United States District Court, D. New Hampshire
United States of America, et al.
City of Portsmouth, New Hampshire Opinion No. 2016 DNH 172
Lee Gordon, Esq.
M. Flynn, Esq.
A. Brooks, Esq.
B. Cunningham, Esq.
Michael J. Quinn, Esq.
W. Felmly, Esq.
Tupper Kinder, Esq.
Suzanne M. Woodland, Esq.
F. Irwin, Esq.
MEMORANDUM AND ORDER
Barbadoro United States District Judge
United States has filed a motion to modify a consent decree
that addresses the City of Portsmouth's failure to abide
by the Clean Water Act and the New Hampshire Water Pollution
and Waste Disposal Act. The consent decree was entered in
2009 and modified in 2013. In April 2016, the United States
lodged a proposed second modification to the consent decree
("the Second Modification"). All of the parties to
the consent decree support the Second Modification, and the
United States moves to enter it.
of Portsmouth residents has intervened and objects. I limited
the residents' intervention to issues presently before
the court. The residents request that that I defer ruling on
the Second Modification until they file and adjudicate a
citizen suit under 33 U.S.C. § 1365(a)(1). They also
requested, and I denied, additional briefing and discovery.
They move to reconsider that denial.
Memorandum and Order, I explain why I deny the residents'
motion to reconsider and grant the United States' motion
to enter the Second Modification.
2009, the United States filed a complaint alleging that the
City of Portsmouth ("the City") violated several
sections of the Clean Water Act, 33 U.S.C. § 1251, et
seq. Doc. No. 1. A month later, New Hampshire ("the
State") intervened in the action and filed a complaint
alleging that the City also violated the New Hampshire Water
Pollution and Waste Disposal Act, N.H. Rev. Stat. Ann. §
485-A:13. Doc. No. 4. The complaints allege that the City
violated both permit effluent limitations for discharges from
the City's Peirce Island wastewater treatment plant and
permit conditions applicable to discharges from overflow
points in the City's combined wastewater collection
The Consent Decree
United States filed a proposed consent decree with its
complaint. Doc. No. 2-1. The consent decree requires the City
to take several steps to bring its wastewater treatment
practices into compliance with the Clean Water Act. For
example, the decree requires the City to implement a
compliance plan, develop and implement a wastewater master
plan, perform combined sewer overflow facility upgrades,
comply with interim emissions/effluent limits until the
secondary treatment facilities achieve full operation, submit
and comply with a post construction monitoring plan, and
comply with reporting requirements.
First Consent Decree Modification
2, 2012, the United States lodged a proposed modification to
the consent decree ("the First Modification"). Doc.
No. 10-1. The Conservation Law Foundation ("CLF")
intervened and objected to the modification. CLF did not
strictly oppose the main substantive provisions of the
modification. Rather, CLF argued that the court should
closely monitor the EPA's management of the consent
decree. Because the other parties did not request such
oversight, and there was no ...