Interfaith Community Organization v. Honeywell International, Inc. , 399 F.3d 248 ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-18-2005
    Interfaith Comm Orgn v. Honeywell Intl
    Precedential or Non-Precedential: Precedential
    Docket No. 03-2760
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 03-2760/3037/3585
    INTERFAITH COMMUNITY ORGANIZATION;
    LAWRENCE BAKER; MARTHA WEBB HERRING;
    MARGARET WEBB;
    REV. WINSTON CLARKE; MARGARITA NAVAS,
    v.
    HONEYWELL INTERNATIONAL, INC. formerly known as
    ALLIEDSIGNAL, INC.; RONED REALTY OF JERSEY CITY,
    INC.; RONED REALTY OF UNION CITY, INC; W.R.
    GRACE & COMPANY; ECARG, INC; W.R. GRACE, LTD.
    W.R. GRACE & COMPANY; ECARG, INC; W.R. GRACE,
    LTD.,
    Defendants/Third-Party Plaintiffs
    v.
    HELLER-JERSEY CITY, L.L.C.; HOME DEPOT, U.S.A.;
    SEAMAN FURNITURE COMPANY, INC.
    Third Party Defendants (U.S.D.C. of
    New Jersey (Newark): 95-cv-02097)
    HACKENSACK RIVERKEEPER, INC.; WILLIAM
    SHEEHAN
    v.
    HONEYWELL INTERNATIONAL, INC. formerly known as
    ALLIEDSIGNAL, INC; RONED REALTY OF JERSEY CITY,
    INC.; RONED REALTY OF UNION CITY, INC.;
    W.R. GRACE, LTD.
    (U.S.D.C. of New Jersey (Newark):
    00-cv–01451)
    Honeywell International, Inc.,
    Appellant
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Nos. 95-cv-02097 and 00-cv-1451)
    District Judge: Honorable Dennis M. Cavanaugh
    Argued December 14, 2004
    Before: AMBRO, VAN ANTWERPEN, and STAPLETON,
    Circuit Judges.
    (Filed: February 18, 2005)
    Richard G. Taranto, Esq. (Argued)
    Farr & Taranto
    1220 Nineteenth Street, N.W.
    Suite 800
    Washington, D.C. 20036
    Thomas H. Milch, Esq.
    Mary Gabrielle Sprague, Esq.
    Arnold & Porter LLP
    555 12th Street, N.W.
    Washington, D.C. 20004
    David W. Field, Esq.
    Lowenstein Sandler, PC
    65 Livingston Avenue
    Roseland, N.J. 07068
    Counsel for Appellants
    2
    Bruce J. Terris, Esq.
    Kathleen L. Millian, Esq. (Argued)
    Lemuel B. Thomas, Esq.
    Terris, Pravlik & Millian, LLP
    1121 12th Street, N.W.
    Washington, D.C. 20005-4632
    Edward Lloyd, Esq.
    Columbia University School of Laws
    435 West 116 th Street
    New York, NY 10027
    Counsel for Appellees
    Michael W. Steinberg, Esq.
    Morgan, Lewis & Bockius, LLP
    1111 Pennsylvania Avenue, N.W.
    Washington, D.C. 20004
    Counsel for Amicus-Appellant
    Jeffrey J. Brookner, Esq.
    Wilentz, Goldman & Spitzer
    90 Woodbridge Center Drive
    Suite 900
    Woodbridge, N.J. 07095
    Counsel for Amicus-Appellee
    _____
    OPINION OF THE COURT
    VAN ANTWERPEN, Circuit Judge.
    Appellant Honeywell International, Inc. challenges an
    injunction entered against it after the District Court found it had
    violated the citizen suit provision of the Resource Conservation
    and Recovery Act, (“RCRA”), 42 U.S.C. § 6972(a)(1)(B). The
    District Court had jurisdiction over this claim pursuant to 42
    U.S.C. § 6972. We have jurisdiction over Honeywell’s
    consolidated appeals pursuant to 28 U.S.C. § 1291 and will
    affirm.
    3
    I. Background Facts
    Starting in 1895, Mutual Chemical Company of America
    (“Mutual”), later the largest chrome manufacturer in the world,
    operated a chromate chemical plant in Jersey City, New Jersey.
    Its process resulted in a waste residue that had a high pH and
    high concentrations of hexavalent chromium. M utual piled this
    waste at a tidal wetlands site along the Hackensack River. The
    piling of the waste created a land-mass (the “Site”) which is the
    subject of this appeal. The Site consists of some 1,500,000 tons
    of the waste, 15 to 20 feet deep, on some 34 acres. The Site’s
    high pH prevents the hexavalent chromium from reducing
    naturally to its less-toxic trivalent form, and enhances its ability
    to leach freely into surface water and groundwater. The
    hexavalent chromium is highly soluble, a known carcinogen to
    humans, and toxic to the environment. 1
    Mutual continued dumping until 1954, when it was
    succeeded by the Allied Corporation, in turn succeeded by
    AlliedSignal, Inc., and then Honeywell. The site was never
    cleaned up.
    The State of New Jersey first sought a permanent remedy
    for the Site in 1982, about the time a “green stream” and
    “yellowish-green plumes” were observed in surface water on the
    Site. In 1983, a Honeywell official described it as an “extremely
    contaminated site, visible to the naked eye” with “yellow water .
    . . draining into the Hackensack River,” and concluded “there’s
    something terribly not right with the site.” Honeywell did not
    act, however, until seven years later, about two years after
    NJDEP had ordered it to do so. The result was not a permanent
    remedy but rather an “interim” measure consisting of poured
    concrete and asphalt over 17 acres of the Site and a plastic liner
    1
    As the District Court found, the United States Environmental
    Protection Agency (“EPA”) classifies hexavalent chromium in the first
    quartile of known human carcinogens, more potent than arsenic,
    benzene, and PCBs. It is toxic not only to humans, but also animals and
    lower life forms, including benthic organisms. The New Jersey
    Department of Environmental Protection (“NJDEP”) has made similar
    determinations.
    4
    “cap” over the remaining 17 acres.2 This was intended to last
    only five years while a permanent remedy was to be studied and
    implemented. Honeywell had told NJDEP that the interim
    measure would not prevent all discharges, even assuming proper
    maintenance; in any event, as the District Court found, and as we
    discuss infra, the interim measure was constantly in need of
    repair, having succumbed to, among other things, a phenomenon
    called “heaving” caused by the waste.3
    In a 1993 consent order arising from litigation over the
    Site, AlliedSignal promised $60 million towards a permanent
    containment solution and NJDEP reserved the right to compel a
    full cleanup at higher cost. The order also stated that the
    permanent remedy would be put in place through the NJDEP’s
    usual process, which was to: (I) delineate, or identify, all of the
    conditions needing remedy; (ii) analyze remedial alternatives
    and select a remedy; and (iii) take “remedial action.” The
    District Court found, and the record shows, that these steps were
    not taken or completed.
    In 1995, a local community organization, Interfaith
    Community Organization (“ICO”), and five individual plaintiffs
    sued Honeywell’s predecessor AlliedSignal and the then-owners
    of the Site under the citizen suit provision of RCRA, §
    6972(a)(1)(B), alleging the Site “may present an imminent and
    substantial endangerment to health or the environment.” At the
    conclusion of a two-week bench trial, the District Court found
    for plaintiffs and enjoined Honeywell to clean up the Site
    through excavation of the contamination.4
    2
    A chain-link fence was also placed around the Site.
    3
    As we discuss infra, the District Court found and the record
    shows that chromium waste at the Site is literally “heaving” the ground
    vertically and horizontally, without warning, causing peaks and valleys
    of two feet or more in the interim measure “cap,” compromising it. The
    heaving has also caused the structural failure of at least one building.
    4
    Honeywell has filed a post-trial motion pursuant to Fed. R. Civ.
    P. 60(b) for relief from the judgment asserting it has since (a) abated the
    endangerment by adding additional interim measures; and (b) acquired
    ownership of all but one acre of the property.
    5
    II.    Standards of Review
    Honeywell challenges plaintiffs’ standing, the District
    Court’s imminent and substantial endangerment determination,
    and the District Court’s remedial injunction. We review legal
    conclusions of standing de novo, see Public Interest Research
    Group of New Jersey v. Magnesium Elektron, Inc., 
    123 F.3d 111
    ,
    119 (3d Cir. 1997), and the underlying factual determinations for
    clear error. See Gen. Instrument Corp. v. Nu-Tek Electronics &
    Mfg., Inc., 
    197 F.3d 83
    , 86 (3d Cir. 1999). The injunction is
    reviewed for an abuse of discretion, which requires a showing
    that the District Court’s ruling “rests upon a clearly erroneous
    finding of fact, an errant conclusion of law, or an improper
    application of law to fact.” Ameristeel Corp. v. Int’l. Bhd. of
    Teamsters, 
    267 F.3d 264
    , 267 (3d Cir. 2001); see also Cooter &
    Gell v. Hartmax Corp., 
    496 U.S. 384
    , 402 (1990).
    We have not previously determined the standard of
    review for RCRA endangerment determinations. Other courts of
    appeals consider it a question of fact. See Parker v. Scrap Metal
    Processors, Inc. 
    386 F.3d 993
    , 1014-15 (11th Cir. 2004)
    (reviewing jury’s RCRA endangerment finding for sufficiency
    of the evidence); Cox v. City of Dallas, 
    256 F.3d 281
    , 300-01
    (5th Cir. 2001) (concluding district court “did not clearly err” in
    finding RCRA endangerment); Dague v. City of Burlington, 
    935 F.2d 1343
    , 1355-56 (2d Cir. 1991) (concluding district court’s
    endangerment “finding” was not error), rev’d on other grounds,
    
    505 U.S. 557
    (1992). We will accordingly not disturb the
    determination here absent clear error. Clear error exists “only if
    [a finding] is completely devoid of a credible evidentiary basis
    or bears no rational relationship to the supporting data.” Shire
    U.S., Inc. v. Barr Labs., Inc., 
    329 F.3d 348
    , 352 (3d Cir. 2003);
    see also United States v. U.S. Gypsum Co., 
    333 U.S. 364
    , 395
    (1948) (reviewing court, on the entire evidence, must be left with
    the definite conviction that a mistake has occurred). “This
    standard plainly does not entitle a reviewing court to reverse the
    finding of the trier of fact simply because it is convinced that it
    would have decided the case differently.” Anderson v. City of
    Bessemer, 
    470 U.S. 564
    , 573 (1985). As long as the District
    Court’s account of the evidence is “plausible in light of the
    record,” we may not reverse even if convinced that we “would
    6
    have weighed the evidence differently.” 
    Id. at 574.
    Additionally, where findings of fact are based on live testimony,
    “due regard shall be given to the opportunity of the trial court to
    judge the credibility of the witnesses.” Fed. R. Civ. P. 52(a).
    III.   Analysis
    A. Standing
    Honeywell first challenges plaintiffs’ standing. The
    Constitution, Art. III, § 2, limits the federal judicial power to the
    resolution of “cases and controversies.” McConnell v. Federal
    Election Com’n, 
    540 U.S. 93
    , 225 (2003); Friends of Earth, Inc.
    v. Laidlaw Envtl. Services (TOC), Inc., 
    528 U.S. 167
    , 180
    (2000). One element of the case-or-controversy requirement is
    that plaintiffs must establish that they have standing to sue.
    
    McConnell, 540 U.S. at 225
    . “Standing is a threshold
    jurisdictional requirement,” Magnesium 
    Elektron, 123 F.3d at 117
    , and we have an obligation to examine our own jurisdiction
    and that of the district courts. Id.; see also FW/PBS Inc. v. City
    of Dallas, 
    493 U.S. 215
    , 230-31 (1990). As such, “[p]laintiffs
    must have standing at all stages of the litigation . . . and they
    bear the burden of proving it.” Magnesium 
    Elektron, 123 F.3d at 117
    .
    Three requirements constitute the “irreducible
    constitutional minimum” of standing. 
    McConnell, 540 U.S. at 225
    (internal quotation omitted). First, a plaintiff must
    demonstrate an “injury in fact” that is “concrete,” “distinct and
    palpable,” and “actual or imminent.” 
    Id. (internal quotations
    omitted); 
    Laidlaw, 528 U.S. at 180
    . It must be “an invasion of a
    concrete and particularized legally protected interest,” 
    id. at 227
    (quoting Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560
    (1992)), and may not be either “conjectural or hypothetical,”
    
    Laidlaw, 528 U.S. at 180
    , or “too remote temporally.”
    
    McConnell, 540 U.S. at 226
    (internal quotation omitted). That
    said, “an identifiable trifle is enough.” United States v. Students
    Challenging Recruiting Agency Procedures, 
    412 U.S. 669
    , 689
    n. 14 (1973); see also Gen. Instrument 
    Corp., 197 F.3d at 87
    (same); Pub. Interest Research Group of N.J., Inc. v. Powell
    Duffryn Terminals, Inc., 
    913 F.2d 64
    , 71 (3d Cir. 1990) (same).
    7
    Second, a plaintiff must demonstrate “a causal connection
    between the injury and the conduct complained of – the injury
    has to be ‘fairly trace[able] to the challenged action of the
    defendant, and not . . . th[e] result [of] some third party not
    before the court.” 
    McConnell, 540 U.S. at 225
    (internal
    quotations and citations omitted). Third, a plaintiff must show
    the “substantial likelihood that the requested relief will remedy
    the alleged injury in fact.” 
    Id. at 225-26
    (internal quotation
    omitted). It must be “likely, as opposed to merely speculative,
    that the injury will be redressed by a favorable decision.”
    
    Laidlaw, 528 U.S. at 181
    . Thus, “[a]lthough standing in no way
    depends on the merits of the plaintiff’s contention that particular
    conduct is illegal, . . . it often turns on the nature and source of
    the claim asserted.” 
    McConnell, 540 U.S. at 227
    (internal
    quotations omitted).
    1. Standing of Individual Plaintiffs
    Laidlaw, the Supreme Court’s most recent explication of
    the injury-in-fact requirement in litigation arising under the
    federal environmental laws, instructs that courts may not “raise
    the standing hurdle higher than the necessary showing for
    success on the merits in an action.” 
    Laidlaw, 528 U.S. at 181
    .
    The action in Laidlaw arose under the citizen suit provision of
    the Clean W ater Act, which authorizes federal district courts to
    entertain suits initiated by “‘a person . . . having an interest
    which is or may be adversely affected.’” 
    Id. at 173;
    33 U.S.C.
    §§ 1365(a), (g).
    In Laidlaw, one plaintiff averred, inter alia, that he
    would like to “camp” and “picnic . . . near” the river at issue,
    “but would not do so because he was concerned that the water
    was polluted by [defendant’s] discharges.” Laidlaw, 
    528 U.S. 181-82
    . Another plaintiff averred, inter alia, that she had
    previously “picnicked, walked” and “birdwatched . . . along” the
    river at issue and that she “no longer engaged in these activities
    because she was concerned about harmful effects from
    discharged pollutants.” 
    Id. at 182.
    The Court held that such
    statements “adequately documented injury in fact” because they
    8
    averred “use of the affected area” and because they were
    “persons ‘for whom the aesthetic and recreational values of the
    area will be lessened’ by the challenged activity.’” 
    Id. at 183
    (quoting Sierra Club v. Morton, 
    405 U.S. 727
    , 735 (1972)). The
    Court distinguished its decision in Lujan v. National Wildlife
    Federation, 
    497 U.S. 871
    (1990), in which it had declined to
    find standing upon “‘averments which state only that one of [the
    organization’s] members uses unspecified portions of an
    immense tract of territory . . . .’” 
    Id. at 183
    (quoting 
    Lujan, 497 U.S. at 889
    ). Further, the Court explained,
    [T]he affiants’ conditional statements . . . [cannot]
    be equated with the speculative “‘some day’
    intentions” to visit endangered species half-way
    around the world that we held insufficient to show
    injury in fact in Defenders of Wildlife 
    [, 504 U.S. at 564
    ] . . . .
    [W]e see nothing “improbable” about the
    proposition that a company’s continuous and
    pervasive illegal discharges of pollutants into a
    river would cause nearby residents to curtail their
    recreational use of that waterway and would
    subject them to other economic and aesthetic
    harms. The proposition is entirely reasonable, the
    District Court found it was true in this case, and
    that is enough for injury in fact.
    
    Id. at 184-85.
    Under Laidlaw, the individual Plaintiffs’
    averments here are sufficient to establish injury-in-fact. One
    plaintiff averred, inter alia, that she has lived all of her life less
    than a quarter mile from the Site; that “I continue to be
    concerned about the risk to my health and the health of my son
    that may continue to be caused by exposure to waste from the
    adjacent [Site] when we pass by [it] and shop at the
    [supermarket one block from the Site]”; that the Hackensack
    River runs less than a quarter mile behind her home; that
    “[w]hen I was younger, I used to walk by the river on my way to
    events at Roosevelt Stadium”; that “[w]hen my sons were
    younger, they used to fish in the river”; that the “river is now
    dirty and contaminated with chromium and other pollutants”;
    that “[b]ecause of this pollution, I will no longer walk near or
    9
    use the river and my sons will no longer fish in the river”; and
    that “[i]f the river were cleaner, I would walk next to the river
    and my sons would fish in it.” She reaffirmed these statements
    in deposition testimony.
    A second plaintiff averred, inter alia, that since 1991 she
    has also lived less than a quarter mile from the Site; that “I am
    concerned about the risk to my health and the health of my
    husband that may be caused by our exposure to chromium-
    bearing waste from the [Site] both at our home and when we
    pass by the Site and shop [a block from the Site]”; that the
    Hackensack River runs less than a quarter mile behind her home;
    that “I walk or bike by the river with my children almost every
    day when the weather is warm”; that “[t]he river is dirty and
    contaminated with other pollutants, which detracts from my
    enjoyment of the river”; and that “[i]f the river were cleaner, I
    would enjoy recreating near the river more.” This plaintiff also
    reaffirmed these statements in her deposition.
    Another plaintiff averred, inter alia, that he too lives less
    than a quarter mile from the Site; that “I am concerned about the
    risk to my health and the health of my family that may be caused
    by our exposure to chromium-bearing waste from the [Site] both
    at our home and when we pass by the site and shop at the
    [supermarket one block from the Site]”; that the Hackensack
    River flows less than a quarter mile behind his home; that “[t]he
    river is dirty and I understand it to be contaminated with
    chromium wastes, among other pollutants;” that “I avoid going
    near the river, because it is unpleasant to look at and because I
    am afraid that it may be harmful to my health”; and that “if the
    river were cleaner, I would enjoy walking near it.” This plaintiff
    also reaffirmed these statements in deposition testimony.
    A fourth plaintiff averred, inter alia, that for fifty years he
    has lived about two miles from the Site; that he must use “Jersey
    City Incinerator Authority gas pumps once or twice a month”
    located “adjacent to the [Site]”; and that he is “concerned about
    the risk to my health . . . that may continue to be caused by
    exposure to waste at the [Site] when I go to the Jersey City
    Incinerator Authority gas pumps.” In his deposition, he too
    reaffirmed his statements.
    10
    These sworn statements, found in the individual
    plaintiffs’ affidavits and deposition testimony, were record
    evidence from which the District Court made numerous findings
    that are neither clearly erroneous nor challenged by Honeywell
    on appeal. Honeywell argues instead that the statements held
    sufficient in Laidlaw averred direct use of an area, e.g.,
    “swim[ming] . . . in” and “wad[ing] . . . in” a river, Laidlaw, 
    528 U.S. 181-82
    , whereas here the averments speak only to
    recreating “near,” “next to,” and “along” the river adjacent to
    Honeywell’s Site. Honeywell contends they are thus
    insufficiently direct to be legally cognizable concerns about
    whether Honeywell’s contamination “may” present an
    endangerment to human health or to the environment.
    The argument is unpersuasive, as such indirect averments
    may be found in Laidlaw itself. See 
    id. at 181-82
    (summarizing
    averments of, inter alia, camping, picnicking, and walking near
    a river). M ore fundamentally, Honeywell’s argument neglects
    McConnell’s observation that “standing . . . often turns on the
    nature and source of the claim 
    asserted,” 540 U.S. at 227
    , as well
    as Laidlaw’s instruction that we may not “raise the standing
    hurdle higher than the necessary showing for success on the
    merits” under the governing statutory provision. 
    Id. at 181.
    Here, the action arose under a provision of RCRA authorizing
    suits initiated by “any person . . . . against any person . . . who
    [possesses a statutorily defined nexus to waste that] may present
    an imminent and substantial endangerment to health or the
    environment.” § 6972(a)(1)(B) (emphasis added). The
    individual Plaintiffs, in establishing injury-in-fact, have shown
    sufficiently direct and present concerns, neither general nor
    unreasonable, that constitute a legally cognizable injury as
    recognized by § 6972(a)(1)(B). See 
    Laidlaw, 528 U.S. at 181
    -
    84; see also Friends of the Earth v. Gaston Copper Recycling,
    
    204 F.3d 149
    , 160 (4th Cir. 2000) (“The Supreme Court has
    consistently recognized that threatened rather than actual injury
    can satisfy Article III standing requirements . . . . Threats or
    increased risk thus constitutes cognizable harm.”) (collecting
    cases).
    Having found an injury-in-fact, Honeywell’s arguments
    as to traceability and redressability do not detain us long.
    11
    Plaintiffs have shown that their legally cognizable injuries under
    § 6972(a)(1)(B) relate directly to Honeywell’s Site, and the
    “fairly traceable” requirement “does not mean that plaintiffs
    must show to a scientific certainty that defendant’s [actions], and
    defendant’s [actions] alone, caused the precise harm suffered by
    plaintiffs . . . . The fairly traceable requirement . . . is not
    equivalent to a requirement of tort causation.” Powell 
    Duffryn, 913 F.2d at 72
    . Plaintiffs have also established that injunctive
    relief will permanently end the endangerments arising from
    Honeywell’s Site as found to exist at trial; at a minimum, the
    relief will materially reduce their reasonable concerns about
    those endangerments. See 
    id. at 73
    (where areas polluted by
    multiple sources, citizens “need not show that [an area] will be
    returned to pristine condition”). As the connection between the
    legally cognizable injury and Honeywell’s site was established,
    
    McConnell, 124 S. Ct. at 707
    , and as there is more than a
    substantial likelihood that the relief will remedy that injury, 
    id., the individual
    plaintiffs have established standing.
    2. Associational Standing of ICO
    As the Supreme Court confirmed in Laidlaw:
    An association has standing to bring suit on behalf
    of its members when its members would otherwise
    have standing to sue in their own right, the
    interests at stake are germane to the organization’s
    purpose, and neither the claim asserted nor the
    relief requested requires the participation of
    individual members in the 
    lawsuit. 528 U.S. at 181
    (citing Hunt v. Wash. State Apple Adver.
    Comm’n, 
    432 U.S. 333
    , 343 (1977)). We have found that the
    individual plaintiffs have standing, and Honeywell does not
    challenge the District Court’s membership findings. The
    interests at stake in this litigation are germane to ICO’s purpose,
    which the District Court found to be, inter alia, the improvement
    of the quality of life in Hudson County, New Jersey, where all of
    the individual plaintiffs live and the Site is located. Finally,
    neither the claim asserted nor the injunctive relief sought
    requires the participation of the individual members of ICO.
    12
    Accordingly, ICO has established associational standing.
    B. Imminent and Substantial Endangerment
    1. Legal Standard
    Honeywell contends it did not violate § 6972(a)(1)(B).
    As we have already noted, a person may bring suit under this
    provision
    against any person . . . 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.
    42 U.S.C. § 6972(a)(1)(B). This provision explicitly allows the
    consideration of environmental or health effects arising from
    waste and authorizes suit any time there may be a present threat
    – an imminent and substantial endangerment – to health or the
    environment. Meghrig v. KFC Western, Inc., 
    516 U.S. 479
    , 485
    (1996). To prevail under § 6972(a)(1)(B), 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 and substantial
    endangerment to health or the environment.
    
    Parker, 386 F.3d at 1014-15
    (quoting 
    Cox, 256 F.3d at 292
    ); 42
    U.S.C. § 6972(a)(1)(B). Because Honeywell concedes that it is
    legally responsible for the Site and that chromium is both a solid
    and a hazardous waste under RCRA, the only remaining issue is
    13
    whether it “may present an imminent and substantial
    endangerment to health or the environment.” 
    Id. The meaning
    of this statutory language has been summarized as follows:
    The operative word . . . [is] “may” . . . .
    [P]laintiffs need only demonstrate that the waste . .
    . “may present” an imminent and substantial threat
    . . . . Similarly, the term “endangerment” means a
    threatened or potential harm, and does not require
    proof of actual harm . . . . The endangerment must
    also be “imminent” [meaning] threatens to occur
    immediately . . . . Because the operative word is
    “may,” however, the plaintiffs must [only] show
    that there is a potential for an imminent threat of
    serious harm . . . [as] an endangerment is
    substantial if it is “serious” . . . to the environment
    or health.
    
    Parker, 386 F.3d at 1015
    (internal quotations and citations
    omitted); 
    Cox, 256 F.3d at 299-300
    ; see also United States v.
    Price, 
    688 F.2d 204
    , 213-14 (3d Cir. 1982) (concluding §
    6972(a)(1)(B) contains “expansive language” conferring upon
    the courts the authority to grant affirmative equitable relief to the
    extent necessary to eliminate any risk posed by toxic wastes”).
    This approach, we believe, is most faithful to the statutory
    language, especially as to the word “substantial.” See, e.g.,
    United States v. Union Corp., 
    259 F. Supp. 2d 356
    , 399-400
    (E.D. Pa. 2003) (observing that RCRA’s “substantial”
    requirement “‘does not require quantification of the
    endangerment (e.g., proof that a certain number of persons will
    be exposed . . . or that a water supply will be contaminated to a
    specific degree)’”) (quoting United States v. Conservation
    Chemical Co., 
    619 F. Supp. 162
    , 194 (W.D. Mo. 1985)). For the
    reasons we discuss infra, we believe that decisions such as
    Parker, Cox, Union Corp., and Conservation Chemical define
    “substantial” in a manner consistent with the statutory language,
    the legislative history, and the plain meaning of that word. See,
    e.g., 
    Cox, 256 F.3d at 300
    (stating that “an endangerment is
    ‘substantial’ if it is ‘serious’”); Union 
    Corp., 259 F. Supp. 2d at 14
    400 (stating that a RCRA “endangerment is substantial if there is
    some reasonable cause for concern that someone or something
    may be exposed to a risk of harm . . . if remedial action is not
    taken.”) (internal quotation omitted). We do not disagree that,
    given RCRA’s language and purpose, Congress must have
    intended that “if an error is to be made in applying the
    endangerment standard, the error must be made in favor of
    protecting public health, welfare and the environment.”
    Conservation 
    Chemical, 619 F. Supp. at 194
    .
    Here, the District Court added four additional
    requirements to the endangerment showing. These held
    plaintiffs to a higher than needed showing for success on the
    merits under § 6972(a)(1)(B). The additional requirements were
    as follows:
    [A] site “may present an imminent and substantial
    endangerment” within the meaning of RCRA
    where: (1) there is a potential population at risk;
    (2) the contaminant at issue is a RCRA “solid” or
    “hazardous waste”; (3) the contaminant is present
    at levels above that considered acceptable by the
    state; and (4) there is a pathway for current and/or
    future 
    exposure. 263 F. Supp. 2d at 838
    .
    At least two of these requirements are irreconcilable with
    § 6972(a)(1)(B). 5 The first requirement requires a “population,”
    but § 6972(a)(1)(B)’s disjunctive phrasing, “or environment,”
    means a living population is not required for success on the
    merits, as we discuss infra. The third requirement, apparently
    intended by the District Court to give quantitative meaning to the
    word “substantial” in § 6972(a)(1)(B), is similarly without
    support. The word “substantial” is not defined by the statute or
    its legislative history. Turning to a dictionary, we find that
    5
    The second requirement is superfluous as it merely repeats the
    second element of § 6972(a)(1)(B), which requires a “solid or hazardous
    waste.” Although not expressly stated, the fourth requirement is implicit
    in a finding of liability under § 6972(a)(1)(B).
    15
    “substantial” means “having substance” and “not imaginary”;
    only as the last of several definitions does the dictionary offer
    “of considerable size or amount.” Webster’s New Universal
    Unabridged Dictionary 1817 (2d ed. 1983). These definitions
    do not support one particular type of quantification
    measurement, such as the District Court’s requirement that there
    be an exceedence of state standards. Honeywell, tacitly
    following 
    Cox, 256 F.3d at 300
    , equates “substantial” with
    “serious,” which also does not support one particular type of
    quantification measurement. As noted, the word “substantial” is
    not defined by the statute or its legislative history, and we have
    not found any binding authority which stands contrary to this
    analysis. It is thus difficult to see how § 6972(a)(1)(B) justifies
    the kind of hurdle created by the District Court’s third
    quantitative requirement – let alone the even higher
    requirements for “substantial” that Honeywell argues for,
    without citation.
    Honeywell’s arguments actually provide an additional
    reason why we will not read state standards into the language of
    this federal law. Honeywell contends that its conceded
    discharges into the Hackensack River could not possibly be
    “substantial” because New Jersey has not yet established a
    remedial standard for river sediment chromium. We do not
    believe that Congress intended § 6972(a)(1)(B) to be dependent
    upon the states in such a manner, and the statutory language
    provides no support for such dependency.
    When Congress enacted RCRA in 1976, it sought to close
    “the last remaining loophole in environmental law, that of
    unregulated land disposal of discarded materials and hazardous
    wastes.” H.R. Rep. No. 1491, 94th Cong., 2d Sess. 4, reprinted
    in 1976 U.S.C.C.A.N. 6238, 6241. As we have noted, there is
    no definition or explanation of the meaning of “substantial,” but
    a discussion of RCRA’s amendments observes that §
    6972(a)(1)(B) is “‘intended to confer upon the courts the
    authority to eliminate any risks posed by toxic wastes,’” S. Rep.
    No. 98-284, 98th Cong., 1st Sess. at 59 (1983) (quoting 
    Price, 688 F.3d at 213-14
    ), and further that courts should “recogniz[e]
    that risk may be assessed from suspected, but not completely
    substantiated, relationships between imperfect data, or from
    16
    probative preliminary data not yet certifiable as fact.” 
    Id. (internal quotations
    and citations omitted). This supports neither
    the District Court’s particular quantitative requirement nor the
    even higher and more narrow quantitative standards that
    Honeywell would have us impose.
    Decisions of the other courts of appeals are not to the
    contrary. None require a particular quantitative showing as a
    sine qua non for liability. See 
    Parker, 386 F.3d at 1015
    (considering evidence of contamination at levels requiring
    landfill operator to notify state agency but determining
    substantialness on totality of the evidence); 
    Cox, 256 F.3d at 299-301
    (finding endangerments at two dumps on totality of the
    evidence; considering evidence of exceedences as to only one
    dump); 
    Dague, 935 F.2d at 1356
    (affirming endangerment
    finding without considering any quantitative evidence).
    The only support we have found for the District Court’s
    requirement is district court authority that is readily
    distinguishable. In Price v. U.S. Navy, 
    818 F. Supp. 1323
    (S.D.
    Cal. 1992), a district court heard testimony from the defendant’s
    two experts that an endangerment under § 6972(a)(1)(B) could
    only be found upon satisfaction of the four requirement standard
    that the District Court used in the present case. The Ninth Circuit
    affirmed without discussing the experts’ four requirements, 
    39 F.3d 1011
    (9th Cir. 1994). Other lower courts have, from time
    to time, treated the experts’ testimony as law without examining
    the statutory validity of the four requirements. We decline to
    follow Price.
    Plaintiffs in this case were required to make a merits
    showing higher than that actually contemplated by the statute.
    Even under the higher requirements, the District Court found
    endangerments as to both human health and the environment as
    well as actual harm to the environment. As we will discuss
    below, these findings are not clearly erroneous. The District
    Court’s inadvertent legal error with respect to the higher
    requirements it applied is therefore harmless, as plaintiffs were
    required to prove, and did prove, more than was needed, not less.
    See McQueeney v. Wilmington Trust Co., 
    779 F.2d 916
    , 917 (3d
    Cir. 1985) (error is harmless in civil context if there is a high
    17
    probability that it did not affect the outcome of the case). Proof
    of contamination in excess of state standards may support a
    finding of liability, and may alone suffice for liability in some
    cases, but its required use is without justification in the statute.
    Accordingly, Honeywell’s argument that the District Court erred
    by not grafting even higher quantitative requirements onto §
    6972(a)(1)(B) is without merit.
    2. Evidence of Endangerment
    Having analyzed the meaning of the statute, we turn now
    to the straightforward clear error analysis before us. The District
    Court first found that the amounts of hexavalent chromium for
    which Honeywell was responsible far exceeded all applicable
    NJDEP contamination standards for soil, groundwater, surface
    water, and river sediments adjacent to the Site. The evidence
    shows this finding was not clearly erroneous. Hexavalent
    chromium concentrations in the soil at the Site were as high as
    17,900 to 22,100 parts per million (ppm) and averaged 7,800
    ppm. As New Jersey’s applicable soil standard allows for only
    240 ppm, the average level of contamination was over 30 times
    higher than the state standard, and, at its highest, was about 75 to
    90 times higher. Similarly, hexavalent concentrations in surface
    water at the Site in drainage ditches, or “swales,” are as high as
    19,000 to 19,900 parts per billion (ppb). As New Jersey allows
    contamination only on the order of 50 ppb, surface water
    contamination was over 350 times higher than New Jersey’s
    acceptable limit. Next, concentrations in the groundwater were
    as high as 23,300 to 24,400 ppb (shallow) and 708,000 ppb to
    850,000 ppb (deep). Under New Jersey standards, which are on
    the order of 100 ppb, this meant concentrations ranged from
    about 200 to 8,000 times higher than acceptable. Finally,
    concentrations in the river sediments adjacent to the Site were as
    high as 33,500 ppm. New Jersey’s standard, although apparently
    not finalized at the time of trial, was tentatively in the range of
    80 to 370 ppm. Concentrations in the river sediments were thus
    roughly 90 to 400 times higher than allowed. 6
    6
    As we have previously indicated, state standards do not define
    a party’s federal liability under RCRA. However, we find New Jersey’s
    standards relevant and useful in determining the existence of an
    18
    The District Court then found that there existed present
    and continuing pathways for exposure such that both human
    health and the environment were endangered. The evidence
    showed, among other things, breaches in the 17-acre plastic
    liner, estimated at the rate of over one million holes per acre;
    “ponding” of contaminated, high pH water on the Site’s surface;
    percolation of contaminated water to the surface and through the
    breaches in the liner, as well as through cracks in the asphalt
    cap; Honeywell’s admission that its hexavalent chromium is
    discharging from the Site’s shallow groundwater into the
    Hackensack River; Honeywell’s admission that hexavalent
    chromium is also seeping to the surface of the Site, mingling
    with surface water run-off, and entering the river; Honeywell’s
    admission that chromium from its Site has already contaminated
    river sediments, which would not be possible absent a pathway;
    and Honeywell’s admission that the interim measures it had
    installed to date were not preventing all discharges of chromium
    residue from the Site. Additionally, at least one expert testified
    that the site presented a current risk associated with current
    exposures existing through these pathways. The District Court
    credited this testimony, finding it to be credible.
    There was also evidence, relevant to several of the
    District Court’s findings, that Honeywell had expressly informed
    NJDEP at the time of Honeywell’s installation of its “interim”
    measures that they could not prevent all discharges of chromium
    contamination from the Site, but would rather only “substantially
    reduce” discharges through their “various routes.” The evidence
    showed that these measures, as built and maintained, were now
    severely compromised because the 17-acre plastic liner, or
    “cap,” had been used years beyond its intended useful life and
    was ripped and leaking due to, among other things, wind
    damage. Similarly, the asphalt portion of the cap used to cover
    the remaining 17 acres of the site was buckled and cracked in
    numerous places due to “heaving” caused by the chromium at
    the Site.
    Additionally as to pathways for human endangerment, the
    imminent and substantial endangerment.
    19
    evidence showed ample evidence of human trespass at the Site
    and in and around the river, including holes and damage to the
    Site’s fence and fencing around the river, discarded food and
    wrappers, toys, fishing poles and equipment, and graffiti. Our
    review of the record reveals additional evidence of humans at
    the Site, including soccer balls and soda bottles. Additionally as
    to pathways for endangerment to the environment, the District
    Court found, and the evidence shows, discharges into the
    groundwater, the river, and river’s sediments through multiple
    routes, as summarized above. Honeywell conceded some of
    these, notably the discharge of contaminated groundwater into
    the Site’s surface waters that in turn discharge into the river.
    On the basis of the above evidence, the District Court’s
    findings were not clearly erroneous. Having reviewed the
    voluminous record in this case, we find no valid reason to
    disturb any of the District Court’s thorough findings. We also
    observe that, on appeal, Honeywell conceded that its Site is
    discharging into the river and that it is possible for those
    discharges to be harming aquatic organisms. As Honeywell
    further conceded at argument, there presently exists a problem
    with the river sediments that needs attention.
    In addition to the evidence of contamination of water,
    river sediments, and the river itself, the record also shows
    evidence of dogs and birds at and around the Site, as well as fish,
    invertebrates, benthic organisms, barnacles, mussels, crabs,
    clams, and crustaceans in the river; and seagulls, owls, pigeons,
    mice, and Canadian geese around both the Site and the river. As
    to other organisms living in the river’s sediments, an expert in
    the fields of ecological risk and sediment contamination
    conducted standard bioassay tests on sediment dwelling
    organisms, taking sediment samples directly adjacent to the Site.
    These tests exhibited mortality rates of 50 to 100 percent for
    those organisms, which the expert attributed to the Site’s
    contamination. The District Court found this expert
    knowledgeable and credible.
    Finally, the evidence further showed that up to a third of
    all the chromium waste at the Site remains in the toxic
    hexavalent state; that the high pH of the Site precludes the
    20
    normal natural reduction to less-toxic trivalent chromium; that
    the high pH of the Site in turn assists the hexavalent chromium
    in freely leaching into water, as it enhances solubility; that
    NJDEP determined in the late 1980s that the Site posed a risk of
    human exposure to chromium waste constituting a “substantial
    risk of imminent damage to public health and safety and
    imminent and severe damage to the environment”; and that the
    interim containment measure undertaken by Honeywell in
    response did not obviate that determination, as the measure was
    never intended to prevent all discharges, has been used many
    years past its designed useful life of five years, and has been
    significantly damaged and compromised by the elements and the
    phenomenon of “heaving.”
    Honeywell’s criticisms of the District Court’s findings
    and the evidence raise, at most, only minor conflicts that were
    reasonably reconciled by the District Court. In light of the
    totality of the evidence, these minor conflicts do not establish
    any basis for finding clear error as to the findings upon which
    the District Court’s decision solidly rests.
    Even assuming arguendo the District Court clearly erred
    with respect to its findings relating to human endangerment, the
    findings with respect to environmental endangerment are
    manifestly correct on this record. That is all that is required
    under § 6972(a)(1)(B), which imposes liability for
    endangerments to the environment, including water in and of
    itself. See, e.g., 42 U.S.C. § 6903(3) (defining “disposal” to
    include waste discharges “into or on any land or water” where
    waste is “emitted into the air or discharged into any waters,
    including groundwaters”); cf. N.J. Admin. Code tit. 7 § 26E-1.8
    (2002) (identifying groundwater in and of itself as an
    environmental “receptor” due to its status as an
    “environmentally sensitive natural resource”). Honeywell does
    not argue otherwise, concedes direct exposure pathways, and
    faces evidence of, inter alia, concentrations of contamination in
    groundwater to be on the order of hundreds if not thousands of
    times greater than the relevant state standard would allow.
    Indeed, Honeywell concedes the groundwater at the Site is in
    “danger” because it is so highly contaminated by hexavalent
    chromium. Chromium from its Site is also discharging into the
    21
    Hackensack River, which, like groundwater, is part of the
    environment in and of itself. See, e.g., 42 U.S.C. § 6903(3); cf.
    N.J. Admin. Code tit. 7 §§ 1E-1.8(a), 26E-1.8 (2002)
    (identifying rivers as an environmental receptor). Although
    there was some conflicting evidence on the point, the testimony
    of one of Honeywell’s experts may be read to have conceded
    that Honeywell’s Site is discharging chromium into the river on
    a continuing basis through not one but two separate pathways:
    over the Site’s surface and into the river; and through the Site’s
    fill into the river.
    To the extent Honeywell argues that insufficient
    quantitative assurances existed at trial to guarantee the
    substantialness of the endangerments, we observe that multiple
    experts in the areas of human health and/or ecological risk
    opined as to the cumulative facts establishing the substantialness
    of the endangerments. These experts were found credible by the
    District Court over Honeywell’s presentation of evidence and
    cross-examinations to the contrary. Even where there are
    conflicting interpretations of data and other scientific
    information, a trial court’s findings will not be overturned so
    long as the experts whose testimony was credited by the court
    “provided a reasonable explanation of the scientific data.”
    Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 
    4 F.3d 1209
    , 1216-18 (3d Cir. 1993) (affirming findings regarding
    contamination threat where evidence reasonably supported
    expert). That is the case here. The extensive trial record
    includes the testimony of ten exceptionally qualified experts in
    the fields of health and environmental risk, ecological and
    aquatic toxicology, hydrogeology, environmental engineering
    and geochemistry, environmental remediation, dermatology, and
    “heaving.” Their testimony rested upon legally relevant and
    permissible facts and assumptions, and had sound factual and
    scientific basis. We will not disturb findings supported by their
    testimony.
    In sum, on the basis of all of the above evidence, the
    imminent and substantial endangerment determination was not
    clearly erroneous.
    IV. Propriety of the Injunction
    22
    Honeywell argues the District Court erred in enjoining
    Honeywell to clean up its Site through excavation and removal
    of the contaminated waste. In addition to the findings of fact we
    have already discussed, the District Court also found, specific to
    remedy, that a permanent solution (as opposed to an interim
    solution) was necessary within the meaning of the statute to
    eliminate the established endangerments; that NJDEP had
    already independently come to the same conclusion; that
    injunctive relief, as opposed to some other form of relief, was
    necessary to obtain a remedy that was permanent; that
    Honeywell presented no credible evidence at trial that either a
    containment “cap” or shallow groundwater treatment, or both,
    would be an effective permanent remedy; and that excavation
    and removal of the contamination from the Site was necessary
    within the meaning of the statute to ensure a permanent remedy.
    The evidence shows that experts presented all other conceivable
    remedial options known to be potentially available, and, on the
    basis of computer modeling and other factual and scientific
    grounds, they demonstrated why none were appropriate for the
    site except excavation. These included capping, encapsulation,
    reactive barriers, vitrification, solidification and stabilization,
    bioremediation, chemical reduction, chemical stabilization,
    chemical extraction, electrokinetics, soil washing, and, finally,
    “pump and treat” remedies.
    The evidence also shows, as 
    discussed supra
    , a Site with
    unusually high levels of contamination and other unique
    characteristics, such as the high pH level. A soil and
    hydrogeology expert, expressly found by the District Court to be
    credible, and who possessed twenty-five years of experience in
    the field, stated that “over a large area, I have never seen
    anything like [this].” The record also demonstrates the
    unpredictable and structurally damaging phenomenon of
    “heaving” caused by the chromium. Here, the evidence showed
    that the Site’s heaving has structurally compromised a large
    building, buckles the 17-acre asphalt portion of the “cap,” and
    defies prediction as to when, where, or to what degree it may
    move the Site’s surface. Honeywell’s own consultants called the
    heaving at the Site “erratic” and “unpredictable,” and estimated
    it will occur for at least another 50 years. Honeywell’s experts
    also conceded there is no viable treatment method capable of
    23
    stopping heaving, except to remove the chromium waste that
    causes it. The evidence also showed that the containment
    remedy of “capping” would not be viable at the Site due to this
    heaving. Damage to the cap caused by heaving would allow
    surface water to infiltrate the cap and become contaminated with
    chromium, creating contaminated surface water and groundwater
    that would puddle on the surface of the cap and then discharge
    into the Hackensack River. The evidence further showed that
    the holes in the cap and other damage to it caused by heaving
    would also provide pathways for humans and animals to be
    exposed not only to the contaminated water, but also the
    contaminated soil itself. As such, the evidence shows the
    containment remedy of “capping” would not be an appropriate
    remedy for the Site. One Honeywell expert conceded this at
    trial, and another acknowledged that the heaving would cause
    the damage that leads to that conclusion.
    The evidence also shows that at least two experts gave
    extensive testimony, unrebutted by Honeywell, that, due to the
    Site’s unique characteristics and problems, the District Court’s
    injunction was necessary because only the excavation decreed by
    the Court could actually permanently abate the endangerments.
    The Court, which expressly found these witnesses to be credible,
    heard extensive testimony as to why containment was not
    appropriate for the Site. The experts articulated reasonable,
    substantiated concerns about containment, explaining, inter alia,
    that a cap with a containment wall would, upon leaking, cause
    the Site to “fill up like a bathtub” with contaminated water,
    which would then overflow into the river. They also explained
    that heaving would cause such structural stress to a containment
    liner, no matter the design, that it would eventually fail. As
    discussed, at least one of Honeywell’s own experts, and arguably
    both, effectively conceded most if not all of these points.
    Moreover, Honeywell acknowledged at argument that its remedy
    depends upon continuous institutional monitoring and
    maintenance for a considerable, perhaps indefinite, period of
    time, and that, even then, its remedy may not solve the problem
    of groundwater contamination. As such, none of the District
    Court’s findings in this area were clearly erroneous.
    24
    Certainly nothing definitive has been cited to us in
    support of Honeywell’s argument that the critical remedy expert
    impermissibly “distrusted” containment maintenance and offered
    only an unsupportable “personal” opinion about long-run
    maintenance and monitoring in relation to the permanent
    remediation of the Site. The record testimony shows that this
    expert’s opinions and testimony were based upon legally
    relevant and permissible facts and assumptions and had a sound
    scientific and factual basis. These included the expert’s
    professional experiences and knowledge of other remediation
    sites involving long term institutional controls such as
    monitoring and maintenance.
    These also included the District Court’s independent
    findings as to Honeywell’s dilatory tactics and the inability of
    NJDEP to deal effectively with those tactics with respect to the
    Site’s clean-up. This finding itself was not clear error, as the
    evidence shows that, inter alia, a complete delineation of the
    Site’s contamination and discharges to the surrounding
    environment remains incomplete, as a witness from NJDEP
    stated at trial; and that, similarly, NJDEP still lacked a timetable
    from Honeywell for the permanent remediation of the Site and
    had no idea when such a schedule or remedy would be
    forthcoming. Nor will we disturb the finding of NJDEP’s
    inability to deal effectively with Honeywell and its tactics with
    respect to the outstanding schedule for a permanent remedy and
    the implementation of that remedy. The evidence demonstrates a
    substantial breakdown in the agency process that has resulted in
    twenty years of permanent clean-up inaction. In conjunction
    with expert testimony on the question of remedy, this portion of
    the trial record supports the District Court’s findings with
    respect to long-run maintenance and monitoring of Honeywell’s
    proposed containment system and the necessity of permanently
    abating the endangerments in this case through excavation.
    Honeywell contends the injunction is not sufficiently
    narrow to be “necessary” within the meaning of RCRA. In so
    contending, it directs us to post-trial remedial measures that
    Honeywell has adopted while this appeal was pending. The
    sound course with respect to these post-trial activities is to
    require Honeywell to seek post-trial relief from the District
    25
    Court pursuant to Fed. R. Civ. P. 60(b). That Court is in the best
    position to evaluate the question of post-trial relief in light of its
    findings, which include a history of dilatoriness, failure of prior
    remedies, and a finding that alternatives other than those ordered
    by the injunction will not be sufficient to abate the established
    endangerments. Honeywell’s other argument with respect to the
    injunction’s necessity turns on its interpretation of expert witness
    testimony on the question of long-run maintenance and
    monitoring of a containment remedy. The District Court
    expressly rejected Honeywell’s position, in findings that were
    not clear error, and expressly found that the critical expert was
    credible. That finding, in turn, was based on, among other
    things, the expert’s ability to withstand a thorough cross-
    examination by Honeywell, which elected to present the bulk of
    its affirmative case on remedy through this cross-examination
    instead of calling its own expert. As we 
    discussed supra
    , we
    will not disturb such testimonial evidence lightly, especially
    where, as here, it was amply supported by other evidence in the
    record.
    The injunction’s language, read in conjunction with the
    District Court’s findings, confirms the necessity for the
    injunction within the meaning of RCRA. The injunction only
    orders Honeywell to excavate and remove contaminated soil and
    then “remedy” those river sediments that have been
    contaminated with chromium residue from the Site. As to deep
    groundwater, the injunction only requires Honeywell to study the
    contamination, and provides that, once that study is complete,
    the District Court will order additional remedial actions only if
    “necessary.” Given the record in this case, the injunction is
    reasonable and narrow, as it requires only what is necessary now
    to abate the established endangerments.
    Honeywell argues that the District Court improperly
    relied on property development interests, unrelated to the
    established endangerments, in finding the injunction was
    necessary. This argument does not detain us long. Although the
    District Court did discuss the impact of the contamination on
    possible future development, we do not read its opinion to
    indicate that this was a determinative factor in granting relief.
    26
    The District Court found under RCRA that excavation and
    removal was necessary to remedy the endangerment and rejected
    a containment remedy because it “is not a viable remedy” given
    the endangerments and the unique characteristics of the Site. It
    also found that Honeywell had presented no credible evidence
    that a cap would be an effective remedy to protect human health
    and the environment.
    Honeywell next argues that the injunction does not serve
    a public interest. In its brief, Honeywell poses the question as
    follows: even if cleaning up hexavalent chromium would be
    “better” for humans living near the site “and for some barnacles
    and clams in the Hackensack River . . . is it worthwhile to move
    over 1,500,000 tons of fill” and replace it with “over 1,500,000
    tons of clean fill?” Honeywell asserts that environmental
    agencies would answer this question in the negative, and that
    therefore the District Court erred in reaching a different
    conclusion.
    Without a doubt, the injunction will require the movement
    of a substantial amount of fill. Nevertheless, Honeywell’s
    framing of the issue misses the point in several respects: the
    1,500,000 tons of fill are all contaminated with a hazardous
    waste; plaintiffs have satisfied the standard for liability; and the
    evidence they adduced persuaded the District Court that a
    cleaning up through excavation was necessary, even in light of
    the monetary and other costs associated with that remedy,
    including the use of hazardous waste landfill capacities. The
    record shows the District Court considered the cost-benefit
    analysis evidence appropriately and made findings consistent
    with the public interest as reflected in the applicable statutory
    scheme.
    In passing RCRA, Congress established a national policy
    to “minimize the present and future threat to human health and
    the environment” from wastes of the type found at Honeywell’s
    Site, 42 U.S.C. § 6902, and Congress has instructed that § 6972
    “is intended to allow citizens exactly the same broad substantive
    and procedural claim for relief which is already available to the
    United States under section 7003.” S. Rep. No. 98-284, 98th
    27
    Cong., 1st Sess., at 59 (1983). We have previously determined
    that “due to the nature of the hazards presented by disposal sites,
    section 7003 is intended to confer upon the courts the authority
    to grant affirmative equitable relief to eliminate any risks posed
    by toxic wastes.” 
    Price, 688 F.2d at 213-14
    . As such,
    Honeywell’s claim that the District Court “ignore[d] the
    judgment of Congress, deliberately expressed in legislation” is
    without merit. United States v. Oakland Cannabis Buyers’
    Coop., 
    532 U.S. 483
    , 497 (2001) (internal quotation omitted).
    Honeywell next suggests the public interest requires a
    sophisticated, step-by-step, “sound” analysis appropriate for the
    permanent cleanup of a site as large and as contaminated as
    Honeywell’s Site is, and that the District Court lacked the ability
    to “appreciate the inherent complexity and difficulty” of making
    “sound” remedial decisions. The District Court was very
    thorough and its decision is not lacking in any of these respects.
    It imposed an even higher liability standard than required and
    properly applied the remedial powers of § 6972(a)(1)(B) through
    an approach that tracked the very steps Honeywell agreed to in a
    1993 consent order with NJDEP.
    Honeywell’s final argument is that the District Court
    improperly overrode an ongoing administrative process. As
    
    discussed supra
    , the District Court’s findings as to Honeywell’s
    dilatory tactics and NJDEP’s inability to deal effectively with
    those tactics are not clear error. Indeed, a fair reading of the
    record casts strong doubt as to whether there is a process to
    override in this case. Honeywell next suggests that NJDEP’s
    presence alone precludes a judicial remedy, given Congress’
    preference for agency-directed cleanups. Not only does the
    statute not bar the remedy here, but Congress has rejected
    Honeywell’s argument outright. See S. Rep. No. 98-284, 98th
    Cong., 1st Sess. at 57 (1983) “[C]itizens need not exhaust or rely
    upon other resources or remedies before seeking relief under
    these amendments. As with Section 7003, these amendments are
    to be an alternative and supplement to other remedies.” Courts
    should consider the availability of other alternatives, as the
    District Court did here, but there is no requirement to defer to
    them, notwithstanding Honeywell’s protestations otherwise. 
    Id. 28 More
    fundamentally, Honeywell argues the remedial
    injunction usurps agency power. The reconciliation of such
    power in the injunctive context, however, is not difficult.
    Honeywell has violated the statute; and, despite Honeywell’s
    argument to the contrary, nothing in the statute precludes the
    nature of the injunctive relief ordered here. Depending on the
    particular characteristics of a given RCRA site, as found by a
    district court on a case-by-case basis, particular types of
    injunctive relief may not be circumscribed by arguments as to
    what an agency might have done. “The comprehensiveness of [a
    court’s] equitable jurisdiction is not to be denied or limited in the
    absence of a clear and valid legislative command.” Weinberger
    v. Romero-Barcelo, 
    456 U.S. 305
    , 313 (1982) (quoting Porter v.
    Warner Holding Co., 
    328 U.S. 395
    , 398 (1946)). Here, the
    enforcement language of § 6972(a)(1)(B) is generous: it says
    that a district court may, inter alia, “order . . . such other action
    as may be necessary” to remedy a violation of the statute.
    Nothing in this language precludes, as part of this enforcement
    authority, measures such as those required by the District Court
    here. Certainly we have not been cited to authority requiring
    otherwise.
    Moreover, the injunctive powers of district courts are not
    as limited as Honeywell would claim. In Natural Resources
    Defense Council v. Southwest Marine, Inc., 
    236 F.3d 985
    (9th
    Cir. 2000), a company was violating the terms of its Clean Water
    Act permit. The question on appeal was whether the District
    Court in that case could merely order that the permit’s terms be
    observed, or whether it could impose affirmative obligations to
    remedy the violation. The Court rejected the more restrictive
    view, stating:
    According to Defendant, a court may do little more
    than tell the violator to comply with the applicable
    [state plan] requirements . . . . We do not agree that
    a district court’s equitable authority is so cramped.
    The authority to “enforce” . . . is more than the
    authority to declare that [a] requirement exists and
    repeat that it must be followed. So long as the
    district court’s equitable measures are reasonably
    29
    calculated to “remedy an established wrong,” they
    are not an abuse of discretion.
    Southwest 
    Marine, 236 F.3d at 1000
    (quoting Alaska Ctr. for
    Env’t v. Browner, 
    20 F.3d 981
    , 986 (9th Cir. 1994)) (internal
    citations and quotations omitted). In the case before us, the
    District Court was presented with a statutory violation, no
    evidence of a state agency schedule for a permanent clean-up,
    and expert testimony, found credible by the District Court, that
    only one approach would in fact remedy the violation
    permanently. On appeal, Honeywell contends the allowed
    injunctive relief on such facts may only be, at most, an order
    “directing Honeywell not to miss NJDEP deadlines.” We do not
    agree. See, e.g., Southwest 
    Marine, 236 F.3d at 1000
    . Given the
    severity of the contamination at the Site and its other unique
    characteristics, precisely established in the evidence, the
    injunction was reasonably calculated, narrowly tailored, and thus
    necessary to remedy an established wrong. See 
    Laidlaw, 528 U.S. at 193
    (federal courts should ensure “the framing of relief
    no broader than required by the precise facts”). As the District
    Court did not abuse its discretion, the injunction is affirmed.
    VI.   Conclusion
    We have considered all of the other arguments advanced
    by the parties and conclude that no further discussion is
    necessary. Enough time has already been spent in the history of
    this matter and the time for a clean-up has come. Accordingly,
    the judgment of the District Court will be affirmed.
    AMBRO, Circuit Judge, concurring
    Judge Van Antwerpen has written a superlative opinion
    both in content and tone. I join wholeheartedly but for one
    issue–how we determine the standard of review–that does not
    affect the outcome. Indeed, our respective standards of review
    arrive essentially at the same place though by different paths.
    30
    My colleagues conclude that the question of whether
    waste “may present an imminent and substantial endangerment
    to health or the environment” under the Resource Conservation
    and Recovery Act (“RCRA”) § 7002(a)(1)(B), 42 U.S.C. §
    6972(a)(1)(B), is a question of fact. To me, it is not. Instead, I
    believe it is a mixed question of fact and law. Whether an issue
    is of fact, or of fact and law, is important because it generally
    determines the applicable standard of review. See A & H
    Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 
    237 F.3d 198
    ,
    210 (3d Cir. 2000) (a district court’s factual determinations are
    reviewed for clear error); In re Cellnet Data Sys. Inc., 
    327 F.3d 242
    , 244 (3d Cir. 2003) (“We review . . . mixed questions of law
    and fact under a mixed standard, affording a clearly erroneous
    standard to integral facts, but exercising plenary review of the
    lower court’s interpretation and application of those facts to
    legal precepts.”).
    My colleagues’ reason for concluding that imminent and
    substantial endangerment is factual is that three “[o]ther courts
    of appeals consider it a question of fact.” See Parker v. Scrap
    Metal Processors, Inc., 
    386 F.3d 993
    (11th Cir. 2004); Cox v.
    City of Dallas, 
    256 F.3d 281
    (5th Cir. 2001); Dague v. City of
    Burlington, 
    935 F.2d 1343
    (2d Cir. 1991), rev’d on other
    grounds, 
    505 U.S. 557
    (1992). However, none of these
    decisions explicitly states that the determination of imminent
    and substantial endangerment is one of fact.7
    7
    In Parker, the Eleventh Circuit reviewed imminent and
    substantial endangerment for sufficient 
    evidence. 386 F.3d at 1015
    . The Court did not explain why it used a sufficient evidence
    standard. In Cox, the Fifth Circuit reviewed imminent and
    substantial endangerment under a clearly erroneous 
    standard. 256 F.3d at 300-01
    . It did not explain why. In Dague, the Second
    Circuit did not explicitly state which standard of review it applied
    and offered no reasoning for why it applied that standard. The
    Court referred to the determination of imminent and substantial
    endangerment as a 
    “finding.” 935 F.2d at 1356
    . As “finding”
    31
    The Supreme Court has written that “we [do not] yet
    know of any . . . rule or principle that will unerringly distinguish
    a factual finding from a legal conclusion.” Pullman-Standard v.
    Swint, 
    456 U.S. 273
    , 288 (1982). However, a practical test I
    propose for determining whether a question is of fact, of law, or
    of both fact and law, is as follows. A question of fact can be
    answered solely by determining the facts of a case (without any
    need to know the law relevant to the case). A question of law
    can be answered solely by determining what relevant law means
    (without any need to determine the facts of a case). A mixed
    question of fact and law can only be answered by both
    determining the facts of a case and determining what the relevant
    law means.
    For example, imagine that a man is appealing his
    conviction under a law that states “it is a crime to be tall.” What
    kind of question is: “Was the trial court correct to find the man
    ‘tall’?” Can we answer it solely by determining the facts of the
    case? No, because even if we know the fact that the man is five
    feet ten inches, we do not know if he is “tall” in the sense that
    Congress intended the word “tall” to mean. Can we answer it
    solely by determining what the relevant law means without
    knowing the man’s height? No, because even if we know that
    the statute defines “tall” as “six feet or taller,” we do not know
    how tall the man is. Thus, we have a mixed question of fact and
    law. Once we know the facts of the case (that the man is five
    feet ten inches tall), and what the relevant law means (it is a
    crime to be six feet tall or taller), we can answer “no” to the
    implies a question of fact, I agree with the majority that the Dague
    Court thought imminent and substantial endangerment was a
    question of fact. Parker, Cox, and arguably Dague thus use a
    deferential standard of review for imminent and substantial
    endangerment. However, none of these decisions gives any
    reasoning for why imminent and substantial endangerment should
    be reviewed deferentially.
    32
    question “Was the trial court correct to find the man ‘tall’?”
    Applying the test to this case, an example of a question of
    fact (requiring evidence, experts, studies, etc.) is the following:
    “What are the dangers caused by Honeywell’s chromium?” An
    example of a finding of fact is: “Honeywell’s chromium caused
    a 10% chance that between 10,000 and 20,000 mollusks in the
    sediments will be exposed to chromium between 2006 and 2007,
    which will eventually lead to infertility in 5% of chromium
    exposed mollusks.”
    However, the essential question (“May Honeywell’s
    chromium present an imminent and substantial endangerment to
    the environment?”) is a mixed question of fact and law. The
    reason this is so is that this question can only be answered by
    both determining the facts of the case and determining what the
    relevant law means. That is, not only do we need to know the
    answer to the following question of fact–“What are the dangers
    caused by Honeywell’s chromium?”–but also, once we get the
    answer–“Honeywell’s chromium caused a 10% chance that
    between 10,000 and 20,000 mollusks in the sediments will be
    exposed to chromium between 2006 and 2007, which will
    eventually lead to infertility in 5% of chromium exposed
    mollusks.”–we must determine what the relevant law means and
    whether the fact(s) applied to the law signal a violation. That is,
    we must ask: What did Congress mean by “may,” “imminent,”
    “substantial,” “endangerment,” “health,” and “environment” in
    RCRA? More specifically, we must at least ask: (1) Is an
    exposure to a toxin that will occur between one and two years
    from now “imminent” in the sense that Congress intended
    “imminent” to mean in RCRA?; and (2) Is a 10% chance that
    between 10,000 and 20,000 mollusks will incur a 5% increased
    risk of infertility a “substantial” endangerment in the sense that
    Congress intended “substantial” to mean in RCRA? Thus, at
    first blush it appears that, while we should apply a clearly
    erroneous standard to the facts (the dangers caused by
    Honeywell’s chromium) found by the District Court, we should
    33
    apply plenary review to the Court’s “application of those facts to
    legal precepts.” 
    Cellnet, 327 F.3d at 244
    .
    All this theory aside, practical reasons dictate that a
    mixed standard should not be used in a case such as this. Fact
    questions predominate the determination of imminent and
    substantial endangerment. In this case, the District Court had to
    evaluate the testimony of numerous experts and determine the
    implications of scientific studies. The First Circuit has adopted a
    sliding scale approach to such fact-dominated mixed questions,
    explaining that "[t]he standard of review applicable to mixed
    questions usually depends upon where they fall along the degree-
    of-deference continuum: the more fact-dominated the question,
    the more likely it is that the trier's resolution of it will be
    accepted unless shown to be clearly erroneous." In re
    Extradition of Howard, 
    996 F.2d 1320
    , 1328 (1st Cir. 1993).
    The Fifth, Sixth, Eighth, and Ninth and Tenth Circuits have also
    applied clearly erroneous review to mixed questions when fact
    questions predominated. See Love Box Co. v. Comm’r, 
    842 F.2d 1213
    , 1215 (10th Cir. 1988); Supre v. Ricketts, 
    792 F.2d 958
    ,
    961 (10th Cir. 1986); Levi Strauss & Co. v. Blue Bell, Inc., 
    778 F.2d 1352
    , 1355-56 (9th Cir. 1985); Connally v. Transcon Lines,
    
    583 F.2d 199
    , 202 (5th Cir. 1978); Nash v. Farmers New World
    Life Ins. Co., 
    570 F.2d 558
    , 561 n.7 (6th Cir. 1978); Backar v.
    W. States Prod. Co., 
    547 F.2d 876
    , 884 (5th Cir. 1977); Rogers
    v. Bates, 
    431 F.2d 16
    , 18 (8th Cir. 1970). Two commentators
    have concluded that “[m]ore and more courts . . . attempt to sort
    out whether a particular mixed law-fact question primarily
    involves a factual inquiry (in which case [Fed. R. Civ. P.] Rule
    52 deference is appropriate even for mixed questions) or
    primarily the consideration of legal principles (so that de novo
    review follows).” Steven Alan Childress & M artha S. Davis,
    Federal Standards of Review 2-100 (1999).
    Most important, the Supreme Court has stated:
    [W]e have held that deferential
    34
    review of mixed questions of law
    and fact is warranted when it appears
    that the district court is “better
    positioned” than the appellate court
    to decide the issue in question or that
    probing appellate scrutiny will not
    contribute to the clarity of the legal
    doctrine. Miller v. Fenton, 
    474 U.S. 104
    , 114, 
    106 S. Ct. 445
    , 451, 
    88 L. Ed. 2d 405
    (1985); see also Cooter
    & Gell v. Hartmarx Corp., 
    496 U.S. 384
    , 402, 
    110 S. Ct. 2447
    , 2459, 
    110 L. Ed. 2d 359
    (1990) (“[T]he district
    court is better situated than the court
    of appeals to marshal the pertinent
    facts and apply [a] fact-dependent
    legal standard” such as Rule 11);
    [Pierce v. Underwood, 
    487 U.S. 552
    ,
    562 (1988)] ([T]he question whether
    the Government’s litigating position
    has been ‘substantially justified’ is . .
    . a multifarious and novel question,
    little susceptible, for the time being
    at least, of useful generalization.”).
    Salve Regina Coll. v. Russell, 
    499 U.S. 225
    , 233 (1990).
    In RCRA cases such as this one, the District Court is
    better positioned than are we to marshal the pertinent facts and
    apply a fact-dependent legal standard. The determination of
    whether waste may present an imminent and substantial
    endangerment is heavily fact intensive, typically relying on
    expert testimony and expert studies interpreted at trial by
    experts. Also, the determination of whether waste may present
    an imminent and substantial endangerment is a multifarious
    question, not susceptible to useful generalization. Even though
    our question is a mixed one, Supreme Court precedent and
    35
    treatise argument 8 support reviewing it deferentially under a
    clearly erroneous standard. Thus I arrive at essentially the same
    deferential standard as my colleagues by a different, and
    certainly more Proustian, path of analysis.
    8
    As Childress and Davis write:
    If the application [of law to facts] refines the [legal] test
    or suggests something broadly applicable in future cases,
    the appellate court legitimately performs the function de
    novo. However, the actual application of law to facts to
    see whether a particular set of facts rises up sufficiently
    to meet the test, except to the extent it defines the test for
    future courts, is just the fact-finding process, not law-
    making; it should be reviewed for clear error.
    Childress & 
    Davis, supra, at 2-102
    .
    36
    

Document Info

Docket Number: 03-2760, 03-3037, 03-3585

Citation Numbers: 399 F.3d 248

Judges: Van Antwerpen, Ambro, Van Antwerpen Stapleton

Filed Date: 2/18/2005

Precedential Status: Precedential

Modified Date: 10/19/2024

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