UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY INTERFAITH COMMUNITY ORGANIZATION, et al. Plaintiffs, v. HONEYWELL INTERNATIONAL INC., et al Defendants

) ) ) ) ) ) ) ) ) ) )

Electronically Filed Return Date: Nov. 16, 2015 Civ. No. 95-2097 (JLL)

HACKENSACK RIVERKEEPER, INC., et al. Plaintiffs, v. HONEYWELL INTERNATIONAL INC., et al. Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

Civ. No. 06-22 (Consolidated with Civ. No. 05-5955) All Actions Consolidated Under Civ. No. 95-2097 (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 100027 212-854-4376

Bruce J. Terris Kathleen L. Millian Alicia C. Alcorn Terris, Pravlik & Millian, LLP 1121 12th Street, N.W. Washington, DC 20005-4632 202-682-2100

October 23, 2015 Counsel for Plaintiffs

i

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Cronin v. Browner, 90 F. Supp. 2d 364 (S.D.N.Y.) ........................................................................... 16

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) ................................................................................................................... 17

Local 28 of Sheet Metal Workers International Ass’n v. Equal Employment Opportunity Commission, 478 U.S. 421 (1986) ............................................................................................ 16

National Organization for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536 (9th Cir. 1987) .............................................................................. 17

United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990) .............................................................................. 17

Other Authorities

Rule 53 of the Federal Rules of Civil Procedure ................................... 15, 16, 18, 19

iii

TABLE OF EXHIBITS

Exhibit No. Description 1 New Jersey City University Consent Decree, January 21, 2010,

ECF No. 302

2 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, 2015

5 Draft Long Term Monitoring Plan, Study Area 5, New Jersey City University, Section 3.3.3 Commercial AOC Groundwater Levels and Quality [Excerpt], dated September 2015

6 Draft Proposed Triggers for Operation of the SA-5 Contingent Groundwater Extraction and Treatment System, NJCU West Campus – Commercial Area, dated September 2015

7 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, 2015

8 E-mail from Alicia Alcorn to Jeremy Karpatkin and Robert Wayne, Re: NJCU CD – Status Report to the Court, dated October 2, 2015

9 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, 2015

10 NJCU West Campus Development Plan, dated September 2015

11 NJCU Redevelopment Plan, dated January 27, 2010

iv

Exhibit No. Description 12 NJ.com article entitled “Jersey City Building Boom Coming to

NJCU Campus with $350M Plan,” September 3, 2015

13 E-mail from Jeremy Karpatkin to Alicia Alcorn, Re: Disturbance of Chromium Remedy in NJCU Parking Lot, dated June 5, 2014

14 E-mail from Jeremy Karpatkin to Alicia Alcorn, Re: NJCU Liner Repair, dated July 18, 2014

15 NJCU Commercial AOC Cap Disturbance – December 2013 – Root Cause Analysis, dated August 4, 2014

16 Letter from Alicia Alcorn to Jeremy Karpatkin and Robert Wayne, Re: NJCU Consent Decree – Chromium Remedy Breach, dated June 3, 2014

17 Letter from Alicia Alcorn to Robert Wayne, Re: NJCU Consent Decree – Chromium Remedy Breach, dated June 19, 2014

18 E-mail from Robert Wayne to Alicia Alcorn, Re: Riverkeeper Request for Information, dated July 17, 2014

19 E-mail from Robert Wayne to Alicia Alcorn, Re: Response to Letter, dated July 24, 2014

1

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. 1326.

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. 1335. Now,

with Honeywell’s support, NJCU plans to allow a commercial developer to

1 ECF No. 302 in D.N.J. Docket No. 06-22. A copy of the decree is attached as Plaintiffs’ Exhibit 1.

2

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, 2015. See Pl. Ex12. 3 For simplicity in this motion, we refer to this area as the cap or capped area.

3

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. 2-3.

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. 4-5.

4

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):

5

Block 6 Commercial Development * * *

Construction of this project is expected to commence in the Spring of 2016. * * * 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, 67. 5 Liner is another term used to refer to the engineered cap.

6

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, 1342.

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, 2015. Pl. Ex. 9, pp. 1-2. 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. 21-25), 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.

106.

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

7

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 05-5955); First Amended Consent Decree Regarding Remediation and Redevelopment of Study Area 6 South (ECF No. 434 in docket 05-5955); Consent Decree Regarding Remediation of the Study Area 5 Shallow Groundwater and the Site 79 Residential Properties (ECF No. 303 in docket 05-5955); 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.

8

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. 107.

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, 2010. 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 11. 8 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 05-5955. Exhibit A is ECF No. 298-1 and is included in Plaintiffs’ Exhibit 1.

9

NJCU West Campus.9 See id., paras. 20, 75-77. 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 05-5955. Exhibit B is ECF No. 298-2 and is included in Plaintiffs’ Exhibit 1.

10

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. 127. 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. 11-12), 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).

11

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

12

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

13

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. 3-4. As a result, by the end of 2013, the cap had been unintentionally and unknowingly penetrated at least 11 times. Pl. Exs. 13-15. 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.

14

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

15

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

16

consent decrees related to the chromium contamination remediation at Study Areas

6 and 7.12

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, 377-378 (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).

17

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, 774-775 (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. 1222.

18

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. 95-2097, 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. 1326. 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, 1342.

14 See footnote 6 above setting forth Senator Torricelli’s appointments under these decrees.

19

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. 1340 (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 95-2097; see also ECF Nos. 474,

15 See note 6 above.

20

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. 9-10. 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 post-implementation. 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. 9.

21

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. 6-9. Plaintiffs anticipate that Honeywell will make the

same argument in response to this motion.17

17 The Court directed plaintiffs to address this issue in any further briefing on the earlier motion. ECF No. 1344. Since plaintiffs have withdrawn the earlier motion and substituted the instant motion, we address this issue here.

22

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”

23

(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. 106. 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.

106.

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

24

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

25

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

26

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.

27

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, 2012. 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.

28

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, 2012. 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, 2014. 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. 10.

29

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. 6-10.

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

30

Aff., Pl. Ex. 3, paras. 13-15; 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

31

new disagreements about the effect of the anomalies that were observed in 2012.

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. 1-2. 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. 108.

32

Only this Court has the power to determine compliance and enforce the NJCU

Consent Decree. Id., para. 106.

Plaintiffs submit that the Court should appoint Senator Torricelli as the

Special Master for the implementation of all remaining aspects of the NJCU

Consent Decree, including the implementation of the shallow groundwater remedy

required by paragraph 86 of the NJCU Consent Decree. In the absence of an

agreement by the parties, the Special Master should make factual recommendations

to the Court concerning whether the contingency groundwater collection system

should be activated to ensure that the contaminated shallow groundwater in the

capped area maintains an inward gradient, as well as the related technical issues.

D. THE SPECIAL MASTER SHOULD OVERSEE COMPLETION OF LONG-OVERDUE REQUIRED DOCUMENTS THAT ARE DESIGNED TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT

Paragraphs 83 and 97 of the NJCU Consent Decree require Honeywell to complete

a WTM and a LTMP, respectively. Pl. Ex. 1. These two important documents are

intended to protect human health and the environment. Id., paras. 83, 98. To date,

Honeywell has not completed either document. Millian Aff., Pl. Ex. 2, para. 4. The fact

that these documents are not complete over five years after the entry of the NJCU Consent

Decree in January 2010 is a violation of the Consent Decree.

These documents are integral to the protection of the Chromium Remedies in both

the Commercial and Residential AOC’s, particularly during NJCU’s development of its’

33

West Campus. The purpose of the Worker Training Manual is to “detail all

appropriate steps [individuals who might be exposed to contamination] should take

to protect themselves from exposure to chromium and shall provide procedures * *

* to identify and implement appropriate actions to protect workers.” Pl. Ex. 1,

para. 83. Similarly, the purpose of the LTMP is to “[p]rovide monitoring to ensure

that the integrity and effectiveness of the Chromium Remedies are maintained; and

* * * [p]rovide monitoring to ensure that the restrictions of the institutional

controls are being satisfied * * *.” Id., para. 98.

Given the extensive development work occurring on the West Campus (Pl. Ex. 12),

it is unacceptable that workers have not been provided with complete and approved

training materials (i.e., the WTM) while performing subsurface work that may expose

them to contamination. It is also unacceptable that extensive development work on the

West Campus is on-going without a complete and approved LTMP to ensure the

appropriate monitoring and oversight is being conducted in order to protect the integrity of

the Chromium Remedy during the development work.

Plaintiffs are aware of at least 11 instances in which workers have already

unintentionally and unknowingly penetrated the cap during the NJCU West

Campus development work.19 Pl. Exs. 13, 14, 15, pp. 3-4. These penetrations

19 The Affidavit of Kathleen L. Millian that was submitted to the Court as Plaintiffs’ Exhibit 1 to Plaintiffs’ Motion for Emergency Enforcement of the NJCU

(continued…)

34

were unknowing because the workers had not been made aware of the cap and the

contamination below it, and did not have the benefit of the WTM to guide them.

Ibid.; see also Millian Aff., Pl. Ex. 2, para. 8. In addition, the work that resulted in

the penetrations was not appropriately monitored to prevent unintentional

penetrations because a complete and approved LTMP was not in place.

The current proposal to penetrate the cap to construct Building 6 further

supports the need for the WTM, since the workers who would undertake such

activities, if they are permitted by this Court, would do so without the benefit and

protection of a WTM “detail[ing] all appropriate steps such individuals should take

to protect themselves from exposure to chromium * * *.” Pl. Ex. 1, para. 83.

Although NJCU claims that it is providing its contractors with its own

versions of the draft WTM and the LTMP, this does not comport with the

requirements of the Consent Decree. These are unilateral draft documents that the

parties have not agreed upon or, in the absence of agreement, have not been

approved by the Court, and they do not contain all necessary provisions to protect

the Chromium Remedy and the workers and individuals on the site.

Consent Decree (ECF No. 1326-4) incorrectly stated that there have been five penetrations of the cap. Plaintiffs have conducted a thorough review of the correspondence between the parties and determined that there have been at least 11 penetrations of the cap. The documents that show that there have been at least 11 penetrations of the cap are attached as Plaintiffs’ Exhibits 13-15.

35

Plaintiffs, Honeywell, and NJCU met on September 30 to address the LTMP

and WTM. Millian Aff., Pl. Ex. 2, para. 5. While some progress was made to

narrow the issues in dispute between the parties, there is still a significant amount

of work to be done even when the parties have conceptually come to agreement

regarding an issue. Ibid. The conceptual agreements reached must be

memorialized in specific language crafted for the WTM or LTMP. That language

will need to be reviewed and, if a party believes the language is inadequate or

incorrect, go through a commenting process.

Plaintiffs submit that the fact that these documents essential to protect

human health and the environment are still not complete more than five years after

the entry of the decree supports the appointment of a Special Master to oversee

their completion and implementation. Moreover, if the parties cannot reach

agreement on the appropriate terms for either of these documents, the Special

Master should make recommendations to the Court concerning the terms of these

required documents.

CONCLUSION

For the foregoing reasons, the plaintiffs respectfully request that this Court (1)

order Honeywell and NJCU to construct Building 6 wholly within the NJCU

Residential AOC as required by the decree; and (2) expand the appointment of

Senator Robert G. Torricelli, who currently serves as the Special Master for the Financial

36

Assurances required under the NJCU Consent Decree, also to serve as Special Master to

oversee 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. A proposed Order is attached.

Respectfully submitted, s/ Edward Lloyd

Bruce J. Terris Kathleen L. Millian Alicia C. Alcorn Terris, Pravlik & Millian, LLP 1121 12th Street, N.W. Washington, DC 20005-4632 202-682-2100

Edward Lloyd (EL 2633) Columbia Law School 435 West 116th Street, Room 831 New York, NY 100027 212-854-4376

October 23, 2015 Counsel for Plaintiffs