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With nearly $100 million on the line, attorneys for Tampa Bay Water and HDR Engineering didn't hesitate to delve into design details as they offered their opening arguments in the federal jury trial on March 13 in Tampa. As ENR reported last December, Tampa Bay Water is suing HDR Engineering, Omaha, for the cracking occurring at its six-year-old, 15.5-billion-gallon reservoir in Lithia, Fla., for which HDR served as designer of record.
The suit centers on unusual and significant cracking--which the attorneys are calling "settlement cracking"-- that is occurring in two separate sections of the reservoir's embankment layer. Constructed of soil-plate cement, the embankment was expected to experience cracking under normal conditions. HDR contends the problem areas can be addressed with roughly $8 million in repairs. Tampa Bay Water contends the cracking reveals a flaw in HDR's engineering that requires a complete redesign and reconstruction of the reservoir's embankment. The utility is proceeding with a $162.4-million contract with Kiewit Infrastructure Group of Omaha to repair and expand the reservoir.
The lawsuit centers on the cause of cracking at Tampa Bay Water's 15.5-billion gallon C.W. Bill Young Regional Reservoir in Lithia, Fla. The reservoir, which remained fully functional despite the cracking, will undergo reconstruction beginning as early as this fall. That's when a design-build team led by Kiewit Infrastructure Group plans to initiate construction work on its $162.4-million contract to repair and expand the facility. (Photo courtesy Tampa Bay Water.)
The competing attorneys provided widely varying descriptions of the cause of the cracking, with both sides either implying subtly or alleging overtly of deceit from the other party.
Tampa Bay Water's attorney, Richard Harrison, was quick to offer the jury a primer on engineering terms like "stair-step cement," "flat-plate cement" and "geomembrane" before moving on to his main goal of attacking HDR's credibility. Harrison highlighted numerous documents that showed various HDR officials denying that the cause of the more significant cracking--which originally began as early as 2006--was improper construction. Now, however, Harrison argues, with the utility's finger pointing squarely at HDR for blame, the engineer is suddenly contending the cracking is a construction problem.
Harrison also noted that HDR twice certified to the state of Florida that the reservoir was built in accordance to its design.
The Tampa Bay Water attorney repeatedly addressed one leading theory of the cause of the cracking, excess pore pressure. This theory contends that upon drawdown, water is getting trapped behind the soil-cement layer, thus causing excess pressure in the embankment, and leading to the settlement cracks.
Harrison argued that early in its investigation of the problems that HDR continually cited this as the probable cause of the cracks, and contended that this would constitute a design error. Again, he repeated that HDR, now faced with nearly $100 million in damages, was suddenly changing its tune by now arguing that excess pore pressure had nothing to do with the cracking.
Harrison concluded by explaining that the utility came to its $97 million* total for damages by obtaining an independent design for a potential fix, and seeking estimates for that fix by another entity. He told the jury, "Tampa Bay Water doesn't want anything, not a nickel, that we're not entitled to."
HDR's attorney, Wayne Mason, eventually cited documents that he alleged Tampa Bay Water had been hiding from the engineering firm that showed data indicating no increase in pore pressure.
But first he told the jury, "It's as if the truth is the opposite of what's been told to you." In fact, he said, "There is no design defect at the reservoir, and they know it."
Instead, Mason alleged the cause for the lawsuit is Tampa Bay Water's desire for a reservoir with a greater drawdown capacity than the one originally designed by HDR, and that the utility began "maneuvering" toward this goal prior to its termination of HDR's contract. He introduced a document that showed TBW officials stating, "Prepare to find $100 million" for an improved reservoir.
Mason also showed evidence that Tampa Bay Water told Black & Veatch--which had been hired to investigate the problems--that the utility's primary goal was to obtain a permit for a higher drawdown rate at the reservoir. The existing reservoir's embankment cannot support a higher drawdown rate, and therefore would require reconstruction. Finding an error in HDR's design would support a higher damage award, HDR contends.
Allegations of cover-up and conspiracy concluded Mason's arguments. He alleged the utility hid photos of what he described as the "game changer" of the case. In these photos, HDR contends improper compaction is revealed, due to a significantly greater depth of soil material being compacted than would be properly specified. E-mails from Black & Veatch officials who analyzed the photos in question raised the theory of improper compaction as a likely cause of the cracking. Mason alleged TBW hid the photos and questioning e-mails from HDR while it was conducting its investigation of the cause of the cracking, and further asserted this as proof of the utility's ulterior motives.
* At the time of ENR's December report, Tampa Bay Water specifically stated it was seeking $97 million in damages. In court today, the utility's attorney, Richard Harrison, mentioned $92 million as a possible total.