NCD980602163_19830309_Warren County PCB Landfill_SERB C_Re Technical Condition B-4-OCR

RUFUS L. EDMISTEN
ATTORNEY GENERAL
MEMORANDUM
TO:
FROM:
Tom
Tom
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81 1
~hrlr of ~ortq filarolimt
~epartment of ]ustice
P. 0 . BOX 629
RALEIGH
27602-0629
9 March 1983
Kernoski/Gordon
Moffitt ~
Layton
RE: Technical Condition B-4
This memo follows-up my conversations with Tom Kernoski
regarding the document EPA wants the State to file in order
to comply with Technical Condition B-4 of the superfund co-
operative agreement. Attached is the letter I wrote to Bill
Andreed (EPA -Atlanta) asking for guidance on how to comply.
Also attached is h ±s reply. ·
Please advise me if we can meet these requirements now.
If not, advise me when we can. As soon as the State is
capable of meeting the B-4 requirements, I will draft the
necessary legal documents.
/ck
cc: Bill Phillips
NORTH CAROLIN A
UNITED STATES ENVIRONMENT AL PROTECTION AGENC'ATT0RNEY GENERAL'S OFFICE
MAR l 1983
REF: 4RC
REGION IV
34!5 COURTLAND STREET
ATLANTA. GEORGIA 30365
Thomas F. Moffitt
Assistant Attorney General
State of North Carolina
Department of Justice
P. o. Box 629
Raleigh, North Carolina 27602-0629
Re: Warren County Chemical Waste Landfill
Dear Tom:
MAR 3-198.1
ENVIRONMENTAL PROTECTION SECTION
RECEIVED
This letter is in reference to your inquiry regarding Technical
Condition B-4 of the Approval Conditions attached to the June 4,
1979, letter from the Regional Administrator of EPA to Governor
James B. Hunt. This letter contained the approval of the
conceptual design for the Warren County Chemical Waste Landfill
pursuant to the Toxic Substances Control Act {TSCA). This
Technical Condition was incorporated by reference as part of
Award Condition No. 24 to the Superfund Cooperative Agreement,
dated May 25, 1982, between the State of North Carolina and
EPA for the construction of the landfill and the clean
up of the PCB contaminated soil.
The Technical Condition in question provides that:
A record shall be placed on the property deed which
stipulates the particular boundary of the disposal area
and waste contained therein with the associated waste
elevations.
In order to comply with this condition, the State must place
a notation or record on the property deed which (1)
describes the exact boundary of the chemical wast.e landfill
--not the property boundary of the entire site --by metes
and bounds or any other similar legal description for property
normally used in the State of North Carolina, {2) describes
the specific waste contained in the chemical waste landfill,
and (3) gives the elevations in feet above mean sea level for
the waste contained in the landfill. Thus any subsequent
property owner will have notice that the waste is l ocated on
the property and will be able to determine exactly where the
waste is located.
I trust that this additional information will assist you in
drafting the appropriate documents which will comply with
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the Cooperative Agreement and the terms of the landfill's
TSCA approval.
;D~,~.
William L. Andreen
Assistant Regional Counsel
cc: William W. Phillips, Jr.
o. w. Strickland
David T. Buente
RUFUS L. EDMISTEN
ATTORNEY GENERAL
&.tzrfo .of North O!nrolimr ~ I.. I
~cpnrtmrnt of ~Justic_r
P. 0. BOX 629
RALEIGH
27602-0629.
17 February 1983
Mr. William Andreen
Office of General Counsel
U.S. Environmental Protection Agency
345 Courtland Street, NE
Atlanta, Georgia 30308
RE: United States v. Ward, et al. (E.D.N.C.
File No. 83-63-CIV-5)
Dear Bill:
Yesterday, Judge Britt entered a consent order granting the
State of North Carolina's Motion to Intervene in the federal
CERCLA case. As a condition to entry into the federal case, the
State agreed to dismiss its State court action (State of North
Carolina v. Ward, et al, Wake County Superior Court, File No.
81 CVS 4229). This was done after you confirmed in your letter,
dated January 27, 1983, that Special Condition 30 of the Super-
fund Cooperative Agreement would not be violated by the State
taking a voluntary dismissal in the State action.
Enclosed are copies of: (1) Judge Britt's order, (2) the
State's Filing in Compliance with Court Order, (3) the State's
Notice of Dismissal in the State action, and (4) the Wards'
Notice of Dismissal of their counterclaim against the State in
the State action. The State court action is now terminated. Under
our Rules of Civil Procedure, a notice of volunta~y. dismissal does.
not require any judicial order to dismiss a civil. case.
Special Condition 30 of the Cooperative Agreement states that:
"30. After the State's acceptance of CERCLA funding
from EPA for cleanup of the PCB roadside sites,
the State agrees not to settle its claim or claims
with any of the responsible parties in the case
entitled State of North Carolina, et al, v. Ward
et al., currently pending in the General Court of
Justice, Superior Court Division of Wake County,
North Carolina, or in any other case against
any of the responsible parties without the express
written consent and authorization for such settle-
ment from EPA."
Page Two
17 February 1983
The dismissal of the State court action, with EPA's consent, makes
Special Condition 30 unnecessary. The State requests that the
Cooperative Agreement be amended to delete Special Condition 30.
Special Condition 31 of the Cooperative Agreement states that:'
"31. Any recovery achieved by the State pursuant to
settlement, judgment or consent decree in the
above-r eferenced action or any actipn against
any of the responsible parties will be shared
with EPA in proportion to EPA's contribution
to the site cleanup under CERCLA."
Special Condition 31 also appears to no longer be necessary
now that the State and federal government are both parties-plaintiff
in the federal CERCLA action. It was never the intent of the
Cooperative Agreement for the federal government to recoup its ex-
penses paid under the Cooperative Agreement and then collect from
the State 90% of what the State can collect for expenses incurred
by the State which the Cooperative Agreement did not cover. This
could leave the State with 10% of 10% of the recoverv of the cleanuo
costs. The lanouaoe of Soecial Condition 31 could allow such an
anomolous result. Because the federal CERCLA action will permit
both ~he State and federal government to be fully reimbursed for
expenses incurred in cleaning up the PCB roadside spill sites,
Special Condition 31 is no longer necessary. The State requests
that the Cooperative Agreement be amended to delete Special Condi-
tion 31.
Specia~ Condition 33 of the Cooperative Agreement states that:
"33. The State will cooperate with EPA and the
U.S. Department of Justice so that legal
actions against any of the responsible parties
are coordinated in a manner that will result
in the greatest recovery of the costs of the
response measures undertaken by bo'th the State
and EPA."
This provision is sufficient to assure that the State will cooperate
fully with the federal government in order to obtain reimbursement
from Buck Ward and Ward Transformer Co., Inc. for the illegal
dumping of PCB-laden transformer oil along our roadsides.
Finally, I have not received any further information on how
the State is to comply with Technical Condition B-4 of the Coopera-
tive Agreement. After receiving guidance on this requirement, I
will draft the appropriate documents and file them in Warren County.
....• ,,.,~ ., .
Page Three
17 February 1983
It has been a pleasure working with you on this case. If
any questions remain unanswered of if I can provide fur ther in-
formation or assistance, do not hesitate to contact me.
TFM/dw
cc: Andrew A. Vanore, Jr.
William W. Phillips, Jr.
David T. Buente
Jack Cozort
Gwyn P. Newsom
enclosure
Sincerely,
RUFUS L. EDMISTEN
Attorney General
~~~
Assistant Attorney General