CENTRAL INTERSTATE LLRW COMPACT &
LOW-LEVEL NUCLEAR WASTE DISPOSAL

CURRENT STATUS

The Central Interstate Low-Level Radioactive Waste Compact Commission is made up of 5 states: Nebraska, Kansas, Oklahoma, Louisiana, and Arkansas. They are charged with "managing" low-level radioactive waste in this region. They have chosen to build a disposal site. The site they have selected is in Boyd County. They have hired a developer to develop and operate the site. This developer is US Ecology, a wholly owned subsidiary of American Ecology. Money for developing the site comes from the major radioactive waste generators (power companies with nuclear reactors), flows through the Compact to US Ecology, who in turn pays the Department of Environmental Quality (DEQ) and Department of Health (DOH) for their expenses associated with reviewing the license. Below is the history and the controversy associated with this project. The public hearing process has started with the issuance of the Draft Environmental Impact Analysis and the Draft Safety Evaluation Report.

HISTORY

COMMUNITY CONSENT

Nebraska's participation in the Central Interstate Low Level Radioactive Waste Compact began in 1982, when the Nebraska Legislature passed a resolution to join with the states of Kansas, Oklahoma, Louisiana, and Arkansas. In May of 1983, legislation was passed and signed by then Governor Kerrey formalizing our participation. In 1987, then Governor Orr set conditions for Nebraska's acceptance of host state status. The first of those conditions was that US Ecology (here after referred to as USE) and the Central Interstate Compact Commission (here after referred to as Compact) would not locate a facility in a community without that community's consent. This condition was approved unanimously by the compact on December 8, 1987 and would apply to any host state selected by the compact. On December 15, 1987, Nebraska was selected as the host state.

In 1988, the Nebraska Legislature passed a law which required the developer to "make every effort to locate the facility where community support is evident." This law went into effect on April 13, 1988. In 1988 USE invited the League of Women Voters of Nebraska to assist with formation of a Citizens Advisory Committee on Low-Level Waste. Said Committee consisted of representatives from various state-wide interest groups and organizations. On July 15, 1988, the advisory committee passed a motion that USE be advised that "community" for community consent purposes should be defined as the county entity and issued a formal report in May, 1989, which recommended "community" for community consent purposes should be defined as the county. On June 10, 1988, Rich Paton, Vice President of USE, informed the Citizens Advisory Committee that community acceptance is a factor in siting the low-level radioactive waste facility and on July 18, 1988 informed them that the community would have an opportunity to determine whether or not they wanted to continue in the selection process.

On August 8, 1988, the Village Board of Butte, Boyd County, Nebraska passed a Resolution of Invitation to USE to evaluate the suitability for a site in that area. Said resolution stated that "such an invitation does not commit Butte Village to hosting the facility at this time." On November 23, 1988, the Village Board of Butte wrote to the Boyd County Board of Supervisors notifying them that the Village Board of Butte had voted to have a study done for siting the facility but that more information must be obtained about the waste site before the county made a decision. On December 5, 1988, Ron Schroetlin, then-Chairman of the Village Board of Butte, wrote to Mr. Paton acknowledging that potential suitable sites might exist in the area. Mr. Schroetlin indicated the Village Board's interest in working with USE but reserved the right to withdraw from consideration.

On January 10, 1989, the Boyd County Board passed a resolution withdrawing Boyd County from consideration as a low-level radioactive waste site as of the date of the resolution. On or about January 18, 1989, USE announced the selection of three sites in Nebraska as finalists for further study regarding feasibility of establishing a low-level radioactive waste storage facility. Included in those sites was the site in Boyd County, Nebraska. The developer on December 29, 1989, selected the Boyd County site for the proposed facility. On or about July 27, 1990, USE filed an application with the Nebraska Department of Environmental Control. Review of the license by the Department of Environmental Control and the Nebraska Department of Health began immediately. On or about December 24, 1991, the Department of Environmental Control deemed that the license application was complete so that technical review could proceed.

Several attempts were made during this time period to define "community consent" by legislative action but these attempts failed by very narrow margins. Also in 1988, Initiative 402 dealt in part with defining community consent and its failure may be the result of another issue that was included in the initiative which dealt with withdrawal from the compact.

To attempt to resolve the community consent requirement, the Governor endorsed an idea submitted to him by the Local Monitoring Committee, which called for a county wide poll. The county wide poll, which was run as close to normal election procedures as possible on December 8, 1992, indicated that 93% of the registered Boyd County voters who responded were not in favor of the facility being constructed in Boyd County. This negative vote represented a majority of all the registered voters in the county. The Governor then sent a letter to the Compact on December 23, 1992, asking the compact to voluntarily withdraw Boyd County as the selected site by January 8, 1993. That deadline came and went with the compact only stating that the matter would be discussed at their regularly scheduled meeting at the end of January.

On January 13, 1993, the State of Nebraska filed suit in Federal District Court in Lincoln Nebraska. The State of Nebraska did not seek a temporary injunction or restraining order to stop the licensing process nor did it seek to revoke its host state status. The licensing process was to continue until the Court reached a decision. If the decision was that community consent was a requirement and had not been obtained by the Compact or USE, the State asked that the licensing process be enjoined until such consent was obtained. If such consent is not necessary or has been obtained, then the licensing process would continue.

In October, 1993, the federal district Court ruled that the State had not filed its lawsuit within 60 days of the Commission's selection of the site or within 60 days of the Governor-elect being notified by Commission employees of the Commissions position. The State then appealed the case to the Eighth Circuit. Since site was reconfigured in August, the state filed a second lawsuit to determine if community consent applies to revised site. In December, 1993, the Federal Court ruled that the reconfigured site was substantially the same site and that the previous ruling regarding community consent was controlling, therefore it dismissed the second community consent case. No appeal was taken from this second case. On June 13, 1994, the Eighth Circuit Court of Appeals rules in favor of the Compact Commission and the State appealed the case to the United States Supreme Court. On November 7, 1994, the United States Supreme Court denied certiorari.

NOTICE OF INTENT TO DENY

On January 22, 1993 the directors of the Nebraska Department of Health and the Nebraska Department of Environmental Quality issued a notice of intent to deny the license application. The basis for this action was Nebraska Rules and Regulations dealing with surface water at the site. Both departments have regulations which require that a site be well drained and free of areas of frequent ponding or flooding.

An Administrative hearing was requested by US Ecology. A public hearing was held on the Notice of Intent to Deny the License on March 17, 1993, in Naper, Nebraska. A contested case hearing was scheduled by the Department of Environmental Quality. In August 1993, US Ecology reconfigured the site and the Notice of Intent to Deny was dismissed by both agencies.

The Governor was not apart of the technical licensing review and did not instruct, order or a participate in the decision to issue the notice of intent to deny the license.

ACCESS TO DISPOSAL AT BARNWELL, SOUTH CAROLINA

In November 1992, our compact entered into an agreement with the Southeast Compact for access to the Barnwell facility through June 30, 1994. As a part of that agreement, our compact agreed to terms which allowed the Southeast Compact the ability to terminate access to the Barnwell facility if it determines that an overt action has been taken by a compact region, designated host state within the compact region or unaffiliated state, which the Southeast Compact determines substantially impedes the state or regions progress in fulfilling its responsibilities for providing, either by itself or in cooperation with other states, disposal of its low-level radioactive waste.

On January 21, 1993, a letter was written to our compact by the Southeast Compact asking for information concerning Nebraska's activities and expressing concern over recent events in Nebraska. About this time we arranged to meet and met with officials from our compact, the developer and generators to discuss both the notice of intent to deny the license and the community consent issue. On Feb. 20, 1993, meeting took place with state and compact officials in which the compact refused to make a joint presentation with the state or even inform the state of what they were going to say to the SE Compact.

The Southeast Compact Import Policy Committee met on Feb. 24, 1993, in Atlanta. The Compact informs the Southeast Compact that Nebraska was to blame for delays and notice of intent to deny. Another meeting with the Southeast Compact took place in April 1993, in which the compact voted to deny the entire Central Interstate Compact access to Barnwell.

After a long series of meetings with representatives of the compact, major generators and state officials, a plan to regain access to the Barnwell facility was developed and presented to the Southeast Compact in June of 1993. This plan contained a contingency plan if the license application is denied and while it assumed for the purposes of the plan that Nebraska is the current host state, it in no way volunteers Nebraska or automatically assumed that Nebraska will be the host state in the future. Nebraska's duties as host state will be consistent with Article V of the compact laws for our compact. In October of 1993, after a series of meetings with the Southeast Compact, access was restored to Barnwell.

COMMISSIONER APPOINTMENTS

Between 1991 and 1993, each of the member states of the Compact passed legislation agreeing to amend the Compact to allow the host state (Nebraska) to seat two voting and one local non-voting representative on the Compact Commission. Kansas attached a paragraph to their legislation stating that their legislation did not take effect until a facility was licensed in Kansas. Nebraska statute stated that the selection of the local non-voting commissioner was to take place upon submission of a license application (July 27, 1990) or on March 22, 1991, whichever occurred later.

Late 1993, and early 1994, discussions were taking place concerning how the communications surrounding the project could be improved. In January, 1994, the Kansas Commissioners circulated a memo in which they suggested that one of the possible steps to take would to be to seat the local, non-voting member of the Commission. The Governor responded to this suggestion positively and said that we would get back to them soon on this issue. In October and November 1994, we made it known to the Commission that we were going to appoint the second voting and local non-voting commissioners. The Commission indicated that they were going to oppose this because Kansas did not have the amendments in effect and until Nebraska licensed a facility and the amendments were ratified, Nebraska could not seat the additional commissioners.

The Governor on December 7, 1994, appointed the 2nd commissioner and local non-voting commissioner. On December 8, 1994, the Compact voted 4-0-1 to not seat the 2nd commissioner and local non-voting commissioner. On February 3, 1995, the state filed a lawsuit in the Federal District Court alleging that we had the right under the current compact amendments to have additional commissioners. The Federal Court on October 23, 1995 ruled that the Compact amendments were not in effect and that there had been no enforceable agreement among the States to compel the Compact to seat the commissioners. Nebraska elected not to appeal the case. If the Compact Amendments were not in effect, the shared liability worked on and agreed to by the states was not in effect. The Governor then moved to have other states to proceed with ratification by supporting measures to stop the use of the facility until ratification of the amendments occurs. This was accomplished through the passage of LB 1201 in 1996.

REBATE FUNDS

The United States Department of Energy (DOE) made funds available to help with the licensing process for low-level waste disposal facilities. These funds came from charges assessed on the disposal of low-level waste in commercial disposal facilities and the funds were to be sent back to the States and Compacts based on the amounts that the generators in that region had contributed into the fund. To get money from these "rebate funds", States and Compacts had to meet certain deadlines and provide for disposal of low-level waste. The last of these funds to be returned were impounded for a time by DOE, because none of the states or compacts had licensed new disposal facilities. The states and compacts argued that they were entitled to the entire amount because they had provided for disposal through contracts with existing facilities. DOE decided to split the baby, sending states and compacts half of the money they would have received had new disposal facilities been constructed and returning the rest of the funds to the generators.

In early September of 1994, the Commission received over $920,000 from DOE in "Rebate Funds". At that time the Commission's Rule No. 4 required that the Commission turn rebate funds over to the host state upon request of the host state. DEQ wrote several letters demanding the money. On December 8, 1994, the Commission met and voted 4-1-0 to keep the rebate money. The State on February 3, 1995 ,filed a suit in the Federal District Court challenging the Compact's action of keeping the funds in violation of their own rules. Settlement was reached by the parties and the petition and counter claims were dismissed. The settlement included that the rebate funds would be divided equally by the parties, that the State would continue to use its rebate funds without prior approval by the Commission, that the State could apply to the Commission for the use of the Commission funds, that the challenge to State expenditures by Oklahoma would be dismissed, that the Commission would provide more funds to accelerate the licensing process, and that the Commission would provide a $1,000,000 guaranty to assure the State is reimbursed for license review costs.

LICENSE SCHEDULE

Although it took US Ecology taking five years (July 1990-July 1995) to submit all of the paper work, the Compact got anxious to have a decision from the state only a few months after the “final documents” were filed with the state. The Commission developed a plan to push the state and started talking at the November, 1995, FRC (Facility Review Committee) about adopting a schedule of its own for the state finishing the license review and issuing a draft license. The State continued with its review of the license and met several times with the Commission and its staff along with the developer and major generators to explain the license review process and estimates as to how much longer the review would take. The Commission, not being satisfied, pressed on with its own plans for a schedule and held a special hearing. Despite claiming the need for quick action, the Commission itself took almost 11 months to adopt a schedule (Nov. 15, 1995- Sept. 30, 1996). The State then filed an action in federal court challenging the Commission’s action. The matter is currently under litigation.

US ECOLOGY SUIT

US Ecology wants to fill in a wetland located on the reconfigured site before a licensing decision is made by the State (Note how this fits in with above action by the Commission-Commission wants a decision right away- US Ecology wants no decision until they take care of a problem). The State informed US Ecology that pursuant to its regulations that no construction activity can take place until a license is issued and that filing the wetland would be construction activity. On February 4, 1997, US Ecology obtained Commission approval to sue state so that they can fill the wetland. The matter is currently under litigation in state court.

EXPORTS AND IMPORTS

In the summer of 1997, the Nebraska Commissioners exercised Nebraska’s rights under the compact law to veto the exportation of waste out of the Compact region. The Commission responded by stating that Nebraska did not have the right to veto exports and if it did have the right, it did not meet the requirements under the law to exercise such right and approved the exportation of waste. Nebraska then sued in federal court to protect not only its right to veto exports but also its right to veto imports which was also would be abolished under the Commission’s reasoning. The matter is currently under litigation.

(Two related questions-There is nothing in the compact law that specifically gives the Compact Commission the authority to charge fees for allowing waste to be exported out of the region. There is also a question if this compact has any authority over federal waste. Both of these issues have been brought to the attention of the Commission. The Commission believes it has authority to charge fees under its general powers and is considering a declaratory action at some future point on the federal waste issue. )

[Presented by Steve Moeller, Esq., of the Governor's Policy Research Office, to the Natural Resource Committee of Nebraska Legislature at its Interim Hearing held the Fall of 1998.]