Town gives status report on Wright-Pierce lawsuit

by Thomas Beeler
Editor of The Granite State News
November 27, 2013
WOLFEBORO — At the Nov. 20 meeting of the Wolfeboro Board of Selectmen, Public Works Director Dave Ford read a prepared statement giving a status report on the town's lawsuit against Wright-Pierce Engineers, the company that did the engineering work on the town's Rapid Infiltration Basin (RIB) effluent disposal site.

The use of RIBs was proposed by Wright-Pierce as a better alternative to disposing of treated septic effluent than the combination of a holding pond and spray fields being used, which had reached its capacity and led to a sewer hookup moratorium. An RIB is basically a large deep hole filled with gravel designed to accept large volumes of liquid and disperse the liquid into the water table – basically a super septic leach field.

In 2007 voters approved $6,368,000 to install an system of three RIBs with an engineered average capacity of 600,000 gallons per day (gpd), more than enough to handle current and projected town needs. When the system was completed in 2009 the sewer moratorium was lifted, but within 48 days, as reported below, signs of failure appeared. The town subsequently installed two additional RIBs to compensate for scaling back on the amount disposed in the original three basins, but the problems with surface breakouts continued.

Since then the town has partially reactivated into effluent spray fields and reduced RIB disposal to an average of 200.000 gpd over the last seven months, according to Ford, but there are still issues even at that level of disposal.

The following statement, read by Ford, gives the rest of the history up to and including the lawsuit. It is unedited except for clarifying notes in brackets [ ]:

"Wright-Pierce (W-P) Engineers was contracted by the Town in 2005 to study and recommend a long term plan that would resolve our Wastewater Effluent Disposal problem. W-P recommended, permitted and engineered the Rapid Infiltration Bed (RIB) site for 600,000 gallons per day (gpd) as an annual average. The site was placed into operation on March 4, 2009 and after 48 days of operation and an average daily flow of 494,000 gpd, the site showed the first signs of failure or "unexpected issues". From April of 2009 to January of 2012 the Town worked with W-P to determine the cause of the problem and a long term fix.

"Following the initial operation of the Site, an independent engineering firm, SW Cole produced a report which stated that because of the steep slopes at the Site, the maximum capacity of the Site was 340,000 gpd. In its civil action against WP, the Town initially alleged that W-P was negligent in their design and in breach of the warranties it had made to the Town and of its contractual obligations to the Town. Following newly discovered evidence obtained during the civil action, the Town subsequently amended its Complaint to include allegations of gross negligence and fraudulent misrepresentation as well as a breach of the NH consumer protection act. Both the Town's and WP's experts have stated that a geotechnical assessment of the Site should have been performed by WP during the design phase (which would have revealed that the Site's maximum capacity was 340,000 gpd).

"WP's strategy in the civil action has been to cause delay and to create confusion. Because of delays caused by WP, WP recently filed a Motion with the Federal Court to extend the time allowed for depositions and to move the trial date to April 2014. The Town, acting through its attorney did not oppose this part of the Motion. However, in the same Motion, WP also asked the Court's permission to re-open expert evidence and to introduce a new expert. If this was allowed the result would have been the reopening of depositions, the production of new expert reports, and responses thereto, and further delay. The Town, again acting through its attorney, opposed this part of WP's Motion. On Tuesday, November 19, 2013, the Court ruled in the Town's favor and did not allow WP to reopen expert discovery. Currently WP also has a Motion to Compel the Town to allow the "new expert" to visit the Site (the Town had previously refused to grant access) pending with the Court. The Town's attorney has requested that WP voluntarily withdraw this Motion, in the event that WP does not do so, the Town will oppose this Motion and seek to recover the costs of doing so from WP.

"A major point of contention between the parties is whether the Site can be repaired so as to dispose of an annual average of 600,000 gpd. This issue is heavily dependent upon the NHDES [New Hampshire Department of Environmental Services] and its interpretation of local and federal laws. A second determining factor is the cost of any repair and whether it makes economic sense to 'fix' the Site. The Town's experts remain steadfast in their opinions that applicable laws and the conditions at the Site mean that the Site cannot be repaired and must be abandoned.

"W-P has requested mediation on numerous occasions. However, WP has not moved off its initial position that it is not responsible for the damage to the Site and will not contribute to either the repair of the Site or compensate the Town, that is, make the Town whole, for the monies spent on the Site to date. Given WP's position, the Town has taken the view to date that it would not be productive to mediate this matter with WP. The Town remains open to the idea of mediation in the event that WP's position changes.

"Details of this history were provided to the BOS on April 17, 2013. Below is an updated status update of lawsuit:

"1 - Depositions

a. Town attorney [HinckleyAllenSnyder, (HAS)] have completed 5 depositions

b. HAS has more to take and 4 to complete (need a second day)

c. There are 4 third party Depositions to take by both sides

d. W-P Attorney [Donavan & Hatum, (D&H)] has taken 3 depositions, with

4 more to take.

e. Remaining depositions have been scheduled and should be completed by end of year

"2 - Motions Outstanding

a. D&H has submitted a Motion to Compel a Site Visit. Unless D&H voluntarily withdraws this Motion (as requested by HAS), HAS will submit an opposition on Wednesday [Nov. 20]

"3- Time Table

a. The trial is scheduled for April of 2014

"4- Discussions with NHDES

a. The Town is participating in negotiations with NHDES regarding the future operation of the Site. The Town has allowed WP to participate in these discussions with NHDES. The Town has been advised not to discuss issues related to these discussions as both NHDES and WP have taken the position that the discussions are confidential and privileged.

b. The Town is also in Court this Friday [Nov. 22] opposing a private citizen's lawsuit regarding the confidential mediation versus the Right to Know law. Again the Town has been advised not to discuss details of the discussions between the Town, WP and NHDES."

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