River Road, Hastings-on-Hudson, New York, along the east bank of
the Hudson (the "Site"), where it made copper wire and cable,
bare and insulated and/or sheathed. Beginning in the
late-1930's, polychlorinated biphenyl ("PCB") mixtures
(commercially known as "Aroclor") were used to impregnate paper-
and asbestos-wrapped cable before the outer sheathing was
applied. The PCB mixtures were prepared and the wrappings were
impregnated in various buildings on the Site.
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 Village's
residents have suffered an injury in fact that is fairly
traceable to Anaconda, which can be "redressed by a favorable
decision" from this Court. Therefore, both Riverkeeper and the
Village have constitutional standing to sue ARCO.
Riverkeeper has organizational standing to bring the instant
An association has standing to bring suit on behalf
of its members when its members would otherwise have
standing to sue on their own right, the interests at
stake are germane to the organization's purpose, and
neither the claim asserted nor the relief requested
requires the participation of the individual members
in the lawsuit.
Laidlaw, 528 U.S. at 181, 120 S.Ct. 693 (citing Hunt v.
Washington Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct.
2434, 53 L.Ed.2d 383 (1977)). Riverkeeper satisfies Hunt's
requirements because: (1) its members have standing to sue on
their own (see Gabrielson Aff. ¶ 8); (2) the environmental
protective relief sought in the suit is germane to Riverkeeper's
organizational purpose (see Boyle Aff. ¶ 2); and (3)
Riverkeeper's suit does not require the participation of its
individual members. The Village, a municipal corporation, does
not require organizational standing. See, e.g., Gladstone,
Realtors v. Village of Bellwood, 441 U.S. 91, 110-12, 99 S.Ct.
1601, 60 L.Ed.2d 66 (1979) (finding that municipal entity has
standing to sue where defendant's actions have impaired
important municipal functions). We find, therefore, that
plaintiffs have standing to bring the present suit.
III. TSCA Preemption
ARCO argues that "[b]ecause PCBs are not hazardous wastes,
RCRA claims for PCB contamination are preempted by the
provisions of [TSCA], 15 U.S.C. § 2601, et seq., specifically
created to deal with PCB storage and disposal." (Def. Mem. Opp.
Summ. J. at 40.) This argument fails for two reasons. First,
TSCA is regulatory in nature, "controlling the disposal,
manufacturing, handling and storage of a chemical such as PCB"
(Riverkeeper Reply Mem. Supp. Summ. J. at 10), and primarily
applying to suits brought by the EPA Administrator on behalf of
the government. See, e.g., United States v. Burns, 512 F. Supp. 916,
918 (W.D.Pa. 1981). In contrast, the instant suit is a
citizen remedial action, so TSCA does not apply. Second, even if
the suit were regulatory, RCRA does not list TSCA among the
regulatory acts with which it is integrated. See
42 U.S.C. § 6905(b). Therefore, plaintiffs' RCRA claims are not preempted by
IV. ARCO's Corporate Liability
ARCO next argues that because AERL, ARCO's affiliate,
presently owns the Site, general rules of corporation law render
AERL — not ARCO — liable for any remediation that may be
required. (See Def. Mem. Opp. Summ. J. at 44 (citing United
States v. Bestfoods, 524 U.S. 51, 61, 118 S.Ct. 1876, 141
L.Ed.2d 43 (1998) ("It is a general principle of corporate law
deeply ingrained in our economic and legal systems that a parent
corporation . . . is not liable for the acts of its
subsidiaries.")).) This argument is of no avail. A RCRA citizen
suit may be brought against
any person . . . including any . . . past or present
owner or operator of a treatment, storage, or
disposal facility, who
has contributed or is contributing to the past or
present handling, storage, treatment, transportation,
or disposal of any solid or hazardous waste which may
present an imminent and substantial endangerment to
health or the environment.
42 U.S.C. § 6972(a)(1)(B). ARCO admits that it is the successor
to Anaconda, having assumed all of its liabilities when it
merged Anaconda into itself in 1981. (See Def.
Rule 56.1 Counter-Stmt. ¶ 11.) Therefore, ARCO is just as responsible as
Anaconda itself, and AERL's corporate relationship to ARCO is
irrelevant. For the purposes of RCRA, "[b]y virtue of its
acquisition of . . . Anaconda . . . ARCO is one of the former
owners of the Site." (Golder Associates 1996 Remedial
Investigation ("RI"), § 2.2 at 4.) We therefore conclude that
ARCO is liable for any of Anaconda's actions that may have
contaminated the Site.