Newport
At its meeting on Monday, the Selectboard authorized the town’s attorney, Rhian Cull of Manchester, to sign the settlement, under which Newport will receive $2.75 million from the engineer on the project, Los Angeles-based AECOM, and $650,000 from WesTech, a Utah company that built the disc filters that failed to sufficiently reduce phosphorus in treated water discharged into the Sugar River. Newport will pay $75,000 to Penta Corp., of Moultonborough, N.H., the company that constructed the system.
Town Manager Hunter Rieseberg said the plant, which sits near the Sugar River off North Main Street, is still not operating as mandated by the federal Environmental Protection Agency. He said the town is in the final design stage for construction on the plant, which he believes will begin in 12 to 24 months.
“We had to start from zero again,” Rieseberg said.
Newport will be paid in installments between now and December 2019 under the agreement. Rieseberg said the money will go into the sewer fund and will “settle a good deal of the debt” the town incurred for the work. He did not say what the final cost of the project will be.
Penta had sued the town in 2015 for about $300,000, charging breach of contract for failing to pay the full amount under the agreement. The town countersued, saying Penta did not fulfill all aspects of the contract and the plant was still discharging phosphorus at levels exceeding EPA limits.
“Despite Newport’s combined payment of more than two million dollars to both AECOM Technical Services (the engineering firm named in the third-party complaint) and Penta, the wastewater treatment facility continues to fail to consistently reduce phosphorus,” said the town’s counterclaim filed in Merrimack County Superior Court.
In all, there were nine claims, including the original suit, countersuit, third-party claims and cross-claims.
“The case has been vigorously litigated,” Merrimack County Superior Court Judge Richard McNamara said in an April 23, ruling regarding the flurry of filings. “Motions, sometimes based upon tort claims which do not exist, or strained readings of the straightforward contract documents have fallen into the Court’s file like autumn leaves.”
In 2009, the town was ordered by the EPA to correct the phosphorus problem and submit a report on how it would bring the plant into compliance by October 2012. The town hired AECOM, and at the annual Town Meeting in 2010, voters approved bonding up to $5.4 million for the work.
Penta was awarded the construction contract in early 2012, and WesTech subsequently signed a purchase order to supply the disc filters, which were designed by AECOM. Construction began in March 2012 and was finished in December of that year.
Court documents say that between December 2012 and early January 2013, Penta and WesTech conducted several tests of the phosphorus treatment system.
“The town concluded that the (wastewater treatment facility) was not able to consistently reduce phosphorus in the treated wastewater to sufficiently comply with the (New Hampshire Department of Environmental Services) permit,” documents say. “The town eventually shut down the filter system in April 2015, declaring it a total loss and taking steps to design and construct a new system.”
Penta acknowledged the filters were not working effectively but said they were built by WesTech to the specifications designed by AECOM.
In its third-party complaint against AECOM, Newport said NHDES blamed the failed filters on AECOM placing the wrong value on the phosphorus levels in the pretreatment lagoons in the contract document. Court documents state that AECOM admitted a “transcription error” in the contract led to the incorrect value but said the filter maker used the correct data. The town in April 2012 claimed that Penta submitted a filter to AECOM that “differed from the disc filters designed around and shown on the plans.”
The settlement states that none of the parties involved admit to “liability or fault” and are barred from any further legal action against one another. WesTech also can retrieve the disc filters from the project along with any instrumentation, controls and related equipment at its own expense. Each party is responsible for its own legal fees.
Patrick O’Grady can be reached at pogclmt@gmail.com.
Correction
A lawsuit over work done in 2012 at the Newport wastewater treatment plant was filed three years ago, in 2015. An earlier version of this story, and its headline, misstated when the litigation started.
