Blackstone Headwaters Coal. v. Gallo Builders, Inc. ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2095
THE BLACKSTONE HEADWATERS COALITION, INC.,
Plaintiff, Appellant,
v.
GALLO BUILDERS, INC.; ARBORETUM VILLAGE, LLC;
STEVEN A. GALLO; and ROBERT H. GALLO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Howard, Chief Judge,
Barron, Circuit Judge,
and Katzmann, Judge.*
James P. Vander Salm, with whom Law Office of James P. Vander
Salm was on brief, for appellant.
William D. Jalkut, with whom Fletcher Tilton P.C. was on
brief, for appellees.
April 26, 2021
* Of the United States Court of International Trade, sitting
by designation.
BARRON, Circuit Judge. In May 2016, the Blackstone
Headwaters Coalition, Inc. ("Blackstone"), a non-profit
environmental organization, sued four defendants (two companies,
Gallo Builders, Inc. ("Gallo Builders") and Arboretum Village, LLC
("Arboretum Village"); and two individuals, Steven Gallo and
Robert Gallo) involved in the development of a residential
construction site in Worcester, Massachusetts. Blackstone brought
the suit in the District of Massachusetts pursuant to the citizen
suit provision of the Federal Water Pollution Control Act, 33
U.S.C. § 1365(a), which is better known as the Federal Clean Water
Act, 33 U.S.C. § 1251 et seq. ("the Federal CWA").
The suit alleged in Count I of Blackstone's complaint
that Gallo Builders, Steven Gallo, and Robert Gallo had violated
the Federal CWA based on a failure by Gallo Builders to obtain
from the U.S. Environmental Protection Agency ("EPA") what is known
as a Construction General Permit, which the Federal CWA and certain
of its implementing regulations allegedly required that company to
have due to its connection to the work that was being done at the
construction site in Worcester. See 33 U.S.C. § 1342; 40 C.F.R.
§§ 122.26(b)(14)(x), 122.28; 2012 National Pollutant Discharge
Elimination System General Permit for Discharges from Construction
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Activities § 1.1.a ("Construction General Permit").1 The suit
alleged in Count II of Blackstone's complaint that all four
defendants -- Gallo Builders, Arboretum Village, Robert Gallo, and
Steven Gallo -- had violated the Federal CWA and certain of its
implementing regulations by failing to prevent sediment-laden
stormwater discharges from flowing from that construction site
into waters that lead to the Blackstone River.
The District Court granted summary judgment in the
defendants' favor as to the first of these two claims. The
District Court ruled that, because Arboretum Village had the
requisite Construction General Permit, Gallo Builders, Steven
Gallo, and Robert Gallo had committed at most a "technical
violation" of the Federal CWA and its implementing regulations in
failing to secure such a permit for Gallo Builders and that a
violation of that kind was not itself actionable via the Federal
CWA's citizen suit provision.
The District Court also granted summary judgment to the
defendants on Blackstone's other claim, which was set forth in
Count II of the complaint. The District Court based this ruling
on section 309(g)(6)(A)(ii) of the Federal CWA, codified at 33
U.S.C. § 1319(g)(6)(A)(ii). That provision of the Federal CWA
1 Available at https://www.epa.gov/sites/production/files/
2016-09/documents/cgp2012_finalpermitpart1-9-updatedurl.pdf.
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bars an otherwise permissible citizen suit under that same statute
from going forward if a state government has already commenced and
is diligently prosecuting a sufficiently related enforcement
action under a law comparable to section 309(g) of the Federal
CWA. See id.The District Court concluded that this preclusion bar in
the Federal CWA applied here because of a prior enforcement action
that the Massachusetts Department of Environmental Protection
("the MassDEP") had brought against Arboretum Village based on
alleged sediment-laden stormwater discharges at the construction
site. In that same order, the District Court also denied
Blackstone's cross-motion for summary judgment, in which
Blackstone had sought a ruling that, as a matter of law, the
MassDEP's prior enforcement action against Arboretum Village did
not trigger the statutory preclusion bar in the case that
Blackstone was bringing.
Blackstone now appeals from these rulings. We affirm in
part and reverse in part.2
I.
The following facts are not in dispute. Since
approximately 2006, the four defendants -- Gallo Builders,
Arboretum Village, Steven Gallo, and Robert Gallo -- have been
We acknowledge with appreciation the assistance of the amici
2
curiae in this case.
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collectively involved in constructing a large residential
development known as Arboretum Village Estates at a site in
Worcester, Massachusetts. In June 2013, an analyst for the MassDEP
who was monitoring the site for compliance with Massachusetts state
environmental laws reported having observed "[d]ischarge(s) of
silt-laden runoff (measured from 200-645 Nephelometric Turbidity
Units ('NTUs'))3 from unstable, eroded suspended soils at the Site
to an unnamed, perennial stream . . . [that feeds into] the
Blackstone River." The MassDEP thereafter issued what is known as
a Unilateral Administrative Order ("UAO"), which named Arboretum
Village as respondent on June 21, 2013; identified various
violations that it had committed at the site; threatened to impose
civil penalties on the company; and ordered that it undertake a
number of remedial actions.4
Construction at the site came to a halt in the wake of
the UAO. Arboretum Village thereafter administratively appealed
the UAO to the MassDEP's Office of Appeals and Dispute Resolution.
In late 2014, with the administrative appeal of the UAO
pending, the MassDEP and Arboretum Village executed a settlement
in the form of an Administrative Consent Order with Penalty
3NTUs are a measure of water turbidity taken with an
instrument that gauges the reflectivity of light off water.
4While the UAO named Arboretum Village as respondent, it was
mailed to Steven Gallo in his capacity as President of Arboretum
Village.
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("ACOP"). The MassDEP's Commissioner approved the ACOP in a Final
Decision on December 22, 2014. The Final Decision explained that,
under the ACOP, Arboretum Village would be required, among other
things, to "pay an $8,000.00 civil administrative penalty to the
Commonwealth," to undertake certain remedial measures at the site,
and to agree to "pay stipulated penalties and/or be subject to
additional high level enforcement action from the [MassDEP] if any
further discharges of turbid stormwater runoff to wetlands
resource areas in excess of 150 NTUs occur."
More than a year later, on May 6, 2016, Blackstone filed
this suit in the District of Massachusetts under the citizen suit
provision of the Federal CWA. See 33 U.S.C. § 1365(a).
Blackstone's "mission is to restore and protect water quality and
wildlife habitat in the Blackstone River . . . and its
tributaries." Its members use and enjoy the Blackstone River and
adjacent waters "for recreation, sightseeing, wildlife
observation, and other activities," and it claims to "have a
recreational, aesthetic, historical, and environmental interest"
in those waters.
Blackstone alleged in Count I of its complaint that Gallo
Builders, Robert Gallo, and Steven Gallo had violated 33 U.S.C.
§§ 1311(a), 1342, and accompanying regulations, 40 C.F.R.
§§ 122.26(b)(14)(x), 122.28, by failing to obtain a Construction
General Permit for Gallo Builders from the EPA for the site at
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issue, given that Gallo Builders was an operator of the
construction site and that the site disturbed five or more acres
of land and discharged pollutants from a point source into waters
of the United States. Blackstone alleged in Count II of the
complaint that Gallo Builders, Arboretum Village, Robert Gallo,
and Stephen Gallo had violated 33 U.S.C. §§ 1311(a), (e),
1365(f)(1), (7), and 1342 by failing to comply with numerous
provisions of the Construction General Permit that Arboretum
Village had obtained from the EPA due to "longstanding and habitual
neglect of erosion and sediment control" at the construction site.
With respect to the latter claim, Blackstone alleged
that "[a]s a result of Defendants' [Federal] CWA violations,
sediment-laden stormwater runoff from the Site is polluting waters
of the United States, particularly the Blackstone River, its
tributaries, and wetlands adjacent to those tributaries."
Blackstone alleged that sediment-laden discharges had occurred "on
days including but not limited to October 16, 2015, January 10,
2016, February 3, 2016, February 16, 2016, February 24, 2016,
February 25, 2016, March 1, 2016, and April 7, 2016."
Blackstone sought a declaratory judgment that the
defendants were in violation of the Federal CWA by both failing to
obtain Construction General Permit coverage for Gallo Builders and
by violating the conditions of the Construction General Permit
held by Arboretum Village. Blackstone also sought an injunction
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prohibiting further violations of the Federal CWA, requiring that
the defendants restore any polluted wetlands and waters, and
requiring that the defendants report future issues with stormwater
discharges at the site to the EPA and to Blackstone. In addition,
Blackstone sought an assessment of civil penalties under section
309(d) of the Federal CWA, 33 U.S.C. § 1319(d), and an award of
attorneys' fees.
On August 30, 2016, all four defendants jointly moved to
dismiss both claims that Blackstone had brought against them in
its suit on the ground that each of the claims was barred by the
statutory preclusion provision of the Federal CWA set forth in
section 309(g)(6)(A)(ii), which bars "civil penalty action[s]"
brought by either the federal government under section 309(d) or
by citizens via citizen suits insofar as such actions concern "any
violation . . . with respect to which a State has commenced and is
diligently prosecuting an action under a State law comparable this
subsection." 33 U.S.C. § 1319(g)(6)(A)(ii). The motion also
sought the dismissal of the claim set forth in Count I of the
complaint, which concerned Construction General Permit coverage,
on the independent ground that Arboretum Village alone had
operational control over the construction site and thus that only
it needed to obtain (and had already obtained) a Construction
General Permit from the EPA for the site.
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The District Court denied the defendants' motion to
dismiss Blackstone's two claims but instructed the parties to
engage in a limited period of discovery concerning whether section
309(g)(6)(A)(ii) of the Federal CWA precluded them from going
forward. At the close of that limited discovery period, the
defendants then proceeded to move for summary judgment as to both
of Blackstone's claims.
The motion for summary judgment, which Blackstone
opposed, again asserted that section 309(g)(6)(A)(ii) barred both
of Blackstone's claims. In addition, Blackstone filed a cross-
motion requesting "summary judgment that this action is not barred
by the 'diligent prosecution' provision of Section
309(g)(6)(A)(ii) of the Federal Clean Water Act."
On September 30, 2018, the District Court issued an order
that both denied Blackstone's cross-motion for summary judgment
and partially granted the defendants' summary judgment motion,
insofar as that motion concerned the claim in Count II of
Blackstone's complaint, which alleged unauthorized sediment-laden
stormwater discharges. Blackstone Headwaters Coal., Inc. v. Gallo
Builders, Inc., No. 16-cv-40053-TSH, 2018 WL 4696749, at *2 (D.
Mass. Sept. 30, 2018); see Blackstone Headwaters Coal., Inc. v.
Gallo Builders, Inc., No. 16-cv-40053-TSH, 2018 WL 5795832, at *1
(D. Mass. Oct. 31, 2018) (clarifying that the earlier summary
judgment ruling did not affect the claim concerning Gallo Builders'
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failure to obtain permit coverage). The District Court determined
that the MassDEP had "exercised its enforcement powers with respect
to the Site" both in issuing the UAO and in executing the ACOP.
Blackstone, 2018 WL 4696749, at *2. The District Court further
found that the ACOP imposed "a series of enforceable obligations
on Defendants designed to bring the Site into compliance" and that
the MassDEP had, after executing that agreement, "monitored the
Site . . . on an ongoing basis." Id. Thus, the District Court
concluded, "the cumulative actions of the MassDEP form[] the basis
of a substantial, considered and ongoing response to the violation"
alleged in Blackstone's complaint against all the defendants
concerning stormwater discharges, and the "circumstances of this
case demonstrate ongoing diligent prosecution." Id.The defendants then moved on June 28, 2019, for summary
judgment as to the remaining claim by Blackstone, which was set
forth in Count I of the complaint and concerned Construction
General Permit coverage. The District Court granted this motion,
which Blackstone had opposed, on September 30, 2019. It reasoned
that the defendants were right that the claim alleged merely a
"technical violation" of the Federal CWA and its implementing
regulations and so was not actionable in a citizen suit under that
statute. Blackstone Headwaters Coal., Inc. v. Gallo Builders,
Inc., 410 F. Supp. 3d 299, 302-03 (D. Mass. 2019). The District
Court explained that it regarded the alleged violation as merely
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"technical" because Arboretum Village did have coverage under an
EPA-issued Construction General Permit and both Arboretum Village
and Gallo Builders were controlled by the same individuals --
namely, "Robert H. Gallo, his wife Janice Gallo and their son
Steven Gallo." Id.The District Court entered judgment for the defendants
on September 30, 2019, and, on October 29, 2019, Blackstone timely
appealed. Blackstone's Notice of Appeal referenced (1) the
District Court's order granting summary judgment against
Blackstone as to its claim in Count II, which concerned alleged
unauthorized sediment-laden stormwater discharges, and denying
Blackstone's cross-motion for summary judgment as to the
applicability of the statutory preclusion bar in section
309(g)(6)(A)(ii) of the Federal CWA; (2) the District Court's order
granting summary judgment against Blackstone as to the claim in
Count I, which concerned Gallo Builders' alleged failure to obtain
the required permit coverage; and (3) the judgment of dismissal.
We have jurisdiction to review both the District Court's
award of summary judgment to the defendants and its denial of
summary judgment to Blackstone. See OneBeacon Am. Ins. Co. v.
Com. Union Assurance Co. of Can., 684 F.3d 237, 241 (1st Cir.
2012); see also Crowley v. Nevada ex rel. Nev. Sec'y of State, 678
F.3d 730, 734 (9th Cir. 2012) ("When the district court disposes
of a case on cross-motions for summary judgment, we may review
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both the grant of the prevailing party's motion and the
corresponding denial of the opponent's motion."); LM Ins. Corp. v.
Dubuque Barge & Fleeting Serv. Co., 964 F.3d 1247, 1249 (8th Cir.
2020) (similar). Our review of the District Court's summary
judgment rulings is de novo. See Petitti v. New Eng. Tel. & Tel.
Co., 909 F.2d 28, 30 (1st Cir. 1990) ("Both denial[s] and grants
of summary judgment are reviewed de novo."). "Summary judgment is
appropriately granted where there is no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of
law." Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007) (citing
Fed. R. Civ. P. 56(c)).
II.
We start with Blackstone's challenge to the District
Court's grant of summary judgment to the defendants on the claim
that is set forth in Count II of Blackstone's complaint, which is
the sediment-laden stormwater discharges claim. The District
Court based this ruling on section 309(g)(6)(A)(ii) of the Federal
CWA, which, as we have noted, bars "a civil penalty action"
instituted pursuant to the citizen suit provision of the Federal
CWA (or by the federal government via section 309(d)) to the extent
that such an action concerns "any violation . . . with respect to
which a State has commenced and is diligently prosecuting an action
under a State law comparable this subsection." 33 U.S.C.
§ 1319(g)(6)(A)(ii).
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To address this aspect of Blackstone's appeal, we need
to assess four distinct questions that the District Court resolved,
either implicitly or explicitly -- (1) whether the prior
enforcement action by the MassDEP was commenced and prosecuted
"under a State law comparable" to section 309(g) of the Federal
CWA; (2) whether, insofar as the MassDEP's enforcement action was
commenced and prosecuted under such a comparable law, it sought to
enforce the same violation that Blackstone claims in its suit under
the Federal CWA; (3) whether, if those first two requirements of
the Federal CWA's preclusion bar are satisfied, the MassDEP was
"diligently prosecuting" the enforcement action when Blackstone
filed its complaint; and (4) whether Blackstone's suit is "a civil
penalty action." We consider each of these issues in turn.
A.
We begin with the "comparable" law issue. Our focus is
twofold, as the parties' dispute with respect to the District
Court's ruling on this issue concerns both which law the MassDEP
brought the prior enforcement action "under" and whether that
"law," once identified, qualifies as "comparable" to section
309(g) of the Federal CWA.
1.
Massachusetts is one of just three States (the others
being New Hampshire and New Mexico) that has not sought and
received authorization under section 402(b) of the Federal CWA, 33
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U.S.C. § 1342(b), to assume responsibility for administering the
Federal CWA's National Pollution Discharge Elimination System
permit program -- which includes Construction General Permits --
within its borders. Thus, this is not a case in which the relevant
state enforcement action -- the one brought by the MassDEP that
resulted in the UAO and then the ACOP and the Final Decision --
was brought pursuant to a state law that itself administers the
Federal CWA. See, e.g., Paolino v. JF Realty, LLC, 830 F.3d 8,
11-12 (1st Cir. 2016) (discussing enforcement activity by the Rhode
Island Department of Environmental Management under the state-
assumed Rhode Island Discharge Elimination System permitting
program); see also 133 Cong. Rec. 1,264 (1987) (statement of Sen.
Chafee) ("[I]f a State has received authorization under section
402 to implement a particular permitting program . . . it [can]
prosecute a violation of Federal law."); 131 Cong. Rec. 15,635-38
(1985) (statement of Sen. Wallop) (similarly indicating that
"States with approved programs" "under the Clean Water Act"
are "administer[ing]" that Act).
Nonetheless, in North & South Rivers Watershed Ass'n v.
Town of Scituate, 949 F.2d 552 (1st Cir. 1991), we held, based on
the arguments presented there, that an enforcement action
undertaken by the MassDEP under the Massachusetts Clean Waters
Act, Mass. Gen. Laws ch. 21, §§ 26-53 ("the Massachusetts CWA"),
amounted to "action [under a state law] comparable to section
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309(g)" of the Federal CWA, Scituate, 949 F.2d at 554, 556, and
thus we found the "comparable" law requirement of the Federal CWA's
preclusion bar satisfied in that case by the MassDEP's action to
enforce the Massachusetts CWA.5
Here, the District Court did not expressly identify the
Massachusetts law "under" which the MassDEP had commenced and
prosecuted the administrative proceedings that it held triggered
the Federal CWA's preclusion bar. See Blackstone, 2018 WL 4696749,
at *1-2. The District Court, however, did invoke our decision in
Scituate in holding that those proceedings by the MassDEP were
brought "under a State law comparable to" section 309(g) the
Federal CWA, Blackstone, 2018 WL 4696749, at *1 (quoting 33 U.S.C.
§ 1319(g)(6)(A)(ii)), which arguably indicated that the District
Court understood the Massachusetts CWA to have been the law "under"
which the MassDEP had been operating -- at least in part -- when
bringing the preclusive prior state enforcement action here.
Due in part to the ambiguity on that score, however,
Blackstone moved for clarification following the District Court's
initial ruling. In that motion, Blackstone sought to determine
more definitively the law "under" which the District Court
understood the MassDEP enforcement action to have been brought for
Scituate cautioned, however, that certain arguments "not
5
raised by the parties" were not considered in the course of
adjudicating that appeal. 949 F.2d at 556 n.8.
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purposes of the Federal CWA's preclusion bar. The District Court
granted the motion to clarify and explained, while again invoking
Scituate, that the proposition that the Federal "CWA has a
comparable state law in the Massachusetts Clean Waters Act is well
established in this District." Blackstone, 2018 WL 5795832, at *1
(first citing Mass. Gen. Laws ch. 21, § 44; then citing Scituate,
949 F.2d at 555-56).
We thus proceed on the understanding that the District
Court based its summary judgment decision in favor of the
defendants as to the applicability of the preclusion bar on the
following rationale: that the MassDEP was proceeding "under," at
least in part, the Massachusetts CWA; and that the Massachusetts
CWA is itself "comparable" to section 309(g) of the Federal CWA
for purposes of the preclusion bar based on the reasoning we set
forth in Scituate. It is on this basis, then, that we understand
the District Court to have held, as a matter of law, that the
"comparable" law requirement of the Federal CWA's preclusion bar
had been satisfied.
Blackstone does not dispute that the Massachusetts CWA
qualifies as a "comparable" law for purposes of the Federal CWA's
preclusion bar, as it does not dispute Scituate's holding on that
point. But, Blackstone contends, the MassDEP's enforcement action
was not commenced and prosecuted "under" the Massachusetts CWA,
even in part. Instead, Blackstone contends, that enforcement
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action was brought only "under" the Massachusetts Wetlands
Protection Act, Mass. Gen. Laws ch. 131, § 40 ("the MWPA"). That
is clear, Blackstone contends, from a review of the relevant
enforcement documents -- the UAO, the ACOP, and the Final Decision
-- as Blackstone notes their repeated invocation of the MWPA.
Moreover, Blackstone asserts that the MWPA does not itself qualify
as a "comparable" law, even under the reasoning relied on in
Scituate. For that reason, Blackstone contends, the District Court
erred in finding the "comparable" law requirement satisfied as a
matter of law and thus its grant of summary judgment to the
defendants based on the preclusion bar must be overturned.
According to the defendants, we need not decide whether
Blackstone is right that the MassDEP's enforcement action was not
in fact commenced and prosecuted even in part under the
Massachusetts CWA and that it was instead commenced and prosecuted
solely under the MWPA. The defendants point out that there is no
dispute that the MassDEP's action was commenced and prosecuted at
least in part under the MWPA. Thus, they contend that we need
only address whether the MWPA is itself a "comparable" law under
the standard set forth in Scituate and they assert that it is.
The District Court, as we have explained, did not address
whether the MWPA is a "comparable" law in granting summary judgment
based on the preclusion bar to the defendants. But, the question
is one of law, and we may affirm the District Court's summary
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judgment ruling on any ground manifest in the record. See
Saccoccia v. United States, 955 F.3d 171, 172 (1st Cir. 2020).
Nevertheless, we cannot affirm the District Court's
ruling on this ground. Scituate held that a state law measure
that "closely parallels" the administrative penalties subsection
of the Federal CWA, 309(g), could qualify as a "comparable" law,
949 F.2d at 554, 556, and that the Massachusetts CWA met that
"closely parallels" standard because it "contains penalty
assessment provisions comparable to the Federal Act, . . . the
State is authorized to assess those penalties, and . . . the
overall scheme of the two acts is aimed at correcting the same
violations, thereby achieving the same goals," id. at 556. But,
Scituate did not address whether the MWPA similarly could meet the
"closely parallels" standard. And, even assuming, as we did in
Scituate, that a state law need not have been "certified by the
EPA under section 402 of the Federal Clean Water Act," id. at 556
n.8,6 to qualify as "comparable," the defendants' contention that
the MWPA qualifies as "comparable" under Scituate is without merit.
6 Although in Scituate the EPA had raised the argument that
the state law had to be certified in order to be "comparable" as
an amicus, the parties themselves had not done so, and thus
Scituate did not consider it. 949 F.2d at 556 n.8. Similarly
here, neither party contends that the statutory preclusion bar in
section 309(g)(6)(A)(ii) of the Federal CWA is applicable only
when the state law in question has been certified under section
402(b), 33 U.S.C. § 1342(b).
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The primary prohibition in the Federal CWA provides that
"[e]xcept as in compliance with [the Federal CWA], the discharge
of any pollutant" into "the waters of the United States" "by any
person shall be unlawful." 33 U.S.C. §§ 1311(a), 1362(7), (12);
see also 33 U.S.C. § 1342(k) ("Compliance with a permit issued
pursuant to this section shall be deemed compliance . . . with
section[] 1311 . . . ."). The Massachusetts CWA similarly
prohibits the "discharge of any pollutant into waters of the
commonwealth, except in conformity with a permit," Mass. Gen. Laws
ch. 21, § 42; see Entergy Nuclear Generation Co. v. Dep't of Env't
Prot., 944 N.E.2d 1027, 1033 (Mass. 2011) ("Like the Federal Act,
the [Massachusetts CWA] creates a comprehensive permitting program
to ensure water quality standards are met."), and administrative
penalties may likewise be assessed against those who violate that
prohibition, see Scituate, 949 F.2d at 556 (citing Mass. Gen. Laws
ch. 21A, § 16).
But, the MWPA's prohibitions are both broader and
narrower than the Federal CWA's. Rather than prohibiting the
unauthorized discharge of pollutants into water, they regulate
instead "project[s that] involve[] work in a wetlands area." Ten
Loc. Citizen Grp. v. New Eng. Wind, LLC, 928 N.E.2d 939, 941 (Mass.
2010); see Mass. Gen. Laws ch. 131, § 40 (providing that "[n]o
person shall remove, fill, dredge, or alter" enumerated wetlands
unless such person files a "notice of intention" to do so with
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state and local regulators and, if necessary, "receiv[es] and
compl[ies] with an order of conditions").7 And, to the limited
extent that the MWPA's implementing regulations do purport to
direct that activity "shall not impair . . . surface water
quality," e.g., 310 C.M.R. §§ 10.54(4), 10.56(4), they apply only
if the activity in question will "remove, fill, dredge or alter"
MWPA-protected lands, id. §§ 10.02(2)(a), 10.51, and only if those
lands are also deemed significant to certain statutorily-
enumerated interests, see Mass. Gen. Laws ch. 131, § 40; 310 C.M.R.
§ 10.05(6).
Thus, even assuming that the "overall scheme" of the
Massachusetts CWA is "aimed at correcting the same violations" as
the Federal CWA, Scituate, 949 F.2d at 556, given how "closely"
the former "parallels" the latter, id. at 554, the same cannot be
said of the MWPA. Accordingly, we agree with Blackstone that the
MWPA, "[a]s its name would suggest . . ., is designed to protect
wetlands. It has neither the purpose nor the effect of protecting
the nation's waters more broadly."
7 See also, e.g., Miramar Park Ass'n v. Town of Dennis, 105
N.E.3d 241, 250 (Mass. 2018) ("The [MWPA] requires that projects
that affect wetlands . . . and that affect interests identified in
the act, may take place only after receipt of a permit from an
appropriate issuing body . . . .").
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2.
That brings us, then, to the question of whether a
"reasonable juror [necessarily would] have found in the
defendant[s'] favor," Primarque Prods. Co. v. Williams W. & Witts
Prods. Co., 988 F.3d 26, 36 (1st Cir. 2021), that the MassDEP's
enforcement action was "commenced and . . . prosecut[ed]" -- at
least in part -- "under" the Massachusetts CWA, as we understand
the District Court to have ruled, see Blackstone, 2018 WL 5795832,
at *1. For, if that action on any reasonable view of the record
was prosecuted in part under the Massachusetts CWA, then even
Blackstone agrees that the "comparable" law requirement is
satisfied as matter of law, because, as we have noted above,
Blackstone does not dispute that the Massachusetts CWA is itself
a "comparable" law for purposes of the Federal CWA's preclusion
bar.
Blackstone acknowledges that the enforcement documents
-- the UAO, the ACOP, and the Final Decision -- do not exclusively
reference the MWPA. All three documents also require the
respondent -- Arboretum Village -- to "take every reasonable step
to prevent further violations of the Wetlands Protection Act and
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the Massachusetts Surface Water Quality Standards."8 (emphases
added).
Notably, those water quality standards are promulgated
pursuant to authority granted the MassDEP by the Massachusetts
CWA. See Mass. Gen. Laws ch. 21, § 27(5); 314 C.M.R. § 4.00.
Moreover, the UAO expressly invokes the MassDEP's authority "to
issue orders to any person in violation of any law or regulation
[that the] MassDEP is authorized to enforce," (emphasis added),
and the ACOP -- which states that the parties entered into it "in
order to finally resolve the . . . adjudicatory proceeding"
commenced by the issuance of the UAO -- imposes obligations on the
defendants to take action to prevent sediment-laden stormwater
discharges going forward. The ACOP at no point states that those
obligations are being imposed solely to ensure compliance with the
MWPA and not also to ensure compliance with the Massachusetts
Surface Water Quality Standards, which, as we have observed, are
promulgated pursuant to the Massachusetts CWA.9
Blackstone nevertheless contends that the enforcement
documents do not actually set forth a "charge of any violation of
Blackstone does not argue that the fact that only Arboretum
8
Village was named as a respondent in these documents is
significant.
Blackstone makes no argument to the effect that the UAO and
9
the ACOP are part of different "actions" that may have been
commenced and prosecuted under separate laws.
- 22 -
the [Massachusetts] CWA or any regulation promulgated thereunder,"
because the documents imposed only a "prospective requirement"
that the defendants "prospectively comply with the Massachusetts
Surface Water Quality Standards." It therefore asserts that the
MassDEP's action was not brought "under" a "comparable" law within
the meaning of section 309(g)(6)(A)(ii).
But, given the features of the enforcement documents
that we have just described that implicate the Massachusetts CWA
and not only the MWPA, the documents do not indicate that the
MassDEP imposed merely a bare requirement to comply in the future
with the Massachusetts CWA, through the Massachusetts Surface
Water Quality Standards that were promulgated pursuant to it, such
that the Massachusetts CWA did not itself form a basis for the
underlying enforcement action. Cf. Cal. Sportfishing Prot. All.
v. Chico Scrap Metal, Inc., 728 F.3d 868, 876 (9th Cir. 2013)
(reasoning that an imposed "condition [that] merely requires
Defendants to abide by legal obligations [concerning stormwater
discharges] other than those that the parties [actually]
litigated . . . does not transform . . . actions into ones to
require compliance with the Clean Water Act"). Nor does Blackstone
develop any argument that we may look beyond the face of the
enforcement documents themselves to determine what law the MassDEP
was acting "under" in its prior enforcement action. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). And we are
- 23 -
reluctant to treat Blackstone as having developed any such argument
for us to countenance such a searching inquiry into the MassDEP's
motivations in bringing its prior enforcement action, given the
complexities that a deep dive into agency motivation of that sort
would entail and given that Blackstone does not attempt to address
any of those complexities. Accordingly, based on what the
enforcement documents themselves reveal and the nature of the
arguments Blackstone makes to us, we decline to disturb the
District Court's determination that the MassDEP's prior
enforcement action was commenced and prosecuted in part "under" a
"comparable" law -- the Massachusetts CWA -- for purposes of the
preclusion provision at section 309(g)(A)(6)(ii).10
B.
We next address Blackstone's contention that the
District Court erred in awarding summary judgment to the defendants
on Blackstone's sediment-laden stormwater discharges claim in
Count II of its complaint on the ground that the claim does not
allege the same violation as the MassDEP's enforcement action
targeted. See 33 U.S.C. § 1319(g)(A)(6)(ii) (barring "a civil
penalty action" concerning "any violation . . . with respect to
which a State has commenced and is diligently prosecuting an
We stress again that we are not deciding the merits of any
10
argument regarding the "comparable" law requirement not raised by
the parties in this proceeding. See Scituate, 949 F.2d at 556
n.8.
- 24 -
action" (emphasis added)); Francisco Sánchez v. Esso Standard Oil
Co., 572 F.3d 1, 10 (1st Cir. 2009) (reading similar preclusion
provision to "impl[y] that the government action does not preclude
a citizen suit against other violations" (quoting Jeffrey G.
Miller, Theme and Variations in Statutory Preclusions Against
Successive Environmental Enforcement Actions by EPA and Citizens:
Part One: Statutory Bars in Citizen Suit Provisions, 28 Harv.
Env't L. Rev. 401, 473-74 (2004))); see also H.R. Rep. No. 99-
1004, at 133 (1986) (Conf. Rep.) ("This limitation applies only to
an action for civil penalties for the same violations which are
the subject of the administrative civil penalties proceeding."
(emphasis added) (discussing Senate bill)); id. at 136 ("[W]here
an administrative penalty is being pursued, a citizen suit may not
be filed for the same violation." (emphasis added) (discussing
House amendment)). Blackstone does not suggest in pressing this
contention that the MassDEP's focus was solely on the MWPA and
thus not on a violation of the Massachusetts CWA. Rather, we
understand Blackstone to be contending only that, even if the
MassDEP's enforcement action was brought under the Massachusetts
CWA, that action did not concern the same violation as the one
that Blackstone is alleging in the claim set forth in Count II of
its complaint because Blackstone's claim "targets the causes" of
the defendants' water pollution (such as "the defective design of
Defendants' stormwater management and erosion and sediment control
- 25 -
systems"), and the MassDEP's enforcement action targeted only the
defendants' "pollution, per se (their silt-laden discharges)."11
But, as the defendants point out, the MassDEP's
enforcement action, no less than Blackstone's claim in Count II of
its citizen suit, also targeted the causes of the sediment-laden
stormwater discharges. Indeed, the descriptions of the
"violations" "observed" at the construction site in both the UAO
and the ACOP made note of not only "[d]ischarge(s) of silt-laden
runoff" but also the presence of "unstable, eroded suspended soils
at the Site." And, as the ACOP explained, the MassDEP as a result
of these observed violations "directed [Arboretum
Village] . . . to prepare a comprehensive erosion and
sedimentation plan [and] a slope stabilization plan."12 Moreover,
the resulting "Erosion Control Plan" -- which the ACOP required
Arboretum Village to "implement" -- called for, as descriptions of
it in the record make clear, "slope stabilization" (regrading) at
one area of the site; planting a "hydroseeded area" to reduce
stormwater runoff; and erecting "haybales, berms, swales, [and]
11 We need not address the defendants' contention that
Blackstone waived this argument by asserting it only in opposition
to the defendants' motion to dismiss, because the argument does
not succeed on the merits in any event. See Primarque, 988 F.3d
at 39 n.11 (1st Cir. 2021) (citing United States v. Leavitt, 925
F.2d 516, 517 (1st Cir. 1991)).
12The ACOP also mandated that Arboretum Village take "every
reasonable step to prevent further violations." (emphasis added).
- 26 -
temporary ponds" including "two sediment basins." And,
correspondence between Robert Gallo and the MassDEP confirms that
the basic premise of the Erosion Control Plan was to "provide[]
for a myriad of BMPs"13 to "allow[] for stormwater control during
construction while the site was being built out until the site
ha[d] been permanently stabilized."
Blackstone separately argues that the stormwater
discharge violations that it alleges in the claim set forth in
Count II of its complaint are not the "same violations" that the
MassDEP targeted "because they occurred later in time." Here
again, in advancing this argument Blackstone does not appear to be
disputing that the MassDEP's action was brought under a comparable
law and thus does not appear to be disputing that it was brought
under the Massachusetts CWA. Instead, it appears to be contending
only that, even on that understanding, the same violation
requirement of the statutory preclusion bar is not satisfied based
on the timing of the targeted violations.
Blackstone points out in this regard that the MassDEP in
its prior enforcement action "alleged violations occurring on
three days in June 2013," while the count in the complaint setting
forth the sediment-laden stormwater discharges claim "alleged
BMPs, or "Best Management Practices," are methods used to
13
control or prevent stormwater runoff and the discharge of
pollutants, such as sediments, into waterbodies.
- 27 -
violations occurring thereafter and persisting
through . . . 2016." But, the MassDEP's enforcement action
culminated in a consent agreement -- the ACOP -- that contained
forward-looking provisions, such as those imposing stipulated
administrative penalties14 and commanding that Arboretum Village
implement the Erosion Control Plan, that were designed to
ameliorate future issues at the site no less than its imposition
of an $8,000 civil administrative penalty was meant to penalize
the violations observed in June of 2013.
That is significant because in Scituate the MassDEP had
"alleged that Scituate owned and operated a sewage treatment
facility that was [unlawfully] discharging pollutants into a
coastal estuary," and, in 1987, the MassDEP "ordered Scituate
to . . . take all steps necessary to plan, develop and construct
new wastewater treatment facilities [and to] . . . begin extensive
upgrading of the facility subject to the [Mass]DEP's review and
approval at interim stages of the planning, designing, and
construction phases." 949 F.2d at 553-54.15 We then reasoned that
14 The ACOP provided for "stipulated civil administrative
penalties to the Commonwealth in the amount of $100.00 per day"
"if [Arboretum Village] violates any provision of the Consent
Order," and further reflected that Arboretum Village had agreed to
be subject to "additional high level enforcement action from [the]
MassDEP" if "[a]ny further discharges of turbid stormwater runoff
to wetland resource areas in excess of 150 NTUs" occurred.
15The MassDEP in 1987 "elected not to assess penalties against
Scituate at the time of issuing its [o]rder, but did reserve the
right to do so at a later date." Scituate, 949 F.2d at 554.
- 28 -
a citizen suit alleging factually similar but chronologically
later discharge violations was "duplicative" of the MassDEP's 1987
order because it sought a remedy for a violation that "[wa]s
already in the process of being remedied by the [1987] State
Administrative Order" and that allowing a citizen suit to proceed
"at a time when remedial measures are all well underway do[es] not
further [the Federal CWA's] goal[s]" but instead erects an
"impediment[] to environmental remedy efforts." Id. at 553-58;
see also Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage
Dist., 382 F.3d 743, 762-63 (7th Cir. 2004) ("Levying additional
penalties on violators who are undertaking massive remedial
projects will not bring about compliance any faster or cause the
result to be any more effective -- it will just cause the result
to be more expensively arrived at.").
Blackstone does attempt to distinguish Scituate in its
reply brief by contending that the MassDEP's order in that case
was "too complex to be complied with immediately," whereas here,
Blackstone contends, "compliance is not complicated." But, this
contention would appear to be at odds with the only contention
that Blackstone raised in its opening brief -- that the differences
in the timing of the occurrence of the violations targeted in,
respectively, the MassDEP's enforcement action and Blackstone's
own citizen suit under the Federal CWA in and of themselves
prevented the same violation requirement from being met. No
- 29 -
suggestion was made in Blackstone's opening brief that such
differential timing did not in and of itself prevent that
requirement from being satisfied in cases where the state action
resulted in a remedy that crosses some unspecified threshold of
complexity not present here. See Villoldo v. Castro Ruz, 821 F.3d
196, 206 n.5 (1st Cir. 2016) ("[N]ew arguments may not be raised
for the first time in a reply brief." (citing Rivera–Muriente v.
Agosto–Alicea, 959 F.2d 349, 354 (1st Cir. 1992))). Thus, at least
on this record, we agree with the defendants that the District
Court did not err in finding the same violation requirement
satisfied as a matter of law.
C.
We now take up Blackstone's contention that the District
Court erred in granting summary judgment to the defendants on the
claim set forth in Count II of Blackstone's complaint based on the
Federal CWA's preclusion bar, because the record does not show, as
a matter of law, that the MassDEP was "diligently prosecuting" its
action under the Massachusetts CWA. 33 U.S.C.
§ 1319(g)(6)(A)(ii). We disagree.
The "'great volume of enforcement actions are intended
to be brought by the State,' [and] citizen suits are proper only
'if the Federal, State, and local agencies fail to exercise their
enforcement responsibility.'" Scituate, 949 F.2d at 557
(alteration omitted) (quoting Gwaltney of Smithfield, Ltd. v.
- 30 -
Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987)). For that
reason, "[c]itizen-plaintiffs must meet a high standard to
demonstrate that [an agency] has failed to
prosecute . . . diligently." Karr v. Hefner, 475 F.3d 1192, 1198
(10th Cir. 2007); see also Piney Run Pres. Ass'n v. Cnty. Comm'rs,
523 F.3d 453, 459 (4th Cir. 2008) (similar); Scituate, 949 F.2d at
557 ("Where an agency has specifically addressed the concerns of
an analogous citizen's suit, deference to the agency's plan of
attack should be particularly favored.").
The District Court determined that "[t]he circumstances
of this case demonstrate ongoing diligent prosecution."
Blackstone, 2018 WL 4696749, at *2. It observed that the "ACOP
imposed . . . a series of enforceable obligations on Defendants
designed to bring the Site into compliance and to maintain
compliance and promulgated standards to measure compliance," id.,while at the same time "reserv[ing] to the MassDEP a full set of
enforcement vehicles for any instances of future non-compliance,"
id.; see also Scituate, 949 F.2d at 557; Grp. Against Smog &
Pollution, Inc. v. Shenango Inc., 810 F.3d 116, 128 (3rd Cir. 2016)
("Courts have concluded, in cases similar to ours, that consent
decrees already entered into by administrative agencies and
- 31 -
polluting entities were capable of constituting diligent
prosecutions." (collecting cases)).16
Moreover, the District Court determined that, after the
ACOP was approved in December 2014, it was indisputable that the
MassDEP "monitored the Site and . . . collected data and analysis
from the Defendants, from Defendants' outside engineers and from
municipal sources on an ongoing basis." Blackstone, 2018 WL
4696749, at *2. The District Court thus found, as a matter of
law, that "the cumulative actions of the MassDEP form[] the basis
of a substantial, considered and ongoing response to" the issues
that Blackstone is now attempting to pursue via its stormwater
discharges claim. Id.In line with the District Court's assessment, the record
indisputably shows that between December 22, 2014, when the ACOP
was finally approved, and May 6, 2016, when Blackstone's suit was
filed, the MassDEP (1) conducted numerous site visits to sample
turbidity levels and to evaluate the defendants' stormwater
management practices; (2) collected turbidity data and other
information about the state of stormwater control measures at the
site from the defendants on an ongoing basis; (3) sent multiple
16 The defendants separately contend that the mere existence
of the UAO and the ACOP necessarily establish diligent prosecution.
The defendants cite no case law to support that expansive
proposition, which runs counter to Scituate. See 949 F.2d at 557
("The bar against citizen's suits also requires that the State
diligently enforce its [o]rder[s].").
- 32 -
letters to the defendants and their environmental consultant
detailing "concerns" with the site, such as "issues with stormwater
management" that the MassDEP said "must be corrected," and advising
the defendants to implement a revised Erosion Control Plan as well
as to "revisit the ACOP . . . [to] insure that the site is in
compliance with the requirements therein"; (4) met with the
defendants on multiple occasions to discuss stormwater control
issues at the site and the need for an updated Erosion Control
Plan; and (5) deliberated internally about the best way to
remediate ongoing issues with the site, which included
"investigat[ing] . . . whether or not to exercise [the MassDEP's]
discretion" to bring a "high-level enforcement action." Further,
as the District Court detailed, see Blackstone, 2018 WL 4696749,
at *2, the MassDEP during this period left "open the possibility
of imposing penalties upon" the defendants, Scituate, 949 F.2d at
557.
We agree with the defendants that the MassDEP's actions
preceding Blackstone's suit "ampl[y] . . . demonstrate[] [the
agency's] ongoing involvement vis-à-vis" the construction site.
Paolino, 830 F.3d at 16; see also Scituate, 949 F.2d at 557. We
note, moreover, that there is no trace of the "dilatory, collusive
or otherwise . . . bad faith" behavior by the agency of the sort
that has concerned other courts. E.g., Pitroff v. United States,
No. 16-cv-522-PB, 2017 WL 3614436, at *5 (D.N.H. Aug. 22, 2017)
- 33 -
(quoting Conn. Fund for the Env't v. Cont. Plating Co., 631 F.
Supp. 1291, 1293 (D. Conn. 1986)).
Blackstone nevertheless contends that the District Court
erred in finding that the MassDEP's activity just described was
diligent as a matter of law because the record supportably shows
that a "staff shortage" had forced the agency to make fewer visits
to the site during the year after the ACOP was executed than it
otherwise might have done and because the record supportably shows
that the agency "delegated" some of its monitoring activity to a
consultant hired by the defendants. In pressing these contentions,
we do not understand Blackstone to be disputing that the MassDEP's
enforcement activity with respect to the site was undertaken in
part pursuant to the Massachusetts CWA. So understood, these
arguments provide no ground for disturbing the District Court's
summary judgment ruling with respect to the requirement that the
MassDEP be "diligently prosecuting."
The record establishes -- as Blackstone acknowledges --
that, once third-party complaints were received in late 2015 or
early 2016 concerning possible stormwater control issues at the
site, the MassDEP did dispatch its own analysts on numerous
occasions to investigate potential ACOP violations. That the
MassDEP -- from the time the ACOP was executed through the moment
that Blackstone's suit was filed -- also requested and received
data about stormwater discharges from the defendants' consultant
- 34 -
on a periodic basis does not suggest that the MassDEP's enforcement
activities themselves were not diligent. See Scituate, 949 F.2d
at 557 (finding diligent prosecution in part because the defendant
was submitting "test results" about "discharges" in compliance
with a MassDEP directive).
To be sure, Blackstone contends that the defendants'
consultant was often sampling for turbidity "well after a storm
ha[d] ended," as part of a practice calculated to achieve seemingly
compliant turbidity levels in reports generated and sent to the
MassDEP. But, the evidence in the record showing as much provides
no support for the contention that the MassDEP's own efforts were
not diligent.
Blackstone also contends that the MassDEP was not
diligent in its enforcement activity because, during a period of
"increased [MassDEP] involvement" at the construction site from
January 2016 to May 2016, the agency was "assuring the[]
[defendants] that they were complying with the ACOP despite
overwhelming evidence to the contrary." Blackstone's argument on
this front focuses on a telephone conversation between a MassDEP
official and Robert Gallo that took place on March 9, 2016.
The record reveals, however, that no such assurances
were given during that conversation. In fact, an email from the
relevant MassDEP official on the date in question reflects that
when Robert "Gallo called . . . want[ing] me to write an email
- 35 -
saying he was in compliance," "I told him I couldn't do that."
Robert Gallo testified to the same effect in his deposition,
acknowledging that the MassDEP official told him "I can't send you
that email." And, the email that the MassDEP official ultimately
did send to Robert Gallo expressly avoids "venturing an opinion
about conditions in the field."17
Blackstone more generally asserts that the MassDEP
"ignored overwhelming evidence of . . . ACOP violations" presented
by third parties and the agency's own analysts in early 2016. But,
insofar as Blackstone here accepts that diligent enforcement of
the ACOP would constitute diligent enforcement activity with
potentially preclusive effect, the problem with this contention is
that, as the District Court explained, "[t]he State is entitled to
make its own informed decisions about the best possible remedial
measures"; merely "because the State may not be taking the precise
action the plaintiff wants it to or moving with the alacrity the
plaintiff desires does not entitle the plaintiff to relief."
Blackstone, 2018 WL 4696749, at *1 (alterations omitted) (quoting
Scituate, 949 F.2d at 558).
17Blackstone also makes much of the fact that, around March
23, the same MassDEP official removed a reference to "violations"
from a letter later sent to the defendants. But, the result, once
again, was a letter that simply avoided taking a position on
whether there were ACOP violations (but which did reference
"challenges in dealing with stormwater and erosion control"); not
a document that "assured" the defendants that there were no such
violations.
- 36 -
Blackstone also argues that the MassDEP's enforcement
activity was not diligent in light of the deposition testimony of
the MassDEP's Wetlands Section Chief that during Spring 2016 she
was "not highly focused on whether the [defendants] ever had a
[turbidity] reading of over" 150 NTUs but was instead focused more
on whether "there's an impact to the wetland resource areas."
Blackstone contends that this testimony amounts to a deficient
attempt to "justify [the MassDEP's] failure to take enforcement
action" during that period, notwithstanding that the agency had
"tools for prosecuting pollution of streams of rivers" even without
an impact "on wetlands," including, Blackstone contends, in the
ACOP.
Blackstone is correct that the ACOP stated -- as one
condition among many -- that "[a]ny further discharges of turbid
stormwater runoff to wetland resource areas in excess of 150 NTUs
will be grounds for stipulated penalties and/or additional high
level enforcement action from [the] MassDEP." But, it was within
the realm of the MassDEP's discretion to decide whether to pursue
possible violations of that provision alone as opposed to reserving
such action for instances in which there were not only readings
over 150 NTUs but also observed impacts on nearby wetlands. See
Karr, 475 F.3d at 1197 ("[A]n agency's prosecutorial strategy [need
not] coincide with that of the citizen-plaintiff."); Ellis v.
Gallatin Steel Co., 390 F.3d 461, 477 (6th Cir. 2004) (similar);
- 37 -
cf. United States v. Metro. Water Reclamation Dist., 792 F.3d 821,
825 (7th Cir. 2015) ("Even the most diligent litigator may conclude
that settlement is the best option -- if only because it frees up
enforcement resources for use elsewhere -- and to achieve a
settlement a litigant must accept something less than the most
favorable outcome.").
Finally, we reject Blackstone's suggestion that it was
hampered in its effort to build its case that the MassDEP was not
engaged in diligent enforcement activity because the District
Court erroneously refused to allow it to conduct plenary "discovery
regarding the Defendants' conduct at the Site." As the defendants
note, the record itself contains the fruits of "extensive discovery
regarding . . . what was happening at the Site," and Blackstone
does not state with any particularity what additional information
concerning the site it was unable to seek because of the District
Court's discovery rulings, let alone explain how those rulings
thereby resulted in a "manifest injustice, that
is, . . . substantial prejudice." Mack v. Great Atl. & Pac. Tea
Co., 871 F.2d 179, 186-87 (1st Cir. 1989); see Martinez ex rel.
Martinez v. Garcia, 187 F.3d 622, 1998 WL 1085816, at *1 (1st Cir.
1998) (unpublished) (citing Zannino, 895 F.2d at 17).
D.
Blackstone's last argument in support of its contention
that the District Court erred in granting summary judgment to the
- 38 -
defendants as to Count II of the complaint is that the statutory
preclusion provision in the Federal CWA cannot apply to the extent
that Blackstone seeks declaratory and injunctive relief on its
stormwater discharges claim. That is so, Blackstone contends,
because the provision's plain language restricts requests for
"civil penalt[ies]" but not requests for declaratory and
injunctive relief. Compare 33 U.S.C. § 1319(g)(6)(A)(ii) ("[A]ny
violation . . . with respect to which a State has commenced and is
diligently prosecuting an action under a State law comparable to
this subsection . . . shall not be the subject of a civil penalty
action" by the federal government under section 309(d) or by a
citizen-plaintiff (emphasis added)), with id. § 1365(a), (b)
("[A]ny citizen may commence a civil action on his own behalf"
except "[n]o action may be commenced . . . if the Administrator or
State has commenced and is diligently prosecuting a civil or
criminal action in a court of the United States . . . to require
compliance with the standard, limitation, or order . . . ."
(emphasis added)).18
Blackstone and amici also maintain that the legislative
history supports this understanding. See S. Rep. No. 99-50, at 28
18 See also 33 U.S.C. § 1319(b) (authorizing the EPA "to
commence a civil action for appropriate relief, including a
permanent or temporary injunction . . . in the district court[s]
of the United States" (emphases added)); id. § 1319(g)
(authorizing the EPA to administratively "assess a . . . civil
penalty" of up to $125,000 (emphasis added)).
- 39 -
(1985) ("The potential for overlap between citizen enforcement
suits and administrative civil penalties is specifically
addressed. . . . [But,] this limitation would not apply to[] an
action seeking relief other than civil penalties (e.g., an
injunction or declaratory judgment) . . . . The Agency can
prevent duplicate proceedings by intervening in the ongoing
citizen enforcement suit or by bringing its own judicial action
before a citizen suit is filed."); H.R. Rep. No. 99-1004, at 133
(1986) (Conf. Rep.) (similar). Further, they point out, the Tenth
Circuit has read section 309(g)(6)(A)(ii) in the manner they
advocate. See Paper, Allied-Indus., Chem. & Energy Workers Int'l
Union v. Cont'l Carbon Co., 428 F.3d 1285, 1300 (10th Cir. 2005)
("The governing principle behind [section 309(g)(6)(A)(ii)] is to
avoid duplicative monetary penalties for the same
violation . . . [but that provision] does not apply to equitable
relief."); cf. also Citizens for a Better Env't-Cal. v. Union Oil
Co. of Cal., 83 F.3d 1111, 1118 (9th Cir. 1996) ("[T]here [i]s no
evidence in the legislative history . . . suggest[ing] that
Congress intended to extend th[is] bar on citizen suits to a
context beyond administrative penalty actions." (citing Wash. Pub.
Int. Rsch. Grp. (WashPIRG) v. Pendleton Woolen Mills, 11 F.3d 883,
885-86 (9th Cir. 1993))). But see Ark. Wildlife Fed'n v. ICI Ams.,
Inc., 29 F.3d 376, 383 (8th Cir. 1994) (reading section
309(g)(6)(A)(ii) to bar injunctive relief "in spite of the plain
- 40 -
language of the statute" because the alternative would be
"unreasonable").
But, Blackstone acknowledges, Scituate rejected the very
argument that it now advances. See 949 F.2d at 557-58 (concluding,
"[b]ased on . . . policy considerations regarding civilian
actions" and the fact that the text of 33 U.S.C. § 1365(a) "does
not authorize [citizens to seek] civil penalties separately from
injunctive relief," that the preclusion bar in section
309(g)(6)(A)(ii) "extends to civil penalty actions . . . [and to]
injunctive and declaratory relief" (quotation omitted)).
Blackstone makes no timely argument that Scituate is not law of
the circuit. As a panel, we are bound by Scituate on this score.
See United States v. Lewko, 269 F.3d 64, 66 (1st Cir. 2001).
E.
For the foregoing reasons, we decline to reverse the
District Court's award of summary judgment to the defendants on
the applicability of section 309(g)(6)(A)(ii) to Blackstone's
sediment-laden stormwater discharges claim. And, because we so
conclude, we must also reject Blackstone's contention that the
District Court erred in denying its cross-motion for summary
judgment on this same issue. See Littlefield v. Acadia Ins. Co.,
392 F.3d 1, 6 (1st Cir. 2004) ("Cross motions simply require us to
determine whether either of the parties deserves judgment as a
- 41 -
matter of law on facts that are not disputed." (quoting Barnes v.
Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004))).
III.
There remains Blackstone's challenge to the District
Court's summary judgment ruling concerning Count I of Blackstone's
complaint, concerning the failure of Gallo Builders to obtain
coverage under a Construction General Permit from the EPA.19 The
District Court granted the defendants' motion for summary judgment
on the ground that Blackstone here alleged only a nonactionable
"technical violation" of the Federal CWA, Blackstone, 410 F. Supp.
3d at 302-03, particularly given that, the District Court found,
"[d]uring all relevant times in this case, Robert H. Gallo, his
wife Janice Gallo and their son Steven Gallo served as the only
officers, directors and shareholders of [Gallo Builders] . . . [as
well as] the only members of Arboretum Village," id. at 301.
The defendants contend that the District Court was right
to rule in their favor given our decision in Paolino v. JF Realty,
LLC, 830 F.3d at 16-17, on which the District Court relied, see
Blackstone, 410 F. Supp. 3d at 302-03. There, a plaintiff bringing
a citizen suit under the Federal CWA asserted a number of claims
against the defendant, one of which alleged that the defendant had
19The defendants do not contend on appeal that the District
Court erred in applying the statutory preclusion bar only to Count
II of the complaint.
- 42 -
violated a condition in a state-issued National Pollution
Discharge Elimination System permit, which required the defendant
to "notify [the issuing state agency] of a transfer of ownership"
of the underlying property. Paolino, 830 F.3d at 16.
Paolino noted that, in that case, "the transferor
[entity] and the recipient [entity] were controlled by the same
person, Ferreira" and that Ferreira's identity as the current owner
of the property in question was known to the state agency charged
with overseeing compliance with the state-issued NDPES permit.
Id. at 16-17. Paolino explained that it is "important to
distinguish . . . substantive violations" of permit conditions --
such as "failing to maintain best management practices,
violating . . . water quality standards, and ignoring monitoring
and reporting requirements" -- from the notification-based
condition that the plaintiff claimed that the defendants were
violating in that case. Id. at 16 (quotation omitted); see id.
("These substantive violations are hardly equivalent to a failure
to properly notify [a state agency] of a transfer of
ownership . . . ."). The Paolino Court then proceeded on the basis
of that distinction to find that the alleged permit violation at
issue concerned only notification regarding property ownership and
that there was no merit to the plaintiffs' contention that the
Federal CWA "authorizes citizen suits for the enforcement of all
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conditions of a permit." Id. (alteration omitted) (emphasis added)
(quotation omitted).
But, here, the Federal CWA claim set forth in Count I of
Blackstone's complaint does not allege simply the violation of a
permit condition by the permit holder. The complaint with respect
to that claim instead alleges that Gallo Builders is an unpermitted
"operator of a construction project that . . . discharges a
pollutant from a point source to waters of the United States" in
violation of 33 U.S.C. §§ 1311(a), 1342. It thus alleges a
violation of the statutory requirement to obtain the permit in
question in the event of such discharges, see id., and not merely,
like the violation alleged in Paolino, a violation of a condition
set forth in a permit that had been obtained but that required
"notif[ication] of a transfer of ownership," Paolino, 830 F.3d at
16. Moreover, precisely because the Federal CWA claim set forth
in Count I of Blackstone's complaint is alleging a violation of a
statutory prohibition against discharging pollutants into U.S.
waters without an authorizing permit, that alleged violation
certainly is of a kind with the violations of a permit that Paolino
itself described as "substantive." Id. (giving as examples
"failing to maintain best management practices, violating . . .
water quality standards, and ignoring monitoring and reporting
requirements" (quotation omitted)).
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Thus, Paolino does not support the grant of summary
judgment to the defendants here. The defendants identify no other
authority -- and we are aware of none -- that supports their
position that a citizen suit under the Federal CWA cannot be
brought against an entity that is alleged to be an operator of a
construction site that is discharging pollutants into U.S. waters
in violation of 33 U.S.C. §§ 1311(a), 1342, so long as another
entity ultimately controlled by the same individuals has such
permit coverage.20 Accordingly, we reverse the District Court's
ruling on this score.
IV.
We affirm the District Court's grant of summary judgment
to the defendants as well as its denial of Blackstone's cross-
motion for summary judgment on the applicability of the statutory
preclusion bar found at section 309(g)(6)(A)(ii) of the Federal
CWA with respect to Count II of Blackstone's complaint; reverse
the District Court's grant of summary judgment to the defendants
on Count I of that complaint; and remand for further proceedings
consistent with this opinion.
The parties shall bear their own costs.
20We note that the defendants have made no contention during
these proceedings that the lack of Gallo Builders' permit coverage
was the result of a scrivener's error.
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