commercial and light industrial uses. Griffin Affidavit at Exhibit D, page 2.

The 2008 Agreement also settled the parties' respective responsibilities for environmental liabilities on the NL Site. Amended Compl. at ¶ 58; Affidavit of Christopher R. Gibson ("Gibson Affidavit") at Exhibit A, page 7. Pursuant to the 2008 Agreement, SERA entered into a Memorandum of Understanding ("MOU") with the NJDEP in which SERA assumed responsibility for nearly all environmental investigation and remediation on the NL Site. Amended Compl. at ¶ 58; Gibson Affidavit at Exhibit B, pages 7-8. SSA assumed responsibility for spearheading the clean-up effort at the NL Site by performing SERA's obligations under the MOU. Gibson Affidavit at Exhibit A, pages 7-8. NL retained responsibility for remediation of the Raritan River sediments adjacent to the NL Site. Amended Compl. at ¶ 58; Griffin Affidavit at Exhibit A, page 8. SSA also entered into an agreement with the NJDEP to resolve its liability resulting from contamination of the NL Site and Raritan River. Gibson Affidavit at Exhibit D. The terms of the MOU and of the agreement between SSA and the NJDEP regarding contamination of the NL Site and the Raritan River were made available to the public. Gibson Affidavit at Exhibit B, ¶ 63; Exhibit D, page 2. No public comments were made indicating that the agreements were inadequate. Gibson Affidavit at ¶ 17.

Under the agreements, SSA would first remediate the environmental contamination on Parcel A, which is designated for open space. Gibson Affidavit at ¶ 19. Parcel A is currently being remediated in accordance with an NJDEP approved Remedial Action Workplan ("RAWP"). Id. Remediation of Parcel A should be completed in summer 2010. Id. Two additional RAWPs have been submitted to the NJDEP by SSA and SERA. Id. at ¶ 20. The first additional RAWP proposes that conventional contaminants in the soils on the NL Site be removed for off-site disposal, and remediation of the North Ditch, and other impacted swales and ditches, by capping them with clean fill material. Id. Consequently, the North Ditch would be eliminated entirely. Id. The second additional RAWP would remove radiologically-impacted soil from the NL Site for off-site disposal. Id.

In accordance with its obligations under the ACO, NL took and analyzed samples of river sediments in the vicinity of the NL Site in June 2000, and July and August 2002. Amended Compl. at ¶ 63; Griffin Affidavit at ¶¶ 10-14. NJDEP has adopted the Marine/Estuarine Screening Guidelines as screening levels for contaminants contained in the sediments in marine or estuarine waters. Amended Compl. at ¶ 64. Contamination in the Effects Range-Low ("ERL") value has adverse benthic impacts in approximately 10% of studies. Id. Results of the June 2000 sampling were reported to the NJDEP in a report titled Remedial Investigation Report, Raritan River Surface Water and Sediment Sample Results (the "2000 Report"). Griffin Affidavit at ¶ 10. The June 2000 sampling revealed concentrations of arsenic, copper, lead, and zinc higher than ER-L values in nearly all samples taken. Id.; Amended Compl. at ¶ 65. Based upon the 2000 Report, NL observed that as a result of the geography of the Raritan River around the NL Site, sediments from contaminated upstream sources were deposited adjacent to the NL Site. Griffin Affidavit at Exhibit D, pages 107-108. NL identified several upstream sites, including the Horseshoe Road Superfund Site, and the Black Ditch/ Red Root Creek, as possible sources of contamination. Id. at page 108. The North Ditch, groundwater, and Tertiary Lagoon system were identified as possible on-site sources of sediment contamination. Id. at pages 107-108.

In July and August 2002, NL conducted additional sampling of the Raritan River sediments. Amended Compl. at ¶ 63; Griffin Affidavit at ¶ 14. NL reported the results of the July and August 2002 sampling to the NJDEP in a report titled Remedial Investigation Report, Supplemental Raritan River Sediment Sampling Results (the "2002 Report"). Griffin Affidavit at ¶ 14. The sampling revealed concentrations of arsenic, copper, lead, nickel, and zinc above NJDEP screening levels. Id. at Exhibit E, page 18. The spatial distribution of the contaminants indicated that off-site sources, including the Horseshoe Road Superfund Site, Black Ditch/ Red Root Creek, Crow's Mill Creek, Honsell's Creek, the Garden State Parkway, and State Route 35, caused the contamination of river sediments along the NL Site. Id. NL concluded that the North Ditch may be an on-site source of sediment contaminants. Id. NL also analyzed the relationship between the Tertiary Lagoon and the Raritan River. Id. at page 19. NL concluded that the Tertiary Lagoon did not have a significant impact on the Raritan River or the Raritan River sediments. Id.

On June 24, 2004, the NJDEP issued a comment letter in response to the 2002 Report. Amended Compl. at ¶ 72; Griffin Affidavit at ¶ 16. The NJDEP found that while elevated levels of contaminants were present in the river sediments adjacent to the NL Site, upstream sources, including the Horseshoe Road Superfund Site, contributed to the contamination, rendering any remediation of the sediments adjacent to the NL Site "short lived and ...


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