Argued: February 7, 2018
Flaherty Beliveau & Pachios LLP, of Concord (Mark H.
Puffer and Gregory L. Silverman on the brief, and Mr.
Silverman orally), for the plaintiff.
Drescher & Dokmo, P.A., of Milford (William R. Drescher
on the brief and orally), for the defendant.
Donahue, Tucker & Ciandella, PLLC, of Exeter (Sharon
Cuddy Somers on the memorandum of law), for the Town of
Allenstown Board of Selectmen.
case presents two questions arising out of the operation of
the Suncook Wastewater Treatment Facility (the
"Facility") in Allenstown. First, under an
intermunicipal agreement, must the defendant, Town of
Allenstown, share any of the profits generated from septage
haulers who discharge their waste at the Facility with the
plaintiff, Town of Pembroke? And second, after Allenstown
used a portion of those profits to increase the
Facility's wastewater treatment capacity, must Allenstown
allocate any of that increased capacity to Pembroke? Because
we, as did the Superior Court (Nicolosi, J.), answer
both questions "no," we affirm.
following facts are drawn from the trial court's order in
this case, or are otherwise found in the record. Prompted by
the passage of the Federal Water Pollution Control Act
Amendments of 1972, see Pub. L. No. 92-500, 86 Stat.
816 (1972), commonly known today as the Clean Water Act
(CWA), Allenstown and Pembroke entered into an intermunicipal
agreement to jointly finance, construct, and maintain a
wastewater treatment facility - the Facility - on August 6,
1974. Due to landscape and location considerations, as well
as federal regulations dictating that a single town must be
identified as a facility's "owner," Allenstown
was chosen as the Facility's home and delineated
owner-operator. Through a combination of federal, state, and
local funding, with the local portion accounting for
approximately 5% - split 65/35 between Pembroke and
Allenstown, respectively, based upon population projections -
of the total construction cost, the Facility became
operational in 1977. Governed by the 1974 agreement, the
towns thereafter contributed to the Facility's operation
and maintenance costs over the ensuing years based upon their
proportionate use thereof.
April 2002, the New Hampshire Department of Environmental
Services notified Allenstown that the Facility had exceeded
80% of its "flow capacity" and was "within
100, 000 gallons per day of [its] total capacity." When
the Facility ultimately reached its capacity a little over
three years later in August 2005, a moratorium was placed on
permits for new sewer connections.
result, the towns began conferring and negotiating over ways
to increase the Facility's capacity and how to fund such
efforts. With regard to the latter consideration, Allenstown
explored whether the Facility could accept septage from
commercial haulers notwithstanding the moratorium. In time,
Allenstown discovered that it could accept septage by only
"dewatering" it, which impacted neither the
Facility's capacity nor efficiency negatively, and
trucking the resulting "solid sludge" off-site
along with solid waste from the towns' collection
systems. By allocating the associated expenses against
revenues generated thereby, Allenstown ensured that neither
town bore the costs of septage processing. More importantly,
by charging septage haulers a "market rate that
exceed[ed] the pure cost of processing the septage,"
Allenstown began generating what Pembroke alleges are
support of a proposed $15 million upgrade of the Facility to
double its capacity, the towns entered into a successor to
the 1974 intermunicipal agreement on November 20, 2006.
Section 3.06 of the 2006 agreement, which concerns, in
relevant part, allocation of septage processing revenues,
Revenue received from septage permits and fees by Allenstown
shall be used to help offset the costs of septage processing
and any excess revenues may be used to offset the costs of
operation and maintenance of [the Facility] and/or the
upgrade/expansion of [the Facility].
the anticipated upgrade of the Facility, Section 4.03 of the
2006 agreement reads, in pertinent part, as follows:
At the same time the Town of Allenstown approves and
appropriates the bonding of the costs for construction of
expansions or modifications to the wastewater facilities,
that were designed for, or which will be utilized by the Town
of Pembroke, Pembroke shall also raise and appropriate
it's [sic] proportionate share of the estimated
Capital Costs of the facilities, less any previous payments
made during the design phase. Payment of Pembroke's
proportionate share of the bond repayment shall be ...