Published in the Ocean County Observer
BY LAWRENCE MEEGAN
STAFF WRITER
TOMS RIVER — Dover Township officials can appoint an observer to monitor United Water's performance while they await a decision by the state on whether the water company's franchise can be revoked, a Superior Court judge ruled yesterday.
Following a hearing yesterday, Judge Vincent J. Grasso ordered the water company to pay the observer, who must be an engineer with appropriate licenses. The decision will be in effect until the state Board of Public Utilities hears the township's request to revoke United Water's franchise to provide water.
"This is a great day for Dover Township," said Councilman Brian Kubiel, who represents Ward 2, the area of the township that suffered a water outage over Memorial Day weekend.
"The residents can breathe a little easier," said Mayor Paul C. Brush. "The judge approved the appointment of an overseer, which is what we asked for."
The township did not get all that it wanted, however. On June 2, the township and both fire districts filed a lawsuit asking for the appointment of a custodial receiver to oversee and direct the company's operations. It also sought an order to place company records in the care of that receiver.
Grasso rejected that approach, opting for the observer instead. Grasso also said his ruling should not be used to prejudice the BPU decision on whether United Water's franchise should be revoked.
Richard W. Henning, United Water's vice president of communication, said United Water officials want to examine the judge's decision before making a decision on whether to appeal.
"In regards to a consultant, we feel the judge was very careful to reject the town's contention that a receiver was necessary. He also rejected the town's contention compelling us to "not destroy documents,' " Henning said.
Yesterday's hearing was the result of an increasingly acrimonious relationship between Dover Township and United Water. The township filed a petition with the BPU on March 2 to revoke United Water's franchise, following the utility's failure to inform state and township officials in a "timely manner" that radiation levels in some of the water wells exceeded safety levels.
Township and United Water attorneys agreed it will be at least six months to a year before the board hears the petition.
United Water and its predecessors have been providing water to township residents since 1897, when a perpetual franchise was granted to Toms River Water Co. The company was charged with providing "pure and wholesome water" to the village of Toms River and Dover Township, according to the suit.
Toms River Water Co. was later acquired by United Water.
Grasso also ordered the company to set up meetings with the two township fire districts to review operations along with protocols and procedures they should follow in the event of reduced water pressure. The meetings are to be held at least once per month, he said.
"This assures me that the water company will be looked at," said George Condry, chairman of Toms River Fire District 1. "We will have proper water and notification."
A DECADE OF PROBLEMS
During yesterday's hearing, Township Attorney Mark Troncone said the company's failure to deliver water for hours on Memorial Day was the latest in a string of problems and precipitated the lawsuit.
On Monday, May 29, more than 7,300 homes were without water for at least two hours, creating a fire response emergency. Water tankers from Dover Township, Jackson and Manitou Park were sent to strategic locations in the affected area and remained in position throughout the night.
"We have a tanker task force," said Kevin Brady, chairman of Toms River Fire District 2. But without notification from the water company, he added, fire officials were unable to determine the extent of the problem and how to deploy its resources.
At the time, Dover Township officials were unable to contact water company officials for information about the situation and had to go out to find them, said Township Council President Gregory P. McGuckin.
The township's lawsuit recounted problems with the water company over the past decade, including:
— Its exceedance of the state Department of Environmental Protection's water allocation permit in three of the past five years.
— Construction of water main extensions without proper permits from the state Bureau of Safe Drinking Water.
— Issuance of "will serve" letters to township residents in spite of the water exceedances.
— Failure to report exceedances of radiological nuclides in drinking water to state and federal agencies in a timely manner.
"This is not an isolated incident," Troncone said of the Memorial Day mishap.
The township has no confidence in United Water, he said, claiming the company does not respond to problems until prodded by legal action.
UNITED WATER'S DEFENSE
Mark Mucci, who also represents United Water, said the company has been forthcoming in reporting problems. After an internal investigation concerning radiation exceedance, the company submitted a report to the state Attorney General's office.
"We've clearly demonstrated our willingness to be open and honest regarding all these recent events," Henning said.
He also spoke of remedies the company has instituted recently.
"We put in a new management team," Henning said, "and we've been putting radionuclide treatment on wells as quickly as possible. Well 31 has treatment, the Parkway wells will have treatment by the end of this month, and we are working with the community around the Berkeley well field to find the best way to install the treatment."
Mucci said the responsibilities of the receiver, as proposed by the township, already are being performed by state agencies and therefore would be redundant.
Pam Goodwin, an attorney for the water company, questioned the court's standing in hearing the case. She argued the power to hear such issues is vested in administrative agencies such as the BPU because they have expertise in the area.
Grasso disagreed with Goodwin and ruled his court did have standing to hear the case.
"There wasn't a lot of precedence for municipalities to go to court on this issue," Troncone said after the decision was announced. "On the other hand, no law is out there that said we couldn't."
Goodwin deflected a charge made by Troncone that the water company altered documents. She said that was not true, but did admit the company failed to deliver them as required by state and federal agencies.
POSITIVE REACTIONS
Both the township and water company walked away with positive feelings about the judge's decision.
"We think the judge made the right decision," Troncone said, adding, "I think the events of Memorial Day weighed heavily in his decision."
While the judge did not approve a custodial receivership, it did provide for an independent person to monitor and oversee the water company's activities, McGuckin said.
"I think the judge got the feeling of frustration we experience," McGuckin said. "It appears the judge agrees you can't trust United Water. They have not always been forthcoming with us, and they have a horrible track record."
United Water officials felt the judge's decision focused on improving communication between the township and the water company, Henning said.
"We'd be encouraged to meet with the fire department and OEM (Office of Emergency Management) to establish better procedures," he said.
"Even the hiring of a consultant may be viewed positively," Henning said, "by (offering) a better understanding of the state's regulatory oversight."
Published in the Ocean County Observer on 06/14/06
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