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1994-02-01 Work Session NEW HANOVER COUNTY BOARD OF COMMISSIONERS JOINT CITY/COUNTY WORK SESSION, FEBRUARY 1, 1994 BOOK 23 PAGE 921 ASSEMBLY The New Hanover County Board of Commissioners held a joint meeting with the Wilmington City Council on Tuesday, February 1, 1994, at 5:30 P.M. in Room 501 of the New Hanover County Administration Building, 320 Chestnut Street, Wilmington, North Carolina. Members present were: Commissioners Sandra Barone; WilliamA. Caster; William E. Sisson, Jr.; vice-Chairman E. L. Mathews, Jr.; Chairman Robert G. Greer; County Manager, Allen 0' Neal; County Attorney, Wanda M. Copley; and Clerk to the Board, Lucie F. Harrell. Council Members present were: J. D. Causey; Laura Padgett; Hamilton Hicks, Jr.; Charles Rivenbark; Mayor Don Betz; Mayor Pro Tern Katherine Moore; City Manager, Mary M. Gornto; City Attorney, Thomas C. Pollard; and City Clerk, Penelope Spicer-Sidbury. Chairman Greer called the New Hanover County Board Commissioners to order for the purpose of discussing the Hanover County Airport Burn pit Superfund Site and selection consultant for the remedial design/remedial action (RD/RA) required by the EPA. of New of a work Mayor Betz called the City Council to order. Chairman Greer reported the Board of County Commissioners adopted the recommendations approved by the City Council and voted unanimously to take the necessary legal action to include the u. S. Defense Department (or its representative the Corps of Engineers) and the State of North Carolina on behalf of Cape Fear Community College into the remedial action. The County will not sign the Consent Decree and will wait until a unilateral Administrative Order is issued. DISCUSSION OF SELECTING A CONSULTANT FOR PERFORMANCE OF REMEDIAL DESIGN/REMEDIAL ACTION REQUIRED BY THE EPA FOR CLEANUP OF THE SUPERFUND SITE City Attorney Pollard reported on the importance of being ready to perform the work when a unilateral Administrative Order is issued. After discussion with the EPA earlier today, it has not been determined if the Corps of Engineers and/or Department of Defense should be included in the unilateral Administrative Order. Once an order is issued, the time frame for selecting a consultant will be short. Request for proposals were advertised on July 31, 1993. Five firms submitted proposals as follows: Environmental Investigations, Durham, N. C. Four Seasons Industrial Services, Inc., Greensboro, N. C. Law Engineering, Wilmington, N. C. National Environmental Technologies, Wilmington, N. C. Richard Catlin & Associates, Wilmington, N. C. $446,960 $664,900 $938,119 $711,000 $571,200 Representatives from the City and County staffs interviewed Law Engineering; Environmental Investigations, and Richard Catlin & Associates on September 1, 1993. The Committee evaluated the firms and their proposals based upon the costs for Remedial Design and Construction; operation and maintenance costs; past work with EPA and the State of North Carolina; technical expertise; personnel including current work load; solvency of the firm; and location of the firm. The Committee recommends proceeding to negotiate an agreement with Richard Catlin & Associates based on the following terms with a final agreement to be presented to the City Council and County Commissioners for approval. One of the strengths of Catlin & Associates is that this company will perform the work with its own NEW HANOVER COUNTY BOARD OF COMMISSIONERS JOINT CITY/COUNTY WORK SESSION, FEBRUARY 1, 1994 BOOK 23 PAGE 922 personnel except for lab analyses. Terms of the Aqreement: 1. The issuance of a notice to proceed to perform the work under the agreement would be subject to the EPA's issuance of an unilateral Administrative Order and subject to the approval of Richard Catlin & Associates by the EPA. 2. The work under the agreement would be performed under a phased approach. The contractor would not proceed from one phase to the other without approval of the City and County and the contract could be terminated at any time. The proposed phases would include at a minimum: (1) Remedial Desiqn: (a) Review of alternative technologies including chemical oxidation, bioremediation and air sparging. (b) Review of application of new North Carolina Groundwater Standards to the site. (c) Construction of deep groundwa ter to determine the contaminants. wells and analyses vertical extent of of the (d) Design of a pump and treat system. (2) Remedial Action: (a) Installation of pump and treat system as required by the Record of Decision. (b) Implementation of other remedies subject to approval of the EPA. (3) Operation and Maintenance: (a) Operation of pump and treat system as required by the Record of Decision. (b) Operation of other remedies subject to approval by the EPA. As to alternative technologies, it will depend on the cost and risk the City and County are willing to take. The EPA mayor may not accept some alternative technologies. If money can be saved, it may be worth looking at alternative technologies. Once the remedial design phase is completed and a response has been received from the EPA, the City and County will know how to proceed to the next phase. Also, the contract would be structured so that if some form of relief is given through congressional action or amendments to the Superfund, the contract could be terminated. Once the EPA response is known, then the City and County can proceed with the remedial action which may be pump and treat or some other remedy. Mayor Betz requested the City Attorney to list the members of the Committee that reviewed the proposals. City Attorney Pollard reported the Committee was composed of the Assistant County Manager, Dave Weaver; Director of Environmental Management, Ray Church; Environmental Specialists, Dennis Burks; and City Attorney Tom Pollard. The proposal was essentially the Record of Decision from the EPA. Mayor Pro Tern Catherine Moore inquired as to whether there will be language in the contract with the consultant that will cover the City and County under the negotiated price for the design NEW HANOVER COUNTY BOARD OF COMMISSIONERS JOINT CITY/COUNTY WORK SESSION, FEBRUARY 1, 1994 BOOK 23 PAGE 923 of another alternative, particularly if a portion of the work has to be subcontracted? City Attorney Pollard reported the design of an alternative would be negotiated with the consultant and brought back to both governing bodies. If the record of decision is amended, the alternative would have to be integrated into the process and the EPA convinced that the cleanup process would not be delayed. The price quoted from Richard Catlin & Associates is for the pump and treat method as listed in the Record of Decision. Commissioner Caster expressed concern for not understanding the services that will be received for $571,200 and stated the remedial design and remedial action must be performed. He questioned the services received. City Attorney Pollard reported the $571,200 is for a turn-key pump and treat operation. The review of alternative technologies and N. C. Groundwater Standards is not required in the Record of Decision and will be extra. Also, if an alternative technology is proposed, this method must be approved by the EPA. Chairman Greer inquired as to what would happen if the City and County decide not to do anything when the unilateral Administrative Order is received? City Attorney Pollard reported when the unilateral Administrative Order is issued there is no pre-remedy review. The statutes specifically state that the Federal District Court has no jurisdiction of an action challenging an unilateral Administrative Order. There is the potential for a $25,000 fine per day and if the EPA performs the work, they could seek treble costs. Chairman Greer inquired as to what would happen if the City and County refuse to pay treble costs? City Attorney Pollard reported the City and County would be facing some form of a court procedure which would occur after the remedial action has been performed. Discussion was held on reviewing any precedent setting cases where the unilateral Administrative Order was not followed to see what action was taken. City Attorney Pollard reported statutorily, the EPA is compelled to seek recovery of the costs, which is the driving force behind cleanup. This is also why there has been no relief from the congressional delegation since by statute, this work must be performed. Discussion was held on moving forward to select a consultant to avoid additional costs that would be incurred if the EPA selected a consultant to perform the work. Chairman Greer asked if the pump and treat method is started and another alternative is found, do you think the EPA would modify the treatment method? City Attorney Pollard stated proceeding with the Record of Decision, which is the pump and treat method, would allow the City and County to make this type of an argument; however, this does not mean that the EPA will modify the Record of Decision. From the first meeting with EPA officials, the City and County plainly stated they felt the pump and treat method would not clean the site up to this standard and recommended that some alternative technologies be investigated. The response from the EPA was that the remedy listed in the Record of Decision must be performed and the City and County would have to convince them of any other alternative. NEW HANOVER COUNTY BOARD OF COMMISSIONERS JOINT CITY/COUNTY WORK SESSION, FEBRUARY 1, 1994 BOOK 23 PAGE 924 Chairman Greer inquired as to whether quotes should be obtained on an alternative that would essentially perform the same cleanup? Director of Environmental Management, Ray Church, reported EPA investigated other alternatives such as chemical oxidation, bioremediation, and air sparging which were eliminated with the pump and treat method being required. The design work requires more than just pump and treat, such as additional data on whether there is contamination below the clay layer and additional information about the characteristics of the site, which will require pump tests. This information is considered in the design; therefore, any alternative would probably fit into the pump and treat design. Discussion was held on the request to continue monitoring the site for one year. City Attorney Pollard reported he requested the EPA to amend the Consent Decree to allow the City and County to perform additional testing for one year. This request was rejected by the EPA. Councilman Youngblood commented on the importance of bringing all parties that used the site into the remedial action and recommended that staff move forward as quickly as possible to identify the additional parties. If legal assistance is needed, perhaps the City and County should contract this service to speed up the process. Discussion was held on the services that will be provided under the contract with Richard Catlin & Associates. City Attorney Pollard reported the $571,200 was the number received in evaluating the bid for the pump and treat system. The request to review alternative technologies will be extra. Staff would proceed to negotiate with Richard Catlin & Associates with the agreement to be presented to both local governments for final approval. Chairman Greer inquired as to whether the $571,220 included the committees, plans, drafts, etc. as listed in the Consent Decree. City Attorney Pollard reported the consultant would be required to perform a Health and Safety Plan for the site; a Sampling Analysis Plan for the site; and all items listed in the document. Commissioner Barone commented on being able to use another remedy and asked if you stayed with the same consultant, would there be a way to stop the present process and begin an alternative remedy? City Attorney Pollard reported the EPA would have to approve an alternative remedy. If this was approved, the new alternative would be incorporated into the contract with the consultant. Mayor Betz reported the design is flexible enough to allow the use of alternative technologies. Motion: After further discussion, Commissioner Sisson MOVED, SECONDED by Vice-Chairman Mathews to direct staff to proceed to negotiate a contract with Richard Catlin & Associates, Inc. based on the pump and treat method with the possibility of adding alternative technologies on a parallel tract if included and approved by the EPA. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Barone Commissioner Sisson Vice-Chairman Mathews NEW HANOVER COUNTY BOARD OF COMMISSIONERS JOINT CITY/COUNTY WORK SESSION, FEBRUARY 1, 1994 BOOK 23 PAGE 925 Voting Nay: Commissioner Caster Chairman Greer ADJOURNMENT Chairman Greer expressed appreciation to the members of the Wilmington City Council for attending the Special Session and adjourned the meeting at 6:30 P.M. Respectfully submitted, Lucie F. Harrell Clerk to the Board