New allegations in RIB lawsuit

The town is filing an Amended Complaint in the RIB lawsuit that contains a new Allegations of Fraud.  In the process of discovery they have reviewed Wright Pierce’s  (WP) emails, included as Amended Complaint Exhibits, and seem to feel they have uncovered a deliberate case of fraud.  In amending the case they are also now asking for treble damages.

Here’s the bullet:  WP hired a specialist to develop a computer model of the RIB operation.  They wanted to use it to predict the “mounding” (That’s the rise in water level under the RIB that spreads out across the water table) and the time it would take for the effluent to reach various key points such as wetlands and nineteen mile brook.  These are questions the State wanted answered for the permitting process.

Throughout the early design, the model was tested at various steady state loads – that’s a time period long enough that everything reaches equilibrium and nothing changes from day to day.

Early in the process, runs were made at various flow rates:  600,000, 800,000, and 1,000,000 gallons per day (gpd).  The most conservative model (that means worst case) indicated some potential “breakout” at 600,000 gpd.  Our attorney’s are saying that this means that WP knew from the start that it couldn’t handle the design flow, and that they covered it up.

The modeler said he could make the breakout “go away” by changing various parameters of the model.  Our attorneys are saying that he was offering to doctor up the model to get the RIB approved.  I read that email and, as an engineer,  it sounds to me like he was saying that the breakout scenario was the most conservative (worst case) assumptions and that if any of the parameters are actually more favorable, the problems “go away”.

The attorneys allege that in the memo, the modeler says that he was provided with insufficient data to accurately construct the computer model.  What I read is that he had insufficient data to model the breakout area well enough to determine if there isn’t already a spring or other outflow there.

Early on, the WP project guy mentioned in an email back to the office from his February vacation to the Caribbean that he would love to have the RIB permitted for 800,000 gal and also stated that would be the highest rated rib in the country.  Our attorney’s are saying that proves WP defrauded Wolfeboro to gain bragging rights.  It’s easy to believe that WP would want the highest possible capacity, and indeed, I bet Mr. Ford wanted the same thing.  The attorney’s don’t bring this up but in a later email it is revealed that the most compelling reason to shoot for 800,000 gpd was so that the town could rely on the RIB alone without the effluent storage pond (ESP).

The fact is that they eventually got a permit for 600,000 and these emails clearly show that  WP was not comfortable with 800,000 gpd and intended to develop a usage protocol that included buffering peak loads in the ESP.

WP is faulted in several of the allegations for not disclosing work-in-progress to Mr. Ford.  In those cases, it looks to me like the information in question was either incomplete or verbal.  It seems like it would have been irresponsible and counterproductive to keep Mr. Ford apprised of the day-to-day problem solving that is, after all, what engineering work is.

It is true that WP told Mr. Ford that the site could handle 600,000 gpd while they were aware of breakout problems in the worst case simulation at that rate.  At the time the 600,000 gpd breakouts were being discussed, it seem as if the final location of the various RIB beds had not been determined, so I’m not sure if that problem was resolved by actual design changes before the final report was made.  There is an exchange where WP asserts that even though the simulation people are saying 800,000 and 1,000,000 are OK, they believe that breakout does occur at 800,000.

While WP had confidence in the 600,000 gpd average rate, they seem to have been reluctant to advocate for flows of 800,000, even if offset by lower flows in preceding months.  They seem to have explored it, but indicated that the average was better achieved by maintaining 600,000 gpd using the ESP as a buffer.

In reading through the emails, I didn’t get the slightest notion that WP was doing anything other than straightforward honest engineering.  It’s true that the system today has a significantly lower capacity, and that perhaps mistakes were made. Maybe WP is incompetent, or was negligent, but there are brutally honest post failure emails from the simulation guy that says he suspects that the assumptions about the composition of the soils was off.  From these emails I think they sincerely believed that it would work fine at 600,000 gpd.

All this happened in Feb and March.  WP incorporated the results of the modelling in it’s phase III hydrological study and the town subsequently had it reviewed by Weston & Sampson (W&S).  They recommended some changes to the modeling parameters which I understand were done, and the results were the basis for approval of the 600,000 gpd permit by NHDES.

The town, during the first three weeks of operation, ran the thing at much greater than 800,000 gpd.  I don’t have any documentation of the instructions given to Mr. Ford about how to commission the RIB, but that seems to be when the damage was done.  It seems like it would have been prudent to run the thing at 600,000 gpd or less until steady state was achieved and the model could be re calibrated to real world conditions.  In trying to calibrate their model better using real data from the first month, they were hampered by confusing data that was collected by our operators Woodward and Cullen.

The modeller says that he had requested more monitoring be included in the project so that he could better correct the model to real world conditions once it was started up.  That scope of work was rejected, though it’s not clear if it was rejected by WP or the Town.

The town has said that they were told that the RIB could handle 600,000gpd average and that means that it could handle higher loads in transient mode.  I haven’t seen any evidence of that produced in either the original or amended complaint.  What I see is WP designing a disposal SYSTEM that uses the storage pond to buffer high flow months with a constant loading at the RIB of 600,000.  That’s what these emails seem to be saying, that’s what the models simulate, and the failure that the town experienced was clearly caused by substantially higher sustained flows to the RIB.

You can read the allegations of fraud and the emails for yourself.

I’m not a lawyer, and I have no idea how this will turn out, but I read a lot of John Grishom and this could easily be a chapter about one of the money grubbing big law firms that he so colorfully depicts.  As a juror, they would have a hard time convincing me of fraud based on these emails, then again, there is no way any responsible lawyer would ever let me anywhere near a jury box.

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