The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc. et al

Filing 79

District Judge Timothy S. Hillman: DECISION AND ORDER entered granting in part 68 Motion for Summary Judgment and denying 71 Motion for Summary Judgment. (Castles, Martin)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
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v.
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GALLO BUILDERS, INC.,
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ARBORETUM VILLAGE, LLC,
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STEVEN A. GALLO, and
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ROBERT H. GALLO
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Defandants
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__________________________________________)
THE BLACKSTONE HEADWATERS
COALITION, INC.,
Plaintiff,

CIVIL ACTION
No. 4:16-cv-40053

DECISION AND ORDER ON DEFENANT ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT AND
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
ON THE ISSUE OF DILIGENT PROSECUTION
September 30, 2018
HILLMAN, DJ.
Introduction
Plaintiff 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 Blackstone River

Defandants 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).
Discussion
A 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 (1st
Cir. 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
action.”).
In 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

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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).
The 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.
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.
The UAO 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

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administrative law judge for approval. On December 22, 2014, the ACOP was approved and
published by the DEP.
The 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.
Because 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.

Conclusion
Defendants’ 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
issue of diligent prosecution (Docket No. 71) is denied.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
UNITED STATES DISTRICT JUDGE

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