North and South Rivers Watershed Ass'n, Inc. v. Town of Scituate

• Decision Date: 02 August 1991
• Docket Number: No. 91-1255,91-1255
• Citation: 949 F.2d 552
• Parties: , 60 USLW 2376, 22 Envtl. L. Rep. 20,437 NORTH AND SOUTH RIVERS WATERSHED ASSOCIATION, INC., Plaintiff, Appellant, v. TOWN OF SCITUATE, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 552

949 F.2d 552

34 ERC 1006, 60 USLW 2376, 22 Envtl.

L. Rep. 20,437

NORTH AND SOUTH RIVERS WATERSHED ASSOCIATION, INC. Plaintiff, Appellant, v. TOWN OF SCITUATE, Defendant, Appellee.

No. 91-1255.

United States Court of Appeals First Circuit.

Heard Aug. 2, 1991.

Decided Nov. 27, 1991.

Rehearing and Rehearing En Banc

Denied Jan. 14, 1992.

Gary D. Thomas with whom Kelly, Kethro, Flannigan & Thomas, Hanover, Mass., Peter Shelley, Darshan Brach, Conservation Law Foundation and Jonathan Kaledin, Boston, Mass., were on brief, for appellant.

Catherine M. Flanagan with whom Richard B. Stewart, Asst. Atty. Gen., Anne H. Shields, Anne S. Almy, and Nancy K. Stoner, Attys., Dept. of Justice, Environment & Natural Resources Div., and Mary St. Peter, Office of Enforcement, U.S. E.P.A., Washington, D.C., were on brief for U.S., amicus curiae.

Charles C. Caldart, National Environmental Law Center, Kenneth L. Kimmell and Bernstein and Bronstein, Boston, Mass., on brief, for Massachusetts Public Interest Research Group, Massachusetts Student Public Interest Research Group and Natural Resources Defense Council, amici curiae.

John W. Giorgio with whom Brian W. Riley and Kopelman and Paige, P.C., Boston, Mass., were on brief, for appellee.

Before TORRUELLA, Circuit Judge, HILL, ^* Senior Circuit Judge, and SELYA, Circuit Judge.

HILL, Senior Circuit Judge.

Appellant appeals from district court granting of Appellee's motion for summary judgment, claiming the district court erred in ruling Appellant's suit was barred under section 309 of the Federal Clean Water Act. Because the State had commenced and was diligently prosecuting an enforcement action under State law comparable to the Federal Act Appellant sought to enforce, we AFFIRM the district court's ruling that Appellant is barred under the Federal Clean Water Act section 309(g)(6)(A) and granting of Appellee's motion for summary judgment.

I. BACKGROUND

In 1987, the Massachusetts Department of Environmental Protection ("DEP") issued Administrative Order Number 698 to the Appellee town of Scituate. The State alleged that Scituate owned and operated a sewage treatment facility that was discharging pollutants into a coastal estuary without a federal discharge permit. DEP ordered Scituate to (1) immediately prohibit any new connections to its sewer system; (2) take all steps necessary to plan, develop and construct new wastewater treatment facilities; and (3) begin extensive upgrading of the facility subject to DEP's review and approval at interim stages of the planning, designing, and construction phases. ¹

DEP was operating under its authority found in the Massachusetts Clean Waters Act (the "State Act"), M.G.L. ch. 21, § 44, which closely parallels the Federal Water Pollution Control Act (the "Federal Clean Water Act"), 33 U.S.C. § 1251 et seq. ² Pursuant to its authority provided in the State Act, DEP is authorized to assess civil penalties not to exceed $25,000 a day against violators of the State Act; penalties which closely parallel the penalty provisions of the Federal Clean Water Act. See M.G.L. ch. 21, § 42; 33 U.S.C. § 1319(g). The State elected not to assess penalties against Scituate at the time of issuing its Order, but did reserve the right to do so at a later date. ³

Since receiving the Order, Scituate has engaged the services of the engineering firm of Metcalf & Eddy, Inc., to effectuate compliance with the State Order. In May of 1987, Metcalf & Eddy submitted the study plans required by Administrative Order Number 698 to the State. In March of 1988, Scituate submitted an application for State financial assistance requesting over three quarters of a million dollars in funding to assist in the upgrading of the town's wastewater treatment facilities. In January of 1989, Metcalf & Eddy submitted a draft of the interim report for the supplemental facilities plan to the State. This report contained detailed analysis of the proposed alternatives for wastewater treatment, effluent disposal, and sludge management at the facility. The report explained that some effluent disposal alternatives were cost prohibitive and offered four alternatives which would be pursued for sludge processing and disposal. Based in part on these reports, the DEP informed Scituate in November of 1989 that it would not allow land disposal of effluent due to the lack of land sites adequate in size and that alternatives should be pursued. In July of 1990, Metcalf & Eddy submitted the draft of the final plan for upgrading the existing wastewater facility, which contained detailed analysis and cost comparisons of proposed discharge methods.

In 1989, Appellant citizen group brought suit in the district court, charging the Appellee with violation of the Federal Clean Water Act. ⁴ Appellant sought civil penalties as well as declaratory and injunctive relief. Appellant also sought the costs and expenses of the action, including attorney's fees.

Appellant's charges were based on the same discharge violations as the State's Order, which, at some level, had been ongoing since the issuance of Administrative Order Number 698. Appellant's lawsuit was brought under section 505 of the Federal Clean Water Act, which provides a jurisdictional basis for citizens to enforce the Act. ⁵

The district court denied Appellant's motion for summary judgment and granted Appellee's motion for summary judgment, dismissing Appellant's claim. The Court ruled Appellant's suit was barred by section 309(g)(6)(A) of the Federal Act, see North & South Rivers Watershed Assoc., Inc. v. Town of Scituate, 755 F.Supp. 484 (D.Mass.1991), which states that a citizen's suit for penalties under section 505 is barred if the State "has commenced and is diligently prosecuting an action under a state law comparable to" the administrative penalties subsection of the Act. See 33 U.S.C. § 1319(g)(6)(A).

Appellant brings this appeal, claiming that the district court erred in dismissing the Appellant's civil suit. Appellant argues the section 309(g)(6)(A) limitation does not apply because the State did not commence and diligently prosecute a comparable civil penalty action. In the alternative, Appellant asserts that, even if the section 309(g)(6)(A) bar does apply, it extends only to Appellant's civil penalty action and not to the declaratory and injunctive relief sought.

II. APPELLANT'S CLAIMS

Appellant claims that the district court erred in ruling that the 1987 Massachusetts DEP Administrative Order constitutes a bar under the provisions of section 309 of the Federal Clean Water Act. On summary judgment, our review of the district court's determination that there is no material factual dispute is de novo. See Lussier v. Louisville Ladder Co., 938 F.2d 299, 300 (1st Cir.1991). We view the facts in the light most favorable to the nonmoving party, here the Appellant. See Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1985).

A. Comparability

The bar against citizen's civil penalty suits only operates where the State has brought an action comparable to subsection 309(g). See 33 U.S.C. § 1319(g)(6)(A)(ii). Appellant argues this means that a citizen's suit for penalties is only barred when a previously brought state action seeks to sanction an offender monetarily. For the reasons given below, we disagree.

The 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. Congress has found it necessary expressly to "recognize, preserve and protect the primary responsibility and rights of the States to prevent, reduce and eliminate pollution." 33 U.S.C. § 1251(b) (emphasis supplied). It follows that "the citizen suit [under section 505] is meant to supplement rather than to supplant governmental [enforcement] action." Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 60, 108 S.Ct. 376, 383, 98 L.Ed.2d 306 (1987). Presumably, then, when it appears that governmental action under either the Federal or comparable State Clean Water Acts begins and is diligently prosecuted, the need for citizen's suits vanishes. See Gwaltney, 484 U.S. at 60-61, 108 S.Ct. at 383-384.

Appellant argues that if it can be found that governmental action to correct the violation which is being diligently pursued nevertheless has not specifically demanded a financial penalty, a citizen's suit may be instituted. ⁶ Such an interpretation of section 309(g) would enable citizen's suits to undermine the supplemental role envisioned for section 505 citizen's suits, "changing the nature of the citizen's role from interstitial to potentially intrusive." Gwaltney, 484 U.S. at 61, 108 S.Ct. at 384.

The state's decision not to utilize penalty provisions does not alter the comparability of the State Act's statutory scheme to the scheme found in the Federal Act. While the specific statutory section under which the State issued its Order does not, itself, contain a penalty provision, see M.G.L. c. 21, § 44, another section of the same statute does contain penalty provisions. See M.G.L. c. 21A, § 16; c. 21, § 42. These two coordinate parts are cogs in the same statutory scheme implemented by the State for the protection of its waterways.

Appellant urges that we determine comparability upon whether the precise statutory section under which the State issued its Administrative Order contains penalty provisions comparable to the Federal Act. Such a narrow reading of section 309(g)(6)(A), which turns on the logistical happenstance of statutory drafting, ignores two important considerations. First, the interdependent scheme of the State Act effectuates its goals of ensuring compliance with and enforcement of protective regulations. The focus of the statutory bar to citizen's suits is not on state statutory construction, but on whether corrective action already taken and diligently pursued by the government seeks to remedy the same...