Interfaith Community Organization v. Honeywell International, Inc.

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Precedential or Non-Precedential: Precedential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