Court allows foreign shipment to Utah

A Salt Lake City-based company can import Italian nuclear waste for disposal in Utah, a federal judge ruled Friday.

Judge Ted Stewart of the U.S. District Court for the District of Utah Central Division ruled that EnergySolutions cannot be prohibited from bringing 1,600 tons of low-level radioactive waste, or LLRW, from Italy to the company's facility in Clive, Utah.

The ruling is a defeat for the Northwest Compact -- comprising Utah and seven other states -- which sought to block EnergySolutions' plan, arguing that the Clive site is under the compact's jurisdiction as a regional waste-disposal facility. The compact is one of 10 created by a 1985 federal law aimed at making states responsible for nuclear-waste disposal.

But Stewart denied EnergySolutions' claim that the compact lacks authority to regulate wastes received in the region.

"The Court ... is troubled by the potential for abuse if private LLRW disposal facilities were to be left so completely at the whims of the compacts," Stewart wrote. "Uncertainty thus created may be sufficient to deter private efforts to increase LLRW disposal capacity, and thereby frustrate, in part, the intent of the Acts.


"Furthermore, the potential to regulate a private LLRW facility out of existence is the potential to severely interfere with interstate commerce and is not, in this case, accompanied by an unambiguous expression of Congressional intent to permit such interference."

The ruling allows the Nuclear Regulatory Commission to finish its review of the import license for 20,000 tons of waste that EnergySolutions filed in September 2007. The commission had delayed its work until the court ruling.

EnergySolutions is proposing that the imported wastes be processed in Oak Ridge, Tenn., with the remaining 8 percent of the waste, about 1,600 tons, going to Clive.

NRC has jurisdiction over whether to grant a license to companies to import foreign waste, but the commission rules only on the health and safety issues of importing the waste, not on facility capacity or other policy issues.

"Our Clive, Utah, disposal facility is a private commercial facility that is licensed by the State of Utah under delegated authority by the Nuclear Regulatory Commission," said Steve Creamer, CEO and chairman of EnergySolutions, in a statement. "We are pleased that this ruling ends any question on this matter."

Alice Blado, counsel to the Northwest Compact, said the judge has yet to rule on two outstanding questions, whether NRC and the Constitution's Commerce Clause has overarching authority. She told the Salt Lake Tribune on Friday, "This decision doesn't fully resolve the case."

Congress has also taken up the issue. Reps. Bart Gordon (D-Tenn.), Jim Matheson (D-Utah) and Lee Terry (R-Neb.) introduced H.R. 515 in January, which would only allow foreign radioactive waste to be imported if it is being returned to a U.S. government facility, originated in the United States, or is approved by the president to "meet an important national and international policy goal." The bill has 79 co-sponsors, and Sen. Lamar Alexander (R-Tenn.) introduced a companion Senate measure, S.232.

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