Entergy, Arkansas, Inc. v. State of NE

• Decision Date: 16 October 2000
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 99-4265,DEFENDANTS-APPELLANTS,LO-LEVEL,PLAINTIFFS-APPELLEES,INTERVENOR-APPELLEE,No. 99-4263,LOW-LEVEL,99-4263,99-4265
• Citation: 241 F.3d 979
• Parties: (8th Cir. 2001) ENTERGY, ARKANSAS, INC., AN ARKANSAS CORPORATION; ENTERGY GULF STATES, INC., A TEXAS CORPORATION; ENTERGY LOUISIANA, INC., A LOUISIANA CORPORATION; WOLF CREEK NUCLEAR OPERATING CORPORATION, A DELAWARE CORPORATION; OMAHA PUBLIC POWER DISTRICT, A PUBLIC CORPORATION AND POLITICAL SUBDIVISION OF THE STATE OF NEBRASKA, PLAINTIFFS, CENTRAL INTERSTATERADIOACTIVE WASTE COMPACT COMMISSION,, US ECOLOGY, INC., A CALIFORNIA CORPORATION, INTERVENOR, v. STATE OF NEBRASKA,, DEPARTMENT OF ENVIRONMENTAL QUALITY, NEBRASKA; RANDOLPH WOOD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JAY RINGENBERG, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES REGULATION & LICENSURE; DAVID P. SCHOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; CHERYL ROGERS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JOHN DOE; JANE DOE; DOE COMPANIES 1 THROUGH 20, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS. ENTERGY, ARKANSAS, INC., AN ARKANSAS CORPORATION; ENTERGY GULF STATES, INC., A TEXAS CORPORATION; ENTERGY LOUISIANA, INC., A LOUISIANA CORPORATION; WOLF CREEK NUCLEAR OPERATING CORPORATION, A DELAWARE CORPORATION; OMAHA PUBLIC POWER DISTRICT, A PUBLIC CORPORATION AND POLITICAL SUBDIVISION OF THE STATE OF NEBRASKA,, CENTRAL INTERSTATERADIOACTIVE WASTE COMPACT COMMISSION, PLAINTIFF, US ECOLOGY, INC., A CALIFORNIA CORPORATION,, v. STATE OF NEBRASKA; DEPARTMENT OF ENVIRONMENTAL QUALITY, NEBRASKA; RANDOLPH WOOD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JAY RINGENBERG, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES REGULATION & LICENSURE; DAVID P. SCHOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; CHERYL ROGERS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY,, JOHN DOE; JANE DOE; DOE COMPANIES 1 THROUGH 20, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS. ,, . Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 979

241 F.3d 979 (8th Cir. 2001)

ENTERGY, ARKANSAS, INC., AN ARKANSAS CORPORATION; ENTERGY GULF STATES, INC., A TEXAS CORPORATION; ENTERGY LOUISIANA, INC., A LOUISIANA CORPORATION; WOLF CREEK NUCLEAR OPERATING CORPORATION, A DELAWARE CORPORATION; OMAHA PUBLIC POWER DISTRICT, A PUBLIC CORPORATION AND POLITICAL SUBDIVISION OF THE STATE OF NEBRASKA, PLAINTIFFS, CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT COMMISSION, PLAINTIFF-APPELLEE, US ECOLOGY, INC., A CALIFORNIA CORPORATION, INTERVENOR, v. STATE OF NEBRASKA, DEFENDANT-APPELLANT, DEPARTMENT OF ENVIRONMENTAL QUALITY, NEBRASKA; RANDOLPH WOOD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JAY RINGENBERG, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES REGULATION & LICENSURE; DAVID P. SCHOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; CHERYL ROGERS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JOHN DOE; JANE DOE; DOE COMPANIES 1 THROUGH 20, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.

ENTERGY, ARKANSAS, INC., AN ARKANSAS CORPORATION; ENTERGY GULF STATES, INC., A TEXAS CORPORATION; ENTERGY LOUISIANA, INC., A LOUISIANA CORPORATION; WOLF CREEK NUCLEAR OPERATING CORPORATION, A DELAWARE CORPORATION; OMAHA PUBLIC POWER DISTRICT, A PUBLIC CORPORATION AND POLITICAL SUBDIVISION OF THE STATE OF NEBRASKA, PLAINTIFFS-APPELLEES, CENTRAL INTERSTATE LO-LEVEL RADIOACTIVE WASTE COMPACT COMMISSION, PLAINTIFF, US ECOLOGY, INC., A CALIFORNIA CORPORATION, INTERVENOR-APPELLEE, v. STATE OF NEBRASKA; DEPARTMENT OF ENVIRONMENTAL QUALITY, NEBRASKA; RANDOLPH WOOD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JAY RINGENBERG, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES REGULATION & LICENSURE; DAVID P. SCHOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; CHERYL ROGERS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, DEFENDANTS-APPELLANTS, JOHN DOE; JANE DOE; DOE COMPANIES 1 THROUGH 20, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.

No. 99-4263,, No. 99-4265.

UNITED STATES COURT OF APPEALS, FOR THE EIGHTH CIRCUIT.

Submitted: October 16, 2000.

Filed: March 8, 2001.

Appeals from the United States District Court for the District of Nebraska. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Wollman, Chief Judge, Morris Sheppard Arnold and Murphy, Circuit Judges.

Murphy, Circuit Judge.

This case arises out of the five state Central Interstate Low-Level Radioactive Waste Compact (the Compact) and was last before the court on Nebraska's appeal from a preliminary injunction in favor of the Central Interstate Low-Level Radioactive Waste Commission (the Commission). See Entergy, Arkansas, Inc. v. Nebraska, 210 F.3d 887 (8th Cir. 2000) (affirming the district court). Now the Nebraska parties bring two interlocutory appeals from the district court's denial of motions seeking Eleventh Amendment and qualified immunity and the dismissal of claims brought by the Commission, some nuclear waste generators, and US Ecology (USE), an applicant for a license to build a disposal facility in Nebraska. We affirm in part, reverse in part, and remand.

I.

The background of the Compact has been described in previous decisions of this court. See id. at 890-95; Nebraska v. Central Interstate Low-Level Radioactive Waste Comm'n, 187 F.3d 982 (8th Cir. 1999); Nebraska v. Central Interstate Low-Level Radioactive Waste Comm'n, 26 F.3d 77 (8th Cir. 1994). Under authority of the Low- Level Radioactive Waste Policy Act of 1980 (the Act) passed by Congress, 42 U.S.C. § 2021b et seq. (1994), Nebraska, Arkansas, Kansas, Louisiana and Oklahoma entered into the Compact. Nebraska, the other four states, and Congress all enacted the Compact as original legislation. 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 which is cited in this opinion by article). The Compact created a framework for the development of low-level radioactive waste facilities and established the Commission as the governing body. See Art. IV. Several provisions address each state's obligations under the Compact. The Compact provides that each state has "the right to rely on the good faith performance of each other party state." Art. III(f). The state selected to host a disposal facility 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 "[r]equire all party states . . . to perform their duties and obligations arising under this compact." Art. IV(m)(8).

In December 1987, the Commission chose Nebraska as the first member state to host a waste disposal facility. The Commission contracted with USE to file a license application for a disposal facility and then to build and maintain it. Under Nebraska law USE was required to pay all costs associated with licensing, but pursuant to a separate agreement the costs were to be reimbursed at a later date by the Commission. See Neb.Rev.Stat. § 81-1579(2) (1999 Reissue). The Commission entered into agreements with Entergy, Arkansas, Inc., Entergy Gulf State, Inc., Entergy Louisiana, Inc., Wolf Creek Nuclear Operating Corp., and Omaha Public Power District (the Generators) to pass on the cost of the licensing to them. At the time the preliminary injunction was issued in April of 1999, the licensing process had already cost more than $80 million. These costs included monies paid by Nebraska for subcontractors and consultants, direct labor, office and administrative expenses, and other costs associated with the review of the license application. The Generators paid $74 million of the total costs to the Commission which turned over the funds to USE. USE itself contributed the remaining $6 million for preliminary costs connected to the license application, costs for which it has not been reimbursed.

When Nebraska was chosen to provide the first site, Governor Kay Orr publicly stated that the state was not happy to be the host for the disposal facility but that it would honor its commitment under the Compact. In July 1990, USE submitted its license application to the Low-Level Radioactive Waste Program operated by two Nebraska state agencies responsible for licensing waste facilities. Those Nebraska agencies are the Department of Environmental Quality (EQ) and the Department of Health and Human Services and Licensure (HHS), both parties in this action. The two agencies required USE to answer some 700 questions before they would review its application. E. Benjamin Nelson, a candidate for governor of Nebraska, promised that if he were elected "it is not likely that there will be a nuclear dump [] in Nebraska." Entergy, Arkansas, Inc. v. Nebraska, 46 F.Supp.2d 977, 981 (D.Neb. 1999). Nelson won election, and Randolph Wood became the director of EQ. From that time the state no longer exchanged information with USE. In December 1991, EQ stated that it would not accept any responses to its 700 questions until all of the answers were completed and submitted together; this added to the delay and the cost. In July 1992, the Nebraska Auditor of Public Accounts, found that the EQ had not adopted a budget to control the cost of review or a timetable to complete the work, and it recommended that the EQ do so, but Wood refused. After USE submitted its answers, EQ issued a Notice of Intent to Deny the license in January 1993, due to drainage problems and "wetlands on the site." Appellee's App. II, 387. USE responded by opening a contested case administrative proceeding under Nebraska law to challenge that decision. It later amended its application and withdrew its pending case after reaching a settlement with Nebraska.

After the first contested case was withdrawn, the review process continued with more questions and technical review of the amended application. During this process, Nebraska demanded that the Commission turn over to it federal rebate money received under the Act from the United States Department of Energy (DOE). When the Commission did not turn over the rebate money, EQ directed the contractors doing the state's technical review to cut back their work and billings by twenty-five percent. Nebraska sued the Commission to recover federal rebate funds, and it received part of the money after it promised to accelerate review, but the amount of review work continued to decline after the settlement.

USE's application to build the disposal facility was deemed complete by Nebraska in June 1995, and EQ and HHS then said that their review of the application would take about one more year to complete. EQ later notified USE that the review would take longer because two technical documents would not be finished until October 1997. When EQ issued these two documents, it stated that the facility met site suitability requirements, but the review continued nevertheless. The Commission then imposed a deadline of January 14, 1997 for Nebraska to complete its review of USE's application, and Nebraska sued to have the deadline voided. This court upheld the district court ruling that the Commission had the power under the Compact to set the deadline. See Central Interstate Low-Level Radioactive Waste Comm'n, 187 F.3d at 987.

USE's amended license application was finally denied in December 1998 (the original application had been submitted in July 1990). The reasons stated for the denial were that there was insufficient depth of the water table at the site, that under the applicable regulations EQ could not consider engineered improvements to the site, and that USE had not shown financial ability to build and run the facility. On January 15, 1999, USE appealed the denial by...