State of Nebraska v. Central Interstate ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-1275
___________
State of Nebraska, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Central Interstate Low-Level *
Radioactive Waste Commission, *
*
Appellee. *
___________
Submitted: December 17, 1999
Filed: April 4, 2000
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Before MURPHY and MAGILL, Circuit Judges, and SMITH,* District Judge.
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MAGILL, Circuit Judge.
This case arises out of the State of Nebraska's suit against the Central Interstate
Low-Level Radioactive Waste Commission (Commission) under the Declaratory
Judgment Act, 28 U.S.C. § 2201(a), claiming that it has the unilateral right under the
Central Interstate Low-Level Radioactive Waste Compact (Compact)1 to veto low-level
*
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri, sitting by designation.
1
See Neb. Rev. Stat. § 71-3521.
radioactive waste import and export permits issued by the Commission. Nebraska
appeals the district court's2 grant of summary judgment holding that Nebraska does not
have the right to veto waste export permits. Nebraska also appeals the district court's
refusal to decide whether Nebraska has the right to veto waste import permits because
there is no "actual controversy" under the Declaratory Judgment Act. We affirm the
judgment of the district court.
I. BACKGROUND
In 1980, faced with the possibility that the United States would be left with no
disposal sites for low-level radioactive waste,3 Congress enacted the Low-Level
2
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
3
The low-level radioactive waste problem began in the 1970s when six
commercial low-level radioactive disposal sites were operating in the United States.
See New York v. United States, 505 U.S. 144, 150 (1992). By 1979, three of the
facilities had closed permanently, and the states where the three remaining facilities
were located had announced plans to shut down or to severely limit access to their
sites. See id. The issue of the availability of low-level radioactive waste disposal sites
is serious because:
We live in a world full of low level radioactive waste. Radioactive
material is present in luminous watch dials, smoke alarms, measurement
devices, medical fluids, research materials, and the protective gear and
construction materials used by workers at nuclear power plants. Low
level radioactive waste is generated by the Government, by hospitals, by
research institutions, and by various industries. The waste must be
isolated from humans for long periods of time, often for hundreds of
years. Millions of cubic feet of low level radioactive waste must be
disposed of each year.
Id. at 149-50.
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Radioactive Waste Policy Act (LLRWA), Pub. L. No. 96-573, 94 Stat. 3347 (1980)
(amended 1986), 42 U.S.C. § 2021b-2021d, to promote the development of regional
low-level radioactive waste disposal facilities. The LLRWA directs: "Each State shall
be responsible for providing, either by itself or in cooperation with other States, for the
disposal of . . . low-level-radioactive waste generated within the State," 42 U.S.C.
§ 2021c(a)(1)(A), with the exception of certain waste generated by the federal
government. See 42 U.S.C. § 2021c(a)(1)(B), 2021c(b). The LLRWA permits states
to "enter into such compacts as may be necessary to provide for the establishment and
operation of regional disposal facilities for low-level radioactive waste." 42 U.S.C.
§ 2021d(a)(2).
Pursuant to the LLRWA, Nebraska, Kansas, Oklahoma, Louisiana, and Arkansas
(collectively, the party states) entered into the Compact and requested Congressional
approval. In 1986, Congress approved the Compact under the Omnibus Low-Level
Radioactive Waste Interstate Compact Consent Act, Pub. L. No. 99-240, § 222, 99
Stat. 1859, 1863-71 (1986). The Compact established the Commission as its governing
body. The Commission, which is a separate legal entity with standing to sue and be
sued, is comprised of locally appointed representatives from each of the five party
states to the Compact. The Commission's powers pertinent to this case include: 1)
approving applications for permits to import and export waste, 2) approving the
development and operation of regional low-level radioactive waste disposal facilities
for the Compact, and 3) entering into agreements for the importation of waste into the
Compact region and for the right of access to facilities outside the region for waste
generated within the Compact region. In 1987, the five-state Commission selected
Nebraska as a "host state"4 (thus far, the sole host state) for a regional disposal facility.
4
Article II(g) of the Compact states: "Host state means any party state in which
a regional facility is situated or is being developed."
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The dispute in this case5 arose from Nebraska's opposition to several applications
for permits to export waste to facilities outside the Compact region.6 Between June
1997 and July 1998, the Commission issued thirteen such permits by a four to one vote,
with Nebraska voting to deny each permit. On August 22, 1997, Nebraska brought a
declaratory judgment action against the Commission arguing that as a host state it has
the right to veto both export and import permits. The district court entered judgment
for the Commission on the issue of whether a host state has the right to veto export
permits and declined to reach the issue of whether a host state has the right to veto
import permits because the import permit issue does not present an "actual controversy"
as required by the Declaratory Judgment Act, 28 U.S.C. § 2201(a). Nebraska appeals
these issues.
II. ANALYSIS
In this appeal, we must consider whether the Compact grants a host state the
right to veto waste export permits, and therefore our review is plenary. See Nebraska
v. Central Interstate Low-Level Radioactive Waste Comm'n, 187 F.3d 982, 985 (8th
Cir. 1999). When approved by Congress, a compact becomes a statute of the United
States and must be construed and applied according to its terms. See Oklahoma v.
New Mexico, 501 U.S. 221, 236 n.5 (1991). When the statutory language provides a
5
This is not the first controversy between Nebraska and the Commission
concerning the Compact; the relationship has been notably litigious. See Nebraska v.
Central Interstate Low-Level Radioactive Waste Comm'n, 187 F.3d 982 (8th Cir.
1999); Nebraska v. Central Interstate Low-Level Radioactive Waste Comm'n, 26 F.3d
77 (8th Cir. 1994); Nebraska v. Central Interstate Low-Level Radioactive Waste
Comm'n, 974 F. Supp. 762 (D. Neb. 1997). See also Concerned Citizens of Neb. v.
United States Nuclear Regulatory Comm'n, 970 F.2d 421 (8th Cir. 1992).
6
The fees generated by the granting of export permits are an important source of
funding for the Commission. For example, the Commission received $56,000 from the
July 1998 export permit granted to the Nebraska Public Power District.
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clear answer, the analysis ends. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,
438 (1999). In construing the Compact, we must be cognizant of the purpose of the
Compact and any interpretive principles mandated by the Compact. Article IX of the
Compact states that "[t]he provisions of this compact shall be liberally construed to
give effect to the purpose thereof." Article I of the Compact states that its purpose is
"to provide the framework for [] a cooperative" effort among the party states to, among
other things, "effectively and efficiently manage low-level radioactive wastes and to
encourage the reduction of the generation thereof . . . ."
A. Export Permits
The Compact requires Commission approval for all waste exportation from the
Compact region. Article III(g)(3) states that: "Unless authorized by the commission,
it shall be unlawful . . . for any person . . . [t]o export from the region [] waste which
is generated within the region."7 However, to determine how a permit for the
exportation of waste in Article III(g)(3) is to be obtained from the Commission, one
must look elsewhere in the Compact because Article III(g) is silent on the subject.
In Article IV(b), the Compact provides for a majority vote rule that empowers
the Commission to decide most issues germane to the Compact by majority vote of its
7
Article III(g) states in its entirety:
Unless authorized by the commission, it shall be unlawful after January
1, 1986, for any person:
(1) To deposit at a regional facility, waste not generated within the region;
(2) To accept at a regional facility, waste not generated within the region;
(3) To export from the region, waste which is generated within the region;
and
(4) To transport waste from the site at which it is generated, except to a
regional facility.
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members. Article IV(b) states in pertinent part:
[E]ach commission member shall be entitled to one vote. Unless
otherwise provided herein, no action of the commission shall be binding
unless a majority of the total voting membership casts its vote in the
affirmative.
However, in Article IV(m)(6), the Compact provides a narrow exception to the
majority vote provision of Article IV(b) which grants a veto power to host states over
certain agreements entered into by the Commission. Article IV(m)(6) states:
The commission shall:
Notwithstanding any other provision of this compact, have the authority
to enter into agreements with any person for the importation of waste into
the region and for the right of access to facilities outside the region for
waste generated within the region. Such authorization to import or export
waste requires the approval of the commission, including the affirmative
vote of any host state which may be affected.
The main issue in this appeal is whether permits to export waste from the region
fall within the narrow veto provision of Article IV(m)(6) or whether export permits do
not fall within Article IV(m)(6) and are subject to the majority vote arrangement of
Article IV(b). The second sentence of Article IV(m)(6) grants a veto power to "any
host state which may be affected" by "[s]uch authorizations" described in the first
sentence of Article IV(m)(6). Therefore, in order to prevail in its appeal, Nebraska
must show that export permits fall within the first sentence of Article IV(m)(6), which
pertains to "agreements . . . for the right of access to facilities outside the region."
Nebraska argues that "agreements with any person . . . for the right of access to
facilities outside the region" includes two categories of Commission action: 1) permits
under Article III(g)(3) from the Commission to regional generators for the exportation
of waste from the region, and 2) agreements between the Commission and outside
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waste depositories for the latter to accept waste exported from the region. Nebraska
argues that both categories qualify as "agreements with any person . . . for the right of
access to facilities outside the region" because both types of authorization are necessary
before waste can be removed from the region and deposited elsewhere. Nebraska's
argument fails for two main reasons: 1) Article IV(m)(6) only encompasses agreements
granting "the right of access," which export permits do not grant, and 2) Article
IV(m)(6) only covers agreements between the Commission and "person[s]" outside the
Compact region while export permits involve the Commission and "person[s]" inside
the Compact region.
The first reason that export permits are not subject to a veto by a host state is
because export permits do not confer "the right of access to facilities outside the
region." A comparison of the documents involved in permits to export waste and those
involved in contracts for access to facilities outside of the Compact region underscores
the differences in the rights involved in the respective agreements. The short two-page
application submitted by persons to receive authorization to export waste is entitled
“Application for Non-Federal Facilities to Export Low-Level Radioactive Waste from
the Central Interstate Low-Level Radioactive Waste Compact Region.” If the
application is approved, the Commission returns to the applicant a one-paragraph
document entitled “Authorization to Export Waste." The permit merely allows a
person to export low-level radioactive waste outside of the region if such shipment of
waste is otherwise lawful and specifies that the “authorization by the Commission
relates only to the requirements of the Central Interstate Low-Level Radioactive Waste
Commission, and in no way affects any other requirement, liabilities, and
responsibilities that may be applicable under any other state and federal laws and
regulations.”
In contrast to the documents involved in export permits, agreements made by
the Commission for the right of access to facilities outside the region actually specify
that they grant the right of access to facilities outside the region. On October 21, 1993,
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such an agreement was entered into by the Commission with the Southeast Compact
regional facility in Barnwell County, South Carolina. The resulting "Contract of Access
to the Southeast Compact Commission’s Regional Facility in Barnwell County, South
Carolina” is a detailed, multi-page document specifying the circumstances under which
“[a]ccess to the Southeast Compact Regional Facility shall be granted to the generators
within the Central LLRW Commission region . . . .”
It is undisputed that Article IV(m)(6)'s language refers, at least in part, to
agreements, such as the Southeast Compact agreement, between the Commission and
facilities outside the Compact region for the right of access to such facilities for waste
generated within the region. However, it is not reasonable to also construe an export
permit as granting "the right of access to facilities outside the region." An export
permit is a "right to remove," it is not a "right of access" to anything. The mere fact
that being granted an export permit is a necessary condition to exporters obtaining a
"right of access to facilities outside the region" does not mean that export permits were
meant to be included within the term "agreements . . . for the right of access to facilities
outside the region" and to be subject to a veto from a host state. It is clear that
"agreements . . . for the right of access" refers only to the second necessary condition,
to obtaining the right to deposit waste in a facility outside the Compact region; the
actual agreement made by the Commission with a waste disposal facility outside the
Compact region.
The second reason that export permits do not fall within the language of Article
IV(m)(6) is because it is clear that the "person"8 Article IV(m)(6) is referring to is a
person outside of the party states, not a person within the party states. Nebraska's
argument that export permits fall within the terms of Article IV(m)(6) can prevail only
if "agreements with any person . . . for the right of access to facilities outside of the
8
Article II(m) states: "Person means any individual, corporation, business
enterprise, or other legal entity, either public or private."
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region" could refer to the Commission authorizing an action by a person within the
Compact region. However, Article IV(m)(6) cannot be interpreted in this manner.
When the Commission enters "into agreements with any person for the importation of
waste into the region," it is entering into agreements with persons outside the region
that would allow those persons to transport waste into the region. Similarly, when the
Commission enters "into agreements with any person . . . for the right of access to
facilities outside the region," the "person" referred to is not a person within the
Compact region but a person outside of the region who can grant access to a waste
facility outside of the region. The language of Article IV(m)(6),"agreements with any
person . . . for the right of access to facilities outside of the region," does not refer to
the Commission authorizing anything by a person within the Compact region. The
language refers only to a person outside of the Compact region entering into an
agreement with the Commission allowing the Compact region access to waste disposal
facilities outside of the Compact region. Because the Commission only confers export
permits upon persons inside the Compact region and Article IV(m)(6) refers only to
agreements between the Commission and persons outside the Compact region, export
permits are not within the terms of Article IV(m)(6).
If the provisions of the Compact at issue in this appeal were ambiguous, reliance
on the Compact's liberal construction clause and statement of purpose would be
appropriate to help resolve the ambiguity. However, in this case there is no need to
rely on the liberal construction clause because the Compact's language is unambiguous
and does not provide for a veto power to host states over export permits. Nebraska has
not shown that it is reasonable to construe "agreements . . . for the right of access to
facilities outside the region" as encompassing export permits. Export permits simply
are not the type of agreements contemplated within the veto power of Article
IV(m)(6).9
9
We also reject Nebraska's appeal from the district court's holding that the
question of whether the veto provisions of Article IV(m)(6) apply to import permits
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III. CONCLUSION
In sum, we affirm the district court's holding that host states do not have a veto
power over export permits and the court's holding that the question whether host states
have a veto power over import permits does not present a justiciable dispute sufficient
to satisfy the "actual controversy" requirement of the Declaratory Judgment Act.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
does not present an "actual controversy," as required by the Declaratory Judgment Act,
because no waste import permits are pending or threatened and "it is especially
inadvisable to make unnecessary decisions that control the future of public bodies like
the Commission." Nebraska v. Central Interstate Low-Level Radioactive Waste
Comm'n, 29 F. Supp. 2d 1085, 1092 (D. Neb. 1998). Nebraska's claim that someday in
the future the Commission may approve an application to import waste does not present
sufficiently immediate consequences to warrant the exercise of jurisdiction. See
Marine Equip. Management Co. v. United States, 4 F.3d 643 (8th Cir. 1993).
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