New Jersey Cleanup Laws May be Trumped Again by Federal Citizen Suit

May 8, 2010
by BRUCE KATCHER
Client Alert Newsletter May 2010

In Interfaith Community Organization Inc. (ICOI) v. PPG Industries, Inc., a New Jersey citizen's group has fended off a challenge to its use of a federal citizen suit under the imminent and substantial endangerment provision of the federal Resource Conservation and Recovery Act ("RCRA") to secure a more stringent remedy than was agreed to between the New Jersey Department of Environmental Protection ("NJDEP”) and the responsible party under state cleanup laws. The cleanup was embodied in a state court consent judgment entered at the time the federal suit was filed. In its decision, the court denied PPG’s motion for summary judgment or alternatively for abstention or a stay.

At the time the suit was filed, PPG and NJDEP had just concluded negotiations over the consent judgment, entered in a case filed by NJDEP in 2005, which required the remediation of chromium wastes at multiple former chromium production sites, including a site on Garfield Street in Jersey City (the "Site"). The consent judgment required a cleanup of soils and sources of contamination in compliance with all applicable statutes, laws, and regulations, including the NJDEP's Chromium Policy, pursuant to which the most stringent cleanup level was 20 parts per million (ppm). Among other things, NJDEP released its RCRA claims against PPG.

In its suit, the citizens group alleged an imminent and substantial endangerment pursuant to RCRA at the Site, and, according to the court, sought full delineation of chromium hazards, permanent removal of all contaminated soils, remediation of indoor air contamination and complete remediation of contaminated groundwater. Plaintiffs apparently took the position that the 20 ppm soil remediation standard was inadequate and that a standard of 1 ppm, as reflected in a NJDEP risk assessment for hexavalent chromium finalized in April 2009, was the appropriate standard.

PPG asserted multiple grounds why the federal court should defer to the state consent judgment and dismiss the suit, including mootness, res judicata and full faith and credit or, in the alternative, abstain from taking jurisdiction of or stay the suit. The court rejected each of PPG's assertions. In summary, it found that in allowing a citizen suit under RCRA, (1) Congress had afforded plaintiffs a remedy that was not available in state court, (2) that the federal courts had exclusive jurisdiction over such an action, which was therefore not precluded by a state court consent judgment, and (3) that the policies underlying abstention (primarily the desirability of avoiding piecemeal litigation and the disruption of an important and complex state regulatory scheme or deferring to administrative bodies with special competence) were not so compelling or clearly applicable as to support the dismissal of the case.

ICOI v. PPG is somewhat reminiscent of the 2005 decision in ICOI v. Honeywell International, Inc. In that case, ICOI successfully used RCRA to require Honeywell to implement a large scale soil excavation remedy in lieu of a remedy using engineering and institutional controls, implementation of which had allegedly been long delayed by the responsible party. While the ultimate outcome of ICOI v. PPG has yet to be determined, the court acknowledged that PPG could ultimately be subject to a more stringent remediation standard than applies under the consent judgment. While it viewed the potential for inconsistent remedies as "not a significant concern," it does appear to present a significant concern to PPG, which must decide how to proceed under its state consent judgment in view of the possibility of a different federal outcome. To further confuse matters, the NDJEP announced last June that it would initiate the process of developing a new final soil remediation standard for chromium at the start of 2010, and it is unclear how or whether that process will proceed under the new administration and how the outcome, if any, might affect the remedy agreed to by PPG under the consent judgment.

While the outcome of ICOI v. PPG may be largely dictated by ICOI v. Honeywell, it is troubling that the federal district court was prepared to second guess the outcome of NJDEP’s remedy determination, which was embodied in a court order entered contemporaneously with the filing of ICOI's citizen suit. If anything, the case suggests using extreme caution in attributing finality to an NDJEP remedy determination where there is a realistic risk of a federal citizen suit being brought to secure a more stringent remedy.