MINUTES (Amended)
(Verified
with meeting transcript)
CENTRAL INTERSTATE LLRW COMMISSION
ANNUAL MEETING
JUNE 8, 2004, TUESDAY, 9:00 A.M.
In compliance with
Commission Bylaws and Rules, a meeting notice announcing the date, time,
location and agenda availability was mailed to the interested public
May 11, 2004.
The Annual Meeting of the
Central Interstate LLRW Commission was held Tuesday, June 8, 2004, to
take necessary action on Reports, Meeting Minutes, US Ecology Funding fiscal
year 2004-2005, Export Applications, Export Fee Schedule (Rule 1 change),
Administrative Budget, Election of Chairman for fiscal year 2004-2005, and all
other business to come before the Commission.
The Chair called the
meeting to order at approximately 9:20 a.m. and roll was called. Responding to the roll call was: Oklahoma Commissioner and Commission Chair,
Catherine Sharp; Arkansas Commissioner, Laura Gilson; Kansas Commissioner,
James J. O’Connell; Louisiana Commissioner, Michael Henry; and Nebraska
Commissioner, Dr. F. Gregory Hayden.
Also present were Kansas
Alternate Commissioner, Ron Hammerschmidt; Administrator,
Rita Houskie; Temporary Secretary, Doris Oleson, the court reporter, and
interested members of the public.
One member of the public
spoke during the general public comment period.
The Commission received
oral reports from the Commission Administrator, Legal Counsel, and US
Ecology. The commissioners were in
agreement to postpone going in to executive session until later in the meeting
for the purpose of a more in depth briefing by counsel.
No reports were heard from
the Village of Butte, the Host State, the Boyd County Local Monitoring
Committee or the Litigation Committee.
Motion (Resolution 1) by Louisiana, second by Arkansas, to approve the January 21, 2004
Mid-Year Meeting and February 17, 2004 Emergency Telephone Meeting
minutes.
Motion
passed 4-0-1 (Nebraska abstaining)
There were no export
applications presented for action.
Motion (Resolution 2) by Louisiana, second by Arkansas, to approve US Ecology Funding Request for
fiscal year 2004-2005.
Motion
passed 5-0
The
Chair asked the administrator to introduce the document associated with the
next agenda item dealing with the Commission’s administrative budget
adjustments. The administrator
explained that no adjustments to fiscal year 2003-2004 were being requested and
reported that the only adjustment would be to increase income due to the receipt
of a seventh major generator’s export fees and accrued interest received that
totaled above the estimated amount on the fiscal year 2003-2004 approved
budget.
The
administrator went on to explain the next budgetary item, fiscal year 2004-2005
administrative budget. The difference
between the two options was explained.
Option 1 represented a decrease in employee hours and legal cost with an
increase to the rent and US Ecology line items. Option 2 considered the same changes as Option 1 with the
addition of a 2% increase to salary and a 1% increase to the benefit to address
the health insurance issue for the commission’s employee.
Motion (Resolution
3) by Kansas, second by Louisiana, to approve Commission Administrative Budget Option 2 for fiscal year
2004-2005.
Motion passed 4-0-1 (Nebraska abstaining)
The Chair introduced the Rule 1 – Export Fee Schedule for
fiscal year 2004-2005 agenda item. The
administrator indicated that the export fee had been calculated with only four
major generators due to the uncertainty of the disposition of the Nebraska
generators for the coming fiscal year.
Discussion among the commissioners continued around Nebraska’s compact
membership, its generators, the upcoming date of July 17th and dates
certain that export fees need to be paid.
Motion (Resolution
4) by Kansas, second by Louisiana, to approve the Rule 1 Export Fee Schedule for fiscal year 2004-2005
pending possible revision based on the number of major generator applications
that are ultimately confirmed.
Motion passed 5-0
The Chair asked for nominations
for Commission Chairman for the coming year.
Motion (Resolution
5) by Louisiana, second by Kansas, to approve the election of the Arkansas Commissioner, Laura Gilson, as
Chairperson of the Commission for FY 2004-2005.
Motion passed 4-0-1 (Arkansas abstaining)
The commissioners set the date for the Mid-Year Meeting of the Commission as
Wednesday, January 12, 2005 in Oklahoma City, Oklahoma.
The Chair revisited the
item of the executive session to deal with the legal briefing and a second
item, the administrator’s review.
Discussion followed resulting in the understanding that the Nebraska
Commissioner would recuse himself from that portion of the executive session
pertaining to pending litigation. The
Commissioner from Louisiana, seconded by Kansas, made the following motion:
Louisiana
moves that pursuant to Commission bylaw Article IV(E)(4), that the Commission
hold a closed session to discuss with the Commission’s counsel pending
litigation, including possible settlement of such litigation. The closed session is clearly necessary for
the protection of the public interest.
The closed session is necessary for the Commission to receive attorney’s
advice and counsel, to consider in the presence of counsel pending litigation
and for the Commission to hold a strategy session with regard to such
litigation.
More discussion followed
about the need for additional language to the motion regarding the need for
executive session on the personnel issue that resulted in the following additional
language:
And for the public
interest, specifically in a personnel evaluation, where at least,
theoretically, the statements made might be damaging to the reputation of an
individual done in public, and, therefore, an executive session is needed.
The maker of the above
stated motion and the seconder agreed to the additional language and a roll
call vote was called on the amended motion.
Motion passed 5-0
The Chair called for a
10-minute break before recessing the meeting at approximately 10:30 a.m. to go
into executive session. The Chair called the meeting back to order at
approximately 2:55 p.m. The Chair
indicated that the only two matters discussed were the personnel matters and
litigation matters. She indicated that
the commissioners had discussed matters relating to the litigation and had
reviewed a settlement offer made by the State of Nebraska and that a
counter-proposal would be offered in the near future. The commissioners had also agreed to make an appropriate
adjustment in the administrator’s compensation. The resulting motions are as follows:
Motion, by Arkansas, seconded by
Louisiana, to officially adopt the
increase of 3.5% granted during executive session to the administrator’s
compensation.
Motion passed 5-0
Motion, by Kansas,
seconded by Arkansas, to adopt the following:
WHEREAS, during the State of Nebraska’s appeals,
it was granted a stay of enforcement with regard to the money judgment, without
opposition from the Commission; and
WHEREAS, the State of Nebraska in
order to obtain that stay represented to the court that the Commission’s
judgment could later be enforced by a lien on State property, a representation
which appears to the Commission was of doubtful accuracy; and
WHEREAS, during the period of that
stay, the State of Nebraska, through its Legislature and Chief Executive
Officer, has attempted to change and diminish the state statutory remedy for
enforcement of judgments against the State, reducing the effective penalty for
non-prompt payment from 10% starting with the date of judgment down to a
floating, lesser rate starting only after a certified demand for payment; and
WHEREAS, in recently allowing the
State of Nebraska to retain the stay, the federal district court noted the
potential for an additional bad-faith claim against the State (though not
deciding such claim at this time), based on those statutory changes to the
collection remedy;
NOW THEREFORE, IT IS RESOLVED:
1.
The Commission’s attorneys, Cline, Williams, Wright,
Johnson & Oldfather, upon first opportunity after the stay is dissolved,
are authorized and requested to select by their best legal judgment and to
utilize any and all available legal remedies, state and federal, including but
not limited to a new bad-faith lawsuit against the State of Nebraska over the
interest rate change, to enforce the Commission’s judgment; and
2.
The Commission’s attorneys are further authorized and
requested to employ any legal strategy and tactics to void the State of
Nebraska’s efforts, past or future, to diminish any collection remedies
applicable to this judgment; and
3.
The Commission’s attorneys shall proceed under the
guidance and supervision of the Commission’s Litigation Committee and Chairman
in regard to the above.
Motion passed 4-1
Motion, by
Arkansas, second by Kansas, to adjourn the meeting
Motion passed by
acclamation
The meeting was adjourned at approximately 3:00 p.m.
