UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW HAMPSHIRE
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`__________________________________________
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`) Civil Action No. 1:20-cv-00762-SM
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`CITY OF MANCHESTER, NEW HAMPSHIRE, )
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`Defendant.
`__________________________________________)
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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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`COMPLAINT IN INTERVENTION OF CO-PLAINTIFF, STATE OF NEW
`HAMPSHIRE
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`The State of New Hampshire, Dept. of Environmental Services (“NHDES”), through its
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`counsel the Office of the Attorney General (collectively “State”) hereby alleges as follows:
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`NATURE OF ACTION
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`1. This is a civil action brought against the City of Manchester, New Hampshire
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`(“Manchester” or the “City”) under Section 309(b) of the Federal Water Pollution Control Act of
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`1972, as amended (commonly referred to as the “Clean Water Act” and hereinafter referred to as
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`the “CWA”), 33 U.S.C. § 1319(b) and N.H. RSA 485-A:13. The claims arise from the City’s
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`failure to comply with the CWA and State law by discharging pollutants from its wastewater
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`collection system both without authorization of, and in noncompliance with, its National
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`Pollutant Discharge Elimination System (“NPDES”) permit, State law, and the rules
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`promulgated thereunder.
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`FOR THE DISTRICT OF NEW HAMPSHIRE
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`__________________________________________
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`) Civil Action No. 1:20-cv-00762-SM
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`CITY OF MANCHESTER, NEW HAMPSHIRE, )
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`Defendant.
`__________________________________________)
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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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`COMPLAINT IN INTERVENTION OF CO-PLAINTIFF, STATE OF NEW
`HAMPSHIRE
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`The State of New Hampshire, Dept. of Environmental Services (“NHDES”), through its
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`counsel the Office of the Attorney General (collectively “State”) hereby alleges as follows:
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`NATURE OF ACTION
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`1. This is a civil action brought against the City of Manchester, New Hampshire
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`(“Manchester” or the “City”) under Section 309(b) of the Federal Water Pollution Control Act of
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`1972, as amended (commonly referred to as the “Clean Water Act” and hereinafter referred to as
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`the “CWA”), 33 U.S.C. § 1319(b) and N.H. RSA 485-A:13. The claims arise from the City’s
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`failure to comply with the CWA and State law by discharging pollutants from its wastewater
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`collection system both without authorization of, and in noncompliance with, its National
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`Pollutant Discharge Elimination System (“NPDES”) permit, State law, and the rules
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`promulgated thereunder.
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`JURISDICTION AND VENUE
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`2. This Court has jurisdiction over the subject matter of this action under Section 309(b)
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`of the CWA, 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1331, 1345 and 1355. This Court has
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`supplemental jurisdiction to resolve the State of New Hampshire’s claims derived from a nucleus
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`of operative facts common to the alleged federal claims.
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`3. Venue is proper in this district under Section 309(b) of the CWA, 33 U.S.C. §
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`1319(b), 28 U.S.C. § 1391(b), and 28 U.S.C. § 1395.
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`DEFENDANT
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`4. Manchester is a municipality incorporated under the laws of the State of New
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`Hampshire.
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`5. Manchester is a “municipality” within the meaning of Section 502(4) of the CWA, 33
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`U.S.C. § 1362(4), and a “person” within the meaning of Section 502(5) of the CWA, 33 U.S.C. §
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`1362(5).
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`STATUTORY BACKGROUND
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`6. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of any
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`pollutant to navigable waters of the United States except in compliance with, inter alia, the terms
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`and conditions of a NPDES permit issued pursuant to Section 402 of the CWA, 33 U.S.C. §
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`1342.
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`7. Section 502(12) of the CWA, 33 U.S.C. § 1362(12), defines the term “discharge of
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`pollutants” to include “any addition of any pollutant to navigable waters from any point source.”
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`8. Section 502(6) of the CWA, 33 U.S.C. § 1362(6), defines the term “pollutant” to
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`include, inter alia, “sewage . . . , biological materials . . . , and . . . municipal . . . waste
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`discharged into water.”
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`9. Section 502(7) of the CWA, 33 U.S.C. § 1362(7), defines the term “navigable waters”
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`as “the waters of the United States, including the territorial seas.”
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`10. In turn, “waters of the United States” has been defined to include, in relevant part,
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`“[a]ll waters which are currently used, were used in the past, or may be susceptible to use in
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`interstate or foreign commerce, including all waters which are subject to the ebb and flow of the
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`tide,” and tributaries of such waters. 40 C.F.R. § 122.2.
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`11. Section 502(14) of the CWA, 33 U.S.C. § 1362(14), defines the term “point source”
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`to include “any discernible, confined and discrete conveyance, including but not limited to any
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`pipe, ditch, channel, tunnel, conduit . . . from which pollutants are or may be discharged.”
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`12. Section 402 of the CWA, 33 U.S.C. § 1342, provides that the Administrator of EPA
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`may issue permits under the NPDES program for the discharge of pollutants into navigable
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`waters upon such specific terms and conditions as the Administrator of EPA may prescribe.
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`13. Section 309(b) of the CWA, 33 U.S.C. § 1319(b), authorizes the commencement of a
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`civil action for appropriate relief, including a permanent or temporary injunction, against any
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`person who violates Section 301(a) of the CWA, 33 U.S.C. § 1311(a), or a permit condition or
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`limitation in a permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342.
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`14. New Hampshire RSA 485-A:13, I(a), like Section 301(a) of the CWA, 33 U.S.C. § 1311(a),
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`prohibits the discharge of any sewage or waste into its navigable surface waters except in compliance
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`with the terms and conditions set forth in a discharge permit issued pursuant to Chapter 485-A and rules
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`adopted thereunder.
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`15. RSA 485-A:13, I(a) provides that NHDES, like EPA under Section 402 of the CWA, 33
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`U.S.C. § 1342, may issue surface water discharge permits for the discharge of sewage or waste to the
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`surface waters of the State.
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`16. Like Section 309(b) and (d) of the CWA, 33 U.S.C. §1319(b) and (d), RSA 485-A:22, II
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`authorizes commencement of an action for civil penalties not to exceed $10,000 per day per violation of
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`any condition of a permit issued under RSA 485-A:13. Such violations may also be enjoined upon
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`application of the Attorney General. RSA 495-A:22, III.
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`GENERAL ALLEGATIONS
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`17. The City of Manchester is the owner and operator of a treatment works including a
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`wastewater treatment plant that serves Manchester and portions of Bedford, Londonderry, and
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`Goffstown, New Hampshire, with a sewered population of approximately 155,000 people. The
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`City owns and operates a wastewater collection system that consists of approximately 385 miles
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`of sewer pipeline. Of this system, approximately 55% are sanitary sewers, which carry domestic,
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`industrial, and commercial wastewater, and 45% are combined sewers which carry such
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`wastewater and, in addition, stormwater runoff.
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`18. Pursuant to Section 402 of the CWA, 33 U.S.C. § 1342, EPA issued NPDES Permit
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`No. NH0100447 to the City on September 25, 2008 (the “2008 Permit”), and reissued it on
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`February 11, 2015 (the “2015 Permit”). The 2015 Permit became effective on May 1, 2015.
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`19. NHDES adopted the 2015 Permit as its own discharge permit on May 5, 2015.
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`20. During rain events, rainwater often overwhelms the capacity of the Manchester
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`combined sewer system, resulting in excess storm- and wastewater, including untreated sewage,
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`being diverted to the City’s combined sewer overflow (“CSO”) outfalls, and thereafter, into
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`receiving water bodies including, but not limited to, the Merrimack River, Piscataquog River,
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`Ray Brook, and Tannery Brook.
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`21. Manchester’s NPDES Permit authorizes Manchester to discharge pollutants from 15
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`CSO outfalls, identified in the 2015 Permit, only in conformity with and as limited by the terms
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`of the 2015 Permit.
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`22. Manchester’s CSO outfalls are “point sources” within the meaning of Section
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`502(14) of the CWA, 33 U.S.C. § 1362(14).
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`23. Discharges from Manchester’s CSO outfalls include, among other contaminants,
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`“sewage,” “biological materials,” and “municipal waste,” all “pollutants” under Section 502(6)
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`of the CWA, 33 U.S.C. § 1362(6). These contaminants can cause a variety of adverse impacts
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`on the physical characteristics of water resources, present threats to human health and welfare
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`and the environment, and significantly degrade the aesthetic value of surface waters.
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`24. Discharges from Manchester’s CSO outfalls enter, directly or indirectly, the
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`Merrimack River, Piscataquog River, Ray Brook, and Tannery Brook, which are “navigable
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`waters” and “waters of the United States” within the meaning of Section 502(7) of the CWA, 33
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`U.S.C. § 1362(7).
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`25. New Hampshire’s water quality standard for E. coli bacteria is 1,000 colonies per
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`100 milliliters for discharges into non-tidal waters, such as the Merrimack River,
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`PiscataquogRiver, Ray Brook, and Tannery Brook. Both the 2008 Permit and the 2015 Permit
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`provide that the City’s CSOs may not contain E. coli bacteria in excess of 1,000 colonies per 100
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`milliliters. Both the 2008 and 2015 Permit require that the City’s CSOs shall not cause
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`violations of water quality standards.
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`26. The City has, in violation of its NPDES Permit, its State permit, and State law,
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`discharged and continues to discharge “pollutants,” including E. coli, within the meaning of
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`Sections 502(6) and (12) of the CWA, 33 U.S.C. §§ 1362(6) and (12), from its wastewater
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`treatment plant and wastewater collection system through “point sources” within the meaning of
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`Section 502(14) of the CWA, 33 U.S.C. § 1362(14), into “navigable waters” within the meaning
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`5
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`of Section 502(7). These waters include, but are not limited to, the Merrimack River,
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`Piscataquog River, Ray Brook and Tannery Brook.
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`CLAIM FOR RELIEF
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`27. The State realleges and incorporates by reference the allegations of Paragraphs 1
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`through 26 above.
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`28. According to the two most recent years of data reported by the City, the City’s
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`combined sewers overflowed by an average discharge volume of approximately 295 million
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`gallons annually.
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`29. The City conducts annual effluent characteristic monitoring of its CSOs. Data
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`reported by the City itself over the past nine years reveal levels of E. coli colonies ranging
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`between 1,250 and 560,000 per 100 milliliters in samples of combined sewage.
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`30. The City’s CSO discharges contain E. coli, among other pollutants, in excess of the
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`amounts allowed under New Hampshire water quality standards, the State permit, and the City’s
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`2008 Permit and 2015 Permit.
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`31. The City’s CSO discharges containing pollutants that cause or contribute to
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`violations of New Hampshire water quality standards in the Merrimack River, Piscataquog
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`River, Ray Brook, and Tannery Brook are violations of the 2008 Permit, 2015 Permit, the CWA,
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`the State permit, and State law.
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`32. Upon information and belief, the City will continue to discharge pollutants from its
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`CSO outfalls in violation of the New Hampshire water quality standards, its State permit, and the
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`2015 Permit unless restrained by this Court.
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`33. Pursuant to Section 309(b) of the CWA, 33 U.S.C. § 1319(b), the City is subject to
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`injunctive relief to prevent future violations of the CWA.
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`34. Section 309(d) of the CWA, 33 U.S.C. § 1319(d), provides that any person who
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`violates Section 301 of the CWA, 33 U.S.C. § 1311, or any condition or limitation of a permit
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`issued under Section 402 of the CWA, 33 U.S.C. § 1342, shall be subject to a civil penalty not to
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`exceed $25,000 per day for each violation. This civil penalty level has been adjusted upward
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`over time at 40 C.F.R. § 19.4 as required by the Federal Civil Penalties Inflation Adjustment Act
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`of 1990 (28 U.S.C. § 2461 note; Pub. L. 101-410), as amended by the Debt Collection
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`Improvement Act of 1996) (28 U.S.C. § 2461 note; Pub. L. 104-134) and the Federal Civil
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`Penalties Inflation Adjustment Act Improvements Act of 2015 (28 U.S.C. § 2461 note; Pub. L.
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`114-74, Section 701). Pursuant to this authority, the City is subject to civil penalties up to
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`$37,500 per violation per day occurring after January 12, 2009 through November 2, 2015 and
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`$55,800 per violation per day occurring after November 2, 2015.
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`35. The City is also subject to RSA 485-A:22, II which authorizes civil penalties not to
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`exceed $10,000 per day per violation of any condition of a permit issued under RSA 485-A:13.
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`Such violations may also be enjoined upon application of the Attorney General pursuant to RSA
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`485-A:22, III.
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`PRAYER FOR RELIEF
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`WHEREFORE, the State respectfully requests that the Court grant the following relief:
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`1.
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`Permanently enjoin the City, pursuant to Section 309(b) of the CWA, 33 U.S.C. §
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`1319(b), and RSA 485-A, 22, from any and all future violations of the CWA or
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`State law and from discharges of pollutants except as authorized by a NPDES
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`permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342 and the
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`State permit;
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`2.
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`Pursuant to Section 309(d) of the CWA and C.F.R. § 19.4, assess civil penalties
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`against the City in amounts up to $37,500 per violation per day occurring after
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`January 12, 2009 through November 2, 2015 and $55,800 per violation per day
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`occurring after November 2, 2015;
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`3.
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`Award the State penalties of up to $10,000 per violation per day pursuant to RSA
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`485-A:22; and,
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`4.
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`Grant such other relief as the Court deems just and proper.
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`Dated: July 23, 2020
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`By:
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`Respectfully submitted,
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`State of New Hampshire
`Department of Environmental Services
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`By its attorneys,
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`GORDON J. MACDONALD
`ATTORNEY GENERAL
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`/s/ K. Allen Brooks
`Kelvin Allen Brooks, NH Bar # 16424
`Senior Assistant Attorney General
`Chief, Environmental Protection Bureau
`Office of Attorney General
`33 Capitol Street
`Concord, New Hampshire 03301-6397
`(603) 271-1275
`allen.brooks@doj.nh.gov
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`CERTIFICATE OF SERVICE
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`I hereby certify that this document, filed through the ECF system will be sent
`electronically to the registered participants as identified on the Notice of Electronic Filing, Peter
`Kautsky, Esquire; Adam M. Dumville, Esquire and Gregory H. Smith, Esquire.
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`/s/ K. Allen Brooks
`K. Allen Brooks
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