Hackensack Riverkeeper Wins Largest Chromium Cleanup in Nation
Decision Strengthens Citizen Enforcement
By Steven J. German
When Hackensack Riverkeeper Captain Bill Sheehan joined the Interfaith Community Organization as a co-plaintiff in its 1995 Resource Conservation and Recovery Act (RCRA) citizen suit against Honeywell, he was hopeful that the court would force the corporate giant to clean up its massive riverfront chromium waste site which was impudently poisoning his river. He never imagined that his case would someday change the landscape of citizen environmental enforcement. After a decade of courtroom sparring, that is exactly what happened.

On May 23, 2003, three months after a 15-day bench trial, Federal Judge Dennis M. Cavanaugh issued his ruling in Interfaith Community Organization v. Honeywell, which found that Honeywell’s site presented an “imminent and substantial endangerment to health or the environment” under RCRA, and which required Honeywell to excavate nearly 1,500,000 tons of the waste, remedy river sediments and address contaminated groundwater. The injunction was the largest cleanup ever ordered by a court under RCRA’s citizen suit provision, and is expected to cost well over $400 million.

Last month, the Federal Third Circuit Court of Appeals in Philadelphia rejected Honeywell’s appeal, and affirmed Judge Cavanaugh’s ruling. In doing so, the Court adopted an environmentally protective standard for establishing liability under RCRA.

From 1895 to 1954 Honeywell’s predecessor — Mutual Chemical Company — operated a chromate chemical plant along the Hackensack River in Jersey City, New Jersey. Mutual generated large volumes of Chromium Ore Processing Residue (COPR) — a byproduct of its operations — and piled nearly 2,000,000 tons of the waste in tidal wetlands along the river, behind the plant. That disposal created the 34 acre site.

In 1982, the City of Jersey City notified Honeywell that the site endangered public health and safety, and demanded that Honeywell investigate the site and clean it up. In 1983, the New Jersey Department of Environmental Protection (NJDEP) echoed the city’s demand. By then, approximately 12,600 gallons of contaminated water were discharging daily to the river. In June 1983, Honeywell said it would act. However, for the next 12 years it refused to clean up the site. With each trip past the site, Captain Bill increasingly realized that a citizen suit was the only way to prevail over this obstreperous polluter.

To prevail on the merits at trial, New Jersey law required plaintiffs to prove (1) there was a potential population at risk; (2) the contaminant at issue was a RCRA “solid” or “hazardous” waste; (3) the contaminant was present at levels above what is considered acceptable by the state; and (4) there was a pathway for current and/or future exposure.

Plaintiffs easily complied. For example, plaintiffs’ experts showed that soil and groundwater were contaminated hundreds of times above state standards. Groundwater and surface water discharges to the river also exceeded state standards, adversely affecting the benthic population — the base prey of the ecosystem. New Jersey’s sediment standards for chromium were also exceeded at multiple locations near the site.

Captain Bill brought the expert testimony alive. He testified that after years of industrial abuse, his once-afflicted river had become a resource in recovery. Fish and avian species have rebounded. Endangered species feed and nest along the river. Responsible and sustainable human activity including boating, paddling, birding and hiking increased in tandem. Captain Bill’s testimony undermined Honeywell’s argument that the ecosystem was beyond repair, and that the site’s chromium loading was relatively incapable of causing harm.

However, in its landmark ruling, the appeals court found New Jersey’s four-prong test to be too stringent.

First, said the court, RCRA liability is not contingent upon a quantitative showing of harm, such as the exceedence of regulatory standards. Instead, the liability analysis must be made in view of the “cumulative facts establishing the substantialness of the endangerment.” Thus, a finding of liability can be based on expert testimony that an imminent and substantial endangerment exists, even without a difficult to prove regulatory exceedence.

Second, liability is not contingent upon showing that there is a “potential population” at risk. An endangerment to groundwater, soil or air alone could form the basis for liability, even though it is not an actual “population.”

Interfaith’s progressive RCRA analysis, coupled with Friends of the Earth v. Laidlaw’s liberal standing requirements, trumpets a new era in citizen enforcement at hazardous waste sites. Under Laidlaw, a citizen with virtually any “reasonable concern” that hazardous waste threatens her health or enjoyment of the environment has standing to sue. Under Interfaith, her RCRA proof requirement has been cut back substantially. Moreover, Interfaith signals a willingness by the court to seize control of environmental cleanups where necessary, and to order any relief necessary to abate any endangerment — irrespective of burden and cost.

By throwing into serious doubt the cherished conventional wisdom of the regulated community that delay in implementing a remedy, is, in itself, a victory, Interfaith also may help expedite voluntary responsible party cleanups. Historically, delay provided an opportunity for responsible parties to lobby for weakened standards, while avoiding the expenditure of present-day cleanup dollars. However, Interfaith creates a disincentive for delay. Few would doubt that pursuing a more active and cooperative approach to remediating its site would have been a better long-term financial strategy for Honeywell. Polluters are well advised to work with administrative agencies and the public to quickly resolve their hazardous waste problems. After Interfaith, the stakes may be too high for delay.

— Author Steven German represented the Interfaith Community Organization and the Hackensack Riverkeeper during their trial against Honeywell. He is currently an associate at Weitz & Luxenberg, P.C. in New York.