Concerned Citizens of Nemaha County, Inc. v. Dennis Grams

Concerned Citizens of Nemaha County, a nonprofit corporation v. Dennis Grams, and the Nebraska Department of Environmental Control

District Court of Lancaster County, Nebraska, Docket 449, Page 7

Concerned Citizens of Nemaha County, a nonprofit corporation, filed for temporary and permanent injunctions against Dennis Grams, the Director of the Nebraska Department of Environmental Control (NDEC), and the NDEC to prevent the termination of the Nemaha County Local Monitoring Committee.

Nebraska law created a local monitoring committee (LMC) for each of three counties under consideration to "host" a low-level radioactive disposal (LLRW) site. The LMC's statutory charge was to "represent the citizens of the proposed site areas and maintain communication with the developer [US Ecology, Inc.] and the department [NDEC] to assure protection of public health and safety and the protection of the air, land, and water resources of the area. It is the intent of the Legislature that the local monitoring committees provide significant input concerning local needs and resources regarding all relevant aspects of site selection and, after a site is selected, that the remaining local monitoring committee provide significant input concerning local needs and resources regarding all aspects of the construction, operation, monitoring, closure, and custodial care of the facility."

For background information, the events that lead to the filing of the injunction action are as follows:

January 1989, US Ecology, Inc. (USE) named three candidate sites -- one each in Boyd, Nemaha, and Nuckolls counties.
Each site was to be comprehensively characterized, including but not limited to geology, hydrology, local resources, environmental impacts -- there were to be 12 consecutive months of data collection.
April 1989, monitoring committees were established in the three candidate counties.
June 1989, USE began on-site characterization activities.
December 1989, USE announced that Boyd County was its "preferred" site.
January 1990, Dennis Grams sent letters to the Nemaha and Nuckolls LMCs notifying them to wrap up their business within 30 days, and that those LMCs would then cease to exist.
July 1990, USE submitted the first parts of a license application for the Boyd County site.

December 1991, NDEC declared USE's license application 'complete' for purposes of beginning the technical review of such application.

The progression of the above-entitled case is as follows:

January 31, 1990, intitial pleadings requesting temporary and permanent injunctions were filed.
February 21, 1990, hearing was had on the temporary injunction; at that hearing the Nuckolls County LMC was granted intervenor status.
February 21, 1990, Temporary Injunction granted.
April 20, 1990, hearing was had on a motion by Grams/NDEC to reconsider the granting of the temporary injunction.
April 20, 1990, the Court denied the motion to reconsider; the Court stated that if Grams/NDEC wanted the temporary injunction lifted, the proper procedure was to proceed to trial on the issue of a permanent injunction.
September 7 & 28, 1990, hearings were had on the Boyd County LMC's motion to intervene and motion to reconsider; the Court allowed the Boyd County LMC to intervene (that motion was not opposed); however, the Court ruled that the temporary injunction would stand until a final decision was made at trial on the issue of a permanent injunction.
A trial date was set for early 1991; it was continued at the request of the Boyd County LMC.
A new trial date was set for May 6, 1991; once again, it was continued at the request of the Boyd County LMC.
July 29, 1991, hearing was had on Concerned Citizens of Nemaha County's motion to dismiss its action; a pretrial conference was held on that date also.
Concerned Citizens of Nemaha County were dismissed out of the action; however, the Nuckolls County LMC did not dismiss its action at that time.
Some time toward the end of 1991 the matter was resolved without trial.

The upshot of this action was that Concerned Citizens of Nemaha County effectively kept the Nemaha County LMC in existence for approximately a year and a half. During much of such timeframe, work continued at the Nemaha County site and USE held an option to purchase the site. The Nemaha County LMC received no funding during that timeframe, however, the majority of the members of the LMC continued to monitor the activities at the site until work at the site finally ceased, the wells on the site had been properly closed, and the option to purchase the site had expired.

The temporary injunction remained in effect for almost two years because of the refusal on the part of Grams/NDEC and the Boyd County LMC to take the issue to trial. When trial dates were finally set in 1991, the Boyd County LMC consistently sought continuances, thereby effectively denying funding for the Boyd County LMC. However, nothing in this action had any delaying or stalling effect with regard to the Central Interstate LLRW Compact's project. USE continued to gather site specific data, worked on and submitted its license application during this time period; the NDEC began the review of the license application during this time period.

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