Source: http://www.wacotrib.com, July 8, 2016
By: J.B. Smith
A city of Waco lawsuit against the Kleinfelder engineering firm over a soil cleanup job is moving to trial after an unsuccessful mediation attempt this week.
The lawsuit, filed in October in federal court in Waco, alleges that Kleinfelder’s failure to properly identify toxic soil from the old Southwest Chemical site near McLane Stadium added $1.1 million to the remediation project. The lawsuit seeks that amount as well as legal fees associated with the suit.
The case is expected to go to trial in October, City Attorney Jennifer Richie said after a daylong mediation session Thursday.
“The parties were not able to successfully mediate our dispute,” Richie said, adding that the details of the mediation remain confidential.
The lawsuit filed on Oct. 26 in the U.S. District Court, Western District, alleges breach of contract and negligence on Kleinfelder’s part. Kleinfelder has countersued, asking the judge for a declaration that Kleinfelder had no liability for the added cost under its agreement with the city of Waco.
Michael Goldman, attorney for Kleinfelder, said the problem arose because the city of Waco decided, against Kleinfelder’s advice, to ship soil to the Waco Regional Landfill, where it got mixed together.
“Kleinfelder was not the consultant at the city’s landfill and is not responsible for their mismanagement,” said Goldman, an attorney at Guida, Slavich and Flores in Dallas.
At issue is a prime piece of real estate at Interstate 35 and Martin Luther King Jr. Boulevard, near the entrance of Baylor’s new football stadium. The site is being considered for a major sports medicine center involving Baylor University and Baylor Scott & White Hillcrest.
The five-acre site housed a pesticide plant from 1950 to 1968 that contaminated the soil and groundwater beneath it. The city acquired the property in a tax foreclosure in 2006 and spent years cleaning it up at a cost of $2.8 million.
Kleinfelder won contracts in 2010 and 2012 to oversee remediation and ultimately received more than $1 million from the city.
Kleinfelder’s testing indicated that 40 percent of the dirt on-site could be classified as “Class 2” waste, meaning a low-level industrial waste that could be disposed of in a conventional landfill, according to the lawsuit. The rest was either nonhazardous Class 1 waste, requiring specialized landfill procedures, or hazardous waste.
On December 10, 2012, the city hauled 28 truckloads of the Class 2 waste to Waco Regional Landfill. Ten days later, sampling of those piles by another firm found high levels of toxaphene, an insecticide popular for cotton fields in the 1960s.
The city ultimately was required by state officials to move most of the dirt to other landfills permitted for hazardous or Class 1 wastes. That cost the city an additional $1.1 million, according to the lawsuit.
Final testing warning
Goldman said that when the city decided to haul the dirt to Waco Regional Landfill, Kleinfelder officials warned them that final testing had not been done. He said the Kleinfelder should not have to pay for the city’s decision to disregard its advice.
Goldman said soil was not properly segregated at the landfill, and then the piles got soaked with rain, with no lining beneath. The city had to scoop up extra soil beneath the piles, adding to the cost of soil removal, he said.
The city of Waco and its attorneys in the case from Naman Howell Smith & Lee declined comment on the specifics of the case. Both sides are seeking a jury trial.