USA v. City of Portsmouth NH CV-09-283-PB 2/15/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America, et a l .

v. Case No. 09-cv-283-PB Opinion No.

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. All of the parties to the consent decree

support the proposed modification but the Conservation Law

Foundation ("CLF") has intervened and filed an objection. In

this Memorandum and Order, I explain why I overrule CLF's

objection and approve the proposed modification to the consent

decree.

I. BACKGROUND

A. The Complaints

On August 8, 2009, the United States filed a complaint

alleging that the City of Portsmouth ("Portsmouth") violated

several sections of the Clean Water Act ("CWA"),

, et seq. Doc. No. 1. On September 9, 2009, New Hampshire

intervened in the action and filed a complaint alleging that

Portsmouth violated the New Hampshire Water Pollution and Waste

Disposal Act,

-A:13 (2013). Doc. No.

4. The complaints allege that the City violated both permit

effluent limitations for discharges from the City's Pierce

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. The consent decree requires Portsmouth to take

several steps to bring its wastewater treatment practices into

compliance with the Clean Water Act. For example, the decree

requires Portsmouth 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

2 requirements. Portsmouth has already taken some of these steps.

It is working toward accomplishing the others.

Two requirements are relevant to the proposed modification.

Those requirements are: (1) that Portsmouth must undertake a

series of projects, to be completed before October 2013, to

upgrade sewer overflow facilities and reduce the frequency and

volume of combined sewer overflow; and (2) that Portsmouth must

submit a construction schedule for secondary wastewater

treatment facilities by June 2010. Doc. No. 8.

C. Proposed Consent Decree Modification

On July 2, 2012, the United States lodged a proposed

consent decree modification with the court. A notice was

published in the Federal Register on July 18, 2012, announcing

the consent decree modification. Coastal Conservation

Association of New Hampshire and CLF submitted comments during

the ensuing public comment period.

The proposed modification contains two main provisions.

First, it extends the schedule for completion of the combined

sewer overflow upgrades from October 2013 to October 2014. The

parties agreed to this modification because Portsmouth

encountered unexpected geological conditions that prevented the

3 City from meeting the original construction schedule and because

local budget procedures prevented the City from allocating

adequate financial resources to commence secondary pilot

testing. Second, it establishes a construction schedule for the

secondary treatment facilities, as required by the original

decree. The second provision is not actually a modification of

the consent decree, but is instead a required addition to the

original decree. Portsmouth submitted a proposed schedule in

June 2010, and, after further submissions and negotiations, the

EPA, New Hampshire Department of Environmental Services

("NHDES"), and Portsmouth agreed on a construction schedule that

provides for construction of secondary treatment facilities to

be completed and compliance with secondary treatment limits to

be achieved by May 2017.

D. CLF Objection

CLF filed an objection to the United States' motion to

enter the consent decree modification. CLF does not object to

either of the two main provisions of the consent decree

modification. Instead, it argues that Portsmouth's past failures

in complying with the Clean Water Act require the court to more

closely monitor the EPA's management of the consent decree. In

4 particular, it proposes that I require the parties to file

quarterly reports and attend status conferences and compliance

hearings.

II. STANDARD OF REVIEW

When evaluating a proposed consent decree, the court

determines whether the proposed decree is "fair, reasonable, and

faithful to the objectives of the governing statute." United

States v. Cannons Eng'g Corp.,

, 84 (1st Cir. 1990).

The court does not consider whether the settlement is one the

court would have reached or whether the court thinks the

settlement is ideal. Id. The First Circuit has consistently

recognized a strong and clear policy in favor of encouraging

settlements, especially in complicated regulatory settings. See

United States v. Comunidades Unidas Contra La Contaminacion, 2 04

F.3d 275, 280 (1st Cir. 2000); Conservation Law Found, of New

England, Inc. v. Franklin,

(1st Cir. 1993);

Durrett v. Hous. Auth. of City of Providence,

(1st Cir. 1990); Cannons Eng'g, 899 F.2d at 84. That policy is

even stronger where the consent decree has been advanced by a

"government actor 'committed to the protection of the public

5 interest' and specially trained and oriented in the field."

Comunidades Unidas, 204 F.3d at 280 (quoting Cannons Eng'g, 899

F.2d at 84). In reviewing a settlement involving a government

agency, "the district court must exercise some deference to the

agency's determination that settlement is appropriate."

Conservation Law Found.,

.

Different rules apply when a party seeks to modify an

existing consent decree. Federal Rule of Civil Procedure

60(b)(5) allows a district court to modify a consent decree when

it is no longer equitable that the judgment should have

prospective application.

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).

Almost sixty years later, in Rufo v. Inmates of the Suffolk

Cnty. Jail, 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.

(1992). In Rufo, the

Court observed that a consent decree modification may be

warranted "when changed factual conditions make compliance with

6 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."

(citations

omitted). Rufo instructed district courts to "exercise

flexibility in considering requests for modification of ...

institutional reform consent decree[s],"

, because

such decrees impact the public's right to "the sound and

efficient operation of its institutions."

.

Rufo established a two-prong test that a party must meet to

modify a consent decree. First, the party seeking the

modification must establish that a significant change in facts

or law warrants revision of the decree.

. If the

moving party meets the first prong, the court considers whether

the proposed modification is suitably tailored to the changed

circumstances.

If both prongs are satisfied, the district

court may approve the consent decree 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

(1995). Instead, the First Circuit has held that

the two standards should be viewed not as "a limited dualism but

as polar opposites of a continuum in which we must locate the

instant case."

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).

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,

) .

Il l . ANALYSIS

There are two main provisions of the proposed consent

decree modification: (1) the provision extending the schedule

for completion of the combined sewer overflow ("CSO") upgrades

from October 2013 to October 2014; and (2) the provision

establishing a construction schedule for the secondary

wastewater treatment facilities. The first provision modifies

the existing consent decree. The second provision does not

change any provision in the existing decree. Instead, it merely

fulfills a commitment that the parties made in the original decree to submit a construction schedule for the secondary

treatment facilities. In this sense, the second provision is

more like a new consent decree than a modification to an

existing decree. Accordingly, I analyze the first provision

using the standard for approving a consent decree modification

and the second using the standard for initially approving a

consent decree.

A. First Provision: Modifying the Completion Deadline for Sewer Overflow Upgrades

Rufo instructed 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."

(quoting Heath v. De Courcy,

(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 first

of the two proposed modifications.

The United States seeks to modify the consent decree by

extending the schedule for sewer upgrades by one year arguing

that significant changes in factual circumstances warrant 9 revision of the decree. The United States offers two factual

changes to justify the one-year extension: (1) Portsmouth

encountered unexpected geological conditions that impaired the

City's ability to meet the original construction schedule; and

(2) Portsmouth's local budget procedures required the City to

reallocate resources from the sewer upgrades to maximize the

earliest environmental improvement.

The unexpected geological condition was that Portsmouth was

required to remove a larger volume of rock than initially

anticipated. Rock removal proceeded slowly because the projects

are located in densely populated neighborhoods with older homes;

there are high pressure gas vaults and mains in the street; and

the contractors had to remove the rocks by mechanical means

instead of blasting. The EPA reviewed the information

Portsmouth provided and agreed that these geological conditions

impaired Portsmouth's ability to meet the initial schedule.

Local budget procedures also required Portsmouth to

redirect funds from the sewer upgrade project to the testing of

secondary treatment facilities. The EPA agreed with the City

that redirecting funds from the sewer upgrade project to the

testing of secondary facilities would maximize the earliest

10 environmental improvement and merited a change in the schedule.

These changed factual circumstances satisfy the first prong

of the Rufo test. As the Court explained in Rufo, modification

is "appropriate when a decree proves to be unworkable because of

unforeseen obstacles."

. Here, the volume of

rock is an unforeseen obstacle. CLF has not suggested that any

of the parties anticipated the volume of rock later found at the

sites. Modification is also appropriate when enforcement of the

decree without modification would be detrimental to the public

interest.

Here, Portsmouth and the EPA agreed that, given

budget constraints, it was in the environmental interest to

prioritize funding secondary treatment facility testing before

the sewer upgrade project. CLF has offered no reason to

question this judgment.

After finding that a change of facts occurred which merit

revision of the decree, I next consider whether the proposed

modification is suitably tailored to those changed

circumstances. Again, CLF offers no reason to question the

suitability of the proposed modification. "[0]nce a court has

determined that a modification is warranted . . . principles of

federalism and simple common sense require the court to give

11 significant weight to the views of the local government

officials who must implement any modification."

at 393

n.14. The EPA and Portsmouth determined that the one-year

extension of the CSO mitigation schedule is suitably tailored to

the changed circumstances. The parties' view merits

"significant weight" at the second prong of the Rufo analysis.

See

I find that the proposed modification is suitably

tailored to the changed circumstances.

Accordingly, I approve the modification under the Rufo

standard.

B. Second Provision: Establishing a Construction Schedule for Secondary Wastewater Treatment Facilities

The second provision of the proposed consent decree

modification establishes a construction schedule for the

secondary wastewater treatment facilities. Because this

provision creates additional requirements beyond those in the

existing consent decree, and is therefore not actually a

modification, I analyze it using the standard for approval of a

consent decree. When evaluating a consent decree, the court

must determine whether the proposed decree is "fair, reasonable,

and faithful to the objectives of the governing statute."

Cannons Eng'g, 899 F.2d at 84. 12 The fairness of a proposed consent decree includes both

procedural and substantive fairness. See id. at 86. To measure

procedural fairness, I "look to the negotiation process and

attempt to gauge its candor, openness, and bargaining balance."

See id. Here, the provision establishing a construction

schedule is procedurally fair because the parties negotiated it

at arm's length, with adequate information and reports, and were

represented by counsel. See id. A consent decree is

substantively fair if it is "based upon, and roughly correlated

with, some acceptable measure of comparative fault, apportioning

liability among the settling parties according to rational (if

necessarily imprecise) estimates of how much harm each

P[otentially] R [esponsible] P[arty] has done." See id. at 87.

The EPA determination of substantive fairness should be upheld

"so long as the agency supplies a plausible explanation for it."

Id. Because concepts of corrective justice and accountability

are not easily quantified in environmental cases, I defer to the

EPA's expertise when weighing substantive fairness. See City of

Bangor v. Citizens Commc'n Co.,

(1st Cir. 2008);

Cannons Eng'g, 899 F.2d at 88.

13 The construction schedule is also reasonable. Courts have

found consent decrees to be reasonable when they provide for

short- and long-term equipment improvements, detailed compliance

schedules, fulfillment of contractual obligations, and reporting

requirements. See Comunidades Unidas, 204 F.3d at 281. The

court does not examine the reasonableness of the proposed

consent decrees for "mathematical precision," but instead defers

to the EPA's judgment on whether the consent decree is

reasonable. United States v. Davis,

(1st Cir.

2001); Cannons Eng'g, 899 F.2d at 90. Here, the relief is

tailored to redressing the injuries alleged in the complaint.

See Comunidades Unidas, 204 F.3d at 281. The construction

schedule for the secondary treatment facilities is reasonable.

Finally, the construction schedule is also faithful to the

objectives of the Clean Water Act. CLF simply points to the

past delays by Portsmouth in complying with its obligations

under the Clean Water Act and asserts that Portsmouth and the

EPA have failed to act with the "urgency warranted by the

circumstances." Doc. No. 23-1. The construction schedule seeks

to bring Portsmouth into compliance with the Act. The court

defers to the judgment of the EPA that the consent decree is

14 consistent with the objectives of the Clean Water Act.

Comunidades Unidas, 204 F.3d at 280 (finding a strong

presumption in favor of entering consent decrees advanced by

government agencies that are "committed to the protection of the

public interest and specially trained and oriented in the

field") (internal quotations omitted). CLF has not suggested

that the construction schedule is contrary to the objectives of

the Act and has not provided any reason to question the EPA's

judgment on this matter.

Accordingly, I conclude that the proposed construction

schedule is "fair, reasonable, and faithful to the objectives of

the governing statute." See Cannons Eng'g Corp., 899 F.2d at

84 .

C. Additional Oversight Not Required at This Time

CLF proposes that I require the parties to file quarterly

reports and attend status conferences and compliance hearings.

I conclude that such oversight is not required at this time.

The parties have not requested additional oversight and CLF does

not provide sufficient justification to require additional

oversight. On its own, Portsmouth's delay in complying with the

Clean Water Act before the consent decree was approved does not

15 justify additional oversight. There is no reason to believe

that Portsmouth is unreasonably delaying compliance with the

current consent decree. I deny CLF's motion without prejudice

to its right to petition for greater oversight in the future if

the parties seek to modify other deadlines or otherwise cause

undue delay.

IV. CONCLUSION

For the reasons set forth in this order, I approve the

consent decree modification offered by the parties. Doc. No

10 - 1 .

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

February 15, 2013

cc: Peter M. Flynn Mary E. Maloney E. Tupper Kinder Thomas F. Irwin

16