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1N THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA, Plaintiff, v. MUNICIPALITY OF ARECIBO and THE COMMONWEALTH OF PUERTO RICO, Defendants. CIVIL ACTION NO.

COMPLAINT Plaintiff, the United States of America "United States"), by authority ofthe Attorney ( General of the United States and on behalf ofthe Administrator ofthe United States Environmental Protection Agency "EPA"), alleges as follows: ( 1. This is a civil action brought pursuant to Section 309(b)and (d)of the

Clean Water Act "CWA" or "Act"), 33 U.S.C. 1319(b) and (d). The United States seeks civil ( penalties and injunctive relief for violations of Sections 301, 308, 309 and 402 of the Act, 33 U.S.C. 1311, 1318, 1319 and 1342, and applicable implementing regulations. This civil action is brought against the Municipality of Arecibo "Arecibo" or "Defendant pursuant to Sections ( ") 309(b),(d)and 504 ofthe Clean Water Act "Act"), 33 U.S.C. 1319(b),(d), and 1364, for ( injunctive relief of unauthorized, illegal and persistent discharges of pollutants and other violations of Sections 301 and 504 ofthe Act, 33 U.S.C. 1311 and 1364. The violations consist of

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numerous unpermitted discharges of storm water into waters of the United States; failure to file a Notice of Intent for such discharges; violations of the National Pollutant Discharge Elimination System General Permit for Discharges from Small Municipal Separate Storm Sewer Systems (the "NPDES Small MS4 General Permit"); and discharges of untreated sewage and sewage sludge from Arecibo's MS4 system onto public and private property located in the Municipality of Arecibo where people have, may have, or could come into contact with the sewage. JURISDICTION 2. This Court has jurisdiction over the subject matter ofthis action pursuant to

Section 309(b)ofthe CWA,33 U.S.C. 1319(b), and pursuant to 28 U.S.C. 1331, 1345, and 1355. 3. Venue is proper in this district pursuant to Section 309(b) of the CWA,33 U.S.C.

1319(b), and pursuant to 28 U.S.C. 1391(b) and (c), and 28 U.S.C. 1395. 4. Notice of the commencement ofthis action was given to the Commonwealth of

Puerto Rico, pursuant to Section 309(b)ofthe CWA,33 U.S.C. 1319(b), on April 7, 2010. 5. Authority to bring a civil action is vested in the Attorney General of the United

States pursuant to Section 506 ofthe CWA,33 U.S.C. 1366, and 28 U.S.C. 516 and 519. THE PARTIES 6. The Plaintiff in this action is the United States of America, acting by the authority of the

Attorney General and on behalf of the Administrator ofthe EPA. 7. Defendant, the Municipality of Arecibo, is a municipality organized under the

laws of the Commonwealth ofPuerto Rico, and owns and operates a municipal separate storm 2

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sewer system( "MS4 and the La Puntilla Pump Station "Pump Station")in Arecibo, Puerto ") ( Rico. 8. Section 309(e) ofthe Act; 33 U.S.C. 1319(e), provides:

Whenever a municipality is a party to a civil action brought by the United States under this section, the State in which such municipality is located shall be joined as a party. Such State shall be liable for payment of any judgment or any expenses incurred as a result of complying with any such judgment entered against the municipality in such action, to the extent that the laws of that State prevent the municipality from raising revenues needed to comply with such judgment. 9. The Commonwealth of Puerto Rico is a "State" pursuant to Section 502(3) of the

Act, 33 U.S.C. 1362(3), and joined as a defendant in this action pursuant to Section 309(e) of the Act, 33 U.S.C. 1319(e). STATUTORY BACKGROUND 10. Section 301(a) ofthe CWA,33 U.S.C. 1311(a), prohibits the discharge of

pollutants by any person into navigable waters except in compliance with, among other things, a permit issued pursuant to Section 402 of the CWA,33 U.S.C. 1342. 1 1. Section 308(a) of the CWA,33 U.S.C. 1318(a), authorizes the Administrator

of EPA to require the owner or operator of any point source to provide such information as the Administrator may reasonably need to carry out the objectives of the CWA,including, among other things, the development and issuance of National Pollutant Discharge Elimination System ( "NPDES")permits under Section 402 ofthe CWA,33 U.S.C. 1342, and determining whether a person is in violation of a limitation imposed by the CWA. 12. Section 309(a)(3) ofthe CWA,33 U.S.C. 1319(a)(3), authorizes the

Administrator of EPA to issue orders requiring compliance with, among others, Sections 301 and 308 of the Act, or a permit issued pursuant to Section 402 of the Act.

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13.

Section 402(a) of the CWA,33 U.S.C. 1342(a), authorizes the Administrator of

EPA to issue permits for the discharge of pollutants into navigable waters in compliance with the CWA. 14. Section 502(5) ofthe CWA,33 U.S.C. 1362(5), defines "person" to include "an

individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a state, or any interstate body." 15. Section 502(12)ofthe Act,33 U.S.C. 1362(12), defnes "discharge of a

pollutant" to include "any addition of any pollutant to navigable waters from any point source." 16. Section 502(6) ofthe Act, 33 U.S.C. 1362(6), defines "pollutant" to include,

among other things, dredged spoil, sewage, sewage sludge, biological materials, rock, dirt, and sand. 17. Section 502(14)of the Act, 33 U.S.C. 1362(14), defines "point source" to

include "any discernible, confined and discrete conveyance ...from which pollutants are or may be discharged," including any pipe, ditch, channel, conduit, or discrete fissure. 18. Section 502(7) of the CWA,33 U.S.C. 1362(7), defines "navigable waters" as

"the waters ofthe United States, including the territorial seas." 19. EPA regulations define "waters ofthe United States" to include, among other

things,(i) all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce;(ii) all inter-state waters;(iii) all other waters such as intrastate lakes, rivers and streams (including intermittent streams), the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce;(iv)tributaries to such waters; and certain wetlands (including wetlands adjacent to these waters). 40 C.F.R. 122.2.

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20.

Section 402(p)ofthe CWA,33 U.S.C. 1342(p)sets forth the requirements for

the discharge for storm water, including discharges of storm water from MS4s. 21. 40 C.F.R. 122.26(b)(8), defines an MS4 as a "conveyance or system of

conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains):(i) owned or operated by a city, town, borough, county, parish, district, association, or other public body (created by State law)that discharges into waters of the United States;(ii) designed or used for collecting or conveying storm water;(iii) which is not a combined sewer; and (iv) which is not part of a Publicly Owned Treatment Works ...." 22. 40 C.F.R. 122.26(b)(16)(ii) defines a "small municipal separate storm sewer

system" in part, as "not defined as `large' or `medium' municipal separate storm sewer systems pursuant to paragraphs(b)(4) and (b)(7)of this section, or designed under paragraph (a)(1)(v) of this section." 23. Pursuant to 40 C.F.R. 122.32(a)(1), all small MS4s located in an "urbanized

area"(as determined by the latest Decennial Census by the Bureau of Census) are regulated small MS4s. 40 C.F.R. 122.33(a) and (b)require operators of regulated small MS4s to seek authorization to discharge under the applicable NPDES general permit issued by the permitting authority, by submitting a Notice ofIntent "NOI for coverage under such permit. ( ") 24. Pursuant to Section 402 ofthe CWA,33 U.S.C. 1342, on November 6,2006,

the NPDES Small MS4 General Permit for storm water discharges associated with MS4's within urbanized areas in Puerto Rico into water ofthe United States was published in the Federal Register. 71 Fed. Reg. 64,952.

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25.

The NPDES Small MS4 General Permit outlines a set of provisions that

municipalities must.follow in order to comply with the NPDES storm water regulations including NOI requirements, standards, prohibitions and management practices for changes of from MS4s within urbanized areas ofthe United States. 26. The NPDES Small MS4 General Permit expires on November 6,2011. 71 Fed.

Reg. No. 64,952-3 (November 6,2006). 27. Municipalities intending to obtain coverage for discharges associated with

Municipal Separate Storm Sewer Systems under the NPDES Small MS4 General Permit should have submitted a NOI on or before February 5,2007. 71 Fed. Reg. No. 64,952-3(November 6, 2006). 28. Section 309(b) of the CWA,33 U.S.C. 1319(b), authorizes the commencement

of a civil action for appropriate relief, including a permanent or temporary injunction, against any person who violates, among other things, Section 301(a) or 308(a)of the Act,33 U.S.C. 1311(a) and 1318(a), or violates any of the terms or conditions of an NPDES permit, issued pursuant to Section 402 ofthe Act, 33 U.S.C. 1342. 29. Section 504(a) of the Act, 33 U.S.C. 1364 (a), authorizes the Administrator to

commence a civil action for injunctive relief upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment to the health or welfare of persons. 30. Section 309(d)of the Act, 33 U.S.C. 1319(d), 33 U.S.C. 1319(d), authorizes

the commencement of an action for civil penalties against any person who violates CWA Sections 301(a) or 308(a), 33 U.S.C. 1311(a) and 1318(a), or any permit condition or

[~

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limitation implementing any of such sections in a permit issued under section 402, 33 U.S.C. 1342. 31. Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990(28

U.S.C. 2641 note: Pub. L. 101-40, enacted October 5, 1990; 104 Stat. 890), as amended by the Debt Collection Improvements Act of 1996(31 U.S.C. 3701 note: Pub. L. 101-34, Apri126, 1996, 110 Stat. 1321), EPA promulgated the Civil Monetary Penalty Inflation Adjustment Rule. Under that Rule, EPA may seek civil penalties of up to $32,500 per day for each violation occurring after March 15, 2004, and $37,500 per day for each violation occurring after January 12, 2009. 61 Fed. Reg. 69,364(Dec. 13, 1996); 69 Fed. Reg. 7,121 (Feb. 13, 2004); 73 Fed. Reg. 73,345(Dec. 11, 2008). GENERAL ALLEGATIONS 32. Arecibo owns and operates a~ small MS4 in Puerto Rico. Flows from Arecibo's

MS4 enter the Pump Station owned and operated by Arecibo. 33. Arecibo owns and operates the Pump Station in the Municipality of Arecibo. This

Pump Station is designed to control flooding within the Buenos Aires Community,an urban area within Arecibo, by pumping large volumes of storm water or storm water mixed with groundwater only to nearby receiving waters. The Pump Station collects, conveys and discharges storm water into the Perdomo Channel, a tributary to the Rio Grande de Arecibo. 34. The Pump Station was designed for one dry well, two centrifugal pumps and

motor drive, an electrical control panel to control the pump, a sump, a suction pipe, a wet well (also known as a chamber or wet pit) and inlet chamber, a cast iron and commercial steel discharge pipes and a concrete shed (e.g., a pump house)to enclose the pump and drivers and

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house the electrical control panel. In addition, the pump station houses an emergency generator unit to be used in any case of a power failure. 35. Arecibo's MS4 should not contain flow during dry weather, except for those

allowable non-storm water flows authorized by Arecibo's MS4 permit(which is the NPDES Small MS4 General Permit). 36. (5). 37. Arecibo is a regulated small MS4 pursuant to 40 C.R.F. 122.32(a)(1). Arecibo is a "person" pursuant to Section 502(5)of the Act, 33 U.S.C. 1.362

Pursuant to Sections 301(a) and 402(p)of the CWA,33 U.S.C. 1311(a) and 1342(p), Arecibo was required to submit an NOI on or before February 5, 2007, and a Storm water Management Plan "SWMP")on or before August 6, 2007. ( 38. On July 10, 2007, EPA sent Arecibo a Request for Information(RFI)letter,

pursuant to Section 308 of the CWA,33 U.S.C. 1318. The RFI letter instructed Arecibo to submit evidence of coverage under the NPDES Small MS4 General permit by February 5, 2007. 39. Arecibo failed to submit evidence that it filed a NOI to obtain coverage under

NPDES Small MS4 General Permit. 40. On February 7, 2008, pursuant to Section 309(a) of the CWA,33 U.S.C.

1319(a), EPA issued an Administrative Compliance Order "First ACO")against Arecibo for its ( failure to obtain coverage under the NPDES Small MS4 General Permit, as required by 40 C.F.R. 122.32(a). 41. The First ACO required Arecibo to, among other things,(1)submit to EPA a

complete NOI to obtain coverage under the Small MS4 General Permit; and (2)develop and commence the implementation of a SWMP.

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42. 43.

Arecibo submitted a NOI on May 16, 2008. In a letter dated September 5, 2008,EPA deemed the NOI form submitted by

Arecibo complete, and Arecibo was authorized to discharge storm water from its MS4 under the terms and conditions of the NPDES Small MS4 General Permit after September 5, 2008. 44. 45. Defendant Arecibo submitted a SWMP on May 16, 2008. EPA conducted an inspection of Arecibo's MS4 System and the Pump Station on

January 23,2008 "First Inspection") ( 46. The First Inspection was conducted on a sunny day and involved visual

observations and evaluations ofthe sewer collection system facilities. 47. During EPA's First Inspection, EPA inspectors found Arecibo's MS4 System

interconnected with the Puerto Rico Aqueduct and Sewer Authority's "PRASA")Sanitary ( Sewer System (SSS)causing sewage to flow into Arecibo's MS4 System when rain events occur. 48. During EPA's First Inspection, EPA inspectors found evidence of sewage in

storm drains at two storm drains located at the corner of Salvador Brau Street and Degetau Street. The inspectors also smelled sewage at this location. 49. During EPA's First Inspection, EPA inspectors observed sand and other debris

consistent with storm water in sewage found in PRASA's SSS by EPA inspectors on Monrozeau Street. 50. During EPA's First Inspection, EPA inspectors observed a physical

interconnection between Arecibo's MS4 System and PRASA's SSS on Mirta Silva Street. 51. During EPA's First Inspection, EPA inspectors observed a physical

interconnection between Arecibo's MS4 and PRASA's SSS through manhole located at the

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intersection of Monrozeau and Jose Olmo Street. The manhole was full of sewage and debris, and water was not flowing. The storm sewer contained sewage. 52. During EPA's First Inspection, EPA inspectors observed sewage accumulating in

two storm water drains on Novas Street. 53. During EPA's First Inspection, EPA inspectors observed sewage and debris of

sewage nature accumulating in the wet well at Arecibo's Pump Station. 54. During EPA's First Inspection, EPA inspectors visited two residences and were

informed that sewage backed up into their residences during heavy rain events. S5. On February 13, 2008, EPA issued a Second ACO to Defendant Arecibo to cease

and desist all non-storm water discharges into waters of the United States; perform an evaluation ofthe storm sewer system no later than May 31, 2008; develop and implement a compliance plan to address non-storm water cross-connections including the rehabilitation ofthe La Puntilla Pump Station no later than October 31, 2008, and submit progress reports. 56. In a May 30, 2008 Progress Report submitted to EPA,Defendant Arecibo

admitted that an interconnection exists between the MS4 and PRASA's SSS. 57. In this May 30, 2008 Progress Report, Defendant Arecibo also admitted that the

pump station was not operating. 58. Inspection") 59. During the Second Inspection, EPA found that conditions identified in First On September 18, 2008, EPA conducted afollow-up inspection "Second (

Inspection remained, and that additional points of interconnection between PRASA's SSS and Arecibo's MS4.

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60.

Specifically during the Second Inspection, EPA inspectors found that Arecibo's

storm sewer drains were interconnected to PRASA's SSS at Jose Olmo Street in two places. One connection was found in front of the Professional Training Gym,and also.in front of the House of Joy building. 61. Other interconnections of Arecibo's storm sewers with PR.ASA's SSS were found

at Monrozeau Street and at Mirta Silva Street. 62. EPA inspectors also found interconnections oftwo of Arecibo's storm sewers

with PRASA's SSS at Israel Arroyo Street during the Second Inspection. 63. During the Second Inspection, EPA also found that the evaluation of Arecibo's

MS4 System was not completed by Arecibo, and that Arecibo also failed to develop and implement a compliance plan to address the non-Storm water cross-connections between its MS4 System and PR.ASA's SSS as required by the Second ACO. 64. 65. To date, Arecibo has not completed an evaluation of its MS4 System. On January 14, 2010,EPA conducted a third inspection of the Arecibo MS4

System "Third Inspection") ( 66. 67. It was raining heavily during the Third Inspection. During EPA's Third Inspection, and in subsequent inspections by EPA,an EPA

inspector observed that the Pump Station receives storm water and raw sewage from Arecibo's
I~~~

68.

During EPA's Third Inspection, and in subsequent inspections by EPA,the EPA

inspector observed sewage, sewage debris and other debris inside the Pump Station's wet well. 69. During EPA's Third Inspection, and in subsequent inspections by EPA,the EPA

inspector also detected foul odors of a sewage nature at the Pump Station's wet well.
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70.

During EPA's Third Inspection, the EPA inspector observed that the Pump

Station's wet well was almost full of storm water and non-storm water. It appeared to have approximately one foot of space remaining in the wet well before flooding from the wet well would occur. It was apparent to the EPA inspector that the wet well had not been cleaned in some time, and was not being properly operated and maintained. The storm water and non-storm water inside the wet well appeared to contain grease, oil-sheen,foam,scum and other floating solids of a sewage nature. 71. The Pump Station commercial steel and cast iron discharge pipes are

approximately 36 inch in diameter and both discharge into the Perdomo Channel, a tributary to the Rio Grande de Arecibo. 72. During the Third Inspection, and in subsequent inspections by EPA,the EPA

inspector observed discharge of non-storm water from the Pump Station discharge pipes into the Perdomo Channel, a tributary to the Rio Grande;de Arecibo. 73. The operations of the.Pump Station cause discharge ofstorm water and non-storm

water into the Perdomo Channel, a tributary to the Rio Grande de Arecibo. During the Third Inspection, the commercial steel discharge pipe at the Pump Station was discharging continuously and the color of the discharge was light brown, indicating the presence of sewage. 74. During the Third Inspection, the EPA inspector observed sewage seeping through

a manhole cover of a sanitary sewer manhole in PRASA's SSS on Cristobal Colon Street. 75. The sewage seeping from this manhole reached a nearby storm drain and entered

Defendant's MS4 system. 76. Sewage exposure can cause health concerns including exposure to bacteria,

protozoa and viruses.

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77.

During the Third Inspection, the EPA inspector observed that segments ofthe

Giraud Street, Jose Olmo Steet and intersections of Limon de Arce Street and Antonio Figueroa Street were flooded with storm water and non-storm water. 78. Sampling results taken from the cast iron discharge pipe at the Pump Station on

August 2, 2010 indicate that seventeen out ofthe thirty-three pollutants detected, exceeded the Puerto Rico Water Quality Standards Regulations set by the Puerto Rico Environmental Quality Board. The 17 pollutants are: Ammonia,BOD,Chlorpyrifos, Choride, Color, Copper, Dissolved Oxygen, Fecal Coliform, Lead, Oil and Grease, Setteable Solids, Silver, Surfactants, Total Coliform, Total Dissolved Solids, Total Suspended Solids, and Zinc. 79. United States. 80. The MS4, which includes the Pump Station, is a point source as defined by The Perdomo Channel and the Rio Grande de Arecibo are both waters ofthe

Section 5.02(14) of the CWA,33 U.S.C. 1362(14). 81. The Pump Station discharges sewage and other pollutants (as defined by Section

502.(14) ofthe CWA,33 U.S.C. 1362 (14)), into the Perdomo Channel, a tributary to the Rio Grande de Arecibo. 82. United States. FIRST CLAIM Failure to Obtain Coverage Under NPDES Small MS4 General Permit 83. The United States realleges and incorporates by reference the allegations of Arecibo does not have a NPDES permit to discharge pollutants into waters ofthe

Paragraphs 1 through 82 above as though fully set forth herein.

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84.

From at least February 5, 2007 to May 16, 2008, Defendant Arecibo discharged

storm water from a point source without coverage under the NPDES Small MS4 General Permit. 85. By failing to obtain authorization to discharge storm water pursuant to the

NPDES Small MS4 General Permit, Arecibo violated Section 308(a) of the CWA,33 U.S.C. 1318(a), from at least February 5, 2007 until May 16, 2008. 86. Pursuant to Section 309(b) and (d)of the CWA,33 U.S.C. 1319(b) and (d),

Arecibo is liable for a civil penalty of up to $32,500 per day for each violation that occurred through January 12, 2009. 73 Fed. Reg. 75340(Dec. 11, 2008). SECOND CLAIM Unauthorized Discharges of Storm Water 87. The United States realleges and incorporates by reference the allegations of

Paragraphs 1 through 86 above as though fully set forth herein. 88. During certain storm events from at least February 5, 2007 and continuing until at

least May 16, 2008, Arecibo discharged storm water from the point source of La Puntilla pump station into waters of the United States without a permit. 89. The discharges of storm water from Arecibo's MS4 are discharges of pollutants

within the meaning of Section 502(12)of the CWA,33 U.S.C. 1362(12). 90. Each of the discharges of storm water without a permit is a violation of Section

301(a) ofthe CWA,33 U.S.C. 1311(a). 91. Pursuant to Section 309(b)and (d)ofthe CWA,33 U.S.C. 1319(b) and (d),

Defendant Arecibo is liable for a civil penalty of up to $32,500 per day for each violation that occurred through January 12, 2009.

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THIRD CLAIM Permit Violations 92. herein. 93. Defendant Arecibo has discharged pollutants, including but not limited to sewage The allegations set forth in Paragraph 1 through 91 are incorporated by reference

and sewage sludge, through interconnections at its MS4 System with PRASA's SSS that leads to discharges from the Pump Station into waters ofthe United States without coverage under a NPDES Permit. 94. The Small MS4 General Permit prohibits discharges that are mixed with sources

of non-storm water unless such non-storm water discharges are in compliance with a separate NPDES permit, or are determined to not be a substantial contributor of pollutants to waters ofthe United States. (Section 1.3.1 of the Small MS4 General Permit, Permit Nos. PRR040000 and PRR04000F(November 6, 2006)). 95. These discharges of sewage and sewage sludge, as well as discharges of other

pollutants discussed above in Paragraph 78, are substantial contributor of pollutants to waters of the United States. 96. The Small MS4 General Permit requires Arecibo, as the permittee, as part of its

SWMP to develop, implement, and enforce a program to detect and eliminate illicit discharges into the MS4. ( 4.2.3. of the Small MS4 General Permit, Permit No. PRR 040000,PRR 04000F).

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97.

As the illicit connections remain on Arecibo's MS4 and cause illicit discharges to

occur, Defendant Arecibo has failed to develop, implement and enforce a program to detect and eliminate illicit discharges as required by the Small MS4 General Permit. 98. The Small MS4 General Permit also requires Arecibo, as the permittee, to take all

reasonable steps to minimize or prevent any discharge in violation of this permit that has a reasonable likelihood of adversely affecting human health or the environment( 6.4 Small MS4 General Permit, Permit No. PRR 040000,PRR 04000F). 99. Defendant Arecibo has failed to take all reasonable steps to minimize and

eliminate apparent discharges in violation of Small MS4 General Permit, and these discharges have adversely affected the environment and have a reasonable likelihood of adversely affecting human health. 100. The Small MS4 General Permit also requires the Permittee at all times to properly

operate and maintain all facilities and systems of treatment and control(and related appurtenances) which are installed or used by the Permittee to achieve compliance with the permit and stormwater management program.( 6.9 Small MS4 General Permit, Permit No. PRR 040000,PRR 04000F). 101. Defendant Arecibo has failed to properly operate and maintain the Pump Station

as it has only operated one pump at its Pump Station, and at times even that one pump has not been operating. Additionally, Defendant Arecibo has not properly operated or maintained the wet well as it is not cleaned out as often as is required, and therefore, is not properly pumping storm water from the MS4. 102. As alleged above in Paragraphs 93-101, Defendant Arecibo has and will continue

to violate its Small MS4 General Permit unless enjoined by this Court.
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103.

By failing to comply with the terms and conditions of its Small MS4 General

Permit, Defendant Arecibo has violated its permit and Section 301 ofthe Act, 33 U.S.C. 131 1. 104. Arecibo will continue to violate the terms and conditions of its Small MS4

General Permit unless restrained by this Court. 105. Pursuant to Section 309(h) and (d), Defendant Arecibo is liable to the United

States for injunctive relief and civil penalties up to $32,500 per day for each violation ofthe CWA occurring after March 15, 2004 through January 12, 2009, and up to $37,500 per day for each violation ofthe CWA occurring after January 12, 2009.

FOURTH CLAIM Section 504(a) of the CWA Violation untreated sewage released onto public and private r~Y 106. The United States realleges and incorporates by reference the allegations of

Paragraphs 1 through 105 above as though fully set forth herein. 107. Section 504(a) of the CWA,33 U.S.C. 1364(a) states, in pertinent part:

(a) Emergency powers Notwithstanding any other provision of this chapter, the Administrator upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment to the health of persons... may bring suit on behalf ofthe United States in the appropriate district court to immediately restrain any person causing or contributing to the alleged pollution to stop the discharge of pollutants causing or contributing to such pollution or to take such other action as may be necessary. 108. The First Inspection revealed that sewage enters Arecibo's MS4 System through

interconnections with PRASA's SSS.

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109.

The Second and Third Inspections, as well as subsequent inspections, reveal that

these interconnections still exist on Arecibo's MS4 system. 110. Due to the interconnection between the PRASA's SSS and the Arecibo's MS4

System, the storm water sent to PRASA's SSS overloads the SSS and causes sewage to backup into streets, residences, and private and public properties, especially during heavy precipitation. l~l 1. The sewage backups cause discharges of untreated sewage to be released onto

private property, including but not limited to streets, storm drains, and yards and, into buildings, including residential buildings, where people have or may have come into contact with such sewage. 112. Community residents have informed EPA inspectors that the sewer pipelines

along the Salvador Brau Street(old Israel Arroyo Street) frequently malfunction causing raw sewage overflows and backups. 113. The Arecibo residents informed EPA inspectors that the overflows are more

common during heavy rain events. 114. During EPA's First Inspection, the EPA Inspectors visited atwo-story residence

on Salvador Brau Street. The homeowner of this residence stated that sewage backups occurred in the bathroom at least three times in the three months prior to the First Inspection, specifically during heavy rain. 115. EPA inspectors observed debris of a sewage nature in the bathroom, as well as,

sewage debris adhering to walls in the living room and one of the bedrooms in this two-story residence on Salvador Brau Street.

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116.

During EPA's First Inspection, a resident along Monrozeau Street (old Federico

Degetau Street) stated that her house, backyard and bathroom have been flooded with sewage. This resident also noted that the discharge ofsewage occurs during heavy precipitation. 117. During the First and Third Inspections, EPA inspectors smelled sewage odors on

Girau Street and at the Pump Station. 118. During the First and Third Inspections, and during subsequent inspections, an

EPA inspector also smelled sewage and observed debris and raw sewage in the Pump Station's wet well. 119. The pump station not operating properly, which includes but is not limited to

failing to operate the pumps at the pump station and failing to clean the wet well, causes storm water to flood into streets surrounding the location ofPump Station. Due to the interconnections with PRASA's SSS and Arecibo's MS4,the overflows contain sewage and are discharged into residential streets surrounding the Pump Station. 120:. 121. The contaminants in sewage represent a significant threat to human health. The public health concerns of sewage exposure include bacteria, protozoa, and

viruses. Exposure to untreated sewage,therefore presents an "imminent and substantial endangerment to the health of persons" who may come in contact with it. 122. Untreated sewage falls within the definition of"pollution" as that term is defined

in Section 502(19)ofthe CWA,33 U.S.C. 1362(19). Hence, Arecibo's MS4 system is a "pollution source" within the meaning of Section 504(a). 123. Upon information and belief, the release of sewage caused by the interconnection

of PRASA's SSS and Arecibo's MS4 System will continue unless enjoined by the Court.

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124.

Pursuant to Section 504(a)the United States seeks an order enjoining Arecibo to:

1)take measures to prevent or minimize to the greatest extent possible the release ofsewage from Arecibo's MS4 System into the Rio Grande de Arecibo, and prevent and minimize discharges of sewage into streets, buildings and residences; 2)develop a comprehensive illicit discharge detection and elimination program which includes a response plan to follow when release of sewage occur from Arecibo's MS4 System, including the Pump Station; 3)improve public outreach and communication to notify the public about the risks associated with contacting sewage and how to contact the City in the event of a sewage release; and 4)take such other action as may be necessary to eliminate release of sewage the Pump Station. RELIEF SOUGHT Wherefore, Plaintiff, the United States of America, respectfully requests that the Court grant the following relief: 1. Permanently enjoin Defendant Arecibo from discharging pollutants into waters of Arecibo's MS4,including
from

the United States and from creating pollution sources that present and imminent and substantial endangerment to human health in violation of the Clean Water Act; 2. Order Defendant Arecibo to comply with all applicable requirements of the Clean

Water Act and its implementing regulations; 3. Order Defendant Arecibo to pay civil penalties not to exceed $32,500 per day for

each violation that occurred on or before January 12, 2009, and $37,500 per day for each violation that occurred after Januaxy 12, 2009; 4. 5. Award the United States all costs and disbursements ofthis action; and Grant such other relief as the Court deems just and proper. 20

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Respectfully submitted, IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division Date: June 1, 2012 s/Patricia A. McKenna PATRICIA A. MCKENNA Senior Attorney Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice PO Box 7611 Ben Franklin Station Washington, DC 20044-7611 Ph: 202.616.6517 F: 202.616.2427 E: patricia.mckenna@usdoj.gov ROSA E. RODRIGUEZ-VELEZ United States Attorney ISABEL MUNOZ Assistant United States Attorney District of Puerto Rico Torre Chaxdon, Suite 1201 350 Carlos Chardon Avenue San Juan,PR 00918 787.282.1841 isabel.munoz@usdoj .gov

OF COUNSEL: ROBERTO DURANGO US EPA Region 2 Caribbean Environmental Durango.Roberto@epa.gov

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