MINUTES
(approved June 25, 2003)
CENTRAL INTERSTATE LLRW COMMISSION
MID-YEAR MEETING
WEDNESDAY, JANUARY 22, 2003, 9:00 A.M.
In compliance with Commission Bylaws and Rules, a
meeting notice announcing the date, time, location and agenda availability was
mailed to the interested public January 8, 2003.
The Mid-Year Meeting of the Central Interstate LLRW
Commission was held Wednesday, January 22, 2003, for the purpose of taking
necessary action on meeting minutes, reports, Agreement State Status--NRC
Alternative, Rule 23, Commission Budget Adjustments, USE Budget Adjustments,
Status of Guaranty Fund, KPMG 2001 - 2002 Commission Audit, Low-Level Waste
Forum Membership, Financial Consultant Contract for Calendar Year 2003, and to
take necessary action on all other business to come before the Commission.
The Chair called the meeting to order at
approximately 9:07 a.m. and roll was called.
Responding to the roll call were: Kansas Commissioner, James J.
O’Connell; Oklahoma Commissioner and Commission Chair, Catherine Sharp;
Nebraska Alternate Commissioner, Craig Zeisler; Arkansas Commissioner, Laura
Gilson; and Louisiana Commissioner, Michael Henry.
Also
present were Administrator, Rita Houskie; Secretary, Terry Davis; and the court
reporter.
No members of the public spoke during the general
public comment period.
No
formal panel assembled to discuss the §5.04 US Ecology Contract Review of
Options and Alternatives.
The Chair
asked if there were issues to be discussed on the §5.04 US Ecology Contract
Review of Options and Alternatives. No
issues were presented for discussion.
The Commission received oral reports by the
Commission Administrator, US Ecology, and Legal Counsel. The Host State representative read a letter
into the record written by Nebraska's Special Assistant Attorney General
regarding the state's opposition on two listed agenda items; Agreement State
Status and Rule 23. No reports were heard from the Village of Butte, the Boyd
County Local Monitoring Committee or the Litigation Committee.
A portion of Legal Counsel's report pertained to a
possible conflict of interest. A former
employee of the Cline Williams Law Firm has accepted a position with the Nebraska
Attorney General's office. To satisfy
ethics guidelines and Nebraska's "bright line" rule the Commission
must give consent to the Attorney General's reentry into current litigation for
purposes of monitoring. Discussion
followed among the Commissioners resulting in the following motion:
Motion by Kansas, second by
Louisiana, approve signing off on request regarding conflict of interest issue to
satisfy attorney ethics guidelines and Nebraska's "bright line" rule.
Motion
passed 5-0
The Chair asked Legal Counsel to brief the
Commission on the next agenda item.
Motion (Resolution 1) by Louisiana, second by
Arkansas,
approve the Resolution Regarding N.R.C.
Discussion
followed among the Commissioners and Legal Counsel. Legal counsel representing Entergy and Wolf Creek joined in the
discussion by requesting clarification of an earlier statement made by
Commission's Legal Counsel regarding future strategies and suggested that it be
clearly stated for the record that the resolution does not imply any decision
or obligation with respect to the potential expenditure of the judgment at
issue.
Motion
passed 4-1
The
Chair called for a brief recess at 10:55 a.m.
At approximately 11:20 a.m., the Chair called the meeting back to order.
The Chair stated there was one more item in the
Resolution Regarding N.R.C. that needed clarification. During the discussion period on the
Resolution the Kansas Commissioner had offered amended language that was accepted
by the maker and seconder of the original motion. The amended language resulted in the following action:
Motion by Kansas, second by
Arkansas, to
rescind approval of Resolution 1 and to readopt the Resolution Regarding N.R.C,
with amended language (below - underlined text
inserted)
Motion
passed 4-1
RESOLUTION REGARDING N.R.C. (Amended)
WHEREAS,
the United States District Court for the District of Nebraska has found
Nebraska to have exercised its agreement state regulatory authority in bad faith
towards the Central Interstate Low-Level Radioactive Waste Commission member
states and the United States, in detailed opinions issued September 30, 2002,
which decisions are currently on appeal; and
WHEREAS,
the Central Interstate Low-Level Radioactive Waste Commission is inclined to
pursue and advance the possibility of seeking a license and low-level
radioactive waste disposal regulation from the United States Nuclear Regulatory
Commission for the proposed disposal facility near Butte, Nebraska; and
WHEREAS,
the Central Interstate Low-Level Radioactive Waste Commission desires that
Nebraska continue to be bound to its 30-year responsibility to be the first
host of a Central Interstate Compact disposal facility at Butte, Nebraska, if
said site is licensable; and
WHEREAS,
the active pursuit of the license itself needs to await finalization of the
litigation appeals of the judgment entered against Nebraska, expected to take
place over the next one and a half to three years;
BE
IT RESOLVED that the Chairperson of the Central Interstate Low-Level
Radioactive Waste Commission, with the assistance of counsel as needed, is
authorized to notify the U.S. Nuclear Regulatory Commission and the State of
Nebraska that the Central Interstate Low-Level Radioactive Waste Commission
will seek by petition to have Nebraska’s agreement state status, with
respect to licensing and regulation of low-level radioactive waste disposal
facilities revoked upon the initiative of the Nuclear Regulatory Commission
in accordance with 42 U.S.C. §2021(j)(1); and
BE
IT FURTHER RESOLVED that the NRC’s procedures, policies, and similar
information for such a proceeding be obtained for the use and information of
the Central Interstate Commissioners; and
BE
IT FURTHER RESOLVED that the Nuclear Regulatory Commission be advised that with
regard to any such proceeding for revocation, the request is that such a
procedure not be initiated formally until completion of the federal court
litigation in the so-called “bad faith litigation,” namely Case No. 4:98CV3411
in the United States District Court for the District of Nebraska; and
BE
IT FURTHER RESOLVED that the Central Interstate’s developer, the generators of
low-level radioactive waste within the Central Interstate region, and consultants
for the license application, as well as the public, be invited to comment upon
the proposed approach to the U.S. Nuclear Regulatory Commission at the annual
meeting of this Commission in or about June, 2003, either orally or in writing.
BE
IT FURTHER RESOLVED that the adoption of this resolution, with respect to the
NRC, does not create nor imply any commitment or obligation of any of the funds
that may be recovered as a result of the bad faith lawsuit, in which Judge Kopf
entered his judgment reasonable in the case.
The Chair asked Legal Counsel to brief the
Commissioners on the next agenda items regarding Rule 23 that included
Resolution 2 and Resolution 3.
Motion (Resolution 2) by Kansas, second by
Louisiana, to approve the Resolution Regarding Notice of Alleged
Particular Failures To Comply With Terms of the Compact
Motion
passed 4-1
RESOLUTION
REGARDING NOTICE OF ALLEGED PARTICULAR
FAILURES TO COMPLY WITH TERMS OF THE COMPACT
WHEREAS, the Commission's governing
charter, that being the compact approved by each state and by Congress,
provides in Article VII (copy attached) for withdrawal of a party state in
subsection (d), and also for privileges suspension or membership revocation in
subsection (e): and
WHEREAS, the State of
Nebraska has given its notice of withdrawal effective in August, 2004; and
WHEREAS, the Commission has
previously initiated a proceeding authorized under its own Amended Rule 23
(copy attached) to consider possible sanctions against Nebraska should Nebraska
be found to have failed to comply with the terms of this Compact or to have
failed to fulfill its obligations under this Compact; and
WHEREAS, that Rule 23 proceeding
by agreement of the Commission and of Nebraska has been held pending in status
quo until completion of the trial of the so-called "bad faith"
litigation against Nebraska in the United States District Court for the
District of Nebraska; and
WHEREAS, the litigation now
has progressed through discovery, trial, and decision and Nebraska has filed an
appeal to the United States Court of Appeals for the Eighth Circuit;
IT IS HEREBY RESOLVED that
Nebraska be notified of the following particular complaints and charges, all
being alleged failures to comply with the terms of the Compact and all being
alleged failures to fulfill its obligations thereunder, in the following
specifics:
1. Nebraska failed and refused to perform its compact
obligations in good faith, as it was expressly obligated to do under Article II
(f) of the Compact;
2. Nebraska failed to process the low-level radioactive waste
facility license application of US Ecology, Inc., within a reasonable period
from the time that the completed application was submitted.
3. Nebraska has acted in bad faith by permitting political
interference and influence to pervade its licensing processes and decisions,
its dealings with the Commission, and otherwise acted in bad faith toward its
sister states and the members of the Compact, all as more specifically detailed
in (a) the amended complaint of the Commission in the federal lawsuit above
referred to, particularly in paragraphs 10 to 63 thereof; and (b) as detailed
in findings of fact by the United States District Court for the District of
Nebraska, Chief Judge Richard G. Kopf presiding, in pages 6 to 158 of his
Memorandum and Order of September 30, 2002 dealing with the Commission's claims
against Nebraska, both of which documents are hereby incorporated by reference
as a part of this Resolution;
IT IS FURTHER RESOLVED, and
Nebraska hereby notified, that the Commission expects to receive and may
consider as evidence in this proceeding (1) the testimony of the various
witnesses in the federal trial; (2) sworn deposition testimony of some or all
of those witnesses who testified; (3) the trial exhibits offered by the several
plaintiffs and received in evidence at the trial, and particularly any exhibits
referenced in the two memoranda and orders of The Court dated September 30,
2002; and (4) the two Court decisional memoranda themselves;
IT IS FURTHER RESOLVED, that
Nebraska shall have the opportunity for a written response within sixty (60) days
to offer any written arguments, explanations, or evidence to the Commission and
shall also be provided a special meeting for a hearing shortly thereafter where
it can be heard in regard to the above allegations and charges; thereafter the
Commission shall consider the evidence, deliberate in open session, and make
its decision in open session in regard to Rule 23 and in regard to the issue of
membership revocation under Article VII(E) of the Compact. If the decision should be that Nebraska did
not comply with the terms and obligations it had under the Compact, then the
decision shall include a description of any sanctions to be applied or imposed
under the authority of the Compact or the applicable Rule or both.
Motion (Resolution
3) by Kansas, second by Arkansas, to
approve the Resolution Regarding Rule
23 Proceedings
Motion
passed 4-1
RESOLUTION REGARDING RULE 23 PROCEEDINGS
WHEREAS,
Compact Article VII (E) and Rule 23 of this Commission’s Rules, pertaining to
withdrawal and revocation of party state membership, provide for notice of any
adverse allegations and for an opportunity for a hearing or a special meeting
at which a state may explain its withdrawal (Rule 23) or respond to allegations
of breach of obligations; and
WHEREAS,
the Commission has by Resolution now notified Nebraska of allegations that it
failed to comply with the Compact or to fulfill its obligations thereunder,
with detailed particulars of said allegations and with a listing of documentary
evidence it may consider;
IT
IS HEREBY RESOLVED that the following procedures and timetable shall govern the
balance of this proceeding:
1. The Commission grants Nebraska sixty
(60) days from this date to respond in writing to the allegations made and
evidence designated by Resolution this day;
2. After the written response including
written evidence, if any, is received, a special meeting shall take place at a
time to be determined in March or April, 2003, at which all evidence shall be
offered in written or documentary form on either side of the issues, and
Nebraska shall be given a reasonable time to present orally any further
arguments or explanations as to its compliance or noncompliance with the
Compact terms and its fulfillment or nonfulfillment of its obligations under
the Compact;
3. The Commission shall then consider the
evidence, arguments, and positions taken, and shall deliberate in open meeting
at a date to be determined after the special meeting, and shall render its
decisions as to Nebraska's compliance with the Compact terms and its
obligations and, if applicable, any sanctions to be imposed.
The Chair asked Legal
Counsel to brief the Commission on the next agenda item that related to the
Rebate Guaranty Fund.
Motion by Kansas, second by Arkansas, to approve the discontinuation of the Guaranty Fund and maintain in
accordance with rebate fund restrictions, and to return money contributed by
the Major Generators
Discussion
followed among the Commissioners and Legal Counsel and it was indicated that
the purpose for which the Guaranty Fund was created may no longer exist and
that the discontinued maintenance of the fund would allow the return of the
Major Generators' contribution to the Fund as well as allow the Commission to
further explore uses for the restricted rebate funds.
Motion passed
4-1
Motion (Resolution
4) by Kansas, second by Arkansas, to
approve the first six months of the Revised
USE Funding Request for calendar year 2003
The
Commissioners agreed to re-evaluate the funding request in June.
Motion passed 5-0
Motion (Resolution
5-8) by Arkansas, second by Kansas, to
approve the minutes of the Commission meetings held in 2002 on June 4th,
July 2nd, July 26th, and October 23rd
Motion
passed 4-0-1 (Nebraska abstaining)
Motion (Resolution
9) by Kansas, second by Louisiana, to approve the non-federal export application for
The Ochsner Foundation Hospital, 2001-2002 (LA)
Motion
passed 5-0
Motion (Resolution
10) by Kansas, second by Arkansas, to
approve the KPMG 2001 - 2002 Commission
Audit Report
Motion
passed 5-0
Motion (Resolution
11) by Oklahoma, second by Kansas, to
approve the Low-Level Waste Forum
Membership
Motion
passed 5-0
Motion (Resolution
12) by Arkansas, second by Louisiana, to
approve Financial Consultant Contract for calendar year 2003
Motion
passed 5-0
Motion (Resolution 13) by
Kansas, second by Louisiana, to approve Administrative Budget Adjustments to
fiscal year 2002-2003
Motion
passed 5-0
The Commissioners set the tentative date for the
Annual Meeting as June 11, 2003 with a subsequent tentatively scheduled
telephone meeting to be held on July 9, 2003, for taking action on export
applications for fiscal year 2004. A meeting was also tentatively scheduled for
April 10, 2003 in Lincoln, Nebraska for the purpose of receiving evidence and
the oral argument pertaining to the Rule 23 proceedings.
The Chair asked if there was any other business to
come before the Commission. With no new business being brought forth, the Chair
recessed the meeting to go into executive session to discuss personnel
issues. The Chair called the meeting
back to order and announced a few personnel matters were discussed and no
official actions were taken.
The Louisiana Commissioner announced the Nebraska
Commissioner was the recipient of a very prestigious award, the Veblen-Commons
Award and offered congratulations from the Commission.
Motion by Nebraska, seconded by Kansas, to adjourn the meeting
Motion
passed 5-0
The meeting was adjourned at approximately 1:15
p.m.
