Lawsuit threatens to stall daylighting project
TRENTON » The city has scared the daylights out of Veolia Energy Trenton.
The utility company is trying to stop the city from moving forward with demolition of a concrete culvert that it says could cause a “catastrophic collapse” and destroy thermal and chilled water lines.
The lawsuit threatens to hold up progress on the much-heralded Lower Assunpink Creek Daylighting Project. The city and project partner United States Army Corps of Engineers (USACE) are named in the lawsuit filed this week in state court. It has since been moved to federal court, records show.
Veolia Energy wants the oft-delayed $8 million daylighting project indefinitely shelved until the city agrees to install “shoring” to prevent a potentially devastating collapse that could damage utility lines providing service to 35 customers in Trenton’s business district.
The lines were installed in the 1980s in an area governed by an easement agreement the city had with Trenton District Energy Company (TDEC). TDEC was succeeded by Veolia Energy Trenton, which owns and maintains the thermal and chilled water lines that sit atop a stretch of the concrete culvert nearest South Broad Street, according to the lawsuit.
The utility lines service federal, state, city and county buildings, including the Department of Environmental Protection — a staunch supporter of the daylighting project — the Statehouse, War Memorial, Edison College, Mercer County Community College, City Hall, the Mercer County courthouses and the troubled Lafayette Park Hotel & Suites, the lawsuit said.
Attorneys for the utility company presented the demolition of the damaged concrete culvert as a potential crisis.
“A total or partial collapse of the culvert and resulting damage to plaintiff’s lines would likely result in … personal injuries, death, lengthy service interruptions to a large portion of downtown Trenton, lost profits and/or lost resources for all individuals and entities impacted,” attorney Christopher Torkelson wrote in the lawsuit on behalf of Veolia Energy.
The restoration project included demolition and removal of a 475-foot collapsed concrete culvert that has housed a stretch of the creek flowing underneath downtown Trenton.
Boston-based Charter Contracting Company LLC was awarded a $4.7 million contract to help complete the three-phase project transforming the dilapidated concrete patch into a two-acre green space, with the creek running through the middle of the park.
The restoration efforts were expected to be finished this fall but that timeline may be derailed if litigation isn’t quickly resolved.
An emergency state court hearing was set for Thursday morning before the case was moved because it involves a federal agency. A district court judge scheduled a status conference for July.
In the meantime, the two sides must meet to see if they can work out differences and come to an agreement.
The city didn’t immediately respond to a request for comment on the lawsuit. And the sides appear distant from a deal, as the utility company’s lawyers chided the city in a letter attached to the complaint for its “do-nothing approach.” The city contends the utility company never voiced opposition to reconstruction efforts until now.
“What you have mis characterized as the city’s ‘ do nothing approach ’… was the project team’s choice to remove the area of the Veolia pipe crossing the project area. This decision was made approximately two years ago,” city law director Walter Denson wrote in a letter in February. “There has been no prior claim from Veolia that this change caused any harmor discomfort to Veolia, nor are there any reports that Veolia ever challenged the revised plan at the time.”
The utility company’s lawyers outlined in the complaint that the city balked on a previous agreement to foot a $1.7 million bill to temporarily relocate the utility lines and reinstall them after repairing the part of the culvert where the lines are located.
In 2016, the city “unilaterally changed” that proposal due to lack of funding, replacing it with a plan to remove most of the concrete culvert leaving only a 70-foot remnant underneath the lines.
Veolia Energy is concerned about the “structural integrity” of the concrete culvert during demolition because it collapsed in 2006 as a result of rusted steel that weakened metal beams.
Citing USACE reports and letters describing the culvert roof as being in “very poor” and “failing” condition, the utility company tapped another engineering expert that concluded the culvert roof’s structural deficiencies make it “imperative” for installation of support beams that help prevent collapse, before demolition.
The city so far has refused to delay the project to install the shores, the lawsuit said.
“There is a substantial risk that if the culvert roof is further weakened when the proposed remnant is severed from the balance of the culvert causing the proposed remnant to suffer a total or partial collapse, the results will severely jeopardize and/or damage the public health, safety and welfare because the lines are located in Trenton’s central business district,” the lawsuit said.
“The shoring of the culvert, or the proposed remnant, ensures and safeguards the public health, safety and welfare by preventing the potential for a catastrophic collapse of the culvert, which would damage plaintiff’s water lines and release destructive energy from the failures of plaintiff’s water lines … The city has knowingly, willingly and recklessly refused to undertake the necessary shoring of the culvert before commencing demolition in violation of its duty of care to plaintiff and to the public.”