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Sewer fight moves to high court

  • Lola Duffort/Monitor staff



Monitor staff
Friday, February 24, 2017

Pembroke is appealing to the state Supreme Court after a superior court judge ruled last month that Allenstown doesn’t have to share the profits or the increased capacity from recent projects at the Suncook Wastewater Treatment Facility.

The two towns have shared costs at the facility since it was built in 1977, although the plant belongs to and is situated in Allenstown. In 2005, with the system operating at capacity, the state put a moratorium on all new connections.

At around the same time, Allenstown began partially treating septage from commercial haulers for a fee. Because of the moratorium, Allenstown only dewatered the haulers’ septage, trucking the solid sludge off-site. The program paid for its own costs – not ratepayers – and didn’t impact the plant’s overall capacity, according to the order.

The commercial septage program also accumulated significant revenues, and in 2012, Allenstown officials used the extra dollars to pay for a water main repair on Oak Street. Allenstown voters in 2009 also approved a warrant article that allowed sewer officials to use the commercial septage account to match a federal grant and pay for improvements that increased the plant’s capacity. 

Pembroke contended in their suit that Allenstown could only use the commercial septage profits for things that benefited sewage system users in both towns. They also argued they were entitled to access to the increased capacity that resulted from the 2009 renovations, called the BioMag project.

But Superior Court Judge Diane Nicolosi disagreed, arguing in a 23-page ruling that Pembroke had agreed to terms of the contract between the towns that gave Allenstown the right to decide how to use the commercial septage profits. She also noted that Allenstown owned the plant, and that the septage hauling service wasn’t costing Pembroke anything.

“Pembroke has contributed nothing to the dewatering operations that resulted in the revenue. In fact, Pembroke has received an indirect benefit from the related plant improvements and the conservative accounting used by Allenstown,” she wrote in her order.

Similarly, Nicolosi argued that Pembroke had contributed nothing – and was owed as much – where the project increasing the plant’s capacity was concerned. Her order mentioned the many times Allenstown officials put proposals before voters to fund improvements at the plant. Pembroke, on the other hand, never asked its voters to pay or notified Allenstown that it had enough money on hand to contribute, Nicolosi said.

“Without evidence that Pembroke was involved at any stage of the funding, design, and implementation of the BioMag project or suffered any loss as a result of the project, it would be unfair for it to benefit from a project wholly accomplished by Allenstown,” Nicolosi wrote in her order. 

The Select Board has decided to fight Pembroke’s appeal, Allenstown town administrator Shaun Mulholland said Monday. He added that Allenstown didn’t want to see development in Pembroke stymied because of maxed-out sewer capacity, and hoped to work with its neighbor toward a solution.

“We need to work together. And that’s one of our primary goals,” he said.

 

(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)