plaintiff's complaint and should reverse the district court's denial of summary judgment to play with respect to count two of this complaint and briefly like to address count one and then move on to count t getting my head around it in the following respect there's no question at least as i understand it from the record that the people that are running gallow and the people running arboretum are one of the thing that's  does the record tell us whether gallo was operating on the site at this point i don't think the record or the record is not clear on that point ok and is that is that just so i assume the contention how important is that because it seems to me one possibility is that if gallo is not the there is no claim because they wouldn't be an operator but as i understand the way the district court seem to decide it was that by treating as a technical violation they seem to treat gallo as if it was operating and nonetheless treated as technical that does seem to me problematic but your position i take it then might support beginning and remain ending and then if there's a finding that gal is not an operator at all obviously they can't be a vi so in massachusetts e t a as it is the is the administrator of the nepalese permit program massachusetts is one of a handful of states rhode island is not one of them where e p a remains the administer administrators of the  program d p has absolutely no authority to enforce the terms of a federal clean water act permanent so the relevant authority the authority that needs to know who is operating a site here is litigation and was not actually made in summary judgment stage as i've argued in my reply brief i still think this this court has discretion to consider this issue but again it was actually argued at the motion to dismiss stage and the judge's order on that motion suggested that it would have been pointless for plaintiff to argue this at the summary judgment stage anyway same violations we have here masti e p a alleging three specific days of silt laden discharges from this site in june two thousand and thirteen precisely the same thing that the state was had gone after the defendant town for and that was discharged and unpermitted discharge from a wastewater treatment plant of waste water t adjacent water body it was precisely the same thing literally the same violation the same conduct exactly that's not in the in the district court case in the st circuit since situated have ha this essentially insisted that there must be a match between the allegation the conduct that is alleged by the citizen in the conduct that has been alleged by the state or e v a s as the case may be these are simply different by different types of violations what d p has gone after is three specific days on which still laden stormwater was being discharged from the site they violation of state regulations under the state well as protection act in contrast y the violation you're now seeking to bring to identify your citizens that were were those violations the result of prophylactic action that was ordered to address the prior violations in other words was the prophylactic violations were the violations flowing from the prophylactic actions the consequence of prophylactic actions that were taken reasonable measures must be taken to avoid for example future violations of the massachusetts massachusetts well as protection act it doesn't specifically set forth what you must do by way of you agree with that yes yes so if they issued orders why were they not the appropriate authority to prosecute the clean waters violations  contention is d e p t does not administer the g c b only e p a does correct absolutely on count two are you suggesting that d p enforcement cannot count as diligent prosecution if not exactly or other so that now turning to this issue of diligence well no i don't mean to get killed in the particular but i'm just saying state and i am i get that but just to is there a reason why d p is relevant at count two but not in count one that would just help me if i could understand what is the very structure is making it so that only e that it was so d p certainly can play a role that's right and this is actually important to understand such with what happened so far wastewater treatment plants this has historically been done in massachusetts under the clean water act and it is deep peace permits under the massachusetts clean water sackings but was that reversal of scituate with respect to the th argument that i make with respect to the precautionary provision that is i'm arguing that this can only apply to a civil penalty action of a citizen not to one that involves an ever quest for in that's limited to a question of remedy damages versus yeah equitable but that the bigger ticket item that you're pushing is that it's not precluded at all because of same violation of because it's not  evolution and diligence yet on same violation i think we've now worked out that at least given the part of scituate that you're not challenging is a good law we have to look at potential d p action as because of action script ok so now just going back to the question i was asking the d p action that was taken with respect to those initial discharges did the remedy that it where the corrective action that it required reasonably contemplate the prophylactic action that was then taken and that you are then saying led to subsequent violations that's just a yes no question i think no ok if it's a gas can you still went well i think so yeah again there there contemplated prophylactic action that was then taken that led to the violations are now complaining about i think you use still could because the fact remains that you must have a prosecution of an action for the same violations and whatever might have been invented by way of perspective orders in in those d e v orders with respect to prophylaxis there's never and you know that's not simply not the violation with respect to which the state has acted the state has acted with respect to these violations involving pollution percentage in contrast to the plaintiffs here is acting with respect to the cost if you will of those thank you your honor this court in scituate did not look at the agencies conduct in a vacuum in determining that the agency had been diligent the court looked at both the conduct of the defendant and the agency and that's just a matter of logic you can't evaluate whether an agent in agency is being sufficiently diligent in enforcing an order without knowing what is happening that the more violations of an order the more warranted this is this is right there in scituate and this is again the district court cases in the st circuit that follow it consistently speak to this principle they refer to both what the defendant is doing and what the agency is doing in this case what the district court did with this diligence analysis is it totally disregarded what was happening at the site that was happening at the site was by all accounts including d p zone analyst they were in violation of this in force of these enforcement orders and d d p for reasons that are not clear ultimately was ratifying was saying you're not buzzing you're to defendants and they were ratifying the conduct by saying no you are not in violation of the a c o p that was happening in march twice in two thousand and sixteen i just ask you a question about that and what diligence means because there's at least two different types of diligence and failures that i can imagine one is i don't dispute that there was a violation and we just were slow getting there and there's a fight about how you know much we were trying to do another type is we don't think there is a violation so it's not a lack of religions we just were of the view that was no violation at all that seems to be more what you're describing this situation as being the latter type and it is the latter to you so i was having trouble finding case law that says when an agency in good faith takes the view there's no violation that that constitutes a lack of diligence i would just dispute that this is a good faith your honor because again the agency's own analyst was finding this site in violation sixty eight times the analysts testified at his deposition i have found the discharge to be over one hundred and fifty dollars and to you that being a violation of the a c o p so d p s analysts the guy who actually went to the site knew they were in violation but somehow when this got up to the higher level itself here knew of violations and yet at the same time inexplicably there's a nice child was telling this gentleman robert gallo and the defendants generally that they were in compliance in march of two thousand and sixteen and i don't think there are any precedents for this proposition where you have this this is agency that is are we know that they have been fighting by lesions and yet they are assuring the defendants that they are not in violation and this is not simply condemnation of violations this is i think ratification of violations and i think this sets this case apart from anything you'll find in it in the case law all right thank you coun better you are thank you sir continue the argument that you just heard which is essentially a factual argument that there d were violations testimony in the record from denise trials in which she testified she came to the conclusion that there were no violations certainly no provable violations and she exercised her discretion not to bring in and the plaintiff is upset about that what the plaintiff essentially is arguing that denise childs the chief of the weapons section of the d e p t is not entitled to any difference whatsoever with respect to her determination that there were no provable violations at the site so much like the cases talk about quote me case in scituate case we have a plaintiff here seeking to substitute its own judgment for the judgment of the regulatory state agency this isn't a case of the d e p t ignoring the site now yes if it the the ground you're giving would mean that we'd be resolving the merits i'm responding to the argument made rather than i was that the just thing it just seems strange that the way standard that that's different somehow so in other words if we rule for you and we say we own child deference to say that there's no violation without me what would that mean going forward if the agency wanted to do something with the agency now be down by our ruling that there's no violation i think not not really a party to this case i bring up these points only in the context of diligent prosecution you know that the plaintiff has made at every opportunity an argument the d p p has been asleep at the wheel hasn't diligent in prosecuting and i just see a typical but here's what that just takes me back to the question i was asking your opponent which is the typical form of diligence or not taking intelligent action as everybody agrees there might be a violation and then one party is slower than the other party in doing something about it and then the question is are they too slow but this is pretty different situation because one party is saying there is no violation so it's not like they're going to get to it they don't think there's a problem the citizen bringing the citizen suit says i think there is a problem and there is every reason to believe that the agency doesn't think that there is never going to do anything about it or what are we close to do in that situation that's the heart of the i mean that there clearly was a problem in tw when the d e p t intervened with it's us going forward after that my client denies any subsequent violations but my client recognizes that the city of not what if there's got to be some standard by which we assess that we're at the agency is completely wrong about that that shouldn't preclude the citizen from bringing the suit i don't see why that would be it can't be just because the agency agency had an objective rational basis due to its checking that out the site's conditions to come to the conclusion that there were no violations  that no enforcement action was warranted i think what your honor is asking me is well can a court just fundamentally disagree and say yes there were you failed to act if war you get no deference i think you could if you came to that conclusion but i'm not sure on this record how you could come to  blackstone most definitely suing for the same violations blackstone basically is saying in its complaint that there continues to be storm water runoff at that site relief well the the remedy the d p ordered in situ it contemplated future violations and provided thing course of action that had to be taken with respect to what would happen in the future and as i understand your opponent's argument we don't have that here as clearly from what d e p t did with respect to the two thousand and thirteen discharge i have nothing but the highest respect for my opponent but i disagree with his position if you look at the the a c o p you will see that it explicitly addresses the potential for future violations and what the penalties can be and what the enforcement remedies could be it most certainly does contemplate a possibility of future violations and is that fundamentally that is that a foundation for your claim then in other words if if that's not true then you would agree that it's not the same violation i think it's foundation to my claim that that it's a comparable statute that it yes i'm sorry i'm sorry for stumbling over my own words yes i agree ok the on the wetlands protection act to go back to its captain's question which is i take it not about same violation but about comparable status you correct we brief this issue we believe that it is comparable we don't think you have to reach that issue because of the massachusetts water quality standards that are promulgated under the clean massachusetts clean water act and that eric's pressley referenced in both the usa oh in the a comp but if you disagree if the pill disagrees with that then we would argue that the massachusetts wetton protections act certainly satisfies the standards that what in situ it and other cases for comparable state law but i don't think you have to reach that is there any case finding any something other than a stay clean water act to be a comparable statu i confess i do not know the answer to that question you're on it because it's sort of a significant ruling of where the st one ever to say something other than a stay clean water act is comparable to the federal clean water i don't see that as a significant leap for the court the situation the other cases spell out the standard what qualifies as a comparable state law what label a particular state puts on it and well me in the other cases whether you know it contemplates future remedies in the event of future lation it's whether it goes to the issue of protecting or quality that's the analysis not the title of the statu companies as opposed to only one company with two names how do  they would seem to me so the gal was not an operator it would be no violation but that seems rather different than finding it's just a technical violation without finding that gal it was not it's often operator our more time before we turn to for technical assistance the court disfavors a citizen suit action where there is a comparable state prosecution action and it's been diligently prosecuted in the end where if there are two entities at the site and one of them has the necessary permit and the failure of the nd entity to have the permit should be can certainly understand the distinction being drawn between poly know where it was a name change and our situation where we have to separate companies but as a practical matter in the context of what the court is trying to accomplish with pup we know it's a distinction without a difference if the necessary permit is there and a nd alleged court in the supreme court but what about the fact that counsel what about the fact that it's not just two separate entities that may or may not be controlled by the same people but it's two separate in forstmann agencies here as i understood the record point your honor i argue that it is you under pony no it's not which federal or state agency issued the permit it's whether the state agency that's regulating the site that is supervising the stormwater rather than at the site knows about the two entities in this particular case that's the d p i don't read paoli no necessarily to say it has to be sufficient can i ask you about that suppose the regulating entity knows there's only there's only one contractor out there and it knows it's operating and it knows it doesn't have a general permit is that just a technical i think that goes to the question of whether the e p a has any authority to bring in action under the federal water act for the absence of the sea g p permit which is is not the situation we have here i don't think that's the issue in the case your honor i know that i'm asking whether what answered does it matter companies all that matters is that you never have to have a general construction permit because that's just a technical violation as long as one of the entities doesn't have one well there's only one entity there in your question and i'm sorry to interrupt you yeah no argument it would encourage shell companies to be set up that judgment proof that's just not true under the clean water act we have personal liability robert gallo and steven galloway defense in this case what incentive would they have to set up shell companies if they're going to remain personally why zero so that argument is a little bit disingenuous and not persuasive