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Former councilman's lawsuit threatens funding for projects

By Jamie Hansen
ARGUS-COURIER STAFF

Published: Friday, January 27, 2012 at 8:13 a.m.
Last Modified: Friday, January 27, 2012 at 8:13 a.m.

A former Petaluma city councilman who initiated two unsuccessful ballot measures to roll back sewer rates in 2008 and 2010 appears to have scored a victory, of sorts, by prompting the city to stop spending wastewater funds on certain activities which he claims are an illegal use of the money.

Bryant Moynihan, after recently making good on his promise to sue the city over alleged misuse of the ratepayers' sewer funds, seemed confident this week about his chances of prevailing in the case.

Moynihan has long railed against what he says is the city's excessive spending on the $114 million wastewater treatment plant that went into operation three years ago. His suit claims the city wrongly spent $4.7 million in wastewater funds on non-wastewater activities related to storm drain maintenance, without getting ratepayer approval.

Moynihan maintains that such activity is prohibited under Proposition 218, which passed in 1996. He wants the city to stop using the funds on prohibited activities, and return the money to the wastewater enterprise fund, which he says could possibly result in a lowering of rates for city residents and businesses.

My goal was to get them to sit down at the table, stop these illegal acts, and start reimbursing the ratepayers,” Moynihan said.

His disagreement with the city boils down to whether a variety of activities charged to the wastewater fund were actually related to wastewater, which Proposition 218 requires.

The city believes that some stormwater projects —like ones that reduce strain on the wastewater treatment plant by keeping stormwater out of it — are appropriate.

But the city seems to have conceded some points to Moynihan in its approval of water and wastewater rates this December. In that rate plan, which took effect this month, the city discontinued using wastewater enterprise money to fund activities it had previously been charging to that fund. According to City Councilman Mike Healy, about $500,000 worth of projects have lost funding this year as a result. Those projects include floodplain mapping that could affect flood insurance for residents of the Payran neighborhood and elsewhere, as well as environmental work that enables dredge spoils from the Petaluma River to be placed in the interior of Shollenberger Park.

The cash-strapped city must now try to find other ways to pay for these projects. The latter project is scheduled for approval at the Feb. 6 council meeting, though it's not yet clear how the city will propose paying for the work.

Both City Manager John Brown and Councilmember Mike Healy, a lawyer, said Moynihan seemed to be partially right, on what Brown described as “a technicality” around what applies as an appropriate charge to the wastewater fund.

In addition to the $4.7 million he claims was misappropriated, Moynihan says there are additional millions he thinks have been used inappropriately. Moynihan says addressing those funds could take three separate lawsuits, though he hopes the city will return them without additional litigation.

The City Council will most likely discuss how to address the lawsuit in an upcoming closed session council meeting, though no date for that discussion had been scheduled as of Wednesday morning.

(Contact Jamie Hansen at jamie.hansen@argus courier.com)

January 11, 2013Friday
City of Middletown Council Members
Subject: Orman Building Demolition

ORDINANCE NO 02007-25Passed 3-20-2007

§ 1042.07  WELL FIELD PROTECTION FEE 

(a)  It is hereby declared necessary and conducive to the protection of the public health, safety and welfare and the convenience of the City to levy and collect a fee or charge upon all lots, lands or premises served by having a connection with the City water supply. The proceeds from such fees or charges so derived shall be for the establishment and operation of a well field protection program in the City, with the purposes of protecting said fields from any event leading to their impurification and thereby protecting all users of said system from the harmful effects of such impurification.
vcm: Since you did no testing at the site you have no proof that the well field has been contaminated or affected in any way or will be in the future.
If this is the legal standard that you want to use for the demo of the Orman Building and to remove $597,000 from the Well Field Protection Fund, then every old building in the downtown area would qualify to be demolished using this same standard. City Hall is well aware of the condition of the roof at Rose Furniture, another city owned property ready to collapse. Will City Hall wait for that roof to collapse also? Will Rose Furniture be the next building to be demolished using Well Field Protection Funds?

(b)  For the purposes provided in division (a) hereof, there is hereby levied and assessed upon all lots, lands 
or premises served by or having a connection with the City water system a fee or charge as follows:
(1)  Upon all single-family water connections:  fifty cents ($.50) per month.
(2)  Upon all industrial, commercial and multifamily water connections: 5% of all monthly charges.
(c)  Senior citizens who qualify for reduced water rates under the provisions of § 1042.05, and disabled 
persons who qualify for reduced water rates under the provisions of § 1042.06, shall be assessed a fee 
or charge of one-half of that imposed under division (b)(1) hereof.
(d)  For the purposes of this section, there is hereby established the Well Field Protection Fund, into which
all funds collected pursuant to this section are to be deposited.


(e)  The fees or charges imposed hereby are in addition to all other fees or charges imposed by law and shall
apply to water customers with connections within and without the City. 
(Ord. 095-105, passes 10-03-1995)

ATC
Engineering Individual Solutions

11121 Canal Road, Cincinnati, Ohio 45241
513-771-2112
513-782-6908
www.atcassociates.com

August 7, 2012
Ms. Denise Hamet
Economic Development Manager
City of Middletown
One Donham Plaza
Middletown, Ohio 45042

RE: Health Risk - Orman Building
500 North Verity Parkway
Middletown, Ohio

Dear Ms. Hamet:

Pursuant to your request, this letter is issued to provide our opinion on health risks associated with the above-referenced site. This opinion is based upon information as made available for ATC to review; we have not visited the site to date. We understand that this letter will be used to evaluate whether funds from the City’s Wellfield Protection Fund would be appropriate for use to address conditions at the Orman property.
vcm: I have not been provided with any documents that Denise Hamet send to ATC for them to issue this opinion.
This is just an opinion without a visit to the Orman Building site and without any testing being completed to provide proof of claim.

It is our understanding that a portion of the building located adjacent/along a rail line is in very poor condition, and that rail line use has been discontinued until the condition of the building can be addressed. We further understand that the rail line is required for a local business operation, and that the situation needs to be addressed on an expedited basis. The building is reportedly
scheduled for partial emergency demolition to facilitate re-opening of the rail-line.

Previous reports provided to ATC indicate: i) the presence of asbestos containing materials (ACMs) within the building, and ii) the potential presence of contaminants of concern that could leach into groundwater. The potential release of asbestos into ambient air could occur if the building collapses; as such, it represents an imminent health risk. Asbestos should be abated to the extent practicable in the area of the building to be demolished. Demolition practices should be undertaken to minimize potential fiber release in any areas of ACM that cannot be abated prior to demolition. The proximity of the property to the City’s Wellfield suggests that potential impact to groundwater associated with historical land use could affect the Wellfield.
vcm: The asbestos was not abatement before the damaged area was demolished. However Vicker’s Wrecking did undertaken demolition practices to minimize potential fiber release by spraying water as the damaged portion of the building was being demolished.
The contaminated debris was NOT removed from the site. Some of the debris from the demo was pushed into the basement and a huge pile of contaminated material was left open to the elements on the Verity Prky side of the building.

We recommend inspection of the area to be demolished (to the extent practicable) to ensure that hazardous materials or petroleum products are not stored there that could be released in association with demolition activities and potentially impact the Wellfield.

Please note that notification is required to the Ohio Department of Health and OEPA prior to the initiation of abatement/demolition activities. Normally, 10-day notice is required prior to such activities; however, if a public health hazard is present (as is the case), this period can be waived. We are happy to assist with this work upon request; the work is required to be performed by Ohio certified abatement professionals and overseen by an Ohio-certified asbestos hazard evaluation specialist.
vcm: The building did not collapse therefore it did not represents an imminent health risk.
No testing of any kind have been completed therefore there is no proof of a health risk.

Please do not hesitate to contact us if you have any questions or comments, or if we can be of further service in any way.

Best regards,
ATC ASSOCIATES INC.
Michael J. Luessen, C.P./P.G.
Principal Geologist

It is clear to me that the only contamination to the Orman Building site has been caused by the City of Middletown by not removing the asbestos before the demo and leaving the contaminated asbestos debris open to the elements for the past 5 months.

January 11, 2013

City of Middletown Council Members

Subject: ORMAN BUILDING DEMOLITION

July 27, 2012 – Chief Building Official was notified of a partial roof collapse of the Orman Building. The inspection revealed that the center of the roof had collapsed and the outer walls are bulging from the weight. Bricks and other debris had fallen and were obstructing the railroad tracks

August 7, 2012 City Council Meeting – EMERGENCY LEGISLATION
EMERGENCY LEGISLATION
Ordinance No. O2012-32, an ordinance establishing a procedure for and authoring a contract with Vickers Wrecking, Inc. for the stabilization of the Orman Building and declaring an emergency. Mr. Landen explained that a copy of the emergency legislation had been placed before council as required by the Charter.

Mr. Picard moved for the adoption of O2012-32. Mr. Smith seconded and the motion carried.

Mr. Adkins explained that on or about July 27th, the Chief Building Official was notified of a partial roof collapse at the Orman Building. The inspection revealed that the center of the roof collapsed and the outer walls are bulging from the weight. Bricks and other debris fell and are obstructing the railroad tracks. Those tracks are an active spur used by one of Middletown’s major employers who are expecting a shipment in August. Delays in the arrival of that shipment could cost the city money. Vickers can have a crew onsite and have the building stabilized prior to the arrival of that shipment. Staff requests that the bidding process be waived for this emergency stabilization.

Mr. Smith asked if we stabilize this do we still have to take the building down.

Ms. Gilleland responded that is the plan, the building needs to be demolished.
Mr. Adkins further explained this is a stop gap measure. It is not on a demolition plan.
Ms. Gilleland said this could ultimately knock out one of our last funds used for projects, the Downtown Fund.
There may be a grant out there, but it’s doubtful. If it were anywhere else, we would let it fall down.
But it’s five feet from the railroad tracks and right on Verity Parkway.
Mr. Adkins said this is a band aid and they are exploring all options for demolition.
Motion Carried Ayes: Scott Jones, Laubach, Mort, J. Mulligan, Picard, Smith and L. Mulligan.

Mr. Adkins stated during this meeting that they could not demo the building, due to the widespread existence of asbestos that had to be removed before the building could be demolished.  He said that they didn’t have time to get the asbestos removed prior to delivery of the Wausau equipment.

vcm: Please notice there is no mention above or show of concern about a possible threat of asbestos contamination to the well field.

August 14, 2012 – Vicker’s Wrecking started the demo of the damaged section of the building.

August 16, 2012 – Vicker’s Wrecking completed the demo. Some debris was pushed into the basement area and a large pile of debris was left at the Verity Pkwy side of the building.
  
vcm: Vickers Wrecker was paid $56,000 from the Downtown Fund however this did not include the removal of the debris.
 
September 12, 2012 – Westech Environmental Solutions did a Pre-Demolition Asbestos Survey on the remaining part of the Orman Building.

November 16, 2012 – Letter from Westech Environmental Solutions to Kyle Fuchs. Subject: Possible Asbestos Release Threat to the City of Middletown’s Well Field.
vcm: The above Westech documents were not included in the on-line City Council Workbook

December 4, 2012 – City Council Meeting
Legislation Item 6
An Ordinance authorizing a contract with O’Rourke Wrecking for the demolition of the Orman Building in the amount of $597,000 from the Wellfield Protection Fund

    Mr. Adkins stated “Staff obtained an evaluation from our environmental consultant stating that uncontrolled release of the asbestos fibers in the building represented a potential threat to our well fields.”

    Since Mr. Adkins did not state the name of the environmental consulting firm I will presume that this is a reference to the letter that was sent to me by Mr. Adkins staff,  dated November 16, 2012, from WESTECH Environmental Solutions.
  
     I find the above statement by Mr. Adkins to be very misleading. The letter from Westech clearly states “Additional site-specific and aquifer-specific information would be needed to provide a more certain conclusion of probable contaminant impact to the well field.” In other words Westech did not do an on-site inspection, air, soil or water testing of any kind at the Orman Building site after Nov 16, 2012 concerning possible asbestos contamination of the Well Fields. I have received no document from the city that any further testing was completed at the site.
Potential, Probable and Possible is not proof….it is nothing more than an educated guess since no air samples were taken immediately after the incident.

    If in fact City Hall thought that the asbestos release was such a serious matter when the roof collapsed, why didn’t they immediately notify the EPA or another environmental firm to do an investigation and take air samples at the Orman site. On August 7, 2012, Mr. Adkins nor Ms. Gilleland made no mention or had any concerns about a potential asbestos release or threat to the well fields.

    If in fact City Hall thought that the asbestos release was such a serious threat to the well field why didn’t they order further testing at this site?

    The Westech Pre-Demolition Asbestos Survey of September 12, 2012 is a 33 page typical inspection and does not address or make reference to Mr. Adkins claim of an asbestos threat to the well field. 

     If in fact the asbestos was such a threat why wasn’t the removal of the debris included with the Vickers Wrecking demolition since as of  7-31-2012 the Unencumbered Balance in the Downtown Fund was……$878,277.07

    If in fact City Hall thinks that the asbestos from the Orman Building is such a threat to the well field why for the past 5 months has the huge pile of asbestos contaminated debris at the Orman Building been left open to the elements which is clearly a violation of City and EPA law.
   
    If in fact the asbestos release was such a threat why didn’t City Hall notify the residents in the area?
       
    Therefore Mr. Adkins has provided no proof that the collapsed roof or demo of the Orman Building offers any greater asbestos threat to the well fields than any other buildings that have collapsed or been demoed in this area in recent years.

    How can the Orman Building be a greater threat to the well field than the canal which was denied use of these funds several years ago for its clean up?
      
   Mr. Adkins has provided no proof that the Orman Building site is an eminent threat or danger in any way to the City’s water supply. Therefore I believe that the use the Wellfield Protection Funds for the demolition of the Orman Building is an illegal use of these funds.
  
    Therefore the contract with O’Rourke Wrecking for $597,000 that was appropriated from the Wellhead Protection Fund Account # 546.990.54503 needs to be canceled until another source of funding can be found for this project.

Vivian Moon

attachments:
Pre-Demolition Asbestos Survey 9-12-2012
Letter from Westech Environmental Solutions 11-16-2012

WESTECH ENVIRONENTAL SOLUTIONS
♦ Phase I & II Environmental Site Assessments

♦ Asbestos & Lead Surveys

♦ Brownfield Assessments

♦ Indoor Air Quality Assessments

November 16, 2012

Mr. Kyle Fuchs

HUD Program Administrator

City of Middletown - Community Revitalization Department

One Donham Plaza, 4th Floor

Middletown, Ohio 45042

Subject: Possible Asbestos Release Threat to the City Of Middletown’s Well Field

Dear Kyle:

I have reviewed the information you provided me regarding the city of Middletown’s municipal well field, the city’s well field protection areas, and current site conditions at the Orman Building property with regard to the existing asbestos fiber release episode.

Since damaged friable asbestos-containing materials are currently present in the debris of the collapsed portion of the Orman Building, I believe that asbestos fibers have been and are being released into environment at this site. Wind-borne asbestos fibers are likely being transported offsite as well.

Given that an ongoing and uncontrolled asbestos fiber release is occurring at the Orman Building property, that the property is situated over the Great Miami Aquifer and within the “5-year time of travel” (for contaminated groundwater to reach a municipal well) to this well field, and that the underlying aquifer is this area consists of permeable sand and gravel, I believe asbestos fibers that would impact the groundwater beneath this property could eventually migrate to a nearby municipal water well. Accordingly, I believe the existence of the asbestos fiber release at this property could pose a threat to groundwater within the well field.

Additional site-specific and aquifer-specific information would be needed to provide a more certain conclusion of probable contaminant impact to the well field.

If you have any questions concerning this letter, please contact me.

Sincerely,

WESTECH Environmental Solutions

Michael J. Westerfield, CPG

Project Director

OFFICE 7601 Cheviot Road, Cincinnati, OH 45247 PHONE (513) 353-0700 FAX (513) 353-1701

DOWNTOWN FUND
7-31-2012    Unencumbered Balance…………………………...$878,277.07

PO#   RG023524 
9-14-2012     Vend# 11420 - VICKERS WRECKING INC…..$56,000.00