Nebraska v. Central Interstate Low-Level Radioact., 4:97CV3267.
| Decision Date | 23 November 1998 |
| Docket Number | No. 4:97CV3267.,4:97CV3267. |
| Citation | 29 F.Supp.2d 1085 |
| Parties | State of NEBRASKA, Plaintiff, v. CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMMISSION, Defendant. |
| Court | U.S. District Court — District of Nebraska |
William M. Lamson, Jr., Lamson, Dugan Law Firm, Omaha, NE, Linda L. Willard, Attorney General's Office, Lincoln, NE, for plaintiff.
Alan E. Peterson, Shawn D. Renner, Cline, Williams Law Firm, Lincoln, NE, for defendant.
The State of Nebraska seeks a declaratory judgment that it has the unilateral right under an interstate compact to "veto" low-level radioactive waste export licenses even though all the other member states disagree with Nebraska and approve the licenses.1 Deciding that Nebraska has no such right, I now issue my findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a). I decline to address the related question of whether Nebraska has the right to veto low-level radioactive waste import licenses because there is no "actual controversy" within the meaning of the Declaratory Judgment Act on that question. 28 U.S.C. § 2201(a).
I find the material facts to be these:
1. This matter concerns a resolution of issues arising under federal law and this court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, and under Article IV(l) of the Central Interstate Low-Level Radioactive Waste Compact3 which provides for judicial review of a final decision of the Commission by the filing of a petition in this court within sixty (60) days after the decision.
2. Plaintiff alleges it is aggrieved by the final decisions rendered by the defendant as more specifically set out herein.
3. Venue is properly set in this judicial district pursuant to 28 U.S.C. § 1391 and Article IV(l) of the Central Interstate Low-Level Radioactive Waste Compact.
4. Plaintiff, the State of Nebraska, is a sovereign state of the United States of America and is a designated "host state" in that it is a party state in which a disposal facility is situated or is being developed.
5. The Central Interstate Low-Level Radioactive Waste Compact ("Compact") is an interstate compact that was entered into by Nebraska, Kansas, Oklahoma, Louisiana, and Arkansas pursuant to the Low-Level Radioactive Waste Policy Act and the Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. § 2021, et seq. The Compact was ratified and approved by Congress on January 15, 1986. Broadly stated, the Compact is federal law, agreed to by all member states, that promotes the efficient, economic and safe management of low-level radioactive waste in the region.
6. The defendant, the Central Interstate Low-Level Radioactive Waste Commission ("Commission"), was created by the Compact; it is comprised of locally appointed representatives from each of the five member states; and it has the right to sue and be sued.
7. The Commission has the authority and responsibility to approve development and operation of a regional low-level radioactive waste disposal facility for the Compact.
8. The Commission has the authority to authorize the importation of waste not generated in the region for deposit or acceptance at a regional facility and the authority to authorize the export from the region of waste generated in the region.
9. Article III(g) of the Compact and Article IV(m)(6) of the Compact deal with the issue of authorization and approvals required, and it is the interpretation of those paragraphs, along with other related language within the Compact, which forms the central issue before this court.
10. On June 25, 1997, the Commission considered the application of Cimarron Corporation to export from the Compact region low-level radioactive waste from Oklahoma, and the application of Wolf Creek Nuclear Operating Corporation of Kansas to export from the Compact region low-level radioactive waste from Kansas.
11. F. Gregory Hayden, the duly appointed representative of the State of Nebraska to the Central Interstate Low-Level Radioactive Waste Commission, voted to deny both the Cimarron and Wolf Creek applications.
12. The final vote was 4-1 in favor of approving those two applications, with all Commissioners except the Nebraska Commissioner voting to approve. The Commission declared the motions passed, granting permission for Cimarron and Wolf Creek to export low-level radioactive waste out of the Compact region.
13. On July 16, 1997, the Commission considered the applications of Entergy River Bend Station, Entergy Arkansas Nuclear One, Entergy Waterford 3, Omaha Public Power District, and Nebraska Public Power District to export low-level radioactive waste outside of the Compact region. The Nebraska Commissioner voted to deny each of these applications, but each other representative voted in favor and the Commission declared the motions passed as to each of those applications.
14. On July 15, 1998, the Commission considered the applications of Entergy Arkansas Nuclear One, Entergy Waterford 3, Entergy River Bend Station, Omaha Public Power District, Nebraska Public Power District, and Wolf Creek Nuclear Operating Corporation of Kansas to export low-level radioactive waste out of the Compact region. The Nebraska Commissioner voted to deny each of these applications, but the final vote of the Commission in each instance was a 4-1 vote in favor of approving the applications. Despite Nebraska's no vote, the Commission also declared these motions passed. In addition, the Commission, on votes of 4-0-1, Nebraska abstaining, declared export applications of the Department of Veterans Affairs Medical Center and the U.S. Department of Agriculture approved, notwithstanding the lack of Nebraska's affirmative vote.
15. As an example, the export permit granted to the Nebraska Public Power District in 1998 and authorized by majority vote of the Commission is set forth below:
Central Interstate Low-Level Radioactive Waste Commission Authorization to Export Waste Nebraska Public Power District Columbus, Nebraska
is hereby authorized by the Central Interstate Low-Level Radioactive Waste Commission to export low-level radioactive waste outside the region, if such shipment of waste is otherwise lawful. Such authorization is for the period July 1, 1998 to June 30, 1999. This authorization by the Commission relates only to the requirements of the Central Interstate Low-Level Radioactive Waste Commission, and in no way affects any other requirement, liabilities, and responsibilities that may be applicable under any other state and federal laws and regulations.
This 15th day of July, 1998.
[Signed by] A. Eugene Crump, Executive
Director
(Ex. 106.)
16. As an example, the export application that was submitted by the Nebraska Public Power District to obtain the 1998 export permit is set forth below:
Form A
Application for Non-Federal Facilities to Export Low-Level
Radioactive Waste From the Central Interstate Low-Level
1. Name of Company, Facility or Agency: Nebraska Public Power District, Cooper Nuclear Station
2. Mailing Address: P.O. Box 499, Columbus, NE 68602-0499
3. Person to be contacted concerning this application: Joe Kuttler
4. Person responsible for waste management: Cindy L. Weers
5. Location of facility where waste is generated: Cooper Nuclear Station, Brownville, Nebraska 68321
6. Year for which application is made: July 1, 19[9]8 to June 30, 19[9]9.
7. Total volume of llrw projected to be exported for disposal during the time for which this application is made: 3,000 ft3.
8. The Commission has adopted the following application fee schedule for the fiscal year 1998-1999:
MAJOR GENERATOR —
Utility Company or 1001 Cubic Feet or greater $56,000.00
LARGE GENERATOR —
501-1000 Cubic Feet $ 7,000.00
SMALL GENERATOR —
500 Cubic Feet or Less $ 500.00
VERY SMALL GENERATOR/Occasional Shipper — $ 125.00
50 Cubic Feet or less, and only once every three years
9. The amount of fee to be submitted with this application is $56,000.00. Checks should be made payable to "Central Interstate Low-Level Radioactive Waste Commission."
The requirements of this application and any authorization issued as a result of this application relate only to the requirements of and authority of the Central Interstate Low-Level Radioactive Waste Commission established by the Central Interstate Low-Level Radioactive Waste Compact. Applicants are not relieved of any other responsibilities or liabilities arising under any state or federal laws and regulations.
X I hereby certify that to the best of my knowledge the information provided herein is accurate and correct and that the low-level radioactive waste for which this export authorization is expected will be packaged and shipped in accordance with applicable state and federal regulations and is acceptable for disposal at the intended facilities.
X I hereby certify to the best of my knowledge, this company/facility or agency will not export radioactive wastes which are subject to Central Interstate Compact export authorization requirements without obtaining such authorization.
Date: June 30, 1998 By: /s/ G.R. Horn
Title: Senior Vice President Energy Supply
For Commission use: Approved Disapproved
Reason
By: /s/ Date: 7-15-98
Title: Executive Director & General Counsel
(Ex. 106.)
17. The fees generated by the granting of export permits are an important source of funding for the Commission. For example, the Commission was to receive $56,000 from the granting of the July, 1998, export permit for the Nebraska Public...
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