Court rules compact can block waste

Nov 9 2010 - 7:51pm

SALT LAKE CITY -- A federal appeals court ruled Tuesday that an interstate compact can block EnergySolutions Inc. from disposing of low-level radioactive waste from foreign countries in Utah's west desert.

The Salt Lake City-based company had been seeking to import up to 20,000 tons of waste from Italy's shuttered nuclear power program into the U.S. After processing in Tennessee, about 1,600 tons would have been disposed of in the company's disposal site about 70 miles west of Salt Lake City.

In July, however, the company abandoned those plans and indicated it would try to help open a disposal facility in Italy instead.

"The lawsuit nevertheless continued in order to clarify the relationship between the company and the Northwest Compact," company president Val Christensen said in a statement.

"The company is pleased that the court has now clarified its relationship with the eight-state regional compact, with which the company has had a long mutually satisfactory working relationship."

EnergySolutions said it would not appeal the ruling, noting that it doesn't affect its domestic business.

The company's import application to the Nuclear Regulatory Commission drew an unprecedented number of public comments, nearly all in opposition. It also was opposed by two Republican Utah governors and led the U.S. House to pass a bill banning the importation of foreign nuclear waste. The measure has languished in the Senate.

At issue in the case was Utah's use of its veto power on the Northwest Interstate Compact on Low-Level Radioactive Waste as the host state for a disposal facility. The Utah disposal facility is the only one currently available to 36 states.

Attorneys for EnergySolutions, including Utah's U.S. Senator-elect Mike Lee, argued that Utah and the compact didn't have the authority to keep the waste out because it was a private facility. EnergySolutions said the compact could only regulate its designated site in Washington state.

"It really is a significant ruling in terms of compact law," said Assistant Utah Attorney General Denise Chancellor.

In May 2009, U.S. District Judge Ted Stewart in Salt Lake City agreed with EnergySolutions. But the 10th U.S. Circuit Court of Appeals in Denver reversed that decision on Tuesday.

"The terms of the compact control in this situation, and the member states were within the bounds of their authority when they denied permission regarding this waste," the ruling said.

Chancellor said the main difference in the two rulings is that the appeals court didn't buy EnergySolutions' argument that the Commerce Clause trumps the law that created regional waste compacts. Those compacts were created by Congress so no one state would become home to the nation's radioactive waste.

"This is a huge victory for Utah," said Vanessa Pierce, executive director of the Healthy Environment Alliance of Utah. "With Judge Stewart's ruling we were vulnerable to EnergSolutions bringing in hotter classes of waste. We were vulnerable to new and unforseen waste streams coming in and larger waste streams."

Pierce noted that an agreement signed by EnergySolutions and former Gov. Jon Huntsman, which Gov. Gary Herbert's office says it still considers in effect, uses the threat of the Northwest Compact's veto power to keep the Clive facility from expanding.

"Fundamentally, the compact preserves Utah's ability to say no to certain types of nuclear waste or larger quantities of waste. Without that, we were stripped of our rights," Pierce said.

 

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