October 15, 1998

Battle over who will pay for the cleanup costs holding up acquisition, attorney says

Warren County has withdrawn its bid to acquire about 110 acres of the Avtex Fibers Superfund site.

County officials had hoped to own the land by September, but the acquisition has ben put on hold indefinitely, pending a legal settlement over who will pay to clean the site in Front Royal, County Attorney douglas W. Napier said.

The reason for the delay is the same reason the site has remained undeveloped for years: The county wants to ensure that it won’t be stuck with the responsibility for cleanup costs and continued legal battles, he said.

The U.S. Justice department, Environmental Protection agency and FMC corp., a former owner of the site, are negotiating who will pay for what portion of the cleanup.

In the latest round, the Justice Department refused to pledge not to sue the county over future cleanup costs if the county takes over a portion of the site.

Napier said millions of dollars are at issue and neither side wants to be at a disadvantage.

Because the federal Superfund law holds any prior or future owner liable for a share of cleanup costs, FMC is responsible for paying part of those costs.

For the same reason, county officials are wary of taking over any of the land until the federal government promises that it won’t sue for future cleanup costs.

Napier said the Justice Department "is not opposed to the county buying the property, but the negotiations are in a delicate state and they don’t want to tilt the playing field by carving off a piece of that property."

The county withdrew its bid for the land to ensure that it cannot be held responsible, through some "legal technicality," for any cleanup costs, he said. The county has offered to forgive about $1 million in past-due local taxes in exchange for the land.

"We’ve put it on hold pending some kind of settlement between" EPA, Justice Department and FMC, Napier said.

Although the county’s efforts to acquire the land appear to have returned to the starting point, Napier said he hoped the matter will be resolved soon.

The former Avtex property is in the hands of a bankruptcy trustee.

Avtex filed for bankruptcy protection after it voluntarily closed the plant in 1989.

Napier said the bankruptcy court judge had planned to dismiss the bankruptcy proceedings on Oct.1.

"The bankruptcy judge felt no viable reorganization plan had come forth in a reasonable period of time," he said.

The parties in the negotiations have asked the judge to extend the deadline for dismissing the bankruptcy until

January so they can conclude the negotiations, he said. "That show both sides are hopeful it can be resolved," he said.

The Avtex plant was declared a federal Superfund site in 1986. It was closed after being cited for more that 2,000 violations of environmental laws.