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.

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. The consent decree was entered in 2009 and

modified in 2013. 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

(a)(1). They also requested, and I

denied, additional briefing and discovery. They move to

reconsider that denial.

1 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. BACKGROUND

A. 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,

, 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,

-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. For

2 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

3 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,

(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.,

, 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. See id.

D. 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. The Second

Modification received twenty-three comments. Many commenters

4 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. Doc.

No. 58. 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. On July 29, I denied their

request. 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

6 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. Doc. No. 63-

1. 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

(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. STANDARD OF REVIEW

A. 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

7 sparingly.’” Walker v. Segway,

, at *1 (D.N.H.

June 18, 2013) (quoting Fabrica de Muebles J.J. Alvarez, Inc. v.

Inversiones Mendoza, Inc.,

(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,

).

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,

(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.

1 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,

(asking whether changed factual circumstances merit modification and whether proposed modification is suitably tailored to them). However, I would

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). 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. 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.”

(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 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.

9 decree.”

. If the moving party meets the first

prong, the court considers “whether the proposed modification is

suitably tailored to the changed circumstance.”

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.,

(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.”

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,

).

10 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.” See

Their motion can only plausibly be construed as claiming “a

manifest error of fact.” See

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

11 “manifest error” of fact. See id.; see also Nw. Bypass Grp,

.

Second, the residents do not explain why the Forndran Draft

contains or analyzes facts that are truly new. See LR 7.2(d);

Walker,

, at *1 (citing Fabrica,

).

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

Third, and most significantly, the Forndran Draft does not

relate meaningfully to the issue presently before me: whether to

enter the Second Modification. The Second Modification revises

the construction deadline. 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.

12 B. The Second Modification

A district court may modify an existing consent decree when

applying it prospectively would no longer be equitable. Fed. R.

Civ. P. 60(b)(5). 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.”

(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 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.” Id.

at 384. 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

13 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

14 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. And they have

done so. 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

2 In their filings, the residents repeatedly reference a potential citizen suit, which they have not yet filed, under

(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.

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

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. Thus,

both prongs of the Rufo test are satisfied. 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. 18 Arthur B. Cunningham, Esq. Michael J. Quinn, Esq. Bruce W. Felmly, Esq. E. Tupper Kinder, Esq. Suzanne M. Woodland, Esq. Thomas F. Irwin, Esq.

19