THE BLACKSTONE HEADWATERS COALITION, INC., Plаintiff, Appellant, v. GALLO BUILDERS, INC.; ARBORETUM VILLAGE, LLC; STEVEN A. GALLO; and ROBERT H. GALLO, Defendants, Appellees.
No. 19-2095
United States Court of Appeals For the First Circuit
April 26, 2021
Hon. Timothy S. Hillman, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
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.
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 requirеd that company to have due to its connection to the work that was being done at the construction site in Worcester. See
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
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 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.
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
Blackstone alleged in Count I of its complaint that Gallo Builders, Robert Gallo, and Steven Gallo had violated
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 allegеd 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 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,
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
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 prosecutiоn’ 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’ 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 “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 Cоurt 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 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
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.”
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 Statе 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”
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 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,
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
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 action was brought only “under” the Massachusetts Wetlands Protection Act,
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 neеd 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 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”
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.”
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 (Mаss. 2010); see
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.”
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 . . . рrosecut[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 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
Blackstone nevertheless contends that the enforcement documents do not actually set forth a “charge of any violation of 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 meаning of
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
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
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] 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 MаssDEP 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 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
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 rеasoned that 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 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
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. 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 (3d Cir. 2016) (“Courts have concluded, in cases similar to ours, that consent decrees already entered into by administrative agencies and polluting еntities 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 letters to the defendants and their environmental consultant detailing “conсerns” with the site, such as “issues with stormwater management” that the MassDEP said “must be corrected,” and advising the defendants to implement
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) (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 -- аlso requested and received data about stormwater discharges from the defendants’ consultant 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
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 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).
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); 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
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 informаtion 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 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
Blackstone and amici also maintain that the legislative history supports this understanding. See S. Rep. No. 99-50, at 28 (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
But, Blackstone acknowledges, Scituate rejected the very argument that it now advances. See id. at 557-58 (concluding, “[b]ased on . . . policy considerations regarding civilian actions” and the fact that the text of
E.
For the foregoing reasons, we decline to reverse the District Court‘s award of summary judgment to the defendants on the applicability of
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 tо 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 9, 16-17 (1st Cir. 2016), 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 violated a condition in a state-issued National Pollution Discharge Elimination System permit, which required the defendant to “notify [the issuing state
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 wаs 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 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
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
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
The parties shall bear their own costs.