Cebollero-Bertran v. P.R. Aqueduct & Sewer Auth.

• Decision Date: 01 July 2021
• Docket Number: No. 20-1096,20-1096
• Citation: 4 F.4th 63
• Parties: Natalia CEBOLLERO-BERTRAN, Plaintiff, Appellant, v. PUERTO RICO AQUEDUCT AND SEWER AUTHORITY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

4 F.4th 63

Natalia CEBOLLERO-BERTRAN, Plaintiff, Appellant,

v.PUERTO RICO AQUEDUCT AND SEWER AUTHORITY, Defendant, Appellee.

No. 20-1096

United States Court of Appeals, First Circuit.

July 1, 2021

Ana L. Toledo-Dávila, with whom Edelmiro Salas González and José L. Ramírez de León were on brief, for appellant.

Carlos R. Ramírez Isern, with whom A. J. Bennazar Zequeira, and Jorge Marrero Narváez were on brief, for appellee.

Before Howard, Chief Judge, Lipez and Thompson, Circuit Judges.

LIPEZ, Circuit Judge.

Natalia Cebollero-Bertran filed this action against the Puerto Rico Aqueduct and Sewer Authority ("PRASA") under the citizen enforcement provision of the Federal Water Pollution Prevention and Control Act, also known as the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a). Cebollero claims that PRASA is violating the CWA by discharging raw sewage, which flows into a creek near her home in San Juan.

In response to PRASA's motion to dismiss, the district court dismissed the case, finding that a citizen suit was barred because the United States Environmental Protection Agency ("EPA") had previously filed a suit against PRASA addressing the same violations, and was diligently prosecuting the case pursuant to a 2015 consent decree. In coming to that conclusion, the court failed to follow the correct standard for evaluating a motion to dismiss. Applying the standard applicable to a motion to dismiss, we find that Cebollero's complaint states a plausible claim that the EPA is not diligently prosecuting these violations. Thus, we vacate the district court's dismissal.

I.

A. The Clean Water Act

In 1972, Congress enacted the CWA with the goal of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) ; see also EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 203-04, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). The Act gave the federal government more robust tools to control water pollution. It authorizes the EPA to set "effluent limitations," which restrict the quantities, rates, and concentrations of pollutants that a point source¹ may discharge into waterways. 33 U.S.C. §§ 1311, 1314. These limits are enforced through the National Pollutant Discharge Elimination System ("NPDES"), which makes it unlawful to discharge a pollutant without obtaining a permit and complying with its terms. Id. § 1342(b).

The EPA may enforce the CWA by issuing an order to comply or by bringing a civil action against an alleged polluter. Id. § 1319(a). Subject to certain limitations, a private citizen may also seek to enforce the CWA by filing a civil action. Id. § 1365. Citizens are required to give notice to relevant parties 60 days before filing suit. Id. § 1365(b)(1)(A).

CWA citizen suits have the "central purpose of permitting citizens to abate pollution when the government cannot or will not command compliance." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Because citizen suits are intended to "supplement rather than to supplant governmental action," id. at 60, 108 S.Ct. 376, the CWA does not permit a private individual to bring a suit on her own behalf if the EPA "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).

B. The 2015 EPA Suit

On September 15, 2015, the EPA filed a complaint against PRASA in the U.S. District Court for the District of Puerto Rico, seeking injunctive relief and civil penalties for violations of the CWA.² PRASA operates sanitary sewage systems in Puerto Rico, including sewers that flow into the Buena Vista Creek and Puerto Nuevo River.

The 2015 EPA complaint alleged CWA violations by PRASA that included: exceeding effluent limits at certain wastewater treatment plants ("WWTPs") and water treatment plants ("WTPs"), overflows from certain WWTP pump stations and the wastewater collection system of the Puerto Nuevo Regional WWTP, and a failure to properly operate and maintain the WWTPs in accordance with its NPDES permits. These allegations were based on numerous inspections of the PRASA wastewater treatment and collection system, which found instances of improper operation and maintenance, as well as discharges of pollutants from manholes into stormwater collection systems, streets, sidewalks, and buildings. Along with the complaint, the parties filed a proposed Consent Decree with the district court, which was published in the federal register for public comments, 80 Fed. Reg. 60931-02 (Oct. 8, 2015), and then approved by the court on May 23, 2016.

The Consent Decree requires PRASA to bring its WTP and WWTP facilities into compliance with its NPDES permits and the CWA on a designated timeline. In furtherance of this goal, it requires PRASA to conduct studies of its sewers and perform necessary repairs and construction. The Consent Decree details actions to be taken to remediate problems at specific facilities, including the Puerto Nuevo Regional WWTP.

PRASA is obligated to provide reports to the EPA regarding its compliance with the Consent Decree and is subject to stipulated penalties if it fails to comply. The Consent Decree identifies "Areas of Concern" that require specific interim actions to ameliorate urgent problems. The EPA or PRASA may add Areas of Concern based on "frequency of [unauthorized discharges]; health/safety effects on the residents of sewage overflows; environmental impacts to water body of sewage overflows; and complexity of the actions needed to resolve the issue."

C. The Instant Case

Natalia Cebollero-Bertran is a Puerto Rico resident who lives in Villa Nevarez in San Juan. She owns a home next to Buena Vista Creek, a tributary of the Puerto Nuevo River and a part of the estuary of San Juan Bay.

On December 31, 2018, Cebollero, through her attorney, sent PRASA a letter giving notice of her intent to sue under the CWA for the discharge of raw sewage into the Buena Vista Creek and the Puerto Nuevo River. The notice stated that manholes located at Global Positioning System ("GPS") coordinates of 18° 23' 56.22" N and 66° 4' 1.81" W overflowed with sewage on several dates in 2018.³ The parties and the district court refer to these manholes as the "Tenth Street Sewers." The sewage from the Tenth Street Sewers flowed onto the street and into a rainwater storm drain that directly leads into Buena Vista Creek at the GPS coordinates of 56.04" N, 66° 4' 3" W. The letter further stated that additional sewage discharges occurred near Cebollero's home at 18° 23' 56.04" N, 66° 4' 3" W. Cebollero alleged that the drainage was coming from the Centro Médico area.

On March 1, 2019, PRASA responded to the notice by stating that Cebollero's suit should be precluded by the Consent Decree, which, as described above, required PRASA to implement "comprehensive remedial measures" to the entire Puerto Nuevo Regional WWTP. PRASA's response claimed that it had inspected the sewers at issue and found that they were "in good condition[.]"

On April 29, 2019, Cebollero filed this action under the citizen suit provision of the CWA, alleging that PRASA violated the CWA by discharging sewage in excess of permitted levels, discharging pollutants without a permit, failing to maintain and operate the sewage system, and failing to report these violations. She also asserted causes of action under Puerto Rico law for nuisance and riparian rights. Cebollero seeks, inter alia, an injunction enjoining the sewage discharges at the named GPS coordinates and compensatory and punitive damages.

According to the complaint, the discharges cause foul odors in Cebollero's backyard and may expose Cebollero and her children to disease-causing pathogens. Cebollero, an arborist, walks along the creek in the affected area for her aesthetic and recreational enjoyment, which is diminished by the presence of raw sewage. She now, and in the future, "cannot walk in or near the creek ... [nor] even ... in her neighborhood, feeling that she is walking on the eggshells of deadly pathogens." Prior to these sewage discharges, Cebollero did not notice any foul odors coming from the creek.

On May 17, 2019, PRASA identified an area including the Tenth Street Sewers as a new "Area of Concern" requiring special programming under the Consent Decree.

On June 20, 2019, PRASA filed a motion to dismiss arguing that Cebollero failed to provide adequate notice as required by § 1365(b)(1)(A) and that her citizen suit was barred by the CWA's "diligent prosecution" provision, § 1365(b)(1)(B). Cebollero opposed the motion. The district court rejected PRASA's notice argument, but dismissed the complaint as precluded by the "diligent prosecution" bar. On January 15, 2020, Cebollero filed this timely appeal.

II.

PRASA moved to dismiss under both Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Rule 12(b)(1) motions challenging subject-matter jurisdiction are divided into two categories: facial challenges and factual challenges. Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir. 2007). With facial challenges the movant raises a question of law without contesting the facts. See Justiniano v. Soc. Sec. Admin., 876 F.3d 14, 21 (1st Cir. 2017). The analysis is essentially the same as a Rule 12(b)(6) analysis: we accept the well-pleaded facts alleged in the complaint as true and ask whether the plaintiff has stated a plausible claim that the court has subject matter jurisdiction. Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). If a Rule 12(b)(1) motion contests factual allegations of the complaint, the court must engage in judicial factfinding to resolve the merits of the jurisdictional claim. Id. at 363-65.

Rule 12(b)(6) motions, on the other hand, are always facial, not factual, challenges to the complaint.⁴ To survive a Rule...