During the past several years, the Commission has been sued many times regarding its actions and activities, including six lawsuits filed by the State of Nebraska. In four of those cases, as well as all others, the Commission was successful in defending its legal position. Two lawsuits by Nebraska are still pending against the Commission as of this Annual Report.
ACTIONS IN WHICH THE COMMISSION IS OR WAS A PARTY
State of Nebraska v. Central Interstate Low-Level Radioactive Waste Commission (United States District Court for the District of Nebraska, Case No. 4:CV963438).
The Central Interstate Low-Level Radioactive Waste Commission at a meeting on September 30, 1996, passed resolutions after receiving evidence calling for the State of Nebraska to issue its initial draft decision and documents on the license application no later than January 14, 1997, and also calling for a consolidation of the hearing process after the draft decision. The State of Nebraska sued the Commission, claiming that it was entitled to a federal declaratory judgment that the Commission lacks authority to set any schedule for the remainder of the license application review currently underway in the Departments, and that even if it had such authority, the dates set were unreasonable.
Major generators Wolf Creek and Entergy were allowed by the Court to intervene, over Nebraska's objection. Nebraska and the defendants litigated several different discovery issues, most of which were resolved in favor of the defendants. Trial of the case was scheduled for early May, 1998; however, on the first day of trial Nebraska asked Judge Kopf to disqualify himself. The Judge agreed, and transferred the case to Judge Urbom for trial. Trial is scheduled to commence on July 20, 1998.
State of Nebraska v. Central Interstate Low-Level Radioactive Waste Commission (United States District Court for the District of Nebraska, Case No. 4:CV973267).
In June and July, 1997, the Commission approved waste export applications made by a number of Major Generators. Nebraska's Commissioner voted "No" on each application, contending that Art.IV(m)(6) of the Compact gives the Host State veto authority over all export of waste from the region. On advice of counsel, the Commission determined that Nebraska's claimed "Veto" authority did not apply to the export applications before it, and approved the applications on a 4-1 vote.
In mid-August, 1997, Nebraska sued the Commission, seeking a declaration that the export permits issued by the Commission in June are invalid and that the affirmative vote of the Nebraska Commissioner is required before the Commission can authorize any export of waste from the region. Although the Commission took no action regarding importation of waste to the region, Nebraska's suit seeks a declaration that the affirmative vote of Nebraska's Commissioner is required before the Commission can authorize importation of any waste into the region. On September 13, 1997, Nebraska amended its complaint to include the export applications approved by the Commission in July, 1997.
The Commission asked that the case be dismissed unless the waste exporters whose applications were challenged by Nebraska's Commissioner were made parties. The Court rejected that motion, and the Commission answered the complaint. The parties are exchanging information pursuant to the Federal Rules of Civil Procedure. Trial is tentatively scheduled to take place in September, 1998.
ACTIONS WHICH POTENTIALLY AFFECT THE PROJECT, BUT IN WHICH THE COMMISSION IS NOT A PARTY
Hayden v. Peterson, et al. (District Court of Lancaster County, Docket 568, Page 262).
In April, 1998, Greg Hayden, Nebraska's Commissioner, sued Alan Peterson and the Cline, Williams law firm, the attorneys acting as outside counsel to the Commission since late 1989. Hayden's suit contends that the Commission's attorneys have violated various duties they owe to him because they have not given him without a requirement of confidentiality, or a Commission authorization, confidential financial information disclosed by American Ecology pursuant to a confidentiality agreement. Peterson and Cline Williams have filed a motion asking the Court to strike various legal conclusions from the petition. No trial date has yet been established.
At its annual meeting on June 17, 1998, the Commission passed a resolution which found that Peterson and Cline Williams have not violated any Commission directives or instructions, and that Commissioner Hayden's suit was filed without the authority or concurrence of the Commission. The resolution requested that Hayden immediately dismiss his suit against the Commission's legal counsel and his law firm.
US Ecology. Inc, v. State of Nebraska et al. (Nebraska Supreme Court S-98-0412)
In April of 1997, US Ecology sued the State. of Nebraska, the Department of Environmental Quality and Health and certain employees of both departments in the District Court of Lancaster County for declaratory and injunctive relief regarding the defendants' authority to prevent US Ecology from filing and mitigating a small wetland (less than one acre) on the disposal facility site in accordance with a 404 Permit issued by the US Army Corps of Engineers. The defendants contended that the filing and mitigating of the wetland constitutes commencement of construction which was not authorized pursuant to Nebraska law until after a license for the construction of the facility had be issued. US Ecology also raised the question of whether the Department of Health had jurisdiction over the question of whether Us Ecology's proposed actions constituted commencement of construction.
The District Court ruled in favor of US Ecology, finding that US Ecology's proposed action in filing and mitigating the wetland did not constitute of construction, and enjoined the defendants from interfering with the fill and mitigation project. The District Court also found that the Department of Health had no jurisdiction over the licensing of the facility and enjoined it from participating in any licensing decision. The defendants requested that the District Court stay its order pending appeal. The District Court denied the request. The defendants appealed to the Nebraska Court of Appeals and the Court of Appeals granted the defendants' motion to stay the District Court's order pending the outcome of the appeal. The Nebraska Supreme Court has exercised its discretion and will hear the appeal, instead of the Court of Appeals. Briefing will be completed by the first part of September of 1998. US Ecology will file a motion to accelerate the case for argument as soon as briefing is completed.
For a complete history of the legal actions regarding the Commission or its interests please review the Commission's web page (http://www.cillrwcc.org) and select Legal Actions Affecting the Commission.