Lincoln Journal Star, April 13, 2000
State Tried to Hinder Waste Site, Court Rules
JOURNAL STAR WRITERS
There appears to be evidence that Nebraska officials tried to submarine plans to build a storage site for radioactive waste in the state, a federal appeals court ruled Wednesday.
and The Associated PressThe ruling stemmed from a lawsuit accusing Nebraska of trying to block plans to build a regional storage site for low-level radioactive waste in the northeast part of the state.
"There is sufficient 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," wrote Judge Diane Murphy for a three-judge panel of the 8th U.S. Circuit Court of Appeals.
The ruling affirmed an earlier decision by U.S. District Judge Richard Kopf of Lincoln.
The evidence that Nebraska was biased against licensing any low-level nuclear waste disposal facility included "continuing interference by former Gov. Ben Nelson in the licensing process," the appeals court wrote.
"Nelson became governor in January 1991 after promising voters in Boyd County that "If I am elected governor, it is not likely that there will be a nuclear dump in Boyd County or in Nebraska,'" the court wrote.
The opinion also referred to an e-mail message from an aide to her superiors in the governor's office that the Boyd County Local Monitoring Committee, the state-funded community group opposed to the facility, could "be used by the governor to do things he cannot do directly." Deputy Attorney General Steve Grasz said Wednesday the political factors mentioned by the court "tainted the licensing process" during Nelson's administration.
"The attorney general's office cannot undo what was done by the Nelson administration or change the facts of this case," Grasz said. "Our main objective remains one of raising legal defenses in an effort to limit the potential liability for Nebraska taxpayers." Nelson, who left office in 1998 after two terms and is now running for the Democratic nomination for U.S. Senate, could not be reached for immediate comment Wednesday.
In his earlier ruling, Kopf denied a motion to dismiss a 1998 lawsuit filed against Nebraska by several utility companies and four other members of the Central Interstate Low-Level Radioactive Waste Compact.
Nebraska argued it is protected from such lawsuits under the U.S. Constitution's 11th Amendment, which gives states sovereign immunity from most lawsuits seeking monetary damages.
But Kopf said the state gave up its claim to sovereign immunity when it joined the compact with Arkansas, Kansas, Louisiana and Oklahoma.
The lawsuit contends Nebraska did not act in good faith during the licensing process and allowed "political interference with the licensing review thereby tainting it illegally." The appeals court agreed, and said Nebraska could not block the action.
The case is part of a running battle over several issues between Nebraska and other members of the compact.
The compact had its genesis in the 1970s, when Nevada, Washington and South Carolina grew tired of accepting all of the nation's low-level radioactive waste.
Congress told states in 1980 to either build their own waste sites or join regional groups to dispose of the waste. Nebraska joined the Central Interstate compact; in 1987, the other four states voted to put the waste site in Nebraska.
The fight began soon after, with both sides wrestling in court on several issues.
The compact wants to build a bunker near the South Dakota border to hold such items as contaminated tools and clothing from nuclear power plants, hospitals and research centers in the five compact states.
Alan Peterson, an attorney for the compact, hailed Wednesday's ruling.
"I'm sure the commission -- or four-fifths of it -- will be pleased," he said. "Everything Nebraska has filed they have lost -- now it's our turn."