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United States v. City of Portsmouth

United States District Court, D. New Hampshire

September 28, 2016

United States of America, et al.
v.
City of Portsmouth, New Hampshire Opinion No. 2016 DNH 172

          David Lee Gordon, Esq.

          Peter M. Flynn, Esq.

          Kevin A. Brooks, Esq.

          Arthur B. Cunningham, Esq.

          Michael J. Quinn, Esq.

          Bruce W. Felmly, Esq.

          E. Tupper Kinder, Esq.

          Suzanne M. Woodland, Esq.

          Thomas F. Irwin, Esq.

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         The 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.

         A group 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.

         In this Memorandum and Order, I explain why I deny the residents' motion to reconsider and grant the United States' motion to enter the Second Modification.

         I. BACKGROUND

         A. The Complaints

         In 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 system.

         B. The Consent Decree

         The 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.

         C. First Consent Decree Modification

         On July 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 ...


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