NATALIA CEBOLLERO-BERTRÁN v. PUERTO RICO AQUEDUCT AND SEWER AUTHORITY; NOEL I. REYES-MUÑOZ, еt al. v. PUERTO RICO AQUEDUCT AND SEWER AUTHORITY
No. 3:19-cv-01412-JAW; No. 3:19-cv-02131-JAW
UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO
July 30, 2025
In a suit against the public water authority of the commonwealth of Puerto Rico for violations of the federal Clean Water Act and related state law claims, the defendant moves in limine for the court to dismiss the federal claim for lack of standing, and further moves for summary judgment on the ground that
I. BACKGROUND1
A. Procedural History
On December 13, 2019, Noel Reyes-Muñoz and Olga Ramos-Carrasquillo (together, the Plaintiffs) filed a complaint against Puerto Rico Aqueduct and Sewer Authority (PRASA) and the federal Environmental Protection Agency (EPA), alleging a violation of the Clean Water Act (CWA) pursuant to
PRASA moved to dismiss the complaint for lack of jurisdiction and failure to state a claim on February 7, 2020. Def. PRASA‘s Mot. to Dismiss (ECF No. 11). On March 13, 2020, Plaintiffs opposed the motion. Pls.’ Consolidated Opp‘n to Mot. to Dismiss (ECF No. 17). PRASA did not reply. Then, on March 23, 2020, EPA filed a separate motion to dismiss for lack of subject matter jurisdiction. Mot. to Dismiss for Lack of Subject Matter Jurisdiction by Def. EPA (ECF No. 18). Plaintiffs responded to EPA‘s motion on May 8, 2020, again objecting to dismissal, Pls.’ Consolidated Opp‘n to EPA‘s Mot. to Dismiss (ECF No. 23), and EPA replied on June 1, 2020. Reply
PRASA answered the complaint on November 30, 2021. Answer to Compl. (ECF No. 42). As discovery proceeded, the case was referred to United States Magistrate Judge López-Soler on March 6, 2023 for the Initial Scheduling Conference. Order (ECF No. 69).
B. Pending Motions
On May 31, 2024, PRASA filed a motion for summary judgment, asking Magistrate Judge López-Soler to dismiss the complaint in its entirety. Mot. and Mem. in Support of Summ. J. (ECF No. 151) (PRASA‘s Summ. J. Mot.). Plaintiffs opposed the motion for summary judgment on June 19, 2024. Pls.’ Consolidated Opp‘n to Mot. for Summ. J. (ECF No. 158) (Pls.’ Summ. J. Opp‘n). After seeking and being granted leave to file a reply, Req. for Leave to File a Reply to Pls.’ Opp‘n to Summ. J. (ECF No. 163); Order (ECF No. 164), PRASA replied in support of its motion on July 10, 2024. Reply to Pls.’ Opp‘n to PRASA‘s Mot. for Summ. J. (ECF No. 166) (PRASA‘s Summ. J. Reply). In response, Plaintiffs requested and were granted leavе to file a sur-reply, Mot. Seeking Leave to File Sur[-]Reply (ECF No. 171); Order (ECF No. 172), which they filed on July 22, 2024. Pls.’ Sur[-]Reply to PRASA‘s Reply to Pls.’ Consolidated Opp‘n to Mot. for Summ. J. (ECF No. 179) (Pls.’ Summ. J. Sur-reply).
With PRASA‘s motion for summary judgment still pending, the parties engaged in pretrial preparation and settlement discussions. On July 18, 2024, the
C. Status Order and Consolidation with Cebollero-Bertrán v. PRASA
On August 9, 2024, Magistrate Judge López-Soler entered an order of recusal in both the Plaintiffs’ case and another citizen suit pending against PRASA, Cebollero-Bertrán v. PRASA, No. 3:19-cv-01412-JAW. Order of Recusal, No. 3:19-cv-01412-JAW (ECF No. 160); No. 3:19-cv-02131-JAW (ECF No. 184). Accordingly, by order of District of Puerto Rico Chief Judge Raúl Arias-Marxuach, the two cases were randomly reassigned to this Judge that same day. Mem. of the Clerk, No. 3:19-cv-01412-JAW (ECF No. 162); No. 3:19-cv-02131-JAW (ECF No. 188).
After cancelling the jury trial that had been scheduled to commence on August 26, 2024, PRASA‘s Mot. in Lim. at 1, the Court held a videoconference on September 3, 2024 with the counsel of both cases to discuss their status and the potential for
On September 9, 2024, the respective Plaintiffs filed an essentially identical motion in each case in favor of consolidation. Mot. to Req. Consolidation, No. 3:19-cv-01412-JAW (ECF No. 180); No. 3:19-cv-02131-JAW (ECF No. 207). In both cases, PRASA responded in opposition on Septembеr 16, 2024, asking the Court to hold in abeyance the decision of whether to consolidate until after it resolved the pending motions for summary judgment and other pending matters. Def. PRASA‘s Resp. to
D. Oral Argument and Subsequent Filings4
On February 21, 2025, the Court held an oral argument on PRASA‘s respective motions in limine challenging Plaintiffs’ standing and motions for summary judgment, during which the Court identified several deficiencies in the filings and ordered the parties to file responsive briefs within fourteen days and any responses within an additional fourteen days thereafter. Min. Entry (ECF No. 186). In
Separately, on March 7, 2025, PRASA filed a motion addressing the concerns the Court raised at oral argument. PRASA‘s Mot. in Compliance with Order (ECF No. 191) (PRASA‘s Compliance Mot.). Plaintiffs’ counsel responded to PRASA‘s motion on March 25, 2025. Pls.’ Mot. in Resp. to PRASA‘s Mot. in Compliance with Order (ECF No. 200) (Pls.’ Compliance Resp.); see also Mot. Seeking a Short Extension of Time for Cause (ECF No. 197); Order (ECF No. 198); Mot. Seeking an Additional Brief Extension of Time for Cause (ECF No. 199), Order (ECF No. 203).
II. A PRELIMINARY NOTE ON THE COURT‘S APPROACH
Due to the consolidation and the complicated procedural history of each case, the Court takes a moment to explain the approach it has taken for the purposes of this order. First, as the Court has previously recognized, “distinguishable facts underlie each respective case,” Consolidation Order at 13-14; thus, in this order, the Court responds to the PRASA‘s pending motions to dismiss Plaintiffs’ case for lack of
Second, because “[s]tanding is a threshold issue in every federal case,” Me. Springs, LLC v. Nestlé Waters N. Am., Inc., No. 2:14-cv-00321-GZS, 2015 U.S. Dist. LEXIS 33259, at *12 (D. Me. Mar. 18, 2015) (citing Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir. 2006)), after reviewing the factual record for the purposes of the pending motion in limine and motion for summary judgment, the Court begins by considering PRASA‘s challenge to Plaintiffs’ standing to bring this case. Should the Court conclude Plaintiffs have satisfactorily established their legal standing, it will proceed to consider the merits of PRASA‘s argument for summary judgment.
III. FACTUAL BACKGROUND
A. Statement of Material Facts6
PRASA filed a motion for summary judgment within which it included a statement of material and uncontested facts. PRASA‘s Summ. J. Mot., Section III ¶¶
1. The Parties
PRASA, a public corporation statutorily created by 22 L.P.R § 141 et seq., provides water and sewer services for Puerto Rico, including a residential wastewater treatment plant in the Puerto Nuevo area.8 DSMF ¶ 1; PRDSMF ¶ 1.
Around the year 2018, Pedro Colón moved to the Cidra property as Plaintiffs’ tenant and continues to reside there.10 DSMF ¶ 6; PRDSMF ¶ 6. As a tenant, Mr. Colón pays Plaintiffs USD $1,000.00 in monthly rent. PRDSMF ¶ 6. Mr. Colón leaves the Cidra property daily at around noon and returns at night.11 DSMF ¶ 13.
Listing the general requirements covering overflows, spills, and releases from all facilities in the PRASA system, Article XVIII of the 2015 Consent Decree between EPA and PRASA requires PRASA to implement a Spill Response and Cleanup Plan (SRCP) summarizing actions to be taken by PRASA to address Sanitary Sewer Overflows (SSOs), unauthorized releases, and combined sewer overflows from all facilities, including all sewer systems owned and/or operated by PRASA. DSMF ¶ 18; PRDSMF ¶ 18.
The SRCP specifies a standardized course of action to follow in the event of a sewer overflow from a PRASA facility and obligates PRASA to develop procedures for response, cleanup, investigation, and mitigation of sewer overflow events. DSMF ¶ 19; PRDSMF ¶ 19. PRASA has complied with this 2015 Consent Decree obligation by developing standard procedures. DSMF ¶ 19; PRDSMF ¶ 19.
To implement the needed remedial measures contemplated in the 2015 Consent Decree, due to the magnitude of the identified projects and PRASA‘s limited financial resources, a prioritization system was adopted. DSMF ¶ 20; PRDSMF ¶ 20. The 2015 Consent Decree‘s prioritization system was jointly developed by PRASA‘s infrastructure officials and its consultants, with key participation of an independent
The prioritization system has been developed for three project types: water projects, wastewater projects, and sludge treatment systems (STS) projects. Each prioritization system has been developed taking into consideration regulatory and environmental compliance, operational requirements and needs, as well as population served, among other characteristics. DSMF ¶ 21; PRDSMF ¶ 21.
Under the SRCP, the Consent Decree states that PRASA should utilize a form specifically designed by EPA in Appendix N to report every Unauthorized Release and SSO that occurs from a point not authorized by a National Pollutant Discharge Elimination System (NPDES) Permit, and also required PRASA to update the SRCP every year afterwards. PSAMF ¶ 18; DRPSAMF ¶ 18. Section 4.2.2 of the SRCP instructs that after the cause of the sewer overflow is corrected, a post-event investigation is required, and a root cause analysis is needed. PSAMF ¶ 19; DRPSAMF at 11.13
On September 6, 2017, Puerto Rico experienced a Category 5 hurricane, Hurricane Irma. The storm passed through the northern part of the island, and PRASA suffered damage to its water treatment facilities and other structures. DSMF ¶ 4; PRDSMF ¶ 4.
Then, on September 20, 2017, Puerto Rico was hit by Category 4 Hurricane María, which severely impacted all PRASA‘s infrastructure across the island. DSMF ¶ 5; PRDSMF ¶ 5. The flooding and loss of electrical power system resulted in a shutdown of most of the water supply, wastewater treatment plants, and pumping stations. DSMF ¶ 5; PRDSMF ¶ 5. Sewage water contaminated the streets, rivers, and sea, posing an immеdiate threat to the environment, public health, and safety. DSMF ¶ 5; PRDSMF ¶ 5.
4. Consulting Engineer‘s Reports
a. 2018 Consulting Engineer‘s Report
In August of 2018, PRASA published the “Fiscal Year 2018 Consulting Engineer‘s Report for the Puerto Rico Aqueduct and Sewer Authority” (2018 CER) written for Efrain Acosta, then the Executive Director of Finance of PRASA, by Melissa Pomales, P.E., Luis A. Santiago, P.E., and Jose E. Rosich, P.E. from the consulting firm Arcadis Caribe, P.S.C. (Arcadis). PSAMF ¶ 1; DRPSAMF at 11.
The 2018 CER was prepared by Arcadis as required by Section 7.07 of the Master Agreement of Trust (MAT), “to prepare a CER to document the current condition and changes, if any, in PRASA‘s operation and the performance of the water and wastewater systems (the System). Also, PRASA must maintain a continuous
In the 2018 CER, Arcadis stated that it “has been retained by [PRASA] as its Consulting Engineer to assist in the preparation of the [CER] to satisfy the reporting requirements specified in Section 7.07 of the 2012 amended and restated Master Agreement of Trust by and between PRASA and Banco Popular de Puerto Rico as Trustee, as further amended, and the requirements between PRASA, the Government of Puerto Rico and the Puerto Rico Fiscal Agency and Financial Advisory Authority (AAFAF, by its Spanish acronym) as Fiscal agent to PRASA.” PSAMF ¶ 2; DRPSAMF at 11.
In the 2018 CER, Arcadis reported that it assessed the condition of PRASA‘s system through an inspection program of a sample of facilities that included a selection of the major elements of the system. PSAMF ¶ 4; DRPSAMF at 11.
In its conclusions set forth in Section 4.4 of the 2018 CER, Arcadis stated that “[t]he condition of PRASA‘s facilities has continued to deteriorate because the lack of funding has significantly prolonged and adversely impacted the implementation of PRASA‘s [capital improvement program (CIP)] and key initiatives and has reduced [replacement and renewal (R&R)] investments.” PSAMF ¶ 5; DRPSAMF ¶ 5. The facilities were damaged during the 2017 hurricanes, after which Arcadis visited a total of 415 facilities throughout PRASA‘s five Operational Regions between October 2017 and May of 2018.14 DRPSAMF ¶ 5; Pls.’ Summ. J. Sur-reply at 13. The 2018
CER states that, since the hurricanes, most of PRASA‘s facilities have been brought to operational status and are expected to continue to serve their intended operational purpose. DRPSAMF ¶ 5; Pls.’ Summ. J. Sur-reply at 13.
In the 2018 CER, Arcadis further stated that “[o]verall, a declining trend in asset conditions was observed across all asset classes, as a result of the suspension of the CIP since FY2016, reduction of the R&R program due to the fiscal situation and budget limitations, and further exacerbated by the 2017 hurricanes. PRASA must reactivate its CIP and R&R program to improve the performance of its facilities and slow down any further deterioration of equipment and/or life expectancy of these assets.” PSAMF ¶ 6; DRPSAMF ¶ 6. The 2018 CER also references a list of projects for funding to the Federal Emergency Management Agency (FEMA) and their insurance provider to partially fund repairs to PRASA‘s facilities.15 DRPSAMF ¶ 6; Pls.’ Summ. J. Sur-reply at 13.
Section 6.5.3.1 of the 2018 CER provides information about the status of PRASA‘s compliance with the terms and conditions of the 2015 Consent Decree. PSAMF ¶ 7; DRPSAMF at 11. Section 6.5.3.1 indicates PRASA was in noncompliance with the 2015 Consent Decree due to “Force Majeure” impact of Hurricanes Irma and María during September 2017. PSAMF ¶ 8; DRPSAMF ¶ 8. The 2018 CER notes
b. 2019 Consulting Engineer‘s Report
By December 2019, PRASA published the “Fiscal Year 2019 Consulting Engineer‘s Report for the Puerto Rico Aqueduct and Sewer Authority” (2019 CER). written for Mr. Acosta as PRASA‘s then the Executive Director of Finance by Arcadis Engineers Pomales, Santiago, and Rosich. PSAMF ¶ 10; DRPSAMF at 11.
Section 6.5.3.1 of the 2019 CER again provides information about the status of PRASA‘s compliance with the terms and conditions of the 2015 Consent Decree. PSAMF ¶ 11; DRPSAMF at 11. The 2019 CER reports a significant increase in
c. 2020 Consulting Engineer‘s Report
By December 2020, PRASA published the “Fiscal Year 2020 Consulting Engineer‘s Report for the Puerto Rico Aqueduct and Sewer Authority” (2020 CER), written by Arcadis Engineers Pomales, Santiago, and Rosich. PSAMF ¶ 14; DRPSAMF at 11. The 2020 CER does not specifically mention SSOs affecting the Cidra Lake area, nor any capital improvement proposals to correct the problem, though the report doеs not categorize any SSOs by municipality.19 PSAMF ¶ 15; DRPSAMF ¶ 15.
5. Sewage Overflows and Reporting to PRASA
Mr. Colón, Plaintiffs’ tenant at the Cidra property, sporadically called Carmen Rivera González, PRASA‘s compliance specialist for the Cidra area, when there were overflows in the manhole in front of Plaintiffs’ property.20 DSMF ¶ 12. Whenever there was an SSO, Mr. Reyes communicated by email and through personal visits with several EPA staff, mainly Lalitza Lopez and Héctor Ortiz. Because of those visits, Mr. Reyes managed to have a meeting with EPA and PRASA personnel, including Jimmy Solivan and Carmen Rivera, on November 20, 2015. PSAMF ¶ 29; DRPSAMF at 11. Plaintiffs were not present at the Cidra Lake property when the manhole overflow events alleged in the complaint occurred in 2019 and only have videos of the alleged events taken by their tenant.21 DSMF ¶ 16.
PRASA‘s Expert Engineer, José Martí, reported that he did not see any post-remedial investigations of any SSOs in the Cidra area as required by the SRCP, and did not include them in his report to EPA.22 PSAMF ¶ 20; DRPSAMF ¶ 20. Only one case of a SSO in the Villa Guanime Street, where Plaintiffs’ property is located, was reported to EPA as occurring on April 1, 2016. PSAMF ¶ 21; DRPSAMF at 11. PRASA does not conduct root-cause analysis because it asserts “they are not required by law.” PSAMF ¶ 22; DRPSAMF at 11.
In a little more than one year, from 2015 to 2016, there were nine documented SSOs in the Treasure Valley Pump Station, which revealed an infrastructural problem causing frequent power failures; this breakdown of the Treasure Valley Pump Station was one of the main causes of the SSOs in the Villa Guanime area. PSAMF ¶ 23; DRPSAMF at 11.
6. Communications with EPA
On May 8, 2019, Carmen Guerrero Perez, EPA‘s Caribbean Environmental Protection Division Director, answered an email from Mr. Reyes sent on April 9, 2019 about an alleged fish kill in Lake Cidra and sewage contamination as result of alleged discharges from a PRASA sewer line. DSMF ¶ 7; PRDSMF ¶ 7. In her responsive email, Ms. Guerrero explained to Mr. Reyes that PRASA had indicated that the main problem with the sanitary sewer system was that it is affected by infiltration inflows (I/I) during periods of heavy rain, and to that extent, EPA had included in the existing 2015 Consent Decree the evaluation of the sanitary sewer system to define the I/I
Ms. Guerrero further informed Plaintiffs that the 2015 Consent Decree “is currently being modified to include new capital improvements projects needed due to the impacts to water and wastewater infrastructure caused by Hurricanes Irma and María. Notwithstanding, the project to inspect and address the sanitary sewer system that affects Cidra Lake will continue to be part of the [2015 Consent Decree] and PRASA will be required to proceed with it.”24 DSMF ¶ 8; PRDSMF ¶ 8.
Ms. Guerrero concluded her letter by telling Plaintiffs that EPA will continue to work directly with PRASA to ensure that sewage overflows are minimized in Cidra Lake, that the necessary infrastructure projects are completed, and a final solution is achieved. DSMF ¶ 11; PRDSMF ¶ 11.
7. PRASA’s Sewer System and Improvement Projects
The manholes identified in the complaint are associated with PRASA’s Treasure Valley Pump Station, which in turn transmits the collected wastewater to PRASA’s Cayey Wastewater Treatment Plant (Cayey WWTP). The Treasure Valley Pump Station and identified manholes are portions of the Cayey WWTP and are covered by the 2015 Consent Decree. DSMF ¶ 17; PRDSMF ¶ 17.
In the Cidra area, PRASA completed Capital Improvement Project (CIP) 3-21-5020, alternatively called REN-372001, which included the replacement of a sixteen-inch diameter pipeline at the bridge in state road 172, on August 10, 2022. DSMF ¶ 22; PRDSMF ¶ 22. No additional projects were completed related to the sanitary pipes near the areas relevant to this case.26 DSMF ¶ 22; PRDSMF ¶ 22. Two
ATTY. BELAVAL-BRUNO: Treasure Valley.
THE DEPONENT: -- Cidra 2. “¿Qué más? Asi, qué me acuerde. . . ¿Hasa que fecha del 19 --
ATTY. BELAVAL-BRUNO: “And, that I remember -.
ATTY DÍAZ-PEDROZA: “Diciembre”.
ATTY. BELAVAL-BRUNO: -- up to December 2019.
ATTY. DÍAZ-PEDROZA: “Diciembre 20”.
THE DEPONENT: “Diciembre -- diciembre del 19, de telemetría, se hicieron mejoras en telemetría”.
ATTY. BENNAZAR-ZEQUEIRA: Translate that, please.
ATTY. BELAVAL-BRUNO: I have no idea.
MR. RODRIGUEZ-HERNANDEZ: In telemetry.
ATTY. DÍAZ-PEDROZA: Telemetry.
THE DEPONENT: Telemetry, to the telemetry systems.
Solivan Dep. Tr. at 45:11-25. The Court deems this exchange confusing and vague, and thus concludes that it does not plainly support the statement that telemetry improvements were made to the Pump Stations and pipelines at Cidra to monitor and prevent overflows as articulated by PRASA’s proposed facts. Viewing all facts and drawing all reasonable inferences in favor of the nonmoving party, Ophthalmic Surgeons, Ltd., 632 F.3d at 35, the Court declines to admit PRASA’s proposed statement of fact. PRASA’s reply submits additional evidence in support of its statement that telemetry improvements were made. See PRASA’s Summ. J. Reply at 10 (citing id., Attach. 1, Invoice); see also Mot. Submitting Translated Exs., Attach. 1., Invoice (ECF No. 180) (Translated Invoice)). However, the
8. Condition of Lake Cidra
Spot check samples were taken to validate biological contamination with coliforms and fecal matter from SSOs at Lake Cidra and the nearby creek, which were analyzed by the environmental laboratory EQ Lab and tested positive for high presence of Total Coliforms above water quality standards for designated Lake Cidra
Ms. Siberón concluded the evidence substantiates a critical situation wherein PRASA, after the completion of new sewer lines in the Cidra area, has inadvertently aggravated a severe environmental crisis; the SSOs near Plaintiffs’ property inflict not only adverse consequences on the environment and public, they affect the water
Mr. Reyes has observed people fishing in Lake Cidra adjacent to his property.33 DSMF ¶ 15; PRDSMF ¶ 15.
B. A Final Note on the Scope of the Record
Before considering the merits of the pending motions, the Court addresses a unique aspect of the record owed to the complicated procedural history of this case. After a complete summary judgment motion sequence, the Court at oral argument requested clarification and resolution of specific evidentiary issues, such as misnumbered exhibits and evidence not disclosed during discovery. PRASA leverages the Court’s request for clarification as an opportunity to present original arguments and novel evidence in its motion in compliance. Specifically, PRASA continues its challenge to Plaintiffs’ standing by citing newly presented evidence in support of its arguments that Plaintiffs’ allegedly affected property has not depreciated in value and is not connected to the PRASA sewer system. PRASA’s Compliance Mot. at 9-12. PRASA also submits new evidence to support its claim that PRASA had invoked its contractual right to Force Majeure for the period relevant to this case. Id. at 13-16.
Here, PRASA submitted new evidence outside of the standardized summary judgment process, which is specifically designed to permit litigants to clearly accept or dispute assertions of fact and cited evidence such that the Court may rule on a clean record. Submitting novel evidence after this stage, unrelated to the Court’s requested clarifications and identified errors, circumvents this rigorous and structured process. Thus, for the purposes of the pending motion for summary judgment, the Court relies on the record of material facts as articulated by the parties’
IV. STANDING CHALLENGE VIA MOTION IN LIMINE
A. The Parties’ Positions
1. PRASA’s Motion in Limine
PRASA argues Plaintiffs bear the burden of proving their standing to bring the present action pursuant to Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), and challenges Plaintiffs’ ability to demonstrate each element of standing in turn. PRASA’s Mot. in Lim. at 2.
First, PRASA avers an injury in fact must be particularized and concrete, and submits Plaintiffs fail to satisfy these requirements, arguing “[f]or an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id. at 3 (quoting Spokeo, Inc. v. Robbins, 578 U.S. 330, 339 (2016)) (citation corrected). Further, PRASA reports, “a ‘concrete’ injury must be ‘de facto’; that is, it must exist.” Id. (citing De Facto, BLACK’S LAW DICTIONARY (9th ed. 2009)) (citation corrected). Quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), PRASA submits “[t]his requirement applies with special force when a plaintiff files suit to require an executive agency to ‘follow the law,’” reporting “the citizen must prove that he ‘has sustained or is immediately in danger of sustaining a direct injury as a result of that [challenged] action and it is not sufficient that he has merely a general interest common to all members of the public.’” Id. at 4 (quoting Laidlaw, 528 U.S. at 183-84) (emphasis omitted). Applying this standard to the case at bar, PRASA characterizes Plaintiffs’ alleged injury, diminished property
Turning to the element of causation, PRASA points out that “[p]roperty values are influenced by numerous subjective and speculative factors, such as economic downturns, interest rate fluctuations, and broader market conditions.” Id. Due to the difficulty of isolating the impact of pollution and Plaintiffs’ status as non-resident property owners, PRASA argues that Plaintiffs “lack the direct and personal connection to the alleged pollution necessary to establish causation,” specifically that the alleged injury is fairly traceable to PRASA. Id.
Third and finally, PRASA insists injunctive relief and civil penalties pursuant to the CWA fail to redress Plaintiffs’ alleged injury of diminished property value, as either of these remedies “do not guarantee, nor even promise, a restoration of property value to its pre-pollution status.” Id. at 5. Further, PRASA argues, the Consent Decree between PRASA and EPA comprehensively addresses the alleged violations, “including the imposition of stipulated penalties and the implementation of corrective measures.” Id. PRASA maintains that allowing Plaintiffs to pursue an independent action based on the same violations would “undermine the authority of the EPA,” “create unnecessary duplication of efforts,” “lead to inconsistent and potentially conflicting results,” and “awarding civil penalties to the Plaintiff[s] would constitute a windfall and would serve no legitimate public purpose.” Id. at 6.
2. The Plaintiffs’ Opposition
Plaintiffs aver that PRASA does not dispute that they are the owners of the real property “located at the end of the Villa Guanime Street, in the Bayamón ward (barrio) in Cidra,” and that the manholes from which sewage allegedly overflowed are “mere inches away from the shore of Lake Cidra, and the constant unauthorized overflows reach copiously the lake, affecting the water quality of the lake.” Pls.’ Mot. in Lim. Opp’n at 5. They then recount their history of involvement with the Villa Guanime Street property, stating that they purchased the Cidra property in 2014 and, when the former residence deteriorated, “invested approximately $100,000.00 to repair it, and to divide it in[to] three dwellings.” Id. When Mr. Reyes began seeing sewage overflows in 2015, he avers he reported them to EPA beginning in November 2015; EPA subsequently visited the property with PRASA personnel and discussed the sewage discharges with Mr. Reyes. Id. After more sewage overflows, Mr. Reyes again raised the issue to EPA in April 2018 and continued to inform “Héctor Ortiz of the EPA by email, on many occasions” of subsequent discharges. Id. at 6. Mr. Reyes further reports that he spent significant time at the property from 2015 to 2018 conducting renovations, personally witnessed several sewage discharge events during that time, and that both he and his tenant residing on the property informed EPA, PRASA, and municipal authorities. Id. These discharge events continued until and after he notified EPA of his intent to bring a CWA citizen suit on August 19, 2019. Id.
Turning to causation, Plaintiffs submit PRASA’s failure to control the unauthorized sewage discharges demonstrates a fairly traceable connection between their injury and the Defendant’s conduct. Id. Plaintiffs further insist their claim seeks to hold PRASA to the penalties contemplated by the CWA and the Consent Decree, which they submit satisfies the redressability element of standing. Id. at 10.
Finally, Plaintiffs respond to PRASA’s allegation that their failure to reside at the property undermines their standing to bring this case, arguing that Supreme
3. PRASA’s Motion in Compliance and Opposition to Plaintiffs’ Motion to Amend
PRASA supplemented its standing challenge in submissions following oral argument. In its motion in compliance with the Court’s request for clarification at oral argument, in relevant part, PRASA first reiterates its position that “proximity to an alleged discharge is not enough to establish standing,” insisting that Plaintiffs have failed to support their claimed injury of property devaluation. PRASA’s Compliance Mot. at 9. PRASA contends official Property Registry records indicate Mr. Reyes purchased the Cidra property for $97,000 in 2014 and secured a buyer willing to pay $168,000 for the same in 2018. Id. at 9-10 (citing id., Attach. 5, Prop. Reg. (2014 Sale Record); id., Attach. 6, Appraisal Rep. – Special Assignment (2018
PRASA adds that the 2018 appraisal remarks “[t]he property was bought by the current owner as of 6/16/2014, however the amount was not disclosed in the CRIM (Property Tax) data website.” Id. at 10 n.13 (citing 2018 Appraisal Rep. at 2). PRASA avers “[t]his omission is significant because any proper valuation analysis needs to consider the property’s historical price trends,” and that “[a] claim of economic injury based on an appraisal that lacks full market context cannot serve as a sufficient basis to sustain the injury in fact prong of the standing analysis.” Id. at 10-11 (emphasis omitted).
PRASA next turns to the causation element of Plaintiffs’ standing, presenting evidence that the Cidra property “does not have a sewer service registered with PRASA,” id. at 11 (citing id., Attach. 8, Water and Sewer Servs. Certification (Pls.’ Water Bill)) (citation corrected),35 and speculating that “[i]f Reyes is using an alternative, unregulated, or unpermitted method of sewage disposal, then he may be very well contributing to the very pollution, foul odo[]rs and other health threats he blames on PRASA.” Id. at 12 (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 418 (2013)).
Third, PRASA again disputes the redressability element of Plaintiffs’ standing, contending that their requested relief would not redress the alleged harms because the property value has increased significantly over time and because, if other sources contribute to Lake Cidra’s condition, then a court order “against PRASA would not necessarily restore the lake or improve Reyes’[s] property value.” Id.
Turning to the applicable standard of review, PRASA avers that the Court is entitled to independently determine whether PRASA’s and EPA’s аctions in this case satisfy the diligent prosecution bar, rather than deferring to an agency’s interpretation, pursuant to Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Id. at 12. PRASA continues by reasserting its arguments from prior filings that the diligent prosecution bar applies to Plaintiffs’ CWA citizen suit because there was a prior federal consent decree involving compliance obligations, stipulated penalties, and ongoing oversight. Id. at 13-14. Citing portions of the 2019 and 2020 CERs not previously in the record, PRASA contends that it was “protected [] from penalties relating to sanitary sewage overflows” from March 1, 2018 until August 31, 2019, id. at 15 (citing id., Attach. 9, Fiscal Year 2019 [CER] for [PRASA]) (citation corrected), and from March 1, 2019 to August 31, 2020. Id. (citing id., Attach. 10, Fiscal Year 2020 [CER] for [PRASA]) (citation corrected).36 PRASA also argues that
In its opposition to Plaintiffs’ motion to amend the complaint in Cebollero-Bertrán v. PRASA, No. 3:19-cv-01412-JAW, PRASA includes arguments relating to the Reyes case, taking a different tack by arguing that, while Plaintiffs’ counsel filed a motion only to amend the Cebollero complaint, the amended complaint “not only omits Reyes’[s] name and previous case number from the complaint caption but also entirely excludes Reyes from the amended pleading—effectively abandoning their claims.” PRASA’s Mot. to Amend Opp’n at 2. PRASA submits this omission “creates unnecessary uncertainty as to whether Reyes remains a party to this case” and contends that “[b]y failing to include Reyes in the amended complaint, Plaintiffs have voluntarily discarded those claims, warranting their dismissal with prejudice.” Id. PRASA asserts “Reyes never sought to amend his complaint, yet his claims have now vanished from the record without explanation, leaving PRASA to speculate whether he remains a party and whether his abandoned claims could later resurface in an attempt to prolong the case.” Id. at 17-18. “This procedural ambiguity,” the Defendant says, “places PRASA at an unfair position, forcing it to defend against an incoherent set of claims that defy the very purpose of consolidation.” Id. at 18.
4. Plaintiffs’ Response to PRASA’s Motion in Compliance
Plaintiffs’ response to PRASA’s motion in compliance, in relevant part, first argues that the CWA citizen suit provision is not limited to rеsidents, but rather permits lawsuits by “property owners who are directly affected by environmental issues such as contamination” who are able to establish their standing to bring suit.37 Pls.’ Compliance Resp. at 2. Quoting the Supreme Court, Plaintiff avers “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Id. (quoting Laidlaw, 528 U.S. at 181 (in turn quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)) (citation corrected). An injury is concrete even if not physical or economic, Plaintiffs continue, pointing out that “proximity to environmental harm, economic loss, and personal injury establish a direct stake in the outcome.” Id. at 3 (collecting federal cases outside the First Circuit).
Turning to the causation prong of the standing inquiry, Plaintiffs aver that the standard requires only “a reasonable inference that the defendant’s conduct contributed to the harm.” Id. at 6 (citing Massachusetts v. EPA, 549 U.S. 497 (2007)). Here, Plaintiffs assert they personally witnessed the sewage overflows and reported them to the EPA and PRASA. Id. Further, they reassert their argument that the proximity of the overflowing manholes, located “mere inches” from Lake Cidra, provides a reasonable basis to infer causation, and PRASA has presented no alternative explanations that would break the causal chain. Id. (citing Ohio Valley Env’t Coal, 120 F.Supp. 3d 509).
Third, Plaintiffs again argue their requested relief would redress their alleged harm, first directing the Court to Lujan’s holding that a property’s value need not be
Responding to PRASA’s assertions that the Cidra property’s value has not been harmed and that Plaintiffs’ appraiser erred in not considering the property’s prior purchase price history, Plaintiffs argue these challenges are irrelevant to determining their standing to bring a CWA citizen suit. Id. at 11-12. Plaintiffs counter that PRASA “has not produced – not a single shred – of evidence suggesting another cause entirely by the aсts of any other third party” and observe that PRASA has conceded “that the sewer manholes discharging raw sewage to Lake Cidra are under its control” without explaining “why these manholes continue discharging pollutants into the Lake Cidra, unabated and in clear violation of the Consent Decree.” Id. Plaintiffs also submit a declaration from Mr. Reyes stating that “all raw sewage from his property is disposed of through PRASA’s own sanitary system,” though PRASA does not appear to charge him for sewer service. Id. at 13 (citing id., Attach. 2, Decl. in Support of Pls.’ Reply to PRASA’s Mot. in Compliance with Order (Reyes Decl.)).
Finally, Plaintiffs reassert their argument that the diligent prosecution bar does not apply to their case because PRASA has presented no evidence “that it was in compliance with the 2016 Consent Decree by the time the complaints were filed.” Id. at 14.
According to the Supreme Court, an “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal citations, footnote, and quotation marks omitted). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Me. Springs, LLC, 2015 U.S. Dist. LEXIS 33259, at *13 (quoting Lujan, 504 U.S. at 561).
The general prohibition on a litigant‘s raising another person‘s legal rights, the rule barring the adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff‘s complaint fall within the zone interest protected by the law invoked.
P.R. Campers’ Ass‘n v. P.R. Aqueduct & Sewer Auth., 219 F. Supp. 2d 201, 209, 213 (D.P.R. 2002) (quoting Devlin v. Scardelletti, 536 U.S. 1, 7 (2002)).
As the Court noted at oral argument, PRASA raises its standing arguments within a nominal motion in limine and yet asks the Court to dismiss the complaint. See PRASA‘s Mot. in Lim. at 2-6. A motion in limine is an atypical vehicle for such а request; as the Supreme Court has explained, “standing generally is a matter dealt with at the earliest stages of litigation, usually on the pleadings.” Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 115 n.31 (1979). As such, courts often conceive standing challenges as motions to dismiss for lack of subject matter jurisdiction pursuant to
Here, though, PRASA challenges standing via a motion in limine filed after its motion for summary judgment. Compare PRASA‘s Second Summ. J. Mot. (filed May 31, 2024) with PRASA‘s Mot. in Lim. (filed August 2, 2024). The First Circuit has addressed a challenge to standing at this later stage, explaining that “[t]o establish the[] elements of standing at the summary judgment stage of a proceeding, a plaintiff cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true.” Libertad v. Welch, 53 F.3d 428, 436 (1st Cir. 1995) (citing Lujan, 504 U.S. at 561); accord Suárez-Torres v. Panaderia y Resposteria España, Inc., 988 F.3d 542, 550 (1st Cir. 2021)).
C. Discussion
PRASA challenges Plaintiffs’ constitutional standing on each of the requisite elements: injury in fact, causation, and redressability. Following the parties’ lead, the Court considers Plaintiffs’ standing to bring its claim by addressing each element in turn. First, however, the Court addresses PRASA‘s threshold argument of abandonment by virtue of Plaintiffs’ failure to move to amend their complaint.
1. Abandonment of Claims
PRASA argues that by failing to move to amend their complaint, as was done in the consolidated case Cebollero-Bertrán v. PRASA, No. 3:19-cv-01412-JAW, Plaintiffs in this case have functionally abandoned their claims. See PRASA‘s Mot. in Compliance at 9; PRASA‘s Mot. to Amend Opp‘n at 2, 20-21. This argument
First, as PRASA acknowledges, at oral argument the Court “addressed the pleadings of each Plaintiff separately, analyzing the specific deficiencies in each individual complaint.” PRASA‘s Mot. to Amend Opp‘n at 2. However, PRASA continues to say “the Honorable Judge instructed Plaintiffs’ counsel to file an amended complaint to correct those deficiencies.” Id. This recollection of the Court‘s directive as applying to the Reyes Plaintiffs is only partially accurate. In fact, while true that the Court identified multiple deficiencies in both cases and accorded each party an opportunity to file briefing responsive to its concerns, the Court only discussed pleading defects in the complaint in Cebollero-Bertrán v. PRASA, No. 3:19-cv-01412-JAW. Specifically, the Court asked Plaintiffs’ counsel, who is the same in both cases, to clarify whether the plaintiff in Cebollero-Bertrán v. PRASA, No. 3:19-cv-01412-JAW intended to assert the injury of property value diminution, contrasting the language of the complaint in that case with the language of the complaint in Reyes-Muñoz v. PRASA, No. 3:19-cv-02131-JAW in which property diminution is plainly alleged. The Court did not identify any deficiencies with the complaint in Reyes-Muñoz v. PRASA, No. 3:19-cv-02131-JAW, nor did Plaintiffs’ counsel discuss an intention to move to amend in this case.
Second, as the Court specifically explained in its order consolidating the two cases, “[e]ven when consolidated, . . . each case‘s individuality and distinctness will remain.” Consolidation Order at 14 (quoting Norton Lilly Int‘l, 2019 U.S. Dist. LEXIS 240524, at *4); see also id., citing Hall v. Hall, 584 U.S. 59, 70 (2018) (“consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another“) (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933)). The Court made sure to emphasize that the distinct identities of the two cases would be preserved in part because of PRASA‘s own articulated concerns that consolidation would result in the two cases being adjudicated as one. See Def. PRASA‘s Resp. to Pls.’ Request for Consolidation at 2 (ECF No. 208). The Court is thus nonplussed by PRASA‘s present assertion that the motion to amend the complaint in Cebollero-Bertrán v. PRASA, No. 3:19-cv-01412-JAW must incorporate the separate and distinct claims of the Reyes Plaintiffs or else forfeit such claims.
At bottom, despite consolidation for the sake of judicial economy, the two cases remain distinct such that the plaintiff‘s request to amend her complaint in Cebollero-Bertrán v. PRASA, No. 3:19-cv-01412-JAW has no effect on the vitality of the Plaintiffs’ complaint in Reyes-Muñoz v. PRASA, No. 3:19-cv-02131-JAW. The Court disagrees with PRASA‘s claim that there is “uncertainty as to whether Reyes remains a party to this case,” PRASA‘s Mot. to Amend Opp‘n at 2; it is obvious to the Court that the Plaintiffs in Reyes-Muñoz v. PRASA, No. 3:19-cv-02131-JAW have proceeded on their original complaint.
2. Standing
PRASA‘s arguments implicate both the doctrines of prudential and constitutional standing; the Court thus addresses each in turn.
PRASA characterizes diminished property value as an “indirect injury” and submits that such an injury fails to provide an adequate predicate for a CWA citizen suit. PRASA‘s Mot. in Lim. at 4. Plaintiffs disagree, insisting that the CWA‘s definition of “citizen” encompasses their alleged economic harm. Pls.’ Mot. in Lim. Opp‘n at 7-9. This dispute implicates the doctrine of prudential standing by placing at issue whether claims of property value diminution fall within the zone of interests protected by the CWA.
The Court concludes Plaintiffs have the better side of this argument. First, Plaintiffs correctly characterize the statutory definition of citizens entitled to bring suit, which provides “[f]or the purposes of this section the term ‘citizen’ means a person or persons having an interest which is or may be adversely affected.”
Second, the Supreme Court contemplated the scope of the CWA citizen suit provision in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981), explaining that the statute‘s broad definition of citizen “necessarily includes both plaintiffs seeking to enforce these statutes as private attorneys general, whose injuries are ‘noneconomic’ and probably noncompensable, and persons like respondents who assert that they have suffered tangible economic injuries because of statutory violations.” Id. at 16-17 (emphasis supplied). Here,
Based on the plain language of the statute and the Supreme Court‘s directive, the Court thus concludes that Plaintiffs’ alleged economic harm falls well within “the zone interest protected by the law invoked.” P.R. Campers’ Ass‘n, 219 F. Supp. 2d at 213 (quoting Devlin, 536 U.S. at 7).
b. Constitutional Standing
i. Injury in Fact
Turning to the doctrine of constitutional standing, the Court begins by determining whether Plaintiffs have demonstrated, at the summary judgment stage, an injury in fact by virtue of “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560.
As explained in the prior section, Plaintiffs’ asserted injury derives from their allegation that PRASA‘s unauthorized SSOs reduced the value of their real property. Ruling on a CWA citizen suit, the Laidlaw Court held that a plaintiff had established her injury in fact based, in part, on the plaintiff‘s attestation in that case “that her home, which is near [the defendant]‘s facility, had a lower value than similar homes located further from the facility, and that she believed the pollutant discharges accounted for some of the discrepancy.” Laidlaw, 528 U.S. at 182-83. The Laidlaw Court thus concluded the plaintiff had standing based on the “reasonable concerns about the effects of those discharges [which] directly affected [the plaintiff]‘s . . . economic interests.” Laidlaw, 528 U.S. at 184. In Housatonic River Initiative v. EPA, 75 F.4th 248 (1st Cir. 2023), the First Circuit similarly ruled, in the context of a citizen suit brought under the
Here, Plaintiffs allege that, as a consequence of the sewage discharges described in the complaint, they “have suffered an injury in fact, namely, loss of value of their property where the sewage spills occur,” Compl. ¶ 17, and have presented evidence to support their contention. See Pls.’ Reyes Translated Dep. Tr. at 15 (“Q. What you think you‘ve suffered. A. Well, obviously, I haven‘t recouped the money I invested there. It‘s been nine years of this. And throughout those nine years, well, we think the house has decreased because of the situation. Its value was decreasing. Q. You understand? A. Well you must see the expert‘s report. He has the knowledge. Q. Which expert‘s report? A. From the expert appraiser“). In its motion in compliance, PRASA contests the evidence of property diminution, presenting a novel argument that the property increased in value over the relevant period and that
The Court is not persuaded by PRASA‘s argument for several reasons. First, the Court‘s request for clarification on particular issues was not an open invitation to supplement the record with novel arguments and evidence, and the Court is not at all clear that such late-breaking evidence, not previously included in the summary judgment record, should be considered. Even if such evidence is considered, however, the First Circuit has held that, to prove standing at the summary judgment stage, a plaintiff “must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true.” Libertad, 53 F.3d at 436 (citing Lujan, 504 U.S. at 561); accord Suárez-Torres, 988 F.3d at 550. Here, Mr. Reyes stated in his deposition that the Cidra property‘s appraised value diminished based on the sewage discharges. Pls.’ Reyes Translated Dep. Tr. at 15. Further, as cited by PRASA itself, the 2018 appraisal report states “[t]he adverse situation creates foul odors, health, security, and marketability issues, and value loss.” 2018 Appraisal Rep. at 2 (emphasis supplied). PRASA is entitled to contest the reliability of this evidence at trial, but for the purposes of determining standing at the summary judgment stage, as directed by the First Circuit, such evidence “will be taken as true.” Libertad, 53 F.3d at 436 (citing Lujan, 504 U.S. at 561).
At bottom, tаking this evidence as true for the purposes of the present standing challenge, the Court concludes that the Plaintiffs’ alleged injury of diminished property value satisfies the injury in fact element for standing.
Turning to the element of causation, PRASA argues numerous factors affect property values, such that Plaintiffs cannot establish that any diminution in property value occurred as a result of any alleged pollution by PRASA. PRASA‘s Mot. in Lim. at 4. Plaintiffs reject this argument, insisting that PRASA‘s failure to control the sewage overflows affected Lake Cidra and, in so doing, is fairly traceable to their injuries. Pls.’ Mot. in Lim. Opp‘n at 9.
Here, Plaintiffs’ complaint alleges their “property is adjacent to the sewage spills and the lake and is immediately affected by the dumping of raw sewage into the land and the lake.” Compl. ¶ 22. In support, Mr. Reyes further testified in his deposition that an expert appraiser‘s report indicates the diminution in value of the property over his nine-year ownership, despite the physical improvements made to the property. Pls.’ Reyes Translated Dep. Tr. at 15-16.
The Court concludes Plaintiffs have pleaded sufficient facts for it to reasonably infer that their economic harm is fairly traceable to the contamination of Lake Cidra caused by the unauthorized pollution discharged by PRASA. Plaintiffs have presented evidence supporting their allegations of raw sewage overflowing from manholes next to their residential property and into a lake adjacent to the property. See Pls.’ Reyes Translated Dep. Tr. at 12-13 (“Q. What did you see? A. Well, a great deal of wastewater flowing out of the manholes. A great deal . . ..“); Siberón Dep. Tr. and Exs. at 215-16 (describing location of sewage overflows and affected residential property), 224-25 (“The SSOs of reference are releasing untreated sewage laden with fecal contaminants into the manholes surrounding land, asphalt, creeks, and
Following oral argument, PRASA submitted additional arguments and evidence that the Cidra property does not have sewer service, speculating that Mr. Reyes may himself be the cause of any contamination in Lake Cidra. See PRASA‘s Mot. in Compliance at 11-12 (“This fact raises critical questions: How is sewage from Reyes‘[s] Cidra Property disposed of? Why wasn‘t Reyes upfront with this information? If Reyes is using an alternative, unregulated, or unpermitted method of sewage disрosal, then he may be very well contributing to the very pollution, foul odo[]rs and other health threats he blames on PRASA“). The Court is not persuaded. First, PRASA moved for summary judgment on a robust and well-developed record, yet includes this argument and evidence for the first time in response to the Court‘s request for clarification on separate and discrete issues. Second, as above, in a challenge to standing at the summary judgment stage, the Court takes as true all specific facts “set forth by affidavit or other evidence.” Libertad, 53 F.3d at 436 (citing Lujan, 504 U.S. at 561); accord Suárez-Torres, 988 F.3d at 550. As explained, Plaintiffs have presented evidentiary support for their assertions that the sewage overflows contaminated Lake Cidra, which in turn devalued their property.
Third, even if PRASA‘s new evidence regarding sewer service were accepted, PRASA is certainly correct that the factors other than sewage may affect a property‘s value, but it another matter entirely to say that where raw sewage is being periodically released near a property, these other factors would be sufficient to deny
For these reasons, the Court concludes that, at this stage, Plaintiffs have adequately pleaded a fairly traceable nexus between their alleged injuries and the conduct of the Defendant.
iii. Redressability
Finally, PRASA argues the requested relief would fail to redress Plaintiffs’ alleged injuries because injunctive relief and civil penalties “would not guarantee, or even promise, a restoration of property value to its pre-pollution status,” and further would duplicate or conflict with the terms of the Consent Decree. PRASA‘s Mot. in Lim. at 5-6. It asserts that “[t]he CWA is designed to protect the environment, not to serve as a mechanism for economic restitution.” Id. Plaintiffs respond that their requested relief of imposing the penalties contemplated by the CWA and the Consent Decree would serve to mitigate their harm. Pls.’ Mot. in Lim. Opp‘n at 10.
The Court concludes that Plaintiffs’ requested relief satisfies thе element of redressability for two main reasons. First, as the Court previously wrote in this case, “while a consent decree represents a step in the right direction, it is not a ‘cure-all.‘”
Second, PRASA submits that Plaintiffs have not demonstrated that their requested remedies would restore the property to its pre-pollution value. PRASA‘s Mot. in Lim. at 5. However, this argument mistakes the standard for redressability. The First Circuit has written that a plaintiff “need not demonstrate that its entire injury will be redressed by a favorable judgment, [but] it must show that the court can fashion a remedy that will at least lessen its injury.” In re Fin. Oversight & Mgmt. Bd. for P.R., 110 F.4th 295, 319 (1st Cir. 2024) (quoting Dantzler, Inc. v. Empresas Berríos Inventory & Operations, Inc., 958 F.3d 38, 49 (1st Cir. 2020)). Plaintiffs have sufficiently alleged facts allowing the Court to conclude that the
Based on the foregoing, the Court concludes Plaintiffs satisfy the three elements of constitutional standing and declines to grant PRASA‘s requested dismissal on this basis. Having dismissed PRASA‘s standing challenge, the Court proceeds to consider the merits of PRASA‘s motion for summary judgment.
V. MOTION FOR SUMMARY JUDGMENT
A. The Parties’ Positions
1. PRASA‘s Motion for Summary Judgment
PRASA submits it is entitled to judgment as a matter of law pursuant to
PRASA argues the diligent prosecution requires, as its name suggests, “only diligence,” but “does not require government prosecution to be far reaching or zealous.” Id. (quoting Karr v. Hefner, 475 F.3d 1192, 1197 (10th Cir. 2007)). Returning to the First Circuit‘s decision in Cebollero-Bertrán, PRASA contends ongoing violations alone are not dispositive evidence of non-diligent prosecution, nor is EPA required to take specific actions at a particular pace.39 Id. (citing Cebollero-
Specifically addressing the discharges into Lake Cidra, PRASA insists it has taken significant steps to address this specific problem and prevent recurrences. Id. at 15. PRASA directs the Court to its completed replacement of a sixteen-inch pipeline and upgrade of the Treasure Valley Pump Station generator, after which overflow reports declined, as well as its planned improvement to the SSPS in Ciudad Jardín. Id. (citing DSMF ¶¶ 22, 23, 25). PRASA argues these projects demonstrate the efficacy of its actions and commitment to solving the Lake Cidra discharge issue
PRASA also asks the Court to dismiss Plaintiffs’ damages claim, positing that the CWA only permits a citizen suit for injunctive relief and civil penalties, not personal damages. Id. at 16-19 (citing
2. Plaintiffs’ Opposition
Plaintiffs reject PRASA‘s claim that their citizen suit is barred by EPA‘s alleged diligent prosecution of the 2015 Consent Decree, emphasizing that the First Circuit required evidence of corrective actions prior to the filing of the complaint for the diligent prosecution bar to apply. Pls.’ Summ. J. Opp‘n at 29-30 (quoting Cebollero-Bertrán, 4 F.4th at 76 n.8) (to be barred by diligent prosecution, “the EPA must be diligently prosecuting at the time of the filing of the citizen suit“). Plaintiffs add that the defendant-polluter must prove that corrective actions taken in response to the government action comply with the enforcement action; “compliance ‘means an end to violations, not merely a reduction in the number or size of them. That is why courts have considered whether the alleged diligent prosecution achieves a permanent solution or whether violations will continue notwithstanding the polluter‘s settlement with the government.‘” Id. at 31 (quoting Friends of Milwaukee‘s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 763-64 (7th Cir. 2004)).
Turning to the present case, Plaintiffs argue PRASA‘s statements of fact demonstrate “(1) that it was not in compliance with the [2015 Consent Decree] by the time this Complaint was filed, and (2) none of the alleged corrective actions supposedly taken afterwards are ending the unauthorized SSOs near the Plaintiffs’
Responding to PRASA‘s factual allegations, Plaintiffs contend that PRASA presents “no statistical evidence as of the reduction of the unauthorized SSOs near the Plaintiffs’ property,” nor did it produce evidence of “[t]he supposed ‘water analysis’ that ‘indicates no contamination.‘” Id. at 33. They compare this to the test results of the sampling done by Ms. Siberón identifying coliforms and fecal matter and thus contradicting the purported “effectiveness” of PRASA‘s alleged actions, which Plaintiffs posit were “never demonstrated for the record.” Id.
Plaintiffs also respond to PRASA‘s argument that their request for damages should be dismissed, insisting that their damages claims “are not based upon
After submitting that this Court has supplemental jurisdiction over these state law claims as “part of the same case or controversy as [the] federal claims,” id. at 34-36, Plaintiffs direct the Court to the so-called CWA saving clause,
3. PRASA‘s Reply
PRASA contends that two demonstrations are required for the diligent prosecution bar on a CWA citizen suit to apply: “(1) [w]hether EPA‘s suit is sufficiently analogous if the alleged unlawful discharges fall within the scope of its claims. . .. [and] (2) [t]hat EPA is diligently pursuing PRASA‘s compliance with 2015 [Consent Decree].” PRASA‘s Summ. J. Reply at 17. On the first factor, PRASA submits all concerned parties—PRASA, EPA, and the Plaintiffs—agree that the discharges alleged in the complaint fall within the scope of the 2015 Consent Decree
PRASA reiterates that the diligent prosecution bar does not require EPA to take specific actions or a particular pace, id. (citing Cebollero-Bertrán, 4 F.4th at 75 (in turn citing Scituate, 949 F.2d at 558)), and reminds the Court that Plaintiffs admit that “PRASA has a pending project to handle the SSOs affecting the area in which their property is located.” Id. at 17-18. While PRASA concеdes a budget shortfall is causing a delay, it avers it “is working hard to obtain the necessary funding to implement the project.” Id. at 18. PRASA adds that the 2015 Consent Decree includes a prioritization system for PRASA to apply its limited resources to the most critical projects first, and states it “has applied several control measures that have reduced the frequency and duration of the SSO[]s and will continue to work to put an end to the situation.” Id. PRASA concludes by again asking the Court to grant its motion for summary judgment. Id.
4. Plaintiffs’ Sur-reply
Plaintiffs direct the Court to its own order denying PRASA‘s previous motion to dismiss, in which it wrote:
Pls.’ Summ. J. Sur-reply at 19 (quoting Omnibus Op. and Order at 16 (in turn citing Cebollero-Bertrán, 4 F.4th at 74-75)). Thus, Plaintiffs say, PRASA must “provide evidence of comparable corrective actions being taken or that the EPA must be diligently prosecuting at the time of the filing of the citizen suit in order to trigger the diligent prosecution bar.” Id. (citing Cebollero-Bertrán, 4 F.4th at 76 n.8).
In the case at bar, Plaintiffs say, the evidence shows “that by the time that the overflows were happening, and by the time the Complaint was filed, PRASA was not in compliance with the provisions of the [2015] Consent Decree, in particular, with the provisions contained in the [SRCP].” Id. at 20. Plaintiffs contend that the evidence provided by PRASA shows only corrective actions taken after the complaint was filed or lacking sufficient information to determine compliance with the 2015 Consent Decree and SRCP, and therefore reiterate their request for the Court to deny PRASA‘s motion for summary judgment. Id.
B. Discussion
1. Diligent Prosecution Bar40
PRASA contends the 2015 Consent Decree and subsequently undertaken infrastructure projects demonstrate EPA‘s diligent prosecution of any alleged
Both parties agree the First Circuit‘s analysis of the diligent prosecution bar in Cebollero-Bertrán, 4 F.4th 63, governs this case. In that decision, the First Circuit framed the inquiry by explaining that courts “grant considerable, although not unlimited, ‘deference to the agency‘s plan of attack.‘” Cebollero-Bertrán, 4 F.4th at 74 (quoting Scituate, 949 F.2d at 557). Continuing, the First Circuit noted that “the alleged polluter cаnnot 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.” Id. Regarding consent decrees, the First Circuit explained “[w]hile the entry of the consent decree is certainly relevant, it is not conclusive evidence of diligent prosecution.” Id. at 75. Thus, the First Circuit wrote, “[i]t is the Court‘s duty to probe the government‘s prosecutorial vigor and
The Cebollero-Bertrán Court also referred at length to its prior decision in North & South Rivers Watershed Association v. Scituate, 949 F.2d 552, which affirmed a district court‘s summary judgment order concluding the enforcement action of the Massachusetts Department of Environmental Protection41 barred a citizen suit based on “detailed evidence of its efforts to comply with a state enforcement order to correct its violations.” Id. at 75-76 (citing Scituate, 949 F.2d at 557). In Cebollero-Bertrán, the First Circuit noted that “[i]f PRASA has comparable evidence of subsequent corrective actions in this case, which will prove diligent prosecution despite the ongoing violations, it can provide that evidence during properly conducted summary judgment proceedings.” Id. at 76. However, it noted the critical timing for such evidence: “EPA must be diligently prosecuting at the time
Given the relevance of the First Circuit‘s analysis in Scituate, 949 F.2d 552, this Court reviews that decision in closer detail. After emphasizing that “[w]here an agency has specifically addressed the concerns of an analogous citizen‘s suit, deference to the agency‘s plan of attack should be particularly favored,” the Scituate Court noted that “[t]he record shows the town has complied with a variety of mandatory and ongoing tasks since the Order was issued in 1987.” Scituate, 949 F.2d at 557. The Scituate Court further explained:
these tasks include: (1) the submission of monthly, weekly and daily test results from groundwater monitoring wells, effluent tanks and discharges to the tidal ditch; (2) the expenditure of close to one million dollars to plan the new treatment facility; and (3) enforcement of a sewer hookup moratorium. Further, the Order specifically leaves open the possibility of imposing penalties upon the town. Scituate is well into the process of diligently complying with Administrative Order Number 698.
Id. Continuing, the Scituate Court explained that the Government “is already acting with diligence to remedy the violations Appellants seek to enjoin.” Id. at 558. In that case, “Appellants argue[d] their claim for injunctive relief should stand because the violations have been ongoing since the Order issued.” Id. “Yet,” the Scituate Court noted, “violations may continue despite everything reasonably possible being done by the State and Appellee to correct them.” Id. The Scituate Court emphasized that “[a]t oral arguments, Appellants conceded their suit was brought primarily to ‘spur action’ on the part of the [Government] and Appellee.” Id. The Scituate Court concluded “action is already being taken by those parties. Merely because the State
In the present case, Plaintiffs do not dispute that the 2015 Consent Decree includes “the evaluation of the sanitary sewer system to define the I/I problems followed by the identification of necessary corrective measures and their implementation,” including “the sanitary sewer system that affects Cidra Lake.” DSMF ¶¶ 7, 8; PRDSMF ¶¶ 7, 8. Thus, the relevant inquiry at the summary judgment stage becomes whether PRASA has presented evidence that it has “actually tak[en] any subsequent remedial steps” pursuant to the terms of that agreement by the time Plaintiffs filed their complaint on December 13, 2019, such that “there [is] no material dispute as to diligent prosecution based on both the state order and the alleged polluter‘s ‘subsequent action.‘” See Cebollero-Bertrán, 4 F.4th at 74, 76 & n.8; see also Compl. As instructed by the First Circuit, this Court reviews the record for “comparable evidence of subsequent corrective actions,” Cebollero-Bertrán, 4 F.4th at 74, that “specifically address[] the concerns of [the] analogous citizen‘s suit,” as presented in Scituate, 949 F.2d at 557.
On this issue, PRASA presents evidence that it completed project CIP 3-21-5020, on August 10, 2022, which included the replacement of a sixteen-inch diameter pipeline at the bridge in state road 172. DSMF ¶ 22. The interrogatory response cited in support of this statement does not provide further information on when CIP 3-21-5020 began. PRASA‘s Interrogs. Answer. PRASA additionally submits evidence of two other projects, CIP 3-21-5021, to improve the Ciudad Jardín SSPS, and CIP 0-
PRASA presents further evidence, via a letter from EPA to Mr. Reyes on May 8, 2019, that the 2015 Consent Decree was being modified to account for the damage caused by Hurricanes Irma and María, and that EPA will continue to work with PRASA to address sewage overflows until а final solution is achieved. DSMF ¶ 11. EPA sent this letter on May 8, 2019. EPA‘s E-mail to Pls. at 1.
PRASA also submits that it “requested Force Majeure protection for ongoing and upcoming work and deadlines and stipulated penalties under the 2015 [] Consent Decree.” DRPSAMF ¶ 6 (quoting 2018 CER Excerpts). The 2018 CER does not indicate the scope of the force majeure invocation on the Lake Cidra area and PRASA agrees neither the 2019 CER nor 2020 CER specifically mention any SSOs affecting the Lake Cidra area, nor any capital improvement proposals to correct the problem. PSAMF ¶ 12; DRPSAMF at 11. Further, the 2018 CER, published in August 2018, notes “[m]ost of the facilities have since been brought to operational status and are expected to continue to serve their intended operational purpose.” DRPSAMF ¶ 5. It is thus unclear whether the violations alleged in the complaint, which span from February to August of 2019, can be fairly attributed to the effects of the 2017 hurricanes or are protected from enforcement of the 2015 Consent Decree under the Force Majeure provision.
First, for the purposes of the present summary judgment motion, the record reflects PRASA reported only one SSO, which occurred on April 1, 2016, to EPA, despite nine documented SSOs occurring in the Treasure Valley Pump Station from 2015 to 2016. PSAMF ¶¶ 21, 23; DRPSAMF at 11. Under the terms of the SRCP, the mandatory plan submitted to EPA pursuant to Section XVIII of the 2015 Consent Decree and attached as an exhibit to the summary judgment motion by PRASA itself, PRASA “is required to notify regulatory agencies within 24 hours of identifying an overflow event.” PRASA‘s Summ. J. Mot., Attach. 9, Spill Response and Cleanup Plan (SRCP) Submission at 1, 18 (SRCP); see also PRASA‘s Summ. J. Mot., Attach. 8, 2015 Consent Decree Excerpt: Section XVIII Spill Resp. and Cleanup Plan at 8-9 (2015 Consent Decree Excerpt) (“PRASA has implemented and shall continue to implement a Spill Response and Cleanup Plan (‘SRCP‘) that specifies actions to be taken by PRASA to address SSOs, Unauthorized Releases, and CSOs from all Facilities” and “Under the SRCP, PRASA shall utilize the form attached . . . to report every Unauthorized Release and SSO that occurs from a point not authorized by a NPDES permit. Reporting . . . shall begin no later than October 31, 2015“); PSAMF ¶ 19. Thus, PRASA‘s failure to report the other eight instances of documented SSOs within twenty-four hours would constitute violations of the 2015 Consent Decree and corresponding provisions of the SRCP.
Third, the record reflects PRASA did not conduct root-cause analysis of the alleged SSOs because, in the words of its interrogatory response, “they are not required by law.” PSAMF ¶ 22 (quoting Siberón Dep. Tr. and Exs. at 43); DRPSAMF at 11. This apparently intentional inaction is not supported by the facial terms of the SRCP, which states “[a]fter the cause of the sewer overflow is corrected, a post-event investigation will determine the root cause of the overflow as well as measures that could be implemented to prevent it from occurring in the future” and specifically lists, by subsection, “[p]otential preventative measures based on the root cause identified,” which include “debris/sediment introduced by external source,” “roots“, “fats, oils, and grease,” and “collapsed pipe (includes sag and offset failures).” SRCP at 21-22 (capitalization altered); PSAMF ¶ 19.
Based on an excerpt of the 2015 Consent Decree provided by PRASA that includes the Table of Contents, the Court understands Section XXVII of the Consent Decree sets forth the force majeure provision, 2015 Consent Decree Excerpt at 4; however, PRASA did not provide this provision to the Court on the summary judgment record. Further, while PRASA attaches to its reply a declaration by EPA official Mr. Géliga in support of the modification to the 2015 Consent Decree, the declaration was made on January 23, 2024, over four years after Plaintiffs filed their
The First Circuit in Cebollero-Bertrán wrote that PRASA could prove diligent prosecution, despite ongoing violations, if it presented “comparable evidence of subsequent corrective actions” to the evidence presented in Scituate, 949 F.2d 552. In Scituate, “[t]he record shows the town has complied with a variety of mandatory and ongoing tasks since the [Administrative] Order was issued in 1987,” which included “(1) the submission of monthly, weekly and daily test results from groundwater monitoring wells, effluent tanks and discharges to the tidal ditch; (2) the expenditure of close to one million dollars to plan the new treatment facility; and (3) enforcement of a sewer hookup moratorium.” Scituate, 949 F.2d at 557. Based on these efforts, which the Scituate Court described as “everything reasonably possible being done,” the Scituate Court found diligent prosecution despite ongoing violations. Id. at 558. In the present case, however, PRASA has failed to present comparable evidence of taking all “reasonably possible” corrective actions since entering into the 2015 Consent Decree and prior to the filing of the complaint. PRASA‘s protestations regarding budgetary constraints and the effect of hurricanes further fail to convince the Court, as there remains a genuine factual dispute as to whether such obstacles obviate PRASA‘s obligation to, inter alia, report unauthorized SSOs to EPA and to undergo root cause analysis of the same.
The Scituate Court also emphasized that the Administrative Order “specifically leaves open the possibility of imposing penalties upon the town.” Id.
Finally, in the Court‘s view, important legal questions remain unaddressed by the parties and unresolved by the present motion. Specifically, the parties have not presented argument as to the geographic scope of the diligent prosecution bar, which is critical in this case where PRASA‘s systems cover the entire island of Puerto Rico. The parties agree that the 2015 Consent Decree provides for a prioritization system for remedial projects, DSMF ¶ 20; PRDSMF ¶ 20, but it is not at all clear from the record that PRASA‘s expenditures on infrastructure projects in, for example, Cabo Rojo on the other side of the island, would be sufficient to bar Plaintiffs’ citizen suit for alleged violations in Cidra. The Scituate Court wrote that the diligent prosecution bar applies “[w]here an agency has specifically addressed the concerns of an analogous citizen‘s suit.” Scituate, 949 F.2d at 557. Here, the only infrastructure projects in the Cidra area specified by PRASA were taken after Plaintiffs’ complaint was filed. DSMF ¶¶ 17, 22-23, 25; PRDSMF ¶¶ 17, 22-23, 25. Further, while the prioritization system governs infrastructure projects, the Court has received no evidence to suggest the prioritization system justifies PRASA‘s noncompliance with
As previously described, the First Circuit clearly held that “EPA must be diligently prosecuting at the time of the filing of the citizen suit in order to trigger the diligent prosecution bar.” Cebollero-Bertrán, 4 F.4th at 76 n.8. It may well be that PRASA has undertaken timely expenditures and infrastructural improvement projects addressing the violations alleged by Plaintiffs, as would be sufficient to justify an application of the diligent prosecution bar. However, to be granted summary judgment, it is the movant‘s burden to show “the movant is entitled to judgment as a matter of law.”
2. Damages Claims
PRASA argues Plaintiffs’ damages claim should be dismissed, characterizing this claim as brought pursuant to the CWA and asserting that statute does not provide for such relief. PRASA‘s Summ. J. Reply at 16-17. Plaintiffs dispute this
PRASA is correct that the CWA citizen suit provision does not provide for personal damages claims. See, e.g., Nat‘l Sea Clammers Ass‘n, 453 U.S. at 18 n.27 (noting the CWA “expressly excludes damages actions” (quoting 116 Cong. Rec. 33102 (1970) (statement of Sen. Muskie))). However, the CWA saving clause,
In this action, Plaintiffs bring claims for nuisance and violations of their riparian rights under the state laws of Puerto Rico. See Compl. ¶¶ 37-41; Pls.’ Summ. J. Opp‘n at 34. PRASA makes no argument that the diligent prosecution bar should apply to state claims, nor does it challenge the supplemental jurisdiction of this Court
The Court briefly addresses SURCCO v. PRASA, 157 F. Supp. 2d 160 (2001), as raised and discussed by the parties. Plaintiffs incorrectly assert that “in SURCCO, there were no other allegations besides the Section 505 of the CWA, nor claims under the applicable Commonwealth environmental or nuisance statutes.” Id. at 38. This is contradicted by the plain terms of that opinion, which notes SURCCO brought claims “under the provisions of the Water Pollution Prevention Act (also known as the [CWA]),
Nonetheless, the SURCCO Court did not address damages for the state law claims; ruling on PRASA‘s motion to dismiss, the SURCCO Court first dismissed the CWA claims рursuant to the diligent prosecution bar. Id. at 170. It then noted “[the] dismissal of Plaintiffs’ federal claim leaves only Plaintiffs’ claim under Puerto Rico law” and “decline[d] to exercise supplemental jurisdiction over Plaintiffs’ Commonwealth claims against Defendant,” dismissing the state law claims without prejudice based on the early stage of the suit at the time of dismissal of the federal claim. Id.
The holding of the SURCCO Court is inapposite to the present case because, as previously explained, the Court declines to dismiss Plaintiffs’ federal claim under the CWA. Further, the SURCCO Court offered no opinion on the propriety of
VI. CONCLUSION
The Court DISMISSES Puerto Rico Aqueduct & Sewer Authority Motion in Limine (ECF No. 185) in Reyes-Muñoz v. Puerto Rico Aqueduct & Sewer Authority, No. 3:19-cv-02131-JAW.
The Court further DENIES Puerto Rico Aqueduct & Sewer Authority Motion for Summary Judgment (ECF No. 151) in Reyes-Muñoz v. Puerto Rico Aqueduct & Sewer Authority, No. 3:19-cv-02131-JAW.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 30th day of July, 2025