May 16 - McClatchy-Tribune Regional News - Judy Fahys The Salt Lake Tribune

A federal judge Friday opened the door for foreign radioactive waste to be disposed of in Utah.

In a case being watched around the world, U.S. District Court Judge Ted Stewart ruled that the Northwest Interstate Compact on Low-level Radioactive Waste has no authority to limit the flow of radioactive waste to the EnergySolutions Inc. disposal site in Utah's West Desert.

"We hope this ruling will end any question on the matter," said EnergySolutions spokeswoman Jill Sigal.

Representatives of the Northwest Compact and its two partners in the case, the state of Utah and the Rocky Mountain Compact, said it was too soon to say whether they would appeal the 31-page ruling, which was released Friday afternoon.

Alice Blado, counsel to the 8-state Northwest Compact, pointed out that the judge has yet to rule on two outstanding questions.

"This decision," she said, "doesn't fully resolve the case."

EnergySolutions filed the suit just over a year ago. It asked the court to determine whether Congress gave the compacts authority to control the flow of low-level radioactive waste to a site like the privately owned and operated site in Tooele County, formerly Envirocare of Utah.

It also asked the judge to rule on whether the U.S. Nuclear Regulatory Commission and the U.S. Constitution's Commerce Clause have overarching authority, but he did not address it in Friday's ruling.

EnergySolutions wanted to eliminate an

obstacle to its multibillion-dollar plans to clean up foreign radioactive waste. It already had applied with the NRC for a license to import 20,000 tons of waste from Italy's dismantled nuclear reactors, extract the metals in a Tennessee processing plant and bury the remaining 1,600 tons at the mile-square site in Tooele County.

EnergySolutions is licensed to take low-level waste, not the high-level waste left over from nuclear reactors.

Thousands of people protested the plan to the NRC. And members of Congress from both parties signed onto House and Senate legislation to ban foreign imports of radioactive waste.

"The next step is in the NRC's hands," Sigal said.

She also disputed the suggestion that some have raised that a ruling in EnergySolutions' favor would threaten the entire national system for controlling low-level radioactive waste.

The system, developed largely in the 1980s, gives regional groups authority to, in effect, put a fence around the waste from member states. Utah is an original member of the Northwest Compact.

Congress set up the system at the request of states with low-level-waste disposal sites that felt they were being dumped on by states that had failed to take responsibility for their own radioactive waste. But the Utah site was approved outside that system, when a state regulator and the disposal site's original owner asked the Northwest Compact for an exception.

Last spring, compact members clarified their longtime agreement with EnergySolutions that foreign waste is not permitted.

Stewart's ruling basically says Congress didn't specifically mention sites like the one now owned by EnergySolutions. During oral arguments on, he had ruled that the Utah site is not and has never been "a compact site."

"The court accepts Northwest's representation that it has no intention of depriving EnergySolutions of the ability to import domestic [waste] but is deeply troubled by the potential for abuse if private [waste] disposal facilities were to be left so completely at the whims of the compacts," the ruling said.

Some have said that unless the compacts with disposal sites -- the Northwest Compact and the Southeast Compact -- are confident in their power to exclude waste within their boundaries, they might shut those sites down.

But Sigal disputed that suggestion.

"We do not think this ruling has any impact on the compact system," she said, "because EnergySolutions is not a part of the compact system."

Bill Sinclair, director of the Utah Department of Environmental Quality and Utah's representative on the Northwest Compact board, was reluctant to comment before consulting with the state's attorneys, fellow compact members and Gov. Jon Huntsman Jr.

"We are definitely going to huddle and determine what the next steps are," he said.

But he noted that there are still several issues that must be resolved before any foreign waste might be shipped to Utah. One is that the NRC still hasn't given Utah the hearing it requested on the import license.

"There are still lots of things that have to happen before [waste] comes from Italy."

fahys@sltrib.com

EnergySolutions files suit May 5, 2008, seeking a judge's ruling that a regional radioactive waste organization, the Northwest Compact, has no authority over waste coming to its site.

The U.S. Nuclear Regulatory Commission puts on hold the company's request for a license to import 20,000 tons of waste from Italy's dismantled reactors, recycle it at an EnergySolutions plant in Tennessee and dispose of the remaining 1,600 tons in Utah.

A federal judge rules Friday that EnergySolutions is correct, Congress never put the Utah disposal site under the compact's authority.

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