SURCCO v. PRASA

157 F. Supp.2d 160 (2001) | Cited 0 times | D. Puerto Rico | June 30, 2001

OPINION AND ORDER

The above captioned case is an environmental claim filed byPlaintiffs, an environmental protection organization, Sur Contrala Contaminacion ("SURCCO"), and a group of allegedly affectedcitizens from the Green Hills and Branderi area under theprovisions of the Water Pollution Prevention Act (also known asthe Clean Water Act), 33 U.S.C. § 1251 et seq., the provisionsof the Puerto Rico Nuisance Law, 32 P.R. LAWS ANN. § 2761 etseq., and § 1802 of the Civil Code of Puerto Rico, 31 P.R. LAWSANN. § 5141. In sum, Plaintiffs are seeking several remedies, towit: (1) an injunction against Defendants prohibiting furtherviolations to the terms of certain discharge permit; (2) aninjunction for the closing and relocation of two pumpingstations; (3) the imposition of civil penalties; and (4) theaward of damages for mental pain and suffering as well as lossof property.

SURCCO is a non-profit corporation organized under the laws ofthe Commonwealth of Puerto Rico and allegedly an activeparticipant in the protection of the environment in the SouthCoast of Puerto Rico. Joining as Plaintiff is a group ofcitizens, neighbors of the towns of Green Hills and Branderi inGuayama, Puerto Rico. Defendant Puerto Rico Aqueduct and SewerAuthority ("PRASA"), a public corporation, s the owner of theGreen Hills and Branderi Pumping Stations in Guayama.Co-Defendant Compafia de Aguas de Puerto Rico, Inc., also apublic corporation, operates the Green Hills and BranderiPumping Stations in Guayama. Both co-Defendants are part of thePublicly Owned Water Treatment Works in Puerto Rico.

The relevant procedural history of the case is as follows. OnNovember 6, 1989, the United States Environmental ProtectionAgency ("EPA") issued to PRASA the National Pollutant DischargeElimination System Permit number PR0025445 ("permit") underSection 402 of the Clean Water Act ("Act"), 33 U.S.C. § 1342,for the discharge of certain treated waters form the GuayamaRegional Wastewater Plant ("GRWP"). On March 18, 1999, PlaintiffSURCCO sent a dated, certified letter addressed to the"Executive Director, Owner and Operator" of PRASA and to Mr.Fernando Pina, General Manger of Compañía de Aguas de PuertoRico advising of an imminent civil action pursuant to section505(a)(1) of the Federal Water Pollution Control Act,33 U.S.C. § 1365(a)(1)1, for alleged unauthorized discharges thathave occurred in the Branderi Creek, the Branderi Sector ofGuayama, the Green Hills Urbanization, and the AlgarroboUrbanization of Guayama. On December 7, 1999, the EPA issued anAdministrative Order (CWA-02-2000-3009) initiating anenforcement action concerning the alleged violations object ofthe instant case. PRASA then submitted an action plan and hasinvested in excess of $200,000 in compliance with theAdministrative Order as to the Green Hills and Branderi PumpingStations.

On February 10, 2000, SURCCO and a group of Guayama'sneighbors filed thepresent complaint in the instant action alleging violations ofthe GRWTP Permit and seeking injunctive relief, the impositionof civil penalties, and the award of damages for mental pain andsuffering.

Pending before the Court is Defendant PRASA and DefendantCompafia de Aguas'2 Motion to Dismiss Under Rule 12(b)(1)filed on October 27, 2000 (Docket No. 21) along with itsMemorandum of Law in Support of Motion. (also Docket No. 21). OnDecember 5, 2000 Plaintiffs filed an Opposition to said motion.(Docket No. 24).

I. Motion to Dismiss Standard

"As a general matter, trial courts should give Rule 12(b)(1)motions precedence." Dynamic Image Technologies, Inc. v. U.S.,221 F.3d 34, 37 (1st Cir. 2000). Motions under Rule 12(b)(1) arebrought forth to attack two different types of defects: thepleader's failure to comply with Federal Rule of Civil Procedure8(a)(1)3 and the Court's actual lack of subject matterjurisdiction — which may exist despite the formal sufficiency ofthe allegations in the complaint. 5A JAMES WM. MOORE ET AL.,MOORE'S FEDERAL PRACTICE § 1350 (2d ed. 1990). When the groundsfor a Rule 12(b)(1) motion is lack of federal question, as isthe case at bar, the pleader must show that the counterpart'sclaim does not fall under the category of federal question andis frivolous. That is, "the party invoking the jurisdiction ofthe federal court carries the burden of proving its existence."Nater v. Riley, 114 F. Supp.2d 17, 19 (P.R. 2000). See Millerv. Hygrade Food Products, Corp., 89 F. Supp.2d 643 (E.D.Pa.2000); Smith v. SSA, 54 F. Supp.2d 451 (E.D.Pa. 1999);Kronmuller v. West End Fire Co. No. 3, 123 F.R.D. 170 (1988).Further, even though the factual allegations of the complaintare presumed to be true and the complaint is reviewed to ensurethat each element necessary for jurisdiction is present, whenthe factual allegations of jurisdiction are attacked by a Motionto Dismiss under Rule 12(b)(1), courts are not limited in theirreview to the mere allegations contained in the complaint. Thus,"the Court, without conversion [to summary judgment], mayconsider extrinsic material and, to the extent it engages injurisdictional fact finding, is free to test the truthfulness ofthe plaintiffs allegations." See Dynamic Image, 221 F.3d at37; Halstead v. Motorcycle Safety Foundation, Inc.,71 F. Supp.2d 464, 468 (E.D.Pa. 1999) ("[A]ny evidence may bereviewed and any factual disputes resolved regarding theallegations giving rise to jurisdiction, since it is for theCourt to resolve all factual disputes involving the existence ofjurisdiction."). If, and only when, it appears that thenon-moving party will not be able to assert a colorable claim ofsubject matter jurisdiction, may the Motion to Dismiss begranted and the complaint dismissed. See Mortensen v. FirstFederal Savings and Loan Association, 549 F.2d 884 (3d Cir.1977).

II. Discussion

In the Motion to Dismiss, Defendants allege that this Courtdoes not havejurisdiction over this suit because the jurisdictionalprerequisites of the Clean Water Act ("CWA"),33 U.S.C. § 1365(a)4, were not met by Plaintiffs. That is, Plaintiffsallegedly failed to assert an ongoing violation depriving thisCourt of subject matter jurisdiction. Likewise, Defendantsmaintain that, even if the jurisdictional prerequisites had beenmet, the suit should be dismissed because Plaintiffs failed tostate a cognizable claim under the CWA for which they havestanding to bring suit. (Docket No. 21). Defendants also averthat Plaintiff SURCCO, Inc. has not suffered the "injury infact" necessary to have standing and should be dismissed fromthe case. Finally, Defendants sustain that the EnvironmentalProtection Agency ("EPA") is diligently prosecuting anenforcement action for the same violations alleged in thecomplaint, thus barring Plaintiffs action. The Court addressesDefendants' allegations seriatim.

A. Subject Matter Jurisdiction

1. On Going Violation:

Defendants claim that a situation of either continuous orintermittent violations, or a reasonable likelihood that thepollution will continue in the future must be alleged for thisCourt to have subject-matter jurisdiction. In support of thelack of subject-matter jurisdiction, Defendants rest on the caseof Gwaltney of Smithfield v. Chesapeake Bay Foundation,484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The Supreme Courtin Gwaltney stated that the "interest of the citizen-suit isforward-looking . . . the harm sought to be addressed by thecitizen-suit lies in the present or the future, not in thepast." Id. at 59, 108 S.Ct. 376. According to Defendants,Plaintiffs failed to comply with the aforementioned standard. InDefendants Motion to Dismiss, Defendants aver that Plaintiffshave made no allegation that there is a reasonable likelihoodthat the violations incurred by the Defendants will continue.Plaintiffs, so say Defendants, have only alleged "as anafterthought," that they have suffered and continue to sufferirreparable harm, yet Plaintiffs do not claim a reasonablelikelihood of continuance to the violations. Defendants assertthat lacking continuance of violations allegations causesinsufficiency as to subject matter jurisdiction. Plaintiffs, onthe other hand, affirm in their Opposition that Defendants'violations to the CWA are not wholly past but rathercontinuous and egregious in nature as defined in Gwaltney(emphasis ours). (Docket No. 24). Plaintiffs sustain thisallegation of ongoing violation by submitting copies of Noticesof Bypasses to the EPA and Sworn Statements from members of bothcommunities that attest to the multiplicity of ongoing illegaldischarges and bypasses that Defendants continue to incur, aswell as statements relating how they have been personallyaffected.

As stated in Gwaltney, 484 U.S. 49, 108 S.Ct. 376, 98L.Ed.2d 306 (1987), it is not necessary for Plaintiffs to provetheir allegation of ongoing noncompliance with the conditions ofthe permit under the provisions of the CWA, 33 U.S.C. § 1251, etseq. Mere allegations of violation are sufficient to establishan ongoing harm since the "good faith" pleadingrequirements5 are sufficient to protect Defendantsfrom frivolous allegations. "Moreover, allegations of injury aresufficient under this Court's standing cases to invoke thejurisdiction of a court, and the Constitution does not requirethat the plaintiff offer proof of the allegations as a thresholdmatter." Gwaltney, 484 U.S. at 50, 108 S.Ct. 376. Therefore,the Court, accepting as true Plaintiffs' well plead facts anddrawing all reasonable inferences in favor of Plaintiffs, asestablished in McDonald v. Santa Fe Trail Transp. Co.,427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), concludes thatthe court has subject matter jurisdiction over the abovecaptioned case. See also Dynamic Image 221 F.3d at 36 ("Wetake the plaintiffs' version of the facts, consistent withrecord support.")

2. SURCCO Standing

"A motion to dismiss for want of standing implicates thecourt's subject matter jurisdiction, and is thereforeappropriately brought under Federal Rule of Civil Procedure12(b)(1)." Duffy v. Halter, 2001 WL 253828, 2001 U.S. Dist.LEXIS 2644 at *5 (E.D.Pa. Mar 13, 2001). This Court mustreiterate that "our standing cases uniformly recognize thatallegations of injury are sufficient to invoke the jurisdictionof a court . . . we made clear that a suit will not be dismissedfor lack of standing if there are sufficient `allegations offact' — not proof — in the complaint or supporting affidavits."Gwaltney, 484 U.S. at 65, 108 S.Ct. 376. Further, the SupremeCourt of the United States has repeatedly held thatorganizations must meet three (3) requirements in order toestablish Article III standing. Plaintiff organization mustexhibit "injury in fact,"6 establish causation,7 andmust demonstrate redressability.8 "These requirementstogether constitute the `irreducible constitutional minimum' ofstanding which is an `essential and unchanging part' of ArticleIII's case-or-controversy requirement . . ." Vermont Agency ofNatural Resources v. United States ex rel. Stevens,529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (citing Lujanv. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,119 L.Ed.2d 351 (1992)).

Defendants allege that Plaintiff SURCCO does not possessArticle III standing. Without this required standing, PlaintiffSURCCO should be dismissed. Defendants insists that SURCCO doesnot plead any facts demonstrating sufficient interest, injury orcausation to establish its standing. (Docket No. 21). They alsostate that SURCCO does not, at any point in the complaint,allege that the individually named parties claiming specificinjuries from the violations are members of the organization.Plaintiff SURCCO has, however, refuted Defendants' attack as toArticle III standing by alleging, and sustaining with exhibits,that its members are directly affected by Defendants' violationssince they cannot enjoy swimming, boating or fishing in theBranderi Creek due to the toxic pollutants that are dischargedby Defendant. SURCCO further maintains that they cannot enjoytheir homes and that the value of their homes has decreased dueto the pestilence that emanates from said creek. It is in thesesame exhibits that community members establish the allegedinjuries they are suffering. Likewise, an exhibit (Docket No.27, Exhibit 3) is presented in which the president of SURCCOmakes a claim of injury in representation of the people of thetowns of Green Hills and Branderi. The Court opines that SURCCOhas entitlement to invoke jurisdiction:

[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members. . . . The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. . . . So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction.

Hunt v. Washington State Apple Advertising Commission,432 U.S. 333, 342-43, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977)(citing Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197,2212, 45 L.Ed.2d 343 (1975)). Since SURCCO has sufficientlyshown injury in fact suffered due to Defendant's actions, theCourt determines that Plaintiff SURCCO does in fact havestanding.

B. Cognizable Damages Claim Under the Clean Water Act:

In the Motion to Dismiss (Docket No. 21), Defendants aver thatPlaintiffs have failed to state a damages claim cognizable underthe CWA. Defendants appropriately call upon § 505(a) of the CWA,33 U.S.C. § 1365(a), which only entitles a prayer for an orderfor injunctive relief and/or the imposition of civil penaltiesin a citizen suit. Section 505(a) of the Clean Water Act,33 U.S.C. § 1365(a), states:

. . . The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty as the case my be, and to apply any appropriate civil penalties under section 1319(d) of this title.

Plaintiffs, surprisingly, ignore Defendants' claim of lack ofentitlement to damages under the statute and make no allegationsto counter Defendants' argument. It is evident that the CWAonly allows civil suits which pray for injunctive reliefand/or civil penalties. At no point does the CWA permit a civilsuit which claims personal damages. The Court briefly explains.

It must be noted that the citizen suit provision in the CleanWater Act was categorically modeled on the analogous provisionof the Clean Air Act, 42 U.S.C. § 7604 (1976 ed., Supp. III).See S. Rep. No. 92414 at 79. See Middlesex County SewerageAuthority v. National Sea Clammers Association, 453 U.S. 1, 101S.Ct. 2615, 69 L.Ed.2d 435 (1981). According to legislativehistory, the Clean Air Act holds unequivocal indications thatprivate enforcement suits are intended to be limited to theinjunctive relief provided for by the Act. "[C]onferringadditional rights on thecitizen may burden the courts unduly . . . [T]he citizen suitprovision of S. 4358 has been carefully drafted to prevent thisconsequence form arising . . . [I]t should be noted that thebill makes no provision for damages to the individual." 116CONG. REC. 33104 (1970) (statement of Sen. Hart). It is, thus,established that both the Clean Air Act and, consequently, theClean Water Act, are "limited to seek [sic] abatement ofviolation of standards established administratively under theact, and expressly excludes damage actions." Id. at 3201(statement of Sen. Muskie). See Middlesex County SewerageAuthority, 453 U.S. at 18 n. 27, 101 S.Ct. 2615.

The Supreme Court has traditionally held that statutoryprovisions conferring authority upon a private citizen to sueare narrowly construed. See Garcia v. Cecos Int'l, 761 F.2d 76(1st Cir. 1985). Further, "[t]he Supreme Court has demandedstrict adherence to statutory provisions for citizens' suits inenvironmental litigation." Garcia, 761 F.2d at 81. SeeMiddlesex, 453 U.S. 1, 101 S.Ct. 2615. The established standarddistrict courts must follow when presented with a personaldamages claim in a Clean Water Act citizen suit has been tofirst inquire as to Congress' Legislative intent. "We lookfirst, of course, to the statutory language, particularly to theprovisions made therein for enforcement and relief. Then wereview the legislative history and other traditional aids ofstatutory interpretation." Middlesex, 453 U.S. at 13, 101S.Ct. 2615. See also Texas Industries, Inc. v. RadcliffMaterials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500(1981); California v. Sierra Club, 451 U.S. 287, 101 S.Ct.1775, 68 L.Ed.2d 101 (1981); Transamerica Mortgage Advisors,Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146(1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct.2479, 61 L.Ed.2d 82 (1979). The Supreme Court has also affirmedthat, "when the remedial devices provided in a particular Actare sufficiently comprehensive," they are enough to evidencecongressional intent and foreclose private actions. Middlesex453 U.S. at 20, 101 S.Ct. 2615.

The CWA contains exceptionally intricate enforcementprovisions that confer authority to sue the government officialsand private citizens. Section 1319 of the CWA allows the EPAAdministrator to respond to violations of said Act by emittingcompliance orders (as was done in this case — Docket No. 21,Exhibit A) and civil suits (also carried forth in the case atbar — Docket No. 31, Civil No. 011709(JAF)), 33 U.S.C. § 1309,1319. The Administrator also has available to him the impositionof civil and criminal penalties of up to $10,000 and $25,000respectively per day of violation. 33 U.S.C. § 1319(c)(d). Also,any interested person may seek judicial review in the UnitedStates Courts of Appeals of the Administrator's actions(including the establishment of effluent standards and/or theissuance of permits for discharges of pollutants, among others).See 33 U.S.C. § 1369. Moreover, this array of enforcementmechanisms are then supplemented by the clear-cut citizen suitprovision in § 1365(a) which "authorize private persons to suefor injunctions to enforce these statutes," Middlesex, 453U.S. at 14, 101 S.Ct. 2615, not allowing for personal damages.

It is readily seen in the elaborate, comprehensive enforcementscheme presented in the CWA provisions that Congress' intent toauthorize by implication additional judicial remedies forprivate citizens suing under the CWA, as is the case before us,cannot be presupposed. As stated in Middlesex, 453 U.S. at15, 101 S.Ct. 2615, "it is an elemental canon of statutoryconstruction that where a statute expresslyprovides a particular remedy or remedies, a court must be charyof reading others into it." When a firm manifestat on of acontrary congressional intent is missing, this Court mustconclude that Congress provided precisely the remediesenumerated. Accordingly, this Court finds that Defendants'allegation of lack of cognizable claim for personal damages iswell taken. Regardless of their claim of a common nucleus ofoperative facts, Plaintiff cannot, under the CWA, make a prayerfor personal damages. The only remedies available to Plaintiffsunder the CWA are for injunctive relief and civil penalties.

C. EPA's Diligent Prosecution

Section 505(b) of the Clean Water Act,33 U.S.C. § 1365(b)(1)(B), establishes that a suit cannot be brought forth"if the Administrator or State has commenced and is diligentlyprosecuting a civil or criminal action . . . to requirecompliance with the standard limitation, or order . . ."Defendant sustains that, prior to Plaintiffs' filing of thecomplaint, the EPA had already commenced and was diligentlyprosecuting an enforcement action against Defendants PRASA andCompañía de Aguas. Pursuant to the mandate of North and SouthRivers Watershed Association, Inc. v. Town of Scituate,949 F.2d 552 (1st Cir. 1991), a citizen suit under the CWA is barredwhen a State or the EPA Administrator is diligently prosecutingan existing action for the same violations. Defendant maintainsthat since EPA required Defendants to undertake repairs andimprovements, to develop maintenance programs, to comply withall provisions of the permit, and to cease all discharges, thissuit is barred. Plaintiffs, on the other hand, hold the contrarystating that since in Jones v. Lakeland, 224 F.3d 518, 522(6th Cir. 2000) the Court concluded that "the plain andunambiguous language of 33 U.S.C. § 1365(a) precludes acitizen's suit only if the Administrator of the EPA or a Stateis diligently prosecuting an enforcement action in a court ofthe United States, or a State," and, since the EPA failed toprevent the violations that have occurred after theadministrative order was issued, this case is not barred.(Docket No. 24).

In Jones, 224 F.3d at 522, as Plaintiff has stated, theCourt did not bar the citizen suit for it believed that theTennessee Department of Environment and Conservation ("TDEC")was not "diligently prosecuting an enforcement action in acourt of the United States or in a State."9 (emphasisours) The Court understood that diligent prosecution precludes acitizen suit only if the Administrator of the EPA or a State is"diligently prosecuting an enforcement action in a court of theUnited States or of a State." Id. Their position was thatsince the TDEC was an administrative agency prosecuting theaction not in a Federal or State court, an actual diligentprosecution was nonexistent. "Thus, since neither the State'sWater Control Board, nor the TEDC rise to the level of a federalor a State court, the plaintiffs citizen's suit is not precluded. . ." Jones, 224 F.3d at 522.

However, the Supreme Court of the United States and the FirstCircuit Court of Appeals have held that typical or traditionalagencies'10 are endowed "with thenormal complement of adjudicative powers." Martin v.Occupational Safety and Health Review Commission, 499 U.S. 144,154, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). That is, agencyadjudication is completely allowable, particularly when sodefined within the agency's regulations. Notwithstanding, theSixth Circuit, though not alone in its opinion, understands thatadministrative agencies must prosecute diligently in a State orFederal court, therefore, the actions brought before the EPA arenot barred. On the other hand, the First Circuit has a differentapproach:

The primary function of the provision for citizen suits is to enable private parties to assist in enforcement efforts where Federal and State authorities appear unwilling to act. Congress has found it necessary expressly to "recognize, preserve and protect the primary responsibility and rights of the States to prevent, reduce and eliminate pollution." 33 U.S.C. § 1251(b) (emphasis supplied). It follows that "the citizen suit [under section 505] is meant to supplement rather than to supplant governmental [enforcement] action." Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 60, 108 S.Ct. 376, 383, 98 L.Ed.2d 306 (1987). Presumably, then, when it appears that governmental action under either the Federal or comparable State Clean Water Acts begins and is diligently prosecuted, the need for citizen's suits vanishes. Gwaltney, 484 U.S. at 61, 108 S.Ct. 376, (first emphasis ours).

The Supreme Court in Gwaltney sketched the relationship between governmental and section 505 citizen enforcement actions. "The great volume of enforcement actions [are intended to] be brought by the State," citizen suits are proper only "if the Federal, State, and local agencies fail to exercise their enforcement responsibility." Gwaltney 484 U.S. at 60, 108 S.Ct. 376, (citing S. Rep. No. 92-414, p. 64 (1971), reprinted in 2A Legislative History of the Water Pollution Control Act Amendments of 1972, p. 1482 (1973)). Where 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. (emphasis ours).

Scituate, 949 F.2d at 555, 557. Because of the wellarticulated mandate established by the First Circuit, the SixthCircuit's opinion in overriden. The Court briefly explains. TheEPA by its very nature belongs to that class of typical ortraditional agencies endowed with adjudicative powers. Thisagency, by employing its adjudicative powers, investigated anddetermined that Defendants were in violation of EPA'sregulations and, consequently, issued an Administrative Orderwhich submitted Defendants to a strict compliance schedule so asto correct the source of the violations.11

Further, the issue at bar is not whether the EPA's actions canbe effectively prosecuted in a Federal or State court. A sharperfocus on the issue is whether or not EPA was diligentlyprosecuting an enforcement action at the time this suit wasfiled. In Scituate, 949 F.2d at 556, the Court of Appealsestablished that "[t]he focus of the statutory bar to citizen'ssuits is not on state statutory construction, but on whethercorrective action already taken and diligently pursued by thegovernmentseeks to remedy the same violations as duplicative civilianaction." (emphasis ours). To duplicate the EPA's enforcementactions with a civil suit impedes and/or obstructs theenvironmental remedy efforts rather than supplement them.Logically, as Gwaltney, 484 U.S. at 60-61, 108 S.Ct. 376stated, and Scituate, 949 F.2d at 555 reiterated, ". . . whenit appears that governmental action under either the Federal orcomparable State {Clean Water Act} begins and is diligentlyprosecuted, the need for citizen's suits vanishes."

As was the case in Scituate, 949 F.2d at 557, Defendants inthe case at bar have more than sufficiently brought forthevidence of compliance through expenditures incurred toaccommodate its pumping stations as required by the EPA.Further, multiple reports have been rendered to the EPA byDefendants detailing what projects are being carried out torepair the sources of the violations. Moreover, theAdministrative Order clearly leaves open the possibility ofimposing further penalties if, upon review by EPA, Defendantcontinues to be in violation. See Scituate, 949 F.2d at 556(leaving "the order open [for] the possibilities of imposingpenalties upon [the defendant].") Finally, this Court findsPlaintiffs' argument that diligent prosecution is nonexistent,based on of EPA's alleged inactivity after Defendants'submission to the EPA requesting the Administrative Order'stermination, to be completely unfounded on the record. To thecontrary, because of Defendants' compliance together with EPA'srefusal to close the Administrative Order issued againstDefendants, and the potentiality of further fines should they bewarranted, this Court concludes that the EPA's enforcementactions have not ceased. Because of the above stated reasoning,the Court concludes, based on the record, that the EPA has beendiligent in their prosecutorial duty. Therefore, this action isbarred because of the EPA's diligent prosecution of violationswhich are merely duplicated in this citizen suit, Scituate,949 F.2d at 556. The claims under the CWA must be dismissed.

III. Conclusion

Based on the aforementioned reasons, the Court grantsDefendants' motion to Dismiss. Plaintiffs' claims againstDefendants under the CWA are hereby DISMISSED WITHOUTPREJUDICE.

The dismissal of Plaintiffs' federal claim leaves onlyPlaintiffs' claim under Puerto Rico law. Pursuant to28 U.S.C. § 1367(c) and United Mine Workers of America v. Gibbs,383 U.S. 715, 725, 86 S.Ct. 1130, 1138 (1966), the Court declines toexercise supplemental jurisdiction over Plaintiffs' Commonwealthclaims against Defendant. See Rodriguez v. Doral MortgageCorp., 57 F.3d 1168, 1177 (1st Cir. 1995). "As a generalprinciple, the unfavorable disposition of a Plaintiffs federalclaim at the early stages of a suit, well before thecommencement of trial, will trigger the dismissal withoutprejudice of any supplemental state-law claims." Id.(citations omitted). Accordingly, Plaintiffs' claims underPuerto Rico Law are DISMISSED WITHOUT PREJUDICE.

Judgment shall be issued accordingly

IT IS SO ORDERED.

ORDER ON RECONSIDERATION

Pending before the Court is plaintiffs' motion to amendjudgment, pursuant to Fed.R.Civ.P. 59(e). The Court enteredjudgment on June 30, 2001, dismissing the above captioned case.(Docket No. 34). Under Rule 59(e) a motion for reconsiderationmust be filed with the Court within ten days after judgment hasbeen entered. Fed.R.Civ.P. 59(e). In this case, plaintiffs'motion was filed on July 13, 2001, thirteen days after judgmentwas entered. However, plaintiffs state that they did not receivefrom the Clerk's Office the Opinion and Order issued by theCourt until July 10, 2001, exactly ten days after judgment hadbeen entered. (Docket No. 35). In light of the aforementioned,the Court will entertain plaintiffs' motion under the Rule 56(e)standard.

A motion under Rule 59(e) "must rely on at least one of threegrounds: 1) intervening change in controlling law, 2)availability of new evidence not previously available, or 3)need to correct a clear error of law or prevent manifestinjustice." Waye v. First Citizen's National Bank, 846 F. Supp. 310,313 (M.D.Pa. 1994). See Atkins v. Marathon LeTourneauCo., 130 F.R.D. 625, 626 (S.D.Miss. 1990). Further, "[a] motionfor reconsideration is not to be used as means to rearguematters already argued and disposed of. Nor it is to be used toput forth additional arguments which could have been made butwhich the party neglected to make before judgment." Id. Withthat said, the Court will now address plaintiffs' contentions.

Plaintiffs essentially allege that the Court erred in its June30, 2001, Opinion and Order for the following reasons: 1) theCourt wrongly concluded that the Environmental ProtectionAgency's ("EPA") Administrative Order ("AO") or civil complaintconstituted "aggressive prosecution;" 2) the Court did not takeinto consideration plaintiffs' allegations in the AmendedComplaint; 3) made factual mistaken conclusions; and 4) thatplaintiffs did not allege personal damages under the Clean WaterAct ("CWA").

The Court is unpersuaded by plaintiffs' arguments in favor ofreconsideration. First, the Court never stated in its Opinionand Order that the EPA's AO constituted "aggressiveprosecution," but concluded that a diligent prosecution of thealleged violations committed by defendant was ongoing with theEPA. In addition, the Court did not state that the instant suitwas frivolous. As stated in the Opinion and Order, "[s]ection505(b) of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(B)establishes that a suit cannot be brought forth `if theAdministrator or State has commenced and is diligentlyprosecuting a civil or criminal action . . . to requirecompliance with the standard limitation, or order . . .'"(Docket No. 33). Further, in North and South Rivers WatershedAssociation, Inc. v. Town of Scituate, 949 F.2d 552 (1st Cir.1991), the First Circuit stated that a citizen suit under theCWA is barred when a State or the EPA Administrator isdiligently prosecuting an existing action for the sameviolations.

Plaintiffs aver in support of their contention that the Courtignored the fact that "plaintiffs established at least 91violations of the CWA" that have occurred "after USEPA'sDecember 1999 AO," therefore, the EPA is not diligentlyprosecuting the violations allegedly committed by defendants inthis case. The Administrative Order clearly leaves open thepossibility of imposing further penalties if, upon review byEPA, Defendant continues to be in violation. See Scituate, 949F.2d at 556 (leaving "the order open [for] the possibilities ofimposing penalties upon [the defendant]."). Moreover, because ofDefendants' compliance together with EPA's refusal to close theAdministrative Order issued against Defendants, and thepotentiality for fines to be imposed in case of furtherviolations, the EPA's enforcement actions have not ceased.Accordingly, this Court is still convinced that this action isstill being prosecuted for violations which are merelyduplicated in this citizen suit. Scituate, 949 F.2d at 556.

Plaintiffs cite the Supreme Court case Friends of the Earthv. Laidlaw Environmental Services, 528 U.S. 167, 120 S.Ct. 693,145 L.Ed.2d 610 (2000) as jurisprudence warrantingreconsideration. However, Laidlaw concludes that the 13violations under the CWA after administrative prosecutiongranted plaintiff standing to bring citizen suit after asettlement was reached between parties in original action andnot during the EPA's actual prosecution as is the case at bar.That is, in Laidlaw, 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d610, violations occurred after an action was ended and a newaction was filed in court for new violations to the permits,thus the new action was not barred. In the case at bar, theaction is in the process of being investigated and prosecutedby the EPA, thus, from the plain reading of the statute,42 U.S.C. § 1365(b)(1)(B), this Court cannot view theAdministrative action as ceased, hence barring this forum formviewing said action until the Administrative procedures havebeen exhausted, as they had been in Laidlaw, 528 U.S. 167, 120S.Ct. 693, 145 L.Ed.2d 610.

Second, contrary to plaintiffs' averments, the amendedcomplaint was taken into consideration by the Court when itadjudicated defendant's motion to dismiss. In fact, the exhibitsincluded in the amended complaint were cited by the Court in itsOpinion and Order. Therefore, it is unquestionable that theCourt did in fact take into consideration plaintiffs' amendedcomplaint. See Opinion and Order, page 166.

Third, regarding plaintiffs' claim for personal damages, asstated in this Court's Opinion and Order, this Court cannotentertain plaintiffs' claims under Puerto Rico law undersupplemental jurisdiction, because plaintiffs' federal claimsare barred from prosecution in this forum. See Rodriguez v.Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995) ("As ageneral principle, the unfavorable disposition of a Plaintiffsfederal claim at the early stages of a suit, well before thecommencement of trial, will trigger the dismissal withoutprejudice of any supplemental state-law claims.").

Finally, plaintiff was correct in bringing to the Court'sattention that Compañíia de Aguas is not a public corporation,but in fact a private corporation, subsidiary of the Frenchmultinational Vivendi. Accordingly, this Court's Opinion andOrder is amended to reflect the aforementioned.

For the foregoing reasons, plaintiffs' motion to amendjudgment is hereby DENIED.

IT IS SO ORDERED.

1. 33 U.S.C. § 1365(a) Authorization; jurisdiction

Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf —

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality of agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . .

2. On November 16, 2000, Defendant Compañía de Aguas filedMotion for Joinder of Motion to Dismiss Filed by PRASA (DocketNo. 22). On February 26, 2001, this Court granted said motion(Docket No. 26). Consequently, the discussion herein regardsboth co-Defendants, PRASA and Defendant Compañia de Aguas.

3. Failure to comply with Rule 8(a)(1) occurs when theallegations in the complaint are insufficient to show that thefederal court has jurisdiction over the subject mater of thecase. That is, the complaint is in fact defective and must bedismissed regardless of the actual existence of subject matterjurisdiction unless said deficiency is cured. See Sierra Clubv. Shell Oil Co., 817 F.2d 1169 (5th Cir. 1987).

4. As stated in § 101 of the Clean Water Act,33 U.S.C. § 1251, Congress enacted the Clean Water Act "to restore andmaintain the chemical, physical, and biological integrity of theNation's waters."

5. The "good faith" pleading requirement is derived from FED.R. Civ. P. 11(b)(2) which states:

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge information, and belief, formed after an inquiry reasonable under the circumstances, —

(1) . . .

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

6. Injury in fact is defined as "a harm that is both`concrete and actual or imminent', not conjectural orhypothetical." Vermont Agency of Natural Resources v. UnitedStates ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146L.Ed.2d 836 (2000).

7. Causation is defined as "a `fairly . . . traceable'connection between the alleged injury in fact and the allegedconduct of the defendant." Id.

8. Redressability is defined as "a `substantial likelihood'that the requested relief will remedy the alleged injury infact." Id.

9. The Jones Court followed the reasoning of Friends ofthe Earth v. Consolidated Rail Corporation, 768 F.2d 57, 63(2nd Cir. 1985).

10. According to the Supreme Court, traditional agencies are"agencies possessing a unitary structure." Martin, Id. TheFirst Circuit Court of Appeals defines a typical agency as "anagency that would combine rulemaking, prosecutorial, andadjudicative functions." Donovan v. Amorello & Sons, Inc.,761 F.2d 61, 65 (1st Cir. 1985).

11. The First Circuit Court of Appeals held in North andSouth Rivers Watershed Association, Inc. v. Town of Scituate,949 F.2d 552, 557 (Ist Cir. 1991) that a "[s]tate Orderrepresents a substantial, considered and ongoing response to theviolation, and that the DEP's [the State version of the EPA]enforcement action does in fact represent diligentprosecution."

Back to top