I’ve had some time to go over the ongoing filings in the RIB lawsuit, and talked to a few people, and here’s my take.
This motion to include allegations of fraud with associated treble damage is the whole ball game for the town. Without it, I don’t think the risk and expense is worth the potential return. Lawyer’s I’ve talked to say that it would be unlikely that the town would receive any reimbursement for legal fees, especially if any part of the RIB failure is found to be due to actions on the town’s part. Putting treble damages on the table, and the potential to drag WP through the mud for fraud might increase their willingness to settle.
We should find out soon if the court is going to go for it. Each side has presented different versions of the activity in 2007 when the system was proposed, and in 2009 when it was completed and started up. By themselves, both sides present good arguments. But when you step back and look at the whole picture, it’s hard to understand the basis for the fraud claim.
Without a doubt, the system isn’t working at anywhere near the design and permit capacity. I think right now it’s down to about 25%. So mistakes were made. Expensive mistakes. But what our attorney’s are claiming just doesn’t make sense.
Why would WP design and have the town build a system if they knew it wouldn’t work? Our attorney’s say it was to get the design fees and to profit by enhancing their reputation. I can’t see how building a system that failed so miserably enhances their reputation. Does anybody think they will be hired to build more failed RIBs? With respect to the fees, WP was under contract to find a solution to the NHDES administrative order that imposed a moratorium on new sewer connections. They could have continued to investigate other solutions and received fees to implement something that would work.
All of this alleged falsification of the model and fraudulent claims were made prior to the phase III Hydrogeologic report that was used to obtain approval from NHDES before the town committed to buy the land and build the system. Seems like if the model showed the capacity would be 300,000 or 150,000, they would have said so, pocketed the fees for investigating that site, and moved on to study another solution.
The email trails show there are at least half dozen people at WP who would have had to be in on any conspiracy to defraud Wolfeboro and misrepresent the potential of the site. How does an otherwise reputable firm suddenly become a den of scheming hustlers? Only a lawyer could make that accusation with a straight face. Why would a consultant whose stock in trade is producing accurate hydro geologic models offer to falsify his work product? How much would they have paid him to do it? Would it be enough to justify ruining his reputation? It doesn’t make any sense whatsoever.
We have a tough problem with sewage effluent. When the town went with a sewer system, the state was saying that they would put in an interceptor to take the effluent away. They did so on the other side of the lake. Spray fields were an interim solution. Our experts say that the hilly RIB site was a bad choice. But was there a better site? Several were studied. The others had problems and WP said so. We looked at expanding the spray fields. That was a PR nightmare with the threat of eminent domain. Some people wanted to freeze it and let it melt in the spring and summer. Everybody wanted this to work, and thought it would. It’s basically a big leaching field on the outskirts of town. Unfortunately, even though the site passed the “perk” test, there apparently are soils inside the hill that are not as permeable as was thought.
So mistakes were made. And there’s some bad luck. And without arguing about who’s at fault – there’s the overloading. A part of me wants to see a happy ending for the town, and another part is disgusted with the tactics that the town’s attorneys feel compelled to use to win at any cost. To my mind the bottom line is that everybody did what they are supposed to do and things still went wrong. I think our lawyers know this and realize that a “common garden variety” suit as they call it will result in a small verdict, probably apportioned according to responsibility where the town’s overloading will be a significant factor. So they’re trying to trump it up into something it isn’t.
One thing I failed to consider about this suit is the entertainment value. OJ step aside.