SANDY HOOK WATERMANS ALLIANCE, INC. v. NEW JERSEY SPORTS AND EXPOSITION AUTHORITY

Filing 17

OPINION. Signed by Judge Freda L. Wolfson on 7/20/2011. (gxh)

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
SANDY HOOK WATERMANS
:
ALLIANCE, INC.,
:
Plaintiff,
:
Civ. Action No.: 11-813(FLW)
:
v.
:
OPINION
:
NEW JERSEY SPORTS AND
:
EXPOSITION AUTHORITY,
:
:
Defendant.
:
____________________________________:
WOLFSON, District Judge:
Plaintiff Sandy Hook Watermans Alliance, Inc. (“Sandy Hook” or “Plaintiff”) brings this
citizen suit pursuant to the Clean Water Act (“CWA”), 33 U.S.C. § 1365, alleging that Defendant
New Jersey Sports and Exposition Authority (“NJSEA” or “Defendant”), through its
Concentrated Animal Feeding Operation (“CAFO”), has been and continues to discharge waste
into, inter alia, the Shrewsbury and Navesink Rivers located in Monmouth County, New Jersey.
In the instant matter, Defendant moves to dismiss the Complaint on a variety of legal bases,
including the lack of subject matter jurisdiction under the CWA. For the reasons that follow, the
Court finds that it lacks jurisdiction, and therefore, Defendant’s motion is granted. Plaintiff’s
Complaint is dismissed without prejudice.

1

BACKGROUND
For the purposes of this motion, the Court only recounts relevant facts from the
Complaint and takes them as true. 1 Plaintiff is a non-profit association of shell fishermen who
harvest fish and operate in, inter alia, the Navesink and Shrewsbury Rivers. Compl., ¶ 6. The
NJSEA is a state entity which owns and operates a horse racing track known as Monmouth Park
Racetrack. 2 The NJSEA operates a CAFO on a portion of its horse racing facility. Compl., ¶ 8.
The New Jersey Department of Environmental Protection (“NJDEP”) issued a permit to the
NJSEA, which prohibited the NJSEA from discharging any waste after June 1, 2006, with the
exception of discharges resulting from a catastrophic storm event. This permit was renewed on
June 12, 2008. See Compl., ¶ 10.
In 2007, the NSJEA was charged by the NJDEP with violating the permit, see Compl., ¶¶
2-3, 7-8, by discharging prohibited wastewater from the CAFO-area of Monmouth Park
Racetrack into Branchport Creek. 3 See ACO dated May 10, 2010, ¶ 13. The NJSEA contested
the violation and requested an administrative hearing. See Administrative Order dated October
1

In addition, the Court will “consider an undisputedly authentic document that a
defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the
document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196-97
(3d Cir. 1993). Additionally, the Court may properly consider documents specifically referenced
in the complaint, as well as documents that are part of the public record. Heightened Indep. &
Progress v. Port Auth. of N.Y. & N.J., No. 07-2982, 2008 U.S. Dist. LEXIS 104948, at *6
(D.N.J. 2008).
2

According to Plaintiff, during the pendency of this case, the Monmouth Park
Racetrack has been sold or leased to a private entity. However, there is nothing on this record of
the transfer, and indeed, the NJSEA is the only defendant in this case; Plaintiff has not moved to
add any other defendants at this time.
3

Monmouth Park Racetrack is adjacent to Shrewsbury River estuaries of
Branchport Creek and Turtle Mill Creek which feed into the Shrewsbury and Navesink Rivers.
See Compl., ¶ 7.
2

10, 2007. In 2008, the NJDEP commenced litigation against the NJSEA in New Jersey Superior
Court. See State Compl. dated May 15, 2008.
On August 27, 2008, Plaintiff filed its Complaint in this district in the matter Sandy Hook
Watermans Alliance, Inc. v. New Jersey Sports and Exposition Authority, Civ. Action No. 084321 (MLC). However, Plaintiff requested that action be dismissed due to improper notice. See
Dismissal Order dated June 23, 2009.
On May 10, 2010, the NJDEP executed an Administrative Consent Order (“ACO”),
wherein the NJSEA agreed to pay a penalty of $131,250 and, among other projects, construct a
storm water collection and retention system to remediate the environmental pollution. See ACO
dated May 10, 2010. As a result, a Judicial Consent Order was signed by the state Superior
Court Judge and the state court action was dismissed. See Order dated May 11, 2010. Prior to
the entry of the ACO, public notices were sent out to all interested parties, and public meetings
were held regarding the projects included in the ACO. See Notice of Public Hearing dated May
11, 2009. According to the NJSEA, no entity, including Plaintiff, intervened or otherwise raised
any objections in that matter, and consequently, the ACO became effective and enforceable on
May 10, 2010.
According to Plaintiff, pursuant to the CWA, it first sent a statutory notice of suit to all
parties, including Defendant, on March 1, 2010, and a supplemental notice was sent on January
7, 2011. Thereafter, Sandy Hook filed the Complaint on February 10, 2011. Essentially, Sandy
Hook alleges that the NJSEA continues to pollute despite the issuance of the ACO and that the
NJDEP has failed to adequately monitor and enforce the ACO. Indeed, Plaintiff expressly states
that it “cannot emphasize enough that the [Complaint] is to bring defendant into compliance in
the future.” Compl., ¶ 10 (emphasis in original). For this, Sandy Hook asks this Court to enjoin

3

all activities of the NJSEA “until if and when [the NJSEA] demonstrates that the waste control
plan proposed by defendant is completed and defendant demonstrates that the system will bring
the defendant into compliance with its permit.” Compl., p. 10. In addition, Sandy Hook requests
civil penalties, punitive damages and attorneys’ fees for the NJSEA’s continued violations of the
CWA. Id.
DISCUSSION
A.

Clean Water Act

As a brief background of the CWA, this statute gives primary enforcement authority to
the EPA and state enforcement agencies, such as the NJDEP. EPA v. California ex rel. State
Water Resources Control Board, 426 U.S. 200, 204 (1976). However, Congress granted limited
authority to private citizens to bring suit in federal court under certain enumerated circumstances
to enforce the CWA. Section 1365 states in relevant parts:
(a)

Authorization; jurisdiction Except as provided in subsection (b) of this
section and section 309(g)(6) [33 USCS § 1319(g)(6)], any citizen may
commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other
governmental instrumentality or agency to the extent permitted by the
eleventh amendment to the Constitution) who is alleged to be in violation
of (A) an effluent standard or limitation under this Act [33 USCS §§ 1251
et seq.] or (B) an order issued by the Administrator or a State with respect
to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under this Act [33 USCS §§
1251 et seq.] which is not discretionary with the Administrator
*

(b)

*

*

Notice. No action may be commenced-(1) under subsection (a)(1) of this section-(A) prior to sixty days after the plaintiff has given notice of the alleged
violation (i) to the Administrator, (ii) to the State in which the alleged
4

violation occurs, and (iii) to any alleged violator of the standard,
limitation, or order, or
(B) if the Administrator or State has commenced and is diligently
prosecuting a civil or criminal action in a court of the United States, or a
State to require compliance with the standard, limitation, or order, but in
any such action in a court of the United States any citizen may intervene
as a matter of right.
33 U.S.C. § 1365(a), (b).
Pursuant to the CWA, any citizen has the right to file a civil action against any person or
government agency or instrumentality that is allegedly in violation of an order issued by any
state entity. 33 U.S.C. § 1365(a)(1). When, however, the state has commenced its own action
against the violator, the citizen may proceed only by intervening and joining the action. 33
U.S.C. § 1365 (b)(1)(B). Importantly, these “citizen suits” are meant to supplement state action
and not to replace or supplant it. Gwaltney of Smithfield Ltd. V. Chesapeake BE Found. Inc.,
484 U.S. 49, 60 (1987). Indeed, the legislative history of the CWA reinforces the view that the
role of the citizens in brining suits under the CWA is a limited one, and that these suits are
proper only “if the Federal, State, and local agencies fail to exercise their enforcement
responsibilities. Id. (citing S. Rep. No. 92-414, 64 (1971)).
B.

Standard of Review

The Federal Rules of Civil Procedure provide that a complaint “shall contain (1) a short
and plain statement of the grounds upon which the court’s jurisdiction depends . . . (2) a short
and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks.” Fed. R. Civ. P. 8(a). The purpose of a complaint is
“to inform the opposing party and the court of the nature of the claims and defenses being
asserted by the pleader and, in the case of an affirmative pleading, the relief being demanded.” 5
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1182 (3d ed. 2004).

5

In reviewing a motion to dismiss for failure to state a claim under 12(b)(6), a Court must
take all allegations in the complaint as true, viewed in the light most favorable to the plaintiff
“and determine whether, under any reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation
and quotations omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme
Court “retired” the language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). Rather, the factual allegations in
a complaint “must be enough to raise a right to relief above the speculative level.” Id. at 555. The
Third Circuit summarized the pleading requirement post-Twombly:
The Supreme Court’s Twombly formulation of the pleading standard can be
summed up thus: ‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element. This ‘does not impose a
probability requirement at the pleading stage,’ but instead ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence
of ‘the necessary element.’
Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).
In affirming that the Twombly standard applies to all motions to dismiss, the Supreme
Court recently further clarified the 12(b)(6) standard. “First, the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal, 129 S.Ct. at 1950. Accordingly, “a court considering
a motion to dismiss can choose to begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.” Id. In short, “a complaint must do

6

more than alleged the plaintiff’s entitlement to relief. A complaint has to ‘show’ such an
entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
The Third Circuit recently reiterated that “judging the sufficiency of a pleading is a
context-dependent exercise” and “[s]ome claims require more factual explication than others to
state a plausible claim for relief.” West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d
85, 98 (3d Cir. 2010). This means that, “[f]or example, it generally takes fewer factual
allegations to state a claim for simple battery than to state a claim for antitrust conspiracy.” Id.
That said, the Rule 8 pleading standard is to be applied “with the same level of rigor in all civil
actions.” Id. (quoting Iqbal, 129 S.Ct. at 1953).
The NJSEA moves to dismiss the Complaint on various legal grounds. Among them, the
NJSEA contends that the Court lacks subject matter jurisdiction pursuant to the CWA. Indeed,
when faced with a Rule 12(b)(1) challenge to jurisdiction, the court “must start by determining
whether we are dealing with a facial or factual attack to jurisdiction. If this is a facial attack, the
court looks only at the allegations in the pleadings and does so in the light most favorable to the
plaintiff.” U.S. ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). “If
this is a factual attack, however, it is permissible for a court to review evidence outside the
pleadings.” Id. A jurisdictional challenge is a factual challenge if “it concerns not an alleged
pleading deficiency, but rather the actual failure of [plaintiff’s] claims to comport with the
jurisdictional prerequisites.”

Id. Here, since the NJSEA’s challenge is that Sandy Hook’s

pleadings are insufficient under several provisions of the CWA, this Court will consider this as a
facial attack to jurisdiction.

7

C.

Subject Matter Jurisdiction

The NJSEA argues that this case is barred by the entry of the ACO and the Judicial
Consent Order and Final Judgment, which are final orders as set forth by § 1319(g)(6)(A)(iii).
Section 1319 governs the enforcement of water pollution prevention and penalties. Subsection
(g) specifically governs the enforcement of administrative penalties. It contains a provision
permitting interested persons to be heard and present evidence at a public hearing after public
notice has been given. 33 U.S.C. § 1319 (g)(4). This notice can typically be made by announcing
the public hearing in a regular local publication, such as a newspaper. The state administration
may take this evidence into consideration when determining the exact repercussions to exact on
polluters. Id. Once a final administrative penalty and order has been issued, and the violator has
paid that penalty, that violator “shall not be the subject of a civil penalty action” for the violation,
including any citizen suits brought under § 1365. § 1319(g)(6)(A)(iii). Notably, however, the
state proceeding must provide for the possibilities of penalty assessments, injunctive relief and
public participation which are at least the substantial equivalent to those available to the EPA in
the federal courts. See Baugh v. Bradford, 592 F.2d 215 (3d Cir. 1979); Student Public Interest
Research Group of New Jersey, Inc. v. Fritzsche, Doge & Olcott, Inc., 759 F.2d 1131 (3d Cir.
1985).
Here, the NJSEA argues that § 1319(g)(6)(A)(iii) acts as a bar because the ACO, which is
final and enforceable, has been entered to address the pollution involving the subject matter of
this case. Plaintiff, however, challenges the enforcement efforts of the NJDEP and alleges that
the pollution activities of the NJSEA have been ongoing since the entry of the ACO. In other
words, Plaintiff is not challenging the past violations that the ACO has addressed, but rather,
Plaintiff alleges, albeit insufficiently, that the NJSEA and the NJDEP have colluded together to

8

disregard the ACO and that the NJSEA has been polluting continuously and at a greater rate.
However, this distinction leads to the Court’s next analysis: in order to allege facts sufficient to
establish jurisdiction under the CWA, Plaintiff must allege good faith allegations of continuous
or intermittent violations. Gwaltney, 484 U.S. at 68; see also Natural Resources Defense
Council, Inc. v. NGK Metals Corp., No. 89-7546, 1991 U.S. Dist. LEXIS 3310, at *7-8 (E.D. Pa.
Mar. 19, 1991); Public Interest Research Group of New Jersey, Inc., v. Elf Atochem North
America, 817 F.Supp. 1164, 1176 (D.N.J. 1993). Having reviewed the Complaint, the Court
finds that Plaintiff falls short of alleging sufficient facts to demonstrate that the NJSEA has been
engaging in ongoing pollution activities.
According to the Complaint, the NJDEP’s enforcement actions have been “totally
ineffective” and the “enforcement has not been diligent or aggressive.” Compl., ¶ 10. As a
result, “the pollution has become worse over the years with no abatement whatsoever.” Id. As
support, Plaintiff cites to water quality tests taken by the Monmouth County Health Department
in 2009 and 2010, which Plaintiff argues show that there has been pollution in the subject waters.
See Compl., Ex. B at pp. 5, 8-9. A review of these tests reveals that the latest test results were
taken on September 27, 2010 – just five months after the ACO became final in May 2010. Other
then the date of the tests, Plaintiff does not identify which sample results are alleged violations,
or which specific regulation, standard, limitation or order the NJSEA has violated. For example,
the Complaint asserts that “each [water test] shows a violation,” but does not allege how each
test constitutes a violation. Similarly lacking in substance, the Complaint states that “[t]hese
counts exceed regulations by tens of thousands of colonies per mL and represent a significant
increase in pollution” without identifying which “regulations” or whether the levels and
“increase in pollution” are caused solely, or even in part, by any specific violation of the permit

9

held by the NJSEA or the ACO. Essentially, Plaintiff’s allegations of ongoing pollution are
based upon guesswork.

In that regard, besides its bald and conclusory assertions and

inconclusive test results, Plaintiff has not alleged a good faith basis to substantiate its claim that
the pollution has become worse since the ACO has been in place. Additionally, for the same
reasons, Plaintiff fails to allege that the NJDEP has not diligently enforced the ACO. Absent any
specific alleged violations, Plaintiff’s assertions that the NJDEP’s enforcement efforts are
ineffective are merely conclusory and unsubstantiated.
Furthermore, these test results were taken well before the future completion date -- June
30, 2012 -- of the storm water collection and retention system to remediate the environmental
pollution as required by the ACO. By express language of the ACO, the NJSEA is not permitted
to discharge to “the waters of the State from the CAFO-area of the Monmouth Park Racetrack”
after August 31, 2012. See ACO dated May 10, 2010, ¶ 55. Acknowledging that compliance
with the permit is not expected for “several years,” Plaintiff’s allegations of future violations are
premised upon its perception that the “pending enforcement methods will prove [] ineffective”
and that “there is no assurance that [the remediation] will work.” Compl., ¶ 10. Likewise, these
allegations of future violations are bald assertions which do not meet the Twombly standard of
pleading and thus, the allegations do not properly set forth a good faith basis that the NJSEA will
likely commit future violations.

Accordingly, Plaintiff has not alleged sufficient facts to

establish the proper jurisdiction of this Court under the CWA.
D.

Notice Requirements - § 1365 (b)(1)(A)

Plaintiff did not intervene in the prior state court action or otherwise object to the entry of
the ACO. In that respect, Plaintiff is barred from challenging any aspect of the ACO and the
violations contained therein. In this case, because Plaintiff’s lawsuit involves future and ongoing

10

violations subsequent to the entry of the ACO, Plaintiff must have provided proper notice of
these particular violations to the NJSEA before filing this action pursuant to 33 U.S.C. § 1365
(b)(1)(A). However, the Court finds that it also lacks subject matter jurisdiction because Plaintiff
has not complied with this notice provision of the CWA.

Section 1365 (b) provides that

sufficient notice must be given to the state agency and the potential defendant indicating the
nature of the alleged discharge. 33 U.S.C. § 1365 (b)(1)(A). Notice serves a two-fold purpose.
First, it allows government agencies to take responsibility for enforcing environmental
regulations, thus obviating the need for citizen suits. Public Interest Research Group of N.J. v.
Hercules, Inc., 50 F.3d 1239, 1246 (3d Cir. 1995). Second, notice gives the alleged violator “an
opportunity to bring itself into complete compliance with the Act and thus likewise render
unnecessary a citizen suit.” Gwaltney, 484 U.S. at 60. The content requirements for the notice
letter are intended to facilitate these objectives within the 60-day period afforded by the letter.
The EPA has specified the content requirements for a prospective plaintiff's notice letter:
Notice regarding an alleged violation of an effluent standard or limitation or of an
order with respect thereto, shall include sufficient information to permit the
recipient to identify the specific standard, limitation, or order alleged to have been
violated, the activity alleged to constitute a violation, the person or persons
responsible for the alleged violation, the location of the alleged violation, the date
or dates of such violation, and the full name, address, and telephone number of
the person giving notice.
40 C.F.R. § 135.3(a). In other words, the notice needs to “provide enough information to enable
the [potential defendant] to identify the specific effluent discharge limitation which has been
violated, including the parameter violated, the date of the violation, the outfall at which it
occurred, and the person or persons involved.” Hercules, 50 F.3d at 1248. In addition, citizen
suits cannot be brought before sixty days after notice has been given by a plaintiff. 33 U.S.C. §
1365(b)(1)(A).

11

Here, Plaintiff maintains that it sent all interested parties a letter notice on March 1, 2010,
and a supplemental letter notice on January 7, 2011. Because the Complaint was filed on
February 10, 2011, Plaintiff submits that it was timely. The Court disagrees. Plaintiff’s March
2010 Letter pre-dated the May 2010 ACO and the Judicial Consent Order and Final Judgment
resulting from the state court action. In that regard, the March 2010 Letter did not contain any
violations that the Complaint in this case alleges and encompasses. Indeed, the water quality
tests attached to the March 2010 Letter were taken in between the years of 2007 – 2009. Clearly,
these tests do not, and cannot, establish future violations for which Plaintiff complains here, and
as a result, the Letter failed to put the NJSEA on notice of the alleged violations in this
Complaint. Accordingly, the March 2010 Letter does not constitute proper notice pursuant to §
1365(b)(1)(A).
Having determined that the March 2010 Letter does constitute notice for the purposes of
the CWA, the January 2011 Letter is not a supplemental notice, but rather, is considered the only
notice prior to this lawsuit. This conclusion leads to the Court to find that Plaintiff’s January
2011 Letter was sent less than the mandatory 60-day period prior to the filing of the February
2011 Complaint. Based on this deficiency alone, the Court lacks subject matter jurisdiction. See
Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1189 n.15 (3d Cir.
1995) ( § 1365(b)(1)(A) notice provision is a jurisdictional prerequisite); see also Hallstrom v.
Tillamook County, 493 U.S. 20, 31 (1989) (notice provision for citizen suit under Resource
Conservation and Recovery Act); National Envtl. Found. v. ABC Rail Corp., 926 F.2d 1096
(11th Cir.1991) (Powell, J., sitting by designation) (applying Hallstrom to the notice provision of
the Clean Water Act).

12

In addition to the untimely filing of the Complaint, Plaintiff’s January 2010 Letter does
not constitute sufficient notice under the CWA for substantially similar reasons the Court has
already delineated above. See supra, Part A. To summarize, the notice cites various tests taken
by the Monmouth County Health Department from October 2009 – September 2010, from
various locations. In its Letter, Plaintiff does not identify which of the sample results are alleged
violations, or which standard, regulation or order those results violate. Further, Plaintiff fails to
set forth the locations from which the discharge allegedly occurred and thus, fails to properly
allege that there are locations for which the NJSEA is responsible. More importantly, some of
the test results pre-date the ACO and other results were taken only five months after the ACO
became final. In that connection, Plaintiff has failed to connect the test results to any violations
it avers in this Complaint for which the NJSEA is responsible. Accordingly, the January 2011
Letter fails to put the NJSEA on notice of the alleged violations. 4
CONCLUSION
For the foregoing reasons, the Court finds that it lacks subject matter jurisdiction and as
such, Defendant’s motion to dismiss is granted. Plaintiff’s Complaint is dismissed without
prejudice.

DATED:

July 20, 2011

/s/
Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.

4

Defendant also argues that the Complaint should be dismissed on other grounds,
including the contention that this Court should abstain from exercising jurisdiction pursuant to
the primary jurisdiction and the Burford abstention doctrines. Because the Court has found that
it lacks subject matter jurisdiction, the Court need not address these additional grounds for
dismissal.
13