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TORRUELLA,
Circuit Judge.
of
unjustifiable
environmental practices.
efforts
to
indict
their
neighbor's
The Facts
The Property
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to
disclose
contaminated.
Paolino
that
then
the
Paolino-Issa
sought
tax
Property
abatement
in
was
2003
Paolino was
both
properties,
the
Rhode
Island
Department
of
Rhode
Island
Pollution
Discharge
Elimination
System
RIDEM
engineering
firm,
Construction of
Commonwealth
Defendants contracted a
Engineers,
to
bring
the
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Paolino-Issa
were
notified
in
April
2008
that
the
discharge point for stormwater had been relocated and was not
discharging stormwater onto their property.
On March 2, 2010, RIDEM issued a Notice of Violation
("NOV") to JF Realty informing them that an inspection on November
20, 2009, showed that pollutants were being discharged from the
Property to Curran Brook in violation of the Rhode Island Water
Pollution Act and RIDEM Water Quality Regulations.
administrative penalty was imposed.
A $2,500.00
Subsequent inspections
Procedural Background
filed the current claim for injunctive
20, 2012, in the U.S. District Court for the District of Rhode
Island, alleging that contaminated stormwater runoff from the
Property
was
contaminating
being
the
discharged
Paolino-Issa
into
United
Property,
and
States
that
waters,
Defendants
Paolino v. JF
Realty, LLC, 710 F.3d 31, 36, 40-42 (1st Cir. 2013).
The deadline
Paolino-Issa
subsequently
submitted
request
to
supplement Roseen's report on June 13, 2014, which was, noted the
district court, "more than three months after the Plaintiffs'
expert disclosures were due, two weeks after expert discovery had
closed, and after the Defendants had filed their motion for summary
judgment, based, in part, on the information disclosed in Dr.
Roseen's expert report."
report.
The
district
court
issued
memorandum
of
nor
the
EPA
chose
or
to
intervene.
Plaintiffs
filed
an
unreasonable,
that
the
lack
of
action
by
Paolino-Issa
allege
that
the
trial
judge
erred
in
When "a party aspires to disclose expert evidence out of time and
the trial court opts to exclude it, we review that determination
for abuse of discretion."
De Referencia Del Este, 456 F.3d 272, 275 (1st Cir. 2006).
Under
-8-
Fed. R. Civ. P.
testimony,
it
will
consider:
"(1) the
history
of
the
disclosure's
adverse
effects . . .
and
(5) the
late
excluded.
Paolino-Issa
claim
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their
tardiness
owed
to
But
further
undermining
Paolino-
As to the
fourth Esposito factor, as the district court noted, PaolinoIssa's motion to "serve a revised expert report [came] months after
the deadline for expert disclosures had passed and only after the
Defendants . . . had filed their motion for summary judgment."
Defendants
had
already
relied
on
the
original
report
from
To
have
substantially
affected
both
Defendants,
who
had
Granted, when
judgment,
Dr. Roseen
was
did
still
not
constitute
allowed
to
de
testify,
facto
along
dismissal.
with
other
We
The Judgment
may
commence
civil
action
on
his
own
behalf
--
sought
to
prove
33 U.S.C. 1365(a)(1).
Defendants
violated
the
Here,
CWA
by
without
permit.
33
U.S.C.
1311(a),
1342(a),
1362(12).
Jackson v. Harvard Univ., 900 F.2d 464, 466 (1st Cir. 1990).
Conversely, this court reviews legal rulings by the district court
on a de novo basis.
Anderson
v.
Bessemer
City,
the
Supreme
Court
established that:
[i]f the district court's account of the
evidence is plausible in light of the record
viewed in its entirety, the court of appeals
may not reverse it even though convinced that
had it been sitting as the trier of fact, it
would have weighed the evidence differently.
Where there are two permissible views of the
evidence, the factfinder's choice between them
cannot be clearly erroneous.
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of
that
procedural
evidence.
history,
That
court
incorporating
recounted
prior
the
decisions;
-13-
presented
discharging
pollutants
to
was
show
the
overtly
stormwater
flawed.
system
For
was
example,
As Patrick Hogan of
who bought the Property in 1983 and serves as LKQ's plant manager
and stated he had no direct involvement with RIDEM although he was
aware of their notices and of how the stormwater management system
was installed; (10) Dr. Roseen, a Ph.D. in civil engineering with
a specialty in water resources engineering, who analyzed data
collected by his staff from the Property in 2014 as to potential
risks of contamination in light of the current system and reviewed
maintenance records from 2007 to 2013; (11) Patrick Hogan, in
charge of supervising the RIDEM Water Pollution and Septic
Enforcement Program, who visited the Property on various occasions
between 2008 and 2014 after receiving complaints from Paolino and
sent an NOI to JF Realty after a March 2008 visit and an NOV
following a November 2009 visit, but affirmed that JF Realty took
the necessary steps to address both and informed Paolino, in
response to continuing complaints, that a multimedia inspection
found no violations; (12) Karen Beck, a Commonwealth Engineering
employee, registered landscape architect, and wetlands scientist,
who worked on the design of the Property's stormwater management
system, obtained the necessary permits, and coordinated efforts by
Commonwealth's engineers; and (13) Richard Lavengood, engineer and
certified toxic use reduction planner, who is the principal of
RELCO Engineering that prepared the stormwater management plan for
LKQ, which included testing, training of personnel and dealing
with incidents.
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directly from
Inc. v. Town of Scituate, 949 F.2d 552, 556 (1st Cir. 1991).
"[W]hen it appears that governmental action under either the
Federal
or
comparable
State
Clean
Water
Acts
begins
and
is
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Golf, LLC, in which the U.S. District Court for the Northern
District of Georgia established that the "CWA authorizes citizen
suits for the enforcement of all conditions of a . . . permit."
New Manchester Resort & Golf, LLC v. Douglasville Dev., LLC, 734
F. Supp. 2d 1326, 1338 (N.D. Ga. 2010) (quoting Culbertson v. Coats
Am., Inc., 913 F. Supp. 1572, 1581 (N.D. Ga. 1995)).
However, it
U.S.C.
1365(d).
Attorney's
fees
may
be
awarded
to
Lamboy-Ortiz v. Ortiz-
Vlez, 630 F.3d 228, 236 (1st Cir. 2010) (quoting RossellGonzlez
v. AcevedoVil, 483 F.3d 1, 6 (1st Cir. 2007)).
"Although
determinations
fees
about
whether
to
award
attorney's
are
became
[frivolous,
unreasonable,
or
groundless].'"
Here,
Ortiz-
relevant
brought
the
facts
current
comprehensive
carefully
suit
stormwater
and
after
noted
that
Defendants
management
system
per
Plaintiffs
installed
RIDEM,
that
inspection,
and
extensive
correspondence
between
district
court
also
noted
Paolino-Issa's
post-
further
detailed
Paolino-Issa's
lack
of
The district
diligence
in
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claim
considerably.
in
2006,
by
2012
the
facts
had
changed
Conclusion
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