1993-09-28 Work Session
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
JOINT CITY/COUNTY WORK SESSION, SEPTEMBER 28, 1993
BOOK 23
PAGE 729
ASSEMBLY
The New Hanover County Board of Commissioners held a joint
Work Session with the Wilmington City Council on Tuesday, September
28, 1993, at 5:30 P.M. in Council Chambers of the City Hall located
at 102 North Third 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 Copley; and Clerk to the Board, Lucie F. Harrell.
Council Members present were: Mayor Don Betz; Mayor Pro Tem
Katherine B. Moore; Councilman Richard C. Snyder; Councilman Edward
L. Evans; Councilman J. D. Causey; Councilman Michael Youngblood;
Councilman Hamilton E. Hicks, Jr.; City Manager, Mary Gornto; City
Attorney, Tom Pollard; and City Clerk, Penelope Spicer-Sidbury.
Chairman Greer called the Board of County Commissioners to
order and stated the purpose of the Work Session is to discuss EPA
requirements for cleaning up the New Hanover County Airport Burn
pit Site.
Mayor Betz called the Wilmington City Council to order.
STATUS REPORT ON THE AGREEMENT RELATING TO THE CLEAN UP OF THE
AIRPORT BURN PIT SITE
City Attorney, Tom Pollard, presented the following status
report on the clean up of the Airport Burn pit Site:
1. The final draft of the Consent Decree has not been received
from EPA. After discussion with the EPA attorney, an extension has
been granted in order to allow North Carolina officials to meet
with EPA officials to discuss the application of the State's
revised groundwater rules to the burn pit site. The meeting should
occur next week, which will extend the EPA deadline from the end of
the federal fiscal year, September 30, 1993, into the new fiscal
year, October 1, 1993. No specific date has been given for the
time extension.
2. The negotiations with the U. S. Army Corps of Engineers are
suffering from a lack of information in being able to determine the
risks at the burn pit site which creates the following problems:
(1) difficulty for the City and County to evaluate the appropriate
amount for the Corps of Engineers to pay; and (2) difficulty for
the Corps to evaluate the ultimate clean up cost of the site in
order to ascertain their portion of payout on that basis.
Discussion has been held on performing an additional year of
groundwater monitoring on the site, which would be accomplished
under the Record of Decision. If this occurs, the Corps will
consider paying 25% of the cost for monitoring, and if a State
groundwater reclassification is pursued, the Corps will consider
paying 25% of this cost. If a bill is received from the past clean
up costs, the Corps will consider paying a portion of this;
however, they are concerned about paying oversight costs, but will
consider costs related to remedial investigation and the
feasibility study. Proceeding along these lines will depend upon
whether or not the additional year of monitoring is performed. The
Record of Decision provides for the additional year of groundwater
monitoring; however, there is confusion as to whether or not some
of the monitoring has been performed since the Record of Decision
was completed. Staff has proposed to EPA a schedule that will
provide for one year of groundwater monitoring at the site. At the
end of this year, the components of the Remedial Design would be
discussed. During the additional year of monitoring, the data may
indicate there is some natural attenuation of the contaminants, and
in addition, it may be possible during this period of time to
perform some of the work toward the groundwater reclassification
which may impact the remedy at the site.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
JOINT CITY/COUNTY WORK SESSION, SEPTEMBER 28, 1993
BOOK 23
PAGE 730
In summary, the question to be answered is whether the
additional year of monitoring will be performed in the context of
the Consent Decree or in the context of the unilateral
Administrative Order issued by EPA.
Attorney Pollard reported a request for proposals has been
circulated during the month of August. The request asked each
proposer to submit a lump sum amount for the performance of the
Remedial Design/Remedial Action as set forth in the Record of
Decision for the burn pit site. Proposals were received from the
following firms:
Environmental Investigations
Four Seasons
Law Engineering
National Environmental Technologies
Richard Catlin and Associates
$446,680
$664,900
$938,119
$711,000
$571,200
After review, Staff recommends award of a contract to Richard
Catlin and Associates, a local professional engineer with expertise
in pump and treat as well as experience with State groundwater
standards. Both governing bodies were requested to proceed with
the following action: (1) award the consulting contract in order
to move forward with additional groundwater analysis of the site so
work can be performed relating to the groundwater reclassification;
(2) adopt a resolution entering into an agreement between the local
Potentially Responsible Parties as to the funding of the work; and
(3) adopt a resolution entering into an agreement with the u. S.
Corps of Engineers for 25% payment of the additional monitoring
contingent upon finalization of the terms.
Mayor Pro Tem, Katherine Moore, expressed concern for
releasing the Department of Defense/Corps of Engineers from their
full responsibility in sharing the cost of the clean up and
inquired as to what advantage it would be for the City and County
to enter into an agreement with the Corps when they should be
equal partners? Also, when reviewing the consulting contract, the
cost will be paid by the City, County, and Cape Fear Community
College without any cost being paid by the Corps of Engineers.
City Attorney Pollard explained that the U. S. Department of
Defense is being represented by the Corps of Engineers; however,
Superfund guidelines do state a federal party can be held just as
responsible as any other party. The question as to whether the
Corps will equally share the responsibility will not be decided
under the proposed agreement. The proposed agreement would require
the Corps of Engineers to pay 25% of the first year's cost. At the
end of the first year, an agreement would be negotiated for an
appropriate amount to be paid by the Corps to the responsible
parties. The agreement will continue the current arrangement with
the Corps for payment of 25% of the removal action costs. At the
end of this year, it is hoped that more data will be developed on
the vertical extent of contamination on the site. It appears there
is a clay layer across the site with no contamination below this
layer; however, if there is vertical contamination, then the remedy
would be pump and treat.
Mayor Pro Tem Katherine Moore, again, reminded the Council
Members and County Commissioners of the costs to the City and
County and stated the U. S. Department of Defense is in a much
better position financially to handle costs involved with the clean
up. Therefore, each responsible party should pay their fair share.
City Attorney Pollard reported if the City and County do not
enter into the Consent Decree, EPA will issue the unilateral
Administrative Order excluding the U. S. Corps of Engineers,
because EPA cannot sue the Department of Defense or another federal
agency. If an agreement is not reached with the Corps of
Engineers, the City and County will have to perform the work and
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
JOINT CITY/COUNTY WORK SESSION, SEPTEMBER 28, 1993
BOOK 23
PAGE 731
then sue the U. S. Department of Defense to pay their share.
Filing a lawsuit would risk forfeiting the 25% share now being
agreed upon by the U. S. Department of Defense through the Corps of
Engineers as well as the additional costs associated with a
lawsuit. The Corps has been cooperative but has firmly refused to
pay the $900,000 with 25% of costs in excess of $3,600,000.
Mayor Betz commented on the importance of the Potential
Responsible Parties equally sharing clean up costs and recommended
inserting a paragraph in the Consent Decree that will clearly state
the City and County will pursue legal action against the Department
of Defense for their fair share.
City Attorney Pollard agreed but stated the concept of the
Consent Decree is to allow the City and County to reach an
agreement with the Corps of Engineers for a buy-out figure that
would be referenced within the Consent Decree.
The following questions were asked by Chairman Greer with the
following responses from the City Attorney, Tom Pollard:
1. What responsible parties paid the $452,000 clean up fee?
Response: U. S. Army Corps of Engineers
City of Wilmington
New Hanover County
25%.
25%.
50%.
2. Who is currently performing the monitoring at the site?
Response: EPA has performed an additional sampling of the
site in June and July. The results of the test indicate the
levels of contaminates are moving around, but overall it
appears the contaminates are going down.
3. What party estimated the cost of $100,000 for continued
monitoring of the site?
Response: The estimated cost was presented by EPA.
4. Under the contract with Richard Catlin and Associates, what
will the charge be for the first year, and what services will
be provided?
Response: The cost for the first year will be $33,000 for the
performance of monitoring and deep well construction to
determine the vertical extent of contaminants.
5. will it be dangerous to drill through the clay as proposed by
EPA?
Response: Staff has expressed concern to EPA about additional
drilling. There is a Type III well construction process
whereby the well is encased to ensure that no contaminants are
introduced from up above to down below. The firm of Richard
Catlin and Associates is highly qualified and experienced in
Type III well construction.
After further discussion, Chairman Greer recommended entering
into a contract for monitoring of the site for one year. He
strongly opposed entering into the Consent Decree or releasing the
Corps of Engineers from their responsibility. Continued monitoring
of the site will ensure the site is not damaging anyone or
anything, and in his opinion to spend millions of dollars to pump
and treat water out of the ground is not right.
City Attorney Pollard reported from a legal point of view if
the Consent Decree is not signed, a Unilateral Administrative Order
will be issued which will order the Potential Responsible Parties
to perform the work set forth in the Record of Decision. This will
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
JOINT CITY/COUNTY WORK SESSION, SEPTEMBER 28, 1993
BOOK 23
PAGE 732
mean the County will have to perform the pump and treat remedy as
outlined in the Consent Decree, and the remedy could include the
first year of monitoring. If the City and County do not comply to
the deadlines outlined in the Administrative Order, the statutory
requirement is a $25,000 per day penalty. Also, if the City and
County decide not to follow the EPA remedy, EPA will perform the
work at a much more costly figure.
Discussion was held on events that occurred since the visit to
Washington, D. C. by City and County officials. City Attorney
Pollard reported the State and EPA have discussed how the newly
revised State groundwater rules may apply to the site. There is a
potential meeting between the State and EPA next week to discuss
this matter. The State is very supportive of the groundwater
reclassification for the site, but the method of removing the site
from the Superfund list is still unknown. Hopefully, the
Congressional Delegation in Washington will be working with the
State on the reclassification and removal of the site from the
National priorities List.
Chairman Greer emphasized the fact that if the water is
reclassified by the State, there lS no assurance that the proposed
EPA remedy will be changed.
A lengthy discussion was held on award of the bid to Richard
Catlin and Associates in the amount of $571,200 for a period of
four and one-half years. Chairman Greer recommended requesting
staff to prepare a bid package to receive a one-year quote for
monitoring the site in order to show a "good faith" effort. This
will provide time to examine the extent of vertical contamination
and apply to the State for the groundwater reclassification.
Discussion was held on the importance of hiring a firm well
qualified to perform this type of well drilling. Assistant County
Manager, Dave Weaver, commented on the technical knowledge and
expertise needed by the firm selected to perform this work and
stated the firm of Richard Catlin and Associates is quite
experienced in this well drilling.
County Environmental Director, Ray Church, reported the State
has the same concerns as EPA relative to contamination below the
clay layer. At the local meeting with State officials, emphasis
was placed on the need to hire a firm to monitor the site that will
be able to provide the pertinent data necessary to answer and
address the contamination concerns. The firm of Richard Catlin and
Associates is capable of providing this type of information. Also,
to hire a firm for one year and then bring in a new firm at the end
of the year could create confusion for all parties involved.
Chairman Greer expressed concern for awarding a contract to a
firm that is $100,000 more than the low bidder.
County Manager O'Neal commented on the possible risk involved
with the well drilling and stated the firm of Richard Catlin and
Associates is not only highly qualified but performs its own well
drilling instead of contracting out this work. Also, the bid
proposal submitted is in phases and will perform the monitoring for
the first year.
Chairman Greer, again, strongly objected to the pump and treat
method recommended by EPA at a cost of $3.5 million and stated if
this occurs, the County will have to decide at that time if they
are willing to pay this amount of money.
Councilman Snyder agreed with Chairman Greer as to the
unreasonable costs for the proposed clean up but stated, in his
opinion, the City and County have no choice but to comply to the
unilateral Administrative Order in order to avoid being penalized
$25,000 per day.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
JOINT CITY/COUNTY WORK SESSION, SEPTEMBER 28, 1993
BOOK 23
PAGE 733
Motion: After discussion of making a "good faith" effort,
Chairman Greer MOVED, SECONDED by Commissioner Barone to request
the City and County Attorneys and members of the City and County
staff to prepare a bid package for the monitoring of the Airport
Burn pit Site for one year. Upon vote, the MOTION CARRIED
UNANIMOUSLY.
Councilman Evans expressed concern for not fully understanding
the work to be performed by the consulting firm and recommended
hearing a presentation from the firms submitting proposals in order
to understand the well drilling process and any potential risk that
could occur from the performance of this work.
Consensus: After further discussion of not desiring to hear
presentations from all firms submitting bids, it was the consensus
of the Board to allow the bids to be prepared by staff with a
recommended bid award presented to the governing bodies at which
time the bidder will make a presentation on the scope of services.
Discussion was held on the resolution to enter into an
agreement with the U. S. Army Corps of Engineers. City Attorney
Pollard reported on the importance of entering into an agreement
with the Corps to ensure their participation in funding a portion
of the clean up costs.
Motion: Vice-Chairman Mathews MOVED, SECONDED by Commissioner
Sisson to adopt a resolution authorizing New Hanover County to
contract with the U. S. Army Corps of Engineers for funding of a
portion of the remedial design/remedial action at the New Hanover
County Airport Burn pit Site. Upon vote, the MOTION CARRIED
UNANIMOUSLY.
A copy of the resolution is hereby incorporated as a part of
the minutes and is contained in Exhibit Book XXI, Page 23.
Consensus: After discussion of the proposed resolution authorizing
the agreement among the local responsible parties, it was the
consensus of the Board to request the City Attorney to re-draft the
resolution reflecting the changes. The drafted resolution is to be
presented to both governing bodies for adoption at the next joint
Work Session.
REQUEST FOR FUNDING OF INDEPENDENCE BOULEVARD EXTENSION IN THE 1995
TRANSPORTATION IMPROVEMENT PLAN
Councilman Youngblood requested the County Commissioners and
City Council to write a letter to the Chairman of N. C. Board of
Transportation to request that funds be included in the 1995
Transportation Improvement Plan for the Independence Boulevard
Extension.
Consensus: After discussion, it was the consensus of the Board for
the County Manager to prepare a draft letter for the Chairman to
slgn.
ANNOUNCEMENT OF CONGRESSIONAL HEARING ON SMALL BUSINESS DEVELOPMENT
IN TOURISM TO BE HELD ON OCTOBER 4, 1993
City Manager, Mary Gornto, announced a Congressional Hearing
on Small Business Development in Tourism will be held in Wilmington
on Monday, October 4, 1993, at 10:00 A.M. in the City Hall
Chambers. The hearing is being conducted by the U. S. House of
Representatives Small Business Committee, Subcommittee on
Procurement, Taxation and Tourism. Congresswoman Eva M. Clayton
serves on the committee and will be present. The Commissioners and
City Council Members were invited to attend.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
JOINT CITY/COUNTY WORK SESSION, SEPTEMBER 28, 1993
BOOK 23
PAGE 734
ADJOURNMENT
Motion: Commissioner Sisson MOVED, SECONDED by Commissioner Caster
to adjourn. Upon vote, the MOTION CARRIED UNANIMOUSLY.
Chairman Greer adjourned the meeting at 6:10 P.M.
Respectfully submitted,
Lucie F. Harrell
Clerk to the Board