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December 16, 2002


The opinion of the court was delivered by: David N. Hurd, United States District Judge



Oral argument was heard on September 27, 2002 in Albany, New York. Decision was reserved.


A. The Parties

Plaintiffs own property in the Village of Ellenville, New York. (Defs.' Joint Rule 7.1 Stmnt at ¶¶ 6, 10.)*fn1 The Village of Ellenville ("Village" or "Ellenville") is located within the Town of Warwarsing ("Town" or "Warwarsing") in Ulster County, New York. The Ellenville Scrap Yard ("ESY") also is located within the Village and Town. (Id. at ¶ 1.) The New York State Department of Environmental Conservation ("DEC") is a state agency.

1. The Ellenville Defendants (Village)

Defendants Raymond Younger ("Mayor Younger"), Joseph Straub ("Code Officer (C.O.) Straub"), and Michael Mills ("Village Manager Mills") (collectively referred to as the "Ellenville Defendants"), were or are officials of the Village of Ellenville. Mayor Younger became a member of the Village's Board of Trustees on April 1, 1989. (Id. at ¶ 46.) He served in that capacity until April 1, 1995, when he became the Village's mayor. (Id.) He served as mayor until April 5, 1999. (Id.). C.O. Straub was hired as the Ellenville Community Rehabilitation Specialist on May 29, 1979. He became the Village's code officer/building inspector on December 23, 1985. He continued to perform in that role until June 30, 1998. Mills became Village Manager on September 1, 1993, and continues to hold that position.

2. The Warwarsing Defendants (Town)

Defendants Gerald Depew ("Depew"), Joseph Stoeckler ("Supervisor Stoeckler") and John Kissell ("Code Enforcement Officer CEO Kissell") (collectively referred to as the "Warwarsing Defendants") were or are officials of the Town of Warwarsing. Depew is a former town supervisor. (Id. at ¶ 122.) Stoeckler also is a former town supervisor. (Id. at ¶ 123.) Kissell was the Town's Assistant Code Enforcement Officer from 1985 to 1991. In 1991, he became the Code Enforcement Officer. (Id. at ¶ 124.)

3. The State Defendants (DEC)

Defendants Marc Moran ("Moran"), Alan Fuchs ("Fuchs"), Albert Klauss ("Klauss"), and David Pollock ("Pollock") (collectively referred to as the "State Defendants") worked in the DEC's Division of Solid Waste Program. Moran was the DEC's Region 3's director. (Id. at ¶ 165.) Klauss was regional solid and hazardous waste engineer and Fuchs's immediate supervisor. (Id. at ¶ 166.) Fuchs, an environmental engineer III, was regional solid waste engineer, and Pollock's immediate supervisor. (Id. at ¶ 160 and 161.) Pollock was an environmental engineer I. (Id. at ¶ 157.)

B. History of the ESY

In the 1980s, ESY operated an illegal solid waste management facility accepting waste tires, construction and demolition ("C&D") debris, and other solid wastes. (Id. at ¶ 18.) In 1987, the DEC entered into a settlement of claim with ESY's then owners, Albert and Patricia Koplik (the "Kopliks"),*fn2 whereby ESY acknowledged it was operating an unpermitted solid waste management facility and improperly disposed of waste. (Id. at ¶ 19; Koczaja Decl., Ex. 1.) The Kopliks paid a fine and agreed to close and cover the area where the C&D debris had been dumped. (Id.)

In December 1989, the Town's building inspector contacted the DEC to report landfill activity at the ESY. (Id. at ¶ 128.) The Town and the DEC began an investigation into ESY. (Id. at ¶ 128.) In May 1989, the Town presented its case to the Ulster County District Attorney's office, which declined to prosecute the matter. (Id. at ¶ 129.) On May 11, 1989, the DEC searched the ESY site and found that regulated solid waste had been dumped there. In April 1992, the DEC referred ESY to the Attorney General's Office for criminal prosecution. (Id. at ¶ 22.) Albert Koplik ("Koplik") was indicted on six felony counts of illegal dumping. (Id. at ¶ 26.) He ultimately pleaded guilty to reduced misdemeanor charges. (Id.) In January 1995, the DEC and ESY entered into an Order on Consent whereby, among other things, ESY was required to undertake a preliminary assessment of the site for proper remediation. (Id. at ¶ 28.)

In or about October 1995, Pollock, from DEC, inspected the ESY site and discovered that there had been continued dumping at the site. (Id. at ¶ 32.) Plaintiff Maxine Chapin ("Chapin") first complained about ESY to the Village in 1996. (Id. at ¶ 50.) At that time, she informed Mayor Younger that there was mud and water on Cape Road. (Id.) Mayor Younger and Ellenville Police Officer Phil Mattracion met Chapin and Koplik to discuss the situation. (Id. at ¶ 51) On July 1, 1996, Ellenville C.O. Straub went to ESY to discuss the mud. (Id. at ¶ 54.) He followed up on several occasions, and on July 18, 1996, sent a notice to Koplik that the tracking of deposited soil and mud onto the pavement of Cape Road violated Part 196-1-A of the Village Laws. (Id. at ¶¶ 54-58.) He again followed up on the mud situation, and on August 8, 1996, issued a summons to ESY. (Id. at ¶¶ 59-61.) ESY pleaded guilty and paid a fine. (Id. at ¶ 61.) C.O. Straub continued to check on ESY throughout September 1996. (Id. at ¶¶ 62-64.) In January 1997, he noted that ESY was spreading shale to alleviate the mud problems. (Id. at ¶ 65.) He also called the Town to request that it watch that part of ESY located within the Town. (Id.)

In April 1997 it was observed that there had been continued dumping at the ESY. (Id. at ¶ 35.) In May 1997, the DEC entered into an Order on Consent with ESY's new owner, Bruno Demolition ("Bruno"), requiring Bruno to remove illegally dumped material and pay a fine. (Id. at ¶ 36.) On July 14, 1997, a Village meeting was held at which time plaintiff Chapin raised concern regarding odors emanating from the ESY. (Id. at ¶ 66.) On July 15, 1997, C.O. Straub inspected the ESY and detected a strong odor. He conferred with Village Manager Mills and CEO Kissell from the Town. (Id. at ¶ 67.) C.O. Straub also contacted the DEC, which stated that it would get back to him. (Id. at ¶ 68.) On July 17, 1997, he notified ESY that the odors emanating from the site violated Village of Ellenville Zoning Code § 227-15(C).*fn3 (Id. at ¶ 69.) He afforded ESY thirty days within which to remedy the situation. Also in July 1997, he spoke with Patrick Dunn ("Dunn") of the DEC's Division of Air. (Id. at ¶ 73.) Dunn advised C.O. Straub that the odor was a temporary problem resulting from the clean up of the site that was being conducted under DEC's consent order. (Id. at ¶ 73.) Dunn also advised that the odor was not a health threat. (Id.)

Over the next several months, Village officials monitored activity at the ESY. (Id. at ¶¶ 74-108.) During this time, Village officials were in contact with the DEC, the Ulster County Health Department, the Town, the New York State Office of Attorney General and Congressman Maurice Hinchey's office. (Id.) In February 1998, Supervisor Stoeckler for the Town, contacted the commissioner of the DEC seeking assistance with the ESY. (Id. at ¶ 136.) Also in February 1998, C.O. Straub issued a ticket to ESY because of the odors. (Id. at ¶ 83.) During this time, the plaintiffs Victoria and Roy Leland also complained to Village Manager Mills and the DEC about the ESY. (Id. at ¶¶ 87-88.) On February 12, 1998, Mayor Younger sent a letter to Moran of DEC requesting a full investigation of the ESY. (Id. at ¶ 90.) Moran responded by letter dated February 27, 1998, to Mayor Younger stating that the DEC intended to ensure that the ESY was operating in compliance with the applicable environmental laws. (Id. at ¶ 94.) On February 25, 1998, the DEC sent a notice of violation to Bruno stating that it was required to pay a $22,500 penalty because it failed to remove the waste from the site by September 1997, as required by the earlier consent order. On March 20, 1998, CEO Kissell inspected the ESY. (Id. at ¶ 137.) ESY was issued a notice of violation. (Id. at ¶ 137.) On April 29, 1998, the DEC also issued a notice of violation based on a March 16, 1998 inspection. (Id. at ¶ 138.) On May 20, 1998, Supervisor Stoeckler wrote the DEC's commissioner concerning the continued dumping at the ESY and the lack of responsiveness from DEC employees. (Id. at ¶ 140.) In May or June 1998, tests were taken at ESY's and plaintiffs' property. (Id. at ¶ 106.) The parties dispute the test results. Defendants contend that the test results did not indicate the presence of any hazardous chemicals, and that while PCB's were found, they were not found to be at levels considered to be hazardous. (Id. at ¶ 106.) Plaintiffs contend that the results showed elevated levels of lead and chromium and that PCBs, tetrachloroethane, 4,4' DDE and 4,4' DDT also were detected. (Pl. Rule 7.1 stmnt. at ¶ 106.)

The DEC advised Supervisor Stoeckler that it was taking steps to close the ESY and that the Attorney General's Office was pursuing its criminal investigation. (Defs.' Rule 7.1 Stmnt at ¶ 141.) In July and August 1998, the Town reinspected ESY. (Id. at ¶¶ 145-46.)

Thereafter, CEO Kissell, in consultation with the Town Board and Town attorney, filed an information against ESY. (Id. at ¶ 146.) On August 4, 1998, Village and Town officials met with the DEC to discuss the DEC's actions with respect to the ESY. (Id. at ¶ 108.) On August 31, 1998, Mayor Younger received a letter from DEC's Moran stating that the New York State and Ulster County Health Departments were sampling water wells. (Id. at ¶ 111.) During early to mid 1998, Moran instructed his staff to make a recommendation to the DEC's general counsel in Albany that ESY be referred to the Attorney General's Office a second time for site closure and enforcement of the environmental laws. (See id. at ¶ 176.)

As a result, in August 1998, a state court issued a temporary restraining order closing the ESY site and prohibiting further dumping at the site. (Id. at ¶ 177.) In May 1999, the temporary restraining order was converted to a preliminary injunction. (Id. at ¶ 178.) In August 2000, the Village sent a letter to ESY regarding work that needed to be conducted at the site. (Id. at ¶ 114.) The Village also sent a letter to the Ulster County Department of Health requesting that they remove the deposited tires at the ESY. (Id. at ¶ 115.) The Village also informed the New York Attorney General's Office that Bruno accessed ESY after it was closed, and requested that the Attorney General's Office renew its efforts to clean the property. (Id. at ¶ 116.) The Village wrote to the DEC requesting funding to clean the site. (Id. at ¶ 118.) It appears that, to date, the ESY still has not been cleaned up.

C. Procedural History

Plaintiffs initially consulted with an attorney regarding ESY in 1997 or 1998. Plaintiffs did not sue ESY. (Id. at ¶ 193.) Instead, plaintiffs commenced the instant action by filing their Complaint on September 13, 1999. The Complaint asserts six causes of action.

The First Cause of Action is brought pursuant to 42 U.S.C. § 1983, and alleges that the State Defendants failed to halt the illegal polluting at the ESY, and that these defendants' deliberate indifference to plaintiffs' health, welfare and property rights deprived them of their substantive due process rights in violation of the Fourteenth Amendment to the United States Constitution. The Second and Third Causes of Action assert similar theories of recovery as against the Warwarsing Defendants (Second Cause of Action) and the Ellenville Defendants (Third Cause of Action). The Fourth Cause of Action alleges that the Village and Town failed to take proper steps to remediate the situation at the ESY, and failed to properly train their employees to adequately protect plaintiffs' health and property rights. Plaintiffs claim that these failures deprived them of their rights as protected by the Fourteenth Amendment. The Fifth Cause of Action claims that defendants failed to enforce the statutory and regulatory provisions of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, et. seq., in violation of the Fourteenth Amendment. The Sixth Cause of Action asserts a state law claim of negligence against the Ellenville and Warwarsing Defendants.

On December 6, 1999, the State Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6). By Memorandum-Decision & Order dated April 13, 2000, this motion was denied. (Docket No. 41) On March 8, 2000, the Ellenville Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). By Memorandum — Decision & Order dated June 21, 2000, the Ellenville Defendants' motion to dismiss was granted in part and denied in part. Leland v. Moran, 100 F. Supp.2d 140 (N.D.N.Y. 2000) Plaintiffs' claims against the Village of Ellenville Police Department were dismissed in their entirety. Plaintiffs' negligence and RCRA claims against the Ellenville Defendants also were dismissed. (Id. at p. 146-147)

As noted above, all of the defendants now move for summary judgment seeking to dismiss the Complaint in its entirety. Defendants argue that plaintiffs do not have a constitutionally protected property interest in the enforcement of the various village, town and state laws, that the individual defendants are entitled to qualified immunity, and that plaintiffs have not suffered any damages. The State Defendants also argue that plaintiffs cannot seek relief for violations of the RCRA under 42 U.S.C. ...

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