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Blue Array warns Toledo about possible suit over sewer plans

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A presentation from Blue Array to the Toledo City Council Sept. 16 left officials with more questions than answers as they were told their efforts to build a new $9.6 million sewer plant may be in vain.

Blue Array CEO and co-owner James Reilly said he has found errors in statistics published by engineering firm Gray and Osborne and told the council there was no legal basis, according to his findings, for the city to invest in a new wastewater treatment plant, despite years of effort and more than a million dollars already spent toward such a goal.

"For the last month," stated Reilly, "I’ve been trading emails with people from [the Department of] Ecology and Gray and Osborne and I still haven’t been able to find a paper trail that shows that, in fact, the laws have been followed to the letter of the law that shows an actual requirement that is, in fact, a requirement that necessitates a new treatment plant."

His contention, both during the presentation and in his emails (to which Toledo was also a party), is Gray and Osborne failed to use up-to-date information on population growth and average influent flows when helping the city move forward with plans for a new plant, and that growth estimates published in a 2008 Facilities Plan have differed by as much as 50 percent when compared to current figures.

He also pointed out it has been seven years since the city’s plant last violated its discharge permit to such a degree as to require an upgrade and said the plant could presumably last another five years in its current condition.

Mike Johnson, project manager for Gray and Osborne, responded during the meeting and said the violations in 2006, at which time the plant exceeded 85 percent capacity for three months in a row, were all that was needed to trigger the process of researching a wastewater treatment plant upgrade. He also said a total of 27 violations have occurred in the last tens years and said the plant is currently receiving more influent that it was designed to safely contain.

"All three of those are legally-defensible reasons why reasonable people would think that we should probably begin the planning process and design of a new treatment facility," he said, adding estimates published in the 2008 Facilities Plan could not have accounted for the market crash of that year in addition to the inherent unpredictabilities of small town growth.

And in response to statements about not using up-to-date information, Johnson said it would not have been possible to publish current statistics in the 2008 report, and that a more recent pre-design report from 2011 only had access to data available as current as 2010.

Reilly responded and implied Gray and Osborne has been manipulating information to persuade Toledo to buy a new sewer plant, stating his analysis of the same information used in their justifications—when analyzed objectively, he said—shows the city’s population and its average flows have not grown enough to need a new plant.

Reilly went on to say, if Toledo continues to pursue a plant using present arguments to justify their efforts, he feels they may not be able to legally keep the $6.4 million in grants already acquired for plant construction, and may stand to lose them through a lawsuit.

"There is not a shred of fact-based evidence provided in the FP [Facilities Plan] or the UFP [Updated Facilities Plan] for the City of Toledo to justify their grants," he stated in an email sent Sept. 12 to Toledo, Ecology, and Gray and Osborne. "No doubt it [his analysis] will trigger a lawsuit to contest them."

In the same email, he said there would likely be political backlash against sitting officials if Toledo does not allow Blue Array to test their system in the city, similarly to tests being conducted in Vader.

"If the City of Toledo blocks our solution from being tested in Toledo," he said, "there will be candidates for office and citizens that will be very unhappy, that will likely use it as a tactic to block Mayor Pratt from ramming the G&O oxidation ditch down their throats."

Reilly refrained from such rhetoric during the meeting and the council did agree to invite Blue Array back to present their wastewater treatment technology in detail at the Oct. 7 council meeting. It has been the contention of Blue Array, since beginning to pursue cities in Lewis County as test sites for their portable sewer treatment plants in 2011, that they intend to save millions of municipal dollars by providing sewage treatment at a small fraction of the cost of conventional options.

When asked to weigh in on the issue of whether the city is in a legally-defensible position to seek a new sewer plant, City Attorney Bill Boehm stated Gray and Osborne has been a reliable firm to do business with and has been subject to due scrutiny from the state and has, from what he can see, provided all the legal justification necessary for Toledo to pursue a sewer plant upgrade at this time.

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