RSA Pavilion – Dirt Problems

Evil Dirt Once Again

Toxic Cleanup ClippingJust when we had almost completed out drawings for the park, the specter of the toxic plume arose again.  You must remember that this abomination from below had previously cropped up under the Tower’s chiller plant, and the chiller building occupied the west end of this same funny C-shaped property.  In fact, it had been determined that the plume of poison dirt was traveling west and only its nose had been encountered by the Sonny Wadsworth forces.  That meant that the main body of the stuff was under the park site.

Knowing that the park structures were to have very shallow foundations, we had pressed into the design with a “let sleeping dogs lie” attitude.  Then there was that day of July 25, 1997, when I passed by Marc Reynolds’ office.  Marc occupied the office space closest to David Bronner.  He was a lawyer by education, but normally functioned as special assistant to the CEO and as lobbyist for the Retirement Systems.  He did not serve as general counsel, as that was Bill Stephens’ position.

Marc called me in and asked for my assistance on this problem he had.  RSA Deputy Director Bill Walsh joined us.  It seemed that subsequent to our encounter at the chiller site, the Alabama Department of Environmental Management (ADEM) had continued to drill wells all over the north side of downtown, and had found much more evidence of tetrachloroethylene.  According to ADEM, several pockets of the T-stuff were drifting toward the Alabama River and four city water wells.  ADEM was predicting better than 50/50 odds that downtown would be declared a Superfund Site.  With upwards of $200 million invested downtown, RSA considered this a potentially serious matter.

Marc reported that ADEM was making threats against all of the downtown deep pockets, including the RSA, the City and the Water Works.  ADEM was insisting that all the involved entities ante up millions to solve the problem before the federal government came in and declared the area an environmental Superfund disaster.  According to Marc and Walsh, the U.S. Congress had recently enacted an environmental law even more dangerous than the Superfund Act.  It was called the Well-head Protection Act, and enabled the government to turn on virtually anybody.

Marc indicated that Dr. Bronner had assigned this problem to him, and that he, Marc, was not at all sure as to how he should approach the matter.  He could not recommend that the RSA voluntarily contribute millions to solve a problem not of its making.  On the other hand, if RSA did not do so, it could easily be assessed a much greater sum by the EPA under its broad authority to assign responsibility.  Remembering that Dr. Bronner had involved yours truly in the earlier round at the chiller site, Marc was asking for PH&J’s help in establishing a new RSA position regarding the matter.


The Dirt Team

I quickly cautioned Marc and Walsh that this problem was well beyond my level of expertise and told the pair that we should immediately assemble a team of experts to advise them regarding RSA’s legal exposure and options.  I continued, “You need a big-time attorney who specializes in environmental law, a scientist type who understands this particular contamination, and an hydrologist who can predict the flow of the water-bearing sand strata underlying the RSA property.”

Marc and Walsh were rather desperate, and indicated that I should proceed quickly to locate and assemble such a team.

After a month of telephone queries to all manner of sources, I nominated three men who had great credentials in the three separate fields.  As team leader, I proposed James S. Stokes of the Atlanta law firm of Alston & Bird.  As you might guess, Atlanta is a hotbed of environmental litigation and regulation, and Alston & Bird is in the thick of it.  To be our environmental scientist, I chose a John Nemeth of the Georgia Tech Research Institute.  To give my team the correct political touch, my suggestion for hydrologist was Ming Kuo Lee of the Auburn University Department of Geology.

I made my report to Reynolds and Walsh on August 28th and suggested that we invite the team to come to Montgomery to discuss the matter with RSA officials, to propose a course of action, and to speak on RSA’s behalf to ADEM and EPA.  I went on to admit once again that PH&J could bring little more to the table, if and after the team was accepted, and to reiterate that we would step aside pending any further need that RSA might have in a realm where we could assist.

The team’s introductory meeting was arranged for September 9th, and as the date approached, I began to worry about the reaction to all this by Bill Stephens, the RSA’s general counsel.  Surely, I thought, Marc and Bill Walsh had kept him informed as to what was transpiring.  After all, I reasoned, his office was situated between their two offices on the fifth floor.  And yet…..I knew deep down that Stephens would never have stood for yours truly selecting an attorney to represent RSA without his personal input.  In fact, he would be outraged at the slight.

In a panic, I called Stephens  two days before the scheduled meeting with Jim Stokes and acted like Stephens knew all about our scheme.  He did not know.  He remained calm but I could tell he was boiling inside, as I explained what I had been doing and why.  The next day I received a three-page fax from him which carried the resume of several Alabama lawyers whom he recommended to represent the Retirement Systems.  As I had feared, Stokes was not acceptable because he, Stephens, had not chosen him.  I was forced to tell Stephens that it was too late, and that Stokes was scheduled to appear on the fifth floor the very next day.  I did manage to shortstop Nemeth and Lee in the face of Stephens’ objections.

On the meeting day, Jim Stokes of Alston & Bird appeared and was so personable and knowledgeable that Marc Reynolds and Bill Walsh were delighted.  Their elation further enraged Stephens, who made a cursory appearance at the meeting and left.  Reynolds and Walsh were sorely relieved to have someone with Stokes’ credentials available, and they hired him forthwith.

Among the suggestions, Stokes proposed that we find out where the stuff was really coming from, probably a long-closed gasoline station.  He offered the hope that RSA could deflect all of the liability to some Standard Oil type company.  In the meantime, PH&J had voluntarily ceased all work on the park.  How could we proceed with yet another project on top of this potential bombshell?


The Evil Dirt Summit

Two and a half months later, November 24th it was, Jim Stokes returned to Montgomery to chair a strategy meeting of the principal afflicted parties (i.e., the City, the Water Works and the RSA).  By then Dr. Bronner had transferred responsibility from Marc Reynolds to General Counsel Bill Stephens, who could not avoid attending this time.  He, Stokes and I represented RSA.  Buddy Morgan, General Manager of the Water Works and two scientists from CHM2 and Hill represented the Water and Sewer Board.  City Attorney George Azar, along with an engineer from Birmingham, represented the City of Montgomery. It was a grand summit meeting of the likely victims.

Everyone present agreed that the impending intrusion of the toxic flume into the City’s  water well zone was likely to precipitate an unhappy resolution, and the intrusion was expected within two years.  The Water Works contingent noted that moving their well field would cost $20 Million, and that they could muster only $4 Million.  They suggested that “someone should come up the additional $16 Million”.  “Not the City!” chanted Attorney Azar.  “Not the RSA!” intoned Attorney Stephens.

All possible courses of action were discussed–moving all of the wells, moving some of the wells, remediation of the contamination, treatment at the well head and so on.  No conclusion could be reached in view of the lack of precise information.  Drilling more test wells to sample and track the progress of several flumes seemed to be the obvious answer, but as Atlanta Attorney Jim Stokes observed, they dared not undertake such an extensive investigation because of the terrible things they might find.  Thus, no study was planned and no decision was made.  No decision except for one, that is.  It was agreed by all that the park foundations were to be so shallow that no evil dirt would be encountered, and that the project would not be seen as an affront to EPA or ADEM authorities.

That’s when I bowed out of the evil dirt matter.  Never attended another meeting on the subject.  I’m glad I don’t know anymore about it.  Who knows what evil lurks below our downtown strata, what will befall our water supply, or what eminent legal disaster is about to befall the City?


Evil Dirt Postscript

Richard HananWhen the evil dirt issue reared its head again in the summer of 1997, Charles Paterson was attorney for the Water and Sewer Board.  Since Paterson was also PH&J’s attorney, I  advised RSA’s Reynolds and Walsh that we should have excellent relations with the Water Works over this matter which was so vital to RSA and the Water Board.  With a common attorney, neither one would be likely to stab the other in the back.

But alas, around October the City Council and our esteemed Mayor replaced the sitting chairman of the Water and Sewer Board.  They replaced him with Richard Hanan, the same one who, in alliance with Folsom and Jim White, had almost kept the Mental Health Department out of the RSA Union.

He was also the same Richard Hanan whose term as State Mental Health Commissioner began near the end of a fight that PH&J was having with Mental Health and the State Attorney General’s office in 1993 over new contract terms.  These new terms required that architects  hold all 19,000 State employees harmless in any legal dispute that might arise in connection with our contract.  Hell–it’s mostly State employees who cause the disputes!  Anyway, after months of debate we had almost convinced the Mental Health Commissioner of the moral and legal correctness of our position, when he suddenly resigned.  Governor Folsom appointed Hanan to take his place, and without even considering our arguments, Hanan  ruled against PH&J and we lost the contest.

But back to 1997.  When that sorry Hanan was named Chairman of the Water and Sewer Board, his first official function was to fire its attorney, Charles Paterson.  That’s why the Board had no legal representation at our grand summit meeting of November 24th.  Without the liaison between Paterson and myself, I held little hope that the relationship between RSA and the Water Works would be anything but adversarial.  It already was between RSA and the City.  It was a good time to be excused from the proceedings.


-Charles Humphries (“Peril and Intrigue Within Architecture”)

This is one of many RSA Pavilion Park stories. The rest can be found here.

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