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HomeMy WebLinkAboutO-1987-1564 . . ORDINANCE NO. 1564 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN AGREEMENT DATED OCTOBER 26, 1987, BETWEEN BOC GROUP, INC., A DELAWARE CORPORATION, AND THE CITY OF LA PORTE; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. The City Council of the City of La Porte hereby approves that certain "Agreement Regarding Municipal Solid Waste Disposal Site", dated October 26, 1987, by and between BOC Group, Inc., a Delaware Corporation, and the City of La Porte, in form attached to this Ordinance as Exhibit "A", incorporated by reference herein, and made a part hereof for all purposes. The City Manager is authorized to sign on behalf of the City, and the City Secretary to attest, the multiple originals of such agreement. Section 2. The City Council officially finds, determines, recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Article 6252-17, Texas Revised Civil Statutes Annotated; and that this meeting has been open to the public as required by law at all times during which this Ordinance and the subject matter thereof. has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 3. This Ordinance shall be effective from and after its passage and approval. PASSED AND APPROVED this the 26th day of October, 1987. CITY OF LA PORTE ~d4,4/ltA No an Malone, yor ATTEST: (!~~ Cherie Black, City Secretary APPROVED: ~cJ Knox W. Askins, City Attorney . . THIS AGREEMENT IS SUBJECT TO ARBITRATION UNDER THE TEXAS GENERAL ARBITRATION ACT STATE OF TEXAS S S COUNTY OF HARRIS S AGREEMENT REGARDING MUNICIPAL SOLID WASTE DISPOSAL SITE WHEREAS, the City of La Porte, a municipal corporation in Harris County, Texas ("La Porte"), has applied for a solid waste disposal permit from the Texas Department of Health ("TDH") for a solid waste landfill (the "Landfill"), on property located approximately 0.5 miles south of the intersection of Bay Area Boulevard and Fairmont parkway and immediately east of Bay Area Boulevard in the extraterritorial jurisdiction of the City of La Porte in Harris County, Texas; WHEREAS, La Porte has obtained a permit for an air curtain destructor from the Texas Air Control Board and in the future La Porte may expand operations at the Landfill to include resource recovery operations (all operations at the Landfill are included within the term "Landfill" for purposes of this Agreement); WHEREAS, the BOC Group, Inc. ("BOC"), a Delaware corporation, successor to Airco, Inc., a Delaware corporation owns property to the north of the proposed Landfill where it operates an air separation plant which produces oxygen, nitrogen, and argon wherein the oxygen product specification might be adversely affected by methane emissions from the proposed Landfill; WHEREAS, BOC has been opposing La Portels application for a TDH permit for the Landfill; and 1 e . WHEREAS, the Parties hereto have determined that it is in their best interests to enter into this Agreement; NOW, THEREFORE, in consideration of the premises and of the respective agreements set forth herein, the Parties agree as follows: 1. La Porte shall limit use of the Landfill to the disposal of municipal waste generated in La Porte and the City of Seabrook, Texas, or the disposal of ash from an incinerator used by La Porte or the City of Seabrook or both to incinerate all or part of the municipal waste generated by each. 2. La Porte agrees to limit the future use of the property on which the Landfill is located to industrial activities or municipal activities of an industrial nature such as equipment maintenance facilities, warehouses and vehicle storage areas. La Porte further agrees the property shall not be used for residential, commercial, recreational, park, or educational purposes or any use that would be inconsistent with the industrial character of the Bayport Industrial Area in which the Landfill is located. 3. La Porte shall require all trucks delivering waste to the Landfill to be properly covered or contained so as to prevent waste from spilling onto roadways and property in the Bayport Industrial Area. La Porte agrees to remove promptly any such spillage, and endeavor to accomplish same by no later than the close of business on the day after such event is reported. 2 e e 4. La Porte shall minimize traffic congestion by providing I waiting and parking areas off of public roads for trucks delivering waste to the Landfill. 5. La Porte shall take all reasonable measures to prevent vehicles leaving the Landfill from tracking mud onto the access roads to the Landfill. 6. La Porte agrees to notify BOC within 10 days following the submittal of any applications for permits, authorizations, licenses, or the like, including amendments thereto, with respect to the Landfill property. 7. La Porte agrees that, wi thin 60 days of acquiring the site for the construction of the Landfill, to place of record in the Real Property Records of Harris County, Texas, the covenants and restrictions contained in this Agreement restricting (a) La Porte's operation of the Landfill and (b) future uses of the land. Such recorded restrictions shall be considered and construed to be covenants running with the land, binding upon each successive owner of any part of the land, and shall be for the benefit of and enforceable by the Parties. hereto or their successors and assigns. 8. As described in La Porte's Landfill application currently pending before the TDH, the landfilling shall be conducted to achieve final grade in an area as soon as practicable and the final cover material shall include at least 1.5 feet of impermeable clay as specified for bottom and side liners in the 3 e e Landfill. La Porte shall also remove abandoned pipeline segments from the active landfill area and properly backfill the pipeline routes to minimize subsurface landfill gas migration. 9. The Parties understand that the decomposi tion of municipal solid waste when interred in a landfill generates methane gas. The Parties further understand that the TDH and other regulatory agencies are concerned that concentrations of methane at the properly line of a landfill not exceed the lower explosive limit, such concentration being five percent (5%) of the air by volume or 50,000 parts per million ("ppm") of methane. However, because Boe operates an air separation facility located approximately 3,000 feet north of the proposed Landfill, and because methane levels in excess of 2.9 ppm at the Boe intake structure may affect the ability of Boe to produce oxygen meeting Boe specifications, the Parties hereto agree to the following: 9.1 The current ambient air concentration of methane at the Boe facility is approximately 2.11 ppm. This concentration is calculated from concentrations of methane which Boe has measured in its product. 9.2 Methane is concentrated in the oxygen portion of Boe' s product and can be measured in the reboiler at the plant. 9.3 Boe has a product specification that methane in its oxygen shall not exceed 25 ppm. 4 e e 9.4 BOe will monitor methane in its reboiler at Boe's expense. Boe shall provide La Porte all data pertaining to methane levels in the reboiler in a quarterly report. In the event that (1) the two hour average concentration of methane in the reboiler exceeds 20 ppm during three or more days in any consecutive 30-day period; (2) the prevailing wind was from a generally southerly direction during the times when such 20 ppm or greater concentration of methane was measured; (3) Boe concludes that the operation of the Landfill is the primary cause of the increase of such methane concentrations; and, if so, (4) that such events can be reasonably anticipated to cause Boe to exceed the methane specification of 25 ppm in its oxygen product, Boe shall notify La Porte in writing that such event has occurred and shall provide La Porte with all data in Boe's possession which is relevant to the issue of the concentration of methane in Boe I s oxygen product, including but not limited to laboratory data and wind direction. 9.5 La Porte shall have 30 days in which to examine the data and determine whether it contests the accuracy of the data and to determine if the Landfill is the primary cause of the increase in methane concentrations and, if so, that such events can be reasonably anticipated to cause Boe to exceed the methane specification of 25 ppm in its oxygen product. In the event that La Porte does not contest the accuracy of 5 e e the data nor the assertion that the Landfill is the primary cause of such events and, if so, that such events can be reasonably anticipated to cause BOC to exceed the methane specification of 25 ppm in its oxygen product, within 30 days after receipt of such data, La Porte shall, within 30 days of the expiration of the 30 day period, notify BOC as to its selection of one of the remedial actions described in paragraph 9.5a and 9.5b below. 9.5. a. If La Porte selects this remedial action within 30 days of its selection notice to BOC it shall pay BOC $117,650.00 in 1987 dollars for the installation of a 100 foot high, 34 inch diameter, intake stack at BOC's facility. This cost shall be recalculated in current dollars by applying an inflation factor derived by dividing the most recent annual Implicit Price Deflator for Gross National Product published by the U. S. Department of Commerce in its Survey of Annual Business by the annual Implicit Price Deflator for 1987. If La Porte does not make a remedy selection within the specified 30 day period or make the required payment wi thin the 30 day period after its selection of this remedy, BOC has the right to proceed with installation of the higher intake and proceed with its claim against La Porte at a later time. 6 e e The parties understand and agree that all money paid to Boe by La Porte under this section is intended to be used for the construction of an intake stack which, at a minimum, meets the size standards set forth herein. Should Boe receive payment under this section from La Porte and should Boe fail without good cause to construct a stack which at least meets the specifications stated herein wi thin 240 days from the date of payment, La Porte shall have no further obligation hereunder and La Porte shall be released from any liability with respect to methane emissions. Once the stack is constructed, Boe has the duty to properly use, operate and maintain same. 9.S.b. If La Porte selects this remedial action, within 60 days of its selection notice to Boe it shall begin the installation of the landfill gas collection and flaring system constructed and designed in accordance with then current technology and sound engineering practice. Installation of the landfill gas collection and flaring system shall be completed within 240 days of La Porte I s selection notice to Boe. When completed, the landfill gas collection and flaring system shall be operated in accordance with sound engineering practice. 7 e e 9.6 If, after implementation of one of the remedial actions described in paragraph 9.5, the methane conditions described in paragraph 9.4 occur again, BOC shall provide La Porte with the notice and data specified in Paragraph 9.4. La Porte shall then have the 30 day review period provided in Paragraph 9.5. In the event that La Porte does not contest the accuracy of the data nor the assertion that the Landfill contributes to the methane conditions described in paragraph 9.4, and, if so, that such events can be reasonably anticipated to cause BOe to exceed the methane specification of 25 ppm in its oxygen product, La Porte shall implement the remedial action in Paragraph 9.5 that was not previously implemented. Implementation shall be completed wi thin the time specified in paragraph 9.5 for the remedial action using the end of the 30 day review period in paragraph 9.5 as the date of the selection notice. 9.7 Should La Porte contest the conclusion that the methane level in the reboiler reached a two hour aver~ge of 20 ppm over three or more days in any consecutive 30-day period, or contest the fact that the Landfill is the primary cause of the increase of such methane concentrations, and, if so, that such events can be reasonably anticipated to cause Boe to exceed the methane specification of 25 ppm in its oxygen product, La Porte and Boe agree to arbitrate the dispute. La Porte shall give Boe written notice of its 8 e e decision to use arbitration within the 30 day review period specified in paragraph 9.5. It is the intent of the parties that there be a panel of three arbitrators, each of whom is to be familiar with the technical issues associated with the dispute. Each of the two Parties shall name a technical expert as a representative within 15 days of the notice to use arbitration and the two arbitrators named shall select a third technical expert within 15 days after the Parties have each named an arbitrator. The arbitration panel shall determine whether the events described in Section 9.4 have occurred, and if so, whether the Landfill is the primary cause of the increase in methane concentrations and whether such events can be reasonably anticipated to cause Boe to exceed the methane specification of 25 ppm in its oxygen product. The Parties agree to be bound by the decision of the arbitration panel, as evidenced by a majority vote of the panel. Each party agrees to compensate the arbitrator who it has appointed, and agrees to pay one-half of the costs of the third arbitrator. Unless otherwise ~greed to in writing by the Parties, the arbitration panel shall conduct its activities in a manner and on a time schedule such that the panel will render a decision within 60 days of the selection of the third arbitrator. It is the intent of the Parties that this agreement comply with and be in conformance with the terms and conditions of the Texas General Arbitration 9 . e Act. The parties also pre-arbitration discovery other. agree to cooperate in expedited at the written request of the 9.8 Boe shall continue to monitor methane as described in Paragraph 9.4 herein and provide La Porte with the results of same during the period when La Porte has a landfill gas collection and flaring system in operation. At such time that La Porte determines that the landfill gas collection and flaring system is no longer needed because methane generation at the Landfill has decreased to a level that elimination of the gas collection and flaring system will not cause Boe to exceed the methane standard of 25 ppm in its oxygen product, La Porte shall notify Boe of its intent to cease operating the system. Boe shall have 30 days to determine whether it concurs that the landfill gas collection and flaring system is no longer needed. Should Boe choose to contest this conclusion, the Parties agree to arbitrate the issue in accordance with pa~agraph 9.7 herein. The arbitrators shall decide whether the elimination of the landfill gas collection and flaring system at the Landfill will cause Boe to exceed the methane standard of 25 ppm in its oxygen product. 10. The Parties hereto agree to allow representatives of the other Party to enter and inspect each party's facility during normal daylight business hours Monday through Friday to protect the integrity of this Agreement. 10 . e 11. As consideration for La Porte's agreeing to the above conditions, BOe agrees to withdraw its opposition to La Porte's pending application to the TDH for a solid waste disposal permit for the Landfill and not to oppose same in any other forum. Addi tionally , Boe shall not in any way encourage, directly or indirectly, including financial contributions, other than mandatory dues and assessments paid to Bayport Industrial Association, any other person, firm, or entity to oppose or in any other manner attempt to prevent La Porte from operating the Landfill that is the subj ect of this Agreement. Provided, however, Boe is in no way limited in exercising whatever rights or remedies which may be available to see that the Landfill is operated in compliance with applicable regulatory requirements, to enforce the terms of this Agreement, or to protect its facili ty or recover damages in the event the remedial actions provided for in Paragraph 9.5 are inadequate to prevent the methane specification of 25 ppm from being exceeded in Boe' s oxygen product. 12. The terms of this Agreement and other restrictions are 40 years, or the longest period permitted by the laws of the state of Texas. 13. The Parties understand and agree that if for any reasons La Porte does not receive a permit to operate a landfill at the site contemplated by this Agreement, or for whatever reason does not begin the disposal of waste at the site, all provisions of 11 . e this agreement are null and void save and except paragraphs 2 and 7. 14. This agreement shall be binding upon and shall inure to the benefit of the respective successors and assigns of the Parties hereto. 15. The Parties hereto covenant and agree to execute such other and further documents and instruments as are or may become necessary or convenient to effectuate and carry out the objectives of this Agreement. 16. This Agreement was lawfully approved pursuant to City of La Porte Ordinance No. adopted by the City Council of the City of La Porte by the majority vote on Agenda Item No. at the City Council meeting on , 1987. 17. Any notices related to this Agreement must be made in writing and may be given or served by depositing the same in the Uni ted states mail postpaid and registered or certified, with return receipt requested. Notices shall be sent to the following designated representatives at the addresses indicated: If to La Porte, to: City Manager City of La Porte Post Office Box 1115 La Porte, Texas 77571 Production Superintendent Airco Industrial Gases 13440 Bay Area Boulevard pasadena, Texas 77507 If to BOC, to: The designated representatives and their addresses can be changed with at least 15 days written notice to other parties. 12 . e Executed in multiple originals, this , 1987. day of THE CITY OF LA PORTE By City Manager Attest: City Secretary THE BOC GROUP INC. By C.,J. McCoy Vice President of Operations and Technology 13 e e STATE OF NEW JERSEY s s s COUNTY OF UNION This instrument 1987, by Technology of the BOC Group, behalf of said corporation. was acknowledged before me on , , Vice President of Operations and Inc., a Delaware corporation, on Notary Public in and for the state of New Jersey Notary's name (printed): My Commission Expires: SL2:47100.2/7 14