Full opinion text
MEMORANDUM-DECISION and ORDER GLENN T. SUDDABY, District Judge. Currently before the Court in this environmental action filed by Gail Murtaugh, Richard R. Murtaugh, Murtaugh Recycling Corp., Richard O. Murtaugh, and Flood Drive Properties, Inc. (“Plaintiffs”) are the following three motions: (1) a motion to dismiss for lack of subject-matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to join indispensable parties, filed by Oswego County (hereinafter “County Defendant”) (Dkt. No. 56, Attach. 30); (2) a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, filed by New York State, New York State Department of Environmental Conservation Commissioner Pete Grannis, Benjamin Conlon, Richard Brazell, Maureen Leary, and Andrea Rhonda Miller (hereinafter “State Defendants”) (Dkt. No. 59, Attach. 2); and (3) a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, filed by Op-Tech Environmental Services and William Simpson (hereinafter “Corporate Defendants”) (Dkt. No. 60, Attach. 3). For the reasons set forth below, County Defendant’s motion is granted in part and denied in part; State Defendants’ motion is granted; and Corporate Defendants’ motion is granted. TABLE OF CONTENTS I. RELEVANT BACKGROUND...............................................456 A. Plaintiffs Claims.......................................................456 B. Defendants’ Motions....................................................457 1. County Defendant’s Motion..........................................457 2. State Defendants’ Motion............................................459 3. Corporate Defendants’ Motion........................................462 II. RELEVANT LEGAL STANDARDS.........................................463 A. Standard Governing Dismissals for Failure to State a Claim.................463 B. Standard Governing Dismissals for Lack of Subject-Matter Jurisdiction.....464 C. Standard Governing Dismissals for Failure to Join Indispensable Party.....464 D. Standards Governing Plaintiffs’ Claims....................................465 III. ANALYSIS...............................................................465 A. Murtaugh Plaintiffs’ CWA Claim.........................................465 1. Whether Murtaugh Plaintiffs’ Claim Should Be Dismissed on the Ground of Lack of Standing, “Public Policy,” Collateral Estoppel and/or Failure to Fulfill the Jurisdictional Notice Requirement.....465 2. Whether, in the Alternative, Murtaugh Plaintiff s Have Failed to Alege that, at the Time They Filed Their Complaint, There Was a Continuous or Intermittent Violation of the CWA and a Reasonable Likelihood that County Defendant Would Continue to Pollute ..........468 3. Whether, in the Alternative, Murtaugh Plaintiffs’ Claim Should Be Dismissed for Failure to Join an Indispensable Party..................469 4. Whether, in the Alternative, the Eleventh Amendment Bars Murtaugh Plaintiffs’ Claim Against Defendant Grannis................469 B. Murtaugh Plaintiffs’ RCRA Claims.......................................471 1. Claim Under 42 U.S.C. § 6972(a)(1)(A)................................471 a. Whether Murtaugh Plaintiffs’ Claim Should Be Dismissed on Grounds of Lack of Standing, “Public Policy,” Collateral Estoppel and/or the Eleventh Amendment.......................471 b. Whether, in the Alternative, Murtaugh Plaintiffs Have Failed to Allege that, at the Time They Filed Their Complaint, County Defendant Was Accepting and/or Introducing Waste to the City Dump...................................................473 2. Claim Under 42 U.S.C. § 6972(a)(1)(B)................................474 C. Plaintiffs’CERCLA Claim ..............................................476 D. Plaintiffs’ Civil Rights Claims Under 42 U.S.C. § 1983 ...................... 479 1. Due Process Claims Against Defendants Conlon, Brazell, and Leary Corporate Defendants.............................................479 2. Unlawful-Search-and-Seizure Claims Against Defendants Conlon, Brazell, and Leary and Corporate Defendants........................482 E. Plaintiff Gail Murtaugh’s Due Process and Unlawful-Search-and-Seizure Claims Against Defendant Leary and Corporate Defendants...............483 F. Plaintiffs’State Law Claims.............................................485 1. Claim for Nuisance Against Defendant New York State, Defendant Grannis, and County Defendant....................................485 2. Claim for Declaratory Relief Against Defendant New York State, and Defendants Miller, Brazell, Conlon, and Leary........................488 3. Claim for Negligence Against Corporate Defendants....................488 G. State Defendants’ and Corporate Defendants’ Abstention Arguments.........489 I. RELEVANT BACKGROUND A. Plaintiffs Claims On October 30, 2008, Plaintiffs filed their Complaint in this action. (Dkt. No. 1.) On July 16, 2009, Plaintiffs filed an Amended Complaint. (Dkt. No. 46.) Generally, Plaintiffs’ Amended Complaint asserts claims against Defendants arising from the alleged ownership and operation of the Old City of Fulton Dump (hereinafter “City Dump”), located at 40 Airport Drive, Fulton New York (hereinafter “County Property”), which allegedly has discharged, and continues to discharge, pollutants, hazardous substances and hazardous waste into the water of the United States and onto the property of Plaintiffs Gail Murtaugh and Flood Drive Properties, Inc. (Id.) More specifically, Plaintiffs Amended Complaint asserts the following three claims by Plaintiffs Gail Murtaugh, Richard R. Murtaugh, and Murtaugh Recycling Corp. (“Murtaugh Plaintiffs”), against County Defendant and Defendant Grannis: (1) a claim of violation of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., based on the unlawful discharge of pollutants to an unnamed tributary of the Oswego River; (2) a claim of violation of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(A), based on the maintenance of an “open dump,” which negatively impacts Murtaugh Plaintiffs and their real property and business operations; and (3) a claim of violation of RCRA, 42 U.S.C. § 6972(a)(1)(B), based on the handling, storage, treatment, transportation, or disposal of solid or hazardous waste contained on, at, or about the Old City of Fulton Dump (hereinafter “City Dump”) located at 40 Airport Drive, Fulton New York (hereinafter “County Property”). (Id.) In addition, Plaintiffs’ Amended Complaint asserts the following claims by all Plaintiffs against County Defendant, Defendant New York State, and Defendant Grannis: (1) a claim of violation of 42 U.S.C. § 9601 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), based on the releasing or threatened releasing of hazardous substances from, at, and about the City Dump; and (2) a state law claim for nuisance, based on the City Dump’s discharge and release of leachate containing pollutants, hazardous substances, and hazardous wastes onto the real property located at 180 Flood Drive in the Town of Volney, Oswego County, New York (hereinafter “the Murtaugh Property”) and the real property located at 170 Flood Drive, Town of Volney, Oswego County, New York (hereinafter the “Flood Property”). (Id.) Finally, Plaintiffs’ Amended Complaint asserts the following five claims against certain State Defendants and all Corporate Defendants arising from their entry onto Plaintiffs’ properties, and removal of certain materials: (1) a claim of violation of due process and unlawful search and seizure under the Constitution and 42 U.S.C. § 1983, asserted by all Plaintiffs against Defendants Conlon, Brazell, and Leary, and Corporate Defendants, based on those Defendants’ entry onto Plaintiffs’ properties and creation of an excavation, which lowered the water table and induced and enhanced the flow of leachate discharge from the upgradient City Dump; (2) a claim of violation of due process and unlawful search and seizure under the Constitution and 42 U.S.C. § 1983, asserted by Plaintiff Gail Murtaugh, individually and d/b/a Crosby Hill Auto Recycling Corp., against Defendant Leary and Corporate Defendants, based on the removal and sale of scrap metal from the Murtaugh Property; (3) a state law claim for unlawful, willful, or malicious acts or omissions, asserted by all Plaintiffs against Defendant New York State, and Defendants Miller, Leary, Conlon, and Brazell, based on actions that caused the lowering of the water table on the Murtaugh Property, which resulted in unpermitted point source discharges from the City Dump, the induced flow of pollutants and hazardous wastes, and a destruction of a portion of the property; and (4) a state law claim for negligence, asserted by all Plaintiffs against Corporate Defendants, based on actions and omissions concerning the Murtaugh Property and the Flood Property. (Id.) Familiarity with the factual allegations supporting these claims in Plaintiffs Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.) B. Defendants’ Motions 1. County Defendant’s Motion Generally, in support of its motion to dismiss for'lack of subject-matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to join indispensable parties, County Defendant argues as follows: (1) the Court lacks subject-matter jurisdiction over Plaintiffs’ CERCLA claim and/or Plaintiffs’ have failed to state a CERCLA claim because (a) Plaintiffs are admitted polluters of their property, (b) the County is not a “covered person” under CERCLA, (c) Plaintiffs have not suffered an injury in fact from anyone’s actions, (d) this claim is barred by the doctrine of collateral estoppel because the issues giving rise to this claim have been fully litigated in, and are inextricably intertwined with, prior New York State court decisions, and (e) any claim arising out of 42 U.S.C. § 9613(f)(1) based on inadequate notice of reclassification of the City Dump is barred by the governing three-year statute of limitations; (2) the Court lacks subject-matter jurisdiction over Plaintiffs’ RCRA claim and/or Plaintiffs’ have failed to state a RCRA claim because (a) a citizen suit cannot be used to enforce RCRA’s permitting and/or operating regulations or standards, (b) 40 C.F.R. § 258.1 specifically exempts municipal solid waste landfills from liability under the RCRA, (c) a necessary element of a RCRA claim is that the dump pose an imminent and substantial endangerment to health or the environment, and here the City Dump does not present a significant threat to the public health or environment (because it has been classified as a Class 3 site), (d) County Defendant is not a “contributor” under 42 U.S.C. § 6972(a)(1)(B) of the RCRA, and (e) this claim is barred by the doctrine of collateral estoppel in that the issues giving rise to this claim have been fully litigated and are inextricably intertwined with prior New York Sate court decisions; (3) the Court lacks subject-matter jurisdiction over Murtaugh Plaintiffs’ CWA claim and/or Murtaugh Plaintiffs have failed to state a CWA claim because (a) the results of the numerous proceedings mentioned in the Amended Complaint found that the former City Dump did not impact Plaintiffs’ premises, (b) a necessary element of a CWA claim is that the dump pose an imminent and substantial endangerment to health or the environment, and here the City Dump does not present a significant threat to the public health or environment (in that it has been classified as a Class 3 site), (c) this claim is barred by the doctrine of collateral estoppel because the issues giving rise to this claim have been fully litigated and are inextricably intertwined with prior New York State court decisions, and (d) Plaintiff’s Notice of Intent to the County was inadequate because it did not inform the County what pollutant it was being attributed to releasing; (4) Plaintiffs’ nuisance claim should be dismissed because (a) it is barred by the governing statute of limitations, (b) the Court should not exercise supplemental jurisdiction over Plaintiffs’ state law claims after dismissing their federal claims, and (c) Plaintiffs failed to timely serve a notice of this claim; (5) Plaintiffs are not entitled to injunctive relief because they cannot show irreparable harm to themselves or the public caused by others; and (6) Plaintiffs have failed to join the parties that they identified in their Notice of Intent to Sue, who they acknowledge contributed to the past and present contamination and alleged imminent endangerment to health or the environment, and who are therefore indispensable. {See generally Dkt. No. 56, Attach. 30 [County Def.’s Memo, of Law].) In their response to County Defendants’ motion, Murtaugh Plaintiffs argue as follows: (1) because the County Defendant’s motion does not comply with Fed.R.Civ.P. 7, 8, and 12(b), the Court should decline to consider any of the evidence submitted by County Defendant; (2) County Defendant’s argument that Murtaugh Plaintiffs lack standing is without merit; (3) Plaintiffs have alleged facts plausibly suggesting that County Defendant, through State and Corporate Defendants, accepted and/or introduced waste (or other hazardous substances) to the City Dump; (4) Murtaugh Plaintiffs are not barred by the doctrine of collateral estoppel from bringing this action; (5) the Amended Complaint states a cause of action under the CWA; (6) Plaintiffs’ CERCLA claim should not be dismissed because (a) they have pled a prima facie case of liability, (b) the fact that Murtaugh Plaintiffs have admitted to contaminating the Murtaugh Property does not preclude them from bringing this action to recover costs for past releases and continuing releases of leachate, acetone and other pollutants that flow from the City Dump onto the Murtaugh Property, (c) the existence of past, and the threat of future, releases has not already been adjudicated in New York State court, (d) the issue of whether the County acquired the City Dump involuntarily or is an “owner or operator” involves a question of fact, and is therefore not a basis for dismissal under Fed.R.Civ.P. 12(b), and (e) whether the alleged release was the result of acts or omissions by third parties involves a question of fact, and is therefore not a basis for dismissal under Fed.R.Civ.P. 12(b); (7) Plaintiffs’ claim under § 6972(a)(1)(A) of the RCRA should not be dismissed because (a) County Defendant is subject to regulation pursuant to 40 C.F.R. § 257, (b) Plaintiffs have alleged facts plausibly suggesting that County Defendant owns or operates the City Dump, which is an “open dump,” and (c) Plaintiffs have alleged facts plausibly suggesting that the City Dump has one or more regular ongoing or intermittent point source discharges of leachate, acetone and other pollutants into waters of the United States, and those discharges are without the benefit of the necessary permits; (8) Plaintiffs’ claim under § 6972(a)(1)(B) of the RCRA should not be dismissed because they have alleged facts plausibly suggesting the occurrences of continued discharges of leachate subsequent to 2005, and uncontrolled discharges of pollutants in volumes sufficient to saturate the Flood Property and turn significant portions orange in color; (9) Plaintiffs’ state law nuisance claim should not be dismissed because (a) federal causes of action should remain in this case, (b) the notice of claim was proper, and (c) the statute of limitations had not expired when this claim was brought; and (10) County Defendant’s argument that Plaintiffs failed to name an indispensable party is without merit. {See generally Dkt. No. 66 [Response Memo, of Law].) In their response to County Defendants’ motion, Richard O. Murtaugh, and Flood Drive Properties, Inc. (“Flood Plaintiffs”) argue as follows: (1) County Defendant’s argument that Plaintiffs lack standing is without merit; (2) Plaintiffs’ CERCLA claim should not be dismissed because (a) they have pled a prima facie case of liability, (b) the fact that Murtaugh Plaintiffs have admitted to contaminating the Murtaugh Property does not preclude Flood Plaintiffs from bringing this action to recover costs for past releases and continuing releases of leachate, acetone and other pollutants which flow from the City Dump onto the Flood Property, (c) the existence of past, and the threat of future, releases has not already been adjudicated in New York State court, (d) the issue of whether the County acquired the City Dump involuntarily or is an “owner or operator” involves a question of fact, and is therefore not a basis for dismissal under Fed. R.Civ.P. 12(b), and (e) whether the alleged release was the result of acts or omissions by third parties involves a question of fact, and is therefore not a basis for dismissal under Fed.R.Civ.P. 12(b); (3) Plaintiffs’ state law nuisance claim should not be dismissed because (a) federal causes of action should remain in this case, (b) the notice of claim was proper, and (c) the statute of limitations had not expired when this claim was brought; and (4) County Defendant’s argument that Plaintiffs failed to name an indispensable party is without merit. {See generally Dkt. No. 68 [Response Memo, of Law].) In its reply, County Defendant essentially reiterates previously advanced arguments. {See generally Dkt. No. 72 [County Def.’s Reply Memo, of Law].) 2. State Defendants’ Motion Generally, in support of their motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, State Defendants argue as follows: (1) the Court should abstain from exercising jurisdiction over this action because (a) litigation was fully underway in New York State court before this action was commenced, (b) Plaintiffs’ claim that governmental officials have derelicted their obligations under relevant statutes and regulations implicates an important state interest, and (c) New York State courts will afford the parties a full and fair opportunity to litigate the claims/issues presented in the Amended Complaint; (2) the Court should alternatively abstain from exercising jurisdiction over this action because New York State has a compelling interest in deciding litigation challenging its authority to regulate and remediate contaminated property, and abstention avoids disturbing state efforts to establish a coherent policy with respect to a matter of substantial public concern; (3) the Court should decline to exercise jurisdiction over Plaintiffs’ claims pursuant to the Rooker-Feldman doctrine because the relief that Plaintiffs seek would effectively void or reverse a related ruling in New York State court; (4) Plaintiffs’ claims are barred by the doctrine of collateral estoppel because all issues raised in this action have been briefed, argued, adjudicated and rejected in New York State Supreme Court; (5) State Defendants are immune from suit under the doctrine of sovereign immunity because the claims asserted against the individual State Defendants are actually claims asserted against them in their official capacity and Plaintiffs have failed to establish that New York State waived its sovereign immunity; (6) individual State Defendants are entitled to qualified immunity because their actions did not violate any clearly established rights, and were not objectively unreasonable, in light of the authority granted to them by an administrative law judge and the New York State courts to conduct investigative and remedial activities on Plaintiffs’ properties; (7) Plaintiffs’ claims under 42 U.S.C. § 1983 should be dismissed because (a) they have failed to allege facts plausibly suggesting that State Defendants interfered with a constitutionally cognizable property interest, (b) Plaintiffs have failed to allege facts plausibly suggesting that State Defendants’ efforts to investigate and remediate Plaintiffs’ environmental violations were “arbitrary,” such that Plaintiffs may succeed on their substantive due process claim, and (c) Plaintiffs have failed to allege facts plausibly suggesting that State Defendants’ actions constitute a “taking” because (i) Plaintiffs have no cognizable right to carry on with their auto dismantling/recycling business, and no legitimate property interest in the scrap metal and contaminated junk removed from their property, (ii) a New York State court has already concluded that the contamination on Plaintiffs’ properties predated any remediation efforts by New York State, and (iii) the allegation that State Defendants caused pollution damage to Plaintiffs’ properties by engaging in remedial work and/or failing to eradicate the adjacent landfill is conclusory and unsupported by any other factual allegations; (8) Plaintiffs lack standing to assert causes of action under CERCLA, the CWA, and the RCRA because the New York State Department of Environmental Conservation (“NYS DEC”) and New York State courts have determined that Plaintiffs contaminated their own property, and it would violate public policy to allow such culpable parties to invoke federal environmental statutes against the agency which sought to investigate, curtail and remediate the pollution; (9) Plaintiffs’ claim under the CWA must be alternatively dismissed because (a) they failed to fulfill the jurisdictional notice requirement of the CWA, and (b) they have failed to allege facts plausibly suggesting a claim under the CWA; (10) Plaintiffs’ claim under § 6972(a)(1)(A) of the RCRA must alternatively be dismissed because (a) Defendant Grannis is not the “owner” or “operator” of the City Dump, and his authority to decide whether and how to investigate environmental complaints cannot serve as a jurisdictional basis for a citizen suit under the RCRA, (b) Defendant Grannis cannot plausibly be in violation of any “permit, standard, regulation, condition, requirement, prohibition, or order” involving the City Dump because the landfill was closed before the RCRA was enacted, (c) the City Dump cannot be an “open dump,” violative of the RCRA, because the statute expressly excludes sanitary landfills and facilities which are disposal facilities for hazardous waste; (11) Plaintiffs’ claim under § 6972(a)(1)(B) of the RCRA must alternatively be dismissed because (a) the City Dump has been, and continues to be, regulated as a Class 3 site on the New York State Inactive Hazardous Waste Site Registry, and therefore it does not present an “imminent and substantial endangerment” as a matter of law, and (b) Plaintiffs have failed to allege facts plausibly suggesting that they have been the “innocent victims” of contamination that has caused, or has the real potential to cause, an “imminent and substantial endangerment”; (12) Plaintiffs’ claim under CERCLA must alternatively be dismissed because (a) they have failed to allege facts plausibly suggesting that they have engaged in any remedial activities at the former City Dump, or on their own property, and (b) Plaintiffs have failed to allege facts plausibly suggesting that Defendant Grannis had anything to do with the City Dump prior to its closure in 1974; and (13) Plaintiffs’ state law claims should be dismissed because (a) no federal cause of action should survive this motion, and therefore it would be improper for the Court to exercise jurisdiction over the pendent claims, (b) Plaintiffs have already litigated and lost their state law claims in New York State court, (c) to the extent Plaintiffs’ pendent claims remain pending in New York State court, the Court should abstain from considering these claims pursuant to the Younger, Burford, and Rooker-Feldman doctrines, and (d) Plaintiffs’ pendent claims must fail under the doctrine of qualified immunity. (See generally Dkt. No. 59, Attach. 2 [State Defs.’ Memo, of Law].) In their response to State Defendants’ motion, Murtaugh Plaintiffs argue as follows: (1) because State Defendants’ motion does not comply with Fed.R.Civ.P. 7, 8, and 12(b), the Court should decline to consider any of the evidence submitted by State Defendants; (2) the Court should not abstain from exercising jurisdiction over this action because none of the abstention doctrines are applicable; (3) Plaintiffs’ notice of intent satisfied the jurisdictional requirements of the CWA; (4) State Defendants are not entitled to qualified immunity; (5) none of the individual State Defendants are immune from suit under the Eleventh Amendment, and (with regard to the claims asserted against New York State) New York State has waived its Eleventh Amendment immunity; (6) State Defendants Leary and Conlon are not entitled to prosecutorial immunity; (7) Murtaugh Plaintiffs are not barred by the doctrine of collateral estoppel from bringing this action; (8) the Amended Complaint states a cause of action under the CWA; (9) Plaintiffs’ CERCLA claim should not be dismissed because (a) despite not receiving solid or hazardous waste since 1974, the City Dump has never been closed, (b) Defendant Grannis is subject to liability as the Commissioner of the NYS DEC, responsible for overseeing the City Dump, (c) Plaintiffs have pled a prima facie case of liability, and (d) the existence of past, and the threat of future, releases has not already been adjudicated in New York State court; (10) Plaintiffs’ claim under § 6972(a)(1)(A) of the RCRA should not be dismissed because (a) Plaintiffs have alleged facts plausibly suggesting that the City Dump is an “open dump” as opposed to a “sanitary landfill,” and (b) Plaintiffs have alleged facts plausibly suggesting that an ongoing violation of the RCRA exists at the City Dump; (11) Plaintiffs’ claim under § 6972(a)(1)(B) of the RCRA should not be dismissed because they have alleged facts plausibly suggesting (a) occurrences of continued discharges of leachate, and (b) that the City Dump contains both solid waste and hazardous waste; (12) Plaintiffs’ state law nuisance claim should not be dismissed because federal causes of action should remain in this case; and (13) Plaintiffs’ claims under 42 U.S.C. §§ 1983, 1985, and 1988 should not be dismissed because Plaintiffs have alleged facts plausibly suggesting that certain Defendants violated Plaintiffs’ constitutional rights by excavating materials and removing scrap from their properties, and whether the scrap might have been abandoned by Plaintiffs (if not for the removal) involves a question of fact. (See generally Dkt. No. 66 [Response Memo, of Law].) In their response to State Defendants’ motion, Flood Plaintiffs argue as follows: (1) the Court should not abstain from exercising jurisdiction over this action because (a) Flood Plaintiffs were never and are not now parties to any litigation, action, or proceeding that would support abstention, and (b) none of the abstention doctrines are applicable; (2) Flood Plaintiffs’ claim under 42 U.S.C. § 1983 should not be dismissed because (a) Flood Plaintiffs have a cognizable property interest in the Flood Property, and have a right to have this property free of flooding by contaminated waste that originated from the City Dump, and the actions taken by Corporate and State Defendants violated this right, and (b) whatever rights the Summary Abatement Order (“SAO”) afforded Defendants, it did not authorize State and Corporate Defendants to flood and contaminate Plaintiffs’ properties; (3) Flood Plaintiffs are not barred from bringing this action by the doctrine of collateral estoppel because they were not parties to the SAO, hearing, or subsequent litigation; (4) State Defendants are not entitled to qualified immunity; (5) none of the individual State Defendants are immune from suit under the Eleventh Amendment, and, with regard to the claims asserted against New York State, it has waived its Eleventh Amendment immunity; (6) State Defendants Leary and Conlon are not entitled to prosecutorial immunity; (7) Plaintiffs’ CERCLA claim should not be dismissed because (a) despite not receiving solid or hazardous waste since 1974, the City Dump has never been closed, (b) Defendant Grannis is subject to Lability as the Commissioner of the NYS DEC, responsible for overseeing the City Dump, (c) Plaintiffs have pled a prima facie case of liability, and (d) Plaintiffs have alleged facts plausibly suggesting that they incurred costs related to responding to the flows of water and leach-ate on their own property; (8) Plaintiffs’ state law nuisance claim should not be dismissed because federal causes of action should remain in this case; and (9) Plaintiffs’ state law claim for a declaration that State Defendants engaged in negligence, gross negligence, or reckless, wanton, or intentional misconduct in their actions and omissions occurring on Plaintiffs’ properties should not be dismissed because none of the federal causes of action should be dismissed. (See generally Dkt. No. 68 [Response Memo, of Law].) In their reply, State Defendants essentially reiterate previously advanced arguments. (See generally Dkt. No. 74 [State Defs.’ Reply Memo, of Law].) 3. Corporate Defendants’ Motion Generally, in support of their motion to dismiss for failure to state a claim upon which relief can be granted and for lack of subject-matter jurisdiction, Corporate Defendants argue as follows: (1) Plaintiffs’ claims against them under 42 U.S.C. § 1983 must be dismissed because (a) Corporate Defendants were acting solely at the direction and under the supervision of state officials, and therefore they cannot be held liable as “state actors,” and (b) it is contrary to “good public policy” to hold a government contractor liable for damages; (2) even if Corporate Defendants could be held liable for the actions undertaken pursuant to State directives, Plaintiffs’ claims should be dismissed because the complained-of conduct is properly addressed in New York State court; and (3) the Court should decline to exercise supplemental jurisdiction over the state law claims. {See generally Dkt. No. 60, Attach. 3 [Corporate Defs.’ Memos, of Law].) In their response to Corporate Defendants’ motion, Murtaugh Plaintiffs argue as follows: (1) the Court should not abstain from exercising jurisdiction over this action because (a) the relevant New York State court does not have jurisdiction over Plaintiffs’ CERCLA, RCRA, or CWA claims, (b) there is not an action pending in New York State court with regard to Plaintiffs’ due process claim based on Corporate Defendants removing scrap from the Murtaugh Property, (c) certain of the CWA, RCRA, and CERCLA claims did not occur until after the Article 78 proceeding was brought, and therefore could not have been brought before the relevant New York State court, and (d) abstention over the state law claims is inappropriate because the federal claims should not be dismissed; (2) Plaintiffs’ claims under 42 U.S.C. §§ 1988, 1985, and 1988 should not be dismissed because they have alleged facts plausibly suggesting that Corporate Defendants (a) deliberately and intentionally acted to damage Plaintiffs’ properties, and cause or initiate illegal discharges of hazardous substances and petroleum into the environment, (b) conducted or aided in conducting an unauthorized and illegal search of Plaintiffs’ properties for hazardous wastes, (c) intentionally seized and sold Plaintiffs’ property, despite not being authorized to do so; and (3) Plaintiffs’ complained-of conduct has not been addressed in a New York State court proceeding. (See generally Dkt. No. 66 [Response Memo, of Law].) In their response to Corporate Defendants’ motion, Flood Plaintiffs argue as follows: (1) the Court should not abstain from exercising jurisdiction over this action because (a) Flood Plaintiffs were never and are not now parties to any litigation, action, or proceeding that would support abstention, (b) the relevant New York State court does not have jurisdiction over Plaintiffs’ CERCLA, RCRA, or CWA claims, (c) certain of the CWA, RCRA, and CERCLA claims did not occur until after the Article 78 proceeding was brought, and therefore could not have been brought before the relevant New York State court, and (d) abstention over the state law claims is inappropriate because the federal claims should not be dismissed; (2) Plaintiffs’ claims under 42 U.S.C. § 1983 should not be dismissed because (a) Plaintiffs have alleged facts plausibly suggesting that Corporate Defendants were state actors, (b) the federal government contractor defense is not applicable to Corporate Defendants and their contract with New York State, and (c) public policy does not suggest that the civil rights claims asserted by Flood Plaintiffs should be dismissed; and (3) Plaintiffs’ Ninth Cause of Action (i.e., their claim for a declaration that Corporate Defendants engaged in negligence, gross negligence, or reckless, wanton, or intentional misconduct in their actions and omissions occurring on Plaintiffs’ properties) should not be dismissed because Corporate Defendants received fair notice of this claim. (See generally Dkt. No. 68 [Response Memo, of Law].) In their reply, in addition to reiterating previously advanced arguments, Corporate Defendants argue as follows: (1) Plaintiffs have failed to cite any legal authority in support of their claim that Corporate Defendants can be held liable as “state actors” under 42 U.S.C. § 1983; (2) Plaintiffs failed to respond to the public policy arguments raised in Corporate Defendants’ motion papers; (3) Plaintiffs failed to set forth any legal basis for their claim that the government contractor defense does not apply to Corporate Defendants; and (4) Plaintiffs have failed to provide fair notice of the legal basis on which their Ninth Cause of Action is based. (See generally Dkt. No. 75 [Corporate Defs.’ Reply Memo, of Law].) II. RELEVANT LEGAL STANDARDS A. Legal Standard Governing Dismissals for Failure to State a Claim For the sake of brevity, the Court will not recite, in this Decision and Order, the well-known legal standard governing dismissals for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), but will direct the reader to the Court’s decision in Wade v. Tiffin Motorhomes, Inc., 686 F.Supp.2d 174, 181-84 (N.D.N.Y.2009) (Suddaby, J.). The Court would add only a few words regarding what documents are considered when a dismissal for failure to state a claim is contemplated. For purposes of Fed.R.Civ.P. 12(b)(6), “[t]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (internal quotation marks and citations omitted); see also Fed.R.Civ.P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”). “Moreover, “when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may nevertheless take the document into consideration in deciding [a] defendant’s motion to dismiss, without converting the proceeding to one for summary judgment.” Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam) (internal quotation marks and citation omitted). B. Legal Standard Governing Dismissals for Lack of Subject-Matter Jurisdiction “A case is properly dismissed for lack of subject matter jurisdiction under [Fed.R.Civ.P.] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.2000) (citing Fed.R.Civ.P. 12[b][l]). “In resolving a motion to dismiss for lack of subject matter jurisdiction under [Fed.R.Civ.P.] 12(b)(1), a district court ... may refer to evidence outside the pleadings.” Makarova, 201 F.3d at 113 (citation omitted). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. (citation omitted). “A motion to dismiss based on the abstention doctrine is ... considered as a motion made pursuant to Rule 12(b)(1).” City of N.Y. v. Milhelm Attea & Bros., Inc., 550 F.Supp.2d 332, 341 (E.D.N.Y. 2008). Similarly, a dismissal for lack of standing is generally brought pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). See Conn. v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110, 114-15 (2d Cir.2002); Rent Stabilization Ass’n of City of N.Y. v. Dinkins, 5 F.3d 591, 594 (2d Cir.1993) (stating that “dismissals for lack of standing may be made pursuant to Fed.R.Civ.P. 12(b)(6), rather than [as a defect in federal jurisdiction pursuant to] Fed. R. Civ. P 12(b)(1),” and clarifying that “standing and subject matter jurisdiction are separate questions”). “[T]he standards for dismissal under 12(b)(6) and 12(b)(1) are substantively identical.” Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.2003). C. Legal Standard Governing Dismissals for Failure to Join Indispensable Party Rule 19 of the Federal Rules of Civil Procedure “sets forth a two-step test for determining whether the court must dismiss an action for failure to join an indispensable party.” Viacom Intern., Inc. v. Kearney, 212 F.3d 721, 724 (2d Cir.2000). “First, the court must determine whether an absent party belongs in the suit, i.e., whether the party qualifies as a ‘necessary’ party under Rule 19(a).” Viacom Intern., Inc., 212 F.3d at 724. Rule 19(a) provides that the absent party should be joined, if feasible, where: (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19(a). “If a party does not qualify as necessary under Rule 19(a), then the court need not decide whether its absence warrants dismissal under Rule 19(b).” Viacom Intern., Inc., 212 F.3d at 724. However, “where the court makes a threshold determination that a party is necessary under Rule 19(a), and joinder of the absent party is not feasible for jurisdictional or other reasons, ... the court must finally determine whether the party is ‘indispensable.’” Id. at 725. “If the court determines that a party is indispensable, then the court must dismiss the action pursuant to Rule 19(b).” Id. Rule 19(b) sets fourth the following four factors to be considered by the court in determining whether a party is indispensable: (1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by ... protective provisions in the'judgment ... shaping the relief[,] or ... other measures; (3) whether a judgment rendered in the person’s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. Fed.R.Civ.P. 19(b). D. Legal Standards Governing Plaintiffs’ Claims Because the parties to this action have demonstrated, in their memoranda of law, an accurate understanding of the relevant points of law contained in the legal standards governing Plaintiffs’ claims in this action, the Court will not recite, in then-entirety, those legal standards in this Decision and Order, which (again) is intended primarily for review by the parties. (Dkt. No. 56, Attach. 30 [County Def.’s Memo, of Law]; Dkt. No. 59, Attach. 2 [State Defs.’ Memo, of Law]; Dkt. No. 60, Attach. 3 [Corporate Defs.’ Memo, of Law]; Dkt. Nos. 66, 68 [Plfs.’ Response Memos, of Law]; Dkt. No. 72 [County Def.’s Reply Memo, of Law]; Dkt. No. 74 [State Defs.’ Reply Memo, of Law]; Dkt. No. 72 [Corporate Defs.’ Reply Memo, of Law].) III. ANALYSIS A. Murtaugh Plaintiffs’ CWA Claim As described in more detail above in Part I.B. of this Decision and Order, County Defendant and Defendant Grannis seek the dismissal of this claim essentially on the following four grounds: (1) a lack of standing, “public policy,” collateral estoppel and/or failure to fulfill the jurisdictional notice requirement; (2) the failure to allege facts plausibly suggesting that, at the time they filed their Complaint, there was a continuous or intermittent violation and a reasonable likelihood that County Defendant would continue to pollute in the future; (3) the failure to join an indispensable party; and (4) the Eleventh Amendment. 1. Whether Murtaugh Plaintiffs’ Claim Should Be Dismissed on the Grounds of Lack of Standing, “Public Policy,” Collateral Estoppel and/or Failure to Fulfill the Jurisdictional Notice Requirement Defendants’ first argument is based on the following: (1) an argument by County Defendant that it was already determined in prior proceedings that the City Dump did not impact Plaintiffs’ premises; (2) an argument by Defendant Grannis that, because the NYS DEC and New York State courts have determined that Plaintiffs contaminated their own property, it would violate public policy to allow them to invoke federal environmental statutes against the agency which sought to investigate, curtail and remediate the pollution; (3) an argument by County Defendant that, because the City Dump has been classified as a Class 3 site, a necessary element of a CWA claim that the dump pose an imminent and substantial endangerment to health or the environment is lacking; (4) an argument by County Defendant and Defendant Grannis that this claim is barred by the doctrine of collateral estoppel because the issues giving rise to Plaintiffs’ CWA claim have been fully litigated and are inextricably intertwined with prior New York State court decisions; and (5) an argument by County Defendant and Defendant Grannis that Plaintiffs failed to fulfill the jurisdictional notice requirement of the CWA. The Court rejects County Defendant’s argument that it was already determined in prior proceedings that the City Dump did not impact Plaintiffs’ premises. Defendants are correct that a NYS DEC employee testified during an administrative hearing that the City Dump does not pose an imminent and substantial endangerment to health or the environment. (Dkt. No. 56, Attach. 10, at 28.) However, testimony that the City Dump did not impact Plaintiffs’ properties is quite different than a legal conclusion that the City Dump did not impact Plaintiffs’ properties. Moreover, while there is record evidence that the City Dump did not pose a significant threat to the public health or the environment as of April 1, 2003 (Dkt. No. 56, Attach. 21, at 2-3), this fact does not negate the potential finding that the City Dump impacted (and continues to impact) Plaintiffs’ premises. In addition, the Court rejects Defendant Grannis’s argument that, because the NYS DEC and New York State courts have determined that Plaintiffs contaminated their own property, it would violate public policy to allow them to invoke federal environmental statutes against the agency which sought to investigate, curtail and remediate the pollution. Plaintiffs’ claim against Defendant Grannis under the CWA is not based on his role in investigating and remediating Plaintiffs’ properties. Rather, that claim is based on Defendant Grannis’s role (or dereliction of duty) in overseeing the City Dump. In the event that Plaintiffs have alleged facts plausibly suggesting a claim for relief under the CWA against Defendant Grannis, it would not violate public policy to allow that claim to go forward, based on the factual allegation that Defendant Grannis played a role in the investigation of Plaintiffs’ property. Simply put, these are two separate issues. Moreover, the Court rejects County Defendant’s argument that, because the City Dump has been classified as a Class 3 site, a necessary element of a CWA claim that the City Dump poses an imminent and substantial endangerment to health or the environment is lacking. “Section 1365 of the CWA authorizes citizen suits against ‘any person ... alleged to be in violation’ of state or federal effluent standards or limitations.” City of Newburgh v. Sarna, 690 F.Supp.2d 136, 156 (S.D.N.Y.2010) (quoting 33 U.S.C. § 1365[a][1]). “The Supreme Court has held that this language does not confer federal subject-matter jurisdiction over citizen suits for ‘wholly past violations.’ ” Sarna, 690 F.Supp.2d at 156 (quoting Gwaltney, 484 U.S. at 64, 108 S.Ct. 376). However, “citizen-plaintiffs [need not] prove their allegations of ongoing noncompliance before jurisdiction attaches under [the CWA].” Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Rather, the statute requires only that a defendant be “alleged to be in violation.” 33 U.S.C.A. § 1365(a) (emphasis added). The Court finds that (1) Murtaugh Plaintiffs have sufficiently alleged facts plausibly suggesting County Defendant’s ongoing noncompliance with the CWA, and (2) County Defendant has failed to show, by a preponderance of the evidence, that its asserted violation of the CWA is “wholly past.” (Rather, Murtaugh Plaintiffs’ argument is more appropriate on a motion for summary judgment, under the circumstances.) As a result, the Court rejects County Defendant’s argument that, based on the record evidence demonstrating that the City Dump was classified in 2003 as a Class 3 site, Plaintiffs have failed to establish a necessary element of their claim. Furthermore, the Court rejects County Defendant’s and Defendant Grannis’s argument that this claim is barred by the doctrine of collateral estoppel as a matter of law, based on the current record. It is well-settled that “a state court judgment may have issue preclusive effect on a subsequent federal action, even if the subsequent action is within the exclusive jurisdiction of the federal courts.” Doyle v. Town of Litchfield, 372 F.Supp.2d 288, 295 (D.Conn.2005). However, in order for a state action to have issue-preclusive effect in a subsequent, exclusively federal action, the federal action must involve “identical issues actually litigated and necessarily decided in the plaintiffs state action .... ” Doyle, 372 F.Supp.2d at 295. As a result, to determine whether the state action in this case has issue-preclusive effect over Plaintiffs’ CWA claim in this action, the Court must examine (1) whether the issue in the state action is identical to the issue in this action, and (2) whether the issue in this action was actually litigated and necessarily decided in the state action. Id. The CWA prohibits the “discharge of any pollutant” except in compliance with an NPDES or SPDES permit. See 33 U.S.C. §§ 1311(a), 1342. The CWA defines “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). Here, Plaintiffs have alleged that (1) County Defendant and Defendant Grannis, “as the owners and operators of the City Dump, discharge pollutants, namely[] acetone and leachate, from a point source, namely[,] the City Dump ... to navigable waters, namely[ ] an unnamed tributary of the Oswego River, without a permití,]” and (2) the discharges are “ongoing.” (Dkt. No. 46, at ¶¶ 65, 68.) In the prior New York State court proceeding, Murtaugh Plaintiffs asserted, among other things, a cause of action seeking to “enjoin use of a DEC race track and training facility because the [City Dump] was never properly closed.” (Dkt. No. 59, Attach. 5, at 135.) In support of their argument that they were entitled to injunctive relief, Murtaugh Plaintiffs “state[d,] without support[,] that contaminants leached from the [City Dump] site onto [Plaintiffs’ properties].” (Id.) The cause of action was dismissed for (1) failure to exhaust administrative remedies, and (2) failure to join County Defendant, an indispensable party. (Id.) In ordering the dismissal, New York State Supreme Court Judge Deborah H. Karalunas noted that Murtaugh Plaintiffs attempted to “circumvent the exhaustion issue” by “invok[ing] the common law of private nuisance ... base[d] on [their] speculation that the [City Dump] is polluting the adjacent Murtaugh property.” (Id.) Judge Karalunas further noted that Murtaugh Plaintiffs’ “reference to nuisance and federal environmental laws for the first time in [their] memorandum of law is to no avail.” (Id.) In other words, in dismissing this cause of action, the New York Sate court did not rule that the City Dump does not discharge pollutants to navigable waters (and therefore did not consider whether the owners and operators of the City Dump were past polluters involved in ongoing noncompliance). Indeed, Judge Karalunas expressly stated that she was not considering Plaintiffs’ late-blossoming “federal environmental law[ ]” claim. As a result, this action does not involve “identical issues actually litigated and necessarily decided in ... [P]laintiff[ ]s[’] state action.” Doyle, 372 F.Supp.2d at 295. Finally, the Court rejects County Defendant’s and Defendant Grannis’s argument that Murtaugh Plaintiffs’ CWA claim should be dismissed because Plaintiffs failed to fulfill the jurisdictional notice requirement of the CWA. Defendants are correct that Plaintiffs’ citizen suit Notices must identify the pollutant(s) at issue. However, Defendants are incorrect that Plaintiffs’ Notices failed to do so. (See Dkt. No. 59, attach. 5, at 341-44 [stating that “excavation activities ... since on or about September 2006[] caused regular and on-going point source discharges from the [City] Dump onto the [Murtaugh] [Property ... and into waters of the United States[,]” and “[t]hese point source discharges contain high concentrations of acetone and other listed and/or identified pollutants and hazardous substances”). In addition, Defendants are correct that Plaintiffs’ Notices must identify a “point source.” Furthermore, the Second Circuit has implicitly indicated that a landfill does not qualify as a point source. However, a “point source” is to be defined broadly. For this reason, the Court has trouble concluding as a matter of law at this early stage of the proceeding that the City Dump cannot constitute a point source. 2. Whether, in the Alternative, Murtaugh Plaintiffs Have Failed to Allege that, at the Time They Filed Their Complaint, There Was a Continuous or Intermittent Violation of the CWA and a Reasonable Likelihood that County Defendant Would Continue to Pollute As stated above in Part III.A.1. of this Decision and Order, Plaintiffs have alleged that (1) County Defendant and Defendant Grannis, “as the owners and operators of the City Dump, discharge pollutants, namely[ ] acetone and leachate, from a point source, namely[,] the City Dump ... to navigable waters, namely[ ] an unnamed tributary of the Oswego River, without a permit[,]” and (2) the discharges are “on-going.” (Dkt. No. 46, at ¶¶ 65, 68.) For this reason, the Court finds that Plaintiffs have alleged facts plausibly suggesting a claim upon which relief can be granted under the CWA. 3. Whether, in the Alternative, Murtaugh Plaintiffs’ Claim Should Be Dismissed for Failure to Join an Indispensable Party The Court rejects County Defendant’s argument that this otherwise valid claim should be dismissed based on Plaintiffs’ failure to join indispensable parties. Although the Second Circuit has yet to rule on the issue, the Court is persuaded by the findings of other circuit courts, and district courts, that CWA liability (as well as RCRA and CERCLA liability) is joint and several. As a result, Plaintiffs need not sue every potentially responsible person in order to bring a cost recovery action under the CWA, RCRA, or CERCLA. 4. Whether, in the Alternative, the Eleventh Amendment Bars Murtaugh Plaintiffs’ Claim “While the Amendment by its terms does not bar suits against a State by its own citizens, [the Supreme] Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). “State immunity extends to state agencies and to state officers who act on behalf of the state.” Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir.1999). “Thus, when the state is the real party in interest, the Eleventh Amendment generally bars federal court jurisdiction over an action against a state official acting in his or her official capacity.” Burnette, 192 F.3d at 57. However, more than one hundred years ago, the Supreme Court carved out a narrow exception to Eleventh Amendment immunity in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (holding that suits against state officers, rather than against State itself, are permitted when seeking prospective, but not compensatory or other retrospective, relief). The doctrine of Ex Parte Young “applies only to prospective relief, does not permit judgments against state officers declaring that they violated federal law in the past ... and has no application in suits against the States and their agencies, which are barred regardless of the relief sought.” Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). In addition, “[s]uits against state officials that, in form or substance, seek compensatory damages (rather than prospective declaratory or injunctive relief) which will be paid with funds from the state treasury (rather than from the pockets of individual officials) remain barred.” Berman Enter., Inc. v. Jorling, 793 F.Supp. 408, 412 (E.D.N.Y.1992) (citing Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 39 L.Ed.2d 662 [1974]; Green v. Mansour, 474 U.S. 64, 73, 106 S.Ct. 423, 88 L.Ed.2d 371 [1985] [“[A] declaratory judgment is not available when the result would be a partial ‘end run’ around our decision in Edelman”]). When an action against a state official acting in his or her official capacity is barred, a plaintiff may only proceed against the state “if Congress [has] abrogate[d] the states’ constitutionally secured immunity from suit in federal court.” Burnette, 192 F.3d at 57. “To do so, Congress must make ‘its intention unmistakably clear in the language of the statute.’ ” Id. (quoting, inter alia, Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 [1989]). “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Rather, “[w]hen Congress chooses to subject the States to federal jurisdiction, it must do so specifically.” Atascadero, 473 U.S. at 246, 105 S.Ct. 3142. “The CWA, RCRA, and CERCLA contain substantially identical provisions permitting citizens to sue as private attorneys general in circumstances where government authorities have, after notice, failed to take steps to remedy particular environmental harms.” Burnette, 192 F.3d at 57. “Far from evidencing a Congressional intent to do away with sovereign immunity, these provisions are expressly limited by the Eleventh Amendment.” Id. at 57 (affirming district court’s holding that “these citizen suit provisions do not abrogate Connecticut’s sovereign immunity and that the state defendants are therefore entitled to immunity from suit in federal court”). Here, Murtaugh Plaintiffs request “an Order requiring Defendant ] ... Grannis [as the Commissioner of the New York State Department of Environmental Conservation] to pay civil penalties to the United States Treasury in an amount of up to $37,500.00 or more per day per violation for each [CWA] violation.” (Dkt. No. 46, at ¶¶ 18, 76.) Such a request is barred by the Eleventh Amendment. See Berman Enter., Inc., 793 F.Supp. at 412. As a result, Murtaugh Plaintiffs’ CWA claim (as well as their RCRA and CERCLA claims) against Defendant Grannis (and Defendant New York State) are dismissed. B. Murtaugh Plaintiffs’ RCRA Claims 1. Claim Under 42 U.S.C. § 6972(a)(1)(A) As described in more detail above in Part I.B. of this Decision and Order, County Defendant and Defendant Grannis seek the dismissal of this claim essentially on the following two grounds: (1) a lack of standing, “public policy,” collateral estoppel and/or the Eleventh Amendment; and (2) the failure to allege facts plausibly suggesting that, at the time they filed their Complaint, County Defendant was accepting and/or introducing waste (or other hazardous substances) to the City Dump, a. Whether Murtaugh Plaintiffs’ Claim Should Be Dismissed on Grounds of Lack of Standing, “Public Policy,” Collateral Estoppel and/or the Eleventh Amendment Defendants’ first argument is based on the following: (1) an argument by County Defendant that a citizen suit cannot be used to enforce the RCRA’s permitting and/or operating regulations or standards; (2) an argument by Defendant Grannis that, because the NYS DEC and New York State courts have determined that Plaintiffs contaminated their own property, it would violate public policy to allow them to invoke federal environmental statutes against the agency which sought to investigate, curtail and remediate the pollution; (3) an argument by County Defendant that 40 C.F.R. § 258.1 specifically exempts municipal solid waste landfills from liability under the RCRA; (4) an argument by County Defendant that a necessary element of an RCRA claim is that the dump pose an imminent and substantial endangerment to health or the environment, and here the City Dump has been classified as a Class 3 site (i.e., it does not present a significant threat to the public health or environment); (5) an argument by County Defendant and Defendant Grannis that the issues giving rise to Plaintiffs’ RCRA claim have been fully litigated and are inextricably intertwined with prior New York State court decisions and this claim is therefore barred by the doctrine of collateral estoppel; (6) an argument by Defendant Grannis that the City Dump cannot be an “open dump,” violative of the RCRA, because the statute expressly excludes sanitary landfills and facilities which are disposal facilities for hazardous waste; and (7) an argument by Defendant Grannis that he cannot be held liable under § 6972(a)(1)(A) because he is not the “owner” or “operator” of the City Dump, and his authority to decide whether and how to investigate environmental complaints cannot serve as a jurisdictional basis for a citizen suit under the RCRA. As an initial matter, the Court agrees with County Defendant that a citizen suit cannot be used to enforce the RCRA’s permitting and/or notification requirements, and thus “a citizen suit pursuant to subsection (a)(1)(A) to enforce § 6925 and § 6930 is unavailable.” Orange Env’t, Inc. v. Cnty. of Orange, 860 F.Supp. 1003, 1020 (S.D.N.Y.1994). However, Murtaugh Plaintiffs’ claim under 42 U.S.C. § 6972(a)(1)(A) is based on County Defendant (and Defendant Grannis) being in violation of the RCRA’s regulation prohibiting facilities classified as “open dumps” (not RCRA’s regulation regarding permitting and/or notification requirements). In addition, for the reasons stated above in Part III.A.1. of this Decision and Order, the Court rejects the following arguments: (1) Defendant Grannis’s argument that, because the NYS DEC and New York State courts have determined that Plaintiffs contaminated thei