The opinion of the court was delivered by: William C. Conner, Senior District Judge.
Plaintiff Hudson Riverkeeper Fund, Inc. ("Riverkeeper") and
Plaintiff-Intervenor Village of Hastings-on-Hudson ("Village")
(collectively, "plaintiffs") bring this environmental action
against defendant Atlantic Richfield Company ("ARCO") under the
Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. § 6901, et seq., alleging that ARCO, corporate successor to
Anaconda Wire & Cable Company ("Anaconda"), is liable for
contamination of the Hudson River (the "Hudson") allegedly
caused by Anaconda while manufacturing electrical cable on land
adjacent to the Hudson. Plaintiffs now move for summary judgment
pursuant to FED. R. CIV. P. 56, seeking a declaration of ARCO's
liability to remedy the alleged contamination. For the reasons
stated below, plaintiffs' motion is denied.
During and around World War II, from approximately 1940 to
1947, the United States government (the "U.S.") allegedly
directed Anaconda to manufacture at the Site PCB-insulated cable
for military use. (Def. Am.3d-Party Complt. ¶¶ 8, 15.) ARCO
claims that the U.S. virtually controlled all operations at the
Site, owned some of the manufacturing equipment, purchased the
raw materials used and "arranged for the disposal of wastes
containing PCBs at the Site." (Id. ¶ 9.)
Anaconda closed the Site in 1975. In 1977, Anaconda was merged
into a wholly-owned subsidiary of ARCO, which in 1981 was merged
into ARCO, who assumed all of the subsidiary's liabilities. In
the 1980's and 1990's, the Site was owned by several developers
who tried unsuccessfully to redevelop the property.*fn1 In
1998, ARCO Environmental Remediation, L.L.C. ("AERL") purchased
the Site and remains its present owner. AERL is a subsidiary of
CH-Twenty, a privately held corporation owned in part by ARCO
and in part by an independent third party. (Brekhus Aff. ¶ 8.)
ARCO states that AERL is merely an affiliate of ARCO.
Riverkeeper brought the instant action in April 1994, and the
Village was allowed to intervene on June 9, 1994 by order of the
late Honorable Vincent L. Broderick, from whom this Court
inherited the case.*fn2 Because the New York State
Departments of Environmental Conservation ("DEC") and Health
("DOH") began investigating the Site, we placed the case on the
Suspense docket on May 12, 1995 pending issuance of the
investigatory findings. The Court received biannual status
reports from the parties through July 1999, but since the DEC
had not completed its report and recommendation by then, and was
not expected to do so within a limited time thereafter, we
reinstated the case to the active docket on October 4, 1999.
Plaintiffs now move for summary judgment pursuant to FED. R.
CIV. P. 56. They allege that as a result of Anaconda's
manufacturing and disposal practices, the Site "may present an
imminent and substantial endangerment to health or the
environment," 42 U.S.C. § 6972(a)(1)(B), and that ARCO, as
corporate successor to Anaconda, is liable for all of Anaconda's
actions that caused or contributed to any contamination of the
Hudson. ARCO argues that the Toxic Substances Control Act
("TSCA"), 15 U.S.C. § 2601, et seq., preempts the RCRA claim.
Alternatively ARCO argues that because AERL, the present owner
of the site, is merely an affiliate of ARCO, AERL is actually
liable for any remediation that must occur and that plaintiffs
have not causally linked the alleged river contamination to
Anaconda. Finally, ARCO contends that the evidence does not show
that an "imminent and substantial endangerment" exists.
I. Summary Judgment Standard
Under FED. R. CIV. P. 56, summary judgment may be granted
where there are no genuine issues of material fact and the
movant is entitled to judgment as a matter of law. See FED. R.
CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests
on the movant to demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual issue
exists if there is sufficient evidence favoring the nonmovant
for a reasonable jury to return a verdict in his favor.
Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In deciding whether
summary judgment is appropriate, the court should resolve all
ambiguities and draw all permissible factual inferences against
the movant. See id. at 255, 106 S.Ct. 2505. To defeat summary
judgment, the nonmovant must go beyond the pleadings and "must
do more than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). The court's role at this stage of the
litigation is not to decide genuine issues of material fact, but
to discern whether any exist. See Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).
Summary judgment may not be granted simply because the court
believes the nonmovant will not be able to meet the burden of
persuasion at trial. Danzer v. Norden Sys., 151 F.3d 50, 54
(2d Cir. 1998).
As an initial matter, we find that because its "members
include commercial and recreational fishermen whose commercial
and recreational interests have been [allegedly] injured because
of PCB contamination of fish in the Hudson," (Riverkeeper Mem.
Supp. Summ. J. at 6), and because the Village "has an interest
. . . protect[ing] the health and welfare of Hastings
residents," (Village Rule 56.1 Stmt. ¶ 6), plaintiffs have
standing to bring the instant action.
[T]o satisfy Article III's standing requirements, a
plaintiff must show (1) it has suffered an "injury in
fact" that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will
be redressed by a favorable decision.
Friends of the Earth, Inc., v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610
(2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Furthermore,
the Supreme Court has established a low causation threshold,
stating that a "substantial likelihood" that defendant's actions
caused plaintiffs harm confers standing. See Duke Power Co. v.
Carolina Envtl. Study Group, Inc., 438 U.S. 59, 75 n. 20, 98
S.Ct. 2620, 57 L.Ed.2d 595 (1978). Riverkeeper avers that its
members' use and
enjoyment of the Hudson has been affected by Anaconda's
manufacturing and disposal practices. Similarly, the Village
alleges that its property values have been adversely affected by
the Site, and that it has lost millions of dollars in tax
revenue on the Site due its contamination. (See Kinnally Aff.
¶¶ 20-22.) Thus, Riverkeeper's members and the ...