D'Andrea v. U.S. Army Corps of Eng'rs
| Docket Number | CIVIL 21-09569 |
| Decision Date | 21 June 2023 |
| Parties | ROCCO J. D'ANDREA and HANNELORE D'ANDREA, Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS AND NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Approximately three years after settling putative Clean Water Act violations with the Army Corps of Engineers (the “Corps”), Plaintiffs Rocco and Hannelore D'Andrea (“Plaintiffs”) asked the Corps to reconsider certain findings and obligations in the settlement agreement and filed this lawsuit when the Corps refused. The Corps moved to dismiss the case, arguing the Plaintiffs lacked standing and failed to allege a cognizable claim under the Administrative Procedures Act (“APA”). The Court agreed the Plaintiffs lacked standing and granted the Corps' motion but permitted the Plaintiffs thirty days to file an amended complaint.
The Plaintiffs timely filed the amended complaint, adding the New Jersey Department of Environmental Protection (“NJDEP”) as a defendant. The Corps and NJDEP have both moved to dismiss the case. The Corps and NJDEP argue the Plaintiffs fail to adequately state a claim. The Corps further argues the Court lacks jurisdiction if the case is dismissed against NJDEP.
I. Background
To appreciate the facts of this case, some legal background is necessary. The Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., makes it unlawful for any person to discharge pollutants into “waters of the United States” without a permit. 33 U.S.C. §§ 1311(a), 1362(7), (12), 1342(a), 1344. Waters subject to permit requirements include “territorial waters,” “tributaries,” and “adjacent wetlands.” 33 C.F.R. § 328.3(a)(1), (2), (4). The CWA authorizes the Secretary of the Army through the Corps of Engineers to issue permits for discharges into waters that fall under the CWA's jurisdiction and to enforce permit violations. See 33 U.S.C. § 3144(a); see also E.P.A. Federal Enforcement for the Section 404 Program of the Clean Water Act, MEMORANDUM, Between the Department of the Army and the Environmental Protection Agency (Jan. 1989), https://www.epa.gov/cwa-404/federal-enforcement-section-404-program-clean-water-act. The Corps determines whether the property contains “waters of the United States by issuing jurisdictional determinations on a case-by-case basis.” U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590, 595 (2016). Affected parties generally have sixty days to appeal a jurisdictional determination. 33 C.F.R. §§ 320.1(a)(6), 331.2, 331.6(a).
In 2002, Rocco purchased a 7.98-acre piece of land in Middle Township, New Jersey (the “Property”) and transferred ownership of the Property to his wife, Hannelore, in 2004. [Amd. Compl. ¶¶ 3-4; Dkt. 14 at 14], In 2011, the Property began to attract attention from the New Jersey Department of Environmental Protection. NJDEP evaluated the Property and determined that violations of state environmental regulations occurred on approximately 2.9 acres of the Property due to unauthorized “clearing and filling” of “wetlands,” “freshwater wetland transition areas,” and “freshwater wetlands.” [See Dkt. 11-3 at 4-5], NJDEP sent a first notice of violation to the Plaintiffs concerning these violations on January 6, 2012. [See Dkt. 11-3 at 5, State Order ¶ 3], After the Plaintiffs failed to remediate the violations, NJDEP sent a second notice of violation on June 6, 2014, [See Dkt. 11-3 at 5, State Order ¶ 5].
Meanwhile, the Corps commenced its investigation into the Property. In 2014, the Corps inspected the Property and determined fill was discharged into approximately 2.9 acres of the Property between 2011 and 2014. In June 2014, the Corps determined that portions of the Property, including the Northern Portion, contain “wetlands.” Therefore, the Corps had jurisdiction under the CWA. [Am. Compl. ¶ 22]. The Corps sent a cease-and-desist letter to the Plaintiffs and later ordered the Plaintiffs to remove the fill because the fill was discharged without a permit. [Am. Compl. ¶ 19]. Plaintiffs deny discharging fdl into the wetlands portions of the Property and assert the previous owners of the Property, Imerys Clays, Inc, (“Imerys Clays”), a clay mining company, filled the land due to its operations. [Am. Compl. ¶¶ 6, 20].
In 2016, after concluding that the Plaintiffs failed to resolve the outstanding CWA violations, the Corps referred the case to the United States Attorney's Office. The Corps also provided Plaintiffs with documents to appeal the Corp's jurisdictional determination. [Am. Compl. ¶ 23], The Plaintiffs did not appeal. [Am. Compl. ¶ 24], During these investigations, it was discovered that a “substantial portion of the Property had been contaminated with Chlordane,” a chemical used as an insecticide until banned in 1988. [Am. Compl. ¶ 27]; see also E.P.A., Chlordane Hazard Summary (Jan. 2000), https://www.epa.gov/sites/default/files/2016-09/documents/chlordane.pdf. Plaintiffs maintain that they did not dump Chlordane on the Property and suspect that an auto repair shop, Meineke Mufflers, adjacent to the Property is responsible for the contamination. .
To avoid potential civil and criminal penalties and formalize a plan for remediating state and federal violations and restoring the Property, the Plaintiffs settled with NJDEP and the Corps. The Plaintiffs first entered an administrative consent order with NJDEP (the “State Order”) on or around October 12, 2016. [Am. Compl. ¶ 26]. The State Order requires Plaintiffs to remove “all unauthorized fill material” from the Property. [Dkt. 11-3 at 6, State Order ¶ 14.a], It also requires the Plaintiffs to submit a restoration plan (the “Restoration Plan”), which NJDEP reviewed and approved on March 3, 2017. [Dkt. 11-3 at 13, March 3, 2017, Ltr. NJDEP to Steven Morey], The State Order required Plaintiffs to complete the remediation and restoration within one year. [Dkt. 11-3 at 7, State Order ¶ 17].
Later, on July 18, 2017, the Plaintiffs and the Corps entered a non-judicial settlement agreement (the “Settlement Agreement”). The Settlement Agreement recites the Corp's determination that the Property at issue contained wetlands over which the Corps has jurisdiction. [Dkt. 11-2 at 9, Settlement Agreement ¶ 3]. The Settlement Agreement provides that the Corps would grant Plaintiffs a permit to allow 0.06 acres of fill to remain in wetlands on the Property. [Dkt. 11-2 at 11, Settlement Agreement ¶¶ 13.a, 14], The Plaintiffs agreed to restore the remaining 2.8 acres of filled wetland as detailed in the Restoration Plan included in the State Order. [Dkt. 11-2 at 10-11, Settlement Agreement ¶ 8, 13], To date, Plaintiffs have spent more than $400,000 “to comply with the [Settlement Agreement], largely dedicated to the clean-up of the Chlordane contamination.” [Am. Compl. ¶ 34]. But Plaintiffs have not completed the remediation or restoration that the State Order or the Settlement Agreement requires.
In 2019, approximately two years after entering the Settlement Agreement, the Plaintiffs retained the Lomax Consulting Group, LLC, as environmental consultants. [Am. Compl. ¶ 31]. Joseph Lomax (“Lomax”) analyzed the Property and produced a report (the “Lomax Report”).
The Lomax Report concluded that the entire regulatory process prompted by enforcement actions by the Corps and NJDEP were based upon a fundamental error about the timing of the filling, which was alleged to have taken place on the Property. [Am. Compl. ¶ 32], The report also concluded the 2.8-acre portion that was the subject of the Settlement Agreement is “uplands” rather than wetlands. [See Lomax Report, at 1, 6-7]. Based on these conclusions, the Plaintiffs believe the Settlement Agreement “was based upon a mutual mistake about the location of wetlands versus uplands.” [See Am. Compl, Second Count Declaratory Judgment Relief], The Plaintiffs sent the Lomax Report to the Corps and NJDEP, asking the defendants to modify the non-judicial settlement agreement and the State Order. [Am. Compl. ¶ 32], Plaintiffs claim that the Corps and NJDEP refused to modify the non-judicial agreement and permit any form of appeal or judicial review of those documents.
Dissatisfied with the Corps and NJDEPs' response, the Plaintiffs filed this lawsuit. The Plaintiffs' amended complaint alleges five counts. Within each count, Plaintiffs conclude with a wherefore clause, indicating a summary of the count. Preceding the wherefore clause in some counts, Plaintiffs make additional allegations.
Count I of the Plaintiffs' Amended Complaint seeks “pre-enforcement review,” declaring the Property was filled in due to the operations of Imerys Clays, and further enforcement of any settlement agreement would be inequitable. . Preceding the wherefore clause in Count I, Plaintiffs make additional allegations. First, the Plaintiffs allege that the Corps and NJDEP acted arbitrarily, reviewable under the Federal Administrative Procedures Act 5 U.S.C. § 706 (2)(A) and the doctrine of preenforcement review enunciated by the U.S. Supreme Court in Sackett v. EPA, 566 U.S. 120 (2012).[1] . Secondly, the Plaintiffs allege a denial of their due process rights under the Fifth and Fourteenth Amendment of the United States Constitution because of the failure to allow adequate time to investigate the Corps and NJDEPs' false claims with the refusal to reconsider the inequitable agreements that the Plaintiffs entered under duress and unfounded threats of enforcement. .
Count II seeks a declaratory judgment that the Settlement...
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