USI Properties Corp. v. EPA, Civ. No. 80-2329.
| Decision Date | 14 July 1981 |
| Docket Number | Civ. No. 80-2329. |
| Citation | 517 F. Supp. 1235 |
| Parties | USI PROPERTIES CORP., Plaintiff, v. The ENVIRONMENTAL PROTECTION AGENCY, the United States of America and the Department of the Army, Corps of Engineers, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Rubén T. Nigaglioni, Nigaglioni, Palou & Ledesma, Hato Rey, P. R., for plaintiff.
Vivian Reyes, Asst. U. S. Atty., Hato Rey, P. R., for defendants.
On October 11, 1980 the Environmental Protection Agency (EPA) issued a cease and desist order under the authority of Section 309(a)(3) of the Clean Water Act of 1977, 33 United States Code, Section 1319(a)(3)1 averring that plaintiff USI Properties Corp., owner of a property in Humacao, Puerto Rico known as the Santa Teresa farm, in conjunction with other corporations engaged in a common project to develop the land for residential purposes, was violating Section 301(a) of the Act, 33 United States Code, Section 1311(a) in that without having obtained a permit from the U. S. Army Corps of Engineers they were discharging dredged or fill material into wetlands found within the bounds of the Santa Teresa property and without having a permit from EPA were discharging pollutants into the Frontera Creek and the Caribbean Sea which are navigable waters of the United States. This order was issued after on-site inspections by EPA representatives on October 2 and October 10, 1980 and contains the following pertinent findings of fact:
VII
The aforementioned area has been determined by the Puerto Rico Department of Natural Resources and the U.S. Environmental Protection Agency to be navigable waters of the United States and a wetland as saturation of water is the dominant factor determining soil development and the species, both plant and animal, that live in the soil and on its surface. There are a number of lagoons in the area.
VIII
A pump station located in the area is used to drain water out of the lagoons and the Mandri Creek which is discharged into the Frontera Creek and eventually into the Caribbean Sea.
IX
U.S.I. Properties intends to develop the aforementioned property with the ultimate goal of converting the area into a low income housing project.
X
The area has been classified by the National Flood Insurance Program as floodplain. The development planned for the area requires that substantial amounts of fill material be placed prior to the construction of the dwellings.
XIV
In the land clearing, land filling and construction activities, M.D. Construction and A.U. Development will be bulldozing, collecting, gathering and transporting sheared trees, vegetation, soil and leaf litter across the wetlands. They (sic) also be transporting fill material and sand across the wetlands.
XV
An on site inspection conducted on October 2, 1980 by a representative of the U.S. Environmental Protection Agency revealed that a concrete and steel bridge is under construction over the Frontera Creek approximately 0.2 miles from the Caribbean Sea. The bridge foundation and structural supports have been built to withstand heavy loads. The area was found to be a wetland habitat for many species of wildlife. The inspection also revealed that the existing pumps located at the lowest point of the lagoon system, seemed to be ready for operation. The water at the wet well of the pump house was found to be a dark orange appearance from silted material suspended in it.
XVI
An on site inspection conducted on October 10, 1980 by representatives of the U.S. Environmental Protection Agency revealed that the above referred pumps were being operated. As a result of the operation of the pumps, the U.S. Environmental Protection Agency representatives found that a dark green substance was being discharged in the Caño Frontera and eventually in the Caribbean Sea. The pumps were pumping 110,000 gallons of water per minute off the wetland into the Frontera Creek and eventually into the Caribbean Sea.
XVII
The October 10 inspection by U.S. Environmental Protection Agency representatives also revealed land clearing and dredging activities. Fill material and sand were also being transported across the wetland.
XVIII
In light of the results of EPA's intensive water quality survey conducted on Caño Frontera on October 24, 1979 which showed high mercury concentrations in the sediment of the Caño Frontera, the USEPA believes that any resuspension of this sediment, likely to be caused by the pumping operations, could result in the uptake of mercury in the food chain creating a health hazard.
XIX
The point source discharge of the cleared and dredged materials by A.U. Development and M.D. Construction into adjacent wetland areas obstructs the flow of the waters of the United States.
XX
The above activities constitute a discharge of dredged materials under the Clean Water Act.
XXI
The pumping operations into the Frontera Creek and the Caribbean Sea constitute a discharge under the Clean Water Act."
Having found that these activities were conducted without a permit, EPA ordered USI Properties Corp. "to cease any operations, pumping, land clearing, construction or any other activities that will lead to the discharge of pollutants into waters of the United States or to the discharge of dredged or fill material into navigable waters, to wit: the wetlands within the area designated as El Morillo and Santa Teresa in Humacao and lying within the property owned by U.S.I. Properties as described in paragraphs VI and VII above." On November 7, 1980 U.S.I. Properties Corp. filed an unverified complaint against EPA charging that "the defendant lacks statutory authority to issue the aforementioned order and said order is null and void as the pumping operation is not taking place in waters of the United States, no pollutants are being discharged into waters of the United States as provided in the Clean Water Act, and plaintiff's property is excluded from the provisions of the Clean Water Act, pursuant to 40 CFR Part 122.4." Plaintiff invokes federal jurisdiction under the Federal Water Pollution Control Act, 33 United States Code Section 1251, et seq., as amended by the Clean Water Act of 1977, and under the Administrative Procedure Act, 5 United States Code Section 702. This action, however, has not been filed to seek enforcement of the Clean Water Act since plaintiff's basic contention is that its property is not covered by the Act. This contention is not primarily based on the assertion that the property falls within those areas or activities expressly excluded by the Act but rather on the view that the property has neither wetlands nor other navigable waters of the United States, as those terms are defined in the Act. In any event, plaintiff in its original and in its amended complaint, both unverified, seeks injunctive relief against EPA pursuant to Rule 65 of the Federal Rules of Civil Procedure in the form of a temporary restraining order to enjoin the agency from interfering with the pumping of water from its property into Caño Frontera. The amended complaint also sought the quashing of the order to cease and desist, a preliminary injunction against agency action which interfered with the pumping until the case was heard on the merits and "a hearing ... for the issuance of a permanent injunction to prevent the unlawful exercise of jurisdiction by the defendants over plaintiff's property under color of the provisions of the Clean Water Act."2
The basic allegations in support of injunctive relief are that the property has been used for agricultural activity and grazing pastures for at least fifty years and that for approximately an equal amount of time a pumping system has been used to drain it as well as adjacent lands. Allegation 9 of the amended complaint states that: "The water that accumulates in plaintiff's property and adjacent tracts of land is pumped by the existing pumping system located in plaintiff's property to a tributary of the Frontera Creek, a man-made body of water that stands at a higher topographical level than plaintiff's property and empties into the sea." It is also alleged that during the last year and a half the pumps have been under extensive repair and were not operational causing unusually heavy precipitation to accumulate and that on or about October 10, 1980 the pumps were finally repaired and water was once again pumped from those lands. Plaintiff charges that the accumulation of excessive water poses a serious potential hazard to the physical well-being of the surrounding communities' life and properties since the saturation of water may cause catastrophic flooding conditions and possible loss of lives in the event of heavy rainfall and that the present flooding conditions are affecting the ecology of the area and the vegetation in plaintiff's property.
A hearing on a preliminary injunction commenced before Judge Gilberto Gierbolini was discontinued upon his disqualification because two parties which were interested in the final outcome of the case had been his clients while he was an attorney. The case was reassigned to the undersigned judge after pretrial memorandum had been filed and the preliminary injunction hearing was interrupted. In the meantime, a motion for intervention was filed by 3,000 residents of the lands adjacent to plaintiff's alleging that the order issued by EPA would bring upon them irreparable injury since the prohibition of the use of the pumps increased the danger of flood in that area and could possibly result in loss of their lives and properties. The residents sought injunctive relief in the same...
To continue reading
Request your trial
-
U.S. v. Rivera Torres
...v. SS Zoe Colocotroni, 456 F.Supp. 1327, 1347-1352 (D.P.R.1978) (Torruella, J.), aff'd, 602 F.2d 12 (1st Cir.1979); USI Properties v. E.P.A., 517 F.Supp. 1235 (D.P.R.1981); Commonwealth of Puerto Rico v. Alexander, 438 F.Supp. 90 (D.D.C.1977); P.F.Z. Properties v. Train, 393 F.Supp. 1370 (D......
-
Metropolitan Alloys v. State Metals Industries
...416 F.Supp.2d 561 ... METROPOLITAN ALLOYS CORP., a Michigan corporation, Plaintiff, ... STATE METALS ... v. Kmart Corp., No. 97 Civ. 1469, 1997 WL 391117, at *2 (S.D.N.Y. July 11, 1997) ... ...
-
Product Components, Inc. v. Regency Door and Hardware, Inc.
... ... Fed.R.Civ.P. 12(b)(2). Product Components, Inc. (seller) manufactures ... See World-Wide Volkswagen Corp. v. Woodsen, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 ... ...
-
Matter of Sweetapple Plastics, Inc.
... ... See Tidwell v. Bethlehem Steel Corp. (In re Georgia Steel, Inc.), 56 B.R. 509, 518 ... Elliott v. Frontier Properties (In re Lewis W. Shurtleff, Inc.), 778 F.2d 1416, 1421 (9th ... ...
-
EPA enforcement
...States , 747 F. Supp. 539, 21 ELR 20344 (E.D. Mo. 1990); Banks v. Page , 768 F. Supp. 809 (S.D. Fla. 1991); USI Props. Corp. v. EPA , 517 F. Supp. 1235 (D.P.R. 1981). he recent U.S. Supreme Court decision in Sackett v. EPA , 132 S. Ct. at 1367, changed this stagnant reality, holding that th......
-
Table of authorities
...2001) ...................................................................................................244 USI Props. Corp. v. EPA, 517 F. Supp. 1235 (D.P.R. 1981) .......................................666 U.S. Pub. Interest Research Group v. Atlantic Salmon of Maine, 215 F. Supp. 2d 239......