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Raritan Baykeeper, Inc. v. NL Industries, Inc.

United States District Court, D. New Jersey

September 30, 2014

RARITAN BAYKEEPER, INC., et al., Plaintiffs,
NL INDUSTRIES, INC., et al., Defendants.


DOUGLAS E. ARPERT, Magistrate Judge.

This matter comes before the Court on two motions: (1) a Motion to Bifurcate pursuant to Federal Rule of Civil Procedure 42(b) by Defendants NL Environmental Management Services, Inc. and NL Industries, Inc. (collectively "Defendants") [Dkt. No. 300]; and (2) a Motion by Plaintiffs to file opposition to the New Jersey Transit Authority ("NJTA")'s Brief in Support of Defendants' Motion to Bifurcate [Dkt. No. 308]. The Court heard oral argument on these motions on September 15th, 2014. For the reasons set forth below, Defendants' Motion to Bifurcate [Dkt. No. 300] is DENIED, and for the reasons set forth on the record, Plaintiffs' Motion to file opposition to NJTA's Brief in Support of Defendants' Motion to Bifurcate [Dkt. No. 308] is TERMINATED as MOOT.


The parties are intimately familiar with the history of this case and the facts pertaining to the present Motions. Accordingly, the Court will not recite them at length.[1] Defendant NL Industries, Inc. ("NL") operated a titanium dioxide pigment manufacturing facility on a portion of a 440-acre site in Sayreville, New Jersey from approximately 1935 to 1982. See Def.'s Br. at p. 4, Dkt. No. 300. In 1988, NL commenced an environmental investigation at the site under the Industrial Site Recovery Act ("ISRA"), N.J.S.A. ยง 13:1K-11.4, et seq. Id. NL worked with the New Jersey Department of Environmental Protection ("NJDEP") to identify and remediate most of the environmental issues throughout the site. See Id.

On June 24, 2004, NJDEP issued an opinion letter stating that NL should refrain from performing any remedial action concerning the contaminated river sediment at that time because "any remedial efforts targeted adjacent to the [site] would be short lived and of little ecological significance as recontamination, due to sedimentation, would occur within a relatively short period of time." Id. While the ISRA proceedings were continuing, the Sayreville Economic and Redevelopment Agency ("SERA") initiated eminent domain proceedings and took legal title to the site in March 2005. Id. at p. 5. SERA entered into a Memorandum of Understanding with the NJDEP which required SERA to take over responsibility for completing the cleanup of the remaining areas of concern at the site (the Tertiary Lagoon System, the North Ditch, and the groundwater). Id. at p. 7. Sayreville Seaport Associates, L.P. ("SSA") agreed by private contract with SERA to perform the cleanup activities required of SERA. Id.

On August 11, 2009, Plaintiffs brought this citizens' suit seeking declarations that NL violated provisions of the Resource Conservation and Recovery Act ("RCRA") and the Clean Water Act ("CWA").[2] See Plaintiffs' Complaint, Dkt. No. 1. In addition, Plaintiffs seek mandatory injunctions directing remediation of sediments in the river and cessation of alleged unpermitted discharges into the river from the three "source" areas on-site. Id. On July 15, 2013, U.S. District Judge Joel A. Pisano granted a stay as to Plaintiffs' claims related to the alleged onsite source areas and denied the stay as to Raritan's claims seeking injunctive relief with respect to Raritan River sediments adjacent to the site. See Dkt. No. 268.

Defendants filed the present Motion to Bifurcate on June 30, 2014 [Dkt. No. 300]. Plaintiffs filed their opposition to Defendants' Motion to Bifurcate on July 28, 2014 [Dkt. No. 304]. Also on July 28, 2014, NJTA filed a Brief in support of Defendants' Motion to Bifurcate [Dkt. No. 305]. Plaintiffs then filed the present Motion for leave to file opposition to NJTA's Brief in support of Defendants' Motion [Dkt. No. 308].


Motions to bifurcate are governed by Federal Rule of Civil Procedure 42(b). Pursuant to Rule 42(b), "[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims." Fed.R.Civ.P. 42(b). Under Rule 42(b), "a district court has broad discretion in separating issues and claims for trial as part of its wide discretion in trial management." Medpointe Healthcare, Inc. v. HiTech Pharmacal Co., Inc., 2007 WL 188285, at *5 (D.N.J. Jan. 22, 2007); see also Idzojtic v. Pennsylvania R.R. Co., 456 F.2d 1228, 1230 (3d Cir. 1972) ("The district court is given broad discretion in reaching its decision whether to separate the issues of liability").

In determining whether bifurcation is proper, "courts should consider whether bifurcation will avoid prejudice, conserve judicial resources, and enhance juror comprehension of the issues presented in the case." SenoRx, Inc. v. Hologic, Inc., 920 F.Supp.2d 565, 567 (D.Del. 2013) (citations omitted). The moving party has the burden of demonstrating that bifurcation would best serve the interests of judicial economy and that no party would be unduly prejudiced by separate trials. Ortho-McNeil v. Teva Pharmaceuticals USA, 2003 WL 25888720, at *2 (D.N.J. Jan. 28, 2003) (citing Princeton Biochemicals, Inc. v. Beckman Instruments, Inc., 180 F.R.D. 254, 256 (D.N.J. 1997)); see also Rodin Properties-Shore Mall, N.V. v. Cushman & Wakefield of Pennsylvania, Inc., 49 F.Supp.2d 709, 721 (D.N.J. 1999) ("Because a single trial tends to lessen the delay, expense and inconvenience to all parties, ' the burden rests on the party seeking bifurcation to show that it is proper").


Defendants argue that the Court should first determine whether Plaintiffs have demonstrated a remediable injury under RCRA, and then, if necessary, determine whether Defendants are responsible for that injury. Specifically, Defendants propose the bifurcation of this matter into two phases. Phase I would address whether the Raritan River sediments present an "imminent and substantial endangerment" under the third element of RCRA, and if so, whether any non-futile remedy can be implemented in light of the possibility of recontamination. Phase II, for which discovery would be stayed pending resolution of Phase I, would assign responsibility for implementing the remedy decided in Phase I to the proper party. According to Defendants, under their proposed bifurcation, Phase I could be dispositive of Plaintiffs' remaining claims and would "save the parties and the Court significant time, money, and effort and to expedite a conclusion to this litigation." Def.'s Br. At p. 4.

To prevail on a claim under RCRA, "a plaintiff must prove: (1) that the defendant is a person, including, but not limited to, one who was or is a generator or transporter of solid or hazardous waste or one who was or is an owner or operator of a solid or hazardous waste treatment, storage, or disposal facility; (2) that the defendant has contributed to or is contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and (3) that the solid or hazardous waste may present an imminent ...

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