Cebollero-Bertran v. PR Aqueduct & Sewer Authority
4 F.4th 63
| 1st Cir. | 2021Background
- Plaintiff Natalia Cebollero‑Bertran sued PRASA under the CWA citizen‑suit provision, alleging repeated raw‑sewage discharges into Buena Vista Creek at identified GPS coordinates.
- EPA previously sued PRASA in 2015 and a 2016 consent decree required PRASA to remediate Puerto Nuevo WWTP operations, report overflows, and permit designation of "Areas of Concern."
- Cebollero sent a 60‑day notice on December 31, 2018 and filed suit April 29, 2019; PRASA responded by invoking the consent decree and claiming inspections showed the sewers were in good condition.
- District court dismissed the citizen suit as barred by the CWA’s "diligent prosecution" bar, treating the consent decree as conclusive proof of EPA diligence and weighing competing factual claims.
- First Circuit held the CWA notice and diligent‑prosecution rules are non‑jurisdictional claim‑processing rules, applied the Rule 12(b)(6) plausibility standard, and concluded the complaint plausibly alleged that EPA was not diligently prosecuting; it vacated the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CWA "diligent prosecution" bar is jurisdictional | Cebollero implicitly argues it is not jurisdictional and that EPA is not diligently prosecuting | PRASA treated the bar as jurisdictional and contended it categorically precludes the suit because of the 2015 EPA action/consent decree | Not jurisdictional; it is a mandatory claims‑processing rule (apply Rule 12(b)(6)) |
| Whether the CWA 60‑day notice requirement is jurisdictional and was met | Cebollero: she provided specific dates/ GPS coordinates and other detail; notice sufficient | PRASA: notice allegedly deficient | Not jurisdictional; notice was functionally sufficient here (no dismissal on this ground) |
| Whether the EPA's 2015 action/consent decree is "analogous" to Cebollero's claims | Cebollero: decree does not specifically target her GPS‑identified discharges | PRASA: consent decree broadly covers Puerto Nuevo WWTP and therefore encompasses her claims | EPA action is analogous — consent decree covers the Puerto Nuevo system including the locations at issue |
| Whether the complaint plausibly alleges lack of diligent prosecution despite the consent decree | Cebollero alleged multiple post‑decree overflows, EPA/PRASA inaction, PRASA admissions of no maintenance plan | PRASA relied on the consent decree and post‑suit steps (e.g., designating Area of Concern) as proof of diligence | Complaint states plausible claim that EPA was not diligently prosecuting at time of filing; ongoing violations + detail suffice at 12(b)(6) stage |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (explains citizen‑suit role and limits under CWA)
- EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200 (1976) (describes CWA objectives and federal enforcement powers)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (statutory rules are jurisdictional only if Congress clearly says so)
- Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) (distinguishing jurisdictional rules from claim‑processing rules)
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (limits of "drive‑by" jurisdictional rulings)
- La. Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737 (5th Cir. 2012) (diligent‑prosecution bar is non‑jurisdictional)
- Grp. Against Smog & Pollution, Inc. v. Shenango Inc., 810 F.3d 116 (3d Cir. 2016) (similar analysis for environmental statutes)
- N. & S. Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991) (discusses analogous government action and deference to agency plan)
- Paolino v. JF Realty, LLC, 710 F.3d 31 (1st Cir. 2013) (functional test for adequacy of CWA notice)
- Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 728 F.3d 868 (9th Cir. 2013) (government action must be analogous to citizen's claim)