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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 2 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 3 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. 4 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 %. 5 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 on 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 7 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 9