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HUDSON RIVERKEEPER FUND, INC. v. HARBOR AT HASTING

March 5, 1996

HUDSON RIVERKEEPER FUND, INC., Plaintiffs, VILLAGE OF HASTINGS-ON-HUDSON, Plaintiff-Intervenor against HARBOR AT HASTINGS ASSOCIATES, FC-HASTINGS, L.P., EAST SHORE ASSOCIATES, L.P., EAST SHORE CORPORATION, and COLUMBIA RIVER CORPORATION, Defendants. FC-HASTINGS, L.P. and FC-HASTINGS, INC., Third-Party Plaintiffs, - against - EDWARD FUCCI, GREGORY FUCCI, THOMAS AMBROSIO, AGE CARTING CORPORATION, A.N.E. RECYCLING CORPORATION, individually and d/b/a AGE CARTING, TARGRE PAINTING COMPANY, INC., ACTIVATED CARTING CORPORATION, FUCCI ENTERPRISE CORPORATION and JOHN DOES 1-5, Third-Party Defendants.


The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 Defendants Harbor at Hastings Associates, East Shore Associates, L.P., East Shore Corporation, and Columbia River Corporation seek an order dismissing this action and granting judgment on the pleadings, pursuant to Rules 12(b) and 12(c) of the Federal Rules of Civil Procedure. In the action, plaintiffs The Village of Hastings-on-Hudson and the Hudson Riverkeeper Fund seek recovery pursuant to provisions of the Federal Resource Conservation and Recovery Act (hereinafter referred to as "RCRA") § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A). The Riverkeeper also seeks recovery pursuant to RCRA § 7002(a)(1)(B) and the Clean Water Act. In addressing the merits of the motion, all parties have made large submissions of documents and exhibits which are external to the pleadings. In addition, oral argument of the issues presented in the motion had to be suspended and continued on two separate occasions to allow the parties to await the development of external factors which could impact the case. Accordingly, this Court elects to make the conversion contemplated by Rules 12(b) and 12(c) and treat the motion as one based on Rule 56.

 The facts stated below appear from the papers before the Court or were conceded on oral argument. Defendant Harbor at Hastings Associates is the owner of a 31-acre industrial property located directly on the riverfront in the Village of Hastings-on-Hudson, Westchester County, New York, known as the former Anaconda Wire Mill. The other defendants are partners or principals of Harbor at Hastings Associates. The third party defendants had until recently leased a portion of the industrial site known as Building 15 from Harbor at Hastings Associates. During their occupancy of Building 15, the third party defendants operated a solid waste transfer station on the premises through an entity known as Age Carting. The permit under which the transfer station for recycling and processing operated allowed for the total storage of no more than 2,400 cubic yards of material at the site. Recyclable material was to be stored for a period no longer than one week, and non-recyclable material was to be stored for no longer than two weeks.

 In operating the facility, Age Carting allegedly violated the zoning law of the village, and various conditions of its operating permit from the New York State Department of Environmental Conservation, (the "DEC"). The violations primarily concerned the amount of material stored, and now abandoned, which is currently estimated to be 80,000 cubic yards of material.

 More than three years ago, the State of New York brought suit in New York Supreme Court, Westchester County, to clean up the site. That suit resulted in an interlocutory judgment against Age Carting and its principals directing those defendants to develop a clean up plan for the site and to post a bond in the amount of $ 2,000,000, the estimated cost to clean up the site. The defendants in that action have yet to develop a satisfactory clean up plan and the action is still being pursued in New York Supreme Court. Because of the failure of Age Carting to comply with the judgment, the state court held Age Carting in contempt of court. On October 27, 1995, the Village and the State received notice that Edward and Gregory Fucci, the principals of Age Carting, had filed bankruptcy under Chapter 7 of the Federal Bankruptcy code. The Fucci's moved for a stay of the state contempt proceedings but that motion was denied and those proceedings were commenced on October 31, 1995. The contempt hearing continued through December 1995 and the State filed its post hearing memorandum of law on January 5, 1996. Thereafter Justice Coppola held Age Carting in contempt of Court and imposed a fine of $ 150,000, to be applied to the clean up costs of the site.

 Two years after the State filed its own suit, the plaintiffs in this action filed this federal case seeking a remediation plan and attorney's fees. In October of 1995, the State of New York commenced an additional enforcement proceeding in New York Supreme Court, Westchester County, against the Harbor defendants and Phillip Eisenberg. In that action entitled State of New York et al. v. Harbor at Hastings Associates, et al., 95-17125, the State moved for a preliminary injunction ordering the Harbor Defendants and Mr. Eisenberg to remove all waste from the site. This remains sub judice before Justice Coppola.

 In moving to dismiss, the defendants claim that under the relevant provisions of the Resource Conservation and Recovery Act and the Clean Water Act, plaintiffs are prohibited from pursuing their claims when the State of New York has already begun and is diligently prosecuting a lawsuit to correct the same environmental conditions.

 42 U.S.C. § 6972 entitled "Citizen suits", provides in relevant part as follows:

 
(a) In general
 
Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf--
 
(1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or
 
(B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of ...

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