United States v. Puerto Rico Aqueduct and Sewer Authority

No. 78-0038(CC) (D.P.R. May 4, 1987)

The court holds that the Puerto Rico Aqueduct and Sewer Authority (PRASA) is liable for a $32 million civil penalty under the Federal Water Pollution Control Act for multiple violations of a consent order concerning Puerto Rico's sewage treatment program. The court rejects PRASA's request not to enforce the order because of ongoing settlement discussions, noting that such discussions have been underway for years. Moreover, PRASA's claim that it had insufficient time to respond to specific instances of alleged violations is belied by its failure to request more time and its ongoing failure to challenge the factual findings of the court-appointed Monitor. The court rejects PRASA's argument that its earlier agreement to implement pollution control manuals was an agreement only to explain the manuals to its operators, and not actually to comply with them. The end result of the overall situation, the court finds, is that most of the waste water discharged daily by Puerto Rico's 3.3 million inhabitants is not being adequately treated.

The court applies the schedule of stipulated penalties for non-compliance contained in the earlier consent order, finds a total non-compliance fine of $32,032,600, and requests motions from the parties indicating how to manage this money.

Counsel for Plaintiff
Juan Llewellyn
Environmental Protection Agency
26 Fed'l Plaza, New York NY 10278
(212) 264-2525

Ronald G. Gluck
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5289

Counsel for Defendants
Elizabeth Armstrong, Ass't General Counsel
Puerto Rico Aqueduct and Sewer Authority
San Juan, Puerto Rico

David E. McGiffert, Michael G. Michaelson
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20044
(202) 662-6000

[17 ELR 20893]

Cerezo, J.:

Opinion and Order

This action for injunctive relief seeking redress for violations to the Federal Water Pollution Control Act and its regulations, 33 U.S.C. § 1251 et seq. (commonly known as the Clear Water Act), was filed on January 12, 1978. It essentially alleged that more than nine years ago the ineffective operation by Puerto Rico Aqueduct and Sewer Authority (PRASA) of more than 90 waste water treatment plants was polluting the navigable waters of Puerto Rico due to the discharge of raw or poorly treated waste water into them. A few weeks after the complaint was filed defendants admitted that all of these allegations were true. On February 2, 1978, the Court (Torruella, J.) entered a "Final Judgment" in which defendants were found to have violated these federal environmental laws and were permanently enjoined and restrained from further violating the laws or the decree. Now before us is plaintiff's motion for enforcement of the Court's latest decrees which constitute modifications of that 1978 judgment, namely, the February 28, 1985 Order Further Modifying and Amending the Final Judgment and the March 11, 1986 Interim Order. To properly understand the aspect of enforcement it is necessary to review the procedural history leading to this motion and to the orders involved.

Despite the fact that PRASA was permanently enjoined as early as February of 1978 from further polluting navigable waters of this island, it continued its noxious practice of contaminating them by the daily dumping of gallons upon gallons of inadequately treated waste water. After two years of this continuous pestilence and pollution, the Court approved an agreement reached by the parties whereby PRASA paid a $10,000 fine for its admitted violations to the 1978 injunctive decree, and obliged itself to put in effect a number of measures to remedy its ineffective treatment of waste water and thus comply with federal environmental laws. The Court entered an order to this effect on May 16, 1980. As part of this court approved compromise, the parties further agreed that a court appointed Monitor was needed to ascertain if PRASA was complying with the decrees. Dr. Rafael Rios was designated as Monitor and since then he has regularly submitted quarterly reports reflecting his field examinations of approximately ninety PRASA waste water treatment plants and laboratories. Notwithstanding the appointment of a Monitor, PRASA's second wholesale admission that it continued to pollute Puerto Rico's waters and its renewed promise to improve operations, it again violated the decree and the federal environmental laws. During August of 1981 the Monitor filed two motions charging that PRASA was still violating the decree. The matter was set for hearing. The Court found that PRASA had continuously violated the prior decree and fined it at a rate of $100 per day for a total of $350,000, a sum which was set aside as a special fund to purchase and install chlorine detectors within 90 days. The parties then again entered into another stipulation which obtained judicial approval on July 9, 1982. PRASA once more admitted that it had violated the prior decrees. Plaintiff, nonetheless, waived all claims for these past violations in exchange for separation and use of the special fund of $350,000 to improve disinfection practices. PRASA agreed, and the order so disposed, that fixed daily penalties would be imposed in the event of future non-compliance. During March 1983, a discharge of contaminated effluents into the Espiritu Santo river, which created serious potential health risks prompted [17 ELR 20894] plaintiff to request a temporary restraining order to call a halt to this situation. After a hearing, the Court granted the request and ordered PRASA to take immediate corrective action regarding its Rio Grande waste water treatment plant, including the placing of warning signs in the areas where PRASA had contaminated the river channel and beach and imposing fines of $10,000 for each day pollutants were discharged. Meanwhile, the Monitor's quarterly reports, totaling 13 by the time, continued to pile up, charging PRASA with constant and serious violations to the decree and to federal environmental laws.

On April 27, 1984, plaintiff requested that the Court find PRASA in violation of the July 9, 1982 Order. The matter was set for hearing in June 1984. The parties informed the possibility of settling the matter and were allowed two weeks to do so. Further motions requesting more time to conclude negotiations ensued. Nearly eight months later, on December 12, 1984, plaintiff submitted a proposed order agreed to by the parties which further modified and amended the final judgment and asked the court that it wait the required 30 days of publication in the Federal Register for public comment before adopting it. On February 25, 1985 the Court (CC)¹ approved the stipulation and issued the Order Further Modifying and Amending the Final Judgment in which plaintiff deemed satisfied any past violations of the July 9, 1982 Order in exchange for a stipulated fine of $100,000 which was supposed to correspond to the fixed daily penalty schedule of the prior order. PRASA also agreed, among other things, to separate a $900,000 special fund for certain specified remedial actions, to undertake a plant by plant improvement program in accordance with a schedule included in the Order, and to pay certain daily sums, if found in default. Meanwhile, the Monitor's quarterly reports, which had by now grown to a hefty seventeen, continued to charge PRASA with numerous irregularities and deficiencies in the waste water treatment process.

Since the parties had informed of ongoing negotiations, the Court held a status conference on May 20, 1985 and instructed them to file a joint report on the status of defendants' compliance with the February 25, 1985 Order. The report which was filed as well as the Monitor's reports showed that, although defendants continued to repeatedly violate the Order, the parties were still negotiating some sort of agreement. Because of the time that had elapsed, the Court, on October 4, 1985, ordered plaintiff to either seek enforcement of the February 1985 Order, or adopt a strict timetable to conclude negotiations.

On November 15, 1985, plaintiff finally filed its first motion to enforce the February 1985 Order. Although numerous violations were pointed out and many supporting documents were attached, plaintiff chose to reserve the right to seek payment of the stipulated daily fines until PRASA complied with certain schedules of improvements outlined in yet another interim order that plaintiff was proposing PRASA to accept. After requesting additional time to oppose, PRASA filed its opposition on December 18, 1985 simply stating that it was not necessary to engage in a detailed factual analysis of the data relevant to each alleged violation because a settlement could be reached in the near future. It did question several matters in very general terms. It argued that the violations were duplicitous for a single act [sic] could give rise to violations to the order, the environmental permits or the manuals. It contested plaintiff's interpretation of the "implementation" of the operation and maintenance manuals (O & M manuals) required by the February 1985 decree as meaning that the manuals had to be followed. PRASA understood that the February 1985 Order only required it to explain the manuals to the plant operators and to monitor their performance without the imposition of sanctions if the manual was not being followed. PRASA also challenged what it considers to be a retroactive application of the February 1985 Order in that some dates for compliance preceded the date the order became effective. It contested reliance on the Monitor's statistics which it considers do not portrary day to day operations of their plants but instead present "snapshots" taken at three month intervals. PRASA included in an appendix a list of problems raised by plaintiff and by the Monitor in his August 1985 report and the action taken to remedy them. It admitted, however, that it was "not in full compliance with all of the requirements of the order."

On February 11, 1986, the Court informed that, after a meeting in chambers with the Monitors, a hearing would be set to examine the motion to enforce filed on November 15, 1985. However, just days later, plaintiff submitted the results of the ongoing negotiations: a proposed interim order whereby PRASA agreed to set aside a special fund of $100,000 to make necessary repairs and buy certain equipment and materials. On March 11, 1986 the Court entered the proposed interim order, with certain modifications. One of these required that PRASA indicate within 30 days which specific violations of the ones listed in the November 15, 1985 motion to enforce it felt were unwarranted, with a statement of reasons. On April 10, 1986, PRASA appeared, stating in a general fashion, never addressing the specific violations, as ordered, that there was not need to do this because plaintiff was withholding the right to enforce in view of the new interim order and that, consequently the Court had no jurisdiction to enforce sua sponte. PRASA also argued that since there was no "evidentiary record" to support a finding of violations, an evidentiary hearing would be required. Nevertheless, PRASA, reserving the right to raise any other defenses when and if plaintiff sought specific findings or sanctions, challenged the motion to enforce on the general grounds already stated ("snapshot" characteristic of Monitor's data, retroactive and prospective application, O & M manual implementation) and, further argued that the violations charged concerning disinfection practices overlooked the fact that PRASA was making good faith efforts to remedy the situation by building new regional plants, that plaintiff was aware this would take time, and that the deficiencies noted by the Monitor as to lack of alternative power and bypasses were not violations to the Order, as characterized by plaintiff.

On September 30, 1986, in view of plaintiff's representation that the parties were again engaging in negotiations to modify the February 1985 Order and given the fact that the Monitor's reports kept charging serious deficiencies and irregularities in PRASA's waste water treatment practices, the Court once more had to order plaintiff to conclude negotiations by a certain date or seek enforcement. On November 14, 1986 plaintiffs filed their second motion to enforce incorporating the arguments stated in their first motion to enforce of November 15, 1985 and adding new violations based on the Monitor's subsequent reports. On December 2, 1986, PRASA filed a three page opposition to plaintiff's motion, (this time without requesting an additional period to oppose), denying in conclusory terms all the allegations in the supplemental Motion to Enforce as well as those in the prior motion to enforce and requesting an "evidentiary hearing with respect thereto." PRASA noted that plaintiff had made a very large number of individual factual allegations which "would require far more time to evaluate than the limited period allowed to respond to plaintiff's motion." It, however, did not request any additional time to do so, suggesting that, since the parties were still negotiating, any attempt to litigate plaintiff's motion would only slow down PRASA's attempts to improve its waste water treatment facilities by diverting the time and attention of its personnel. PRASA also noted that plaintiff was erroneously interpreting the February 1985 Order "including, but not necessarily limited to, the misinterpretations described in PRASA's Response to Plaintiff's Motion to Enforce, filed on December 18, 1985 and its Response to Interim Order, Item 4, Paragraph 2, filed April 10, 1986." PRASA finally "noted" that the Supplemental Motion to Enforce was also one to modify for it proposed to expand the Monitor's authority to cover the improvement schedule contained in Exhibit VI of the Order. It reserved the right to move to strike the inclusion in the Monitor's quarterly report of November 3, 1986 ofan analysis on the status of the Exhibit VI schedule of improvements, as not being in compliance with the Order. PRASA anticipated that it intended to file "its own motion to modify and/or enforce" on or about December 15, 1986, but it did not do so, and, instead, informed the Court that in light of the progress being made in settlement negotiations, it would not pursue this matter. Plaintiff stated in December 17, 1986 that PRASA's allegations that an evidentiary hearing was needed, were groundless given the absence of a specific opposition on its part. PRASA then responded to plaintiff's reply of December 17 arguing that it was filed in violation of the time allowed by Local Rule 311.7 for a leave to reply and that its general denial was only "[T]he logical consequence of plaintiff's having alleged a very, very large number of particular violations which could not possibly be fully addressed in the limited time allowed for response to the motion even assuming (which PRASA does not concede), that PRASA was under some obligation to respond item by item had time permitted." It added that "in fairness, [17 ELR 20895] no Court could properly permit the steamroller tactica [sic] which plaintiff's motion implicitly involves."² After asserting that it has never taken the position that it has been able to comply fully with the February 1985 Order and admitting that some of the allegations involve non-compliance, others excusable non-compliance or, even if not excused, legal non-compliance, PRASA again sang the soothing lullabye that ongoing negotiations could render plaintiff's motion to enforce moot. Since PRASA's assurances that negotiations were "progressing" came in the midst of a motion to enforce, the Court, on February 2, 1987, ordered plaintiff to respond to these statements. In its reply of March 12, 1987 plaintiff urged the Court to grant the motion to enforce and not wait for the conclusion of negotiations because the "discussions between the parties, to date, have not resulted in a settlement agreement" and that "while discussions between the parties are taking place, defendants continue to violate the February Court Order as evidenced by the Monitor's most recent report filed with the Court on February 5, 1987." Plaintiff again argued that general denials were insufficient to establish the need for an evidentiary hearing to determine liability. PRASA responded that it was "entitled under the Federal Rules of Civil Procedure" to pretrial discovery and an evidentiary hearing on the alleged violations; again complaining of the limited amount of time it had to respond to the Supplemental Motion to Enforce. It said that negotiations under a "quite different approach" were under way but that it was only due to plaintiff's bureaucracy that they took so long. On April 29, 1987 plaintiff informed the Court that negotiations had failed and would not continue. With this framework³ in mind we examine the merits of plaintiff's petition and defendants' opposition.

The November 14, 1986 Supplemental Motion to Enforce reincorporates all the violations signaled in the prior Motion to Enforce filed on November 15, 1985, which covered the period of February 22, 1985 through July 31, 1985, as documented by the May and August Monitor reports, and adds violations covering the period from August 1, 1985 through November 1, 1986. Plaintiff charges that PRASA violated the court's orders in the following ways:

(1) Failure to set aside $900,000 in a special fund and to use these funds to purchase and have in stock an inventory of specified spare parts by no later than August 21, 1985, as required by Paragraph XI(I)(1) and (2) at pp. 46-47 of the February 1985 Order;

(2) Failure to submit, or to submit on a timely basis, non-compliance notifications or bypass notifications to plaintiff's Environmental Protection Agency (EPA) as required by the National Pollutant Discharge Elimination System (NPDES) permits and to undertake proper maintenance, repair and improvement actions to prevent bypasses from occurring, as required by paragraphs XVI(A)(4) and (5) at p. 54 of the February 1985 Order;

(3) Failure to complete the scheduled improvements by their due dates and to submit some of the bi-monthly progress reports, as required by paragraphs VI, VI(D) and Exhibit VI at pp. 31-34 of the February 1985 Order;

(4) Failure to implement the specified disinfection practices to properly disinfect the effluent, as required by paragraph IV(F) and Exhibit III at p. 21 of the February 1985 Order;

(5) Failure to have adequate alternate sources of power, as required by paragraphs IV(G)(1) and (2) at pp. 23-24 of the February 1985 Order;

(6) Failure to maintain proper sludge handling and disposal practices, as required by paragraph IV(H) at pp. 24-25 of the February 1985 Order;

(7) Failure to properly operate and maintain the wastewater treatment plants, as required by paragraph IV(C) at p. 16 of the Order and the NPDES permits;

(8) Failure to employ standard and recognized sampling procedures and techniques to ensure that the Discharge Monitoring Reports (DMR) that have to be submitted for the NPDES permits be accurate, as required by paragraph IV(L) at pp. 28-29 of the Order;

(9) Failure to obtain written approval from EPA before making or permitting additional sewer connections to those over-loaded plants with a sewer connection limitation, as required by paragraph X at pp. 40-43 of the Order;

(10) Failure to take remedial actions at the village of La Parguera's collection and treatment system by June 1985 and to submit some of the monthly reports required therein, as contemplated by paragraph XI(J) at pp. 47-49 of the Order;

(11) Failure to hold quarterly operation and maintenance meetings, as required by paragraph IV(C)(2)(F) at p. 17 of the Order;

(12) Failure to provide weekend and holiday coverage at its plants, as required by paragraph IV(E)(1) at pp. 18-21 of the Order;

(13) Failure to implement the Operation and Maintenance Manuals (O & M) by April 23, 1985 and to submit O & M manuals for the eight new plants incorporated into the Order by June 1, 1984, as required by paragraph IV(C)(2)(B) at pp. 16-17 of the Order; and

(14) Failure to provide training to Regional Engineers and plant operators as required by Exhibit VII to the Court's Order of February 1985.

The November 15, 1985 Motion to Enforce also charged violations in essentially the same areas as stated above, namely, disinfection (chlorination) practices, repair and maintenance, O & M manual implementation, alternate power source, proper sludge handling, adequate sampling techniques, training, schedule of plant by plant improvements, unauthorized bypasses, special $900,000 maintenance and repair parts fund, notifications and reporting. Both motions are accompanied by tables and charts pointing out the data in support of the alleged violations. The latest motion to enforce also makes reference to PRASA's failure to comply with many of the schedules of improvement on a timely basis or, even, to comply at all. Invariably, both motions rely heavily on the findings and observations contained in the Monitor's reports. In order to determine the strength or weakness of plaintiff's allegations it is necessary to examine the Monitor's reports that are relevant, the scope of the Monitor's powers and the February 1985 decree.

The Monitor's quarterly reports are structured according to the Court's Order of February 1985 and are periodically filed as part of the record. Each report covers the following areas: Implementation of Management Consultant Study, Preparation and Implementation of Operation and Maintenance (O & M) Manuals, Implementation of Laboratory Reports, On the Job Training to Weekend Operators, Emergency Response Sign & Crew, Progress Reports on Fund Set-Asides, Report for Upgrading Pump Stations, Certification of New PRASA Officers Having Received and Understood Order, Sewer Connection Limitation, Disinfection Practices, Implementation of Procedure 800 (Sludge Management), Reporting Requirements, Quarterly Meetings, Alternate Power Generators, Chlorine Detectors, Weekend Coverage, Comments to Prior Reports and Special Matters. The monitoring established by the February 1985 orders encompasses what could be considered the three basic activities required of PRASA to improve its deficient waste water treatment; education and training of its operators, reporting, and effective waste water treatment. The operations aspect of the reports covers not only the effective performance of several important activities in the treatment process, such as adequate disinfection and proper removal of solid waste or sludge from the waste water, but also contingent requirements for proper functioning, such as having adequate alternate power sources so that plants continue to treat water when there are power shortages, a common occurrence in Puerto Rico, and the availability of weekend and emergency operators. The monitoring on the operation of the 90 or so waste treatment plants under the Order is reported on a plant by plant basis according to the Monitor's visits during every quarter. The Monitor rates the plants "based on an overall engineering judgment as to the plant's ability to produce a quality effluent which is in compliance with its NPDES permit." The Monitor evaluates the plants based on ten factors (effluent quality, treatment units [17 ELR 20896] in service, process control, alternate power, sludge handling and disposal, disinfection practices, operation staff, weekend and holiday coverage, keeping of records and reports, and sampling and analysis coverage) which he rates as either satisfactory, marginally satisfactory, or unsatisfactory. The factors are rated according to specific criteria for each factor described and explained in the reports and the February 1985 Order. For example, to rate "proper sludge handling and disposal," the process through which solid particles and human excrement contained in waste water that has still not dissolved upon reaching the plant is removed from the water and placed in exposed beds to dry under the sun and is then taken by trucks to acceptable disposal sites, the Monitor evaluates whether the various steps required by the applicable criteria to perform this operation effectively are being followed. The criteria require, among other things, that permits be obtained promptly for environmentally acceptable disposal of the sludge once it dries and is removed from the plant, that said removal be done frequently, that the dry beds be properly maintained, that leachate (the waste water which drains from the sludge when it is deposited to dry at the beds) be returned to the head of the plant for treatment, and that the O & M manual requirements on sludge handling and PRASA's Procedure 800 on sludge disposal be followed. At the end of each plant's evaluation, the Monitor includes a narrative appraisal of the facility where he explains his findings according to the specific criteria of evaluation explained before. With respect to proper sludge handling, some of these appraisals point to the existence of a serious problem in many plants that permit the removed sludge, solid waste, and leachate to leak or slide into the body of water where the plant discharges the treated, supposedly clean water and, thus, renders meaningless the whole purpose of removing the sludge and treating the wastewater. If the Monitor finds that a plant is not taking adequate steps to prevent sludge or leachate from contaminating the body of water where the treated effluent will be discharged, he will probably rate the sludge handling factor as unsatisfactory at this plant. Similar descriptions and findings are also included in every quarterly report as to the other nine factors and as to each plant under the Order.

Besides the information provided by the Monitor's quarterly reports, plaintiff's tables of alleged violations also rely on a report prepared by the Monitor on the status of the schedules of plant by plant improvements that PRASA had agreed to engage in according to the terms of paragraph and Exhibit VI of the February 1985 Order. This report was prepared pursuant to the order of March 7, 1986 which required the Monitor to indicate what improvement "has been and has not been done for wastewater treatment plants" according to said schedule in view of the parties' indications that the interim order proposed for the Court's consideration contemplated modifications to the Exhibit VI. In March 1987, the Monitor complied with this order by filing his report updating the Exhibit VI information. The report is prepared in the form of tables which indicate on a plant-by-plant, item by item basis when the improvement was scheduled to be made and when it had been made or if it still had not been made. To that date, PRASA had only complied on time with 65 of 211 items due and had only completed 115 of 211 improvements.⁴

That the Monitor has the authority to make findings such as those found in his reports is clearly apparent from the terms of the February 1985 Order. Dr. Rios was appointed "to Monitor compliance" with the order and the terms and conditions of the NPDES permits and "to assist the Court in the enforcement thereof." Paragraph III (A)(1), p. 4, February 1985 Order. He "shall Monitor all progress and problems encountered by PRASA in performing the actions required by this Order to ensure ultimate compliance by PRASA." id. at p. 7. The Monitor shall make field inspections of PRASA's waste water treatment facilities and laboratories as well as inspections of PRASA's records to identify existing problems at each plant. The Monitor may even submit a report and recommendation to the Court for the imposition of penalties or modification of the Order id. at pp. 13-14.

Considering plaintiff's extensively detailed and well supported motions to enforce the Monitor's equally well substantiated voluminous reports and the clear authority vested in the Monitor by consent decree to make such findings, PRASA's contention that it does not have to address the alleged violations, that it is entitled to an evidentiary hearing because there is no "evidentiary record," that the violations have been exaggerated and the Monitor's report are but inaccurate "snapshots" of plant conditions, are, to state it mildly, abusive. The Monitor's findings, on which the bulk of plaintiff's allegations rest, are akin in many ways to those made by a special master. Such findings are given great weight and are not to be disturbed unless shown to be clearly erroneous. See N.L.R.B. v. Maine Caterers, Inc., 732 F.2d 689, 690 (1st Cir. 1966) United States v. Volpe, 359 F.2d 132, 134 (1st Cir. 1966). The party challenging a master's finding has the burden of convincing the final adjudicator of the master's clear error. See Oil, Chemical and Atomic Workers International Union v. N.L.R.B., 547 F.2d 575, 580 (D.C. Cir. 1976) cert. denied, 431 U.S. 966 (1977). Upon review of a master's factual findings, a court may not set them aside even if they appear to go against the weight of the evidence. id. Only when the court is left "with the definite and firm conviction that a mistake has been committed," should it overturn a master's factual findings. id. Although the "rules of civil procedure" afford litigants the opportunity to present controversies through evidentiary hearings, these same rules provide the court with discretion to dispose of matters without wasting judicial resources on unnecessary hearings. A clear example is Rule 56 Fed. R. Civ. P. which permits the court to adjudicate an entire case summarily if there are no genuine controversies on material facts. Here, as in the situation covered by that rule, the party opposing the request for summary judgment "may not rest upon the mere allegations or denials of his pleadings, but his response, . . . must set forth specific facts showing that there is a genuine issue for trial" id.

In the present case, plaintiff's allegations of violations to the February 1985 Order all rest on the Monitor's extremely detailed and explicit findings. The factual basis, the reasoning, and the criteria used by the Monitor in making its findings are all carefully explained in his reports. They are also based on his professional judgment, the soundness of which both parties vouched for when he was designated. These extensive findings are all part of the record and have been a part of it for quite some time. During all this time defendants have had the opportunity to examine and to question the Monitor's findings, his criteria and investigative methods. They have never presented a scrap of evidence which would suggest the glimpse of a dispute or challenge of any of the Monitor's technical findings nor have they ever questioned the methods used in his inquiry. PRASA admittedly refuses in its very limited and general opposition to question any of these factual findings and concentrates, instead, on challenging plaintiff's interpretations of what, according to these findings, constitutes violations to the order. PRASA even admits its failure to comply with the Order, despite its general denial of all the allegations. In addition, its claim of insufficient time to prepare an adequate opposition is defeated by its own choice not to request additional time. Its litigation strategy of not questioning the reports filed quarterly by the Monitor because negotiations were under way also entailed the risk that someday negotiations could collapse and enforcement would indeed be sought. PRASA took this conscious risk and lost. It cannot at this stage be heard to complain of insufficient time or of unpreparedness to defend itself. Had PRASA cited a specific rule or case dealing with a situation similar to the present one or had it disputed specific material findings instead of juggling the rules as it saw fit and instead of disputing all allegations in general and conclusory form, the Court would have given serious consideration to its opposition and request for a hearing. As the record stands, what defendants' weak showing truly reveals is an artifice to engage this court in a fishing-expedition-type hearing in the hope that time and power struggles will carry it safely ashore to yet another settlement where past sins are pardoned for a modest fee and the hollow promise of a bright future in compliance with environmental laws.

The history of this case since day one should have alerted PRASA of its duty to present an adequate opposition showing which specific factual findings it questioned and the grounds for its objections. This legal duty is more patent in a case such as this given the pollution and pestilence resulting from years of unabashed and relentless contamination of Puerto Rico's waters and PRASA's repeated failure to abide by court decrees in a span of nearly ten years. It had a burden of showing clear error or making up for its past record, which it has not met. Neither has it shown the need for an evidentiary hearing or "pretrial" discovery at this post judgment stage. Since defendants have failed to even make a serious [17 ELR 20897] attempt at discharging its burden and of convincing the Court that the Monitor's findings are clearly erroneous, and given their clear record of repeated disregard of court orders, we see no reason to engage limited and valuable judicial resources in a lengthy and unnecessary hearing just to give PRASA and its Monday-morning quarterbacks the chance to discover some unspecified technical error here and there in the Monitor's reports which they have not even bothered to point out beforehand.

Furthermore, PRASA's contentions that the February 1985 decree was being interpreted erroneously by plaintiff, as discussed in its scattered "oppositions" of December 18, 1985, April 10, 1986 and December 2, 1986, also lack merit. The plain meaning of the Order's O & M Manual implementation requirement is that these manuals in effect be followed, not that they serve as paper weights. PRASA agreed to be responsible for the Manual's implementation and if it cannot guarantee that it is being followed by plant operators and engineers, then the manual is not being implemented and the Order is being violated. Its failure to raise this matter before casts doubts on the sincerity of this argument. PRASA's contentions that plaintiff erred when considering that failure to have emergency generator units (EGU) in working condition on the day of inspection is a violation of the Order, and that for many plants rated as unsatisfactory in alternate source the Monitor "specifically indicated that lack of alternate power was not a violation of the Order (defendants' motion of April 10, 1986 docket entry at p. 7), without specifying which of plaintiff's allegations as to these violations it is referring to, is insufficient to question plaintiff's reliance on the Monitor's findings. As the reports rating criteria descriptions clearly indicate "(a) properly operating emergency generator, with automatic operation and capable of actually supplying power to all critical electrical equipment must be present at all activated sludge plants in order to be rated satisfactory," and, primary and trickling filter plants may be rated satisfactory even though they do not have a generator, if the waste water flowed totally by gravity. The fact that the Monitor recognized that the Order's alternate power requirement could not be applied across the board to all plants, for some may provide adequate movement of the waste water through gravity, does not justify PRASA's conclusion that plaintiff's allegations of violations to this aspect of the decree were erroneous. Plaintiff, when describing these violations in the summary prepared for the Monitor's report of November 1986, only points to those alternate power violations which the Monitor classified as violations at Table II.6 of his November 1986 report. Presumably the Monitor's conclusions took into account his prior finding on this matter. In addition, plaintiff also explained that plants which had emergency generating units (EGU) scheduled for a future date would not be considered in violation. Absent a more specific showing by defendants, it is also presumable that plaintiff differentiated accordingly. It was incumbent upon PRASA to show just where the Monitor made an inconsistent finding or where plaintiff concluded erroneously that a violation to this aspect of the Order was committed and not merely to sit back and comfortably suggest the mere possibility.

Equally untenable is PRASA's argument that bypasses are not violations to the Order. The February 1985 Order clearly states that "PRASA is further enjoined and directed to take such other additional measures as are necessary to assure efficient plant operation and compliance with effluent limitations in its NPDES permits and with any other applicable terms, conditions and requirements of its NPDES permits and the Clean Water Act." February 1985 Order at p. 54. One such requirement is the notification of a sustained bypass, or "the intentional diversion of wastewater from the treatment process," to the Environmental Protection Agency. Plaintiff has compared the many bypasses reported by the Monitor with its records of notifications and, based on the incongruencies shown by this comparison, has alleged violations. Defendants have not pointed to a single error in these allegations.

Finally, PRASA's characterization of the Monitor's careful and comprehensive reports as "snapshots" is a convenient yet conclusory manner of challenging his findings without offering a scintilla of evidence to rebut them. Its failure to object earlier to the method used for years by the monitor to discharge the duties which both parties agreed he had to perform also demeans the seriousness of its contention that the Monitor's reports present but a snapshot view. The monitor's detailed narrative appraisals for each plant, quarter after quarter, give a comprehensive view of the operation conditions of these plants.

Instead of a "snapshot," what these quarterly reports do reveal is a dismal past and present of PRASA's chaotic operation of its waste water treatment plants and a medieval attitude towards environmental protection. As these appraisals show, almost all plants are plagued by a number of problems such as: defective or inoperative equipment which is never repaired, given maintenance or substituted; no alternate power sources for generators are broken or stolen or inexistent; ineffective or inexistent handling of sludge waste; inoperative pump stations; overloaded plants and/or industrial waste; plants not being used at all; improper disinfection and use of chlorine; and constant and lengthy bypasses which consist of the intentional diversion of wastes from any portion of a treatment facility, or, in other words, diverting waste water from the treatment process and letting it flow who knows where because the plant or station pump is either inoperative, overloaded, broken down or just plain disconnected. There are many plants dumping practically untreated effluent containing not only human waste but also industrial and commercial waste, including slaughterhouse waste (blood, animal remains, etc.) and chemicals. Some of these plants are discharging this poorly treated waste water into parts of rivers which are upstream from potable water intake sources and into recreational bodies of water and beaches where they may come in direct contact with the public. One of the most serious situations is that of the repeatedly rated unsatisfactory plant at Villalba which discharges its inadequately treated effluent into the Jacaguas River at a relatively short distance upstream from the town's potable water intake line on that same river. According to the Monitor's narrative appraisal of the Villalba plant "[t]he occurrence of gastrointestinal diseases in the population at epidemic levels has been documented and polio virus has been isolated in the water served to the community." The end result of this situation is that most of the waste water discharged daily by Puerto Rico's 3.3 million inhabitants is not beingadequately treated and what comes into the plants as waste water, goes out in practically the same condition to creeks, rivers, channels, beaches, ocean, and, sometimes, even on someone's back yard. Indeed, the clear picture that arises when all these reports are examined and put together is that PRASA may well be Puerto Rico's public enemy number one, as far as the environment goes. On such a record, defendants pretend that we look to the rosy outlook of the new regional plants and forgive and forget the chaos wrought in the meantime. Considering the serious threat to the public health that is constantly there because of the daily dumping of raw and ill treated waste water, not to mention the serious damage they are doing to Puerto Rico's environment, despite the quasi-public nature of this agency, the forgive and forget, the wait for better things to come, attitude, verges on the irresponsible. These real dangers to an entire community are too serious to be held in abeyance pending the arrival of some future, yet to be seen, panacea. Enough is enough.

We have examined the entire record and find that PRASA has violated the February 1985 Order, as alleged by plaintiffs, and thereby GRANT the motion to enforce. We hereby declare defendants PRASA and the Commonwealth of Puerto Rico to have violated the Court's February 25, 1985 Order by their:

(1) Failure to set aside $900,000 in a special fund and to use these funds to purchase and have in stock an inventory of specified spare parts by no later than August 21, 1985, as required by paragraph XI(I)(1) and (2) at pp. 46-47 of the February 1985 Order;

(2) Failure to submit, or to submit on a timely basis, noncompliance notifications or bypass notifications to plaintiff's Environmental Protection Agency (EPA) as required by the National Pollutant Discharge Elimination System (NPDES) permits and to undertake proper maintenance, repair and improvement actions to prevent bypasses from occurring, as required by paragraphs XVI(A)(4) and (5) at p. 54 of the February 1985 Order;

(4) Failure to implement the specified disinfection practices to properly disinfect the effluent, as required by paragraph IV(F) and Exhibit III at p. 21 of the February 1985 Order;

(5) Failure to have adequate alternate sources of power, as required by paragraphs IV(G)(1) and (2) at pp. 23-24 of the February 1985 Order;

(6) Failure to maintain proper sludge handling and disposal [17 ELR 20898] practices, as required by paragraph IV(H) at pp. 24-25 of the February 1985 Order;

(7) Failure to properly operate and maintain the waste water treatment plants, as required by paragraph IV(C) at p. 16 of the Order and the NPDES permits;

(8) Failure to employ standard and recognized sampling procedures and techniques to ensure that the Discharge Monitoring Reports (DMR) that have to be submitted for the NPDES permits, be accurate as required by paragraph IV(L) at pp. 28-29 of the Order;

(9) Failure to obtain written approval from EPA before making or permitting additional sewer connections to those overloaded plants with a sewer connection limitation as required by paragraph X at pp. 40-43 of the Order;

(11) Failure to hold quarterly operation and maintenance meetings, as required by paragraph IV(C)(2)(F) at p. 17 of the Order;

(12) Failure to provide weekend and holiday coverage at its plants, as required by paragraph IV(E)(1) at pp. 18-21 of the Order;

(14) Failure to provide training to Regional Engineers and plant operators as required by Exhibit VII to the Court's Order of February 1985.

We now consider plaintiff's requests that PRASA be fined for these numerous violations and that the February 1985 Order be modified. Although plaintiff requested in its November 14, 1986 motion to enforce that the Court order PRASA to pay the applicable non-compliance sums for the violations charged and later argued that no evidentiary hearing on the issue of liability was necessary in view of defendants conclusory opposition, in its motion of February 27 and April 29, 1987 it suggested that "a status conference be held to establish the procedure to be followed by the parties at any necessary hearing to determine the applicable non-compliance sum and the other appropriate relief." However, after examining the record, we have found that most of the alleged violations can be translated to specific monetary fines without the need for a hearing, particularly since, as indicated, PRASA has not presented an adequate challenge to the charges of violations. As indicated by paragraph XI of the February 1985 Order, "in the event PRASA fails to meet any date for compliance with a reporting or meeting requirement set forth in the Order or incorporated herein in accordance with paragraph III(D), it shall incur a stipulated non-compliance sum of $100 per day for each day of noncompliance." The order adds that if "PRASA fails to meet any date for compliance with any other requirement set forth in this Order or incorporated herein in accordance with paragraph III(D), it shall incur a stipulated non-compliance sum" of $100 per day if the period of non-compliance does not exceed forty days, $300 per day if the period of non-compliance exceeds forty days but lasts less than 60 days and $500 per day if the period of non-compliance exceeds sixty days. The Order permits defendants to request extensions and waivers of improvement deadlines if certain conditions are met. However, defendants have not argued that any such extension or waivers were ever requested and the record does not show that PRASA made any attempt to avail itself of these provisions. Their argument that the violations may be duplicitous is of little help, if no specifics are provided. Furthermore, it is clear from the terms of the Order that with respect to the O & M Manuals it was required as a separate provision of the Order that the manuals be followed by PRASA's plant operators and not merely read to them and left in some drawer. If proper disinfection practice is required by the O & M Manual and no such practice is being followed at a plant during the Monitor's visit, it is entirely reasonable to conclude that the O & M Manual is not being followed in that plant and, thus, that the implementation requirement has been violated along with the other general and separate disinfection practice requirements of the Order. If such separate violations could not be imposed, the Order's requirement of O & M Manual implementation would be meaningless as no enforcement would be possible for PRASA's failure to put into practice the requirements of the manuals. If defendants had second thoughts on the possibility that they may have agreed to too many requirements, they should have moved for a modification of the terms of the February 1985 order. In more than two years they have not done so. Their claim that the Order is being retroactively enforced is also untimely and unjustified since this order is the direct result of their own stipulations, signed by them as far back as October 1984.

Nonetheless, considering these possibilities, as well as defendant's argument that certain repair and maintenance problems alleged as violations were items to be improved at later dates, in computing quantifiable violations those repair and maintenance deficiencies, and other alleged violations which cannot be easily quantified according to the record and the order shall not be considered at all by the court. Neither will the Court consider any lack of compliance before the effective date of its February 1985 Order. Likewise, any deficiency which was set for a future date for improvement shall not be considered either by the Court as a violation until after the date set for the improvement. Any close calls have been adjudicated in favor of PRASA. The violations of certain items shall be calculated only as to the day the deficiences were observed, without assuming that the deficiency continued thereafter as it could have done according to the Order's terms.

Since the Court has found that PRASA violated its February 1985 Order in the manner set forth at pages 26 through 28 of this opinion and since it has also found that many of these violations can be mathematically computed based on the Monitor's quarterly reports and supporting data as well as on the stipulated non-compliance penalties established in the Order, the Court requested of the Monitor to prepare a summary which compiles the relevant data already included in his reports and available during the course of this litigation to all parties. The materials gathered by the Monitor have been used only for purpose of translating to numbers the violations which the Court has found were committed by PRASA. We have examined the date supplied by the Monitor and find that it is fully supported by the record and by the terms of the Order. We thus adopt the same and include it as an appendix to this Order. The information provided shows that a total non-compliance fine of THIRTY TWO MILLION, THIRTY TWO THOUSAND, SIX HUNDRED ($32,032,600.00) dollars must be imposed on PRASA for quantifiable violations to the February 1985 Order up to November 1986. The violations and computations are detailed in the appendix which is made a part of this Order. The parties shall file within 20 days, after notice, motions indicating whether this fine should be set aside as a separate fund, as provided by paragraph XI(C) of the Order, and they shall suggest procedures to select a financial institution where this fund can be deposited as well as procedures for withdrawals and control of the fund.

Finally, we reach to plaintiff's request that the February 1985 Order be amended to permit the Monitor to inquire whether PRASA is fulfilling the requirements of Exhibit VI. Paragraph III (B) (S) of the February 1985 order provides as follows:

[T]he Monitor shall have no authority with regard to the schedules of improvements for any WWTP set forth in paragraph VI and Exhibit VI of this Order; provided that, for each WWTP, PRASA complies with each date required for the completion of each improvement as required by Exhibit VI or completes each improvement within 30 calendar days of the date required by Exhibit VI. If PRASA is unable to complete any improvement at any WWTP by the date required by Exhibit VI or within 30 calendar days of the date required by Exhibit VI, and is not excluded from compliance with such date by the provisions of paragraph VI (B) or VI (C), then any improvement subject to such delayed compliance or inexcused non-compliance shall, upon motion of the plaintiff and Order of the Court become subject to the responsibility and authority of the Monitor as provided in this paragraph III and other paragraphs of this Order. When the improvement is completed, such improvement shall no longer be subject to the responsibility and authority of the Monitor.

February 1985 Order at pp. 10-11 (emphasis supplied). Given the information provided by the Monitor in the March 7, 1986 report on such compliance, his intervention on this matter is clearly justified. This report definitely shows that PRASA was not making any serious effort to meet the deadlines. Accordingly, the February 1985 order is modified to the extent that the Monitor is now [17 ELR 20899] allowed to examine, evaluate and include in his reports any observations, findings and conclusions with respect to defendant's compliance with the terms and conditions of Exhibit VI of the Order of February 28, 1985

The parties are granted TWENTY (20) days after notice of this order to raise any objections to the data supplied by the Monitor and included as an appendix to this order. Accordingly, the imposition of the $32,032,600.00 fine is held in abeyance until this twenty (20) day period expires.

SO ORDERED.

1. This case was assigned by drawing to the undersigned on December 28, 1984.

2. In view of defendant's surprisingly brief opposition to plaintiff's extensively detailed and well documented Supplemental Motion to Enforce, and defendant's qualms about how little time they had to make an adequate evaluation of plaintiff's motion, the Court mistakenly considered the reference to this anticipated filing as one which would include an additional, more detailed opposition to plaintiff's motion as had been done before by defendants with respect to plaintiff's prior motion to enforce. However, defendants on March 18, 1987, took issue with this interpretation and stated that they never requested additional time to file an adequate response to plaintiff's motion. We take this, as an admission by defendants that, despite their protestations of lack of time and streamroller tactics, they deliberately chose not to request any additional time to prepare a more specific opposition even though they had the opportunity to do so and even though the detailed enforcement motion certainly called for one.

3. The Court also ruled on other matters during the period after the Interim Order was approved. For instance, the Monitor was ordered to report on the plants which had been placed outside the scope of the February 25 Order on condition that they continue to meet certain requirements. Since according to the Monitor three of them did not, the Court ordered these three plants back. The Court also ruled on an attempt to intervene by a construction company and permitted a plant in Toa Alta to be excluded from the list of plants with restricted sewage connections.

4. In his November 1986 report, the monitor updated this information indicating that PRASA had only complied on time with 67 out of 231 items that had become due and had completed 134 of these 231 items.