INTERFAITH COMMUNITY, et al v. HONEYWELL, et al
Filing
1408
OPINION. Signed by Judge Jose L. Linares on 4/7/2016. (seb)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
INTERFAITH COMMUNITY
ORGANIZATION, et at.,
Civil Action No.: 95-2097 (JLL)
OPINION
Plaintiffs,
V.
HONEYWELL INTERNATIONAL INC., et
at.,
Defendants.
HACKENSACK RIVERKEEPER, INC., et
at.,
Plaintiffs,
V.
HONEYWELL INTERNATIONAL INC., et
al.,
Defendants.
LINARES, District Judge.
This matter comes before the Court by way of a motion to enforce the Conse
nt Decree
Regarding Remediation of the New Jersey City University Redevelopme
nt Area (“NJCU Consent
Decree” or “Consent Decree”)’ filed by Plaintiffs Hackensack Riverkeeper,
Inc., William Sheehan,
Reverend Winston Clark, and Lawrence Baker (“Plaintiffs”). Oral argum
ent was heard in this
matter on February 25, 2016. Certain matters raised in Plaintiffs’ motion
were addressed by prior
1
Attached as Ex. I to Pls.’ Br. in Supp. of Their Mot. to Enforce the NJCU
Consent Decree (“Pis.’
Mot.”).
1
order of this Court. See ECF No. 1397. This Opinion addresses the remain
ing issue: whether
construction of Building 6 as currently planned by New Jersey City University
(“NJCU”) violates
the Consent Decree. After considering the parties’ submissions and the argum
ents at the February
25 hearing, the Court denies Plaintiffs’ motion with respect to the issue of
Building 6.
I.
BACKGROUND
As recognized in the recitals to the Consent Decree, numerous lawsuits were
filed against
Defendant Honeywell International, Inc. (“Honeywell”) related to
contaminated soil and
groundwater on various properties. See Pis.’ Mot., Ex. 1, at 5-6. In an effort
to resolve the disputes
and move forward with remediation and redevelopment of the area, NJCU,
Honeywell, Bayonne
Municipal Utilities Authority (“BMUA”), and Plaintiffs entered into the Conse
nt Decree. See Id.
at signature pages. The Consent Decree was approved and entered by this
Court on January 21,
2010. Id. At issue in the present motion is the proposed construction of
a building (Building 6)
on the NJCU West Campus. The parties do not dispute that “[tjhe Conse
nt Decree.
.
.
governs
the Chromium Remedy at the NJCU West Campus Property.” NJCU Opp’n
at 4. They do dispute
whether the Consent Decree permits Building 6 to be constructed as curren
tly planned.
Relevant to the present dispute are four documents in addition to the
main body of the
Consent Decree: the Remedial Action Work Plan (“RAWP”), Figure 6A (attach
ed as Exhibit A to
the Consent Decree and referred to herein as “Exhibit A”); the NJCU Develo
pment Plan (attached
as Exhibit B to the Consent Decree and referred to herein as “Exhib
it B”); the NJCU
Redevelopment Plan; and the Deed Notice (a form of which is attached
as Exhibit F to the Consent
Decree). Exhibit A shows two property areas relevant to the present motion
: the Residential AOC
(shaded blue) and the Commercial AOC (shaded light green). The distinc
tion between these areas
is important, as a different level of remediation by Honeywell was require
d for each area.
2
Because
the level of remediation varied between the Residential AOC and the Commercial
AOC, the
permitted uses for each area post-remediation also varies. Specifically, “reside
ntial, day care, and
educational uses, other than administrative, are prohibited in the NJCU Comm
ercial AOC” under
the Consent Decree. Consent Decree ¶ 87; see also ECF No. 1362-9 & 10 (Deed
Notice, attached
as Exhibit F to the Consent Decree), Ex. C-I
¶ i(A)(s) (“Description of the restrictions on the
NJCU Commercial AOC by operation of this Deed Notice). Restrictions on use in
the Commercial
AOC exist because the “chromium contamination.
.
.
was left in place [in that area] and covered
with an engineered, multi-layered cap designed to isolate the contamination
and prevent contact
with it.” PIs.’ Mot. at 2. The restrictions identified above do not exist for the
Residential AOC
because it was remediated to a different level. See id.; Hr’g Tr. (Feb. 25, 2016)
(“Hr’g Tr.”) at
30:15-17 (“The area that’s been cleaned up to a level where any use can happen
there, including
people’s homes.”).
At the time the Consent Decree was approved and entered by the Court, variou
s buildings
were contemplated as part of the redevelopment of the NJCU West Campus.
See Consent Decree,
Exs. A & B. Only one building, Building 7, however was proposed to be
within the Coniniercial
AOC, construction of which would penetrate the cap. Id. The other proposed
buildings on Exhibit
B were shown to be wholly within the Residential AOC. Id. One of the buildin
gs proposed to be
wholly within the Residential AOC was Building 6. Id.
On September 28, 2015, as part of its regular updates to Plaintiffs, NJCU
sent Plaintiffs a
“six month look ahead schedule.” PIs.’ Mot., Ex. 7. The update inform
ed Plaintiffs of NJCU’s
current plans regarding Building 6. See id.; see also id., Ex. 10 (“2015
NJCU Redevelopment
Plan”). NJCU currently plans to construct Building 6 partially in the Reside
ntial
AOC and partially
in the Commercial AOC, rather than wholly in the Residential AOC as origina
lly conceptualized.
3
NJCIJ has also entered into a ground lease related to Building 6 “for a Term
of fifty (50) years
with a one-time option to extend for an additional twenty five (25) years”
for the purpose of “the
development of Block 6 for one (1) four story building containing a Shop-R
ite supermarket, fitness
center, restaurant and NJCU athletic fields and a multi-level structured parkin
g garage.” NJCU
Opp’n at 9; ECF No. 1354-2 (Declaration of Arthur Ramey, Jr.) J25 & Ex.
2. Plaintiffs argue that
this planned construction, wherein a portion of Building 6 now will be in
the Commercial AOC,
violates the Consent Decree. See Pls.’ Mot. at 3. They also argue that,
even if such a building
were allowed, the proposed use (which includes athletic fields) also is prohib
ited under the Consent
Decree. See Pis.’ Reply at 13.
Plaintiffs admit that “the Consent Decree does not include language expres
sly stating that
the construction of Building 6 in the [Commercial AOC] is prohibited.” Id. at
3. Instead, Plaintiffs
argue that, when read as a whole, the Consent Decree requires conformance
with Exhibit B, and
that no variation from Exhibit B (which shows Building 6 only in the
Residential AOC) is
permitted. See Pls.’ Mot. at 12; see also, e.g., Hr’g Tr. at 37:11-22. Plainti
ffs also acknowledge
that construction of Building 7 as originally contemplated, which was to
be constructed within the
Commercial AOC and which they agreed to, would require penetration
of the contamination cap.
See Hr’g Tr. at 10:25-I 1:13. And, Plaintiffs acknowledge that they agreed
that such penetration
of the cap for purposes of construction and the subsequent repair and replace
ment of the cap could
be undertaken with oversight by the New Jersey Department of
Environmental Protection
(“NJDEP”), not a Special Master. See Hr’g Tr. at 10:25-12:5; see also
Consent Decree
¶
76.
Plaintiffs further acknowledge that, at this time, there is no current plan
for Building 7 so that the
4
only issue before the Court is the construction of one building in the Comm
ercial AOC—now
Building 6.2 See Hr’g Tr. at 80:2-16. Thus, in summary, Plaintiffs’ positio
n is the following:
•
Plaintiffs agreed to construction of one and only one building in
the
Commercial AOC that would penetrate the cap;
•
For that one building (labeled “Building 7”), Plaintiffs agreed that oversig
ht
by the NJDEP—not a Special Master—was appropriate;
•
Plaintiffs agreed that the one building that could be constructed in
the
Commercial AOC was required to be in the exact location as the propos
ed
Building 7 on Exhibit B;
•
Any other construction in the Commercial AOC that requires penetration
of
the cap that does not exactly conform to Exhibit B is prohibited under
the
Consent Decree;
•
Even though no other building is presently planned to be constructed within
the Commercial AOC, Building 6 is nonetheless prohibited because it does
not exactly conform to Exhibit B (which only shows “Building 7” in
the
Commercial AOC in a location different than the currently propos
ed
Building 6); and
•
This is true even though the Consent Decree does not expressly state
that
such construction is prohibited because, when the Consent Decree is read
as a whole, it is clear that the parties clearly and unambiguously agreed that
only construction of “Building 7” as shown on Exhibit B is permitted in
the
Commercial AOC.
NJCU and Honeywell dispute Plaintiffs’ position, arguing that Plainti
ffs’ construction of the
Consent Decree makes no sense, ignores contrary language in the Conse
nt Decree and related
documents, and would render certain Consent Decree provisions superfl
uous. In short, they argue
that the current plan for Building 6 is permitted by and consistent with
the Consent Decree.
2
They also argue that there is a technical difference between what
will be required for the
penetration of the cap for construction of Building 6 compared to what
would be required for the
construction of the conceptual Building 7 as depicted on Exhibit
B because of different water
levels in the different locations. See Pis.’ Reply at 23-24; see also
Hr’g Tr. at 19:14-24. This
argument, however, is disputed and is speculative as no detailed
construction plan have been
completed. See Hr’g Tr. at 13:12-17, 41:20-25, 66:4-14.
5
II.
LEGAL STANDARD
Courts “discern the scope of a consent decree by examining the langua
ge within its four
corners,” and “as consent decrees have many of the attributes of contrac
ts, we interpret them with
reference to traditional principles of contract interpretation.” US.
v. New Jersey, 194 F.3d 426,
430 (3d Cir. 1999). To that end, a court should “read the document as
a whole in a fair and common
sense manner.”
Hardy ex rel. Dowdell v. Abdul-Matin, 965 A.2d 1165, 1169
(N.J. 2009).
Furthermore, an interpretation that “gives reasonable meaning to
all of the contract’s provisions is
preferred to one which leaves a portion of the writing useless or inexpl
icable.” Pennbarr Corp. v.
Ins. Co. oj7’L Am., 976 F.2d 145, 151 (3d Cir. 1992) (internal quotat
ions omitted). Finally, a court
“may not make a different or better contract than the parties themselves
saw fit to enter into.” Id.
III.
DISCUSSION
Here, there is no question that penetration of the cap in the
Commercial AOC for
construction of a building is allowed under the Consent Decree
—Plaintiffs admit that it is. See
Hr’g Tr. at 10:25-11:13; see also Consent Decree
¶ 76. The dispute is whether this particular
building—Building 6—may be constructed partially in the capped
Commercial AOC area. The
present dispute also is not a technical one, i.e. it is not a dispute
that Building 6 as constructed will
harm the Chromium Remedy in a way that Building 7 would not
have. That issue is not ripe as
detailed plans have yet to be completed. See Hr’g Tr. at 13:12-17,
41:20-25, 66:4-14. The present
dispute then is what the Court characterizes as a line in the sand
dispute. Plaintiffs have made it
clear that they do not care how Building 6 will be constructed,
whether it is any
different than what
was proposed (and agreed to) for Building 7, or whether it will
affect the Chromium Remedy in
any way not contemplated for Building 7. See, e.g., id. at 20:1421, 21:4-12. They do not care
that there is presently only one building at issue, and that
they agreed to construction of one
6
building in the capped Commercial AOC area. Id. Their position is simply
that none of these
questions matter because the proposed construction either conforms precisely to
what is depicted
on Exhibit B and is permitted, or it does not precisely conform to Exhibit B
and it is prohibited
under the Consent Decree absent modification of the Consent Decree by mutua
l agreement of the
parties or complete remediation of the Commercial AOC area by Honeywell.
As there are no express provisions in the Consent Decree supporting Plainti
ffs’ position,
Plaintiffs hang their hat on three interpretation arguments: (1) that paragraph
66 of the Consent
Decree requires consistency with Exhibit B and NJCU’s plans are not consistent
with Exhibit B;
(2) that Exhibit B may not be amended unilaterally by NJCU or Honeywell; and
(3) that inclusion
of provisions in the Consent Decree related to Building 7 in the Commercial AOC
coupled with
no similar provisions for other construction in the Commercial AOC suppor
ts an interpretation
that the Consent Decree only permits the construction of Building 7 in the Comm
ercial AOC. See
PIs.’ Mot. at 10-12; Pls.’ Reply at 4. NJCU and Honeywell, on the other hand, argue
that Plaintiffs’
interpretation is inconsistent with other provisions of the Consent Decree
(in particular
¶
105,
¶
99, and the Deed Notice) and would make certain provisions superfluous.
See NJCU Opp’n at 1719; Honeywell Opp’n at 9. They argue that “conceptual” Building 7 was expres
sly addressed in
the Consent Decree because it was contemplated at the time, but that the Conse
nt Decree provided
the flexibility that is necessary in large construction projects for later necess
ary modifications. See
NJCU Opp’n at 2 1-22; Honeywell Opp’n at 6-7.
Paragraph 66 provides:
Consistency of the Chromium Remedy with NJDEP Guidance and
Remedial
Action Work Plan [Exhibit A]. The Chromium Remedy shall be consist
ent with
the Technical Requirements for Site Remediation, the NJDEP Chrom
ium Policy,
and the Remedial Action Work Plan approved by NJDEP, and the
NJCU
Development Plan [Exhibit B]. In the event of any conflict or incons
istency
between this Consent Decree and any Remedial Action Work Plan approv
ed by
7
NJDEP, the provisions of this Consent Decree shall control. However, nothin
g in
this Consent Decree shall limit NJDEP’s authority to require Honeywell,
other
Parties, or third parties from undertaking remedial activities at the
NJCU
Redevelopment Area in addition to those required by this Consent Decree
.
“Chromium Remedy” is defined in the Consent Decree as “those remedi
al actions set forth in
Article III of this Consent Decree,” which encompasses remedies related
to the Residential and
Commercial AOC areas. Consent Decree 3. Thus, paragraph 66 expres
sly says that the remedial
¶
actions shall be consistent with Exhibit B, it does not say all construction and/or
development shall
be consistent with Exhibit B. It also states that in the event of inconsistency
between the Consent
Decree and the Remedial Action Work Plan, the Consent Decree—not
Exhibit B—controls. The
Court therefore does not find this paragraph, standing alone, persuasive in suppor
ting Plaintiffs’
position that the Consent Decree requires all construction to be precisely
consistent with Exhibit
B or that Exhibit B controls where there is an inconsistency with the Conse
nt Decree and other
documents.
The Court also is not persuaded by Plaintiffs’ argument that Exhibit B
may not be modified
in any manner.
The Consent Decree expressly recognizes that the RAWP and
NJCU
Redevelopment Plan may be modified, supplemented, and/or amend
ed. Consent Decree
¶ 23
(“NJCU Redevelopment Plan shall mean the New Jersey City
University West Campus
Redevelopment Plan approved on February 9, 2005, and any approv
ed amendments thereto.”),
¶
33 (“Remedial Action Work Plan or RAWP shall mean the July
2007 Final Supplemental
Remedial Investigation Report/Remedial Action Selection Report/Reme
dial
Action Work Plan for
Study Area 5, NJCU Redevelopment, Sites 90/184 and a Portion
of Site 153 or any
supplementation or modification thereto approved by NJDEP.
.
.
.“).
The Consent Decree is silent
however as to whether Exhibit B may be amended; it neither states
that amendments are prohibited
nor acknowledges that amendments are allowed. Id. ¶20 (“NJCU Develo
pment Plan shall mean
8
the plan for development of the NJCU West Campus dated October 23, 2007,
which is attached
hereto as Exhibit B.”)
The Consent Decree states that “the Parties to this Consent Decree each believe
that it is in
their mutual interest to move forward productively to resolve their differences
so that they can
implement environmental remediation at the NJCU Redevelopment Area
that ensures the
continued protection of human health and the environment and so that
Study Area 5 can be
redeveloped in keeping with Jersey City’s vision for a revitalized West Side.”
Id., “Recitals,” at
8.
It further states that “the settlement which is the subject matter of this
Consent Decree
contemplates the environmental remediation of the NJCU Redevelopment Area
so that it may be
redeveloped to create a major mixed use project in an important section of
Jersey City.” Id.
(emphasis added). Thus, the purpose of the Consent Decree was to facilitate
both remediation and
redevelopment.
The Court notes that the current plan for all of the buildings on the 2015
Redevelopment
Plan, which contains the disputed new positioning for Building 6, bears almost
no resemblance to
Exhibit B—most, if not all, of the buildings are differently situated from how
they were originally
depicted on Exhibit B. Compare id., Ex. B with Pls.’ Mot., Ex. 10 (2015
NJCU Redevelopment
Plan). Plaintiffs have voiced no complaint that failure to precisely follow
Exhibit B with respect
to the other buildings on the 2015 NJCU Redevelopment Plan violates the
Consent Decree. Thus,
Plaintiffs do not appear to believe that all modifications of Exhibit B are prohib
ited. Instead, they
appear to be more narrowly arguing that the Consent Decree prohib
its modification to the
construction plansfor the Commercial AOC area as depicted on Exhibi
t B, a position even farther
removed from the express language of the Consent Decree. More import
antly, Plaintiffs have not
explained how a document designed to facilitate both remediation and
a major redevelopment
9
project and which expressly provides for modification or amendment
of the redevelopment plans
can be reconciled with an argument that another exhibit depicting concep
tual development plans
forestalls any and all such modifications or flexibility for development
.
To the extent that Plaintiffs argue that paragraph 77 supports their
argument that Exhibit B
may not be amended (see Pls.’ Mot. at 13), that argument also is
misplaced. Plaintiffs state that
paragraph 77 “only permits such amendment to provide for full
remediation of the capped area to
allow for unrestricted use.” Id. However, paragraph 77 provides:
“[1]f NJCU or a future owner of the NJCU Commercial
AOC prepares a
development plan similar in level of detail to Exhibit B to change all
or any part of
the NJCU CommercialAOC to residential or other uses currently prohi
bited under
paragraph 87, it shall inform Honeywell and Riverkeeper. Within
90 days of
receiving such written notice, Honeywell shall propose further remedi
al action, as
necessary, for the entire NJCU Commercial AOC, to meet NJDEP’s
requirements
for Unrestricted Use of the NJCU Commercial AOC in effect at that
time and a
schedule for undertaking such further remedial action in conjun
ction with the
proposed development plan....
Consent Decree
¶ 77 (emphasis added). NJCU and Honeywell are not attempting to modify the
areas on Exhibit B from commercial to residential uses.
3
Finally, Plaintiffs argue that by including specific provisions related
to the possible future
development of Building 7 without similar provisions for any other
building construction in the
Commercial AOC area, indicates an intent to limit construction
in the Commercial AOC only to
Building 7, Pis.’ Mot. at 10; Pls.’ Reply at 5 (arguing that “expre
ssio unius est exclusion alterius
instructs that when certain matters are mentioned in a contract, other
similar
matter nots mentioned
were intended to be excluded”). The Court first notes—as Plainti
ffs admit (Pis.’ Mot. at 9; Pls.’
To the extent that Plaintiffs also argue that the Redevelopment
Plan “cannot be modified or
deviated from without the explicit approval of the Jersey City
Planning Board” (Pis.’ Mot. at 12),
that argument is moot, as the current plan has been approved
by the Jersey City Planning Board
(NJCU Opp’n at 24; Hr’g Tr. at 41:19).
10
Reply at 5-6)-—that nowhere in the Consent Decree is there any language
stating that Building 7
is the only construction permitted to penetrate the cap in the Commercial
AOC area. The Court
4
further notes that the provisions related to Building 7 are not included
in the Consent Decree in
such a way to indicate that they are meant to be a list of permitted constru
ction. More importantly,
Plaintiffs ignore other provisions in the Consent Decree that are
not consistent with Plaintiffs’
interpretation. For example, paragraph 105 (“Coordination of Constr
uction Responsibilities”)
provides that “NJCU shall construct, repair, and maintain any buildin
gs in the NJCU Commercial
AOC in such a way as to minimize disruption to the Chromium Remed
y and shall cooperate with
Honeywell in the coordination of any such construction with Honeywell’s
repair or replacement
of components of the Chromium Remedy.”
Id.
¶
105 (emphasis added).
Paragraph 74
(“Commercial AOC Cap”) provides that “[e]xclusive of roadways,
pavement, building
foundations, parking lots, or other impervious surfaces, the cap shall be
Fill
“
Id.
¶ 74(b)
overlain by layers of Clean
(emphasis added). Paragraph 99 provides for “[m]onitoring during
any
development or construction in the NJCU Commercial AOC to ensure
that at the conclusion of the
construction activity, the maintenance, repair, or replacement of the
cap and other engineering
controls in the NJCU Commercial AOC are restored to the specifications
set forth in the Final
I 00°/o Remedial Design or to a level of protection at least equivalent
to the original Chromium
Remedy.” Id.
¶
99(h) (emphasis added). Paragraph 104 provides that “NJCU shall
provide
Honeywell with a list of tenants in any development on the
NJCU Commercial AOC and
Honeywell shall provide annual written notice to the tenants of
any long-term monitoring or
maintenance activities undertaken with respect to the Chromium Remed
y.” Id.
¶ 104(e) (emphasis
“Commercial AOC” is defined in the Consent Decree as “the area which
is shaded light green on
Figure 6A of the approved RAWP, attached. as Exhibit A.” Consen
t Decree ¶ 5.
‘
.
.
11
added). The Deed Notice provides that “[ejxcept as provided in the Consent
Decree and in
Paragraph 6B, below, no person shall make, or allow to be made, any alteration,
improvement, or
disturbance in, to, or about the NJCU Commercial AOC which disturbs any engine
ering control at
the NJCU without first obtaining written consent of the Department of Enviro
nmental Protection.”
Deed Notice
¶ 6A
(emphasis added). The Deed Notice does not require that any improvement
other than Building 7 shall not be made without first modifiing the Consent
Decree or seeking
written consent from all parties to the Consent Decree.
5
All of the parties in this action are very well represented. If the parties had agreed
that the
only building construction anchor development in the Commercial AOC that
could penetrate the
cap was Building 7, they easily could have made that clear. Similarly, it is difficult to
understand
how such an agreement (that “Exhibit B controls the development allowed
in the Capped Area,
and as such, only Building 7 was addressed in the Consent Decree” (Pis.’ Reply
at 4 (emphasis
added)) can be reconciled with all of the above language in the Consent Decree
referencing any
buildings (plural), foundations (plural), and any development in the Comm
ercial AOC.
Plaintiffs argue that when paragraph 105 “is read in conjunction with paragr
aphs 75 and
76 {dealing with Building 7], the only logical interpretation is that paragr
aph 105 is meant to
supplement those paragraphs.
In other words, paragraph 105 does not authorize additional
construction, but instead directs NJCU as to how it should construct, repair,
and maintain the
buildings that have been authorized by paragraphs 75 through 76.” Id. at
7-8. They further argue
that “[a]cceptance of Honeywell and NJCU’s arguments regarding paragr
aph 105 would make
Paragraph 91(b) (“NJCU Commercial AOC Deed Notice”) was agreed
to by all parties and
provides that “[wjithin 90 days of completion of the remedial measures
under paragraphs 74 and
86, NJCU shall record a deed notice for the NJCU Commercial AOC in the
form attached hereto
as Exhibit F.”
12
provisions of the Consent Decree superfluous. For example, paragr
aph 76, which provides for
Building 7 in the Capped Area and sets up a process for its construction,
is made superfluous.” Id.
at 8. Plaintiffs’ argument is flawed. First, Plaintiffs contradict themse
lves—on the one hand they
argue that paragraph 105 does not authorize additional construction, but
instead directs NJCU as
to how construction and repairs will be undertaken, and, on the other
hand, a few sentences later,
they argue paragraph 76 itself sets up the process for Building 7’s constru
ction. Second, paragraph
105 is a broad, general provision, and paragraph 76 is a specific provis
ion dealing with Building
7. It is unclear how 105 supplements 76 except as to provide guidance
for circumstances beyond
those involving Building 7. The complete provisions provide:
105, Coordination of Construction Responsibilities. NJCU shall
construct,
repair, and maintain any buildings in the NJCU Commercial AOC in such
a way as
to minimize disruption to the Chromium Remedy and shall
cooperate with
Honeywell in the coordination of any such construction with Honeywell’s
repair or
replacement of components of the Chromium Remedy.
76.
Coordination of Cap with Future Construction of Building
7. If NJCU
advances to Phase II of the NJCU Development Plan and determines
to undertake
development of Building 7 as shown conceptually on Exhibit B attache
d hereto,
NJCU and Honeywell shall cooperate in coordinating the construction
schedule and
construction of Building 7 with any necessary and/or required disturb
ance, repair,
and replacement of the cap at elevations set forth in this paragraph.
Honeywell
recognizes that construction of Building 7 may require (a) relocation
of Clean Fill
and removal of the geomembrane liner and other components of
the cap within
some or all of the Building 7 footprint area; (b) excavation and dispos
al of capped
soils from the Building 7 footprint area to allow for reinsta
llation of the
geomembrane liner at an elevation to accommodate building founda
tion design
expected to be approximately 12 feet to 14 feet above mean sea level
(“MSL”), (c)
reinstallation of the geomembrane layer and other cap components
to integrate the
cap with construction of Building 7, and (d) such further work as
may be necessary
and/or required by the NJDEP to implement the above work
and so that
construction of Building 7 may proceed. Honeywell shall seek
and obtain NJDEP
approval or Licensed Site Remediation Professional approval, if
required by law,
for the further Chromium Remedy activities set forth in this
paragraph and to
perform such activities prior to construction of Building 7 in a timely
manner so as
not to unreasonably affect the construction, timing, and schedule
of NJCU for the
construction of Building 7. Honeywell shall present the work plan
for the further
13
Chromium Remedy in a document that is Subject to Review and
Comment by the
Non-Honeywell Parties with an Interest and approval by NJDEP.
Id. ¶j 105, 76 (emphasis added). Finally, Plaintiffs ignore that
paragraph 105 is not the only
paragraph in the Consent Decree that contemplates construction and/or
development of more than
one building in the Commercial AOC area, as noted above.
Thus, the Court disagrees with Plaintiffs that the Consent Decree limits
construction in the
Commercial AOC only to a building called “Building 7” in the
specific location as depicted on
Exhibit B. The Court also disagrees with Plaintiffs that rejecting
their interpretation will permit
open-ended construction in the Commercial AOC. First, the area
at issue is not large enough to
accommodate Plaintiffs’ hyperbolic argument of numerous potential
future buildings. See Hr’g
Tr. at 22:3-7. Second, and more importantly, any construction in the
Commercial AOC or other
disturbance of the cap is limited in the Consent Decree by requirements
that it be consistent with
the Chromium Remedy. Plaintiffs may thus always challenge specifi
c building plans for failure
to so comply with the Consent Decree’s requirements.
The Court also disagrees that there is no procedure outlined in
the Consent Decree that
could guide construction of Building 6.
Paragraph 105 provides a general process for the
coordination of construction for “any buildings,” and paragr
aph 76 provides one agreed-to
example of a process for construction that requires penetration of the
cap.
The Court also is not persuaded by Plaintiffs’ speculative uses argum
ent—that eventually
the portion of Building 6 in the Commercial AOC may be used for
a prohibited purpose. See Pls.’
Mot. at 12; Hr’ g Tr. at 17:1-4. As Plaintiffs admitted at the Februa
ry 25 hearing, Building 7 (which
they agreed to) also could conceivably be used improperly
at some future time. See Hr’g Tr. at
18:19-25. Numerous provisions in the Consent Decree addres
s this issue and provide Plaintiffs
14
means to monitor use within the Commercial AOC and provide remedi
es for violations. For
example, paragraph 88 provides:
Annually, beginning on January 15, 2011, and on each anniversary
date in each
year thereafter until such time as further remedial activities are undertaken
pursuant
to paragraph 77 and an Unrestricted Use No Further Action Determination
is issued
for the NJCU Commercial AOC, NJCU shall submit a written notice
to Honeywell
and Riverkeeper stating whether NJCU is in compliance with the deed notice
and
whether there are any uses in the NJCU Commercial AOC that are prohib
ited under
paragraph 87 or the deed notice. Such notice shall identify all catego
ries of uses
(e.g., commercial, retail, etc.) of the property since the date ofthe last annual
notice,
including new and continuing categories of uses. Honeywell and Riverk
eeper will
remind NJCU of this annual obligation.
Paragraph 91 provides that “[d]uring the period in which the
NJCU Commercial AOC is
encumbered by the deed notice [which contains use restrictions], NJCU
and Honeywell shall
comply with the requirements of the deed notice..
.
.
The deed notice shall be enforceable against
NJCU and Honeywell in the Consolidated Litigation.” Consent Decree
¶
9 1(b). Paragraph 98
requires Honeywell to design a plan to “[p]rovide monitoring to ensure
that the restrictions of the
institutional controls are being satisfied, including the use restrictions
on the NJCU Commercial
AOC...
.“
Id.
¶ 98(b) (emphasis added).
The Court agrees with Plaintiffs in concept however with respect to
their specifi
c argument
that Building 6 may not be used for a purpose prohibited by the
Consent Decree as outlined in
paragraph 87. Paragraph 87 (“Restrictions on the Use of the NJCU
Commercial AOC”) provides:
Until such time as further remedial activities are undertaken pursua
nt to paragraph
77 and an Unrestricted Use No Further Action Determination
is issued for the
NJCU Commercial AOC, residential, day care, and educational
uses, other than
administrative, are prohibited in the NJCU Commercial AOC. Comm
ercial, retail,
office, academic administrative use, open space, utility corridors,
transportation,
roadway, crossing or access to adjacent properties, or other
uses that are not
prohibited by the deed notice are permitted in the NJCU Commercial
AOC.
The Deed Notice that encumbers the property also contains a
use restriction. See ECF No. 136210, Ex. C-i (“By operation of this Deed Notice, the NJCU Commercial
AOC shall not be used for
15
residential, day care, or educational uses, except administrative educat
ional uses”). NJCU’s
current plans indicate that tennis courts to be used in part for the school
’s tennis program will be
at least partly in the portion of Building 6 located in the Commercial
AOC. Because this issue
was raised by Plaintiffs for the first time in reply and was therefore not
fully briefed by all parties,
and because NJCU’s construction plans are not final and the NJDEP has
not reviewed the Building
6 plans. the Court does not reach the issue of whether the tennis courts
are permitted at this time.
6
Finally, the Court disagrees with Plaintiffs that appointment of
a Special Master to
supervise Building 6 plans and construction is necessary or appropriate
at this time. Plaintiffs
admitted that they agreed that construction of Building 7, which would
have penetrated the cap,
could be overseen by the parties and the NJDEP (not a special master) as
provided in paragraph
76. See Hr’g Tr. at 11:13-12:5; Consent Decree 76. Although Plainti
ffs argue that there will be
J
different issues presented by construction of Building 6 than the previo
usly proposed Building 7
that require special monitoring, the Court finds such concerns specul
ative at this time as detailed
construction plans have yet to be completed.
For these reasons, the Court finds that the Consent Decree does not
limit construction in
the Commercial AOC to Building 7 and only as precisely depicted on
Exhibit B. The Court does
agree (as do the all the parties) that the uses of the portion of Buildi
ng 6 that are located in the
Commercial AOC will be constrained by Paragraph 87, but it does
not rule at this time whether
the proposed tennis courts comply with this paragraph. The Court also
finds that appointment of
6
If the parties believe that the detailed plans may not proceed withou
t such a determination first
being made by this Court, then NJCU should inform Plaintiffs
and the Court of its intention to
proceed with the tennis courts in the Commercial AOC portion of
Building 6 and indicate why this
issue is ripe for decision at this time, and the Court will set a briefin
g schedule to resolve that issue.
The Court does note that on Exhibit B, the “Fieldhouses” in
Building 6 were categorized as
“academic.” See Consent Decree, Ex. B.
16
a special master to monitor construction of Building 6 is not warranted at
this time. Finally, to be
clear, the Court is not ruling that Building 6 (or any other building)
may be constructed in any
manner sought by NJCU and/or Honeywell. NJCU and Honeywell
must submit the detailed
construction plans to Plaintiffs for review as soon as they are compl
eted, and the parties are
encouraged to meet and confer regarding any disputes over those plans
prior to returning to this
Court to raise potential issues with such plans.
7
IV.
CONCLUSION
For the reasons set forth above, Plaintiffs’ motion with respect to Buildi
ng 6 is denied. An
appropriate Order accompanies this Opinion.
DATED: April 7, 2016
/s/ Jose L. Linares
JOSE L. LINARES
UNITED STATES DISTRICT JUDGE
To the extent that third parties raise issues with existing remediation
efforts, see, e.g., ECF No.
1398, those issue have not been raised by Plaintiffs and are not presen
tly before the Court.
17
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