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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