Hackensack Riverkeeper v. Delaware Ostego Corp.

• Decision Date: 11 September 2006
• Docket Number: Civil Action No. 05-4806.
• Citation: 450 F.Supp.2d 467
• Parties: HACKENSACK RIVERKEEPER, INC., Raritan Baykeeper, Inc. (d/b/a NY/NJ Baykeeper), Andrew Willner, and William Sheehan, Plaintiffs, v. DELAWARE OSTEGO CORP., New York Susquehanna 8i Western Railway Corp., Millennium Resource Recovery, Ltd., Crossroads Recycling, Inc., Railtech, L.L.C., Ontrack Loading. Co., Inc. (d/b/a Ontrack Loading Co., L.L.C. And Liberty Contracting), Cardella Trucking Co., Inc., and Cardella Waste Services of New Jersey, Inc., Defendants.
• Court: U.S. District Court — District of New Jersey

450 F.Supp.2d 467

HACKENSACK RIVERKEEPER, INC., Raritan Baykeeper, Inc. (d/b/a NY/NJ Baykeeper), Andrew Willner, and William Sheehan, Plaintiffs, v. DELAWARE OSTEGO CORP., New York Susquehanna 8i Western Railway Corp., Millennium Resource Recovery, Ltd., Crossroads Recycling, Inc., Railtech, L.L.C., Ontrack Loading. Co., Inc. (d/b/a Ontrack Loading Co., L.L.C. And Liberty Contracting), Cardella Trucking Co., Inc., and Cardella Waste Services of New Jersey, Inc., Defendants.

Civil Action No. 05-4806.

United States District Court, D. New Jersey.

September 11, 2006.

COPYRIGHT MATERIAL OMITTED

Rutgers Environmental Law Clinic, Carter Strickland, Esq., Newark, NJ, for Plaintiffs.

Esq., Wolff & Samson, P.C., John A. McKinney, Jr., Hackensack, NJ, Wilentz Goldman & Spitzer, P.A., Francis X. Journick, Jr., Esq., Woodbridge, NJ, for Defendants.

OPINION

DEBEVOISE, Senior District Judge.

This is a citizen suit brought under the Resource Conservation & Recovery Act 42 U.S.C. §§ 6901-91 ("RCRA"). Plaintiffs are Hackensack Riverkeeper, Inc. ("Riverkeeper"), its executive director, William Sheehan ("Sheehan"), Raritan Baykeeper, Inc. ("Baykeeper") and its executive director, Andrew Willner ("Willner"). The Defendants who have not been dismissed from the case are the New York Susquehanna and Western Railway Corporation ("NYS & W"), its parent company Delaware Ostego Corp. ("Delaware Ostego"), OnTrack Loading, Inc. ("OnTrack"), Cardella Trucking, Inc. and Cardella Waste Services of New Jersey, Inc. (the latter three Defendants being collectively referred to as "the Cardella Defendants").

Plaintiffs allege generally that Defendants violated RCRA during the course of their ownership and/or operation of five separate transloading facilities in North Bergen, New Jersey. Plaintiffs allege that construction debris and other mixed waste is unloaded at the facilities and sits exposed and uncovered in large piles until being loaded on trains and delivered to out-of-state landfills. Plaintiffs contend that improper storage and handling of waste materials constitutes "open dumping" in violation of RCRA and that water runoff from these locations ultimately contaminates the Hackensack River and watershed. Plaintiffs seek a declaratory judgment, injunctive relief, and costs related to this suit. Defendants assert several affirmative defenses in their answers to the Complaint. Presently before the Court is Plaintiffs' motion for summary judgment striking three of these affirmative defenses: i) RCRA in its entirety is preempted by the 1995 Interstate Commerce Commission Termination Act ("ICCTA"); ii) Plaintiffs failed to comply with the notice provisions that are a prerequisite to filing a RCRA citizen's suit; and iii) Plaintiffs are without standing to prosecute the RCRA claim. Defendants NYS & W and Delaware Ostego crossmove for dismissal on the pleadings pursuant to Fed.R.Civ.P. 12(c). The Cardella Defendants join in this motion.¹

I. BACKGROUND

Riverkeeper and Baykeeper are nonprofit environmental advocacy groups focused on protecting New Jersey waterways from environmental contamination. Both organizations are members of the "Waterkeeper Alliance," an international organization of watershed advocates working together to attain the "fishable and swimable" goals of the Clean Water Act, 33 U.S.C. § 1251, et seq. Riverkeeper and Baykeeper advocate for strict controls of upland sources of stormwater runoff and air emissions in furtherance of this goal.

Riverkeeper operates the Eco-Cruise, Eco-Walk and the Hackensack Riverkeeper Canoe Project programs. Eco-Cruises are boat tours on the Hackensack River and Meadowlands. Eco-Walks are guided field trips to unique habitat areas within the Hackensack River watershed. The Riverkeeper Canoe Project is a recreational canoe rental facility, which also hosts various canoeing events and competitions. Riverkeeper's funding depends, in part, on donations and fees resulting from Eco-Cruise E co-Walk and Riverkeeper Canoe Project programs.

Sheehan and Willner are officers of Riverkeeper and Baykeeper (respectively). They are self-described "avid naturalists" who engage in boating, fishing and birdwatching on the Hackensack River. Their enjoyment of the Hackensack River and watershed has been inhibited by environmental contamination.

NYS & W is a regional railroad that operates more than 400 miles of track in New York, New Jersey, and Pennsylvania. It is a wholly-owned subsidiary of Delaware Ostego, and owns and/or operates transloading facilities at the following five locations in North Bergen, New Jersey:²

(1) Block 446A, Lot 2 ("the 16th St. Facility");

(2) Block 481, Lot 1 ("the 43rd St. Facility");

(3) Block 480, Lots 1, lc, 2, 6, 7, 8 & 9 ("the 94th St. Facility");³

(4) Block 446, Lot 7 ("the Secaucus Rd. Facility"); and

(5) Block 453A, Lots SC, 5A1, 7C and Block 481, Lot 1 ("the West Side Ave. Facility").

Cardella and OnTrack are trucking companies that are implicated only insofar as they are alleged to assist NYS & W in operating the 43rd St. Facility.

According to the Complaint, NYS & W receives construction and demolition debris at the 16th St., 43rd St., 94th St., and Secaucus Rd. transloading facilities from commercial properties and construction sites, and transports the debris, via railroad, to various out-of-state locations for disposal. The debris collected at these facilities includes concrete, asphalt, plaster, wallboard, roofing materials, leaded paint, cardboard, metal, insulation, plastic scrap, treated and untreated wood scrap and other materials.

Plaintiffs allege that the debris is unloaded from trucks at the transloading facilities and dumped directly onto the ground, where it sits in large uncovered piles until being loaded onto rail cars for transport. The debris is neither kept in watertight containers nor fully blockaded in, and there are no water collection systems employed at any of these sites. NYS & W employees spray water on the debris periodically to reduce dust, and rainwater falls directly on the debris because it lies uncovered. Plaintiffs further allege that water runoff, as well as drifting dust and litter from these activities contaminate the surrounding wetlands and neighborhoods, and that this contamination contributes to the polluted and unusable state of the River and watershed.

In addition to its activities at the first four sites, NYS & W also receives, stores, and processes contaminated, radioactive soils and other materials at the West Side Ave. Facility. The West Side Ave. Facility consists of a ramp that leads to a partially enclosed structure. Trucks remain outside on the ramp and tilt their loads into a partially enclosed chute that leads to open rail cars. After being fully loaded, the rail cars are enclosed in plastic. Plaintiffs allege that this facility is not adequately constructed to prevent emissions of dust and other airborne particles from the contaminated soils, and that NYS & W's operations have caused and continue to cause solid waste to enter the environment.

II. PROCEDURAL HISTORY

On August 3, 2005, Plaintiffs sent a notice letter to Defendants stating that their "waste management operations and facilities at several transfer stations and other solid and hazardous waste management facilities in North Bergen New Jersey, violate[d] [RCRA]" and that Plaintiffs intended to file a citizen suit to abate those violations. In their letter, Plaintiffs noted "[n]either the State of New Jersey nor the Federal [Environmental Protection Agency] has brought suit in court to abate the RCRA violations. Accordingly, Prospective Plaintiffs hereby put you on notice of their intent to sue for abatement of those violations pursuant to Section 7002 of RCRA, 42 U.S.C. § 6972." Plaintiffs forwarded copies of this letter to the National and Regional Administrators of the U.S. Environmental Protection Agency ("EPA"), the U.S. and New Jersey Attorneys General, and the Commissioner of the New Jersey Department of Environmental Protection ("NJDEP").

The notice letter read in pertinent part, as follows:

We write on behalf of Raritan Baykeeper, Inc.(d/b/a/ NY/NJ Baykeeper), Hackensack Riverkeeper, Inc., Andrew Willner and William Shehan (together the "Prospective Plaintiffs") to notify you that your waste management operations and facilities at several transfer stations and other solid and hazardous waste management facilities in North Bergen, New Jersey, violate the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"). Neither the State of New Jersey nor the Federal [EPA] has brought suit in court to abate the RCRA violations. Accordingly, Prospective Plaintiffs hereby put you on notice of their intent to sue for abatement of those violations pursuant to Section 7002 of RCRA, 42 U.S.C. § 6972.

The Facilities

There are currently five waste management facilities in North Bergen, New Jersey that are serviced by [NYS & W]. NYS & W is a subsidiary of [Delaware Ostego]. These facilities (collectively "facilities") are referred to as follows:

. . . . . .

RCRA allows citizens to bring suit "against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, prohibition, or order which has become effective pursuant to this chapter." 42 U.S.C. § 6972(a)1(a)[.]

One of the applicable standards or prohibitions that has become effective pursuant to RCRA is the ban on "any solid waste management practice or disposal of solid waste . . . which constitutes open dumping . ." 42 U.S.C. § 6945(a).

. . . . . .

The Facilities are open dumps and violate RCRA, as they are not permitted sanitary landfills or facilities for the disposal of hazardous waste. Specifically, from at least November 15, 2004 to the present, the 16th Street, 43rd Street, 94th Street and 2480 Secaucus Road Facilities have accepted unbundled, mixed waste from commercial properties or construction sites. In general, the waste handled...