Honeywell Must Excavate Contaminated Wetlands

Interfaith Cmty. Org. v. Heller-Jersey City, 399 F.3d 248 (3rd Cir. 2005).

Jason Savarese, J.D.

The Third Circuit Court of Appeals recently upheld an injunction requiring Honeywell International, Inc., a chemical company, to excavate more than one million tons of tidal wetlands soil. The soil was contaminated with toxic waste from the company’s factory, and may cost more than $400 million to clean up.1

Background
From 1895 to 1954, Mutual Chemical Company of America (Mutual) operated a chemical factory in New Jersey. The factory processed chromium ore, which resulted in a waste product rich in hexavalent chromium. Hexavalent chromium is a known human carcinogen that can also harm animals and benthic creatures. Mutual dumped over one million tons of this waste product into thirty-four acres of tidal wetlands along the Hackensack River. Honeywell is the corporate successor to Mutual.

In 1982, a “green stream” and “yellowish-green plumes” were spotted in the surface water near the dump site. A year later, Honeywell officials observed yellow water discharging into the Hackensack River and said that the site was “extremely contaminated.” However, Honeywell did nothing to remedy the situation. In 1988, the New Jersey Department of Environmental Protection (NJDEP) ordered Honeywell to clean up the site. While a permanent remedy was sought, Honeywell erected a temporary, plastic retaining cap over seventeen acres of the site, and used concrete and asphalt to cover the rest. These measures slowed the discharge rate, but did not prevent all toxic discharges from the site.

While seeking land for the construction of affordable housing, the Interfaith Community Organization (ICO), a group of about thirty-five churches in New Jersey, came across the dump site and noticed that little or nothing had been done to clean it up under NJDEP’s order. In 1995, ICO and five individual plaintiffs filed suit in federal court under the Resource Conservation and Recovery Act (RCRA), claiming that the site was an “imminent and substantial endangerment to health or the environment.” The judge found that Honeywell was responsible for the site, that it had violated RCRA, and entered an injunction requiring Honeywell to excavate the contaminated soil. Honeywell appealed the judgment, challenging the plaintiffs’ standing to sue, the trial court’s endangerment determination, and the injunction.

To determine if the injunction was proper, the Appeals Court looked to see if the trial court had abused its discretion by relying on a “clearly erroneous” finding of fact. The Court weighed the RCRA endangerment claim under the “clear error” test. No clear error was found and both the injunction and the RCRA claim were upheld.

Standing
To file suit in federal court, a plaintiff must have both constitutional and statutory standing. To have constitutional standing, a plaintiff must show that there was an injury-in-fact, that the injury was caused by the conduct complained of, and that the injury could be redressed by a favorable decision of the court. Honeywell claimed that the plaintiffs lacked the standing to file suit. The court disagreed. The individual plaintiffs lived near the toxic site, and walked along or fished in the Hackensack River. The Appeals Court held that these activities were enough to establish injury-in-fact, despite Honeywell’s argument that standing required proof of direct use, like swimming, wading, etc. The trial court found that the plaintiffs were able to show that their injuries were traceable to Honeywell and were redressable, as an injunction would have “more than a substantial likelihood” of reducing or permanently ending the plaintiffs’ concerns and exposure to the site.2

The plaintiffs also had statutory standing under RCRA, which allows any person to file a lawsuit against someone “who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.”3 The Court found the plaintiffs’ complaints to be reasonable and based on a direct threat, satisfying RCRA’s requirements. ICO and the other plaintiffs had standing to sue Honeywell.

Imminent and Substantial Endangerment
Honeywell claimed it did not violate RCRA and that its discharges into the Hackensack River could not be “substantial,” since New Jersey had only tentatively, not formally, adopted remedial standards for river sediment chromium when the lawsuit was filed. Honeywell, however, conceded that it was legally responsible for the dumping and that chromium qualified as a solid, hazardous waste under RCRA. The only question remaining for the court was whether the site poses an imminent threat of serious harm to health or the environment.

The plastic liner and asphalt cap used to partially contain the site’s toxic waste was riddled with holes and cracks. These breaches allowed hexavalent chromium to discharge into the Hackensack River, groundwater, and river sediment. Honeywell admitted that the site was discharging pollutants, which could harm nearby aquatic organisms. NJDEP found that the site’s chromium constituted a “substantial risk of imminent damage to public health and safety and imminent and severe damage to the environment.”4 At trial, the court required the plaintiffs to prove (1) that the site might present an imminent and substantial endangerment to a potential population; (2) that the dangerous pollutant at the site was a hazardous waste or solid under RCRA; (3) that the toxin at the site was found in an amount greater than what New Jersey determined was safe; and (4) that there was a conduit for exposure to the toxin now or in the future.5 The trial court found that the plaintiffs met this standard, holding that the site was an endangerment to human health and the environment and that it was actually harming the environment.

The Third Circuit found that the district court held the plaintiffs to a higher-than-necessary endangerment showing by requiring them to prove the third and fourth elements mentioned above. RCRA contains no such elements. The court found, however, that the use of this elevated standard was harmless error, as the plaintiffs proved more than was necessary for an endangerment showing, and upheld the trial court’s determination that the site posed a substantial and imminent danger to the environment, people, and animals.

Injunction
Finally, Honeywell argued that the trial court should not have required excavation of the site, that the injunction was not narrowly tailored, and not “necessary” under RCRA. The Third Circuit found that the injunction was necessary under RCRA, noting that nothing less than excavation would stop the site’s toxic waste from leaching into surrounding waters and sediment. It also found that the injunction was “reasonable and narrow,” since it simply required Honeywell to do what was necessary to alleviate the site’s endangerments. Honeywell is required only to excavate the polluted soil, “remedy” the tainted river sediments, and study the condition of deep groundwater at the site. Honeywell does not have to treat the groundwater unless the trial court finds such actions to be necessary.

Conclusion
The Third Circuit held that the plaintiffs had standing to sue Honeywell, the dump site posed an imminent danger to human health and the environment, and the excavation injunction against Honeywell was proper.

1. David B. Caruso, Appeals Court Upholds Cleanup Order on Jersey City Pollution, Miami Herald, Feb. 18, 2005.
2. Interfaith Cmty. Org. v. Heller-Jersey City, 399 F.3d 248, 257 (3rd Cir. 2005).
3. 42 U.S.C. § 6972(a)(1)(B) (2004).
4. Interfaith Cmty. Org., 399 F.3d at 263-64.
5. Id. at 259.