Document Ra7RL3RXd80pr9XXmyxoyBNzX

Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 1 of 44 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO UNITED STATES OF AMERICA, Plaintiff, v. Civ. No. 3:24-cv-01478 THE MUNICIPALITY OF PONCE, Defendant. and COMMONWEALTH OF PUERTO RICO, Nominal Party required by 33 U.S.C. 1319(e) CONSENT DECREE Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 2 of 44 TABLE OF CONTENTS I. BACKGROUND..........................................................................................................! II. JURISDICTION AND VENUE................................................................................... 1 UI. APPLICABILITY........................................................................................................^ IV. DEFINITIONS.............................................................................................................^ V. CIVIL PENALTY......................................................................................................... 7 VI. COMPLIANCE MEASURES...................................................................................... 7 VII. REPORTING.............................................................................................................. 17 VIII. PROGRESS MEETINGS........................................................................................... 19 DC STIPULATED PENALTIES...................................................................................... 20 X. FORCE MAJEURE.................................................................................................... 22 XL DISPUTE RESOLUTION.......................................................................................... 23 XII. INFORMATION COLLECTION AND RETENTION ............................................. 24 Xffl. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS................................... 26 XIV. COSTS........................................................................................................................ 26 XV. NOTICES.................................................................................................................... 26 XVI. RETENTION OF JURISDICTION............................................................................ 27 XVII. MODIFICATION......................................................................................................^? XVIII. TERMINATION......................................................................................................... 28 XDC. PUBLIC PARTICIPATION....................................................................................... 28 XX. SIGNATOmES.......................................................................................................... 28 XXI. INTEGRATION......................................................................................................... 28 XXII. FINAL JUDGMENT.................................................................................................. 29 XXIII. APPENDICES............................................................................................................ 29 11 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 3 of 44 I. BACKGROUND 1. Plaintiff, the United States of America, on behalf of the United States Environmental Protection Agency ("EPA"), has filed a complaint in tihis action alleging that Defendant, the Municipality of Pence ("Ponce"), violated Sections 301 (a) and 402 of the Clean Water Act (the "Act" or "CWA"), 33 U.S.C. 1311(a) and 1342, and regulations promulgated thereunder, and violated the terms and conditions of the National Pollutant Discharge Elimination System ("NPDES") General Permit for Discharges from Small Municipal Separate Storm Sewer Systems within the Commonwealth of Puerto Rico ("MS4 Permit"). 2. Plaintiff alleges in the complaint that Ponce owns and operates a small municipal separate storm sewer system ("MS4") in Ponce, Puerto Rico, and that Ponce has, during the relevant time period, unlawfully discharged pollutants from its MS4 into waters of the United States and failed to comply with the terms and conditions of the MS4 Permit, in violation of Sections 301(a) and 402 of the Act, 33 U.S.C. 1311(a) and 1342. 3. The Complaint seeks injunctive relief, pursuant to Section 309(b) of the Act, 33 U.S.C. 1319(b), to address the violations of Section 301(a) and 402 of the Act, 33 U.S.C. 1311(a) and 1342, as well as civil penalties pursuant to Section 309(d) of the Act, 33 U.S.C. 1319(d). 4. Plaintiff has notified the Commonwealth of Puerto Rico of the commencement of this action. 5. The Parties enter into this Consent Decree to address the claims arising from Pence's alleged violations as set forth in the complaint, and to agree to perfbnn specified projects and implement plans, assessments, engineering design studies, compliance measures, and construction projects following the schedule set forth in this Decree so as to eliminate illegal discharges of pollutants from Pence's MS4 and to bring Ponce into compliance with the MS4 Permit. 6. Ponce neither admits nor denies the alleged violations of the Act and its implementing regulations and of the MS4 Permit as set forth above and in the Complaint but accepts civil liability for those violations under this Decree. 7. The Parties recognize, and the Court by entering this Consent Decree finds, that this Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties and that this Decree is fair, reasonable, and in the public interest. NOW THEREFORE, it is hereby ORDERED and DECREED as follows: II. JURISDICTION AND VENUE 8. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. 1331, 1345, and 1355, and Section 309(b) of the Act, 33 U.S.C. 1319(b), and personal jurisdiction over the Parties. Venue lies in this District under 28 U.S.C. 1391(b) and (c) and 1395(a) because Ponce is a municipality organized under the laws of the Commonwealth and the violations alleged in the Complaint are alleged to have occurred in this judicial district. Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 4 of 44 9. For purposes of this Consent Decree, Ponce agrees that the Complaint states claims upon which relief may be granted pursuant to Sections 3 01 (a), 309, and 402 of the Act, 33 U.S.C. 1311(a), 1319, and 1342. m. APPLICABILITY 10. The obligations of this Consent Decree apply to and are binding upon the United States, and upon Ponce and any successors, assigns, or other entities or persons otherwise bound by law. 11. No transfer of ownership or operation of the Facility, whether m compliance with the procedures of this Paragraph or otherwise, shall relieve Ponce of its obligation to ensure that the terms of the Decree are implemented. At least 30 days prior to such transfer, Pence shall provide a copy of this Consent Decree to the proposed transferee and shall simultaneously provide written notice of the prospective transfer, together with a copy of the proposed written agreement, to EPA and DO J, in accordance with Section XV (Notices). Any attempt to transfer ownership or operation of the Facility without complying with this Paragraph constitutes a violation of this Decree. 12. Ponce shall provide a copy of this Consent Decree to all officers, employees, and agents whose duties might reasonably include compliance with any provision of this Decree, as well as to any conbractor retained to perform work required under this Consent Decree. Ponce shall condition any such contract upon perfonnance of the work in conformity with the terms of this Consent Decree. 13. In any action to enforce this Consent Decree, Ponce shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of this Consent Decree. 14. The Commonwealth is a signatory to this Decree solely and exclusively as a party whose joinder is mandatory pursuant to Section 309(e) of the Act, 33 U.S.C. 1319(e). The Commonwealth will have no liability under this Decree, except as set forth in Section 309(e), 33 U.S.C. 1319(e), to the extent that the laws of the Commonwealth prevent Ponce from raising revenues needed to comply with this Decree. The Commonwealth represents that its present laws do not prevent Ponce from raising revenues needed to comply with this Decree. The Commonwealth expressly recognizes the autonomy ofPonce under the Puerto Rico Municipal Code, Law No. 107 of August 14, 2020, as amended (21 L.P.R.A. Sections 7001 et seq.), to separately negotiate and enter into this Decree. The Commonwealth specifically reserves all defenses to any claims pursuant to Section 309(e), 33 U.S.C. 1319(e), including among other defenses, that Commonwealth law does not prevent Ponce from raising revenues needed to comply with such judgment. The Commonwealth's signature on this document shall not itself be deemed to be a waiver of sovereign immunity. IV. DEFINITIONS 15. Unless otherwise defined herein, the terms used in this Decree will have the meaning given to those terms in the Act, and the regulations promulgated thereunder, and those Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 5 of 44 terms defined in the MS4 Permit. The following terms, as used in this Decree and for purposes of this Decree only, will be defined as follows: "Action Plan" means the document that details the steps and actions that Ponce must take to eliminate the cause of an illicit discharge. "Catchment area" means the land area from which stormwater runoffis collected by a permittee's MS4 and discharges through a single outfall to surface water. "Catchment delineation" means the area that drains to an MS4 individual outfall or interconnection for use in priority rankings. "Commonwealth" means Defendant Commonwealth of Puerto Rico. "Complaint" means the complaint filed by the United States in this action. "Consent Decree" or "Decree" means this document, all appendices attached hereto listed in Section XXIII, and any modifications made hereto. If there is a conflict between a provision in Sections I through XXII and a provision in any appendix, the provision in Sections I through XXII controls. "303(d) List" means the State's list of impaired and threatened waters (e.g., stream/river segments, lakes). States are required to submit their list for EPA approval every two years pursuant to Section 303(d) of the Act, 33 U.S.C. 1313(d), and 40 C.F.R. 130.7(d). For each water on the list, the State identifies the pollutant causing the impairment, when known. "Day" or "day" means a calendar day. In computing any period under this Decree, the day of the event that triggers the period is not counted and, where the last day is not a working day, the period runs until the close of business of the next working day. "Working day" means any day other than a Sahirday, Sunday, or federal or Commonwealth holiday. "Defendants" means Ponce and the Commonwealth. "Effective Date" means the date that the Court's approval of this settlement is recorded in the Court's docket. "EPA" means the United States Environmental Protection Agency. "Facility" means Pence's MS4 and its components, equipment, and appurtenances, including its pump stations and outfalls, that are subject to regulation under the NPDES program. "Field Screening" means the collection and analysis of grab samples that are not subject to 40 C.F.R. 136 requirements but must use methods and analysis that will yield results representative of the discharge. Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 6 of 44 "Flood Control Pump Stations" means the pump stations, currently owned and/or operated by Ponce, composed of the pipelines that feed the pump stations' wet wells, the entrance chaimel(s), the bar screens, the wet wells, the pumps and motors, level indicators, float switches and controllers, electi-odes, plug valves, check valves, the electrical motor control center(s) and/or electrical control panels, transfer switches, alternate power units and their fuel tanks, disinfection equipment (if any), meters and metermg equipment (if any), and any other appurtenances (such as continuous monitoring equipment), and the discharge pipelines that extend toward the pump stations' property limits, including discharge points. "Flow Rate" means the volume of a fluid which passes per unit of time, using volumetric flow rate, which is often expressed as cubic feet per second (ft3/s) or gallons per minute (gal/min). "IDDE" means Illicit Discharge Detection and Elimination and refers to a program to detect, eliminate, and prevent illicit discharges to the storm drain system as established in 40 C.F.R. 122.34, and Part 2.4.4.8 of the MS4 Permit. "IDDE Ordinance" means a municipal ordinance to prohibit illicit discharges and illicit connections into and from the MS4, to the extent allowable under the Commonwealth of Puerto Rico and Pence's legal authorities, and the implementation of appropriate enforcement procedures in order to meet the requirements of Section 2.3.3 of the MS4 Pennit. "Illicit Connection" means any man-made conveyance connecting an illegal discharge directly to a municipal separate storm sewer, as established by Appendix A of the MS4 Pennit. "Illicit Discharge" is defined at 40 CFR 122.26(b)(2) and refers to any discharge to a municipal separate storm sewer that is not entirely composed of storm water, except discharges authorized under an NPDES permit (other than the NPDES permit for discharges from the MS4) and discharges resulting from firefighting activities. "Illicit Non-Stormwater Discharges" means discharges into the MS4 that are not listed under Section 1.4 (Allowable Non-stormwater Discharges) of the MS4 Permit. "Including" or "including" means "mcluding but not limited to." "Interconnection" means the point where the MS4 discharges to another MS4 or other storm sewer system, through which the discharge is conveyed to waters of the United States or to another storm sewer system, and eventually to a water of the United States. "Las Americas Pump Station" means the flood control pump station located at latitude 18.003272 and longitide -66.624319, serving an approximate drainage area of 10,664 cubic meters and with two pumps having a combined approximate capacity of 10,800 gallons per minute (gpm) discharging into the MS4. Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 7 of 44 "Lodging Date" means the date on which this Decree is filed for lodging with the Court in this matter. "Los Meros Pump Station" means the flood control pump station located m Playa Ward at latitude 17.983009 and longitude -66.62571, serving an approximate drainage area of 312,200 cubic meters, and discharging into the Caribbean Sea. "MS4" means Pence's small municipal separate storm sewer system, as that term is defined in 40 C.F.R. 122.26 (b)(16), and as identified in the MS4 Permit; "MS4 Complaint Registry" means the archive maintained by Ponce of all complaints from citizens and government entities providing notice of an illicit discharge or illicit connections into or from Ponce's MS4. "MS4 Map" means a map depicting the municipal separate storm sewer system infi'astmcture at the urbanized area, showing the location of all outfalls and the names and location of all waters of the United States that receive discharges from those outfalls. "Non-stormwater discharges" means any discharges that are not composed entirely of stormwater, and that therefore are illicit discharges requiring Ponce to respond pursuant to Part 2.4.4 of the MS4 Permit, except non-stonn water pemiitted discharges listed under Part 1.4 (Allowable Non-stormwater Discharges) of the MS4 Permit. "NPDES" means the National Pollutant Discharge Elimination System, as established by 33 U.S.C. 1342, and 40 C.F.R. 122. "NPDES Permit" or "MS4 Permit" means the National Pollutant Discharge Elimination System General Permit for Discharges from Small Municipal Separate Storm Sewer Systems, Permit Number PRR04000, issued on November 6, 2006, and shall include renewals, modifications, and revisions thereof. "Outfall" means a point source, as defined by 40 C.F.R. 122.2, and is the point where the MS4 discharges to waters of the United States. "0 & M Program" means a written program detailing the activities and procedures Ponce will implement so that the MS4 infrastructure is maintained in a timely and effective manner to reduce the discharge of pollutants from the MS4 into waters of the United States. "Padre Noel East Pump Station" means the flood control pump station located at Padre Noel Avenue in the Playa Ward in the Municipality ofPonce at latitide 17.982833 and longitude -66.622984, serving an approximate drainage area of 2,472 cubic meters and discharging into the "Old Portugues Riverbed", which in turn discharges mto the Caribbean Sea. "Padre Noel West Pump Station" means the flood control pump station located on Padre Noel Avenue in the Playa Ward at the Municipality ofPonce at latitide 17.983096 and longitude -66.623513, serving an approximate drainage area of 10,664 cubic meters and Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 8 of 44 discharging into the "Old Portugues Riverbed", which in turn discharges into the Caribbean Sea. "Paragraph" or "^" means a portion of this Decree identified by an arable numeral or lower-case letter. "Parties" means the United States, Ponce, and the Commonwealth. "Playa Ward" means the urbanized area located in the southern region ofPonce facing the Caribbean Sea; bounded on the North by PR-2 Road, on the South by the Caribbean Sea, on the West by Rio Matilde, and on the East by Rio Bucana. "Ponce" means Defendant Municipality ofPonce, Puerto Rico. "PRASA" means the Puerto Rico Aqueduct and Sewer Authority, its officers, directors, employees, successors in mterest. "Puerto Rico Water Quality Standards" or "WQS" means the provisions established by the Puerto Rico Department of Natural and Environmental Resources and approved by EPA that describe the desired condition of a water body and the means by which that condition will be protected or achieved by establishing limits on the discharge of pollutants to protect the use of the receiving water body. "Puerto Viejo Pump Station" means the flood control pump station located in Playa Ward at latitude 17.978072 and longitude -66.617590, serving an approximate drainage area of 80,000 cubic meters and discharging into the Caribbean Sea. "Qualified Licensed Engineer" means a Puerto Rico-licensed Professional Engineer who possesses the appropriate skills and training to assess conditions of a flood control pump station, including, but not limited to, its capacity, configuration, pumping and piping system, electrical design, instrumentation and control systems, and appurtenances. "Responsible Party" in the case of an illicit connection and/or illicit discharge means the person, business, or entity that has been identified as owning the facility that caused the illicit discharge; in the case of direct discharges, it would be the person that caused the discharge. "Sanitary Sewer Overflows" or "SSOs" means overflows that occur when wastewater containing pollutants is released from the sanitary sewer into the MS4 and/or a water of the United States. "SWMP" means the Storm Water Management Program required to be developed and implemented under Part 2.3 of the MS4 Permit. "United States" means Plaintiff United States of America. "Urbanized Area" means the "urbanized area" as defined in Appendix A of the MS4 Permit. Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 9 of 44 "Villa Pesquera Pump Station" means the flood control pump station located at the fishing village of Play a Ward at latitude 17.981121 and longitude -66.622751, serving an approximate drainage area of 141,524 cubic meters, and discharging into the Caribbean Sea. V. CIVIL PENALTY 16. Ponce shall pay $25,000 to EPA as a civil penalty within 60 days after the Effective Date. The Financial Litigation Unit ("FLU") of the United States Attorney's Office for the District of Puerto Rico shall send Ponce instructions for making this payment, including a Consolidated Debt Collection System ("CDCS") reference number. Defendant shall make such payment by Fedwire Electronic Funds Transfer ("EFT") in accordance with the FLU'S instructions, including references to the CDCS Number. Defendant shall send notices of this payment to DOJ and EPA. VI. COMPLIANCE MEASURES 17. MS4 Permit and Storm Water Management Program (SWMP). Ponce shall comply with the MS4 Permit, the SWMP, and any new MS4 Permit. If a new MS4 Permit takes effect during the term of this Decree, Ponce shall amend its SWMP according to the timeframes and requirements established in the new MS4 Permit. The SWMP and any modifications shall be deemed to be fully incorporated herein and shall be enforceable under this Decree. 18. System Mapping. By the deadline specified in Appendix A, Ponce shall develop a schedule to revise the Maps within the Urbanized Area, which schedule shall not extend beyond three years after the Lodging Date. The revised Maps shall identify the required elements in Section 2.4.4.6.a.i of the MS4 Permit, including but not limited to, the MS4, outfalls and receiving waters, pipes, open channel conveyances, catcbnent delineations for each outfall or interconnection, manholes, flood control pump stations, interconnections with other MS4s, municipality-owned stormwater treatment structures, waterbodies identified by name, and indication of all use impamnents as identified in the Commonwealth's most current 3 03 (d) List. In preparing the Maps, Ponce must take into consideration the elements mcluded in Sections 2.4.4.6.a.ii, where available, and 2.4.4.6-a.iii (recommended) of the MS4 Permit. Ponce shall submit the revised Maps to EPA in PDF or in GIS file format (i.e., Shapefiles) in the applicable Quarterly Report required under ^36. 19. Outfall Inventory. By the deadline specified in Appendix A, Ponce shall complete an outfall and interconnection inventory ("Outfall Inventory") within Ponce's urbanized area. The Outfall Inventory must include the following information for each outfall: unique identifier, receiving water, date of most recent inspection, dimensions, shape, material (e.g. concrete, PVC), coordinates (latitude and longitude), physical condition, and indicators of potential illicit non-stormwater discharges (such as the presence or evidence of illicit connections; sensory observations such as odor, color, turbidity, floatables, or oil sheen; and field testing for ammonia, residual chlorine, and pH). In preparing the Outfall Inventory, Ponce shall consider the "Outfall Reconnaissance Inventory/Sample Collection Field Sheet in the Illicit Discharge Detection and Elimination ("IDDE") Manual" as a reference, which is available as of December 2023 at the following link: https ://www3 .epa. gov/npdes/pubs/idde_appendix-d.pdf. 7 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 10 of 44 20. MS4 Complaint Registry and Schedule for Elimination of Illicit Discharges and Illicit Connections. By the deadline specified in Appendix A, Ponce shall maintain a Complaint Registry with all illicit discharges and illicit connections reported by citizens or governmental entities, including complaints regarding to (a) illicit discharges and illicit connections into the MS4, and (b) illicit discharges from a MS4 outfall into a surface water body. The Complaint Registry shall include a description of each discharge that, based on field screening, meets, or exceeds three mg/L ofammonia CNHa), and with a flow rate of two gallons per minute or more, until the discharge is eliminated. Ponce shall maintain the Complaint Registry using the form attached as Appendix C. Ponce shall identify and investigate suspected illicit discharges and illicit connections, notify all responsible parties of any such discharge or connection, and require its immediate elimination in accordance with its legal authorities. Where elimination of an illicit discharge is not achieved within 45 days after being reported to Ponce, Ponce shall establish a schedule for its elimination that shall not exceed 1 year since its report to Ponce. The schedule shall include a timeline with the actions taken or to be taken to eliminate the illicit discharges and illicit connections. Ponce will only remove a complaint from the Complaint Registry when the related illicit discharge or illicit connection is eliminated. 21. Illicit Discharge Detection and Elimination Program a. Outfall and Interconnection Screening and Sampling. By the deadline specified in Appendix A, Pence shall develop and submit for EPA review and approval a proposed procedure for screening and sampling of all outfalls and interconnections from the MS4 during dry and wet weather for evidence of illicit discharges and SSOs. The proposed procedure: (1) must be in accordance with Section 2.4.4.8.d of the MS4 Permit; (2) must include procedures for sampling and analysis of outfalls and interconnections for: surfactants (such as MBAS), pH, ammonia, potassium, chlorine, conductivity, salinity, enterococci, fecal coliforms, and temperature; (3) must include procedures for visual observations of samples taken to assess for the presence of odor, surfactants, tirbidity, foam, trash, and color; and (4) must include methods for sample collection, use of field kits, storage and conveyance of samples, visual observations, and relevant sample parameters. Upon EPA's approval under ^ 33, Ponce shall implement the approved procedure. b. Dry and Wet Weather Screening and Sampling at Playa Ward (i) By the deadline specified in Appendix A, Ponce shall perform dry and wet weather screening and sampling of all outfalls and interconnections located within the Playa Ward (except for the sectors of the Playa Ward covered by ^ 21 .d which shall be addressed as provided therein). Dry weather screening and sampling shall be conducted when no more than 0.1 inches of rainfall have occurred in the previous 24-hour period. Wet weather screening and sampling shall be conducted only at outfalls or interconnections with discharges. Ponce shall maintain a Sampling Registry with data about each outfall and interconnection in the Playa Ward where, provided there is a flow rate of at least two gallons per minute, initial sampling results using odor, color, turbidity, floatables, or oil sheen; and field testing for ammonia (NHs) 8 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 11 of 44 concentrations greater than 3.0 mg/L, residual chlorine concentration greater than 5 mg/L and pH outside the range of 7.3 to 8.5 indicate that there is a presence of an illicit connection. If initial field sampling results indicate that there is a suspected illicit connection, Ponce shall conduct sampling to determine if results show enterococci concentrations greater than 35 colonies/100 mL, fecal coliforms concentrations higher than 14 MPN/100 mL, and surfactants as Methylene Blue Active Substances (MBAS) higher than 0.5 mg/L. The Sampling Registry shall be maintained using the form attached as Appendix D. Ponce shall investigate and eliminate the cause of a parameter exceedance and maintain data in the Sampling Registry about each outfall and interconnection until the conditions described in the preceding sentence have been eliminated. c. Assessment and Priority Ranking of Catchments. Ponce shall prepare an assessment and priority ranking of all Catchments within the urbanized area of Ponce ("Catchment Ranking"). Ponce shall perform the Catchment Ranking simultaneously with the System Mapping required under ^ 18 and must complete it within the three-year schedule established under ^18. Ponce shall identify the individual outfall or interconnection associated with each Catchment and shall rank each Catchment according to the potential of the Catchment to have illicit discharges and SSOs and related public health significance. Ponce shall classify each Catchment into one of these four categories, "excluded," "problem," "high priority," and "low priority," using the screening factors under Part 2.4.4.8.c.i of the MS4 Permit. d. Catchment Investigations and Remedial Work. Ponce shall prepare work plans for investigation and remediation of the MS4 owned and operated by Ponce located within the Catchments associated with the Puerto Viejo Pump Station Outfall, Villa Pesquera Pump Station Outfall, Padre Noel West Pump Station Outfall, and Los Meros Pump Station Outfall. The work plans shall provide for investigations of, and remedial work at, the Catchments according to the schedule in Table 1 below. Each work plan must include four phases: Phase I (Reconnaissance), Phase II (Investigation), Phase III (Planning/Design), and Phase IV (Construction for elimination of the illicit connection and illicit discharge). Table I Catchment Area Name Villa Pesquera Pump Station Completion Date of Phase I and II 18 months after Lodging Date Completion Date of Phase III 24 months after Lodging Date Puerto Viejo Pump Station 24 months after Lodging Date 30 months after Lodging Date Padre Noel West Pump Station 30 months after Lodging Date 36 months after Lodging Date Completion Date of Phase IV According to the schedule submitted on Phase III According to the schedule submitted on Phase III According to the schedule submitted on Phase III Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 12 of 44 Los Meros Pump Stations 36 months after Lodging Date 42 months after Lodging Date According to the schedule submitted on Phase III (i) Phase I (Reconnaissance) of the work plan must include: (a) catchment delineation for the pump station outfall to be investigated according to Table I (b) information and data gathering to develop or update the maps (e.g. catchment delineation) and perform outfall reconnaissance; (c) identification of interconnections with other storm sewer systems and runoff collection systems; (d) identification of suspicious or illicit flow (e.g. wastewater flow) in storm sewer pipes; (e) identification of potential interconnections between storm sewers, illicit connections from sanitary sewers, MS4's locations connected to PRASA's sanitary sewer system , and straight pipe connections; (f) review and prioritization of sectors based on history of complaints, where applicable; (g) identification of suspicious surface depressions on or in the vicinity of sewer pipe or manhole areas; (h) identification of obstructions in sewer pipes where cleaning actions are to be required; and (i) documentation of preliminary findings from the field verification exercise in anticipation of the Phase II (Investigation) activities. (ii) Phase II (Investigation) shall include: (a) preparation and implementation of a sewer system cleaning and inspection schedule; (b) creation of a manhole and catch basin inspection digital database including photographs and digital video (DVDs); (c) performance of additional reconnaissance activities, including, but not limited to, video inspections (CCTV and pole camera), dye testing, smoke testing, or other means to confirm and assess the sources of illicit discharges or interconnections, where needed; (d) identification of illicit discharges, illicit connections and MS4 connections to PRASA's Sanitary Sewer System found during Phase I and Phase II; (e) preparation of a final Phase II Report with a summary of all findings of Phases I and II, including a list of the MS4's locations in need of further actions to eliminate illicit discharges, illicit connections and MS4 connections to PRASA's sanitary sewer system (including: repair, replacement and/or construction of storm water manholes, stonn water sewer pipes, storm water catch basins, stormwater pump stations, and any other alternatives or actions to properly operate and maintain the MS4); and (f) submission of updated Maps in GIS format (i.e., Shapefiles). (iii) Phase III (Planning and Design) shall include: (a) development and/or design of actions necessary to eliminate illicit discharges, illicit connections, and MS4's locations connected to PRASA's sanitary sewer system (including: repair, replacement and/or construction of storm water manholes, storm water sewer pipes, storm water catch basins, stormwater pump stations, and any other alternatives or actions to properly operate and maintain the MS4); (b) completion of storm sewer capacity analysis 10 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 13 of 44 where storm sewer replacement or upgrades are planned during this Phase and in flood prone areas where replacement or upgrades are necessary; and (c) preparation of a final Phase III Report and Proposed Phase IV Implementation Schedule, subject to EPA's review and approval, and which implementation shall not exceed two years following EPA's approval. Nothing in this Decree requires Ponce to correct or repair overflows from PRASA's sanitary sewer lines. Ponce shall investigate their MS4 and eliminate any MS4's locations connected to PRASA's sanitary sewer system, help facilitate a cessation of the SSO and appropriate cleanup by the sanitary sewer system owner. (iv) Phase IV (Implementation/Construction) comprises completion of all work described in the Phase III Report and Proposed Phase IV Implementation Schedule. e. Quality Control Plan. By the deadline specified in Appendix A, Ponce shall develop a Quality Control Plan addressing all investigation and remedial work required to be implemented under ^ 21.d and work required under Part 2.4.4.8.e of the MS4 Permit. The Quality Control Plan must: (1) standardize the methods that Ponce will use to perform the Phase I through Phase IV activities under ^ 21 .d; (2) ensure that those activities are completed as required; and (3) ensure that all data collected is properly documented and safeguarded, including field checklist for the outfalls, storm sewer catch basins, and storm sewer manholes inspections, report writing, and methods used to detect illicit connections and illicit discharges (i.e., dye testing, smoke testing, video inspections). The Quality Control Plan must be consistent with and include the information in Appendix E. f. Procedure for Removal and Confirmation of an Illicit Discharge. By the deadline specified in Appendix A, Ponce shall develop and submit for EPA's review and approval a procedure to confirm that the source of an illicit discharge has been eliminated, in accordance with Section 2.4.4.8-fofthe MS4 Permit. Ponce shall commence implementation of the procedure upon EPA's approval under ^33. Ponce shall, within one year after removal of the identified illicit discharges in a Catchment, conduct a confirmatory outfall or interconnection screening during dry weather conditions, in accordance with ^ 21.b. Ifconfirmatory screening indicates the continued existence of an illicit discharge or ifEPA determines that the illicit discharge continues or has not been eliminated, the Catchment shall be scheduled for additional investigation or notifications, if applicable, until all illicit discharges have been eliminated. Upon detection of an illicit discharge, Ponce shall exercise its authority, notify the responsible party and require the removal of the illicit discharge as expeditiously as possible. Ponce shall also perform interun mitigation measures to minimize the discharge of pollutants to and from its MS4 until removal is completed. IfPonce concludes that all illicit discharges within a given Catchment have been removed, it shall prepare and submit a "Removal and Confirmation Report. 22. Outfall Monitoring. By the deadline specified m Appendix A, Ponce shall monitor the discharges from the Puerto Viejo Pump Station Outfall, Padre Noel West Pump Station Outfall, Villa Pesquera Pump Station Outfall and Los Meros Pump Station Outfall into the receiving water outfalls for each of the following parameters: enterococci, fecal coliform, 11 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 14 of 44 ammonia, surfactants, boron, pH, and total phosphoms. Ponce shall perform sampling and analyses in accordance with 40 C.F.R. 136. Ponce shall conduct sampling twice per year during the following time periods: April to June and October to December, and only during dry weather. For purposes of this Paragraph, "dry weather" means a time period of at least 48 hours without a measurable rain event. Ponce may request that EPA approve under ^ 33 a reduction in the sampling frequency for parameters that do not exceed the WQS for three consecutive sampling events. 23. Warning Signs. Ponce shall install and maintain warning signs at all outfalls located in Playa Ward for: (1) any discharge that, based on field screening, meets or exceeds three mg/L for ammonia when the flow rate is at least two gallons per minute, or (2) any discharge that exceeds the Water Quality Standards when the flow rate is at least two gallons per minute. Ponce shall post the warning signs within two months of becoming aware of the sampling results under VI.21.b and 22 of the CD. Warning signs must meet the requirements in Appendix F. Ponce shall inspect all posted warning signs at least once per calendar quarter. Ponce shall repair or reinstall any damaged or altered sign within 14 days after discovering that they have been damaged or altered. Ponce may request EPA's approval under ^ 33 to reduce the frequency of the warning sign inspections. Pence's request must include a detailed justification for such reduced inspection frequency. Ponce may request EPA's approval under ^ 33 for the removal of warning signs when sampling results show ammonia (NH3) concentrations lower than 3.0 mg/L and enterococci concentrations lower than 35 colonies/100 mL. EPA's reserves the right to require warning signs to be reposted. 24. SSO Inventory. By the deadline specified in Appendix A and until Termination, Ponce shall develop, maintain, and update an inventory of all SSO events identified by Ponce or reported through citizen complaints within the Municipality's urbanized area, during dry or wet weather, indicating: location (address and receiving water, if any); a clear statement of whether the discharge entered a surface water directly or entered the MS4; date(s) and time(s) of each known SSO occurrence (i.e., beginning and end of any known discharge); estimated volume(s) of the occurrence; description of the occurrence indicating known or suspected cause(s) (from inadequate conveyance capacities, or where interconnectivity of the storm and sanitary sewer infrastructure allows for communication of flow between the systems); PRA.SA claim number, mitigation and corrective measures completed with dates implemented; and mitigation and corrective measures planned with implementation schedules. Upon detection of a SSO, Ponce shall inform PRASA and any pertinent entity to coordinate and eliminate the SSO as expeditiously as possible and shall perform interim mitigation measures to minimize the discharge of pollutants to and from its MS4 until elimination is completed. Ponce shall also clean the streets and sidewalks after a SSO event and dispose of the collected material following the applicable solid waste regulations. Ponce shall submit an updated SSO inventory and shall describe the cleanup and disposal measures taken after each SSO event in the applicable Quarterly Report required under ^ 36. If the SSO occurs during or after a rain event, Ponce shall investigate its MS4 for any MS4's locations connected to PRASA's sanitary sewer system that may cause the SSO. If the SSO is caused by MS4's locations connected to PRASA's sanitary sewer system Ponce shall eliminate the conditions that causes the SSO as expeditiously as possible. If the SSO is caused by broken sanitary lines, Ponce must notify the responsible party of its findings and require the elimination of conditions that causes the SSO. Upon becoming aware of a SSO discharge to the MS4, Ponce shall provide written notification to EPA and 12 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 15 of 44 PRASA within five days of becoming aware of the SSO discharge occurrence and shall include the information listed in part 2.4.4.4.b of the MS4 Permit. 25. Flood Control Pump Station Inspection and Action Plan. By the deadline specified in Appendix A, Ponce shall conduct an inspection assessing the infrastructure, operation, and maintenance of the Puerto Viejo Pump Station, Padre Noel West Pump Station, Padre Noel East Pump Station, Los Meros Pump Station, and Villa Pesquera Pump Station ("FCPS Inspection") and submit an action plan and schedule to address the findings of the FCPS Inspection. The FCPS Inspection must include, but not be limited to: an evaluation of the screening structure (i.e., inflow trash collection), flap valve (if applicable), pumps, control and communication systems, electrical components, and standby power. For the Villa Pesquera FCPS, the FCPS Inspection must also include an assessment of the wet pit condition. The FCPS Inspection must be conducted by a qualified licensed engineer. The engineer shall prepare an inspection report with fmdings and recommendations. Upon EPA's approval under ^33,Ponce shall implement the action plan and schedule and complete all work within three years of such approval. 26. Operation and Preventive Maintenance Program for Flood-Control Pump Stations. By the deadline specified in Appendix A, Ponce shall develop and submit for EPA review an Operation and Preventive Maintenance Program for each of the following pump stations: Puerto Viejo Pump Station, Padre Noel West Pump Station, Padre Noel East Pump Station, Villa Pesquera Pump Station, Los Meros Pump Station, and Las Americas Pump Station. Ponce shall implement the program upon EPA's approval under ^33. 27. M.S4 Infrastructure Operation and Maintenance Program. By the deadline specified in Appendix A, Ponce shall develop and implement a written program detailing the activities and procedures that Ponce will implement: (a) to reduce the discharge of pollutants from the MS4 into waters of the United States; and (b) to ensure that the MS4 infrastructure is maintained in a timely and effective manner. The Infrastructure Operation and Maintenance Program (MS4 Infrastructure O&M Program) must include descriptions of: routine inspections, cleaning and maintenance of catch basins and storm sewers to ensure that the requirements under Part 2.4.7. l.d.2 of the MS4 Permit are met, procedures for sweeping and/or cleaning streets and Ponce-owned parking lots, ensuring proper storage and disposal of the catch basins' debris and street sweepings, and inspection and maintenance frequencies and procedures. Ponce shall implement the MS4 Infrastructure O&M Program at MS4 mfrastructure located within the urbanized area, including storm sewers, pump stations, siphons, and outfalls. 28. H-H Study for Puerto Viejo Pump Station. By the deadline specified in Appendix A, Ponce, by itself or through the U.S. Army Corps of Engineers, shall perform a hydrology and hydraulic study (H/H Study) of the watershed flowing into and discharging through the Puerto Viejo Pump Station and submit for EPA review and approval a remedial action plan and implementation schedule to address the findings of the H/H Study. The H-H Study must assess the existing hydraulic conditions of the watershed and Puerto Viejo Pump Station's capacity to manage stormwater within the Puerto Viejo Sector of Barrio Playa. The H/H Stidy must follow the guidance document faiown as "Gufas para la Elaboracion de Estudios Hidrologicos - Hidraulicos" issued by the Puerto Rico Department ofNah.iral and Environmental Resources and the Puerto Rico Planning Board on June 15, 2016, and must be conducted by a 13 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 16 of 44 qualified licensed engineer. Upon EPA's approval under 33 of the remedial action plan and implementation schedule, Ponce must implement the plan according to the schedule. 29. Funding and Municipal Budget. a. By the deadline specified in Appendix A, Ponce shall develop an initial line-item budget to identify the funding sources to implement and fund the activities listed in Tf 18 through ^32, including those activities that will be covered by Ponce using its own capital or municipal funds and those covered by external sources such as grants and loans. b. Ponce shall submit a description of its efforts to secure the planned funding source in each Quarterly Report required under ^35. c. Commencing with its first fiscal year after the Lodging Date, Ponce shall budget and identify the source(s) of funds for each operating year sufficient to unplement the applicable measures in the SWMP, comply with the MS4 Permit, and implement applicable requirements of this Decree. With each Annual Report due under the MS4 General Permit, Ponce shall submit: (a) its annual budget, including line items of sufficient specificity to identify amounts and sources of the fanding required to comply with the requirements of this Decree and MS4 program, and (b) documents indicating spending to date and expected completion dates for each MS4 program project required by this Decree for which the annual expense exceeds $100,000. 30. Personnel and Training a. Project Coordinators. Ponce shall designate and notify EPA of a Project Coordmator for purposes of this Decree. The Project Coordinator must have sufficient technical expertise and authority to make decisions and coordinate the performance of the work required under the Decree. The Project Coordinator may not be an attorney representing any party m this matter. Ponce may assign other representatives, who may include other employees, contractors and/or consultants, to assist the Project Coordinator in coordinating and performing the work. EPA shall also designate and notify Ponce of its Project Coordinator. EPA may assign other representatives, including employees, contractors and/or consultants, to oversee Ponce's work under the Decree. Any Party may change its designated Project Coordinator by providing notice to other Parties under ^ 79. b. Other Personnel and Training. Ponce shall maintain the necessary personnel and/or cont-actors to comply with its MS4 Permit and this Decree. If the number of personnel or training programs cause delays in compliance with the MS4 Permit and this Decree, Ponce shall take additional measures, as appropriate. Ponce shall ensure that all personnel responsible for compliance with this Decree receive necessary and appropriate training to carry out Ponce's obligations under this Decree and the MS4 Permit. Such training must begin by the deadline specified in Appendix A and must include: the terms and conditions of the MS4 Permit; procedures to conduct field screening; all components of the IDDE Program; terms and conditions of the IDDE Ordinance and its implementation; and the operation and maintenance program of the MS4 and the pump stations. Training must occur at least once each fiscal year. All new employees assigned to work on matters related to the Decree and the MS4 Permit must 14 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 17 of 44 receive training within 60 days of the commencement of employment. Ponce shall provide annual training for the proper operation and maintenance of Pence's pump stations to all pump station operators and supervisors. 31. Green Infrastructure Proj ect a. By the deadline specified in Appendix A, Ponce shall submit to EPA for approval a plan for a Green Infrastmcture Project ("GI Project") to maximize reductions of wet weather flows into the MS4. The plan shall include measures such as storage, infiltration, and evapotranspirative precipitation. The pilot project(s) shall be determined by Ponce, but may include projects such as green streets, rain parks, rain barrels, green streets, and land conservation. Ponce shall: (i) Identify potential locations within "problem" catchments that would be suitable for development of a GI Project. Each potential area shall be prioritized using considerations such as the ability to develop effective GI control measures, availability of land and benefits to low-income neighborhoods. (ii) Select the GI Project best suited to reduce wet weather flows into the MS4. Ponce shall submit a detailed description of the selected GI Project which includes the location, estimated amount of wet weather flow reduction into the MS4, a plan with specific tasks to construct and/or install the GI Project with a schedule for its implementation. The schedule shall include but is not limited to, the design, construction, operation, postconstruction monitoring and evaluation of the effectiveness of the GI Project. (iii) Develop a comprehensive operation and maintenance plan ("GI O&M Plan") that describes maintenance activities for the selected GI Project; including a recommended schedule by which maintenance activities are to be perfonned; standard procedures to conduct inspections and maintenance activities; and standard reports to document activities performed. (iv) Develop a monitoring plan ("GI Monitoring Plan") to evaluate the performance of the selected GI Project, including: protocols to establish field acceptance testing, performance baseline testing, and ongoing field performance testing protocols and procedures to confirm compliance with design criteria and technical standards for the GI Project selected; and forms for documenting results of monitoring activities performed in accordance with the GI Monitoring Plan. (v) A plan for public participation that describes efforts for providing infomiation to the public about green infrastructure. The public participation plan should mclude public education, such as informational signs, to increase community participation and understanding of GI 15 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 18 of 44 Controls. Determining the location for green infrastructure should also be completed with public participation. b. GI Project Implementation. Upon EPA's approval of the GI Project plan under Tf 33, Ponce shall implement the GI Project described in the plan, in accordance with the GI Plan's schedule. 32. Public Outreach a. Public Meetings. Ponce shall hold a series of meetings with the communities located in the urbanized areas ofPonce to communicate information regarding: (a) compliance with this Decree and the MS4 Permit; (b) educating the public about the hazards associated with illicit discharges and unproper waste disposal, the impact of stormwater discharges on local waterways and public health, and how to reduce pollutants in stormwater; and (c) providing an opportunity for public comments and discussing community concerns and ideas related to the stormwater sewer system. Ponce must conduct the public meetings in Spanish at least bi-annually and outside of business hours. Ponce may conduct the meetings virtually or in a face-to-face format. By the deadline specified in Appendix A, Ponce shall develop and implement a plan to conduct these meetings. The plan must include, at a minimum: a list of potential community representatives and stakeholders representing communities located within the urbanized area ofPonce and their contact mformation; identification of municipal resources involved in the coordination of the public meeting; and methods to announce the meetings and reach out to the communities including but not limited to website and social media announcements, public notices, printed materials, radio announcements. b. Hotline and Website or Social Media Page. By the deadline specified in Appendix A, Ponce shall establish a public website and a 24-hour emergency hotlme phone number for the public to report complaints and stormwater issues to Ponce. In addition, such public website will make the following information, at a minimum, available to the public: the Decree and its appendices; name and contact information of Pence's MS4 Coordinator; monitoring results pursuant to ^ 21 .a, 21 .b and 22 of this Decree, announcements of public meetings; new developments; special advisories; information during power outages and malfunction events at the flood control pump stations; educational materials about the impacts of stormwater discharges on local waterbodies; steps that can be taken to reduce stormwater pollution; and providing instructions for citizens to report complaints. 3 3. Approval of Deliverables a. After review of any plan, report, or other item that is required to be submitted for approval pursuant to this Decree and Appendix G, EPA will in writing: (a) approve the submission; (b) approve the submission upon specified conditions; (c) approve part of the submission and disapprove the remainder; or (d) disapprove the submission. b. If the submission is approved pursuant to ^ 3 3.a, Ponce shall take all actions required by the plan, report, or other document, in accordance with the schedules and requirements of the plan, report, or other document, as approved. If the submission is conditionally approved or approved only in part pursuant to ^ 3 3.b or ^ 3 3. c, Ponce shall, upon 16 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 19 of 44 written direction from EPA, take all actions required by the approved plan, report, or other item that EPA determines are technically severable from any disapproved portions. c. If the submission is disapproved in whole or in part pursuant to ^ 33 .c or T{ 3 3-d , Ponce shall, within 45 days or such other time as the Parties agree to in writing, correct all deficiencies and resubmit the plan, report, or other item, or disapproved portion thereof, for approval, in accordance with the preceding Paragraphs. If the resubmission is approved hi whole or in part, Ponce shall proceed in accordance with the preceding Paragraph. d. If a resubmitted plan, report, or other item, or portion thereof, is disapproved in whole or in part, EPA may again require Ponce to correct any deficiencies, in accordance with the preceding Paragraphs, [or may itself correct any deficiencies]. e. If Ponce elects to invoke Dispute Resolution as set forth in Section XI concerning a decision by EPA to disapprove, approve on specified conditions, or modify a deliverable, Ponce shall do so by sending a Notice of Dispute in accordance with ^ 60 within [30] days (or such other time as the Parties agree to in writing) after receipt of the applicable decision. f. Any stipulated penalties applicable to the original submission, as provided in Section IX, accme during the 45 day period or other specified period, but shall not be payable unless the resubmission is untimely or is disapproved in whole or in part; provided that, if the original submission was so deficient as to constitute a material breach of Pence's obligations under this Decree, the stipulated penalties applicable to the original submission shall be due and payable notwithstanding any subsequent resubmission. 34. Permits. Where any work that is required under the Decree requires Pence to obtain a federal, state, or local permit or approval, Ponce shall submit timely and complete applications and take all other actions necessary to obtain all such permits or approvals. Ponce may seek relief under the provisions of Section X (Force Majeure) for any delay in the performance of any such obligation resulting from a failure to obtain, or a delay in obtaining, any permit or approval required to fulfill such obligation, if Ponce has submitted timely and complete applications and has taken all other actions necessary to obtain all such permits or approvals. 35. Obligation to Perform Work. Upon the Lodging Date or date otherwise specified in this Consent Decree, including Appendix A, Ponce shall implement the provisions of Section VI, Compliance Measures. All work identified in Section VI shall be completed no later than eighty months after the Lodging Date or November 1, 2024, whichever occurs later. All work shall be completed using sound engineermg practices to ensure that construction, management, operation and maintenance of the MS4 complies with the CWA, including practices to improve the resilience of the MS4 to the impacts of climate change. VII. REPORTING 36. Progress Reports. By the deadline specified in Appendix A, and until termination under Section XVIII, Ponce shall prepare quarterly progress reports covering each calendar quarter. The reports are due within 30 days after the end of the reporting period (i.e., by 17 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 20 of 44 April 30, July 30, October 30, and January 30 of each year). Each report must cover all activities that took place during the reporting period, including: a. Descriptions of the status of any compliance measures; b. Completion of milestones; c. Status of the System Mapping reqmred under ^ 1 9; d. Status of the Outfall Inventory required under ^ 19; e. Reports or procedures required under the Decree; f. Inspections and outfall monitoring; g. All sampling results; h. A copy of the current MS4 Complaint Registry required under ^ 20, including all of the information required under ^ 20; i. The Outfall and Interconnection Screening and Sampling Procedure required under ^ 20.a; j. A copy of all sampling results obtained as part of the Dry and Wet Weather Sampling in the Playa Ward required under ^21 .b(i), and the Sampling Registry required under ^21 .b(i); k. A copy of the Catchment Ranking under ^ 21. c; 1. Summary of the status of each milestone in the completion of Catchment investigation and remedial work required under ^ 21 .d. m. Summary of information obtained during implementation of Phase I of the Catchment Investigation under ^ 21.d(i), including field checklists for the catch basin, manholes, and outfalls, and a summary of the fmdings. n. Summary of findings of the investigations performed during implementation of Phase II of the Catchment Investigation under ^ 21.d(ii); o. The Quality Control Plan required under T| 20.e; H21.f; p. Copies of all Removal and Confirmation of Illicit Discharge Reports under q. Describe all postings of signs required under ^ 23 r. SSO Inventory Update ^ 24 18 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 21 of 44 s. The Flood Control Pump Station inspection report, action plan, and schedule required under ^ 25; t. The Operation and Preventive Maintenance Program required under ^ 26; u. The MS4 Infrastructure O&M Program required under ^ 27; v. The H-H Study required under ^ 28; w. description of efforts to secure expected funding sources listed in ^ 29; x. Copies of all training materials used, including the agenda and the attendance checklist, in accordance with ^ 30.b; y. The public meeting plan required under ^ 32.a; z. The Green Infrastructure Program and its implementation under ^31; and aa. Descriptions of any non-compliances (including delays) with the Decree, including descriptions of the likely cause of any non-compliance and of the remedial steps taken, or to be taken, to prevent or minimize such non-compliance. 37. Notice of Immediate Threats. Whenever any noncompliance with this Decree or other event affecting Pence's performance of the work required under this Decree occurs that may pose an immediate threat to the public health or welfare or the environment, Ponce shall notify EPA as soon as possible, but no later than 24 hours after Ponce first knew of the noncompliance or event. This procedure is in addition to the requirements of ^ 36. 38. Certification. Each deliverable required to be submitted under this Decree, other than emergency or similar notifications where compliance would be impractical, must be electronically signed by a responsible official of Ponce, and must include the following statement: I certify under penalty of perjury that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the mformation submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, tme, accurate, and complete. I have no personal knowledge that the information submitted is other than tme, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment for knowing violations. VIII. PROGRESS MEETINGS 39. By the deadline specified in Appendix A, representatives ofEPA and Ponce shall convene informally on at least a monthly basis pursuant to a mutually agreed-upon schedule to 19 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 22 of 44 discuss Pence's ongoing progress under the Decree. Thereafter, representatives ofEPA and Ponce shall convene semi-annually. The meetings should cover at least the following subjects: a. Progress in the implementation of the actions required by this Decree; b. Potential problems that may adversely affect progress m implementing the actions required by this Decree; and c. Measures that Ponce intends to take to correct problems and deficiencies encountered by Ponce or found by EPA in its inspections of any facility covered by this Decree. 40. If, as a result of discussions at the Progress Meetings, EPA and Ponce agree on actions to be taken and a schedule for such action that are not otherwise provided for in this Decree, the Parties shall, after consultation with counsel, follow the procedure set forth in Section XVII (Modification). IX. STIPULATED PENALTIES 41. Ponce shall be liable for stipulated penalties to the United States for violations of this Decree as specified below, unless excused under Section X (Force Majeure). A violation includes failing to perform any obligation required by the terms of this Decree, including any work plan or schedule approved under this Decree, according to all applicable requirements of this Decree and within the specified time schedules established by or approved under this Decree. 42. Late Payment of Civil Penalty. If Ponce fails to pay the civil penalty required to be paid under Section V (Civil Penalty) when due, Ponce shall pay a stipulated penalty of $150.00 per day for each day that the payment is late. If payment is late, Ponce shall also pay an additional amount for interest accrued at the rate of 7.1 % per annum on the amount due from the Effective Date to the date of payment. 43. Compliance Milestones a. The following stipulated penalties shall accrue per violation per day for each violation of the requirements identified in ^ 43.b: 1 st through 60th day 61st through 120th day 121st day and beyond $150 $300 $1,000 b. List of applicable compliance milestones: (i) submission of timely or adequate deliverables required under the Decree; (ii) completion of work specified under Section VI (Compliance Measures); (iii) amendment of the SWMP as required by ^ 17 upon the issuance of a new MS4 permit; (iv) compliance with a SWMP under ^ 17; (v) reporting requirements under Section VII; (vi) requirements under ^ 31 (Green Infrastructure Program); and (vii) public outreach requirements under ^ 32 (Public Outreach). 20 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 23 of 44 44. Stipulated penalties under this Section shall begin to accme on the day after performance is due or on the day a violation occurs, whichever is applicable, and shall continue to accrue until performance is satisfactorily completed or until the violation ceases. Stipulated penalties shall accrue simultaneously for separate violations of this Decree. 45. Ponce shall pay any stipulated penalty within 30 days of receiving the United States' written demand. 46. The United States may in the unreviewable exercise of its discretion, reduce or waive stipulated penalties otherwise due it under this Decree. 47. Stipulated penalties shall continue to accrue as provided in ^ 44 during any Dispute Resolution, but need not be paid until the following: a. If the dispute is resolved by agreement of the Parties or by a decision of EPA that is not appealed to the Court, Ponce shall pay accrued penalties determined to be owing, together with interest, to the United States within thirty days of the effective date of the agreement or the receipt ofEPA's decision or order. b. If the dispute is appealed to the Court and the United States prevails in whole or in part, Ponce shall pay all accrued penalties determined by the Court to be owing, together with interest, within 60 days of receiving the Court's decision or order, except as provided in ^ 47. c. If any Party appeals the District Court's decision, Ponce shall pay all accrued penalties determmed to be owing, together with interest, within fifteen days of receiving the final appellate court decision. 48. Obligations Prior to the Effective Date. Upon the Effective Date, the stipulated penalty provisions of this Decree shall be apply to any and all violations of Section VI that have occurred prior to the Effective Date, provided that stipulated penalties that may have accrued prior to the Effective Date may not be collected unless and until this Decree is entered by the Court. 49. Ponce shall pay stipulated penalties owing to the United States in the manner set forth in ^ 16. Ponce shall send a notice of any stipulated penalty payments to EPA and DO J in accordance with Section XV, except that the notice of payment shall state that the payment is for stipulated penalties and shall state for which violation(s) the penalties are being paid. 50. IfPonce fails to pay stipulated penalties according to the terms of this Decree, Ponce shall be liable for interest on such penalties, as provided for in 28 U.S.C. 1961, accruing as of the date payment became due. Nothing in this Paragraph shall be construed to limit the United States from seeking any remedy otherwise provided by law for Pence's failure to pay any stipulated penalties. 51. The payment of penalties and interest, if any, shall not alter in any way Ponce' s obligation to complete the performance of the requirements of this Decree. 21 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 24 of 44 52. Non-Exdusivity of Remedy. Stipulated penalties are not the United States' exclusive remedy for violations of this Decree. Subject to the provisions of Section XIII (Effect of SettlemenVReservation of Rights), the United States expressly reserves the right to seek any other relief it deems appropriate for Ponce's violation of this Decree or applicable law, including, but not limited to, an action against Ponce for statutory penalties, additional mjunctive relief, mitigation or offset measures, and/or contempt. However, the amount of any statutory penalty assessed for a violation of this Decree shall be reduced by an amount equal to the amount of any stipulated penalty assessed and paid pursuant to this Decree. X. FORCE MAJEURE 53. "Force majeure," for purposes of this Consent Decree, means any event arising from causes beyond the control ofPonce, of any entity controlled by Ponce, or of Pence's contractors, that delays or prevents the performance of any obligation under this Consent Decree despite Pence's best efforts to fulfill the obligation. Given the need to protect public health and welfare and the environment, the requirement that Ponce exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure and best efforts to address the effects of any potential force majeure (a) as it is occurring and (b) following the potential force majeure, such that any delay or non-performance is, and any adverse effects of the delay or non-performance are, minimized to the greatest extent possible. "Force majeure" does not include financial inability to perform any obligation under this Consent Decree. 54. If any event occurs for which Ponce will or may claim a force majeure, Ponce shall provide notice to EPA in accordance with Section XV. The deadline for the initial notice is three days after Ponce first knew or should have known that the event would likely delay or prevent performance. Ponce shall be deemed to know of any circumstance of which any contractor of, subcontractor of, or entity controlled by Ponce knew or should have known. 55. IfPonce seeks to assert a claim of force majeure concerning the event, within seven days after the notice under ^ 54, Ponce shall submit a further notice to EPA that includes (a) an explanation and description of the event and its effect on Pence's completion of the requirements of the Consent Decree; (b) a description and schedule of all actions taken or to be taken to prevent or minimize the delay and/or other adverse effects of the event; (c) if applicable, the proposed extension of time for Pence to complete the requirements of the Consent Decree; (d) Pence's rationale for attributing such delay to a force majeure; (e) a statement as to whether, in the opinion ofPonce, such event may cause or contribute to an endangerment to public health or welfare or the environment; and (f) all available proof supporting the claim that the delay was attributable to a force majeure. 56. Failure to submit a timely or complete notice or claim under ^ 54 or 55 regarding an event precludes Ponce from asserting any claim of force majeure regarding that event, provided, however, that EPA may, in its unreviewable discretion, excuse such failure if it is able to assess to its satisfaction whether the event is a force majeure, and whether Ponce has exercised its best efforts, under T| 53. 57. After receipt of any claim of force majeure, EPA will notify Ponce of its determination whether Ponce is entitled to relief under ^53, and, if so, the excuse of, or the 22 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 25 of 44 extension of time for, performance of the obligations affected by the force majeure. An excuse of, or extension of the time for performance of, the obligations affected by the force majeure does not, of itself, excuse or extend the time for performance of any other obligation. 58. If Ponce elects to invoke the dispute resolution procedures set forth in Section XI (Dispute Resolution), it shall do so no later than 15 days after receipt ofEPA's notice. In any such proceeding, Ponce has the burden of proving that it is entitled to relief under ^53, that its proposed excuse or extension was or will be warranted under the circumstances, and that it complied with the requirements of ^ 54 and 55. IfPonce carries this burden, the delay or nonperformance at issue shall be deemed not to be a violation by Ponce of the affected obligation of this Consent Decree identified to EPA and the Court. XI. DISPUTE RESOLUTION 59. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution procedures of this Section shall be the exclusive mechanism to resolve disputes arising under or with respect to this Consent Decree. Ponce's failure to seek resolution of a dispute under this Section concerning an issue of which it had notice and an opportunity to dispute under this Section prior to an action by the United States to enforce any obligation ofPonce arising under this Decree precludes Ponce from raising any such issue as a defense to any such enforcement action. 60. Informal Dispute Resolution. Any dispute subject to Dispute Resolution under this Consent Decree shall first be the subject of informal negotiations. The dispute shall be considered to have arisen when Ponce sends DOJ and EPA a written Notice of Dispute. Such Notice of Dispute shall state clearly the matter in dispute. The period of informal negotiations shall not exceed 20 days from the date the dispute arises, unless that period is modified by written agreement. If the Parties cannot resolve a dispute by informal negotiations, then the position advanced by the United States shall be considered binding unless, within twenty days after the conclusion of the informal negotiation period, Ponce invokes formal dispute resolution procedures as set forth below. 61. Formal Dispute Resolution. Ponce shall invoke formal dispute resolution procedures, within the time period provided in the preceding ^ 60, by sending DOJ and EPA a written Statement of Position regarding the matter in dispute. The Statement of Position shall include, but need not be limited to, any factual data, analysis, or opinion supporting Pence's position and any supporting documentation relied upon by Ponce. 62. The United States will send Ponce its Statement of Position within 45 days of receipt of Pence's Statement of Position. The United States' Statement of Position shall include, but need not be limited to, any factual data, analysis, or opinion supporting that position and any supporting documentation relied upon by the United States. The United States' Statement of Position is binding on Ponce, unless Ponce files a motion for judicial review of the dispute in accordance with the following Paragraph. 63. Judicial Dispute Resolution. Ponce may seek judicial review of the dispute by filing with the Court and serving on the United States a motion requesting judicial resolution of 23 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 26 of 44 the dispute. The motion: (a) must be filed within 10 days of receipt of the United States' Statement of Position pursuant to the preceding Paragraph; (b) may not raise any issue not raised in informal dispute resolution pursuant to ^ 60, unless the United States raises a new issue of law or fact in the Statement of Position; (c) shall contain a written statement of Pence's position on the matter in dispute, including any supporting factual data, analysis, opinion, or documentation, and (d) shall set forth the relief requested and any schedule within which the dispute must be resolved for orderly implementation of the Consent Decree. 64. The United States shall respond to Pence's motion within the time period allowed by the Local Rules of this Court. Ponce may file a reply memorandum, to the extent permitted by the Local Rules. 65. Standard of Review a. Disputes Concerning Matters Accorded Record Review. Except as otherwise provided in this Consent Decree, in any dispute brought under ^ 61 pertaining to the adequacy or appropriateness of plans, procedures to implement plans, schedules or any other items requiring approval by EPA under this Consent Decree; the adequacy of the performance of work undertaken pursuant to this Consent Decree; and all other disputes that are accorded review on the administrative record under applicable principles of administrative law, Ponce shall have the burden of demonstrating, based on the administrative record, that the position of the United States is arbitrary and capricious or otherwise not in accordance with law. b. Other Disputes. Except as otherwise provided in this Consent Decree, in any other dispute brought under ^61, Ponce shall bear the burden of demonstrating that its position complies with this Consent Decree and better advances the objectives of the Consent Decree. 66. The invocation of dispute resolution procedures under this Section shall not, by itself, extend, postpone, or affect in any way any obligation ofPonce under this Consent Decree, unless and until final resolution of the dispute so provides. Stipulated penalties with respect to the disputed matter shall continue to accme from the first day ofnoncompliance, but payment shall be stayed pending resolution of the dispute as provided in ^ 47. IfPonce does not prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in Section IX (Stipulated Penalties). XII. INFORMATION COLLECTION AND RETENTION 67. The United States and its representatives, including attorneys, contractors, and consultants, shall have the right of entry into any facility covered by this Decree, at all reasonable times, upon presentation of credentials, to: a. monitor the progress of activities required under this Decree; b. verify any data or infonnation submitted to the United States in accordance with the terms of this Consent Decree; c. obtain samples and, upon request, splits of any samples taken by Ponce or 24 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 27 of 44 its representatives, contractors, or consultants; d. obtain documentary evidence, including photographs and similar data; and e. assess Ponce's compliance with this Consent Decree. 68. Upon request, Ponce shall provide to EPA or its authorized representatives splits of any samples taken by Ponce. Upon request, EPA shall provide to Ponce splits of any samples taken by EPA. 69. Until five years after the termination of this Consent Decree, Ponce shall retain, and shall instruct its contractors and agents to preserve, all non-identical copies of all documents, records, or other information (including documents, records, or other information in electronic form) in its or its contractors' or agents' possession or control, or that come into its or its contractors' or agents' possession or control, and that relate in any manner to Pence's performance of its obligations under this Consent Decree, This infonnation-retention requirement shall apply regardless of any contrary corporate or institutional policies or procedures. At any time during this information-retention period, upon request by the United States, Ponce shall provide copies of any documents, records, or other information required to be maintained under this Paragraph. 70. At the conclusion of the information-retention period provided in the precedmg Paragraph, Ponce shall notify the United States at least ninety days prior to the destruction of any documents, records, or other information subject to the requirements of the preceding Paragraph and, upon request by the United States, Ponce shall deliver any such documents, records, or other information to EPA. Ponce may assert that certain documents, records, or other information is privileged under the attomey-client privilege or any other privilege recognized by federal law. If Ponce asserts such a privilege, it shall provide the following: (a) the tide of the document, record, or information; (b) the date of the document, record, or information; (c) the name and title of each author of the document, record, or information; (d) the name and title of each addressee and recipient; (e) a description offhe subject of the document, record, or information; and (f) the privilege asserted by Ponce. However, no documents, records, or other information created or generated pursuant to the requirements of this Consent Decree shall be withheld on grounds of privilege. 71. Ponce may also assert that information required to be provided under this Section is protected as Confidential Business Information ("CBI") under 40 C.F.R. Part 2. As to any information that Ponce seeks to protect as CBI, Ponce shall follow the procedures set forth in 40 C.F.R. Part 2. 72. This Decree in no way limits or affects any right of entry and inspection, or any right to obtam information, held by the United States pursuant to applicable federal [or state] laws, regulations, or permits, nor does it limit or affect any duty or obligation of Ponce to maintain documents, records, or other information imposed by applicable federal or state laws, regulations, or permits. 25 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 28 of 44 XIII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS 73. This Decree resolves the civil claims of the United States for the violations alleged in the Complaint filed in this action through the Lodging Date. 74. The United States reserves all legal and equitable remedies available to enforce this Decree. This Decree does not limit United States' authorities to obtain penalties or injunctive relief under the Act, its implementing regulations, or under other federal laws, regulations, or permit conditions. The United States reserves all legal and equitable remedies to address any imminent and substantial endangerment to the public health or welfare or the environment arising at or posed by the Facility, whether related to the noncompliance's addressed in this Decree or otherwise. 75. Res Judicata and Other Defenses. In any subsequent administrative or judicial proceeding initiated against Ponce by the United States for injunctive relief or other appropriate relief relating to the Facility, Ponce shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, claim preclusion (resjudicata), issue preclusion (collateral estoppel), claim-splittmg, or other defenses based upon any contention that the claims raised by the United States in the subsequent proceeding were or should have been brought in the instant case except with respect to claims that have been specifically resolved pursuant to ^ 73. 76. This Decree is not a permit, or a modification of any permit, under any federal, State, or local laws or regulations. Ponce is responsible for achieving and maintaining compliance with all applicable federal, State, and local laws, regulations, and permits; and Pence's compliance with this Decree is not a defense to any action commenced under any such laws, regulations, or permits, except as set forth herein. The United States does not, by its consent to this Decree, warrant or aver in any manner that Pence's compliance with this Decree constitutes compliance with the Act or with any other provisions of federal, State, or local laws, regulations, or permits. 77. Third Parties. This Decree does not limit or affect the rights of Pence or of the United States against any third parties, not party to this Decree, nor does it limit the rights of third parties, not party to this Decree, against Ponce, except as otherwise provided by law. This Decree shall not be construed to create rights in, or grant any cause of action to, any third party not party to this Decree. XIV. COSTS 78. Each Party shall bear its own costs of this action, including attorneys' fees, except that the United States is entitled to collect the costs (including attorneys' fees) incurred in any action necessary to collect any portion of the civil penalty or any stipulated penalties due but not paid by Ponce. XV. NOTICES 79. All agreements, approvals, consents, deliverables, modifications, notices, notifications, objections, proposals, reports, waivers, and requests specified in this Decree must be in an electronic writing. Whenever a notice is required to be given or a report or other 26 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 29 of 44 document is required to be sent by one Party to another under this Decree, it must be sent via email as specified below. All notices under this Section are effective upon receipt. There is a rebuttable presumption that emailed notices are received on the same day that they are sent. Any Party may change the person or email address applicable to it by providing notice of such change to all Parties. To DO J by email: To EPA: To Ponce: eescdcopy.em-d^usdoi .gov Re: DJ# 90-5-1-1-11715 Nancy Rodriguez Chief, Multimedia Permits and Compliance Branch CEPD, U.S. EPA Region II rodriguez.nancy(a>,epa. gov and Suzette M. Melendez-Colon melendez-colon.suzette(S)epa.gov Mr. Orlando Delgado, PPL Land Use Planning Office Director oriando. delgado{%ponce.pr. gQY and Natalia Cervoni Director ofPonce Legal Services Office natalia. cervoni@ponce.pr.gov and Celsa Rodnguez Territorial Analyst celsa.rodriguez@ponce.pr.gov XVI. RETENTION OF JURISDICTION 80. The Court shall retain jurisdiction over this case until termination of this Decree, for the purpose of resolving disputes arising under this Decree or entering orders modifying this Decree, pursuant to Sections XI and XVII, or effectuating or enforcing compliance with the terms of this Decree. XVII. MODIFICATION 81. This Consent Decree, including any appendices, may be modified only by a subsequent written agreement. A modification that constitutes a non-material change to this Decree ("Non-Material Modification") must be signed by all Parties. A modification that constitutes a material change to this Decree ("Material Modification") must be signed by all Parties and approved by the Court. Non-Material Modifications are effective upon approval by the United States. The United States may provide notice of such approval by electronic mail. Material Modifications are effective upon the Court's approval. An extension of a deadline under Section VI (Compliance Measures) that does not exceed 12 months and does not change the final compliance deadline constitutes a Non-Material Modification. Any modification must achieve equal or better environmental benefits as demonstrated by meeting or exceeding performance criteria associated with the original project(s). 27 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 30 of 44 82. Any disputes concerning modification of this Decree shall be resolved under Section XI (Dispute Resolution), provided, however, that: (a) for disputes regarding deadline extensions under ^ 81 the burden of proof shall be as provided by ^ 65.a; and (b) for disputes regarding all other modifications, the Party seeking the modification bears the burden of demonstrating that it is entitled to the requested modification in accordance with Federal Rule of Civil Procedure 60(b). XVIII. TERMINATION 83. After Ponce has completed the requirements of Section VI (Compliance Measures) and has paid any accrued stipulated penalties as required by this Decree, Ponce may serve upon the United States a Request for Termination, stating that Ponce has satisfied those requirements, together with all necessary supporting documentation. 84. Following receipt by the United States of Ponce's Request for Termination, the Parties shall confer informally concerning the Request and any disagreement that the Parties may have as to whether Ponce has satisfactorily complied with the requirements for termination of this Decree. If the United States agrees that the Decree may be terminated, the Parties shall submit, for the Court's approval, a joint stipulation terminating the Decree. If the United States does not agree that the Decree may be terminated, Ponce may invoke Dispute Resolution under Section XI. However, Pence shall not seek Dispute Resolution of any dispute regarding termination until 90 days after service of its Request for Termination. XIX. PUBLIC PARTICIPATION 85. This Decree shall be lodged with the Court for a period of not less than 30 days for public notice and comment in accordance with 28 C.F.R. 50.7. The United States reserves the right to withdraw or withhold its consent if the comments regarding the Decree disclose facts or considerations indicating that the Decree is mappropriate, improper, or inadequate. Ponce consents to entry of this Decree without further notice and agrees not to withdraw from or oppose entry of this Decree by the Court or to challenge any provision of the Decree, unless the United States has notified Ponce in writing that it no longer supports entry of the Decree. XX. SIGNATORIES 86. The undersigned representative of the United States and the undersigned representative of Pence each certifies that they are fully authorized to enter into the terms and conditions of this Decree and to execute and legally bind such Party to this document. XXI. INTEGRATION 87. This Decree constitutes the entire agreement among the Parties regarding the subject matter of the Decree and supersedes all prior representations, agreements and understandings, whether oral or written, regarding the subject matter of the Decree. 28 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 31 of 44 XXU. FINAL JUDGMENT 88. Upon approval and entry of this Decree by the Court, this Decree shall constitute a final judgment of the Court as to the United States and Ponce Parties. XXIII. APPENDICES 80. The following Appendices are attached to and part of this Decree: Appendix A Ponce Work Deadlines Appendix B Flood Control Pump Stations Drainage Area Appendix C Complaint Registry Appendix D Sampling Registry Appendix E Quality Control Plan Appendix F Warning Signs Appendix G Deliverables requiring EPA Review and ^/~\ Approval SO ORDERED this^Tday of^TlQ^T^ , 202_^T Inited States District Judge 29 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 32 of 44 Signature Page for Decree in U.S. v. Municipality of P once FOR THE UNITED STATES OF AMERICA: Todd Kim Assistant Attorney General United States Department of Justice Environment and Natural Resources Division SUZETTE Digitally signed by SUZETTE MELENDEZ COLON Date;20:M:10.15 14:05:52 COLON -O4'oo' Suzette M. Melendez-Colon G04014 Special Attorney U.S. Department of Justice Environment and Natural Resources Division City View Plaza II, Suite 7000 48 RD. 165 Km. 1.2 Guaynabo, PR 00968-8069 W. Stephen Muldrow United States Attorney District of Puerto Rico Lisa Bhatia Assistant U.S. Attorney United States Attorney's Office District of Puerto Rico Torre Chardon, Suite 1201 350 Carlos Chardon Avenue San Juan, Puerto Rico 00918 30 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 33 of 44 Signature Page for Decree in U.S. v. Municipality of P once FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY: Digitally signed by PAUL SIMON Date: 2024.10.15 12:44:01 -04'00' Dated Paul Simon Regional Counsel U.S. Environmental Protection Agency, Region 2 290 Broadway, 17th Floor New York, New York 10007-1866 31 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 34 of 44 Dated Signature Page for Decree in U.S, v. Municipality ofPonce FOR THE MUNICIPALITY OF PONCE: /&y^ Honoral)Te Mai'Wse S9^e Mayor Municipalitx ofPonce ^Shirley Vokac 416 Ponce de Leon Avenue Union Plaza, Suite 311 San Juan, Puerto Rico 00918 ^sfaJrieMok^gmail.com Union Plaza, Suite 31 San Juan, Puerto Rico 00918 ecf(%tcm.law If the Decree is not approved by the Court within 60 days after the date of lodging, and the United States requests, Ponce agrees to execute a waiver of service of a summons under Rule 4 of the Federal Rules of Civil Procedure and any applicable local rules of this Court. Ponce hereby designates tie agent below to execute tbe Rule 4 waiver of service. Ponce understands that: (i) it does not need to file an answer to the complaint until after it has executed the Waiver of service or otherwise has been served with the complaitit; and (ii) the time within which Ponce must file its answer is as set forth in the Federal Rules of Civil Procedure and any applieable local rules of this Court, or as ordered by the Court. Name: Title: Company: Address; Phone: email; 32 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 35 of 44 Signature Page for Decree in 7.5'. v. Municipality of P once ^^L ^ ^j 'ated FOR THE COMMONWEALTH OF PUERTO RICO in conformance with Section 309(e) oftIiejQlean Water Act Domin.gb EBSanuelli Attorofi^General 33 Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 36 of 44 -a- 18 19 20 21.a 21.b 21.e 21.f 22 24 25 26 27 28 29 30.a 30.b 31 32.a. 32.b 35 36 39 APPENDIX A - Ponce Work Deadlines Description of Work System Mapping Outfall Inventory MS4 Complaint Registry and Schedule for Elimination of Illicit Discharges and Illicit Connections Outfall and Interconnection Screening and Sampling Dry and Wet Weather Screening and Sampling at Playa Ward Quality Control Plan Procedure for Removal and Confirmation of an Illicit Discharge Outfall Monitoring SSO Inventory Flood Control Pump Station Inspection and Action Plan Operation and Preventive Maintenance Program for FloodControl Pump Stations MS4 Infrastructure Operation and Maintenance Program H-H Study for Puerto Viejo Pump Station Funding and Municipal Budget Project Coordinator Other Personnel and Training Green Infrastructure Project Public Meetings Hotline and Website or Social Media Page Obligation to Perform Work Progress Reports Progress IVIeetings Deadline Later of 1/1/25 or 2 months after Lodging Date ("DOL") Later of 11,1/27 or 3 years after DOL Later of 2/1/25 or 3 months after DOL Later of 2/1/25 or 3 months after DOL 18 months after EPA approval of the Outfall and Interconnection Screening and Sampling Procedure under ^2 La Later of 12/1/24 or 1 month after DOL Later of 3/1/25 or 4 months after DOL Later of 5/1/25 or 6 months after DOL Later of 2/1/25 or 3 months after DOL Later of 11/1/25 or 1 year after DOL Later of 5/1/25 or 6 months after DOL Later of 4/1/25 or 5 months after DOL Later of 11/1/26 or 2 years after DOL Later of 11/1/2024 or by DOL Later of 2/1/25, or 3 months after DOL Later of 2/1/25, or 3 months after DOL for a year. After first year, annually. Later of 11/1/26 or 2 years after DOL Later of 5/1/25 or within 6 months after the DOL Later of 1/1/25 or within 3 months after DOL Later of 80 months after 1 1/1/24 or DOL First report on 1/30/25 and subsequent reports on April 30, July 30, October 30, and January 30 of each year. First meeting on 11/1/24 and monthly thereafter for a year. After first year, semi-annually. Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 37 of 44 APPENDDC B Flood Control Pump Stations Drainage Area Case 3:24-cv-01478-SCC Document 10 Municipio Autonomo de Ponce Filed 01/23/25 Page 38 of 44 ^ ffSI ^ 'i If^';^ Bi 'iss ana- E3S31 Wf^S flaa& 't LEVEND ORAINAGEAREA PUStTOVIEJOfCPS WEST PADRE NOB- FCPS AMAUA MAftlN FCTS VILLA PESQUBA FCPS EAST PAW NOEL FCPS ^^v s/- ffKS^ % Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 39 of 44 iiiiiiiiiiiiiiiisiiiiitSSSiiVi%- APPENDIX C Complaint Registry BCTfifiBUBII I39S9!S3S8!SSSSK tMffi^mff^Xli%tit%tiiWM-t%%:.^8'lf:K Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 40 of 44 APPENDIX D Sampling Registry ffillliilillpiilili ai SlilllllilBlliliillilSlffi! 1 Include the parameters or indicators that suggest there is a presence of an illicit connection including odor, color, turbidity, floatables, or oil sheen; field testing for ammonia (NHa) concentrations greater than 3.0 mg/L, residual chlorine concentration greater than 5 mg/L and pH outside the range of 7.3 to 8.5. 2 Include the parameters which sampling results show enterococci concentrations greater than 35 colonies/100 mL, fecal coliforms concentrations higher than 14 MPN/100 mL, and surfactants as Methylene Blue Active Substances (MBAS) higher than 0.5 mg/L. Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 41 of 44 APPENDIX E - Quality Control Plan I. INTRODUCTION Purpose II. PHASE I - RECONNAISSANCE a) catchment delineation for the pump station outfall to be investigated according to Table I of the CD; b) information and data gathering to develop or update the maps (e.g. catchment delineation) and performing outfall reconnaissance; c) identification of mterconnections with other storm sewer systems and runoff collection systems; d) identification of suspicious or illicit flow (e.g. wastewater flow) in storm sewer pipes; e) identification of potential interconnections between storm sewers, illicit connections from sanitary sewers, MS4's locations connected to PRASA's sanitary sewer system, and straight pipe connections; f) review and prioritization of sectors based on history of complaints, where applicable; g) identification of suspicious surface depressions on or in the vicinity of sewer pipe or manhole areas; h) identification of obstructions m sewer pipes where cleaning actions are to be required; and i) documentation of preliminary findings from the field verification exercise in anticipation of the Phase II (Investigation) activities. III. PHASE 11 - INVESTIGATION a) preparation and unplementation of a sewer system cleaning and inspection schedule; b) creation of a manhole and catch basin inspection digital database including photographs and digital video (DVDs); c) performance of additional reconnaissance activities, including, but not limited to, video inspections (CCTV and pole camera), dye testing, smoke testing,or other means to confirm and assess the sources of illicit discharges or interconnections, where needed; d) identification of illicit discharges, illicit connections and MS4 connections to PRASA's Sanitary Sewer System found during Phase I and Phase II; Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 42 of 44 APPENDIX E, Page 2 e) preparation of a final Phase II Report with a summary of all fmdmgs of Phases I and II, including a list of the MS4's locations in need of further actions to eliminate illicit discharges, illicit connections and MS4 connections to PRASA's sanitary sewer system (including: repair, replacement and/or construction of storm water manholes, storm water sewer pipes, storm water catch basins, stormwater pump stations, and any other alternatives or actions to properly operate and maintain the MS4); and f) submission of updated Maps in GIS format (i.e., Shapefiles). IV. PHASE III - PLANNING AND DESIGN a) development and/or design of actions necessary to eliminate illicit discharges, illicit connections, and MS4's locations connected to PRASA's sanitary sewer system (including: repair, replacement and/or construction of storm water manholes, storm water sewer pipes, storm water catch basins, stormwater pump stations, and any other alternatives or actions to properly operate and maintain the MS4); b) completion of storm sewer capacity analysis where storm sewer replacement or upgrades are planned during this Phase and in flood prone areas where replacement or upgrades are necessary; and c) preparation of a final Phase III Report and Proposed Phase IV Implementation Schedule. V. PHASE IV - IMPLEMENTATION a) Implementation of all work described in the Phase III Report and Proposed Phase IV Implementation Schedule. Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 43 of 44 APPENDDC F Warning Signs Warning signs must meet the following criteria: 1. shall measure at least 18 inches tail and 24 inches wide 2. shall be made of a durable, weatherproof material 3. shall be readily visible to the unaided eye from a distance of 100 feet 4. shall, if located within 100 feet of a water body, be visible both from the water and from the land 5. shall describe the nature of the risk of exposure to sewage and contaminated water in bilingual text 6. shall include a statement and/or diagrams indicating that wading, swimming, and fishing are prohibited, and 7. shall include a telephone number and identification of the entity responsible for placing and 8. maintaining the signs, and 9. shall state in both English and Spanish: Possible Sewage Contamination and Posible Contaminacion de Aguas Sanitarias Case 3:24-cv-01478-SCC Document 10 Filed 01/23/25 Page 44 of 44 J_ 21.a 21.d.iii 21.f 23 25 26 28 31 APPENDIX G Deliverables requiring EPA Review and Approval Description::. '.'.. \,'^^^^^^ Outfall and Interconnection Screening and Sampling Procedure Preparation of final Phase III Report and Proposed Phase IV Implementation Schedule Procedure for Removal and Confirmation of an Illicit Discharge Reduction in the frequency of warning signs inspections and their removal. Flood Control Pump Station Inspection and Action Plan Operation and Preventive Maintenance Program for Flood-Control Pump Stations H-H Study for Puerto Viejo Pump Station Green Infrastructure Project Plan