04-28-09Little Rock Board of Directors Reconvened Meeting
April 28, 2009
4:00 P.M.
Little Rock Board of Director Reconvened Meeting
April 28, 2009
4:00 PM
The Board of Directors of the City of Little Rock, Arkansas, met in a reconvened session
with Mayor Stodola presiding. City Clerk Nancy Wood called the roll with the following
Directors present: Hendrix; Hurst; Cazort; Keck; Wright; Wyrick; Kumpuris; Adcock;
Vice Mayor Fortson; and Mayor Stodola. Director Richardson was absent.
1. RESOLUTION: To direct the City Attorney to pursue a nuisance action against BFI
Waste Systems of Arkansas, LLC, and any other necessary defendants for the disposal of
drill cuttings that originated from drilling operations that use oil -based drilling fluids
because of the noxious odors that have been caused by such disposal in the landfill within
the corporate limits of the City of Little Rock, Arkansas; and for other purposes. Staff
recommends approval.
Theresa Marks from the Arkansas Department of Environmental Quality (ADEQ)
updated the Board regarding the status of the BFI Landfill. According to Ms. Marks, BFI
is a Class 1 Landfill, which has operated in Little Rock for several years and recently
they have been taking cuttings, which are oil- based, from the natural gas drilling process,
which they have been using as alternative daily cover. Ms. Marks reported that ADEQ
first conducted a site visit due to several complaints from the neighbors in the area.
According to Ms. Marks, the inspector made several visits; however, he did not smell the
odor. Ms. Marks stated that this was not unusual, nor did it mean that the odor did not
exist, due to the fact that odor depends on many circumstances and can carry according to
atmospheric conditions. Ms. Marks stated that although ADEQ had issued a statement
indicating that the cuttings were not petroleum- contaminated and were not suitable for
alternative daily cover, it did not mean that the cuttings could not be placed in the
landfill.
Ms. Marks stated that ADEQ began to look at what might have been diesel run -off, after
becoming concerned regarding the effect that it might have on neighboring waterways.
Ms. Marks reported that there was sheen on one of the tributaries to Fourche Creek and
that testing had been conducted; however, the results had not been received. In addition,
Ms. Marks stated the Legal Policy Advisor at ADEQ began research on whether or not
they thought that it could truly be considered petroleum- contaminated soil. After
research into the history of the regulation and what the provision of petroleum -
contaminated soil was designed to address, her opinion was that these were not
petroleum- contaminated soils. Ms. Marks stated that because the drill cuttings were not
petroleum- contaminated soil, then ADEQ had to determine if they were appropriate for
utilization as alternative daily cover. Ms. Marks stated that in making this determination,
ADEQ looked at the following two (2) issues: 1) the reason alternative daily cover is
utilized is to control the odor; and 2) whether or not the diesel run -off of the materials
affected the waterways. Ms. Marks reported that although the opinion was issued that the
Little Rock Board of Directors Reconvened Meeting
April 28, 2009
4:00 P.M.
material was not petroleum- contaminated soils and not suitable for use as alternative
daily cover, it did not mean that the product could not be landfilled in a Class 1 Landfill
Director Kumpuris stated that this was just the beginning as to how this product was to be
disposed and asked Ms. Marks what the opinion of ADEQ and the State of Arkansas was
regarding how this was to be dealt with in the future. Ms. Marks stated that ADEQ had
researched different technologies and there are different entrepreneurs that are dealing
with different technologies and how to utilize them. Ms. Marks reported that these
particular cutting were coming from Arkansas Reclamation, which has a thermal
desorber, which is not being utilized due to reconfiguration. The desorber will dry the
cuttings out to the point where they can possibly be utilized for roadfill. ADEQ is
evaluating this with Arkansas Reclamation and documentation has been provided where
the cuttings have been utilized for roadfill in other states. Ms. Marks stated that as far as
she knew, Arkansas Reclamation was the only facility in the state attempting to treat the
product to the point that it could be reused. Otherwise, the cuttings are either landfflled,
or crushed to the point that they can be mixed with fluids and placed in an underground
injection well, a practice which is not presently utilized in the State of Arkansas. Other
than that, the issued would be finding another beneficial use where the cuttings could be
reused.
Director Kumpuris asked if the State was approaching the capacity to take care of the
product. Ms. Marks stated that she felt that the State had landfill capacity to handle the
product, but that it would certainly take up a lot of space in the landfills. Presently out of
the twenty -four (24) Class 1 landfills in the State, only five (5) are taking the product.
Director Kumpuris stated that the State needed to develop a long -term plan regarding
how to deal with the product. Ms. Marks stated that the natural drilling process created a
large waste stream of different types of waste and has come on in full -force in Arkansas,
and unfortunately the State didn't have the infrastructure in place in deal the volume of
product. Ms. Marks reported that more injection wells are being planned and that the
State would research other means to deal with the drill cuttings. Director Kumpuris
asked if it would not be prudent to stop, or slow the production, until this is figured out.
Ms. Marks stated that it would not be her call to make, but that she understood his
concern.
Vice Mayor Fortson asked if ADEQ attempted any quantitative measure of odor
problems or odor - related incidents regarding product that is placed in landfills. Ms.
Marks stated that they did not have the technology to measure odor. Vice Mayor Fortson
then asked if ADEQ measured in any way the emission of volatile organic compounds.
Ms. Marks stated that odor is not regulated in any other field within ADEQ, except with
relation to landfills. ADEQ does have air - testing technology that tests certain criteria of
pollutants. Vice Mayor Fortson asked that if since the complaints started, if ADEQ had
been measuring the BFI landfill for any volatile organic compounds. Ms. Marks replied
that no, their main concern was methane gas.
Director Hurst asked if BFI would have to cease utilizing the drill cuttings as alternative
daily cover. Ms. Marks stated that as a result of ADEQ's statement, BFI would have to
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Little Rock Board of Directors Reconvened Meeting
April 28, 2009
4:00 P.M.
immediately cease using the product as alternative daily cover; however, the decision
could be appealed to the Arkansas Pollution Control and Ecology Commission. Director
Hurst asked if they could continue to use the product as alternative daily cover pending
the appeal, or would they have to stop immediately. Ms. Marks stated that ADEQ would
request that they stop immediately, until if, and when, the decision was overturned
through the appeal process. Director Hurst asked if the product would be harmful to the
environment or Fourche Creek if it were landfilled. Ms. Marks stated that landfills are
constructed to handle a wide array of materials and that some landfills are constructed to
take in hazardous -type material, or waste that is much more contaminated than the drill
cuttings. The landfills are lined with a synthetic liner with a Leachate Collection System
that collects the run -off from the interior of the landfill, in addition to a stormwater
collection system. ADEQ would feel comfortable in allowing the material to be
landfilled; however, that does not mean that ADEQ would not keep testing Fourche
Creek if there was a concern that there might be run -off from the materials. Ms. Marks
stated that although the test results had not been received, ADEQ felt that the sheen on
Fourche Creek tributary was from the pile of drill cuttings that were to be utilized for
alternative daily cover. Director Hurst asked if any of the other landfills that were
accepting the drill cuttings had experienced any of the same problems. Ms. Marks stated
that an odor complaint was received from one of the landfills. Ms. Marks stated that now
the issue had been brought to the attention of ADEQ, staff would be visiting the other
landfills that take in the product to test the adjacent waterways.
Director Cazort asked if there was any petroleum product in the drill cuttings. Ms. Marks
stated that the cuttings were petroleum- based; however, ADEQ did not deem them to be
petroleum- contaminated soils for purposes of alternative daily cover. Director Cazort
asked if the potential for fires to begin, or the greater intensity of a fire should a fire start,
was increased as a result of landfilling petroleum -based materials. Ms. Marks stated that
ADEQ was not aware of any petroleum- contaminated soils causing any fires; however, it
would stand to reason that if a fire started, there would be concern regarding petroleum -
contaminated soils.
Director Adcock asked how long after the cuttings were dumped, was BGI required to
cover the product. Ms. Marks stated that it was required to be a covered daily; however,
if the odor persisted, ADEQ would require them to place the cover more often. Director
Adcock asked how many loads of cuttings that the BFI landfill was accepting per day.
Ms. Marks replied that she did not have that answer.
Director Wright if any of the other landfills that were accepting the cuttings were located
within city limits. Ms. Marks stated that the Two Pines Landfill in Jacksonville would
probably be the closest landfill to a residential neighborhood.
Ms. Marks stated that the statement by ADEQ, included an application for the product
and would be accepted on a case -by -case basis for alternative daily cover. Ms. Marks
stated that there may be drill cuttings that come in that may not be of the same
consistency, or there may be a technology that is developed that burns off a majority of
the diesel to the point where there is not a problem with run -off or odor. If the
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Little Rock Board of Directors Reconvened Meeting
April 28, 2009
4:00 P.M.
technology is developed to burn off a majority of the diesel, then the cuttings may be
appropriate for daily cover; however, ADEQ would have conduct testing to make that
determination.
Director Wyrick stated that the residents began reporting the odor several weeks before
ADEQ was able to pick up on the smell, or odor, from the petroleum -based drill cuttings.
Director Wyrick asked what the process would be for citizens to take should they start to
smell the odor again. Ms. Marks stated that a complaint would need to be filed with
ADEQ and then an inspector would conduct a site visit to the landfill to determine if the
product was being utilized for alternative daily cover, or if it was being put into the
landfill appropriately. Director Wyrick asked if BFI had specific instructions on how to
properly dispose of the product. Ms. Marks stated that yes, BFI followed the Hazardous
and Special Waste Protocol, and that since the product contained diesel fuel, it had to be
disposed of within accordance of the protocol. Director Wyrick asked when the test
results of the water from the Fourche Creek tributary were expected. Ms. Marks stated
that she had hoped to have received the results earlier that day. Ms. Marks explained that
the chemicals utilized to conduct the test have a short shelf -life; therefore, ADEQ did not
maintain an inventory of the chemicals. When the samples were taken, the chemicals
were ordered. As soon as the chemicals were received, the test could be conducted.
Initial testing was conducted that indicated the presence of Total Petroleum
Hydrocarbons (TPH); however, ADEQ would rather rely on the actual results of the test.
Director Wyrick asked what the next step would be should petroleum be discovered in
the sample from the Fourche Creek tributary. Ms. Marks stated that should that happen,
ADEQ would determine if there was remediation warranted and the best way to
remediate the product. Ms. Marks explained that in some cases, the cure was worse than
the actual ill. If the attempt was made to hose the product out, it could upset the aquatic
life to the point were it would cause more harm than to just allow the petroleum, if it was
a small amount, to attenuate. Ms. Marks stated that if run -off was allowed to enter
Fourche Creek, ADEQ would determine what type of enforcement action should be taken
against BFI.
Director Wyrick asked how long the other landfills had been taking the product. Ms.
Marks stated that Arkansas Reclamation had only been in business since 2007; therefore,
the other landfills had probably been taking the product for approximately a year.
Director Wyrick asked how long Two Pines Landfill in Jacksonville had been accepting
the product. Ms. Marks reported that they started taking the product in the fall of 2007;
however, they had discontinued accepting the product on February 21, 2009. Director
Wyrick has why Two Pines Landfill had discontinued accepting the product. Ms. Marks
stated that she was not aware of the reason. Director Wyrick stated that BFI started
accepting the product in November 2008, and the odor was noticed as early as February
2009. Ms. Marks stated that it may have had to do with the fact that Arkansas
Reclamation took their desorber off line in February, and that when the desorber was
being utilized the cuttings were depleted of the diesel enough that the odor was not
noticeable.
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Little Rock Board of Directors Reconvened Meeting
April 28, 2009
4:00 P.M.
Mayor Stodola asked that if run -off was found in the water sample taken from the
Fourche Creek tributary, could the connection be made to when the product was being
utilized as alternate daily cover on the slope, as opposed to it just being in the landfill
itself. Ms. Marks stated that ADEQ would have to look at the evidence to make that
determination. Ms. Marks explained that the landfills are lined and normally ADEQ
would not expect to find run -off, unless it came through the Leachate Collection System
or unless it ran through the stormwater system. Mayor Stodola asked if that
determination would be made by looking at ADEQ's various monitoring stations. Ms.
Marks stated that it would have to be narrowed down to BFI and that both upstream and
downstream samples would be taken to determine if those samples increased. The
samples that were high in TPH would give them a better idea of where the contamination
came from. ADEQ has annual engineering reports that landfills are required to submit
and certain groundwater sampling is conducted as part of those reports. If contamination
was discovered that gave ADEQ alarm, action would be taken.
Mayor Stodola asked how the ruling by ADEQ would impact the City's determination on
whether that type of waste would come into the Solid Waste Management District. Ms.
Marks stated that ADEQ has no authority over the City's rules and regulations as to what
would be accepted. Ms. Marks stated that ADEQ respected local ordinances that have
been approved and do not overrule the municipalities. Mayor Stodola stated that it was
his understanding that the drill cuttings were not coming from the local Solid Waste
Management District, and Ms. Marrs stated that she was not aware of the district having
this type of waste product. Mayor' Stodola asked Ms. Marks if she was aware that the
Solid Waste Management District required an agreement predicate to acceptance of these
waste streams from other districts before it was accepted. Ms. Marks indicated that she
could not answer the question. Mike Robinson, of the ADEQ Solid Waste Division,
stated that Solid Waste Regional Districts could in fact restrict those types of materials
from coming into a particular district. In addition, Mr. Robinson stated that if the City
continued to receive complaints regarding the odor, the Solid Waste Management District
could stop BFI from taking the product.
Chuck Nestrud, BFI Outside Council, stated that the facility did not plan to appeal the
decision by ADEQ and had stop utilizing the product as alternative daily cover, and
would not utilize it as alternative daily cover in the future. Mr. Nestrud stated that the
landfill was constructed with a perimeter berm so that the run -off inside the berm would
be collected into a holding pond and tested before being released into Fourche Creek, or
other tributaries. Mr. Nestrud stated that there is no direct run -off from BFI to Fourche
Creek or the surrounding tributaries''. Mr. Nestrud stated that since the last meeting, the
facility had cut the receipt of the pro duct in half.
Steven Fallon, Manager of the BFI Landfill, apologized for incorrectly stating at the
previous meeting that no odor had been detected. Mr. Fallon reported that BFI
implemented procedures during the past week to reduce the odor of the product to be
utilized as alternative daily cover, and that with the ruling received earlier in the day, the
exposed area would be reduced by approximately 90 %.
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Little Rock Board of Directors Reconvened Meeting
April 28, 2009
4:00 P.M.
Dr. John Kind, from the Center for Toxicology and Environmental Health, stated that
they had studied the levels of volatile organic compounds on the perimeter of the landfill
and the downwind community to assess the potential for adverse health effects.
According to Dr. Kind, low levels of volatile organic compounds were detected at the
fence line; however, they were not detected in the community. Dr. Kind stated that they
had attempted to quantify odors off -site with a devise called a nasal ranger, which
assessed the strength of odors based on the diluting of the ambient air with the clean air.
Dr. Kind indicated that they had not detected any odors off -site that would be considered
a nuisance level; however, a slight odor had been detected approximately one - quarter of a
mile downwind of the landfill. Mayor Stodola asked when the testing was conducted.
Dr. Kind stated that the perimeter had been established on April 23, 2009, and that they
had staff out there on a daily basis since that date. Mayor Stodola asked how they came
to the conclusion that the slight odor indicated was not at a nuisance level. Dr. Kind
explained that there are a number of states that have odor standards, which are about a 7
to 1 dilution, which means it takes seven (7) parts clean air to make one (1) -part of
ambient air, or odor, in that air go away. Dr. Kind stated that everything that they had
detected at been at 2 to 1, or lower; less than 1/3 of the strength of odor that most states
consider a nuisance.
Mayor Stodola asked if the equipment used was recognized in the field and why ADEQ
didn't have the equipment. Dr. Kind explained that it was a science called sentometry
and it had been around for quite awhile. Dr. Kind stated that the regulations state that not
only does there have to be a component of odor strength, but there has to be a component
of odor duration, and there has to be two (2) positive detections above that level at least
fifteen (15) minutes apart, but no longer than one (1) -hour apart.
Vice Mayor Fortson asked if the equipment determined if the odor was pleasant or
unpleasant. Dr. Kind stated that that determination was up to the individual.
City Attorney Carpenter asked if the testing conducted for the last three (3) days had been
based on BFI's voluntary reduced intake of the product. Dr. Kind stated that he believed
that BFI had reduced its intake on Monday. City Attorney Carpenter asked if there had
been any testing centers at UALR within the last few days. Dr. Kind reported that they
had staff drive into that area; however, odor was not detected. City Attorney Carpenter
asked if they had testing equipment in the area. Dr. Kind stated that the first step was to
drive in the area to determine if there was an odor, and if an odor was present, then the
testing equipment was used. City Attorney Carpenter stated that the research he had read
indicated that in order to get an accurate reading, the testing needed to be conducted for a
season, and not just a few days. City Attorney Carpenter asked Dr. Kind what type of
timeline did he think needed to be utilized to obtain an accurate reading. Dr. Kind stated
that it did take an extended time to learn the weather patterns. City Attorney Carpenter
stated that based on that, Dr. Kind couldn't stand before the Board and give an accurate
picture of the odors coming from the landfill. Dr. Kind stated that the readings for the
past several days had been accurate, and that he could provide information regarding
what the strength had been. Dr. Kind stated that as the new procedures were
implemented, the odors, in all likelihood, should reduce or eliminate the odors. City
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Little Rock Board of Directors Reconvened Meeting
April 28, 2009
4:00 P.M.
Attorney Carpenter asked if with the scientific field used, would Dr. Kind be able to
testify under oath as to the completeness and accuracy of the findings to date; would he
be able to say that the standards used were accurate or would he rather have a whole
season before a final determination was made. Dr. Kind stated that the data was
preliminary at this point, and that they would need more data, such as meteorological
conditions.
Mayor Stodola asked Mr. Fallon to advise the Board when BFI suspended the use of the
drilling cuttings as alternative daily cover. Mr. Fallon reported that they had suspended
the use that day at 2:30 PM, when the ruling was made from ADEQ. Mr. Fallon stated
that prior to the ruling, BFI had stopped using the product on the slopes, and at a reduced
area on the top. Mayor Stodola asked what the intention of BFI was in continuing to
bring the product into the landfill. Mr. Fallon stated that it would be handled the same
way as trash was landfilled. Mr. Fallon stated that beginning the next day, they would
start coating the trucks that delivered the product to determine if that would eliminate the
odor. In addition, Mr. Fallon stated that they would continue to mist the area on a daily
basis. Mayor Stodola asked how many tons of the product were being brought in on an
average daily basis. Mr. Fallon stated that the landfill had taken approximately 900 —
1,200 tons on a daily basis; however, it varied significantly throughout the week. Mayor
Stodola asked if the timeline for the scheduled closure of the landfill would change
should BFI be prohibited from bringing the product into the landfill. Mr. Fallon stated
that whether or not the product was taken in, the landfill was scheduled for closure in
May 2010.
Director Keck asked for a reading of the resolution. Director Hurst stated that the
resolution before the Board authorized the City Attorney to file a nuisance complaint and
outlined an injunction against the acceptance of drilling cuttings that use oil -based
drilling fluids as alternative daily cover at the BFI Landfill. Director Hurst stated that
since BFI ceased using the product for alternate daily cover at 2:30 PM that afternoon,
the resolution didn't address the issue.
Mayor Stodola stated that the Board should take a five (5)- minutes recess so that City
Attorney Carpenter could have a moment to read over the resolution and make the
necessary amendments.
Director Hurst asked that if the State regulations allow for Class 1 Landfills to accept
drilling waste, could the City pass a resolution or file a lawsuit against BFI stating that
they could not accept the waste in any form. Ms. Marks stated that ADEQ did not have
the authority to stop the City from passing such a resolution or filing a lawsuit. Ms.
Marks reported that the State Legislature had stated that Class 1 Landfills could accept
petroleum- contaminated soils; however, it was the decision of ADEQ that the product
was not petroleum- contaminated soils.
Director Adcock made the motion to amend the language in the resolution. City Attorney
Carpenter stated that on Line 13, the phrase "as alternative daily cover" would be
stricken. In addition, in Line 31, the phrase "alternative daily cover" would be stricken
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Little Rock Board of Directors Reconvened Meeting
April 28, 2009
4:00 P.M.
seconded the motion, and by unanimous voice vote of the Board Members present, the
motion passed.
Vice Mayor Fortson stated that he would like to direct the City Attorney to draft an
ordinance temporarily prohibiting BFI from taking the oil -based products of that nature
into any City landfill, and that the ordinance have an emergency clause and be placed on
the agenda for the May 5, 2009, Board of Directors Meeting.
Director Cazort made the motion, seconded by Director Hurst, to direct the City Attorney
to draft a proposed ordinance banning the acceptance of this type of waste into the City of
Little Rock permitted landfills and that the ordinance be ready by the May 5, 2009, Board
of Directors Meeting, along with an emergency clause. By voice vote of the Board
Members present, the motion passed with nine (9) ayes and one (1) nay.
Director Kumpuris made the motion, seconded by Director Cazort, to table Item 1 for one
(1) -week. By unanimous voice vote of the Board Members present, the motion passed.
Director Kumpuris stated that he would like for the City Attorney to prepare a resolution
asking the Governor, ADEQ, the State Legislature and the City to investigate the issue on
a global basis regarding what would happen to the waste. Mayor Stodola asked the City
Attorney to draft a resolution to that affect.
Mayor Stodola stated that it was interesting that only five (5) of the twenty -four (24)
Class 1 Landfills in the State were taking in the product and that he would be like to
know that of the five (5) landfills, how many were privately- operated and how many
were governmentally- operated. Mayor Stodola stated that it was disconcerting that the
City had continued to accept waste from other areas, when they wouldn't accept it
themselves.
Vice Mayor Fortson made the motion, seconded by Director Wyrick, for the Board to go
into Executive Session for the purpose of making appointments to the various Boards and
Commissions of the City of Little Rock. By unanimous voice vote of the Board
Members present, the motion passed.
2. EXECUTIVE SESSION & RESOLUTION - Appointment of various City of Little
Rock Boards and Commissions.
Synopsis: Construction Board of Adjustment and Appeals (4 positions); Housing Board of
Adjustment and Appeals (4 positions); Midtown Redevelopment District No. 1 (2 positions); Racial
Cultural Diversity Commission (4 positions); and the River Market District Review Committee (2
positions)
Construction Board of Adjustment and Appeals: Positions will be re- advertised.
Housing Board of Adjustment and Appeals: Kenneth McKay was appointed to serve his
first three (3) -year term to expire on April 30, 2013. The remaining three (3) positions
will be re- advertised. Director Hurst made the motion, seconded by Director Adcock, to
accept the appointment. By unanimous voice vote ob the Board Members present, the
motion passed.
Little Rock Board of Directors Reconvened Meeting
April 28, 2009
4:00 P.M.
Midtown Redevelopment District: Brock Martin was reappointed to serve his second
three (3) -year term to expire on April 30, 2012. William Rector was appointed to serve
his first three (3)Oyear term to expire April 30, 2012. Director Adcock made the motion,
seconded by Director Hurst, to accept the appointment. By unanimous voice vote ob the
Board Members present, the motion passed.
Racial Cultural Diversity Commission: Michael Moore, who had filled an unexpired
term, was reappointed to serve his first three (3) -year term to expire April 30, 2012.
Wayne Berger was reappointed to serve his second three (3) -year term to expire on April
30, 2012. Lisette Yang was appointed to serve her first three (3) -year term to expire on
April 30, 2012; replacing Miguel Pinon. Paul Henry was appointed to serve his first
three (3) -year term to expire on April 30, 2012; replacing Walter Nunn. Director Adcock
made the motion, seconded by Director Hurst, to accept the appointment. By unanimous
voice vote ob the Board Members present, the motion passed.
River Market District Commission: Positions will be re- advertised.
Motion was made by Director Keck, seconded by Director Adcock, to adjourn the
Reconvened Meeting. By unanimous vote of the Board Members present, the
Reconvened Meeting was adjourned.
ATTEST:
2wr"�"—
Susan L 1 , cting City Clerk
APPROVED:
;Det_4��
Gene Fortson, Vice Mayor
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