Before we get into a discussion of the Host State's Authority with regard to importation and exportation of waste from the region, it is important to know what the pertinent provisions of the Central Interstate Low-Level Radioactive Waste Compact statute are.
Article II Definitions
As used in this compact, unless the context clearly requires a different construction:(f) Host state means any party state in which a regional facility is situated or is being developed;
(k) Person means any individual, corporation, business enterprise, or other legal entity, either public or private;
Article III Rights and Obligations
(b) To the extent authorized by federal law and host state law, a host state shall regulate and license any regional facility within its borders and ensure the extended care of such facility;(f) Each party state has the right to rely on the good faith performance of each other party state.
(g) 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; and
4. To transport waste from the site at which it is generated, except to a regional facility.
Article IV The Commission
(b) Each commission member shall be entitled to one vote. Unless provided otherwise herein, no action of the commission shall be binding unless a majority of the total membership casts its vote in the affirmative.(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;
Article IX Severability and Construction
The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision of this compact is declared by a court of competent jurisdiction to be contrary to the Constitution of any participating state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If any provision of this compact shall be held contrary to the Constitution of any state participating therein, the compact shall remain in full force and effect as to the state affected as to all severable matters. The provisions of this compact shall be liberally construed to give effect to the purpose thereof.
The following links will allow you a first hand look at the legal opinions being discussed below. The Discussion below deals mainly with the inconsistencies between the two legal opinions proffered by the Central Interstate Commission's legal counsel, Alan E. Peterson, Esq.Opinion on Host State Veto Power Over Importation of Waste
Opinion on Legal Validity of 1997-1998 Waste Export Permits
The Boyd County Monitoring Committee's legal counsel, Patricia A. Knapp, Esq., has issued an opinion on the import/export issue, also.
Since the beginning of Nebraska's association with the Central Interstate LLRW Commission (CIC), and most certainly since Nebraska became saddled with host state responsibilities, the right to veto the importation of waste generated outside of the compact region or the exportation of waste generated within the compact region has been promoted as a major control for the host state. That veto power was for years touted as the fail-safe mechanism by which the host state could ensure that she was not put upon by the majority of the other party states.Now push has come to shove, and the tune has changed. According to the legal counsel for the CIC, the host state does not have the control once proclaimed. According to the legal counsel for the CIC, the host state has only the control that the CIC deems to allow.
One of the first things to note about these purported and pretended legal opinions, is that no where is any outside authority or case law cited in support of the espoused position. That's an odd feature in a legal opinion, in and of itself. Further, the two opinions appear to be inconsistent with one anohter. Legal counsel for the CIC engages in a curious game of semantics in discussing how and why the host state does not have a veto authority now, but could or might have such authority in the future, or under different circumstance. If you have not done so, I encourage you to read the opinions for yourself before you continue reading this Discussion.
It is argued in the Opinion on Host State Veto Power Over Importation of Waste, that "it is a logical impossibility" for importation of waste to occur without the Commission holding a vote on the matter, and therefore, without the host state having a chance to veto such importation of waste. The bases of that argument are that:
(1) Article IV(m)(6), "expressly covers 'agreements with any person for the importation of waste into the region' and 'Such authorization to import...waste requires the approval of the Commission, including the affirmative vote of any host state which may be affected.'" [Peterson's Opinion on Importation, p. 2]
(2) Article III(g)(1) and (2), "expressly make unlawful any person's attempt to deposit or 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. And, of course, before it can be deposited at our site from a source outside the Compact, it would have to be imported." [Peterson's Opinion on Importation, p.2; Emphasis in original.]The opinion goes on to explain that therefore, "in every case where a non-compact state wanted to get permission to use our site, it would first have to go to the Commission to get the Commission to agree to permit the importation. That is the opportunity for the veto, and it could not be circumvented." [Peterson's Opinion on Importation, p. 2; Emphasis in original.]
Finally, it is asserted that, "Nebraska will have a veto power when it is the host of the regional facility..." [Peterson's Opinion on Importation, p. 2] The qualification, "when it is the host of the regional facility," is contrary to the definition of "host state" in the Compact statute. According to that definition, "host state means a party state in which a regional facility is situated or is being developed." [Emphasis supplied.]
The next opinion argues the opposite side of the coin, citing the exact same sections of the Compact statute. This may seem queer, but it's true. Once again, if you have not read the actual legal opinions, please, do so now.
It is argued in Opinion on Validity of 1997-1998 Export Permits that "the export permit applications voted on... are not covered by the language of Article IV(m)(6)." [Peterson's Opinion on Validity of Export Permits, p. 2] That argument goes, "Nebraska did not show how it 'may be affected.' But even more conclusively, those export permits are covered by a separate provision of the Compact, Article III(g)..." [Peterson's Opinion on Validity of Export Permits, p. 2] However, only Article III(g) paragraph (3) is quoted. The Opinion further asserts that, "... III(g)(3) does not provide that any affected host state's affirmative vote is required to authorize an export from 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." [Peterson's Opinion on Validity of Export Permits, p. 2; Emphasis supplied.]
The Summary section of Opinion on Validity of 1997-1998 Export Permits concludes, "The veto power applies, just as Artcile 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." [Peterson's Opinion on Validity of Export Permits, p. 3; Emphasis supplied.] [* No opening quote in original.]
The inconsistencies between the two Opinions should be fairly obvious at this point. The game of sematics unfolds further as we explore the Analysis section of the Opinion on Validity of 1997-1998 Export Permits.
There is much ado made of the phrase may be affected, contained in the Article IV(m)(6) provision requiring the affirmative vote of any host state which may be affected. About such phrase, CIC's legal counsel has these comments, "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...." [Peterson's Opinion on Validity of Export Permits, p. 4] It is asserted that, "Nebraska must show, in my opinion, a manner in which the host state 'may be affected' by the proposed agreement...." [Peterson's Opinion on Validity of Export Permits, p. 4] It is submitted that an argument can be made that the qualifying phrase "may be affected" has to do with a situation where there might be more than one host state. That is, a situation wherein one state has an operating disposal site and another state is in the process of developing a site. Under such circumstances both states would be host states by the statutory definition of "host state." However, one host state may be affected, and the other host state may not be affected by a decision to import waste to or export waste from the region.
CIC's legal counsel states that, "One must strictly read the language for what it actually says, particularly since a single state veto is such a draconian remedy." [Peterson's Opinion on Validity of Export Permits, p. 3] CIC's legal counsel appears to believe that the Compact statute should be strictly contrued when it suits the CIC's fancy. Unfortunately, this approach ignores Article IX of the Compact. The final sentence of Article IX is, "The provisions of this compact shall be liberally construed to give effect to the purpose thereof."
The veto power found in Article IV(m)(6) is said to be "explicitly limited" to agreements for the right of access to facilities outside the region. It goes on to argue that the export permit applications, the validity of which is subject of the opinion, were "in no sense proposed agreements for the right of access to facilities outside the region..." [Peterson's Opinion on Validity of Export Permits, p. 3] Further, it is asserted, that such agreements for right of access to facilities outside the region, would mean agreements with "the Southeast Compact, if it still had a site, or with South Carolina, which, in fact does now have a site." [Peterson's Opinion on Validity of Export Permits, p. 3]
A few points of fact should be noted here. There exists NO AGREEMENT for the right of access to facilities outside the CIC region for waste generated within the region. The CIC has NO AGREEMENT with:
- The State of South Carolina;
- The disposal facility located at Barnwell, S.C.
and operated by ChemNuclear;- The State of Utah;
- The Northwest LLRW Compact; or
- The disposal facility located at Clive, Utah
and operated by EnviroCare.
Now, let's look at the situation logically. Article III(g) provides that unless authorized it is unlawful for any person to deposit or accept waste not generated within the region at a regional facility or to export from the region waste which is generated within the region. Article IV(m)(6) provides that the commission may enter into agreements for importation of waste to and exportation of waste from the region, and that such authorization to import or export requires the approval of the commission, including the affirmative vote of any host state which may be affected.The legal opinions being discussed here claim in the first instance that the provisions of Article III(g) and Article IV (m)(6) make it "a logical impossibility"that importation of waste from outside the region could possibly take place without the host state having an opportunity to veto such importation. However, in the second instance, the claim is that Article III(g) does not require the affirmative vote of the host state for authorization to export waste, and that since the documents in question are called "export permit applications" and not "agreements for right of access" Article IV(m)(6) simply does not apply.
If under the provisions of Article III(g) and Article IV(m)(6), "...there would always have to be an agreement with the Compact Commission before anybody could deposit waste at our site...." and "...in every case...it would first have to go to the Commission to get the Commission to agree to permit importation...." It should not be too large a leap in logic to then assume that under those same provisions, there would always have to be an agreement with the Compact Commission before anybody could export waste from the region; and, that in every case 'anybody' would first have to go to the Commission to get the Commission to 'agree' to permit exportation.
Let's take another look at Article IV(m)(6), it provides that the commission shall, "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." The phrase "right of access to facilities outside the region" in the first sentence quite clearly provides the antecedent for the word "export" in the second sentence.
The various nuclear power utilities (Major Generators) of the regions [These would be the person.] submitted applications [These would be the agreements.] seeking authorization from the CIC to export from the region waste which was generated within the region. Clearly, a reasonable reading of the Compact statutes would indicate that this is exactly the set of circumstances over which the veto power would apply. The "export permit application" is an AGREEMENT between the CIC and the waste generator submitting the application seeking authorization for that generator to export waste, which necessarily would require the right of access to facilities outside the region. It is ludicrous to assert that because the document in question was not labeled "agreement for right of access," the host state's veto power does not exist.
The provisions of Article III(g) and Article IV(m)(6) plainly must be read together. And, those provisions explicitly indicate that authorization from the CIC is required for any person to import waste which is not generated within the region or export waste which is generated within the region, and such authorization requires the affirmative vote of the host state which may be affected.
Yes, Mr. Peterson, the veto power is a draconian remedy; any veto power is and necessarily must be. For a veto power to have any meaning it must be unilateral; a no vote by a host state on authorization to import or export must be accepted as a veto, irrespective of the reason the host state feels it is affected. If the veto power in question here is subject to the whim and fancy of the CIC to determine whether the host state is "affected", then that veto power is of no value whatsoever.