United States of America v. Portsmouth, NH, City of

Filing 58

ORDER granting in part and denying in part 40 Motion to Intervene. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America, et al.
v.

Case No. 09-cv-283-PB
Opinion No. 2016 DNH 113

City of Portsmouth, et al.
O R D E R
A group of Portsmouth residents seeks to intervene in a
long-running case involving the City of Portsmouth’s compliance
with the Clean Water Act (CWA).

The case began in 2009 when the

U.S. Environmental Protection Agency (EPA) sued the City for
failing to comply with various sections of the CWA governing the
discharge of pollutants into the Piscataqua River and Great Bay
Estuary.

See Doc. No. 1.

The State of New Hampshire intervened

soon after, bringing claims against the City for alleged
violations of state environmental laws.

See Doc. Nos. 3

(State’s Motion to Intervene); 4 (State’s Intervenor Complaint).
In September 2009, the parties signed a lengthy consent decree
that committed the City, among other things, to building a
secondary wastewater treatment facility to treat sewer overflow.
See Doc. No. 8.
In July 2012, the EPA filed a motion to modify the original
consent decree.

Doc. No. 13.

The Conservation Law Foundation

(CLF), a non-profit environmental group, filed a motion to
intervene in the case, which the City opposed.
(CLF’s motion); 15 (City’s objection).

See Doc. Nos. 11

I granted CLF’s motion,

but limited its intervention to the issues that were before the
court at the time, namely the approval of the consent decree
modification.

Doc. No. 21.

Then, after receiving briefing from

all the parties in the case, I approved the first consent decree
modification.

Doc. No. 29.

In April 2016, the EPA moved to modify the consent decree a
second time.

Doc. No. 38.

This second modification would set,

among other things, a revised construction schedule for the
wastewater treatment facility on Peirce Island in Portsmouth.
See Doc. No. 38-1 at 4-5.

The next month a group of Portsmouth

residents filed the present motion to intervene pursuant to
Federal Rule of Civil Procedure 24.

Doc. No. 40.

They argue

that they have standing in the case as “citizens” under 33
U.S.C. § 1365(g) and under the constitutional guidelines set
forth in Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167 (2000).1

Doc. No. 40 at 2.

In addition to requesting intervention, the residents
assert a number of grievances.

They argue, among other things,

The residents each filed a “standing” affidavit setting forth
their individual grievances, potential injuries, and basis for
suing. See, e.g., Doc. No. 40-1.
1

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that the proposed consent decree modification is “weak,
inadequate, and unenforceable.”

Id. at 5.

They contend that

the consent decree will not end the City’s violations of the
CWA, and oppose the planned location of the wastewater facility
on Peirce Island.

See id. at 5-11.

They formally request that

I a) allow them to intervene in the case; b) delay approval of
the consent decree modification until they receive certain
documents they have requested under the Freedom of Information
Act; and c) delay approval of the consent decree modification
until the “final disposition of [their] citizens suit brought
pursuant to 33 U.S.C. 1365(a)(1).”

Id. at 11.

The City objects to the residents’ motion.

Doc. No. 42.

It argues that the residents’ intervention would be untimely and
objects to their substantive arguments about the adequacy of the
consent decree.
intervene.

The EPA and CLF also responded to the motion to

Both parties stated that, although they do not

oppose a limited intervention by the residents, they do object
to many of the residents’ substantive arguments and oppose a
delay in the project.

See Doc. Nos. 41; 46.

Neither the City,

the EPA, nor CLF contend that the residents lack standing to
intervene.
Rule 24 provides two primary grounds for intervention:
intervention of right and permissive intervention.

3

Fed. R. Civ.

P. 24(a)-(b).

A party may intervene of right if either: 1) it

“is given an unconditional right to intervene by a federal
statute,” or 2) it “claims an interest relating to the property
. . . that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or
impede the movant's ability to protect its interest . . . .”
Fed. R. Civ. P. 24(a).

A party may seek permissive intervention

if A) it “is given a conditional right to intervene by a federal
statute,” or B) it “has a claim or defense that shares with the
main action a common question of law or fact.”
24(b)(1).

Fed. R. Civ. P.

Both types of intervention require that a motion to

intervene be “timely.”

Fed. R. Civ. P. 24(a)-(b).

The residents do not indicate which type of intervention
they seek, although they do argue they have a right to bring a
citizen suit under 33 U.S.C. § 1365(a)(1).
3.

See Doc. No. 40 at

The City concedes that the CWA confers a statutory right on

proper parties to intervene, but nonetheless argues that the
motion should be denied as untimely.

See Doc. No. 42-1 at 4.

It contends that if the residents wish to intervene, they should
have done so four years ago, when CLF did.

Id.

The City claims

that the residents knew of their interest in the case years ago
and had ample opportunity to voice their concerns at any of the
numerous City Council meetings where the case was discussed.

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Id. at 6.

Now, with the project “100% designed,” a new

compliance schedule “fully negotiated,” and a $75 million bond
resolution authorization approved by the City Council, the
“Neighbors come too late.”

Id.

Moreover, the City argues, the

residents do not need to intervene in this case to file their
citizens suit – they may simply initiate a separate action.

Id.

at 8.
Although the City raises valid arguments, I nonetheless
allow the residents to intervene here for the limited purposes
specified in this Order.

As the First Circuit has noted,

“[t]here is no bright-line rule delineating when a motion to
intervene is or is not timeous.”

Banco Popular de Puerto Rico

v. Greenblatt, 964 F.2d 1227, 1230 (1st Cir. 1992).

“Instead,

courts must decide the question on a case by case basis,
examining the totality of the relevant circumstances.”

Id.

Here, the residents will undoubtedly be affected by the proposed
consent decree modification and appear to have good faith
concerns that they wish to express.

Given that I previously

allowed CLF to intervene several years after the case was
commenced, I see no reason to bar the residents from doing the
same.
I note, however, that the residents are only allowed to
intervene with respect to issues that are presently before the

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court: namely, the motion to approve the second proposed consent
decree modification.

Doc. No. 43.

They may therefore

participate in briefing in response to that pending motion,
appeal from any adverse decision, and participate in regular
interactions with the parties concerning the second proposed
consent decree modification.

I express no views at the present

time with respect to the other relief requested by the
residents.

Instead, I direct the parties to meet and confer and

reach agreement on a schedule for any additional briefing beyond
what the parties have already filed.

A joint proposed briefing

schedule shall be submitted by the parties within 14 days of the
date of this Order.
The motion to intervene (Doc. No. 40) is granted to the
extent that it seeks relief authorized by this Order.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
July 12, 2016
cc:

David Louis Gordon, Esq.
Peter M. Flynn, Esq.
Kelvin A. Brooks, Esq.
Arthur B. Cunningham, Esq.
Michael J. Quinn, Esq.
Bruce W. Felmly, Esq.
E. Tupper Kinder, Eq.
Suzanne M. Woodland, Esq.
Thomas F. Irwin, Esq.
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