When will a court step in and order specific cleanup measures to be taken at a contaminated site, despite the involvement of an environmental agency in an ongoing remediation process? The United States Court of Appeals for the Third Circuit answered this question for one site in its decision issued February 18, 2005 in Interfaith Community Organization v. Honeywell International, Inc., 2005 WL 387606 (3rd Cir. (N.J.) 2005). The Third Circuit affirmed the issuance of a sweeping injunction requiring the excavation and removal of approximately 1.5 million tons of chromium contaminated waste from a 34 acre site, together with other remedial measures, at an estimated cost of $400 million, to be overseen by a court-appointed Special Master. This remedy was ordered despite the fact that the New Jersey Department of Environmental Protection ("NJDEP") had been involved with the site since 1982.
The Interfaith case was brought by a non-profit community group, Interfaith Community Organization ("Interfaith"), and five individuals against Honeywell International, Inc. ("Honeywell"), the successor-in-interest to a chromium manufacturer, and the current owners of the site.They asserted a claim under the citizen suit provision of the federal Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §6972(a)(1)(B), that allows a citizen to bring suit to address wastes that "may present an imminent and substantial endangerment to health or the environment." Although early in the case the NJDEP was invited to intervene as a party or to participate as an amicus curiae, the NJDEP declined to do so.
The plaintiffs sought declaratory and injunctive relief to require the cleanup of chromium wastes from a site located along the Hackensack River in Jersey City, New Jersey. The site had been used for more than 50 years for disposal of wastes from the production of chromate chemicals extracted from ores. This process generated large quantities of chromium ore processing residue wastes. The wastes contained a high percentage of hexavalent chromium, a known carcinogen and developmental toxin. The wastes were deposited over a 34 acre wetlands area along the river, to a depth of 15 to 20 feet. Subsequent development of the site was hindered by "heaving" and buckling of the surface due to a chemical reaction that caused the buried chromium wastes to swell, damaging foundations, utilities and pavement.
Trial Court's Findings
After a two week bench trial, the trial court found that the site presented an imminent and substantial endangerment, and held Honeywell liable under RCRA. The trial court's extensive findings are set forth in its opinion, Interfaith Community Organization v. Honeywell International, Inc., 263 F. Supp. 2d 796 (D.N.J. 2003). Although Honeywell argued that containment of the wastes on site was a suitable remedy, having installed a plastic liner and asphalt to cap the site as an interim measure, the trial court concluded that only a permanent remedy would abate the endangerment. The trial court also found that although NJDEP had directed Honeywell to implement a permanent remedy, Honeywell had debated and delayed the remedy so much over 20 years that an understaffed and overworked NJDEP was frustrated in its efforts to have the site cleaned up. The trial court issued an extraordinary injunction requiring Honeywell to excavate and remove the waste, to remediate contaminated sediments in the adjacent river, and to investigate the deep groundwater contamination.
The Third Circuit's Decision
In its appeal, Honeywell challenged the plaintiffs' standing to bring the action under RCRA, the trial court's determination of imminent and substantial endangerment, and the court's issuance of the remedial injunction. The Third Circuit had little difficulty finding that the plaintiffs, who lived close to the site and the river, and expressed concern for their health and impact on their recreational activities, had established standing to bring their claim.
In evaluating the imminent and substantial endangerment determination, the Third Circuit clarified the standard of proof under RCRA. The Third Circuit held that the trial court had imposed an improperly high burden on the plaintiffs, not defined by the statute or supported by its legislative history. Among other things, the trial court had required the plaintiffs to show that there was a potential human population at risk, and that the contamination was present at levels above NJDEP's standards. The Third Circuit noted that a showing of environmental endangerment alone is sufficient to trigger RCRA liability. In addition, proof of contamination in excess of state standards is not required, although reference to a state's standards may be useful in determining the existence of endangerment. Despite that enhanced burden of proof, the Third Circuit found it to be harmless error. By meeting the trial court's test, the plaintiffs succeeded in proving more than was actually needed under the statute, not less.
RCRA Endangerment Determination
The Third Circuit examined the trial court's findings regarding site conditions, and found its determination of imminent and substantial endangerment was not clearly erroneous. Hexavalent chromium was present in site soils, surface water and groundwater, and in adjacent river sediments at concentrations from tens to thousands of times higher than New Jersey's standards and cleanup criteria. Because of the high pH of the wastes, the hexavalent chromium did not naturally reduce to its less toxic trivalent state, and readily leached into water. There were continuing pathways for human and environmental exposure because the interim cap installed by Honeywell was cracked and torn, and was not preventing ongoing discharges from the waste residues on site. Honeywell admitted that chromium was seeping to the surface and being carried in surface water to the river, and also discharging from shallow groundwater into the river, where chromium was present in river sediments. There was evidence of potential exposure to humans, birds, animals and aquatic organisms at the site and the nearby river. The Third Circuit concluded that the trial court's findings of an environmental endangerment, if not human endangerment, were manifestly correct on this record.
Propriety Of The Injunction
In challenging the propriety and scope of the injunction, Honeywell argued that the trial court had ignored Congress' preference for agency directed cleanups, overlooked the ongoing administrative cleanup process, and usurped NJDEP's power. Honeywell argued that the trial court lacked the ability to make appropriate remedial decisions for a site so large and complex. In addition, Honeywell argued that the injunction was not sufficiently narrow, and that the expensive excavation remedy was a misuse of resources and not in the public interest.
The New Jersey DEP had a long history of involvement with the site, as outlined in detail in the trial court's opinion. The DEP began investigating the site in 1982, and by 1983 required Honeywell's predecessor to prepare a plan to delineate the contamination to implement pollution abatement measures. When no remedial measures had been implemented by 1988, the DEP issued an administrative Directive ordering installation of interim remedial measures. Honeywell installed an interim cap designed to last five years, while a remedial investigation/feasibility study and remedial action design could be performed. In 1993, Honeywell signed an Administrative Consent Order with DEP, agreeing to spend up to $60 million toward a permanent remedy for the site. In 1995, DEP required Honeywell to address damage to the plastic liner cap and "yellow-green water" discharging into the river. DEP was not satisfied with Honeywell's work plan for repairs, and demanded a comprehensive plan to control groundwater and surface water contamination. In 1996 DEP conditionally approved supplemental interim measures proposed by Honeywell, but expressed concern about the continued discharges to the river. At trial, the NJDEP case manager testified that Honeywell had not been cooperative and dragged its feet.
In reviewing the record, the Third Circuit noted "[t]he evidence demonstrates a substantial breakdown in the agency process that has resulted in twenty years of permanent clean-up inaction." Discharges into the environment were continuing, delineation of the problems remained incomplete, there was no schedule in place for a permanent remediation, and the NJDEP was unable to deal effectively with the situation. The interim measures were long past their intended useful life and not acting to prevent discharges. Honeywell had not demonstrated that a cap or other containment measures would adequately remediate the conditions. In particular, experts testified that the heaving phenomenon and other characteristics of the site would cause containment measures to fail. Experts also testified why no other remedial options except excavation were appropriate for the site. The trial court made extensive findings as to the credibility of this testimony, and the Third Circuit accepted the trial court's findings.
This technical evidence, together with the findings of NJDEP's ineffectiveness in dealing with Honeywell, supported the trial court's, and ultimately the Third Circuit's conclusion that a mandatory remedial injunction was necessary to address the site. The Third Circuit noted the court's injunctive powers were not as limited as Honeywell claimed, and that the injunction was reasonably calculated and narrowly tailored to address the endangerment. The trial court had adopted an approach that tracked the steps followed by NJDEP itself, and agreed to by Honeywell in the 1993 Consent Order. Congress had provided citizens with this alternative to other remedies, and there was nothing in RCRA that precluded this injunctive relief.
The Third Circuit acknowledged that the remedy would involve removal of a massive quantity of waste at a significantly high cost. Honeywell argued that the benefits of such an undertaking did not justify the costs, but the Third Circuit concluded that the trial court had weighed the cost-benefits appropriately, in light of the statutory standards and the established endangerment. Concluding that "[e]nough time has already been spent in the history of this matter and the time for a clean-up has come" the Third Circuit affirmed the judgment of the trial court.
Impact Of The Decision
It is not unusual for site cleanup activities to extend over many years, and for state agencies to show varying degrees of attention to their progress. It is also not unusual for responsible parties to propose non-permanent containment measures with institutional controls, similar to those proposed by Honeywell, as the remedy of choice for contaminated sites. Whether the Third Circuit's Interfaith decision will cause any dramatic change in the approach of responsible parties and agencies to site cleanups, or the ability of citizens' groups to challenge decisions regarding those cleanups, remains to be seen. Certainly the Interfaith facts can be viewed as on the extreme end of the scale with regard to magnitude of contamination, complexity of remediation issues, and protracted responsible party-agency interaction. As such, its impact may be very limited. Any party conducting a cleanup should take notice, however, that it is not out of the question that a court will step in and take over the agency's role in ordering specific remedial measures when presented with such extreme circumstances.
Gail H. Allyn is a Partner and James P. Spielberg is an Associate in the Environmental Department at Pitney Hardin llp. This article represents only the authors' opinions and does not necessarly reflect the views of Pitney Hardin or its clients.