UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ) ) ) ) ) ) ) Electronically Filed ) ) ) ) ) ) ) ) ) )

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1 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY INTERFAITH COMMUNITY ) Electronically Filed ) ORGANIZATION, et al. ) Return Date: Nov. 16, 2015 Plaintiffs, ) ) v. ) Civ. No (JLL) ) HONEYWELL INTERNATIONAL INC., et al ) ) Defendants ) HACKENSACK RIVERKEEPER, INC., et al. v. Plaintiffs, HONEYWELL INTERNATIONAL INC., et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civ. No (Consolidated with Civ. No ) All Actions Consolidated Under Civ. No (JLL) PLAINTIFFS BRIEF IN SUPPORT OF THEIR MOTION TO ENFORCE THE NJCU CONSENT DECREE Edward Lloyd (EL 2633) Columbia Law School 435 West 116th Street, Room 831 New York, NY October 23, 2015 Bruce J. Terris Kathleen L. Millian Alicia C. Alcorn Terris, Pravlik & Millian, LLP th Street, N.W. Washington, DC Counsel for Plaintiffs

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ii TABLE OF EXHIBITS... iii INTRODUCTION... 1 ARGUMENT... 7 I CONSTRUCTION OF BUILDING 6 IN THE CAPPED AREA VIOLATES THE NJCU CONSENT DECREE... 7 II A SPECIAL MASTER SHOULD BE APPOINTED TO OVERSEE THE REMAINING IMPLEMENTATION OF THE NJCU CONSENT DECREE...14 A. NJDEP S LIMITEDAUTHORITY UNDER PARAGRAPH 108 DOES NOT SUPERCEDE THIS COURT S AUTHORITY TO ENFORCE THE DECREE AND APPOINT A SPECIAL MASTER...21 B. IF THE COURT PERMITS CONSTRUCTION OF BUILDING 6 IN THE CAPPED AREA, THE SPECIAL MASTER SHOULD MAKE RECOMMENDATIONS TO THE COURT CONCERNING THE TECHNICAL ISSUES ASSOCIATED WITH SUCH CONSTRUCTION...25 C. THE SPECIAL MASTER SHOULD MAKE RECOMMENDATIONS TO THE COURT CONCERNING THE IMPLEMENTATION OF THE SHALLOW GROUNDWATER REMEDY...26 D. THE SPECIAL MASTER SHOULD OVERSEE COMPLETION OF LONG-OVERDUE REQUIRED DOCUMENTS THAT ARE DESIGNED TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT...32 CONCLUSION...35 i

3 TABLE OF AUTHORITIES Page(s) Cases Cronin v. Browner, 90 F. Supp. 2d 364 (S.D.N.Y.) Interfaith Community Organization v. Honeywell Int'l, Inc., 263 F. Supp. 2d 796 (D.N.J. 2003), affirmed, 399 F.3d 248 (3d Cir. 2005) Local 28 of Sheet Metal Workers International Ass n v. Equal Employment Opportunity Commission, 478 U.S. 421 (1986) National Organization for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536 (9th Cir. 1987) United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990) Other Authorities Rule 53 of the Federal Rules of Civil Procedure... 15, 16, 18, 19 ii

4 Exhibit No. Description TABLE OF EXHIBITS 1 New Jersey City University Consent Decree, January 21, 2010, ECF No Affidavit of Kathleen L. Millian 3 Affidavit of Benjamin Ross, Ph. D. 4 Reply to Comment Response on Head Monitoring Study, NJCU Property, Study Area 5, Sites 90 and 184 ( Shallow Groundwater Gradient Proposal ), dated June 19, Draft Long Term Monitoring Plan, Study Area 5, New Jersey City University, Section Commercial AOC Groundwater Levels and Quality [Excerpt], dated September Draft Proposed Triggers for Operation of the SA-5 Contingent Groundwater Extraction and Treatment System, NJCU West Campus Commercial Area, dated September Letter from Robert Wayne to Kathleen Millian, Re: NJCU Consent Decree Six Month Look Ahead Schedule Period of October 2015 thru March 2016, dated September 28, from Alicia Alcorn to Jeremy Karpatkin and Robert Wayne, Re: NJCU CD Status Report to the Court, dated October 2, Letter from John Morris to NJDEP, Re: NJDEP Review of Worker Training Manual, Long Term Monitoring Plan and Shallow Groundwater Trigger Document for New Jersey City University Remediation, dated October 16, NJCU West Campus Development Plan, dated September NJCU Redevelopment Plan, dated January 27, 2010 iii

5 Exhibit No. Description 12 NJ.com article entitled Jersey City Building Boom Coming to NJCU Campus with $350M Plan, September 3, from Jeremy Karpatkin to Alicia Alcorn, Re: Disturbance of Chromium Remedy in NJCU Parking Lot, dated June 5, from Jeremy Karpatkin to Alicia Alcorn, Re: NJCU Liner Repair, dated July 18, NJCU Commercial AOC Cap Disturbance December 2013 Root Cause Analysis, dated August 4, Letter from Alicia Alcorn to Jeremy Karpatkin and Robert Wayne, Re: NJCU Consent Decree Chromium Remedy Breach, dated June 3, Letter from Alicia Alcorn to Robert Wayne, Re: NJCU Consent Decree Chromium Remedy Breach, dated June 19, from Robert Wayne to Alicia Alcorn, Re: Riverkeeper Request for Information, dated July 17, from Robert Wayne to Alicia Alcorn, Re: Response to Letter, dated July 24, 2014 iv

6 INTRODUCTION Plaintiffs once again seek to have this Court enforce the terms of the Consent Decree Regarding Remediation of the New Jersey City University Redevelopment Area ( NJCU Consent Decree ), 1 as a result of the University s insistence on developing the NJCU West Campus property in a manner that violates the requirements of the decree. As this Court is aware, only two months ago, in order to prevent NJCU and Honeywell from violating the NJCU Consent Decree by penetrating the cap for the installation of a traffic light, plaintiffs had to seek emergency enforcement of the NJCU Consent Decree. Plaintiffs Emergency Motion to Enforce the NJCU Consent Decree, Aug. 12, 2015, ECF No After plaintiffs filed their emergency motion, NJCU modified its construction plan so that it would not penetrate the cap. Brief of Defendant New Jersey City University in Opposition to the Emergency Motion of Plaintiffs Hackensack Riverkeeper, Inc., William Sheehan, Reverend Winston Clark, and Lawrence Baker to Enforce the NJCU Consent Decree, Sept. 2, 2015, ECF. No Now, with Honeywell s support, NJCU plans to allow a commercial developer to 1 ECF No. 302 in D.N.J. Docket No A copy of the decree is attached as Plaintiffs Exhibit 1. 1

7 construct Building 6 within the NJCU Commercial AOC in violation of the NJCU Consent Decree and again plans to penetrate the cap. 2 The NJCU Consent Decree provides for two areas of remediation that are relevant to this motion. The first is the Residential Area of Concern ( AOC ). NJCU Consent Decree, Pl. Ex. 1, Article III, Section B. The chromium contamination in this area was remediated to the level that permits residential and educational usage of the land. Pl. Ex. 1, para. 72. The second area is the Commercial AOC. Pl. Ex. 1, Article III, Section C. The chromium contamination in this area was left in place and covered with an engineered, multi-layered cap designed to isolate the contamination and prevent contact with it. 3 Pl. Ex. 1, para. 74. The Residential AOC and the Commercial AOC are entirely different areas of the NJCU West Campus site as can be seen in Exhibit A to the NJCU Consent Decree. Under the NJCU Consent Decree, Building 6 is to be constructed wholly within the Residential AOC. Pl. Ex. 1, Article III, and Exhibits A and B. This means Building 6 is to be outside of the capped area and cannot be built so as to 2 NJCU s plans for the commercial development of portions of the West Campus are described in a press article entitled Jersey City Building Boom Coming to NJCU Campus with $350M Plan, which was published by NJ.com on September 3, See Pl. Ex12. 3 For simplicity in this motion, we refer to this area as the cap or capped area. 2

8 penetrate the cap. NJCU s plan for Building 6 violates the NJCU Consent Decree because it intends to build part of the building over the capped area and, in so doing, to penetrate the cap. Pl. Ex. 7. Honeywell and NJCU maintain that Building 6 can be built in the capped area and penetrate the cap. Honeywell Status Letter, Oct. 5, 2015, ECF No. 1342, pp. 3-4; NJCU Status Letter, Oct. 5, 2015, ECF No. 1341, pp In addition to the dispute regarding Building 6, plaintiffs, Honeywell, and NJCU have been unable to resolve the disputes related to the shallow groundwater gradient and the documents required by the NJCU Consent Decree. These disputes were previously put before this Court in Plaintiffs Emergency Motion to Enforce the NJCU Consent Decree (ECF No. 1326). That motion was withdrawn on October 21, 2015 (ECF No. 1346), in order to present all current disputes regarding the NJCU Consent Decree in a single motion that provides the latest facts concerning the parties disputes. The NJCU Consent Decree requires that the shallow groundwater remedy maintain an inward gradient, i.e., an inward flow of groundwater. Pl. Ex. 1, paras. 86(c), 99(g). The inward gradient requirement was adopted in order to ensure that no contaminated groundwater from beneath the cap escapes into the clean areas outside the cap. Affidavit of Benjamin Ross, Ph. D., Pl. Ex. 3, paras

9 After three years of negotiations regarding the shallow groundwater gradient issues, on June 19, 2015, plaintiffs submitted a proposal to Honeywell to resolve the protracted dispute between the parties. Pl. Ex. 4. On September 4 and 15, 2015, after plaintiffs filed their initial motion to enforce, Honeywell met with plaintiffs and their hydrogeology expert, Dr. Benjamin Ross, to discuss plaintiffs June 19 proposal. During the September 15 meeting, Honeywell informed plaintiffs that Honeywell accepted plaintiffs June 19 groundwater proposal, and that Honeywell would submit a revised Long Term Monitoring Plan ( LTMP ) and Trigger Document memorializing the agreement. Ross Aff., Pl. Ex. 3, para. 12. On September 29, 2015, Honeywell submitted the revised LTMP and Trigger Document. Pl. Exs. 5, 6. The revised LTMP and Trigger Document differ almost entirely from plaintiffs June 19 proposal which Honeywell had agreed to at the September 15 meeting. Ross Aff., Pl. Ex. 3, para. 13. Plaintiffs and Honeywell continue to have multiple disputes regarding shallow groundwater. The details of the disputes are addressed in Part IIC, below. In the same time period, plaintiffs learned of NJCU s plan to allow the construction of Building 6 partially within the capped area. On September 28, 2015, plaintiffs received a letter from NJCU which states in relevant part (Pl. Ex. 7): 4

10 Block 6 Commercial Development * * * Construction of this project is expected to commence in the Spring of * * * This work will take place largely in the Residential AOC and Commercial AOC, and a portion of this work will impact the capped area. The pile work will be located below all of the caps[ 4 ] in this area and will require penetration and sealing around the liner[ 5 ] in the Commercial Area of Concern. On September 30, 2015, plaintiffs, NJCU, and Honeywell met in order to discuss the provisions to be included in the LTMP and the Worker Training Manual ( WTM ), documents required by the NJCU Consent Decree. Affidavit of Kathleen L. Millian, Pl. Ex. 2, para. 5. During the September 30 meeting, some progress was made in regard to narrowing the remaining disputes with respect to the LTMP and the WTM. Ibid. However, significant work remains to be done. Ibid. On October 2, 2015, plaintiffs informed Honeywell and NJCU that the intended construction of Building 6 in the capped area is not permitted under the decree and that Building 6 must be constructed wholly outside of the capped area. Pl. Ex. 8. Plaintiffs October 2 notice also stated that if NJCU and Honeywell refuse to change the construction plans for Building 6 that further negotiations concerning the terms of the LTMP and WTM would not be useful without 4 The use of the plural likely relates to the fact that the Residential AOC includes a soil cap over the non-chromium contamination that was remediated at about the same time as the chromium contamination. Pl. Ex. 1, paras. 14, Liner is another term used to refer to the engineered cap. 5

11 direction from the Court regarding whether Building 6 must be constructed wholly outside of the capped area. Ibid. NJCU and Honeywell both maintain that the Commercial Area cap may be breached for the construction of Building 6. ECF Nos. 1341, Invoking paragraph 108(b) of the NJCU Consent Decree, Honeywell referred the disputes regarding the shallow groundwater gradient, LTMP, and WTM to NJDEP on October 16, Pl. Ex. 9, pp Honeywell also seeks NJDEP review of the proposal to construct Building 6 in the NJCU Commercial AOC. Id., p. 6. However, as addressed in detail below (pp ), NJDEP does not have the authority under the NJCU Consent Decree to resolve disputes between the parties. Moreover, the issues of whether Building 6 may be built in a way that causes a breach of the cap and the shallow groundwater gradient dispute are not within the defined list of documents that may be submitted to NJDEP under paragraph 108(b). Only the Court has the jurisdiction and authority to resolve these disputes and enforce the terms of the NJCU Consent Decree. Pl. Ex. 1, para Plaintiffs seek an order from this Court enjoining NJCU from violating the NJCU Consent Decree with regard to its construction of Building 6. Plaintiffs also seek an order appointing Senator Robert G. Torricelli as Special Master. Senator Torricelli currently serves as Special Master with respect to Financial Assurances 6

12 under this decree. See Pl. Ex. 1, para. 109; see also ECF Nos. 995, 996. Plaintiffs seek to have him serve as Special Master overseeing the implementation of all other aspects of the NJCU Consent Decree for a term commensurate with his appointment as Special Master under the other consent decrees related to the chromium contamination remediation at Study Areas 6 and 7. 6 ARGUMENT I CONSTRUCTION OF BUILDING 6 IN THE CAPPED AREA VIOLATES THE NJCU CONSENT DECREE The construction of Building 6 in the capped area violates the NJCU Consent Decree and is therefore prohibited. The NJCU Consent Decree was developed on the basis of three core documents: the July 2007 Final Supplemental Remedial Action Work Plan for Study Area 5, NJCU Redevelopment ( RAWP ); the February 9, 2005, NJCU 6 Senator Torricelli has been appointed as the Special Master to oversee the chromium contamination remediation in five other consent decrees or orders in the consolidated litigation. They are: First Amended Consent Decree Regarding Remediation and Redevelopment of Study Area 6 North (ECF No. 435 in docket ); First Amended Consent Decree Regarding Remediation and Redevelopment of Study Area 6 South (ECF No. 434 in docket ); Consent Decree Regarding Remediation of the Study Area 5 Shallow Groundwater and the Site 79 Residential Properties (ECF No. 303 in docket ); First Amended Consent Order on Sediment Remediation and Financial Assurances (ECF No. 1189); and Deep Overburden and Bedrock Groundwater Remedies Consent Order (ECF No. 898). In each of these instances, Senator Torricelli oversees all aspects of the remediation required by the particular decree. 7

13 Redevelopment Plan ( Redevelopment Plan ); 7 and the October 23, 2007, NJCU Development Plan ( 2007 Development Plan ). The decree requires compliance with the RAWP and the 2007 Development Plan. Pl. Ex. 1, para. 66. Moreover, the decree states that The parties recognize that implementation of the Chromium Remedy must be coordinated with the NJCU Redevelopment Plan and the NJCU Development Plan (emphasis added). Id., para Figure 6A from the RAWP is used to define the Residential AOC and the Commercial AOC (the capped area) and is attached to the NJCU Consent Decree as Exhibit A. 8 Pl. Ex. 1, paras. 5, 34. The 2007 Development Plan is attached to the decree as Exhibit B and is used in various places throughout the decree to specify particular development during the various phases of redevelopment of the 7 Paragraph 23 of the NJCU Consent Decree states that NJCU Redevelopment Plan shall mean the New Jersey City University West Campus Redevelopment Plan approved on February 9, 2005, and any approved amendments thereto. Pl. Ex. 1, para. 23. The Redevelopment Plan has been amended twice since February 9, 2005 once on February 13, 2008, and again on January 27, See Pl. Ex. 11. In this brief, all specific references to the requirements and limitations of the Redevelopment Plan are to the plan as amended January 2010, which is attached as Plaintiffs Exhibit The NJCU Consent Decree entered as ECF No. 302 does not have the exhibits attached. The exhibits to the NJCU Consent Decree are attached to the proposed decree submitted to the Court by the parties as ECF No. 298 in docket Exhibit A is ECF No and is included in Plaintiffs Exhibit 1. 8

14 NJCU West Campus. 9 See id., paras. 20, These documents show that Building 6 is wholly within the Residential AOC, not the capped area. Pl. Ex.1, Exhibits A and B; Pl. Ex. 11, p. b2. In contrast, Building 7 is the only potential future development in the capped area other than parking lots. Ibid. All of the terms of the Consent Decree were developed to reflect the remediation and future development shown in the RAWP, 2007 Development Plan, and the Redevelopment Plan. The terms of the NJCU Consent Decree, in particular, Article III, Section C regarding the Commercial AOC Soil Remedy, show that the only anticipated permissible development in the Commercial AOC is the installation of a parking lot and the construction of Building 7. Paragraph 75 of the decree requires installation of a parking lot in the capped area in the period before NJCU constructs a building identified as Building 7 in Phase II of the NJCU Development Plan. Pl. Ex. 1, para 75. In the event that Building 7 is constructed, paragraph 76 places strict requirements regarding the 9 The NJCU Consent Decree entered as ECF No. 302 does not have the exhibits attached. The exhibits to the NJCU Consent Decree are attached to the proposed decree submitted to the Court by the parties as ECF No. 298 in docket Exhibit B is ECF No and is included in Plaintiffs Exhibit 1. 9

15 design, additional required remediation, and procedures related to incorporation of the building into the cap to repair the penetration of the cap. 10 Id., para. 76. Paragraph 127 establishes financial assurances for the costs of coordinating the cap repair and replacement with the construction of a commercial building in Lot 7 pursuant to paragraph 76. Pl. Ex. 1, para Paragraph 76 provides for the construction of Building 7. Thus, the only development in the capped area that is allowed under the NJCU Consent Decree is Building 7. If Building 6 had not been restricted to the Residential AOC under the terms of the decree, the NJCU Consent Decree would have included provisions for Building 6 similar to the ones for Building 7. NJCU s plan for Building 6 is a blatant attempt to change unilaterally the terms of the NJCU Consent Decree. On September 28, 2015, with its letter notifying plaintiffs of the plan for Building 6 (Pl. Ex. 7), NJCU also submitted a revised NJCU Development Plan, dated September 11, 2015 ( 2015 Development Plan ) (Pl. Ex. 10). As we show below (p ), the 2015 Development Plan is inconsistent with the 2007 Development Plan and the Redevelopment Plan. NJCU 10 Paragraph 77 provides NJCU with the right to require full remediation of the capped area to allow for unrestricted use of this area (i.e., excavation and off-site disposal of the chromium contamination that is currently under the cap). 10

16 does not have the right to change unilaterally the 2007 Development Plan or the Redevelopment Plan. The Redevelopment Plan was approved and adopted by the Jersey City Planning Board and the Municipal Council of the City of Jersey City. Pl. Ex. 11, pp. a1, e1. The Redevelopment Plan is the master plan for all development at the NJCU West Campus and was designed so that the chromium remediation has been incorporated into the planning and design, thereby mitigating any negative impact to buildings and users of the site. Id., p. a1. The Redevelopment Plan specifies the redevelopment of the project area and the requirements and restrictions with respect thereto [and] shall be in effect for a period of fifty (50) years from the date of approval of [the] plan by the City Council of the City of Jersey City. Id., p. e6. The 2007 Development Plan is based on the Redevelopment Plan and it documents the phasing of the NJCU West Campus development. Pl. Ex. 1, paras. 75, 76. The 2007 Development Plan establishes the West Campus development allowed under the NJCU Consent Decree. Id., paras. 20, 66. The NJCU Consent Decree requires compliance with the 2007 Development Plan. Id., para. 66. The 2015 Development Plan is inconsistent with both the 2007 Development Plan and the Redevelopment Plan. Compare Pl. Ex. 10 with Pl. Ex. 1, Exhibit B and Pl. Ex. 11, p. b2. Both the 2007 Development Plan and the Redevelopment 11

17 Plan show Building 6 located wholly within the Residential AOC. Pl. Ex.1, Exhibit B; Pl. Ex. 11, p. b2. No part of Building 6 is located within the capped area. In contrast, the 2015 Development Plan shows Building 6 spanning from the Residential AOC into the capped area. Therefore, construction of Building 6, as shown in the 2015 Development Plan, is a violation of the NJCU Consent Decree. In addition to being a violation of the NJCU Consent Decree, the revisions in the 2015 Development Plan are also a violation of the Redevelopment Plan. The Redevelopment Plan cannot be modified or deviated from without the explicit approval of the Jersey City Planning Board. Pl. Ex. 11, pp. e1, e5, e6. The Redevelopment Plan specifies strict limits on granting any variations to the plan. Ibid. Therefore, any modification of the development approved in the Redevelopment Plan that has not been explicitly approved by the Jersey City Planning Board is a violation of the Redevelopment Plan. The Redevelopment Plan also specifies that Building 6 shall be used for academic, fieldhouse, parking, and retail uses, and that commercial use is optional. Pl. Ex. 11, p. f7. However, under the NJCU Consent Decree, academic use is prohibited in the capped area. Pl. Ex. 1, para. 87. This means that if Building 6 is allowed to straddle the Residential AOC and the capped area, it is likely that the future uses of Building 6 will violate the use restrictions placed on the capped area. The reason for this is simply that people and institutions tend to have very short 12

18 memories and will likely forget that Building 6 has restricted uses because it is partially constructed in the Residential AOC where use is not restricted. 11 This is particularly so in this case because NJCU apparently would prefer to ignore the restrictions placed on the use of the West Campus due to the contamination. Moreover, NJCU has violated the NJCU Consent Decree by attempting unilaterally to modify the 2007 Development Plan. Paragraph 77 does allow NJCU to amend the 2007 Development Plan, which is Exhibit B to the decree. However, it only permits such amendment to provide for full remediation of the capped area to allow for unrestricted use (i.e., excavation and off-site disposal of the hexavalent chromium contamination that remains under the cap). Pl. Ex. 1, 11 The short memory of people and institutions has already been exhibited by NJCU during the initial stage of the West Campus development work. Less than two years after the entry of the NJCU Consent Decree and the implementation of the Chromium Remedy, NJCU failed to notify its contractors about the capped area and the need to take protective measures in order to ensure the integrity of the capped area. Pl. Ex. 15, pp. 3-4; see also Millian Aff., Pl. Ex. 2, para. 8. NJCU also forgot to notify plaintiffs of the planned disturbances to the capped area, as required by paragraph 104 of the NJCU Consent Decree. Pl. Ex. 16. In addition, Honeywell failed adequately to review construction plans and oversee development work in the capped area as required by the NJCU Consent Decree. Pl. Ex. 15, pp As a result, by the end of 2013, the cap had been unintentionally and unknowingly penetrated at least 11 times. Pl. Exs These failures are also due to the lack of a Worker Training Manual and a Long Term Monitoring Plan. Honeywell s failure to have these critical materials in place in a timely manner, and the need for a Special Master to oversee completion of these materials, is addressed in Part IID below. 13

19 para. 77. It does not allow such amendment to make the provisions less protective such as for the construction of Building 6 in the capped area. Ibid. Construction of Building 6 in the capped area violates Article III of the NJCU Consent Decree and should be prohibited by this Court. II A SPECIAL MASTER SHOULD BE APPOINTED TO OVERSEE THE REMAINING IMPLEMENTATION OF THE NJCU CONSENT DECREE Paragraph 110 of the NJCU Consent Decree specifically reserves the right of plaintiffs to seek the appointment of a Special Master (Pl. Ex. 1): [A]ny Party has the right to seek appointment of a Special Master to oversee the implementation of this Consent Decree, in whole or in part, including referral of supervision of this Consent Decree to the Special Master who has been appointed to oversee implementation of the Study Area 6 North and Study Area 6 South Consent Decrees * * *. No Party shall seek appointment of a Special Master until such time as it or another Party seeks resolution by the Court of a matter under this Consent Decree. As set forth below, there are numerous disputes between the parties regarding the implementation of the NJCU Consent Decree that the plaintiffs submit to the Court for resolution. Specifically, plaintiffs seek to have the Court resolve the dispute regarding whether construction of Building 6 in the capped area is a violation of the NJCU Consent Decree. There are also the continuing disputes regarding the shallow groundwater gradient, the LTMP, and the WTM. The groundwater disputes fall into two 14

20 primary categories: (1) disputes regarding compliance with the Consent Decree requirement to ensure that an inward gradient is maintained; and (2) disputes regarding the shallow groundwater requirements and obligations to be set forth in the LTMP. The LTMP and WTM disputes involve disagreements over which obligations and requirements will be included in the documents in order to ensure the protection of the Chromium Remedy and workers, and disputes regarding the specific language and wording of various provisions in the documents. Since the parties have been unable to resolve these disputes in a reasonable amount of time, plaintiffs request that the Court appoint a Special Master to resolve these disputes and administer the decree going forward. As shown below, both the NJCU Consent Decree and Rule 53 of the Federal Rules of Civil Procedure support appointment of a Special Master in these circumstances. Plaintiffs urge the Court to appoint Senator Robert G. Torricelli as Special Master. Senator Torricelli currently serves as Special Master under this decree with respect to Financial Assurances. See Pl. Ex. 1, para. 109; see also ECF Nos. 995, 996. Plaintiffs hereby seek to have him serve as Special Master overseeing the implementation of all other aspects of the NJCU Consent Decree for a term commensurate with his appointment as Special Master under the other 15

21 consent decrees related to the chromium contamination remediation at Study Areas 6 and In the absence of consent of all parties, Rule 53 of the Federal Rules of Civil Procedure allows the Court to appoint a Special Master to * * * recommend findings of fact on issues to be decided without a jury if appointment is warranted by * * * some exceptional condition * * *. Federal Rule of Civil Procedure 53(a)(1)(B)(i). The Rule further allows for appointment of a Special Master to address * * * posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district. Federal Rule of Civil Procedure 53(a)(1)(C). Plaintiffs submit that both circumstances contemplated by Rule 53 apply here and support appointment of Senator Torricelli. Under Rule 53, there is considerable room for appointing Special Masters when the purpose of the master is to enforce [or monitor compliance with] a judicial decree. Cronin v. Browner, 90 F. Supp. 2d 364, (S.D.N.Y.); see, e.g., Local 28 of Sheet Metal Workers International Ass n v. Equal Employment 12 Some aspects of the Special Master s authority and reimbursement for expenses are already addressed in the NJCU Consent Decree. Pl. Ex. 1, para. 111 (the Special Master may retain professionals to assist him in his duties); para. 112 (the Special Master shall obtain insurance and Honeywell shall pay the premiums); para. 113 (the Special Master may submit fee applications to the Court for reimbursement of fees and expenses incurred); para. 114 (expiration of the appointment of the Special Master). 16

22 Opportunity Commission, 478 U.S. 421, 482 (1986) ( [I]n light of the difficulties inherent in monitoring compliance with the court s orders, and especially petitioners established record of resistance to prior state and federal court orders * * *, appointment of an administrator was well within the District Court s discretion ); United States v. Suquamish Indian Tribe, 901 F.2d 772, (9th Cir. 1990) (the complexity of the litigation, the problems associated with compliance with the order, and the substantial experience and expertise of the proposed Special Master constituted exceptional conditions warranting the appointment of a Special Master to determine a question of fishing rights); National Organization for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 542 (9th Cir. 1987) (whether or not the defendant s disregard of a court order was deliberate, the prospect of noncompliance is an exceptional condition that justifies reference to a master ). This Court has already appointed a Special Master to oversee the remedial relief ordered in Interfaith Community Organization v. Honeywell Int'l, Inc., 263 F. Supp. 2d 796, 834 (D.N.J. 2003), affirmed, 399 F.3d 248 (3d Cir. 2005) ( ICO case ). 13 This Court ordered the appointment of a Special Master to oversee all aspects of [a RCRA] remediation and to ensure timely compliance with a 13 The case currently before the Court is a companion case to the ICO case. In 2014, this Court consolidated the current case with the ICO case. ECF No

23 remediation schedule. In the Final Judgment, this Court found that the complexity of this case and the technical nature of the remedial relief ordered herein warrant the appointment of a Special Master under Rule 53. Final Judgment, Civil No , June 3, 2003, para. 5. The Court has also appointed Senator Torricelli to oversee all aspects of the remediation under several of the consent decrees entered in these consolidated cases. 14 The requisite exceptional condition under Rule 53 is met in the present case because of the numerous impermissible penetrations and near penetrations of the cap that have disrupted the integrity of the Chromium Remedy in violation of the NJCU Consent Decree. Pl. Exs. 13, 14,15. In addition, the multiple attempts by NJCU to develop the capped area in a manner inconsistent with the terms of the NJCU Consent Decree support satisfaction of the exceptional condition requirement of Rule 53. Only two months ago NJCU proposed to penetrate the cap impermissibly to install a traffic light in violation of paragraph 78 of the NJCU Consent Decree. See ECF No Now, as discussed in detail in Part I above, Honeywell and NJCU plan to allow construction of Building 6 in the capped area and impermissibly penetrate the cap. Pl. Ex. 1, Article III, Exhibits A-B; ECF Nos. 1341, See footnote 6 above setting forth Senator Torricelli s appointments under these decrees. 18

24 In addition, the long delays in the full implementation of the terms of the NJCU Consent Decree support satisfaction of the exceptional condition requirement of Rule 53. As discussed in detail in Part IIC below, there have also been long delays in the full implementation of the shallow groundwater remedy. Similarly, as discussed in detail in Part IID below, there have been long delays in the completion of the LTMP and WTM that provide protections for human health and the environment. These delays have continued despite years of on-going discussions and evaluations by plaintiffs and Honeywell. Moreover, Senator Torricelli is well positioned to ensure the full implementation of, and compliance with, the NJCU Consent Decree based on his experience as Special Master overseeing the implementation of numerous judgments, orders, and decrees in this same litigation concerning chromium contamination at Study Areas 7, 6 North and 6 South over the past 12 years. 15 He has established a team of technical and legal experts. See ECF No (seeking compensation for technical experts from the Louis Berger Group and legal experts from Connell Foley). The parties have resolved all disputes but one under the Special Master s oversight without seeking resolution from this Court. See generally Docket in Cases Consolidated under ; see also ECF Nos. 474, 15 See note 6 above. 19

25 483, 485, and 486 (dispute regarding Remedial Action Work Plan resolved by the Court), ECF Nos. 693,700, 705, 708 (dispute regarding the barrier wall that was submitted to the Court, but was settled by the parties prior to resolution by the Court). Senator Torricelli is well prepared to oversee the completion of the LTMP and WTM. As Special Master Overseeing the implementation of the chromium remedies at Study Areas 6 North and South, Senator Torricelli and his team were instrumental in assisting the parties to reach agreement and finalize technically complex documents, such as the Open Space Design Standards, Appendix I to the Study Areas 6 North and South 100% Design (ECF No. 1180) ( OSDS ). 16 Millian Aff., Pl. Ex. 2, paras As is the case with the WTM and LTMP, there were multiple parties with vying interests involved in the negotiation of the OSDS. Id., para. 10. In addition, the parties would often come to agreement conceptually on an issue, but then would require detailed discussions and negotiations to come to agreement regarding the exact language that would be included in the final document. Ibid. There were numerous times that the oversight of Special Master 16 The OSDS is closely related to the LTMP. Both the OSDS and the LTMP set forth the limitations, requirements, and obligations for the chromium remedy postimplementation. In addition, Special Master Torricelli has just begun the review and approval process for the Study Areas 6 North and South Combined Long Term Monitoring Plan. Millian Aff. Pl. Ex. 2, para

26 Torricelli assisted the parties in overcoming their disagreements and reaching agreement. Ibid. Plaintiffs do not believe that the parties would have been able to reach agreement and complete the OSDS without the oversight of Special Master Torricelli. Ibid. Plaintiffs submit that the Court should appoint Senator Torricelli as the Special Master to the Court to oversee the implementation of all other aspects of the implementation of the NJCU Consent Decree for a term commensurate with his appointment as Special Master under the other consent decrees related to the chromium contamination remediation at Study Areas 6 and 7. A. NJDEP S LIMITEDAUTHORITY UNDER PARAGRAPH 108 DOES NOT SUPERCEDE THIS COURT S AUTHORITY TO ENFORCE THE DECREE AND APPOINT A SPECIAL MASTER In its opposition to plaintiffs earlier motion to enforce the NJCU Consent Decree, Honeywell argued that appointment of a Special Master was unnecessary due to the availability of NJDEP to resolve this dispute under paragraph 108 of the decree. ECF No. 1336, pp Plaintiffs anticipate that Honeywell will make the same argument in response to this motion The Court directed plaintiffs to address this issue in any further briefing on the earlier motion. ECF No Since plaintiffs have withdrawn the earlier motion and substituted the instant motion, we address this issue here. 21

27 Paragraph 108 of the NJCU Consent Decree addresses NJDEP s authority. Paragraph 108(a) provides that NJDEP retains its statutory and regulatory authority and paragraph 108(b) provides that certain documents will be submitted to NJDEP. Pl. Ex. 1, paras. 108(a), (b). The procedures set forth in paragraph 108 do not prohibit a party from taking a dispute over a document directly to the Court prior to or after submitting the document to NJDEP. Moreover, paragraph 108(c) states [i]n the event that a Party seeks appointment of a Special Master pursuant to paragraph 110 and the Court appoints a Special Master, the provisions of subparagraph (b) shall be of no further force or effect as to the matters for which the Special Master has been appointed * * *. Id., para. 108(c). Pursuant to paragraph 108(b) of the NJCU Consent Decree, on October 16, 2015, Honeywell referred the disputes regarding the shallow groundwater gradient, LTMP and WTM to NJDEP. Pl. Ex. 9. Honeywell also seeks NJDEP review of the proposal to construct Building 6 in the NJCU Commercial AOC. Ibid. However, under paragraph 108 of the NJCU Consent Decree, NJDEP does not have the authority to resolve disputes. Instead, it may accept or reject comments, accept or reject the Parties' resolution of any comments, and approve or reject the documents described in this paragraph. Pl. Ex. 1, para. 108(b). Only two documents relevant to the instant motion are on the list of documents that NJDEP may address: a plan for training workers at the Commercial AOC 22

28 (para. 108(b)(iii)); and the Long-Term Monitoring Plan (para. 108(b)(v)). The NJCU Consent Decree says nothing about the effect of the acceptance or rejection by NJDEP of the comments, resolution of comments, or documents submitted to it under paragraph 108(b). Moreover, this Court is not barred from hearing or appointing a Special Master to oversee an issue arising under the Consent Decree even if the issue has been submitted to NJDEP. The NJCU Consent Decree gives only limited authority to NJDEP, which relates primarily to regulatory authority and submission to NJDEP of specified documents. This limited authority does not affect this Court s sole jurisdiction to oversee and enforce the Consent Decree. Pl. Ex. 1, para Under paragraph 108, NJDEP does not have the authority to resolve disputes regarding whether actions, or inactions, are violations of the Consent Decree. This includes the disputes regarding Building 6 and the shallow groundwater gradient issue. This Court maintains jurisdiction over the parties for the purpose of overseeing and enforcing [the] Consent Decree even as to issues referred to NJDEP. Id., para Under paragraph 108(b) NJDEP s authority to review documents in dispute is limited to those documents that are within NJDEP s statutory and regulatory authority. Paragraph 108(b) states [c]onsistent with its statutory and regulatory authority, NJDEP may * * * approve or reject the documents described in this 23

29 paragraph (emphasis added). Therefore, under paragraph 108, NJDEP may not approve or reject a document unless the document is within NJDEP s statutory and regulatory authority. Honeywell s October 16, 2015, submission to NJCU presumes that NJDEP has statutory and regulatory authority over the LTMP and WTM. However, Honeywell has not provided any evidence that NJDEP has statutory and regulatory authority over the LTMP and WTM. The LTMP and WTM are not documents ordinarily required by NJDEP. For example, plaintiffs are unaware of any regulatory requirements relating to the development of a WTM, or of any regulatory responsibilities that NJDEP has for such a document. In addition, paragraph 108 does not include any specific procedures or time frame for NJDEP s review and comment process or, more importantly, for action by NJDEP at all. In other words, NJDEP, which is not a party to this suit, has no responsibility to act on the matters referred by Honeywell. The language of the NJCU Consent Decree, agreed to by all parties, says simply that NJDEP may act to accept or reject comments and documents. Neither the parties nor this Court have the authority to force NJDEP to act on these matters. If the Court were to consider delaying any action until NJDEP accepts or rejects the particular documents on which it may act, these issues could be in limbo indefinitely. Building 6 could be constructed in the capped area without any decision from the Court on whether such construction violates the decree. Likewise, penetration of 24

30 the cap for construction of Building 6 could occur before finalized LTMP and WTM documents, required by paragraphs 83 and 97 of the NJCU Consent Decree, respectively, are in place. On the other hand, paragraph 108 of the NJCU Consent Decree does not impose any limitation on the right of a party to seek appointment of a Special Master under paragraph 110. Instead, the Consent Decree curtails NJDEP s authority in the event that a Special Master is appointed. See NJCU Consent Decree, para. 108(c). If a Special Master is appointed, the Court would maintain control and a specific schedule for completion could be set, as has been the case for the Study Area 6 North and South Chromium Remedies that are overseen by Special Master Torricelli. Therefore, the Court should appoint a Special Master to oversee the implementation of the NJCU Consent Decree, including the disputes Honeywell has referred to NJDEP. B. IF THE COURT PERMITS CONSTRUCTION OF BUILDING 6 IN THE CAPPED AREA, THE SPECIAL MASTER SHOULD MAKE RECOMMENDATIONS TO THE COURT CONCERNING THE TECHNICAL ISSUES ASSOCIATED WITH SUCH CONSTRUCTION In the event that the Court finds that construction of Building 6 in the capped area does not violate the NJCU Consent Decree, plaintiffs submit that such construction in the capped area raises significant technical issues requiring appointment of a Special Master. In particular, a Special Master is needed to 25

31 examine whether: (1) the design for Building 6 and the planned penetration of the cap will damage the short-term and/or long-term integrity of the cap; (2) there are additional responsibilities and obligations that must be added to the LTMP or WTM as a result of constructing Building 6 in the capped area and penetrating the cap; and (3) there are any alternatives to the proposed plan that would not damage the integrity of the cap. 18 In the absence of an agreement on these issues, the Special Master should issue a Report and Recommendation to the Court concerning this matter. C. THE SPECIAL MASTER SHOULD MAKE RECOMMENDATIONS TO THE COURT CONCERNING THE IMPLEMENTATION OF THE SHALLOW GROUNDWATER REMEDY The NJCU Consent Decree requires a remedy for the contaminated shallow groundwater in the capped area. Pl. Ex. 1, para. 86. Honeywell must ensure that groundwater levels are maintained in accordance with the requirement to maintain an inward gradient for shallow groundwater in the Commercial AOC cap * * *. Id., para. 99(g). If an inward gradient is not maintained, Honeywell must activate a contingency groundwater collection system consisting of extraction well(s), trench(es), underground pumps, horizontal underdrain piping, or a combination of 18 In the event that a Special Master is appointed, the parties could make submissions regarding alternatives to the current plan. 26

32 some or all of the preceding located in or near the Commercial AOC * * *. Id., para. 86(c). Plaintiffs and Honeywell continue to have multiple disputes regarding the shallow groundwater. These disputes fall into two primary categories: (1) disputes regarding compliance with the Consent Decree requirement to ensure that an inward gradient is maintained; and (2) disputes regarding the shallow groundwater requirements and obligations to be set forth in the LTMP. In June 2011 Honeywell submitted a draft LTMP to plaintiffs for review. Ross Aff., Pl. Ex. 3, para. 6. Over the next nine months, plaintiffs exchanged comments with Honeywell regarding the inward gradient monitoring and the trigger for activation of the contingent pumping system (i.e., the pumping trigger), but the parties did not reach agreement. Ibid. During this same time, Honeywell took quarterly groundwater measurements and reported the measurements in the Annual Performance Report #3, Long Term Monitoring Plan, dated March 23, Ross Aff., Pl. Ex. 3, para. 7. This report primarily addresses the deep groundwater remedy, but also includes a comprehensive set of water-level measurements from all of Study Areas 5, 6, and 7. From the data submitted by Honeywell, Dr. Ross concluded that Honeywell had failed to demonstrate an inward gradient. Ibid. Honeywell disagreed. Ibid. 27

33 In April 2012, plaintiffs and Honeywell agreed on further measurements to be undertaken by Honeywell. Ross Aff., Pl. Ex. 3, para. 8. These measurements were carried out in May and June, Ibid. As the parties had reached an impasse on the pumping trigger, we agreed that Honeywell would begin the measurements and we would leave the trigger issue unresolved until more data were available. Ibid. The measurements in May and June revealed anomalies in measurements of water levels. Id., para. 9. Honeywell informed plaintiffs of these anomalies in a July 15, 2012, memorandum. Ibid. Because of the anomalies, some data that the parties had planned to use to determine groundwater flow directions could not be used as intended. Ibid. Two years of field investigation and analysis ensued, after which both parties were satisfied that the nature and cause of the anomalies were understood. Ross Aff., Pl. Ex. 3, para 9. Honeywell submitted its final report on this work to plaintiffs on December 2, Ibid. Plaintiffs and Honeywell repeatedly exchanged comments regarding the December 2, 2014, report through the spring of 2015, and eventually reached an impasse regarding two issues: (1) a technical disagreement regarding how to determine the groundwater gradient; and (2) disagreement regarding whether contaminated groundwater is allowed to flow outward from under the cap into the non-capped areas of the NJCU West Campus site. Ross Aff., Pl. Ex. 3, para

34 The parties remain in disagreement concerning whether Honeywell can demonstrate a continuous inward gradient as required by the NJCU Consent Decree or if the contingent pumping system needs to be activated in order to ensure that an inward gradient is maintained. Ross Aff., Pl. Ex. 3, paras The technical dispute regarding Honeywell s compliance with the inward gradient requirement has affected the ability of the parties to reach agreement as to the terms for the LTMP and Trigger Document. Most recently, on June 19, 2015, plaintiffs submitted to Honeywell a proposal to resolve the disputes between the parties, i.e., ensuring that the shallow groundwater gradient is inward so that the contaminated groundwater beneath the capped area remains where it is and does not contaminate areas outside the cap. Pl. Ex. 4. On September 4 and 15, 2015, plaintiffs and Honeywell met in order to discuss plaintiffs June 19 groundwater proposal. Ross Aff., Pl. Ex. 3, para. 12. Prior to the meeting on September 15, Honeywell had not responded to plaintiffs June 19 proposal. Ibid. During the September 15 meeting, plaintiffs were informed that Honeywell accepted plaintiffs June 19 proposal, and that Honeywell would submit a revised portion of the LTMP and Trigger Document memorializing the agreement. Ibid. On September 29, 2015, Honeywell submitted a revised LTMP and Trigger Document, which do not reflect agreement with plaintiffs June 19 proposal. Ross 29

35 Aff., Pl. Ex. 3, paras ; Pl. Exs. 5, 6. Except for the addition of new monitoring wells, the documents provided by Honeywell differ entirely from the June 19 proposal to which Honeywell stated that it had agreed at the September 15 meeting. Ross Aff., Pl. Ex. 3, para. 13. The September 29 LTMP and Trigger Document differ from the June 19 proposal as to both the protectiveness of the remedy and the method of determining the flow direction. Ibid. The major differences between plaintiffs June 19 proposal and the September 29 LTMP and Trigger Document regarding the protectiveness of the remedy are (Ross Aff., Pl. Ex. 3, para. 14): (1) the June 19 proposal would keep contaminated groundwater inside the Commercial AOC cap area, while the September 29 documents would allow contaminated groundwater to spread into currently uncontaminated areas; (2) the June 19 proposal required Honeywell to establish inward flow, using pumps if necessary, if the new wells installed at the edge of the cap show contamination, while, under the September 29 documents, contamination in these wells merely triggers additional study and discussion between the parties; and (3) the June 19 proposal requires the establishment of inward flow if contamination at the edge of the cap is intermittent, while the September 29 documents do not. The September 29 LTMP and Trigger Document also differ from the June 19 proposal in the method of determining flow direction. Ross Aff., Pl. Ex. 3, para. 15. Disagreements about how to determine flow direction from measured data, which were left open in 2012, have not been resolved. In addition, there are 30

36 new disagreements about the effect of the anomalies that were observed in Ibid. Plaintiffs June 19, 2015, proposal and Honeywell s September 29, 2015, documents come after three years of negotiations regarding the shallow groundwater gradient issues. Because the parties and their experts met in person and discussed the June 19 proposal on September 4 and 15, plaintiffs do not believe that there was any misunderstanding of their proposal. Moreover, during the meeting on September 15, Honeywell did not ask any questions about or seek clarification of the June 19 proposal. Ross Aff., Pl. Ex. 3, para. 12. Yet, Honeywell s September 29 documents are fundamentally at odds with plaintiffs June 19 proposal. On October 16, 2015, Honeywell submitted the shallow groundwater disputes to NJDEP for review pursuant to paragraph 108(b) of the NJCU Consent Decree. Pl. Ex. 9, pp Honeywell s submission to NJDEP did not distinguish between the dispute regarding compliance with the Consent Decree requirement to ensure that an inward gradient is maintained and the dispute regarding the shallow groundwater requirements and obligations to be set forth in the LTMP and Trigger Document. NJDEP does not have the authority to determine whether a party is in compliance with or to enforce the NJCU Consent Decree. Pl. Ex. 1, para