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
/'~
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