United States District Court, D. Massachusetts
DECISION AND ORDER ON DEFENANT ON DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT ON THE ISSUE OF DILIGENT
Timothy S. Hillman United States District Judge.
Blackstone Headwaters Coalition, Inc.,
(“Plaintiff”) a non-profit membership
organization, brings this action against the defendants,
Gallo Builders, Inc., Arboretum Village, LLC, Steven A. Gallo
and Robert H. Gallo (“Defendants”). Plaintiff
filed its Complaint under the citizen suit provision of the
CWA, 33 U.S.C. § 1365, on May 6, 2016, alleging that
Defendants were violating the CWA at the Site by failing to
comply with the United States Environmental Protection
Agency's National Pollutant Discharge Elimination System
(“NPDES”) General Permit for Discharges from
Construction Activities (“CGP”), by regularly
discharged sediment-laden stormwater to tributaries of the
move for summary judgment, contending that this citizen
action is barred because the state has commenced and is
diligently prosecuting the action under comparable state law.
Plaintiff moves for summary judgment, pursuant to
Fed.R.Civ.P. 56 and Local Rule 56.1, that this action is not
barred by the “diligent prosecution” provision of
Section 309(g)(6)(A)(ii) of the Federal Clean Water Act
(“CWA”), 33 U.S.C. § 1319(g)(6)(A)(ii).
citizen suit under the Clean Water Act is barred when
“a State has commenced and is diligently prosecuting an
action under a State law comparable to” the
administrative penalties subsection of 33 U.S.C. § 1319.
See 33 U.S.C. § 1319(g)(6)(A)(ii); see
also 33 U.S.C. § 1365(a) (authorization to commence
a citizen suit except as provided in § 1319(g)(6)). As
explained by the First Circuit, “[t]he primary function
of the provision for citizen suits is to enable private
parties to assist in enforcement efforts where Federal and
State authorities appear unwilling to act.” North
and South Rivers WatershedAss'n, Inc. v. Town of
Scituate, 949 F.2d 552, 555 (1stCir. 1991);
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,
Inc., 484 U.S. 49, 62, 108 S.Ct. 376 (1987). (“the
bar on citizen suits when governmental enforcement action is
under way suggests that the citizen suit is meant to
supplement rather than to supplant governmental
North and South Rivers, the Court held that a
“high degree of deference [should be] accorded
analogous and diligently enforced governmental action.”
North and South Rivers Watershed Ass'n., Inc.
949 F.2d at 557. Diligent prosecution exists and the citizen
suit is barred, even if “violations may continue
despite everything reasonably possible being done by the
State and [and defendant] to correct them.”
Id. at 558. Instead, where a state order
“represents a substantial, considered and ongoing
response to the violation ... the DEP's enforcement
action does in fact represent diligent prosecution.”
Id. at 557. The State is entitled to make its own
informed decisions about the best possible remedial measures.
“[M]erely 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.” Id. at 558. The
diligent prosecution bar “does not require government
prosecution to be far-reaching or zealous, ” or to
achieve compliance as quickly as citizens might wish. See
Pitroff v. U.S., 2017 WL 3614436, at *6 (D.N.H. Aug. 22,
2017) citing Karr v. Hefner, 475 F.3d 1192, 1197
(10th Cir. 2007).
circumstances of this case demonstrate ongoing diligent
prosecution. The DEP has jurisdiction over the Site under the
Massachusetts Clean Water Act, the Massachusetts Surface
Water Quality Standards, and the Massachusetts Wetlands
Protection Act. Those statutes and the regulations
promulgated thereunder invest the DEP with enforcement
powers, which are specifically administered by the Wetlands
Section of the Bureau of Water Resources within the Central
Region of the DEP.
has exercised its enforcement powers with respect to the
Site. On June 21, 2013, the DEP issued a Unilateral
Administrative Order (“UAO”) alleging stormwater
violations from the Site. The UAO set forth specific facts
outlining DEP investigatory measures taken in June of 2013.
The UAO further set forth specific obligations required of
Arboretum Village, LLC in order to bring the Site into
statutory and regulatory compliance.
was timely appealed to the DEP Division of Appeals and
Dispute Resolution pursuant to statute. The UAO and its
appeal were prosecuted in accordance with DEP and state
administrative law requirements. The matter was settled by
agreement. Arboretum Village, LLC and the DEP jointly
executed an Administrative Consent Order with Penalties on
September 5, 2014 and November 4, 2014 respectively
(“ACOP”). The ACOP was presented to the
administrative law judge for approval. On December 22, 2014,
the ACOP was approved and published by the DEP.
ACOP imposed on a series of enforceable obligations on
Defendants designed to bring the Site into compliance and to
maintain compliance and promulgated standards to measure
compliance. The ACOP reserved to the MassDEP a full set of
enforcement vehicles for any instances of future
non-compliance and contained a penalty provision for any
violation. The DEP executed, adopted and approved the ACOP in
November 2014. Further DEP staff has monitored the Site and
has collected data and analysis from the Defendants, from
Defendants' outside engineers and from municipal sources
on an ongoing basis since the UAO in June of 2013.
the cumulative actions of the MassDEP forming the basis of a
substantial, considered and ongoing response to the
violation, this Court finds that the DEP's enforcement
action does represent diligent prosecution. See North and
South Rivers, 755 F.Supp. at 487.
Motion for Summary Judgment (Docket No. 68) is
granted in part, as to the issue of
diligent prosecution only, and Plaintiff's Motion for
Summary Judgment as to the ...