EnergySolutions wins court battle to import foreign waste

EnergySolutions Inc. has won its legal battle to import low-level radioactive waste from Italy, after a federal court ruling Friday.

The decision by U.S. District Judge Ted Stewart in Salt Lake City validated the Salt Lake City-based company's arguments that its efforts to bring the waste to Utah fall outside the regulatory purview of the Northwest Compact, a regional coalition of states tasked with overseeing low-level radioactive-waste management.

Attorneys for EnergySolutions had successfully argued in February that the compact's authority only extended to waste generated within the compact boundaries of its member states and that it was not the intent of Congress to grant any overreaching authority beyond that.

"The law is very clear, and we are very pleased with the ruling," said Jill Segal, a company spokeswoman. "We always believed we are not a compact facility" subject to those regulations, she said.

A spokesman with the Utah Attorney General's Office said late Friday that a decision on whether to appeal the judge's ruling is under review, but top leaders in the state, notably Gov. Jon Huntsman Jr., have indicated strident opposition to allowing the foreign waste in Utah.

EnergySolutions operates a 439-acre low-level radioactive-waste disposal facility in Tooele County's west desert, where the company has said the Italian waste would occupy 4.3 acres in the total disposal area.

The waste is not headed there yet, pending the Nuclear Regulatory Commission's approval of an import-license request submitted by EnergySolutions. The timeline on that consideration is not clear, but Friday's victory removes yet one more hurdle for the company, which operates several disposal or processing facilities throughout the United States, as well as the United Kingdom.

In his ruling, Stewart referred to the impetus of the compacts' existence — a burden sharing among regions of the United States to ensure the safe disposal of low-level nuclear waste. EnergySolutions' Clive facility, he said, "is not now and never has been a regional disposal facility."

The regional compactswere set up to regulate regional waste, he said. To grant any authority beyond that, "would be potential to regulate a private (low-level radioactive-waste) facility out of existence (and) is the potential to severely interfere with interstate commerce," an intent which was not spelled out by unclear congressional language in documents that created the compact, Stewart said.

The bench ruling was a victory hailed by Energy Solutions, which this past February had offered to pay the state some $100 million a year over the next decade to allow low-level waste from overseas to be dumped in Utah. But lawmakers hesitated during the last legislative session and ended up taking no action.

The ruling Friday was the second victory for EnergySolutions based on arguments submitted to the federal court following a lawsuit the company had filed several years ago challenging both the state's and the compact's efforts to keep the waste out of Utah. The company had successfully argued that Congress never intended for the compact's regulatory authority to be so broad as to stop importation of the waste.

"We have always felt confident in our legal position and appreciate the thoroughness of Judge Stewart's decision in this case," said Steve Creamer, Chief Executive Officer and Chairman of EnergySolutions. "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. We are pleased that this ruling ends any question on this matter."

email: amyjoi@desnews.com