HomeMy WebLinkAboutMN-CC-2011-08-18COMMON COUNCIL PROCEEDINGS
CITY OF ITHACA, NEW YORK
Special Meeting 5:30 p.m. August 18, 2011
PRESENT:
Mayor Peterson
Alderpersons (9) McGonigal, Dotson, Rosario, Clairborne, McCollister, Zumoff,
Rooker, Myrick, Cogan
OTHERS PRESENT:
City Clerk – Conley Holcomb
City Attorney – Hoffman
Superintendent of Public Works – Gray
EXCUSED:
Alderperson Mohlenhoff
PLEDGE OF ALLEGIANCE:
Mayor Peterson led all present in the Pledge of Allegiance to the American Flag.
Mayor Peterson noted that public comment was not on the agenda due to the
roundtable discussion held last week between the neighbors, Council, the New York
State Department of Health (DOH), and the Department of Conservation (DEC). She
asked Council if they would like to entertain additional public comment tonight as
members of the audience would like the opportunity to speak. Common Council
consented to a brief public comment period.
PUBLIC COMMENT PERIOD:
Bill Beierle, 306 Turner Place, noted that he has circulated a petition in the
neighborhood that received 88 signatures regarding the need for additional air testing.
He stressed that this is the only leverage that the neighborhood has had during the
entire process. He voiced concern regarding the stack system noting that it was an
experimental solution that has not been used before. He further voiced concern for the
safety of his family and the transformation of chemicals as they degrade.
Walter Hang, City of Ithaca, stated that this is the 25th year of failure to clean-up this
site, noting that he was the one who discovered that the Record of Decision wasn’t
working. He said that the mitigation systems are suspect because of the lack of dirt to
facilitate the movement of vapors, as the homes are built on bedrock. He urged that
Council not grant the easement to Emerson.
Pam Mackesey, City of Ithaca, stated that she was the Common Council member
representing South Hill when the contamination was discovered. She stated that the
City should be respectful toward the neighbors and not grant the easement to Emerson,
noting that people have lived for years with uncertainty. She stated that the State
agencies still don’t know the parameters of the pollution on the site.
Ken Deschere, Co-chair of the Community Advisory Group, observed the hard work of
Dan Hoffman, Jennifer Dotson, Eric Rosario and others to craft language that will be
agreeable to the Department of Environmental Conservation and Emerson. He stated
that the plan approved by the DEC does not go far enough and additional testing is still
needed. He believes the City owes it to residents to give them a level of comfort as
everyone should be entitled to live safely in their homes.
John Graves, President of the South Hill Civic Association urged Common Council to
listen to the neighborhood and not grant the easement.
Cynthia Brock, City of Ithaca, referenced a 2008 petition to clean-up the Markles Flat
site and noted that she is addressing Council once again with a community that is under
duress. She urged Council to put their resources behind the needs of the residents.
John Oakley, 510 Turner Place, questioned whether refusing to grant the easement
would actually gain a change in the Record of Decision. He urged people to think about
a strategy and determine if this is truly a point of leverage.
August 18, 2011
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SPECIAL ORDER OF BUSINESS:
Approval of Easement for Emerson Power Transmission Vent Stack (Re: South
Hill Remediation Program)
Mayor Peterson thanked Alderperson Rosario and City Clerk Holcomb for assembling
the notes from last week’s meeting so they could be used as a point of reference.
Alderperson Rosario noted that there were several items that had been agreed to last
week, in addition to a few outstanding questions as listed below:
Agreements reached between all parties:
1) Increase in frequency of sampling of the passive vent stack output
2) Stack emissions should be modeled
3) The passive vent stack height should be reconsidered
4) Residents, Ward reps and Emerson work with City site plan review to deal with
aesthetic concerns
Remaining questions to be addressed by next week’s meeting are:
1) Can condition #9 be revised based on the discussions held at this meeting?
2) What will be the effects of the proposed NYSEG work? WSP to follow-up with
NYSEG.
3) What is the smell coming out of one of the stacks?
4) Can the passive vent stack be made higher?
5) Is there agreement for the increase in testing?
Alderperson McGonigal noted that it had been reported to him that the smell coming out
of the stacks was a sweet, solvent type smell similar to WD40. He explained that the
mixture of chemicals could be causing the smell.
Alderperson Zumoff noted that he doesn’t understand how the test results are being
interpreted. He stated that if vapors are coming out of the stacks, it should be
interpreted as good as the stacks are doing what they are designed to do. If vapors are
not coming out of the ground, it should be considered a bad thing because the system
isn’t working properly. However, the neighborhood is saying they are opposed to the
output from the stacks. Alderperson Cogan responded that the concern is about taking
ground pollution and turning it into air pollution. He noted that there are solutions to
prevent that from happening such as active venting systems that use charcoal, etc.
Mayor Peterson asked if there was new information available since last week.
Alderperson Dotson presented new language to amend the current “Condition #9” of the
legislation under consideration. She explained that she has held extensive discussions
with Karen Cahill, DEC, Derek Chase, Emerson, Jim Bulman, WSP Environmental, and
Ken Deschere, Community Advisory Group. She reviewed the proposed language and
stated that it should be very close to being agreeable to everyone.
Alderperson Rosario requested an Advice of Counsel Session so that Council members
could better understand the consequences of certain actions.
Common Council reconvened into Regular session.
2.1 Motion to Remove from the Table – Resolution
By Alderperson McGonigal: Seconded by Alderperson Rosario
RESOLVED, That the Resolution below be removed from the table for further
discussion and consideration:
Resolution
By Alderperson Clairborne: Seconded by Alderperson Dotson
WHEREAS, the City of Ithaca is the purported owner of a triangular parcel of property
between East Spencer Street and Turner Place, at the northerly end of what is known
as Block 81 for tax map purposes; and
WHEREAS, a City of Ithaca sewer main is located beneath the surface of the above-
referenced parcel, in the southerly portion thereof; and
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WHEREAS, in past decades, said sewer main apparently received contaminated
wastewater and/or solvents from the former Morse Chain and National Cash Register
facilities, and the Therm, Inc., facility, all of which are located uphill from this parcel; and
WHEREAS, said contamination apparently escaped from the sewer main along its route
and residues and/or vapors remain in the surrounding soil; and
WHEREAS, the Morse Chain property was subsequently acquired by Emerson Power
Transmission (EPT), and EPT has been identified by the New York State Department of
Environmental Conservation (NYSDEC) as a responsible party, with regard to mitigation
of the contamination; and
WHEREAS, EPT has proposed to NYSDEC a mitigation program that is intended to
allow vapors to enter a passive-ventilation system along the route of a 300-foot-long
section of said sewer main, via a new, perforated pipe to be installed parallel to a new
sewer main, and to be vented through a 25-foot-tall stack to be located on the above-
referenced City-owned parcel (so as to not infringe upon the public sidewalk thereupon);
and
WHEREAS, EPT seeks a permanent easement and temporary easement from the City,
affecting said parcel, within which easements EPT would install, operate and maintain
the vent stack (including bollards or other protective elements); and
WHEREAS, any environmental review required for said mitigation program, including
the proposed vent stack, is the responsibility of the NYSDEC; and
WHEREAS, written comments on this request have been received from the City’s
Community Advisory Group (dated June 17. 2011); and
WHEREAS, a portion of the above-referenced parcel is currently developed with a
small, gravel-based parking area that is accessed via a curb cut to East Spencer Street,
which parking area apparently serves an adjacent residential property immediately to
the south (141 E. Spencer Street); and
WHEREAS, to date, the City has been unable confirm that the owner of 141 E. Spencer
Street has current permission from the City to encroach upon or use the City-owned
parcel for parking or other purposes, and, in any case, any such permission would
presumably be in the form of a license that can be revoked on short notice by the City;
and
WHEREAS, Chapter 170 (“Use of City Real Property”) of the City Code stipulates that
“the authority to convey a permanent easement across or involving City land is and shall
be vested in the Common Council, and no such easement shall be issued without the
Council’s approval;” and
WHEREAS, in a resolution approved on July 27, 2011, the City’s Board of Public Works
determined that the use of the subject City-owned parcel as requested by Emerson
Power Transmission, and the granting of a temporary and permanent easement
therefor, would serve a valuable public purpose and will not interfere with any other
essential public use of the parcel, now or in the foreseeable future, and recommended
that the Common Council grant such easements, subject to certain confirmation and
certain special conditions (as described in said resolution); now therefore be it
RESOLVED, That, subject to:
a. confirmation that any required environmental review associated with the vent
stack has been completed by NYSDEC,
b. confirmation that the City’s right to convey the requested easements is not
constrained by any existing, non-revocable property rights affecting the
proposed easement area, and
c. the City’s having legal authority to revoke any rights held by a third party
pursuant to a City-issued license or other permit, to exclusive use of the
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relevant portion of the subject parcel, which authority the Mayor is hereby
authorized to exercise, as needed;
the Common Council hereby approves the request from EPT for temporary and
permanent easements across the City-owned parcel at the north end of Block 81, for
the purpose of constructing, maintaining and operating a vent stack as described
herein, and authorizes the Mayor, upon consultation with and the advice of the
Superintendent of Public Works and the City Attorney, to execute an easement
instrument that includes standard City provisions, as well as the following:
1. Consideration to be paid by EPT to the City in the amount of at
least $2,000 (for 100 square feet of permanent easement area);
2. EPT to indemnify and hold City harmless as to any injury or damages
claimed to arise as a result of the installation, existence, operation or
repair of the vent stack;
3. EPT shall secure any other permits required for installation of the vent
stack (including a building permit).
4. Footprint for permanent easement not to exceed approximately 100
square feet, to be located as close as possible to the southeast corner of
the City-owned parcel, and not to interfere in any way with use of the
existing public sidewalk in said vicinity;
5. Height of vent stack not to exceed 25 feet;
6. EPT to be solely responsible for all costs associated with the vent stack;
7. Operation of the passive-ventilation system will not be altered without City
consent;
8. Appearance and exact location of vent stack to be subject to expedited
site plan review;
9. EPT to maintain a schedule of quarterly indoor air quality and soil testing,
within ___ feet of the vent stack, with reports to be submitted thereafter to
the City;
10. EPT to provide City with timely copies of any performance reports EPT is
required by NYSDEC to file, regarding the passive-ventilation system;
11. Stipulation that easement holder maintain vent stack in good repair and
safe condition, and that it designate a contact person to handle any
complaints about noise or needed maintenance;
12. To maintain easement, EPT must submit to City, on or by every 10-year
anniversary of the execution of this easement, a summary report of
system performance and statement of continuing need. Failure to submit
such report/statement within 6 months of said anniversary shall constitute
grounds for revocation of the easement by the City;
13. Easement will terminate if EPT removes the vent stack and does not
replace it, or if EPT ceases to maintain it; and
14. Upon termination of the easement for any reason, EPT shall be
responsible, at its sole cost, for removal of vent stack, in-ground
foundation elements (not including the 300’ perforated pipe), and any
other above-ground elements of the passive-ventilation system, and for
restoration of the affected area.
August 18, 2011
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Amending Resolution
By Alderperson Dotson: Seconded by Alderperson McGonigal
RESOLVED, That provision number 9 above be amended to read as follows:
“9. To determine whether the selected remedy is effective to mitigate ambient
and indoor toxins, EPT shall implement all the procedures specified in the
WSP “COMMUNITY AIR MONITORING PLAN / SEWER RESTORATION
PROJECT,” revised July 15, 2011. EPT shall test the ambient air quality at
FOUR upwind and FOUR downwind testing locations, widely-spaced but within
100 feet of the perimeter of the excavation area, during sewer excavation,
construction and resurfacing, and monthly following completion for the first three
months and then quarterly for an additional year. Thereafter, such ambient air
testing will be conducted twice a year until all eight site-related chemicals for all
test sites are below 1 ug/m^3. EPT shall also offer to perform indoor-air testing
(comparable to the tests they performed on South Hill during project phases 1 -
5) annually on each home adjacent to the sewer excavation area (consisting of
eleven properties along East Spencer Street), and on four OU3-area properties
upgradient of the vent stack, until basement air levels for all eight site-related
chemicals in that property fall below 1 ug/m^3 or fall to or under background
levels;"
Motion to Substitute Amending Resolution
By Alderperson Dotson: Seconded by Alderperson Rosario
RESOLVED, That the following language be substituted for the Amending Resolution:
“9. In order to determine whether this mitigation program does not increase risk of
neighborhood exposure to contaminants and is effective in achieving its objective to
“mitigate impacts to public health resulting from existing, or the potential for, soil vapor
intrusion into the indoor air of buildings within OU No. 3” (OU No. 3 Record of Decision,
Oct 2010, Section 6), and pursuant to the recommendations put forward by the New
York State Assembly Committee on Environmental Conservation Vapor Intrusion of
Toxic Chemicals: An Emerging Public Health Concern, dated January 2006, which
recommendations resulted from testimony provided by Ithaca residents and specialists
to the Committee at the Public Hearing held here on April 21, 2005, EPT to agree to:
a. Work with City Planning staff and neighborhood residents to address stack
construction issues related to aesthetics, material durability, and height (particularly
relative to nearby homes and their porches and air intakes).
b. To the extent practical, coordinate the sewer replacement work with NYSEG’s
gas line replacement project so as to minimize street excavation and disruption. Ensure
that NYSEG is aware: (1) that the sewer venting system shall not be disturbed, (2) that
homes along East Spencer Street have subslab mitigation systems, (3) that excavations
for new gas transmission laterals should not disturb foundations of homes, and (4) that
any new penetrations through foundation walls need to be appropriately sealed.
c. Continue EPT’s offer to install mitigation systems in any unmitigated structure
in the OU No. 3 area where standard indoor-air tests show TCE is present at or above
0.8 ug/m3 (if requested by the property owner); this level has been used as the basis for
mitigating homes.
d. Offer to conduct indoor air testing in structures with OU No.3 where physical
changes to the foundation (such as cracks or integrity of foundations) occur as a result
of natural conditions and an evaluation of such condition is conducted by a WSP
professional engineer licensed in the State of New York and a determination is made
that such testing is warranted. Any such testing shall be conducted in the heating
season only, provided access is granted by the property owner.
e. Review building permit applications within the OU-3 area that involve structural
and/or foundation work or changes (which applications the City agrees to send to EPT
and DEC) and, with the assistance of a WSP professional engineer licensed in the State
of New York, evaluate whether such structural and or foundation work or changes
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present a potential vapor intrusion issue to the structure. Continue the commitment to
offer mitigation (or to repair existing mitigation systems) where potential problems are
identified by the WSP professional engineer.
f. Measure VOC emissions at the passive sewer vent and disclose the sampling
results to the City in a timely manner (within 60 days after final results are received).
Post-construction testing frequency of the passive vent stack will be weekly for the first
month, monthly for the next two months, then quarterly for the remainder of the first
year. There will be a total of 8 sampling events in the first year. Thereafter, passive
vent sampling will be conducted semiannually until all eight constituents of concern for
the site are below 1 ug/m3 or fall below background levels. In the event sampling
results indicate an issue, based on the NYSDOH air model, EPT will coordinate with the
DEC and DOH on the next steps, including DEC-approved controls.
g. Submit EPT’s proposed Site Management Plan (as required by the DEC) to
the City, concurrently with the Remedial Action Report (also required by the DEC,
roughly 8 weeks after construction of this measure). “
Alderperson Clairborne voiced concern regarding considering the substitute
amendment, as the latest version of this language was just received an hour ago. He
referenced a recent Resolution that did not receive enough support to be added to the
Council agenda because it was submitted at the meeting, even though the topic had
been discussed previously. Alderperson Cogan clarified that there are rules,
established by Common Council, regarding adding items to an agenda. This item was
already on the agenda for discussion and the motion is substitute language.
Mayor Peterson stated that she understands the concern raised, and asked Council
members if the Substitute Amendment was too much information received too late in
the day for people to absorb and feel comfortable considering it.
Alderperson Rooker stated that it appears as if some of these issues haven’t been
vetted with appropriate staff. Alderperson Dotson responded that she was not able to
discuss this language with the Building Commissioner as she was out of town. She
further discussed her vision of the City’s role in the review / approval of the Site
Management Plan (subsection (g)). She stated that knowing what the City’s “seat at the
table” is, would affect her vote.
Alderperson Zumoff stated that his interpretation of the stack discharges is that they are
miniscule and he questioned whether they do any good. He further questioned whether
the passive stack was necessary, noting that he would like to know the answer based
on the conversion model.
Alderperson McGonigal stated that it is difficult to make decisions about things he is
unsure of, especially as different and conflicting information is being distributed. He
questioned whether the home stacks were working, noting that the different statistics
being shared are creating an uncertainty. He further stated that he feels this proposal is
a definite improvement from what was being offered yesterday. The remaining question
for him is whether this was something that Council should encourage or reject and risk
not getting as good an offer in the future.
Alderperson Clairborne voiced his concern as it seems there are a lot of solutions to the
issue but this solution only addresses air testing. He noted that no one is talking about
the contamination; they are only talking about venting the fumes. He further inquired
about the impact of the proposed NYSEG work in the area. He believes the City is not
taking the opportunity to make Emerson do something more and stated that he can’t
support the Resolution without the loose ends being tied up.
Alderperson McCollister stated that some of the issues have been addressed, and she
believes the City’s leverage is better if the Resolution is adopted with the proposed
amended language. She further stated that there has been a good dialog between all of
the stakeholders, and that Emerson’s remediation efforts include higher thresholds than
is required of them by the State. She noted that she is prepared to vote in favor of the
new language.
August 18, 2011
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Alderperson Rosario stated that he understands the feelings of the neighbors and tried
to get all of their remaining questions answered at last week’s meeting with the
Department of Environmental Conservation and the Department of Health. He further
stated that he believes increased engagement in the process is better than disengaging.
He believes that Emerson has been a responsible party and that this is a “good faith”
condition.
Alderperson Rosario questioned how subsection (e) should be handled as the Building
Department has not been made aware of this proposed language. Mayor Peterson
responded that Common Council could direct the Building Department to perform this
task. She noted that there are a number of areas in the City that already undergo
special considerations such as historic districts, floodplain zones, etc.
Mayor Peterson questioned where copies of the Site Management Plan would be sent;
the Community Advisory Group or another appropriate City committee. Alderperson
Dotson noted that Emerson has indicated that they do not want to communicate directly
with the Community Advisory Group, so City staff may need to perform that task.
Alderperson Dotson stated that she agrees that the conditions are much better than
before but questioned whether it was enough. She stated that she would probably vote
for the amendment but is not sure how she will vote on the Resolution. She suggested
that the legislation be tabled until the Building Commissioner could be consulted,
knowing that it would mean that the construction season would be missed.
Alderperson McGonigal stated that he has listened to all of the speakers and is aware
that no one was in favor of granting concessions to Emerson. He acknowledged the
tremendous work of Alderpersons Dotson and Rosario, the Community Advisory Group,
and the community’s vigilance in getting this legislation to the point where it is now.
Alderperson Cogan stated the he supports the amendment and the Resolution. He
noted that they are not perfect but it is better than before. He believes that if the
easement is not granted, the City will not have any leverage as the project will not move
forward.
Motion to Call the Question
By Alderperson Rooker: Seconded by Alderperson McCollister
RESOLVED, That the Question be called.
Carried Unanimously (9-0)
A vote on the Substitute Amending Resolution resulted as follows:
Carried Unanimously (9-0)
Alderperson Clairborne stated that this is the first time the City has a chance to weigh in
on the Emerson remediation project. He voiced his appreciation for what Emerson has
done but questioned how to keep this project moving forward as venting air vapors is
not addressing the contamination, and it is not what the residents need.
Alderperson Myrick stated that he will be voting no as he would like to take the
opportunity to keep talking with Emerson, DOH, and DEC, by providing a united front
with Mr. Hang, Legislator Mackesey, Assemblywoman Lifton, and the Community
Advisory Group. He stated that he feels like the City is at a point where discussions can
continue.
Alderperson Cogan left the meeting at 7:15 due to a conflicting obligation.
Motion to Table:
By Alderperson Dotson: Seconded by Alderperson Clairborne
RESOLVED, That the Motion be tabled until the September 7, 2011 Common Council
meeting.
Ayes (3) Dotson, Clairborne, Myrick
Nays (5) McGonigal, Rosario, McCollister, Zumoff, Rooker
Failed (3-5)
Main Motion as Amended:
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A vote on the Main Motion as Amended resulted as follows:
Ayes (5) McGonigal, Rosario, McCollister, Zumoff, Rooker
Nays (3) Dotson, Clairborne, Myrick
Failed (5-3)
NEW BUSINESS:
3.1 Appointment to Tompkins Consolidated Area Transit Board - Resolution
By Alderperson Dotson: Seconded by Alderperson Myrick
RESOLVED, That Common Council recommends Superintendent of Public Works,
William J. Gray, to the Tompkins Consolidated Area Transit Board to replace
Alderperson Daniel Cogan, with a term to expire December 31, 2012.
Carried Unanimously (8-0)
ADJOURNMENT:
On a motion the meeting adjourned at 7:20 p.m.
______________________________ _______________________________
Julie Conley Holcomb, CMC Carolyn K. Peterson,
City Clerk Mayor