A. Eugene Crump
Executive Director
Central
Interstate LLRW Commission
ABSTRACT
This paper being presented is regarding the current status of the Central Interstate LLRW Commission in its efforts to license, construct, and operate a disposal facility for LLRW generators in the Compact states of Louisiana, Arkansas, Oklahoma, Kansas, and Host State Nebraska.
In order to understand where we are today, I think it important to understand where we have been with this project. Therefore I will provide you with a brief history of the project and the events leading to the present activities of the Commission, its developer US Ecology, Inc., and Nebraska's role in the process as the Host State for the Compact.
As you know, at the request of the nation's governors, Congress passed the LLRW Policy Act in 1980. This federal law established the federal policy that each of the 50 states is responsible for disposal of the LLRW generated within its own borders. The intent of this law was to lead to the creation of regional compacts, each with a disposal facility operational by January 1, 1986.
In 1985, realizing that the 1986 deadline would not be met, Congress amended the 1980 law, extending the deadline to 1993. This LLRW Policy Amendments Act, Public Law 99-240, directed the states to cooperate in the protection of the health, safety, and welfare of their citizens and the environment and to provide for and encourage the efficient and economical management of LLRW.
The Amendment Act passed after the States of Arkansas, Louisiana, Kansas, Oklahoma, and Nebraska, had already agreed to join the Central Interstate LLRW Compact. These five states had ratified the Compact agreement during the Spring of 1983 and the Compact Commission held its organizational meeting on June 29-30 of that year.
In 1984, the Commission retained an environmental consulting firm to conduct a site exclusionary study of the five states in the Compact and perform an assessment of the LLRW management practices. This lengthy process was completed and a final report adopted by the Commission in August, 1987. At this same time, the Commission developed its own siting criteria.
INTRODUCTION
On June 29, 1987, the Commission selected US Ecology as its contractor to develop, construct and operate the Compact's first LLRW disposal facility. In December, 1987, Nebraska was selected as the Compact's first Host State.
US Ecology initially examined 11 potential sites throughout Nebraska. On January 18, 1989, sites in Boyd, Nemaha, and Nuckolls Counties were selected as candidate sites and intensive site characterization studies were initiated. On December 31, 1989, US Ecology announced that the site near the Village of Butte in Boyd County had been selected as the preferred site for construction of the Compact's LLRW disposal facility.
On July 27, 1990, US Ecology submitted a license application to construct and operate an above-ground vaults and engineered barriers disposal facility, the first of its kind in the nation. This application included a 796-page Environmental Report (ER) and a 3,525-page Safety Analysis Report (SAR). The Nebraska Department of Environmental Quality (NDEQ) and Department of Health (NDOH) initiated a review of the license application.
In March, 1991, State reviewers began the technical review process for the applicant. On December 24, 1991, NDEQ and NDOH declared the license application complete for technical review. This on-going technical review by the Host State regulators is still underway.
In January, 1993, NDEQ and NDOH jointly announced their "Notice of Intent to Deny a License" based upon the presence of wetlands on the 320-acre facility site. US Ecology requested, and was granted, a "contested case hearing" which was scheduled for June, 1993, but postponed until a later date. In August, 1993, US Ecology reconfigured the site, reducing it to 120 acres and eliminating any wetlands in the reduced area (all within the original 320-acre site). In October, 1993, the NDEQ and NDOH withdrew their Intent to Deny actions.
Throughout the review process by the Host State, state reviewers generated comments in the form of a question or statement. These comments were compiled in document form and were transmitted to US Ecology in what was called a "Comment Round." First-round comments from NDEQ and NDOH were sent to US Ecology in February and March, 1991. US Ecology responded in August, 1991.
Second round comments were given to US Ecology in May, 1992 and responded to by US Ecology in November, 1992. Third round comments from NDEQ and NDOH in October, 1993, were answered during May to July, 1994. Fourth round comments from the Host State were delivered in October, 1994.
US Ecology submitted its final amendments and supplements to the license application on June 14, 1995, including Revision 8 of the SAR and ER, and several additional stand-alone documents required by the Host State. On July 26, 1995, the Host State LLRW Program Managers wrote to US Ecology indicating that the final review schedules had started and "We believe the final review activities will take approximately one year to complete."
Throughout the license review process, the NDEQ did not have schedules but utilized a series of "Management Plans" with dates that specific tasks were expected to be completed. Later updates of these plans excluded any expected dates.
In the Fall of 1995, NDEQ began referencing an "Internal Management Plan" which claimed that the final review process would take an additional 14 months to complete although this "plan" contained no specific dates for action to be completed. The Commission attempted numerous times to meet with state officials to discuss and attempt to understand its "plan." Despite repeated requests from the Commission for a copy of this "Internal Management Plan," NDEQ refused to provide a copy until the Summer of 1996.
At the January 18, 1996, Commission meeting, a motion was approved to adopt a draft schedule prepared by Commission staff and recommended by the Commission's Facility Review Committee, which called for the issuance of draft licensing documents in July, 1996, in keeping with the July 26, 1995, letter from the Host State which said the final review process would take only one year to complete. Although numerous requests were made by the Commission, there were no meetings with or input from the state regarding the draft schedule.
At the Commission's March 27, 1996, meeting a motion was approved to reaffirm the draft schedule action of the January 18 meeting. The NDEQ and other Host State officials agreed to meet with the Commission and its staff to discuss the license review process, but no meaningful progress or agreements were reached. At the Annual Meeting of the Commission on June 26, 1996, the Commissioners voted to rescind their actions regarding a draft schedule, and calling for a special meeting to be held August 27, 1996, for the purpose of receiving comment and testimony from the Host State and the public regarding the license review schedule. The Host State declined to participate in the meeting.
However, the NDEQ at public meetings on August 19 and August 21, 1996, introduced a new "Management Plan" -- with no dates for action -- which the NDEQ said projected a "best estimate" that the draft license documents would be ready for public review in October, 1997, more than 26 months after NDEQ said the application was complete for technical review.
Therefore, at the Commission Meeting of September 30, 1996, the Commissioners voted to establish a schedule for completion of the license review process. Pursuant to the Commission's duty in federal and state law to require the Host State to process the license application in a reasonable time period from the submittal of the completed application, the Commissioners adopted a time frame of December 14, 1996, to January 14, 1997, in which the NDEQ is expected to complete its review and issue a Draft Safety Evaluation Report (DSER) and a Draft Environmental Impact Analysis Report (DEIA) with recommendations and conditions; and the Draft License Decision, with conditions and justifications, so that the technical review will lead to a public comment period.
On November 27, 1996, the Host State filed a lawsuit in the United States District Court for the District of Nebraska requesting that the federal court enter a declaratory judgment in favor of the State of Nebraska declaring that each of the motions passed by the Commission on September 30, 1996, are contrary to law, and without legal authority, and have no binding effect upon the State of Nebraska; Or, alternatively, the State prays for a finding by the Court that the schedule and public participation process in the Commission motions are unreasonable and therefore invalid.
This most recent legal action against the Commission by the Host State is the fourth such suit filed by the Host State since January, 1993. In each case the Commission was found to be operating within the law and guidelines established by federal and state law for conducting its duties and responsibilities, or the Host State settled for a fraction of what the State originally sought.
At its Mid-Year Meeting, January 8, 1997, the Commission's legal counsel presented the Commission with a list of 11 potential remedies that could be obtained if the Host State did not comply with the resolutions of September 30, 1996, regarding completion of the technical review portion of the licensing process, and the commencement of the public participation process.
The Commission then discussed these options during an executive session, and adopted four courses of action: (1) Requesting Nebraska to provide indications of why the January 14, 1997, date of issuance of draft documents and a draft license decision would not be met; (2) recommending a special telephone meeting of the Commission to consider the Host State response to the Commission's request for scheduling information; (3) to ask legal counsel to evaluate a potential Bad Faith Claim against the state if they did not comply with the September 30, 1996, motions regarding scheduling issues; and (4) to instruct the Commission staff to begin a formalized accounting procedure to determine the accumulation of damages caused by the delay in issuance of draft documents and a draft licensing decision.
A Special Telephone Meeting was held on February 4th. The Host State, through its attorney, sent a letter in advance of the meeting indicating that the Host State would not participate in the meeting to address the issues due to the pending litigation.
As a result of the State of Nebraska's failure to respond to the Commission's requests for information and action, the Commissioners approved a motion instructing their legal counsel to evaluate a potential Bad Faith Claim against the State of Nebraska. Counsel is to provide the Commissioners with an estimated cost for such work and report back at or before the Commission's March 26th meeting. Commission staff was instructed to continue its efforts to determine the accumulation of damages caused by the delay in issuance of draft documents and a draft licensing decision.
So, while this is the current status of the project, you can see that it is far from being operational. It is the Commission's hope that the technical review will soon be completed and we can initiate the ground-breaking, proceed with construction, and open a licensed disposal facility in two years or sooner.