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A federal district judge has ordered the state of Nebraska to pay $151.4 million to a commission established to enforce a five-state compact to build a low-level radioactive waste dump. U.S. District Judge Richard G. Kopf last week excoriated the behavior of then-governor of Nebraska, Ben Nelson, and members of his administration, finding that they had led the state to act in bad faith by delaying, then denying, a license for the waste facility — in order to fulfill a campaign promise made by Nelson when he first ran for governor in 1990. The state has denied any bad faith in its licensing process and has vowed to appeal, said Nebraska’s defense attorney, John Wittenborn of Washington, D.C.’s Collier Shannon Scott. “The license review process was conducted fairly, thoroughly and appropriately,” he said. Any delays in the licensing process were caused by the commission itself, which didn’t file final financial information until 1997, he charged. The state of Nebraska entered into the radioactive waste dump compact with Oklahoma, Arkansas, Louisiana and Kansas in 1983, with the approval of Congress. Under the terms of the agreement, each state in turn would serve as the host state for the dump. The Central Interstate Low-Level Radioactive Waste Commission was set up to enforce the provisions of the compact. In 1987, Nebraska was selected as the first host state. In early 1990, a site in Boyd County, near Butte, Neb., was chosen. Immediately after this, in February 1990, a lawsuit was filed by several Nebraska citizens seeking to prevent the establishment of a low-level radioactive waste disposal site in Nebraska. This lawsuit was ultimately dismissed, but the campaign against the site proceeded, Judge Kopf noted in his opinion. In the fall of 1990, the judge wrote, gubernatorial candidate Nelson promised “to a cheering crowd of Boyd County residents,” that “[i]f I’m elected governor, it is not likely that there will be a nuclear dump in Boyd County or in Nebraska.” The commission attempted to acquire a license for the dump, but the license was denied in 1998. Several big power generators, including Entergy Arkansas Inc., sued the state; they were dismissed from the action. The commission also sued, charging breach of the compact and bad faith. The action was tried in a bench trial this summer. The commission contended that partisan actions by the governor and his subordinates doomed the project — a charge that Kopf agreed with. The Nebraska departments of health (DOH) and environmental quality (DEQ) were included in the licensing process, but Kopf said, “DEQ and DOH did not act fairly or reasonably. The record is littered with ‘inaction,’ ‘subterfuges,’ ‘willful rendering of imperfect performance’ and ‘interference with or failure to cooperate in the other party’s performance.’” Kopf, in awarding $151.4 million in damages, did not order the state to grant a license or resume the licensing procedure, finding that it would be impossible to order relicensing even under court supervision. He noted, “no competent entity exists that could appropriately be given the relicensing or regulatory responsibility.” In addition, he noted, Nebraska had withdrawn from the compact, effective in August 2004. “Since I lack the power to stop Nebraska from exercising its right to withdraw under the compact, Nebraska will at least be able to frustrate, if not defeat, any order that I might enter. Given that trump card, it would be unwise to allow Nebraska to play it.” The state will appeal, said Wittenborn. The state will also be appealing Kopf’s denial of the state’s request for a jury trial. Entergy Arkansas Inc. v. State of Nebraska, No. 4:98CV3411 (D. Neb.).

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