United States District Court, D. New Jersey
MICHAEL A. SHIPP UNITED STATES DISTRICT JUDGE
matter comes before the Court upon the following motions: (1)
Plaintiffs Raritan Baykeeper, Inc. and Edison Wetlands
Association, Inc.'s ("Plaintiffs") Second
Motion for Summary Judgment (ECF No. 526); (2) Defendants NL
Environmental Management Services, Inc. and NL Industries,
Inc.'s ("Defendants") Second Motion to Preclude
the Testimony of Dr. Atul Salhotra (ECF No. 527); (3)
Defendants' Second Motion to Preclude the Testimony of
Dr. William Rogers (ECF No. 528); and (4) Defendants'
Second Motion for Summary Judgment (ECF No. 529). The Court
heard oral argument on the Motions on August 6,
2019. (ECF No. 546.)
Rule of Civil Procedure 56(a) provides that "`[t]he
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to an> material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A material fact raises a
"genuine" dispute "if the evidence is such
that a reasonable [fact-finder] could return a verdict for
the nonmoving party." Williams v. Borough of W.
Chester, 891 F.2d 458, 459 (3d Cir. 1989). The Court
must consider all facts and their logical inferences in the
light most favorable to the nonmoving party. Pollock v.
Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d
Cir. 1986). The Court will not "weigh the evidence and
determine the truth of the matter" but will determine
whether a genuine dispute necessitates a trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). While
the moving party bears the initial burden of showing the
absence of a genuine dispute of material fact, meeting this
obligation shifts the burden to the nonmoving party to
"set forth specific facts showing that there is a
genuine [dispute] for trial." Id. at 250. If
the nonmoving party fails to demonstrate proof beyond a
"mere scintilla" of evidence that a genuine dispute
of material fact exists, then the court must grant summary
judgment. Big Apple BMW v. BMW of N. Am., 974 F.2d
1358.1363 (3d Cir. 1992).
standard by which the court decides a summary judgment motion
does not change when the parties file cross-motions."
Clevenger v. First Option Health Plan of N.J., 208
F.Supp.2d 463, 468 (D.N.J. 2002). "When ruling on
cross-motions for summary judgment, the court must consider
the motions independently . . . and view the evidence on each
motion in the light most favorable to the party opposing the
motion." Id. at 468-69 (internal citations
omitted). "That one of the cross-motions is denied does
not imply that the other must be granted." III.
Nat'l Ins. Co. v. Wyndham Worldwide Operations,
Inc., 85 F.Supp.3d 785, 794 (D.N.J. 2015); accord
F.A.R. Liquidating Corp. v. Brownell, 209 F.2d 375, 380
(3d Cir. 1954).
the Third Circuit has held that to establish liability under
the Resource Conservation and Recovery Act
("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. .. was or is an owner or
operator of a solid or hazardous waste treatment, storage, or
(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
and substantial endangerment to health or the environment.
Interfaith Cmty. Org. v. Honeywell Int'l lnc,
399 F.3d 248, 258 (3d Cir. 2005), cert, denied, 545
U.S. 1129 (2005). The word imminent "implies that there
must be a threat which is present now, although the
impact of the threat may not be felt until later."
Meghrig v. KFC W., Inc., 516 U.S. 479, 486 (1996)
(emphasis in original). Moreover, "'endangerment
means a threatened or potential harm, and does not require
proof of actual harm." Honeywell, 399 F.3d at
careful consideration, the Court finds that neither party has
established that it is entitled to summary judgment because
the parties' arguments require the Court to weigh the
evidence, which is inappropriate at this stage. Here, the
parties are essentially asking the Court to make a
determination as to the relevance and sufficiency of the
sampling data sets produced in 2000, 2002, 2008, 2011, and
2017. Plaintiffs contend that all of the data samples
indicate that the Sayreville Site contains metal
concentration amounts that exceed New Jersey regulatory
screening guidelines. (See Pis.' Reply Br. 7-8, ECF
No. 538.) Defendants argue, however, that the EPA determined,
and the DEP agreed, that the arsenic cleanup level for river
sediments is 100 ppm, not 19 ppm. (See Defs.'
Reply Br. 1-2, ECF No. 541.) In contrast to Plaintiffs'
arguments, Defendants aver that those very same data sets
demonstrate that the metal concentration amounts at the
Sayreville Site have decreased over time and further fall
below DEP and EPA remediation and cleanup levels for the
region. (Defs.' Reply Br. 8-10.)
although Plaintiffs emphasize that "[p]roof of
contamination in excess of state standards may support a
finding of [RCRA] liability, and may alone suffice for
liability in some cases, " (see e.g., Pis.'
Reply Br. 9 (citing Honeywell, 399 F.3d at 261)),
Plaintiffs have not provided the Court with any reason as to
why, under the instant facts, exceeding the state standards
alone suffices to establish Defendants' liability under
RCRA. This is particularly true in light of Defendants'
contention that other benchmarks, such as the remediation
guidelines set for neighboring Superfund sites, should be
taken into consideration. (See e.g., Defs.'
Reply Br. 11.) Further, Plaintiffs' arguments pertaining
to the expert witnesses' cancer risk assessments would
require the Court to evaluate the doctors' opinions
without the benefit of having heard those witnesses'
testimony. Such a determination is inappropriate at summary
judgment, and herefore, Plaintiffs failed to present
persuasive evidence that there is no dispute regarding the
cancer risk assessment data.
the Court finds that there is a dispute regarding the
"evidence linking the [New Jersey] standards to
potential imminent and substantial risks to human health or
wildlife, " Lewis v. FMC Corp., 786 F.Supp.2d
690, 710 (W.D.N.Y. 2011), which is material to the
Court's determination regarding Defendants' liability
the Court is concerned by the parties' dispute regarding
the comparability of the data sets themselves. Defendants
aver that the data sampling sets demonstrate that the metal
concentrations in the soil have decreased over time.
Plaintiffs, however, argue that "[b]ecause the sampling
events were conducted at different depths, at different
times, and at different locations" they are each
incomparable to one another. (See Pis.' CSMF
¶¶ 82, 85, 92, 95, 103, ECF No. 532-1.)
Third Circuit has agreed that "in a battle of the
experts, the factfinder decides the victor."
Landsford-Coaldale Joint Water Auth. v. Tonolli
Corp.,4 F.3d 1209, 1216 (3d Cir. 1993) (citation
omitted); see also Ins. Co. of Greater N.Y. v. Fire
Fighter Sales & Servs. Co., 120 F.Supp.3d, 449,
460-61 (W.D. Pa. 2015) (collecting cases stating that a bade
of the experts precludes summary judgment). Here, because the
Court must weigh the evidence before it, and there are
disputes as to material facts-as demonstrated by the
parties' experts' conflicting arguments-the Court is
precluded from ...