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Earth Tech manager seeks city hearing

Thursday, November 17, 2005 by

Bill Moriarty, who has headed Earth Tech’s handling of the Austin Clean Water Program (ACWP), has formally requested that the city hold a hearing on whether he should be terminated from his position. Attorney Michael Burnett is asking the city to provide a hearing “before an impartial third-party selected by the Council.”

The city has accused Moriarity, program manager for the $200 million ACWP, of a conflict of interest related to his girlfriend’s work on the project, but he has been exonerated of any criminal wrongdoing.

According to a letter from Moriarty’s attorney, “by the City Manager’s order, Moriarty’s work on the ACWP will terminate this week. Thus, time is of the essence.” The letter, addressed to City Attorney David Smith, was sent Wednesday. In addition to the request, the letter points to a number of discrepancies between the city’s version of events and Moriarty’s and expresses shock that a confidential memo from Smith to Council members was leaked to the press.

One inaccuracy cited by Burnett relates to whether an employee of Moriarty’s girlfriend’s company was at the same time an employee of Earth Tech. “This assertion is completely wrong,” writes Burnett. Several other complaints revolve around whether Moriarty was dating the woman, Diane Hyatt, before she received a city contract and Moriarty’s role—or lack thereof—in awarding that contract.

The city also complained about Moriarty’s communication and management style, which apparently came as a surprise to the veteran sewer manager. It seems unlikely that the City Attorney’s Office will take the swift action requested by Moriarty and there seems to be little precedent for such a hearing. However, the letter would perhaps help Moriarty set the stage for a lawsuit against either Earth Tech, the city, or both.

LCRA OKs water line contract

Environmental groups blast LCRA, contractor

The LCRA Board of Directors on Wednesday approved a $1.5 million dollar contract with Key Enterprises for work on the new Hamilton Pool Road water line, but not without some final objections from the groups which have been opposed to the project since it was first made public more than a year ago.

Representatives of the SOS Alliance and the Hill Country Alliance reiterated their concerns about the possibility that the project could spur new development, leading to environmental damage, and voiced new complaints about the financial aspects of the water pipeline.

Hamilton Pool Road Scenic Corridor Coalition President Gene Lowenthal, a staunch critic of the water pipeline, accused the LCRA of putting its own financial interests ahead of concern for the environment of southwest Travis County.

“The water utility is really financially underperforming, impressively. The cash generated by the business is not nearly enough to cover the debt service. If the LCRA water utility were a freestanding private business, it would be forced into bankruptcy by its creditors,” he said. Lowenthal said the only way the water utility could become self-sustaining would be by generating new, high-profit customers in southwest Travis County. “You are dangerously speculating on a theory that there will be phenomenal growth in the Hill Country,” he concluded.

Other opponents criticized the winner of the contract. Colin Clark with the SOS Alliance noted that the company was owned by Ted Stewart, a co-founder of the Texas Landowners Conservancy “I find it ironic that a proponent of property rights is planning on using LCRA’s power of eminent domain to lay pipe through other property owners’ land,” Clark said, “and in doing so take a pipeline closer to his own property, therefore increasing the value of his land. If that’s not a direct conflict of interest, it sure is stinky.” ( http://www.texaslandownersconservancy.org/1/Home.html).

Stewart told the board that while he did own property in the region, there was no conflict. “The value of my property is based on the springs, the groundwaters that flow through it and protection of those waters,” he said. “To continue the policy of drilling wells, putting in septic systems, having low density development…creating urban sprawl, which is the buzzword that the environmentalists seem to be most opposed to, is a mistake. I think this water line will protect some of those springs out there for posterity.”

He also reminded the board that his company, Key Enterprises, has been in business for 40 years and has an extensive track record of water projects. “We got the contract because I was the low bidder,” he said, “which fits into the economic scale of the way things work in our society and the low bidder gets the job.”

Industry opposes coal-tar ban

The City Council can expect strong opposition from the industry when it takes up a mandatory coal-tar sealant ban recommended by the city’s Water Protection and Development Review (WPDR) staff tonight.

Council Member Lee Leffingwell, former chair of the Environmental Board, recommended turning the city’s voluntary ban ofncoal-tar sealants into a permanent one in October. The recommended ban resulted from stories in the media in 2003 about possible point-source pollution affecting Barton Springs.

Two years later, after extensive study, the city is ready to recommend the one step that could make the biggest dent in the pollution problem, WPDR Assistant Director Nancy McClintock told the Planning Commission when the proposed ban recently was presented to them.

“We have an unprecedented opportunity to eliminate pollution with a single action,” McClintock told the commission after a lengthy presentation on the issue.

To ban coal-tar sealants – in essence, to move the city to the use of asphalt-based sealants on all parking lot surfaces – would be an expensive measure for business. The industry argues that asphalt degrades quicker and thus costs more than coal-tar sealants, the main reason why about 90 percent of the market belongs to coal-tar sealant mixes. The city argues coal-tar based sealant, which produces toxins known as polycyclic aromatic hydrocarbons or PAHs, is substantially more toxic than asphalt sealant and clearly a threat to the aquatic life in Barton Springs, according to both local and federal research.

More than a dozen members of the industry – producers and distributors, as well as a toxicologist who has worked with the Pavement Coatings Technology Center of the University of Nevada – urged the Planning Commission to delay any decision on the sealant issue.

Toxicologist Bob Demont cited vehicle miles driven as the biggest culprit in water pollution, not coal-tar sealants, and criticized the city’s methodology in its study of the issue, saying that it had used excessive concentration levels in its experiments of the coal-tar sealant’s impact on the aquatic community.

The industry’s own study of coal-tar sealants could take up to two months. That was too long for Planning Commission members, who considered the evidence presented by McClintock and her staff to be compelling. Commissioner Matt Moore, the single member who voted against the motion, did not question the data but was concerned about the logical impact a ban would place upon the city.

In addition to the ban, the Planning Commission also agreed to a recommendation by city staff to use 16 acres of parkland in Zilker Park off Barton Hills Drive to create a water-quality pond, at a cost of $660,000. The motion for the pond was on a prior Council agenda but it was pulled because such a decision requires an amendment to the SOS ordinance and a Planning Commission recommendation. Barton Hills is one of three “hot spots” for pollution that the city is targeting; the other two are Spyglass and Waterfall Grottos.

Mike Kelly of Watershed Protection said the Barton Hills pollution “hot spot” was the city’s top priority. The pond, located in the C ritical Water Quality Zone, is intended to trap pollutants draining off the parking lot at the Park Plaza Apartments into the Barton Hills tributary into Barton Springs Pool. Kelly admitted the use of parkland for the project was not ideal but it was one of the few feasible locations for the pond.

The water quality pond would remove contamination flowing into the Barton Hills tributary, allow treatment of the parking lot runoff and restore an eroded tributary. The project will be paid for out of the drainage utility funds.

Bill Bunch of the Save Our Springs Alliance said he opposed the water quality pond with some regrets. While he noted the importance of the PAH pollution issue, he questioned whether the pond was the wisest use of limited water quality protection dollars. A cheaper, and possibly more expeditious move, would be to instruct the owner of the Park Plaza Apartments to re-seal the parking lot with a safer sealant mixture.

Bunch’s argument, however, did not sway commissioners. The Planning Commission joined the Parks and Recreation Board, as well as the Environmental Board, in its endorsement of the water-quality pond to address the PAH runoff issue.

©2005 In Fact News, Inc. All rights reserved.

Locker room messages . . . Like the captains of two football teams getting ready for the big game, Austin Police Association President and City Manager Toby Futrell had some choice words for one another in Wednesday’s In Fact Daily. (See In Fact Daily, Nov. 16, 2005.) Sheffield called last night to make sure he got the last word in on the electronic bulletin board after Futrell said she could tell it was campaign season. His said, "Message to City Manager Toby Futrell: My opponent dropped out last week." Lt. Kim Nobles had been vying for the top APA spot against Sheffield, but now he is unopposed. The APA election is December 7-9, although Futrell may have been referring to next spring’s Council elections . . . Keeping Downtown Downtown . . . Spring opponents have been generating a wave of emails to Council offices. Many of those are no doubt coming from the Austin Neighborhoods Council web site, since it has a handy link for such messaging. Those in opposition can be expected to show up in force this afternoon for the 4pm (or later) hearing. Among the reasons ANC lists for voting against the DMU-CURE zoning is that it would be "wrong to encourage downtown sprawl." Certainly the phrase begs explanation, or perhaps just snickers. At the same time, a number of environmental leaders, including Robin Rather, Brigid Shea, Dick Kallerman, Bill Bunch and George Cofer have urged the Council to grant the full requested height—400 feet. Their Number 1 reason? Such a building would "redirect growth downtown and reduce pressure for (residential) sprawl over the Barton Springs Zone and other environmentally sensitive areas of our region." Council watchers expect the case to win passage today, perhaps on all three readings . . . Death by zoning . . . If you are planning to sit in on any of the Council’s deliberations on zoning cases today, wear comfy shoes, pack a lunch and bring a sleeping bag—you’re likely to be there a while. With no meeting last week or next week, several major zoning cases have been shoehorned onto today’s agenda. Among them: Spring Condos; the Bouldin Meadows subdivision; the CTVS office tower; and the Rutherford Lane car wash. All those cases are likely to have numerous speakers for and against. Other notable (and time-consuming) items on today’s agenda include consideration of an ordinance banning coal-tar sealants; a public hearing on the city’s proposed changes to the public order ordinances; a public hearing on a somewhat controversial water quality pond in Zilker Park and the consideration of amendments to the Design Standards policy. Also, expect an extended executive session due to discussions of the proposed amendments to the city's panhandling ordinances and issues concerning the Chapter 245 grandfathering process on developments subject to the SOS ordinance, a.k.a. the planned AMD office complex. And if that isn’t enough, the Mayor plans to declare today Spaghetti Warehouse Day. (Do they deliver?) . . . Issues and Eggs . . . Join the Downtown Austin Alliance and Anne Elizabeth Wynn to find out what's in store for the First Night Austin New Year¹s Eve Celebration at 8am today in room 111 of the Southwest Tower Building, 211 E. 7th Street. . . . Wilco gets on board . . . Williamson County has joined the Austin – San Antonio Intermunicipal Commuter Rail District (ASA Rail) and commissioners have appointed Pct. 1 Commissioner Lisa Birkman to the board of directors of the district. ASA Rail has adopted a route called the Locally Preferred Alternative (LPA), comprised of 110 miles between Georgetown and south San Antonio with 15 initial stations, including three Wilco stations at Georgetown, Round Rock and McNeil. The LPA route will use the abandoned MoKan right-of-way from Georgetown to Round Rock and the Union Pacific line from Round Rock to Kelly USA in south San Antonio. The county paid $49,500 to join the organization using surplus road district funds . . . District 48 race heats up . . . A candidate in the District 48 House race, Democrat Andy Brown, want to make ethics reform a major issue in the election to replace the recently retired Todd Baxter – whenever it is held. Brown issued a statement yesterday criticizing Baxter for using the state’s "revolving door" policy to walk out of the Legislature into a "six-figure lobby contract." (See In Fact Daily, Nov 16. 2005) Brown said the state should adopt legislation similar to the federal law which prohibits lawmakers and senior officials from lobbying for one year after leaving office. He also challenges Republican candidate Ben Bentzin – whom he called "Baxter’s hand picked stand-in" – to join him in calling for ethics reform during the campaign. The Governor has yet to say when he will call an election to replace Baxter.

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