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Pitroff v. United States

United States District Court, D. New Hampshire

August 22, 2017

Roger Pitroff, et al.
United States of America, et al. Opinion No. 2017 DNH 158


          Paul Barbadoro United States District Judge.

         The City of Portsmouth has been discharging inadequately treated sewage into the Piscataqua River and the Great Bay estuary for many years. In 2007, the United States attempted to address this problem by issuing the City a National Pollutant Discharge Elimination System (“NPDES”) permit that for the first time requires the City to provide secondary treatment to its wastewater discharges. After the City failed to comply with the permit, the United States sued the City, alleging violations of both the NPDES permit and the Clean Water Act (the “Act”), 33 U.S.C. §§ 1251-1388. The State of New Hampshire later intervened and added its own claims against the City based on state environmental laws. In 2009, the parties agreed to a consent decree to address the City's violations and the consent decree has since been modified twice. The City plans to meet the requirements of the permit and the consent decree in part by upgrading its existing wastewater treatment facility on Peirce Island.

         The current action is a “citizens suit, ” filed by sixteen Portsmouth residents who claim that the proposed upgrade to the Peirce Island facility will not bring the City into compliance with the Clean Water Act. Plaintiffs allege that the City, the State of New Hampshire, and the United States are liable as primary violators of the Act. They also allege that the United States is separately liable because it has failed to fulfill several nondiscretionary duties that the Act requires it to assume when overseeing the City's compliance efforts.

         Defendants have filed motions to dismiss arguing that the Act does not authorize plaintiffs' claims. To the extent that plaintiffs contend that the defendants are liable for failing to comply with the Act's effluent standards, defendants argue that plaintiffs' claims are barred because the United States and the State of New Hampshire are “diligently prosecuting” their own Clean Water Act claims against the City. The United States also argues that the plaintiffs' separate claim against it must be dismissed because plaintiffs cannot point to any nondiscretionary duties that the United States has failed to fulfill.

         I. BACKGROUND

         The United States issued an NPDES permit to the City in 2007 that authorizes it to make discharges from its Peirce Island wastewater treatment plant and three combined sewer overflows (“CSOs”). For the first time, the permit requires the City to provide secondary treatment to its wastewater discharges. See Doc. No. 1 at 4. After the City failed to comply with the permit, the United States filed an action in this court alleging violations of the permit and the Clean Water Act. Doc. No. 1 at 4-5, United States v. City of Portsmouth, No. 09-cv-283-PB (D.N.H. Aug. 17, 2009) (the “enforcement action” (“EA”)). The State of New Hampshire subsequently intervened and filed a complaint alleging that the City's discharges also violate state law. EA Doc. No. 4 at 4-5.

         The parties later agreed to a consent decree that obligates the City to take several steps to bring its wastewater practices into compliance with the NPDES permit and the Act. The consent decree requires the City to implement a compliance plan, implement a wastewater master plan, perform CSO upgrades, comply with interim effluent limits until secondary treatment facilities are constructed, submit and comply with a post-construction monitoring plan, and comply with reporting requirements. See EA Doc. No. 8 at 5-12. In September 2009, I approved the consent decree.

         In July 2012, the United States lodged a proposed modification (“the First Modification”) to the consent decree. EA Doc. No. 10-1. The parties agreed to the modification because the City encountered unexpected geological and financial conditions. The Conservation Law Foundation (“CLF”) intervened to request that I more closely monitor the EPA's management of the consent decree. Because the other parties did not request such oversight, and there was no reason to believe that the City's delay was unreasonable, I denied CLF's motion for greater oversight. The First Modification contains two main provisions. The first extended the schedule for completing the CSO upgrades from 2013 to 2014. The second established a construction schedule for secondary treatment facilities that required completion by March 2017. In February 2013, I approved the First Modification.

         On April 1, 2016, the United States lodged another proposed modification (“the Second Modification”) to the consent decree. EA Doc. No. 38-1. The Second Modification was forged by the settling parties when it became clear that the City would be unable to meet its March 2017 deadline for completing construction of secondary treatment facilities. The Second Modification responds to this change of circumstances and contains four main provisions. The first extends the deadline for substantial completion of secondary treatment facilities to December 1, 2019. Related deadlines are set for executing the construction contract, submitting the contractor's detailed schedule, and complying with permit limits. The second seeks to hold the City accountable for any deviations from the revised timeline through a schedule recovery program. The third requires the City to report regularly to the EPA, the State, and CLF. The fourth implements mitigation measures that are intended to counteract pollution stemming from the City's continued violation of its permit and the failure to meet the existing construction deadline. The mitigation measures include enhanced primary treatment, new nitrogen limits, stormwater pollution reduction, an expanded sewer, and funds for related environmental projects.

         A week after lodging the Second Modification, the United States published a notice in the Federal Register soliciting comments from the public. The Second Modification received twenty-three comments, some of which came from Portsmouth residents disappointed by the City's intention to locate a secondary treatment plant on Peirce Island. Some residents wanted the City to instead build a secondary treatment facility at a different location, such as the Pease Tradeport. After considering the comments, the United States moved to enter the Second Modification on June 14, 2016. EA Doc. No. 43.

         On May 31, 2016, a group of Portsmouth residents filed a motion to intervene. EA Doc. No. 40. No party challenged their standing, and I permitted them to intervene to voice their concerns with the Second Modification. EA Doc. No. 58 at 5-6. I allowed them to participate in briefing in response to the motion to approve the Second Modification, appeal from any adverse decision, and participate in regular interactions with the parties concerning the Second Modification. The residents submitted a response and surreply. In September, I held a hearing on whether to approve the Second Modification. The hearing was attended by counsel for the City, the State, the United States, CLF, and the intervening residents.

         I issued a Memorandum and Order approving the Second Modification on September 28, 2016. See EA Doc. No. 66. In reaching this decision, I first found that a modification was warranted by changed factual circumstances because the settling parties agreed that the City could not meet its March 2017 deadline to construct secondary treatment facilities, even under a very aggressive construction schedule. EA Doc. No. 66 at 13- 15. I noted that “[t]his failure [was] attributable to the City's effort, over the course of a year and a half, to evaluate an alternative construction location and design at Pease Tradeport.” Id. at 13-14. Next, I found that the proposed Second Modification was suitably tailored to the changed factual circumstances. Id. at 15-18. I emphasized that the diverse parties supporting it - the federal government, the state government, the city charged with implementing it, and a prominent nongovernmental environmental organization - “reflect a balance of concerns” and were “well-situated to forge a solution.” Id. at 16. Giving appropriate deference to the settling parties, I approved the Second Modification.

         In doing so, I noted the intervening residents' concerns:

They are concerned that construction at Peirce Island would disrupt life, commerce, and historic buildings in Portsmouth. They are also concerned that a Peirce Island plant would lack adequate capacity. But they largely express these concerns through questions reflecting a desire for greater information, rather than affirmative demonstrations.
More fundamentally, the residents' primary concerns and arguments reach beyond the scope of their limited intervention in this action. I have restricted the residents' participation to issues that are presently before me. Thus, it is crucial to note that the Second Modification neither mandates that the City locate a secondary treatment plant at Peirce Island nor requires the City to select the granular engineering design details that it has. Thus, the residents' arguments largely fall outside the scope of their limited intervention.

Id. at 16-17.

         Plaintiffs filed this action two months after I approved the second modification. They allege that the United States failed to adequately review the Peirce Island design; the design is inadequate; and the City will continue to violate the NPDES permit, the consent decree, and the Act even after the Peirce Island upgrade is completed. See Doc. No. 39 at 10-12, 15-17, 21-22. Plaintiffs' principal claim is that the United States, the State, and the City are liable pursuant to 33 U.S.C. § 1365(a)(1) because the proposed upgrade will not bring the City into compliance with the permit, the consent decree, and the Act. They also argue that the United States is liable ...

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