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HUDSON RIVERKEEPER FUND v. ATLANTIC RICHFIELD CO.

March 30, 2001

HUDSON RIVERKEEPER FUND, INC., PLAINTIFF, AND VILLAGE OF HASTINGS-ON-HUDSON, PLAINTIFF-INTERVENOR,
V.
ATLANTIC RICHFIELD COMPANY, DEFENDANT, THIRD-PARTY PLAINTIFF, V. UNITED STATES OF AMERICA, THE UNITED STATES DEPARTMENT OF DEFENSE, THE UNITED STATES DEPARTMENT OF COMMERCE AND THE UNITED STATES NAVY, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

OPINION AND ORDER

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.

BACKGROUND

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.

DISCUSSION

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).

II. Standing

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. ΒΆΒΆ 20-22.) Thus, Riverkeeper's members and the ...


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