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Love v. New York State Dep't of Envtl. Conservation

Citation: 12 ELR 20571
No. No. 80 Civ. 5081, 529 F. Supp. 832/17 ERC 2083/(S.D.N.Y., 12/07/1981)

The court rules that state and local officials cannot be held liable under federal law for a developer's pollution of plaintiff's pond, but that a citizen suit under the Federal Water Pollution Control Act (FWPCA) may proceed against the developer notwithstanding the state's prosecution of an enforcement action. Initially the court dismisses plaintiff's claims premised on the federal common law of nuisance, holding it to have been preempted by the FWPCA. The court also rules that plaintiff has no private right of action for monetary damages under the FWPCA, and may seek only prospective injunctive relief under the Act's citizen suit provisions. Next, the court holds that the Eleventh Amendment does not bar a suit for injunctive relief against state officials but does preclude an action against the state or its agencies. It rules that the citizen suit provisions of the FWPCA are inapplicable to suits against the state officials for issuance of state pollutant discharge elimination system (SPDES) permits. Moreover, claims against them for aiding and abetting privately caused pollution are not authorized by the FWPCA. The court dismisses plaintiff's claims against defendant local officials, finding that § 301 of the FWPCA does not impose liability on them for a third party's failure to obtain a discharge permit or for acquiescence in pollution. Similarly, § 404 imposes no duty on local governments to insure that private parties secure a dredging permit. In refusing to dismiss plaintiff's citizen suit against the developer, the court rules that the suit is not barred by the pendency of an enforcement action brought to the state since that action has not been shown under § 505(b)(1)(B) to have been diligently prosecuted. The court further finds that the erosion of dredged materials into a stream constitutes a discharge of dredged material under § 404. It rejects defendant's argument that plaintiff failed to allege that the discharges occurred below the stream's headwaters and thus do not fall within the ambit of § 404. Finally, the court rejects proposed amendments to the complaint based on a theory of taking of private property. It rules that the state's issuance of SPDES permits to defendants did not constitute a taking of plaintiff's property, and that an action against local officials under the Civil Rights Act based on a taking theory is foreclosed by the FWPCA.

Counsel for Plaintiff
L. Robert Primoff
Primoff & Primoff
41 E. 42d St., New York NY 10017
(212) 687-8260

Albert K. Butzel
Berle, Butzel, Kass & Case
45 Rockefeller Plaza, New York NY 10011
(212) 765-1800

Counsel for Defendants
Robert Abrams, Attorney General; John G. Proudfit
Department of Law, 2 World Trade Center, New York NY 10047
(212) 488-3320

Daniel Riesel, Mark A. Chertok, Jay S. Blumenkopf
Winer, Neuberger & Sive
425 Park Ave., New York NY 10022
(212) 421-2150

Stephen B. Camhi, Nicholas A. Robinson, Patricia E. London
Marshall, Bratter, Greene, Allison & Tucker
430 Park Ave., New York NY 10022
(212) 421-7200