DELAWARE RIVERKEEPER NETWORK v. SOIL SAFE, INC.
1:14-cv-01349
D.N.J.Jun 30, 2017Background
- Plaintiffs (Delaware Riverkeeper Network and its Riverkeeper) sued Soil Safe under RCRA § 7002(a)(1)(B) after Soil Safe recycled petroleum-contaminated soils at a Logan Township facility and placed its product as engineered fill/ caps at three End Market Sites (Logan Equine Park, Birch Creek, Gloucester County Park).
- Soil Safe operates under an NJDEP Class B Recycling Permit, requires generator sampling and Material Characterization Reports, screens incoming loads, subjects product to onsite processing (blending, screening, pugmill with cement kiln dust (CKD) additive), and performs sampling/QA before placement at the County Park.
- Plaintiffs contend Soil Safe is actually discarding/abandoning contaminated soil (i.e., creating RCRA “solid waste”) and that soil/product has eroded or migrated, posing an imminent and substantial endangerment to nearby waterways (Birch Creek, Raccoon Creek, and the Delaware River).
- The court heard dueling experts on recycling practice and ecological risk; Plaintiffs’ off-site sampling was sparse (three sediment samples) and their ecological experts did not perform NJDEP/USEPA-tiered ecological risk assessments or establish background levels; Soil Safe presented more extensive sampling, regulatory oversight, and expert testimony that the product is recycled and not an imminent/substantial threat.
- After a four-day bench trial, the district court found Plaintiffs did not prove by a preponderance that Soil Safe’s product is a RCRA solid waste or that it may present an imminent and substantial endangerment, and entered judgment for Soil Safe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Soil Safe’s product is a “solid waste” under RCRA | Soil Safe is "putting lipstick on a pig": recycled soil is actually discarded/abandoned when used as caps or when it migrates off-site | Product is legitimately recycled/beneficially reused for remediation; process, testing, permits, and engineering use show no abandonment | Product is not a RCRA "solid waste" — Court finds Soil Safe recycled material for remediation, not discarded |
| Whether any off-site migration renders product "discarded" | Even if initially used, product that erodes/migrates is abandoned and becomes solid waste | Incidental/expected loss from legitimate use does not convert a beneficially used material into discarded waste; erosion control and site controls in place | Migration evidence insufficient and not shown to reflect abandonment; incidental release does not automatically create solid waste |
| Whether the product "may present an imminent and substantial endangerment" | Presence of toxics in Plaintiffs’ limited sediment samples shows potential imminent/substantial danger to aquatic ecology | Plaintiffs’ sampling and expert analyses are inadequate (too few samples, no background, no ecological risk assessment); NJDEP guidance and Soil Safe evidence do not show substantial/imminent risk | Plaintiffs failed to prove an imminent and substantial endangerment; expert evidence insufficient and unconvincing |
| Causation / Contribution to alleged endangerment | Soil Safe’s operations and stockpiles contributed contaminants to Birch/Raccoon Creek | Historic dredge spoil and ubiquitous local contaminants explain findings; no nexus shown between Soil Safe product and off-site samples | Plaintiffs did not prove Soil Safe contributed to any endangerment; lack of background data and physical mismatch undermined causation |
Key Cases Cited
- Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (standing requires showing recreational/aesthetic injuries tied to defendant's conduct)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (limits on ecosystem nexus standing)
- Interfaith Cmty. Org. v. Honeywell Int’l, 399 F.3d 248 (3d Cir. 2005) (associational standing and RCRA context)
- Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) (overview of RCRA's purpose governing hazardous/solid waste)
- Am. Mining Cong. v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) (interpretation of "discarded" in RCRA context)
- Ecological Rights Foundation v. Pac. Gas & Elec. Co., 713 F.3d 502 (9th Cir. 2013) (materials used for intended beneficial purpose are not automatically RCRA "solid waste")
- Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305 (2d Cir. 1993) (abandoned materials left after use can be solid waste)
- Oklahoma v. Tyson Foods, 565 F.3d 769 (10th Cir. 2009) (analysis of contribution and beneficial use in solid-waste context)
- Bennett v. Spear, 520 U.S. 154 (1997) (traceability principle for standing)
- Crandall v. City & Cty. of Denver, 594 F.3d 1231 (10th Cir. 2010) (limits on the reach of RCRA’s permissive "may" language)