By Carla Branch and James Cullum
On Dec. 13, the Alexandria City Council received the independent report on city staff response to the Norfolk-Southern decision to locate an ethanol transloading facility at the Van Dorn yards and have scheduled a closed session to discuss the findings.
Council ordered the review in October and appointed a “committee of inquiry” to oversee the hiring of independent reviewers. Vice Mayor Redella S. “Del” Pepper and Councilman Ludwig Gaines co-chaired that committee. The reviewers, Steven Jansen and David LaBahn, former prosecutors with more than 30 years of legal experience, conducted interviews and reviewed documents regarding staff’s actions and inactions related to the ethanol transloading facility. The cost of the review was $29,500.
On June 20m, 2006, Norfolk-Southern staff met with Alexandria Mayor Bill Euille to discuss a proposal to locate an ethanol transloading facility at the company’s Van Dorn property. “From that point to the time that Council was notified that the facility was open and functioning, there were six different points at which a member of the staff could have and should have notified members of City Council that Norfolk-Southern was moving forward with the facility despite objections from the mayor,” Jansen said at the Dec. 13, Council meeting.
According to the report, Euille referred the matter to the City Manager and indicated that it should be on the agenda for the mayor/manager weekly meetings. In August, 20006, City Attorney Ignacio Pessoa wrote to Norfolk-Southern expressing the City’s objection to the location of an ethanol transloading facility at the Van Dorn location. Norfolk-Southern wrote letters in September, 2006 and November, 2006, indicating that, despite these objections, the company was proceeding with their plans and that construction would begin soon after Thanksgiving and be completed in January, 2007.
“This should have created some urgency due to the pending construction and ethanol transloading activity. Instead, Planning and Zoning continued to wait for Norfolk-Southern’s Special Use Permit request,” Jansen said.
In November, 2007, Norfolk-Southern invited members of the Fire Marshal’s office to the Van Dorn facility to discuss the proposed use. At that time, the Fire Marshal’s office prepared a memo, which was distributed to “fire operations, code enforcement, emergency management, planning and zoning, transportation and environmental services and city manager’s office. Even with this wide distribution, the memo fails to be presented to Council; especially considering it contained an opinion that the City had no code enforcement authority,” the report said.
On Jan. 16, the city manager called a meeting of department heads and other critical staff related to the matter. Prior to this meeting, the city manager’s office directed the fire marshal’s office to cease all contact with Norfolk-Southern. At the Jan. 16, meeting, the manager’s office designated the City’s Attorney’s office and Planning and Zoning as the lead agencies. “During the meeting there was some discussion about drafting a memo to Council and a letter to Norfolk-Southern; however, the city manager’s office directive to the fire department ceasing all communication with Norfolk-Southern was not properly addressed,” the report said.
Until April 4, 2008, the City Attorney maintained the legal opinion that Norfolk-Southern must apply for a Special Use Permit to operate the facility. After reviewing the Surface Transportation Board’s Feb. 1, ruling, he changed his legal opinion, “leaving the city without a pre-emptive legal strike…The changed legal opinion is the fifth failed opportunity to notify Council and the community,” the report said.
Despite the fact that the facility began operating on April 9, that developers of the Victory Center were notified of the facility’s existence on May 3 and two members of Council requesting information on the presence of tankers at the Van Dorn Yard on May 12, it was not until May 15, that a memorandum was prepared notifying Council of the existence of the transloading facility in the City.
“Since the release of information to Council and the community, both City Manager Hartmann and City Attorney Pessoa have acknowledged numerous delays and mistakes in the notice of the planning and opening of the ethanol transloading facility at the Van ?Dorn Yard. This review allowed members of the city staff and the community, some for the first time, to be asked for and provide information. Staff members were given assurances of confidentiality and many willingly discussed their actions and inactions surrounding the issue.
“While the subject of this review is the actions and inactions of city staff, it must be noted that Norfolk-Southern never contacted the mayor again until after the facility was fully operational. Further, Norfolk-Southern was aware that the City had not done a fire marshal or code inspection prior to them beginning the transloading process and failed to conduct any community outreach,” the report said.
The reviewers provided six recommendations to ensure that no such breakdown in communications occurs in the future. Those recommendations are: establish clear guidelines and policies for the documentation and reporting on meetings with businesses or constituents; establish a policy for the handling of special issues or projects that should be assigned to a designated point person or agency; the City Attorney’s Office and the City Manager’s office should develop procedures regarding timely legal opinions or advice to other commissions, committees and departments; the City Manager’s office needs to establish clearer accountability procedures and responsibilities for agency liaisons; the City Manager’s office should review the staffing needs of each agency to adequately address workload needs versus the number of developing crucial issues throughout the city and establish policy and procedures to ensure that the city will take the lead in community outreach and notification of critical information.
“The good news is that the failures are so clear it should be easy to correct them,” said Councilman Tim Lovain. “This is an excellent report and I appreciate the work of the reviewers and of the committee, particularly of Vice Mayor Pepper and Councilman Gaines.”
Councilman Paul Smedberg suggested holding a closed meeting to discuss the matter further. “There is a lot to consider here and I believe we should hold a closed meeting to discuss the personnel issues here,” he said. “I want to take some time to read the report thoroughly and am certain that I will have additional questions for the reviewers.”
Council agreed to hold that closed meeting in early January.