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

Filing 66

MEMORANDUM & ORDER granting 43 , [38-1] Motion to Approve Consent Decree Second Modification; denying 63 Motion for Reconsideration. So Ordered by Judge Paul J. Barbadoro.(js)

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 172

City of Portsmouth, New Hampshire

MEMORANDUM AND ORDER
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.
modified in 2013.

The consent decree was entered in 2009 and
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.
reconsider that denial.
1

They move to

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.
A.

BACKGROUND

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.
2

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
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 extends the schedule for completion of the combined sewer
overflow upgrades from 2013 to 2014.

The parties agreed to this

modification because the City encountered unexpected geological
and financial conditions.

Applying the test governing consent
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decree modifications, I found that changed facts merited an
extension of the schedule for sewer upgrades and that the
proposed schedule was suitably tailored to accommodate the
changed facts.

See Rufo v. Inmates of the Suffolk Cnty. Jail,

502 U.S. 367, 383 (1992).

Accordingly, I approved the first

provision.
The second main provision establishes a construction
schedule for secondary treatment facilities.

This provision

requires the City to complete construction of secondary
treatment facilities by March 2017.

Construing this provision

as an addition rather than a modification, I applied the
standard governing the entrance of consent decrees.

See United

States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir. 1990).
Because the schedule was “fair, reasonable, and faithful to the
objectives of the governing statute,” I also approved the second
provision.
D.

See id.

Proposed Second Consent Decree Modification
On April 1, 2016, the United States lodged a proposed

Second Modification to the consent decree.

Doc. No. 38-1.

On

April 8, a notice was published in the Federal Register
soliciting public comments.

Due to a technical error, the

United States extended the comment window to May 29.
Modification received twenty-three comments.
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The Second

Many commenters

were Portsmouth residents disappointed by the City’s plan to
locate the secondary treatment plant on Peirce Island.

After

considering the comments, on June 14 the United States moved to
enter the Second Modification.

Doc. No. 43.

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 the secondary
treatment facilities.

The Second Modification responds to this

change of circumstances and contains four main provisions.
First, the Second Modification extends the deadline for
substantial completion of secondary treatment facilities to
December 1, 2019.

It also sets related deadlines for executing

the construction contract, submitting the contractor’s detailed
schedule, and complying with permit limits.

Second, it seeks to

hold the City accountable for any deviations from the revised
timeline through a Schedule Recovery Program.

Third, it

requires the City to report regularly to the EPA, the State, and
CLF.

Fourth, it implements mitigation measures that are

intended to counteract the pollution stemming from the City’s
continued violation of its national permit and its failure to
meet the existing construction deadline.

The measures include

enhanced primary treatment, nitrogen removal, stormwater

5

pollution reduction, expanded sewer service, and funds for
related environmental projects.
On May 31, a group of Portsmouth residents filed a motion
to intervene.

Doc. No. 40.

No party challenged their standing,

and I permitted them to intervene for limited purposes.
No. 58.

Doc.

Their intervention is restricted to the issues

presently before the court: namely, the motion to approve the
Second Modification.

The residents were permitted to

participate in briefing in response to the pending motion,
appeal from any adverse decision, and participate in regular
interactions with the parties concerning the Second
Modification.

The residents submitted a response and surreply.

The residents also requested additional briefing and
discovery, including depositions.
request.

On July 29, I denied their

United States v. City of Portsmouth, No. 09-cv-283

(D.N.H. July 29, 2016) (endorsed order).

At that time, three

months had elapsed since the Second Modification was lodged, and
the parties had submitted five detailed pleadings on the Second
Modification.

Accordingly, given the limited scope of the

residents’ intervention, their submission of a response and
surreply, and the importance of resolving the matter before me
in a timely manner, I determined that the issues before the

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court had been fully briefed.

Thus, I denied the residents’

request for additional briefing and discovery.
On August 3, the residents moved to reconsider that denial.
Doc. No. 63.

The United States and the City object.

The

residents’ motion does not discuss the legal standard governing
motions to reconsider.

Rather, the residents point to an

affidavit (“The Forndran Draft”) that they received from their
expert witness after the July 29 order had issued.
1.

Doc. No. 63-

The Forndran Draft is primarily a draft evaluation of the

City’s planned upgrade at Peirce Island.

The residents also

renew their request that I defer ruling on the Second
Modification until they file and adjudicate their citizen suit
under 33 U.S.C. § 1365(a)(1).
For the reasons below, I deny the residents’ motion to
reconsider and grant the United States’ motion to enter the
Second Modification.

II.
A.

STANDARD OF REVIEW

Standard of Review for Motions to Reconsider
A party moving for reconsideration of an interlocutory

order must “demonstrate that the order was based on a manifest
error of fact or law.”

LR 7.2(d).

“Reconsideration of a prior

order is ‘an extraordinary remedy which should be used
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sparingly.’”

Walker v. Segway, 2013 WL 3104920, at *1 (D.N.H.

June 18, 2013) (quoting Fabrica de Muebles J.J. Alvarez, Inc. v.
Inversiones Mendoza, Inc., 682 F.3d 26, 31 (1st Cir. 2012)).

“A

motion for reconsideration does not provide a vehicle for a
party to undo its own procedural failures, and it certainly does
not allow a party to introduce new evidence or advance arguments
that could and should have been presented [previously].”

Id. at

*1 (alteration in original) (quoting Fabrica, 682 F.3d at 31).
Unless the court “has committed an error of law so obvious that
it must be corrected or the movant has discovered a new fact
that compels a different result, the parties must accept the
court’s ruling, adjust their arguments accordingly, and seek
vindication on appeal.”

Nw. Bypass Grp. v. U.S. Army Corps of

Eng'rs, 552 F. Supp. 2d 137, 144 (D.N.H. 2008).
B.

Standard of Review for Modification of Consent Decrees
A district court may modify an existing consent decree when

applying it prospectively would no longer be equitable.1

Fed. R.

The United States analyzes the Second Modification under the
legal standard for approving, rather than modifying, consent
decrees. See Doc No. 43-2 at 8-9; Cannons Eng’g Corp., 899 F.2d
at 84 (asking whether proposed consent decree is “fair,
reasonable, and faithful to the objectives of the governing
statute”). Because the Second Modification falls within the
scope of the existing consent decree, I apply the standard for
modification. See Rufo, 502 U.S. at 380 (asking whether changed
factual circumstances merit modification and whether proposed
modification is suitably tailored to them). However, I would
1

8

Civ. P. 60(b)(5).

In United States v. Swift & Co., the Supreme

Court held that a party seeking to modify a consent decree must
make a “clear showing of grievous wrong.”
(1932).

286 U.S. 106, 119

Almost sixty years later, in Rufo, the Supreme Court

revisited the issue in the context of institutional reform
litigation and recognized the need for “a less stringent, more
flexible standard” than the standard articulated in Swift.
502 U.S. at 380.

See

The Rufo Court observed that a consent decree

modification may be warranted “when changed factual conditions
make compliance with the decree substantially more onerous . . .
when a decree proves to be unworkable because of unforeseen
obstacles . . . or when enforcement of the decree without
modification would be detrimental to the public interest.”
at 384 (citations omitted).

Id.

Rufo instructed district courts to

“exercise flexibility in considering requests for modification
of . . . institutional reform consent decree[s],” id. at 383,
because such decrees impact the public’s right to “the sound and
efficient operation of its institutions,”

id. at 381.

Rufo established a two-prong test that a party must meet to
modify a consent decree.

First, the party must establish that a

“significant change” in facts or law “warrants revision of the
reach the same result if I were to apply the standard for
approving consent decrees.
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decree.”

Id. at 383.

If the moving party meets the first

prong, the court considers “whether the proposed modification is
suitably tailored to the changed circumstance.”

Id.

If both

prongs are satisfied, the district court may approve the
modification.
The First Circuit has not confined the Rufo holding to
institutional reform litigation and has avoided strictly
classifying cases to determine the applicable standard.

Alexis

Lichine & Cie v. Sacha A. Lichine Estate Selections, Ltd., 45
F.3d 582, 586 (1st Cir. 1995) (citation omitted).

Instead, the

First Circuit has held that the two standards of Rufo and Smith
should be viewed not as “a limited dualism but as polar
opposites of a continuum in which we must locate the instant
case.”

Id.

On one end of the continuum are consent decrees

protecting “rights fully accrued upon facts so nearly permanent
as to be substantially impervious to change” (as illustrated by
Swift).

Id.

On the other end of the continuum are decrees

involving “the supervision of changing conduct or conditions and
thus provisional and tentative” (as illustrated by Rufo).
(quoting Rufo, 502 U.S. at 379).

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Id.

III. ANALYSIS
A.

The Motion to Reconsider
A party moving for reconsideration of an interlocutory

order must “demonstrate that the order was based on a manifest
error of fact or law.”

LR 7.2(d).

The residents do not discuss

the legal standard governing their motion to reconsider.

But

their motion cannot plausibly be construed as arguing that the
July 29 order “was based on a manifest error of . . . law.”
id.

See

Their motion can only plausibly be construed as claiming “a

manifest error of fact.”

See id.

Their argument fails.

The residents’ motion to reconsider focuses on a document
(“the Forndran Draft”) that they received after the July 29
order.

The Forndran Draft was written by their expert and

responds to claims made by the United States’ expert.

It

primarily assesses the location and design of the City’s planned
secondary treatment plant at Peirce Island.
I deny the residents’ motion to reconsider for three
reasons.

First, both their motion and the Forndran Draft

consist largely of questions.

The residents do not explain why

these questions establish “facts” within the meaning of the law.
Moreover, the questions reflect a desire for greater
information; but they do not affirmatively demonstrate a
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“manifest error” of fact.

See id.; see also Nw. Bypass Grp, 552

F. Supp. 2d at 144.
Second, the residents do not explain why the Forndran Draft
contains or analyzes facts that are truly new.

See LR 7.2(d);

Walker, 2013 WL 3104920, at *1 (citing Fabrica, 682 F.3d at 31).
The Forndran Draft responds to information that was available to
the residents prior to the July 29 order.

They do not justify

their untimely submission of the Forndran Draft.

See id.

Third, and most significantly, the Forndran Draft does not
relate meaningfully to the issue presently before me: whether to
enter the Second Modification.
the construction deadline.

The Second Modification revises

In contrast, the Forndran Draft

bears most closely on the City’s plans to locate its secondary
facilities at Peirce Island.

Although it is clear that the

parties contemplate the Peirce Island location, the Second
Modification neither mandates that the City locate its secondary
treatment plant at that site nor requires the City to select the
granular engineering design details that it has.

Thus, the

Forndran Draft is largely not germane to the issue before me.
For these reasons, the residents have not demonstrated that
the July 29 order was based on a manifest error of fact or law.
Accordingly, I deny their motion to reconsider.

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B.

The Second Modification
A district court may modify an existing consent decree when

applying it prospectively would no longer be equitable.
Civ. P. 60(b)(5).

Fed. R.

Rufo instructs district courts to exercise

flexibility when considering a request to modify an
institutional reform decree because such decrees “reach beyond
the parties involved directly in the suit and impact on the
public’s right to the sound and efficient operation of its
institutions.”

502 U.S. at 381 (quoting Heath v. De Courcy, 888

F.2d 1105, 1109 (6th Cir. 1989)).

A similarly flexible standard

is appropriate in this case because public entities and the
environment are involved.

Accordingly, I apply the Rufo

standard in evaluating the proposed modification.
1.

The Second Modification Is Warranted by Changed
Factual Circumstances

A party may meet “its initial burden by showing . . . a
significant change either in factual conditions or in law.”
at 384.

Id.

Here, the United States meets its burden by showing

that the City is unable to meet the existing deadline due to
changed facts.
The settling parties agree the City cannot meet its March
2017 deadline to construct the secondary treatment facilities.
This failure is attributable to the City’s effort, over the
course of a year and a half, to evaluate an alternative
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construction location and design at Pease Tradeport.

This

evaluation process involved extensive consultation with
engineering experts to examine regulatory requirements and
construction issues posed by the Pease site.

After

deliberation, the City determined that Peirce Island was the
better choice and shifted its efforts to that location.
Evaluation of the Pease alternative had delayed the process of
designing an upgrade at Peirce Island.

After consultation, the

settling parties agreed that the existing deadline is
unworkable, even under a twenty-four-hour construction schedule.
Accordingly, after several months of negotiation, consultation,
and dispute resolution, the parties forged a proposed
modification to the consent decree that would extend the
deadline.
The intervening residents neither contest these changed
factual circumstances nor argue—apart from a fleeting reference—
that the first Rufo prong is not satisfied.
The Supreme Court has explained that modification is
appropriate “when changed factual conditions make compliance
with the decree substantially more onerous.”

Id.

Here, meeting

the existing construction deadline is not only substantially
more onerous; it is virtually impossible.

See id.

No party

argues that the significant delay in construction was easily
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foreseeable or avoidable.

See id. at 385.

Further,

“enforcement of the decree without modification would be
detrimental to the public interest.”

See id. at 384-85.

If the

consent decree were not modified, pollution of the Piscataqua
River and Great Bay Estuary would continue unmitigated.

A

consent decree modification would lessen these continuing
environmental harms.

More permanently, modification would

ensure the timely completion of a secondary treatment facility,
which is critical to the health of the polluted waters.

Denying

a modification would spawn protracted litigation among the
parties, with no feasible construction schedule and the City’s
unmitigated pollution continuing daily.

That result would be

detrimental to the public interest.
Accordingly, I conclude that significant factual changes
warrant a modification of the consent decree.

See id. at 383.

The first Rufo prong is satisfied.
2.

The Second Modification Is Suitably Tailored to the
Changed Factual Circumstances

After finding that a change of facts has occurred that
merits revision of the decree, I next consider whether the
proposed modification is suitably tailored to the changed
circumstances.

“[O]nce a court has determined that a

modification is warranted . . . principles of federalism and
simple common sense require the court to give significant weight
15

to the views of the local government officials who must
implement any modification.”

Id. at 393 n.14.

The City’s view merits “significant weight” at this stage
of the Rufo analysis.

See id.

And that view is reinforced by

the support of the United States, the State, and CLF.

These

parties reflect a balance of concerns: the federal government
and the agency dedicated to environmental interests; the State
and its citizens; a prominent nongovernmental environmental
group; and the City and its elected representatives, who are
responsible for implementing the decree and harmonizing the
competing interests of Portsmouth residents.

Together, these

parties are well-situated to forge a solution.
done so.

And they have

They agree that the extended construction schedule—

along with reporting, schedule recovery, and mitigation
requirements—is suitably tailored to address the changed facts.
Now, in the eighth year of this litigation, and after years
spent evaluating secondary treatment sites, a group of
Portsmouth residents has intervened.

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

16

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.2
I conclude that the Secondary Modification is reasonable.
The City cannot meet the existing deadline, and its daily
pollution must be mitigated promptly.

Past delays do not lessen

the need for timely action; they heighten it.

The Second

Modification sets a reasonable deadline for construction and
ensures that it is carried out in a timely and transparent
manner.

The Second Modification also holds the City accountable

in the interim through mitigation requirements.

The settling

In their filings, the residents repeatedly reference a
potential citizen suit, which they have not yet filed, under 33
U.S.C. § 1365(a)(1). All of the parties agree that the entrance
of the Second Modification does not, on its own, bar the
residents from bringing such a suit or challenging the decision
to locate the secondary treatment facility on Pierce Island.
2

17

parties agree that these provisions are suitably tailored to the
circumstances that have occurred since the First Modification.
I must give weight to that position.

See id.

To the extent

that the intervening residents’ arguments fall within the scope
of their intervention, they have not persuaded me to reach a
different conclusion.
I conclude that the Second Modification is suitably
tailored to the changed circumstances.

See id. at 383.

both prongs of the Rufo test are satisfied.

Thus,

I grant the United

States’ motion to enter the Second Modification.

IV.

CONCLUSION

For the reasons set forth in this order, I deny the
residents’ motion to reconsider, Doc. No. 63, and I grant the
United States’ motion to approve the consent decree
modification.

Doc. Nos. 43, 38-1.

SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge

September 28, 2016
cc:

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

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