HomeMy WebLinkAboutSP January 31, 1985
~ 01 ANDOVER
SPECIAL CITY COUNCIL MEETING - JANUARY 31, 1985
MINUTES
A Special Meeting of the Andover City Council was called to order by Mayor Jerry
Windschitl on January 31, 1985, 7:35 p.m., at the Andover,City Hall, 1685
Crosstown Boulevard NW, Andover, MN, to discuss the City's options relative to
the contamination at the Waste Disposal Engineering and South Andover sites and
to discuss the procedure for reviewing the proposed new Ordinance 8.
Councilmen present: Elling, Knight, Lachinski, Orttel
Councilmen absent: None
Also present: Attorneys from the firm of LeFevere, Lefler, Kennedy,
O'Brien & Drawz, Charles LeFevere and Mike Nash; City
Engineer, James Schrantz; and City Clerk/A. Administrator,
P. K. Lindquist.
WDE AND SOUTH ANDOVER CONTAMINATION SITES
Mayor Windschitl stated the attorneys are involved in the New Brighton lawsuit,
and he has asked them to address both Andover contamination sites relative to the
City's options to expedite matters.
Mr. LeFevere reviewed the firm's background and expertise on municipal and
environmental law. At the request of the Mayor, Mr. Nash has talked with City
staff and EPA and MPCA officials about these two sites.
Mr. Nash then briefly reviewed the history of the WDE site as he saw it. He stated
in talking with the MPCA, the principle problem concerning the delay in the study
of the site revolves around the QAQC plan. The change in contractors by the generators
and a change in EPA regulations for lab procedures to analyze the samples have caused
the delay in the submittal of the QAQC plan. Cliff Anderson of the MPCA has told
Mr. Nash that the QAQC plan is "essentially approved" at this time. To date it has
been about a four-month delay in the procedure. Following approval of the QAQC
plan, the generators will be required to conduct the investigation and file the final
report on the results as well as list the remedial actions appropriate based on the
type of contaminates they are dealing with. That final report was originally due
in December, 1984. It has been extended to March, 1985, by MPCA; but realistically
that final report will not be done before June or July of this year because of those
delays with the QAQC plan.
Mr. Nash continued that once the final report is in, the next step is the generators
must submit a list of alternatives they feel would be appropriate to remove the
problem. He reviewed the procedures the EPA must go through in reaching their
decision for remedial action, after which that action will be implemented. Realistically,
remedial action will probably not begin before the spring of 1986.
Mr. Nash explained according to the consent order, if the generators would not proceed
any further, they would technically be liable for any costs of the EPA and MPCA and
the ordering of any remedy. Also under the terms of the consent order, the generators
are liable for $1 million for remedial action; and the MPCA would use superfund
monies for any remaining amount required. There is also an ability to sue to get the
superfund monies back from the generators. He did not know how that $1 million
figure was arrived at but felt that if the contamination is only on site, that amount
is not an unrealistic figure. If it gets off site, then it would be considerably
hi gher. Mayor Windschitl noted he has learned the cost of taking care of the
hazardous waste pit itself would be about $4 million.
Council was concerned over proposed legislation to change the superfund laws and
asked if it is in the generators' interest to delay this project in the hopes of
getting some relief of their liability. Mr. Nash stated he would be surprised if any
Special City Council Meeting
January 31, 1985 - Minutes
Page 2
(WDE and South Andover Contamination sites, Continued)
relief would apply retroactively to consent orders already in place or being
negotiated, but that is something worth keeping a close eye on. If any change is
retroactive, it would definitely affect this case.
Council asked at what point does the City have damages incurred, noting there is
already a loss of property values in the well advisory area. Mr. LeFevere explained
before taking any legal action, there must be a remedy in mind, either monetary or
injunctive relief. And in the case of injunctive relief, the judge has to determine
what to do, what is the most reasonable action. They would have to look at the
property value loss. But if there is no physical invasion of contamination at this
point, the fact that it has reduced property values certainly isn't enough to give
cause for action. A point to explore might be having the well advisory lifted or
reduced.
Council explained some of the things that have happened regarding the WOE site and
noted the rapid rate at which similiar situations have been taken care of. It
seems ,that the r1PCAmay be trying to do everything possible to make sure there is no
1 i abi líty on their part. Mr. LeFevere felt it is unlikely they would be covering
for something they did. What is more likely is they don't have the staff or money
and have a heavy case load to handle.
Councilman Lachinski asked if Anoka County or MPCA suffers any ~iability for what
happened, noting documentation of their approval of the pit and allowing the operation
to operate without bonds, etc. Mr. LeFevere stated there is authority for suit
against a governmental body for negligent inspection. But the City doesn't have any
damages yet, so we don't know what we would ask the court to ask them to do. Mr.
LeFevere also stated it doesn't do any good to sue unless you can get a judge to get
something done about the problem. The EPA and MPCA defense is going to say it is
too early to tell what remedy would be best.
Council asked if there is any legal course the City can take to make this process
move at a reasonable speed. Mr. LeFevere stated to date it sounds as if they can't
prove it isn't a reasonable speed. It has been only a few months delay, and that
isn't much of a case.
Mr. Nash went on to explain that another responsible party to the WDE si tuation is
Mel Roth and WDE, Inc., owner of the site. They have not responsded to MPCA's request
to join the generators, and the next action could be to issue civil penalties against
them or place action to compel them to join with the generators. Mr. Nash then
reviewed the three problem areas in the South Andover site and what has taken place to
date on those sites -- property owned by William Batson, the Commercial Auto Parts
site, and the Heidelberger property. In April of 1983 the MPCA received $250,000
from the Federal superfund to study the entire site. In June, 1984, they issued a
request for remedial action from Mr. Batson to study the site and cleanup. He has
not done so. On the Commercial Auto Parts site, he has been told that the storage
of the drums has been turned over to the Andover Fire Marshall. The Council stated
that is not true and felt this should be checked into further.
Mr. Nash contined. In June, 1984, the MPCA requested remedial action for the owners,
transporters, and generators of the Heidelberger site. The generators are currently
analyzing the barrels to determine what is in them and what is the proper disposal
method. The generators have agreed to remove the barrels from the site. They were
offered a consent order to do the investigative and remedial action, but they declined
to enter into that consent order. The EPA and MPCA are using superfund monies for
the investigation and any remedial action. The investigation study should be
completed in 18 months from December, 1984.
Special City Council Meeting
January 31, 1985 - Minutes
Page 3
(WDE and South Andover Contamination sites, Continued)
Mr. Nash then reviewed the options they felt the City may have as outlined in a
handout sheet for the Council. Basically, they felt there is no basis at this point
for proceeding with any legal action. The Council again wanted to know at what
point legal action would be an option -- actual damages or eminent threat? And are
there any avenues available to help with the installation of a municipal water system?
Mr. LeFevere felt that if a water system were put in now before any evidence of
contamination is found, it is unlikely the City would ever recover any monies for that
system. At this point, it is not known whether the installation of a municipal
water system is the best remedy for the situation; and he felt that it would be
difficult to convince a judge to order municipal water based on existing evidence.
There may be any number of other solutions that are reasonable and less expensive.
He also stated the City normally will have cause for action when there are detectible
levels of contaminates in the water. But that is not going to mean money damages or
justify an order.
Mr. Nash also stated if the City put in municipal water now and the final report shows
that that would have been the correct remedy, it would be his analysis that the costs
of the system would not be recoverable because the City would have had to have gotten
approval from the MPCA that the water system is the proper remedy at the time and the
most cost effective.
Mayor Windschitl asked whether it would be beneficial to discuss the possibility of
installing municipal water with the generators to see if they would be interested
in doing so. Mr. Nash stated it would take factual details for the generators to
agree on what they perceive is a problem. Again, at this point, it is too early to
tell, that these things will be answered once the investigative study is completed.
Mr. LeFevere also felt it would cost millions to bring a lawsuit at this time; it
could take as long as tea years; and the City could very well lose. On the other
hand, if the City won, all those costs would be recovered. He stated that one of
their suggestions is to continually monitor the case, but to do everything in writing
to create a written file of the City's efforts in this case. Council noted that the
requests for explanations from the MPCA and EPA have been done and they are monitoring
the case closely. The attorneys suggested that should continue, possibly even with
more intensitey, again stressing everything should be done in writing.
Council asked if there is any way the extra costs of drilling a well in the well
advisory area can be recovered by the property owners, claiming the advisory area
was arbitrarily placed within the City. Mr. LeFevere was not sure that is money they
can get from anybody.
Council asked if the City has a right to demand that the Health Department justify
their action on the well advisory. Mr. LeFevere stated perhaps, that they can
investigate that further. If the Health Department was exceeding its authority,
then there may be some basis for legal action by the City against the Health Department.
And that could be pursued for about $2,000 to $3,000.
Mayor Windschitl stated he has learned the City can proceed to have the generators
put on notice that they are in default of their contract for nonperformance. The
attorneys felt that would not hold up at this time, that the delays created to date
have not been excessive or unreasonable. Mr. Nash also stated the MPCA really wants
this consent order to work because there aren't that many, and they want to be able
to show they can work with the companies in Minnesota to solve the problems of the
State.
Mayor Windschitl stated he has talked with the MPCA and has been told they would
cooperate with the City if the City chose to test some of the deep wells on its own.
Special City Council Meeting
January 31, 1985 - Minutes
Page 4
(WDE and South Andover Contamination sites, Continued)
The tests would cost approximately $200 apiece, and he felt it would be beneficial
to know whether or not there are contaminates in the four deep wells on the WDE site.
Mr. LeFevere felt the results would still not provide enough to proceed with a
lawsuit, but it might get the MPCA to work faster on the project. After some
Council discussion, it was felt that sampling the deep wells to determine whether
or not the deeper aquifers are contaminated would be helpful to know, especially
if the residents come in petitioning for municpal water.
In further discussion with the attorneys, the Council expressed some willingness to
have a firm such as this to act as consultant for the City on the project. Mr.
LeFevere felt they could keep an eye on what is going on, help draft resolutions, etc.
for about $1,000 a month.
Council agreed to discuss this further at the next meeting.
ORDINANCE 8 REVISIONS
Council briefly discussed ways to review the old and proposed new ordinance in an
orderly fashion. Mayor Windschitl stated he hoped to go through page by page until
it is completed. He also suggested the staff review the new ordinance and provide
written recommendations as well. It was agreed the Council will review the first 15
pages or so at the next meeting if there is time.
MOTION by Orttel, Seconded by Elling, to adjourn. Motion carried unanimously.
Meeting adjourned at 10:36 p.m.
Respectfully submitted,
YI~~~L~~(L
Marc lla A. Peach
Recordlng Secretary