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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