This week’s editorial in the Grunter portrays my position in the RIB lawsuit more accurately than last week, but there are still some pretty important points that need to be corrected.
While much has been made of a 600,000 gallon per day capacity requirement that NHDES asked for in 2007.
THE TOWN DOES NOT NEED THE ABILITY TO DISPOSE OF 600,000 GALLONS PER DAY.
We currently handle a daily average of 400,000 gallons or so, and the trend has been down rather than up. We simply have no present or anticipated need to handle 50% more wastewater. There is no credible scenario where the town’s effluent disposal needs increase to anywhere near that amount.
I sat through the entire trial and didn’t hear any convincing testimony that the RIB site was improperly designed. While it was shown that slope stability issues should have been anticipated, they in fact were. The 2007 Phase III report by Wright-Pierce says it could happen, as well as wetland erosion issues as we also have experienced. But considering that the town only had a need to actually use the site at 400,000 – 450,000 gallons per day, they advised waiting to see what would happen and spending the additional money to reinforce the slopes on an as-needed basis.
What they did not count on was the town using a whole winter’s worth of effluent to severely overload the system during the first two months of operation. Expert after expert, from both sides, testified that the site was never actually run at it’s design capacity of 600,000gpd. It was started up and run at 800,000 – 950,000 gpd and subsequently the slopes did fail. Wright-Pierce did not learn the full extent of the overloading until the actual chart recorder records were produced in the lawsuit.
Wright-Pierce contends that that initial overloading caused damage that continued to erode the site for years. Now, even at reduced flows, there are channels that cause water to seep from the hillsides at elevations above the predicted discharge areas. I picture these to be much like natural springs where groundwater has found a low resistance path to the surface. The only difference is that these are man-made and in violation of the permit as they represent “discrete discharges”. The slope remediation plan would fix that.
The town contended that the hillside contained an impermeable layer that severely restricted it’s capacity. At trial, no evidence was presented that indicated the original modeling was fundamentally flawed. While the town’s experts were saying that Wright-Pierce did not adequately investigate the composition of the soils at the site, they could show no evidence that the data used in the modeling was substantially wrong.
In December 2013 and February of this year, the town, along with it’s experts, dug a bunch of test pits at the site. What they reported was that the wetlands were……. wet. Our expert, Mr. Bowden from Fuss&O’Neil, wrote an opinion that the site was doomed because additional effluent flow in the wetlands would come to the surface.
Wright-Pierce’s experts at Haley and Aldrich responded that the town’s “expert” was applying a standard for groundwater recharge that is contrary to industry understanding, and that under the Fuss&O’Neil theory of the applicable regulations, the site could not have possibly been permitted in the first place. The wetlands are supposed to be wet, and groundwater originating from the RIB beds is supposed to “recharge” the surface water in these areas.
Fuss & O’Neil’s contention that all water must remain in the ground all the way to nineteen-mile brook is contrary to what was anticipated in the original design. Much of the effluent is supposed to recharge the existing and newly created wetlands. The ability of the wetlands to further absorb and process nutrients is a major consideration in the system design.
NHDES apparently sides with Wright-Pierce’s experts. They said in their letter that the remediation plan plan should be implemented. Their representatives at trial said that their preference was to work with the town and Wright-Pierce to fix the site.
All of this pit digging and opinion publishing on the eve of the trial was a direct response to the demonstrated feasibility of the remediation plan. They were desperately building a new argument to convince the jury that the site was a total-loss. Wolfeboro’s attorneys waited until their last word in closing arguments to claim that the problem was in the wetlands. Wright-Pierce’s experts, or even their attorney, had no opportunity to refute it.
We need to uncouple the town’s outrage that the system doesn’t handle 600,000 gallons per day from the town’s needs. Before the town asks for millions to build new disposal facilities, they need to tell us why they will not consider what it will cost, both initially and operationally, to fix the system we have now to serve our actual needs. We can argue about who pays for it, but at the end of the day, we need a system that works and it’s in everyone’s best interest to be objective.
Bob, why are you re-litigating this case? Didn’t a jury decide it already? I disagree with your assertion that we only need a 400 thousand gallon capacity because we, as voters, changed our zoning about 6 years ago, which opened up at least 75 more building parcels in the village residential zone.
First off, you can’t re-litigate what has not been fully litigated. The litigation has been indefinitely stayed. It looks as if Wright-Pierce’s negligence insurance will just about cover the legal costs to date, and in all likelihood, Wright-Pierce cannot and will not pay tens of millions in damages. We may be able to settle for them paying to fix the RIB, but my sense is that if the town just wants cash, there will be a long exhaustive appeal followed by a bankruptcy if they fail. There’s also the real possibility that Wright-Pierce’s motion to dismiss based on subject matter jurisdiction will be granted.
My residential home uses about 100 gallons/day. Let’s be generous and say that 75 new residences will be built and they will use twice my amount – or 200 gallons per day. That’s 200 x 75 = 15,000 more gallons per day, or less than a 4% increase. It would take 1,000 new homes, in the sewered areas of town, at twice my usage rate, year-round, to bring us up to 600,000 gallons per day. How many have been built in the six years since the zoning was changed? Do the math.
More to the point, we cannot have a situation where the town generates an average of 600,000 gpd of wastewater because that’s the maximum daily capacity of the treatment plant which is not buffered by a storage pond as the RIB system is. There would be no room for weather related or seasonal variations.