Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 1 of 12
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`_________________________________________
`
`
`
`
`
`
`
`UNITED STATES OF AMERICA,
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`
`
`
`v.
`
`
`
`)
`
`
`
`
`
`
`
`)
`
`
`MUNICIPALITY OF TOA ALTA,
`)
`
`
`PUERTO RICO,
`
`
`)
`
`
`
`
`
`
`
`)
`
`
`
`Defendant.
`
`
`_________________________________________ )
`
`
`Civil Action No. 3:21-cv-01087
`
`
`COMPLAINT
`
`The United States of America, by the authority of the Attorney General of the United
`
`States acting at the request of the Administrator of the United States Environmental Protection
`
`Agency (“EPA”), for its complaint against the Municipality of Toa Alta, Puerto Rico (“Toa
`
`Alta”) alleges as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`Toa Alta’s Municipal Solid Waste Landfill (“Landfill”) is in violation of the
`
`Resource Conservation and Recovery Act (“RCRA”) and a 2017 administrative order issued by
`
`EPA under RCRA. The Landfill’s continued operation and manner of operation endanger public
`
`health and the environment. Among other things, Toa Alta has and continues to: (a) create steep
`
`and unstable side slopes at the Landfill, which present an increased risk of collapse; (b) enable
`
`large quantities of leachate to be released from the Landfill threatening contamination of soils,
`
`surface waters, and groundwater and harm to nearby residents; and (c) contribute to a risk of
`
`spread of disease by not covering the solid waste it deposited at the Landfill.
`
`2.
`
`The United States seeks civil penalties and an injunction requiring Toa Alta to
`
`address the hazardous conditions at the Landfill.
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 2 of 12
`
`JURISDICTION, VENUE, AND NOTICE
`
`3.
`
`This Court has jurisdiction over the subject matter of this action under
`
`Sections 7003(a) and (b) of RCRA, 42 U.S.C. § 6973 (a) and (b), and 28 U.S.C. §§ 1331, 1345
`
`and 1355.
`
`4.
`
`Venue is proper in this District because the violations occurred and are continuing
`
`to occur in this District and Toa Alta is located in this District. 28 U.S.C. §§ 1391(b) and
`
`1395(a).
`
`5.
`
`The United States has given notice of this action to Puerto Rico as required by
`
`Section 7003(a) of RCRA, 42 U.S.C. § 6973(a).
`
`THE DEFENDANT
`
`6.
`
`Toa Alta owns the Landfill and has been the owner of the Landfill since
`
`approximately 1966.
`
`7.
`
`Toa Alta operated the Landfill from 1966 to 1998 and from approximately
`
`April 2014 to November 2019. Since November 2019, a third-party contractor has operated the
`
`Landfill at the direction of and for the benefit of Toa Alta.
`
`STATUTORY AND REGULATORY BACKGROUND
`
`8.
`
`RCRA includes a comprehensive federal program that provides for the regulation
`
`of solid waste and hazardous waste. 42 U.S.C. § 6901, et seq.
`
`9.
`
`“Solid waste” is defined to include garbage, refuse, and other discarded material
`
`including solid, liquid, semisolid, or contained gaseous material resulting from, aside from
`
`certain exclusions, industrial, commercial, mining, and agricultural operations, and community
`
`activities. 42 U.S.C. § 6093(27).
`
`10.
`
`Section 7003(a) of RCRA, 42 U.S.C. § 6973(a), provides, in pertinent part:
`
`2
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 3 of 12
`
`[U]pon receipt of evidence that the past or present handling, storage, treatment,
`transportation or disposal of any solid waste or hazardous waste may present an
`imminent and substantial endangerment to human health or the environment, the
`Administrator may bring a suit on behalf of the United States in the appropriate
`district court against any person (including … past or present owner or operator of
`a treatment, storage or disposal facility) who has contributed or is contributing to
`such handing, storage, treatment, transportation or disposal to restrain such person
`from such handling, storage, treatment, transportation or disposal, to order such
`person to take such other action as may be necessary, or both. The Administrator
`may also … take other action under this section including, but not limited to, issuing
`such orders as may be necessary to protect public health and the environment.
`
`
`
`11.
`
`Section 7003(b) of RCRA, 42 U.S.C. § 6973(b), provides that any person who
`
`fails to comply with any EPA order issued under Section 7003(a) of RCRA may, in a civil action
`
`brought by the United States to enforce such order, be fined up to $5,000 for each day of each
`
`violation.
`
`12.
`
`The maximum daily civil penalty amount under Section 7003(b) of RCRA has
`
`been increased to $15,352 for violations occurring after November 2, 2015. 40 C.F.R. § 19.4.
`
`GENERAL ALLEGATIONS
`
`THE LANDFILL AND ITS PRESENT CONDITION
`
`13.
`
`The Landfill is located off the PR-165 thoroughfare, at Km 8.2, Barrio Contorno,
`
`Municipality of Toa Alta, Puerto Rico. The Landfill comprises approximately 32 acres.
`
`14. More than 100 homes and businesses are located within 1,300 feet of the Landfill
`
`perimeter, including one home that is approximately 55 feet from the southwest side of the
`
`Landfill.
`
`15.
`
`Toa Alta has not installed fencing or other controls limiting access to the Landfill
`
`by scavengers and others.
`
`16.
`
`Toa Alta has disposed of its municipal solid waste at the Landfill since 1966. Toa
`
`Alta also accepts municipal solid waste from other municipalities for disposal at the Landfill.
`
`3
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 4 of 12
`
`17.
`
`Toa Alta constructed and filled the Landfill in four main stages: (a) the initial
`
`waste deposit into an approximately 11-acre sinkhole and in an area in the northeast section of
`
`the Landfill; (b) an expansion to the northwest of the initial waste deposit; (c) the newer,
`
`Southeast Cell; and (d) a combined waste deposit area overlaying the preexisting waste deposit
`
`areas.
`
`18.
`
`The 11-acre sinkhole area, the northeast section, and the expansion in the
`
`northwest portion of the Landfill are not lined at the bottom with an impermeable membrane.
`
`19.
`
`Approximately 72 inches of rain fall per year in the region in which the Landfill is
`
`Leachate
`
`located.
`
`20.
`
`21.
`
`The surface of the Landfill is not capped with a low permeability cover.
`
`Like all landfills without low permeability covers, rain that falls on the Landfill
`
`surface passes into and through the solid waste mass within the Landfill.
`
`22.
`
`Like all landfills without low permeability covers, water passing through the
`
`Landfill’s waste mass becomes contaminated with harmful constituents that are in the waste,
`
`including heavy metals and organic compounds, as well as pathogens, including viruses and
`
`microorganisms such as bacteria and protozoan parasites.
`
`23.
`
`This contaminated water, or “leachate,” is released from the bottom, sides, and
`
`“toe” of the Landfill.
`
`24.
`
`25.
`
`The Landfill releases an estimated 12 to 20 million gallons of leachate per year.
`
`The Southeast Cell was constructed with a membrane liner at the bottom and a
`
`leachate collection system that was intended to remove the leachate that is captured by the liner.
`
`26. Waste was first deposited in the Southeast Cell in 2007.
`
`4
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 5 of 12
`
`27.
`
`Toa Alta ceased operating and maintaining the leachate collection system in
`
`approximately 2014.
`
`28.
`
`29.
`
`Toa Alta does not remove the leachate captured by the Southeast Cell’s liner.
`
`Leachate captured by the liner pools on top of the liner, overflows from the edges
`
`of the liner, and leaks through the liner.
`
`30.
`
`The liner below the Southeast Cell accounts for approximately 15% of the waste
`
`disposal area of the Landfill. Leachate generated in the other 85% of the waste disposal area of
`
`the Landfill is not captured by any liner.
`
`31. The Landfill is located above a highly permeable member of the Cibao
`
`Formation, which is a recharge area for the North Coast Limestone lower aquifer.
`
`32. The North Coast Limestone lower aquifer is part of the North Coast Limestone
`
`aquifer system, which also includes an upper aquifer.
`
`33.
`
`The North Coast Limestone aquifer system is a large and productive source of
`
`groundwater in Puerto Rico.
`
`34.
`
`The U.S. Geological Service (“U.S.G.S”) has designated the North Coast
`
`Limestone aquifer system as a “Principal Aquifer of the United States,” i.e., an aquifer that the
`
`U.S.G.S. has determined is a regionally extensive aquifer or aquifer system that has the potential
`
`to be used as a source of potable water.
`
`35.
`
`Groundwater is mostly extracted from the upper aquifer because it is more
`
`accessible for drilling and pumping. The groundwater in the upper aquifer has already been
`
`extensively contaminated, resulting in numerous well closures since 1987.
`
`5
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 6 of 12
`
`36.
`
`The lower aquifer is the principal artesian aquifer of the North Coast Limestone
`
`aquifer system, is relatively uncontaminated, and its water is potable. Several industrial wells and
`
`a few public water supply wells tap the lower aquifer.
`
`37.
`
`Leachate released from the Landfill flows to, may permanently contaminate, and
`
`endangers the North Coast Limestone lower aquifer.
`
`38.
`
`Leachate released from the sides and toe of the Landfill flows to, may
`
`contaminate, and endangers the soils and surface waters near the Landfill.
`
`39.
`
`Leachate releasing from the sides and toe of the Landfill may endanger the health
`
`of people who come into contact with the soils and surface waters contaminated with leachate
`
`from the Landfill.
`
`Landfill Side Slopes
`
`40.
`
`Some of the Landfill’s slopes are steeper than a 3:1 (horizontal to vertical) ratio
`
`and some of those slopes are even steeper than a 2:1 ratio.
`
`41.
`
`A closure plan prepared for Toa Alta in December 2015 specifies that none of the
`
`final Landfill slopes should be steeper than a 3:1 ratio.
`
`42.
`
`A Puerto Rico Landfill Capacity Study in April 2018 found that of six slopes at
`
`the Landfill measured, two slopes exceeded a 2:1 ratio.
`
`43.
`
`Construction drawings for the Southeast Cell prepared in 2006 specified that the
`
`base of the Southeast Cell had elevations of between 321 feet mean sea level (MSL) to 344 feet
`
`MSL, and that the maximum elevation of the waste pile should be no more than 458 feet MSL.
`
`44.
`
`The December 2015 closure plan prepared for the Landfill on Toa Alta’s behalf
`
`specified an increased maximum height of the Landfill of 541 feet MSL. Under the closure plan,
`
`the proposed increased maximum height required the construction of engineered earthen walls.
`
`6
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 7 of 12
`
`45.
`
`Toa Alta never constructed the engineered earthen walls specified in the 2015
`
`closure plan and the Landfill’s height now exceeds 541 feet MSL.
`
`Toa Alta has at times not compacted waste on a daily basis.
`
`In July 2020, the ponded leachate on the liner in the Southeast Cell was 90 inches
`
`46.
`
`47.
`
`deep.
`
`48.
`
`The design of the Southeast Cell specified that depth of the ponded leachate must
`
`not exceed 12 inches.
`
`49.
`
`The risk of slope failure rises with increasing depth of leachate and associated
`
`increased quantity of saturated material and water pressure within that material.
`
`50.
`
`There has been significant seismic activity in Puerto Rico since December 2019,
`
`with earthquakes of 4.7 to 6.4 magnitude.
`
`51.
`
`Puerto Rico is at relatively high risk for hurricanes. The U.S. Geological Survey
`
`classifies Puerto Rico at the most extreme of the various categories of hurricane risk, with an
`
`expectation of more than 60 hurricanes in a 100-year period.
`
`52.
`
`The Landfill’s steep slopes, the frequent hurricanes and high average rainfall in
`
`the area, the seismic activity in the area, the poor compaction of the Landfill mass, the lack of
`
`soil cover to reduce rainwater infiltration into the waste mass, the construction of the Landfill
`
`above its design height, and the ponded leachate in the Southeast cell, combine to create an
`
`increased risk that the Landfill side slopes will collapse, endangering Landfill workers, visitors
`
`(including scavengers), and neighbors near the Landfill.
`
`Soil Cover
`
`53.
`
`Toa Alta has at various times not covered the day’s deposit of waste with soil,
`
`thus leaving the daily deposit of waste exposed.
`
`7
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 8 of 12
`
`54.
`
`Toa Alta has at various times permitted the soil cover that it did apply to be
`
`eroded or removed through the effects of rain or wind, thus exposing the underlying solid waste.
`
`55.
`
`Toa Alta has also failed to place a soil cover over inactive areas of the Landfill,
`
`thus leaving the waste exposed in those areas.
`
`56.
`
`Exposed solid waste is a habitat and food source for disease vectors, i.e., rodents,
`
`flies, and mosquitoes that are capable of transmitting disease to humans.
`
`57.
`
`Application of soil cover to active areas of the landfill and maintenance of a soil
`
`cover in inactive areas reduces the habitat and food source of, and is a barrier to, disease vectors.
`
`58.
`
`Application of soil cover to active and inactive areas reduces infiltration of
`
`rainwater into the Landfill. Less rainwater infiltration results in reduced leachate formation and
`
`releases.
`
`59.
`
`The lack of soil cover in active and inactive areas of the landfill poses an
`
`endangerment to workers, visitors (including scavengers), and neighbors because it exposes them
`
`to an increased risk of disease.
`
`THE 2017 ADMINISTRATIVE ORDER
`
`60.
`
`Based on inspections of the Landfill in 2016, EPA determined that: (a) the past
`
`and present handling of the solid waste at the Landfill may present an imminent and substantial
`
`endangerment to public health and the environment; and (b) it was necessary for EPA to issue an
`
`administrative order to Toa Alta under Section 7003(a) of RCRA, 42 U.S.C. § 6973(a), requiring
`
`it to undertake actions to protect public health and the environment.
`
`61.
`
`On June 14, 2017, under its authority under Section 7003(a) of RCRA, EPA
`
`issued the 2017 Order to Toa Alta, after affording it an opportunity to comment on and object to
`
`8
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 9 of 12
`
`EPA’s administrative action. EPA also issued the 2017 Order to former operators at the Landfill
`
`including Landfill Technologies of Toa Alta and CMA Environmental, LLC.
`
`62.
`
`The 2017 Order required Toa Alta to take appropriate measures to properly
`
`operate the Landfill, including: (a) install and maintain provisional stormwater controls;
`
`(b) provide daily cover on active waste disposal areas; (c) before September 20, 2017, complete
`
`application of intermediate cover on all areas of the Landfill where waste was not currently being
`
`deposited on a regular basis; (d) properly manage all collected leachate so as to minimize the
`
`release of leachate to the environment by either transporting and disposing or implementing on-
`
`site treatment of collected leachate; and (e) install perimeter fencings to prevent access to the
`
`Landfill by scavengers and trespassers.
`
`63.
`
`The Order also required Toa Alta to permanently cease accepting waste for
`
`disposal at the Landfill by December 31, 2017. Upon a request by Toa Alta after Hurricane
`
`Maria, EPA extended this deadline to June 30, 2018, subject to the conditions that: (a) Toa Alta
`
`avoid any further damage to the Southeast Cell’s leachate collection system and related
`
`equipment; (b) place no more waste in the Southeast Cell; (c) place no waste on, or within five
`
`meters of, the top of all existing slopes; and (d) place no waste beyond the perimeter where waste
`
`had been disposed of as of June 19, 2017. EPA specified that if any of these conditions could not
`
`be met, Toa Alta could not dispose of any waste at the Landfill after the original December 31,
`
`2017 deadline.
`
`64.
`
`Toa Alta did not satisfy the conditions for the extension, and therefore the
`
`deadline for Toa Alta to cease disposing of waste at the Landfill remained December 31, 2017.
`
`9
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 10 of 12
`
`CLAIMS OF RELIEF
`
`FIRST CLAIM: INJUNCTIVE RELIEF UNDER SECTION 7003(A) OF RCRA
`
`65.
`
`Toa Alta through its Landfill is enabling the release of contaminated leachate,
`
`creating an increased risk of slope collapse, and creating risks caused by the lack of daily and
`
`intermediate cover including the spread of disease.
`
`66.
`
`Because of these conditions and risks, Toa Alta may endanger: (a) the health and
`
`safety of workers and visitors (including scavengers) at the Landfill and neighbors near the
`
`Landfill; (b) the North Coast Limestone lower aquifer and the health of persons who do or will
`
`drink water drawn from that aquifer; (c) the soils and surface waters near the Landfill and the
`
`health of persons who have or will come into contact with those soils and surface waters.
`
`67.
`
`These conditions may present an imminent and substantial endangerment to
`
`public health or the environment.
`
`68.
`
`Toa Alta is liable, under Section 7003(a) of RCRA, 42 U.S.C. § 6973(a), for
`
`injunctive relief requiring it to take such action as is necessary to abate the conditions that may
`
`endanger public health and the environment.
`
`SECOND CLAIM: CIVIL PENALTIES UNDER 7003(B) OF RCRA
`
`69.
`
`Toa Alta has violated the 2017 Order by: (a) disposing of waste at the Landfill
`
`after the December 31, 2017 deadline; (b) failing to install provisional stormwater controls;
`
`(c) failing to provide daily cover on active waste disposal areas; (d) failing to provide
`
`intermediate cover on areas of the Landfill where waste is not being disposed on a regular basis;
`
`(e) failing to properly manage all collected leachate so as to minimize the release of leachate to
`
`the environment by either transporting and disposing or implementing on-site treatment of
`
`10
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 11 of 12
`
`collected leachate; and (f) failing to install perimeter fencings to prevent access to the Landfill by
`
`scavengers and trespassers.
`
`70.
`
`Toa Alta is liable for civil penalties under Section 7003(b) of RCRA, 42 U.S.C.
`
`§ 6973(b), for each day of each violation of the 2017 Order.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, the United States of America respectfully requests that the Court grant
`
`the following relief:
`
`a. Order Toa Alta to permanently cease disposing of solid waste at the Landfill;
`
`b. Order Toa Alta to implement injunctive relief that addresses the imminent and
`
`substantial endangerment to public health and the environment posed by the Landfill;
`
`c. Order Toa Alta to pay civil penalties for its violations of the 2017 Order;
`
`d. Award the United States its costs in this action; and
`
`e. Grant such other relief as the Court deems just and proper.
`
`
`
`Respectfully submitted,
`
`
`
`ELLEN M. MAHAN
`Acting Deputy Assistant Attorney General
`United States Department of Justice
`Environment and Natural Resources Division
`
`
`s/ David Gordon
`DAVID L. GORDON
`Senior Counsel
`U.S. Department of Justice
`Environment and Natural Resources Division
`Environmental Enforcement Section
`Washington, DC 20044
`(202) 514-3659
`david.l.gordon@usdoj.gov
`
`
`
`
`11
`
`

`

`Case 3:21-cv-01087-DRD Document 1 Filed 02/25/21 Page 12 of 12
`
`W. STEPHEN MULDROW
`United States Attorney
`District of Puerto Rico
`
`CARMEN MARQUEZ
`Assistant United States Attorney
`United States Attorney’s Office
`District of Puerto Rico
`Torre Chardon Suite 1201
`350 Carlos Chardon Avenue
`San Juan, PR 00918
`
`
`OF COUNSEL:
`
`LEE A. SPIELMANN
`Assistant Regional Counsel
`U.S. Environmental Protection Agency, Region 2
`290 Broadway
`New York, New York 10007-1866
`
`12
`
`