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Delaware Riverkeeper Network v. Soil Safe, Inc.

United States District Court, D. New Jersey, Camden Vicinage

June 30, 2017

DELAWARE RIVERKEEPER NETWORK, et al., Plaintiffs,
v.
SOIL SAFE, INC., Defendant.

          Gerald J. Williams, Esq. Nicholas B. Patton, Esq. Christopher Markos, Esq. Williams, Cuker & Berezofsky, Esqs. Attorneys for Plaintiffs

          Christopher Gibson, Esq. Patrick M. Flynn, Esq. Archer & Greiner, PC Attorneys for Defendant

          OPINION

          RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE

         Contents

         I. Findings of Fact ..................................................... 4

         A. The Parties ........................................................... 4

         i. Soil Safe, Inc. . ....................................................... 4

         ii. Plaintiffs ................................................................. 5

         B. The Sites and Surrounding Area ............................ 11

         i. The Logan Equine Park Site ................................... 11

         ii. The Birch Creek Site ............................................. 13

         iii. The Gloucester County Park Site .......................... 13

         C. The Soil Recycling Process .................................. 16

         i. Incoming Soil ........................................................ 17

         ii. Recycling Process ................................................ 21

         iii. Oversight and Testing .......................................... 26

         D. The Application of Soil Safe Product ................... 28

         E. Recycling and Soil Safe's Product ........................ 31

         F. Ecological Impact ............................................... 33

         i. Testing of the Area at Issue .................................. 33

         ii. Stockpile Sampling ............................................. 37

         iii. Guidance as to Ecological Evaluation ................. 38

         iv. Ecological Evaluation ....................................... 40

         II. Conclusions of Law ......................................... 45

         A. Standing ......................................................... 45

         i. General Legal Standard .................................... 45

         ii. Plaintiffs' Standing to Pursue RCRA Claim........ 48

         B. RCRA ........................................................... 57

         i. General Legal Standard ................................... 58

         ii. Solid Waste ................................................... 59

         iii. Imminent and Substantial Harm ..................... 74

         III. Conclusion .................................................. 80

         The Court conducted a four-day bench trial in this matter from March 21, 2017 through March 24, 2017 concerning Plaintiff's claim pursuant to the Resource Conservation and Recovery Act (“RCRA”). At the conclusion of the trial, the Court solicited legal briefs from the parties as well as proposed findings of fact. The Court has considered the evidence adduced at trial and the briefs submitted by the parties. For the reasons set forth below, the Court concludes that Plaintiffs have not established that Soil Safe's product is a solid waste or that it may present an imminent and substantial harm to the environment. Accordingly, the Court enters final judgment in favor of Soil Safe.

         Having considered the testimony and other evidence, as well as the parties' contentions in regard to the evidence and the law, the Court makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52. To the extent any of the Court's findings of fact incorporate a conclusion of law, such conclusions of law are adopted. Likewise, to the extent any of the Court's conclusions of law embody a finding of fact not set forth in the findings of fact, the Court adopts such finding of fact.

         I. FINDINGS OF FACT

         A. The Parties

         i. Soil Safe, Inc.

         1. Soil Safe, Inc. (“the Defendant” or “Soil Safe”) is a company that has been in business for over 25 years and in business in New Jersey for over 20 years. Joint Statement of Undisputed Facts (“JSOF”), at ¶ 68 [ECF No. 150]. Soil Safe currently has operations in New Jersey, Maryland, and California. Id. ¶ 69. Soil Safe owns a soil recycling center in Logan Township, Gloucester County, New Jersey (the “Logan Recycling Center”). Id. ¶¶ 1, 3 [ECF No. 150]. The Logan Recycling Center is a “recycling center for Class B recyclable materials” as that term is defined in New Jersey's Recycling Regulations. Id. ¶ 3; Def.'s Ex. 1 (Class B Permit).

         ii. Plaintiffs

         2. Plaintiff Maya van Rossum was a witness in this case as the Delaware Riverkeeper, a role she has occupied for the other plaintiff in this case the Delaware Riverkeeper Network (“Delaware Riverkeeper Network” and collectively, “Plaintiffs”) since 1996. Trial Tr. 26:18-22, 27:14-18.

         3. The Delaware Riverkeeper Network was organized in 1988 and currently has approximately 20, 000 members. Id. at 27:13, 28:22-24. As set forth by Ms. van Rossum, the Delaware Riverkeeper Network is a non-profit organization whose mission is to “champion the rights of communities to the Delaware River and tributary streams that are free flowing, healthy[, ] and abundant with the diversity of life.” Id. at 27:2-6. The Delaware Riverkeeper Network has several programs through which it purports to accomplish this mission, including a litigation program, a stream bank restoration program, and a citizen monitoring program. Id. at 27:6-10. The Delaware Riverkeeper Network also has an educational component. Id. at 27:10-11.

         4. The Delaware Riverkeeper Network limits its focus to the Delaware River watershed and all issues that might impact the main-stem Delaware River and its tributaries. Id. at 28:1-3.

         5. Birch Creek and Raccoon Creek, two bodies of water at the center of this case, are both parts of the Delaware River watershed. Id. at 28:17-21. In her capacity as the Delaware Riverkeeper, Ms. van Rossum is aware of members of the Delaware Riverkeeper Network using Birch Creek and Raccoon Creek. Id. at 30:7-8. The Delaware Riverkeeper Network has many members that enjoy the Delaware River watershed, including the main-stem river and tributaries, which also includes the area of the DREAM Park. Id. at 35:4-9.

         6. Ms. van Rossum lives in Bryn Mawr, Pennsylvania and, accordingly, she does not live near the property in Logan Township, New Jersey where Soil Safe's Logan Recycling Center is located or Soil Safe's product was used as relevant to this case. Id. at 46:1. Additionally, Ms. van Rossum has never been to the Birch Creek Site (discussed below), nor has she engaged in any recreational activities there. Id. at 46:15-23, 47:5-7. This includes any usage or planned usage of the equestrian facilities at issue in this case. Id. at 48:1-2. Ms. van Rossum does, however, engage in recreational activities on the Delaware River adjacent to the DREAM Park. Id. at 48:5-6.

         7. With regard to the two creeks involved in this case, Ms. van Rossum has been on one kayak trip on Raccoon Creek. Id. at 49:17-23. Ms. van Rossum anticipates visiting Raccoon Creek again at some point, although she does not have a specified time at which she anticipates doing so. Id. at 50:5-8. She makes a practice of trying to visit various portions of the watershed to appreciate them. Id. at 50:1-2.

         8. Ms. van Rossum's enjoyment of her use of the Delaware River has diminished because she believes that Soil Safe's operations are ongoing and create potential implications for water quality because Raccoon Creek and Birch Creek are tributaries of the Delaware River. Id. at 50:22-51:5. Specifically, Ms. van Rossum passionately testified to her personal belief that Soil Safe was contaminating the Delaware River and its tributaries and that “does impact [her] enjoyment of the Delaware River when [she] go[es] into that reach of the river, knowing that those operations are ongoing, that there are potential implications of water quality, whether it's on the tributary or on the main stem river, as well as the ecological system's critters that [she] ha[s] worked very long and hard to protect because of professional appreciation for them and a personal appreciation of them does impact [her] enjoyment when [she] visit[s] that reach of the river, both [her] recreational enjoyment and [her] aesthetic enjoyment.” Id. at 50:22-51:5.

         9. Ms. van Rossum has used the Delaware River between Raccoon Creek and Birch Creek, both professionally and personally. Id. at 32:6-9. She testified that when she uses a boat in this area, there is a lot of water spray, so one would expect to get wet while boating there. Id. at 33:22-23. She credibly testified that she plans to continue her work in the area, including in the tributaries of the Delaware River to “undertake both recreational activities as well as environmental protection activities.” Id. at 33:5-11.

         10. Ms. van Rossum also testified that she is concerned about Soil Safe's activities in the following way: “Well, me as the Delaware Riverkeeper, professionally and personally, it's very concerning. We have a lot of members that enjoy that area of the Delaware River [w]ater[s]hed, including the main[-]stem and the tributaries, including the park area. And so, you know, it's a concern about how they are going to be impacted. It's a concern about how the aquatic ecosystems, how the water quality of those waterways will be impacted having these dangerous contaminants introduced, whether it be through ground water, surface water, runoff, through the air.” Id. at 35:4-13.

         11. Ms. van Rossum and the Delaware Riverkeeper Network pursued this litigation after learning in 2012 there might be contamination of the Delaware River watershed as part of Soil Safe's operations. Soil Safe Proposed Findings of Fact and Pls.' Resps. (“Soil Safe PFOF & PR”) ¶ 30 [ECF No. 155]; Trial Tr. 40:17-21. The lawsuit was filed after Delaware Riverkeeper Network engaged in a “significant amount” of independent analysis of these concerns and formed the belief that there was an issue of concern with regard to Soil Safe's operations and what they believed to be a potential violation of law that needed to be addressed through legal action. Trial Tr. 40:17-41:14.

         12. Louis Perti, a resident of Aston, Pennsylvania, has been a member of the Delaware Riverkeeper Network since 2013. Soil Safe PFOF & PR ¶ 18; Trial Tr. 80:20-23. He is an avid outdoorsman, enjoying recreational activities such as fishing, crabbing, sightseeing, and boating in the areas of Raccoon Creek and Birch Creek. Trial Tr. 79:23-80:3. He has been engaging in this type of activity for 42 years. Id. at 80:4-7.

         13. Mr. Perti further credibly testified that he uses portions of Birch Creek and Raccoon Creek; however, he also testified one cannot access Birch Creek past “a certain point” because of access issues by boat. Id. at 81:2-5.

         14. Mr. Perti is also the director of the Delaware River Striper Tournament, which is a fishing tournament that has been held for eight years. Id. at 81:8-10. Raccoon Creek is one of the “premier fishing areas” in the tournament that he runs. Id. at 88:17-18. He plans to continue running that tournament in the future. Id. at 92:17.

         15. Mr. Perti has visited the Birch Creek area to see if sediment from Soil Safe's operations is present there. Id. at 93:17-21.

         16. One fishing route that Mr. Perti has followed is to “[s]tart fishing the Raccoon Creek. I'll work my way to Birch, to Oldman's, all the way down to Carneys Point, down to the Delaware Memorial Bridge.” Id. at 96:25-97:2. In following this fishing route, Mr. Perti observed “in the area of Birch Creek” that the “soil was running off into Birch Creek[.]” Id. at 96:19-20.

         17. Mr. Perti greatly enjoys fishing the Delaware River from the Salem Nuclear Plant to Trenton, an area of at least 60 or 70 nautical miles. Id. at 112:12-14. He particularly enjoys fishing the tributaries that flow into the Delaware River. Id. at 112:17-19. He greatly enjoys exploring those tributaries and finding out “what's going on in there[.]” Id.

         18. Although Mr. Perti testified that it was difficult to say how Soil Safe's activities affected his enjoyment of the river because he is still actively fishing in the area, Id. at 93:15-21, the Court finds that Mr. Perti answered this question with the understanding that he was being asked if he no longer uses the Raccoon Creek for fishing, which he does. Id. at 93:22-23. Nevertheless, the Court also finds Mr. Perti to be genuinely concerned about the aquatic life in the area as a result of problematic silt he perceived to be coming from Soil Safe. He is specifically concerned that silt kills much of the habitat for bait fish eaten by stripers, which he fishes and which are central to his fishing tournament. Id. at 98:2-8.

         19. Mr. Perti's fishing tournament has grown over the years; however, this increase has much to do with the weather. Id. at 122:12-13, 124:16.

         20. Mr. Perti also testified that he is worried that leaching of materials from Soil Safe's operation have a carcinogenic effect, although he has not communicated that to anyone he knows fishing in Raccoon Creek. Id. at 25:14-24.

         B. The Sites and Surrounding Area

         21. From the early 1950s through the 1980s, the United States Army Corp of Engineers used the property at issue in this case for placement of dredged materials from the Delaware River. JSOF ¶¶ 66, 113.

         22. The Class B Recycling Permit authorizes use of Soil Safe Product at three specified “End Market Sites”: (i) the Logan Equine Park Site, which is owned by the Gloucester County Improvement Authority (“GCIA”); (ii) the Birch Creek Site, which is owned by Soil Safe; and (iii) the Gloucester County Park Site, also owned by the GCIA. Id. ¶ 8.

         i. The Logan Equine Park Site

         23. Pre-development testing of the Logan Equine Park Site determined that the historic fill material present at the site contained elevated levels of several contaminants above the most stringent criteria then in effect from the New Jersey Department of Environmental Protection (“NJDEP”), the Residential Direct Contact Soil Cleanup Criteria (“RDCSCC”). Id. ¶ 114.

         24. However, the near surface soils at the Logan Equine Park Site did not contain contaminants of concern under the RDCSCC, which made a remedial cap unnecessary. Id. ¶ 115. However, fill material was brought in for geotechnical stabilization to permit the planned construction of buildings and roads on the soft, unstable dredge covering the site. Id. ¶¶ 115-16.

         25. The GCIA approached Soil Safe with the intent to secure Soil Safe product as geotechnical fill at the Logan Equine Park. Id. ¶ 117.

         26. The Logan Equine Park is a 71-acre part of the GCIA's DREAM Park[1] on Logan Township, Gloucester County, New Jersey. Id. ¶ 112.

         27. Shipment of this product began in 2006 and between 2006 and 2008, over 300, 000 tons of Soil Safe product was used at the Logan Equine Park. Id. ¶ 119. This product was mostly used under buildings, roads, paddocks, or parking areas. Id. ¶ 122.

         28. Remediation of the Logan Equine Park was completed and approved in 2008. Id. ¶ 120.

         ii. The Birch Creek Site

         29. The Birch Creek Site is a 165-acre property that is home to the Logan Recycling Center. Id. ¶ 2.

         30. Historically, the Birch Creek Site was filled with dredge spoils from the Delaware River. Id. ¶¶ 66, 113.

         31. Arsenic was identified as a contaminant existing at elevated levels in the dredge material at the Birch Creek sites before Soil Safe began its operations. Id. ¶ 57.

         32. Soil Safe began placing product at the Birch Creek Site in 2004. JSOF ¶ 109. Use of the Soil Safe Product at both the Birch Creek Site and the Gloucester County Park Site (see infra) originally occurred under the direct supervision of a NJDEP case manager, but since 2012 has occurred under the supervision of LSRP Albert Free. Soil Safe PFOF & PR ¶ 175. Mr. Free is paid by Soil Safe for his work as LSRP. Plaintiffs' Prop. Findings of Fact and Def.'s Resps. (“Pls.' PFOF & DR”) ¶¶ 37-38 [ECF No. 153].

         33. The Birch Creek Site remediation project is approximately 80% complete. Id. ¶ 111. Soil Safe intends to sell the Birch Creek Site. Soil Safe PFOF & PR ¶ 188.

         iii. The Gloucester County Park Site

         34. The Gloucester County Park Site is also a part of the DREAM Park. JSOF ¶ 112.

         35. “Approval of the RAWP [for the Gloucester County Park Site] was supported by a 14-month study and review, with permits and approvals for the project being obtained from the United States Army Corps of Engineers, several different units of the NJDEP (Site Remediation Program, Land Use, and the Historic Preservation Office), the Gloucester Soil Conservation District, the Gloucester County Health Department, the GCIA, the Gloucester County Board of Chosen Freeholders, and Logan Township.” Id. ¶ 11.

         36. The review of the RAWP for the Gloucester County Park Site involved a range of technical studies, including a full ecological inventory, a comprehensive evaluation of the product to be used at the site, and a Baseline Ecological Evaluation that included a baseline ecological assessment, ecological modeling, and a comprehensive evaluation of potential impacts to aquatic and terrestrial ecosystems. JSOF ¶ 123.

         37. The RAWP concluded that the entire Gloucester County Park Site is covered with historic fill material. JSOF ¶ 125; Pls. Ex. 3A at 13, 28 (Gloucester County Park RAWP). Limited sampling at the County Park site determined that this historic fill material contained levels of several contaminants above NJDEP's RDCSCC. Id. ¶ 126.

         38. Arsenic was identified as a contaminant existing at elevated levels in the dredge material at the Gloucester County Park Site before Soil Safe began its operations. Id. ¶ 57.

         39. The RAWP adopted for the Gloucester County Park Site employs a multi-layer cap design. It also provides for minimum mandatory drainage requirements, as well as pleasing surface vistas “appropriate for a park.” Id. ¶¶ 127-28.

         40. The Gloucester County Park Site RAWP also includes a Sampling and Analysis Plan reviewed by the NJDEP. Id. ¶ 19.

         41. The RAWP for the Gloucester County Park Site was approved by the NJDEP in November 2008. Id. ¶ 10.

         42. The Gloucester County Park Site RAWP requires that the Soil Safe product placed at the County Park site meet the RDCSCC requirements. Id. ¶ 133.

         43. The product placed at the Gloucester County Park Site is placed under the supervision of an LSRP. Id. ¶ 9. That LSRP is Mr. Free. Soil Safe PFOF & PR ¶ 223.

         44. Beginning in March 2009, Soil Safe shipped product to the Gloucester County Park Site and began constructing the remedial cap. JSOF ¶ 12. The soil is sampled and analyzed at least twice before shipment to the Gloucester County Park Site. Id. ¶ 14, 18.

         45. Soil Safe product has been placed at the park in compliance with the grading plan and capping remedy requirements set forth in the Gloucester County Park RAWP. JSOF ¶ 129.

         C. The Soil Recycling Process

         46. The Logan Recycling Center is located on a portion of the Birch Creek Site. Id. ¶ 2.

         47. Soil Safe's recycling operation is governed by permits issued by the NJDEP and local authorities, including a Class B Recycling Permit issued by the NJDEP. Id. ¶ 4. The Class B recycling permit covers “Concrete, Asphalt, Brick, Block, [and] Petroleum Contaminated Soil.” Id. ¶ 72. This permit was issued in December 2003, subsequently modified, and renewed in April 2009 and January 2014. Id. ¶ 5.

         48. The Class B Recycling Permit also contains 80 enumerated conditions that govern the operation of the Logan Recycling Center. Soil Safe PFOF & PR ¶ 71. Condition 47 of the Class B Permit places three limitations on the soil that Soil Safe is authorized to recycle at the Logan Recycling Facility: “(1) Soil Safe is only allowed to accept non-hazardous petroleum-contaminated soil; (2) the soil must meet NJDEP's RDCSCC residential standard for all chemical constituents except for six constituents for which other maximum levels are provided; and (3) the trailing 12-month average for all soil used for remedial capping at the Birch Creek property End Market Site must meet the RDCSCC for all constituents, except for total polycyclic aromatic hydrocarbons (“total PAH”), which must meet the NJDEP's impact to groundwater standard cleanup criteria for benzo(a)pyrene (“BaP”).” Id. ¶ 78.

         49. The permits issued by NJDEP “are part of programs developed through the Solid Waste Plan required of New Jersey by Subtitle D of RCRA (which regulates non-hazardous materials like those accepted at the Logan Recycling Center) to reduce the volume of materials discarded ...


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