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1994-03-21 Special Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERS JOINT SPECIAL MEETING, MARCH 21, 1994 BOOK 23 PAGE 985 ASSEMBLY The New Hanover County Board of Commissioners held a joint special meeting with the Wilmington City Council on Monday, March 21, 1994, at 8:00 A.M. in Room 501 of the 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 Copley; and Deputy Clerk to the Board, Teresa P. Elmore. Ci ty Council Members present were: J. D. Causey; Laura Padgett; Charles Rivenbark; Michael Youngblood; Mayor Pro Tem Katherine B. Moore; Mayor Don Betz; City Manager, Mary M. Gornto; City Attorney, Thomas C. Pollard; and City Clerk, Penelope Spicer- Sidbury. Councilman Hamil ton E. Hicks was absent and Commissioner William E. Sisson, Jr. arrived late for the meeting. Chairman Greer called the New Hanover County Board of Commissioners to order for the purpose of discussing the unilateral Administrative Order issued by the u.S. Environmental Protection Agency concerning the New Hanover County Airport Burn pit Superfund Site. Mayor Betz called the Wilmington City Council to order. Chairman Greer reported on Friday, March 18, 1994, Mayor Betz, City Attorney Pollard, City Manager Gornto, County Manager O'Neal, Environmental Director Ray Church and he met with E.P.A. officials in Atlanta, Georgia, to discuss the possibility of receiving some relief from the Administrative Order issued by the EPA. The group talked with the Director of the Southeast Region, Joseph Franzmathis, and Kurt Fame. Although the men were cordial and listened to their concerns, the EPA informed the County by telephone this morning that no exception will be made to the Administrative Order. City Attorney Pollard recommended the City Council and Board of Commissioners approve the contract with Richard Catlin and Associates and give official notice to the EPA that the City and County intend to comply with the unilateral Administrative Order. Failure to comply by today could cause a penalty of $25,000 per day and the possibility of the EPA performing the work and charging the City and County for the cost of the cleanup. The Order requires preparation of a remedial design for the pump and treat system at the Burn pit and implementation of the remedial action. As directed by the Governing Bodies, staff negotiated the terms of a contract with Richard Catlin and Associates for this purpose. While setting up the pump and treat method, the contractor will explore other possible al terna ti ves for cleaning up the site including natural remediation. City Attorney Pollard reported if the site qualifies for natural remediation under the State regulations, the City and the County will have a better argument to persuade the EPA that the Order is arbitrary and capricious. Also if the pump and treat method is insufficient, then the argument can be made that natural remediation will work. If EPA agrees, another work plan will be re-negotiated with the contractor. The consultants have advised that the pump and treat method will not achieve the one part per billion standard established in the Record of Decision. It is hoped that a more cost-effective method to clean up the site is found. City Attorney Pollard introduced Richard Catlin of Richard Catlin and Associates, and the Project Manager, Rick Garrett, and NEW HANOVER COUNTY BOARD OF COMMISSIONERS JOINT SPECIAL MEETING, MARCH 21, 1994 BOOK 23 PAGE 986 stated the men were present to answer any questions the Governing Bodies may have on the work to be performed. He presented a project flow chart and "Exhibit A" of the Resolution which showed the cost figures of the contract for the remedial design/remedial action. The negotiated cost for the deep well installation and collection of groundwater data is $33,100; remedial design cost is $91,350; equipment cost for remedial action is $68,250; and installation of the pump and treat equipment is $73,500. Annual operating cost with a turn key operation by the contractor is $61,000 per year or operation and equipment checks by the PRP's is $35,000 per year. Costs for the natural remediation option are: $11,076 for an evaluation; $4,070 for a Corrective Action Plan; $14,680 for an evaluation of other remedial alternatives; and $7,680 for submittal of alternatives to EPA. Other provisions of the contract include bonding of the contractor and insurance coverage. Work is authorized on a phase by phase basis and each phase is bonded in the full amount of the cost of the phase. Actual cost of any alternative plan will be negotiated when the work scope is determined. City Attorney Pollard stated a main concern all along has been that the pump and treat system will not achieve the one part per billion standard and natural remediation or other alternatives should be considered instead of the pump and treat method. He contended the site is not harmful to anyone and the Order issued by EPA is arbitrary and capricious. The EPA is following the national contingency plan and it may be difficult to challenge. Mayor Betz asked what benchmarks are set in the design phase and does the insurance requirement cover the phases? City Attorney Pollard answered certain points will have to be reached in a timely manner. Once a schedule has been approved by EPA, the schedule will have to be followed or we will be in violation. There is a requirement in the contract that states the contractor will be assessed the penalty if negligent in meeting a deadline. Chairman Greer asked if the cost of treating the water at the City treatment plant is included in the figures presented and how will the pumped-out water get to the treatment plant. City Attorney Pollard answered the cost for treating the water at the treatment plant is unknown at this time. The proposed plan is to have the water pumped from the ground and run through a sewer line to the treatment plant. There may be extra cost involved if the waste water treatment plant is unable to receive the water. Also, a treatment system, of running air through water allowing the Benzene to dissipate, will be located on the site. Chairman Greer asked what affect will pumping water from the ground have on neighboring wells and is there any danger of contaminating the aquifer by the drilling? City Attorney Pollard answered the pumping would influence the wells; however, it depends on the distance of the wells from the location of the contamination. If the contamination is in the upper clay layer the impact will be less because most of the drinking wells are deeper. Mr. Catlin answered the danger of contamination from the drilling is minimal with the type of double cased well being installed. The question is whether the aquifer is contaminated already. The clay layer will be drilled and it is believed that the Wilmington treatment system can be used for the clean-up. Discussion was held on the Corps not listed as a PRP in the Administrative Order and the absence of the Corps at these meetings. City Attorney Pollard reported he has written a letter NEW HANOVER COUNTY BOARD OF COMMISSIONERS JOINT SPECIAL MEETING, MARCH 21, 1994 BOOK 23 PAGE 987 to the EPA asking why the Department of Defense was not included. The Corps is currently reviewing the contract at the district level in Kansas City. Although the Corps has agreed to pay 25% of the cost for the first year, the Corps wants to negotiate a buy-out cost. Councilman Youngblood stated he has been told that others were involved with using the burn pit and he felt some type of investigation should be made with legal action instigated against them. He felt the Governing Bodies would be remised to the taxpayers if liable individuals were not aggressively pursued. Chairman Greer commented there are cases of individuals or companies graciously donating fuels or helping in other ways as offers of good faith. Others should not be implicated in this process because the EPA has a reputation of having no mercy in filing suits against anyone minutely involved. In further discussion of other parties involved, County Manager O'Neal answered that staff has been looking into other PRP's and part of the problem is a lack of documentation of records. It could be determined that the City and County are more than 25% responsible. The City Fire Department and volunteer fire departments used the site for a number of years for fire training. Mayor Betz MOVED, SECONDED by Mayor Pro-Tem Moore, to reluctantly adopt the resolution, continued from Council's meeting of Tuesday, March 15, 1994, authorizing compliance to the EPA Order and approving the remedial design/remedial action contract for the clean-up of the New Hanover County Airport Burn pit Superfund Site. The floor was opened for further discussion. Commissioner Barone stated the Commissioners met with Representative Charlie Rose recently and asked him for assistance in the matter. He recommended the PRP's to do nothing and let the EPA do the clean-up and try to collect the money. County Attorney Copley cautioned the Governing Bodies that the EPA will enforce the $25,000 a day penalty because this is part of the Superfund law. City Attorney Pollard explained that the US District Court has no jurisdiction over the Unilateral Order; and Congress has given a powerful tool to the EPA that is used to the maximum. Mayor Betz reminded the Governing Bodies that Congress is working on the reauthorization of the Superfund Act. Everyone should talk with the Representatives, point out some of the difficulties we have encountered, and ask for appropriate language in the reauthorization that will address our situation. City Attorney Pollard explained the reauthorization law needs to consider the land use of the site and the potential of contaminants reaching any type of sensitive receptor. If the site qualifies for the natural remediation option, we should let our representatives know that changing the reauthorization would nullify the Order. Dr. Stone, Interim President of Cape Fear Community College, stated the College is willing to work with the City and County in dealing with the Order, but questioned if it is legal for the community college to sign a letter of intent or a contract since the General Assembly would have to provide a special appropriation for the college to fulfill this commitment. Whereas the City and the County have taxing authorities, the College is dependent upon the State for funds. Mayor Betz answered the City Attorney would provide the necessary notification of compliance to EPA; however, Dr. Stone NEW HANOVER COUNTY BOARD OF COMMISSIONERS JOINT SPECIAL MEETING, MARCH 21, 1994 BOOK 23 PAGE 988 should meet with the legal staffs to evaluate the college's situation. Mayor Betz called for a vote on the motion presented. vote, Council reluctantly voted unanimously to adopt resolution. Upon the Chairman Greer called for a motion by the Board of Commissioners. Motion: Mathews, Order by officials Associates. Commissioner Caster MOVED, SECONDED by Vice-Chairman to reluctantly comply with the Unilateral Administrative authorizing notification of compliance to the EPA and approval of contract with Richard Catlin and Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Barone Commissioner Caster Commissioner Sisson Vice-Chairman Mathews Voting Nay: Chairman Greer In further discussion, Councilman Causey suggested the City and County Attorneys meet with the Cape Fear Community College Board of Trustees to give an update on the proceedings. Dr. Stone stated Cape Fear Community College will act in good faith and will not shirk their responsibility in this matter. He accepted the invitation from Councilman Causey for the City and County legal staffs to discuss the information with the Board of Trustees. In other business, it was decided that the Commissioners would select a date for the joint work session on funding of outside agencies at their Regular Meeting and the date would be submitted to the City Clerk for Councils' consideration. ADJOURNMENT There being no further business, Chairman Greer and Mayor Betz adjourned the meeting at 9:10 A.M. Respectfully submitted, Teresa P. Elmore Deputy Clerk to the Board MINUTES OF JOINT SPECIAL MEETING WITH WILMINGTON CITY COUNCIL, MARCH 21, 1994 PAGE 988 should meet with the legal staffs to evaluate the college's situation Mayor Betz vote, Council resolution called for a vote on the motion presented reluctantly voted unanimously to adopt Upon the Chairman Greer called for a motion by the Board of ~ Commissioners Motion Commissioner Caster MOVED, SECONDED by Vice-Chairman Mathews, to reluctantly comply with the Unilateral Administrative Order by authorizing notification of compliance to the EPA officials and approval of contract with Richard Catlin and Associates Upon vote, the MOTION CARRIED AS FOLLOWS Voting Aye commissioner Barone Commissioner Caster commissioner Sisson Vice-Chairman Mathews voting Nay Chairman Greer In further discussion, Councilman causey suggested the City and County Attorneys meet with the Cape Fear Community College Board of Trustees to give an update on the proceedings Dr Stone stated Cape Fear Community college will act in good faith and will not shirk their responsibility in this matter He accepted the invitation from Councilman Causey for the city and County legal staffs to discuss the information with the Board of Trustees /'~ In other business, it was decided that the Commissioners would select a date for the joint work session on funding of outside agencies at their Regular Meeting and the date would be submitted to the City Clerk for Councils' consideration ADJOURNMENT There being no further business, Chairman Greer and Mayor Betz adjourned the meeting at 9 10 A M Respectfully submitted, ~~p~ Teresa P Elmore Deputy Clerk to the Board /'~ \