Petition for Writ of Certiorari — Honeywell International Inc. v. Interfaith Community Organization

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D41560 MAY 19 2005

No. 04- OFFICE @F THE CLErn

IN THE

Supreme Court of the United States

HONEYWELL INTERNATIONAL INC.,

Petitioner,

v.

INTERFAITH COMMUNITY ORGANIZATION, INC.,

et al.,

Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Richard G. Taranto Thomas H. Milch*

Farr & Taranto Joel M. Gross

1220 Nineteenth St., N.W. Mary Gabrielle Sprague

Suite 800 Arnold & Porter LLP

Washington, DC 20036 555 Twelfth St., N.W.

(202) 775-0184 Washington, DC 20004

(202) 942-5000

Katherine L. Adams

Thomas Byrne * Counsel of Record

Honeywell International Inc.

101 Columbia Road

Morristown, NJ 07962

(973) 255-2000

aiden tide -aaeneti

(i)

QUESTIONS PRESENTED

1. Whether citizens have Article III standing to sue

for cleanup of pollution on a site without proof that they

suffer cognizable harm caused by site pollution in any

activity they do or would undertake.

2. Whether, in a citizen suit under Section 7002

(a)(1)(B) of the Resource Conservation and Recovery Act,

the determination of “imminent and __ substantial

endangerment” is a mixed question of law and fact requiring

deference to expert agency judgment and probing appellate

scrutiny of a district court’s rejection of expert agency

judgment.

3. Whether a district court under Section

7002(a)(1)(B) must limit relief to what is “necessary” to

abate any specifically identified imminent and substantial

endangerments, or whether it may use the provision to

displace federal and state agencies, and the balanced policies

that govern them, in fashioning long-term remedies for

hazardous-waste sites.

(ii)

PARTIES TO THE PROCEEDING

Honeywell International Inc., formerly known as

AlliedSignal, Inc., was the appellant in the Third Circuit.

Interfaith Community Organization, Lawrence Baker,

Martha Webb Herring, Margaret Webb, Rev. Winston

Clarke, and Margarita Navas were appellees. W.R. Grace &

Company, ECARG, Inc., and W.R. Grace, Ltd. were

defendants in the district court and were appellees when the

appeal commenced, but all claims to which they were parties

were settled before the court of appeals issued its decision.

Roned Realty of Union City, Inc. and Roned Realty of Jersey

City, Inc. were named as defendants but resolved all claims

before the appeal commenced.

STATEMENT PURSUANT TO RULE 29.6

Petitioner Honeywell International Inc., does not

have any parent corporations, and no publicly traded

company owns more than 10% of its stock.

(ili)

TABLE OF CONTENTS

: Page

I aaenllade aceanehanitel i

ERLE TE ea a EE TR li

Statement Pursuant to Rulle 29.6...............cscccssssssccssrsessseesees il

ETI saksietissiinkinsdiosideieinssimntascinitinncacsiniidaubiedandaniainsisais l

SETI Nsiiii leche hdslciciialacanbiadtadalamncdibeniiadacleniesstbabiinnniniiddonsdaintomnin |

Statutory Provisions Involved...................ssccsssssssssssssscsssccesees ]

Sin Cehisiidiasetsnshedphaitienboninepeiewenatuniesbeinastinencabbesescnenndnidaiadensiiens ]

Reasons For Granting the Petition...................:ccccscccsseseeeeees 14

I. The Decision Eliminates Bedrock Article III

II. | The Decision Improperly Treats “Imminent

and Substantial Endangerment” Simply As a

Factual Issue, Without Deference to Agency

iain ciation aataresintnneciionsns 18

III. The Decision Expands Citizen-Suit Remedies

Beyond What Is “Necessary” to Redress

Imminent Risks, Disregarding Congressional

Policy on Permanent Cleanups and Federal

RSE CRIA EARERE sare Sa ae A a 23

(iv)

TABLE OF AUTHORITIES

Page(s)

Cases: |

Avondale Fed'l Sav. Bank v. Amoco Oil Co., 170

ce Es IUD. ssdecsicasieiecdeilaeicitaniliatiiceanitinnns 23

Birch Corp. v. Nevada Inv. Holding, Inc.,

No. 97-552823, 1998 WL 442982 (9th Cir.

PE Fi ED eet ecacipiesiidettcliinrchdetaanhatinnabialiineniinins 23

Central and South West Services, Inc. v. EPA,

ee ce Re CN Ge, BOD ccrtstesnenccstncnstemnannincntn 18

Coalition for Health Concern v. LWD, Inc.,

BD FFG DEGE CI GA, BPS) ccsciessetennsncensinsontinancenasen 23

Cooper Indus., Inc. v. Aviall Servs., Inc.,

Bae le See EF EE caicceatiebiacststtesassilanhtinsitinnintaniéianininn 2

Friends of the Earth, Inc. v. Laidlaw Envi.

Servs., Inc., 528 U.S. 167 (2000) ................. 14-18, 24

Greenpeace v. Waste Technologies Industries,

Fee Oe Pe Gls IED benntttinniecntiteinnciectinntions 5

Leister v. Black & and Decker (U.S.), Inc.,

No. 96-1751, 1997 WL 378046 (4th Cir.

Ee, eS ehihisiineitiphaseiinandastaisiaisicitiiiasianieniibibiamhpnciaiiis 23

Lujan v. Defenders of Wildlife,

Pe ae IEE denctcnnsiccncenensectnonnpniinsincapinunielicsiniann 19

McConnell v. FEC, 540 U.S. 93 (2003) .........:.sccseceseeees 16

Meghrig v. KFC Western, Inc.,

BE Cs Fe Ce sicietetntecesisnnsiticinibainitiainninntnn teas

NRDC v. EPA, 966 F.2d 1292

Oe PIN sleeker ieee ct ato 29

(v)

New Orleans Pub. Serv., Inc. v. Council of City

of New Orleans, 491 U.S. 350 (1989) woes 24

Original Great Am. Chocolate Chip Cookie Co.

v. River Valley Cookies, Ltd.,

ak Fi ge, | A. >: SERRE MOmEnR Om MEE 29

Price v. U.S. Navy, 39 F.3d 1011

CE Ses Re senesninhccctdcinaashnasitintcantlpnceasthiaaienibsidentia 23

United States v. Fausto,

SBE. Sa Ce) ivi tetisnsaisianvniannsititiaiaaiaiiana 24

United States v. Oakland Cannabis

Buyers' Co-op., 532 U.S. 483 (2001) wu... eeeeeeeee 24

Statutes and Regulations:

Be ls OF SUES) tittitnsnincieepihapdiidiiiacaaentinadaaies ]

2S CEA Be cictesidciniiiodnsiniadiininn 23

GE UA: & Fe iteisisinriesitiatnitiseiiitaiiedadstii niacin ssiniane 23

Resource Conservation and Recovery Act

Section 7002, 42 U.S.C. § 6972 uo. eeeeeeeee passim

SOotion 7003S, 42 USC. §GITS -ccccccccrsaccsecssscesecnsareds 5

G2 UGA, B Fe itiiiaeeiesiitiisitnisineainheticcimichicsiteiitpiatniliiiiaide 23

Comprehensive Environmental Response,

Compensation and Liability Act

Section 101, 42 UBC. S DOOM iscccsscssnssstsisisnsssnscssasenes 3

Section 104, 42 U.S.C. § 9604..............cccscocssssscssssseees 3

Section 105, 42 U.S.C. § 9605...............cscssssssrees 3, 26

Bootion: TOG, Gs UTA... B Go acsscnshiiessnassasreasssaniteasunie 2

Section F241, 42 UBC. OPGZI cvscsnscciscccsarssnonsersescen 1,4

GO CIDR. © DUGG sesiicicinitrsastictininntaisiaiandastanabiani 2, 4, 5, 26

ik ali ei,

(vi)

Page(s)

Occupational Exposure to Hexavalent

Chromium, 69 Fed. Reg. 59306-473 (Oct. 4,

BOOED wxcuniseninnesntnnnqratadiaesiniaiainaiiiaiiaaiidneiniaptetaiel 21

Miscellaneous:

FELIR, Baap. SS BGIG CHG. srccensssnsesincsssccncsiessestnnncsininnndinn 2

BERR, Tap. FEEDS CEG) cccccscsrssesssstsiinssniniicscasabainkcninaees 5

B. Heap. SS BGG CIGD ccnsesspretcsssstensnnnsestsnsitiseiittitatailaatisiiniins 3

SD, Bae, SG Cae tencatnncnssensntninasttenserisineneniamsssninsiiantitian 5

Stephen Breyer, Breaking the Vicious Circle:

Toward Effective Risk Regulation (1993).............0+ 29

Mark Reisch & David M. Bearden,

Congressional Research Service, Superfund

Faet DOOR ISO d waists 29

EPA, The National Biennial RCRA Hazardous

Waste Report Based on 2001 Data (State

Datel ATT CIE pecctnncsininganniavintiininininennn 28

EPA, The National Biennial RCRA Hazardous

Waste Report Based on 2001 Data (National

FL | ae nC 28

EPA, A Guide to Selecting Superfund Remedial

MDD CF iitervtcniiciipaiiainsaniiactataiidaibilhiasiiiataiaeiini 4

EPA, National Remedy Review Board Criteria

Revision (Marcha 21, ZOOS) ......ccccccseccerccesccsecsesccsescecods 4

EPA Office of Emergency and Remedial

Response Pre ive Remedy for CERCLA

Municipal Landfill Sites (1993) ..........c.cccccseeseeseesees 25

EPA, PreSARA Sites: Analysis of Why

Construction Is Not Yet Complete at Certain

Sites (Draft June 6, 2003) ............cccccccscsscessscecssccscess 26

(vii)

Page(s)

EPA, The Role of Cost in the Superfund Remedy

NI ia 4

EPA, Exposure Factors Handbook (Aug. 1997)............ 20

EPA, Presumptive Remedy for Metals-in-Soil

FERRE AS SCT a ee Fe Se ERT 25

Michael B. Gerrard, Safety Hazards in

Hazardous Waste Remediation, N.Y.L.J. p.3

SIE SEU AI vsicciinnsdbsnencatulcaipbuiincinanisiiheisincnieensedinsianntans 28

Memorandum from Elliot P. Laws, Formation

of National Superfund Review Board

Ns SU SUE chcistestsindnneetiiiniinhatilaisndcadanitetianicaiiniaiciciaiaenl 5

NJDEP, Guidance Document for the

Remediation of Contaminated Soils (1998).............. 27

NJDEP, Hudson County Chromate Chemical

Production Waste Sites: Background (1997).............- 7

NJDEP, Site Remediation Program Annual

a etittrteccictinctncetitciisinieliintenneecetatipanicaasniinasin 7

Paul K. Scott, Alex Pittignano, and Brent L.

Finley, Evaluation of the Physical Hazards

Associated with Two Remedial Alternatives

at a Superfund Site, 21 Risk Analysis 53

PETITION FOR A WRIT OF CERTIORARI

Petitioner Honeywell International Inc., respectfully

petitions this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Third

Circuit in this case.

OPINIONS BELOW

The opinion of the Third Circuit (Pet. App. A1-A38)

is reported at 399 F.3d 248. The relevant opinions of the

district court (Pet. App. A39-A218) are reported at 263 F.

Supp. 2d 796 and 188 F.Supp. 2d 486.

JURISDICTION

The judgment of the Third Circuit was entered on

February 18, 2005. Pet. App. Al. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Sections 7002 of the Resource Conservation and

Recovery Act (RCRA), codified at 42 U.S.C. § 6972, is

reproduced at Pet. App. A219-25. Sections 105 and 121 of

the Comprehensive Environmental Response, Compensation

and Liability Act (CERCLA), 42 U.S.C. §§ 9605 and 9621,

are reproduced at Pet. App. A226-48. The provision of the

Environmental Protection Agency’s National Contingency

Plan, 40 C.F.R. 300.430, governing remedy selection is

reproduced at Pet. App. A250-74.

STATEMENT

As respondents (“ICO”) recently acknowledged with

considerable understatement, the Third Circuit decision “will

almost certainly be a leading case in the development of

RCRA law.” ICO Reply Brief in Support of Application for

Fees, at 4 (3d Cir., May 5, 2005). The Third Circuit has so

expanded both Article III standing and the scope of the

citizen-suit provision of RCRA, Section 7002(a)(1)(B), that

hundreds or thousands of sites across the Nation needing

2

cleanup can now readily be brought under broad district

court control at the behest of almost any nearby resident.

With its broad-brush treatment of Section 7002-— which

authorizes only “necessary” action to address “imminent and

substantial endangerment([s]”— the Third Circuit has

authorized displacing the expert federal and state agencies

established for the handling of these sites, and the balanced

policies and processes that govern their decisions. The Third

Circuit’s view of the scope of Section 7002, together with its

weakening of Article III standing requirements, produces a

massive shift in authority from agencies to the federal courts.

This Court should review the decision to restore the more

limited role of Section 7002, required by its language and by

the duty to read it in accord with the policies of the

Superfund program created under CERCLA, which the Third

Circuit did not even mention.

A. Statutory Framework

1. CERCLA. Congress enacted CERCLA in 1980

because “existing law [was] clearly inadequate to deal with

[the] massive problem” of cleaning up already contaminated

sites, such as Love Canal. H.R. Rep. 96-1016, at 17-18

(1980); see Meghrigv. KFC Western, Inc., 516 U.S. 479,

483 (1996). Congress gave the President broad powers

(delegated to the Environmental Protection Agency) to

undertake cleanups. CERCLA § 104, 42 U.S.C. § 9604.

EPA also can order responsible parties to undertake

cleanups. CERCLA § 106, 42 U.S.C. § 9606. See Cooper

Indus., Inc. v. Aviall Servs., Inc., 125 S. Ct. 577, 580 (2004).

Congress gave only EPA, not private parties, the right to

compel cleanup by responsible parties. CERCLA § 106(a).

Congress recognized that in addressing contaminated

sites, EPA needed the tools to address the most immediate

risks on an expedited basis but also should carry out its

responsibility to determine the best long-term cleanup

strategy more methodically and pursuant to balanced

3

national policies. CERCLA distinguishes those authorities

by authorizing: “removal” actions to address immediate

needs and, after necessary studies and analysis, “remedial”

actions to achieve a long term cleanup. CERCLA § 104(a);

see CERCLA § 101(23), (24) (defining terms), 42 U.S.C.

§ 9601(23), (24); S. Rep. No. 96-848 at 54 (1980)

(“‘Remedy’ involves the more permanent, costly measures

which may be necessary after the need for emergency action

has terminated.”). CERCLA also provides for EPA’s

creation of the National Priorities List (“NPL”)—the list of

top-priority sites based on the “relative degree of risk to

human health and the environment.” CERCLA § 105(c), 42

U.S.C. § 9605(c) (Pet. App. A229-30).

Congress directed EPA to revise the National

Contingency Plan for the removal of oil and hazardous

substances (“NCP”), 40 C.F.R. pt. 300, to prescribe

procedures and standards for site investigation and remedy

selection, specifically including cost-effectiveness as a

statutory requirement. CERCLA § 105. Congress declared

that after such revisions were made (as they were in 1982)

“the response to and actions to minimize damage from

hazardous substance releases shall, to the greatest extent

possible, be in accordance with the provisions of the plan.”

CERCLA § 105(a) (Pet. App. A226-29).

The NCP sets forth detailed and _ rigorous

requirements for selection of remedial actions— this

provision alone is about 6,500 words. 40 C.F.R. 300.430

(Pet. App. A249-73) It provides as essential elements of the

remedial selection process the performance of in-depth

scientific studies known as remedial investigations (“RI”)

and feasibility studies (“FS”). “The purpose of the remedial

investigation/feasibility study (RI/FS) is to assess site

conditions and evaluate alternatives to the extent necessary

to select a remedy. Developing and conducting an RI/FS

generally includes multiple steps: project scoping, data

4

collection, risk assessment, treatability studies, and analysis

of alternatives.” 40 C.F.R. 300.430(a)(2) (Pet. App. A251).

The NCP requires evaluation of nine factors in the -

remedy selection process. One is “implementability,” which,

if excavation and off-site disposal are being considered,

looks to off-site disposal capabilities: it requires analysis of

“availability of adequate off-site treatment, storage capacity,

and disposal capacity and _ services.” 40 C.F.R.

300.430(e)(9)(i11)(F (3) (Pet. App. A264). Another criterion

is “that the remedy is cost-effective,” meaning that “its costs

are proportional to its overall effectiveness.” 40 C.F.R.

300.430(e)(9)(i11)(G) (Pet. App. A264-65). This provision

reflects the statutory requirement “that remedial action

measures are cost-effective over the period of potential

exposure to the hazardous substances or contaminated

materials.” CERCLA § 105; see CERCLA § 121(a), (b)(1),

42 U.S.C. §9621(a), (b)(1) (Pet. App. A236-37) (EPA

remedial actions must be “cost-effective”).' So important

are the NCP criteria that, for large-scale remedial actions,

EPA utilizes a National Remedy Review Board “to help

control remedy costs and to promote both consistent and cost

effective decisions at Superfund sites.””

' EPA, The Role of Cost in the Superfund Remedy Selection Process 5

(1996) (“CERCLA and the NCP require that every remedy selected must

be cost-effective.”) (emphasis in original) (CAJA17393); EPA, A Guide

to Selecting Superfund Remedial Actions 5 (1990) (CAJA17415). (We

cite the appendix in the Third Circuit as “CAJA__.”)

? Memorandum from Elliot P. Laws, Formation of National

Superfund Review Board, (Nov.28, 1995), available at

http://www.epa.gov/superfund/programs/nrrb/pdfs/1 1-28-95.pdf.

Initially, EPA required Board review of remedies expected to cost over

$30 million, but the threshold was recently reduced to $25 million,

because the $30 million threshold left well over 90% of remedies

unreviewed. EPA, National Remedy Review Board Criteria Revision

(March 21, 2005), available at http://www.epa.gov/superfund/programs/

nirb/pdfs/03-21-05.pdf. Thus, fewer than 10% of all remedies —

5

The procedural and substantive prescriptions under

CERCLA are mirrored in New Jersey. See N.J.A.C.

7:26E-1; CAJA03062. See Administrative Consent Order

(1993) (CAJA07633; CAJA07646-41).

2. RCRA Section 7002. “RCRA is a comprehensive

environmental statute that governs the treatment, stcrage,

and disposal of solid and hazardous waste.” Meghrig, 516

U.S. at 483. As enacted in 1976, RCRA authorized only

EPA, not citizens, to sue to abate imminent and substantial

endangerments. RCRA § 7003, 42 U.S.C. § 6973. In 1984,

Congress expanded Section 7002 to allow adversely affected

citizens to sue to redress imminent and substantial

endangerments in addition to statutory violations. Congress

authorized federal district courts to take action “necessary”

to redress the “disposal of any solid or hazardous waste

which may present an imminent and _ substantial

endangerment to health or the environment.” With the

revised NCP already in place, Congress neither wrote nor

required new or different guidelines to govern § 7002 suits.

In Meghrig, this Court made clear that CERCLA was

intended to be the primary federal tool for addressing

contaminated sites, explaining that “RCRA is not principally

designed to effectuate the cleanup of toxic waste sites.”

Meghrig, 516 U.S. at 483.

Congress intended § 7002, even as expanded, to

“complement, and not interfere with, Federal regulatory and

enforcement programs.” S.Rep. 98-284 at 55 (1983); accord

H.R. Rep. 98-198 at 53 (1983); Greenpeace v. Waste

Technologies Industries, 9 F.3d 1174, 1179 (6th Cir. 1993)

(§ 7002 citizen suits are to “augment government

environmental enforcement”). Indeed, when it enacted the

citizen-suit provision, Congress included Section

7002(b)(2)(B) & (C), which bar § 7002(a)(1)(B) suits in their

remedies for those high risk sites on the NPL — cost as much as $30

million.

iia eam |

6

entirety where federal or state agencies have initiated

proceedings under certain CERCLA provisions. The 1984

Senate Report, moreover, states that, even where the suit is

not barred, “injunctive relief is an equitable remedy and,

although there is no requirement to exhaust other remedies,

courts should be cognizant of and consider such alternatives

when awarding equitable relief.” S. Rep. No. 98-284, at 57.

B. This Case

This case involves a 34-acre parcel in Jersey City,

New Jersey, at which a corporate predecessor of petitioner

Honeywell, ending more than 50 years ago, lawfully

disposed of the chromium ore processing residue (“COPR”)

from operations at an adjacent chromium processing plant.

The site, though reviewed by EPA, has never been listed on

the National Priorities List; nor has New Jersey’s

Department of Environmental Protection (“NJDEP”)

proposed it for listing. NJDEP has, however, been actively

addressing the site, along with some 200 other COPR sites in

the area. Before this RCRA citizen suit began in 1995,

Honeywell had implemented interim measures. in

coordination with NJDEP to address immediate risks at the

site, and worked with NJDEP through the complex step-by-

step process of formulating chromium standards generally

(NJDEP completed them in 1998), setting priorities among

the many area chromium sites, analyzing conditions at this

and other sites, and studying possible permanent remedies.

The Third Circuit in this case approved the

interruption and displacement of that process. It affirmed the

district court’s decision to take control of the permanent

cleanup of the site at the behest of neighboring citizens under

RCRA Section 7002, and the order to excavate massive

amounts of soil—1,500,000 tons of it—and remove it to

somewhere else, at a cost of more than $400 million dollars,

and under the multi-year control of court-appointed Special

Master Robert Torricelli (former U.S. Senator) and his

extensive staff. It thus affirmed the district court’s rejection

7

of a containment/capping remedy even though such a

remedy is in widespread, effective use around the country, is

EPA’s presumptive remedy for large volume sites like this

one, and would be effective here.

1. Facts. The site at issue (“Property”) was created

between 1895 and 1954 when Honeywell-predecessor

Mutual Chemical, engaged in making chromium products

with many civilian and military uses, disposed of COPR on

tidal flats along the Hackensack River pursuant to a series of

riparian grants from Jersey City. Pet. App. A3; CAJA4105.

Disposal of COPR as fill was common at the time. NJDEP

has identified over 200 COPR sites in the area. CAJA11757;

NJDEP, Hudson County Chromate Chemical Production

Waste Sites: Background (1997)(CAJA17647). The

Hackensack River adjacent to the Property is not a scenic

wilderness area: it is lined with many industrial facilities

(CAJA17323; CAJA16749-68) and has heavy concentrations

of mercury and other pollutants. CAJA7567; CAJA11075.

The Property is largely vacant (CAJA16850) and is

surrounded by industrial/commercial sites (CAJA10741;

CAJA10744-45).

The Property contains roughly 1,000,000 cubic yards

(1,500,000 tons) of COPR-contaminated fill, extending down

15-20 feet. Pet. App. A3. Various forms of chromium are

naturally occurring (CAJA11297; CAJA11403) and

beneficial if ingested (CAJA3524). The hexavalent

chromium in COPR, however, can pose certain risks —

depending on exposure and dose.

EPA inspected, and took samples from, the Property

in 1980 and 1981. CAJA4819. EPA did not view the

Property as a high-priority site. It took no response action

itself; it required no private cleanup; and it did not place the

Property on the NPL of hazardous sites— over 1500 sites

(130 in New Jersey as of 1999). 40 CFR Part 300, Appendix

B; NJDEP, Site Remediation Program Annual Report at 23

(1999) (CAJA17636). In 1997, after Honeywell had taken

8

various exposure-control measures, EPA again inspected the

Property and determined: “/t/here are no conditions on site

that would warrant immediate or emergency action.”

CAJA10741; CAJA10752.°

NJDEP began addressing COPR at the Property and

some 200 other sites in the early 1980s. In January 1987,

NJDEP announced that its immediate priority was interim

remedial measures (“IRMs”). CAJA2843-44. AlliedSignal

(Honeywell’s predecessor) developed an IRM _ plan

(CAJA6019) to cover the Property to prevent releases to the

air and contact by humans and wildlife. After various

comments, NJDEP approved the IRMs in July 1987

(CAJA6069; CAJA6083). AlliedSignal proceeded to

implement this plan (CAJA6087; CAJA6089) and by 1990

had substantially completed the IRMs: it removed debris,

demolished structures, regraded to direct surface water to

swales (drainage ditches), repaired paving, and installed a

PVC liner (CAJA6453; CAJA6531). NJDEP selected a

bulkhead reconstruction remedy in July 1990 (CAJA7089;

-CAJA7111), and AlliedSignal thereupon completed the IRM

work (CAJA7359; CAJA7447).

After 1990, AlliedSignal maintained the IRMs and

upgraded them (notably, repairing and covering the liner

with a geotextile membrane and gravel after wind caused

damage in 1992). At the time of trial, a fence surrounded the

Property; the IRMs (asphalt, concrete, and three-layer caps)

prevented exposure to the soil (CAJA1474); and hexavalent

chromium in swale surface water was below the

government-set threshold for problems from skin contact

(allergic contact dermatitis). CAJA16852. After installation

3

About groundwater, EPA said: “there is no true aquifer of concern.”

(CAJA10741; CAJA10756). EPA noted no significant concerns about

surface-water discharges to the Hackensack River or exposure to soils

CAJA10741. About airborne releases, it concluded: “There is currently

little potential for a release of contaminants attributable to the site to

air...” CAJA10741; CAJA10765.

9

of the IRMs, NJDEP did not believe the Property presented

a risk to human health. CAJA3053, CAJA3115-16.

NJDEP viewed developing the permanent remedy as

less urgent and more complex. In June 1993, AlliedSignal

signed an Administrative Consent Order providing for the

normal step-by-step approach to identifying appropriate

action at 21 sites, including the Property (CAJA7633;

CAJA7679; CAJA7941), and committing up to $60 million,

with NJDEP reserving its rights to compel cleanup at higher

costs. 1993 Order 9936, 53, 62-67 (CAJA7640; CAJA7644;

CAJA7647-49).* The process, as with CERCLA inquiries,

required, first, an Remedial Investigation to identify the

precise conditions needing remedy, second, a Feasibility

Study to analyze remedial alternatives and select a remedy,

and third, Remedial Action. CAJA7633-41.

In the ordinary course, each step involves study,

drafting, comment, and revision, and that process occurred

here. NJDEP recognized that the process was slowed by its

own failure to publish chromium standards until September

1998. CAJA11467; CAJA11487 (NJDEP: “full compliance

... has not been achieved, as we have been awaiting the

development of the chromium numbers”). In 1999, NJDEP

observed that “[p]reviously and rightfully so, the chromium

responsible parties insisted that the development of such

criteria were necessary to complete the remedial

investigation.” CAJA11721.

Even before the adoption of chromium standards,

AlliedSignal submitted, and NJDEP ultimately approved,

workplans for soil and groundwater sampling. E£.g.,

CAJA10035; CAJA10001. In December 1999, on schedule,

4

In July 1993, AlliedSignal proposed to give the Property top priority.

CAJA7691; CAJA2863-68. Jersey City disagreed (CAJA7687), and

NJDEP gave the Property lowest priority, because the Property was

abandoned, no one lived there, and IRMs had been installed, so it

presented no risk to human health. CAJA3053, CAJA3115-16.

10

AlliedSignal submitted draft Remedial Investigation reports.

CAJA12261; CAJA13485; CAJA11921. The September

2002 draft report (CAJA15873-16117) comprehensively

reviews the environmental condition of the Property.

Although Honeywell and other chromium manufacturers

have studied various treatment alternatives, a Feasibility

Study systematically comparing options was not completed

at the time of trial.

2. District Court Proceedings. In 1995,

respondents (the ICO entity and five individuals who live in

the area) sued under the “imminent and _ substantial

endangerment” citizen-suit provision of RCRA. They

sought no preliminary injunction. When the district court

invited NJDEP to participate, NJDEP declined, explaining

that the Property “is one of a number of separate sites” being

addressed and “Allied Signal is in compliance with th[e]

Administrative Consent Order. The remedial investigation

required by that Consent Order has not been completed. The

NJDEP expects that the Administrative Consent Order will

result in remediation of the [property].” CAJA345.

In 2002, the district court found on summary

judgment that respondents had standing. Pet. App. A188.

After a 15-day bench trial in January/February 2003,

the district court found for ICO on its RCRA claims (Pet.

App. A39-174) and entered injunctive relief (Pet. App.

A175-87). Though it nowhere clearly enumerated the

specific endangerments found, the court’s opinion discussed

‘three categories: (1) hypothetical risks if certain future uses

of the property took place (such as future use of deep

groundwater as drinking water); (2) current risks to

trespassers on the Property; (3) risk of exposure of wildlife

to surface water on the Property, exposure of fish and other

organisms in the Hackensack River to surface water and

groundwater discharges from the Property, and exposure of

river-bottom organisms to contaminated sediments in the

Hackensack River near the Property. The only short-term

—

_—

11

risk to humans identified by the district court was potential

exposure of trespassers (which respondents did not claim to

be) to surface water and soil on the Property.

Because the NJDEP process had not reached the

Feasibility Study stage when trial began, the experts at trial

did not have, as foundation, the normal step-by-step studies

used for remedy assessment. But the key remedial expert on

ICO’s side (Brown) unmistakably testified that containment

remedies — which leave the soil in place but add safeguards

against exposure— would in fact be environmentally

sufficient while maintained. CAJA2593-94; see CAJA1124

(Ross) (same). NJDEP’s project manager added that

containment remedies had worked at other chromium sites

and were among the remedies “evaluated by the Department

as sufficient to deal with the necessary environmental

hazards at the site.” CAJA3273, 3276-77. In fact,

containment remedies (for municipal landfills and many

other large volume sites) are commonly used around the

country; they are the presumptive EPA-approved remedy.

The district court, however, insisted on a

“permanent” solution (Pet. App. A90) and ruled that a

containment remedy was not permanent enough: a

containment remedy “would require substantial maintenance

for years, and ... future generations would be required to

abide by whatever restrictions were placed on the property.

... Human nature being what it is, I am not satisfied that

future generations will necessarily abide by today’s

restrictions.” Jd. at A93. The court thus ordered Honeywell

to excavate, remove, treat, and properly dispose of all soil

containing over 240 parts per million hexavalent chromium

(roughly 1,500,000 tons of soil), then replace it with clean

fill, It also ordered hydraulic controls to prevent

recontamination; unspecified remediation of sediments in the

Hackensack River adjacent to the Property; and investigation

(and, if necessary, remediation) of deep groundwater. One

12

expert at trial estimated that the work would cost $400

million. Pet. App. A91.

In entering an injunction of this magnitude, the

district court did not follow the systematic NCP remedy

selection process and criteria. It gave barely a nod to cost

effectiveness, and did not even mention such important

factors as the amount of the Nation’s hazardous waste

landfill capacity that this one excavation remedy (for a low-

priority site) would consume and possible adverse

environmental effects from the remedy itself (e.g., massive

daily trucking for years).

Recognizing “the complexity of this case and the

technical nature of the remedial relief” the court appointed

former Senator Robert Torricelli as Special Master. Pet.

App. Al77-79. In addition to his own staff, Senator

Torricelli has hired a law firm and an environmental

consulting firm. Over 40 people (including eight attorneys, a

paralegal, and 31 employees of the consulting firm) had

billed time through April 30, 2004. CAJA17765.

Implementation is expected to take six years. CAJA17865.

3. Court of Appeals Decision. The Third Circuit

affirmed. Pet. App. Al. The court first held that ICO had

standing, resting the organizational standing entirely on the

standing of the individual plaintiffs. Jd. at A8-13. As to the

individuals, the court did not reject as a factual matter

Honeywell’s showing that respondents had no evidence that

chromium originating from the Property in fact caused any

harmful exposure to respondents in any of the activities

(walking or driving near the Property or the adjacent polluted

urban river) that they said they engage in or would engage in

but for the on-site chromium. The court upheld standing

based on respondents’ expressed health “concerns” from

living or driving near the Property, or walking or biking by

the River, irrespective of whether those concerns had any

factual basis to them. Jd. at A9-12.

13

The court next upheld the district court’s

determination of “imminent and substantial endangerment.”

The court (by a 2-1 vote) reviewed the determination merely

for “clear error,” treating it as a factual matter (id. at A6).

While the court of appeals disregarded the district court’s

reliance cn hypothetical future risks, it affirmed the district

court’s overall determination of present risks. It did not

assign any weight, even on the question of what was a

“substantial” risk, to the applicable EPA and NJDEP

determinations — both viewed the site as not presenting a

serious danger after the IRMs were in place. Indeed, the

court specifically rejected as too demanding the district

court’s partial reliance on agency-set standards for

contaminant levels. Applying its lax standard of review, the

Third Circuit undertook no careful review to insist that each

alleged endangerment presented simultaneously a harmful

contamination level and a realistic likelihood of exposure at

that level (which the evidence does not prove). Jd. at Al9-

24.

Finally, the court upheld the district court’s

excavation remedy, despite the statutory “necessity”

standard. In response to the evidence from the key expert

supporting respondents that lesser measures would stop any

endangerments, the court focused approvingly on the district

court’s search for a permanent remedy:

[T]he District Court also found, specific to remedy, that

a permanent solution (as opposed to an interim

solution) was necessary within the meaning of the

statute to eliminate the established endangerments; that

NJDEP had already independently come to the same

conclusion; that injunctive relief, as opposed to some

other form of relief, was necessary to obtain a remedy

that was permanent; that Honeywell presented no

credible evidence at trial that either a containment “cap”

or shallow groundwater treatment, or both, would be an

effective permanent remedy; and that excavation and

14

removal of the contamination from -the Site was

necessary within the meaning of the statute to ensure a

permanent remedy.

Pet App. A24-25 (emphasis added). In response to

Honeywell’s argument that the scope of “necessary” relief

under the RCRA citizen-suit provision must be limited to

reflect the CERCLA-established_processes, criteria, and

commitment of permanent cleanup to expert agencies, the

Third Circuit was effectively silent. The Third Circuit

opinion does not even mention CERCLA, much less seek to

construe RCRA ‘to respect CERCLA’s policies.

REASONS FOR GRANTING THE PETITION

The Third Circuit’s decision presents important legal

questions about the ability of citizens, including those who

amount to mere concerned bystanders, to secure federal-

court control over sites generally needing cleanup, displacing

the agency-controlled processes and the legislatively and

administratively set policies that otherwise govern this

nationwide task. The decision throws open the doors of the

federal courts to such agency-bypassing suits. It does so

both by weakening the requirements for environmental

.Standing almost to the point of non-existence and by

loosening the standards of RCRA Section 7002 to make it a

general authorization for citizen-provoked environmental |

cleanup. That the decision represents a dramatic change in

existing assignments of responsibility for a complex national

problem cannot reasonably be questioned, as ICO has in

effect acknowledged. Page 1, supra.

The first step in the Third Circuit’s decision was to

find standing (a jurisdictional issue) without satisfaction of

the bedrock requirement of harm caused to plaintiffs’

cognizable interests by the challenged conduct. The court

read Friends of the Earth, Inc. v. Laidlaw Envitl. Servs., Inc.,

528 U.S. 167 (2000), as if it dispensed with any requirement

for standing beyond allegations of concern by those who

15

pass by a polluted site, without proof of any harm from the

identified pollution to the individual plaintiffs in their

activities related to the site. That view all but eliminates the

Article III requirements for environmental standing, and

allows suits by plaintiffs who are effectively mere bystanders

with fears. This Court should correct that reading of

Laidlaw.

The Third Circuit further expanded federal court

cleanup authority, by deciding that whether an endangerment

existed was solely a factual issue, to be reviewed with

maximum deference to the district court and without

required deference to expert agencies. Given the absence of

any statutory definition of “imminent” or “substantial,” the

terms necessarily import policy judgments that are not purely

factual, and when agencies have actually addressed the

matter, their judgments must be given significant deference

in the judicial determination under Section 7002. Mere

“clear error” review fails to assure the presence of the

demanding basis for citizen-suit involvement. The Third

Circuit’s contrary approach throws every site not being

addressed under CERCLA into the isolated hands of

individual district courts at the behest of citizens, in

disregard of agency determinations like those here — by both

EPA and NJDEP -— that, with containment measures in place,

this site required no judicial intervention.

The Third Circuit then further broadened the reach of

judicial authority at the remedy stage of the litigation under

Section 7002, which limits relief to just that “necessary” to

address the endangerment found. The Third Circuit turned

this standard into a license for the district court to seize the

opportunity to clean up the site once and for all. But the

statutory language imports the normal requirement of narrow

tailoring, which supports no more than the relief that will be

abate the imminent and substantial endangerment—here, by

the testimony of the key expert for ICO’s side, no more than

a containment remedy. As important, the fundamental

16

obligation of the courts is to read RCRA Section 7002 in the

context of the surrounding statutes, most notably CERCLA.

Much as in RCRA itself, Congress in CERCLA made plain

its policies about who should control permanent cleanups

(agencies), through what processes (the step-by-step

processes under way at NJDEP but short-circuited by the

ruling here), and under what standards (balancing policies

reflected in CERCLA § 105 and the NCP). The Third

Circuit allowed override of those policies by its loosening of

the remedial standard under the RCRA citizen-suit

provision — available, now, in the face of agency decisions

that a site does not present a need for urgent intervention and

at the behest of almost any concerned citizen.

This Court should review and reverse the Third

Circuit decision, whose several rulings together dramatically

shift power over environmental problems from agencies to

courts by expanding the narrow role properly reserved for

RCRA’s citizen-suit provision, as recognized in other courts.

I. The Decision Eliminates Bedrock Article III Standing

Requirements for Environmental Suits

Article III jurisdiction depends on the fundamental

requirements of standing— concrete, individualized,

cognizable injury that is fairly traceable to the challenged

conduct (not others’ conduct) and likely to be redressed by

success. McConnell v. FEC, 540 U.S. 93, 225-26 (2003). In

this case, the Third Circuit treated this: Court’s decision in

Laidlaw as effectively eliminating in environmental cases

any objective requirement of concrete, individualized,

cognizable injury traceable to the challenged conduct. This

Court should correct that over-expansive reading of Laidlaw

and thus restore standing doctrine’s essential role, in

environmental as much as other cases, in preventing federal

court adjudication based on self-generated subjective

attitudes that lack objective grounding and could be asserted

by virtually any member of the public.

~

17

Laidlaw involved individuals whose recreational

activity in or on a public wilderness waterway-they swam

and waded in the river—and whose aesthetic and economic

interests in this public resources were harmed by the mercury

pollution from the challenged discharges. The Court took

care to note that plaintiffs had “reasonable concerns about

the effects of those discharges.” 528 U.S. at 183-84

(emphasis added).

In the present case, the Third Circuit did not require,

and could not have found, such an objective causal

connection of the pollutants to a cognizable interest of the

plaintiffs in the activities they engage in. The Third Circuit

did not rely on any economic harm to property values,

because plaintiffs proved none. It did not rely on any

aesthetic interest of plaintiffs in the appearance of the site

from beyond its borders: the site, after all, is private

property, and any such interest is subjective and not

individualized. Instead, the Third Circuit relied on two

things: plaintiffs’ “concerns” about their health from merely

walking and biking near the Hackensack River or from

driving, or going to gas pumps, near the Site; and plaintiffs’

statements that they would enjoy walking or biking near the

River “[i]f the river were cleaner.” Pet. App. A9-10.

These two bases are not enough. The Third Circuit

did not require, and could not have found, any actual danger

whatever from going near the River or Property in the ways

plaintiffs do (or would). As to “enjoyment” of the River, the

court-described assertion is on its face inadequate: by its

terms it addresses pollution generally, not chromium from

the Property. And the Third Circuit did not require, and

could not have found, that chromium from the Property

causes the River to Jook or smell worse to walkers and

18

bikers. There is simply no objective causal connection of the

chromium to any health or aesthetic interest.°

In short, the Third Circuit upheld standing without

requiring that the plaintiffs be any more than bystanders with

ungrounded fears. There is nothing objectively founded or

individualized about such a basis for standing, and Laidlaw

did not approve standing in such circumstances. If no more

is required for standing, it is hard to see what is left of

Article III standing in environmental cases.

Although this constitutionally erroneous expansion of

federal court power is sufficient reason for review, the Third

Circuit decision also conflicts with at least Central and South

West Services, Inc. v. EPA, 220 F.3d 683 (Sth Cir. 2000).

The Fifth Circuit there rejected standing of the Sierra Club,

explaining specifically that a member it relied on (to

challenge an EPA rule) “present[ed] no facts to support th[e

expressed] concern” that PCB waste disposed of in his

town’s landfill “may leach from the landfill and somehow

enter the town’s water supply.” Jd. at 700. The court held:

“This subjective concern ... cannot serve as the basis for

Sierra Club’s standing.” Jd.

II. The Decision Improperly Treats “Imminent and

Substantial Endangerment” Simply As a Factual

Issue, Without Deference to Agency Judgments

The Third Circuit’s 2-1 treatment of “imminent and

substantial endangerment” as a purely factual issue meriting

only “clear error” review misunderstands the nature of the

* The court of appeals’ reference to “fishing” (Pet. App. A9-10) was a

statement about would-be activities of someone other than a plaintiff (or,

indeed, any ICO member). Not surprisingly, this statement was not

relied on by the district court in its standing findings. Pet. App.

A204-11. Indeed, there is no evidence that curing any chromium release

from the site here could reasonably lead anyone to fish more (the

evidence of fish harm from chromium in the River is all but nonexistent

and the Hackensack River is so polluted by mercury and other

contaminants that fishing would not take place anyway).

19

issue and strips away the necessary guarantee of a sound

foundation for the kind of massive judicial intervention that

occurred here. The majority upheld such intervention

despite, and without giving significant weight to, the plain

view of two expert agencies— EPA and NJDEP — that the

environmental problems present after interim measures were

in place at the Property did not warrant immediate court

action. Moreover, rejecting the relevance of expert agency

determinations of what risks are substantial, the court failed

to scrutinize the district court’s determination so as to ensure

focused and well-supported findings of the conjunction of

contaminants exceeding applicable levels of serious risk and

imminent exposure at those levels. Deferring only to the

district court and not expert agencies improperly leaves the

critical endangerment determination in the essentially

isolated hands of individual district courts.

As Judge Ambro observed (urging a “mixed question

of law and fact” standard of review), there are at least two

questions here: what are the risks? (factual); are the risks so

immediate and so serious as to be “imminent and

substantial”? (legal). Pet. App. A33. Both components of

the latter question involve policy judgments that are legal

determinations. This Court has construed and applied

“imminent” in various settings. Meghrig, 516 U.S. at 485

(“The meaning of this timing restriction is plain: An

endangerment can only be ‘imminent’ if it threatens to occur

immediately.”); Lujan v. Defenders of Wildlife, 504 U.S.

555, 564 n.2 (1992) (“Although ‘imminence’ is concededly a

somewhat elastic concept, it cannot be stretched beyond its

purpose, which is to ensure ... that the injury is ‘certainly

impending’ ....”). Of particular moment in this case,

whether a risk is “substantial,” though of course involving

facts, plainly requires a policy judgment. Practically ail

sites, like all things, present some level of risk. The required

assessment is determining which are sufficiently great to

demand immediate intervention. On such a matter, expert

20

agencies, when they have made an applicable judgment, are

owed judicial deference; agencies’ larger perspective,

expertise, and responsibilities ensure a more rational

systemic approach to environmental problems.

Such deference would make a large difference here.

The courts below appear to describe a completely different

site from the one evaluated by EPA and NJDEP. EPA

concluded in 1997 that “no conditions on site ... warrant

immediate or emergency action” (CAJA10752), and NJDEP,

after the IRMs had been installed, assigned J/ast priority to

this site and found that the site “did not pose a potential risk

to human health” (CAJA3053). Yet the difference between

the courts’ and agencies’ views is not attributable to any

apparent factual disagreement about sampling results or

‘other underlying facts, but to different policy judgments

regarding environmental risk, a critical Jegal issue. Those

policy judgments are reflected in the NCP factors and the

basic agency goal to “manage risks to acceptable levels.”

They are reflected, too, in the agency insistence on carefully

identifying specific pathways of exposure to contaminants

and evaluating the likelihood of harm in each pathway given

the mode and duration of exposure to the specific level of

contamination. See EPA, Exposure Factors Handbook

(Aug. 1997) (CAJA10243).

Despite the length of its opinion, the district court did

not come close to undertaking the careful exposure-by-

exposure analysis agencies would follow. It instead cooked

up a stew of disparate facts that, stirred together, appeared

frightening. Tossed in the pot together were facts about

contamination without regard to exposure, facts about past

exposures without regard to whether they had been

addressed through IRMs, facts about exceedances of

remediation standards without regard to whether the standard

6

Superfund Risk Assessment, available at http://www.epa.gov/

oswer/riskassessment/risk_superfund.htm.

a a i i lh et Be "

21

was even relevant to the specific exposure, and facts about

contaminant releases from the site without regard to whether

the resulting level or extent of contamination was seriously

harmful. Noticeably absent from the discussion were the

present views of the expert environmental agencies charged

with investigating and cleaning up _ environmental

contamination — and an appreciation of the appropriateness

of the NJDEP’s deliberate step-by-step process for

identifying risks and addressing the inherently complex

problem of 200 chromium sites.’

On review, the Third Circuit gave no deference to the

site-specific agency determinations, or to the normal agency

method for addressing problems like those presented here.

The Third Circuit even repudiated the need to rely on

agency-set standards for the identification of perilous

contamination levels. Given its loose view of the required

inquiry, the Third Circuit did not scrutinize the evidence for

each specific exposure pathway, and it therefore ended up

letting pass the district court’s many mischaracterizations of

the level of risk presented by the site. Pet. App. A 19-24. ®

7 Some context for the complexity of chromium issues is provided by

the 200-page EPA Guidance for Conducting Remedial Investigations and

Feasibility Studies (CAJA6137-322) and by the 167-page proposed

federal rules for workplace exposure to hexavalent chromium, released in

2004. 69 Fed. Reg. 59306-473. The latter analysis is almost entirely

about airborne risks, which present no serious issue for the Property.

8 — For example, the Third Circuit recited the district court’s findings of

rips and holes in the plastic liner and cracks in the asphalt cap (Pet.

App.A20) without noting the undisputed evidence that the rips from wind

damage were repaired in 1992-93, that the repaired plastic liner was then

covered with a geotextile membrane and gravel layer to prevent a

recurrence, that the subsequent small perforations in the liner were

beneath the membrane and gravel, and that the asphalt cracks were

patched. Similarly, the Third Circuit recited the district court’s findings

that hexavalent chromium in the drainage ditches on the site exceeded a

New Jersey standard of 50 parts per billion (id. at A19), and suggested

that trespassers could be harmed by exposure to this water (id. at A21),

22

Had the Third Circuit conducted the required review,

and given due deference to the applicable EPA and NJDEP

determinations, it would have had to reject the endangerment

determination in its entirety or, at a minimum, so narrow any

possible determination that what remained could not support

the massive remedy adopted. It would have seen that there is

no present exposure pathway for human inhalation or

ingestion — necessary for severe harm (like lung cancer) —

and at most a small chance of trespassers suffering the less

severe harm (skin injuries) caused by direct contact. There is

at most a very small chance that aquatic organisms in the

Hackensack River are being harmed by releases of

hexavalent chromium: the river water has never exceeded the

relevant agency-set standard. Only sediment samples raised

an issue under regulatory standards for triggering further

analysis, as Honeywell agreed (Pet. App. A20), but what was

required were (a) a separate determination whether any

effects on sediment-dwelling organisms from chromium was

“substantial” given the River’s other pollutants, the limited

area of sediments potentially affected by the site, and the

absence of reliable studies at the time of trial and (b) what if

any remedy was warranted by the sediment problem alone.

That analysis was not undertaken.

Although the Third Circuit cited decisions in cases

brought by the United States under RCRA Section 7003 (Pet.

App. A14-15), those decisions cannot support its approach to

review of endangerment determinations. Critically, such

cases, unlike citizen suits, are instituted only after EPA, an

expert agency, has made a determination that a site does

present a serious threat demanding immediate intervention.

Indeed, “imminent and substantial endangerment” provisions

in other environmental statutes, are limited to agency-

but failed to note that the 50 ppb standard was for chronic exposure of

aquatic organisms; the relevant standard for human trespassers, in

contrast, is 500 times higher — 25 parts per million (id. at A108), which

was not exceeded.

————————

23

brought suits. E.g., 33 U.S.C. § 1364; 42 U.S.C. §§ 300i,

7603, 9606(a). That pattern reinforces the contextual need to

defer under RCRA Section 7002.

The Third Circuit’s broad authorization of free-

standing district court determinations of “imminent and

substantial endangerment” markedly contrasts with other

circuits’ insistence on keeping the provision limited’ and not

overriding agency determinations.'° The Third Circuit

approach invites citizens to sue under RCRA Section 7002

for almost any property with contamination above

background levels, whether or not an expert agency, acting

pursuant to statutory mandate, believes the site presents a

serious enough threat to warrant immediate intervention.

That approach fundamentally changes the proper backstop

role of RCRA Section 7002.

Ill. The Decision Expands Citizen-Suit Remedies

Beyond What Is “Necessary” to Redress Imminent

Risks, Disregarding Congressional Policy on

Permanent Cleanups and Federal Court Limits

Section 7002(a)(1)(B) authorizes the district court to

issue only orders that are “necessary” to abate any imminent

and substantial endangerment. That standard reinforces the

9 Avondale Fed’l Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 695 (7th

Cir. 1999) (no endangerment when exposure would occur only if

excavation undertaken in the future); Birch Corp. v. Nevada Inv.

Holding, Inc., No. 97-55282, 1998 WL 442982, at **2 (9th Cir. June 29,

1998) (no evidence of imminent endangerment when owner had no plans

for soil excavation or use of groundwater.); Price v. U.S. Navy, 39 F.3d

1011 (9th Cir. 1994) (no endangerment when foundation barrier

prevented exposure); Leister v. Black & Decker (U.S.), Inc., No. 96-

1751, 1997 WL 378046, at **1-3 (4th Cir. July 8, 1997) (no

endangerment when filtration system removed contamination from

drinking water, the most direct exposure pathway, though soil had not yet

been remediated). .

'0 Coalition for Health Concern v. LWD, Inc., 60 F.3d 1188, 1193-96

(6th Cir. 1995) (abstention in light of agency oversight)

24

general narrow-tailoring rule that “federal courts should aim

to ensure ‘the framing of relief no broader than required by

the precise facts’” (Laidlaw, 528 U.S. at 193), which is

especially important to avoid undertaking unwieldy judicial

tasks and short-circuiting state government processes (e.g.,

New Orleans Pub. Serv., Inc. v. Council of City of New

Orleans, 491 U.S. 350, 361 (1989)). And relief must be

narrow to comport with the agency-respecting policies of

Section 7002 itself and of CERCLA. See United States v.

Fausto, 484 U.S. 439, 453 (1988) (courts must get laws “to

‘make sense’ in combination”); United States v. Oakland

Cannabis Buyers’ Co-op., 532 U.S. 483, 497-98 (2001)

(equity must be exercised to respect statutory policy). The

Third Circuit’s approach to remedy violates these basic.

commands. ~ a

A. The Third Circuit authorized a vast injunction

that went far beyond what was “necessary” to abate any

imminent and substantial endangerment. The testimony of

the key remedial expert on respondents’ side and of the

NJDEP project manager established that no more was

needed than a containment remedy, if maintained. Page 11,

supra. That should have been the end of the role for RCRA

Section 7002(a)(1)(B).

Where lesser measures abate the endangerment, a

goal of “permanent” cure exceeds what Section 7002

authorizes. The difference is a matter not just of plain

language and logic, but of nationwide practice. Hundreds, or

thousands, of waste sites have been “capped” (another term

for a “containment” remedy) with responsible agencies

determining that the caps— which, of course, need to be

maintained — are all that is necessary to contain the hazards.

CAJA2595. Indeed, containment is the presumptive EPA-

approved remedy for large-volume sites like municipal

landfills, and it is also the presumptive remedy for sites (like

this one) with metals in soils that cannot practicably be

25

recovered or treated on site.'' The need for continuing

maintenance cannot make a containment remedy insufficient

(so that more is “necessary”) unless the regular practice of

the EPA and state agencies is now to be rejected and all the

sites they have capped are now to be re-opened on the

ground that “human nature being what it is” (Pet. App. A93),

maintenance cannot be trusted.

B. The Third Circuit endorsed the district court’s

disparagement of the NJDEP’s process of dealing with the

Property (among some 200 other chromium sites). That

view of NJDEP, even if accepted, still would not make

maintenance under court supervision insufficient. But, in

any event, even aside from ignoring the presumption of state

agency regularity, and NJDEP’s active and large-scale

enforcement program, ’” the lower courts’ view of the NJDEP

process, and hence the authorized scope of Section 7002

remedial authority, rests on a fundamental disregard of the

nature of the process approved by Congress for the handling

of sites like this one. That process is laid out in CERCLA, as

explained at pages 2-5, supra, which was simply ignored by

the Third Circuit.

Although the lower courts condemned the NJDEP for

its stage-by-stage, study-draft-and-comment process, that is

the prescribed procedure, for good reason, under both federal

and state law. NJDEP could not and should not have

'! See 40 C.F.R. § 300.430(a)(1)(iii)(B), (Pet. App. A250); EPA Office

of Emergency and Remedial Response Presumptive Remedy for

CERCLA Municipal Landfill Sites (1993) (CAJA17397) and Presumptive

Remedy for Metals-in-Soil Sites (1999) (CAJA17341).

12

NJDEP has considerable resources and a well-known commitment to

active remediation. Its budget for 2003-2004 was $206,692,000, with

$45,604,000 for the Site Remediation Program. CAJA17653-54.

NJDEP is a national leader in Brownfields redevelopment. National

Governors Ass’n, New Report by NGA on Brownfields Highlights

Accomplishments in New Jersey, http://www.nga.org/nga/newsRoom/

1,1169,C_PRESS_RELEASE%SED_322,00. html (CAJA17655).

26

dispensed with the process and simply ordered excavation

years ago. And that process takes time if it is to lead to

sound remedial decisions. Illustratively: as of late 1999,

almost 40% of the 711 sites that were added to the NPL

before CERCLA was amended in 1986 were still not

“construction complete.” EPA, Pre-SARA Sites: Analysis of

Why Construction Is Not Yet Complete at Certain Sites

(Draft June 6, 2003) (CAJA17599). By mid-2003, fully 202

still were undergoing investigation and/or remediation. Jd.

As long as any problems requiring immediate

intervention are taken care of— as they were (respondents

and the district court allowed 8 years of pre-trial

proceedings, much of it focused on site-owner Grace’s

commercial interests, without any preliminary relief)— the

process that NJDEP was following (and EPA would have

followed) cannot be condemned. Permanent remediation is

committed to agencies, which properly go about their task in

just the way NJDEP did. To condemn that process as

making a judicial takeover under RCRA “necessary,” as the

Third Circuit did, is to put the entire Superfund program at

risk (given the low thresholds adopted for standing and for

finding an imminent and substantial endangerment).

C. The Third Circuit’s view of the scope of Section

7002 remedial authority fundamentally disregarded not just

the agency processes but also the substantive criteria for

permanent remedies prescribed under CERCLA. Section

105 of CERCLA declares that after the revised NCP was

published (in 1982) the “response to ... hazardous substance

releases shall, to the greatest extent possible, be in

accordance with the [NCP].” The Third Circuit ignored the

elementary judicial duty to ensure that any -“necessary”

remedy under RCRA Section 7002 respect the obviously

pertinent policies adopted by Congress.

Failure to do so— by allowing broad citizen-suit

remedies under RCRA in a case myopically focused on one

site— would make a consistent and coherent national

ee ea ee eeeeaaeeeoeeeoreererrrrror ror

27

environmental policy all but impossible. RCRA cannot be

applied to turn CERCLA policies topsy turvy. If EPA had

found that the Property presented a greater danger than it in

fact found, and had it listed the Property on the NPL,

permanent remediation would have been governed by all the

requirements of the NCP, including the substantive criteria

and the orderly process of decision. The Third Circuit here

approved displacement of the NCP, and adoption of a vastly

increased remedy (which dwarfs virtually all other cleanup

remedies ever adopted), precisely because the site did not

present such a great risk and was not listed on the NPL.

The absence of a disciplined NCP analysis was not

just a technical failing; it had enormous consequences in this

case. As noted regarding EPA’s presumptive remedies, the

NCP’s standards and procedures have led to widespread use

of containment remedies in circumstances like these.

NJDEP likewise has regularly balanced the relevant factors

to adopt engineering and institutional controls, explaining

particularly that excavation is not usually appropriate

because of the limited capacity of land-disposal facilities.

NJDEP, Guidance Document for the Remediation of

Contaminated Soils 13 (1998) (CAJA17445).

The evidence that containment works (with

maintenance), plus the extravagant cost of excavation, would

point powerfully toward containment, not excavation, under

NCP criteria. More generally, such criteria trigger questions

the district court here did not ask. Assuming it would be

better for the few people who might one day reside on the

Property and for some barnacles and clams in the

Hackensack River along the Property’s bulkhead, is it

worthwhile to move over 1,500,000 tons of fill to upstate

New York, Nevada, and/or points in-between (and over

1,500,000 tons of clean fill back onto the Property)?”* Is it

‘3 Treatment and disposal facilities in Alabama, Idaho, Indiana,

Louisiana, Michigan, Nevada, New York, Ohio, Oklahoma, Oregon,

28

better for other Jersey City residents, for motorists, for the

communities where the material will be treated and buried,

for companies and government entities who have a need for

scarce hazardous waste treatment and landfill capacity?

What are the prospects for yet-unknown technological

developments that might eventually allow treatment on site?

These questions are serious ones for the Property. If

excavation takes four years (375,000 tons per year), this site

alone will contribute over seven times New Jersey’s entire

annual 48,000 tons of hazardous waste from environmental

remediation. EPA, The National Biennial RCRA Hazardous

Waste Report Based on 2001 Data (State Detail Analysis)

258 (2003) (CAJA17591). The total of 1,500,000 tons is

more than the entire hazardous waste deposited in offsite

landfills in the country in 2001. Jd. (National Analysis ex.

2.9) (CAJA17582). This site alone, though less threatening

than 1,500 sites on the NPL, will thus consume a substantial

portion of national landfill capacity for several years. And

the excavation process itself inevitably risks injury and

fatality from physical hazards, both on-site and during the

massive transportation process required. For a large site, the

risk to remediation workers and off-site motorists can easily

exceed the health risk from leaving the soil in place and

capping it.'*

The established standard of cost-effectiveness, even

viewed just in dollar terms, also presents a serious issue for

Pennsylvania, Texas, and Utah, and one in Canada, are under

consideration. There-are-no suitable landfills in New Jersey.

'* In a recent quantitative risk comparison regarding a former chemical

manufacturing facility in New Jersey, the total risk from (1) excavation,

transportation, and off-site incineration dwarfed the risk from (2) on-site

containment and capping. Scott, Pittignano, and Finley, Evaluation of

the Physical Hazards Associated with Two Remedial Alternatives at a

Superfund Site, 21 Risk Analysis 53 (2001) (CAJA17755). See also

Gerrard, Safety Hazards in Hazardous Waste Remediation, N.Y.L.J. p.3

(July 26, 2002) (CAJA17751).

29

this site. The injunction here is one of the most expensive

environmental cleanups in history. The average remedial

cost at a non-federal-facility NPL site is $21.8 million, with

remedies at 69% of such sites costing less than $10 million.

Congressional Research Service, Superfund Fact Book 19

(1999) (CAJA17682). These are all sites that EPA has

judged to be more dangerous than the Property. Although

“Honeywell is a large international corporation with

revenues in the billions of dollars” (Pet. App. A173), the fact

is that the remedy compels a $400+ million expenditure of

society’s resources that could be used for other purposes.

See Stephen Breyer, Breaking the Vicious Circle 11-19

(1993) (CAJA17714-22). NCP criteria require such costs to

be justified by a sufficient benefit -— a standard the district

court did not apply, but NJDEP and EPA would have.

In the end, the agency criteria, like the agency

processes, are essential to a coherent approach to site

remediation. A myopic focus on one site unduly invites the

conclusion that it is preferable to excavate all historical

waste material and put it somewhere else. EPA and NJDEP

have the capacity to take a broader view, and make the

necessary policy judgments. The district court’s injunction

improperly displaces the agencies’ processes and criteria.

D. By overextending RCRA authority, the Third

Circuit approved a remedy that invites the _ very

implementation difficulties that other courts have recognized

to be ones federal courts should try to avoid. See Original

Great Am. Chocolate Chip Cookie Co.v. River Valley

Cookies, Ltd., 970 F.2d 273, 277 (7th Cir. 1992); NRDC v.

EPA, 966 F.2d 1292, 1300 (9th Cir. 1992). As the Seventh

Circuit ruled in Cookie, “[c]Jourts should be, and generally

are, reluctant to issue ‘regulatory’ injunctions that is,

injunctions that constitute the issuing court an ad hoc

regulatory agency to supervise the activities of the parties.”

970 F.2d at 277 (collecting cases). See NRDC, 966 F.2d at

1300 (“Injunctive relief may be inappropriate where it

30

requires constant supervision .... While recognizing the

importance of the interests involved, we nevertheless decline

to engage in the active management of such a remedy.”).

The injunction here breaches that principle. The

district court had to create its own administrative agency for

implementation, which is requiring resolution of numerous

scientific, technical, legal, and policy issues concerning, e.g.,

excavation, transportation, treatment, and disposal of over

1,500,000 tons of soil; deep-groundwater remediation; and

sediment remediation. Senator Torricelli and his staff have

to develop technical expertise already present at NJDEP.

RCRA’s standard for relief— what is “necessary” — cannot

properly be stretched to authorize such a departure from the

proper role of the federal courts.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Richard G. Taranto Thomas H. Milch*

Farr & Taranto Joel M. Gross

1220 19th Street, NW Mary Gabrielle Sprague

Suite 800 Arnold & Porter LLP

Washington, DC 20036 555 Twelfth St., N.W.

(202) 775-0184 Washington, DC 20004

(202) 942-5000

Katherine L. Adams

Thomas Byrne

Honeywell International Inc.

101 Columbia Road

Morristown, NJ 07962

(973)-255-2000

*Counsel of Record

May 18, 2005