(Verified with meeting transcript)
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. OíConnell; 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 Commissionís 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 generatorís 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 commissionís 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 Ė 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 Nebraskaís 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 administratorís 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 Commissionís 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 attorneyís 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 administratorís 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 administratorís compensation.
Motion passed 5-0
Motion, by Kansas, seconded by Arkansas, to adopt the following:
WHEREAS, during the State of Nebraskaís 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 Commissionís 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 Commissionís 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 Commissionís judgment; and
2. The Commissionís attorneys are further authorized and requested to employ any legal strategy and tactics to void the State of Nebraskaís efforts, past or future, to diminish any collection remedies applicable to this judgment; and
3. The Commissionís attorneys shall proceed under the guidance and supervision of the Commissionís 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.