Conservation Law Foundation v. Massachusetts Water Resources Authority

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 22-10626-RGS

CONSERVATION LAW FOUNDATION, INC.

v.

MASSACHUSETTS WATER RESOURCES AUTHORITY

MEMORANDUM AND ORDER

ON DEFENDANT’S MOTION TO DISMISS

February 17, 2023

STEARNS, D.J.

Conservation Law Foundation, Inc. (CLF), a venerable New England

environmental advocacy group and an original plaintiff in the Boston Harbor

cleanup case, brought this citizen suit against the Massachusetts Water

Resources Authority (MWRA) under the Clean Water Act (CWA).1 CLF seeks

to hold the MWRA liable for allegedly violating its National Pollutant

Discharge Elimination System (NPDES) permit by failing to take sufficient

1 The Clean Water Act, or as it is formally styled, the Federal Water

Pollution Control Act Amendments of 1972, is a cornerstone of the federal

effort to reverse centuries of environmental degradation and neglect of our

public waters. The CWA underwent significant amendment in 1977 and

1987; the original 1972 Act, however, still constitutes the skeletal framework

of the law.

enforcement action against its industrial users, whom CLF contends have

violated pollutant parameters and other permit conditions. The MWRA now

moves to dismiss the Complaint for failure to state a claim, invoking Fed. R.

Civ. P. 12(b)(6).

BACKGROUND

This case is another chapter in the enduring effort to restore the

pristineness of Boston Harbor, an effort which the federal court has overseen

since shortly after the creation of the MWRA by the Massachusetts

Legislature in 1984. The foundation for federal oversight was laid in

September of 1985, when Judge A. David Mazzone, after consolidating CLF’s

original 1983 case against the Metropolitan District Commission with a

parallel case brought by the Environmental Protection Agency (EPA), found

the MWRA in violation of the CWA. Judge Mazzone ordered a series of steps

— “milestones” — which (with occasional adjustments) have guided the

course of the cleanup for the past thirty-seven years.

Under the CWA, a state is required to set water quality standards for

bodies of water within its boundaries. 33 U.S.C. § 1313. Once these

standards are defined, the state determines which water bodies do not meet

the quality standards for each of a list of pollutants. Id. § 1313(d)(1)(A). If a

pollutant exceeds the acceptable level, the state must then establish the “total

maximum daily load” (TMDL) of the pollutant that the water body can

absorb and still meet water quality standards. Id. § 1313(d)(1)(C). TMDLs

allocate the daily load between point sources (such as a pipe or ditch, id.

§ 1362(14)) and all other sources. Once a TMDL is established, it is

submitted to the EPA for approval. Id. § 1313(d)(2).

The CWA also establishes a permitting system for the discharge of

pollutants from point sources. Id. §§ 1311(a), 1342(a). Under the NPDES,

dischargers must obtain a permit that, among other restrictions, limits the

quantity and type of pollutants that can be discharged into a protected body

of water. 40 C.F.R. § 122.1(b). These limits must be “consistent with the

assumptions and requirements of any available wasteload allocation for the

discharge” set by the relevant TMDL. Id. § 122.44(d)(1)(vii)(B).

The MWRA, which is chartered as an independent agency of the

Commonwealth, provides clean drinking water as well as sewage and water

treatment services to customers in eastern and central Massachusetts. A

critical component of the sewage services is the MWRA’s Deer Island sewage

treatment plant. Deer Island is the second largest facility of its kind in the

United States and is designed at peak capacity to process as much as 1.35

billion gallons of wastewater per day. In addition to processing sewage from

households, the MWRA system receives wastewater discharged by industrial

users.

In prescribing the remedial steps to be taken to achieve a permanent

cleanup of Boston Harbor, Judge Mazzone ordered the MWRA to implement

an Industrial Pretreatment Program, including an EPA-approved

Enforcement Response Plan (ERP), setting out the criteria by which the

MWRA is to investigate and respond to discharging violations by industrial

users.

In this lawsuit, brought under the CWA’s citizen-suit provision, 33

U.S.C. § 1365, CLF challenges the MWRA’s alleged non-enforcement of

industrial user violations of the CWA. CLF alleges that the MWRA itself is in

violation of section 1311(a) of the CWA, because of its failure to comply with

the conditions of its NPDES permit and its ERP. These, CLF argues, require

the MWRA to undertake an enforcement action whenever an industrial user

violates its discharge permit, with penalties commensurate in severity to the

gravity of the violation. See Compl. (Dkt # 1) ¶¶ 119-121. According to CLF,

the MWRA has failed to “take an enforcement action following Industrial

User noncompliance at least 70 times” and has failed to “take the required

level of enforcement action following significant noncompliance by an

Industrial User at least 83 times” during the past five years. Id. ¶¶ 122, 124.

Further, CLF alleges that the MWRA has frequently failed to escalate

enforcement actions for repeated industrial user violations and to issue

penalties to industrial users consistent with the requirements of its ERP. Id.

¶¶ 126, 128.

DISCUSSION

The MWRA moves to dismiss CLF’s Complaint pursuant to Fed. R. Civ.

P. 12(b)(6). The court will dismiss a complaint if, after accepting all well-

pleaded facts as true and drawing all reasonable inferences in favor of a

plaintiff, it determines that the complaint “fails to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). At the motion to dismiss

stage, the court may take into consideration “matters of public record,

orders, items appearing in the record of the case, and exhibits attached to the

complaint,” in addition to the complaint’s allegations. Schaer v. Brandeis

Univ., 432 Mass. 474, 477 (2000), quoting 5A Wright & Miller, Federal

Practice and Procedure § 1357, at 299 (1990).

A. Statutory Authorization to Sue

The MWRA first contends that CLF does not have statutory

authorization to sue under its theory of liability.2 As a rule, sovereign

2 CLF points out that the MWRA incorrectly characterized its argument

as raising a question of standing. See Pl.’s Opp’n to Mot. to Dismiss (Pl.’s

Opp’n) (Dkt # 13) at 4; Def.’s Mem. Supp. Mot. to Dismiss (Def.’s Mem.) (Dkt

immunity bars suits against government agencies and their officials.

Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 57 (1st Cir.

2007). Congress may waive that immunity, and it has done so under the

CWA by providing that any citizen is authorized to bring a civil action on his

or her own behalf against any person “who is alleged to be in violation of an

effluent standard or limitation under this chapter.” 33 U.S.C. § 1365(a)(1).

The citizen-suit provision, which was modeled on a similar provision in the

Clean Air Act, is intended as “a supplemental and effective assurance that the

Act would be implemented and enforced.” Nat. Res. Def. Counsel, Inc. v.

Train, 510 F.2d 692, 700 (D.C. Cir. 1975). The statutory authorization to

bring a private suit, however, is not a carte blanche. Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987) (the role of the

citizen suit is to “supplement rather than to supplant” the government as the

chief enforcement authority). For example, citizens may not bring suit where

the EPA has instituted and is “diligently” prosecuting a court action against

the violator. 33 U.S.C. § 1365(b)(1)(B).3 The Act also restricts citizens suits

# 12) at 4-7. As CLF explains, the issue is whether CLF has the statutory

authority to bring this action under the CWA’s citizen-suit provision.

3 Courts disagree as to whether independent action taken by an agency

qualifies as a “court action” and thus precludes a citizen suit. Compare

Friends of the Earth v. Consol. Rail Corp., 768 F.2d 57, 62 (2d Cir. 1985)

(where the CWA unambiguously refers to a court action, “[i]t would be

to enumerated violations of the CWA. See id. § 1365(f). As one court has

explained, these restraints are intended to curb excessive litigation that

might frustrate the efficient implementation of the CWA. Train, 510 F.2d at

700; see also Jonathan S. Campbell, Has the Citizen Suit Provision of the

Clean Water Act Exceeded its Supplemental Birth?, 24 Wm. & Mary Envtl.

L. & Pol’y Rev. 305, 335 (2000) (“The Clean Water Act never intended to

supply an angry citizen plaintiff with a means to gain revenge on a polluting

company.”).

CLF asserts that the MWRA’s alleged failure to comply with its ERP,

and by extension its NPDES permit, is a patent violation of 33 U.S.C.

§§ 1311(a) and 1342(k), both of which fall within reach of the citizen-suit

provision, id. § 1365(f)(1). Section 1311(a) prohibits any pollutant discharge

in violation of sections 1311, 1316, 1317, 1328, 1342, and 1344 of the CWA.

Section 1342(k), for its part, requires strict compliance with NPDES permits.

The MWRA ripostes that CLF is not alleging that it discharged

pollutants in violation of its NPDES permit but rather that its enforcement

response to violations by industrial users was inadequate. Def.’s Mem. at 5.

inappropriate to expand this language to include administrative

enforcement actions”), with Baughman v. Bradford Coal Co., 592 F.2d 215,

218 (3d Cir. 1979) (an agency action sufficiently similar to a court proceeding

may suffice to preclude a citizen suit).

The right of enforcement oversight, the MWRA argues, is vested exclusively

in the EPA under 33 U.S.C. § 1319(f), which grants the EPA Administrator

discretion to sue a publicly owned treatment works (POTW) when the EPA

believes that it has failed to take an appropriate enforcement action.4

The MWRA argues that, because Congress specifically vested this

discretionary right of review in the EPA Administrator, the fact that a parallel

right was not specifically granted to private citizens precludes citizen suits

seeking to enforce the provisions of an ERP. Def.’s Mem. at 6. CLF counters

that the citizen-suit provision should be interpreted to allow challenges to

the MWRA’s implementation of its ERP, relying on the fact that Congress

erected explicit bars to citizen suits in the CWA but did not include

challenges to a POTW’s implementation of its ERP among the prohibitions.

See 33 U.S.C. § 1365(b) (identifying specific instances in which a citizen suit

cannot be brought). It follows, CLF contends, that under the statutory

interpretation canon expressio unius est exclusio alterius, Congress did not

4 See 33 U.S.C. § 1319(f) (“Whenever . . . the Administrator finds that

an owner or operator of any source is . . . in violation of subsection (d)

of section 1317 of this title, the Administrator may notify the owner or

operator of such treatment works and the State of such violation. If the

owner or operator of the treatment works does not commence appropriate

enforcement action within 30 days of the date of such notification, the

Administrator may commence a civil action for appropriate relief . . . .”)

(emphasis added).

intend to create any additional exceptions to the right of citizens to bring suit

under the CWA.

It is true that, under a plain reading of the relevant statutes, neither

section 1365 nor section 1319(f) of the CWA explicitly states that the EPA

Administrator’s right to review a POTW’s ERP is exclusive. The parties also

do not point to, nor can the court locate, any legislative history addressing

the issue that would point in one direction or the other. Given the lack of any

answer in the plain text or legislative history, the court will turn to external

considerations.

As an initial matter, it is telling that, despite decades of litigation

involving the citizen-suit provision of the CWA, CLF can point to no

precedential opinion authorizing a citizen suit under section 1319(f). The two

cases that CLF marshals involve subpart (d) of section 1319, which pertains

to civil penalties and injunctive relief but does not enumerate a right to

privately enforce an ERP. For example, Blackstone Headwaters Coalition,

Inc. v. Gallo Builders, Inc., 32 F.4th 99 (1st Cir. 2022) (en banc), holds that

section 1319(g)(6)(A), which precludes a citizen suit seeking the imposition

of a civil penalty after the EPA Administrator has brought an action, does not

bar citizen claims for declaratory relief and prospective injunctive relief

pursuant to section 1319(d) where an ongoing violation of the CWA is

alleged, id. at 103, 110. Similarly, California v. United States Department of

Navy, 845 F.2d 222 (9th Cir. 1988), holds that section 1365 permits citizens

as well as the EPA Administrator to seek civil penalties under section

1319(d), id. at 225. But neither case addresses the discretionary authority

section 1319(f) vests in the Administrator to review and enforce an ERP.5

The First Circuit’s discussion of the role of the EPA in enforcing the

CWA provides this court with some guidance. As the First Circuit noted,

“‘[c]itizen suits are,’ as a general matter, ‘an important supplement to

government enforcement of the Clean Water Act, given that the government

has only limited resources to bring its own enforcement actions.’”

Blackstone, 32 F.4th at 108 (emphasis added), quoting Atl. States Legal

5 CLF cites Conservation Law Foundation v. City of Fall River, 1990

WL 106751 (D. Mass. July 24, 1990), as supporting authority. But there, the

defendant in Fall River did not raise the issue of statutory authorization. Id.

at *3. Moreover, in Fall River, CLF challenged Fall River’s failure to adopt

an ERP at all, not the implementation of an ERP. Id. at *15-16.

At oral argument, CLF offered two additional district court cases in

which the court permitted a citizen suit based in part on a POTW’s failure to

enforce violations of its industrial user to proceed. See FreshWater

Accountability Proj. v Patriot Water Treatment, LLC, 2018 WL 417305, at

*1 (N.D. Oh. July 13, 2018); Stephens v. Koch Foods, LLC, 667 F. Supp. 2d

768 (E.D. Tenn. 2009). But even if these cases had precedential value,

neither addresses the issue of whether section 1319(f) vests an exclusive right

in the EPA Administrator to challenge the adequacy of a POTW’s

enforcement actions. See also Def.’s Letter (Dkt # 26) at 1-2 (noting that

neither Freshwater nor Koch addresses section 1319(f)’s preclusive effect or

lack thereof).

Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1136 (11th Cir. 1990). And

although Blackstone overruled so much of North & South Rivers Watershed

Ass’n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991), as held that section

1319(g)(6)(A)’s preclusion extended to injunctive and declaratory relief, the

ruling did not question the fact that “primary enforcement responsibility” for

the CWA lies with the EPA. See Blackstone, 32 F.4th at 108, quoting

Scituate, 949 F.2d at 558. Thus, while the role of the citizen as an adjunct to

EPA’s primary enforcement power is estimable, it does not supplant the

discretionary authority of the EPA Administrator, particularly in areas like

the enforcement of an ERP, where consistency of purpose and predictability

of result are the desirable outcomes. See Gwaltney, 484 U.S. at 61 (“If

citizens could file suit, months or years later, in order to seek the civil

penalties that the Administrator chose to forgo, then the Administrator’s

discretion to enforce the Act in the public interest would be curtailed

considerably.”).

This interpretation comports with the discretionary language Congress

chose in defining the responsibilities of the EPA Administrator in

implementing section 1319(f). See supra note 4. The Administrator “may”

notify a POTW of the wrongful discharge of pollutants into its treatment

works and “may commence a civil action for appropriate relief” if the POTW

does not “commence appropriate enforcement action” within 30 days of

notification. 33 U.S.C. § 1319(f) (emphasis added). From a plain reading of

the statute, it seems apparent that Congress intended that the Administrator

have the sole discretion to determine which violations were sufficiently

serious to warrant notification and, if necessary, to seek judicially-ordered

remediation.

To allow citizen suits to second guess the Administrator’s discretionary

determinations of the appropriateness of an ERP enforcement action raises

four public policy concerns. First, it creates the specter of a flood of litigation

challenging the failure of POTWs to undertake adequate enforcement

actions. In this case alone, CLF identifies over a hundred “separate and

distinct” violations of the CWA related to the MWRA’s alleged mishandling

of individual enforcement actions. See, e.g., Compl. ¶¶ 101, 171. Second, it is

likely to result in a mishmash of inconsistent actions and remedies, leaving

POTWs to operate mostly in the dark in implementing their own ERPs.

Third, as a practical matter, citizen groups largely lack the engineering and

systems expertise that needs be brought to bear in insuring that a remedial

action is appropriate to the nature of the violation and that any cost imposed

will not outweigh the benefit achieved. As the civil penalty criteria set out in

section 1319(d) illustrate, violations come in a variety of degrees, some

warranting a response, others not. These are decisions best committed to

the discretionary expertise of the Administrator.6 Fourth, and finally, is a

consideration identified by the Eleventh Circuit, albeit in a somewhat

difference context. See Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548,

1574 (11th Cir. 1994) (declaring that a cornerstone of democratic society is

holding government publicly accountable to the governed). As a presidential

nominee, confirmed by the Senate, the EPA Administrator is a politically

appointed official answerable to the President, Congress, and the public for

his or her actions (or inactions), as opposed to a citizen group answerable

only to its own members.

B. Permit Obligations

Statutory authorization aside, CLF’s suit fails for a second reason. The

MWRA correctly argues that it is not in violation of its NPDES permit

6 CLF argues somewhat curiously that “the EPA [Administrator] has

shown no interest in getting involved with this type of case” and that the

policing of POTW enforcement of ERPs (and therefore section 1365) is

intended to invite citizens to step in when the Administrator abdicates his or

her duty to do so. 2/9/23 Hearing Tr.; see also id. (arguing that the EPA’s

“lack of involvement allows CLF to bring this case because there is no diligent

prosecution” and “demonstrates why the citizen-suit provision is so vital”).

While there is no evidence supporting a dereliction of duty on the part of the

Administrator, if that were to happen, a citizen suit in the nature of an action

for mandamus could likely be brought under section 1665(a)(2) seeking to

compel the Administrator to act, as the MWRA more or less acknowledges.

See Def.’s Reply (Dkt # 17) at 7-8.

because neither the NPDES permit nor its attendant ERP require that it take

enforcement action every time an industrial user commits a violation. Def.’s

Mem. at 1. Rather, the first page of the MWRA’s ERP showcases the

following emboldened language, which the MWRA contends affords it broad

enforcement discretion: “This document is intended as guidance

solely for the use of MWRA personnel. Nothing herein is intended

to create legal rights or obligations or to limit the enforcement

discretion of the Authority.” Def.’s Mem., Ex. 1 (Dkt # 12-1) at 2

(emphasis in original).

The interpretation of an NPDES permit is “a question of law for the

courts to decide.” Am. Canoe Ass’n Inc. v. D.C. Water & Sewer Auth., 306 F.

Supp. 2d 30, 41 (D.D.C. 2004), citing Nat. Res. Def. Council, Inc. v. Texaco

Refin. & Mktg., Inc., 20 F. Supp. 2d 700, 710 (D. Del. 1998). This court

recognizes that the complexity of the NPDES permitting scheme is daunting,

but “a court's task in interpreting and enforcing an NPDES permit is not—

NPDES permits are treated like any other contract.” Nat. Res. Def. Council,

Inc. v. County of Los Angeles, 725 F.3d 1194, 1204 (9th Cir. 2013). As in

contract interpretation, if a permit’s language, “considered in light of the

structure of the permit as a whole, ‘is plain and capable of legal construction,

the language alone must determine the permit’s meaning.’” Id. at 1204-1205,

quoting Piney Run Pres. Ass'n v. Cnty. Com'rs of Carroll Cnty., 268 F.3d

255, 270 (4th Cir. 2001).

CLF cites language in the NPDES permit that it argues mandates the

MWRA to take enforcement action in the wake of each and every violation.

Pl.’s Opp’n at 9-10. The court will address each of the cited provision of the

NPDES permit in turn:

Section 11(b)(iii) of the permit states that “[e]nforcement actions

shall be taken for sources which are found to be in violation of MWRA Sewer

Use Regulations.” Compl., Ex 3 (Dkt # 1-3) at 15. However, when read in the

full context of the subsection, it is apparent that the irremissible language

applies only to violations attributable to oil and gas separators. See id. (the

preceding two – and only other – sentences in the subsection are specifically

limited to oil and gas separators).7

Sections 11(b)(ix) and 15 require that the MWRA implement a

comprehensive pollution prevention plan and an industrial pretreatment

program. Compl., Ex 3 at 16 (“The permittee shall . . . implement source

7 The focus on oil and gas separators reflects the heightened public

concern over the controversial extraction of oil and gas using a “fracking”

technique. See 40 C.F.R. § 435.33(a)(1) (“There shall be no discharge of

wastewater pollutants associated with production, field exploration, drilling,

well completion, or well treatment for unconventional oil and gas extraction

(including, but not limited to, drilling muds, drill cuttings, produced sand,

produced water) into publicly owned treatment works.”).

reduction and pollution plans, in addition to pretreatment systems.”); id. at

22 (“MWRA shall implement an industrial pretreatment program plan and

40 CFR Part 403.”). Section 15 clarifies that the MWRA’s pretreatment

program is to be operated “in accordance with MWRA’s approved

pretreatment program and 403 CFR Part 403,” which includes “[o]btain[ing]

appropriate remedies for noncompliance by any industrial user with any

pretreatment standard and/or requirement.” Id. at 22. These requirements

are consistent with the terms of the MWRA’s ERP. As discussed below, the

ERP contains discretionary language that indicates that strict adherence to

the letter of the ERP is not what is required. Rather, the section 15

stipulation that the MWRA obtain “appropriate” remedies when confronted

with instances of noncompliance similarly supports a reading that the

MWRA is permitted to be selective in its choice of a remedy tailored to the

scale and substance of the violation.

Similarly, Section 14(b) requires that the MWRA “develop and

enforce specific effluent limits (local limits) for Industrial User(s).” Id. As

in the case above, this requirement does not mandate that every violation be

met with an enforcement action. Nor does CLF allege that the MWRA does

not bring enforcement actions against industrial actors for violations –

rather the allegation is that the MWRA does not act against every violation

with sufficient severity. See Compl. ¶¶ 99-107 (listing MWRA’s enforcement

responses and penalty collections).

Traditional principles of contract interpretation, by extension, also

apply to the MWRA’s ERP, which is incorporated into the NPDES permit

conditions. See 40 C.F.R. § 403.8(c) (“The POTW’s NPDES Permit will be

reissued or modified by the NPDES State or EPA to incorporate the approved

Program as enforceable conditions of the Permit. The modification of a

POTW’s NPDES Permit for the purposes of incorporating a POTW

Pretreatment Program approved in accordance with the procedure in

§ 403.11 shall be deemed a minor Permit modification subject to the

procedures in 40 CFR 122.63.”); see also Compl. ¶¶ 68-69. The ERP

unambiguously states in its preface that it is “intended as guidance” and is

not intended to “create legal rights or obligations or to limit the enforcement

discretion,” Def.’s Mem., Ex. 1 at 2. The plain language of this overarching

statement indicates that the ERP is meant an advisory guideline to which the

MWRA must refer when addressing violations but that it is not legally

binding. See Guidance, Random House Unabridged Dictionary (2d ed.

1993) (defining “guidance” as “advice or counseling”). It follows that

subsequent text — including what CLF argues amounts to mandatory

enforcement language – imposes no legal obligation. The Massachusetts

Appeals Court came to the same conclusion, determining that the MWRA did

not violate federal law or its ERP by issuing a penalty assessment notice past

the prescribed timeline identified in its ERP because the “ERP was merely

advisory.” Chutehall Constr. Co. v. Commonwealth, 73 Mass. App. Ct. 1104,

1104 (2008).

CLF argues that, if the MWRA is permitted to exercise “full discretion

to decide whether to enforce pretreatment standards, polluters could

discharge toxic substances without consequence, undermining the purpose

of the Clean Water Act.” Pl.’s Sur-Reply (Dkt # 20) at 1 n.2. In the first

instance, where, as here, the permit terms are clear, the intent of the parties

must be “ascertained from the [permit] itself.”8 Los Angeles, 725 F.3d at

8 Even if the court were to venture beyond the terms of the NPDES

permit and ERP, courts have almost uniformly found the treatment of

analogous disclaimer language in an ERISA plan or in an employment

handbook enforceable when set out as clearly as it is in the ERP. See, e.g.,

Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., 813 F.3d

420, 427 (1st Cir. 2016) (“[A] grant of discretionary decisionmaking

authority in an ERISA plan must be couched in terms that unambiguously

indicate that the claims administrator has discretion to construe the terms

of the plan and determine whether benefits are due in particular instances.”)

(emphasis in original); Ferguson v. Host Int'l, Inc., 53 Mass. App. Ct. 96, 103

(2001) (noting that if an employer “does not want the manual to be capable

of being construed by the court as a binding contract . . . [a]ll that need be

done is the inclusion in a very prominent position of an appropriate

statement that there is no promise of any kind by the employer contained in

the manual . . . .”).

1205, quoting Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d

1206, 1210 (9th Cir. 1999). In any event, the EPA itself has never drawn so

dire a conclusion from the disclaimer language. The EPA has had numerous

opportunities to review, edit, and oppose the MWRA’s current ERP, most

recently as of August 17, 2017, and has never lodged an objection to the

disclaimer language.9 See Def.’s Mem., Ex. 1 at 1.10

CLF argues that, at a minimum, the ERP is ambiguous about whether

the MWRA has a nondiscretionary duty to enforce every instance of

noncompliance. Pl.’s Sur-Reply at 9. Contract language is ambiguous

“where an agreement’s terms are inconsistent on their face or where the

phraseology can support reasonable difference of opinion as to the meaning

9 The parties seemingly do not contest that the 2017 version of the ERP

controls, having both provided it as exhibits. See Compl., Ex. 5 (Dkt # 1-5);

Def.s’ Mem., Ex. 1.

10 CLF also argues that EPA guidance materials and administrative

enforcement action show that the EPA’s position is that enforcement as

prescribed in an ERP is nondiscretionary. See Pl.’s Opp’n at 10-11, 14-15.

Even if the court could look at extrinsic sources when the text of the

document is clear, the EPA guidance materials predate the EPA’s implicit

approval of the MWRA’s ERP. Id. at 10-11 (referencing EPA guidance

materials from 1989 to 2005). Similarly, while CLF cites several EPA

enforcement actions involving a party violating their ERP by failing to bring

an enforcement action, these examples are inapposite. Here, the MWRA has

not violated its ERP because its ERP explicitly does not create legal rights

and reserves enforcement discretion to the MWRA. None of the cases

provided by CLF mention whether the ERPs at issue contained similar

language.

of the words employed and the obligations undertaken.” Fashion House, Inc.

v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989). However, “an

ambiguity is not created simply because a controversy exists between parties,

each favoring an interpretation contrary to the other’s.” Jefferson Ins. Co. of

N.Y. v. Holyoke, 23 Mass. App. Ct. 472, 475 (1987). The preliminary question

of the existence of an ambiguity is matter of law for the court to determine.

Basis Tech. Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008).

CLF points to the following sentence as a term inconsistent with the

disclaimer sentence the MWRA relies on: “Each instance of noncompliance

will be met with an enforcement response.” Pl.’s Sur-Reply at 9. However,

when “interpreting contractual language, [the court must] consider

the contract as a whole. Its meaning cannot be delineated by isolating words

and interpreting them as though they stood alone.” Sonoiki v. Harvard

Univ., 37 F.4th 691, 704 (1st Cir. 2022), quoting Doe v. Trs. of Bos. Coll., 892

F.3d 67, 81 (1st Cir. 2018). There is no ambiguity here because the disclaimer

applies to the entire ERP, considering the positioning and unqualified

context of the disclaimer sentence.

Finally, CLF argues that MWRA’s nondiscretionary duty to meet every

violation with an enforcement action is also found in 40 C.F.R. § 403.8(f)(5),

which states that “[t]he POTW shall develop and implement an enforcement

response plan.” This sentence cannot be plausibly read to require a POTW

to impose a sanction in every instance of a violation. It merely directs the

POTW to refer to its ERP in deciding upon the nature and breadth of an

appropriate response.

ORDER

For the foregoing reasons, the MWRA's Motion to Dismiss is

ALLOWED. The Clerk will enter judgment for the MWRA and close the case.

SO ORDERED.

/s/ Richard G. Stearns ___________

UNITED STATES DISTRICT JUDGE