995 F.3d 274
1st Cir.2021Background
- Blackstone Headwaters Coalition sued Gallo Builders, Arboretum Village, and the Gallos under the Clean Water Act (CWA) alleging: (Count I) Gallo Builders lacked required EPA Construction General Permit coverage; (Count II) defendants caused sediment-laden stormwater discharges to waters leading to the Blackstone River.
- MassDEP previously issued a Unilateral Administrative Order (UAO) and then an Administrative Consent Order with Penalty (ACOP) against Arboretum Village based on observed silt-laden discharges; ACOP imposed remedial measures, monitoring, and stipulated penalties.
- District Court granted summary judgment for defendants on Count II, holding 33 U.S.C. § 1319(g)(6)(A)(ii) precluded Blackstone’s citizen suit because MassDEP had commenced and was diligently prosecuting a related state enforcement under a comparable law.
- District Court later granted summary judgment for defendants on Count I, treating Gallo Builders’ lack of separate permit coverage as a nonactionable “technical” violation because Arboretum Village (and Gallo Builders) were controlled by the same individuals.
- First Circuit: affirmed the preclusion ruling on Count II (MassDEP action was under a comparable state law, targeted the same violations, and was diligently prosecuted; preclusion extends to injunctive/declaratory relief under circuit precedent) but reversed the grant on Count I and remanded for further proceedings.
Issues
| Issue | Blackstone's Argument | Gallo Defendants' Argument | Held |
|---|---|---|---|
| Whether the prior MassDEP enforcement was commenced “under” a state law comparable to §309(g) | MassDEP action was only under the Wetlands Protection Act (MWPA), which is not comparable to §309(g) | MassDEP action implicated Massachusetts Surface Water Quality Standards and the Mass. Clean Waters Act (Mass. CWA), which is comparable | MassDEP action was prosecuted at least in part under the Mass. CWA; Mass. CWA is comparable for §309(g) preclusion purposes (affirmed) |
| Whether the state action and the citizen suit concern the same violations | Blackstone: its suit targets ongoing/ later causes (defective stormwater controls) distinct from the discrete June 2013 discharges MassDEP cited | Defendants: MassDEP’s UAO/ACOP addressed both discharges and their causes (required erosion control plan, BMPs) and imposed forward-looking remedies | The state action targeted the same violations (including causes) and forward-looking ACOP remedies made later complaints duplicative (affirmed) |
| Whether MassDEP was diligently prosecuting enforcement when Blackstone filed suit | Blackstone: agency monitoring was insufficient (staff shortages; delegated sampling; alleged deference to defendants) | Defendants: MassDEP monitored, collected data, issued letters, met with defendants, and reserved enforcement/penalties—showing ongoing diligent prosecution | MassDEP’s monitoring, data collection, communications, and retained enforcement options constitute diligent prosecution as a matter of law (affirmed) |
| Whether §1319(g)(6)(A)(ii) preclusion bars equitable relief (injunctive/declaratory) as well as civil penalties | Blackstone: statutory text bars only civil penalty actions; equitable relief should remain available | Defendants: preclusion should cover duplicative citizen suits including equitable relief to avoid interference with state enforcement | Court bound by circuit precedent (Scituate): preclusion extends to injunctive/declaratory relief; therefore preclusion applied (affirmed) |
| Whether an entity (Gallo Builders) lacking a Construction General Permit can be sued when a related entity (Arboretum Village) controlled by the same people has coverage | Blackstone: Gallo Builders is an operator and can be sued for failing to obtain required permit coverage | Defendants: where same individuals control both entities and permit coverage exists through the related entity, any failure is a mere technicality and nonactionable (relying on Paolino) | Paolino does not bar citizen suits alleging substantive unpermitted discharges by an operator; District Court’s grant on Count I was reversed and claim remanded (reversed) |
Key Cases Cited
- North & South Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991) (state Clean Waters Act found comparable to §309(g); state prosecution can preclude duplicative citizen suits)
- Paolino v. JF Realty, LLC, 830 F.3d 8 (1st Cir. 2016) (distinguishes substantive permit violations from mere notification/technical permit defects)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (U.S. 1987) (discusses role and limits of citizen suits under the CWA)
- Paper, Allied-Indus., Chem. & Energy Workers Int'l Union v. Cont'l Carbon Co., 428 F.3d 1285 (10th Cir. 2005) (construed §309(g)(6)(A)(ii) to bar duplicative civil penalty actions but not equitable relief)
- Karr v. Hefner, 475 F.3d 1192 (10th Cir. 2007) (citizen-plaintiffs bear a high burden to show an agency failed to diligently prosecute)
- Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743 (7th Cir. 2004) (consent decrees and agency remedial efforts can support preclusion of citizen suits)