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Exxon Fairmont Coke Works

Meeting Minutes

Meeting Minutes
Fairmont Community Liaison Panel
March 11, 1999

Attendees: Lt. Amoroso (attending for Chief Dave Wimer), Bob Ashcraft (attending for Bruce McDaniel), Nick Fantasia, Georgeann Grewe, Bea Hunter, Barbara Metcalf, John Parks, Wayne Stutler, Tom Vincent, John Watson, Norma Watson, Marcella Yaremchuck.

Exxon Representatives: John Hannig, Art Chin.

Agency Representatives: Melissa Whittington, U.S. Environmental Protection Agency (EPA); Thomas Bass, West Virginia Division of Environmental Protection (WVDEP).

Contractor: Doug Taylor, ICF Kaiser.

Guests: Bill Byrd, Fairmont Times-West Virginian; Harold Caudill; Griff Fowler; John Griggs; Jennifer Vargo, WDTV.

Facilitator: Roberta P. Fowlkes, Ann Green Communications, Inc.

Minutes: Dan T. Londeree, Ann Green Communications, Inc.

The special meeting of the Fairmont Community Liaison Panel was called to order at 5:30 p.m. by facilitator Roberta Fowlkes. Roberta welcomed all participants. Guests were asked to introduce themselves.

Roberta reviewed the purpose of the special meeting, which includes answering panel members' questions about the Final Project Agreement (FPA) and receiving comments from panel members regarding the document. She reminded the panel that Exxon's revisions to the FPA were not in the draft of the document being reviewed at the meeting. Melissa Whittington said she is currently working on Exxon's changes and most of them were changes in the wording. She said the
revisions will not change the essence of the document.

Roberta reviewed the process by which the panel would discuss the FPA. She said panel members are asked to make comments and ask questions about each section of the document and Art Chin, Melissa and Tom Bass will respond to comments and answer questions.

(Note: These minutes will be organized under section headings identical to those found in the FPA.)

New Business

FPA Community Input

Executive Summary

Wayne Stutler referred to page seven, paragraph one, the last sentence, which reads: "This limitation is appropriate since Exxon has ownership of the property and expects to limit the redevelopment of the Site to commercial/industrial uses through a deed restriction." Wayne said this phrase also appears in the executive summary. He asked if the FPA will preclude all recreational use. Art said the deed restrictions placed on the property most likely will preclude all recreational use of the land. Melissa said from the outset, residential use of the land was precluded and then interest began to develop in the area of recreation. She said the land was zoned for commercial/industrial and she is not sure that can be changed. Wayne said the zoning of the land does not preclude recreational use.

Art noted an omission from paragraph two of the Executive Summary. He said the language will say that as part of the XL Program, there is a proposed change in the way EPA handles the onsite wetlands created in the removal process. Melissa said this issue is referred to in sections 4.3.4 and 4.4.3.

Art also noted letter "h" in paragraph two will be struck. This phrase reads: "reduction of transaction costs." Art said this issue will be handled outside the FPA between EPA and Exxon.

Barbara Metcalf suggested "Marion County" be added to the first sentence of the Executive Summary. Melissa agreed to make this revision.

1.0 Parties
(No changes suggested.)

2.0 Overview

2.1 Purpose of Project XL
(Agreed upon with no changes.)

2.2 Purpose of the Final Project Agreement

John Parks referred to section 2.2, paragraph one, sentences two and three. He asked if any part of the FPA is legally enforceable, and if so, which parts are enforceable. Melissa explained the FPA itself is not a legally enforceable document, but sections of the FPA will be inserted into the Administrative Order, which is a legally enforceable document. John asked which sections are enforceable. Melissa said sections 4.3.2, 4.3.3, 4.3.4, 4.3.5, 4.3.6, 4.3.8, 4.4.2, 4.4.3, 4.4.4, 4.4.5, 4.4.7 and 5.8 will be a part of the Administrative Order and will be enforceable. She agreed to identify the enforceable sections in the Table of Contents.

3.0 Stakeholder Process

3.1 Process for FPA Development and Stakeholder Involvement
(No changes suggested.)

4.0 Description of XL Project

4.1 Background

Art noted the final sentence in section 4.1 has been struck. He said work plans are in progress for the ecological risk assessment, and the results of these plans may indicate flexibility will be needed for the risk assessment.

Barbara Metcalf suggested the measurements of the site be noted in paragraph one. She said the words "large areas," which appear in sentence three of paragraph one, are too general to stand alone. It was agreed that the paragraph will be modified to include the measurements of 103 acres, 40-50 of which are flat or level.

John Hannig suggested the blanks left for dates be filled in. John and Griff Fowler worked together to fill in the dates as follows:

"A corporate predecessor of Exxon owned the Site from 1920 to 1948. Sharon Steel Corporation bought the site in 1948 and operated a coke production facility there until 1979, when operations ceased due to the company's inability to comply with the Clean Air Act ("CAA") and Clean Water Act ("CWA") regulations. Sharon Steel filed for protection under bankruptcy laws in 1991. The Site is currently inactive."

"EPA began evaluating the Site for inclusion on the National Priority List (NPL) in 1987 and performed extensive interim removal actions from 1993 to 1996."

4.2 Current Superfund Process

John Parks referred to sentences four and five, which read:

"Then the remedy is selected and documented in a Record of Decision (ROD). If the remedy is to be implemented by responsible parties, a consent decree is then negotiated, signed by the government and the responsible parties, and entered by the District Court."

John asked Tom if the WVDEP is included in that process. Tom said WVDEP has the option to concur or not concur with the selected remedy. Language to that end will be added to the FPA.

Wayne Stutler asked how the remedial action will be impacted by Fairmont City Ordinance 597, which prohibits the permanent disposal of toxic waste. Melissa said when EPA writes a ROD, it is required by law to comply with any other environmental regulations (federal, state or local) already in place. Melissa said she has a copy of the ordinance, and said she understands it to prohibit the construction of any new waste treatment units within the community. Wayne said City Ordinance 597 was the ordinance used against Sharon Steel and was taken to the Supreme Court and affirmed. He said it deals with the permanent disposal of hazardous waste. Melissa said she has all ordinances
dealing with the site, and said anything written into the ROD must comply with those ordinances. Wayne said his concern is in reference to what will happen if the ROD does not comply with the local ordinances. Melissa said the ROD cannot move forward if it does not comply. She said EPA can issue waivers to local ordinances, but this is not common practice.

Guest John Griggs asked about sentence five of section 4.2. He said the word "if" at the beginning of the sentence leaves open the option of the responsible parties not implementing the remediation. Melissa said the language is used because there are times when a site does not have a responsible party that is cooperative with EPA. Exxon has been very cooperative in this project. She said at this point, there is no reason to believe Exxon will not continue to cooperate and will not negotiate a consent decree. She said if Exxon chose not to cooperate, the federal government has several options; one of which is doing the work itself. She said if Exxon decided not to implement the remedial action, the federal government would do the work with money from the Superfund trust fund.

John suggested language be added to state what EPA will do if the responsible parties do not cooperate. Melissa agreed to add the language.

Tom said there is a change at the end of Section 4.2. He said the Leetown Pesticides site is the only West Virginia NPL site which has been de-listed to date.

4.3 Scope of Proposed Changes

4.3.1 Integration of Remedial and Non-Time Critical Removal Action Approaches

John Griggs asked what the time frame is for the government agencies to approve the remedial approach. Tom explained EPA and WVDEP have 30-60 days to review the approach and make comments. He said the remediation cannot proceed without approval from the agencies. John asked what is in place to ensure the government agencies meet the 30-60 day time frame. Melissa said EPA attorneys will not allow a document to be signed that says the government must do something, and this is the reason there is nothing in the FPA to enforce the agencies to comment within 30-60 days. She said the Fairmont site has been operating on a much faster time frame than the normal comment period.

Art Chin said one of the reasons to have stakeholder meetings such as the FCLP meetings is so community members can hold EPA, WVDEP and Exxon accountable. He said if stakeholders notice a slow-down in work on the site, they need to voice their concerns.

No changes were suggested for section 4.3.1.

4.3.2 Human Health Risk Assessment

Art said he wants to clarify that the changes made by Exxon are not reflected in the version of the FPA reviewed by the panel. He said most of these changes are language changes and not substance changes. He said he wants to make sure the panel understands why some changes that will appear in the final draft were not discussed in the meeting. Roberta said the panel should keep in mind that the FPA will be presented to panel members with all changes after the public comment period. Melissa concurred that the panel will see a final draft after the public comment period before members agree to sign the FPA.

Wayne referred to paragraph one, sentence three, which reads:

"Human health risk assessments conducted as part of Superfund programs have generally included an evaluation of the potential risk associated with residential exposure scenarios, unless the likely future use of the site is industrial/commercial."

Wayne asked if the human health risk assessment will be done, since the future use of the site is likely to be industrial/commercial. Melissa said the human health risk will be done as it relates to the proposed use.

Bill Byrd asked how the human health risk assessment will be done. He asked if it will include questionnaires distributed to neighbors of the site or tracking of health records of near neighbors. Tom Bass of WVDEP said there are guidelines for how the procedure is done. He said examples of factors are the amount of chemical contaminant and how often a person will be on the site. He said the risk assessment is actually a formula and criteria are plugged in to this formula. Tom said the risk assessment will not include going into the community and finding out information from the past. He said the data comes from the samples taken from the site and is applied to the proposed remediation action and future use of the site.

Bob Ashcraft noted the human health risk assessment does not deal with what has happened in the past but instead with what is likely to occur in the future.

Nick Fantasia asked if Exxon will put deed restrictions on the property before it conveys the property. Art said Exxon will place deed restrictions on the property before conveying it.

Art referred to the second paragraph, the second sentence. He said he added a phrase which will be labeled as "(d)." He said this phrase will be another reason why 10-4 is an acceptable level of risk, and it includes language that states there is a low probability of exposure to contaminants.

No changes were suggested for section 4.3.2.

4.3.3 Area of Contamination Concept

Art explained the Area of Contamination Concept (AOC). He said there is a regulation that prohibits combining areas that contain waste. He said there are exceptions to this regulation where it has been determined the waste can be better managed by combining the areas. He said this will be the case for the Fairmont Site. Melissa said Exxon will not be prohibited from combining these areas.

No changes were suggested for section 4.3.3.

4.3.4 Flexibility for EPA Created Wetlands Mitigation

Melissa explained what is being said in this section. She said EPA realizes that some of the wetlands on the site were created by EPA during the earlier removal action. She said this section is stating, in the spirit of this agreement, it is not reasonable for EPA to ask Exxon to not only clean up the site but also to mitigate areas that were created by EPA. She said in some cases, a tank was removed, water gathered and cattails grew. She said this is the type of wetland on the site. She said this is different from coastal wetlands or wetlands where migratory birds are located. She said the FPA states a reasonable plan needs to be formed regarding the wetlands.

No changes were suggested for section 4.3.4.

4.3.5 Redevelopment

John Hannig reported on the status of the site development. He said he is in the process of working with ICF Kaiser and McCabe-Henley on the redevelopment of the site. He said this will be discussed in detail in future meetings.

Wayne asked if there were any recommendations to change the zoning of the site. Nick Fantasia said there were no recommendations to change the zoning. He said the zoning remains Industrial C.

It was recommended that local labor be used for the redevelopment of the site. John Hannig said local labor is currently being used as much as possible. It was agreed a statement will be added noting that whenever possible, local labor should be used for the redevelopment of the site. Art said Exxon will not be involved in the actual redevelopment of the site. He said after the land is conveyed to another entity Exxon cannot tell that entity what to do. Melissa said the local planning commission will be involved in the redevelopment, and this should allow for insight on where local labor can be used.

4.3.6 Stakeholder Involvement
(No changes suggested.)

4.3.7 Paperwork Reduction
(No changes suggested.)

4.3.8 Quality Assurance
(No changes suggested.)

4.3.9 Support of WVDEP Involvement

Melissa said normally the State conducts oversight of the site under a grant from EPA. She said EPA's grants are not very flexible, and if a change in plans needs to be made, it will be difficult to keep the state involved under an EPA grant. She said Exxon and EPA have negotiated an agreement which states Exxon will pay the state directly. Tom said there is a law entitled the Hazardous Waste Management Act which states when there is activity, the State seeks cost recovery. He said the options are to pay in real time or pay after the work is done, with a taxable percentage added. He said this is the most economical way for Exxon to reimburse the state.

No changes were suggested for section 4.3.9.

4.4 Implementation of Proposed Changes

4.4.1 Non-Time Critical Removal Action Approach
(No changes suggested.)

4.4.2 Area of Contamination
(No changes suggested.)

4.4.3 Flexibility for EPA Created Wetlands Mitigation
(No changes suggested.)

4.4.4 Redevelopment

Art explained the three different phases of redevelopment. He said the second paragraph under section 4.4.4 has been rewritten to ensure accuracy.

Bob asked about bullet point number four in paragraph three, which refers to infrastructure. He mentioned there will be areas that future builders may want to excavate to add water and sewer infrastructure and asked what will be done to prevent exposure to contaminants. Melissa said areas of the site that hold contaminants (such as landfills) will be prohibited from being disturbed. She said regulations state that landfill caps cannot be compromised, although in some cases paving over a cap for a parking lot may be allowed. Art said there is an obligation for a landfill cap to be maintained, and excavation of these areas will not be allowed under the deed restrictions.

Bea Hunter referred to bullet point number two under paragraph three, which reads: "Working with local and state redevelopment agencies (e.g., Fairmont Industrial Credit Corporation and West Virginia Development Office) in identifying potential redevelopment options and developers." Bea suggested adding the Chamber of Commerce in the list of redevelopment agencies, and suggested adding a Chamber member to the FCLP. Bob mentioned the FICC is the economic arm of the chamber, and the actual Chamber only consists of two or three people. John Hannig said he has talked with the Chamber president and said the addition of a Chamber member to the panel might be a good idea. He said the outreach to the Chamber will occur in the coming months, whether or not the panel adds a member. Roberta asked if this issue can be taken under advisement in future meetings. Bea agreed this would be a good issue to deal with in the future. Melissa agreed to add the Chamber of Commerce to the list of local and state agencies under bullet
point two.

4.4.5 Stakeholder Involvement
(No changes suggested.)

4.4.6 Paperwork Reduction
(No changes suggested.)

4.4.7 Quality Assurance
(No changes suggested.)

4.4.8 Support of WVDEP Involvement
(No changes suggested.)

4.5 Environmental Benefit

Art said there is one change in language to the third bullet point under paragraph two, which reads: "A commitment from Exxon to attract interested developers for reuse of the property and to facilitate the transfer of Site ownership to such developers or a redevelopment agency."

He said the revisions are as follows: "A commitment from Exxon to attract interested developers for reuse of the property and to make the Site available to such developers or a redevelopment agency."

Art said Exxon may not transfer the ownership to the new developers, and this needs to be reflected in the FPA.

No changes were suggested for section 4.5.

5.0 Final Project Agreement Implementation

5.1 Significance of Agreement
(No changes suggested.)

5.2 Enforceability
(No changes suggested.)

5.3 Duration of Agreement
(No changes suggested.)

5.4 Modification of Agreement
(No changes suggested.)

5.5 Termination of Agreement
(No changes suggested.)

5.5.1 Termination Procedures
(No changes suggested.)

5.5.2 Post-Project Compliance Period
(No changes suggested.)

5.6 Dispute Resolution

Roberta noted that this section states a member of the FCLP may serve on the Dispute Resolution Committee (DRC) if needed. Melissa suggested in the future the panel should identify a volunteer from the panel who will serve on this committee, if needed. Melissa said she talked to Nick Fantasia and Nick volunteered to be on the committee if needed. She said this decision is not official, and the panel will have an opportunity to designate an official member.

Tom Bass said some changes will be made to this section. The panel agreed to review these changes after they are made.

No changes were suggested for section 5.6.

5.7 Legal Basis for FPA Implementation
(Agreed upon with no changes.)

5.8 Reporting Periodic Reviews

Art said the reporting will be quarterly instead of monthly.

No changes were suggested for section 5.8.

5.9 Rights Retained and Project Transfer

5.9.1 Rights Retained
(No changes suggested.)

5.9.2 Transfer of Project Benefits and Responsibilities
(No changes suggested.)

Wayne Stutler asked when the revised draft will be available. Melissa said the goal is to have a draft ready in early April. She said this draft will be the draft used for the public comment period.

Next Meeting

The next regular meeting will be April 1. The agenda will include a project update and discussion of the signing ceremony.

The meeting was adjourned at 7:45 p.m.

Next meeting: Thursday, April 1, 1999
5 p.m. refreshments
5:30 p.m. meeting

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