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.

 

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