UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 2
CARIBBEAN ENVIRONMENTAL PROTECTION DIVISION
CITY VIEW PLAZA II BUILDING, 7TH FLOOR
ROUTE 165 GUAYNABO, PUERTO RICO 00968

July 7, 2020

VIA EMAIL

Hon. Iván Solis

Mayor
Municipality of Culebra
P. O. Box 289
Culebra, Puerto Rico 00775-0189

Re: Notice of Potential Violation of Sections 301 and 402 of the Clean Water Act
Request for Information Pursuant to Section 308 of the Clean Water Act
Culebra Municipal Landfill
Docket Number CWA-02-2012-3113
CEPD-CWA-02-IR-2020-009
NPDES ID: PRU020705

Dear Mayor Solis:

This letter is in reference to the Municipality of Culebra (“Culebra” or the “Municipality) sustained non-
compliance with Sections 301 and 402(p) of the Clean Water Act (“CWA” or the “Act”), 33 U.S.C. §§
1311(a) and 1342(p), and the National Pollutant Discharge Elimination System (“NPDES”) storm water
permit application regulations (“SW Rules”) codified in 40 C.F.R. §§ 122.21 and 122.26. This letter also
addresses Culebra’s non-compliance with the Administrative Compliance Order (“ACO”), Docket
Number CWA-02-2012-3113, that the United States Environmental Protection Agency (“EPA”) issued to
the Municipality on April 30, 2012. 1

EPA is providing you with an opportunity to advise the Agency, via teleconference or in writing, of any
further information that EPA should consider with respect to the potential violation[s] described herein
below. EPA also requests information pursuant to its investigative authority under Section 308 of the
CWA, 33 U.S.C. § 1318. The potential violations described in this letter are very serious and require that
the Municipality takes actions or consult with EPA on the matter.

1. The Administrative Compliance Order

On April 30, 2012, EPA issued the ACO to Culebra for failure to apply for an NPDES storm water
permit and its discharges of pollutants through storm water runoff associated with industrial
activity from the Culebra Municipal Landfill (the “Landfill”) into the Caribbean Sea without an
NPDES permit. The Order required the Municipality to, among other things, submit a Plan of

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The ACO was issued pursuant to Section 309(a) of the Clean Water Act (the “Act” or “CWA”), 33 U.S.C. 1319(a). The
Municipality acknowledged receipt of the ACO on April 13, 2012.

Internet Address (URL) • http://www.epa.gov

 Action (“POA”) to achieve compliance with the NPDES Multi-Sector General Permit for
Stormwater Discharges from Industrial Activity (“MSGP) 2; prepare a Stormwater Pollution
Prevention Plan (“SWPPP”); address storm water run-on and runoff from outside sources and
pollutant sources within the Landfill; and submit Quarterly Progress Reports.

By letter dated June 28, 2018 (the “June 2018 Letter”), EPA provided notice to Culebra that it had
not complied with the ACO, including its failure to submit Notice of Intent (“NOI”) forms for the
Landfill for coverage under the 2008 MSGP and 2015 MSGP since the issuance of the ACO. Also,
EPA advised that if the Municipality fails to confer with EPA, as offered therein, and address the
violations in an appropriate and timely manner, EPA may commence additional enforcement
actions against the Municipality under Section 309 of the CWA, 33 U.S.C. § 1319, under which
injunctive relief and civil penalties may be sought. Enclosed is a copy of the ACO and the June
2018 Letter for reference.

On August 7, 2018, you and other Municipality’s representatives met with EPA officials
concerning the ACO and the June 2018 Letter. The Municipality was expected to bring and discuss
a written plan to bring the Municipality into compliance and that the implementation of such plan
shall provide for, at a minimum, the following:

 The contact information of the qualified personnel, qualified consultant and/or qualified
consulting firm responsible for the development and implementation of the plan. The plan
shall include a copy of an executed service contract for in the event that the Municipality
determine to use a qualified consultant and/or consulting firm;

 A line-item description of each action to be taken, including an implementation schedule and

submittal of compliance progress reports;

 The estimated costs to implement the plan; and

 The contact information of the qualified personnel, qualified consultant and/or qualified
consulting firm that the Municipality will retain to comply with the requirements of the
Permit. The plan shall include a copy of an executed service contract in the event that the
Municipality determine to use a qualified consultant and/or qualified consulting firm.

During the meeting, EPA and the Municipality discussed Culebra’s non-compliance with the ACO
requirements, development and implementation of the SWPPP, and filing of a NOI to obtain
coverage under the 2015 MSGP. The Municipality agreed to submit information to comply with
the ACO.

Thereafter, an EPA official performed a review of the EPA administrative record concerning the
ACO for the period between September 2018 and May 2020. The results of EPA’s review of
Culebra’s compliance with each Ordered Provision of the ACO are presented below:

a. Paragraph A (Certification) – This is a requirement that the Municipality must comply with

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On September 29, 2008, EPA re-issued the MSGP, which became effective on September 29, 2008 and expired on September
29, 2013 (the “2008 MSGP”). Thereafter, EPA re-issued the MSGP on June 4, 2015, which became effective on same date
of issuance (the “2015 MSG”). The 2015 MSGP expiration date is June 4, 2020.

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 when sending documents to EPA under the ACO.
b. Paragraph B (Acknowledgement of receipt) – The Municipality completed the
acknowledgment of receipt of the ACO.

c. Paragraph C (Plan of Action) – The Municipality had not submitted a Plan of Action (“POA”)
to achieve compliance.

d. Paragraph D (SWPPP) – The Municipality had not submitted a SWPPP for review.

e. Paragraph E (Storm Water Runon/Runoff from Outside Sources and Pollutant Sources) –
The Municipality had not submitted information to demonstrate it had complied with this
provision.

f. Paragraph F (Quarterly Progress Reports) – The Municipality had not submitted Quarterly
Progress Reports

Based on the above, the Municipality has not complied with the substantive requirements of the
ACO as of the date of this letter.

2. Permit Coverage Under NPDES Storm Water Permit

On May 12, 2020, an EPA official reviewed the EPA “E-enterprise” database portal (https://e-
enterprise.gov/) to determine whether Culebra filed an electronic NOI (“eNOI”) to seek coverage
under the 2015 MSGP. The EPA official found that Culebra had not submitted an eNOI for the
Landfill. Please be informed that the 2015 MSGP expired on June 3, 2020. Therefore, EPA is
precluded from processing eNOIs and granting coverage under the 2015 MSGP.

Also, an EPA official reviewed EPA’s administrative records and found that the Municipality had
not submitted an NPDES individual permit application for the Landfill.

At this point and while EPA completes re-issuance of the 2020 MSGP, the Municipality has two
(2) alternatives concerning its discharges of storm water associated with industrial activity from
the Landfill into receiving waters. They are:

a. Preparation of a SWPPP for the Landfill and submittal of an “Intent to Operate” (“ITO”)
form to operate in accordance with the 2015 MSGP. For more information about the ITO
form, please visit the EPA web site at https://www.epa.gov/npdes/stormwater-discharges-
industrial-activities. If the Municipality chooses this alternative, it must comply with the
following steps:

1) Meet the eligibility criteria in Part 1 of the 2015 MSGP;

2) Provide EPA a 30-day advance notice of Culebra’s operator status and its intention to
operate the Landfill in accordance with the 2015 MSGP by submitting an ITO form
through the NPDES eReporting Tool (“NeT”) for 2015 MSGP, to allow EPA time to
review the notice;

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 3) Satisfy all requirements of the 2015 MSGP (except those pertaining to submission of
an eNOI); and
4) If Culebra’s Landfill will continue discharging after the effective date of the 2020
MSGP, submit an eNOI for coverage under the 2020 MSGP within ninety (90) days of
its effective date.
or

b. Preparation and submittal of an NPDES individual permit application for the Landfill in
accordance with 40 C.F.R. §§ 122.21 and 122.26. More information about NPDES permit
applications is found at https://www.epa.gov/npdes/npdes-applications-and-forms.

Mr. Sergio Bosques, Senior Environmental Engineer, is available to assist the Municipality with
the above. He can be reached at (787) 977-5838, or via electronic mail at bosques.sergio@epa.gov.

3. Request for Information

Section 308(a) of the CWA, 33 U.S.C. § 1318(a), states that whenever it is necessary to carry out
the objectives of the CWA, including determining whether or not a person is in violation of Section
301(a) of the CWA, 33 U.S.C. § 1311(a), EPA shall require the submission of any information
reasonably necessary to make such a determination. Under the authority of Section 308 of the
CWA, EPA may require the submission of information necessary to assess the compliance status
of any facility and its related appurtenances.

EPA issues this Request for Information (“RFI”) to the Municipality pursuant to the authority
vested in the Administrator of EPA by Section 308(a) of the CWA. This authority has been duly
delegated to the Regional Administrator of Region 2, EPA, and since further re-delegated to the
Director of the EPA Region 2 Caribbean Environmental Protection Division.

Based on the above, EPA is requesting the Municipality to submit information. The EPA will use
the information requested to determine Culebra’s compliance with Sections 301(a), 308(a), and
402 of the CWA. Attachment 2 of this letter includes the instructions to be followed in response
to this RFI.

a. The name of the entity operating the Landfill. If the Landfill is being operated by the
Municipality, provide the name of the Landfill’s manager and contact information. If the
Landfill is being operated by a private entity, include the names of the officers, executive
directors and agents, their addresses and phone numbers.

b. If the Landfill is being operated by a private entity, a copy of the current operation contract
between the Municipality and its contracted company engaged in the operation of the
Landfill.

c. A copy of the most recent SWPPP developed for the Landfill.

d. A legible copy of the most recent site map developed for the Landfill.

e. A legible copy of the most recent storm water collection and discharge system map

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 developed for the Landfill.

f. A detailed explanation of the current storm water runoff path from the Facility’s premises
into the receiving waters (i.e., Caribbean Sea).

g. A legible site map and/or by other means, such as an aerial photography, depicting those
areas of the Landfill that are active and inactive, and the storm water runoff path from the
Facility’s premises into the receiving waters.

h. Pictures of the points of discharge from the Landfill into the receiving waters.

3.1 Time and Delivery of Documents and Information Requested

Please acknowledge receipt of this letter via electronic mail (“email”) upon receipt. Pursuant to 40
C.F.R. § 122.22, all information required to be submitted shall be signed by an authorized
representative of Culebra, and shall include the following certification:

"I certify under penalty of law 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 gathered and evaluated the information 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, true, accurate, and complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and imprisonment for
knowing violations."

The acknowledgement of receipt and any other documents to be submitted to EPA in response to
of this letter shall be sent by email to the following designated EPA official no later than forty-five
(45) calendar days of receipt of this letter:

Jaime López
Senior Enforcement Officer/Physical Scientist
Clean Water Act Team
Multimedia Permits and Compliance Branch
Caribbean Environmental Protection Division
U.S. Environmental Protection Agency, Region 2
City View Plaza II, Suite 7000
48 RD. 165 Km. 1.2
Guaynabo, PR 00968-8069
email: lopez.jaime@epa.gov.

The EPA acknowledges that the COVID-19 pandemic may be impacting Culebra and/or the
operation at the Landfill. If that is the case, EPA will consider, at its sole discretion, Culebra’s
specific circumstances that could affect a timely response to this letter, while ensuring that the
EPA receives the relevant information it needs to effectively evaluate Culebras’s compliance with
Sections 301(a), 308(a) and 402(p) of the CWA.

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3.2 Notifications

Failure to comply in all respects with this RFI within the time specified above may result in the
initiation of an enforcement action under Section 309 of the Act, 33 U.S.C. §1319, under which
injunctive relief and penalties may be sought. Such an enforcement action may include the
assessment of penalties of up to $55,800 per day for each day of continued non-compliance.

Please be advised that you are under a continuing obligation to supplement the response if
information not known or not available to you as of the date of submission of your response should
later become known or available to you. In this instance, you must supplement your response to
EPA within ten (10) business days.

If at any time in the future you obtain or become aware of additional information or find that any
portion of the submitted information is false, misleading or misrepresents the truth, you must notify
EPA of this fact immediately and provide a corrected response within ten (10) business days. If
any part of the response is found to be untrue, you may be subject to criminal prosecution.

This Request for Information is not subject to the approval requirements of the Paperwork
Reduction Act of 1980, 44 U.S.C. §§ 3501-3520. You may, if you so desire, assert a business
confidentiality claim covering all or part of the information requested by this letter. A business
confidentiality claim may be asserted by placing on (or attaching to) the information, at the time
it is submitted, a cover sheet, stamped or typed legend, or other suitable form of notice employing
language such as "trade secret" or "proprietary" or "company confidential." Information covered
by such a claim will be disclosed by EPA only in accordance with and by means of procedures set
forth in Sub-part B, 40 C.F.R. Part 2.

If no such claim accompanies the information contained in the response to the RFI when it is
received by EPA, it may be made available to the public by EPA without further notice to you.
You should read the above-cited statutory and regulatory provisions carefully before asserting a
business confidentiality claim, since certain categories of information are not properly the subject
of such a claim. Allegedly confidential portions of otherwise non-confidential documents should
be clearly identified by you. If you desire confidential treatment of information only until a certain
date or until the occurrence of a certain event, your response should state so.

4. Reservation of Rights

EPA’s receipt of Municipality’s submittal of documentation and any other matter related to the
issues addressed in this letter shall not be deemed as an election by EPA to forego any
administrative or judicial action for penalties, fines, or other appropriate relief under Section 309
of the CWA, 33 U.S.C. § 1319, arising from EPA’s investigation of Culebra’s compliance with
the CWA.

Culebra’s submittal of information in response to this letter, the implementation of actions to

comply with the CWA, the ACO, and any other matter on this letter shall not be deemed as an
election by EPA to forego any further administrative or judicial action for penalties, fines, or other

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 appropriate relief under Section 309 of the CWA arising from EPA’s investigation of Culebra’s
compliance with the CWA.

5. Offer to Confer with EPA and Contact Information

Based on the above, EPA is giving the Municipality another opportunity to confer with EPA about
the actions the Municipality will take to comply with CWA and the SW Rules. The conference
meeting has been scheduled for July 29, 2020, at 2:00 p.m. The Conference Line is 202-991-0477
and the Conference Code is 7807364. If you or your authorized official (e.g., legal counsel) is
unable to attend the scheduled conference meeting, the Municipality shall provide two (2)
alternate dates within seven (7) calendar days of receipt by email of this letter. In such case, EPA
will contact the Municipality to establish a new date for the conference meeting.

We appreciate your prompt attention to this matter. If you have any questions concerning this
request, please contact me at (787) 977-5875, or via email at guerrero.carmen@epa.gov, or Mr.
José A. Rivera, Team Leader, Clean Water Act Team, at (787) 977-5842, or via email at
rivera.jose@epa.gov. Your staff may also contact Mr. Jaime López at (787) 977-5851, or through
email at lopez.jaime@epa.gov.

Sincerely,

Carmen R. Guerrero Pérez

Director
Caribbean Environmental Protection Division

Enclosures

cc: Ángel Meléndez, DNER/WQA (via email w/enclosures)

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 ATTACHMENT 2

REQUEST FOR INFORMATION

INSTRUCTIONS

In responding to the Request for Information (“RFI”), apply the following instructions, definitions and
information:

a. The signatory should be an officer or agent who is authorized to respond pursuant to the
signatory requirements regulations codified at 40 C.F.R. § 122.22.

b. A complete separate response must be made for each individual question in this RFI. Identify
each answer with the number of the question it addresses and precede each answer with the
question to which it is addressed.

c. Interpret “and” as well as “or” to include within the scope of the question as much information
as possible. If two interpretations of a question are possible, use the one that provides more
information.

d. In preparing your response to each question, consult with all present and former employees,
agents and/or contractors whom you have reason to believe may be familiar with the matter to
which the question pertains, regardless of whether the source is in your immediate possession.

e. In answering each question, identify all contributing sources of information.

f. If you are unable to answer a question in a detailed and complete manner, or if you are unable
to provide any of the information or documents requested, indicate the reason for your inability
to do so. If you have reason to believe that there is an individual who may be able to provide
more detail or documentation in response to any question, state that person's name, last known
address and phone number, in addition to the reasons for your belief.

g. If anything is deleted from a document produced in response to this RFI, state the reason for,
and the subject matter of the deletion.

h. For each document produced in response to this RFI, indicate on the document or in some other
reasonable manner, the number of the question to which it applies. If a document is requested
but is not available, state the reason for its unavailability.