North & S. Rivers Watershed Ass'n v. Scituate

North & S. Rivers Watershed Ass'n v. Scituate

Opinion

 [*553]  HILL, Senior Circuit Judge. Appellant appeals [**2]  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  [*554]  and approval at interim stages of the planning, designing, and construction [**3]  phases. ²

DEP was operating under its authority found in the Massachusetts Clean  [**4]  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. ³ 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. ⁴

 [**5]  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 [**6]  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.

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