1994-01-20 Continued Meeting
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
CONTINUED MEETING, JANUARY 20, 1994
BOOK 23
PAGE 914
ASSEMBLY
The New Hanover County Board of Commissioners met in a
continued meeting of January 18, 1994, on Thursday, January 20,
1994, at 8:45 A.M. in Room 501 of the New Hanover County
Administration Building, 320 Chestnut Street, Wilmington, North
Carolina.
Members present were: Commissioners Sandra Barone; WilliamA.
Caster; William E. Sisson, Jr.; vice-Chairman E. L. Mathews, Jr.;
Chairman Robert G. Greer; County Manager, Allen 0' Neal; County
Attorney, Wanda M. Copley; and Clerk to the Board, Lucie F.
Harrell.
Chairman Greer called the continued meeting to order for the
purpose of discussing the Airport Burn pit Superfund Site.
County Attorney Copley expressed appreciation to the City
Attorney, Thomas C. Pollard, for being willing to attend the
meeting and discuss the recommendations adopted by the Wilmington
City Council.
DISCUSSION OF RECOMMENDATIONS ADOPTED BY THE WILMINGTON CITY
COUNCIL
City Attorney Pollard presented an outline of the advantages
and disadvantages to the local Participating Responsible Parties
(PRP's) by entering into the Consent Decree; performing remedial
design/remedial action pursuant to the unilateral Administrative
Order; or refusing to respond to the unilateral Administrative
Order. After discussion with an EPA Attorney on the City Council's
action to allow the unilateral Administrative Order to be issued,
he was informed that no decision has been made by the EPA to issue
the unilateral Administrative Order; however, it is felt the order
will be issued. One risk involved with allowing the EPA to issue
the unilateral Administrative Order, is that EPA may decide not to
issue the order and perform the work themselves, after which, they
will file a cost recovery action.
Discussion was held on the Consent Decree. If the Consent
Decree is signed, the City and County will have to agree to pay
future response costs, which are oversight costs. A Third Circuit
Court of Appeals recently held that EPA could not recover pure
oversight costs. The case is now on appeal. Also the PRP's would
agree to pay past response costs and future response costs. Due to
the difficulty in estimating future response costs, the figure of
$440,000 is projected, which is a rough estimate based upon
negotiations for a limitation on response costs in any given year.
For budgetary reasons, the local governments need to know the
annual cost per year. A cap of $20,000 to $40,000 was requested in
any given year; however, EPA denied this request and established a
$75,000 cap in any given year. This figure is included in the
revised Consent Decree. Also, the PRP's would have to waive any
claims against Superfund, which would be after performance of the
work. Under the Unilateral Administrative Order, the County would
not waive any claims against Superfund.
Discussion was held on determining the liability and the
number of persons using the site. Commissioner Sisson commented on
duty orders kept by the Air Force and recommended these records be
checked to see that all parties involved are included and charged
their fair share.
City Attorney Pollard recommended following through with a PRP
search and filing a freedom of information statement with EPA to be
sure that all parties who used the site are involved. As to the
Corps of Engineers, they have taken the position that it cannot be
a party to the Consent Decree and cannot agree to a cost
participation agreement that would subject the Corps to reopeners.
The Corps will agree to a lump sum payment which will allow for a
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
CONTINUED MEETING, JANUARY 20, 1994
BOOK 23
PAGE 915
substantial portion of the initial work to be paid with no
contribution by local government PRP's.
Chairman Greer inquired as to what will happen if the
unilateral Administrative Order lS issued and the County refuses to
perform the remedy recommended?
City Attorney Pollard reported specific language was proposed
as a modification to the Consent Decree to clarify the PRP' s
abili ty to perform the monitoring for the first year. The EPA
rejected the request for an additional year of monitoring. There
is a potential for a $25,000 per day penalty if the PRP's do not
comply to the unilateral Administrative Order.
Attorney Thomas C. Goolsby reported under Superfund it is not
a question of liability, but a question of damages. He concurred
with the City Attorney and stated the Consent Decree should not be
signed, but the PRP's will have to make a good faith effort to
clean up the site. The EPA will most likely hand down a unilateral
Administrative Order; however, if the unilateral Administrative
Order does not list the Corps of Engineers, the PRP's should appear
in Federal Court before a Federal Judge to see they are adjoined to
this effort. Substantial compliance and trying to make an effort
to clean up the site is the only way to minimize the cost to the
City and County as well as other parties involved.
City Attorney Pollard commented on the need to be prepared to
pay EPA's past response costs upon demand in the amount of $727,000
and recommended complying with this payment.
Chairman Greer recommended not signing the Consent Decree and
stated he is opposed to any further action since the contamination
has been cleaned up. The Consent Decree and unilateral
Administrative Order are not sensible, and he is not in favor of
hiring a consultant. He would like to send a letter to EPA and the
President of United States clearly stating the County does not feel
anything should be done and that the County is willing to pay for
past response costs. In his opinion, to do anything else is not
right.
vice-Chairman Mathews agreed, but stated there is no other
option and the County could be penalized $25,000 per day with EPA
performing the work at treble cost.
County Attorney Copley recommended adoption of the
recommendations approved by the Wilmington City Council.
Chairman Greer requested that each recommendation be voted
upon separately.
Motion: Commissioner Caster MOVED, SECONDED by Commissioner Barone
to advise the EPA that the County will not sign the Consent Decree.
Upon vote, the MOTION CARRIED UNANIMOUSLY.
Assistant County Manager, Dave Weaver, recommended stipulating
that the County is willing to do the work pursuant to the
Unilateral Administrative Order.
Attorney Thomas C. Goolsby recommended substantial compliance
with the Unilateral Administrative Order.
Amended Motion: Commissioner Barone MOVED, SECONDED by
Commissioner Sisson to advise the EPA that the County will not sign
the Consent Decree, but the County is prepared to provide
substantial compliance with the Unilateral Administrative Order.
Upon vote, the MOTION CARRIED AS FOLLOWS:
Voting Aye: Commissioner Barone
Commissioner Sisson
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
CONTINUED MEETING, JANUARY 20, 1994
BOOK 23
PAGE 916
vice-Chairman Mathews
Voting Nay: Commissioner Caster
Chairman Greer
Motion: Vice-Chairman Mathews MOVED, SECONDED by Commissioner
Sisson to be prepared to hire a consultant for the remedial
design/remedial action in accordance with the time frame set forth
in the unilateral Administrative Order. Upon vote, the MOTION
CARRIED AS FOLLOWS:
Voting Aye: Commissioner Barone
Commissioner Caster
Commissioner Sisson
Vice-Chairman Mathews
Voting Nay: Chairman Greer
Motion: Vice-Chairman Mathews MOVED, SECONDED by Commissioner
Sisson to enter into an agreement with the Corps of Engineers for
funding the first year of the remedial design/remedial action with
full reservation of rights. Upon vote, the MOTION CARRIED AS
FOLLOWS:
Voting Aye: Commissioner Barone
Commissioner Sisson
Vice-Chairman Mathews
Voting Nay: Commissioner Caster
Chairman Greer
Chairman Greer reported, for the record, he is voting against
this action because he feels the Board is cutting out a separate
niche for the Corps of Engineers.
Motion: Commissioner Barone MOVED, SECONDED by Commissioner Sisson
to be prepared to pay EPA's past response costs in the amount of
$727,000 upon demand. Upon vote, the MOTION CARRIED AS FOLLOWS:
Voting Aye: Commissioner Barone
Commissioner Caster
Commissioner Sisson
Vice-Chairman Mathews
Voting Nay: Chairman Greer
Motion: Commissioner Sisson MOVED,
to authorize the County Attorney to
to join the Department of Defense,
other PRP's in this remedial action.
UNANIMOUSLY.
SECONDED by Commissioner Caster
take the legal action necessary
or its representative, to the
Upon vote, the MOTION CARRIED
Motion: Chairman Greer MOVED, SECONDED by Commissioner Sisson to
authorize the County Attorney to take the necessary action to join
the State in the remedial action for Cape Fear Community College.
Upon vote, the MOTION CARRIED UNANIMOUSLY.
JOINT MEETING SCHEDULED WITH WILMINGTON CITY COUNCIL ON FEBRUARY 1,
1994, TO DISCUSS THE AIRPORT BURN PIT SUPERFUND SITE
Consensus: It was the consensus of the Board to meet with the
Wilmington City Council at 5:30 P.M. on Tuesday, February 1, 1994,
to discuss the selection of a consultant to perform the work.
APPOINTMENT OF MIKE MILLIKEN TO SERVE AN INTERIM PERIOD ON THE
BOARD OF FIRE COMMISSIONERS
Commissioner Sisson reported a member of the Board of Fire
Commissioners, Gregory Buckner, has received a work promotion and
can no longer serve on the board. This resignation will create a
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
CONTINUED MEETING, JANUARY 20, 1994
BOOK 23
PAGE 917
vacant position at the beginning of the budget process, and the
Board of Fire Commissioners would like to amend the By-Laws to
recommend a temporary appointment to fill a vacancy that occurs at
the beginning or during the budget process or in the middle of any
event, such as the North Wilmington situation. The temporary
appointee would be a person knowledgeable of the duties and
responsibilities of the Volunteer Fire Departments and would serve
until the budgetary process is completed. The Board of County
Commissioners would then appoint a person to permanently fill the
vacancy.
Commissioner Barone recommended making a temporary appointment
for one time instead of amending the By-Laws and inquired as to
whether anyone has been recommended and have the By-Laws been
amended?
Commissioner Sisson reported the By-Laws are being reviewed by
a committee at this time and the proposed changes will be presented
to the Board of Commissioners at a later date. At the current
time, Mike Milliken, Chief of the Seagate Volunteer Fire
Department, has volunteered to serve for an interim period of time.
Consensus: After discussion of allowing time for the Clerk to
advertise the position and the need to review any changes in the
By-Laws, Commissioner Barone MOVED, SECONDED by Commissioner Caster
to appoint Mr. Mike Milliken, Chief of the Seagate Volunteer Fire
Department, to serve as the temporary appointee during this interim
period. The Clerk was directed to advertise the position and fill
the vacancy as outlined in the Committee Policy. The floor was
opened for discussion.
Chairman Greer expressed concern for not following the
Committee Appointment Policy and inquired as to whether the other
members of the Board of Fire Commissioners are satisfied with this
appointment?
Commissioner Sisson reported the Board of Fire Commissioners
voted unanimously to recommend the appointment of Mike Milliken.
In his opinion, the temporary appointment will not be a problem and
the Fire Commission is aware of how the appointment will be filled
permanently under the County's Committee Appointment Policy.
Upon vote, the MOTION CARRIED AS FOLLOWS:
Voting Aye: Commissioner Barone
Commissioner Caster
Commissioner Sisson
Vice-Chairman Mathews
Voting Nay: Chairman Greer
ADJOURNMENT
Motion: Commissioner Barone MOVED, SECONDED by Commissioner Caster
to adjourn the continued meeting. Upon vote, the MOTION CARRIED
UNANIMOUSLY.
Chairman Greer adjourned the meeting at 10:25 A.M.
Respectfully submitted,
Lucie F. Harrell
Clerk to the Board