Travis County Commissioners Court

July 3, 2012 - Item 18
Agenda

18 is consider and take appropriate action on the following requests regarding a final cover maintenance plan for the closed Travis County landfill located at 9500 East U.S. Highway 290.
A, fund the cost of the final cover from the Travis County reserve.
B, a cooperative agreement between travis landowners Joe T. and Joys L. Robertson and Austin Country, Inc.
And c, authorize the county executive of TNR to submit a municipal solid waste permit modification to the Texas Commission On Environmental Quality requesting approval of a final cover maintenance plan and the addition of enclosed structures at the closed Travis County landfill.
Good morning.

>> Good morning, judge, Commissioners.
I'm john white, t.n.r.
With us today is steve manila, our county executive for t.n.r.
And standing by today and delivering the discussion will be mr. Webber, tom weber.
He's taking one for the team today so be kind to him.

>> Is this live?
Yes.
For the record, tom webber with environmental quality manager at t.n.r.
I'm standing because I have some back issues, but I'm here.
Anyways, in relation to this item, we've been working on this now since 2009 to come up with a cooperative plan.
When we initially looked at this issue in 2009, we got some construction bids from our consultant on perhaps removing the flea market from on top of the landfill to kind of get it out of the way of remedial kind of things.
The flea market owners Austin country, inc., were very interested in staying in business so we have worked closely with tceq, the flea market to try to come up with a plan whereby they could continue their operation and we could do the remediation that's necessary.
So this was -- it took quite a bit of time and effort.
We went back and got a revised maintenance plan.
We got different guidance from the tceq, who initially told us that they would approve of the maintenance plan by just staff reviewing our plan and improving it, but then they told us they would like us to submit a permit modification relating to our closed landfill and submit that as looking at that and the -- there's certain items that Austin country has to do because they have enclosed structures in the flea market that have the potential to collect methane gas.
And so that makes the flea market subject to registration by the tceq.
Our modification that we are talking about submitting would request approval of this final cover maintenance plan.
It would also approve the addition showing these structures on top of the land full in terms of the footprint has to be accurate.
That's the purpose of a modification, so item c, and I know I'm going kind of backwards, but I think it makes a little more sense.
The number c is really to authorize our county executive to submit that permit application.
It's prepared.
We're -- we're ready to submit that once we get your approval.
Turning to -- turning to the remediation itself --

>> Before you turn there, just for clarity sake, because we are not the landowner underneath the landfill, we do not have any power to evict the flea market.
Is that correct?

>> Any power on what?

>> To evict the flea market.

>> To evict the flea market.

>> I won't address the issue of eviction or not.
There was a direct I have from the tceq that said it's incompatible and there's no reason this could remain.
Around the country there are an awful lot of landfills that have subsequent use on top of a closed structure.
Where the right safeguards, that being enclosed structures, there's that now.
Whether we have a right to evict or not, I think I would have to defer to legal staff on that.

>> Legal, and I'm not suggesting that we should evict, I'm just saying, just for the clarity of people watching, the extent that the flea market causes any problems with regard to our cap, we don't have the -- the landlord's power.
We are not the landlord.

>> Correct, we are not the landlord.
However, since we have the landfill permit, tceq was insisting that we modify our permit to allow the landfill to stay.
I mean, we could --

>> To allow the flea market to stay.

>> The flea market to stay.
We could refuse to do that in which case it would have the effect of evicting the flea market; however, we did through a -- a negotiated process with the flea market agree if we were going to modify the permit and they were going to stay they need to stay true to the immediatation.

>> Thanks for that clarification.

>> So we think they were there unlawfully at the time of the fire?

>> Yes.
Tceq -- tceq said you should have gotten a registration with us a long time ago and if you are going to stay, you need to get that registration.
And in order to get that rental administration, Travis County needs to agree to modifyity permit.

>> They told the fillet market representatives that.

>> Yes.
The notice of violation that we received in 2009 was sent to all the parties.
The land -- the real estate landowner, which is now the robertson family, 290 property, l.l.c., Austin country inc., the company that runs the flea market, and us.
In terms of the final cover plan, what it calls for is correcting subsidence areas.
About two-thirds of the costs of this would be outside of the flea market area where we have a little bit of subsidence and some areas where there's some erosion on the top of the landfill.
About one-third of the cost is the flea market area itself where there's substantial subsidence and areas that need to be filled in and areas where the drainage need to be improved so that it's not caught and pooled up so the drainage -- concern being if this collects in subsided areas, it will seep into the landfill and create additional leachate beyond what's expected.
So we've got substantial amount of earth work that need to be done out there.
We've got a ready source of clay rich soils on the property that will be utilized for some of the embankment that needs to be placed and there's other costs.
The total cost of this is a little over $1.3 million.
And as mr. Nuckols indicated, we will be reimbursed approximately $100,000 from Austin country, inc.
And they have signed a cooperateive agreement.
The property owners have signed the cooperative agreement and it's ready now for judge Biscoe's signature to finalize that.
In addition to just being a document that identifies the costs that would be contributed, it outlines access to the site that we'll need for the construction phase of this and for the continual maintenance of this.
So it sort of updates the expectations we would like from the landowner and Austin country so that we can operate this in compliance with the regs.
It also includes some things in the Austin country has submitted so they can better manage the water that comes off of the surfaces, the roofs and the parking lot areas.
And reduce what might be seeping into the landfill from those kinds of activities.
The cost that we have estimated from our -- we have an engineer's estimate and the -- the cost is -- I thought I had it in in memo.
It's about $1.35 million.
And we are requesting that that be from the allocated reserve.
Once we -- once that's approved, t.n.r.
Would then request that purchasing begin and invitation for bid process and we will through a competitive process select a contractor to do this work.
Ultimately the tceq is expecting that we'll be in full compliance by implementing this final cover plan by April of next year.
We've been working closely with them.
We are a little behind the time line schedule that we gave tceq.
They are aware of that, but they know the difficulties and complexities that we've been working through to get to this point.
So I think between communication and our forward progress on this we should stay out of an enforcement action that could happen if we did nothing or delayed very long.
I think I might leave it there, but essentially we're looking to have approval of the funding from allocated reserve.
The court's approval of the cooperative agreement that would be signed by judge Biscoe and then our authorization to submit this permit application and make whatever small changes or address any deficiencies that the tceq might have with our application.
Thank you.

>> Ms. Rio.

>> I just wanted to highlight, a question came up about the funding source yesterday and if there was an earmark on the allocated reserve for this particular project and there is an earmark for $750,000 that went through the budget process last year.
As we're hearing today t.n.r.
Has revised that amount based on further work to 1.3 million or now it's 1.35.

>> Just for clarity, the total that we've got right now, $1,320,524.15.

>> I'll get that from you after.
There's going to be a budget adjustment on for next week.
I know that deanna is working diligently with t.n.r.
Staff right now to get that posted for court's consideration for next week from allocated reserve.
The current possible future ear maximum or future expenses we provide each week in our budget amendments and transfers currently total 5.76 million.
That was with an earmark for t.n.r.
750,000.
So I did send an email yesterday that just gave you further information on.
That I was working just now on some information regarding those earmarks because I know some of those earmarks when we do our end of year projections every month in our office we go around and say are these earmarks and say are these going to be extended to the end of the year or not.
So we believe that the allocated reserve is the correct funding source and that it will be -- it's an appropriate funding source and that we can handle that for f.y.
12.
The remaining allocated reserve balance after the possible future earmarks with the work I've done is higher than what we've reporting to you every month because we don't believe each of those earmarks is going to be requested this fiscal year.

>> So we're not going up to 6.3, we're still staying at 5.7 or so because we think that we can stay within that range?

>> I believe we can stay below that range.

>> Okay.
Thank you.

>> And we will obviously revise our end of year projections next month when we turn that into the auditor's office to reflect the most up to date information including this additional expenditure.

>> So the $1.3 million is expected to cover what?

>> It will cover the repair of the cap which includes the placement of clay rich soil and then topsoil on top of that and revegetation in the subsided areas.
The cost that Austin country will reimburse us for will be to replace parking lot.
Once we dig out and fill with clay some of the subsidence areas where there's parking lots and driveways on their part of the landfill, they will pay for placing the road base and the parking lot material on top of that.
And other things.
Some of the costs relate to removing concrete structures.
You remember there was a fire and so what's left right now is basically concrete slab and we're going to have that removed and taken out of the way.
Once -- once the subsided areas are filled and vegetated, there will also be a fence put up.
We are looking to have an intruder resistant fence that puts a nice clean perimeter between us and the flea market to basically keep unauthorized people out of the landfill and to just keep them on the flea market site.

>> So we hope to separate the flea market activity from the landfill?

>> It's separated now, but not very well in terms of fencing and things.
And we're actually moving the fence back so that more of the area is outside of the landfill -- excuse me, outside of the flea market and on our side of the fence, so to speak, to kind of restrict where that landfill goes and to allow us more access to more quickly repair areas in the future that might subside if something like that happens again.

>> My thought was that the $1.3 million will repair damage already done.

>> Correct.

>> But it won't fund a maintenance plan for the future.

>> We already have a maintenance budget for the landfill itself which includes our, you know, periodic road repairs, maintenance of the leachate collection system and things related to that.
So this is a separate budget item from that.
What I want to make sure everybody understands listening to this is that the flea market does actually sit on top of the old landfill.
What we're doing in this action is basically tighten the perimeter so they are occupying essentially less area and we're sort of scouring out some of the areas that have been subsided and then filling and grading and restoring them so that they will be more stable in the future.
Our goal being to eliminate any kind of leach -- any kind of percolation of rain water and such into the land full and try to reduce our leachate issues.

>> Landfill gets a whole lot of traffic every Saturday and Sunday.

>> It does.

>> And so in the future damage that's caused by flea market traffic will be covered by the flea market.
Not us, right?

>> We expect that our ongoing operational agreement with them, number one, that the parking lots are going to be restored in such a way that they are not going to continue to contribute to issues.
The other place we've got issues is some of their roadways that are eroding are places where they actually had traffic and we expect, number one, they will manage runoff from their structures and site, and number two, that they will maintain those areas so there will not be additional erosion issues in the future associated with their use.

>> And they've agreed to do that in the contract that is before us today?

>> They've agreed to manage in a much more stewardship fashion.
I think overall we're looking at the subsidence issue and ponding of water of being a major part of what we need to do to eliminate this problem.
We're not under the illusion something further my happen that would give cause to repair in the future too.
If there was a connection with between that and the flea market I think we would be negotiating a revised agreement to cover.
That we cover fixing what's a problem right now and doing some proactive things to hopefully minimize or eliminate a problem, but we don't know that there couldn't be a big subsidence area that starts somewhere else.
The bottom line is this thing at some point ought to be in -- the problem is not the plateau.
The subsidence ought to end at some point, you know, if there were voids in the trash that causes subsidence, hopefully all that subsidence has occurred.

>> It will settle eventually.

>> Everything will be settled, yes.
And we've filled in those settled areas.
Through this plan we hope that will be the end of it.
But none of us are underground looking at what's going on and that's one of the things that we'll have to deal with.

>> To speak to those issues, what the contract says is that if tceq says something is going on out there, whether it's operation of the flea market or anything else, that is degrading the landfill cap and causing problems, then our contract says the flea market can't do it.
Neither we nor the flea market nor the landowners say whether something is affecting the integrity of the landfill.
Only tceq determines that.
And our contract with the landowner and the landfill says that if tceq tells the flea market or tceq tells the landowner, you're doing something that impacts the integrity of the landfill, our contract says you can't do that and we would be able to enforce the contract to make them stop doing that.
That's how the contract covers us, as tom says, if something comes up in the future that we don't know about today.

>> If that were to occur and there was remediation associated with that, we could say they can't do that, but who is responsible for the cost of remediation?

>> Ultimately the county because we were the operator of the landfill and under state law the owner and operator are joint and severally liable.

>> If the flea market was determined to be the cause of the problem, the landowner and county would be stuck for the remediation cost?

>> Our argument would be the flea market is really the agent of the landowner.
They are the lessee.
The landowner is the lessor.
Whatever the flea market is doing is really a result of the landowner having let them do that so that cost should flow through who the landowner.

>> But that would likely be the cause of action against the landowner.

>> Tceq would have the power to basically adjudicate that and we're keeping that in mind if that comes up.
That's what we would do, we would say tceq, you've said that a flea market cost, well, the flea market is the lessee of the landowner.

>> So we would be able to do that through a tceq action or through an a.l.j.?

>> The starting point would be ask tceq to issue an order apportioning the liability.

>> So we at least have some chance of working this out before it gets to a civil court?

>> Yeah.

>> We could work it out administratively, hopefully.

>> We lease this land when we operated the landfill.

>> We have an agreement to -- with them that dates --

>> When we operated the landfill, we leased it.

>> Correct.
We did pay a cost to lease it until closure and then -- and then there was a revised agreement put together that basically allows -- an access agreement to maintain in post-closure no costs.

>> Are we making lease payments today?

>> No, it was first n.
That in t agreement when the landfilling was occurring.

>> We're satisfied this agreement will remediate the problems there now?

>> We're pretty confident we can address what was specifically cited in the n.o.v., that essentially the regulations say we haven't done enough to maintain this cap.
And we will know shortly whether tceq accepts that plan, all the discussions we've had thus far is I think they believe we're on the right course.
The -- the one outstanding thing that is not addressed in this is they would like us to look at ground water and subsurface conditions and we have asked them to defer and delay that until time that we can see how this plan addresses and perhaps reduces the leachate that we accumulate and pump.
So we're going to be watching the quantity of leachate that we produce and hopefully see a decline.
If we don't see a decline, we're going to need to take, to do some other actions to really try to remedy where that leachate is coming from.
We think it might be ground water that flows downhill a little bit and we're pumping it out and sending it to the city of Austin's wastewater treatment facility.
So they are concerned with that.
I guess in answer to your question, judge, we -- we're confident that we're going to address the n.o.v.
Relating to subsidence and ponding and better maintaining this.
We hadn't really looked at maintenance on the flea market property until this time so this is a new chapter in our efforts there.
And we think we can become compliant with tceq.

>> Seems to me we can accept issues in the future that will require expenditure of funds to address different problems.

>> I think that's more likely than not, judge.
I think you are right on that.

>> So old closed landfills in that way in general?

>> You know, they can be problematic.
This one, it stands out in comparison to other ones by the amount of leachate and you guys have a lot more than you should have for a landfill your size and that's what tom is talking about here is it may be because of ground water issue.
Pitting this cap on won't address ground worry issues.
We're hoping to see reduction in -- it's a possibility the ground water is the problem and we would have to go find another solution to deal with that.

>> We have known there are ground water issues on this site for over 40 years and 20 careers ago we made a concerted effort to try to identify the source and that didn't go anywhere so here we are again back at that issue.
We need to take care of zipping up the issues that we can and make sure we isolate that which is ultimately going to be the issue which is ground water.

>> There was probably a ground water spring circumstance.

>> It certainly was not obvious at the time, I suspect.
There are two adjacent landfills that don't have the same problem.
It's just luck of the draw I think in terms of understanding the landscape back in the late 1960's.

>> There weren't sighting standards then.
There were some very general primitive almost guidance that the Texas department of health would have given and there were no different than probably the guidance constructing the landfill did.
It was before the era when we looked at the fact that these things leak and leak into creeks and cause pollution or ground water pollution which doesn't appear to be the issue because of the clays underneath.
But there's a whole new focus, technology changes all the time to improve these things and we're hoping we get a -- we've got a pretty good plan developed by s.c.s.
Engineers who specialize in this work and they've considered a lot of factors in putting the plan together.

>> The $1.3 million contains our estimate of what the work will cost.

>> Correct.

>> Could be less, could be more but we think it's pretty close.

>> We will also be expecting the $100,000 contribution from Austin country which will reduce our cost.
From there on it's a matter of project management to try to contain our costs as best we can and deal with other things as they come up.

>> Move approval of 18 a, b and c.

>> Second.

>> We'll have budget amendments and transfers dealing with the additional amount needed to get up to 1.3 million.
Seconded by Commissioner Eckhardt.
Discussion on the motion?
All in favor?
That passes by unanimous vote.
Thank you all very much.
By the way, that motion includes authorization force the county judge to sign the agreement whether he likes it or not.

>> I have three copies.
I can bring those to you directly or we can deliver them to your office.

>> Whatever is convenient for you.
We're here to serve.

>> Okay, thank you.

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