United States Court of Appeals For the First Circuit
No. 20-1096
NATALIA CEBOLLERO-BERTRAN,
Plaintiff, Appellant,
v.
PUERTO RICO AQUEDUCT AND SEWER AUTHORITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge, Lipez and Thompson, Circuit Judges.
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.
July 1, 2021 LIPEZ, Circuit Judge. Natalia Cebollero-Bertran filed
this action against the Puerto Rico Aqueduct and Sewer Authority
("PRASA") under the citizen enforcement provision of the Federal
Water Pollution Prevention and Control Act, also known as the Clean
Water Act ("CWA"), 33 U.S.C. § 1365(a). Cebollero claims that
PRASA is violating the CWA by discharging raw sewage, which flows
into a creek near her home in San Juan.
In response to PRASA's motion to dismiss, the district
court dismissed the case, finding that a citizen suit was barred
because the United States Environmental Protection Agency ("EPA")
had previously filed a suit against PRASA addressing the same
violations, and was diligently prosecuting the case pursuant to a
2015 consent decree. In coming to that conclusion, the court
failed to follow the correct standard for evaluating a motion to
dismiss. Applying the standard applicable to a motion to dismiss,
we find that Cebollero's complaint states a plausible claim that
the EPA is not diligently prosecuting these violations. Thus, we
vacate the district court's dismissal.
I.
A. The Clean Water Act
In 1972, Congress enacted the CWA with the goal of
"restor[ing] and maintain[ing] the chemical, physical, and
biological integrity of the Nation's waters." 33 U.S.C. § 1251(a);
see also EPA v. California ex rel. State Water Res. Control Bd.,
- 2 - 426 U.S. 200, 203-04 (1976). The Act gave the federal government
more robust tools to control water pollution. It authorizes the
EPA to set "effluent limitations," which restrict the quantities,
rates, and concentrations of pollutants that a point source1 may
discharge into waterways. 33 U.S.C. §§ 1311, 1314. These limits
are enforced through the National Pollutant Discharge Elimination
System ("NPDES"), which makes it unlawful to discharge a pollutant
without obtaining a permit and complying with its terms. Id.
§ 1342(b).
The EPA may enforce the CWA by issuing an order to comply
or by bringing a civil action against an alleged polluter. Id.
§ 1319(a). Subject to certain limitations, a private citizen may
also seek to enforce the CWA by filing a civil action. Id. § 1365.
Citizens are required to give notice to relevant parties 60 days
before filing suit. Id. § 1365(b)(1)(A).
CWA citizen suits have the "central purpose of
permitting citizens to abate pollution when the government cannot
or will not command compliance." Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987). Because
citizen suits are intended to "supplement rather than to supplant
governmental action," id. at 60, the CWA does not permit a private
1 A "point source" is "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged." 33 U.S.C. § 1362(14).
- 3 - individual to bring a suit on her own behalf if the EPA "has
commenced and is diligently prosecuting a civil or criminal action
in a court of the United States[.]" 33 U.S.C. § 1365(b)(1)(B).
B. The 2015 EPA Suit
On September 15, 2015, the EPA filed a complaint against
PRASA in the U.S. District Court for the District of Puerto Rico,
seeking injunctive relief and civil penalties for violations of
the CWA.2 PRASA operates sanitary sewage systems in Puerto Rico,
including sewers that flow into the Buena Vista Creek and Puerto
Nuevo River.
The 2015 EPA complaint alleged CWA violations by PRASA
that included: exceeding effluent limits at certain wastewater
treatment plants ("WWTPs") and water treatment plants ("WTPs"),
overflows from certain WWTP pump stations and the wastewater
collection system of the Puerto Nuevo Regional WWTP, and a failure
to properly operate and maintain the WWTPs in accordance with its
NPDES permits. These allegations were based on numerous
inspections of the PRASA wastewater treatment and collection
system, which found instances of improper operation and
2 We draw our summary of facts primarily from the appellant's complaint because we assume the truth of her allegations on a motion to dismiss. Doe v. Pawtucket Sch. Dep't, 969 F.3d 1, 8 (1st Cir. 2020). We also draw from public filings in United States v. PRASA, No. 3:15-cv-02283-JAG (D.P.R. 2015), as we can take judicial notice of such documents. See Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013).
- 4 - maintenance, as well as discharges of pollutants from manholes
into stormwater collection systems, streets, sidewalks, and
buildings. Along with the complaint, the parties filed a proposed
Consent Decree with the district court, which was published in the
federal register for public comments, 80 Fed. Reg. 60931-02 (Oct.
8, 2015), and then approved by the court on May 23, 2016.
The Consent Decree requires PRASA to bring its WTP and
WWTP facilities into compliance with its NPDES permits and the CWA
on a designated timeline. In furtherance of this goal, it requires
PRASA to conduct studies of its sewers and perform necessary
repairs and construction. The Consent Decree details actions to
be taken to remediate problems at specific facilities, including
the Puerto Nuevo Regional WWTP.
PRASA is obligated to provide reports to the EPA
regarding its compliance with the Consent Decree and is subject to
stipulated penalties if it fails to comply. The Consent Decree
identifies "Areas of Concern" that require specific interim
actions to ameliorate urgent problems. The EPA or PRASA may add
Areas of Concern based on "frequency of [unauthorized discharges];
health/safety effects on the residents of sewage overflows;
environmental impacts to water body of sewage overflows; and
complexity of the actions needed to resolve the issue."
- 5 - 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
3 Cebollero stated these incidents occurred on May 27, 2018; September 25, 2018; October 17, 2018; October 23, 2018; November 3, 2018; November 4, 2018; and December 28, 2018.
- 6 - Decree, which, as described above, required PRASA to implement
"comprehensive remedial measures" to the entire Puerto Nuevo
Regional WWTP. PRASA's response claimed that it had inspected the
sewers at issue and found that they were "in good condition[.]"
On April 29, 2019, Cebollero filed this action under the
citizen suit provision of the CWA, alleging that PRASA violated
the CWA by discharging sewage in excess of permitted levels,
discharging pollutants without a permit, failing to maintain and
operate the sewage system, and failing to report these violations.
She also asserted causes of action under Puerto Rico law for
nuisance and riparian rights. Cebollero seeks, inter alia, an
injunction enjoining the sewage discharges at the named GPS
coordinates and compensatory and punitive damages.
According to the complaint, the discharges cause foul
odors in Cebollero's backyard and may expose Cebollero and her
children to disease-causing pathogens. Cebollero, an arborist,
walks along the creek in the affected area for her aesthetic and
recreational enjoyment, which is diminished by the presence of raw
sewage. She now, and in the future, "cannot walk in or near the
creek . . . [nor] even . . . in her neighborhood, feeling that she
is walking on the eggshells of deadly pathogens." Prior to these
sewage discharges, Cebollero did not notice any foul odors coming
from the creek.
- 7 - On May 17, 2019, PRASA identified an area including the
Tenth Street Sewers as a new "Area of Concern" requiring special
programming under the Consent Decree.
On June 20, 2019, PRASA filed a motion to dismiss arguing
that Cebollero failed to provide adequate notice as required by
§ 1365(b)(1)(A) and that her citizen suit was barred by the CWA's
"diligent prosecution" provision, § 1365(b)(1)(B). Cebollero
opposed the motion. The district court rejected PRASA's notice
argument, but dismissed the complaint as precluded by the "diligent
prosecution" bar. On January 15, 2020, Cebollero filed this timely
appeal.
II.
PRASA moved to dismiss under both Federal Rule of Civil
Procedure 12(b)(1) for lack of subject-matter jurisdiction and
Rule 12(b)(6) for failure to state a claim upon which relief can
be granted. Rule 12(b)(1) motions challenging subject-matter
jurisdiction are divided into two categories: facial challenges
and factual challenges. Torres-Negrón v. J & N Records, LLC, 504
F.3d 151, 162 (1st Cir. 2007). With facial challenges the movant
raises a question of law without contesting the facts. See
Justiniano v. Soc. Sec. Admin., 876 F.3d 14, 21 (1st Cir. 2017).
The analysis is essentially the same as a Rule 12(b)(6) analysis:
we accept the well-pleaded facts alleged in the complaint as true
and ask whether the plaintiff has stated a plausible claim that
- 8 - the court has subject matter jurisdiction. Valentin v. Hosp. Bella
Vista, 254 F.3d 358, 363 (1st Cir. 2001). If a Rule 12(b)(1)
motion contests factual allegations of the complaint, the court
must engage in judicial factfinding to resolve the merits of the
jurisdictional claim. Id. at 363-65.
Rule 12(b)(6) motions, on the other hand, are always
facial, not factual, challenges to the complaint.4 To survive a
Rule 12(b)(6) motion to dismiss, the facts alleged in the
complaint, taken as true by the court, which also draws all
inferences in the pleader's favor, "must state a plausible, not
merely conceivable, case for relief." Sepúlveda-Villarini v.
Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009)). This plausibility
standard is "not akin to a 'probability requirement'" but it
"demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556-57 (2007)). Evaluating whether a
complaint states a plausible claim for relief is "a context-
In general, motions to dismiss under Rule 12(b)(6) are 4
decided based solely on the face of the complaint, without consideration of any other documents. Pawtucket Sch. Dep't, 969 F.3d at 8. Limited exceptions to this rule allow a court to consider documents that are incorporated into or attached to the complaint, as well as matters of public record subject to judicial notice. Id.; Freeman, 714 F.3d at 36.
- 9 - 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: Rule 12(b)(1) or Rule 12(b)(6). If
the statutory prerequisites at issue are jurisdictional, the Rule
12(b)(1) standard applies and judicial factfinding may be
permitted if the facts alleged in the complaint are challenged.
If the statutory requirements are non-jurisdictional claims-
processing rules, Rule 12(b)(6) applies, and the court must accept
the truth of the well-pleaded allegations in the complaint.
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
- 10 - 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
- 11 - 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
33 U.S.C. § 1365(b)(1)(B) (barring a citizen suit if the EPA "has
commenced and is diligently prosecuting a civil or criminal action
in a court of the United States."). The Fourth and Seventh
Circuits have referred to the diligent prosecution bar as
jurisdictional and treated it as such. Chesapeake Bay Found. v.
Am. Recovery Co., 769 F.2d 207, 208 (4th Cir. 1985); Friends of
Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 556 F.3d
603, 606 (7th Cir. 2009) (per curiam). But neither of those cases
contains any analysis in support of that conclusion, and thus we
- 12 - accord those opinions little weight. See Steel Co., 523 U.S. at
91 ("We have often said that drive-by jurisdictional rulings of
this sort . . . have no precedential effect."). The Fifth Circuit,
on the other hand, has undertaken a detailed analysis of §
1365(b)(1)(B) and concluded that it is a nonjurisdictional rule.
La. Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737,
749 (5th Cir. 2012).
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," 33 U.S.C.
§ 1365(b), rather than in the CWA jurisdictional provision,
33 U.S.C. § 1365(a). Id. at 748-49. And the Supreme Court has
never deemed the identical diligent prosecution bar in any of the
several federal environmental statutes to be jurisdictional. Id.
at 749. We agree with the Fifth Circuit that there is simply no
reason to read a clear statement of jurisdictional intent into
§ 1365(b)(1)(B).
This conclusion is further supported by two circuit
court decisions holding that identical diligent prosecution bars
in other environmental statutes are not jurisdictional. Grp.
- 13 - 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, 42 U.S.C. § 7604(b)(1)(B)); Adkins v. VIM
Recycling, Inc., 644 F.3d 483, 492 (7th Cir. 2011) (analyzing the
diligent prosecution bar in the Resource Conservation and Recovery
Act (RCRA), 42 U.S.C. § 6972(b)(1)(B)).5 Both courts noted that
the diligent prosecution bar does not contain a clear statement
that it is intended to govern the courts' jurisdiction. Grp.
Against Smog, 810 F.3d at 123 ("The language Congress used, 'No
action may be commenced,' is mandatory, but it is not stated in
terms of the court's adjudicatory capacity or jurisdiction."
(quoting 42 U.S.C. § 7604(b))); Adkins, 644 F.3d at 492 ("RCRA's
limits on citizen suits appear in separate provisions that do not
'speak in jurisdictional terms or refer in any way to the
jurisdiction of the district courts.'" (quoting Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 394 (1982))).
For these reasons, we agree with the district court that
the CWA's diligent prosecution bar is a mandatory claims-
5This decision appears to be in some tension with the Seventh Circuit's treatment of the CWA diligent prosecution bar as jurisdictional in Friends of Milwaukee's Rivers, 556 F.3d at 606. While the cases deal with two separate statutes, it is not clear why the diligent prosecution bar in the CWA would be treated differently from an identical provision in another environmental statute.
- 14 - 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 33 U.S.C.
§ 1365(b)(1)(A). The circuits are similarly divided on the
question of whether this provision implicates subject matter
jurisdiction.6 The Third, Sixth, Seventh, Ninth, and Tenth
Circuits treat § 1365(b)(1)(A) as a jurisdictional rule. Pub.
Interest Research Grp. v. Windall, 51 F.3d 1179, 1189 n. 15 (3d
Cir. 1995); Bd. of Trs. of Painesville Twp. v. City of Painesville,
200 F.3d 396, 400 (6th Cir. 1999); Atl. States Legal Found., Inc.
v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th Cir. 1997);
Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913, 916
(9th Cir. 2004); Karr v. Hefner, 475 F.3d 1192, 1200 (10th Cir.
2007). The Fifth and Eleventh Circuits, on the other hand, have
6 We have not yet meaningfully weighed in on this debate, though we have mentioned the question in passing. In a case decided twenty-five years ago, we assumed, without discussion, that § 1365(b)(1)(A) was a jurisdictional rule. Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1295–96 (1st Cir. 1996). That assumption was not essential to the ultimate holding. More recently, we declined to take a position, stating "[w]hether we treat the CWA's notice requirements as strictly jurisdictional or not, they remain mandatory conditions precedent to the filing of a citizen suit." Paolino v. JF Realty, LLC, 710 F.3d 31, 36 n.4 (1st Cir. 2013).
- 15 - held that § 1365(b)(1)(A) is a nonjurisdictional requirement.
Lockett v. EPA, 319 F.3d 678, 682–83 (5th Cir. 2003); Am. Canoe
Ass'n, Inc. v. City Of Attalla, 363 F.3d 1085, 1088 (11th Cir.
2004).
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").
Because we determine that neither the diligent
prosecution bar nor the notice provision of the CWA are
- 16 - jurisdictional, we treat PRASA's motion as a Rule 12(b)(6) motion
to dismiss for failure to state a claim, rather than a Rule
12(b)(1) motion to dismiss for lack of subject matter jurisdiction.
IV.
The district court concluded correctly that the Rule
12(b)(6) standard applied to PRASA's invocation of the diligent
prosecution bar. It recited the standard of review applicable to
a Rule 12(b)(6) motion, quoting the Iqbal plausibility standard
that we have discussed. However, as we shall explain, the court
did not actually apply the standard it cited and instead drew
inferences in favor of the defendant.
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
- 17 - 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
- 18 - was permitted to consider the letter as part of its Rule 12(b)(6)
analysis. But it was not permitted to assume the truth of PRASA's
factual claims in that letter. Instead, consistent with the Rule
12(b)(6) standard, the court should have assumed the truth of
Cebollero's factual claims. By weighing the competing claims of
both parties and finding that Cebollero's allegations were not
supported by evidence, the district court strayed from the
appropriate Rule 12(b)(6) analysis.
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.
- 19 - 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.
- 20 - 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
- 21 - 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
§ 1365(b)(1)(B) bar on citizen suits. See Scituate, 949 F.2d at
558 ("[V]iolations may continue despite everything reasonably
possible being done . . . to correct them."). In pursuing its
"plan of attack," the agency is not required to "tak[e] the precise
action Appellant wants it to or [to] mov[e] with the alacrity
Appellant desires." Id. Diligent prosecution is something less
than "far-reaching or zealous" prosecution. Karr, 475 F.3d at
1197. However, ongoing violations are not irrelevant to the
question of diligent prosecution.
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
- 22 - 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
- 23 - Act, a state law which parallels the CWA.7 Id. at 557. The court
found that there was no material dispute as to diligent prosecution
based on both the state order and the alleged polluter's
"subsequent action." Id. If 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.8
7 Scituate's corrective actions 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. Scituate had also hired an engineering firm to "effectuate compliance with the State Order" by studying Scituate's wastewater treatment system, proposing upgrades, and evaluating the feasibility of those upgrades. Id. at 554. 8 PRASA has offered one piece of evidence that it is acting in accordance with the Consent Decree. On May 17, 2019, it submitted a letter to the EPA stating that it had added the Tenth Street Sewers as an Area of Concern requiring special attention. PRASA submitted a copy of that letter as an attachment to its motion to dismiss. This proffer is irrelevant at this stage for two reasons. First, it is extrinsic evidence that cannot be considered in deciding a Rule 12(b)(6) motion. Second, even if it could be considered, that action was taken after this suit was filed, and therefore would not constitute diligent prosecution barring this citizen suit. We agree with our sister circuits 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. See Cal. Sportfishing, 728 F.3d at 873; Friends of Milwaukee's Rivers, 382 F.3d at 752.
- 24 - 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.
33 U.S.C. § 1365(b)(1)(A). This notice requirement allows the
alleged violator "an opportunity to bring itself into complete
compliance with the Act and thus likewise render unnecessary a
citizen suit." Gwaltney, 484 U.S. at 60; see also Paolino, 710
F.3d at 37 ("[N]otice must be sufficiently specific to inform the
alleged violator about what it is doing wrong, so that it will
know what corrective actions will avert a lawsuit[.]" (quoting
Atl. States Legal Found., 116 F.3d at 819)).
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." 40 C.F.R. § 135.3(a); see 33 U.S.C. § 1365(b)
(authorizing the EPA to issue such regulations). Neither the CWA
nor these regulations requires that "a citizen plaintiff 'list
every specific aspect or detail of every alleged violation,' or
'describe every ramification of a violation.'" Paolino, 710 F.3d
- 25 - at 38 (quoting Pub. Int. Rsch. Grp. of New Jersey, Inc. v.
Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir. 1995)). Instead, we
conduct a "functional, fact-dependent, and case-specific inquiry"
as to whether the information provided in the notice "allows the
putative defendants to identify and remedy the alleged
violations." Id. at 34.
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 by an expert working on an
EPA-PRASA task force.
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
- 26 - 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.
- 27 -