Private fuel storage case to be heard?

The U.S. Supreme Court may decide within two weeks whether to consider an appeal of a lower court ruling that threw out "a raft" of Utah laws concerning Private Fuel Storage, the high-level nuclear waste repository planned for Tooele County.

But the appeal won't make it to the highest court if the U.S. solicitor general has his way.

The Solicitor General's Office, part of the Justice Department, is battling against the Utah position on PFS. It is urging the Supreme Court not to hear the state's appeal.

The highest court had asked for comments on the question of whether a federal court "may sweepingly invalidate, as preempted on their face by the Atomic Energy Act, a variety of state laws that have not been and may never be applied" in the matter.

Attorneys for Utah and for the Solicitor General's Office responded with briefs spelling out their positions. First on the list of federal attorneys submitting the brief is Solicitor General Paul D. Clement.

The Deseret Morning News obtained copies of both briefs; the federal document is dated September, while the state response is dated Nov. 14.

In their brief, Clement and his team insist that only the federal government can regulate nuclear issues.

The 10th Circuit of Appeals determined "that the state had legislated in a pre-empted field of federal law by enacting a series of binding and burdensome laws to protect against what the state perceived to be an unacceptable risk of radiation hazard," it says.

The Solicitor General's Office conducts the federal government's case on issues before the Supreme Court.

Between 1998 and 2001, the Legislature passed a series of laws aimed at PFS, regulating and taxing the facility. In his State of the State address in 1999, then-Gov. Mike Leavitt called for more state action to stop PFS.

State officials were concerned about safety, both in the areas of transportation to and from the plant and at the storage site itself, which would be built on Goshute Indian land in Skull Valley. The facility would house 40,000 tons of spent radioactive nuclear fuel rods from power plants, hauled in by railroad.

The Utah laws, adds the federal document, are intended "to ban or limit the storage and transportation of nuclear fuel."

However, it argues, a federal law — the Atomic Energy Act of 1954 — gives the Nuclear Regulatory Commission "exclusive jurisdiction to license the transfer, delivery, receipt, acquisition, possession and use of nuclear materials."