Telecopy and U.S. mail
Central Interstate Low-Level
Radioactive Waste Commission
Ste 530 1033 0 Street
Lincoln NE 68508
Re: Legal validity of 1997-1998 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.)
Dear Commissioners:
You requested at the June 25, 1997 meeting that I consider and give you my opinion on the validity of export permits approved for Wolf Creek and Cimarron at the meeting of the Commission on that date. In the case of each of those two export applications, Nebraska voted against approval and the other four Commissioners voted in favor.
Again, at the meeting on July 16, 1997, additional export permit applications from major generators Nebraska Public Power District, Omaha Public Power District, and three separate Entergy companies were considered. The vote in each of those cases was the same, four votes in favor and Nebraska voting against approval of their export applications. I gave an oral, informal opinion at that meeting that Nebraska could certainly vote against but could not veto such applications. This is a written summary of my opinion that the applications at both meetings were validly passed four to one, and that the permits were legally approved and are now in effect.
SUMMARY
After research and study of the facts and the Compact provisions, I concluded that all of those seven export applications by major generators were
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validly approved and that Nebraska did not have a veto power under Article IV(m)(6).
That provision, offered by Nebraska as its basis for believing it could veto the applications, reads as follows:
IV(m) The Commission shall: ...
(6) Notwithstanding 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 ....
It is my opinion that the export permit applications voted on both at the June 25, 1997 meeting and at the July 16, 1997 meeting are not covered by the language of Article IV(m) (6). For one thing, Nebraska did not show how it “may be affected.” But even more conclusively, those export permits are covered by a separate provision in the Compact, Article III(g), which provides that:
III(g). Unless authorized by the Commission, it shall be unlawful, after January 1, 1986, for any person: . . .
(3) To export from the region, waste which is generated within the region. . .The above-described provision III(g)(3) does not provide that any affected host state's affirmative vote is required to authorize an export from the region of waste generated within the region. While authorization is required for any such exporter, the agreement to allow export can be approved by a simple majority vote of the Commissioners. As stated in Article IV(b), “Each Commission member shall be entitled to one vote. Unless provided herein, no action of the Commission shall be binding unless a majority of the total membership casts its vote in the affirmative.” Thus, a minimum of three votes would be required under the current makeup of the Commission to approve an export permit. Each of the export permit applications received four approving votes, and therefore they are all
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approved. The veto power applies, just as Article IV(m)(6) says, to only two situations: (1) agreements with any person for the importation of waste into the region, and (2) agreements with any person for the right of access to facilities outside the region. . . .” Mere export applications simply are not covered.
ANALYSIS
There are thus two independent reasons why the veto power of any host state does not apply to the seven export applications involved.
I. Scope of the veto power.
First of all, the veto power found in IV(m) (6) is explicitly limited by the first sentence of that subparagraph, which refers to “authority to enter into agreements with any person. . .for the right of access to facilities outside the region for waste generated within the region.” (Emphasis added.) That language in the first sentence quite clearly provides the antecedent for the words “Such authorization” in the second sentence, which reads in full, “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.” I believe that the Central Interstate Commission can enter into agreements for access to outside facilities between itself and any out-of-region facility only with any affected host state’s approval. But such an agreement was not being considered in any of the votes in question. Access to outside-the-region facilities was not involved.
The export permit applications which were before you in June and again in July were in no sense proposed agreements for the right of access to facilities outside the region for waste generated within the region. “Such authorization,” means the authorization for the Central Interstate Commission to enter into agreements with, for example, the Southeast Compact, if it still had a site, or with South Carolina, which, in fact, does now have a site. If that access agreement were on the agenda, then, according to the Compact, if Nebraska could show that it may affect Nebraska, then it would have a veto power. But that is not what was before you. It was not an agreement for access to South Carolina or any other state. It was solely an application for a permit to export. The export of the waste is not a proposed agreement with South Carolina or Envirocare or anybody else. So it did not come within the veto power of a host state. One must strictly read the language for what it actually says, particularly since a single state veto is such a draconian remedy. Simply put, the veto power did not apply to the export permit applications because they were not proposed access agreements.
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II. Host state must show potential effect.
Secondly, the veto power is only given to “Any host state which may be affected.” Within the language of the Compact, Nebraska is assumed for now.to be the host state, even though so far what the state is hosting is only a site licensing procedure. But to have veto power, the host state must show a manner in which it really is or may be affected by a proposed access agreement, assuming that is what the resolutions voted on call for (in this case, they didn't, but for the sake of analysis, assume they did).. And when Article IV(m)(6) says “may be,” that's a liberalizing, broadening term. So that perhaps even a somewhat contingent effect on the host state could be utilized, if, in fact, we were talking about an agreement for access, rather than just an export permit. But Nebraska never articulated any such effect on itself of these applications. They were simply being held hostage to various broad dissatisfactions of Nebraska's Commissioner.
So, the second reason why Nebraska could not validly veto these prqposed permits is that, despite repeated requests by the remaining Commissioners, Nebraska failed to articulate a manner in which Nebraska “may be affected” by these particular export proposals. The four to one votes on June 25th and July 16th both properly and legally authorized the exports.
Before the votes on July 16, 1997, Nebraska's Alternate Commissioner Zeisler was given a request and every opportunity to state any additional rationale or reasons for the host state's intention to veto exports by the major generators. He forthrightly stated two things: number one, he would so vote because he believes the host state has veto power; secondly, he said he would rely on the reasons set forth by Commissioner Hayden previously. He did not happen to have the transcript before him, and did not try to recite those, which is perfectly understandable. The important point was that no additional rationale was set forth, other than the belief of Nebraska that it has the raw power to veto and can use it any way it likes. But that is not the case, under the language of Article IV(m)(6). Nebraska must show, in my opinion, a manner in which the host state “may be affected” by the proposed agreement, even assuming that export permits, per se, were within the scope of this paragraph, which, as previously noted, they are not. The transcript of Commissioner Hayden's statement on June 25, 1997, of a rationale shows no such effect on the host state, not even a contingent one.
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III. Sources
I will list the sources and materials examined.
First and foremost is the language of the Compact itself, as originally passed. No change to the critical language was made in the new version that is not yet effective, but which was repassed by the five states, with Kansas having a later operative date. So the states have each twice agreed to that language, though the second version is not yet in effect as a new Compact. The veto power remains limited by the language cited.
Secondly, I have looked at the specific applications filed by Cimarron, Wolf Creek, NPPD, OPPD, and the Entergy companies. None of them is an “access agreement” in form or content. Each is a “Form A Application for Non-Federal Facilities to Export Low-Level Radioactive Waste from the Central Interstate Low-Level Radioactive Waste Compact Region.”
Third, I have had transcribed the statement of purpose by Commissioner Hayden from the meeting of June 25, 1997, meeting. I requested every place where he was setting forth the rationale to see whether I could find a way in which he stated an effect of the specific export applications on the host state. At no time did he articulate any such effect, but rather only that he was using what he regarded as a veto power to lever from the Compact things that he said he wanted for the State of Nebraska. I do not think the veto power is quite that raw or unlimited, but rather any host state needs to show how it may be affected by the approval of an access agreement outside the Compact region.
Fourth, I also looked at relevant parts of the transcripts of meetings on November 16, 1992 and January 24, 1993. Those two meetings, the first by phone call and the second the mid-year meeting of '93, in fact include approvals of agreements with the Southeast Compact for access. In both of those, the Nebraska Commissioner voted yes and, in fact, made the motion for approval in one. I considered those as illustrative of the kind of votes where the host state power of veto does, in my opinion, potentially reside. In those two meetings, agreements with the Southeast Compact for access to facilities were approved. They could have been vetoed, assuming Nebraska could show they may have affected Nebraska.
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IV. Conclusion.
All the seven referenced major generators' import permits were validly approved by votes of four to one, and are currently in effect.
Very truly yours,
Alan E. Peterson
For the Firm
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