Blackstone Headwaters Coal., Inc. v. Gallo Builders, Inc.

32 F.4th 99

The BLACKSTONE HEADWATERS COALITION, INC., Plaintiff, 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, First Circuit.

April 28, 2022

James P. Vander Salm and Law Office of James P. Vander Salm on brief for appellant.

William D. Jalkut and Fletcher Tilton PC on brief for appellees.

Todd Kim, Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice, Jennifer S. Neumann, Attorney, Environment and Natural Resources Division, United States Department of Justice, and Matthew R. Oakes, Attorney, Environment and Natural Resources Division, United States Department of Justice, and Krista Hughes, Attorney, Office of General Counsel, United States Environmental Protection Agency, on brief for the United States, amicus curiae.

Maura Healey, Attorney General for the Commonwealth of Massachusetts, Seth Schofield, Senior Appellate Counsel, Energy and Environment Bureau, Office of the Attorney General of Massachusetts, Nora J. Chorover, Assistant Attorney General, Environmental Protection Division, Office of the Attorney General of Massachusetts, and Emily K. Mitchell, Assistant Attorney General, Environmental Protection Division, Office of the Attorney General of Massachusetts, on brief for the Commonwealth of Massachusetts, amicus curiae.

Charles C. Caldart and Matthew J. Donohue on brief for National Environmental Law Center, amicus curiae.

Before Barron, Chief Judge, Lynch, Howard, Thompson, Kayatta, Gelpí, Circuit Judges.

Opinion En Banc

BARRON, Chief Judge.

Section 1319(g)(6)(A) of Title 33 of the United States Code places a limitation on citizen suits that are brought to enforce the Federal Water Pollution Control Act, better known as the Clean Water Act, 33 U.S.C. § 1251 et seq. ("CWA"). The question that we confront here concerns whether that limitation precludes not only a citizen suit that seeks to apply a "civil penalty" to a defendant for an ongoing violation of the CWA but also one that seeks to obtain declaratory or prospective injunctive relief from such a violation.

A panel of this court held in North and South Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552, 557-58 (1st Cir. 1991), that the limitation on citizen suits that § 1319(g)(6)(A) establishes does have that broad reach. A panel of this court then relied on that holding in this case in affirming the grant of summary judgment against Blackstone Headwaters Coalition ("Blackstone"), a Massachusetts-based, non-profit environmental organization whose mission "is to restore and protect water quality and wildlife habitat in the Blackstone River," in its CWA citizen suit against various defendants involved in the development of a construction site in Worcester, Massachusetts. See Blackstone Headwaters Coal., Inc. v. Gallo Builders, Inc., 995 F.3d 274, 293 (1st Cir.), vacated, 15 F.4th 1179 (1st Cir. 2021).

Blackstone thereafter requested that we reconsider our decision in Scituate en banc, and we granted the petition and vacated the panel opinion in this case. See Blackstone Headwaters, 15 F.4th 1179. Having now carefully reconsidered our ruling in Scituate, we hold that it construed the scope of § 1319(g)(6)(A)'s limitation on citizen suits too broadly. We thus now hold that, contrary to Scituate, the limitation set forth in § 1319(g)(6)(A) bars only a citizen suit that seeks to apply a civil penalty for an ongoing violation of the CWA and not a citizen suit for declaratory and prospective injunctive relief to redress an ongoing violation of the CWA. Accordingly, we reverse in part the grant of summary judgment against Blackstone as to Count II of its complaint.

In addition, for reasons that we set forth in our now-vacated panel opinion in this case, we affirm the grant of summary judgment to the defendants as to Count II of Blackstone's complaint insofar as the grant of summary judgment pertains to Blackstone's request for a civil penalty to be applied to the defendants. See Blackstone Headwaters, 995 F.3d at 292-93. Finally, for reasons that we also set forth in the now-vacated panel opinion in this case, we reverse the grant of summary judgment as to Count I of Blackstone's complaint. See id. at 293-94.

I.

We refer the reader to the now-vacated panel opinion for a detailed recounting of the events that precipitated Blackstone's suit and the procedural history that led to the appeal from the summary judgment rulings below. Id. at 278-81. We refer the reader as well to that now-vacated panel opinion for the reasoning, which we hereby adopt as our own, explaining why the grant of summary judgment to the defendants as to Count I must be reversed. Id. at 293-94.

Our focus in what follows is solely on Count II of Blackstone's complaint. Moreover, our particular focus as to that count of Blackstone's complaint is on the questions that implicate our ruling in Scituate with respect to the scope of § 1319(g)(6)(A)'s limitation on CWA citizen suits. To set the stage for our analysis of those questions, therefore, we need only provide the relatively brief factual and legal background that is set forth below.

In June 2013, the Massachusetts Department of Environmental Protection ("MassDEP") issued a Unilateral Administrative Order ("UAO") to Arboretum Village, LLC, which was involved in the development of the Worcester site. The UAO alleged that Arboretum Village had violated the Massachusetts Clean Water Act ("MCWA"), see Mass. Gen. Laws ch. 131, § 40, by allowing "[d]ischarge of silt-laden runoff ... from unstable, eroded suspended soils at" the Worcester site to flow into "an unnamed perennial stream, an intermittent stream ... and the Blackstone River." The UAO culminated in a settlement between the MassDEP and Arboretum Village

in the form of an Administrative Consent Order with Penalty ("ACOP").... [U]nder the ACOP, Arboretum Village [was] required, among other things, to "pay an $8,000.00 civil administrative penalty to the Commonwealth," to undertake certain remedial measures at the site, and to agree to "pay stipulated penalties and/or be subject to additional high level enforcement action from the [MassDEP] if any further discharges of turbid stormwater runoff to wetlands resource areas in excess of 150 [nephelometric turbidity units] occur."

Blackstone Headwaters, 995 F.3d at 279 (third alteration in original).¹

Almost three years later, on May 6, 2016, Blackstone filed this suit in the United States District Court for the District of Massachusetts. Blackstone's complaint sets forth two counts. Count I alleges that Gallo Builders, Robert Gallo, and Steven Gallo violated 33 U.S.C. §§ 1311(a), 1342, and accompanying regulations, 40 C.F.R. §§ 122.26(b)(14)(x), 122.28, by failing to obtain a Construction General Permit for Gallo Builders from the Environmental Protection Agency ("EPA") for the Worcester site. Count II alleges the violation of 33 U.S.C. §§ 1311(a), (e), 1365(f)(1), (7), and 1342 by Arboretum Village, Gallo Builders, Robert Gallo, and Steven Gallo in consequence of their failure to comply with provisions of the Construction General Permit that Arboretum Village had obtained from the EPA due to "longstanding and habitual neglect of erosion and sediment control" at the same site. The complaint seeks both declaratory and injunctive relief, as well as the application of civil penalties against the defendants.

Blackstone brought the suit pursuant to 33 U.S.C. § 1365(a)(1). See generally Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit."). That provision authorizes "any citizen" to "commence a civil action on his own behalf" against "any person ... who is alleged to be in violation of ... an effluent standard or limitation under" the CWA. 33 U.S.C. § 1365(a)(1).

Section 1365(a)(1) provides, however, that such a citizen suit may not be brought under circumstances that are set forth in "subsection (b) of this section and section 1319(g)(6) of this title." The dispute at hand does not implicate "subsection (b)," or, as that provision is otherwise known, 33 U.S.C. § 1365(b). But, the dispute at hand does implicate " section 1319(g)(6) of this title," or, at least a portion of it -- namely, § 1319(g)(6)(A).

Section 1319(g)(6)(A) is headed, "Limitation on actions under other sections." It provides as follows:

Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Administrator's or Secretary's authority to enforce any provision of this chapter; except that any violation --

(i) with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this subsection,

(ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or

(iii) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be, shall not be the subject of a civil penalty action under subsection(d) of this section or section 1321(b) of this title or section 1365 of this title.

33 U.S.C. § 1319(g)(6)(A) (emphasis added).

In light of the reference to "a civil penalty action" in § 1319(g)(6)(A), it is notable that the Administrator of the EPA is not the only party that the CWA authorizes to bring a suit to have a court apply a civil penalty for a violation of that statut...