the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may get their attention and they shall be heard god save the united states of america and this honorable court court the not before they st sent you a letter saying that they did not think there was a problem as some point they did notify process to notify e p a if the consent decree specifically address the sewer problem she would identified is that is that correct basically it's not really amended by me included as an area of concern under the area was included as an area of concern the problem is this that a pun on the citing the case the district court of dotted hybrid method to dismiss the complaint which doesn't really come forward to rule twelve because if it used the threshold you know that the standard of the motion for summary judgment you process rights of plaintiffs are not being observed because on the one hand thank you submitted a foreign statement and photographs of how even after you know after that the complaint was filed when because saying so without taking the formal steps the court is supposed to do that sort convert this into a motion for summary judgment without without really giving notice it was doing that without following the proper steps to do so in puerto rico since one thousand and seventy eight there has been constantly the ation no less than nine consent decrees one criminal conviction fifteen count criminal conviction and five years of probation which i think it's unprecedented for utilit  and it is no no small detail that one hundred percent of our lakes reservoirs and streams are our impaired that ninety three percent of our coastal waters are impair so e p a in puerto rico doesn't apply the law as it does in the mainland and that is that's the sense we feel it's an on equal treatment of puerto ricans even though the clean water act doesn't make an exception for puerto rico even though we're supposed to have equal treatment it's not the reality and and we are not a tropical island where swatch discharges to the ocean cost much more damage not allowed in the mainland from six regional wastewater treatment plants which is illegal since one thousand and seventy seven dollars when the amendments to the clean a water act went went into you know into effect and that is still allowed in puerto rico so it's just outrageous that this that this prick treatment that we get that's why this case of so important because this court hasn't seen i've looked it up and i don't think that up here in this minister david order and it's going to be solved six years later they have to file another case because it wasn't solved i mean what people have to live with sewage in front of their homes so if you know it's really important because people want you know for want us to watch to stop at least one pipe at a time the present problem has been there for decades and if it's after sources and our swinging sources and it's just not fair it's like people should have the right what congress wanted them to have to enforce the clean water act and it's just not happening because  say you know of of what the court interpretation which i believe it's it's not correct because even in this last consent decree it states that that cause had to create it's not an not constitute a defense to any action pursuant to said last regulations or permits except this otherwise provided in this consent decree so in terms of that don't know i don't know i came in clay to to the case that's you as you very well know so perhaps i don't think the entire thing the entire document was filed but i can tell you one thing that i over fell's but now they're going to spend less in fixing what has to be fixed and that you know st one from issa so we don't even know what it is they're scaling back on because it's not detail in the fiscal pla n and that's very very scary to appellant because you know the part of the part of the consent judgment that says is not to be used as a defense was that part presented to the it should be under control bar there should be a camera symbol and there should be a audio microphone cymbal you want to click them both so that they're both off if you could hold on while i try and get her back in the meeting i'm sorry about that  council let me take you up on that proposition oh i'm looking at the at the district court decision towards the end were operation of anus program the court goes on and on to describe what your client says it has been doing and perhaps w busy to dismiss oh what basis was the court taking into consideration when you need to describe such allegations that your client as to what what what was doing how could the court honor thank you it may look that way in our opinion it's a matter of wording the court evaluated a consent decree which was judicially approved and is in place to re  the mere existence of violations even ongoing knowledges do not represent lack of deal terms and therefore even though an agency in this case but asami be doing everything in its power to remedy the situation violations may continue if if in fact cross who was diligently prosecuting these kinds of the mere existence of the consent decree satisfies the dilution prosecution no no we're not saying that the mere existence of the consent decree establishes even diligent prosecution  case to meet a high board over coming up with some sort of diligence and they must do more than just really show that the agency prosecution is not moving with the alacrity that the desired well that sounds like that can all play out on a twelve b six requires plaintiffs to argue their case to plead sufficient factual material to overcome that presumption it's not on process where the defendant perhaps at that point the plaintiff would have to do more but the only thing the only stage of seating is that the plaintiff is it one opportunity to file a complaint and you let response file a motion to dismiss and your motion to dismiss makes allegations that you're saying create a presumption that the court has to accept and there's no it's an opportunity and that procedural pasture for the plaintiff to re in their in their allegations in their in their oral arguments said that their allegations were not taken as true and that is not true they were absolutely taking us through they were just found to be insufficient to overcome  standard of review in this case i mean the standard of pleading  also there was a question of whether the i believe it was a given it was your honor that i asked that it was a consent decree included or just referred to in the motions the consent decree was attached to the claim it was a judicially approved in the same court as this case was being seen and was therefore under the exceptions of the rule of the rules of the summary judgment rule with respect to the specific discharges you raised in the school play that i want to listen to sewers discharges are ongoing and several have occurred on several occasions to get after the six day a letter was sent to the defendant process of allegations that must be not taken earth dismissed because they're of complimentary nature there are mechanically repeating  what the clue what the claim is and concluding by themselves that it is a lack of diligence and therefore are entitled to relief it's right there and that's the medication rule it requires a plaintiff to provide a short plain statement decided in the same district court as this case it was stated that the complaint must contain enough factual material to raise the right of relief above the speculative level on the assumption that all of the geishas incomplete are true plaintiff is that whenever heavy rain occurs raw sewage coming from the point source your invention is dumped in the creek that runs through her backyard near the coordinates quoted in this letter that expose her children to diseases from odors other health threats so it's really about that that's just describing what they're experiencing in that area that was covered by the consent decree that you are we supposed to take that is true yes and you may it is has sister council has pointed out but i would like to point out that the storm one drain that is contained in that allegation does not belong to process it belongs to them is the body of someone which is also under a consent decree and is not part of this case we we are but also is on its way to and i'm working towards fixing that is that part of the record council but you just said yes and if you mean yes it's even admitted by the plaintiffs in their  clear it makes a distinction between raw sewage sewers which are a minister by put out and rain collections who are which belong to municipalities and the state depending on where they're located stop has to go through what the consent decree calls the song the sewer system operation and maintenance plan which along with a condition of condition assessment plan and it has to go through the entire what don't we system with a fine tooth comb to report and remedy deficient any deficiencies found and not only was the th street feet away it which if you convert it it's half a mile it's in the same vicinity it's in the same neighborhood but i thought is has been since two thousand and sixteen on its way to to fix it even more so i thought single it concern as such it is saying this is a special area with which requires our special attention and we need to divert funds to that specific problem council ok and i thought it was a as a proposition of  but also has to evaluate the problem once it's brought to their attention go and determine a plan of action and then ask the e p a to include that under the consent decree so that it is my understanding the only reason it took it's long as it did it it's not a response to the claim but rather a timing issue or there affidavit stetler a sions or other confident evidence in the in the district court record that support the exposition that you just gave us about all the efforts that process has undertaken there they are not sworn statements but consent decrees a matter of public record and information about how it is being prosecuted or diligently prosecute it is a matter of policy public record at any time a citizen may solicit this information and with the benefit of that information are bringing forth part not simply because that it's not happening but that the disconnect that i'm having right now and maybe you can help me connected a little better is it's i think very much like judgment has his last question to you that in terms of the bar we're looking at whether e p a is diligently prosecuting and we have allegations from the plaintiff that it is not and we have evidence that might be available at sort of a summary judgment stage about whether the citizen suit needs to go forward but it really doesn't have anything to do with this with the bar with the diligent prosecution bar and so i'm sort of left with  on the record that i see about what e p a is doing or not doing i see a complaint that survives the motion to dismiss well your honor so help me out with that well i would say we obviously disagree because the court considered public documents which were a matter of public record they were subject to judicial notice  factual allegations that they were making was that ten st sewers were on occasion of heavy rains which is not an ongoing problem which is not a continuous problem it is a sporadic problem when heavy rains occur that in terms of what gets to the storm sewer if there wasn't sewage coming out of the manholes it wouldn't get to the storm sewer so that's really important because what comes out is definitely  do mass they had to prepare these mass which we don't even know we didn't get to discover to do if they're prepared or not they they don't have a real not a just where those sorts is coming from so it is not accurate to also has a case an ongoing case against the municipality of san juan because of the combined it's sure's they should have whether they should have combined you know what marcia cases are consolidated that's something for the agency to have done but certainly it's a total of i think one consent decrees and some of them do because one of them has to do with drinking water one has to do with sixty one dollars plants and other one has to do with pumping stations but i would say that out of those five cases perhaps three to curtail some time soon but as it pertains to people they should meet living with a manhole that you have rain quit recurring so a lot this is a tropical island it's not a sporadic you know event and  that's exactly when manholes you know overflow when it rains because it when it doesn't rain they never allow you know event even when there's a failure indiana tricity so so i think it's it's not you know appropriate  thank you council that concludes the arguments for today the session of the honorable united states court of appeals is now recess until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting at this time