April 12, 2000
Omaha World Herald
Waste-Site Ruling Is Upheld
BY JULIE ANDERSON
A federal appeals court ruling Wednesday brought Nebraska one step closer to trial over whether it needs to repay millions spent by utilities before the state rejected a license for a low-level radioactive waste warehouse planned for Boyd County.
WORLD-HERALD STAFF WRITERThe three-judge panel of the 8th U.S. Court of Appeals agreed with U.S. District Court Judge Richard Kopf in saying that there appeared to be evidence that Nebraska officials interfered with the license sought by a multistate commission.
The panel also said Nebraska can be sued because it gave up its sovereign immunity when it joined the commission.
The ruling Wednesday resolved one of two pending appeals by Nebraska in the lawsuit. Three utilities, the Central Interstate Low-Level Radioactive Waste Commission and the project developer filed the lawsuit against Nebraska in December 1998, alleging that the licensing process was tainted and seeking to recover money spent on the process.
Kopf has said Nebraska could be forced to pay nearly $100 million if it eventually loses the lawsuit.
In a statement, the Nebraska Attorney General's Office said it was clear the appeals court panel believed that political factors had tainted the licensing process in former Gov. Ben Nelson's administration.
"The Attorney General's Office cannot undo what was done by the Nelson administration or change the facts in the case," the statement says. "Our objective remains one of raising legal defenses in an effort to limit the potential legal liability for Nebraska taxpayers in this case. For that purpose, we have employed expert outside legal counsel to assist us in the defense of this lawsuit."
Attorney General Don Stenberg, a Republican, and Nelson, a Democrat, are both candidates for U.S. Senate and could face each other in the general election.
The lawsuit alleged that Nebraska tainted the license review and filed lawsuits intended largely to slow consideration of the application.
The appeals court, agreeing with Kopf, wrote that there was "evidence of interference in the licensing process by Nebraska's executive branch, delay and excessive expenditures fostered by the state and the denial of the second license application on an apparent pretext."
A spokeswoman for Nelson's campaign for the U.S. Senate said Nelson does not comment on pending litigation.
Officials with the Nebraska Department of Environmental Quality, one of the licensing agencies, have disputed allegations of interference, saying the process was done "validly, professionally and objectively." The agency's director at the time the license was denied said neither the state nor Nelson manipulated the process.
The chairman of the waste commission called the decision significant for the compact.
Michael Henry of Louisiana said the appeals panel's ruling also prevents Nebraska from attempting to spend any commission funds to cover its expenses in the lawsuit.
"We're probably talking a lot of money over the years this is going to drag on," he said.
Nebraska withdrew from the compact last year, nearly two decades after joining.
After Nevada, Washington and South Carolina grew tired of taking all the nation's low-level waste in the 1970s, Congress told the states in 1980 to build their own waste sites or join regional groups to dispose of tools, clothing, resins and other materials from nuclear power plants, hospitals and research centers.
The remaining members of the Central Interstate compact are Louisiana, Oklahoma, Arkansas and Kansas.
Nebraska was selected as host for a disposal facility in 1987. The project developer, US Ecology, picked a spot in Boyd County to build the proposed facility. US Ecology submitted its original license application in 1990.
After the state indicated in 1993 that it would deny the application because of concerns about wetlands on the site, US Ecology redrew the site boundaries and submitted a revised application. The state denied the second application in December 1998, again citing concerns about groundwater and the potential for contamination.
The same month, the Omaha Public Power District and two out-of-state utilities sued Nebraska, saying they wanted the state to pay them back their share of the more than $90 million paid toward the project while state officials reviewed the license application. They later were joined by the commission and the developer.
Kopf said the state gave up its claim to sovereign immunity when it joined the compact, and the appeals court agreed. The panel also upheld Kopf's decision to grant a preliminary injunction prohibiting the state from carrying out the next step in the licensing process: an administrative hearing to review the decision to deny the license.
Steve Seglin, an attorney for US Ecology, said that means that the commission can go forward with its lawsuit and that it has the authority and the ability to enforce its claims against Nebraska.
Alan Peterson, an attorney for the commission, said the second appeal pending before the appeals court should be decided this summer. "We look forward to moving it on to trial.".