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Rochester Hills

Minutes

Brownfield Redevelopment Authority

Chairperson Thomas Stevenson, Vice Chairperson Suzanne White

Members: Stephen McGarry, George Karas, Stephanie Morita,

Thomas Turnbull, Michael Webber

7:00 PM

1000 Rochester Hills Drive

Thursday, February 21, 2008

MINUTES of a ROCHESTER HILLS BROWNFIELD REVELOPMENT

AUTHORITY REGULAR MEETING, held at the Rochester Hills Municipal

Offices, 1000 Rochester Hills Drive, Rochester Hills, Oakland County, Michigan.

CALL TO ORDER

1.

The meeting was called to order by Chairperson Stevenson at 7:00 PM.

ROLL CALL

2.

George Karas, Thomas Stevenson, Stephen McGarry, Thomas Turnbull,

Michael Webber and Stephanie Morita

Present

6 -

Suzanne White

Absent

1 -

Also Present: Ed Anzek, Director, Planning & Development Department

Derek Delacourt, Deputy Director, Planning & Development

Department

John Staran, City Attorney

Jim Anderson, STS Consultants

Judy A. Bialk, Recording Secretary

DETERMINATION OF A QUORUM

3.

Chairperson Stevenson stated a quorum was present.

APPROVAL OF MINUTES

4.

4A.

2008-0080

Regular Meeting of January 17, 2008

Chairperson Stevenson asked for any comments or changes regarding the January 17,

2008 Regular Meeting Minutes. Upon hearing none, he called for a motion.

A motion was made by Webber, seconded by McGarry, that this matter be

Approved as Presented. The motion CARRIED by the following vote:

Aye

Karas, Stevenson, McGarry, Turnbull, Webber and Morita

6 -

Absent

White

1 -

RESOLVED that the Minutes of the January 17, 2008 Regular Brownfield Redevelopment

Authority Meeting be approved as presented.

ANNOUNCEMENTS/COMMUNICATIONS

5.

Chairperson Stevenson called for any announcements or communications.

Ms. Morita reminded the Authority that a Brownfield Symposium was being held May

5-7, 2008 at the Cobo Center in Detroit and stated she hoped the members could

attend.

Chairperson Stevenson noted the Authority had received a copy of the 2008 Year

End Report from the Planning & Development Department. He called for any other

announcements or communications. No other announcements or communications

were provided.

PUBLIC COMMENT (Non-Agenda Items)

6.

Chairperson Stevenson called for any public comments regarding non-Agenda related

items. No public comments were received.

UNFINISHED BUSINESS

7.

7A.

2007-0435

Update Regarding Hamlin/Adams Development

Chairperson Stevenson reminded those in audience that speaker cards were provided

at the back of the auditorium, and if anyone wished to speak on this item, they should

complete a card and turn it in to the recording secretary.

Chairperson Stevenson invited the developer to take a seat at the presenter table and

asked them to introduce themselves by providing their name and address.

Neil Silver, Attorney for the developer was present, and introduced Paul Henderson,

Developer, and Tony Anthony, AKT Peerless, Environmental Consultant. Mr. Silver

stated that Mr. Anthony would provide an update on the investigation on the site and

proposed remedy.

Mr. Anthony stated that the last time they were before the Authority, the Authority

had approved an investigation to refine the remedy for the site, and noted that

investigation included several borings and monitoring wells. He explained they set out

to look at the areas of concern and to define the extent of those areas, i.e., how much

material would have to be removed from the areas they had identified.

Mr. Anthony stated one of the strategies used while they were on the site was test

pits. He explained in some areas where test pits identified fill material and buried

drums, they excavated additional test pits around those areas in order to define how

much material had to be removed. He referred to a map of the site, and explained

there were light blue circles that identified areas of concern, and areas that through test

pits, soil borings and monitoring wells, they were able to refine the extent of removal.

Mr. Anthony pointed out the section of the site identified as Area A where they did

test pits and moved regularly outward from the original location where they had

previously found contaminants, so they could define the area.

Mr. Anthony pointed out Area B, which contained a grid of several sample locations

that were between the fenced-in area where the drums with paint waste were buried

and the adjacent residential neighborhood. He explained earlier investigations had

found PCBs in the surface soil. Because, at that time there were only a few points

where PCBs were detected, they were concerned that the PCBs had migrated from

the area within in the fenced area where the highest concentrations were, and were

moving towards the residential neighborhood. Part of their investigation was to look

at that in a fine grid and to determine whether that was happening, or whether there

was some protection of the residents. Through the grid they were able to show that

the PCB concentration at the surface was safe and below any residential contact.

There were PCB detections, but at a concentration that was below the residential

criteria. He stated they did not see any consistent concentration gradient. He

explained the normal expectation was to see the highest concentration at the source,

and then progressively lower concentrations as they moved away from the source. He

stated they did not see that, which further told them they did not have what they had

feared, i.e., the migration of PCBs from the landfill area (the fenced area) to the

residential neighborhood, which was good news.

Mr. Anthony pointed out another area they had looked at, described as Area C. As

they excavated their test pits in that area, they found a great deal of debris intermingled

with contaminated soil. He stated they saw things like metal debris and broken glass,

noting that type of material is very common for old landfills. He explained that in old

landfills, the organic material will begin to intermix with the soil, but things like glass

and metal that do not break down and intermix with the soil, remain. When those

areas are dug out, what is seen are things such as old bottles and remnants of metals.

He stated in that area, as well as highly contaminated soil, was the inter-mixed debris.

Mr. Anthony pointed out Area D, and stated that during an earlier investigation

involving test pits, they encountered a drum. At that point they were concerned that if

they found a drum outside of the fenced-in area, that perhaps the drum burial area was

much larger. One reason they did numerous test pits and borings was to confirm

whether there were additional areas where drums were buried, or if that was just an

anomalous area outside the fenced area. He stated that the test pits circled the area

and they did not find any additional drums, which allowed them to define the extent

and limit the area.

Mr. Anthony stated the additional testing told them they did not have any widespread

drums buried out there. He indicated that in working closely with the City and City’s

consultant, the question came up about what if there was another anomalous area

found during construction, which sometimes happened on brownfield sites. He stated

the 381 Work Plan included a section called “unforeseen conditions” which was to

account for if they found another anomalous area. He noted what they felt

comfortable about was that there had been a considerable amount of test pits on the

site and borings that told them where the majority of the landfill was located.

Mr. Anthony pointed out Area E, which also had highest PCB contamination. He

stated that because the PCB contamination was high, that was the area that would be

encapsulated. He explained the area outside was removal.

Mr. Anthony referred to the overall map, which identified the areas of removal action

and stated it could be seen that the vast majority of the area that was covered with fill

material would be removed. He again pointed out the limited area that would be

encapsulated. He explained the encapsulation would consist of a two-foot wide clay

wall, which would extend two feet into natural material, extending upward to the

surface, and then the fill material would be encapsulated with a clay cap and an FML

material. He stated the FML material was similar to a very thick garbage bag that was

welded together and then keyed in all sides of the landfill itself.

Mr. Anthony stated that during the construction phase; the removal action;

constructing the walls, and constructing the cover, Community safety was of utmost

concern. They will incorporate a rigorous air-monitoring plan, which would involve

initially at the worksite, screening for volatiles. Immediately at the zone where they

were doing excavation, they would be monitoring for volatiles. That way, they would

contain it immediately. At the perimeter of the property they would have dust

emission monitoring. He explained that was real-time monitoring, and the monitors

were also equipped with a visual alarm. If the allowable air/dust emissions were

exceeded for a one minute period, the alarm would go off. When the alarm went off,

all operations at the site stop. He stated the alarm would continue to monitor, and no

work would resume until a ten-minute continuous time where dust was suppressed

occurred. He stated even before the work was resumed, they would look at whether

additional dust suppression was required. The additional dust suppression might mean

misting in order to help keep the dust down.

Mr. Anthony stated they had worked closely with the City in providing more detail on

the construction of the wall, for instance going through geo-technical testing on the clay

ensuring its integrity; shoring or trench boxes to ensure the safety of the workers on

site, and also the integrity of the wall. Testing and welding of the plastic cap are also

an integral part of the cover.

(Arrive Member White: 7:17 PM)

Suzanne White, George Karas, Thomas Stevenson, Stephen McGarry,

Thomas Turnbull, Michael Webber and Stephanie Morita

Present

7 -

2007-0435

Mr. Anthony stated the other part of the investigation they looked at was their concern

about methane. He explained they were concerned about methane coming from

across the street. They also conducted their own methane investigation on the

property, and found that no methane had been coming across Hamlin Road. He

stated in speaking with the Michigan Department of Environmental Quality (DEQ), the

DEQ had looked at the landfill site across the road and the methane produced there,

and the DEQ believed the methane was being intercepted by the utility trenches on the

other side of Hamlin Road.

Mr. Anthony stated they did have methane detections within the fenced area. He

explained they had two detections, and noted that area not only contained the high

concentrations of PCBs, but also volatile organics. He commented that volatile

organics were a common chemical found with paint wastes. He stated that volatile

organics could contribute to methane production as they decay. Because of that, the

two buildings proposed for within 500 feet of that area would have a presumptive

remedy. He explained that remedy included a vapor barrier beneath the building,

which would be put there “just in case” or as another layer of protection to redirect

any potential vapors, both VOC vapors or methane, that might come from the

encapsulated area. It was just another protective layer. Any other building on the site

would be greater than 500 feet away from the encapsulated area, which currently fit

DEQ guidance for these types of sites.

Mr. Anthony explained another issue they looked at was truck traffic. They wanted to

minimize truck traffic that could possibly disturb the residents. He pointed out the

interchange with M-59 on the map, which would bring the trucks up to Hamlin Road,

and stated the trucks would access the site off Hamlin Road. He stated if there was

more than one truck, which was likely while hauling material, all trucks would be

staged on site and not in the roads disrupting traffic. After loading, they would set up

a turn-around path to exit onto Hamlin Road and proceed back to M-59.

Mr. Anthony stated that one other part that was important in this remedy, which

consisted of a removal action and encapsulation of the high PCBs, was to control

storm water. He stated in a traditional setup that was not dealing with contaminants,

where it was not a brownfield site, the storm water would be above ground retention

ponds. On this site, they wanted to prevent infiltration into the groundwater. He

explained by preventing infiltration, it further strengthened the stability of the

encapsulation system. He stated they proposed to install a belowground storm water

system in one of the areas of the removal action that did not allow infiltration. That

capacity would come out and leave the site. He pointed out one small area of above

ground, which would be designed as a sediment trap for what is called first flush. He

explained with the smaller pond there would be an FML liner that would restrict and

prevent infiltration.

Mr. Anthony summarized the remedy as removal action for the majority of the area of

contamination; encapsulation of the high PCB concentrations, and then control of

infiltration.

Mr. Silver added that they wanted to thank Mr. Delacourt and Mr. Anderson for their

input in helping them design the remedies. He thought the remedies would meet safety

requirements and the terms of the Consent Judgment, and were protective of both the

residents and the site. He stated they were available for any questions.

Chairperson Stevenson stated he would take public comment at this time.

Ed Baron, 3310 Greenspring, stated he was a former City Council member and

Planning Commissioner. He referred to the barrier between the gases and the air as a

piece of cloth. He commented the developer had something to sell and wanted to see

if the City would buy it. He stated they had learned that although their intentions were

honorable, they were not experts in environmental issues and did not have the

credentials. He was glad the developer used help to define it. He stated he, Brenda

Savage and Bill Windschief had called the EPA when that site was opened up and

construction stopped. He remembered the tragedy that happened in Ms. White’s

neighborhood due to methane gas. He thought it was a matter of health and safety

and should be addressed in a manner that protected the residents.

Brenda Savage, Post Office Box 82487, Rochester, MI 48308, stated she was

the Chairman of the Rochester Hills No New Taxes. She asked for continued

investigation as to the level of safety for the development. She requested that any

information regarding the last participation between City Staff and the EPA to know

what standards they were assessing and what their answer was in regard to the

development. She asked if the EPA planned further investigation as the development

progressed. She stated the concerns were the same - safety and health issues, and

beyond that to tax issues.

Bill Windschief, 2872 River Trail, stated he was relatively familiar with the site as

he lived nearby, and had been investigating the site for a long time, ever since the

development activities were proposed. He was pleased they were finding out more

about the site with each exploration that the developer did. He thought that made

everyone feel more comfortable they were proceeding in the right direction. It was his

intent to make sure they got the right type of development on the site, and working

with the developer and contractor to ensure they had good safety practices for the

residents and the nearby park and the river. He recalled reading that very high levels

of PCBs were reported in various documents, some of which were extremely high

levels in Area E. He recalled they were 6,000 ppm, and recalled the threshold for an

acceptable level was 50 ppm, and expressed concern about that. He stated later

reports indicated lower levels, and thought some things could vary on the site. He

asked what the EPA said about the site based on the high levels of PCBs. He

believed it was a good idea for the EPA to review the work plan and the remediation

plan and the public health and safety issues.

Mr. Windschief referred to the eastern boundary, and asked if the PCB level

stopped at the boundary, since no one knew how the landfill had been filled. He

thought it was important to know that to see what impact the development would have

on the adjacent property to the east. He referred to Mr. Anderson’s February 14th

Memorandum to the City, which contained 18 or 19 questions about the 381 Work

Plan, and asked if those questions had been answered and there was a level of

confidence that the Work Plan, the public safety plan and the due care plan that would

accompany the Work Plan satisfied all those questions. He stated as a resident he

wanted to know what the EPA said about the site.

Lynn Loebs, 2845 Portage Trail, stated she was also an officer of the Clinton River

Valley Homeowners Association, which was the property just to the north of the site.

She wanted to address the air/dust monitoring equipment planned for use on the site.

She stated there were a lot of technical levels for the air monitoring, but there was no

definition on the dust levels. She asked whether the dust level would be set so that it

would put an inch thick of dust on her dining room table every day, or she would not

see any dust. She wanted to understand what level was acceptable, and would like to

encourage the developer to develop a very consistent level of communication with the

homeowners in the area, before, during and after, so they would know what was

done, what was expected to be found, what was found, and any changes made in the

plan on an on-going basis. She referred to the storm water retention, which was

indicated close to the backyards of the adjacent homes. She commented they were a

family neighborhood with young children who would have access to that area. She

would like to see it moved to a more visible, public area away from the homes, or if

some remedy could be found to make it inaccessible that would be conducive with the

visibility and the aesthetics of their neighborhood.

Chairperson Stevenson called for any other public comments. Upon hearing none, he

stated that concluded the public comments, and asked if the developer wanted to

respond to some of the questions asked by the residents.

Mr. Silver stated he would like to respond to some of the procedural questions. He

indicated the approach to the cleanup plan was dictated by virtue of a Consent

Judgment that was entered into on April 4, 2006. On September 28, 2006, the initial

Brownfield Plan was approved by the Brownfield Authority outlining where every hole

ought to be and everything that ought to be looked at. He noted they included certain

extra protections that were not necessarily part of a 381 Work Plan for investigations,

which was the initial baseline test for air monitoring. He stated they submitted the first

381 Work Plan on October 9, 2007, and it has taken them working with the City for

several months to today’s date to be able to present the revised 381 Work Plan. He

believed they had a technically complete 381 Work Plan. He clarified the 381 Work

Plan was not just to meet technical DEQ requirements, but it needed to meet the

City’s requirements as required through negotiation, such as encapsulation rather than

placing a cap or parking lot over the PCB area.

Mr. Silver stated the Consent Judgment also guided the City’s action with respect to

the 381 Work Plan. He explained the Consent Judgment stated if they had an

administratively complete 318 Work Plan, the City was to approve it. He understood

there were other outstanding issues and questions with respect to what would actually

happen. He stated they tried to resolve truck routes, and they would comply with

every Code and Ordinance, and noted they had an obligation to comply with

everything. He stated they would also comply with any reasonable request made of

them at the time.

Mr. Silver stated that although there were non-381 Work Plan issues that may still

remain, he urged the Authority to approve the Work Plan so they could find out if the

DEQ would be board with the Plan as well. He reminded the Authority that the

Consent Judgment said that if the DEQ does not approve the activities that are

included in the 381 Work Plan, then they did not need to be done. That is why they

worked very closely together and had communicated with the DEQ and tried to come

up with a 381 Work Plan with the maximum amount of protections they could have,

that the DEQ would approve and allow for reimbursement.

Mr. Silver said the issues that remained were not so much the work to be done, but

how the work was to be done. He thought the professionals that reviewed the Work

Plan were all in agreement that the work to be done meets the spirit and intent of the

Consent Judgment, and is safe for the residents of the Community.

Mr. Silver referred to the EPA, and stated they knew the issue would come up. He

indicated there had been a joint telephone conversation between City Staff, himself

and the developer. He indicated they spoke to a Mrs. Greensley with the EPA, and

she was provided with the data. He stated Mrs. Greensley acknowledged

unquestionably that the EPA did not have jurisdiction over pre-1978 landfills;

however, she did state that if there was an eminent health issue associated with the

site, they could step back in, but the burden would be on the EPA, not the developer,

to show that the risk was there. He indicated they had sent a letter of explanation and

all the data to the EPA and were waiting for a response. However, it was more of a

procedural order in their mind, which he had discussed with the City Attorney. Mr.

Silver stated that without getting approval from the DEQ and from the Authority as to

how they were going to approach the site, they could not really show the EPA how

they would minimize risk on the site because they needed the agreement of the DEQ

to sign off on the remedy they were proposing. He stated it was a matter of “what

came first, the chicken or the egg” situation. He requested that even if there were

concerns with the EPA, the Authority approve the 381 Work Plan so it could go to

the DEQ for their review, and then they could forward that on to the EPA, and the

EPA can sign off on whether they wish to have jurisdiction. He guessed the EPA

would deny having jurisdiction. He explained in 1986 they came out to the site and

did their own investigation, and then gave the site back to the State of Michigan. He

noted the State of Michigan did the initial removal at the site back in 2001, all the

subsequent investigations from 1986 until the present, until the developer took over.

He commented the previous owner took over and did some, and all were done by the

State.

Mr. Silver stated it was their strong guess that the EPA would say it was being

regulated by the State of Michigan and defer to the State of Michigan and say they do

not have jurisdiction over the site. He indicated as soon as they received that, they

would provide it to the City. He noted they would like to know that the remedy is fine

as part of the EPA’s review, and he thought they had agreed the remedy was.

Mr. Silver stated it was their strong guess that the EPA would say it was being

regulated by the State of Michigan and defer to the State of Michigan and say they do

not have jurisdiction over the site. He indicated as soon as they received that, they

would provide it to the City. He noted they would like to know that the remedy is fine

as part of the EPA’s review, and he thought they had agreed the remedy was.

Mr. Webber referred to Mr. Silver’s comment that they had sent a letter and materials

to the EPA, and asked what date that was sent. Mr. Silver stated it was sent over a

month and a half ago. Mr. Webber asked whether the letter was dated in January.

Mr. Silver indicated it was an email with attachments sent in early December. He

explained there had been several telephone calls and emails exchanged, and finally a

conversation was held with Mrs. Greensley on February 11, 2008 via conference call.

He stated it was clear from the conversation that Mrs. Greensley had not had an

opportunity to really review the material in detail, and she had stated she would not

have time to review and would have to give it to someone else to review as there were

only two people in their department.

Mr. Webber asked if the EPA had given them a time frame. Mr. Silver responded

she would not review it, but would give it to somebody. He stated he had made

contact with someone in the EPA’s Brownfield Redevelopment side, who was copied

on the data, and he would try to usher a quicker answer through that individual. He

stated that the remedy was part of that review, and until the Authority approved the

remedy, they could tell the EPA that the site would be safe when they were done.

Mr. Webber stated he was trying to establish a time frame, so the Authority would

know when things were delivered to which bodies and when. Mr. Silver hoped to get

an email confirming their lack of jurisdiction soon.

Mr. Silver reiterated the 381 Work Plan before the Authority was a technically

complete document, and addressed the issues and concerns in the Consent Judgment.

He stated the EPA’s consent pursuant to the Consent Judgment was not really

required until they asked for Building Permits or final Site Plan Approval. He

indicated the Consent Judgment contemplated that order as well. He hoped that

answered the more general questions about the timing. He indicated the more

technical questions could be addressed by either Mr. Anthony or by the City’s

consultant.

Mr. Delacourt commented that the Brownfield Authority saw the original 381 Work

Plan quite some time ago, and thanked the applicant for giving the presentation about

what had taken place as part of their investigation and what they propose for

remediation.

Mr. Delacourt stated Staff and the City’s consultant, Jim Anderson, STS, had been

involved in the review of Phase II proposed remediation. He indicated they agreed

that all the components required by Act 381 are in the document; however, Mr.

Anderson still had some issues and questions to be addressed in relation to the

document itself. He explained that subsequent to the Authority’s packets being sent

out last Friday, the applicant had provided even more revised information and

continued to revise the plan as recently as yesterday. He noted some of the issues

were being addressed; however, until Staff had a chance to review the changes and

Mr. Anderson had a chance to formally put it in writing, he was not recommending it

was technically complete.

Mr. Delacourt stated they wanted to know what the answers to the issues were

before submitting the Plan to the DEQ, or before recommending that the Authority

accept it and submit it to the DEQ. Until those items were reviewed and addressed,

he was not saying it was technically complete, rather they agreed all the components

were there.

Mr. Delacourt referred to the matter of the EPA involvement, and noted Mr. Silver

was correct in his “chicken/egg” analogy. However, he did not agree which came

first. He explained that he had not, nor had the question been asked during any

conference call he was party to, asked the EPA to approve the 381 Work Plan. He

believed the Consent Judgment did contemplate approval of the Work Plan prior to a

Site Plan Approval, which is not where the project stood. He stated he did want the

EPA to provide a formal answer as far as jurisdiction, before a formal remedy is

submitted to the DEQ. He did not agree the EPA needed the proposed remediation

plan to be accepted and submitted to the DEQ by the Brownfield Authority, in order

to review the site as part of their risk analysis. He was comfortable with the Work

Plan being submitted to the EPA if they requested a copy.

Mr. Delacourt stated that as part of the February 11, 2008 conference call, the EPA

had requested additional information, which was sent earlier today. He thought the

proposed remediation plan could be sent to the EPA for review if that was part of

what they needed to make a decision regarding jurisdiction.

Mr. Delacourt stated the only thing Staff was recommending was that than answer be

provided prior to acceptance and submittal. Staff did not feel it was appropriate to

submit it formally to the DEQ until it was decided if they had jurisdiction or not.

Mr. Delacourt stated another issue that had an impact on whether Staff felt the Plan

was ready to be accepted and submitted was the storm water maintenance. He

explained storm water maintenance and the developer’s proposed remedy for their

storm water, including the sediment dropout pond and the subsurface vaults, were

being included as an eligible activity in the Plan. Although Staff felt there was an

argument to be made that a portion of those costs should be eligible, Staff had not

seen a formal plan for how the storm water maintenance would work, and would like

additional clarification on that matter. He stated part of Staff’s recommendation to

withhold action at this time was because Staff felt these were reasonable questions,

especially the EPA jurisdiction, to be answered prior to formal submittal to the DEQ.

He noted draft copies of the Plan had been submitted to the DEQ, keeping the DEQ

up to date on the information. He stated Staff had offered independently to submit

any information the EPA requested or needed to make their evaluation on jurisdiction,

but disagreed with Mr. Silver’s interpretation of the order.

Mr. Silver reiterated his position, and explained he was hesitant to submit something to

the EPA for their review and approval that had not been approved by the DEQ. He

questioned what would happen if the DEQ did not approve the plan and would not

pay the costs. He thought that wasted time and energy dealing with the EPA on

something that would never happen. That is why he believed it was not until the Site

Plan Approval that the EPA’s consent was required if they did have jurisdiction. He

stated they needed to know the City was on board and that the DEQ was willing to

pay for that remedy before they could formally tell a Federal body that was the

remedy that would be done. He indicated the order had to be the approval of the

DEQ because it did not have to be done pursuant to the Consent Judgment unless it’s

approved by the DEQ. He noted the City’s approval was required before the Plan

could be submitted to the DEQ. He commented that he and the City Attorney had

discussed this issue at length.

Mr. Staran stated as far as the procedural question went, it was ultimately a question

for the Brownfield Authority to determine based on what their comfort level was with

the Plan in front of them and the questions they have. He explained the Consent

Judgment was very clear about some things, and less clear about others. One thing it

was clear on was that the principal inducement to the City to enter into the Consent

Judgment was to solve a health problem by getting the site cleaned up and remediated

to the extent reasonably and economically feasible, and to protect the residents. He

stated that was a paramount concern, and nothing in the Consent Judgment waivered

from that.

Mr. Staran stated there was a structure put in place through the Consent Judgment,

but it was not intended to bypass or circumvent any State or Federal Statutory

procedures, but was quite the opposite. It was included because the City did not feel

comfortable, nor did they feel it was lawful at the time the litigation and settlement

discussions were going on, to use the Consent Judgment to bypass or attempt to alter

through local negotiations what the normal processes were for the environmental

remediation and the Brownfield Plan approvals.

Mr. Staran clarified the procedures and time lines put in the Consent Judgment had to

be construed and interpreted in the context of the statutory procedures. He stated the

EPA involvement and how it affected the Plan was important. He noted EPA

involvement and input was mentioned in several different places in the Consent

Judgment. He commented that documents did not always read as clearly as one

would like them to read two years later, trying to answer a specific question. He

agreed it was an interpretation issue, and the Authority had heard Mr. Silver’s view as

to what the order should be, which was a reasonable interpretation. He stated he

could not tell the Authority that the Consent Judgment said it was different, but it was

not that black and white. He thought the EPA involvement was deemed very

important and was more than just a technical requirement. He stated if the EPA did

assert jurisdiction and required certain things, the EPA could radically alter what

needed to be done. He noted in the alternative, if Mr. Silver was correct, the EPA

could determine it was not their jurisdiction and would defer to the DEQ to be the final

authority along with the City as to what should be done.

Mr. Staran told the Authority the matter was susceptible to more than one reasonable

interpretation, and he would not tell the Authority that the Consent Judgment requires

the Authority to approve the submitted Plan at this meeting, although that was an

option. He noted another option the Authority had was to accept the Plan and

approve it for submission to the DEQ subject to EPA approval, if the EPA determines

that is required. He also pointed out another option, as being recommended by Staff,

would be to await that determination from the EPA before the Authority made their

determination whether to accept the Plan.

Mr. Staran noted that Mr. Silver was correct in his statement about submitting a Plan

to the EPA that the EPA agreed to, but that the DEQ denied. He supposed the

reverse was also true, such as the Authority accepting the Plan, the DEQ approving

the Plan, and the EPA deciding they did have jurisdiction and wanted the work done

differently.

Mr. Silver thought it was also an issue of timing because there was a statutory timeline

for the DEQ to respond to submission of a 381 Work Plan, which was 45 days.

Once the Plan is in the hands of the DEQ, there was a 45-day window before a

response would be received. He commented they wanted the site cleaned up as much

as the City did, and would like to start the clock running on those government

agencies as quickly as possible so they could begin the remediation as quickly as

possible.

Mr. Silver stated that if the Authority accepted his compromise and accepted the Plan

subject to the EPA determination, one of the clocks could start running, while the

other clock was already started, and hopefully get to an end and remediate this

season. He noted if they lost the season, it would sit another year and still be a health

hazard at the site.

Mr. Anzek reminded the Authority that several questions had been raised by the

audience that had yet to be addressed. He noted there had been discussion about the

last contact with the EPA and the joint conference call on February 11, 2008; and the

question about what the EPA said about the site. He noted the question about the

eastern boundary of the site, and whether the 18 or 19 questions in Mr. Anderson’s

Memorandum had been addressed. He also noted the question about the definition of

the dust level and what could be used. He suggested those questions be answered

prior to any further discussion.

Mr. Delacourt referred to the hard line edge of the property along the eastern

boundary, which was the extent of what the developer investigated. He stated the

City had already requested cost proposals for the City to consider doing its own

testing across the property line and what would be involved if remediation was

necessary. He indicated that Oakland County had been contacted about the potential

for grants and that process was being looked into. He indicated there was a concern

about how the remediation work proposed by the developer would be done, because

it was right on the City’s property line and there was some concern about how a

trench would be dug. He stated the City was curious from an engineering standpoint

about how that would work. He noted that technically that was not a section of the

381 Work Plan, but was information necessary in order to make an evaluation as to

whether the Plan was acceptable for the City to submit. He reminded the Authority

the 381 Work Plan was the Authority’s Plan, and the Authority submitted it to the

State; and in fact, the State would not accept a Plan from a developer but it had to

come from a Brownfield Authority. He explained that question was being looked into

and was an outstanding question that would have to be addressed as the matter

progressed. He indicated the applicant had only proposed remediation to cut right on

the edge of the property, which was all the applicant was obligated to do. The City

was curious about how that would be graded back to put in the trench wall, which

was a detail that until the Plan was approved, would require a series of bid documents

from engineers as to how that would be approved. He agreed the applicant needed

some level of assurance the Plan would be acceptable to the City and the DEQ before

going into that detail.

Mr. Anderson referred to Mr. Windschief’s questions regarding the level of PCBs,

and stated Mr. Windschief was correct that some of the historic documentation from

other consultants in the past reflected those numbers. He stated his firm had split

samples from the most recent investigation with the applicant’s consultant, and the

highest level found was a bit over a 1,000, or about 1,300. He explained there was a

lot of variability in this site due to soil chemistry and due to the fact the area had been

turned upside down. He stated there were drums there and the site had been

backfilled over the years, and then all pulled out again when the DEQ did their work

back in 1999 and 2000. The soil had been mixed up and turned over, and he was not

at all surprised a nice contour line could not be drawn from one place to the next. He

stated that was part of how the proposed remedy would handle the situation, which

was to box in all in and cover it up and contain it.

Mr. Anderson stated he did not agree with Mr. Silver’s interpretation of the 1986

EPA letter that the EPA handed the site back to the State; otherwise there would not

have been two other consultants under the auspices of the EPA that were there in

about 1988 and 1990. He indicated he was not confident in the outcome of the

discussions with the EPA, and he did know if the EPA wanted to have jurisdiction or

not. He clarified the matter just needed to be done the right way, and if the EPA

backed off and said it was in the hands of the DEQ, that was the way it would be. If

the EPA asserted jurisdiction because they felt there was a risk presented by the

property, then that was how it would go.

Mr. Delacourt stated he had some questions related to the EPA jurisdiction. He

indicated it was part of his concern that the DEQ had an obligated time frame to

approve or deny the Plan if submitted; however, the EPA did not have a time frame.

He questioned if the DEQ approved the Plan, and the EPA took several months

because of backlog to make a determination because they were not bound by any

time frame, whether the DEQ would want the EPA’s answer first to make a

determination of whether to approve school tax. Part of his concern was also that

there might be a situation where they had an approved DEQ Work Plan, which

allowed them to move forward with the remediation, prior to the EPA making a

determination or reviewing the project.

Mr. Silver stated they would stipulate they would not touch one iota of soil on the site

until the EPA made its determination.

Mr. Delacourt stated his other question was that the Consent Judgment said that prior

to Site Plan Approval, the EPA would approve the 381 Plan. He did not know how

that would work if the EPA did not claim jurisdiction, and noted that City Council also

had to approve it. He was still trying to get an understanding of what would happen, if

the DEQ approved the Plan and the work started, and then the EPA and City Council

denied the Plan. He noted Staff had no control over when site plans were submitted.

He felt there was some confusion over the time frame. He commented they were not

asking that the EPA approve the 381 Plan prior to submittal to the DEQ, rather just

render an answer as to whether they had jurisdiction over the site or not.

Mr. Silver stated the applicant would certainly entertain and be bound by and willing

to commit that if the DEQ rules before the EPA, they would not start any site

construction work until the EPA chimed in. Mr. Staran thought that could be

addressed.

Chairperson Stevenson noted the question about the dust control had not been

addressed. Mr. Anderson stated when the 381 Work Plan was submitted to the

State, the project manager in charge of it will actually hand the Plan to the Air Quality

Division, which is what was done when the baseline air sampling was done. The Air

Quality Division will review it for competency and either agree or disagree with the

proposal, or may ask for modifications. He noted it was a pretty comprehensive plan

that the AKT subcontractor had put together, and did not believe the levels had been

defined yet, but would come through both the Oakland County Department of Public

Health and the DEQ.

2007-0435

Mr. Anthony stated the levels presented in the Plan were the typical levels that the

DEQ uses for residential property. He stated the technical number was 550

micrograms per meter cubed, which essentially meant that at the property boundary

there would not be visible emissions. He referred to the photograph on the auditorium

wall of a golfer in a sand trap, and stated if the golfer could sustain that level for a

minute, that would shut down the site.

Mr. Anthony further explained that one minute of the exceedance shut down the site

and required a ten-minute period of being below the threshold before work on the site

was allowed to begin again.

Mr. Anderson stated that from a practical standpoint, the applicant would not want to

be starting and stopping and would take measures to avoid that. He referred to Mr.

Windschief’s question about whether they were satisfied with the Plan based on Mr.

Anderson’s February 14, 2008 Memorandum and the points set out, and stated his

response would be a qualified yes. He explained the applicant had made significant

strides in the past two weeks coming to the table with assurances of information

forthcoming that were not required to be installed in the 381 Work Plan. He noted

the applicant had added paragraphs and sections that were not required by any means

as a good faith effort that information was forthcoming. He stated that typically they

would not ask for that information to be produced at this point in time, such as the

engineering design or the dust control plan, which were all eligible expenses that

consultants can be reimbursed for in the next phase when the project starts. He

thought they had done a good job recently in making strides to address his questions.

Mr. McGarry referred to the EPA matter, and asked if the EPA decided it had

jurisdiction, what potentially could change from a technical perspective. He mentioned

in the past and with respect to the site across the street, he and others had met with

Mr. Matthews from the DEQ. One of things he knew about this particular site was

that it was only one of a handful of sites that were this complicated, and this site was

not an average run-of-the-mill brownfield that was easy for the DEQ to process and

put through. He looked at the proximity of the adjacent homes, and in looking at

other examples of other remediations of very high PCB sites, potentially where PCBs

could be mixed with other debris and may actually have an opportunity for more

movement than they would typically have, and asked if other remediations were used

as a basis for the plan the applicant was proposing for encapsulation.

Mr. Anthony agreed this site was not a typical brownfield site, and all the technical

precautions included in the Plan were reflective of that. He stated his firm had worked

on a site similar to this located in Bay City, Michigan, which was also a PCB cleanup

and was an industrial site nested right in the middle of residential. He stated the

subject site had a far greater level of safety and scrutiny than the Bay City site had,

which had similar levels of PCBs.

Mr. Anthony stated that the technical aspects of the encapsulation were far more

rigorous than the encapsulation approved for the Bay City site. The air monitoring is

to a much higher level than that implemented in Bay City, and noted the cap was the

same way. To give an idea of how high the PCBs were at that site, he noted it was an

old factory for transformers, and in World War II they were experimenting with PCB

oil in transformers and experimenting with whether they could bury the transformers in

the ground so they would be protective of bombing raids. Thus, they ended up with a

lot of deep, high concentrations of PCBs.

Mr. Anthony stated the subject did reflect the concern of the residents and the

response of the City, the developer and the State in putting in as high of technical

standards for safety, both with air monitoring and construction of encapsulation, as any

site in the State. It did reflect the complications present and the Community concern.

Mr. Anderson noted part of the question was whether there were other examples. He

stated there were examples that the EPA had been involved in, although not something

he had specifically been involved in. He knew the University of Michigan built a PCB

contained landfill at Willow Run Airport; Ford Motor Company had done it at their

Dundee site, and there are other examples where it had been done. He noted those

were much more industrial and isolated sites, and did not have a river a couple 1,000

feet away; homes a couple hundred feet away, a park and a wetland, or a trail where

pedestrians walk all day long. He commented those were some of the things that kept

them very concerned about how things would happen, and thus his long list of

questions for the applicant.

Mr. Anderson stated the question had been asked about what the EPA might require

as far as additions or changes. He noted that was a difficult topic. He stated if the

Toxic Substance Control Act (TSCA) Rules applied completely, they would go into a

TSCA Remedial Investigation, which was a very burdensome, difficult remedial

investigation to undertake. What happened after that was dependant on that phase.

Where they find the PCBs and at what levels, but was a very tight grid of sampling,

and the protocols are very stringent. He stated that was the first thing he would see

that would change, but so far they have not gone in that direction. What the EPA has

asked for is information from the applicant to help the government evaluate the risk

that may be posed by the site. While Mr. Silver was correct in that Mrs. Greensley

started out the discussion by saying typically for pre-1978 deposition issue, they

would recuse themselves from that, speaking on the terms of the EPA. In cases

where it was obvious or it can be determined there is a risk to the surrounding

population and what practitioners would call “sensitive receptors”, they can insert

themselves back in to the process. That was the stage this project was at currently.

Information has gone to the EPA and he did not know how they would view it as

much was historic, and they may ask the DEQ for information, and may interview the

DEQ.

Mr. Anderson was not necessarily convinced yet whether or not the DEQ will review

and comment on the Plan without input from the EPA. He stated he had some

hypothetical discussions with them about that, but they had not put forth a definitive

answer.

Mr. Silver pointed out the DEQ would not have the Plan until the Brownfield

Authority accepted the plan and submitted it to them.

Mr. McGarry referred to the sensitive receptors such as the river and the adjacent

houses, and asked if there were examples of areas where the EPA made a

determination that they insert themselves, so the Authority could look at examples of

their criteria to give them a sense of whether the EPA might be likely to be involved.

Mr. Anderson responded not that he was aware of. He explained he had not run

across them in this fashion before, noting his involvement had been all post-1978

deposition issues. Because of that, TSCA did apply and they asked for certain things

to happen because they had jurisdiction. In this particular case, because it’s a

brownfield site and in the long run the best thing is to have the site cleaned up in the

right fashion, it was difficult to figure out where it would go.

Mr. Anthony stated the site in Bay City was the closest example of a site similar to the

subject site that he had been involved with. He noted the Bay City site also had a rails

to trail that went right over the cap. In that case, they submitted the work plan to the

DEQ and then the DEQ contacted the EPA and the EPA waived their jurisdiction on

the site. That was also a pre-1978 release.

Mr. McGarry stated the packet included a groundwater elevation map and he noticed

in looking from the west side of the site to the east side of the site, that the

groundwater elevation, based on the topographical map, declined around 20 feet.

That suggests there is a relatively high level of water movement within the property or

within the ground, and asked what had been done in the investigation and in the Plan,

and in comparison to the Bay City site, to be comfortable and very confident that

nothing in the encapsulated area is actually going to migrate to the river, based on the

water level and proximity.

Mr. Anthony stated the Bay City site was a bit different in the aspect of technically

they needed to assess the potential for migration to a surface water body. In that case

they had both combined storm sewer and storm drains because Bay City is an old city

and was still separating out their CSO’s, which then discharged directly to the

Saginaw River. He stated for those who were familiar with Bay City and the Saginaw

River, they were very sensitive about PCBs being deposited there. They went through

quite a bit of investigation to determine if there was any groundwater contact with the

storm water and if there was migration through any of the utilities that discharged into

the Saginaw River. He stated that did end up entailing the cleanup of sediments in the

utilities there, where that was the pathway. He explained they have also done that

analysis on the subject site, i.e., what is the risk of PCBs migrating through

groundwater to a surface water body.

Mr. Anthony noted that, in fact, some of the information they just forwarded to the

EPA was that in 1990 was the first real round of groundwater monitoring where they

looked at PCBs, and PCBs were not detected in groundwater. Then the next episode

came in 1994 and again there were no PCBs in groundwater. In 2000, they collected

two events of groundwater samples, put in new wells, resampled those, noting some

of the wells were in the fenced area where the PCB concentrations are the highest.

Again, no PCBs in the groundwater. Part of the reason why is that PCBs are a very

large, organic molecule. He used the analogy, if you get oil on your hands and it sticks

and is hard to wash off, PCB is a large molecule and it sticks onto sediment, and

sticks on to the soil grains. Those become fixed and grains are less likely to migrate,

which is partly why they are seeing the PCBs are immobile.

Mr. Anthony stated their solution or remedy went further. He indicated that what

contributed to migration of contaminants from soil grains, and what contributed to the

potential of leaching, was infiltration. Rainwater comes down, collects on the ground,

infiltrates through the soil, infiltrates through the contaminated material, and tries to

leach that material off to carry it to groundwater. He explained the absorption bond

with PCBs appeared to be very strong here and they had not seen over many years

that the PCBs were migrating to water. But to go even further, is the encapsulation in

clay. A low permeable material with a cover - not only a clay cover, but with an

FML. He explained FML is the acronym for the type of material that the plastic sheet

is made from. He stated it was not cloth, but was a very thick plastic material, which

also controlled infiltration and prevents the contact of water with the contaminated

material. He noted they have been taking steps to address the migration pathway.

Mr. Anderson stated that in order to provide some visualization, flexible membrane

liner (FML) is not as thick as an old 33 rpm record, but was pretty close. It was not

rigid, but was flexible, and their proposal is to seam weld it together. He stated this

was a material that the EPA required, not recommends but requires, for landfill

construction. He indicated it was a liner material and a cap material. In this particular

case, because it was not practical to dig down to the depth and line underneath, they

are lining on top and surrounding with the clay material - two feet of compacted clay

on the four walls, the top, the flexible liner, and then either concrete or asphalt in that

area on top - which is the proposal at this point.

Ms. Morita asked how the matter was noticed. She stated the Agenda she received

indicated the Authority was here to receive an update, but did not mention approving

the Plan. She asked if the Authority could approve the Plan the way it was noticed.

She was not sure the neighbors in the adjacent subdivision had been put on notice that

the Plan was up for approval.

Mr. Staran stated there was nothing that prevented the Authority from taking action at

this meeting, although he thought it was anticipated that the Authority would not for all

the reasons discussed, such as the EPA issue. Rather the Authority would hear the

update, ask questions, discuss it and not take any action to move the Plan forward.

He was not aware there was a concern or an issue that people did not understand or

were not notified, and stated if that was a concern of the Authority, it was an

important concern.

Ms. Morita stated she sat on the Authority and she did not understand that. Mr.

Staran stated that City Council and the City had promised the neighbors that it would

be a public process and they would be made aware of what was going on. He agreed

it was not listed as an action item, but there were some actions the Authority could

take, which had been discussed earlier in the meeting.

Ms. Morita stated Mr. Silver made the statement that under the Consent Judgment the

Authority is required to approve an administratively complete plan. She stated she

read the Consent Judgment and asked where that language could be found.

Mr. Staran stated he had addressed that earlier, but believed the language Mr. Silver

referred to was on Page 27 of the Consent Judgment, Paragraph (i), which he

proceeded to read for the benefit of the Authority as follows:

“Plaintiff shall submit an amended 381 Work Plan consistent with the

requirements of this Consent Judgment to the MDEQ and will submit the same

to the City. Any amendment to the Brownfield Redevelopment Plan will

incorporate additional costs as needed to meet the terms and intent of this

Consent Judgment. The City will approve the Brownfield Plans if they comply

with all the requirements of this Consent Judgment. The 381 Work Plans

must be accepted by the City, which acceptance will not be delayed or

unreasonably withheld, and approved by the MDEQ prior to Plaintiff’s

receiving Site Plan Approval.”

Mr. Staran stated that was the only paragraph that spoke to the approval process

itself in the Consent Judgment.

Ms. Morita asked if it was Mr. Staran’s belief that the matter was noticed for action.

Mr. Staran stated it was not noticed for action, but was noticed as an update.

Ms. Morita asked if it would be appropriate for the Authority to take action at this

meeting. Mr. Staran stated if there was a concern that residents had misunderstood

the notice, he would agree it would be inappropriate to take action.

Ms. Morita stated in terms of compliance with the Consent Judgment, one of the

issues was the location of any above ground water retention. She asked if the way the

Plan was presented with an undefined area of above ground water retention is in

compliance with the Consent Judgment.

Mr. Staran stated it could be, but it was premature to answer that question because

there was a lot of engineering and other things that had to take place that had not even

started yet. As far as the storm water drainage system, it was his understanding there

had been some preliminary talks but they had not gotten in to the detail of that. He

stated there was a provision in the Consent Judgment that addressed that precise

question. He referred to Page 11 of the Consent Judgment, the last paragraph that

discusses the 100-foot buffer area on the north side of the site that extends the whole

site from Adams Road to the eastern boundary. He stated the Consent Judgment

provides that the Plaintiff may use the 100-foot buffer area for any under ground storm

water detention/retention facilities providing it does not interfere with the required

landscaping. He noted the Consent Judgment said:

“If any above ground detention/retention is necessary in the 100-foot buffer

area, Plaintiffs will locate such detention/retention as far east on the property

as practically possible so as to keep the detention/retention area away from

the residential homes to the north. In no event shall above ground

detention/retention be permitted directly abutting any of the existing residential

home.”

Mr. Staran stated that in an earlier version of the conceptual site plan, there was a

rather large above ground retention facility that was to be located adjacent to the

easternmost homes. He stated that was something that was found to be objectionable

by the City based primarily on the neighbors’ comments, and it was something that

they went back to the negotiation table to work through that. He stated that was

where the concept for primarily an under ground drainage system which would also

have the environmental benefits as well, and to try to eliminate the above ground

detention/retention either altogether or to minimize it. Through some preliminary

review of the concept site plan, the City Engineers did look at it and did think there

may still be some need for an above ground facility, simply because the drainage had

to be put somewhere. It was thought if they had to have it, it should be located as far

to the east and away from the homes, which is how the language came to be in the

Consent Judgment. He noted Mr. Anthony had pointed out it would serve basically

as a sedimentation basin function. He reminded the Authority that at this time it was

very preliminary and had not been engineered to the point where anything was certain

about it.

Ms. Morita stated she understood that, but from what she understand, if the

applicant’s Work Plan is in compliance with the Consent Judgment, the Authority was

required to approve the Work Plan. She stated her question was the Work Plan was

now providing for above ground water retention, when they had no specifics on where

it is, and there were all the qualifiers as to where it could be located, if they knew

whether or not the Plan was in compliance.

Mr. Delacourt stated Staff learned last Friday about the split between under ground

and above ground, and had not reviewed the plan regarding that. He stated Staff had

talked to the applicant about submitting an engineering plan to see what it was and

also because it was identified in the Plan as an eligible activity, but when the packet

was sent to the Authority, Staff was under the assumption it was a full underground

system.

Ms. Morita stated that the Authority would not be required to approve the Plan

because they did not know whether or not it was in compliance with the Consent

Judgment.

Mr. Delacourt stated the Authority could handle that through a condition. Mr. Staran

agreed the Authority could handle it through a condition. He noted that Mr. Delacourt

and Mr. Anderson had both stated there had been a lot of information going back and

forth, including some revisions and input that was received as recently as yesterday,

and Staff had not carefully reviewed that information yet. He noted they had seen it,

they knew what it was, and it appears to be an attempt to address questions that had

come up, but it has not been fully analyzed. He commented the drainage was at a

very early stage and had not been reviewed by the City Engineers yet.

Ms. Morita stated that basically the Authority did not have enough information. Mr.

Delacourt referred to the prior discussion about the sections of the 381 all being

included in the Work Plan, but Staff still had more questions about how the items

would be accomplished and other issues they feel are reasonable to review prior to

submittal to the DEQ.

Mr. Staran stated that the precise layout of the storm system would probably not be

determined until Site Plan Approval, and even after that through the construction plan

review and approval. He noted that was more of a final step rather than a first step.

Ms. Morita asked if expenditures for the system were included in the Plan. Mr.

Delacourt stated that was concern of Staff because of the costs associated with some

of the underground portion, and he believed the liner with the above ground portion,

are included in the Plan as eligible activities.

Ms. Morita clarified the Authority was expected to approve a plan for the water

retention system, noting the Plan included giving the applicants funds to build it, but

they did not know what it would look like, where it would be located, and did not

have any specifics. She asked if the applicant could give the Authority some specifics

about where it would be and what it would look like.

Mr. Henderson stated Mr. Staran was exactly accurate. He explained that storm

water came after site plan because there were pipes in the ground, and there were

variations of where the buildings would go, but the engineers do calculate based on the

square footage and the area that would be drained, they would know how many cubic

yards of water would run off the property. By that calculation, they can identify what

the cost will be to build above ground or below ground with a bottom to the storm

detention, a vault system or an open system. He explained this was designed for a

bottom, enclosed vault system, and the open area they planned to comply with the

Consent Judgment to put it as far east as possible where it does not address the

homes. They felt they were compliant with that. He referred to the part that may

become an above ground area, and noted Mr. Anderson had suggested to him earlier

today that he had information that may allow that to go below ground at a lesser cost.

He noted that was not a detention, but was merely a sediment basin to grab free

particles so they did not go into the river system or in to any other runoff areas. It was

not a large pond, but was a very small area that was merely called a sediment basin.

Ms. Morita asked if the applicant could provide a dimension of what they considered

to be a very small area. Mr. Henderson stated he was not qualified to state that. He

explained that with respect to the under ground storm water detention, he had seen

sizes of different vault systems, such as cubic feet, but noted those were placed

underneath the parking areas and were adjustable. He explained they could not

design the system prior to Site Plan Approval as it was not a process that was done.

He stated all the Authority could see were the attributable costs for the amount of

storm water they would maintain.

Mr. Silver agreed that to do otherwise would be presume Site Plan Approval for the

location of something, which they did not have.

Ms. Morita asked Mr. Anthony if in his experience he had an idea of how big the

detention/retention pond would be. Mr. Anthony responded that the storm water

detention system had been designed by another civil engineer that was part of their

team, PEA (Professional Engineering Associates, Inc.), and they would be the

appropriate firm to answer the question. He noted they had seen some conceptual

drawings for the plan, but it would not be appropriate for him to answer.

Ms. Morita asked if the applicant came back next month and the Authority was faced

with having to approve the Plan, if it would be possible to provide more details.

Mr. Silver stated that if it was going to be the pleasure of the Authority to adjourn the

meeting without action, he would request a special meeting at the earliest possible

convenience. He noted they needed to move the project forward.

Ms. Morita stated she would like an answer to her question. Mr. Silver noted Ms.

Morita had included the phrase “come back in a month” in her question, and he was

not necessarily allowed to commit to a month.

Ms. Morita asked if the next time the applicant came back before the Authority, they

could provide more detail.

Mr. Henderson stated it was premature because it was an engineering design after the

site plan was done. He noted if the Authority wanted approximates that would be

flexible just to satisfy a picture, such as is it a quarter-acre or it is 25’ x 25’, they could

accomplish that request, but it would not be the final solution. He indicated they did

intend on honoring the Consent Judgment and locating it, if it is required, in the area

stipulated in the Consent Judgment. Because of that, he did not understand why it

was a pertinent issue.

Ms. Morita stated she knew the neighbors in the adjacent neighborhood and she

knew they were very concerned about the water retention system, as it was one of the

biggest issues. She expected them to have a lot of questions and she was trying to

help the project move along. She stated she wanted the project to succeed, and she

wanted her neighbors to get the answers they would be asking. She did not want

them to walk out of the meeting frustrated because they felt the applicant had

information they were not sharing. She stated if it was just an approximation of where

it was located, and how big it would be, that would be better than giving them nothing

at all. She commented they had to live next to it and would be the neighbors to the

property for a long time. In this case, she thought a little bit of information about what

they were planning would go a long way toward showing good faith.

Mr. Henderson thought they had shown a lot of good faith. Ms. Morita stated she

thought they had too. Mr. Henderson stated they had met with the neighbors two and

a half years ago before Ms. Morita moved to the neighborhood.

Ms. Morita stated the Plan mentioned that they were expecting odors to come from

Area E during excavation, and asked what type of odors were expected.

Mr. Anthony stated the odors may range from a smell similar to a rotten egg smell,

which was typical of decaying organic matter and was most common with excavating

old landfills.

Ms. Morita asked if they were dangerous. Mr. Anthony stated the rotten egg smell

was sulfur which human noses had an acute sensitivity to and can sense that at a

concentration that is well below any dangerous level. He responded “the odors - no”,

but noted they had all sorts of monitoring put in place, both with the dust/air

monitoring, and then directly at the point of excavation or point of release where they

would be screening for VOCs. He explained that just because a chemical had an

odor did not necessarily mean it was a hazard or not a hazard. He stated the other

methods they were using for screening and monitoring air did look at what types of

materials are causing those odors, or what types of materials are being released. He

commented that odors were really characterized more as a nuisance than a health

hazard.

Ms. Morita asked if they were expecting any of the odors to be a health hazard. Mr.

Anthony responded he would not expect the odors to be a health hazard, but they will

be able to take precautions for odors if they do have odors. He explained they were

also trying to minimize any disturbance or inconvenience to the residents that are

nearby. He further explained that the odors they would see as a nuisance, but would

also take precautions to control those.

Ms. Morita asked if the was a possibility there could be fumes that could not be

smelled that could be dangerous. Mr. Anthony explained that was the reason they

had the other types of air monitoring out there. For instance, just in screening VOCs,

there may be volatile organics that cannot be smelled, but can be picked up through

the air monitoring.

Ms. Morita stated there had been discussions at prior meetings about emergency

response coordination, and asked if that had been worked on with the City. Mr.

Anthony stated that emergency response is always standard practice with any health

and safety plan, and health and safety plans are standard for these types of projects.

Ms. Morita asked if the applicant had been working with a plan with the City. Mr.

Delacourt stated that the applicant had provided maps as part of the 318 Work Plan

to the City to provide the Fire Department an idea of what area they would be

working in at what time, and what the Fire Department could expect to come across if

they were called to the site. He explained that was done as part of the previous 381

Work Plan and have continued to do so, which was outside of what they would

normally be required to do.

Ms. Morita stated she understand the applicant was not planning to do anything in

Area B. The applicant responded that was correct. Ms. Morita asked if Area B

would be left as it is. Mr. Anthony stated that from an environmental standpoint, it

would remain as is. Due to the development, there would be grading and landscaping.

Mr. Anderson stated that from an environmental standpoint, they would not have any

cleanup activity in Area B, however, from a construction standpoint, there would be

grading and new landscaping.

Ms. Morita asked if the developer would be working with the residents adjacent to

Area B to work out when the landscaping would be done after the cleanup. Mr.

Henderson responded yes.

Ms. Morita stated she had noticed that methane was being emitted from Area E, and

asked Mr. Anderson if it was correct that nothing traveled downhill or uphill or if it

was indeterminate. Mr. Anderson stated that methane tended to defy logic and

gravity at different times, noting it was affected by atmospheric pressure, water and a

variety of other structures that would confound the imagination. He noted it did not

follow any particular set pattern.

Ms. Morita asked how far methane could travel and still be dangerous. Mr.

Anderson stated it depended on the original concentration of the source. At times it

can be degraded very easily by microbes in the soil and may never get very far. It can

be intercepted by utility structures, roadbeds, things like that that would divert it from

ever coming into play.

Ms. Morita asked if there was anything in the Work Plan that would divert the

methane from going to the homes to the north. Mr. Anderson responded, yes, the

encapsulation system itself.

Ms. Morita asked if the encapsulation system was sufficient, why there would be

monitoring at two buildings. Mr. Anderson stated they were not monitoring, they

were installing what was called a “presumptive remedy” that just in case anything were

to happen, if there was methane ever generated in the subsurface from that general

geographic area, or perhaps to the south, if it found a pathway through, those buildings

would be protected.

Mr. Anthony added that it was consistent with the DEQ guidelines as those were the

buildings within 500 feet. He explained that methane came from the degradation or

organic material, and a lot of organic material is deposited in landfills. He stated in

looking at the area they were removing, and the tremendous amount of mass of

potential methane generating material that will be gone, and that a methane survey was

conducted across the site, and there were only two hits of methane in the fenced area,

the site is very localized and the material that can generate methane will be removed,

and where it is not, it will be encapsulated. He pointed out there were a great many

steps of safety that are put in place.

Mr. Karas referred to Page 25 of the Consent Judgment, Section D, and asked if the

applicant could provide some evidence of their contact with the DEQ. Mr. Silver

stated they had met with the DEQ and they approved the initial 381 Work Plan for the

investigation of the methane, and they had been provided with all the results. He

explained that was taken care of in the initial investigation. He stated the DEQ had

told them exactly where and what they wanted to test for.

Mr. Karas asked if the City had a copy of the DEQ letter with their instructions. Mr.

Silver stated there was additional money built into the 381 Work Plan for more

methane investigations, if the DEQ thought it was necessary based on the initial

rounds, and the DEQ told them not to spend it.

2007-0435

Mr. Anderson stated that was his understanding as well. Historically, that was exactly

how things happened. He explained that the DEQ typically did not issue any type of

formal communication letter saying the applicant did not have to finish the task, they

handle that administratively. He stated it would be atypical for the City to expect

some formal communication from the State on that matter. He noted they had

signified that no additional investigation was necessary at this time with respect to

methane. He stated that was communicated verbally to the applicant, and they had

followed up with him as well.

Mr. McGarry referred to the detention and the storm water, and commented it was

mentioned about the opportunity for children to be playing near it as a potential issue.

He agreed many of the residents were concerned about that. He did not feel the

Authority should take any action at this meeting because they needed to be sure the

residents had an opportunity to comment.

Mr. McGarry referred to the discussion about the detention bin, and asked in terms of

a fully underground system versus a partial underground with a retention bin, if there

were significant technical hurdles that relate to specific kinds of sites, or whether it was

specifically a cost issue, or what determined the decision criteria.

Mr. Anthony responded that in looking at the site as if it were clean, they would go

with everything above ground. One of the reasons they moved to take the bulk of the

storage below ground was because of the concerns of the citizens. With respect to

the technical aspects of building a below ground system, typically they build below

ground systems which are large vaults that also can infiltrate. This one is a little bit

more complicated in that it prevents infiltration, and has to be able to hold the volume

of water calculated needed for the site, and yet not allow it to infiltrate, which requires

more storage capacity. He commented that this site, being a brownfield site, does

require more twists to it. Putting the system below ground was in response to citizen

concern of their being a storm water retention system. He noted the bulk of the

volume of storage is storm water storage.

Mr. McGarry asked, in terms of removal of the sedimentation, if there was a way to

do that underground as well, cost effectively, so that there would be an entirely

underground system. Mr. Henderson stated Mr. Anderson had pointed out earlier in

the evening that he knew of a system that would enclose that last portion of the storm

system called the sediment basin, which he felt would be less expensive than what they

had proposed. He stated they would look at that and see if they could put the entire

system as an enclosed system.

Mr. McGarry thought that would be good because of the potential for children to be

playing in the area.

Mr. Silver addressed the Chair, and noted for the record that they did not ask for an

informational meeting, but had asked for a meeting that would take action, so they

could move forward with the DEQ.

Chairperson Stevenson stated that was not presented to the Authority, but rather this

meeting was an update. He noted that particularly in view of the situation with the

EPA, he did not think the Authority could take action at this meeting.

Mr. Delacourt stated the applicant did indicate they would like to have the opportunity

to have the Authority take action; however, he was not aware that titling a matter as

an update would prevent the Authority from taking action. He noted he had never run

into that situation before, or that it would prevent action being taken. He stated Staff

understood the request from the applicant, even though it was Staff’s recommendation

that until some of the issues were addressed and additional information provided, the

Authority withhold action. The wording on the Agenda was not intended to prevent

the Authority, if it so desired, from taking action, either conditionally or accepting and

submitting the plan to the DEQ. He reminded the Authority it was not an approval

situation.

Chairperson Stevenson stated that based on his understanding of the discussion even if

Staff had said this was an action item, the Authority would not be in a position to vote

on it.

Mr. Morita pointed out that if everyone’s schedule allowed and the notices could be

sent out, she would be here on a Saturday morning to discuss the matter again to get

the applicant an approval, if that was what the Authority wanted. She stated it was

not her intent to delay this matter, but the applicant should understand there were a lot

of people concerned about this, and they need to be on notice the Authority would

approve the Plan. She did not want to have a firestorm that could be avoided if the

matter can wait a few days or a week, which is why she brought it up.

Mr. Henderson stated they would be glad to entertain a special meeting if it could be

set.

Ms. Morita stated if it worked with everyone’s schedule, she did not have a problem

with it. She wanted the applicant to be clear it was not her intent to unduly delay the

project. She wanted it to go forward, but wanted it to go forward properly.

Mr. Henderson stated that sometimes the boards they appear in front of do not realize

that not only city staff, city consultants, the applicant and their consultants had worked

on something for fourteen months to bring before the board, so they were ready for a

decision by the time they appeared before the board, and did everything they could to

lay out the groundwork for a decision. Hopefully, Staff has informed the Authority

along the process so that they could make an educated decision at the meeting or at

the next special meeting. He stated they were already at the point where they were

wondering why it has taken this long, although Staff has been wonderful and the

consultants have been wonderful, they had worked overtime to get everything asked

for in a timely fashion.

Mr. McGarry stated that Staff had commented on the applicant’s willingness to work

with them and provide information, and commented that the Authority had received

their packet information on the Friday before the meeting and also had to work hard

reviewing the material.

Mr. Turnbull referred to the area of encapsulation and noted Staff had indicated they

had requested assistance in identifying the nature and extent of contamination on the

adjacent City site. He asked how long the City was willing to wait for that

information, and what the City was prepared to do to identify the nature and extent of

contamination on the property line so that a possible remedy could go forth that would

encapsulate the entire area.

Mr. Delacourt stated the City was looking in to that matter, and had investigated the

possibility of perhaps including portions of the City property in the plan, but it did not

appear that was feasible. He explained the next step was to go to the County

regarding potential assessment grants or loans to perform some testing and possibly

combining of those funds with the subject project, although the County appeared to be

hesitant to provide any grants or loans for a parcel that is not associated with an

increase in development because that was what those grant and loan monies were set

aside for. He stated STS had provided a phased cost estimate for different levels of

investigation. If none of the those options are available for the City Council to

consider going forward, it was Staff’s hope that a way could be found to incorporate

the two processes together and coordinate them with some cost saving measures.

Until that is determined, Staff agrees with the applicant’s proposal.

Mr. Turnbull asked how long the City was willing to wait, and if all resources are not

available, if the City was prepared to undertake that matter. He thought there would

only be half a remedy if there is encapsulation on one side of the property line, and

with respect to the residents to the north, they only had half an encapsulation. He

noted it was not the applicant’s responsibility, but it was no less of a problem for the

residents to the north.

Mr. Delacourt agreed, and stated the City’s Environmental Oversight and Cleanup

Technical Review Committee (EOC) was reviewing options regarding the City

property. Pending some determination on how it worked out or if it could be

incorporated, a recommendation would be taken to City Council on how to proceed.

Mr. McGarry asked, if there was no determination regarding the City’s property, and

the Authority approved the work plan and the project moved on, and the EPA did

whatever they were going to do, and the trenches were being dug to encapsulate the

applicant’s site, and while digging down ten feet, it could be seen that the City’s side

looked just as bad as the applicant’s site, what would happen. He asked if it would

just be a matter of the clay being put in on the applicant’s side and the job being

considered complete.

Mr. Silver stated that would be all the applicant could do. He explained a way to

incorporate the City’s property into the Brownfield Plan and allow the capture of

additional tax dollars had been reviewed, but that could not be done. From the

applicant’s standpoint, they could not cross the property line.

Mr. McGarry stated he recognized that, but as a resident of the City that lived close to

the site, he would think it was a stupid plan. He felt an outside observer would

wonder what the City and the developer were doing.

Mr. Anzek stated the City had looked at the matter for some time, and there were a

couple indicators there may not be any contaminants there. He noted there was a

severe grade elevation, an increase in height, and a tree line with trees estimated to be

60 to 70 years of age. He agreed the initial investigation had to be done to verify that,

which was the first order of business, to find out if there were contaminants on the

adjacent property. He did not want to worry about the cost of the investigation not

being done before the applicant began digging.

Mr. Delacourt stated that if the City had not done some form of an investigation by

that point, and it cannot be incorporated in the applicant’s 381 Work Plan, then the

City would be out there doing some form of investigation in very short order.

Mr. Delacourt referred to the part of the question about the trenching work being

done, and if barrels were spotted across the property line, whether it would just be

filled. He guessed that would not happen. At that point the City would be aware

there was a rather serious issue, and the City would take whatever measures were

necessary to resolve that situation immediately. He know from his involvement with

the Authority, the EOC Committee and City Council, that they would not allow that

type of problem to be buried and put away. He guessed it would never get that far

without the City having some idea whether any type of contamination, either barrels,

pushed soil, or turned over soil, had crossed over the City’s property line. He noted

proposals had been put in place to do that exact testing.

Chairperson Stevenson called for any additional discussion or questions from the

Authority. Upon hearing none, he asked if the Authority wanted to make a motion to

postpone the matter or establish another meeting, or make a motion to accept the Plan

subject to conditions.

Ms. Morita stated she would make a motion to request that Staff coordinate with the

Authority and the applicant to schedule a meeting date prior to one month from this

meeting so the issue could be addressed earlier than next month.

Chairperson Stevenson called for a second to the proposed motion. Mr. Turnbull

stated he would second the proposed motion on the floor.

Mr. Staran suggested that if there were things that were to be accomplished, or

information that the Authority wanted to be presented before the meeting, it should be

included in the motion. He noted that would avoid the Authority holding another

meeting without all the parties being on the same page.

Chairperson Stevenson asked the Authority to list the items or information they would

like to have prior to the next meeting.

Mr. McGarry stated that in looking in the letters provided by Mr. Anderson from STS

regarding the Plan there were two pages of open issues, and although some had been

discussed and cleared up, some additional follow-up about what items remained open

would be useful.

Ms. Morita asked for any information the applicant could provide regarding the above

ground water retention system, so the residents would have an idea of what the

applicant was considering.

Mr. Staran suggested the retention information also include the applicant’s

investigation of the possibility of going below ground with the retention system.

Mr. Silver wanted the Authority to understand that if the retention system was above

ground, they could not actually tell the Authority where it would be located on a map

because they did not have the authority to locate it. Mr. Staran stated the Authority

was just looking for an approximation if that could be done. Ms. Morita stated it

would help keep imaginations from running wild about the size of the system or where

it would be located.

Mr. Silver explained it had to be located on the portion of the property that has no

home adjacent to it because that was the lowest portion of the property. Therefore, it

had to be in the northeastern-most portion of the property because of the topography.

He stated they would provide that information.

Mr. Karas stated he would like to see some additional information about the

encapsulation, and a revised map that clearly defined Areas A through F, as the

locations currently shown were on several different maps.

Mr. Anthony stated that there were details in the Work Plan about the encapsulation

regarding its permeability and geotechnical testing before installation of no more than

two lifts with arbitrary compaction.

Mr. Webber requested information about the EPA issue, noting it was something that

had been discussed and the Authority would like to know about. Mr. Silver assured

the Authority that the minute he heard from the EPA, the City would know. He again

reiterated the applicant was requesting a vote on the Plan at the next meeting,

regardless of whether the EPA had responded. He indicated he would put as much

pressure on the EPA as he could to get an answer before the next meeting.

Mr. Anzek wanted to assure the Board that the next meeting notice would have the

appropriate language on it for a consideration of action. He stated it would be sent

per City policy to everyone who had attended a meeting, spoke at a meeting, or

expressed an interest in being notified.

Ms. Morita requested that notice be provided to the thirteen adjacent homeowners

who resided on Portage Trail because she did not believe they had been notified about

the meeting.

Mr. Anzek stated if those residents had spoken at previous meetings, they would be

included on the master mailing list for the project. He commented that it was difficult

for the City to determine which subdivisions should be noticed in their entirety.

Mr. McGarry thought there were many residents in the Clinton River Valley

Subdivision that were interested in this project. He commented that knowing the

general prevailing winds were to the northeast, he would not have a problem having

the Heritage Oaks Subdivision noticed. He indicated he would notify his subdivision.

Mr. Delacourt stated the City has always noticed in conformance with the

requirements for a project. He explained there was no foot or distance notice

requirement for the subject project. He stated for Staff to independently make up

notice requirements that do not exist became very dangerous for the City. He noted

the City did it’s best to get the word out and meetings noticed, and by policy noticed

everyone who spoke at a previous meeting. He indicated that for Staff to make

indiscriminate determinations when a notice distance is not required by either an Act

or a policy was avoided and that Staff noticed based on the requirements of a

300-foot mailing as required by the Act, or based on the City policy of anyone who

spoke at a prior meeting or indicated they would like to be noticed. He commented

that if Staff decided on the fly whether street by street, or subdivision by subdivision, a

notice should be sent, would result in the next street over questioning why they were

not noticed.

Chairperson Stevenson noted it was public information that the Authority met on the

third Thursday of each month, and notice was provided for any special meetings.

Mr. Anzek asked Mr. McGarry to provide him with the name of the president of the

homeowner’s association for his subdivision, so a notice could be sent to that person.

Mr. McGarry responded he was the president of that association. Mr. Anzek advised

Mr. McGarry the City could provide him with additional copies of the notice for

distribution in his subdivision.

Chairperson Stevenson called for any further discussion on the motion on the floor.

He reminded the Authority that the motion had been made by Ms. Morita, seconded

by Mr. Turnbull, to reschedule this Agenda Item for a special meeting with a request

for additional information to be provided. Upon hearing no further discussion, he

called for a voice vote.

A motion was made by Morita, seconded by Turnbull, that this matter be

Postponed. The motion CARRIED by the following vote:

Aye

White, Karas, Stevenson, McGarry, Turnbull, Webber and Morita

7 -

RESOLVED in the matter of File No. 03-013, the NE Corner Hamlin/Adams Project, that

the Rochester Hills Brownfield Redevelopment Authority requests that this matter be

POSTPONED and also requests that Staff coordinate with the Authority members and the

applicant to select a meeting date prior to one month from now to address this matter

again.

FURTHER RESOLVED, the Authority requests that the following information be provided

prior to the meeting being scheduled:

1. Additional follow-up regarding the issues outlined in the review letter from Jim

Anderson, STS, dated February 14, 2008, identifying whether the items listed have or have

not been addressed.

2. Information on the applicant’s plan regarding the above ground water retention system

to allow the residents to understand what is being considered.

3. Information regarding the applicant’s investigation about the possibility of installing

below ground retention on the site, with an approximate location.

4. A revised map clearly defining the areas described in the 318 Work Plan as Areas A,

B, C, D, E and F.

5. A determination of whether the Environmental Protection Agency (EPA) will consider

potential jurisdiction regarding the remediation of the site.

2007-0435

Chairperson Stevenson noted for the record that the motion had carried unanimously.

ANY OTHER BUSINESS

8.

Chairperson Stevenson called for any other business. No other business was

presented.

ADJOURNMENT

9.

Chairperson Stevenson stated that the next regular meeting of the Authority was

scheduled for Thursday, March 20, 2008. He then called for a motion to adjourn.

Upon a MOTION made by Webber, seconded by White, Chairperson Stevenson

declared the Regular Meeting adjourned at 9:13 PM.

________________________________________

Thomas Stevenson, Chairperson

City of Rochester Hills

Brownfield Redevelopment Authority

_______________________________________

Judy A. Bialk, Recording Secretary

Minutes approved as presented at the March 13, 2008 Brownfield Redevelopment

Authority Special Meeting.