NATALIA CEBOLLERO-BERTRAN, Plaintiff, Appellant, v. PUERTO RICO AQUEDUCT AND SEWER AUTHORITY, Defendant, Appellee.
No. 20-1096
United States Court of Appeals For the First Circuit
July 1, 2021
Before Howard, Chief Judge, Lipez and Thompson, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
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.
In response to PRASA‘s motion to dismiss, the district court dismissed the case,
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.”
The EPA may enforce the CWA by issuing an order to comply or by bringing a civil action against an alleged polluter.
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 (1987). Because citizen suits are intended to “supplement rather than to supplant governmental action,” id. at 60, 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[.]”
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
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[.]”
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
II.
PRASA moved to dismiss under both
specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
III.
We must determine the appropriate rule for evaluating appellee‘s motion to dismiss:
A. Distinguishing Jurisdictional and Claims-Processing Rules
The Supreme Court “has endeavored in recent years to ‘bring some discipline’ to the use of the term ‘jurisdictional.‘” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). To that end it has announced a “readily administrable bright line“: a statutory provision is jurisdictional only if Congress has clearly stated that it is. Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006). “[A]bsent such a clear statement . . . ‘courts should treat the restriction as nonjurisdictional in character.‘” Sebelius v. Auburn Reg‘l Med. Ctr., 568 U.S. 145, 153 (2013) (quoting Arbaugh, 546 U.S. at 516). Nonjurisdictional limits on the availability of judicial review may be “claim-processing rules” that serve the purpose of “promot[ing] the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson, 562 U.S. at 435. To decide whether a limitation is a jurisdictional rule or a claim-processing rule, we consider the statutory “condition‘s text, context, and relevant historical treatment.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010).
Historically, some courts have conflated a mandatory claims-processing rule with a jurisdictional rule. See Arbaugh, 546 U.S. at 511 (“On the subject-matter jurisdiction/ingredient-of-claim-for-relief dichotomy, this Court and others have been less than meticulous.“). To avoid this confusion, the Supreme Court has explained, “a rule should not be referred to as jurisdictional unless it governs a court‘s adjudicatory capacity, that is, its subject-matter or personal jurisdiction. Other rules, even if important and mandatory . . . should not be given the jurisdictional brand.” Henderson, 562 U.S. at 435 (citations omitted). The Court has cautioned that cases which refer to a rule as jurisdictional without analysis should not be relied on as statements of law. Arbaugh, 546 U.S. at 511 (“We have described such unrefined dispositions as ‘drive-by jurisdictional rulings’ that should be accorded ‘no precedential effect’ on the question whether the federal court had authority to adjudicate the claim in suit.” (quoting Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 91 (1998))).
Designating a rule as jurisdictional can have important consequences. See Henderson, 562 U.S. at 434 (“Branding a rule as going to a court‘s subject-matter jurisdiction alters the normal operation of our adversarial system.“). Indeed, as we have described, this designation changes the method of review applied to a motion to dismiss. Furthermore, parties may raise the issue of a lack of subject matter jurisdiction at any point during the litigation, and the court is obligated to dismiss a case sua sponte if it detects a jurisdictional defect. Id.
B. The Diligent Prosecution Bar
The primary issue in this appeal, and the ground for dismissal below, is PRASA‘s claim that Cebollero‘s citizen suit is not permitted because of the CWA‘s diligent prosecution bar. See
We are persuaded by the Fifth Circuit‘s reasoning in support of its holding that Congress has not made a clear statement that the diligent prosecution bar is jurisdictional. As the court noted, the statutory text obviously does not include the word “jurisdiction” or any other language indicating an intent that the requirement be jurisdictional. Id. at 748. Further, the provision is located within a subsection titled “Notice,”
This conclusion is further supported by two circuit court decisions holding that identical diligent prosecution bars in other environmental statutes are not jurisdictional. Grp. Against Smog & Pollution, Inc. v. Shenango Inc., 810 F.3d 116, 123-24 (3d Cir. 2016) (analyzing the diligent prosecution bar in the Clean Air Act,
For these reasons, we agree with the district court that the CWA‘s diligent prosecution bar is a mandatory claims-
processing rule that does not implicate subject matter jurisdiction.
C. The Notice Requirement
PRASA also claims that Cebollero did not comply with the CWA‘s requirement that the plaintiff give sixty days’ notice to the EPA and the alleged violator before filing suit. See
held that
We side with the latter circuits and hold that the CWA notice requirement is not jurisdictional for the same reasons that we concluded that the diligent prosecution bar is not jurisdictional. Like the diligent prosecution bar, the statutory text at issue does not refer to jurisdiction, and it is located in the CWA notice subsection, rather than the jurisdiction subsection. There is no Supreme Court precedent holding that similar notice requirements are jurisdictional. See Hallstrom v. Tillamook Cty., 493 U.S. 20, 31 (1989) (stating that a comparable RCRA notice requirement is mandatory but declining to decide whether it is jurisdictional, noting that non-jurisdictional rules can also serve as “mandatory conditions precedent“). The sixty-day notice requirement is mandatory, but it is a procedural rule that does not implicate subject matter jurisdiction. Am. Canoe Ass‘n, Inc., 363 F.3d at 1088; Lockett, 319 F.3d at 682-83; cf. Tapia-Tapia v. Potter, 322 F.3d 742, 745 n.4 (1st Cir. 2003) (stating that the Age Discrimination in Employment Act‘s “procedural requirements, while compulsory, are not jurisdictional“).
IV.
The district court concluded correctly that the
The court stated that Cebollero “d[id] not plead sufficient facts to permit the Court to plausibly find that the EPA‘s prosecution has not been diligent.” In the court‘s view, Cebollero‘s factual allegations of ongoing sewer overflows did not allege a lack of diligent prosecution because “[o]ngoing violation alone does not demonstrate lack of diligence.”
The court appears to have relied on the 2015 Consent Decree as definitive proof of diligent prosecution, regardless of Cebollero‘s allegations to the contrary. The district court correctly summarized the terms of the Consent Decree, stating:
The Consent Decree requires defendant to address issues within the PRASA system systematically over a period of time, and is structured to prevent future violations of the CWA, including sewage overflows. The Consent
Decree also provides for the ongoing addition of “Areas of Concern” for locations that require “programmed and specific actions or the development of a project” to prevent CWA violations.
Given that the Consent Decree was attached to Cebollero‘s complaint and is subject to judicial notice as a public court document, the court was permitted to consider it. But the court should not have assumed that the existence of a Consent Decree from several years earlier was incontrovertible proof that the EPA was diligently prosecuting. This inference, drawn in the defendant‘s favor, not the plaintiff‘s, was improper on a motion to dismiss.
The district court also went on to consider defendant‘s claims that PRASA was taking active steps to comply with the consent decree, stating:
Defendant, on the other hand, alleges that pursuant to the Consent Decree it has engaged in a number of activities, including implementation of a “Sewer System Operation and Maintenance Program,” under which it performs “inspections, observations, cleaning, repairs, and investigations” of the sewer system; a Fats, Oil, and Grease Control Program to prevent blockages, obstructions, and overflows; and camera inspections of sewer lines, including at or near Tenth Street Sewers. Many other steps are required by the Consent Decree, and defendant may be penalized for failure to comply.
These claims appear in PRASA‘s March 1, 2019 letter in response to Cebollero‘s notice of intent to sue. This letter was included as an exhibit in Cebollero‘s complaint and, thus, the district court was permitted to consider the letter as part of its
V.
Despite the district court‘s legal error, we could affirm the decision on any basis available in the record. Williams v. United States, 858 F.3d 708, 714 (1st Cir. 2017). If, taking an appropriate view of the allegations in the complaint, we concluded that Cebollero has not stated a plausible claim that the EPA was not diligent in prosecuting the CWA violations she alleges, the district court‘s opinion could stand.
Cebollero argues that she has plausibly alleged a lack of diligent prosecution despite the existence of a consent decree for two reasons. First, she asserts that the consent decree does not specifically address the concerns in her complaint, and thus the EPA has not “commenced” an action as required by the diligent prosecution bar. Second, she asserts that even if the EPA has commenced an action, it is not diligently prosecuting it.
A. Analogous Action
The CWA‘s diligent prosecution bar is only relevant if a state or federal agency has commenced an action “analogous” to the citizen‘s suit. N. & S. Rivers Watershed Ass‘n, Inc. v. Town of Scituate, 949 F.2d 552, 557 (1st Cir. 1991); see also Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 728 F.3d 868, 874 (9th Cir. 2013) (stating that the government enforcement action must be regarding “the same standard, limitation, or order that is the subject of the citizen suit“). Cebollero argues that the prior EPA action is not analogous because it does not mention the specific GPS coordinates she cites in her complaint.
We disagree. The Consent Decree need not single out the specific locations Cebollero states are the sources of unlawful discharge. The EPA suit is sufficiently analogous if the alleged unlawful discharges are within the ambit of its causes of action. The EPA action and subsequent consent decree apply broadly to PRASA‘s operation of the Puerto Nuevo WWTP, which includes the sewers at the coordinates Cebollero identifies. The Consent Decree requires reporting of overflows anywhere within that WWTP and allows for specific locations to be designated as special areas of concern. Cebollero has not made a plausible allegation that the EPA never commenced an action regarding her concerns.
B. Diligent Prosecution
The CWA‘s diligent prosecution bar emphasizes the primacy of government agencies in enforcing clean water standards. Gwaltney, 484 U.S. at 60 (stating that the “‘the great volume of enforcement actions [are to] be brought by the State,’ and that citizen suits are proper only ‘if the Federal, State, and local agencies fail to exercise their enforcement responsibility.‘” (quoting S. Rep. No. 92-414, p. 64 (1971), reprinted in 2 A Legislative History of the Water Pollution Control Act Amendments of 1972, p. 1482 (1973))). We grant considerable, although not unlimited, “deference to the agency‘s plan of attack.” Scituate, 949 F.2d at 557.
However, the alleged polluter cannot immunize itself from CWA citizen suits by agreeing to a government agency‘s “plan of attack,” such as a consent decree, without actually taking any subsequent remedial steps. As persuasively articulated in a recent court decision evaluating a similar CWA citizen suit, “[i]t is the Court‘s duty to probe the government‘s prosecutorial vigor and events transpiring post-entry of the Consent Decree.” S. River Watershed All., Inc. v. DeKalb Cty., 484 F. Supp. 3d 1353, 1368 (N.D. Ga. 2020). While the entry of the consent decree is certainly relevant, it is not conclusive evidence of diligent prosecution that would categorically bar any citizen from proceeding on a claim relating to the same violations addressed by the consent decree.
The “events transpiring post-entry of the Consent Decree” include whether the alleged polluter has continued to violate the CWA. An ongoing violation cannot, by itself, prove a lack of diligent prosecution sufficient to overcome the
Cebollero‘s suit is based on a theory that the sewage overflows continue unabated because the EPA is not ensuring that PRASA complies with the consent decree. The complaint alleges that on May 27, 2018, September 25, 2018, October 17, 2018, October 23, 2018, November 3, 2018, November 4, 2018, and December 28, 2018 “three sewer manholes located on the GPS coordinates of 18° 23’ 56.22” N and 66° 4’ 1.81” W,” were overflowing with sewage, onto the street and into an adjacent rainwater storm drain that collects the raw sewage and take[s] [it] directly into the Buena Vista Creek” at GPS coordinates 56.04” N, 66° 4’ 3” W. It further alleges that additional sewage discharges occur near Cebollero‘s home at GPS coordinates 18° 23’ 56.04” N, 66° 4’ 3” W as a result of overflow from PRASA sewage manholes in the Centro Médico area. The complaint states, “The violations of sewage discharges are ongoing and have occurred on several occasions after the sixty day letter was sent to the defendant PRASA.” Cebollero‘s 60-day notice letter, which was attached to her complaint, stated that a PRASA engineer had “admitted that the PRASA had no maintenance plan or maintenance activity to correct sewage spills; not in Villa Nevarez, not in all San Juan.” We accept all of these allegations as true and conclude that they state a plausible claim. In these circumstances, the ongoing violations support the allegation of a lack of diligence. Also, we find Cebollero‘s claim plausible because of the level of specificity and detail of her allegations, the severity of the problem she alleges, and the several years that have lapsed since the Consent Decree was ordered.
Our decision in Scituate, 949 F.2d 552, does not compel a different result. That case was decided on cross-motions for summary judgment. There, despite the opportunity to conduct discovery, the plaintiff could not counter the alleged polluter‘s detailed evidence of its efforts to comply with a state enforcement order to correct its violations of the Massachusetts Clean Waters Act, a state law which parallels the CWA.7 Id. at 557. The court found
VI.
As an alternative basis for affirmance, PRASA renews its argument that Cebollero provided insufficient notice. The CWA states that before a plaintiff initiates a citizen suit, she must provide sixty days’ notice to the EPA and the alleged violator.
EPA regulations require that the notice “include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, [and] the date or dates of such violation.”
On December 31, 2018, well over sixty days before filing this suit, Cebollero provided notice of the alleged violations to PRASA and the other relevant parties. The notice letter states precise dates and GPS coordinates of seven instances of the discharge of “raw sewage from sanitary manholes flowing into rain drainage that flows into Buena Vista Creek [the Tenth Street Sewers].” She also claims that raw sewage from the hospitals in the Centro Médico area flows into the Buena Vista Creek at certain GPS coordinates near her home during times of heavy rain. Cebollero was unable to pinpoint the precise origin of the Centro Médico discharges, but states that this source of discharge was previously brought to PRASA‘s attention
These details identify the alleged violations with “reasonable specificity.” Paolino, 710 F.3d at 38 (quoting San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1158 (9th Cir. 2002)). The only information that appears to be missing is the precise origin of the sewage overflow in Centro Médico. As pointed out by the District Court, PRASA, unlike Cebollero, possesses “maps, plans, and investigative tools to trace the source of the raw sewage” and thus should be able to identify the source based on the location of the overflow Cebollero identified. See Paolino, 710 F.3d at 37 (noting legislative history stating that the CWA‘s notice requirement “should not . . . place[] impossible or unnecessary burdens on citizens” (quoting S. Rep. No. 92-414, at 80 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3745)). Like the district court, we see no defect in the notice provided, and the suit need not be dismissed on this ground.
VII.
The judgment of the district court is hereby vacated. Costs to the appellant. So ordered.