Lincoln Journal-Star March 9, 1999
Judge: State may have violated waste pact
BY BUTCH MABIN
A federal judge Monday gave credence to a nuclear waste commission claim that state officials dragged their feet in reviewing an application to build a radioactive waste warehouse in Nebraska.U.S. District Judge Richard G. Kopf granted the Central Interstate Low-Level Radioactive Waste Commission's request to temporarily restrain the state from holding a review hearing of its December decision to deny a license to build the facility in Boyd County.
"The Commission asserts that the "contested case proceeding' is a continuation of the sham licensing process that Nebraska has perpetrated upon the member states of the Compact," Kopf wrote. "This allegation is not fanciful." He continued: "In fact, the Commission has a very strong argument that the State of Nebraska and others engaged in, and continues to engage in, a purposeful violation of the Compact." Gov. Mike Johanns reviewed the temporary restraining order Monday.
"Of course, the state of Nebraska will fully comply," he said. "We will continue to defend the interests of Nebraska in this case." Nebraska officials announced Dec. 21 they would not grant licenses for U.S. Ecology to build and operate the facility. The warehouse was to hold waste generated in Nebraska, Kansas, Arkansas, Oklahoma and Louisiana. Those states comprise the Central Interstate Low-Level Radioactive Waste Compact region.
About 10 days after the state announced its decision, a group of utilities sued Nebraska in federal court to get back some of the $91 million they spent on pre-licensing activities. The Radioactive Waste Commission later joined the lawsuit as a plaintiff.
"We're not challenging the decision (to deny)," Gary Williams, a spokesman for one of the plaintiff utilities, Omaha Public Power District, said in December.
"What we're saying is the process dragged out longer that it needed and that extended period of time wound up costing utilities and their customers substantially more money than they should have paid to support the process." Other plaintiffs include Entergy Arkansas Inc., Entergy Gulf States Inc., Entergy Louisiana Inc., and Wolf Creek Nuclear Operating Corp.
To undercut a potential state argument that they had not pursued all their state remedies, the utilities and commission sought to challenge the license denial in a state administrative appeal called a "contested case proceeding." But the companies, commission and the commission's contractor, U.S. Ecology, also held they would not get a fair hearing in the proceeding and asked Kopf to restrain Nebraska from holding the review.
Kopf noted Monday that state Department of Environmental Quality and Health and Human Services staff members -- who the plaintiffs alleged acted in bad faith throughout the licensing process -- would play some influence on the administrative appeal decision.
The judge also agreed to restrain the state from using any funds it received from the plaintiffs as part of the licensing process. The utilities paid the state the money to review the applications. The temporary restraining order will expire in 10 days.
Kopf scheduled a hearing on a preliminary injunction for March 16.