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February 28, 1995

ROBERT C. SHINN, JR., et al., Defendants.

The opinion of the court was delivered by: JOSEPH E. IRENAS

 IRENAS, District Judge:

 Plaintiff Mannington Mills, Inc. ("Mannington"), a manufacturer of vinyl flooring, operates a 325-acre manufacturing facility in Mannington Township, Salem County, New Jersey (the "Mannington site"). Defendants, officials of the New Jersey Department of Environmental Protection and Energy ("DEPE"), *fn1" are sued in both their individual and official capacities.

 Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants used "secret state government proceedings and other arbitrary and unlawful actions to deprive the plaintiff of liberty and property" in violation of its rights to procedural and substantive due process, as well as equal protection. (Complaint at P 1.) The complaint also alleges that defendants conspired to violate these rights in violation of 42 U.S.C. § 1985(3) and seeks declaratory and injunctive relief, compensatory damages, and attorney's fees pursuant to 42 U.S.C. § 1988.

 Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, arguing that plaintiff's claims are moot, that we should abstain from deciding them, and that defendants enjoy qualified immunity from suit. We find that plaintiff's requests for declaratory and injunctive relief are moot and therefore dismiss them without prejudice for lack of subject matter jurisdiction. In the alternative, we would abstain from deciding these claims. Plaintiff's claim for monetary damages is barred by the doctrine of qualified immunity.

 The standard for a Rule 12(b) (6) motion is familiar: in considering such a motion, the court must accept all allegations of the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Dismissal of claims under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). However, when "confronted with [a Rule 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Commonwealth of Pennsylvania v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988) (emphasis added).

 Similarly, when a Rule 12(b) (1) motion to dismiss for lack of subject matter jurisdiction attacks a complaint on its face, with no supporting documents or affidavits, the court must consider the allegations in the complaint as true. Yuksel v. Northern Am. Power Tech., Inc., 805 F. Supp. 310, 311 (E.D. Pa. 1992) (citing Mortensen First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Thus, in deciding whether subsequent events have rendered the allegations in the complaint moot, or whether we should abstain from addressing those allegations, we accept as true the facts alleged in the complaint.


 Plaintiff's allegations arise from DEPE's efforts to implement its Site Remediation Program ("SRP"). On June 12, 1992, plaintiff received a letter from DEPE charging plaintiff with the release of "hazardous substances" at the Mannington site. (Complaint at P 6.) The letter gave plaintiff sixty days to enter into a "Memorandum of Agreement" (MOA) with DEPE under which plaintiff would "conduct remedial activities." (Id.) Although the letter itself did not identify the specific hazardous substance involved, plaintiff later learned that DEPE's concerns stemmed from alleged soil contamination in plaintiff's hazardous drum storage area. (Complaint at P 8.) Plaintiff further alleges that this letter was sent as a precursor to the SRP, which was initiated by defendant Miller with the assistance of defendant Delaney "and other defendants." (Complaint at P 7.)

 In response, plaintiff provided DEPE with a May 26, 1992, "deregulation letter" DEPE had issued in conjunction with plaintiff's withdrawal of an application for a hazardous waste storage permit. This letter expressed satisfaction with the removal of contaminated soil from the Mannington site. (Complaint at P 9.) When plaintiff brought this letter to DEPE's attention, DEPE agreed to extend the time to respond to the MOA. (Complaint at P 10.)

 On February 18, 1993, defendant Kokas wrote plaintiff and stated that it would be "necessary" for DEPE investigate the Mannington site and to implement a remediation program. (Complaint at P 11.) This letter identified neither specific contaminants nor the specific statutes or regulations allegedly violated. (Complaint at PP 12-13.) Kokas offered plaintiff an opportunity to enter into an administrative consent order ("ACO") to avoid "enforcement actions" by DEPE. (Complaint at P 14.)

 Plaintiff subsequently learned that this letter was motivated not by concerns over soil contamination but by ground water contamination indicated in a report prepared by NUS Corp. (the "NUS report"). (Complaint at PP 15-16.) Although plaintiff disputed the contents of the NUS report, it nonetheless offered to assume voluntary monitoring. (Complaint at PP 17-18.) DEPE agreed that some of the NUS report was unreliable but, relying on the level of chlorinated solvents revealed by plaintiff's own voluntary ground water monitoring, refused to withdraw the demand that plaintiff sign an ACO. (Complaint at P 21.) On May 11, 1993, plaintiff disputed the use of this data and requested a meeting with defendants. (Complaint at P 22.)

 On May 17, 1993, DEPE published a regulation requiring sites designated as "priorities" to investigate and remediate pursuant to a standard ACO. 25 N.J. Reg. 2002. On May 19, 1993, DEPE advised plaintiff that the Mannington site had been designated a priority and that if it did not sign the standard ACO it would face an investigation, cleanup, and cost recovery action. (Complaint at P 23.)

 During subsequent conversations plaintiff learned that DEPE's concerns had once again turned to soil contaminants in the drum storage area. (Complaint at P 25.) Plaintiff again referred to the deregulation letter and complained that DEPE had thrice shifted the basis for its proposed remediation program: from the drum storage area, to the NUS report, to plaintiff's own ground water monitoring, and back to the drum storage area. (Complaint at P 26.) On July 12, 1993, DEPE responded that it "reserves the right to make the sole determination of whether or not a site is a priority, and in this case the Site is a priority." (Complaint at P 27.) This letter threatened a lawsuit for multiple damages if plaintiff did not sign the standard ACO. (Complaint at P 28.)

 On August 16, 1993, plaintiff protested that "DEPE has been unclear as to what findings or data are raising environmental concerns" and again requested a meeting. (Complaint at P 30.) On September 14, 1993, defendant Kokas responded that the "priority determination is due to groundwater, surface water and soil contamination attributed to discharges from Mannington's operations at the Site." (Complaint at P 31.) The letter declined to disclose how DEPE made the priority determination because that information was "confidential at this time." (Id.)

 On October 5, 1993, defendants Grayson and Kokas met with plaintiff's representatives and agreed to allow plaintiff to review all DEPE files on the Mannington site. (Complaint at P 33.) They also indicated that a draft of a Remedial Priority System (RPS) used to determine what sites would be designated as "priorities" would be available in approximately six months. (Complaint at P 34). Finally, while defendants were still unclear about what factors led to plaintiff's priority determination, they did state that the arsenic level in the ground water was not a primary concern. (Complaint at P 35.)

 In a letter dated October 19, 1993, Grayson and Kokas indicated that DEPE would provide plaintiff with a copy of the RPS when it became available in approximately six months, even thought the availability of the RPS had been announced in the New Jersey Register on October 4, 1993. 25 N.J. Reg. 4551(c). This letter also recanted defendants' earlier representation that plaintiff's priority listing was not based on arsenic levels in the ground water. (Complaint at PP 36, 38.)

 In letters dated November 4 and 11, 1993, plaintiff pointed to deficiencies in the draft RPS and argued that its own review of the DEPE files and its own ground water monitoring left plaintiff unconvinced that it should remain on the priority list. Plaintiff also requested another meeting with DEPE representatives. (Complaint at PP 39, 41-42.) However, on November 19, 1993, Kokas stated in a telephone conversation that the priority determination for the Mannington site "was final" and that DEPE would begin to investigate remediation. (Complaint at P 43.) This determination was "based on arsenic in two media and on chlorinated solvents in another." (Id.)

 On January 21, 1994, plaintiff wrote to Grayson objecting to the inclusion of the Mannington site on the list of sixty-one priority sites which Corcory had published on January 3, 1993. 26 N.J. Reg. 259(c). This letter also provided DEPE with a report generated by plaintiff's voluntary monitoring activities showing no evidence of chlorinated solvents and inconclusive evidence of arsenic in the ground water. (Complaint at P 45.)

 On February 16, 1994, plaintiff filed (i) the complaint in this litigation; (ii) a Notice of Appeal with the Appellate Division of the New Jersey Superior Court, No. A-3175-93T3, challenging DEPE's priority designation of the Mannington site, see N.J.R. 2:2-3 (a) (2) (appeal as of right to the Appellate Division "to review final decisions or actions of any state administrative agency or officer"); and (iii) a Notice of Intent to Commence Action against the DEPE in the Law Division of the Superior Court, No. SLM-C-8-94, pursuant to the New Jersey Environmental Rights Act, N.J.S.A. § 2A:35A-1. The Law Division dismissed the Notice of Intent with prejudice on October 26, 1994, and the Appellate Division dismissed the Notice of Appeal as moot on December 14, 1994.

 On February 23, 1994, plaintiff received a letter indicating that DEPE had made its initial priority determinations, including the prioritization of the Mannington site, "on a case by case basis" rather than under the RPS. (Complaint at P 48.) However, on April 4, 1994, plaintiff received two "scoring sheets" purportedly used by DEPE to determine the Mannington site's priority status. (Complaint at P 50.) Plaintiff argues that these scores vary widely, evidencing either arbitrary and capricious action by the state or a subterfuge for the state's true motive - plaintiff's status as a "deep pocket." (Complaint at PP 51-57.)

 After having solicited public comment on October 4, 1993, 25 N.J. Reg. 4551(c), DEPE withdrew the list of priority sites on September 6, 1994, in order to review those comments. Pending the new scoring system, sites originally designated as a priority could begin remediation through an MOA, 26 N.J. Reg. 3753(b). See N.J.A.C. § 7:26C.


 Initially, we must define exactly what state action plaintiff challenges. Plaintiff's complaint does not directly put in issue whether the Mannington site might properly be designated as a "priority" for immediate remedial action - a determination appropriately left to state law. Rather, we are called upon to judge whether the means used by New Jersey to reach this determination violated plaintiff's constitutional rights. Defendants argue that (i) this question is moot, (ii) the court should ...

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