ASHLAND CITY COUNCIL
August 4, 2015
Council Chambers
1175 E. Main Street

 
CALL TO ORDER
Mayor Stromberg called the meeting to order at 7:02 p.m. in the Civic Center Council Chambers.
 
ROLL CALL
Councilor Voisin, Morris, Seffinger, Rosenthal, and Marsh were present.  Councilor Lemhouse was absent.
 
MAYOR’S ANNOUNCEMENTS
Mayor Stromberg announced vacancies on various commissions.
 
APPROVAL OF MINUTES
Councilor Marsh made a correction to the July 21, 2015 minutes on page 5, first sentence under DISCUSSION on the Verde Village motion under COUNCIL DELIBERATION AND DECISION.  The sentence should read, “Councilor Marsh noted the proposed modifications were not substantive…” instead of substantive.  The minutes of the Study Session of July 20, 2015, and Business Meeting of July 21, 2015 were approved as amended.
 
SPECIAL PRESENTATIONS & AWARDS
Mayor Stromberg read the Mayoral Endorsement of the October, “Our Critical Climate; Trends, Impacts & Solutions – a Rogue Basin Summit” event aloud.  The dates for the event were October 13 & 14, 2015 at the Commons in Medford.  The deadline for registration was September 30, 2015.  People interested in attending could register on the Southern Oregon Climate Action Now (SOCAN) at http://socanclimatesummit.info/.
 
Council agreed to take public input on SPECIAL PRESENTATIONS & AWARDS item 3. Presentation on railroad property.
 
2.   2015 Drought Update
Public Works Director Mike Faught congratulated Ashland citizens for voluntarily decreasing water use 30% using 4.4 million gallons per day (mgd).  Usage increased close to 5 mgd during higher temperatures.  The East and West Forks flows were at 3.75 mgd with an approximately 1 mgd more than last year this time.  At this time, there was no snowpack on Mt. Ashland.  Of the 3.75 mgd, .75 mgd needed to remain in the Creek for water rights downstream.
 
The City was also adding 1.9 mgd of Talent Irrigation District (TID) water and Reeder Reservoir was holding steady at 94% capacity losing half million gallons of evaporation due to high temperatures.  The Talent Ashland Phoenix (TAP) pipeline test would begin August 15, 2015 and add 2 mgd.  Staff met with the TID users who would lose their water rights on July 25, 2015 and shut the backside down July 28, 2015.
 
Mr. Faught noted an issue where the meter was not automatically updating and showed 3.4 mgd when it was 4.3 mgd – 4.4 mgd.  Water Distribution Supervisor Steve Walker explained the City had a certain amount of storage for treated water and when they were full, they modulated the treatment process.  Water treatment fluctuated throughout the day based on demand.  If the East and West Forks were producing enough water to keep reservoirs full, the City would turn on the TID for the backside customers.
 
Water Conservation Specialist Julie Smitherman shared citywide efforts the community made to reduce water usage.  She noted interviews and presentations that occurred regarding the drought and programs customers could take advantage of through the City. Staff had received approximately 400 phone calls and emails asking for assistance to reduce water use.  The City established a newsletter and sent articles with monthly utility bills providing tips and programs.
 
Staff completed 140 lawn replacements and opened the program to TID customers as well that resulted in a water savings of 1.5-2 million gallons the community will now have on a yearly basis.  In addition, they conducted 50 irrigation evaluations that resulted in customers achieving a 60% savings in water consumption.  They updated the Watering Info Line number at 541-552-2057 to determine water needs for plants biweekly. Additionally, there was the Water Wise Landscaping website at http://www.ashlandsaveswater.org/.  The City offered rebates for WaterSense toilets, dishwashers, and washing machines, and gave away showerheads and aerators that allowed for a 600,000-gallon water savings.  Staff was also distributing guides for watering trees and surviving the drought.  The City was evaluating medians and other City owned properties to conserve water further.
 
The Parks and Recreation Department prioritized lawn watering for parks and athletic fields.  Staff was working with Southern Oregon University and the Ashland School District on water efficiency gains.  In addition to the Water Wise Landscaping website staff was adding a garden tour of pollinator friendly plants.  In 2012, the average daily water use was 6 mgd and the area was experiencing a slight drought.  In 2014 with all the programs to save and reduce water, the community saved 7.5-million gallons. 
 
Mr. Faught noted a full update to the Water Master Plan would occur late 2015 or early 2016.  The Ashland Water Advisory Committee (AWAC) had discussed recycling water but decided against it due to the high cost of developing a secondary piping system.  Another variable was over 50% of the flow went into Ashland Creek during the winter.  They were looking at relocating to Bear Creek for temperature issues but the City had to replace water used back into the creek for fish habitat.
 
3.   Presentation on railroad property
 
Councilor Marsh/Morris m/s to suspend Council rules.  Voice Vote: all AYES. Motion passed.
 
Linda Peterson Adams/642 Oak Street/The Remedial Action Work Plan of 2013 described removing this material by truck instead of rail as going against the values of livability and environmental consciousness that “Ashlanders” supported.  Removing two-acres was not a positive first step through road trampling, noise producing, and exhaust fuming, traffic-clogging trucks.  It set a precedent to remove the remaining 18-acres by those same trucks.  She suggested the Mayor and Council write a letter to the Department of Environmental Quality (DEQ) that the Union Pacific Railroad (Union Pacific) Implementation Plan of 2013 remained.  The City could deny the excavation permit for the proposed project.  She had hoped the city’s elected officials would move in the positive direction of sustainability and livability instead of the negative direction of accommodating Union Pacific.
 
Ron Adams/642 Oak Street/Was first aware of the plan to truck contaminated soil down Clear Creek Drive, Oak Street then Eagle Mill Road through the July 23, 2015 Daily Tidings and read from the article.  What was not included in the article was any mention of prior discussion and a proposed agreement specifically rejecting the use of trucks and the need to use rail cars for removal of contaminated soil.  It also did not say who authorized this planned action and he questioned if it was City staff then wondered who elected them.  He wanted to know where the Mayor and Council were regarding this project and expressed concern on the trucks hauling clean fill onto the property.
 
Cathy Shaw/886 Oak Street/Agreed with the other testimony.  The project would increase traffic by 15%.  She read a letter from former Mayor John Morrison in 2006.  There would be between 4,000-10,000 truckloads moving down Oak Street.  That was a lot of truck traffic for a street already experiencing high volume.  Oak Street was an arterial and designed for this type of traffic.  The contamination came in via railroad and it should go out via railroad.  Different companies owned the rail lines and rail cars.  The railroad company was very unwilling to work with the City regarding past projects, and thought the City should get something in exchange.  She noted that 4,000-10,000 diesel trucks would pollute the air.
 
Councilor Voisin/Morris m/s to reinstate Council rules.  Voice Vote: all AYES. Motion passed.
 
City Administrator Dave Kanner explained Union Pacific had approached the City and the Department of Environmental Quality (DEQ) with a proposal to remove an underground fuel vault and approximately 7,500 cubic feet of contaminated soil around the vault.  Union Pacific had not yet applied for a permit from the City to do the work or had received DEQ approval for the project.  The railroad property was a 20-acre vacant piece of land north of A Street and south of Hersey Street.  It was a locomotive service and rail car repair facility from 1887 to 1986.  In 1993, Southern Pacific, the former owner of the property entered into a voluntary cleanup agreement with DEQ and Union Pacific acquired the property in 1996.
 
A voluntary cleanup agreement for a low risk site, which is what this area was, meant the property owner could set its own schedule for remediation.  In 2001, the DEQ issued a record of decision that identified five potential courses of action for cleaning the property and selected an alternative that required Union Pacific to excavate, remove, and dispose the contaminated soil.  If undisturbed, the contaminants did not pose a human health risk.  If disturbed by removal, DEQ required protective measures that would not have a human health risk. 
 
Union Pacific proposed to remove an unused buried fuel vault on a two-acre portion of the property by removing the top 4.5-feet of soil, and 2.5-feet of soil in the area surrounding the vault along with a pond.  DEQ identified removal of the fuel vault as a necessary action with the exception of the no action alternative.
 
The City would require Union Pacific to implement a dust suppression plan, immersion control plan, air-monitoring plan, covers for all truckloads hauling soil off site, and a plan for washing the truck wheels before leaving the site.  Union Pacific would compensate the City for any deterioration to Clear Creek Drive and Oak Street using deflection testing before and after the project.  Union Pacific would use Clear Creek Drive, Oak Street, and Eagle Mill Road to I-5 for removal of contaminated soil and delivering clean fill.  It would total 25 truckloads a day over a 5-week period.
 
Union Pacific had an independent environmental program to remove all unused fuel vaults on its properties.  There was no indication from Union Pacific that this was the start of a full site cleanup.  In 2006, the City sent a letter to DEQ requesting Union Pacific to use rail.  In 2012, Union Pacific proposed a full site cleanup using rail cars.  The economics of rail was at an all time low and presently it was at an all time high and rail cars were not available.  Central Oregon Pacific Railroad (CORP) owned the track and CORP could not guarantee track availability.  In addition, the City had no legal way of compelling Union Pacific to use rail.
 
Union Pacific proposed to use Oak Street instead of Hersey Street and Main Street.  Oak Street was a designated truck route built to handle heavy truck traffic and Union Pacific would compensate the City for demonstrable damage caused by the project.  Portions of Hersey Street had already fallen into the reconstruct category.  Union Pacific would not compensate the City for continued deterioration to that street.  The railroad would bring in water trucks for wheel washing, dust suppression, and provide a plan to capture that water so it did not run into the City’s system.
 
Mr. Kanner did not think the City could deny the excavation permit.  They were similar to building permits and used statutory found in state law for denial or approval.  The City could not deny a permit just because it did not support a project.  There were other provisions in the code regarding dust suppression and erosion control the City could enforce. 
 
DEQ required Union Pacific to clean the site to residential standards.  A full site cleanup would most likely consist of 4,000-10,000 truckloads.  The cleanup for the fuel vault and surrounding area estimated approximately 500-600 truckloads start to finish.
 
Mr. Kanner addressed what the City would get out of the project and explained the City deserved a cleaned up site instead of an environmental disaster in center of town.  The cleanup would also have to happen eventually.
 
Councilor Voisin disagreed and wanted some way to hold Union Pacific to the 2012 plan that the Council approved and referred to the Remedy Implementation Plan.  Mr. Kanner responded the plan came to Council during a Study Session and Council never approved it.  Union Pacific backed off from the cleanup at that time due to confusion on whether they would have to clean the entire site to residential as required by the City or only clean the area identified by DEQ to a residential standard.
 
City Attorney Dave Lohman was the former chair of the Oregon Transportation Commission’s Rail Committee.  Mr. Lohman explained rail cars were in high demand and hard to get primarily due to increased shipments of coal over the past two years.  It was highly probable they would not use the rail cars for cleanup since they were making money shipping coal.  CORP would most likely demand a high price per rail car from Union Pacific to use their line.
 
Mr. Kanner thought Union Pacific could choose to do nothing indefinitely, there was no deadline imposed by DEQ.  Union Pacific was ready to cleanup a portion of the property and had walked away from cleaning up the site twice.  The benefit to the City was that it was a step in the right direction towards getting the site cleaned up.  Mayor Stromberg added that once cleaned to residential standards the property would provide tax revenue.  It had substantial value depending on how it was developed.  The problem was the City had little advantage over Union Pacific.  Mr. Kanner commented that state law preempted cities from adopting any rules that regulated the use of rail or railroads.  That was different for the land itself and the City had imposed land use conditions of approval on the property.  The proposal came from Union Pacific’s environmental program and not the real estate division the City dealt with before.  A full site cleanup would take four months and require 400 rail cars that translated to 10,000 truckloads.
 
Mr. Lohman explained the proposed Remedy Implementation Plan from 2012 was never consummated therefore the City could not impose the plan now. Council could request DEQ use the plan but not require them.
 
Councilor Morris questioned the benefit of the cleanup if the property remained unusable. 
Mr. Kanner confirmed Union Pacific would clean up the proposed two acres proposed to residential standards.  DEQ did not require the entire parcel be residential, only four hot spots on the property.
 
Mayor Stromberg asked the Council if they wanted to suspend the rules to allow a question from the audience.  Councilor Marsh raised a point of order, noted the item was on the agenda as a presentation, required no action on the part of Council, and suggested adding it to the agenda.
 
Councilor Voisin/Marsh m/s put this item on the agenda for consideration later this evening.  Voice Vote: all AYES. Motion passed.
 
Councilor Voisin raised a point of order to confirm the public could speak on the agenda item.
 
PUBLIC FORUM
Michael Lessmeier/448 Tucker Street/Attended the previous nights Study Session regarding water and was disappointed the discussion did not take place.  He was disturbed the Council would avoid a substantive discussion on an issue so vitally important to the community because of a procedural objection.  Forty-one concerned citizens wanted to hear what Council had to say and that opportunity was lost forever.  There would be other opportunities but those 41 people would never be together again.  He thought the objection was unfair and that Councilor Voisin was not informed of the objection beforehand. 
 
Mayor Stromberg explained that meeting would take place with the review of the Water Master Plan,
 
Phillip Lang/758 B Street/Spoke on the case he had filed on the 24 American Disabilities Act (ADA) violations on the Oregon Shakespeare Festival campus.  The presiding judge at the Ninth Federal District Court set a trial date for this matter in July 2016.  This was a major civil rights case, 300,000 people cross the OSF courtyard annually.  The audience was aging and getting more disabled every year.  The lack of risk management and the failure to correct ADA violations made the City and OSF vulnerable to big lawsuits.  The City approved the lease in 2000 and that lease has been violated ever since.
 
Sherrill Rinehart/448 Tucker Street/Asked Council and staff to support more stringent water conservation during a drought emergency.  If the community in a drought emergency could conserve even more water there would be more of our free and best quality water and less of the Talent Irrigation District (TID) water for drinking.  The community could use less high quality drinking water for watering plants. She also attended the previous night’s Council meeting, was disappointed, felt disrespected, and was disheartened by the manner the discussion was shut down.
 
Huelz Gutcheon/2253 Hwy 99/Explained the Ashland Renewable Energy Acquisition Department announced that enabling complicated solar financial mechanisms necessitated hiring a specially trained MBA type expert.  He realized the present staff was decidedly unfit to drive Ashland’s climate future.  He also concluded that Council was uniquely qualified to learn these new mechanisms quickly.  He announced that he was running for Ashland Community Development Director.  It was necessary for government policy makers to be supremely knowledgeable in renewable energy solutions.  He knew what to do and knew the difference between fantasy and energy reality.  Greenhouse gas inventory, ten cars per every household went into the atmosphere, five of those fell into the ocean increasing hydrogen ions and harming fish. 
 
Louise Shawkat/870 Cambridge Street/She thanked the Mayor for endorsing Southern Oregon Climate Action Now (SOCAN) Our Critical Climate:  Trends, Impacts, and Solutions, A Rogue Basin Summit.  She submitted a document into the record that showed climate trends and consequences for the Rogue Valley.  She encouraged Council to send as many City staff as possible to attend the summit and noted participants.  It was important to study climate trends and projections to develop plans for the next 5-50 years to be proactive and not reactive. 
 
Joseph Kauth/32 Walker Avenue/Addressed climate change, Council actions, and impacts on climate change.  The Forest Resiliency plan started cutting at 5,000 feet.  He had a copy of the August 2, 2015 Mail Tribune regarding El Nino and noted comparisons to 1997.  Plastic grocery bags always washed into the creek and clogged up the oceans.  He pointed out atmospheric disturbances occurring in the ocean that was disturbing.  The Forest Resiliency plan took place at 5,000 feet and removed the “transportive,” a word he created, that removed the insulating coating that is like a vapor lock.
 
CONSENT AGENDA
1.   Minutes of boards, commissions, and committees
2.   Appointment of Alex Censor to the Airport Commission
3.   Appointment of Mike Oxendine to Tree Commission
4.   Contract with Pathway Enterprises to provide janitorial services
5.   Jackson County Supervising Physician direct award request
6.   Public Art Commission test project
 
Councilor Rosenthal pulled Consent Agent item #6 for further discussion.  Public Arts Commissioners Margaret Garrington and Alissa Clark Rich explained the process used to vinyl wrap utility boxes with digital imagery.  The removal process was similar.  It was difficult to scratch the two-millimeter vinyl material and graffiti wiped off.  Councilor Marsh thought it was great the artwork featured came from staff, City Senior Planner Brandon Golden for the first utility box.    
 
Councilor Marsh/Morris m/s to approve Consent Agenda items. Voice Vote: all AYES. Motion passed.
 
PUBLIC HEARINGS None
 
UNFINISHED BUSINESS None
 
NEW AND MISCELLANEOUS BUSINESS
1.   Appeal of denial of Special Event permit for Techtoberfest
City Administrator Dave Kanner clarified Sustainable Valley Technology Group (SVTG) technically had not submitted an application.  Staff reviewed their application that requested closing a portion of B Street for 17-18 hours.  The application went to the City Administrator to waive the two hour street closure limit.  After discussions with City staff, Mr. Kanner decided not to waive the two-hour limit.  Staff informed SVTG they could appeal the denial.  He interpreted waiving the two-hour limit with closing a road for 3-4 hours.   Another reason for denial was correspondence from the Police and Fire Departments that they had never allowed closure of B Street because it is a neighborhood collector.  This would set a precedent, the City would have to treat all applicants equally, and it was a bad precedent to close a collector. 
 
Councilor Voisin raised a point of clarification and confirmed the closure on B Street was between Oak Street and Pioneer Street.
 
Fire Chief John Karns and Police Chief Tighe O’Meara agreed it was not ideal to close the road for that long.  Both departments could work with the closures but it was a major thoroughfare and there were concerns on response time.  Closing Pioneer Street instead would make the situation worse for an emergency event. 
 
Applicants Rosetta Shaw, Cassandra Davis, and Jessica Gomez explained the layout and were willing to reduce the street closure time from 6:00 a.m. to 11:00 p.m. to 11:00 a.m. to 7:00 p.m. with the event starting at 2:00 p.m.  They described logistics, set up times and that they were expecting 500-2,000 attendees.  Ms. Davis further explained why the Historic Ashland Armory was better suited for the event.
 
Staff confirmed the Fire Department had denied four separate block party requests to close B Street and there was a policy of not closing B Street.
 
Councilor Voisin m/s have staff work with the Sustainable Valley Technology Group to find another space.  Motion died for lack of a second.
 
Council discussed other locations, the possibility of the applicants hiring Ashland Police for security.  Chief O’Meara explained hiring Ashland Police was unusual but could happen.  The conditional use permit (CUP) required an applicant to hire private security to ensure crowds did not spill into right of ways.  Other Council comments noted exceptions to policy were problematic for the Parks and Recreation Department in the past and expressed concern regarding fairness issues.  Council suggested trying the street closure as an experiment.
 
The applicants assured Council closing the street from 11:00 a.m. to 7:00 p.m. provided ample time for setting up and dismantling.
 
Mr. Kanner informed Council that October 10, 2015 was also the day for the Gay Pride Parade that would temporarily close Siskiyou for the actual parade with an event following in Lithia Park.  Additionally, the Growers Market would close part of Oak Street until early Saturday afternoon the same day.  Chief O’Meara commented it would be more problematic but the Police Department could work around the closures.
 
Councilor Morris/Voisin m/s to approve the Sustainable Valley Technology Group request to close B Street between Oak Street and Pioneer Street for the extended hours of 11:00 a.m. 7:00 p.m. on October 10, 2015.  DISCUSSION:  Councilor Marsh would oppose the motion.  It was too much activity and too many unknowns to happen on the same day.  It was confusing to have multiple closures and an intense use in a small area.  Councilor Rosenthal would support the motion.  He wanted the event to happen in the community.  Councilor Seffinger would also oppose the motion.  It was not a fair trial and could cause emergency issues in the community.  Roll Call Vote:  Councilor Morris, Rosenthal, Voisin, YES, Councilor Seffinger and Marsh, NO.  Motion passed 3-2.
 
2.   Downtown Beautification Project update
Engineering Services Manager Scott Fleury provided the background on the selection process that selected Covey Pardee Landscape Architects and KenCairn Landscape Architects for design work on four projects.  The projects included the corner at Winburn Way, the Pioneer Parking lot, improvements to the Plaza, and the triangle strip at the corner of Pioneer Street and Lithia Way.  The final designs were before Council for approval prior to bidding and construction.  They originally planned construction for June 2015.  Due to the extended selection process, meeting dates, and impacts to the downtown area, staff recommended postponing the projects until fall 2015 to minimize overall impacts and attain better bids. Construction for the parking lot on Winburn Way corner, and the triangle on Pioneer Street and Lithia Way would go for bid and construction early 2016 with completion by April 2016.
 
Kerry KenCairn from KenCairn Landscape Architects addressed the tree removal for the parking lot improvement, explained they were Raywood Ashes, and had a short life span.  Their tops grew heavier than their roots causing them to fall over from heavy wind or rain.  They would replace the Raywood Ash with long living, better statured trees.   The Tree Commission discussed the tree removal and there was not any opposition because there was a general understanding of the problems with that species in that setting.  The trees were also not doing well.  The original request to remove the trees came from the Downtown Beautification Improvement ad Hoc Committee.  It was the designer’s opinion the trees should stay.  Councilor Voisin clarified the Tree Commission had some questions regarding the tree removal.  The minutes did not reflect the discussion.
 
Ms. KenCairn went on to describe the protection measures they would use to protect the cedar tree in the Winburn Way improvement.  She clarified the project did not include installing new light posts or adding drip irrigation to preexisting light posts.
 
Allan Pardee from Covey Pardee Landscape Architects addressed the Plaza improvement project noting details were on map L101 in the Council agenda packet.  Covey Pardee would install a 30-inch rail fence from the Information Kiosk towards the upper crosswalk to protect plants from further pedestrian trampling.
 
Councilor Rosenthal/Seffinger m/s to postpone agenda the agenda item to August 18, 2015 meeting.  DISCUSSION:  Councilor Rosenthal thought tree removal and improvements to the Plaza were sensitive subjects in the community.  He wanted more time for Council and the public to review the projects.  Councilor Seffinger wanted a field trip to the project area to understand the improvements better.  Councilor Marsh would support the motion and commented on the difficulty she had reviewing the plans in the format sent to Council.  Roll Call Vote:  Councilor Voisin, Marsh, Rosenthal, Morris, and Seffinger, YES.  Motion passed.
 
City Administrator Dave Kanner would ensure Council received hard copies of the landscape maps and had the opportunity for field trips to the project sites.
 
ORDINANCES, RESOLUTIONS AND CONTRACTS
1.   Second reading of an ordinance titled, “An ordinance modifying the Verde Village Subdivision Development Agreement to allow partitioning of the property consistent with the approved phasing plan; adjusting the property lines for lots #3 - #9 and #15 - #17; modifying the approval with regard to the timing of the installation of landscaping, irrigation and open space improvements in Phase I; and modifying Exhibit E of the approved Development Agreement with amended language to condition #30 relating to the construction and timing of street improvements for Perozzi Street and Almeda Drive, and the addition of two new conditions”
Mayor Stromberg and Council declared no site visits or Exparte occurred since the first reading of the ordinance.
 
Councilor Marsh/Morris m/s to approve second reading and adopt the ordinance titled, “An Ordinance Modifying the Verde Village Subdivision Development Agreement,” with the two additional conditions recommended by the Planning Commission and authorize the Mayor to sign the Fifth Amendment to the Verde Village Development Agreement.  DISCUSSION:  Councilor Marsh noted they were non-substantive modifications.  Roll Call Vote:  Councilor Rosenthal, Morris, Seffinger, Voisin, and Marsh, YES.  Motion passed.
 
Councilor Morris/Seffinger m/s to adopt the findings for Planning Action #2015-00825. 
Roll Call Vote:  Councilor Seffinger, Morris, Marsh, Voisin, and Rosenthal, YES.  Motion passed.
 
OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS 

1.  Rail Road Property Vault Removal Issues

 
Public Testimony
David Young 747 Oak Street/Documentation from the past regarding an agreement with CH2MHill on behalf of Union Pacific Railroad (Union Pacific) indicated there was a clear sense the City supported a 20-acre cleanup using a rail spur and rail cars. The 2-acre excavation project would disrupt the neighborhood.  The project would not render the property developable and seemed ill advised to cleanup two acres out of 20 when the entire site needed remediation.
 
Cathy Shaw/886 Oak Street/If shipping the soil out by rail forced the railroad to abandon moving coal that was a win she supported.  The contaminated soil would transfer from trucks to rail and then most likely would go to Utah.  She thought the City would be doing Union Pacific a favor by having them build a spur line and remove the soil by rail.  Once they started doing cleanup by truck, they would continue section by section using trucks.  Council should encourage them to do it responsibly.  The Department of Environmental Quality (DEQ) was clear that if it stayed where it was there were no health risks to anyone.  The health risk would begin when they dug up the vault and soil.  Overall, it was important to realize the project added to carbon emissions.
 
City Administrator Dave Kanner did not think the City had a legal right to compel Union Pacific to use rail. That was why the 2006 action was writing a letter to DEQ expressing the City’s preference for rail.  DEQ may have the ability to dictate that Union Pacific use rail but the City did not.  State law was clear that cities could not adopt regulations or rules of any kind that dictate to railroads how they use or operate the rails. 
 
City Attorney Dave Lohman addressed issuing or denying the permit.  The City could do things to make it unpalatable and demand Union Pacific put up a significant amount of security for repairing the road.  If the City showed great hesitancy, Union Pacific could walk away and come back in the future.
 
Mayor Stromberg suggested writing a letter explaining the City had a previous plan they considered environmentally superior.  Public Works Director Mike Faught explained they had already completed deflection and core testing on Oak Street.  If approved, staff will measure the road before and after to determine damage and Union Pacific would restore the road to what it was prior to cleanup.  Mr. Kanner added Union Pacific had issued a bond of surety to guarantee the money would be available for the road repair.  The City could not deny an excavation permit on political grounds.  There were other criteria in the municipal code that related to track out, land clearing, dust suppression, noise, and erosion control the City could enforce.  It came back to an issue of fairness.
 
Mr. Lohman added it was difficult for DEQ to get any cleanup activity from the railroad and they were most likely encouraged that Union Pacific offered to clean up this portion of the property.  He was concerned with the City becoming a barrier between DEQ and Union Pacific.  Under current DEQ rules, Union Pacific did not have to do anything and doubted a DEQ representative would come to a Council meeting to explain that. 
 
Councilor Voisin wanted Union Pacific to clean the entire site and not do it piecemeal.  It needed to go out by rail.  It was too much on the community to use trucks.  Councilor Seffinger thought it was important to take a stand whether or not the City had power and support the community. It was a bad precedent to set and preferred writing a letter explaining why the community felt the environmental impact was so egregious.
 
Councilor Rosenthal did not think there was a great benefit to the community to do small mitigation.  It would be nice to request them do all or use rail.  The City did not have a lot of say.  If the City said no thank you, they would have to explain to community why it was not interested in the cleanup.  The ideal was having the property be usable but the City did not own it.
 
Councilor Voisin wanted the Council to approve the Remedial Action Work Plan and request the Mayor write a letter to DEQ highlighting the reasons the City wanted the cleanup done on rail.  Councilor Marsh wanted Union Pacific to use rail for the and forward remediation plans for the entire site. 
 
Councilor Voisin/Marsh m/s request the Mayor write a letter to DEQ and cc it to Union Pacific and capture the main ideas of what Council was talking about.   DISCUSSION:  
 
Councilor Seffinger/Voisin m/s to amend the motion and state ecological reasons the City would request the alternate.  DISCUSSION:  Mr. Kanner thought it would be helpful if Council articulated the main ideas for the letter.  Staff had not studied the ecological impacts.  They could copy the 2006 letter or undertake some research to determine what the ecological impacts were.  Alternately, the Mayor could draft a letter and sign it.  Councilor Voisin suggested Council send their ideas to the Mayor and the City Administrator. 
 
Mr. Lohman suggested Councilor Seffinger withdraw her motion with the understanding the global motion actually covered the amendment and the Mayor and Mr. Kanner would address environmental impacts in the letter.  Councilor Seffinger withdrew the amendment. 
 
Councilor Morris thought it was too global and Council needed to pick the points.  The City had asked for a full site cleanup plan.  If Union Pacific only cleaned up the two acres it was still of no value to the City.  The rest of the site needs to be cleaned up or it cannot be used at all.  Community Development Director Bill Molnar noted when the Planning Commission approved the first phase of 7-acres, they conditioned it that no future development of remaining the 20 acres or partitioning could occur until the entire site was cleaned up to residential standards.  Mr. Kanner added Union Pacific could also obtain a letter of no further action from DEQ simply by cleaning up the four hot spots and not the entire site.
 
Councilor Voisin raised a point of order.  There were two minutes left to the meeting and a motion on the floor.  Mayor Stromberg would draft a letter with Mr. Kanner and circulate it to Council for input.  The Mayor would make the final call regarding content.  Roll Call Vote on main motion:  Councilor Voisin, Seffinger, Rosenthal, and Marsh, YES; Councilor Morris, No.  Motion passed 4-1.
 
Councilor Marsh received an email from the parent of one the scouts thanking the Mayor and Council for including the Boy Scout Troop in the pledge of allegiance at the start of the meeting.
                                                                                                             
ADJOURNMENT OF BUSINESS MEETING
Meeting adjourned at 10:30 p.m.
 
 
 
________________________________                    _____________________________
Dana Smith, Assistant to the City Recorder                 John Stromberg, Mayor