The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
Presently before the court is defendants' motion to dismiss the complaint and plaintiffs' motion for summary judgment. For the reasons discussed below, the court grants dismissal and denies summary judgment.
Plaintiffs Onondaga Landfill Systems, Inc. (OLSI), Jospeh R. Tripoli, and Mary E. Tripoli are the owners and operator of a sanitary landfill in Onondaga, New York. They purchased the landfill from a previous owner and began operations in 1977. In December, 1978, the New York State Department of Environmental Conservatioin (DEC) held a public hearing on OLSI's permit applications to operate and expand the landfill. The Administrative Law Judge found that OLSI's operations did not satisfy the requirements of 6 N.Y.C.R.R. § 360.8 and expressed particular concern that the landfill posed a threat to the groundwater. By order dated August 31, 1979, the Commissioner of the DEC denied OLSI's permit applications and ordered the landfill closed. The Commissioner found that the landfill site was "fundamentally unsuited" for a sanitary landfill and the operation was not "reasonably capable of . . . full compliance with 6 N.Y.C.R.R. Part 360." On May 27, 1981, the Appellate Division of the New York State Supreme Court, Fourth Department, affirmed the Commissioner's decision. Onondaga Landfill Systems, Inc. v. Flacke, 81 A.D.2d 1024, 440 N.Y.S.2d 135 (4th Dep't 1981). The New York Court of Appeals subsequently denied OLSI permission to appeal.
In July, 1981, the DEC brought an action in New York State Supreme Court to enforce the Commissioner's August, 1979, order. On July 26, 1982, Supreme Court Judge John Balio ordered the plaintiffs' landfill closed on or before October 31, 1985. Until that time, plaintiffs are permitted to operate the facility. The State Court has retained jurisdiction over the landfill and has appointed a receiver to oversee the landfill's operation and closure.
Judge Balio's order provides in pertinent part:
ORDERED, that the receiver shall have the authority and responsibility to supervise defendant's compliance with 6 NYCRR Part 360 for interim landfill operations and shall have the further authority subject to approval of the Court, to employ an engineer to render expert assistance on environmental issues and advise the receiver on policy matters, particularly with respect to the development, submission, and implementation of a closure plan; and it is further
ORDERED, that the defendant OLSI and its President, JOSEPH TRIPOLI, shall continue to own, possess, and operate subject landfill, provided however, that said defendant, its officers and employees shall abide by all supervisory directives of the receiver concerning operation in compliance with 6 NYCRR Part 360 and such other powers and directives hereinafter set forth; and it is further
ORDERED, that the Commissioner and his employees, aside from routine field inspections, shall communicate directly with the receiver and/or his designee, concerning compliance with environmental regulations; and it is further
ORDERED, that the receiver shall report not less infrequently than monthly to the Court on the general status of landfill operations, closure plan preparation, closure, and receivership activities;. . . .
In July, 1984, the DEC began inspecting plaintiffs' landfill on a "twice daily" basis pursuant to New York Environmental Conservation Law (ECL) § 3-0301(2)(g)
and 6 N.Y.C.R.R. § 360.1(j).
Plaintiffs claim that the DEC's inspections constituted permanent monitoring resulting in a violation of their constitutional rights. According to plaintiffs, the DEC's inspector arrived daily in the morning, left for lunch, and returned in the afternoon. Prior to July, 1984, the DEC inspected the landfill for approximately one hour, once or twice a month. Plaintiffs contend that this is the normal rate of inspection at other area landfills.
On November 5, 1984, plaintiff Joseph Tripoli ordered the DEC's inspector to leave the landfill and not return. The DEC applied to the New York State Supreme Court for a search warrant but later withdrew its application. The parties subsequently stipulated to once-a-week inspections.
Plaintiffs filed their federal complaint against the DEC's Commissioner and Regional Attorney on November 26, 1984. The complaint alleges that ECL § 3-03301(2)(g) and 6 N.Y.C.R.R. § 360.1(j) are unconstitutional on their face and as applied. Plaintiffs seek a declaratory judgment and damages.
On January 3, 1985, the state defendants and the Town of Onondaga, plaintiff-intervenors in the state action, applied to New York State Supreme Court Judge Balio for an order to show cause enjoining plaintiffs from interfering with the DEC's inspections of the landfill and awarding civil penalties against plaintiffs for violating 6 N.Y.C.R.R. § 360.1(j). The order is returnable in the State Supreme Court on February 1, 1985. As a result, the validity of the statute and regulation at issue in the present action is now also pending before the state court.
In this federal action, the state defendants have moved for dismissal. Plaintiffs have crossed moved for partial summary judgment on the facial constitutionality of both ECL § 3-0301(2)(g) and 6 N.Y.C.R.R. § 360.1(j). For convenience, the court will hereafter refer to both the ...