Shark River Cleanup Coal. v. Twp. of Wall
| Decision Date | 24 August 2022 |
| Docket Number | 21-2060 |
| Parties | SHARK RIVER CLEANUP COALITION, Appellant v. TOWNSHIP OF WALL; Estate of Fred McDowell, Jr. |
| Court | U.S. Court of Appeals — Third Circuit |
47 F.4th 126
SHARK RIVER CLEANUP COALITION, Appellant
v.
TOWNSHIP OF WALL; Estate of Fred McDowell, Jr.
No. 21-2060
United States Court of Appeals, Third Circuit.
Argued June 16, 2022
Filed: August 24, 2022
John P. Brennan, Jr. [ARGUED], Suite 1, 227 East Bergen Place, Red Bank, NJ 07701, Counsel for Appellant
M. James Maley, Jr., Erin E. Simone [ARGUED], Maley Givens, 1150 Haddon Avenue, Suite 210, Collingswood, NJ 08108, Counsel for Appellee Township of Wall
John J. Novak [ARGUED], 3 Franklin Avenue, Toms River, NJ 08753, Counsel for Appellee Estate of Fred McDowell, Jr.
Before: HARDIMAN, SMITH, and FISHER, Circuit Judges
OPINION OF THE COURT
SMITH, Circuit Judge.
The Clean Water Act empowers citizens to sue for violations of the Act, 33 U.S.C. § 1365(a)(1), subject to one key condition. Before going to federal court, a citizen-suit plaintiff must "give[ ] notice of the alleged violation" to the "alleged violator," and also to the U.S. Environmental Protection Agency and to the state in which the alleged violation occurs. 33 U.S.C. § 1365(b)(1)(A). Once the plaintiff has provided the required notice, it must wait sixty days before suing. Id. ; Hallstrom v. Tillamook Cnty. , 493 U.S. 20, 23 n.1, 26, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (in holding that the Resource Conservation and Recovery Act's notice requirement "is a mandatory, not optional, condition precedent for suit," referencing its Clean Water Act analogue at 33 U.S.C. § 1365(b) ).
The sixty-day period following notice "gives the alleged violator ‘an opportunity to bring itself into complete compliance with the Act and thus ... render unnecessary a citizen suit.’ " Pub. Int. Rsch. Grp. of N.J., Inc. v. Hercules, Inc. , 50 F.3d 1239, 1246 (3d Cir. 1995) (quoting Hallstrom , 493 U.S. at 29, 110 S.Ct. 304 ). But if the alleged violation continues notwithstanding the notice, the statutory regime authorizes a "citizen suit [as] the vehicle to achieve compliance." Id.
The parties to the citizen suit before us do not dispute whether Plaintiff Shark River Cleanup Coalition, a non-profit citizen's group, delivered a notice letter alleging a Clean Water Act violation. Rather, they contest whether the contents of the Cleanup Coalition's Notice satisfy the more granular requirements set forth by EPA regulation.1 Under the applicable regulation,
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) (emphasis added).
In Hercules , we read the plain text of the regulation2 as requiring notices to provide "enough information to enable the recipient "—here, Defendants Township of Wall and the Estate of Fred McDowell,
Jr.—to identify "the components of an alleged violation." 50 F.3d at 1248 ("We read the regulation to require just what it says[.]"). Thus, although we observed in Hercules that it would have been "helpful" to the defendant if the plaintiff's notice had provided more "detailed information" regarding the alleged violation, we held that "such specificity [wa]s not mandated by the regulation." Id. at 1247. Following the principles we articulated, several of our sister courts of appeals have also concluded that citizen-suit plaintiffs need not "list every specific aspect or detail of every alleged violation." Paolino v. JF Realty, LLC , 710 F.3d 31, 38 (1st Cir. 2013) (quoting Hercules , 50 F.3d at 1248 ); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. , 629 F.3d 387, 400 (4th Cir. 2011) (quoting same language); Waterkeepers N. Cal. v. AG Indus. Mfg., Inc. , 375 F.3d 913, 917 (9th Cir. 2004) (same).
In this case, the District Court erred under Hercules by requiring the Cleanup Coalition to provide more than what was "enough" information for Defendants to identify the location of the alleged violation. 50 F.3d at 1248. Yet the Cleanup Coalition's Notice was deficient on another ground: It did not "include sufficient information to permit [Defendants] to identify the specific standard, limitation, or order alleged to have been violated[.]" 40 C.F.R. § 135(a). Accordingly, we will affirm the District Court's dismissal of the Cleanup Coalition's citizen suit.3
I
A.
In 1991, Wall Township recorded with the Monmouth County Clerk's Office an Amended Declaration of Taking, establishing by eminent domain a "permanent" subterranean easement on the property of the Estate that was to be used for an underground municipal sewer line system. JA-V1 00426. The Declaration described "a strip of land 25.00 feet in width" and "containing 3.5 acres," JA-V1 00436, delineated by metes and bounds, and spanning a total distance that we will assume adds up to three miles.4 The Estate's nearly 500-acre property from which the easement was taken is largely undeveloped and "thickly wooded." D. Ct. Dkt. 41-1, at 3 ¶¶ 20–22.
Two decades later, in 2015, a hiker5 who was traversing the Estate's property discovered that portions of the underground sewer line no longer remained underground. He passed along his discovery to the president of Shark River Cleanup Coalition, James McNamara, and the two of them together then visited the site of the protruding sewer line.
After learning of the exposed line from McNamara, the Cleanup Coalition decided to investigate. In April 2016, its counsel submitted a public records request to the Township, requesting: "All documents creating [the] sanitary sewer easement on [the Estate's] property, evidencing [the] installation of [the] sanitary sewer on [the] property, evidencing maintenance of [the] sanitary sewer on [the] property for the period 2000 to present." JA-V1 00440. After a back-and-forth with the Township's Director of Engineering and Planning, who informed the Coalition's counsel that the Township did not possess the requested records, the Cleanup Coalition obtained some of the sought-after records from Monmouth County.
While considering whether to file a citizen suit, the Cleanup Coalition dispatched McNamara to reexamine the sewer line condition. When he attempted, by himself, to return to the site in question in July 2016, McNamara "got lost" at first, but he "kept on plugging along" and eventually located the exposed sewer line. JA-V1 00159–00160. McNamara then photographed the sewer line condition on his cell phone and presented the photos to the Cleanup Coalition's membership.
Subsequently, in October 2016, the Cleanup Coalition directed its counsel to prepare and serve the Township and the Estate with a Notice of Intent to Commence Suit under the Clean Water Act's citizen-suit provision.
B.
The Cleanup Coalition's Notice alleged that, due to the failure of the Township and the Estate to take preventative measures, "historic and continuing" erosion of the ground surrounding the buried sewer line released "large areas of sand"6 into the nearby Shark River Brook, a tributary of the Shark River. JA-V1 00020, 00024. According to the Notice, the erosion resulted in "[s]everal sections" of the buried line becoming exposed such that they were " ‘flying’ in the air without support." JA-V1 00020.
The Notice further contended that the release of the fill surrounding the sewer line into the Shark River Brook violated the Clean Water Act, although it did not specify the section of the Act that had allegedly been violated. By contrast, the Notice made a full page of references to various New Jersey statutes and to several provisions of the New Jersey Administrative Code, without explaining how those state statutes and regulations related to its citizen suit. It was not until later in the litigation that the Cleanup Coalition explained that it was claiming that the release was an unauthorized discharge of pollutants in violation of 33 U.S.C. § 1311(a) —what the Township has referred to as a "general violation" of the Clean Water Act. Township's Br. at 22.
The Notice also failed to provide the exact, or even approximate, location of the sewer line's exposed condition. But it did point out that, according to Monmouth County's deed records, the sewer line easement recorded by the Township was 25-feet wide, "run[ning] from Campus Parkway in an easterly7 direction across
the [Estate's] Property to the Garden State Parkway over 3.15 miles (16,341 feet) distant." JA-V1 00019.
And, in a section describing the "dangerous condition" created by erosion of the fill surrounding the sewer line, the Notice promised that photos of the condition would be "available upon request." JA-V1 00020. Much to the Township's and the Estate's consternation, the Cleanup Coalition's counsel did not respond to either Defendant's requests for the photos. Neither did counsel offer a justifiable excuse for failing to do so. It was not until the parties' initial litigation conference, which took place several months after the Coalition had filed suit in federal court, that the Cleanup Coalition provided the photos.
Proceeding without the benefit of the photos, representatives of the Township and the Estate tried and failed on several occasions to locate the site in question, although the Cleanup Coalition disputes the thoroughness of their searches. An inspector from the NJDEP, who was responsible for investigating the sewer line condition described in the Cleanup Coalition's notice, was also unable to find the site during his first few attempts.8
Yet the NJDEP inspector testified that he started his unsuccessful searches from the inaccessibly wooded side of the Estate's property, which led into impassible sections of the path along the sewer line easement. Had he...
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