Del. Riverkeeper Network v. Soil Safe, Inc., Civil No. 14-1349 (RMB/KMW)

• Decision Date: 30 June 2017
• Docket Number: Civil No. 14-1349 (RMB/KMW)
• Parties: DELAWARE RIVERKEEPER NETWORK, et al., Plaintiffs, v. SOIL SAFE, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

DELAWARE RIVERKEEPER NETWORK, et al., Plaintiffs,
v.
SOIL SAFE, INC., Defendant.

Civil No. 14-1349 (RMB/KMW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

June 30, 2017

OPINION

Contents

I. Findings of Fact .......................................... 4

A. The Parties ............................................. 4

i. Soil Safe, Inc. ......................................... 4
ii. Plaintiffs ........................................... 5

B. The Sites and Surrounding Area ......................... 11

i. The Logan Equine Park Site ............................ 11
ii. The Birch Creek Site ................................ 13
iii. The Gloucester County Park Site ..................... 13

C. The Soil Recycling Process ............................. 16

i. Incoming Soil ......................................... 17
ii. Recycling Process ................................... 21

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iii. Oversight and Testing ............................... 26

D. The Application of Soil Safe Product ................... 28

E. Recycling and Soil Safe's Product ...................... 31

F. Ecological Impact ...................................... 33

i. Testing of the Area at Issue .......................... 33
ii. Stockpile Sampling .................................. 37
iii. Guidance as to Ecological Evaluation ................ 38
iv. Ecological Evaluation ............................... 40

II. Conclusions of Law ....................................... 45

A. Standing ............................................... 45

i. General Legal Standard ................................ 45
ii. Plaintiffs' Standing to Pursue RCRA Claim ........... 48

B. RCRA ................................................... 57

i. General Legal Standard ................................ 58
ii. Solid Waste ......................................... 59
iii. Imminent and Substantial Harm ....................... 74

III. Conclusion ............................................... 80

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APPEARANCES:

Gerald J. Williams, Esq.
Nicholas B. Patton, Esq.
Christopher Markos, Esq.
Williams, Cuker & Berezofsky, Esqs.
1515 Market St.
Suite 1300
Philadelphia, PA 19102-1929
Attorneys for Plaintiffs

Christopher Gibson, Esq.
Patrick M. Flynn, Esq.
Archer & Greiner, PC
One Centennial Square
PO Box 3000
Haddonfield, NJ 08033-0968
Attorneys for Defendant

BUMB, United States District Judge:

The Court conducted a four-day bench trial in this matter from March 21, 2017 through March 24, 2017 concerning Plaintiff's claim pursuant to the Resource Conservation and Recovery Act ("RCRA"). At the conclusion of the trial, the Court solicited legal briefs from the parties as well as proposed findings of fact. The Court has considered the evidence adduced at trial and the briefs submitted by the parties. For the reasons set forth below, the Court concludes that Plaintiffs have not established that Soil Safe's product is a solid waste or that it may present an imminent and substantial harm to the environment. Accordingly, the Court enters final judgment in favor of Soil Safe.

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Having considered the testimony and other evidence, as well as the parties' contentions in regard to the evidence and the law, the Court makes the following findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52. To the extent any of the Court's findings of fact incorporate a conclusion of law, such conclusions of law are adopted. Likewise, to the extent any of the Court's conclusions of law embody a finding of fact not set forth in the findings of fact, the Court adopts such finding of fact.

I. FINDINGS OF FACT

A. The Parties

i. Soil Safe, Inc.

1. Soil Safe, Inc. ("the Defendant" or "Soil Safe") is a company that has been in business for over 25 years and in business in New Jersey for over 20 years. Joint Statement of Undisputed Facts ("JSOF"), at ¶ 68 [ECF No. 150]. Soil Safe currently has operations in New Jersey, Maryland, and California. Id. ¶ 69. Soil Safe owns a soil recycling center in Logan Township, Gloucester County, New Jersey (the "Logan Recycling Center"). Id. ¶¶ 1, 3 [ECF No. 150]. The Logan Recycling Center is a "recycling center for Class B recyclable materials" as that term is defined in New Jersey's Recycling Regulations. Id. ¶ 3; Def.'s Ex. 1 (Class B Permit).

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ii. Plaintiffs

2. Plaintiff Maya van Rossum was a witness in this case as the Delaware Riverkeeper, a role she has occupied for the other plaintiff in this case the Delaware Riverkeeper Network ("Delaware Riverkeeper Network" and collectively, "Plaintiffs") since 1996. Trial Tr. 26:18-22, 27:14-18.

3. The Delaware Riverkeeper Network was organized in 1988 and currently has approximately 20,000 members. Id. at 27:13, 28:22-24. As set forth by Ms. van Rossum, the Delaware Riverkeeper Network is a non-profit organization whose mission is to "champion the rights of communities to the Delaware River and tributary streams that are free flowing, healthy[,] and abundant with the diversity of life." Id. at 27:2-6. The Delaware Riverkeeper Network has several programs through which it purports to accomplish this mission, including a litigation program, a stream bank restoration program, and a citizen monitoring program. Id. at 27:6-10. The Delaware Riverkeeper Network also has an educational component. Id. at 27:10-11.

4. The Delaware Riverkeeper Network limits its focus to the Delaware River watershed and all issues that might impact the main-stem Delaware River and its tributaries. Id. at 28:1-3.

5. Birch Creek and Raccoon Creek, two bodies of water at the center of this case, are both parts of the Delaware River watershed. Id. at 28:17-21. In her capacity as the Delaware

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Riverkeeper, Ms. van Rossum is aware of members of the Delaware Riverkeeper Network using Birch Creek and Raccoon Creek. Id. at 30:7-8. The Delaware Riverkeeper Network has many members that enjoy the Delaware River watershed, including the main-stem river and tributaries, which also includes the area of the DREAM Park. Id. at 35:4-9.

6. Ms. van Rossum lives in Bryn Mawr, Pennsylvania and, accordingly, she does not live near the property in Logan Township, New Jersey where Soil Safe's Logan Recycling Center is located or Soil Safe's product was used as relevant to this case. Id. at 46:1. Additionally, Ms. van Rossum has never been to the Birch Creek Site (discussed below), nor has she engaged in any recreational activities there. Id. at 46:15-23, 47:5-7. This includes any usage or planned usage of the equestrian facilities at issue in this case. Id. at 48:1-2. Ms. van Rossum does, however, engage in recreational activities on the Delaware River adjacent to the DREAM Park. Id. at 48:5-6.

7. With regard to the two creeks involved in this case, Ms. van Rossum has been on one kayak trip on Raccoon Creek. Id. at 49:17-23. Ms. van Rossum anticipates visiting Raccoon Creek again at some point, although she does not have a specified time at which she anticipates doing so. Id. at 50:5-8. She makes a practice of trying to visit various portions of the watershed to appreciate them. Id. at 50:1-2.

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8. Ms. van Rossum's enjoyment of her use of the Delaware River has diminished because she believes that Soil Safe's operations are ongoing and create potential implications for water quality because Raccoon Creek and Birch Creek are tributaries of the Delaware River. Id. at 50:22-51:5. Specifically, Ms. van Rossum passionately testified to her personal belief that Soil Safe was contaminating the Delaware River and its tributaries and that "does impact [her] enjoyment of the Delaware River when [she] go[es] into that reach of the river, knowing that those operations are ongoing, that there are potential implications of water quality, whether it's on the tributary or on the main stem river, as well as the ecological system's critters that [she] ha[s] worked very long and hard to protect because of professional appreciation for them and a personal appreciation of them does impact [her] enjoyment when [she] visit[s] that reach of the river, both [her] recreational enjoyment and [her] aesthetic enjoyment." Id. at 50:22-51:5.

9. Ms. van Rossum has used the Delaware River between Raccoon Creek and Birch Creek, both professionally and personally. Id. at 32:6-9. She testified that when she uses a boat in this area, there is a lot of water spray, so one would expect to get wet while boating there. Id. at 33:22-23. She credibly testified that she plans to continue her work in the area, including in the tributaries of the Delaware River to "undertake

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both recreational activities as well as environmental protection activities." Id. at 33:5-11.

10. Ms. van Rossum also testified that she is concerned about Soil Safe's activities in the following way: "Well, me as the Delaware Riverkeeper, professionally and personally, it's very concerning. We have a lot of members that enjoy that area of the Delaware River [w]ater[s]hed, including the main[-]stem and the tributaries, including the park area. And so, you know, it's a concern about how they are going to be impacted. It's a concern about how the aquatic ecosystems, how the water quality of those waterways will be impacted having these dangerous contaminants introduced, whether it be through ground water, surface water, runoff, through the air." Id. at 35:4-13.

11. Ms. van Rossum and the Delaware Riverkeeper Network pursued this litigation after learning in 2012 there might be contamination of the Delaware River watershed as part of Soil Safe's operations. Soil Safe Proposed Findings of Fact and Pls.' Resps. ("Soil Safe PFOF & PR") ¶ 30 [ECF No. 155]; Trial Tr. 40:17-21. The lawsuit was filed after Delaware Riverkeeper Network engaged in a "significant amount" of independent analysis of these concerns and formed the belief that there was an issue of concern with regard to Soil Safe's operations and what they believed to be a potential violation of law that

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needed to be addressed through legal action. Trial Tr. 40:17-41:14.

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