Reyes-Munoz v. P.R. Aqueduct & Sewer Auth.

Noel I. Reyes-Muñoz; Olga I. Ramos-Carrasquillo Plaintiffs, v. Puerto Rico Aqueduct and Sewer Authority; Environmental Protection Agency, Defendants

Civ. No. 19-2131 (SCC)

United States District Court, D. Puerto Rico

August 19, 2021

OMNIBUS OPINION AND ORDER

SILVIA CARREÑO-COLL, UNITED STATES DISTRICT COURT JUDGE

Plaintiffs Noel I. Reyes-Muñoz and Olga I. Ramos-Carrasquillo (collectively, “Plaintiffs”), filed a citizen suit (the “Complaint” or “Citizen Suit”) under the citizen enforcement provision of the Federal Water Pollution Prevention and Control Act (“CWA”), 33 U.S.C. § 1365(a), against the Puerto Rico Aqueduct and Sewer Authority (“Defendant PRASA” or “PRASA”) and the United States Environmental Protection Agency (“Defendant EPA” or “EPA”) (collectively “Defendants”). Docket No. 1. Plaintiffs also advanced Puerto Rico law claims for nuisance and riparian rights. Id.

In the wake of Plaintiffs' Complaint, Defendants separately moved for its dismissal. As such, there are two dispositive motions pending before the Court. First, is Defendant PRASA's Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (“Rules 12(b)(1) and 12(b)(6)”), respectively, see Docket No. 11 which Plaintiffs opposed, see Docket No. 17. Second is Defendant EPA's Motion to Dismiss for Lack of Jurisdiction under Rule 12(b)(1), see Docket No. 18 which was opposed by Plaintiffs, see Docket No. 23. Defendant EPA filed a reply, see Docket No. 27, after having moved for prior leave to do so, see Docket No. 26.

For the reasons set forth below, Defendant PRASA's Motion to Dismiss at Docket Number 11 is DENIED while Defendant EPA's Motion to Dismiss at Docket Number 18 is GRANTED.

I. Factual and Procedural Background

On August 19, 2019, Plaintiffs-who are both residents of Caguas, Puerto Rico-notified (the “Notice”)^[1] Defendants that they had identified certain activity that violated the CWA near a second property that they own in the municipality of Cidra (the “Property”). Docket No. 1 at ¶¶ 1-2 and 8-11; see also Docket No. 1-1. Specifically, in that Notice, Plaintiffs informed Defendants that they intended to file a suit against PRASA for violations of the CWA because a sewage manhole, located at Global Positioning System (“GPS”) 18.1781955, -66.15260600 (the “Manhole”), was discharging raw sewage. Docket No. 1 at ¶¶ 12 and 26; see also Docket No. 1-1. Plaintiffs allege that, when these discharges occur, the raw sewage spills over to the land adjacent to the Property and into the Cidra Lake. Docket No. 1 at ¶ 12; see also Docket No. 1-1.

In the Notice, Plaintiffs informed that the discharges had been previously reported to Defendants to no avail.^[2] Docket No. 1 at 13; see also Docket No. 1-1 at 2-6. Plaintiffs added that their suit would also be directed at Defendant EPA, for it had failed to commence enforcement actions against PRASA given the aforementioned violations or to otherwise diligently prosecute any consent decree that may apply to their allegations. Docket No. 1 at ¶¶ 32 and 35; see also Docket No. 1-1 at 2 and 5.

On December 13, 2019, Plaintiffs filed the instant Complaint. Docket No. 1. There, they rehashed the allegations set forth in their Notice and added that while Defendants failed to respond to the Notice, see Docket No. 1 ¶ 31, at some point in August 2018-prior to sending the Notice to the EPA and PRASA-Defendant EPA informed them that there was nothing that it could do about the discharges and that there was no law that would allow it to begin any enforcement action against PRASA to address their concerns. Id. at ¶ 34.

Although Defendant PRASA reportedly lacks a permit that would allow it to discharge raw sewage from the Manhole and notwithstanding the Notice, Plaintiffs contend that the discharges are a continuing problem. Id. at ¶¶ 14, 28, 36. According to Plaintiffs, the discharges cause foul odors which preclude them from fully enjoying the Property, have diminished the value of the Property, and pose a threat to their health. Id. at ¶¶ 17-26.

II. Analysis

A. Defendant PRASA's Motion to Dismiss

a. Standard of Review

In its Motion to Dismiss, Defendant PRASA argues that, since it entered into a consent decree in 2016 (the “2016 Consent Decreet”)^[3] with the EPA to address, inter alia, the issues raised by Plaintiffs, the CWA's “diligent prosecution bar” strips this Court of jurisdiction to entertain Plaintiffs' Complaint. See Docket No. 11. In Cebollero-Bertran v. Puerto Rico Aqueduct and Sewer Authority, 4 F.4th 63, 72 (1st Cir. 2021), the First Circuit held that “the CWA's diligent prosecution bar is a mandatory claims-processing rule that does not implicate subject matter jurisdiction.” As such, the Court will employ the standard of review corresponding to a motion filed pursuant to Rule 12(b)(6) to analyze PRASA's Motion to Dismiss.

Federal Rule of Civil Procedure 8(a)(2) serves as the Court's starting point. That rule states that a complaint must include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). And when considering a Rule 12(b)(6) motion, the Court must determine whether plaintiff's complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). To make such a determination, the Court embarks on a two-step analysis. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). This analysis is a context-specific task that relies on the Court's “judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). While at this stage the Court cannot consider extrinsic evidence, the Court is allowed to “augment these facts and inferences with data points gleaned from documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).

First, while the Court is called to accept-in this case, Plaintiffs-well pleaded allegations as true, such a mandate does not mean that the Court is forever destined to do so, for “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” do not constitute well pleaded allegations under the Rule 12(b)(6) framework. Iqbal, 556 U.S. at 678. Therefore, the Court must identify and disregard conclusory factual allegations because it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (internal citations and quotations omitted).

Second, the Court examines whether the factual allegations-devoid of legal conclusions-allow “the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. That is, in order to survive such motion, Plaintiffs must have set forth allegations that “nudge [their] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

b. The CWA's Diligent Prosecution Bar

In its Motion to Dismiss, Defendant PRASA contends that the CWA's diligent prosecution bar forecloses Plaintiffs' Complaint. Docket No. 11. The CWA's diligent prosecution bar precludes the filing of a citizen suit pursuant to § 1365(a) if the EPA or a state “has commenced and is diligently prosecuting a civil or criminal action in a court of the United States . . .” 33 U.S.C. § 1365(b)(1)(B). Meaning that, for Plaintiffs' Complaint to move forward, Plaintiffs must have alleged that the EPA, or a state has not commenced a civil or criminal action “analogous” to Plaintiffs' Complaint or that such an action already commenced but is not being diligently prosecuted. Cebollero-Bertran, 4 F.4th at 74 (citing N. & S. Rivers Watershed Ass'n, Inc. v. Town of Scituate, 949 F.2d 552, 557 (1st Cir. 1991)).

Here, Defendant PRASA latches on to the 2016 Consent Decree to argue that the diligent prosecution bar applies. Defendant PRASA reasons that the 2016 Consent Decree shows that an action was filed by the EPA which addresses Plaintiffs' claims and is being diligently prosecuted. Docket No. 11 at pgs. 2-3. Further, Defendant PRASA sustains that the Manhole “is associated with a PRASA pump station known as Treasure Valley [Pump Station], ^[4] which in turn transmits the collected wastewater to PRASA's Cayey Wastewater Treatment Plant (“Cayey WWTP”).” Id. at pg. 2. Defendant PRASA further informs that “[t]he Treasure Valley [PS] and the [wastewater collection system]^[5] are portions of the Cayey WWTP and are covered by the [2016] Consent Decree.” Id. Defendant PRASA therefore stresses that, not only was an action commenced by the EPA against PRASA which resulted in the entry of the 2016 Consent Decree, but that the same is being diligently prosecuted, for in light of its entry, PRASA has taken-and will continue to take-specific steps to address and correct the issues raised by Plaintiffs. Id. at pgs. 2-3 and 10-11.

Plaintiffs in turn oppose^[6] Defendant PRASA's Motion to Dismiss and argue that the diligent prosecution bar does not apply. Docket No. 17. In support of this contention, Plaintiffs aver that the EPA has not commenced an action addressing their concerns because the 2016 Consent Decree does not tackle the specific violations set forth in their Complaint. Id. at pg. 19.^[7] Plaintiffs also argue that even if the Manhole and area in question are included in the 2016 Consent Decree, Defendant PRASA's inaction regarding their claims and Defendant EPA's failure to ensure Defendant PRASA's compliance with the 2016 Consent Decree, denote that this matter is not being diligently prosecuted. Id. at pgs. 11-19.^[8]

The Court begins its analysis by discussing Plaintiffs' claim that the 2016 Consent...