399 F.3d 248 (3rd Cir. 2005), 03-2760, Interfaith Community Organization v. Honeywell Intern., Inc.

Docket Nº:03-2760, 03-3037, 03-3585.
Citation:399 F.3d 248
Party Name: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
Case Date:February 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 248

399 F.3d 248 (3rd Cir. 2005)

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

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. Honeywell International, Inc., Appellant.

Nos. 03-2760, 03-3037, 03-3585.

United States Court of Appeals, Third Circuit

February 18, 2005

Argued Dec. 14, 2004.

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Richard G. Taranto, (Argued), Farr & Taranto, Washington, Thomas H. Milch, Mary Gabrielle Sprague, Arnold & Porter LLP, Washington, David W. Field, Lowenstein Sandler, PC, Roseland, for Appellants.

Bruce J. Terris, Kathleen L. Millian, (Argued), Lemuel B. Thomas, Terris, Pravlik & Millian, LLP, Washington, Edward Lloyd, Columbia University School of Laws, New York, for Appellees.

Michael W. Steinberg, Morgan, Lewis & Bockius, LLP, Washington, for Amicus-Appellant.

Jeffrey J. Brookner, Wilentz, Goldman & Spitzer, Woodbridge, for Amicus-Appellee.

Before AMBRO, VAN ANTWERPEN, and STAPLETON, Circuit Judges.

AMBRO, Circuit Judge, concurring.

OPINION

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.

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. Mutual 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

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"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 "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

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. Hartmarx Corp., 496 U.S. 384, 402, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).

We have not previously determined the standard of review for RCRA endangerment determinations. Other courts of appeals consider it a question of

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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, 112 S.Ct. 2638, 120 L.Ed.2d 449 (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, 68 S.Ct. 525, 92 L.Ed. 746 (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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (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 have weighed the evidence differently." Id. at 574, 105 S.Ct. 1504. 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, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003); Friends of Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (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, 124 S.Ct. 619. "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, 110 S.Ct. 596, 107 L.Ed.2d 603 (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, 124 S.Ct. 619 (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, 120 S.Ct. 693. It must be "an invasion of a concrete and particularized legally protected interest," id. at 227, 120 S.Ct. 693 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)), and may not be either "conjectural or hypothetical," Laidlaw, 528 U.S....

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