Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

NATALIA CEBOLLERO BERTRAN CIVIL NO.: 19-cv-1412 (CCC)

Plaintiff
VIOLATIONS OF CLEAN WATER
Vs. ACT
NEGLIGENCE; RIPARIAN RIGHTS
PUERTO RICO AQUEDUCT AND
SEWER AUTHORITY

Defendant

PLANTIFFS CONSOLIDATED OPPOSITION TO MOTION TO DISMISS AND

MEMORANDUM OF LAW IN SUPPORT THEREOF

TO THE HONORABLE COURT:

COMES NOW Plaintiffs, Natalia Cebollero-Bertrán, , through their undersigned

counsel and very respectfully state, pray and allege:

I. Introduction

Following the filing the Complaint (D.E. No. 1) Defendant Puerto Rico Sewer and

Aqueduct Authority (“PRASA”) filed, on June 20, 2019, a Motion to Dismiss (D.E. No.

1) on grounds that allegedly serve to bar this complaint for lack of subject matter

jurisdiction and other statutory bars. Plaintiff Opposes said motion on grounds set forth in

this motion and, alternatively, asks the Court to consider this opposition as a Motion for
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Partial Summary Judgment on certain defenses raised by defendant in their Motion to

Dismiss. See, Fed. R. Civ. P. 12(d).1

II. Motion to Dismiss Standard under Rule 12(b)(6)

As argued in detail in section III of this motion, a motion to dismiss a Section 505

Federal Water Pollution Control Act, (otherwise known as Clean Water Act, hereinafter

referred to as “CWA”) Citizens Suits action, 33 U.S.C. §1365, arguing that defendant is

diligently prosecuting a decree has been discarded in many circuits because it is not

jurisdictional. In other words, the diligent prosecution bar to this citizen suit does not strip

this court of subject matter jurisdiction to hear the case. See Louisiana Environmental

Action Network v. City of Baton Rouge, 677 F.3d 737, 747(5th Cir. 2012) (“Congress has

not clearly mandated that the CWA's ‘diligent prosecution’ provision is jurisdictional”)

Thus, not being jurisdictional, the District Court is obligated to give plaintiff an opportunity

to prove its well-pleaded allegations that there has been no diligent prosecution by the EPA

or the State. Since the provision is not jurisdictional, then Plaintiff is protected by the

safeguards of Federal Rule of Civil Procedure 12(b)(6), a standard of dismissal that we

now discuss.

Federal Rule of Civil Procedure 8(a) requires plaintiffs to provide “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). Under Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed.

2d 929 (2007), a plaintiff must “provide the grounds of his entitlement [with] more than

1 “(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.”
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labels and conclusions.” See, Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st

Cir. 2011) (“in order to ’show’ an entitlement to relief a complaint must contain enough

factual material ’to raise a right to relief above the speculative level on the assumption

that all the allegations in the complaint are true (even if doubtful in fact).’) (quoting

Twombly, 550 U.S. at 555) (citation omitted). Thus, a plaintiff must, and is now required

to, present allegations that “nudge [his] claims across the line from conceivable to

plausible” in order to comply with the requirements of Rule 8(a).” Id. at 570; see e.g.

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)

When considering a motion to dismiss, the Court’s inquiry occurs in a two-step

process under the current context-based “plausibility” standard established by Twombly,

550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929, and Iqbal, 556 U.S. 662, 129 S. Ct. 1937,

173 L. Ed. 2d 868. “Context based” means that a Plaintiff must allege sufficient facts that

comply with the basic elements of the cause of action. See Iqbal, 556 U.S. at 677-679

(concluding that plaintiff’s complaint was factually insufficient to substantiate the required

elements of a Bivens claim, leaving the complaint with only conclusory statements).

First, the Court must “accept as true all of the allegations contained in a

complaint[,]” discarding legal conclusions, conclusory statements and factually threadbare

recitals of the elements of a cause of action. Iqbal, 556 U.S. at 678. “Yet we need not accept

as true legal conclusions from the complaint or ’naked assertion[s]’ devoid of ’further

factual enhancement.’” Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009) (quoting

Iqbal, 556 U.S. 678) (quoting Twombly, 550 U.S. at 557).

Under the second step of the inquiry, this Honorable Court must determine whether,

based upon all assertions that were not discarded under the first step of the inquiry, the
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complaint “states a plausible claim for relief.” Iqbal, 556 U.S. 679. This second step is

“context-specific” and requires that this Court draw from its own “judicial experience and

common sense” to decide whether a plaintiff has stated a claim upon which relief may be

granted, or, conversely, whether dismissal under Rule 12(b)(6) is appropriate. Id.

Thus, “[i]n order to survive a motion to dismiss, [a] plaintiff must allege sufficient

facts to show that he has a plausible entitlement to relief.” Sanchez v. Pereira-Castillo, 590

F.3d 31, 41 (1st Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged - but it has not

’show[n]’ ’that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R.

Civ. P. 8(a)(2)). Furthermore, such inferences must be at least as plausible as any “obvious

alternative explanation.” Id. at 679-80 (citing Twombly, 550 U.S. at 567). “A plaintiff is

not entitled to ’proceed perforce’ by virtue of allegations that merely parrot the elements

of the cause of action.” Ocasio-Hernandez, 640 F.3d at 12, (citing Iqbal, 556 U.S. 679).

The United States Court of Appeals for the First Circuit (“First Circuit”) has

cautioned against equating plausibility with an analysis of the likely success on the

merits, affirming that the plausibility standard assumes “pleaded facts to be true and read

in a plaintiff’s favor” ... “even if seemingly incredible.” Sepulveda-Villarini v. Dep’t of

Educ. of P.R., 628 F.3d 25, 30 (1st Cir. 2010) (citing Twombly, 550 U.S. at 556); Ocasio

-Hernandez, 640 F.3d at 12 (citing Iqbal, 556 U.S. 679); see Twombly, 550 U.S. at 556

(“[A] well-pleaded complaint may proceed even if it appears that a recovery is very

remote and unlikely.”) (internal quotation marks omitted); see Ocasio-Hernandez, 640

F.3d at 12 (citing Twombly, 550 U.S. at 556) (“[T]he court may not disregard properly

pled factual allegations, ’even if it strikes a savvy judge that actual proof of those facts is
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improbable’”). Instead, the First Circuit has emphasized that “[t]he make-or-break

standard . . . is that the combined allegations, taken as true, must state a plausible, [but]

not a merely conceivable, case for relief.” Sepulveda-Villarini, 628 F.3d at 29. See also

Soto-Torres v. Fraticelli, 654 F.3d 153, 159 (1st Cir.2011). In Soto-Torres, the Court held:

“[S]ome allegations, while not stating ultimate legal conclusions, are

nevertheless so threadbare or speculative that they will fail to cross ’the line
between the conclusory and the factual.’” Penalbert-Rosa v. Fortuno-
Burset, 631 F.3d at 595 (quoting Twombly, 550 U.S. at 557 n. 5).

“The plausibility standard is not akin to a ’probability requirement,’

but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” [citing Sepulveda-Villarini, 628 F.3d at 29 (quoting Iqbal, 556
U.S. at 678)(internal quotations omitted)] . . . .

When a complaint pleads facts that “’merely consistent with’ a defendant’s

liability, it ’stops short of the line between possibility and plausibility of
entitlement to relief.’” [citing Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 557)]. . . . .

However, a complaint that rests on “bald assertions, unsupportable conclusions,

periphrastic circumlocutions, and the like” will likely not survive a motion to dismiss.

Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). Similarly, unadorned factual assertions

as to the elements of the cause of action are inadequate as well. Penalbert- Rosa v. Fortuno-

Burset, 631 F.3d 592 (1st Cir. 2011). “Specific information, even if not in the form of

admissible evidence, would likely be enough at [the motion to dismiss] stage; pure

speculation is not.” Id. at 596; see Iqbal, 556 U.S. at 681(“To be clear, we do not reject [ ]

bald allegations on the ground that they are unrealistic or nonsensical... It is the

conclusory nature of [the] allegations, rather than their extravagantly fanciful nature, that

disentitles them to the presumption of truth”); see Mendez Internet Mgmt. Servs. v. Banco

Santander de P.R., 621 F.3d 10, 14 (1st Cir. 2010) (The Twombly and Iqbal standards

require District Courts to “screen[ ] out rhetoric masquerading as litigation”). However,

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merely parroting the elements of a cause of action is insufficient. Ocasio-Hernandez, 640

F.3d at 12 (citing Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009)).

The First Circuit recently outlined two considerations for district courts to note

when analyzing a motion to dismiss. Garcia-Catalan v. United States, 734 F.3d 100, 104

(1st Cir. 2013). First, a complaint modeled on Form 11 of the Appendix of the Federal

Rules of Civil Procedure which contains sufficient facts to make the claim plausible is

ordinarily enough to surpass the standard prescribed under Twombly-Iqbal. Id. at 104.

Second, district courts should accord “some latitude” in cases where “[a] material part of

the information needed is likely to be within the defendant’s control.” Id. (more latitude is

appropriate in cases where “it cannot reasonably be expected that the [plaintiff], without

the benefit of discovery, would have any information about” the event that gave rise to the

alleged injury). (Internal citations and quotations omitted).

III. Facts in the Instant case

A. Well pleaded facts from the complaint pertaining to the Motion to Dismiss.

1. On December 31, 2018, Plaintiff Natalia Cebollero, through her attorney

gave defendant Puerto Rico Aqueduct and Sewer Authority ("PRASA") notice of raw

sewage discharges occurring in Villa Nevarez, near her home. Complaint, paragraph No.

5. See Also, Dkt. No. 1, Ex. No. 1 attached to this complaint.

2. The sixty-day notice letter attached to the Complaint of caption was also

given to Andrew R. Wheeler, Acting Administrator U. S. Environmental Protection

Agency (“EPA”), the Hon. Matthew G. Whitaker, Acting Attorney General, and Peter D.

Lopez, Regional Administrator of the EPA for Region 2, among others. See, Ex. No. 1

attached to this complaint.

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3. The Notice included sufficient information using GPS coordinates to permit

the PRWSA to identify the activity alleged to constitute a violation, as the responsible for

the alleged violation, by using specific Global Positioning Satellite (“GPS”) coordinates of

the alleged violation, the date or dates of such violation, and the names of the person giving

notice. Complaint, paragraph No. 7.

4. Plaintiff’s Notice sent sufficient information to permit the PRASA to

identify the activity alleged to constitute a violation; GPS coordinate of the alleged

violation, the date or dates of such violation, and the full name, address of the persons

giving notice. Complaint, paragraph No. 8., See also, Ex. No. 1 to the Complaint.

5. More specifically, notice was given to the PRASA that on several dates, the

three sewer manholes located on the GPS coordinates of 18° 23' 56.22" N and 66° 4' 1.81",

were overflowing with sewage, onto the street and into an adjacent rainwater storm drain

that collects the raw sewage and take directly into the Buena Vista Creek, a tributary of the

Puerto Nuevo River. We shall refer to these three manholes as the 10 th Street Sewer,

because they are located on the 10th Street of Villa Nevarez. Complaint, paragraphs No.

9 and 12., See also, Ex. No. 1 to the Complaint.

6. Notice was also given that the storm drain takes the sewage into the Buena

Vista Creek at the GPS location of 56.04" N, 66° 4' 3" W. We shall refer to these discharges

of sewage as the Centro Médico discharges, because it was believed the intrusion of sewage

was originating from the Rio Piedras Medical center, the origin of the storm sewer.

Complaint, paragraph Nos. 9, 13, See also, Ex. No. 1 to the Complaint.

7. The Notice informed the PRASA that the sewages discharges described in

the immediately preceding paragraph occurred on the following dates: May 27, 2018;
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September 25, 2018; October 17, 2018; October 23, 2018; November 3, 2018; November

4, 2018; and December 28, 2018. See Ex. No. 1. Complaint, paragraph No. 10., See also,

Ex. No. 1 to the Complaint. It was also alleged that the sewage discharges were continuing

at the time of the 60 day letter. See Dkt 1, p. 6, ¶28. Thus, those were not wholly past

violations, but indeed, ongoing violations within the frame of 33 U.S.C. §1365(a)(1), see

Gwaltney v. Chesapeake Bay Found., 484 U.S. 49, 59; 108 S.Ct. 376, 98 L.Ed.2d 306

(1987).

8. The 2015 consent decree between the PRASA and the United States

Environmental Protection Agency, under which PRASA has to monitor the point source

discharges and to take steps to remediate them, (hereinafter “the 2015 consent decree”)

does not mention the specific discharge of sewage mentioned through GPS coordinates in

this complaint and in Plaintiff’s 60 day letter. Simply put, the 2015 decree has not

specifically addressed the concerns of this suit. Dkt. 1, paragraph 25.

9. The 2015 consent decree, however, does refers to other remedies and

enforcement actions against discharges of pollutants occurring on a street in the Villa

Nevárez neighborhood that is 2,796 feet away from the GPS coordinates provided to the

defendant. The 2015 Consent Decree between PRASA and the EPA does not speak of the

alleged violations and the subject action raised in this complaint. Complaint, Dkt. No. 1,

paragraph 26.

10. Even so, PRASA in a response to the 60 day letter offered no evidence

that the EPA was diligently prosecuting any action addressing the specific violations

raised in the 60 day letter and is therefore not diligently prosecuting any action against
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PRASA with respect to the specific discharges raised in this complaint. See Dkt. 1,

paragraph 27.

B. Supplemental uncontroverted material facts from defendant’s documents

outside the pleadings

11. On March 1, 2019, PRASA responded to Cebollero-Bertran’s 60-day letter

(hereinafter PRASA’s response). See Ex. No. 1 to this motion.

12. In PRASA’s response PRASA makes no commitment as to any repair or

prevent the 10th Street raw sewage spills. Nor does PRASA announce that it will amend

the 2015 decree to include the 10th Street sewage spills as an “area of concern” under the

decree. Id.

13. In PRASA’s response it states that the 2015 Consent Decree “establishes

specific Areas of Concern identified at the time of the lodging […] along with the actions

that PRASA shall undertake in each identified Area of Concern.” Ex. No. 1 page 4.

14. In PRASA’s response PRASA indicated that the 2015 Consent decree

allows both PRASA and the EPA to “add other locations within the Puerto Nuevo RWWTP

Sewer System that require recurrent, programmed and specific actions or the development

of a project to eliminate the occurrence of SSO’s”. Ex. No. 1, page 4.

15. PRASA also informed that regarding the 10th Street sewer system it made

camera inspection and the sewer lines were “found in good conditions”. Ex. No. 1 page 4.

16. As a result, PRASA in its 60-day response letter did not commit to repairing

or taking any reasonable measures to repair or even promise to add the 10 th Street sewer as

an area of concern under the Consent Decree. In other words, PRASA states the sewer was

in “good condition” and needed no such repairs. See, Ex. No. 1. PRASA even requested

that Cebollero Bertran “withdraw” her letter. Ex. No. 1, page No. 5.
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17. Regarding storm sewers, such as the “Centro Médico” sewer next to

Plaintiff’s home, PRASA’s response it is stated that “[i]f during system reconnaissance

interconnections to or from sanitary or municipal separate storm sewers are identified,

PRASA notifies the EPA the location within 24 hours of discovery using said EPA

Reporting forms and process to eliminate that interconnections from PRASA’s sewer

system.” Ex. No. 1, page. No. 4. PRASA’s letter nowhere mentions that it will report and

correct the identified spillage originating from the Centro Médico storm sewer. Ex. No. 1.

18. The complaint of reference was filed on April 29, 2019. Eighteen (17) days

after the filing of the complaint, on May 17, 2019 PRASA wrote a letter to the EPA

asking that the 2012 Consent decree be amended. See, Ex. No. 2.

19. The proposed post-complaint amendment states that the sewer system in

10th Street from 20th to 32nd Streets be added as an area of concern and several proposed

actions be performed for inspection and monitoring on a monthly basis. Nothing is stated

with respect to any repairs of the 10th street sewer. See, Ex. No. 2, page 1-2.

20. The post-complaint amendment of is made because of “various citizen

complaints and overflow events reports to be related to heavy raining events.” See, Ex.

No. 2 page 2.

21. On May 29, 2019, after a rainfall event, the 10th Street sewer continued to

spill sewage into the storm drain, as other past events as stated in the Complaint. See,

Plaintiff Declaration and attached photograph, Ex. No. 3.

V. Legal Standard of cause of Action Alleged in the complaint and plausibility

of the Plaintiffs claims

A. Failure to diligently prosecute the consent decree creates no legal bar to this
complaint.
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PRASA’s principal argument for dismissal, in the case of the 10th Street raw sewage

spillages, is that the Consent Decree, as filed in case is a bar to the prosecution of its claims

in the present case. Specifically, PRASA states that the complaint is barred by the

approved Consent Decree and judgment entered in U.S. District Court, District Court of

Puerto Rico (San Juan), Civil Docket for Case #3:15-cv-02283-JAC, #10 and #11,

respectively). Motion to Dismiss, page. 2. We respectfully submit, for the reasons that

follow, that PRASA’s argument for a statutory bar fails since, as has been alleged, neither

Defendant PRASA, nor the EPA have diligently prosecuted the consent decree in this

case with respect to the sewage spill in the 10th Street manhole of Villa Nevarez.

The CWA contains a citizen suit provision, which authorizes any citizen to file a

civil action to enforce an effluent standard in an NPDES permit, or a limitation subject to

certain requirements. See 33 U.S.C. § 1365(a), (b). Subsection (a) of the citizen suit

provision, entitled “Authorization; jurisdiction,” provides that, “[e]xcept as provided in

subsection (b) of this section ․, any citizen may commence a civil action on his own behalf

․ against any person ․ who is alleged to be in violation of ․ an effluent standard or

limitation under this chapter.” § 1365(a)(1).

In subsection (b), titled “Notice,” citizen suits the citizens suits provision is subject

to two limitations, as stated in § 1365(b), as mentioned. First, sixty days before

commencing a citizen suit, the citizen must give notice of the alleged violation to the EPA,

the alleged violator, and the State in which the alleged violation occurs. § 1365(b)(1)(A).

The Supreme Court has stated that “the purpose of notice to the alleged violator is to give

it an opportunity to bring itself into complete compliance with the Act and thus render

unnecessary a citizen suit.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
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484 U.S. at 60. Furthermore, “[t]he requirement that notice be given to the responsible

officials highlights their primary role in enforcing the Act compared to the supplementary

position of the citizen.” Hamker v. Diamond Shamrock Chem. Co., 756 F.2d 392, 396 (5th

Cir.1985).

Second, the Act bars a citizen suit if the EPA or State “has commenced and is

diligently prosecuting a civil or criminal action in a court of the United States, or a State

to require compliance with the standard, limitation, or order.” 33 U.S.C. § 1365(b)(1)(B).

“The bar on citizen suits when governmental enforcement action is under way suggests that

the citizen suit is meant to supplement rather than to supplant governmental action.”

Gwaltney, 484 U.S. at 60, 108 S.Ct. 376 (emphasis added). The Supreme Court noted that

the “legislative history of the Act reinforces this view of the role of the citizen suit.” Id. The

Senate Report stated that the “Committee intends the great volume of enforcement actions

[to] be brought by the State,” and that citizens are allowed to bring suit only “if the

Federal, State, and local agencies fail to exercise their enforcement responsibility.” Id.

(alteration in original) (quoting S. Rep. No. 92–414, p. 64 (1971), 1972 U.S.C.C.A.N.

3668, 3730). Thus, the citizens' role in enforcing the Act is “interstitial” and should not be

“intrusive.” Id. at 61, 108 S.Ct. 376; see also Envtl. Conservation Org. v. City of Dallas,

529 F.3d 519, 526 (5th Cir.2008) (“The citizen-suit provision is a critical component of the

CWA's enforcement scheme, as it ‘permit[s] citizens to abate pollution when the

government cannot or will not command compliance.’ ”) (alteration in original) (quoting

Gwaltney, 484 U.S. at 62, 108 S.Ct. 376).

The main issue to be addressed in PRASA’s Motion to dismiss is whether the action

on account of the recurring and continuing 10th Street spillage is precluded under the
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CWA's “diligent prosecution” provision. 33 U.S.C. § 1365(b)(1)(B). PRASA argues that

bar is jurisdictional. Motion to Dismiss pages. 5-6. However, contrary to PRASA’s

position, this premise is incorrect as a matter of law.

The diligent prosecution bar to this citizen suit is not jurisdictional and does not

strip this court of subject matter jurisdiction to hear the case. Louisiana Environmental

Action Network v. City of Baton Rouge, 677 F.3d 737, 747 (5th Cir. 2012). As stated

before, not being jurisdictional, the District Court is obligated to give plaintiff an

opportunity to prove its well-pleaded allegations that there has been no diligent prosecution

by the EPA or the State. Since the provision is not jurisdictional, then Plaintiff is protected

by the safeguards of Federal Rule of Civil Procedure 12(b)(6)—the district court is required

to accept all well-pleaded facts in Cebollero-Bertran’s complaint as true and view the facts

in the light most favorable to her. Louisiana Environmental Action Network v. City of

Baton Rouge, 677 F.3d at 750. (holding that the “diligent prosecution” bar is a non-

jurisdictional limitation on citizen suits.)

The CWA’s bar in 33 U.S.C. § 1365(b)(1)(B) is a non-jurisdictional limitation on

citizen suits. Congress did not clearly mandate that the provision was jurisdictional, as it

has been held that this provision did not speak in jurisdictional terms or refer in any way

to the jurisdiction of the district courts; instead this provision’s placement in the “Notice”

section of CWA suggested it was intended to be a claim-processing rule, and provision was

located in a location separate from those granting federal courts subject-matter jurisdiction

over the claims. Louisiana Environmental Action Network v. City of Baton Rouge, 677

F.3d at 748 (5th Cir. 2012).

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Plaintiff, in her complaint, clearly stated that neither PRASA nor the EPA were

diligently prosecuting the consent decree. Plaintiff specifically alleged that PRASA’s

response to the 60-day letter “offered no evidence that the EPA was diligently prosecuting

any action addressing the specific violations raised in the 60 day letter and is therefore not

diligently prosecuting any action against PRASA with respect to the specific discharges

raised in this complaint.” See, Complaint, Dkt. No. 1, Paragraph No. 27. Plaintiff also

alleged that 2015 decree refers to other remedies and enforcement against discharges of

pollutants occurring on Villa Nevarez on a street that is 2,796 feet away from the GPS

coordinates provided to the defendant related to the 10 th Street sewer spillage. Id.

paragraph No. 26. The 2015 Consent Decree between PRASA and the EPA does not

speak of the alleged violations on 10th Street and the subject action alleged in this

complaint. One cannot diligently prosecute repairs to a continuous sewer spillage that has

been occurring for years under the nose of the EPA and PRASA, and it was not up until

and afterwards the moment that this complaint was filed, that for the first time, the 10th

Street spillage was covered as “matter of ongoing concern” subject to the obligations of

the 2015 consent decree, and thus, added to the areas of concern covered by the 2015

consent decree. Indeed, as a matter of fact, as recently as May the 29 th, 2019, right after

PRASA asked the EPA to add the point source alleged in the Complaint as another “matter

of ongoing concern” the manhole spilled even more raw sewage which gained access to

the Buena Vista Creek, without any action whatsoever being taken by PRASA to prevent

or control the spillage then, nor any other to this date, thus, being the prayer for an

injunctive relief to PRASA to take action even more pertinent and relevant to this case.
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Once alleging that there is no diligent prosecution to enforce the decree, which does

not cover the alleged ongoing violation with sufficient specificity, both in the Notice of

Intent and in the complaint, the burden to offer a showing of evidence that there has been

a diligent prosecution falls on the defendant. As in Ortiz-Osorio v. Municipality Loíza, 39

F.Supp.3d 159 (D.P.R., 2014), a case similar to the one of caption, a sister Court of this

very same District, held that once the allegation is made that there has not been diligent

prosecution, it is indeed the defendant who has to make a showing for dismissal or

application of the bar:

Moreover, even assuming that the order addresses the same violations as
plaintiffs' citizen suit, there is no evidence that the EPA is "diligently
prosecuting" the action. In both [North & South Rivers Watershed Ass'n
v. Town of] Scituate, [755 F. Supp. 484, 32 ERC 1954 (D. Mass. 1991)]
and SURCCO v. PRASA [157 F. Supp. 2d 160 (D.P.R. 2001)], the court
held that Massachusetts State and EPA actions, respectively, constituted
diligent prosecution barring §505 citizen suits. Scituate, 949 F.2d at 557;
SURCCO v. PRASA, 157 F.Supp.2d at 170. In both cases, defendants
demonstrated significant steps had been taken to comply with the State and
EPA administrative orders. The defendant town in Scituate had "complied
with a variety of mandatory and ongoing tasks since the Order was issued,"
including the submission of periodic water-quality test results, expenditure
of close to one million dollars for a new treatment plant, and enforcement
of a sewer hookup moratorium. 949 F.2d at 557. Similarly, the defendants
in SURCCO produced evidence of expenditures and steps taken to comply
with the EPA's administrative order. 157 F.Supp.2d at 170. Here, the record
lacks evidence that the Municipality even began to comply with the steps
laid out in the EPA's November 2010 order. Taking the plaintiffs' well-
pleaded allegations as true, there is insufficient evidence for the court to
find diligent prosecution by the EPA. Accord Water Quality Prot. Coal. v.
Municipality of Arecibo, 858 F.Supp.2d 203, 211 (D.P.R. 2012) (finding a
lack of diligent prosecution where the EPA issued an administrative order,
but the defendant Municipality came forward with "no evidence
regarding its compliance" with the EPA order).

Because there is insufficient evidence for the court to find that the EPA is
diligently prosecuting an action against the Municipality for violations
alleged in this complaint, plaintiffs' suit is not barred by § 1365(b)(1)(B).

Ortiz-Osorio v. Municipality Loíza, 39 F.Supp.3d, at 163.

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Here, the best evidence that the 10 Street sewer spillage is continuing and not

addressed by the 2015 consent decree is the fact that after the filing of the complaint,

PRASA asked to add the entire 10th Street Sewer an area of concern and that several

proposed “actions” be performed for inspection and monitoring on a monthly basis.

Nothing is stated with respect to any repairs at all in said area, and, as a matter of fact,

none has been taken so far, and, as the Annexed Declaration states, the spillage events are

occurring as of this date. This letter provided by Defendant in its Motion to Dismiss, Dkt.

10, is but a blunt admission that the 10th Street sewer spillage was not an ongoing violation

that was covered in the 2015 decree. See, Ex. No. 2, page 1-2. Likewise, the letter aimed

to bar this case, when it states that the proposed amendment is because of “various citizen

complaints and overflow events reports to be related to heavy raining events,” further

strengthens the point made by Plaintiff in the instant case. See, Ex. No. 2 page 2. The

letter also shows that the EPA, who had notice of Cebollero-Bertrán’s letter of December,

2018, did absolutely nothing to prosecute the violation. In fact, by May 17, 2019, almost

six months after been served by December 2018 60-day letter, neither the EPA nor PRASA

have done anything to correct the reported violations, which are continuous and ongoing

to this date.

Moreover, following the May 17th, 2019 letter, additional raw sewage violations

continued to occur at the 10th Street sewer. See Plaintiff’s Declaration, Ex. No. 3. This

shows not only that the dumping of raw sewage is a continuing violation, but that PRASA’s

sixty-day response denying any problem with the sewer and the solution for mere

“inspections” of May 17, 2019, are a glaring proof of a complete failure to diligently

prosecute any decree or violation.

 Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 17 of 26
17

As in Ortiz-Osorio v. Municipality Loíza, 39 F.Supp.3d 159, 163 (2014), in Hudson

River Fishtermen’s Ass’n v.Weschester County, 685 F.Supp. 1044, 1052-1053 (S.D.N.Y.,

1988), the Southern District of New York held that citizens actions are not barred by

corollary government enforcement whenever government actions do not address factual

grievances asserted by citizens suit, and in that particular case, when pertaining to a

drainage ditch and outflow pipe. In the case at bar, the 2015 consent decree did not address

the periodic and ongoing 10th Street sewage spills, and absent a diligent prosecution of said

discharge, even after the notice of intention, the instant action is not barred under

§1365(b)(1)(B).

In Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., 728 F.3d 868, 873

(9th Cir. 2013), the Ninth Circuit held that the Court must conduct an inquiry as to whether

the government was diligently prosecution the consent decree in the case of caption at the

time of the filing of the complaint. All defendant PRASA had to show was that it responded

to Cebollero-Bertrán’s sixty-day letter, prior to the filing of the complaint, showing that it

intended to apply the 2015 decree to the newly alleged violations in her letter. They did

not. See, response to sixty-day letter, Dkt 1, Annex. It was only after the filing of the

complaint, that PRASA decided to amend the decree to include the newly alleged

violations. In Friends of the Earth v. Laidlaw Environmental Services, Inc. 890 F. Supp.

470 (D.S.C. 1995), the court found there was no diligent prosecution when the enforcement

action via consent order, took place one day after the suit was filed. In the case of caption,

the 2015 consent decree did not detail the 10th Street violation. It was after this complaint

was filed with this court that the EPA amended its consent order to include the 10 th street

violation at Villa Nevarez. See also, Friends of Milwaukee's Rivers and Lake Michigan
 Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 18 of 26
18

Federation v. Milwaukee Metropolitan Sewerage Dist. 382 F.3d 743, (7th Cir. 2004), cert

den’d, 124 S.Ct. 1593, 544 U.S. 293, 161 L.Ed.2d 293 (finding that there was no diligent

prosecution when state action filed the same day of citizen suit filing). As the Ninth Circuit

held in Cal. Sportfishing Prot. Alliance

Second, we have construed the phrase “has commenced and is diligently

prosecuting,” as it appears in § 1319(g)(6)(A)(ii), though not as it appears
in § 1365(b)(1)(B). In the former context, we have held that the phrase
requires an inquiry as to whether the government was diligently
prosecuting its action at the time when the citizen filed his or her
complaint. Knee Deep Cattle Co. v. Bindana Inv. Co.,94 F.3d 514, 516 (9th
Cir.1996); Citizens for a Better Env't–Cal. v. Union Oil Co. of Cal.,83 F.3d
1111, 1118 (9th Cir.1996). We now extend that construction to the identical
statutory phrase, as it appears in § 1365(b)(1)(B). See Sprint Telephony
PCS, L.P. v. County of San Diego,543 F.3d 571, 578 (9th Cir.2008) (en
banc) (“When Congress uses the same text in the same statute, we presume
that it intended the same meaning.”).

Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., 728 F.3d 868, 873 (9th Cir.

2013); See also, Connecticut Fund for the Environment v. Job Plating Co., Inc., 623

F.Supp. 207, 216 (1985) (holding that action by state is not diligent prosecution pursuant

to section 1365(b)(1)(B) if filed after the filing of the citizens suit).

Other courts have an even stricter standard in denying diligent prosecution by

holding that the action by the state must be taken, not when the complaint by the citizen if

filed but when no action is taken within 60 days following notice by Plaintiff to the EPA,

State, and violator of the alleged violations of the Act. Atlantic States Legal Foundation,

Inc. v. Eastman Kodak Co, 933 F.2d 124, 126 (2nd Cir. 1991), (holding that §1365(b)

provisions permit a citizen suit to begin if the appropriate state or federal authorities have

not acted within the sixty-day notice period). See, also, Natural Resources Defense

Council, Inc. v. Loewengart & Co., Inc., 776 F.Supp. 996 (M.D.Pa.,1991) (no bar since

agency did not commence suit within the required 60-day notice period).
 Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 19 of 26
19

In the case of caption, the purported amendment to the consent decree to include

the 10th Street sewage spillage was signed over 120 days after the 60-day letter was served

on all the relevant actors.

B. The 2015 Consent Decree does not cover the 10th Street violations alleged in
the Complaint.

A second argument against dismissal, which is separate from the lack of diligent

prosecution by the EPA or the defendant, is that it was properly alleged in the Complaint

that the 2015 consent decree does not address the violation alleged in the Complaint,

namely the 10th Street sewage spills. Simply put, if the violation is not covered in the prior

consent decree, no bar applies. Courts in our District have recognized that when a prior

consent agreement and order between the EPA and a municipality does not seek to address

the alleged violation by a municipality, and the EPA was not diligent prosecuting action

for violation, there is no statutory bar preventing the Complaint from moving

forward. See, Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., 728 F.3d at 873.

See also, In Ortiz-Osorio the Municipality of Loiza, like here, alleged that the action was

precluded by a prior Consent Agreement and Final Order between the Municipality and the

EPA. The sister Court stated:

However, that consent agreement and order, to the extent that it might be
viewed as commencing or diligently prosecuting a court action against the
Municipality, cannot bar plaintiffs' suit because it does not seek to
remedy the allegations at issue here — alleged violations of NPDES
permit PPR040051 by failing to implement six minimum control measures
and develop a storm water management plan. The November 2010 order
proffered by defendants relates to the Municipality's failure to submit a
Notice of Intent to the EPA. As part of the agreement, the Municipality
agreed to pay a civil penalty and purchase a specialized truck for the
collection, hauling, and disposal of sewage from septic tanks in Loíza. The
order simply does not speak to the Municipality's alleged violation of
NPDES permit requirements that is the subject of this action.
 Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 20 of 26
20

Ortiz-Osorio v. Municipality Loíza, 39 F.Supp.3d 159 (2014).

C. The Centro Médico claim was adequately noticed to PRASA.

Defendants initial and preeminent argument in the Motion to Dismiss regarding the

claims made in the 60-day letter and the Complaint relative to the sewage spills being

dumped into the Buena Vista Creek, is that the instant action must be dismissed because

of failure of lack of notice, specifically concerning the sewage spill coming from Centro

Médico. The Court should not confuse the claims regarding the Centro Médico sewage

with the claims of the 10th Street sewers. They are two distinct and separate claims.

PRASA’s alleged grounds for dismissal of the 10th Street sewer, as discussed above, were

not because of lack of notice, but because of the diligent prosecution bar. On the other

hand, the basis for the request for dismissal of the Centro Médico sewage claims are

predicted on the failure to give adequate notice of the exact place and dates of the

violations. See Motion to Dismiss, Dkt. No. 10, page 5. PRASA states that no information

was provided regarding the activity alleged to constitute the violation or the dates of such

activities. Id. As such, that claim (and only that claim) should be dismissed on

jurisdictional grounds because of lack of notice.

As already stated, before citizens can file a suit to enforce a violation under the

CWA, they generally must provide 60-days’ notice of their intent to sue to EPA, to the

state in which the alleged violations are occurring, and to the discharger. 33 U.S.C. §

1365(b)(1) & (2) (2000). The contents required in the notice are set forth in regulations at

40 C.F.R. Part 135. The notice is a jurisdictional prerequisite to bringing the suit.

Massachusetts v. U.S. Veterans Admin., 541 F.2d 119, 121 (1st Cir. 1976). It has also

been held that while notice is required, not ever an exact violation or violations nor precise
 Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 21 of 26
21

location or locations of such need be specified. Public Interest Research Group v. Hercules,

Inc., 50 F.3d 1239 (3d Cir. 1995) The purpose of the notice requirements as defined in

regulations is to “include sufficient information to permit the recipient to identify the order

alleged to identify the violation, the persons responsible for the violation, the location of

the alleged violation and the alleged dates, among other things.” Public Interest Research

Group v. Hercules, Inc., 50 F.3d at 1247. A Court cannot place on the citizen the “duty to

identify every pre-complaint date on which there as an excess or discharge of a designated

pollutant.” Id. As the Third Circuit held:

The regulation does not require that the citizen identify every detail of a
violation. Rather, it states that "[n]otice regarding an alleged violation . . .
shall include sufficient information to permit the recipient to identify" the
components of an alleged violation. 40 C.F.R. § 135.3(a) (emphasis
added).

[…]

A general notice letter that fails sufficiently to inform its recipients of the
violations upon which a citizen intends to bring suit will not conform to the
Act's requirement. However, the citizen is not required to list every
specific aspect or detail of every alleged violation. Nor is the citizen
required to describe every ramification of a violation.

Public Interest Research Group v. Hercules, Inc., 50 F.3d at 1247-1248.

An examination of the 60-day latter attached as sole exhibit to the Complaint (Dkt.

No.1) regarding the Centro Médico claim shows that notice was given of the exact GPS

coordinates of the storm drain, where it enters the creek at 18° 23' 56.04" N, 66° 4' 3" W.

Dkt. No. 1, Ex. No. 1, page 4. Additionally, it was stated that the sewage spills were known

to originate, upon information and belief from a University of Puerto Rico expert, from the

Centro Médico sewer system. Id. Furthermore, although a specific date was not
 Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 22 of 26
22

mentioned, it was stated that at the time of the letter, the spillages occur “when[ever] there

are heavy rains” and that the discharges are continuous. Id.

Defendant cannot proffer that it had insufficient notice of the location and timing

of the illegal discharges occurring in Centro Medico and being dumped next to Ms.

Cebollero Bertran’s home because PRASA was given the exact location of the storm sewer

in which the sewage was being dumped into the creek and, as the proper PRASA has

furthered in its request for dismissal of this action, Dkt. 10, it supposedly has in place

mechanisms to pinpoint the exact locations of the dumping of sewage in Centro Médico

into the clearly identified storm drains. From its very own response to the notice, PRASA

stated that under the 2015 decree:

In addition, sanitary sewer overflows (SSOs), dry weather overflows

(DWOs) and Unauthorized Releases (hereinafter, Events) of the Puerto
Nuevo RWWTP Sewer System are addressed through elements of the
S20MP and other programs/plans implemented by PRASA that establish
reporting requirements, and response and repairs under the S20MP.
Reporting is done within 24 hours of discovery of an Event by use of an
EPA Reporting Form (Appendix N of the Consent Decree) transmitted to
EPA as specified under the Consent Decree. Response to Events are in
accordance with an EPA approved island wide Spill Response and Control
Plan that includes mitigation and corrective actions. If during sewer system
reconnaissance interconnections to or from sanitary or municipal separate
storm sewer systems are identified, PRASA notifies EPA the location within
24 hours of discovery using said EPA Reporting Form and proceeds to
eliminate those interconnections from PRASA's sewer system.

Ex. 1, page 4.

It is clear that the EPA and PRASA had in place mechanisms to track the source of

the sewage being dumped through the storm sewer after reported. Thus, the PRASA was

“provided with enough information to bring itself into compliance.” Public Interest

Research Group v. Hercules, Inc., at 1249. More specifically, it allegedly has in place

camera inspections and other tools to identify the source that is feeding into the storm
 Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 23 of 26
23

sewer. See, Ex. No. 2, page 2. If Plaintiff can detect infiltrations of raw sewage and sludge

water into its nearby sewer system, she can also detect infiltrations of sewage into a storm

drain that is continuing and recurrent.

Finally, the factual situation here, regarding the Centro Médico and 10th Street

spillages are similar to that of the above cited case of Hudson River Fishtermen’s Ass’n

v.Weschester County, 685 F.Supp. 1044 (S.D.N.Y., 1988). There the following factual

scenario was noticed to the defendant:

Although the landfill is no longer receiving any form of garbage, sewage,

or industrial waste, it continues to be an ecological problem of substantial
magnitude. The materials dumped over the decades contained a certain
amount of liquids, some of which are pollutants in and of themselves, and
the remainder of which mix with toxic wastes forming leachate. In addition,
as indicated supra note 2, storm water is absorbed by the landfill and,
through a mixing process, also can become leachate. This leachate does
not remain stable within the landfill. Some of it percolates to the
surface, some of it leaches downward and outward. Due to the area's
geological configuration, the tendency for all moving liquids, both on the
surface and subsurface, is to gravitate toward the Hudson River. As a partial
answer to this problem, the County has created a pool. The plaintiff (and at
times, the County) has referred to this pool as a "leachate lagoon." The
County maintains that it is primarily a storm-water collection pool and has
no more than 5% leachate in it. Given the size of this pool, however, even
a 5% fraction would represent an enormous amount of pollutant.

Next to the landfill, and adjacent to but below the [leachate] pool, there is a
drainage ditch also on County property. The purpose of this ditch is to
collect rain water from park and parking lot areas and direct it to a discharge
pipe which goes underground and ultimately discharges into the Haverstraw
Bay, a couple of hundred feet from the Croton Beach swimming area. The
plaintiff alleges that, since at least July 10, 1981, this pipe has been
discharging effluent containing metals, inorganic substances, and fecal
coliform into the bay, thereby polluting the river and the nearby beach. It is
the contention of the plaintiff that this pollution is escaping from the
"leachate lagoon" either through or under the protective berm and into
the adjacent drainage ditch. The County, based on its own chemical
samples, vigorously denies this. County officials, however, acknowledge
that this is a possible result due to subterranean percolation, and there
is sufficient evidence from other sources who have observed the
drainage ditch and the outflow to raise a substantial factual issue as to
 Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 24 of 26
24

whether this has occurred. Beyond any question, the adjacent waters have
been polluted on recent occasions. Although the County argues that this is
caused by natural storm-water runoffs, it appears to the court that,
considering the size of the landfill, there are a number of sources from
which the landfill could pollute the nearby areas until and unless an
effective capping of the entire surface of the landfill takes place. […]

The complaint is directed particularly to the claim that the drainage ditch
and outflow pipe are illegally discharging pollutants into the river in
violation of section 301 of the CWA, 33 U.S.C. § 1311. The complaint
alleges that the County does not have a permit to use the ditch and outflow
pipe for the discharge of pollutants.

Hudson River Fishtermen’s Ass’n v.Weschester County, 685 F.Supp. 1044, 1047-1048
(S.D.N.Y., 1988).

Under such a scenario, where it was pinpoint clear where the storm drain was

depositing pollutants into the river, but unknown where exactly the pollutants were

infiltrating the drainage, the court refused to summarily dismiss the case. Id, at 1053.

WHEREFORE, it is respectfully requested that the Court DENY defendants

Motion to Dismiss the Complaint, ORDER the defendants to answer the complaint and let

discovery begin pursuant to the Court’s schedule.

RESPECTFULLY SUBMITTED.

In San Juan, Puerto Rico, this 15th day of July, 2019.

RESPECTFUALLY SUBMITTED.

In San Juan, Puerto Rico, this 15th day of July, 2019.

s/Edelmiro Salas González

Edelmiro A. Salas González
USDC 218004
Urb. Villa Nevarez
Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 25 of 26
25

1072 Calle 17
San Juan, Puerto Rico 00927
Tel. (787) 376-4659
Fax. 1-866-583-2843
[email protected]

s/ José Luis Ramírez de León

José L. Ramírez de León
USDC Bar No. 206910
PO Box 190251
San Juan, PR 00919-0251
(787) 415-8459
Fax (787) 282-6682
e-mail: [email protected]
[email protected]
 Case 3:19-cv-01412-CCC Document 12 Filed 07/15/19 Page 26 of 26
26

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this same date, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system, which will send notification of such

filing to all counsels of record.

In San Juan, Puerto Rico, this 15th day of July, 2019.

s/Edelmiro Salas González

Edelmiro A. Salas González
USDC 218004
Urb. Villa Nevarez
1072 Calle 17
San Juan, Puerto Rico 00927
Tel. (787) 376-4659
Tel. Fax. 1-866-583-2843
[email protected]
 Case 3:19-cv-01412-CCC Document 12-1 Filed 07/15/19 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

NATALIA CEBOLLERO BERTRAN CIVIL NO.: 19-cv-1412 (CCC)

Plaintiff
VIOLATIONS OF CLEAN WATER
Vs. ACT
NEGLIGENCE; RIPARIAN RIGHTS
PUERTO RICO AQUEDUCT AND
SEWER AUTHORITY

Defendant

DECLARATION IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL

SUMARY JUDGMENT

I, Natalia Cebollero Bertran, declare the following under penalty of pe1jury,

pursuant to 28 U.S.C. § 1746:

1. I am Plaintiff Natalia Cebollero Bertran.

2. I make this declaration in further support of the Plaintiffs Opposition to
Defendant' s Motion to Dismiss.
3. Attached hereto as Exhibit 1 is a true and coiTect copy of letter sent to my attorney
via certified mail on March 1, 2019 by counsel for PRASA, Jorge Marrero
Narvaez.
4. Attached hereto as Exhibit 2 is a true and exact copy of Letter of May 17, 20 19 by
Augusto Carmona Padro, served via email on my attorney.
5. On May 29, 20 19 there were heavy rains in Villa Nevarez and I spoke with my
attorney to inform him of the rain. My attorney took a video of a sewage spill on
May 29, 20 19 of sewer manhole located at the approximate GPS location 18° 23'
56.22 N; 66° 4' 1.81 W at 10111 street, Vi lla Nevarez. This is the same manhole
11 11

which has been alleged in the Complaint as one of the PRASA 's manholes spilling
sewage into the storm water drains and onto the Buena Vista Creek.
6. Attached hereto as Exhi bit 3 is a true and exact copy a pi cture taken of the video of
on May 29, 20 19 showing sewage spill on the manhole located at the approximate
GPS location 18° 23 ' 56.22 N; 66° 4' 1.8 1 W at 10111 street, Villa Nevarez.
11 11

Date: July 15, 20 19.

Signed: ~~
Natalia Cebollero Bertran
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Case 3:19-cv-01412-CCC Document 12-2 Filed 07/15/19 Page 1 of 5 EXHIBIT
NO. 1

GOBIERNO DE PUERTO RICO

Autoridad de Acueductos y Alcantarillados

By Certified Mail# 7016-356o-oooo-o266-9517

and email at [email protected] and Fax 1 (866) 583-2843

March 1, 2019

Edelmiro A. Salas Gonzalez, Esq.

Calle 17 #1072, Urb. Villa Nevarez
San Juan, PR 00927

Dear Mr. Salas Gonzalez

Re: 6o Day Notice of Intent to Sue

On January 3, 2019, the Puerto Rico Aqueduct and Sewer Authority ("PRASA") received a
Notice of Intent to Sue ("NOJ") under Section 505 (a)(1)(A), et seq., of the Clean Water Act
(CWA), 33 U.S.C. §1365 (b), from you on behalf of your client and yourself.

According the NO!, PRASA allegedly violated and continues to violate an effluent standard
or limitation of the CWA and associated reporting requirements by failing to adhere to
certain terms and conditions of its NPDES permit, thereby causing pollutants to be
discharged into Buena Vista Creek, and fraudulently reporting or failing to report the same
as required by law. Specifically, you contend that rainwater infiltrates sewage system and
spills at the following locations:

1) Villas Nevarez

Rainwater, when it rains heavily, allegedly infiltrates a PRASA sanitary sewer

system ("SSS") and commingles with raw sewage that spills from a manhole at
the approximate GPS coordinate location 18• 23' 56.22" N, 66• 4' 1.81" W onto the
pavement of Street 10 at the intersection of Street 23 of Villas Nevares into a
nearby storm sewer that drains at GPS coordinate location 18• 23' 56.04" N, 66• 4'
.3"W into Buena Vista Creek and ultimately into the San Juan Bay, thru the Puerto
Nuevo River by way of a tributary, Rfo Piedras River into which Buena Vista Creek
empties.

Avlorldad de Acvedueioo
y Ak:anfartlados

Oficina Asesora Legal General: #604 Avenida Barbosa, Hato Rey- PO Box 7066, San Juan, PR 00916-7066

',.787.620.2277 Exts. 2666 I 2655 I S787.620.3830 • www.acueductospr.com

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Case 3:19-cv-01412-CCC Document 12-2 Filed 07/15/19 Page 2 of 5

PAASA Response to Notice of VIolation and Intention to Sue

March 1, 2019
Page 2 ofs

2) Centro Medico

A storm drain at GPS coordinate location 18~ 23' 56.04" N 66• 4' 3" W dumps into
the Buena Vista Creek, along with rainwater during heavy rains, raw sewage that
overtlows into the storm sewer from the Centro Medico hospitals and mental
hospitals ("Centro Medico Area") 'and travels underneath PR-52 to said storm
drain.

To address the above allegations it is imperative to state that PRASA is a public corporation
created by law of the Commonwealth of Puerto Rico to provide water and sewer services
for Puerto Rico. PRASA does not operate or own municipal separate storm sewer systems
(MS4s). If it is your or your clients' contention that PRASA is required to obtain a CWA
permit for the discharge of pollutants from a storm drain of a municipal separate storm
sewer system (MS4), which it neither owns or operates and for which another party has
already obtained an MS4 NPDES permit, there is no support under the CWA or interpretative
case law for this position.

Furthermore, the CWA authorizes citizen suits against persons alleged to be in violation of
an effluent standard or limitation under the CWA or an order issued by EPA or State with
respect to such standard or limitation, but only if (1) notice is given in such manner as the
EPA prescribed by regulation or (2) the EPA is not diligently prosecuting a court action
against the alleged violations. 33 U.S.C. §1365(a)(1) and (b)(1)(B).

As you are aware, the U.S. Environmental Protection Agency (EPA) has exercised their
enforcement responsibility against PRASA pursuant to the enforcement framework under
the CWA and has obtained a court approved Consent Decree with the United States District
Court for the District of Puerto Rico under case number 3:1s-cv·02283·JAG\ Entry of the
Consent Decree foreclosed the allegations brought forth in your NO I.

' On October 8, 2015, a Notice of Consent Decree between EPA and PRASA was published in the Federal
Register (8o Fed. Reg. 6o, 931), announcing that a proposed Consent Decree had been lodged September 15,
2015 with the United States District Court for the District of Puerto Rico and that the United States Department
of Justice (DOJ) would be accepting public comment on the Consent Decree for the next 30 days. See 8o Fed.
Reg. 60,931 (October 8, 2015). The comment period ended and the United States received four sets of
comments: three from citizens an(! one from a non-governmental organization (collectively Commenters)
regarding the proposed Consent Decree. The Commenters did not oppose entry of the Consent Decree, but
did raise questions about certain provisions. No comments raised concerned the areas identified in your NOI
letter. The United States carefully considered the comments and concluded that the Consent Decree was fair,
reasonable and consistent with goals of the CWA. Therefore, approval of the Court was sought by DOJ by
motion titled Plaintiff's Unopposed Motion to enter Consent Decree filed May 12, 2016 and granted. Judgment
'was entered May 12, 2016.
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Case 3:19-cv-01412-CCC Document 12-2 Filed 07/15/19 Page 3 of 5

PkASA Response to Notice of Violation and Intention to Sue

March 1, 2019
Page 3 of5

The Consent Decree provides for PRASA to implement comprehensive remedial measures,
Injunctive relief, some to commence immediately and others at different time periods, which
is expected to cost approximately $1.5 Billion, to further PRASA's compliance with the Clean
Water Act at its facilities. Amongst the facilities for which specific comprehensive measures
have been provided for under the Consent Decree is the Puerto Nuevo Regional Wastewater
Treatment Plant (RWWTP) Sewer System. The areas mentioned in your NO I letter are a part
of the Puerto Nuevo RWWTP Sewer System. Therefore, under the citizen suit provision of
the CWA, a citizen suit is barred.

Under Section IX - Sewer System Operation and Maintenance Program and Condition
Assessment, Paragraphs 22 to 31, and Section XII - Specific requirements for the Areas of
Concern in the Puerto Nuevo RWWTP Sewer System, Paragraph 36, the Consent Decree sets
forth comprehensive measures for the Puerto Nuevo RWWTP Sewer System and
implementation schedules within the framework of the Consent Decree directed at
investigating sources of any problems encountered within said sanitary sewer system.

Accordingly, PRASA implements a Sewer System Operation and Maintenance Program

(S20MP)> with respect to the Puerto Nuevo Regional Wastewater Treatment Plant
(RWWTP). Under the S20MP, PRASA undertakes inspections, observations, cleaning,
repairs, and investigations of the Puerto Nuevo RWWTP Sewer System within the
framework of the Consent Decree. The S20MP requires that PRASA conduct sewer system
reconnaissancel and sewer cleaning4 of all sewers hydraulically connected to Puerto Nuevo
RWWTP Sewer System, as set forth in Implementation schedules under the Consent Decree.
Also, as sewer system reconnaissance and sewer cleaning progresses, PRASA is to revise

'Under the Consent Decree, the term "Sewer System Operation and Maintenance Program" or "S20MP" is
defined as a program to manage, operate, and maintain the Sewer System In a manner consistent with
wastewater collection system Industry practice, to investigate capacity-constrained Sewer System areas, and
respond to SSO and CSO events.
3 Under the Consent Decree, the term "Sewer System Reconnaissance" is defined as the inspection activities
performed by PRASA that Includes the application of appropriate industry proven technologies to confirm
and/or update the information as appropriate on existing maps, and where necessary, to Identify and/or
update the spatial coordinates of manholes for gee-referencing, identify sewer segments requiring cleaning,
Identify Sewer System interconnections (storm, sanitary, etc.), validate the location of suspected Sewer
System interconnections, identify and record any conditions Impeding the sewer function and assign PRASA
asset Identifiers. The Inspections of the Sewer System will be performed using, but not limited to, visual
observations, smoke test, sonar tests, dye tests, and a pole mounted camera system, which allows an
Inspection of the manhole structure and all incoming and out-going sewer pipes within the structure without
physically entering the manhole.
4 Under the Consent Decree, "Cleaning" Is defined as the removal from the Puerto Nuevo RWWTP Sewer
System of FOG, debris, solids, sand, roots and/or any other obstructions that have caused or contributed to
previous SSOs, DWOs or Unauthorized Releases, and/or that are likely to cause or contribute to the future
occurrence of SSOs, DWOs or Unauthorized Releases.
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maps of the Puerto Nuevo RWWTP Sewer System and submit updated maps on an annual
basis to EPA in GIS format. Also, PRASA implements an island wide Fats, Oil and Grease
(FOG) Control Program as an element of the S20MP to prevent blockages, obstructions and
overflows due the contribution and accumulation of FOG into its sewer systems. In addition,
sanitary sewer overflows (SSOs), dry weather overflows (DWOs) and Unauthorized Releases
(hereinafter, Events) of the Puerto Nuevo RWWTP Sewer System are addressed through
elements of the S20MP and other programs/plans "implemented by PRASA that establish
reporting requirements, and response and repairs under the S20MP. Reporting is done
within 24 hours of discovery of an Event by use of an EPA Reporting Form (Appendix N of
the Consent Decree) transmitted to EPA as specified under the Consent Decree. Response
to Events are in accordance with an EPA approved island wide Spill Response and Control
Plan that includes mitigation and corrective actions. If during sewer system reconnaissance
interconnections to or from sanitary or municipal separate storm sewer systems are
identified, PRASA notifies EPA the location within 24 hours of dis<:overy using said EPA
Reporting Form and proceeds to eliminate those interconnections from PRASA's sewer
system. In the event interconnections from PRASA's sewer system cannot be completed
within a year of detection, a project is proposed and upon approval by EPA scheduled
accordingly to be completed.

Furthermore, in order to minimize the occurrence of SSOs and work towards the elimination
of SSOs, the Consent Decree establishes specific Areas of Concern identified within the
Puerto Nuevo RWWTP Sewer System that require interim measures to be taken. The
specific Areas of Concern identified at the time of lodging are detailed in the Consent
Decree, along with the actions that PRASA shall undertake in each identified Area of
Concern. PRASA as required under the Consent Decree submits to EPA the actions taken
within two (2) working days upon completion of each action required. EPA under the
Consent Decree may require other interim actions to any of the Areas of Concern as it deems
necessary. The Consent Decree provides that PRASA and EPA may add other locations
within the Puerto Nuevo RWWTP Sewer System that require recurrent, programmed and
specific actions or the development of a project to eliminate the occurrence of SSOs. Once
added, such location shall be tracked and require interim measures based on frequency and
impacts of SSOs to residents and environment that may occur, and the complexity of the
actions needed to resolve the issue.

The GPS coordinates provided do not reference an intersection between Street 10 and
Street 23 in Villas Neva res. PRASA in response to complaints, in addition to reporting events
to EPA pursuant to law and the Consent Decree, has undertaken actions in the vicinity, some
contemporary to the dates mentioned in your letter, such as • unclogged and cleaned sewer
lines, and conducted inspections of manholes. Also, as part of its efforts to identify
rainwater sources into the PRASA sanitary sewer system, camera inspections have been
performed from Street 10 to Street 20 up to Street 10 and corner of Street 32 of Villa
Nevarez. As of date, the sewer lines in the area investigated were found in good conditions
and no interconnection from a MS4 in the areas investigated has been identified. PRASA is
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PMSA Response to Notice of VIolation and Intention to Sue

March 1, 2019
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pursuing further investigations and is planning additional camera inspections to continue

investigation efforts to identify rainwater sources, if 9ny.

As stated above, PRASA does not operate or own MS4s. The NOI advances the argument
that raw sewage from the Centro Medico Area, allegedly spills during heavy rainfall into a
storm sewer system that along with rainwater drains into Buena Vista Creek thru a storm
drain (MS4 outfall). The NOI does not inform PRASA with specificity where raw sewage
spills from a PRASA sanitary sewer system enters the storm sewer system, such that the
alleged raw sewage spills from the Centro Medico Area may be identified as attributable to
PRASA. Moreover, raw sewage or pollutants spills may be attributable to other sources.
This lack of specificity has the additional effect of limiting PRASA's capacity to effectively
develop and implement any corrective measures that might be necessary within the
mandatory 6o-day notice period prescribed by law before suit may be commenced.

The content requirements for the NOI under the CWA and as prescribed by EPA at 40 C.F.R.
Part 135 are intended to facilitate the objectives of the CWA to allow the alleged violator an
opportunity to come into compliance with the CWA and thus likewise render unnecessary a
citizen suit. The failure to indicate any specific violations and the source of the violations
prevents PRASA from accurately identifying the alleged violations and hinders a timely
resolution of the alleged violations. Citizen suit notice requirements are jurisdictional and of
strict compliance.

For all the reasons above, PRASA requests withdrawal of the NO! based on the information
herein provided as pertaining to your allegations. PRASA advises, in addition to the
implementation of the S20MP, that in the course of its ordinary daily business it continues
working towards and addressing problems regarding its water and sewer systems that are
reported to it with reasonable specificity such that the problem may be identified for its
correction.

If you desire further discussion on this matter, do not hesitate to contact me at (787) 620-
2277, extensions 2659 or 2668.

Cordially,

Jor e arrero Narvaez, Esq.

Office of General Counsel
Legal Advisor
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