Loren Sieh, Chairman
Boyd County Monitoring Committee

RE: Host state veto power over importation of low-level radioactive waste into the host state

Dear Loren:

As you and I discussed, I felt a written response to Alan Peterson's opinions of July 21, 1997, regarding the host state's veto power over importation of out-of-compact waste would be appropriate. As I stated, I found the ad hominem attack on me in the second opinion disturbing, but not surprising given the glaring inconsistency in Peterson's reasoning on the export and the import provisions. It is an unfortunate tendency of many in my profession to belittle the advocate when they cannot counter the argument. But Peterson's motives aside, his "analysis" does not convince me that Nebraska has veto power over imports.

I have attached copies of Peterson's two opinions as Exhibits A and B. Exhibit A is his opinion that the host state does not have veto power over exports; Exhibit B is his opinion that the host state does have veto power over imports. I ask that the Monitoring Committee not distribute this letter without Peterson's attached. I feel quite strongly that those who may be interested in this issue should be able to read and judge the arguments for themselves.

The Low-Level Waste Policy Act states that "after January 1, 1986, any such compact may restrict the use of the regional disposal facilities under the compact to the disposal of low level radioactive waste generated within the region." (emphasis added) The Act does not mandate that waste be excluded from a compact region; it allows the states to determine by the terms of their individual compacts to what extent out-of-compact waste will be excluded.

Article III(g) of the Central Interstate Compact states:

"Unless authorized by the commission, it shall be unlawful after January 1, 1986, for any person:
(1) To deposit at a regional facility, waste not generated within the region;
(2) To accept, at a regional facility, waste not generated within the region;
(3) To export from the region, waste which is generated within the region...."

Article IV(m)(6) of the Central Interstate Compact states:

"The Commission shall: [N]otwithstanding any other provision of this compact, have the authority to enter into agreements with any person for the importation of waste into the region and for the right of access to facilities outside the region for waste generated within the region. Such authorization to import or export waste requires the approval of the commission, including the affirmative vote of any host state which may be affected." (emphasis added)

Peterson's position: An Article III(g)(3) "authorization" to export by the Commission does not constitute an "agreement" for purposes of Article IV(m)(6). (Exhibit A, pp. 2-3)

Knapp's position: If an Article III(g)(3) "authorization" to export by the Commission does not constitute an "agreement" for purposes of Article IV(m)(6), then an Article III(g)(1) and (2) "authorization" to import by the Commission does not constitute an "agreement" for purposes of Article IV(m)(6).

On June 25, 1997, Wolf Creek Nuclear Operating Corporation received Article III(g)(3) authorization to export waste generated within this compact region to Chem-Nuclear's facility in Barnwell, South Carolina; the Central Interstate Compact Commission does not have an Article IV(m)(6) "agreement" with any person granting Wolf Creek the "right of access" to the South Carolina facility. Also on June 25, 1997, Cimarron Corporation received Article III(g)(3) authorization to export waste generated within this compact region to Envirocare's facility in Clive, Utah; the Central Interstate Compact Commission does not have an Article IV(m)(6) "agreement" with any person granting Cimarron the "right of access" to the Utah facility. Dozens of other generators have received Article III(g)(3) authorization to export waste generated within this compact region to out-of-compact facilities over the past several years; with the exception of those exports that went to Barnwell while South Carolina was still a member of the Southeast Compact, the Central Interstate Compact Commission has not had an Article IV(m)(6) "agreement" with any person granting any of those generators the "right of access" to the receiving facilities.

The Commission's position: An Article IV(m)(6) "agreement" is not a necessary prerequisite to a valid Article III(g) "authorization" to export.

Knapp's position: If an Article IV(m)(6) "agreement" is not a necessary prerequisite to a valid Article III(g)(3) "authorization" to export, then an Article IV(m)(6) "agreement" is not a necessary prerequisite to a valid Article III(g)(1) and (2) "authorization" to import.

Peterson's conclusion: "...Compact Article III(g)(1) and (2) expressly make unlawful any person's attempt to deposit or to accept at the host state's regional facility waste not generated within the region. That means that there would always have to be an agreement with the Compact Commission before anybody could deposit waste at our site." (Exhibit B, p. 2; emphasis in original)

Knapp's conclusion: If Article III(g)(3) does not require an "agreement" prior to authorization to export, then Article III(g)(1) and (2) do not require an "agreement" prior to authorization to import. In other words, "authorization" to import could be granted without there ever being a vote on an Article IV(m)(6) "agreement," meaning imports could occur without Nebraska ever being allowed to exercise its veto power.

I stand by the concerns I raised when I first heard Peterson's "opinion" at the July 16, 1997, telephone conference meeting of the CIC. If one accepts Peterson's position on Article III(g)(3) exports, then it undeniably and inevitably follows that Nebraska does not have veto power over an individual generator's application for Article III(g)(1) authorization to import out-of-compact waste to the proposed Boyd County facility.

If you or any of the Monitoring Committee members have questions, as always feel free to call.

Sincerely,

Patricia A. Knapp

Attachments:

Exhibit A: Letter from Alan E. Peterson to Central Interstate Low-Level Radioactive Waste Commission dated July 21, 1997, regarding "Legal validity of 1997-98 low-level radioactive waste export permits for major generators, Wolf Creek Nuclear Operating Corporation of Kansas, Cimarron Corporation, Omaha Public Power District, Nebraska Public Power District, Entergy River Bend Station (La.), Entergy Arkansas Nuclear One (Ark.), and Entergy Waterford 3 (La.)