State of Neb. ex rel. Nelson v. Central Interstate Low-Level Radioactive Waste Com'n, LOW-LEVEL

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 26 F.3d 77
• Docket Number: LOW-LEVEL,No. 93-3724,93-3724
• Parties: , 24 Envtl. L. Rep. 21,079 STATE OF NEBRASKA, ex rel. E. Benjamin NELSON, Governor, Appellant, v. CENTRAL INTERSTATERADIOACTIVE WASTE COMMISSION; U.S. Ecology, Inc., a California Corporation, Appellees.
• Decision Date: 13 June 1994

Page 77

26 F.3d 77 38 ERC 2133, 24 Envtl. L. Rep. 21,079 STATE OF NEBRASKA, ex rel. E. Benjamin NELSON, Governor, Appellant,
v.
CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMMISSION;
U.S. Ecology, Inc., a California Corporation, Appellees. No. 93-3724. United States Court of Appeals,
Eighth Circuit. Submitted April 12, 1994.
Decided June 13, 1994.

Page 78

Linda L. Willard, Lincoln, NE, argued, for appellant.

Alan E. Peterson, Lincoln, NE, argued, for appellees.

Before McMILLIAN and WOLLMAN, Circuit Judges, and NANGLE, ^* Senior District Judge.

WOLLMAN, Circuit Judge.

The State of Nebraska ("the State") appeals from the district court's ¹ order granting summary judgment in favor of the Central Interstate Low-Level Radioactive Waste Commission ("the Commission") and U.S. Ecology, Inc., a California corporation. We affirm.

I.

The Low-Level Radioactive Waste Policy Act, enacted in 1980, permits states to "enter into such compacts as may be necessary to provide for the establishment and operation of regional disposal facilities for low-level radioactive waste." 42 U.S.C. Sec. 2021d(a)(2). Pursuant to the Act, Arkansas, Kansas, Louisiana, Nebraska, and Oklahoma entered into the Central Interstate Low-Level Radioactive Waste Compact ² ("the Compact"), and Congress approved the Compact, 42 U.S.C. Sec. 2021d note. ³ The purpose of the Compact is to protect the health, safety, and welfare of the citizens and the environment, to provide a framework for effective and efficient management of low-level radioactive waste, and to distribute among the member states the costs of disposing of such waste. The Commission, established by the Compact, is the entity responsible for carrying out the Compact's purpose. Specifically, the Compact requires the Commission to develop and operate a disposal facility for low-level radioactive waste generated within the member states.

Page 79

In late 1987, the then governor of Nebraska, Kay Orr, ⁴ believed that Nebraska would probably be chosen as the host state for the disposal facility. She therefore proposed conditions that would have to be met before a facility could be located in Nebraska, and the Commission adopted the conditions. One of the conditions provided that a disposal facility would not be located in a community without that community's consent. In December 1987, the Commission selected Nebraska as the host state.

Soon thereafter, the Commission contracted with U.S. Ecology to develop and operate the facility. U.S. Ecology then began the process of selecting a site in Nebraska for the facility, conducting preliminary feasibility studies in those areas for which it received a formal request from both the community and respective county. Based upon its preliminary studies, U.S. Ecology selected three potential sites for detailed site-characterization and suitability studies. For each of the three sites, the major community located within the zone of potential environmental impact had in place a resolution supporting a nearby disposal facility.

On December 29, 1989, U.S. Ecology sent a letter to the chairperson of the Butte Village Board of Trustees informing him that U.S. Ecology had selected a site in Boyd County near the Village of Butte as its preferred site.

On February 6, 1990, Norman W. Thorson, who was then the chairperson of the Commission, sent a letter to the members of the Nebraska legislature stating, "So that there will be no possible misunderstanding of the Commission's or the Developer's intentions, the Commission has directed U.S. Ecology to file a Notice of Final Selection with the Clerk of the Legislature, which notice will clearly identify the Butte site as the only site under consideration." Thorson sent a copy of the letter to Governor Orr, to the other Commissioners, and to the Compact's executive director. Approximately a week later, U.S. Ecology filed with the Nebraska legislature a document entitled "Notice of Final Selection." The document stated, "At the direction of the ... Commission (per its letter of February 6, 1990), U.S. Ecology hereby formally provides notice to the Nebraska Unicameral that the selection of the Butte site is the final site selected for license application.... I trust that this Notice of Final Selection clearly sets forth U.S. Ecology's intent and resolves any remaining questions concerning the finality of the Butte site selection decision."

In July 1990, U.S. Ecology submitted to the Nebraska Department of Environmental Control (now known as the Nebraska Department of Environmental Quality) an application for a license to construct and operate a...