By Bonnie Adams, Managing Editor
Marlborough – A long, ongoing dispute between the city of Marlborough and the contractor WeCare Environmental LLC continues on, after a federal court judge recently granted a partial summary judgment in the case.
WeCare has managed the composting facility located next to the Easterly Wastewater Treatment Plant since 2003, after taking over for Bedminster Marlborough LLC. The company has three years left on a 20-year contract to process the city’s residential trash and sewage sludge.
WeCare uses treated effluent from the Easterly plant in its composting process, then collects that waster and pumps it back to the plant for final treatment.
But after two pumps failed last July, the city shut down WeCare’s facility for nearly two weeks, claiming that “harmful effluent emanating” from it would damage the Easterly plant equipment, which was in the midst of a $45 million renovation.
At the time the city also claimed that “unpleasant odors” were being emitted from the plant.
On July 28, WeCare filed a counter suit and asked a federal court to seek a temporary restraining order and injunction against the city, claiming that the city violated its contract.
After the two sides were unable to come to terms through mediation, the matter went before U.S. District Judge F. Dennis Saylor IV, who issued a preliminary injunction ordering the plant reopen Aug. 11.
According to its contract, the city is committed to pay a minimum monthly fee. If the city does not meet the minimum waste that must be processed, they are, according to the contract, to pay a different amount, based on a number of factors. WeCare contends that the city did not pay the proper amount for the months of August 2013, February 2014, July 2014, August 2014 and September 2014. City officials counter that they did pay the correct amount.
As a result, the contractor asked the judge to rule that the city pay the correct amounts plus any associated fines.
However, Saylor ruled that “to the extent WeCare seeks an award of damages on the basis of that interpretation, such a remedy would be inappropriate at this stage. There is a disputed issue of facts between the parties as to the proper amount owed, and the court cannot grant summary judgment to a counterclaim-plaintiff under these circumstances.
“Accordingly, the motion for a summary judgment be denied to the extent that WeCare seeks full payment of this invoices at this time.”
The 1998 agreement also requires that the city “pay reasonable attorneys’ fees and court costs incurred by WeCare if WeCare successfully demonstrates that the city has failed to meet a payment obligation.”
As part of its case, WeCare is requesting “that the city must pay interest on amounts not timely paid plus WECare’s attorney fees.”
However, Saylor again denied the request, noting “The calculation of any such amount would be premature at this stage of the litigation.”
Also in contention is the issue of charges for sewer use. The city subtracted nearly $100,000 in “sewer credits” from its payments to WeCare for services rendered in the months of December 2013 to November 2014.
“Neither the 1998 Agreement, nor the city’s Sewer Use Ordinance, authorizes, the city to impose charges for sewer use on WeCare,” Saylor ruled. And again, he ruled that because “the litigation is ongoing, the Court will not calculate a damages award based on imposition sewer fees at this time.”
The judge did rule that per the 1998 Agreement, WeCare was entitled to immediate, round-the-clock access to its facility.
After the latest decision was rendered, WeCare spokesperson that company officials estimate that the city “could now owe the company upwards of about $1 million in payments, attorneys’ fee and interest.”
Mayor Arthur Vigeant’s office issued this statement: “The City of Marlborough has concerns that WeCare is violating its contractual obligation to compost the trash the City provides their facility. WeCare has also failed to eliminate the significant odor issues related to their facility. The City is continuing to pursue a lawsuit related these violations of the contract; we intend to prove our case as the process moves forward.”