Entergy, Arkansas, Inc. v. State of Nebraska, LOW-LEVEL

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before Wollman, Chief Judge, and Morris Sheppard Arnold and Murphy; Murphy
• Citation: 210 F.3d 887
• Parties: (8th Cir. 2000) ENTERGY, ARKANSAS, INC.; ENTERGY GULF STATE, INC.; ENTERGY LOUISIANA, INC.; WOLF CREEK NUCLEAR OPERATING CORPORATION; OMAHA PUBLIC POWER DISTRICT; CENTRAL INTERSTATERADIOACTIVE WASTE COMPACT COMMISSION,, US ECOLOGY, INC., INTERVENOR, v. STATE OF NEBRASKA; DEPARTMENT OF ENVIRONMENTAL QUALITY, NEBRASKA; RANDOLPH WOOD; JAY RINGENBERG; NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES REGULATION & LICENSURE; DAVID P. SCHOR; CHERYL ROGERS,, JOHN DOE; JANE DOE; AND DOE COMPANIES 1-20, DEFENDANTS. Submitted:
• Decision Date: 10 January 2000
• Docket Number: LOW-LEVEL,DEFENDANTS-APPELLANTS,No. 99-2376,PLAINTIFFS-APPELLEES

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210 F.3d 887 (8th Cir. 2000) ENTERGY, ARKANSAS, INC.; ENTERGY GULF STATE, INC.; ENTERGY LOUISIANA, INC.; WOLF CREEK NUCLEAR OPERATING CORPORATION; OMAHA PUBLIC POWER DISTRICT; CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT COMMISSION, PLAINTIFFS-APPELLEES, US ECOLOGY, INC., INTERVENOR,
v.
STATE OF NEBRASKA; DEPARTMENT OF ENVIRONMENTAL QUALITY, NEBRASKA; RANDOLPH WOOD; JAY RINGENBERG; NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES REGULATION & LICENSURE; DAVID P. SCHOR; CHERYL ROGERS, DEFENDANTS-APPELLANTS, JOHN DOE; JANE DOE; AND DOE COMPANIES 1-20, DEFENDANTS. No. 99-2376 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Submitted: January 10, 2000
Filed: April 12, 2000

Appeal from the United States District Court for the District of Nebraska.

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Before Wollman, Chief Judge, and Morris Sheppard Arnold and Murphy, Circuit Judges.

Murphy, Circuit Judge.

The Central Interstate Low-Level Radioactive Waste Commission (the Commission) and Entergy Arkansas, Entergy Gulf States, Entergy Louisiana, Wolf Creek Nuclear Operating Corporation, and the Omaha Public Power District (the Utilities) brought this action against the State of Nebraska, its Department of Environmental Quality (EQ) and its Department of Health and Human Services and Licensure (HHS), ¹ and several individually named state officers (collectively Nebraska). The plaintiffs alleged that Nebraska had breached obligations owed under the Central Interstate Low-Level Radioactive Waste Compact (the Compact), which Nebraska, Arkansas, Kansas, Louisiana, and Oklahoma had joined in 1986. In the Compact the states agreed to develop disposal facilities for low level nuclear waste generated within their borders, and in 1989 the Commission selected Nebraska as the host state for such a facility. The Commission and the Utilities allege that Nebraska has attempted to evade its obligations under the Compact since 1991, by delaying the decision on a license for the proposed facility and by then wrongfully denying a license. They seek injunctive relief, a declaratory judgment that Nebraska has violated its fiduciary and contractual obligations under the Compact, an accounting, compensatory and consequential damages, the removal of Nebraska from further supervision of the licensing process and appointment of a third party to exercise supervision, and attorney fees and costs. This appeal by Nebraska is from a preliminary injunction issued by the district court ² which enjoined the state parties from continuing with the administrative proceeding related to denial of the license for the disposal facility. ³ We affirm.

I.

A.

Congress passed the Low-Level Radioactive Waste Policy Act of 1980 (the Act), 42 U.S.C. 2021b et seq. (1994) (amended 1986), "to promote the development of regional

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low-level radioactive waste disposal facilities." Concerned Citizens of Neb. v. U.S. Nuclear Regulatory Comm'n, 970 F.2d 421, 422 (8th Cir. 1992). Under the authority of the Act the member states entered into the Compact, which was passed as original legislation by each of the states and by Congress. See Neb. Rev. Stat. 71-3521 (1996 Reissue) repealed by Neb. Rev. Stat. 71-3522 (effective August 28, 1999) and Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, Pub. L. 99-240, tit. II, sec. 222, 99 Stat. 1859, 1863 (1986) (reprinting the Compact hereinafter referred to by article). The Compact established the Commission and provided the framework for licensing a facility for the disposal of low level radioactive waste generated in the five states. See Art. III and IV. Several provisions address performance of obligations imposed by the Compact. Each of the states has "the right to rely on the good faith performance of each other party state." Art. III.f. The state selected as the host for a disposal site is required "to process all applications for permits and licenses required for the development and operation of any regional facility or facilities within a reasonable period from the time that a completed application is submitted." Art. V.e.2. The Commission is authorized to "require all party states . . . to perform their duties and obligations arising under this compact[.]" Art. IV.m.8.

After the Commission selected Nebraska as the host state for a radioactive waste disposal facility in December 1987, it contracted with intervenor US Ecology to construct and maintain the facility. Nebraska established procedures and standards for licensing the facility. Under the state regulations, US Ecology was required to pay all costs associated with licensing, Neb. Rev. Stat. 81-1579(2) (1999 Reissue), but the Commission agreed to reimburse US Ecology for these costs. Through separate agreements the Commission passed these costs along to the Utilities. The licensing proceedings to date have cost more than $74 million.

US Ecology submitted its original license application for the construction of a low level radioactive waste disposal facility in Boyd County, Nebraska in 1990. The application was directed to the Low Level Radioactive Waste Program, operated by EQ and HHS. Nebraska proceeded to address some 700 questions and comments to US Ecology, all of which required a response. Entergy Ark., Inc. v. Nebraska, 46 F. Supp. 2d 977, 981 (D.Neb. 1999). After US Ecology responded to the open questions and comments, Nebraska declared the license application complete in December 1991. Id. at 982. EQ and HHS then reviewed the application and issued a Notice of Intent to Deny in January 1993. Id. at 983. The stated reason for the denial was "evidence of flooding, frequent ponding, and wetlands on the site, which . . . indicate[s] that the site is not generally well drained . . . contrary to minimum site characteristics." Appellee's App. II, 387.

US Ecology initiated an appeal from the denial of the facility license by opening a contested case proceeding under Nebraska law, but it later withdrew this appeal in favor of filing an amended license application. Entergy Ark., Inc., 46 F. Supp. 2d at 983. By the end of 1994, US Ecology had undergone another four rounds of technical review, in which it had addressed 1,791 comments by Nebraska on the Safety Analysis Report in the license application and 425 comments on the Environmental Report. This application was deemed complete in June 1995. Id. EQ and HHS acknowledged receipt of the completed application in July 1995 and stated that final review activity had commenced and would require approximately one year. The two departments also declared that no further information would be accepted from US Ecology. Id. at 984. In August 1996 EQ informed US Ecology that two license review documents, the Draft Environmental Impact Statement and the Draft Safety Evaluation Report, would not be completed until October 1997, more than two years

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after US Ecology had submitted its application. Id.

Following this announcement, the Commission met to impose a deadline for the completion of Nebraska's administrative review. It set January 14, 1997 as the deadline for action on US Ecology's license application. Nebraska then sued the Commission in federal court to contest its authority to set such a deadline. The district court's decision upholding the Commission's authority was affirmed by this court. See Nebraska v. Central Interstate Low-Level Radioactive Waste Comm'n, 187 F.3d 982, 987 (8th Cir. 1999).

Nebraska denied US Ecology's second license application in December 1998. The state asserted that the site provided insufficient depth to the water table which increased the likelihood of groundwater contamination, that engineered improvements to the site could not be considered under the applicable regulations, and that US Ecology had not demonstrated its financial ability to construct and maintain the disposal facility. Appellee's App. II, 463-77. US Ecology appealed the denial by again initiating a contested case proceeding under Nebraska law. ⁴

While US Ecology's license applications were pending, a number of unsuccessful lawsuits were brought by Nebraska, two community groups (Concerned Citizens of Nebraska and the Boyd County Local Monitoring Committee), and Boyd County. See County of Boyd v. US Ecology, Inc., 48 F.3d 359 (8th Cir. 1995) (claims barred by previous decision on community consent claim); Nebraska ex. rel. Nelson v. Central Interstate Low-Level Radioactive Waste Comm'n, 26 F.3d 77 (8th Cir. 1994) (community consent claim barred by expiration of limitations period); Concerned Citizens of Neb. v. U.S. Nuclear Regulatory Comm'n, 970 F.2d 421 (8th Cir. 1992) (no fundamental right to an environment free from radioactive contamination); Nebraska v. Central Interstate Low-Level Radioactive Waste Comm'n, 29 F. Supp. 2d 1085 (D.Neb. 1998), aff'd, 207 F.3d 1021(8th Cir.2000) (Nebraska has no veto power over export license); and Nebraska ex rel. Nelson v. Central Interstate Low-Level Radioactive Waste Comm'n, 902 F. Supp. 1046 (D.Neb. 1995) (Nebraska had no right to an additional member on the Commission). In all of these actions the plaintiffs contested some application of the Compact to Nebraska.

After US Ecology sought to appeal the denial of its amended application to construct the facility through a contested case proceeding, the Utilities filed this action and moved for a temporary restraining order and a preliminary injunction to enjoin the state proceeding. The Utilities alleged that Nebraska's actions to delay approval of a facility license violated their statutory and contractual rights under the Compact, as well as their constitutional rights. They sought preliminary and permanent injunctive relief to bar further state administrative proceedings, a declaratory judgment that Nebraska had violated its obligations under the Compact, money damages, and attorney fees.

The Utilities named the Commission...