Case 1:20-cv-00762-SM Document 11 Filed 09/28/20 Page 1 of 83
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW HAMPSHIRE
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`STATE OF NEW HAMPSHIRE,
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`Plaintiff-Intervenor,
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`v.
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`CITY OF MANCHESTER, NEW HAMPSHIRE,
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`Defendant.
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`) CIVIL ACTION NO. 20-cv-762-SM
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`CONSENT DECREE
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`Case 1:20-cv-00762-SM Document 11 Filed 09/28/20 Page 2 of 83
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`TABLE OF CONTENTS
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`I. STATEMENT OF CLAIM...................................................................................................... 7
`II. JURISDICTION AND VENUE ............................................................................................. 7
`III. APPLICABILITY ................................................................................................................. 8
`IV. DEFINITIONS ....................................................................................................................... 9
`V. OBJECTIVES ....................................................................................................................... 13
`VI. COMPLIANCE REQUIREMENTS ................................................................................. 15
`VII. REPORTS ON COMPLIANCE ....................................................................................... 39
`VIII. REVIEW AND APPROVAL OF SUBMISSIONS ....................................................... 41
`IX. STIPULATED PENALTIES .............................................................................................. 43
`X. FORCE MAJEURE .............................................................................................................. 48
`XI. DISPUTE RESOLUTION ................................................................................................ 511
`XII. RIGHT OF ENTRY/INFORMATION COLLECTION AND RETENTION ............. 54
`XIII. FORM OF NOTICE ...................................................................................................... 566
`XIV. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS .................................... 59
`XV. COSTS ................................................................................................................................. 61
`XVI. EFFECTIVE DATE ......................................................................................................... 61
`XVII. RETENTION OF JURISDICTION .............................................................................. 62
`XVIII. MODIFICATION .......................................................................................................... 62
`XIX. FUNDING.......................................................................................................................... 63
`XX. TERMINATION ................................................................................................................ 63
`XXI. WAIVER OF SERVICE .................................................................................................. 64
`XXII. PUBLIC COMMENT ..................................................................................................... 64
`XXIII. SIGNATORIES ............................................................................................................. 65
`XXIV. INTEGRATION ............................................................................................................ 65
`XXV. FINAL JUDGMENT....................................................................................................... 65
`XXVI. APPENDICES ................................................................................................................ 66
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`Case 1:20-cv-00762-SM Document 11 Filed 09/28/20 Page 3 of 83
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`WHEREAS, Plaintiff, the United States of America (“United States”), on behalf of the
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`United States Environmental Protection Agency (“EPA”), filed a complaint simultaneously
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`herewith, alleging that the City of Manchester, New Hampshire (“City,” “Manchester,” or
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`“Defendant”) has violated its National Pollutant Discharge Elimination System (“NPDES”)
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`Permit No. NH0100447 and Section 301(a) of the Clean Water Act (“CWA”), 33 U.S.C.
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`§ 1311(a), by discharging pollutants into waters of the United States from its Publicly Owned
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`Treatment Works, as defined at 40 C.F.R. § 403.3, that includes a Wastewater Treatment Plant
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`and Wastewater Collection System, including Combined Sewer Overflow (“CSO”) outfalls;
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`WHEREAS, Section 309(e) of the CWA, 33 U.S.C. § 1319(e), requires that whenever the
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`United States brings a civil enforcement action against a municipality under Section 309, the
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`state in which the municipality is located shall be joined as a party;
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`WHEREAS, the State of New Hampshire (the “State”), on behalf of the New Hampshire
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`Department of Environmental Services (“NHDES”), has filed an assented-to motion to intervene
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`as a plaintiff in the action brought by the United States and has filed a complaint alleging that the
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`City has violated the Permit, which has been adopted as a State permit by NHDES pursuant to
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`the New Hampshire Water Pollution and Waste Disposal Act, NH RSA 485-A (“New Hampshire
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`Act”), and Section 301(a) of the CWA, 33 U.S.C. § 1311(a);
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`WHEREAS, the framework for compliance with CWA requirements for CSOs is set
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`forth in EPA’s Combined Sewer Overflow Control Policy, which was published in the Federal
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`Register on April 19, 1994 (59 Fed. Reg. 18688) and later added to the CWA in Section
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`402(q)(1), 33 U.S.C. § 1342(q)(1) (“CSO Control Policy”);
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`WHEREAS, the CSO Control Policy set forth the following objectives: (1) to ensure that
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`if the CSO discharges occur, they are only as a result of wet weather, (2) to bring all wet weather
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`CSO discharge points into compliance with the technology-based requirements of the CWA and
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`applicable federal and state water quality standards, and (3) to minimize water quality, aquatic
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`biota, and human health impacts from wet weather flows;
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`WHEREAS, the CSO Control Policy explains that municipalities shall immediately
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`implement best available technology economically achievable or best conventional pollutant
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`control technology (“BAT/BCT”), and that at a minimum, BAT/BCT should include nine
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`minimum controls (“NMCs”), including the prohibition of dry weather overflows from CSOs;
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`WHEREAS, the City has been implementing NMCs pursuant to the 1994 CSO Control
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`Policy, the City’s NMC document originally submitted to EPA on May 8, 1995, as amended, and
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`the Permit;
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`WHEREAS, in accordance with a Compliance Order entered into with EPA in 1999, as
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`modified in 2002 (“1999 Compliance Order”), the City performed Phase I CSO abatement
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`controls over the course of ten years;
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`WHEREAS, in performing Phase I CSO abatement controls in accordance with the 1999
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`Compliance Order and the City’s NMCs, the City spent $58 million to eliminate 13 CSO
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`outfalls, including all of the discharges to the Piscataquog River upstream of Bass Island through
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`sewer separation, thereby reducing the overall CSO discharges to the west side of the Merrimack
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`River by 99% (from approximately 53.2 million gallons to 0.2 million gallons) and the total
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`annual CSO discharge volume of the City by approximately 17%, exceeding the original goal of
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`achieving a level of CSO controls of no more than an average of four overflow events per year
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`by controlling CSOs on the west side of the Merrimack River to less than one overflow per year
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`on average;
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`WHEREAS, in performing Phase I CSO abatement controls in accordance with the 1999
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`Compliance Order and the City’s NMCs, the City constructed modifications to its Wastewater
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`Treatment Plant to accommodate additional wet weather treatment capacity by bypassing
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`secondary treatment for high flows, whereby the bypassed flows would receive only primary
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`treatment (screening, grit removal, and primary sedimentation) and disinfection;
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`WHEREAS, following the completion of the City’s Phase I CSO abatement controls,
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`performed in accordance with the 1999 Compliance Order, the City was eliminating or capturing
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`for treatment approximately 83% by volume of the City’s annual wet-weather combined sewage,
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`an estimated 1,367 million gallons out of a total of 1,647 million gallons (based on projected
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`2030 future baseline conditions), leaving approximately 17% by volume, 280 million gallons, of
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`untreated wet-weather combined sewage still discharged annually;
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`WHEREAS, in accordance with the 1999 Compliance Order and the CSO Control Policy,
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`on March 12, 2010, the City submitted to EPA a Revised Long-Term CSO Control Plan
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`(“Revised LTCP”) to inter alia evaluate the effectiveness of the CSO abatement projects
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`performed in accordance with the 1999 Compliance Order, include an updated alternatives
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`analysis for the remaining CSOs, and recommend additional CSO abatement projects;
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`WHEREAS, the City began performing certain CSO abatement projects at the
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`Wastewater Treatment Plant in 2010 in accordance with the Revised LTCP and the 2010
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`Wastewater Treatment Facility—Facility Plan Report (“WWTF-Facility Plan Report”) to further
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`improve the wet-weather performance of its Wastewater Treatment Plant and to reduce sewage
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`backups into basements and street flooding through sewer separation, including increasing the
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`capacity of the Wastewater Treatment Plant for primary and secondary treatment to 42 million
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`gallons per day (“mgd”) and wet-weather flows to 72 mgd (with flows between 42 mgd and 72
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`mgd receiving only primary treatment and disinfection), at a cost of $22 million;
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`WHEREAS, since 2010, the City completed the Chestnut Street Sewer Separation Project
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`and North Chestnut Street Sewer Separation Project (both together known formerly as the North
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`Chestnut St./Elm St. South Project), identified as recommended Phase II CSO abatement projects
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`in the 2010 Revised LTCP, at costs of $6.45 million and $11.85 million, respectively;
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`WHEREAS, the City’s CSO abatement controls to be performed in accordance with this
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`Consent Decree include projects identified in the 2010 Revised LTCP as Phase II abatement
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`projects, including the removal of Cemetery Brook, a tributary to the Merrimack River that was
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`incorporated into the City’s Collection System as the City expanded beyond the banks of the
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`Merrimack River, from the Combined Sewer System and the separation of portions of the
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`Combined Sewer System into two separate pipe systems (one dedicated to sewage and the other
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`to stormwater), as well as the Christian Brook removal and Christian Brook area sewer
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`separation project;
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`WHEREAS, following the completion of the City’s Phase I CSO abatement controls,
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`Wastewater Treatment Plant upgrades and sewer separation projects performed since 2010, and
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`CSO abatement controls in accordance with this Consent Decree, the City is expected to be
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`eliminating or capturing for treatment 95% by volume of the City’s annual wet-weather
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`combined sewage, an estimated 1,574 million gallons out of a total of 1,647 million gallons
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`(based on projected 2030 future baseline conditions);
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`WHEREAS, the Wastewater Treatment Plant upgrades and sewer separation projects
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`performed since 2010 and the City’s completion of CSO abatement controls in accordance with
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`this Consent Decree are expected to cost approximately $271 million (in June 2019 dollars) and
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`will reduce the total annual remaining CSO discharge volume of the City by approximately 74%
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`(from approximately 280 million gallons to 73 million gallons);
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`WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds,
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`that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation
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`between the Parties and that this Consent Decree is fair, reasonable, and in the public interest;
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`NOW, THEREFORE, before the taking of any testimony, without the adjudication or
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`admission of any issue of fact or law except as provided in Sections I (Statement of Claim) and II
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`(Jurisdiction and Venue), with the consent of the Parties, IT IS HEREBY ORDERED,
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`ADJUDGED, AND DECREED as follows:
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`I. STATEMENT OF CLAIM
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`1.
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`The Complaints state claims upon which relief can be granted against the
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`Defendant pursuant to Section 309 of the CWA, 33 U.S.C. § 1319, and, with respect to the
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`State’s complaint, also pursuant to Section 12 of the New Hampshire Act, NH RSA 485-A:12.
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`II. JURISDICTION AND VENUE
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`2.
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`This Court has jurisdiction over the subject matter of this action pursuant to
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`Section 309(b) of the CWA, 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1331, 1345, and 1355. This
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`Court has supplemental jurisdiction over the State law claims asserted by the State pursuant to 28
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`U.S.C. § 1367 and under the doctrine of pendent jurisdiction. This Court has personal
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`jurisdiction over the Parties to this Consent Decree. Venue properly lies in this district pursuant
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`to Section 309(b) of the CWA, 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1391(b) and (c). For
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`purposes of this Decree, or any action to enforce this Decree, the City consents to the Court’s
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`jurisdiction over this Decree and any such action and over the City and consents to venue in this
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`judicial district.
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`III. APPLICABILITY
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`3.
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`The provisions of this Consent Decree shall apply to and be binding upon the
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`United States and the State, and upon the City and any successors, assigns, or other entities or
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`persons otherwise bound by law.
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`4.
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`No transfer of any ownership interest in or any interest in the operation of the
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`Wastewater Treatment Plant or Wastewater Collection System, whether in compliance with this
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`Paragraph or otherwise, shall relieve the City of its obligation to ensure that the terms of this
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`Consent Decree are implemented. Any transfer involving ownership or operation of the
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`Wastewater Treatment Plant or Wastewater Collection System, or any portion thereof, to any
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`other person or entity must be conditioned upon the transferee’s agreement to undertake the
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`obligations required by all provisions of this Consent Decree, as provided in a written agreement
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`between the City and the proposed transferee, enforceable by the United States as a third-party
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`beneficiary of such agreement. At least sixty (60) Days prior to such transfer, the City shall
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`provide a copy of this Consent Decree to the proposed transferee and shall simultaneously
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`provide written notice of the prospective transfer, together with a copy of the above-referenced
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`proposed written agreement, to EPA, the United States Attorney, the United States Department
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`of Justice, New Hampshire Attorney General’s Office, and NHDES in accordance with Section
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`XIII (Form of Notice). Any noncompliance with this Paragraph constitutes a violation of this
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`Consent Decree.
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`5.
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`The City shall provide a copy of this Consent Decree to all officers, directors,
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`employees, and agents whose duties might reasonably include compliance with any provisions of
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`this Consent Decree. The City shall also provide a copy of this Consent Decree to all contractors
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`and consultants retained to perform any obligation required by this Consent Decree on behalf of
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`the City, and condition any such contract upon performance of the work in conformity with the
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`terms of this Consent Decree. Such contractors and consultants shall be deemed agents of the
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`City for the purposes of this Consent Decree. In any action to enforce this Consent Decree, the
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`City shall not assert as a defense the failure by any of its officers, directors, employees, agents,
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`consultants, contractors, successors, and assigns to take actions necessary to comply with this
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`Consent Decree.
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`IV. DEFINITIONS
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`6.
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`Unless otherwise expressly provided herein, terms used in this Consent Decree
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`which are defined in the CWA or in regulations promulgated under the CWA shall have the
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`meaning ascribed to them in the CWA or in the regulations promulgated thereunder. Whenever
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`the terms listed below are used in this Consent Decree, the following definitions shall apply.
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`a.
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`“Approval by EPA and NHDES” or “Approved by EPA and NHDES”
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`shall mean the issuance of one joint, written approval document from both EPA and NHDES, or
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`an approval from each, EPA and NHDES, approving, approving with conditions, and/or
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`modifying a submission in accordance with Section VIII (Review and Approval of Submissions).
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`b.
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`“Approval by NHDES” or “Approved by NHDES” shall mean the
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`issuance of a written approval document from NHDES approving, approving with conditions,
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`and/or modifying a submission in accordance with Section VIII (Review and Approval of
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`Submissions).
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`c.
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`“Building/Private Property Backup” shall mean a release of wastewater
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`into a building or onto private property that is caused by blockage(s), flow condition(s), or
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`Collection System malfunction(s). A wastewater backup or release that is caused solely by
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`conditions in the Private Lateral is not a Building/Private Property Backup for purposes of this
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`Consent Decree.
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`d.
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`“City” or “Manchester” shall mean Defendant City of Manchester, New
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`Hampshire.
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`e.
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`“Combined Sewer Overflow” or “CSO” shall mean a discharge from the
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`Combined Sewer System at a CSO outfall designated in the City’s Permit, as shown in Appendix
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`A.
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`f.
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`“Combined Sewer Overflow Control Policy” or “CSO Control Policy”
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`shall mean the policy issued by EPA regarding combined sewer overflows, entitled “Combined
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`Sewer Overflow (CSO) Control Policy,” 59 Fed. Reg. 18688 (April 19, 1994), and as identified
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`in Section 402(q)(1) of the CWA, 33 U.S.C. § 1342(q)(1).
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`g.
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`“Combined Sewer System” or “CSS” shall mean the portion of the
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`Wastewater Collection System, including pipelines, pumping stations, treatment facilities, and
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`appurtenances in the City, that is designed to convey wastewater and stormwater through a single
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`pipe system to the Wastewater Treatment Plant and/or CSO outfalls.
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`h.
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`“Complaints” shall mean the complaints filed by the United States and the
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`State in this action.
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`i.
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`“Consent Decree” or “Decree” shall mean this Consent Decree and all
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`appendices attached hereto. In the event of conflict between this Decree and any appendix, this
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`Decree shall control.
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`j.
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`“CSO Control Measures” shall mean the construction, control measures,
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`actions, and other activities set forth in Section VI (Compliance Requirements).
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`k.
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`“CWA” shall mean the Federal Water Pollution Control Act (commonly
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`referred to as the Clean Water Act), as amended, 33 U.S.C. § 1251 et seq.
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`l.
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`“Date of Lodging” shall mean the Day this Consent Decree is filed for
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`lodging in the United States District Court for the District of New Hampshire.
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`m.
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`“Day” shall mean a calendar day. In computing any period of time under
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`this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal or State
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`holiday, the period shall run until the close of business of the next business day.
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`n.
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`“Dry Weather Overflow” shall mean a discharge that occurs at a permitted
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`CSO outfall during dry weather (any calendar day on which there is less than 0.1 inches of
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`rainfall and no snow melt). Dry weather flow includes domestic sewage, groundwater
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`infiltration, commercial and industrial wastewaters, and any other non-precipitation related
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`flows.
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`o.
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`“Effective Date” shall have the definition provided in Section XVI
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`(Effective Date).
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`p.
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`“EPA” shall mean the United States Environmental Protection Agency
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`and any successor departments or agencies of the United States.
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`q.
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`“Manchester Consent Decree Gantt Chart” shall mean the Gantt chart of
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`CSO abatement and Wastewater Treatment Plant projects and post-construction monitoring to be
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`performed by the City in accordance with this Consent Decree. The Manchester Consent Decree
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`Gantt Chart is attached to this Consent Decree as Appendix B.
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`r.
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`“New Hampshire Act” shall mean the New Hampshire Water Pollution
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`and Waste Disposal Act, NH RSA 485-A.
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`s.
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`“NHDES” shall mean the New Hampshire Department of Environmental
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`Services and any successor departments or agencies of the State.
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`t.
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`“Paragraph” shall mean a portion of this Consent Decree identified by an
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`Arabic numeral, a lower-case letter, or a lower-case Roman numeral.
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`u.
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`v.
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`“Parties” shall mean the United States, the State, and the City.
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`“Permit” shall mean NPDES Permit No. NH0100447, issued on February
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`11, 2015, or the then current superseding modified or reissued permit.
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`w.
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`“Private Lateral” shall mean pipes and any other appurtenances not owned
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`by the City that are used to convey wastewater from a building or buildings to the Wastewater
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`Collection System.
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`x.
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`“Revised LTCP” shall mean the March 2010 Revised Long-Term CSO
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`Control Plan.
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`y.
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`“Section” shall mean a portion of this Consent Decree identified by an
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`upper-case Roman numeral.
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`z.
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`aa.
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`“State” shall mean the State of New Hampshire.
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`“Substantial Completion” shall mean construction of the project or a
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`specified part thereof is sufficiently completed, in accordance with the contract documents, so
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`that the project or specified part can consistently operate in such a way as to fully accomplish the
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`intended function, even though all construction close-out activities may not yet be completed.
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`bb.
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`“Unauthorized Discharge” shall mean any discharge of wastewater to
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`waters of the United States from the Collection System not in accordance with the terms and
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`conditions of the Permit, including a Dry Weather Overflow.
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`cc.
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`“Unauthorized Release” shall mean any overflow, spill, diversion, or
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`release of wastewater within the Combined Sewer System not in accordance with the terms and
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`conditions of the Permit that is not an Unauthorized Discharge. This term shall include any
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`release of wastewater from the Combined Sewer System to public or private property that does
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`not reach waters of the United States, including Building/Private Property Backups.
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`dd.
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`ee.
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`“United States” and “U.S.” shall mean the United States of America.
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`“Wastewater Collection System” or “Collection System” shall mean the
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`municipal wastewater (domestic, commercial, and industrial) collection, storage and
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`transmission system owned or operated by the City, including, but not limited to, all pipes,
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`siphons, devices, pump stations, force mains, gravity sewer lines, manholes, and appurtenances
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`thereto. This term includes the CSS and the separate sanitary system.
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`ff.
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`“Wastewater Treatment Plant” or “WWTP” shall mean the wastewater
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`treatment plant owned and operated by the City and located at 300 Winston Street, Manchester,
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`New Hampshire, and all components of such wastewater treatment plant.
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`gg.
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`“WWTF-Facility Plan Report” shall mean the September 2010
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`Wastewater Treatment Facility—Facility Plan Report.
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`V. OBJECTIVES
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`7.
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`It is the express purpose of the Parties in entering into this Consent Decree to
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`require the City to undertake measures necessary to achieve and maintain compliance with the
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`CWA, the New Hampshire Act, the Permit, and any applicable federal and State regulations,
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`including, but not limited to, the elimination of Unauthorized Discharges and Unauthorized
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`Releases from the CSS and to bring all wet weather CSO discharge points into compliance with
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`the technology-based and water-quality based requirements of the CWA.
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`8.
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`All work pursuant to this Consent Decree shall be performed using sound
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`engineering practices to ensure that construction, management, operation, and maintenance of
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`the Wastewater Collection System and Wastewater Treatment Plant comply with the CWA,
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`including practices to improve the resilience of the Wastewater Collection System and
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`Wastewater Treatment Plant. Engineering designs and analyses required to be performed
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`pursuant to this Consent Decree shall be conducted using sound engineering practices, and, as
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`applicable, consistent with: (a) EPA’s “Handbook: Sewer System Infrastructure Analysis and
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`Rehabilitation,” EPA/625/6-91/030, October 1991, as amended; (b) “Standards of Design and
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`Construction for Sewerage and Wastewater Treatment Facilities,” New Hampshire Code of
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`Administrative Rules Chapter Env-Wq 700; (c) “Existing Sewer Evaluation and Rehabilitation,”
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`WEF MOP FD-6, 2009, as amended; (d) “Guide to Short Term Flow Surveys of Sewer
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`Systems,” WRc Engineering (Undated); (e) the National Association of Sewer Service
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`Companies’ “Manual of Practice”; (f) New England Interstate Water Pollution Control
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`Commission’s TR-16 “Guides for the Design of Wastewater Treatment Works,” 2011, as revised
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`in 2016, as amended; (g) EPA’s “Computer Tools for Sanitary Sewer System Capacity Analysis
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`and Planning,” EPA/600/R-07/111, October 2007, as amended; (h) EPA’s Creating Resilient
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`Water Utilities (CRWU) Initiative, available on the EPA-maintained website at
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`https://www.epa.gov/crwu; and (i) EPA’s Climate Resilience Evaluation and Awareness Tool
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`(CREAT) version 3.0, referenced at EPA 815-B-16-004, May 2016, available on the EPA-
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`maintained website at https://www.epa.gov/crwu/build-resilience-your-utility. Should there be a
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`conflict between two or more of these sources, EPA’s judgment as to which source to follow
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`shall control.
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`VI. COMPLIANCE REQUIREMENTS
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`The City shall implement the following CSO Control Measures, which include the
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`projects identified in the 2010 Revised LTCP as components of the proposed Phase II CSO
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`abatement program and the Christian Brook removal and Christian Brook area sewer separation
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`project, in accordance with the milestones and deadlines below. All CSO Control Measures shall
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`be fully constructed (including all construction close-out activities), completed, and be in full
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`operation in no event later than twenty (20) years after the Effective Date of this Consent Decree,
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`provided, however, that the Revere Ave. area sewer separation project shall achieve Substantial
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`Completion in no event later than twenty (20) years after the Effective Date of this Consent
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`Decree, and shall be fully constructed, completed, and be in full operation in no event later than
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`twenty and a half (20.5) years after the Effective Date of this Consent Decree.
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` Where any compliance obligation in this Section (Section VI) requires the City to
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`obtain a federal, state or local permit or approval, the City shall submit timely and complete
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`applications that meet the requirements of applicable federal, state and local laws and
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`regulations, and take all other actions necessary to obtain all such permits or approvals. The City
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`may seek relief under the provisions of Section X (Force Majeure) of this Consent Decree for
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`any delay in the performance of any such obligation resulting from a failure to obtain, or a delay
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`in obtaining, any permit or approval required to fulfill such obligation, if the City has submitted
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`timely and complete applications and has taken all other actions necessary to obtain all such
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`permits or approvals.
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`A. Permanent Closures of Inactive CSO Outfalls
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`The City shall permanently close inactive CSO outfalls in accordance with the
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`milestones and deadlines set forth in this Paragraph. Within six (6) months of the Effective Date
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`Case 1:20-cv-00762-SM Document 11 Filed 09/28/20 Page 16 of 83
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`of the Consent Decree, the City shall evaluate, with the goal of permanently closing, inactive
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`CSO outfalls 011, 018, 031B, 043, 051, and 053, as shown in Appendix A. In this evaluation,
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`the City shall determine if a particular CSO continues to be necessary for the Wastewater
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`Collection System at this time in order to provide hydraulic relief. At the end of the six-month
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`CSO outfall evaluation period, listed as Item 4 in the Manchester Consent Decree Gantt Chart,
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`the City shall submit for review and Approval by EPA and NHDES a technical memorandum
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`summarizing its findings and conclusions. In the technical memorandum, if the City
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`recommends permanently closing any such CSO outfall, the City shall provide dates for
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`construction start and construction completion. If the City does not recommend permanently
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`closing any such CSO outfall, the City shall provide the reasons why closing any such CSO
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`outfall is not being recommended. The City shall achieve Substantial Completion of
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`recommended permanent closing of CSO outfall(s) in accordance with the schedules in the
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`technical memorandum, as Approved by EPA and NHDES.
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`B. Removal of Brook Flows and Sewer Separation
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`The City shall implement the following projects to remove brooks (Cemetery
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`Brook and Christian Brook, tributaries to the Merrimack River that were incorporated into the
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`City’s Collection System as the City expanded beyond the banks of the Merrimack River) from
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`the Combined Sewer System and to separate portions of the Combined Sewer System into two
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`separate pipe systems (one dedicated to sewage and the other to stormwater) (see Map of the
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`Cemetery Brook Drainage Area and Christian Brook Drainage Area Projects (Appendix C) and
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`Map of the Extent of the Christian Brook Removal and Christian Brook Area Sewer Separation
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`Project (Appendix D)), in accordance with the milestones and deadlines below, which are
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`premised upon a review and approval period for NHDES that is no longer than sixty (60) Days,
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`Case 1:20-cv-00762-SM Document 11 Filed 09/28/20 Page 17 of 83
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`provided, however, that the City shall provide submissions no less than sixty (60) Days before
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`deadlines requiring the City to obtain Approval by NHDES of such submissions:
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`a.
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`Cemetery Brook Drain Basis of Design (shown as Item 5 in the
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`Manchester Consent Decree Gantt Chart): Upon the Effective Date of the Consent Decree, the
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`City shall initiate basis of design of the Cemetery Brook Drain, which will serve as a new trunk
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`drain for the Cemetery Brook basin to convey brook flow and stormwater drainage to the
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`Merrimack River from the Outfall to East of Mammoth Rd. (Contracts 2 through 5 in the
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`Manchester Consent Decree Gantt Chart). The scope of the basis of design, which is shown as
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`Item 5 in the Manchester Consent Decree Gantt Chart, shall include: survey of the entire route
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`including rights of way; basis of design of the drain including a preliminary profile, initial
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`geotechnical, archeological, historical and environmental reviews; recommended construction
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`contract delineation; and sequencing and related services. The City shall submit for review and
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`comment by EPA and NHDES initial and final basis of design of the Cemetery Brook Drain in
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`accordance with New Hampshire Code of Administrative Rules Chapter Env-Wq 700. Within
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`two (2) years of the Effective Date of this Consent Decree, the City shall submit for review and
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`obtain Approval by NHDES of the final Cemetery Brook Drain Basis of Design Report.
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`b.
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`Cemetery Brook Drain (Outfall to Queen City Ave. at Elm St.)
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`Construction Project: (shown as Contract 2 in the Manchester Consent Decree Gantt Chart): The
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`City shall design and construct the Outfall to Queen City Ave. at Elm St. portion of the Cemetery
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`Brook Drain, as described on Pages 8-12 and 8-13, 10-30 to 10-34, and 11-5 to 11-6, Tables 8-3
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`and 10-4, and Figures 8-2, 10-16, 11-1, 11-2, and 11-3 of the Revised LTCP and shown as
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`Contract 2 in the Manchester Consent Decree Gantt Chart, which will serve