DELAWARE RIVERKEEPER NETWORK et al v. SOIL SAFE, INC.
OPINION. Signed by Judge Renee Marie Bumb on 6/30/2017. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DELAWARE RIVERKEEPER NETWORK,
Civil No. 14-1349 (RMB/KMW)
SOIL SAFE, INC.,
Findings of Fact .......................................... 4
The Parties ............................................. 4
Soil Safe, Inc. ........................................ 4
Plaintiffs ........................................... 5
The Sites and Surrounding Area ......................... 11
The Logan Equine Park Site ............................ 11
The Birch Creek Site ................................ 13
The Gloucester County Park Site ..................... 13
The Soil Recycling Process ............................. 16
Incoming Soil ......................................... 17
Recycling Process ................................... 21
Oversight and Testing ............................... 26
The Application of Soil Safe Product ................... 28
Recycling and Soil Safe’s Product ...................... 31
Ecological Impact ...................................... 33
Testing of the Area at Issue .......................... 33
Stockpile Sampling .................................. 37
Guidance as to Ecological Evaluation ................ 38
Ecological Evaluation ............................... 40
II. Conclusions of Law ....................................... 45
Standing ............................................... 45
General Legal Standard ................................ 45
Plaintiffs’ Standing to Pursue RCRA Claim ........... 48
RCRA ................................................... 57
General Legal Standard ................................ 58
Solid Waste ......................................... 59
Imminent and Substantial Harm ....................... 74
III. Conclusion ............................................... 80
Gerald J. Williams, Esq.
Nicholas B. Patton, Esq.
Christopher Markos, Esq.
Williams, Cuker & Berezofsky, Esqs.
1515 Market St.
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
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.
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.
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.
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].
currently has operations in New Jersey, Maryland, and
Id. ¶ 69.
Soil Safe owns a soil recycling center
in Logan Township, Gloucester County, New Jersey (the “Logan
Id. ¶¶ 1, 3 [ECF No. 150].
Recycling Center is a “recycling center for Class B recyclable
materials” as that term is defined in New Jersey’s Recycling
Id. ¶ 3; Def.’s Ex. 1 (Class B Permit).
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”)
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,
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.
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
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
Id. at 28:17-21.
In her capacity as the Delaware
Riverkeeper, Ms. van Rossum is aware of members of the Delaware
Riverkeeper Network using Birch Creek and Raccoon Creek.
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
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
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.
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.
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
Id. at 50:1-2.
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
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]
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.
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.
testified that she plans to continue her work in the area,
including in the tributaries of the Delaware River to “undertake
both recreational activities as well as environmental protection
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
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.
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
Soil Safe Proposed Findings of Fact and
Pls.’ Resps. (“Soil Safe PFOF & PR”) ¶ 30 [ECF No. 155]; Trial
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
needed to be addressed through legal action.
Trial Tr. 40:17-
12. Louis Perti, a resident of Aston, Pennsylvania, has been a
member of the Delaware Riverkeeper Network since 2013.
Safe PFOF & PR ¶ 18; Trial Tr. 80:20-23.
He is an avid
outdoorsman, enjoying recreational activities such as fishing,
crabbing, sightseeing, and boating in the areas of Raccoon Creek
and Birch Creek.
Trial Tr. 79:23-80:3.
this type of activity for 42 years.
He has been engaging in
Id. at 80:4-7.
13. Mr. Perti further credibly testified that he uses portions
of Birch Creek and Raccoon Creek; however, he also testified one
cannot access Birch Creek past “a certain point” because of
access issues by boat.
Id. at 81:2-5.
14. Mr. Perti is also the director of the Delaware River
Striper Tournament, which is a fishing tournament that has been
held for eight years.
Id. at 81:8-10.
Raccoon Creek is one of
the “premier fishing areas” in the tournament that he runs.
He plans to continue running that tournament in
Id. at 92:17.
15. Mr. Perti has visited the Birch Creek area to see if
sediment from Soil Safe’s operations is present there.
16. One fishing route that Mr. Perti has followed is to
“[s]tart fishing the Raccoon Creek.
I’ll work my way to Birch,
to Oldman’s, all the way down to Carneys Point, down to the
Delaware Memorial Bridge.”
Id. at 96:25-97:2.
this fishing route, Mr. Perti observed “in the area of Birch
Creek” that the “soil was running off into Birch Creek[.]”
17. Mr. Perti greatly enjoys fishing the Delaware River from
the Salem Nuclear Plant to Trenton, an area of at least 60 or 70
Id. at 112:12-14.
He particularly enjoys
fishing the tributaries that flow into the Delaware River.
He greatly enjoys exploring those tributaries and
finding out “what’s going on in there[.]”
18. Although Mr. Perti testified that it was difficult to say
how Soil Safe’s activities affected his enjoyment of the river
because he is still actively fishing in the area, id. at 93:1521, the Court finds that Mr. Perti answered this question with
the understanding that he was being asked if he no longer uses
the Raccoon Creek for fishing, which he does.
Id. at 93:22-23.
Nevertheless, the Court also finds Mr. Perti to be genuinely
concerned about the aquatic life in the area as a result of
problematic silt he perceived to be coming from Soil Safe.
is specifically concerned that silt kills much of the habitat
for bait fish eaten by stripers, which he fishes and which are
central to his fishing tournament.
Id. at 98:2-8.
19. Mr. Perti’s fishing tournament has grown over the years;
however, this increase has much to do with the weather.
20. Mr. Perti also testified that he is worried that leaching
of materials from Soil Safe’s operation have a carcinogenic
effect, although he has not communicated that to anyone he knows
fishing in Raccoon Creek.
Id. at 25:14-24.
B. The Sites and Surrounding Area
21. From the early 1950s through the 1980s, the United States
Army Corp of Engineers used the property at issue in this case
for placement of dredged materials from the Delaware River.
JSOF ¶¶ 66, 113.
22. The Class B Recycling Permit authorizes use of Soil Safe
Product at three specified “End Market Sites”: (i) the Logan
Equine Park Site, which is owned by the Gloucester County
Improvement Authority (“GCIA”); (ii) the Birch Creek Site, which
is owned by Soil Safe; and (iii) the Gloucester County Park
Site, also owned by the GCIA.
Id. ¶ 8.
i. The Logan Equine Park Site
23. Pre-development testing of the Logan Equine Park Site
determined that the historic fill material present at the site
contained elevated levels of several contaminants above the most
stringent criteria then in effect from the New Jersey Department
of Environmental Protection (“NJDEP”), the Residential Direct
Contact Soil Cleanup Criteria (“RDCSCC”).
Id. ¶ 114.
24. However, the near surface soils at the Logan Equine Park
Site did not contain contaminants of concern under the RDCSCC,
which made a remedial cap unnecessary.
Id. ¶ 115.
fill material was brought in for geotechnical stabilization to
permit the planned construction of buildings and roads on the
soft, unstable dredge covering the site.
Id. ¶¶ 115-16.
25. The GCIA approached Soil Safe with the intent to secure
Soil Safe product as geotechnical fill at the Logan Equine Park.
Id. ¶ 117.
26. The Logan Equine Park is a 71-acre part of the GCIA’s DREAM
Park1 on Logan Township, Gloucester County, New Jersey.
27. Shipment of this product began in 2006 and between 2006 and
2008, over 300,000 tons of Soil Safe product was used at the
Logan Equine Park.
Id. ¶ 119.
This product was mostly used
under buildings, roads, paddocks, or parking areas.
Id. ¶ 122.
28. Remediation of the Logan Equine Park was completed and
approved in 2008.
Id. ¶ 120.
The DREAM Park is more fully known as the Delaware River
Equestrian Agricultural Marina Park. JSOF ¶ 112.
The Birch Creek Site
29. The Birch Creek Site is a 165-acre property that is home to
the Logan Recycling Center.
Id. ¶ 2.
30. Historically, the Birch Creek Site was filled with dredge
spoils from the Delaware River.
Id. ¶¶ 66, 113.
31. Arsenic was identified as a contaminant existing at
elevated levels in the dredge material at the Birch Creek sites
before Soil Safe began its operations.
Id. ¶ 57.
32. Soil Safe began placing product at the Birch Creek Site in
JSOF ¶ 109.
Use of the Soil Safe Product at both the
Birch Creek Site and the Gloucester County Park Site (see infra)
originally occurred under the direct supervision of a NJDEP case
manager, but since 2012 has occurred under the supervision of
LSRP Albert Free.
Soil Safe PFOF & PR ¶ 175.
by Soil Safe for his work as LSRP.
Mr. Free is paid
Plaintiffs’ Prop. Findings
of Fact and Def.’s Resps. (“Pls.’ PFOF & DR”) ¶¶ 37-38 [ECF No.
33. The Birch Creek Site remediation project is approximately
Id. ¶ 111.
Soil Safe intends to sell the Birch
Soil Safe PFOF & PR ¶ 188.
iii. The Gloucester County Park Site
34. The Gloucester County Park Site is also a part of the DREAM
JSOF ¶ 112.
35. “Approval of the RAWP [for the Gloucester County Park Site]
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 different units of the NJDEP
(Site Remediation Program, Land Use, and the Historic
Preservation Office), the Gloucester Soil Conservation District,
the Gloucester County Health Department, the GCIA, the
Gloucester County Board of Chosen Freeholders, and Logan
Id. ¶ 11.
36. The review of the RAWP for the Gloucester County Park Site
involved a range of technical studies, including a full
ecological inventory, a comprehensive evaluation of the product
to be used at the site, and a Baseline Ecological Evaluation
that included a baseline ecological assessment, ecological
modeling, and a comprehensive evaluation of potential impacts to
aquatic and terrestrial ecosystems.
JSOF ¶ 123.
37. The RAWP concluded that the entire Gloucester County Park
Site is covered with historic fill material.
JSOF ¶ 125; Pls.
Ex. 3A at 13, 28 (Gloucester County Park RAWP).
sampling at the County Park site determined that this historic
fill material contained levels of several contaminants above
Id. ¶ 126.
38. Arsenic was identified as a contaminant existing at
elevated levels in the dredge material at the Gloucester County
Park Site before Soil Safe began its operations.
Id. ¶ 57.
39. The RAWP adopted for the Gloucester County Park Site
employs a multi-layer cap design.
It also provides for minimum
mandatory drainage requirements, as well as pleasing surface
Id. ¶¶ 127-28.
vistas “appropriate for a park.”
40. The Gloucester County Park Site RAWP also includes a
Sampling and Analysis Plan reviewed by the NJDEP.
Id. ¶ 19.
41. The RAWP for the Gloucester County Park Site was approved
by the NJDEP in November 2008.
Id. ¶ 10.
42. The Gloucester County Park Site RAWP requires that the Soil
Safe product placed at the County Park site meet the RDCSCC
Id. ¶ 133.
43. The product placed at the Gloucester County Park Site is
placed under the supervision of an LSRP.
Id. ¶ 9.
That LSRP is
Soil Safe PFOF & PR ¶ 223.
44. Beginning in March 2009, Soil Safe shipped product to the
Gloucester County Park Site and began constructing the remedial
JSOF ¶ 12.
The soil is sampled and analyzed at least
twice before shipment to the Gloucester County Park Site.
45. Soil Safe product has been placed at the park in compliance
with the grading plan and capping remedy requirements set forth
in the Gloucester County Park RAWP.
JSOF ¶ 129.
C. The Soil Recycling Process
46. The Logan Recycling Center is located on a portion of the
Birch Creek Site.
Id. ¶ 2.
47. Soil Safe’s recycling operation is governed by permits
issued by the NJDEP and local authorities, including a Class B
Recycling Permit issued by the NJDEP.
Id. ¶ 4.
The Class B
recycling permit covers “Concrete, Asphalt, Brick, Block, [and]
Petroleum Contaminated Soil.”
Id. ¶ 72.
This permit was issued
in December 2003, subsequently modified, and renewed in April
2009 and January 2014.
Id. ¶ 5.
48. The Class B Recycling Permit also contains 80 enumerated
conditions that govern the operation of the Logan Recycling
Soil Safe PFOF & PR ¶ 71.
Condition 47 of the Class B
Permit places three limitations on the soil that Soil Safe is
authorized to recycle at the Logan Recycling Facility: “(1) Soil
Safe is only allowed to accept non-hazardous petroleumcontaminated soil; (2) the soil must meet NJDEP’s RDCSCC
residential standard for all chemical constituents except for
six constituents for which other maximum levels are provided;
and (3) the trailing 12-month average for all soil used for
remedial capping at the Birch Creek property End Market Site
must meet the RDCSCC for all constituents, except for total
polycyclic aromatic hydrocarbons (“total PAH”), which must meet
the NJDEP’s impact to groundwater standard cleanup criteria for
Id. ¶ 78.
49. The permits issued by NJDEP “are part of programs developed
through the Solid Waste Plan required of New Jersey by Subtitle
D of RCRA (which regulates non-hazardous materials like those
accepted at the Logan Recycling Center) to reduce the volume of
materials discarded as waste through beneficial use and
JSOF ¶¶ 30, 73, 107.
50. Soil Safe’s other operation in New Jersey “involves the
remedial capping of six cyanide sludge impoundments covering 85
acres at a former American Cyanamid company site, through Soil
Safe’s construction of a low permeability, high strength durable
cap using its recycled soil-cement [p]roduct.”
PR ¶ 62.
Soil Safe PFOF &
Soil Safe spent nearly five years acquiring the
permits required for this project.
Soil Safe PFOF & PR ¶ 64.
i. Incoming Soil
51. Approximately half of Soil Safe’s customers who supply soil
to be recycled by Soil Safe are government entities.
Id. ¶ 60.
52. Soil Safe’s customers are required to complete a “Material
Characterization Report” (“MCR”) form, which requires the
customers to describe the source of and various characteristics
of the soil that they are sending to be recycled.
details what sampling data the customer is obligated to provide
and requires that the customer certify to the accuracy of the
provided information, including that the soil is non-hazardous.
Id. ¶ 90.
53. Completion of the MCR is a requirement of Soil Safe’s Class
B recycling permit.
Id. ¶ 91.
54. Soil Safe requires customers to perform sampling of the
soil at its source before it can be accepted by Soil Safe.
Specifically, in accordance with the Class B Recycling
Permit issued to Soil Safe, prior to being accepted at the Logan
Recycling Center the soil is tested for total petroleum
hydrocarbons (“TPH”), as well as a variety of other constituents
(volatile organic compounds (“VOCs”), metals, polychlorinated
byphenyls, semi-volatile organic compounds, polycyclic aromatic
The product is also subject to Toxicity
Characteristic Leaching Procedure (“TCLP”) testing.
Id. ¶ 15.
Soil that does not meet the limits set forth in the Class B
Recycling Permit is not accepted at the Logan Recycling Center.
Id. ¶ 16.
55. The customer must also provide any additional testing and
documentation regarding the site.
Trial Tr. 242:16-21.
56. Soil Safe is not required by the NJDEP Class B Recycling
Permit to conduct TCLP testing or any other leach test after
receipt of the soil.
JSOF ¶ 103.
57. The Class B Recycling Permit also does not contain any
requirements that Soil Safe remove contaminants from the
incoming soil as a part of the recycling process.
JSOF ¶ 102.
58. Soil Safe requires its customers who are supplying soil to
be recycled to provide copies of the results of the testing Soil
Safe requires, in addition to any other sampling results and
environmental reports that they have for the material and source
JSOF ¶ 77.
Soil Safe reviews this data in a specially
designed, proprietary computer software called SoilSmart.
SoilSmart required over a year and $3 million to create.
Soil Safe PFOF & PR ¶ 100.
59. The customer sending soil to be recycled must also certify
and the provided customer analytical data must prove that the
soil being sent to the Logan Recycling Center for recycling is
non-hazardous within the meaning of RCRA.
JSOF ¶ 79.
60. Once Soil Safe has reviewed analytical data and supporting
paperwork for soil to be recycled, an approval letter is
generated for the customer.
Id. ¶ 81.
The customer must pre-
schedule the arrival of trucks containing the soil each day, and
only approved jobs are allowed to drop off soil.
A truck driver
must show certain required paperwork identifying the source of
the material to deposit it with Soil Safe.
Id. ¶ 82.
is then weighed and the soil in the truck is visually inspected
by Soil Safe personnel.
Id. ¶ 83.
Def.’s Ex. 487; Def.’s Ex. 1 at ¶ 47.
66. Although done for many reasons, including the size of the
project or the presence of problematic contaminant levels,
approximately 50% of potential Soil Safe projects are screened
out by Soil Safe sales personnel.
Trial Tr. 340:13-341:1.
67. Soil Safe’s Compliance Department performs internet
searches to ensure that Soil Safe has pertinent information
about the source of soil it is to receive and approximately 25%
of the proposed projects that make it through the initial
screening by the sales staff end up rejected by the Compliance
Soil Safe PFOF & PR ¶¶ 95-96.
68. Moreover, particularly complex projects, such as projects
“with large amounts of data, or where there are concerns despite
 the sampling data show[ing] that the soil meets Soil Safe’s
permit requirements – are subject to additional review by a
five-person committee, requiring a unanimous vote by all five
committee members before a project can be accepted.”
Id. ¶ 97.
69. Soil Safe processes petroleum-impacted soil using a number
of different process steps.
JSOF ¶ 91.
70. When necessary, lime is added to the soil to reduce excess
Id. ¶ 99.
71. The product resulting from Soil Safe’s recycling process
has a uniform appearance and meets the AASHTO A-2-4
specification for fill material.
Id. ¶ 29.
72. Both parties agree that the steps of Soil Safe’s recycling
process are depicted in Def.’s Ex. 187, which lists the
following steps in order:
(1) soil is profiled at the
Generator’s site prior to shipment; (2) soil history is reviewed
and Soil Safe Compliance Department approves or rejects project;
(3) approved projects are scheduled; (4) the soil arrives at the
facility and the trucks are weighed, compliance is confirmed,
and the load is accepted or rejected; (5) soil deposited in preprocess area under Soil Safe direction; (6) soil is poreconditioned and moved to immediate plant loading area; (7) the
soil is run through a screening plant where oversize
constituents are removed; the additives are metered into soil
and blended in a pug mill where thorough homogenization occurs;
(8) processed soils are stockpiled and tested; and (9) approved
product is placed in 8” to 12” lifts in accordance with site
Def.’s Ex 187.
The Court also finds that
Def.’s Ex. 403 accurately depicts these steps actually occurring
at Soil Safe’s Logan Recycling Center.
The Court additionally
finds there to be a significant visual difference between the
soil as it arrives to Soil Safe and what the soil looks like as
it is placed and compacted.
Def.’s Ex. 403.
73. Elaborating on the above paragraph, the Court notes that
the first step for Soil Safe’s recycling process after the soil
has arrived on site is “pre-blending” or “pre-conditioning” of
This involves the use of large machinery like
bulldozers and front-end loaders to physically mix the product.
This takes soils of various types (such as sand or clay),
different grain sizes, and different moisture contents and
creates a more consistent feedstock.
Soil Safe PFOF & PR ¶ 116.
This blending of the soil creates a stronger product because
smaller particles mix in well with large particles of soil and
fill the gaps.
Trial Tr. 638:24-639:2.
Also during this
process deleterious material like metal reinforcing bars and
other scrap material are removed by hand.
118; Def.’s Ex. 403.
Soil Safe PFOF & PR ¶
Metals removed in this way are sent to be
recycled while other trash materials are sent to a permitted
Soil Safe PFOF & PR ¶ 118 ¶¶ 119-20.
rock, concrete, and brick are removed.
Id. ¶ 121.
74. After pre-blending, the soil is loaded into a hopper, which
leads to a vibrating 4-inch by 4-inch screen which further
removes any oversized material from the mix.
Id. ¶ 122.
material can clearly be seen in photos of the process.
75. After the material has been screened, it passes to a
pugmill, where cementitious additives are added.
Soil Safe PFOF
& PR ¶ 125.
76. The recycling process employed by Soil Safe at the Logan
Recycling Center involves processes such as mixing the soil with
cementitious additives (sometimes called “pozzolanic”
One such additive is Cement Kiln Dust (“CKD”).
JSOF ¶¶ 6, 97.
In this case Soil Safe adds CKD to its soil
using a pugmill, a device that stabilizes and mixes soil.
Tr. 245:17-21 (testimony concerning mixing ability of pugmill);
id. 352:4-12 (testimony concerning stabilizing ability of
As the soil comes out of the pugmill, it is different
in color and texture.
Id. at 353:1-2.
77. CKD does nothing to change the concentration of metals in
the raw contaminated soils.
Id. at 299:16-20.
Indeed, as a
result of the filing of this suit, Soil Safe voluntarily agreed
to “dial down” discussion of stabilization in their marketing
literature because it may yield confusion to the hazardous waste
Id. at 300:20-301:1.
78. CKD is added to achieve a 1% volume of it.
Soil Safe chose this amount by experimentation.
Id. at 213:4-5.
Soil Safe PFOF
& PR ¶ 134.
79. Notably, Soil Safe is not required to use any specific
amount of CKD, or even use it at all, by the Class B Recycling
JSOF ¶ 100.
Other recyclers in New Jersey of Class B
materials include no such additives in their recycling process.
Id. ¶ 101.
80. CKD solidifies the soil and adjusts the pH of the soil
which can have the effect of lowering the solubility of metals
which reduces their mobility and leachability.
clogging the void ratios in the soil.
It does this by
Mr. Mark Smith credibly
testified that this process is like a “strainer basket full of
marbles” and that if the spaces between the marbles “get filled
with material that actually clogs those interstitial space or
void ratios, then water does not go through.
That’s when we
talk about permeability, we clog those pour spaces with the
Trial Tr. 301:15-23.
81. CKD functions in a manner similar to Portland cement when
added to soil because it is a residual material from production
of Portland cement.
Id. at 601:12-17.
That said, if one took
an equal mass of CKD and Portland cement, one would typically
get a greater increase in strength or stiffness per unit mass of
Portland cement than CKD.
Id. at 625:1-12.
82. In the manner Soil Safe deploys CKD, it is not intended to
create chemical sequestration.
Id. at 625:24-626:1.
it may ultimately have some of those effects.
Id. at 626:3-9.
83. At the time of trial, Soil Safe was paying $60 per ton to
purchase CKD for use in the recycling process and has spent over
$3 million for the cement dust used at the Logan Recycling
Soil Safe PFOF & PR ¶ 129.
84. CKD is not added specifically to stabilize chemicals in the
soil, but rather to improve the geotechnical properties of the
soil through physical stabilization.
CKD also plugs pores in the soil.
JSOF ¶¶ 104-05.
Id. ¶ 106.
85. Plaintiffs admit that the soil is different when it leaves
Soil Safe than when it came in with regard to texture, grain
size distribution, color, absence of oversized and deleterious
materials in the product, and moisture content.
Soil Safe PFOF
& PR ¶ 150.
iii. Oversight and Testing
86. The Logan Recycling Center is monitored in its work and it
has been inspected by a number of regulatory agencies, including
NJDEP’s Water Quality, Air, Solid Waste, Land Use, and Site
Remediation Program units, the United States Environmental
Protection Agency, the Gloucester County Health Department, and
JSOF ¶ 74.
The Logan Recycling Center’s
operations have been inspected over 200 times since 2004; the
parties agree this amounts to, on average, an inspection once
every three weeks over twelve years. Id. ¶ 75.
87. NJDEP requires the preparation of quarterly summaries by
Soil Safe, in an NJDEP-selected format, of the generator
sampling data for all incoming material accepted by Soil Safe.
NJDEP requires this data be reviewed and certified by an
independent third-party engineering firm prior to submittal of
each quarterly report.
The summaries must identify each
individual soil source, and for each source they must also
identify the quantity of soil shipped to Soil Safe, the number
of samples taken, the chemical constituents samples for, and the
average and maximum concentrations detected for each
Soil Safe PFOF & PR ¶ 98.
88. At the instruction of NJDEP, in March 2009, Soil Safe began
conducting testing on the soil generated from the recycling
process intended for remediation at the Gloucester County Park.
This sampling requirement was specified in the Class B Recycling
Permit and the Gloucester County Park Site RAWP.
JSOF ¶ 87.
Prior to March 2009, Soil Safe performed sampling on incoming
soil immediately after receipt at the Logan recycling Center to
confirm its compliance with the acceptance criteria in the Class
B Recycling Permit.
Id. ¶ 86.
89. Before being shipped to the Gloucester County Park Site,
Soil Safe samples the product created through its process.
This sampling occurs pursuant to a Sampling and Analysis
Plan that was approved by the NJDEP in 2008 as part of the RAWP
for the County Park.
Id. ¶ 19.
Under this plan, a sample
(called a “grab sample”) is collected for every 200 cubic yards
of engineered fill product produced.
Id. ¶ 20.
Ten of these
samples are then blended, and a sample is taken from the
composite of the samples for analysis by an independent and
certified laboratory, New Jersey Certified Analytical
Id. ¶¶ 21, 25.
This analysis is then submitted
to an independent New Jersey Professional Engineer to be
certified, before being sent to the LSRP for review and final
Id. ¶¶ 27, 138.
The GCIA then reviews and approves
the data, and it is ultimately reported to the NJDEP.
Id. ¶ 28.
90. For the soil sent to the Gloucester County Park Site, prior
to acceptance by Soil Safe more than 970 samples were analyzed
for TPH and the Target Compound List and Target Analyte List.
JSOF ¶ 17.
Another 970 discrete samples have been analyzed for
Id. ¶ 137.
D. The Application of Soil Safe Product
91. As LSRP of the Birch Creek Site and the Gloucester County
Park Site Mr. Free performs oversight of the development of the
design for remediating contaminated sites, oversight of
implementation of the remedy, and determining when the
remediation has been completed in satisfaction of the NJDEP’s
Soil Safe PFOF & PR ¶ 176.
Mr. Free is an
environmental engineer with 37 years of experience.
VOCs are separately analyzed.
JSOF ¶ 21.
Id. ¶ 177.
92. The Birch Creek RAWP refers to a remedial cap thickness of
at least five feet is required to achieve the degree of
compaction and reduced permeability desired by the NJDEP and
Pl.’s Ex. 14 at 3 (Birch Creek Site RAWP indicating
“Capping activities shall consist of five (5) feet of
manufactured material placed overtop of the existing dredge
An amount of two-feet caused “pumping,” an
Trial Tr. 396:22-397:10.
93. The cap as deployed at the Gloucester County Park Site has
several layers and each of these layers has a purpose.
“reduced permeability layer” is designed to prevent human
contact with the underlying dredge spill, impede the flow of
water into the underlying soil (which is contaminated dredge
spoils), and prevent burrowing animals from exposure to the
underlying dredge materials.
Soil Safe PFOF & PR ¶ 227; Trial
Tr. 588:11-15, 589:2-5, 628:15-19; Pl.’s Ex. 3A at 9, 33-34.
94. The “contouring” layer is constructed over the top of the
reduced permeability layer.
Its purpose is to help achieve
proper compaction of the reduced permeability layer, protect the
reduced permeability layer from damages from frost or wet/dry
cycling, and to provide elevation changes to allow for proper
drainage and stormwater management.
Soil Safe PFOF & PR ¶ 228;
Pls.’ Ex. 3A at 9, 10 (Fig. 2.3), 33-34; 589:6-22; 590:5-11;
Both the contouring layer and the reduced
permeability layer are manufactured from Soil Safe’s product.
Soil Safe PFOF & PR ¶ 229.
95. Finally, on top of both the reduced permeability layer and
the contouring layer is a layer of topsoil which provides a
rooting area for grasses and vegetation to grow, which helps
Id. ¶ 230; Pls. Ex. 3A at 9, 36; 589:23-
96. The Court finds that the NJDEP November 19, 2008 letter
concerning the thickness of the remedial cap does not establish
that anything in excess of a two-foot cap amount is not required
Indeed, the RAWP indicates that a minimum of
five feet would be required.
Pl.’s Ex. 3A at 34.
97. The Gloucester County Park Site capping project is
approximately 90% complete.
JSOF ¶ 132.
In many areas the cap
has been completely constructed, including the placing of a 12inch topsoil layer and seeding with grass seed, which is in
compliance with the Gloucester County Park Site RAWP.
98. To date, none of the samples analyzed for product to be
placed at the County Park site have exceeded the applicable
Id. ¶ 139.
99. Evidence was also adduced concerning erosion and sediment
control mechanisms in place to prevent stormwater from carrying
loose soil from the Logan Recycling Center and Birch Creek
property into the nearby Birch Creek and adjacent wetlands.
Soil Safe PFOF & PR ¶ 322.
This evidence showed, among other
features, that the entire Logan Recycling Center is lined with
an impervious material, surrounded by berms, and surrounded by a
Id. ¶¶ 323, 326-31, 334.
The Court does not find
that Mr. Perti’s testimony, based simply on his unspecified
construction expertise, credible to the extent he testified to
missing silt barriers.
100. Several of Plaintiffs’ photographs purporting to show
erosion are from areas inside the confines of the sediment and
erosion control mechanisms.
Id. ¶ 335.
101. Plaintiffs admit that: “Signs of erosion inside the
sediment and erosion control areas are not a sign of a problem.
Some erosion is expected, which is why sediment and erosion
control plans were created and implemented.”
Id. ¶ 337.
E. Recycling and Soil Safe’s Product
102. Dr. Craig Benson, an expert witness for Soil Safe, was
admitted as an expert to testify in the fields of recycling,
beneficial reuse, and solid waste issues.
Id. ¶ 240.
Benson is an environmental engineer, geological engineer, and
geotechnical engineer, with a PhD and Master Degree in Civil
Among many other professional accolades, he currently
serves as Dean of the School of Engineering and Applied Science
at the University of Virginia.
Soil Safe PFOF & PR ¶ 241.
103. Dr. Benson credibly testified that recycling is the
repurposing of materials after their first use to be
beneficially used in another form.
Id. ¶ 242.
In Dr. Benson’s
persuasive analysis, Soil Safe’s activity is an example of
recycling, not the discarding of solid waste.
Id. ¶ 243.
Benson also credibly testified that there are benefits to
recycling petroleum-contaminated soil.
Id. ¶ 246.
observed Soil Safe’s process and convincingly testified that he
saw no aspects that were consistent with an operation to discard
any unwanted waste.
Id. ¶ 249.
104. The economics of Soil Safe’s recycling process vary.
Safe’s customers pay Soil Safe a recycling fee when they provide
it with soil to be recycled.
Id. ¶ 258.
As testified to by Mr.
Smith, the CEO of Soil Safe, occasionally, Soil Safe also sells
its product to the end user.
Trial Tr. 399:21-400:3.
not the primary driver of Soil Safe’s business, the sale of its
product (as opposed to the collection of recycling fees from
suppliers) has provided Soil Safe with millions of dollars of
105. Other recycling industries use this same generator-fee
structure, such as the production of carbon fly ash.
PFOF & PR ¶ 273.
It is not uncommon for the recycler not to be
paid by the end-user of a recycled product.
Trial Tr. 576:6-13.
106. The parties both agree, and the Court finds, that “[m]ost
recycled materials do not have contaminants removed.
an appropriate next use of the material is chosen such that the
presence of any contaminants is not an issue.
concrete, and aluminum are examples of materials that are
recycled without contaminants being removed.”
Soil Safe PFOF &
PR ¶ 57.
F. Ecological Impact
i. Testing of the Area at Issue
107. Plaintiffs hired an environmental consultant, Uhl &
Associates, Inc., to perform sampling on Plaintiffs’ behalf.
JSOF ¶¶ 53, 164.
Uhl & Associates is headed by Mr. Vincent Uhl,
who holds a degree in mechanical engineering and a master’s
degree in agricultural engineering, as well as a master’s in
hydrogeology from the University of Arizona.
Trial Tr. 421:3-
108. Uhl & Associates collected one sediment sample from Birch
Creek and two sediment samples from “drainage pathways” between
the County Park and Raccoon Creek.
JSOF ¶ 53, 165, 167.
109. The Birch Creek sample is depicted in an aerial photo map
in the Uhl offsite Sampling Report as more than 1000 feet from
the portion of the Birch Creek property where Soil Safe carries
out its operations.
Id. ¶ 166.
There is a densely vegetated
area of trees and brush, a large berm, a stormwater management
swale, and a tide gate in between.
Id. ¶ 166.
110. No Raccoon Creek sediment samples were taken upstream from
the Gloucester County Park to compare against the two Raccoon
Id. ¶ 170.
111. No background samples were taken from locations nearby the
Raccoon Creek samples to compare against the Raccoon Creek
Id. ¶ 170.
112. No Uhl & Associates employee ever observed rainwater
runoff flowing into the drainage pathways.
Id. ¶ 172.
never visited the County Park during a rainfall.
Id. ¶ 173.
113. Uhl & Associates did not collect any surface water
samples, groundwater samples, or plant or animal tissue samples
from Raccoon Creek.
JSOF ¶ 171.
They also did not collect any
stormwater runoff from the County Park for laboratory analysis.
Id. ¶ 174.
114. Mr. Uhl did not test Soil Safe’s product for its
susceptibility to erosion or examine any data regarding the
cohesion and surface strengths of Soil Safe’s product after it
JSOF ¶¶ 175-76.
115. The Birch Creek sampling site was more than 2000 feet from
the portion of the property where Soil Safe conducts its
Soil Safe PFOF & PR ¶ 299.
116. The results of the sampling are summarized in a report by
Uhl & Associates.
JSOF ¶ 54; Pl. Ex. 8 at Table 3.
117. Sample RC-SED-1 contained three chemical constituents at
levels above the Residential Direct Contact Soil Remediation
Standards (“RDCSRS”), two PAHs (dibenz(a,h)anthracene and
indeno(1,2,3-cd)pyrene) and one metal, arsenic.
credibly testified that these constituents do not match the
fingerprint of Soil Safe product, which does not have
“significant concentrations of dibenz and indeno.”
PFOF & PR ¶¶ 404-06.
Plaintiffs admit that
dibenz(a,h)anthracene was detected in less than five percent of
Soil Safe product sampling and that the 95% UCL for that
chemical was at the laboratory detection limit.
Id. ¶¶ 405-06.
118. Uhl & Associates did not identify background levels of
arsenic or any other contaminant in Birch Creek or Raccoon
JSOF ¶ 58.
119. Mr. Uhl acknowledged that just having one sample from
Birch Creek left him unable to say whether the sediment that Uhl
& Associates sampled was more or less contaminated than other
parts of the creek.
Soil Safe PFOF & PR ¶ 353.
120. Mr. Uhl did not conduct any investigation to rule out
other potential point source, non-point source, agricultural, or
industrial sources of pollution to Birch Creek.
JSOF ¶ 61.
121. Mr. Uhl never observed rainwater runoff flowing into the
drainage pathways, nor did he test any runoff.
Id. ¶ 62.
122. Mr. Uhl undertook no study or investigation to rule out
other potential sources impacting the locations where the two
Raccoon Creek sediment samples were collected.
Id. ¶ 64.
123. The Uhl & associates off-site sampling report described
the collection of three off-site sediment samples by Uhl &
Associates in August 2015 and summarized the results of that
Id. ¶ 160.
124. Mr. Uhl was not present at and did not participate in the
Id. ¶ 162.
125. Mr. Uhl’s sediment samples do not match the physical
characteristics of Soil Safe’s product.
Trial Tr. 842:14-19.
Indeed, as Mr. Free credibly testified, the physical description
of Uhl & Associates off-site sediment sample taken from Raccoon
Creek, “gray-dark gray in color” and other features, matched the
dredge material pre-existing on the site, rather than the Soil
Id. at 842:8-19.
126. Mr. Free also credibly testified that the sieving analysis
of the sediment samples taken by Mr. Uhl is inconsistent with
Soil Safe product.
Id. at 843:1-14; Soil Safe PFOF & PR ¶ 394;
Trial Tr. 843:17-18.
127. In light of the physical differences between the sediment
samples taken by Uhl & Associates and Soil Safe product, the
Court is unable to conclude that Mr. Uhl’s sampling does
anything to demonstrate Soil Safe product was actually located
in the samples.
128. Mr. Uhl testified that he was not expressing an opinion
that the sediment that Uhl & Associates sampled from Birch Creek
was Soil Safe product.
Soil Safe PFOF & PR ¶ 413.
129. Indeed, the chemical substances, including metals, PAHs,
PCBs, and dioxins, detected in the Uhl & Associates Birch and
Raccoon Creed sediment samples are “ubiquitous” and common in
soil and sediments in New Jersey.
Trial Tr. 721:11-722:14,
130. Metals, PAHs, and PCBs were detected in the dredge spoils
deposited by the U.S. Army Corps of Engineers in the area of the
Birch Creek Property and the future Gloucester County Park prior
to the start of Soil Safe’s operations.
Pls.’ Ex. 3A at 8, 12-
31; Def.’s Ex. 14 at 2; Trial Tr. 394:24-395:14.
131. Mr. Uhl also conducted on-site sampling of Soil Safe
Soil Safe PFOF & PR ¶ 375.
Specifically, he sampled
two stockpiles by digging six test pits into each stock pile.
Pls. PFOF ¶ 129.
Testing of one of the stockpiles indicated the
presence of indeno(1,2,3-cd)pyrene, a semi-volatile compound
found at each depth tested.
Pls. PFOF & DR ¶ 133; Trial Tr.
Likewise, other PAHs were found in the stockpile
Pls. PFOF & DR ¶¶ 134-35.
However, the Court also
heard credible testimony that PAHs, which are the product of
combustion, are present virtually everywhere.
Trial Tr. 721:17-
132. The results of the Uhl stockpile sampling showed no
chemical constituents at levels over the RDCSCC, and thus showed
that the sampled product met the NJDEP requirements for use as
capping material at the Gloucester County Park.
Soil Safe PFOF
& PR ¶ 377.
iii. Guidance as to Ecological Evaluation
133. An Ecological Risk Assessment “is a quantitative
assessment of the actual or potential impacts of contaminants
from a contaminated site on plants and animals.”
JSOF ¶ 37.
The parties agree it is performed for at least two reasons.
First, to determine whether actual or potential ecological risks
are present at the site.
Second, it is performed to identify
those constituents that pose the adverse ecological risks.
134. The NJDEP has issued a document called “Ecological
Evaluation and Technical Guidance” (the “NJDEP Guidance”).
¶¶ 34, 141.
135. The purpose of the NJDEP Guidance is “to provide efficient
and streamlined tiered guidance for the evaluation of ecological
risk in aquatic and terrestrial habitats associated with
Id. ¶ 141.
The NJDEP Guidance is based
upon, and the parties agree it is consistent with, the United
States Environmental Protection Agency (the “USEPA”) ecological
risk assessment and technical guidance, which is called
“Ecological Risk Assessment Guidance for Superfund, Process for
Designing and Conducting Ecological Risk Assessments” (“USEPA
Id. ¶¶ 35, 142.
136. The NJDEP Guidance stresses that in evaluating ecological
risk “it is important to establish background contaminant levels
in sediment, surface water, and soil on or near the site, but
not influenced by the site.”
Id. ¶ 146.
In accordance with
this. it is recommended by the NJDEP Guidance that three to five
samples be collected at minimum from areas believed to be
impacted by suspected contamination from the site in question to
help establish background contaminant levels.
Id. ¶ 147.
137. The parties agree that Ecological Evaluations are for
screening purposes only.
Id. ¶ 36.
138. The NJDEP Guidance described Ecological Screening Criteria
(“ESC”) as “conservative screening values,” and indicates that
“[i]f site contaminant levels are less than or equal to the ESC
for all samples, then no further ecological evaluation may be
appropriate; however, if any of the site contaminants are above
the ESC, then further evaluation will be required.”
Id. ¶ 155.
139. The NJDEP Guidance indicates a need for investigators to
collect and evaluate multiple sediment and surface water
samples, including both upstream and downstream samples when
dealing with tidally influenced waters like Birch Creek and
JSOF ¶ 150.
140. Plaintiffs rely upon the expert testimony of Dr. Robert
Tucker to support their contention that Soil Safe’s product
creates an “imminent and substantial endangerment” to the
Id. ¶¶ 31-32, 140.
The parties agree that Dr.
Tucker and his partner Dr. Angela Cristini provided a four page
report, “with no citation to any scientific studies or technical
Id. ¶ 32.
141. Among other qualifications, Dr. Tucker received a PhD from
Duke University in Zoology, specializing in physical ecology,
which studies environmental effects on animals.
Pls. Ex. 15;
Trial Tr. 648:21-24.
142. Dr. Tucker testified that his understanding of an imminent
and substantial endangerment occurred when he looked at the
sampling results and they contained “a variety of toxics.”
Trial Tr. 697:3-4.
Turning to specifically beryllium as a
representative compound, Dr. Tucker testified that any amount
other than zero creates an imminent and substantial
Id. at 702:12-14.
Pressed further on this, Dr.
Tucker stated that he did not know whether berylliums exceedance
of the Impact to Groundwater Screening criteria made it harmful
to aquatic organisms.
Id. at 703:6-8.
143. Drs. Cristini and Tucker did not conduct an ecological
evaluation pursuant to NJDEP guidelines, nor did they reference
toxicity reference values (“TRVs”) in arriving at their opinion.
JSOF ¶¶ 34-40.
TRVs “are literature-based levels defined as a
dose above which ecologically relevant effects might occur in
wildlife species following chronic dietary exposure and below
which it is reasonable expected that such effects will not
TRVs provide a basis for estimating whether the exposure
to [contaminants] at a site is likely to result in adverse
ecological effects (e.g., survival, growth, and reproduction of
Id. ¶ 39.
144. Drs. Cristini and Tucker additionally did not rely upon
Lowest Observed Adverse Effect Level (“LOAEL”) and No Observed
Adverse Effect Level (“NOAEL”).3
TRVs are based on LOAELs and
Id. ¶ 41.
LOAEL is the “level of exposure of an organism, found by
experiment or observation, at which there is a biologically or
statistically significant increase in the frequency or severity
of any adverse effects in the exposed population when compared
to its appropriate control.” NOAEL is the “level of exposure of
an organism, found by experiment or observation, at which there
is no biologically or statistically significant increase in the
frequency or severity of any adverse effects in the exposed
population when compared to its appropriate control. JSOF
145. Drs. Cristini and Tucker did not analyze any surface water
samples, groundwater samples, or animal or plant tissue samples.
Id. ¶ 46-48.
They additionally did not conduct any food web
modeling or any other kind of modeling.
Id. ¶ 49.
Additionally, they made no effort to identify and rule out other
potential sources of contamination to Birch Creek and Raccoon
Id. ¶ 50.
Indeed, Drs. Cristini and Tucker admitted
they were not presenting any opinion that Soil Safe was the
source of the chemical constituents in the Birch Creek and
Raccoon Creek sediment samples.
Id. ¶ 51.
146. Instead, Dr. Tucker testified at his deposition that he
did not know what the NJDEP Impact to Groundwater Default
Screening Level signified, but that he nonetheless believed that
the presence of beryllium at a concentration about that level
meant that beryllium posed a danger.
Soil Safe PFOF & PR ¶¶
When asked what level of beryllium would not pose a
risk to aquatic organisms, Dr. Tucker was unable to give an
answer other than “I don’t know exactly[.]”
Id. ¶ 454.
147. Dr. Tucker spent a total of four to five hours developing
his opinion and drafting his report.
Id. ¶ 446.
148. Uhl & Associates also generated a report on the sampling
of Soil Stockpiles.
That report, produced in January 2016, was
entitled “Sampling Report: Soil Safe Facility Stockpiles Bound
for Gloucester County Park Logan Township, New Jersey” (the “Uhl
Stockpile Sampling Report”).
Id. ¶ 179.
This report described
and summarized the results of November 2015 collection of
samples from two stockpiles of finished product that was
awaiting delivery to the County Park.
Id. ¶ 180.
It did not
compare its results to the results of the Uhl Off-Site Sampling
Id. ¶ 181.
149. Drs. Cristini and Tucker did not follow the NJDEP Guidance
nor the USEPA Guidance in preparing their expert reports.
150. Drs. Cristini and Tucker have both never performed an
Ecological Evaluation or an Ecological Risk Assessment.
151. Drs. Cristini and Tucker did not perform any investigation
to determine background levels of contaminants for Birch Creek
or Raccoon Creek.
Id. ¶ 148.
152. Drs. Cristini and Tucker evaluated one sediment sample
from Birch Creek and two sediment samples from near Raccoon
Id. ¶ 151.
153. Drs. Cristini and Tucker did not evaluate surface water
samples for Birch Creek or Raccoon Creek.
Id. ¶ 151.
154. Drs. Cristini and Tucker did not analyze upstream samples
from Birch Creek and Raccoon Creek.
Id. ¶ 151.
155. Drs. Cristini and Tucker did not review any sampling data
from any background area for either Birch Creek or Raccoon
Id. ¶ 149.
156. Drs. Cristini and Tucker did not visit Raccoon Creek or
Birch Creek, nor did they visit the Birch Creek site or the
Gloucester County Park.
Id. ¶ 158.
157. Drs. Cristini and Tucker did not conduct an Ecological
Evaluation or an Ecological Risk Assessment in connection with
Id. ¶ 153.
158. An NJDEP report shows that in 1984, decades before Soil
Safe placed any of its product at the Gloucester County Park,
dioxin was found in the Raccoon Creek sediments at levels 50
times higher than detected in the Uhl & Associates off-site
Id. ¶ 159.
159. Soil Safe was not informed of Uhl & Associates’ off-site
sampling and, despite their request to the contrary, Soil Safe
was not invited to witness Uhl & Associates sampling or obtain
Id. ¶ 163.
160. Defendant called Dr. Janet Kester, a toxicologist and risk
assessor, as an expert witness.
Soil Safe PFOF & PR ¶¶ 474-75.
Dr. Kester has an impressive array of professional experience in
the fields of human health and ecological risk assessment.
161. Dr. Kester opined that the exposure and dose to chemical
constituents is key to determining whether a risk is posed by
the presence of a chemical in the environment.
Id. ¶ 484.
162. Dr. Kester also credibly opined that one or two sediment
samples from a body of water like Birch Creek or Raccoon Creek
is not sufficient to permit a reliable, scientifically valid
evaluation of risk.
Trial Tr. 722:23-723:2.
163. While Dr. Kester found exceedances of ecological screening
criteria for some metals.
Id. at 733:19-734:1, she also
credibly testified that the presence of a chemical substance
above a screening level does not mean that a significant
environmental risk exists.
It only means that further
investigation is required.
Soil Safe PFOF & PR ¶ 496.
164. Dr. Kester credibly testified that understanding
background levels is an essential element of ecological risk
evaluation and assessment.
Id. ¶ 499.
This is because
comparison to background levels enables the investigator to
determine if the off-site area being studied is actually
impacted by the suspected source.
Trial Tr. 724:2-15.
CONCLUSIONS OF LAW
i. General Legal Standard
After full litigation on the merits, “plaintiffs must
establish standing in the same manner as would be required to
prevail on the ultimate merits of their case.”
of Wall, 246 F.3d 258, 261 (3d Cir. 2001).
ACLU-NJ v. Twp.
inquiry . . . focuse[s] on whether the party invoking
jurisdiction had the requisite stake in the outcome when the
suit was filed.”
Davis v. FEC, 554 U.S. 724, 734 (2008).
are three well-known elements to establishing this stake in the
outcome: (1) injury-in-fact, (2) traceability, and (3)
Constitution Party v. Aichele, 757 F.3d 347,
360 (3d Cir. 2014) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992)).
When standing is contested, as the Third Circuit has
observed, “the injury-in-fact element is often determinative.”
In re Schering Plough Corp., 678 F.3d 235, 235 (3d Cir. 2012)
(quoting Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131,
138 (3d Cir. 2009)).
The requirement of injury-in-fact is that
the injury must be “‘particularized’ in that it ‘must affect the
plaintiff in a personal and individual way.’”
Lujan, 504 U.S. at 560 n.1).
Even if injury-in-fact is established, “[a] federal court
may act only to redress injury that fairly can be traced to the
challenged action of the defendant, and not injury that results
from the independent action of some third party not before the
Constitution Party, 757 F.3d at 366 (internal citation
However, this traceability analysis is not the
same as proximate cause from tort law, and the courts should not
“wrongly equate . . . injury ‘fairly traceable’ to the
defendant with injury as to which the defendant’s actions are
the very last step in the chain of causation.”
520 U.S. 154, 168-69 (1997).
Bennet v. Spear,
Indeed, “an indirect causal
relationship will suffice, so long as there is a fairly
Toll Bros., 555 F.3d at 142.
The final requirement of standing is redressability, “which
is a showing that the injury will be redressed by a favorable
Constitution Party, 757 F.3d at 368.
requirement is closely related to causation, and indeed the
inquiries often overlap.
Toll Bros., 555 F.3d at 142.
difference is that while traceability looks backward (did the
defendants cause the harm?), redressability looks forward (will
a favorable decision alleviate the harm?)”
sufficient for the plaintiff to show a “substantial likelihood
that the requested relief will remedy the alleged injury in
Vermont Agency Nat. Resources v. Stevens, 529 U.S. 765,
Plaintiff Delaware Riverkeeper Network in this case is an
As the Supreme Court set forth in Friends of the
Earth, Inc. v. Laidlaw Envtl Servs. (TOC), Inc.:
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
528 U.S. 167, 181 (2000); see also Interfaith Community Org. v.
Honeywell Int’l, Inc., 399 F.3d 248, 257-58 (3d Cir. 2005)
(citing Laidlaw, 528 U.S. at 181).
Plaintiffs’ Standing to Pursue RCRA Claim
In assessing the injury-in-fact requirement, the Court is
mindful of Laidlaw, where the Supreme Court held that the
plaintiffs, for purposes of standing, needed to establish that
they “use the affected area and are persons for whom the
aesthetic and recreational values of the area will be lessened
by the challenged activity.”
528 U.S. at 183.
In finding that
the plaintiffs had met the injury-in-fact requirement, the Court
noted that it saw “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.”
Id. at 184.
“[t]he proposition was entirely reasonable, the District Court
found it was true in [that] case, and that is enough for injury
Id. at 184-85.
The Court is also mindful of the Supreme Court’s holding in
Lujan, where the Supreme Court found that plaintiffs bringing an
environmentally-related cause of action did not have standing to
504 U.S. at 578.
Specifically, the plaintiffs in that
case sought a determination that they had standing on novel
grounds, one of which was the “ecosystem nexus.”
Id. at 565-66.
The Court found that theory was premised on the notion that a
plaintiff would have standing if he used “any part of a
‘contiguous ecosystem’ adversely affected by a funded activity .
. . even if the activity is located a great distance away.”
at 565 (emphasis in original).
As the Supreme Court later
explained, in Lujan, it was “held that the plaintiff could not
survive the summary judgment motion merely by offering
‘averments which state only that one of [the organization’s]
members uses unspecified portions of an immense tract of
territory, on some portions of which mining activity has
occurred or probably will occur by virtue of the governmental
Laidlaw, 528 U.S. at 183; see also Lujan, 504 U.S. at
565 (“To say that the [Endangered Species] Act protects
ecosystems is not to say that the Act creates (if it were
possible) rights of actions in persons who have not been injured
in fact, that is, persons who use portions of an ecosystem not
perceptibly affected by the unlawful action in question.”).
Applying the law set forth supra, the Court finds that the
Plaintiffs have demonstrated an injury-in-fact.
As noted in the
Court’s findings of fact, Ms. van Rossum persuasively testified
that she uses (and is aware of Delaware Riverkeeper Network
members who use) the areas surrounding the Delaware River
between Raccoon Creek and Birch Creek, which is the epicenter of
the purported contamination, and that while boating on that
stretch of the river she often comes into contact with the
Findings of Fact (“FOF”) supra ¶ 9.
It is not disputed
that these creeks are tributaries of the Delaware River and that
Delaware Riverkeeper Network and its members use both the creeks
and the main-stem river nearby.
Id. ¶ 5,7 .
Ms. van Rossum
testified that her use and enjoyment of the area surrounding the
two creeks at the epicenter is reduced by Soil Safe’s
purportedly problematic conduct.
Likewise, Mr. Perti testified concerning the annual fishing
competition that he runs, as well as his general enjoyment of
See, e.g., id. ¶¶ 13-15.
testified concerning his fear that fish populations,
particularly “stripers” which are fished in his tournament,
would be impacted by Soil Safe’s activity.
Id. ¶ 18.
testified about his concerns – correct or not – about silt
control at the sites as it relates to his interest in fishing.
Here, Mr. Perti historically used and will continue to use
the very creeks purportedly impacted to conduct a fishing
tournament, in addition to his own personal fishing route on
these exact creeks.
Id. ¶ 16.
While he testified that he does
not fish less because of the conduct, the Court does believe
that his concerns about damage to fish life, which is central to
a fishing tournament he runs, still give rise to a finding of
injury-in-fact for purposes of standing.
In re Global Indus.
Tech., Inc., 645 F.3d 201, 210 (3d Cir. 2011) (“The standard is
met as long as the party alleges a specific identifiably trifle
of injury[.]” (internal quotation marks omitted)).
While Defendant is correct that neither Ms. van Rossum nor
Mr. Perti testified that they use the exact locations where Soil
Safe’s product has been used for capping, the Birch Creek
property or the GCIA’s DREAM Park, Soil Safe Br. 2, this does
not end the inquiry.
If conduct on property a plaintiff does
not use causes harm to a plaintiff on property they do use for
recreation, an injury-in-fact is still present.
the extent the usage of the remedial capping affects Plaintiffs
because it has impacts for surrounding property, such an injury
can yield an injury in fact for standing purposes.
Supreme Court has noted, the “proposition that a company’s
continuous and pervasive illegal discharges of pollutants,” if
proven, “would cause nearby residents to curtail their
recreational use of that waterway” is not an improbable one.
Laidlaw, 528 U.S. at 184-85; see also Interfaith, 399 F.3d at
255-56 (citing Laidlaw, 528 U.S. at 184-85).
With regard to injury-in-fact, Soil Safe contends that
Plaintiffs cannot show any of its members are injured in a
personal and individual way and that they used “the area
affected by the challenged activity and not an area roughly ‘in
the vicinity’ of it.”
Soil Safe Br. 2.
However, the injuries
set forth in testimony by the two standing witnesses in this
case, Ms. van Rossum and Mr. Perti, are far from the “ecosystem
nexus” of Lujan that proposed standing for any person who used
“any part of a ‘contiguous ecosystem’ adversely affected by a
funded activity . . . even if the activity is located a great
Id. at 565 (emphasis in original).
have not placed themselves “roughly in the vicinity” of the
complained-of conduct, but among the creeks central to the
inquiry and in the waterways into which those creeks flow.
Lujan, 504 U.S. at 565-66.
Establishing an injury-in-fact is not the same as proving a
See U.S. v. Western Radio Servs. Co., 869 F. Supp. 2d
1282, 1288 (D. Or. 2012) (“Because plaintiff may have standing
to bring suits that are ultimately unsuccessful, they need not
prove [elements of their claim] in order to establish standing;
setting too high a bar . . . would conflate the standing inquiry
with the merits inquiry.”) (emphasis in original) (citing
Citizens for Better Forestry v. U.S. Dept. of Agriculture, 341
F.3d 961, 971 n.5 (9th Cir. 2012) (“A contrary rule would allow
only successful environmental plaintiffs standing to bring their
Many of Soil Safe’s arguments regarding injury-in-
fact boil down to the proposition that they simply did not
Indeed, they are correct that no liability
ultimately exists in this case, see infra, but that is not the
inquiry for a court assessing standing and its injury-in-fact
See In re Navy Chaplaincy, 697 F.3d 1171, 1175
(D.C. Cir. 2012) (“[I]n reviewing the standing question, we must
be careful not to decide the questions on the merits for or
against the plaintiff, and must therefore assume that on the
merits the plaintiffs would be successful in their claims.”).
The Court determines that Plaintiffs have met their requirement
demonstrating an injury-in-fact.
As in other RCRA cases, once the injury-in-fact inquiry is
resolved, the remaining standing requirements in this case are
relatively straightforward to resolve.
See Interfaith, 399 F.3d
at 257 (“Having found an injury-in-fact, [the defendant’s]
arguments as to traceability and redressability do not detain us
The causation inquiry does not require a plaintiff to
show with “scientific certainty” that the defendant “alone
caused the precise harm suffered by plaintiffs . . . .”
see also Cmty. Ass’n for Restoration of the Envtl. v. Cow
Palace, LLC, 80 F. Supp. 3d 1180, 1209 (E.D. Wa. 2015)
(“Plaintiffs here are not required to prove that the exact . . .
molecules from [defendant] are contributing or causing the
standees’ injuries. . . .
[RCRA] merely requires Plaintiffs
demonstrate that Defendants’ practices have or are
‘contributing’ to the pollution; not that Defendant’s conduct is
the only cause or that, as established by a degree of certainty,
the standees’ injuries stem from the Defendants’ conduct.”).
As discussed above, the entire premise of the case is that
Soil Safe product is ending up in the waterways in Raccoon Creek
and Birch Creek.
Ms. van Rossum and Mr. Perti both testified
that Soil Safe’s conduct was the source of the above-discussed
Mr. Perti testified to his concerns about silt
leaching from Soil Safe property, which was formed in part after
his exploration of the areas.
While this may not establish
causation for purposes of liability, it certainly does not
require a convoluted analysis to trace Plaintiffs’ complained-of
injury-in-fact to Soil Safe’s conduct.
Soil Safe’s counterargument on the issue of whether the
Plaintiffs’ injuries are fairly traceable to Soil Safe is a
scant three sentences indicating that Plaintiffs have failed to
meet their evidentiary burden with regard to a RCRA claim.
again, this is insufficient.
Interfaith, 399 F.3d at 255
(“[S]tanding in no way depends on the merits of the plaintiff’s
contention that particular conduct is illegal[.]” (citation
The failure to prevail on issues of liability is not
determinative of whether the complained-of injury is fairly
traceable to the defendant’s conduct.
See generally Davis v.
Wells Fargo, 824 F.3d 333, 348 (3d Cir. May 27, 2016) (“Although
standing and merits questions may involve overlapping facts,
standing is generally an inquiry about the plaintiff: is this
the right person to bring this claim.”).
Here, it is a
relatively common-sense proposition that Plaintiffs’ complaints
about injuries arising from pollution are fairly traceable to
the party that they have described as the polluter.
With regard to the issue of redressability, “a favorable
ruling by this Court would surely provide at least some
Cow Palace, LLC, 80 F. Supp. 3d at 1209
(internal quotation marks omitted).
Under the requisite legal
standard, Plaintiffs must show a “substantial likelihood that
the requested relief will remedy the injury in fact that the
requested relief will remedy the alleged injury in fact.”
Interfaith, 399 F.3d at 255.
That said, Plaintiffs need only
show that the request relief will likely, not certainly, redress
Toll Bros., 533 F.3d at 143.
Here, Plaintiffs seek, as set forth in the complaint at the
very outset of this case, an injunction requiring “Soil Safe
[to] . . . take such actions as may be necessary to investigate,
abate[,] and remediate any imminent and substantial endangerment
posed to . . . the environment . . . as well as the off-site
migration of pollutants . . . .”
Compl. 22-23 [ECF No. 1].
Soil Safe’s only counterargument to Plaintiffs’ requested relief
is that Plaintiffs have insufficiently articulated what relief
is sought and how that relief would remedy the injury at issue
in this case, but Soil Safe does not directly respond to this
requested relief in its responsive briefing.
Soil Safe Rep. Br. 2.
Soil Safe Br. 3-4;
Yet, as Plaintiffs correctly point out,
“[i]t can scarcely be doubted that, for a plaintiff who is
injured or faces the threat of future injury due to illegal
conduct ongoing at the time of the suit, a sanction that
effectively abates that conduct and prevents its recurrence
provides a form of redress.”
Laidlaw, 528 U.S. at 185-86.
Indeed, it would simple be enough that “the relief will
materially reduce their reasonable concerns about those
Interfaith, 399 F.3d at 257.
put forward enough to show this Court that the injury it
complains of would be redressed by the relief they request.
4. Associational Standing
Soil Safe does not seem to challenge the associational
standing of the Delaware Riverkeeper Network to sue on behalf of
Nevertheless, the Court would find – even if that
portion of the standing analysis were challenged – that
Plaintiff Delaware Riverkeeper Network does have standing to sue
on behalf of its members.
The interests at stake
are clearly germane to the organization’s purpose, which was
credibly testified to be “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.”
Trial Tr. 27:3-6.
Finally, the suit does not involve the
individual participation of members.
See generally Interfaith,
399 F.3d at 257-58 (finding associational standing in a RCRA
suit under similar circumstances).
Having addressed all the parties’ arguments concerning
standing, the Court finds that both Plaintiffs have demonstrated
they have standing to proceed in this action.
Safe makes much of the fact that it thinks little of the merits
of Plaintiffs’ case, that is not the central question of the
standing inquiry, and indeed, Courts in environmental disputes
find standing after a bench trial while ultimately finding for
the defendant on the merits.
See, e.g., Waterkeeper Alliance v.
Hudson, Civ. A. No. WMN-10-487, 2012 WL 6651930, at *15, 19 (D.
Md. Dec. 20, 2012) (finding plaintiff had standing to proceed,
but that the plaintiff had not shown by a preponderance of the
evidence that poultry operation had discharged pollutants).
As the Court set forth at summary judgment, Plaintiffs’
theory of the case that was to be tried was 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.”
Summ. J. Op. 16 [ECF No. 126].
Accordingly, the principal issues after the bench trial
conducted by the Court are whether Soil Safe’s product amounts
to “solid waste” under RCRA and, if so, whether it may pose an
imminent and substantial endangerment to the environment.
Court sets forth its conclusions of law on each of these issues
i. General Legal Standard
“RCRA is a comprehensive environmental statute that governs
the treatment, storage, and disposal of solid and hazardous
Meghrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996)
(citing Chicago v. Envtl. Def. Fund, 511 U.S. 328, 33-32
The statute’s primary purpose “is to reduce the
generations of hazardous waste and to ensure the proper
treatment, storage and disposal of that waste which is
nonetheless generated, ‘so as to minimize the present and future
threat to human health and the environment.’”
U.S.C. § 6902(b)).
Id. (quoting 42
In so effectuating that overarching goal,
RCRA permits citizens to bring lawsuits as an enforcement
Specifically, 42 U.S.C. § 6972(a)(1)(B) sets forth
the standard by which citizens may commence a civil action:
[A]ny person may commence a civil action on his own
(1) . . . (B) [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[.]
The term “solid waste” and the legal framework interpreting
that term is central to the Court’s determination in this case.
RCRA describes “solid waste” as:
[A]ny 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).
As the Court set forth
at summary judgment, the definitional provisions of the
applicable statutory framework are “dense, turgid, and
Summ. J. Op. 9 (quoting United States v. White,
766 F. Supp. 873, 880 (E.D. Wash. 1991)); see also Conn. Coastal
Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 1308 (2d
Cir. 1993) (“Defining what Congress intended by [‘solid waste’
and ‘hazardous waste’ in RCRA] is not child’s play, even though
RCRA has an ‘Alice in Wonderland’ air about it.”).
The Court also identified at summary judgment that the case
law and legislative history indicate that “other discarded”
materials embodies those materials that are disposed of or
Summ. J. Op. 11-12 (“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
(citing H.R. Rep. 94-1491(I)); see also Am. Min.
Congress v. U.S. E.P.A., 824 F.2d 1177, 1184 (D.C. Cir. 1987)
(“The ordinary, plain-English meaning of the word ‘discarded’ is
‘disposed of,’ ‘thrown away’ or ‘abandoned.’”); id. at 1193 (“We
are constrained to conclude that, in light of the language and
structure of RCRA, the problems animating Congress to enact it,
and the relevant portions of the legislative history, 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.”).
that light, the Court held at summary judgment that “recycled,
petroleum-laced soil that has undergone proper review and
testing, a fact [that was not in genuine dispute at that time],
is not solid waste when applied for purposes of remediation.”
Summ. J. Op. 14-15.
The Court remains convinced that material being used for
its intended purpose is not being “discarded.”
To this end, the
Court finds Ecological Rights Foundation v. Pacific Gas & Elec.
Co. to be particularly persuasive.
713 F.3d 502 (9th Cir.
That case concerned the use of a biocide called
pentachlorophenol, or PCP, in telephone poles and whether
chemicals leaching from those telephone poles amounted to “solid
waste” under RCRA.
In concluding that it did not, the Ninth
Circuit determined that “such escaping preservative is neither a
manufacturing waste by-product nor a material that the consumer
– in this case, PG & E or Pacific Bell – no longer wants and has
disposed of or thrown away.
Thus, we conclude that PCP-based
wood preservative that escapes from treated utility poles
through normal wear and tear, while those poles are in use, is
not automatically a RCRA ‘solid waste.’”
713 F.3d at 515.
Likewise, in Oklahoma v. Tyson Foods, Inc., after finding
that, “[p]oultry litter has market value because it can be
beneficially used as a fertilizer and soil amendment,” the court
ultimately determined that the evidence was insufficient “to
establish that poultry litter is being ‘discarded’ in the
[Illinois River Watershed] by being disposed of, thrown away or
No. 05-CV-0329-GKF-PJC, 2010 WL 653032, at *10
(N.D. Ok. Feb. 17, 2010).
The court explained that, “[i]n
determining whether a material is a ‘beneficial’ product or a
RCRA solid waste, courts have examined whether the material has
market value, and whether the party intended to throw the
material away or put it to a beneficial use.
Neither of these
factors is outcome determinative, but rather each informs the
court’s view of the evidence.
In this case, both factors point
to the same conclusion—that poultry litter is not a RCRA
Id. at *11.
Similarly, in Krause v. City of Omaha, a court in the
District of Nebraska ruled at the motion to dismiss stage that
the plaintiff had not sufficiently alleged that the use of road
salt demonstrated it was a RCRA solid waste.
2015 WL 5008657, at *4 (D. Neb. Aug. 19, 2015) (citing Cordiano
v. Metacon Gun Club, Inc., 575 F.3d 199, 206 (2d Cir. 2009)).
The court noted that the road salt was being placed on the
streets for “snow and ice control” and that when put to its
“ordinary, intended use of snow and ice control [it] is [not]
‘material which is . . . abandoned by being . . . [d]isposed
Id. at *5.
The court relied upon Ecological Rights
Foundation for the premise that when the materials in question
were “applied for a specific use” and were used to “effectuate
their intended purposes,” that “they were not discarded under
Id. at *4.
The issue in this case that prevented resolution before a
bench trial is that Plaintiffs disputed that Soil Safe was
legitimately using the soil to remediate.
Summ. J. Op. 16.
Plaintiffs do not take issue with many of the above holdings
which suggest that the application of a material for a
beneficial purpose precludes it from being a “solid waste,” at
least as far as that particular beneficial application is
That makes sense, of course, because a common-sense
reading of words like “discard,” “disposal,” and “abandon”
connotes that the material is not being applied for a beneficial
or intentional purpose.
Instead, Plaintiffs argue that the mere
fact that a material can or might be used for a beneficial
purpose does not in and of itself foreclose a determination that
it is nevertheless a solid waste under the relevant facts of its
deployment in a particular case.
Pl.’s Br. 3.
too, comports with the case law concerning RCRA.
parties seem in accord on that: Soil Safe agrees that if its
product were hypothetically discarded at a landfill or
otherwise, it would be a “solid waste.”
Pls.’ PFOF & DR ¶ 111.
So, the question with regard to this portion of the analysis is
whether Soil Safe is engaging in recycling and beneficial use of
petroleum-contaminated soil for the purpose of remediation or
something more nefarious.
Having made its findings of fact, and
as set forth below, the Court settles the issue: Soil Safe is
not discarding petroleum-contaminated soil, but rather recycling
it for deployment in site remediation.
With regard to Plaintiffs’ specific arguments on the facts,
the Court notes that credible evidence was admitted showing that
petroleum-contaminated soil is capable of being recycled.
point does not appear disputed by the parties.
Plaintiffs contend that, and are at least generally correct
that, “the mere fact that petroleum-contaminated soil can be
recycled does not support the conclusion that Soil Safe’s
product is recycled,” Pl.’s Rep. Br. 7, the Court concludes that
the fact that petroleum-contaminated soil is capable of being
recycled and applied to remediate is somewhat probative to
whether Soil Safe is discarding it.
To put it simply, Soil Safe
is not purporting to do the impossible.
The relevance of this
is further magnified by two issues illuminated by trial:
(1) Plaintiffs’ failure to present any evidence, expert or
otherwise, as to how petroleum-contaminated soil might be
recycled or deployed for remediation if not by the method set
forth by Soil Safe; and (2) the fact that the NJDEP has reviewed
the projects throughout their lifespans, which is again
corroborative of actual recycling taking place with an ultimate
goal of deployment for remediation.
Moreover, another key theme of trial convincingly
demonstrates that Soil Safe is remediating with this soil: the
extensive testing it undertakes of its product.
The Court has
made lengthy factual findings concerning Soil Safe’s careful
procedure governing receipt of soil to be recycled, from
reviewing supplier records to designing proprietary software
from its tracking, and from taking thousands of grab samples to
analyzing those samples for a series of problematic chemical
At base, if Soil Safe were simply looking to turn
a quick profit by dumping contaminated soil in the name of
remediation, it would not undertake this degree of testing.
Another of several arguments Plaintiffs advance in favor of
a finding that Soil Safe product is “solid waste” is that CKD
serves no real purpose in remediating soil.
that “[a]side from the addition of cement kiln dust, all that
Soil Safe does to recycle the soil is remove debris and
deleterious materials and screen-out oversize particles and
Pl.’s Br. 4.
Plaintiffs aver that the addition of
CKD was established at trial to do nothing to meaningfully alter
or recycle the soil, and therefore, Soil Safe does nothing but
perform one superficial addition to the soil to hide its
discarding of solid waste.
As an initial matter, the Court concludes that the removal
of debris and deleterious materials, and the screening of
oversize particles, are corroborative of the fact that Soil Safe
is not disposing of or discarding its product.
Court is unpersuaded by Plaintiffs’ contention that CKD does not
meaningfully alter the soil, or, for that matter, that whether
it does is even outcome determinative.
One reason Plaintiffs
argue CKD does nothing to the soil is that it is not Portland
cement, a material Plaintiffs do not seem to challenge as a
legitimate soil additive.
But, importantly, Dr. Benson credibly
testified that CKD is a beneficial additive for soil recycling
specifically because it is like Portland cement:
Cement kiln dust functions a lot like Portland cement.
It’s not surprising because it’s just a residual
material from production of Portland cement.
important to think about cement kiln dust, we take
essentially a byproduct of crushed limestone and clay
providing us with calcium, aluminum and silica that
creates cement. So what that function is is when the
CKD, like a Portland cement, we add it to soil with a
little bit of moisture and cement, reactions occur that
binds the soil particles together, and so they make it
stiffer and stronger and less permeable because they
fill void space in between particles.
Trial Tr. 601:12-17.
Making soil stiffer, stronger and less
permeable so that it can function as a remedial cap is, of
course, consistent with Soil Safe remediating with its recycled
product, not discarding it.
Moreover, evidence was also
credibly put forward that the CKD enhances the physical
characteristics of the soil, making it less permeable to water
by filling in spaces between soil particles and reducing the
mobility of contaminants that are present inherently in the
But, upon consideration of all of the evidence adduced at
trial, the Court is also convinced that whether CKD achieves
chemical sequestration is not in and of itself the sine qua non
of recycling and remedial intent, because the physical
characteristics of the soil may not lead to it needing to
achieve sequestration of problematic chemicals.
evidence was put forward that Soil Safe carefully screens the
soil that comes in, ensures the soil is consistent with the
TCLP, stabilizes the soil, and deploys the soil in such a way
that erosion and leaching are not likely outcomes.4
noted at summary judgment that Plaintiffs’ argument that the
addition of CKD was essentially a meaningless addition to the
soil for purposes of recycling it was permitted past summary
judgment “by a sliver.”
Summ. J. Op. 15.
Having now heard the
evidence on CKD’s use and purpose, the Court is convinced that
its addition is part of a legitimate process to repurpose the
soil for construction of a remedial cap.
The Court also finds that Soil Safe does far more than
simply add CKD to petroleum-laced soil.
Soil Safe examines soil
as it comes in and removes debris from the soil.
Soil Safe then
stabilizes the moisture content of the soil, if needed, with
The Court is also unpersuaded by Plaintiffs’ argument that
Mr. Free’s analysis of the soil shows no evidence it prevents
leaching. That testimony, which essentially concerned
Mr. Free’s addition of diesel fuel to Soil Safe product because
Soil Safe did not appear to leach enough constituents to test
the utility of CKD is not necessary to this Court’s
determination of the case.
lime and then blends the soil to create a uniform particle size.
As Dr. Benson persuasively testified, and as this Court is now
firmly convinced, Soil Safe’s process is “textbook” recycling of
Plaintiffs also contend that Soil Safe’s application of an
extremely large amount of its product, in excess of what
Plaintiffs deem can or should be used for remediation, means
that Soil Safe is discarding excess soil under the guise of
Plaintiffs point to several pieces of evidence
presented at trial purportedly in support of this theory: (1)
the fact that Soil Safe makes money by accepting contaminated
soil rather than by selling it; (2) the limitations of the Class
B permit, which indicates that Soil Safe cannot accumulate
recycling fees without an end-use application for the product;
and (3) Plaintiffs’ contention that Soil Safe has used more
product than “originally called for” at the sites.
Pl.’s Br. 8.
With regard to the first two contentions, the Court finds
these do not demonstrate that the Soil Safe product is not
Dr. Benson credibly testified that the recycling
process often involves producers of contaminated material paying
for it to be disposed of, and that often the recycled material
is provided to the customer free of charge.5
Plaintiffs did not
The Court is unpersuaded by Plaintiffs’ argument that “Dr.
Benson testified that it is common in the recycling industry,
seek to rebut this testimony with any affirmative evidence of
While certainly it is conjecturally possible that the
financial structure of front-end payment might lead to an
inference that a recycler has a financial motive to identify as
many opportunities as possible to distribute product, the record
was devoid of any evidence that Soil Safe abuses that financial
structure at the expense of actually recycling the soil.
Soil Safe correctly points out, on the evidence adduced at
trial, the mere fact that Soil Safe “has an economic interest in
recycling as much [contaminated soil] as it can” does not in and
of itself mean that Soil Safe is not recycling the soil.
Safe Rep. Br. 6.
With regard to the third contention by Plaintiffs, that
Soil Safe is over-supplying soil by dumping far more than
generally, for the recycling [party] not to be paid by the end
user, but did not testify that it is any more common that
getting paid, and acknowledged that it is also common to be paid
by the end user as well. Dr. Benson did not testify one way or
the other whether payment by the end user is common in soil
recycling in particular.” Pl.’s Br. 6. First, this argument
appears to improperly shift the burden of proof from Plaintiff
to Defendant to prove that its economic model is consistent with
recycling. Second, there was credible testimony that under
certain circumstances, Soil Safe is paid for product it
produces, although not always. Third, in the Court’s view,
whether the recycling process is funded by the supplier or the
end-user of soil does not meaningfully undermine whether
recycling is taking place when credible testimony is given
indicating that recycling can make use of both payment models.
Similarly, the fact that one model is “more common” than another
– something neither party sought to prove at trial – is not
probative in this Court’s weighing of the evidence.
needed, the Court does not find that the NJDEP “required only
two feet of capping for remedial purposes” thereby making
deployment of anything above that mere dumping of contaminated
Cf. Pl.’s Br. 8.
Based on a review of the RAWP, the
Court simply does not credit Plaintiffs’ theory that only two
feet could possibly be for remedial purpose, particularly where
other portions of the RAWP make clear that more than two feet of
cap would be needed.
Based on the above-discussed evidence
concerning Soil Safe’s robust recycling process, the Court
cannot conclude that Plaintiffs have carried their burden of
showing Soil Safe product is discarded.
Plaintiffs additionally argue that “[e]ven were the Court
to find that Soil Safe’s product is not discarded when applied
for purposes of remediation, it may still become a solid waste
when it erodes and migrates off-site, where it is ‘abandoned’ to
serve no remedial or other useful purpose.”
Pl.’s Br. 9.
support of this proposition Plaintiffs rely upon Zands v.
Nelson, 779 F. Sup. 1254, 1262 (S.D. Cal. 1991), among other
Zands dealt with gasoline-contaminated soil and ruled
that gasoline-contaminated media is solid waste.
reached this holding because the soil had been “abandoned” and
the gasoline could not be used or recycled; it found it
difficult to believe “that Congress intended that soil and
groundwater contaminated with gasoline would not be covered by
Id. at 1262.
This holding comports with the
subsequent case Dydio v. Hesston Corp., which similarly held
that leaking petroleum was a solid waste product amenable to a
citizen suit under RCRA.
887 F. Supp. 1037 (N.D. Ill. May 22,
1995); see also Zands v. Nelson, 779 F. Supp. 1254, 1262 (S.D.
Cal. 1991) (“The fact, however, that a product may at one time
in the past be useful is of no benefit to those trying to avoid
this statute once the product’s usefulness lapses [and] gasoline
is no longer a useful product after it leaks into, and
contaminates, the soil.”); Conn. Coastal Fishermen’s Ass’n, 989
F.2d 1305, 1316 (2d Cir. 1993) (holding that lead shot and clay
targets “left to accumulate long after they had served their
intended purpose” met RCRA’s statutory definition of solid
waste); Cow Palace, 80 F. Supp. 3d at 1223 (holding that manure
leaking from poorly-designed storage lagoons was a “solid waste”
under the facts of that case, even if it had beneficial
However, these cases all simply stand for the proposition
that material that is purposefully applied for a beneficial or
intended reason (i.e. not discarded) may become solid waste when
it is neglectfully permitted to migrate or languish.
Court previously remarked, confronted with this issue at summary
judgment, “[t]he 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  RCRA.”
Summ. J. Op. 14.
straightforward proposition does not affect the Court’s
conclusion that any Soil Safe product that has migrated off-site
has not been abandoned.
Assuming that Plaintiffs established Soil Safe product was
eroding and travelling off-site, the issue would closely track
the one analyzed in Ecological Rights Foundation, where the
Court found “untenable” the notion that the incidental release
of some amount of PCP after its application to telephone poles
rendered that PCP “abandoned.”
The Court explained, “[s]uch
escaping preservative is neither a manufacturing waste byproduct nor a material that the consumer . . . no longer wants
and has disposed of or thrown away.”
Id. at 515.
cited by Plaintiffs instead involved intentionally deployed
material being permitted to migrate into the environment through
neglectful cleanup or containment mechanisms, for instance
knowingly permitting gasoline or manure to leak from a tank or
a storage lagoon, or allowing close to “2,400 tons of lead shot
(5 million pounds) and 11 million pounds of clay target
fragments . . . [to remain] deposited on land around the club
and in the adjacent waters of the long island sound.”
779 F. Supp. at 1262; Cow Palace, 80 F. Supp. 3d at 1223; Conn.
Coastal Fishermen’s Ass’n, 989 F.2d at 1308.
Indeed, the case
law cited by Plaintiffs confirms this reading:
Here, manure leaking from Defendants’ lagoons is not a
natural, expected consequence of the manure’s use or
intended use but rather a consequence of the poorly
designed temporary storage features of the lagoons. The
consequences of such permeable storage techniques, thus,
converts what would otherwise be a beneficial product
(the stored manure) into a solid waste (the discarded,
leaching constituents of manure) under RCRA because the
manure is knowingly abandoned to the underlying soil.
Cow Palace, 80 F. Supp. 3d at 1223.
Here, even if Plaintiffs
demonstrated the migration of some of Soil Safe’s product,
Plaintiffs have not demonstrated that such erosion “is not a
natural, expected consequence of the [soil’s] use.”
Plaintiffs clearly take great issue with the manner and
process by which Soil Safe recycles soil for purposes of
deployment in site remediation.
The evidence they adduced at
trial, however, came nowhere near lending credence to their
Plaintiffs’ criticisms additionally are unwarranted
for another reason: this was a trial about whether Soil Safe is
discarding petroleum-contaminated soil, not a trial to determine
whether Plaintiffs’ subjective opinion that Soil Safe could
recycle better is correct.6
Moreover, even if the manner of Soil
The Court notes the disconcerting allegation made by Soil Safe
concerning the role that Mr. Andrew Voros, a consultant for
Safe’s recycling is not optimal in the eyes of Plaintiffs,
“[w]hatever other liability” the purported polluter might have,
it cannot be premised here on the notion that a material is
Ecological Rights Foundation, 713 F.3d at
iii. Imminent and Substantial Harm
Even if this Court were to find that Soil Safe’s product is
a “solid waste,” the Court would still not find that Soil Safe
has violated RCRA.
Pursuant to RCRA, Plaintiffs must show that
Soil Safe “has contributed or . . . is contributing to the . . .
disposal of any solid . . . waste which may present an imminent
and substantial endangerment to . . . or the environment.”
U.S.C. § 6972(a)(1)(B).
For purposes of this Court’s analysis
post-trial, two issues are relevant: (1) whether the threat
Plaintiffs identify “may” be an “imminent and substantial
endangerment to the environment”; and (2) whether Soil Safe has
contributed to the threat Plaintiffs purport to identify.
Court answers both of these questions in favor of Soil Safe.
1. Imminent and Substantial
Whether a particular threat may be an imminent and
substantial endangerment to the environment turns significantly
Clean Earth, a direct competitor of Soil Safe, purportedly
played in the genesis of this litigation. The Court need not
address this issue, which was not part of the record at trial.
on the word “may.”
Interfaith, 399 F.3d at 258.
“[p]laintiffs 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[.]”
(quoting Parker, 386 F.3d at 1015).
if it threatens to occur immediately.
An endangerment is imminent
As the Interfaith
court noted, no particular quantitative showing must be made to
In Interfaith, the court was confronted
with levels of hexavalent chromium that were as high as 17,900
to 22,100 parts per million, as compared to New Jersey’s
applicable soil standard which allows for 240 parts per million.
As Soil Safe correctly points out, there “is a limit to how
far the tentativeness of the word may can carry a plaintiff.”
Crandall v. City & Cty. Of Denver, 594 F.3d 1231, 1236 (10th
“No matter how broadly read, . . . the statute
still requires a showing that the contamination as issue may
present an ‘endangerment’ that is both ‘imminent’ and
Lewis v. FMC Corp., 786 F. Supp. 2d 690, 707
Reviewing the evidence, and mindful of the
relatively permissive standard, the Court concludes that the
record simply does not support a finding of any substantial or
imminent endangerment to the environment.
Plaintiffs’ sampling expert Mr. Uhl7 took a mere three offsite samples of sediment from the entire area at issue in this
Only one of those samples contained any soil constituent
above the NJDEP residential soil levels.
Drs. Cristini and
Tucker also did not conduct an ecological risk assessment or an
ecological risk assessment.
To be clear, there is no
requirement that they did so, and the Court does not discount
their testimony for that reason.
Nevertheless, what the Court
does note is the very thin ground upon which their opinions are
supported – a four-page expert report.
While state criteria are
not determinative of the potential existence of an endangerment,
the extremely low number of samples does little to convince this
Court of the potential of an imminent and substantial
Moreover, the evidence in the case shows that the
constituents identified by Plaintiffs through the testing are
common in New Jersey, further undermining the notion that their
presence is an endangerment.
This Court is simply unable to
hold that Plaintiffs carried their burden of showing a potential
environmental endangerment by showing the presence of even a
The Court is mindful of Soil Safe’s contention that the
testimony of Mr. Uhl, as well as the expert evidence of Drs.
Cristini and Tucker should be precluded. Mot. ; Mot.
. Because the Court finds that – even considering their
testimony – Plaintiff does not prevail, the Court does not reach
the merits of Soil Safe’s contention in this regard.
single molecule of a harmful substance.
Certainly this Court
cannot do so with the record before it anyway.
However, the primary failure of the evidence with regard to
this claim element is simply shown by the expert testimony of
Dr. Tucker and associated materials.
In support of Plaintiffs’
request that this Court find that Soil Safe’s product may pose
an imminent and substantial endangerment, Dr. Tucker testified
that the presence of any of several constituents at any level
poses such an endangerment.
The Court is not in possession of
sufficient evidence to conclude this to be the case, other than
Plaintiffs’ bare word for it.
This shortage of evidence is magnified in comparison to the
far more fulsome treatment of the issue given by Soil Safe’s
expert, Dr. Kester, who compared the sampling results to
ecological screening criteria and background data.
found, and supported with her testimony, that none of the
chemical constituents in the Birch and Raccoon Creek sediment
samples were present at such levels that they would be qualified
as chemicals of potential concern under NJDEP ecological
evaluation or risk assessment guidance.
Once again, while state
guidance is not determinative, it does orient the analysis.
Moreover, the Court is in possession of no other evidence –
expert or otherwise – from which it can infer what level does
create the potential for an imminent and substantial
Dr. Kester additionally credibly debunked Dr.
Tucker’s theory that any amount of these constituents was too
This is, importantly, consistent with case law which has
held that merely showing presence of constituents of concern
absent further evidence about the import of the level of those
constituents is insufficient.
See, e.g., Leese v. Lockheed
Martin Corp., Civ. No. 11-5091 (JMB/AMD), 2014 WL 3925510, at
*11 (D.N.J. Aug. 12, 2014) (“Proof of the mere detection of some
measurable amount of hazardous materials on a property is not
enough to maintain a RCRA claim.”).
Moreover, even if this Court found that the analysis by
Plaintiffs’ experts and other evidence in the case may amount to
a substantial and imminent endangerment, the Court would not
find that Plaintiffs have shown a causal link to Soil Safe’s
Unlike the relatively flexible “may” requirement
discussed supra, the causal requirement is more stringent.
While a plaintiff need not show that the defendant is the only
source of the engenderment, Oklahoma v. Tyson Foods, Inc., 565
F.3d 769, 778-79 (10th Cir. 2009) (“Nowhere does the district
court say that poultry littler must be the only contributing
Thus, we find no abuse of discretion.”), a plaintiff
must show a “nexus” between the defendant and the solid waste.
Zands, 797 F. Supp. at 810.
Having reviewed the evidence put
forward, the Court is not able to find such a nexus between Soil
Safe’s conduct and the potential for an imminent and substantial
endangerment identified by Plaintiff.
Put differently, the
Court is not able to conclude that Soil Safe contributes to the
situation of which Plaintiffs complain.
The area remediated by Soil Safe is a historic dredge spoil
Against that history, the Court is particularly
troubled by the failure to perform any meaningful background
analysis by Mr. Uhl, to the extent the Court would even accept
Mr. Uhl’s expert testimony.
Moreover, to draw a causal
inference about Soil Safe’s conduct from the on-site sampling
and just three off-site samples is a relatively tall order,
particularly in light of Dr. Kester’s credible testimony.
problems permeate Mr. Uhl’s testimony.
For instance, Mr. Uhl
did not discuss or analyze the impact of soil erosion control
features such as silt fences or berms. To simply conclude that
the existence of drainage swales indicates drainage of Soil Safe
product as well is speculative and not supported well enough for
a factual determination in his favor.
Having granted little to
no weight to Mr. Uhl’s testimony on the issue of causation, the
Court is left with little else to conclude the existence of
causation in favor of Plaintiffs.
Moreover, other affirmative evidence from Soil Safe
undermines any finding that it is contributing to Plaintiffs’
identified potential for substantial and imminent endangerment.
Mr. Free testified that the grain size of Mr. Uhl’s samples
shows a marked difference between what he sampled and Soil Safe
Further, the Court finds that many of the constituents
identified by Mr. Uhl as corroborative of the notion that Soil
Safe’s product is a contributor to the contamination are common
constituents in soil in this area.
As such, Plaintiffs have not
shown contribution by Soil Safe, either.
For the reasons set forth above, the Court concludes that
Plaintiffs have not established by a preponderance of the
evidence that Soil Safe’s product is a solid waste or that it
may present an imminent and substantial harm to the environment.
An appropriate Order follows.
DATED: June 30, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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