May 09 - Deseret News (Salt Lake City)

The EnergySolutions proposal to store radioactive waste from Italy in Utah received a unanimous thumbs down Thursday from the Northwest Interstate Compact on Low-Level Radioactive Waste Management.

Utah's compact committee member Bill Sinclair, picked by Gov. Jon Huntsman Jr., read from a "clarifying" resolution after a 90-minute closed session to discuss a federal lawsuit EnergySolutions filed this week. Representatives on the eight-state compact all voted to approve the resolution.

The compact's document said EnergySolutions does not have the necessary "arrangement" with the compact to accept the Italian waste. Such an arrangement would need to be adopted by the committee prior to EnergySolutions' accepting that waste in Utah.

Sinclair said the intent of the resolution was to send a "clear message" on the compact's stand on foreign waste. A short time later the committee approved a resolution amendment that states the compact will also disregard a waste classification as domestic after incineration, that is, if the waste being incinerated originated in a foreign country.

The Northwest Compact is one of several throughout the country that help manage disposal of potentially dangerous waste from state to state. Utah is part of an eight-state compact that includes Alaska, Hawaii, Montana, Washington, Idaho, Wyoming and Oregon. Waste coming from Tennessee to Utah is under the watch of the Southwest Compact and Tennessee's own laws governing radioactive waste classification.

The committee's decisions came after EnergySolutions general counsel Val John Christensen asked the compact's committee to look past the "emotional protest of 'not in my backyard."'

In an April 23 letter to compact committee members, Christensen said the company's license application with the Nuclear Regulatory Commission has generated "political reactions, based almost entirely on misinformation."

License approval would mean EnergySolutions could accept up to 20,000 tons of low-level radioactive waste from closed nuclear reactors in Italy. The bulk of materials would be processed and recycled at an EnergySolutions facility in Tennessee. About one- third of the materials would be metal to be recycled for "beneficial" use, EnergySolutions' Tye Rogers said.

Then about 1,600 tons of Class A waste left over after processing would be transported to the company's disposal site in Clive, Tooele County. The company is not licensed to accept hotter Class D or C waste, which nuclear watchdog group Institute for Energy and Environmental Research president Arjun Makhijani recently suggested would actually be coming to Clive. EnergySolutions has denied that claim.

For Christensen, the main debatable issue should be whether his company's Clive facility in Tooele County has the capacity to store the waste. Rogers told the committee there is more than enough room, with 33 years of life left at the Clive site if an additional area there is developed for expanded disposal operations.

However, waste competitor Cedar Mountain Environmental's Charles Judd told the committee that EnergySolutions, using the company's figures provided to the state, the Clive site has only about five years of life left. Judd is currently challenging several issues, including capacity, related to the company's operating license, before the state's Radiation Control Board.

Judd said, as a competitor, the amount of Italian waste proposed for importing to EnergySolutions' Clive site was insignificant. He welcomed the resolution as a means of clarifying the waste marketplace.

Christensen also told the committee that for EnergySolutions to play on the "world stage," it needs to be authorized to accept foreign waste at the Clive site.

But the application has been met with opposition by Huntsman, Rep. Jim Matheson, D-Utah, and Utah's own Radiation Control Board. The NRC also took a rare step in issuing a "fact sheet" due to the number of inquiries and negative public comments it received.

John Urgo of Healthy Environment Alliance of Utah urged the committee in Boise not to allow a major precedent-setting policy shift by letting EnergySolutions go after foreign waste, opening the door to more and more overseas shipments.

In their defense, company officials stated in documents prepared for Thursday's meeting that some electricity produced in Italy has come from American- and British-designed nuclear reactors, with fuel for those Italian reactors coming from uranium mined in the U.S. and even in Utah.

The company filed a federal lawsuit this week asking the U.S. District Court to make a declaratory judgment in the company's favor by declaring the compact lacks the authority to bar the company from storing the Italian waste in Utah. The company believes that will eventually allow them to receive the waste.

"We believe the courts will uphold the position that the Northwest Compact does not have authority to interfere with interstate commerce at a private facility," EnergySolutions spokesman Mark Walker said a statement following the meeting.

Sinclair asked Christensen whether EnergySolutions would drop the suit if the compact committee allowed the import of Italian waste under the condition that the amount of foreign waste coming to the Clive site in the future from foreign countries would be limited to 5 percent of the site's remaining capacity. Christensen said, in that case, the lawsuit would be dropped, but that compromise was not reached Thursday.

In its lawsuit and in front of the committee, EnergySolutions outlined several reasons why the compact lacks authority to prevent the company from receiving shipments of Class A low-level radioactive waste from foreign countries.

The company claims the compact, by design, has no statutory authority and that excluding the Italian waste "would amount to discrimination against foreign commerce and would therefor violate the Dormant Commerce Clause" of the U.S. Constitution.

EnergySolutions also believes that a 2007 agreement would be breached between the company and Utah Gov. Jon Huntsman Jr. if the compact, namely Utah's representative on the compact, ruled against the company's current state license. That license allows EnergySolutions to receive low-level radioactive waste, which the license has "never" distinguished between foreign and domestic, according to EnergySolutions.

Judd asked the committee at one point what authority Huntsman has in making an agreement on radioactive waste disposal with a private company. He also asked whether that agreement would hold up under a different governor.

"I don't know the answer to that question," Sinclair told Judd.

EnergySolutions also said any action by the compact to exclude foreign waste shipments would be "arbitrary and capricious and therefor invalid."

Committee members asked EnergySolutions officials about why no one in Europe will process or store the Italian waste or whether the company could partner with anyone overseas to handle the waste outside of the U.S. Montana committee member Roy Kemp asked if EnergySolutions has any plans to actually develop another waste site somewhere else. Christensen said his company does not have any such plans right now.

Before voting on the amendment to the resolution, the committee also talked about rules that govern how EnergySolutions classifies foreign waste. Company officials told committee members that some waste from outside the U.S. is no longer considered "foreign" after it is incinerated in Tennessee. In some cases the leftovers after incineration are declared as "Tennessee" waste, not foreign, before it is shipped to Clive for disposal.

E-mail: sspeckman@desnews.com

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