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

• Decision Date: 13 June 1994
• Docket Number: LOW-LEVEL,No. 93-3724,93-3724
• Citation: 26 F.3d 77
• 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.
• Court: U.S. Court of Appeals — Eighth Circuit

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.

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.

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 regional disposal facility at the Boyd County site.

Nebraska law does not require or authorize a vote of any kind as a measure of community consent, and Governor Orr, who originated the concept, anticipated that community consent would be determined through the actions of locally elected officials. On December 8, 1992, however, the Boyd County Local Monitoring Committee conducted an informal poll to determine whether the community supported the construction of a disposal facility at the selected site. A majority of those responding to the poll opposed construction of the facility in Boyd County. On January 12, 1993, the Board of Trustees of the Village of Butte passed a resolution reaffirming its support for a disposal facility in Boyd County. The next day, the State filed this action, alleging that the Commission and U.S. Ecology had not complied with the community consent requirement before making the final site selection. Finding that the action was barred by the applicable limitations period as well as by the equitable doctrines of estoppel and laches, the district court granted the defendants' motions for summary judgment. State ex rel. Nelson v. Central Interstate Low-Level Radioactive Waste Comm'n, 834 F.Supp. 1205 (D.Neb.1993).

II.

We review de novo a grant of summary judgment. Walker v. National City Bank of Minneapolis, 18 F.3d 630, 631 (8th Cir.1994). We must determine whether the record, when examined in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Bridgewater v. Caples, 23 F.3d 1447, 1448 (8th Cir.1994).

Article IV, paragraph l of the Compact states that "a party state aggrieved by a final decision of the commission may obtain judicial review of such decisions in the United States District Court in the district wherein the commission maintains its headquarters by filing in such court a petition for review within sixty days after the commission's final decision."

Although the State did not file this action until January 13, 1993, almost three years after the legislature had been formally notified that the disposal facility would be located in Boyd County, it argues that the sixty-day limitation period does not bar the action, contending that there is no evidence that the Commission made a final decision regarding site selection. ⁵

The State argues that Chairperson Thorson's letter and U.S. Ecology's notice of site selection did...