DELAWARE RIVERKEEPER NETWORK et al v. SOIL SAFE, INC.
OPINION. Signed by Judge Renee Marie Bumb on 11/30/2016. (TH, )
NOT FOR PUBLICATION
[Dkt. Nos. 104, 112, 113, 114, 115]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DELAWARE RIVERKEEPER NETWORK,
Civil No. 14-1349 (RMB/KMW)
SOIL SAFE, INC.,
Gerald J. Williams
Nicholas B. Patton
Williams, Cuker & Berezofsky, Esqs.
1515 Market St.
Philadelphia, PA 19102-1929
Attorneys for Plaintiffs
Craig J. Huber
Archer & Greiner, PC
One Centennial Square
PO Box 3000
Haddonfield, NJ 08033-0968
Attorneys for Defendant
BUMB, United States District Judge:
THIS MATTER comes before the Court upon the filing of a
motion for summary judgment filed by Defendant Soil Safe, Inc.
(“Soil Safe”) and a cross-motion for partial summary judgment
filed by Plaintiffs Delaware Riverkeeper Network and Delaware
Riverkeeper (collectively, “DRN”).
Mot. Summ. Judgment [Dkt.
No. 104]; Cross-Mot. Summ. Judgment [Dkt. No. 112].
reasons set forth below, the Court (a) denies Soil Safe’s motion
for summary judgment with regard to DRN’s Resource Conservation
and Recovery Act (“RCRA”) claim; (b) grants Soil Safe’s motion
for partial summary judgment on DRN’s New Jersey Environmental
Rights Act (“NJERA”) claim; and (c) denies DRN’s associated
cross-motion for summary judgment.
Soil Safe holds itself out to be a recycler of soil, adding
cementitious and other additives to contaminated soil, along
with screening and processing that soil for structural fill and
engineering purposes, including remediation.
Statement of Undisputed Material Facts & DRN’s Responses (“First
SOF”) ¶¶ 1-5, 10 [Dkt. Nos. 104-2, 112-4].
Other than those
high-level facts, the parties disagree about much of Soil Safe’s
efforts in recycling soil, and, indeed, whether it even amounts
Soil Safe’s product, as it pertains to this case, is a low
level petroleum-impacted soil that is, as set forth in the
affidavit Dr. Craig Benson,1 ICC700 National Green Building
Standard Green Certified.
Benson Aff. Ex. A at App’x B [Dkt.
Dr. Benson is the Dean of the School of Engineering at the
University of Virginia. Benson Aff. Ex. A.
The soil at issue in this case comes from Soil
Safe’s Logan Recycling Center, located in Logan Township,
Gloucester County, New Jersey.
Gibson Dec. Ex. A at 2 [Dkt. No.
Soil Safe possesses a New Jersey Department of
Environmental Protection (“NJDEP”) Class B recycling permit,
which authorizes it to use recycled soil at three specific
sites: (1) the Birch Creek Site, which is owned by Soil Safe;
(2) the Logan Equine Park Site, which is owned by Gloucester
County Improvement Authority; and (3) the Gloucester County Park
site (“County Park Site”), which is owned as well by the
Gloucester County Improvement Authority.
First SOF ¶ 13.
The County Park Site was historically contaminated because
it was used as a depository for dredge spills, among other
Id. ¶ 16.
The NJDEP approved a Remedial Action
Workplan (“RAWP”) for the site in November 2008, with a goal of
remediating the contamination at the site.
Id. ¶ 17; see also
Gibson Dec. Ex. B (the “County Park Site RAWP”).
Park Site RAWP was supported by a 14-month study and review,
with permits and approvals for the project being obtained from
the United States Army Corps of Engineers, several NJDEP units,
the Gloucester Soil Conservation District, the Gloucester County
Health Department, the Gloucester County Improvement Authority,
the Gloucester County Board of Chosen Freeholders, and Logan
First SOF ¶ 18.
In generating this review, technical
studies, including a full ecological inventory, a comprehensive
evaluation of the product to be used at the site, and other
ecological analyses, were performed.
Id. ¶ 19.
of the County Park Site RAWP and its associated environmental
analysis, shipment of Soil Safe product began in March 2009.
Id. ¶ 20.
The parties disagree about much of what the County Park
Site RAWP entails for the County Park Site.
As the RAWP sets
forth, the Site is contaminated with arsenic, lead and
pesticides in the surface soil.
The sub-surface soil is
contaminated with metals, pesticides, petroleum hydrocarbon,
polynuclear aromatic hydrocarbon (“PAH”) and PCB.
groundwater is contaminated with metals.
County Park Site RAWP
Based upon the results of an ecological analysis of the
existing conditions, Soil Safe proposed (and the County Park
Site RAWP adopted), the placing of an environmental cap over
portions of the County Park Site, which will permit the site to
have the potential for human use.
Id. at 9.
As the County Park
Site RAWP notes, “[t]he cap will be manufactured from Soil Safe
product, a class B recyclable material that has been proven to
be environmentally safe.”
The project consists of placing
three layers atop the contaminated area:
A two-foot thick, reduced permeability cap layer between
the surface contamination and the developed park lands,
which serves as a base for the development of the site;
A varying-thickness contouring layer, which provides lines
and grades needed for site development, as well as
improving the geotechnical properties of the site; and
A minimum 12-inch thick topsoil layer, which includes seed,
landscaping and wearing surfaces which will be sufficient
for permanent stabilization.
Id. at 9.2
In conducting the remediation pursuant to the County Park
Site RAWP, the soil that Soil Safe will send to the project site
is sampled and analyzed at least twice before it is shipped to
verify that the soil is non-hazardous.
First SOF ¶¶ 27, 28.
Indeed, in order to be sent to the County Park Site after
recycling at Soil Safe’s Logan Recycling Facility, over 16,000
samples of soil are analyzed.
Id. ¶ 30.
The data generated by
these samples are analyzed by New Jersey Certified Analytical
They are then submitted to an independent New
Jersey Professional Engineer for certification.
Id. ¶¶ 39-40.
Soil Safe estimates that it is approximately 80 to 85%
complete with the project as of April 2016.
[Dkt. No. 104-39].
Free Aff. ¶ 18
As set forth in the below analysis, this
lawsuit arises from faults that DRN claims it has identified
concerning Soil Safe’s remediation efforts.
The proposed cap was designed to be placed on all portions of
the County Park Site that would be subject to human contact,
which excluded wetlands and wildlife buffer areas. Id. The
parties disagree as to whether the term “cap” embodies the
entire three-layer covering or just the two-foot remedial cap.
thrust of DRN’s factual claims is that Soil Safe does not
meaningfully recycle any soil that it receives and instead
disposes of contaminated soil (which it argues is a solid or
hazardous waste) in the name of remediation only, while
violating the County Park Site RAWP and New Jersey regulations
along the way.
DRN Opp. Br. at 2, 21-22 [Dkt. No. 112-2].3
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
14 Fed. R.
A fact is “material” if it will “affect the
outcome of the suit under the governing law . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.” Id.
When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
While not dispositive to the outcome of the summary judgment
motions now pending, the Court does feel compelled to note the
factual issues concerning Clean Earth, a Soil Safe competitor.
Soil Safe has put forward evidence, some contested and some
uncontested, that this lawsuit was spurred on by Andrew Voros, a
consultant for Clean Earth. First SOF ¶¶ 43-58. Mr. Voros, who
has been paid in excess of $100,000 by Clean Earth (a fact not
disputed) to investigate Soil Safe’s operations, took the
information he had received about Soil Safe to the Delaware
Riverkeeper Network, with whom he has interacted for purposes of
pursuing this litigation. Id. at ¶¶ 51, 57, 58.
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”
Meyer v. Riegel Prods.
Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
However, a mere
“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.
Anderson, 477 U.S. at 252.
a court does not have to adopt the version of facts asserted by
the nonmoving party if those facts are “utterly discredited by
the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 373, 380 (2007).
In the face of such
evidence, summary judgment is still appropriate “where the
record . . . could not lead a rational trier of fact to find for
the nonmoving party . . . .”
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
56(e)). The non-movant’s burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat
A. DRN’s Resource Conservation and Recovery Act (“RCRA”) Claim
Soil Safe first moves for summary judgment on DRN’s claim
pursuant to 42 U.S.C. § 6972(a)(1)(B) of the RCRA.
of the RCRA states, with exceptions, any person may commence a
civil action on his own behalf:
[A]gainst any person, including the United States and
any other governmental instrumentality or agency, to the
extent permitted by the eleventh amendment to the
Constitution, and including any past or present
generator, past or present transporter, or past or
present owner or operator of a treatment, storage, or
disposal facility, 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 .
. . .
Id. (emphasis added).
With regard to this provision, Soil Safe
contends that the undisputed facts demonstrate its product is
not a solid or hazardous waste.
Further, even if it does deal
with hazardous or solid waste, there is not a genuine dispute of
fact concerning whether that waste may present an imminent and
substantial endangerment to health or the environment.
disagrees on both counts.
i. Solid Waste
The definitional language of this provision and others in
the scheme have been called “dense, turgid, and circuitous,”
United States v. White, 766 F. Supp. 873, 880 (E.D. Wash. 1991),
and this Court agrees.
Nevertheless, the RCRA defines “solid
any garbage, refuse, sludge from a waste treatment
plant, water supply treatment plant, or air pollution
control facility and other discarded material, including
solid, liquid, semisolid, or contained gaseous material
resulting from industrial, commercial, mining, and
agricultural operations, and from community activities,
but does not include solid or dissolved material in
domestic sewage, or solid or dissolved materials in
irrigation return flows or industrial discharges which
are point sources subject to permits under section 1342
of Title 33, or source, special nuclear, or byproduct
material as defined by the Atomic Energy Act of 1954, as
amended (68 Stat. 923) [42 U.S.C.A. § 2011 et seq.].
42 U.S.C. § 6903(27) (emphasis added).4
Many courts have found
the above statutory definition to be ambiguous, see, e.g.,
Ecological Rights Foundation v. Pacific Gas and Electric Co.,
713 F.3d 502, 514-15 (9th Cir. 2013), and have looked to other
authorities and the legislative history, discussed infra, to
No party asserts that the solid waste analysis would proceed on
any ground other than the “other discarded material” category.
resolve the ambiguity.
(“Congress enacted RCRA to
‘eliminate the last remaining loophole in environmental law’
by regulating the ‘disposal of discarded materials and hazardous
wastes.’”) (quoting H.R. Rep. No. 94-1491(I), at 4 (1976)).
Soil Safe contends that its soil, because it is being used
for purposes of environmental remediation, is not being
“discarded” within the meaning of the RCRA.
As the Ninth
Circuit panel noted in Safe Air for Everyone v. Meyer, “RCRA
itself does not define the term ‘discarded material.’”
In that case, the court relied upon the dictionary
definition “to cast aside; reject; abandon; give up.”
(quoting The New Shorter Oxford English Dictionary 684 (4th ed.
The court in Safe Air also quoted favorably the D.C.
Circuit’s ruling that “our analysis of [RCRA] reveals clear
Congressional intent to extend EPAs authority only to materials
that are truly discarded, disposed of, thrown away, or
Id. (quoting American Mining Congress v. U.S.
E.P.A., 824 F.2d 1177, 1190 (D.C. Cir. 1987)).
Likewise, as Soil Safe argues, in American Mining Congress
v. U.S. E.P.A., the Court held that the use of the term
discarded “calls for more than resort to the ordinary, everyday
meaning of the specific language at hand.”
824 F.2d at 1185.
Nevertheless, the Court ultimately did adopt more-or-less that
everyday meaning of discarded, which centers on the concept of
Id. at 1186.
The Court noted that the purpose of
the statutory scheme was to deal with the issue of how waste was
being disposed of:
RCRA was enacted, as the Congressional objectives and
findings make clear, in an effort to help States deal
with the ever-increasing problem of solid waste disposal
by encouraging the search for and use of alternatives to
existing methods of disposal (including recycling) and
protecting health and the environment by regulating
hazardous wastes. To fulfill these purposes, it seems
clear that the EPA need not regulate ‘spent’ materials
that are recycled and reused in an ongoing manufacturing
process. These materials have not become part of the
waste disposal problem; rather, they are destined for
beneficial reuse or recycling in a continuous process by
the generating industry itself.
Like Safe Air, the touchstone of American Mining’s decision
is the intention of the person or entity handling the materials
– whether the alleged polluter is “abandoning” them or not.
See, e.g., id.
(“We are constrained to conclude that . . .
Congress clearly and unambiguously expressed its intent that
‘solid waste’ . . . be limited to materials that are ‘discarded’
by virtue of being disposed of, abandoned, or thrown away.”).
This is a common thread of interpretation of the word
“discarded” throughout many of the cases cited by Soil Safe.
See Oklahoma v. Tyson Foods, Inc., No. 05-CV-329-GKF-SAJ, 2008
WL 4453098, at *3-4 (N.D. Ok. Feb. 17, 2010) (holding that
poultry litter, which has agricultural uses, was not being
“discarded” for purposes of violating RCRA), aff'd sub nom. Att.
Gen. of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir.
2009); Ecological Rights Found., 713 F.3d at 515-16 (holding
that wood preservative being applied to telephone poles was
being used for its “intended purpose” and was therefore not
being discarded); Krause v. City of Omaha, No. 8:15CV197, 2015
WL 5008657, at *4-5 (D. Neb. Aug. 19, 2015) (holding that road
salt was not solid waste under the RCRA because it was placed on
the streets for “snow and ice control”), aff’d, 637 Fed. Appx.
257, 258 (8th Cir. Feb. 22, 2016).
The Court agrees with the above-cited opinions and
legislative history that have concluded that “disposal” or
“abandonment” of material is essential to the material being
“discarded” for the purpose of being “solid waste.”
Rep. 94-1491(I) (“At present the federal government is spending
billions of dollars to remove pollutants from the air and water,
only to dispose of such pollutants on the land in an
environmentally unsound manner.”).
Congress sought to redress
issues of disposal of hazardous or solid waste, not regulate the
use of all materials that present environmental concerns, even
if used properly for a beneficial purpose.
The cases cited by
Soil Safe confirm this reading of the RCRA by declining to
uphold causes of action predicated on creative interpretations
of the term “discard,” when the record in those cases
established that the questioned materials, like poultry litter
or road salt, were being used in their intended manner.5
On the other hand, DRN contends that contaminated soil does
indeed amount to “solid waste” under the RCRA.
In so arguing,
DRN relies on Zands v. Nelson for the proposition that
contaminated soil can be solid waste under the RCRA.
Supp. 1254 (S.D. Cal. 1991).
That case dealt with gasoline-
contaminated soil and ruled that gasoline-contaminated media is
The Zands court so reasoned because the gasoline
in the soil had been “abandoned” and the gasoline cannot be reused or recycled.
Ultimately, that court determined that it
found it difficult to believe “that Congress intended that soil
and groundwater contaminated with gasoline would not be covered
by RCRA simply because the contamination was caused by
gasoline,” even though gasoline itself is obviously not a
Id. at 1262.
The court in Dydio v. Hesston Corp. reached a similar
conclusion, holding that “petroleum-contaminated soil
constitutes ‘solid waste[.]’”
Ill. May 22, 1995).
887 F. Supp. 1037, 1048 (N.D.
In that case, the defendant claimed that
The issue before the Court is not whether the soil that Soil
Safe receives at its facility is “solid waste,” as that soil
would likely not fit the definition of being discarded.
Instead, the issue is whether the output of the soil recycling
facility is being discarded or not.
leaking petroleum was not a “waste” product because it was a
Relying upon Zands, the Dydio court ruled that
“[m]ost, if not all of these courts, have reiterated and adopted
the reasoning originally set out in Zands, and today we join
among them and hold that leaking petroleum is a solid or
hazardous waste supporting a citizen suit under §
Id. at 1047.
The Court finds these two veins of case law to be
The cases cited by Soil Safe stand for the
proposition that material being used with the intention of
carrying out a task is not “discarded” (and therefore not solid
waste) because it is not being abandoned, while the cases cited
by DRN stand for the proposition that oil or gasoline leaking
into soil and groundwater is abandoned and does embody or create
“solid waste” under the RCRA.
Notably, the oil or gas-laced
soil present in DRN’s cases was not present by any intentional
purpose – it had leaked there.
Thus, the Zands and Dydio courts
were not presented with the issue before this Court (or the
issue before the courts in the cases cited by Soil Safe):
whether soil containing petroleum, if intentionally applied for
ecological remediation purposes, is being “discarded” within the
meaning of the RCRA.
The Court holds that recycled, petroleum-laced soil that
has undergone proper review and testing, a fact not in dispute
in this case, see supra at 5, is not solid waste when applied
for purposes of remediation.
Nevertheless, DRN has made much at
the motion to dismiss stage, and again at the summary judgment
stage, of the fact that the recycling process engaged in by Soil
Safe is a “sham.”
Mot. Dismiss Hrg. Tr. 27:25-28:12 [Dkt. No.
Specifically, DRN has adduced evidence in the form of
deposition testimony that Soil Safe acquires contaminated soil
from other companies and adds one percent by weight CKD to the
contaminated soil “knowing the addition of CKD does not alter
the contaminated character of the soil.”7
Free Dep. at 141:2-
DRN has also adduced evidence that the Soil Safe
additives only create physical stabilization for improved
geotechnical properties, but do not create any chemical
Benson Aff. ¶¶ 16, 19.
Viewing this evidence in
the light most favorable to DRN, an inference arises that Soil
Safe does nothing to the soil to remediate it and that its true
As noted by the Fifth Circuit in a different context, “[s]ham
recycling, as opposed to legitimate recycling, occurs when the
hazardous waste purportedly recycled contributes in no
significant way to the production of the product allegedly
resulting from the recycling. . . . In other words, the sham
versus legitimate recycling inquiry focuses on the purpose or
function the hazardous waste allegedly serves in the production
process.” United States v. Marine Shale Processors, 81 F.3d
1361, 1365 (5th Cir. 1996).
7 Based on DRN’s theory of the case, Soil Safe engages in sham
recycling by doing little to nothing to the damaged soil it
receives, and then engages in sham remediation by laying that
purpose in placing it on the County Park Site is simply to
abandon polluted soil and not remediate.
By a sliver, this
inference permits the case to advance past summary judgment.
In other words, at summary judgment, viewing the evidence
in the light most favorable to DRN, it has narrowly identified a
genuine dispute with deposition testimony and other evidence
that could lead a reasonable jury to find that Soil Safe is
disposing of contaminated soil, while merely rubber stamping
that disposal as remediation to cover up the fact that it is
“discarding” it under the RCRA.8
Put more directly, trial of
this issue will focus almost exclusively on whether Soil Safe is
“putting lipstick on a pig” and has no intent to remediate with
the soil, but rather is simply abandoning polluted soil with the
purpose of using the RAWP to erect a Potemkin village in front
of waste disposal.9
Should the fact finder find that the purpose
The Court gives little credence to the parties’ arguments
concerning the beneficial use exemption under New Jersey law.
As noted in Citizens Coal Council v. Matt Canestrale
Contracting, Inc., “it is simply irrelevant whether CCB is
considered waste under Pennsylvania regulations, as this Court
has determined that the statutory definition of solid waste
contain in . . . 42 U.S.C. § 6903(27) applies to [suits under 42
U.S.C. § 6972(a)(1)(B).]” 51 F. Supp. 3d 593, 607 (W.D. Pa.
Sep. 30, 2014).
9 It is hard to fathom that a finder of fact would find that a
company that receives recycled material that has passed muster
by under USEPA’s Toxicity Characteristic Leaching Procedure test
(as the evidence introduced by Soil Safe tends to demonstrate)
engages in sham recycling or remediation. See, e.g., Soil Safe
Br. at 22-23. Nonetheless, this is a fact-based inquiry.
of laying the soil is not to discard it, but rather to remediate
the site, the case will be resolved on that finding alone with
no need to advance to any other phase.10
In its response to summary judgment, Soil Safe argues that
DRN conceded its claim at the motion to dismiss stage that if
the Soil Safe product is not solid waste, then it is hazardous
waste under the RCRA.
DRN, on the other hand, contends that its
claim that Soil Safe product is a “hazardous waste” under the
RCRA remains viable.
DRN’s argument grossly misstates this
Court’s ruling at the motion to dismiss stage.
As the Court
remarked, the reason that DRN’s RCRA claim survived was because
DRN “averred sufficient allegations to say that it is a solid
waste that is being discarded that poses a health risk and
hazardous risk to the environment and humans.”
Hrg. Tr. at 33:8-15.
This ruling was in turn based on DRN’s
position at oral argument that it was no longer pursuing any
argument that Soil Safe product is a hazardous waste.11
the Court considers the issue to have been conceded.
The Court does not find resolution of this issue will take
more than a day of trial time.
11 As counsel for DRN relayed to the Court at the time of oral
argument at the motion to dismiss stage: “No, you don’t have to
get to the list[ed items for hazardous waste.] Your Honor, that
argument and the clarification that [Soil Safe] presented in
[its] reply brief after we presented that in our pre motion
letter was the reason we have decided to dismiss Count 1. But,
Nevertheless, even if the claim were not conceded, there is
not a genuine dispute of fact whether Soil Safe product is a
DRN argues that it is a hazardous waste
because it contains benzo(a)pyrene (“BaP”), a “listed” hazardous
The applicable regulations designate as a hazardous
waste “[a]ny residue or contaminated soil, water or other debris
resulting from the cleanup of a spill into or on any land or
water of any commercial chemical product or manufacturing
chemical intermediate having the generic name listed in
paragraph (e) or (f) of this section.”
40 C.F.R. § 261.33.
comment on that section goes on to state:
The phrase ‘commercial chemical product or manufacturing
chemical intermediate having the generic name listed in
. . .’ refers to a chemical substance which is
manufacturing use which consists of the commercially
pure grade of the chemical, any technical grades of the
chemical that are produced or marketed, and all
formulations in which the chemical is the sole active
ingredient. It does not refer to a material, such as a
manufacturing process waste, that contains any of the
substances listed in paragraph (e) or (f).
40 C.F.R. § 261.33.
DRN has pointed to no evidence in the record that the BaP
amounts in Soil Safe product are the result of a spill or
release of a “commercial chemical product or manufacturing
like I said, your Honor, you only have to focus on a statutory
definition and whether it’s a solid waste under that. Mot.
Dismiss Hrg. Tr. 30:7-13. He added, “Right. It doesn’t need to
be hazardous waste.” Id. at 30:16-17.
DRN instead notes that BaP is a by-
product of petroleum combustion, DRN Opp. Br. 23, which would
appear to clearly refute DRN’s own position that it is the
result of a spill.
As such, even if the issue had not been
conceded, DRN has not pointed to sufficient evidence to overcome
summary judgment with regard to the contention that Soil Safe
product meets the definition of hazardous waste for purposes of
an RCRA violation.
iii. Imminent and Substantial Endangerment
Having rendered the issue of whether Soil Safe product is
solid waste a very narrow question of fact, DRN also must
demonstrate that Soil Safe product “may present an imminent and
substantial endangerment to health or the environment.”
U.S.C. § 6972(a)(1)(B).
In interpreting this statutory
provision, the Third Circuit has noted:
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.
Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248,
258 (3d Cir. 2005) (quoting Parker v. Scrap Metal Processors,
Inc., 386 F.3d 993, 1015 (11th Cir. 2004)) (alterations in
It must also be shown that there is a nexus between
the waste and the imminent and substantial endangerment.
1. Endangerment to Health
Soil Safe argues that DRN has not demonstrated that its
product may pose an imminent and substantial endangerment to
health for purposes of surviving summary judgment.
argument in opposition relies exclusively on the expert opinion
of Dr. Mary A. Fox.
[Dkt. No. 104-15].
See Gibson Dec. Ex. G (“Fox Report”) at 1
The Court finds that Dr. Fox’s findings do
not create a genuine dispute of material fact with regard to the
Dr. Fox’s opinion centers on increased health risks
associated with BaP in Soil Safe product at the County Park
Fox Report at 1.
Dr. Fox measured those risks by
computing increased cancer outcomes, and determined:
For these population scenarios with certain exposures to
the averaged measured BaP soil concentrations, the
cancer risk was estimated to be higher than the cancer
risk identified by both the US EPA and NJDEP.
particular, children with pica (those with very high
soil ingestion rates) were estimated to have the highest
risk, with exposures to mean BaP soil concentrations
leading to an estimated 5 to 6 times the acceptable
Id. at 2.
Dr. Fox’s ultimate conclusion was: “The concentration
of BaP in the soils that Soil Safe has used to build [the County
Park Site] exceed New Jersey’s minimum remediation standards.”
Id. at 8.
This meant “for park visitors exposed to these soils
this may result in cancer risks exceeding one additional cancer
per million which is New Jersey’s public health target for
carcinogens in soil.”
The referenced New Jersey public
health target is the 1 x 10-6 standard, or an additional cancer
risk of one per one million people.12
Soil Safe argues vehemently against the legitimacy of Dr.
Fox’s opinion for purposes of summary judgment.
Safe argues that Dr. Fox’s opinion is mistakenly based on the
wrong data and that substituting the correct data into her
calculations yields a cancer rate below the threshold that Dr.
Fox herself selected.
Specifically, the data upon which Dr. Fox
relied was pulled from Appendix C to the County Park Site RAWP,
which contains soil contaminant data from soil that Soil Safe
received to be recycled, not soil that was sent to the County
Park Site after being recycled by Soil Safe. See County Park
This standard was derived from New Jersey statute concerning
acceptable minimum remediation standards: “The department shall
set minimum soil remediation health risk standards for both
residential and nonresidential uses that . . . for human
carcinogens, as categorized by the United States Environmental
Protection Agency, will result in an additional cancer risk of
one in one million.” N.J.S.A. 58:10B-12(d)(1).
Site RAWP App’x C at C-1 (explaining that the accompanying data
was for soil “accepted” at the Logan facility); but see Fox
Report at 2 (“Soil Safe provided a statistical summary of the
concentrations of contaminants of concern in the Soil Safe
product that [it] was intending to use to remediate the
Gloucester County Park in Appendix C of the Remedial Action
Workplan for the Gloucester County Park.”).
Soil Safe argues
that this decision renders Dr. Fox’s opinion ineffectual for
establishing that the Soil Safe product used at the Gloucester
County Park Site may pose an imminent and substantial health
During her deposition, Dr. Fox did not deny that she had
made a “mistake” considering the RAWP data as representative of
the product used at the Gloucester County Park Site.
Dec. Ex. H at 124:10-15.
Indeed, at her deposition, Dr. Fox
seemed genuinely confused as to what data she analyzed and
whether that data represented remediated soil.13
Q: What I’m asking you about your understanding of the
remedial action work plan is whether the soil that was
sampled is also known as remediated soil?
A: Well, I don’t know. I don’t know. We looked at the
samples that were in the remedial action work plan, which
characterizes the contaminants in the Soil Safe product.
Q: When you say “Soil Safe product,” is that synonymous
with remediated soil?
A: I don’t know.
confounding the legitimacy of DRN’s expert’s findings, Soil
Safe’s expert, Dr. Janet Kester, used both DRN stockpile
sampling data and Soil Safe Product sampling data and plugged
them into Dr. Fox’s otherwise-unchanged calculations.
Aff. ¶ 33, Ex. B at 26-27 [Dkt. No. 104-41].
Doing so yielded
no theoretical increased cancer risk estimates for BaP above the
1 x 10-6 threshold that Dr. Fox has selected.
The Court holds that Dr. Fox’s opinion does not render the
issue of imminent and substantial endangerment of health to be
in genuine factual dispute.
While the Court is not permitted to
weigh evidence at summary judgment, and does not do so to reach
this holding, Dr. Fox’s findings simply do not put into dispute
the harm posed by the soil that was actually used in
remediation, as alleged in this case.
analyzed the wrong data.
Put differently, Dr. Fox
Her analysis does not demonstrate that
the BaP present in the Soil Safe product poses a potential
endangerment to human health because she did not analyze Soil
Safe product that was sent to the Gloucester County Park.
Q: You don’t know. Do you know whether remediated soil
was sent to the Gloucester County Park?
A: I don’t know.
Id. at 124:16-125:5.
Moreover, even if as DRN contends, its theory of the case
that Soil Safe does not meaningfully recycle the soil is true,
DRN has not disputed that plugging in other, accurate numbers to
Dr. Fox’s calculations does not reach the threshold Dr. Fox
Further, while Dr. Fox was not required to
adopt any particular increased cancer risk threshold to create a
genuine issue of fact under the RCRA, including the 1 x 10-6
threshold she did select, the Court finds the record is devoid
of any other means by which it might determine the cancer risk
posed by Soil Safe product is serious.
The natural implication
of DRN’s unadorned argument is that any marginal increase in the
risk of cancer, even an infinitesimally remote one, creates an
issue of fact sufficient to survive summary judgment.
This would be an unacceptably broad standard without
more record evidence to substantiate it, even under the RCRA’s
As such, even viewing the evidence in the light most
favorable to DRN, there is insufficient evidence in the record
to conclude that Soil Safe product “may present an imminent and
substantial endangerment to health . . . .”
42 U.S.C. §
As such, DRN cannot survive summary judgment on
this prong of the RCRA “imminent and substantial endangerment”
2. Endangerment to Environment
Having failed to survive summary judgment by demonstrating
that Soil Safe product may present an imminent and substantial
endangerment to health, DRN also argues that there is a genuine
issue of fact concerning environmental endangerment.
opposition to summary judgment, DRN relies upon the expert
opinions of Drs. Tucker and Cristini, as well as proffered
expert hydrogeologist Vincent Uhl.
In their joint expert report, Drs. Tucker and Cristini
concluded from samples taken at the nearby Birch and Raccoon
Creeks that there was substantial contamination with “PAHs,
PCBs, dioxins and dibenzofurans, as well as heavy metals.”
Gibson Dec. Ex. J (“Tucker/Cristini Report”) at 1 [Dkt. No. 10418].
Analyzing this data, they concluded that this
contamination in the water represents a substantial and imminent
ecological danger “because of the wide range of chlorinated
organic and metal contaminants found in samples adjacent to
Birch and Raccoon Creeks; their likelihood of persisting in the
aquatic environment; and their adverse effect on the biota.”
Id. at 4.
While these experts tersely postulated that Soil Safe
product could be the source of the contamination, id. at 1, they
do not detail that speculation in their report.
Soil Safe has a series of contentions that these expert
reports are insufficient to survive summary judgment:
results are marginal or non-rigorous; the experts did not
undertake an Ecological Risk Assessment pursuant to NJDEP
technical guidance; and exceedance of screening criteria does
not amount to imminent and substantial endangerment.
Br. at 29-32 [Dkt. No. 104-1].
While many of Soil Safe’s
concerns appear to be potentially valid in determining the
weight to be given to such an expert report, such as the limited
sampling protocol and the failure to measure background levels,
the Court is not permitted to weigh the evidence at this stage.
As such, DRN – if by the slimmest of margins – has adduced
sufficient evidence to withstand summary judgment by
demonstrating that the contaminants may present an imminent and
substantial endangerment to the environment.
Having narrowly demonstrated a dispute of fact that the
contaminants may present an imminent and substantial
endangerment to the environment, DRN must also show a nexus
between that endangerment and the defendant.
specifies there is no liability without a causal relationship
between a defendant and an imminent and substantial
U.S. v. Hardage, 116 F.R.D. 460, 466 (W.D. Ok.
Soil Safe argues that DRN has not shown a causal
relationship or nexus because the opinions of Drs. Tucker and
Cristini do not actually establish that the environmental
threats embodied by the contaminants in the water could have
been caused by Soil Safe.
In further support, Soil Safe points
to Tyson Foods, a case in which the court held that where the
defendants spread poultry feces over soil, and bacteria ended up
in the Illinois River Watershed, a preliminary injunction should
not issue against the defendants because “[t]he evidence
produced to this Court reflects that fecal bacteria in the
waters of the IRW come from a number of sources, including
cattle manure and human waste from growing numbers of human
septic systems in that area's karst topography.”
WL 4453098, at *4.
Soil Safe contends that here, too, DRN
cannot “demonstrate that material from Soil Safe’s operations is
the source of the ubiquitous contaminants detected in the three
Birch Creek/Raccoon Creek off-site sediment samples.”
Br. at 33.
Soil Safe further contends that the only potential
evidence that purports to show a causal link between it and the
water contamination are sediment samples and the testimony of
environmental consultants who collected them, but who did not
investigate background contaminant levels.
Further, even if
that evidence were meaningful to the analysis, that causal
relationship would be based on proximity alone, which Soil Safe
argues is insufficient under Tyson Foods.
In response, DRN argues that the expert opinion of Vincent
Uhl, their “expert hydrogeologist” involved in off-site sampling
puts the issue of causation into genuine dispute.
DRN Opp. Br
Mr. Uhl’s goal, as he testified in his deposition, was
to “sample off-site sediments at the end market site, . . . in
surface water pathways to Raccoon Creek.”
Williams Cert. Ex. Q
From that data, Mr. Uhl was able to testify of his
belief that the off-site sediment samples, which contained
extensive contaminants, Gibson Dec. Ex. I at Table 4, were a
result of Soil Safe product.
Williams Cert. Ex. Q at 96:8-12.
The Court finds that DRN has pointed to a genuine issue of
fact with regard to whether there is a nexus between the
imminent and substantial endangerment and Soil Safe’s activity
on the site.
As an initial matter, Tyson Foods is
That case dealt with whether to issue a
preliminary injunction to enjoin the conduct of the defendants.
The matter is before this Court on summary judgment and the
Court is required to consider the evidence in the light most
favorable to DRN and abstain from weighing the evidence.
such, many of Soil Safe’s concerns, which strike the Court as
fertile ground for cross-examination of Mr. Uhl and DRN’s other
experts, go to the weight of the evidence to be given his
opinion, not the existence of a dispute of fact created by that
Mr. Uhl has offered deposition testimony attributing
the contamination to Soil Safe.
[Dkt. No. 112-25].14
Williams Cert. Ex. Q at 96:8-11
To the extent a nexus cannot be established
based on proximity, Mr. Uhl also testified that it was not
proximity alone underlying his opinion, but that it was also
based on the lack of vegetation in certain areas since 2009.
While Mr. Uhl’s limited sampling and reasoning
are open to legitimate criticism, summary judgment is not the
As such, although only very narrowly, DRN has pointed to
sufficient evidence to stave off summary judgment with regard to
its RCRA claim.15
B. DRN’s New Jersey Environmental Rights Act Claim
Both parties move for summary judgment on DRN’s claim for
violation of the NJERA.
Under the NJERA, citizens are permitted
to “commence a civil action in a court of competent jurisdiction
That deposition excerpt reads:
Q: Does that mean that the sediment that you’re looking
at you believe to be Soil Safe’s product?
Q: Okay. And is that based upon the sampling data or is
that based upon visual?
A: It’s based upon the drainage area – focusing on RC
SED-1, the drains to the piped outlet.
Id. at 96:8-16.
The Court believes resolving the environmental endangerment
and nexus issues will, again, require no more than a day of
trial time. It may not be necessary, indeed, to even make use
of this day if the finder of fact determines that the Soil Safe
product is not solid waste, as discussed supra, in the first
against any other person alleged to be in violation of any
statute, regulation or ordinance which is designed to prevent or
minimalize pollution, impairment or destruction of the
DRN’s cause of action centers
on several alleged deviations by Soil Safe from the RAWP or
regulations, specifically: (i) violation of the BaP limits
permissible in the soil, and (ii) violation of the cap thickness
With regard to the BaP contaminant requirements, it is
undisputed by the parties that the levels of BaP in Soil Safe’s
product fall below the requirements of the Residential Direct
Contact Soil Cleanup Criteria (“RDCSCC”) which governed prior to
June 2, 2008, but are at times above the criteria adopted after
June 2, 2008, the Residential Direct Contact Soil Remediation
The parties agree the BaP standard for
the RDCSCC is .66 mg/kg and the RDCSRS standard is .2 mg/kg.
Soil Safe Br. at 37; DRN Opp. Br. at 9.
Instead, the parties
argue over the relevant standard governing the Soil Safe
product, the more lenient RDCSCC or the more stringent RDCSRS.
A grandfathering provision, N.J.A.C. § 7:26E-1.5(c)(2),
governs the appropriate remediation standard for the soil
(hereinafter, “Section 1.5(c)(2)”).
Section 1.5(c)(2) indicates
remediation of a site shall remediate:
1. To comply with
N.J.A.C. 7:26D; or
2. To comply with the standards or criteria
developed by the Department under N.J.S.A. 58:10B–
12a for that site prior to June 2, 2008, provided:
i. A remedial action workplan or a remedial
action report containing standards or criteria
developed for the site under N.J.S.A. 58:10B–
12a was submitted to the Department before
December 2, 2008;
ii. The remedial action workplan or a remedial
action report meets the requirements of
N.J.A.C. 7:26E–5.5 or 5.7, respectively, and
is approved as written by a licensed site
remediation professional; and
iii. The standards or criteria developed by
the Department under N.J.S.A. 58:10B–12a for
the site are not greater by an order of
magnitude than the remediation standards
otherwise applicable under N.J.A.C. 7:26D.
DRN does not contend that the County Park Site RAWP does
not qualify for Section 1.5(c)(2) treatment, at least generally.
Instead, DRN presents a series of arguments that the RDCSRS
standard applies to all or portions of the Soil Safe product
despite Section 1.5(c)(2).
As outlined below, the Court
disagrees with DRN.
DRN’s first argument is that because BaP is not listed as a
contaminant of concern in the County Park Site RAWP, Section
1.5(c)(2), which only provides repose for “standards or
criteria” developed for the site, does not apply.
DRN cites no
authority for this position, and it is not a limitation that is
found in Section 1.5(c)(2), which simply indicates that
remediation must be carried out to specific standards, but does
not indicate that remediation efforts must be limited to RAWPidentified contaminants.
Moreover, DRN’s contention that BaP
was not cited as a potential contaminant for remediation is
The County Park Site RAWP notes that one area of
concern is “AOC G – Historic Fill.”
County Park Site RAWP at
Under NJDEP regulations, Historic Fill is presumed to be
contaminated, and NJDEP regulations in effect at the time of the
RAWP identified default contaminants of concern in Historic
Fill, including BaP.
Id. at 30.
As such, DRN has not
demonstrated a cause of action under the NJERA for this reading.
DRN’s second argument that Soil Safe has violated the RAWP
fares no better.
DRN argues that Section 1.5(c)(2) only
regulates contaminant levels for the soil to be remediated, not
determining the applicable standards for materials brought on to
the site as part of remediation.
This argument is unsupported
by any authority cited by DRN and is inconsistent with a plain
reading of Section 1.5(c)(2).
That Section requires simply that
a remediating party comply with NJDEP remediation standard in
effect at the time, the RDCSCC standard.
As Soil Safe points
out, “there is no part of [Section 1.5(c)(2)] that suggests that
its mandate for compliance with NJDEP remediation standards does
not apply to materials brought onto a site.”
Soil Safe Rep. Br.
at 24 [Dkt. No. 116].16
DRN’s third argument is that, even if the less-stringent
RDCSCC standard did apply to some portion of the remediation
(the two-foot cap at the County Park Site), it did not apply to
the contouring layer or the topsoil layer.
DRN relies for this
argument on a sentence from a letter from the NJDEP to the
Gloucester County Improvement Authority indicating that the
County Park Site RAWP had been approved, which reads: “Any
additional Soil Safe material distributed at the site in excess
of the 2-foot cap will be viewed as construction or
redevelopment based, rather than a remediation requirement.”
Gibson Dec. Ex. W at 1-2.
DRN argues that this sentence conveys
the notion that only the two-foot capping layer was a
remediation effort for purposes of Section 1.5(c)(2), and the
Soil Safe product above the bottom two feet of the cap would be
governed by the more stringent RDCSRS standards.
deposition of the Gloucester County Improvement Authority’s
drafter of the County Park Site RAWP, Mr. Free testified that to
avoid reimbursement issues, NJDEP limited the amount of
While certainly not determinative, the Court also feels
compelled to note the evidence Soil Safe has pointed to that the
NJDEP is well-aware of and unconcerned with the Soil Safe
product’s adherence to the RDCSCC standard. See Soil Safe Rep.
Br. at 22-23.
potential reimbursement by stating that only the first two feet
of the cap would count as remediation.
It was not included to
set different remediation standards for the cap and the rest of
the work in abrogation of Section 1.5(c)(2).
Gibson Dec. Ex. DD
DRN points to no other corroboration for its
reading of the NJDEP letter as a substantive change to the
remediation plan embodied by the County Park Site RAWP,17 and the
sentence by itself does not rise above a scintilla of evidence
that a different remediation standard would apply to the
contouring and topsoil layers.18
The Court is unpersuaded by the NJDEP letter’s language that
“topsoil shall meet unrestricted soil standards.” Gibson Dec.
Ex. W. DRN’s argument that this language implies that RDCSRS
standards govern, DRN Opp. Br. at 11-12, simply does not carry
any more water than its argument that nothing but the 2-foot cap
was a remediation effort.
18 The Court is also unconvinced that Soil Safe “has exceeded the
permissible thickness of its cap” as allowed under the RAWP at
either the County Park Site or the Birch Creek Site. DRN Opp.
Br. at 19. DRN contends that, because the contouring material
is identical to the capping material, Soil Safe has exceeded the
two-foot cap requirement of the RAWP. This is simply a
misreading, or perhaps a tortured reading, of the County Park
Site RAWP, which states that, like the cap materials, the
“contouring layer materials will also be recycled product
manufactured at Soil Safe’s Logan facility.” County Park Site
RAWP at 36. The “differences” between the contouring layer and
the cap layer that DRN identifies in the RAWP are not
differences in the intended material to be put down but rather
the purpose of the cap layer versus the contouring layer.
Nothing in that description implies that the materials will be
different, just that their purpose in that layer might be
different. DRN Opp. Br. at 15 n.3. Likewise, the addition of a
gradient at the Birch Creek Site in accordance with the
specifications of the remediation design, which required
placement of material above the five-foot cap contained in the
Finally, the Court is also unconvinced by DRN’s argument
that Soil Safe placed soil contaminated in excess of “even the
pre-2008 RDCSCC at the Logan facility.”
DRN Opp. Br. at 14.
DRN relies for this argument on the 2008 RAWP Appendix C data
regarding the soil received by Soil Safe discussed supra.
contends that, because Soil Safe – as DRN sees it – does little
to meaningfully alter the level of BaP contamination in the end
product and does not chemically sequester the contaminants in
the final product, the soil deposited at the Logan facility must
exceed the RDCSCC.
While this argument may make a genuine issue
of whether the soil constitutes solid waste, supra, it does not
rise above the speculative scintilla of evidence that the soil
deposited exceeded the BaP requirements of the more lenient
DRN provides a string of novel, but ultimately unsupported,
theories suggesting that Soil Safe violated the NJERA.
parties’ arguments make clear the issue is the interpretation of
Section 1.5(c)(2), not any material fact.
See, e.g., DRN Opp.
Br. at 8 (“The issue presented on Count III, then, simply is
whether the material Soil Safe placed at GCP exceeds the
RAWP and was authorized and approved by the NJDEP, does not
amount to a cause of action under the NJERA. Moreover, DRN does
not appear to have presented a response to Soil Safe’s motion
for summary judgment on this issue, Soil Safe Br. at 35, in its
opposition briefing, which discusses very little of the Birch
Creek Site and nothing of DRN’s RAWP or gradient needs.
applicable regulatory limit for BaP, and whether Soil Safe has
exceeded the cap thickness permitted for GCP.”)
determined that Section 1.5(c)(2) requires the application of
the RDCSCC standard to the material used by Soil Safe, and that
there is not a genuine dispute that these standards were
exceeded, the Court determines that summary judgment in favor of
Soil Safe is proper on DRN’s NJERA claim.
Having considered the contentions of the parties, and for
the reasons set forth above, the Court DENIES Soil Safe’s motion
for summary judgment with regard to DRN’s RCRA claim.
additionally GRANTS Soil Safe’s motion for summary judgment on
DRN’s NJERA claim and DENIES DRN’s cross-motion for summary
judgment on the same claim.
The Court also takes this opportunity to provide a brief
roadmap given the current disposition of the case.
disputes of fact will be tried, with the first – whether the
Soil Safe product is a solid waste – taking approximately one
If necessary, the second – whether Soil Safe’s product may
present an imminent and substantial endangerment to the
environment (and the nexus requirement) – taking approximately
With regard to the now-pending motions to preclude
testimony by Mr. Uhl and Drs. Cristini, Tucker, and Fox, [Dkt.
Nos. 113, 114, 115], the Court will ADMINISTRATIVELY TERMINATE
these motions pending a status conference to address how the
Court may best resolve these motions in the context of a twophase trial.
DATED: November 30, 2016
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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