Summary
**Blackstone Headwaters Coal. v. Gallo Builders, Inc., 1st Cir. 2021.** The First Circuit addressed two claims under the Clean Water Act citizen suit provision. It upheld summary judgment for defendants on stormwater discharge claims (Count II) because a prior Massachusetts state enforcement action under the Massachusetts Clean Waters Act—a law comparable to § 309(g)—constituted diligent prosecution, triggering the statutory preclusion bar at 33 U.S.C. § 1319(g)(6)(A)(ii). However, the court reversed summary judgment on the failure-to-obtain-a-Construction-General-Permit claim (Count I), holding that an unpermitted operator's alleged discharge without a permit is a substantive violation, not a mere "technical" one, and is actionable even if an affiliated entity holds the permit.
Topics
Practice areas
Questions Presented
- Whether the MassDEP enforcement action was commenced and prosecuted under a state law comparable to section 309(g) of the Clean Water Act.
- Whether the MassDEP action concerned the same violation as Blackstone's citizen suit claim for stormwater discharges.
- Whether the MassDEP was diligently prosecuting its enforcement action.
- Whether the statutory preclusion bar applies to claims for declaratory and injunctive relief.
- Whether a citizen suit can be brought against an operator of a construction site that lacks a permit when another entity controlled by the same individuals has a permit.
Holdings
- The MassDEP's enforcement action was commenced and prosecuted under the Massachusetts Clean Waters Act, which is comparable to section 309(g) of the Federal CWA, and thus the comparable law requirement of the preclusion bar is satisfied.
- The MassDEP action targeted the same sediment-laden stormwater discharges and included forward-looking provisions to remedy the causes, so the same violation requirement is satisfied.
- The MassDEP was diligently prosecuting as a matter of law based on its ongoing monitoring, site visits, data collection, and enforcement activities.
- The preclusion bar extends to all relief, including injunctive and declaratory relief, as held by binding circuit precedent in Scituate.
- The alleged violation of failing to obtain a permit is a substantive violation of the Clean Water Act, not a technical violation, and thus is actionable under the citizen suit provision.
Key quotations
“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.'” (at 29)
“The bar against citizen's suits also requires that the State diligently enforce its orders.” (at 29)
“The circumstances of this case demonstrate ongoing diligent prosecution.” (at 29)
“the alleged violation certainly is of a kind with the violations of a permit that Paolino itself described as 'substantive.'” (at 44)
“Paolino does not support the grant of summary judgment to the defendants here.” (at 44)
Factual background
This case concerns a construction site in Worcester, Massachusetts, where defendants were developing a residential subdivision. The Massachusetts Department of Environmental Protection (MassDEP) issued a Unilateral Administrative Order (UAO) against Arboretum Village in 2013, alleging sediment-laden stormwater discharges. The parties entered into an Administrative Consent Order with Penalty (ACOP) in 2014, requiring remedial measures and an $8,000 penalty. Blackstone, an environmental organization, sued in 2016 under the Clean Water Act, alleging two counts: (1) Gallo Builders failed to obtain a Construction General Permit from the EPA, and (2) all defendants failed to prevent sediment-laden discharges. The District Court granted summary judgment to defendants on both counts, and Blackstone appealed.
Procedural history
Blackstone filed suit in 2016 under the Clean Water Act citizen suit provision. The defendants moved to dismiss, which was denied. After limited discovery, the parties filed cross-motions for summary judgment. The District Court granted summary judgment to defendants on Count II (stormwater discharges) based on statutory preclusion bar, and on Count I (permit coverage) based on technical violation doctrine. It denied Blackstone's cross-motion on the preclusion issue. Blackstone appealed.
Remand instructions
Remanded for further proceedings consistent with this opinion.