Waste fight heading to court

DENVER — The legal stage is set for Utah's big showdown with EnergySolutions over the company's efforts to dispose of low-level radioactive waste from Italy at its Clive facility in Tooele County.

Attorneys from multiple dimensions in the battle are set to argue the case Thursday before the 10th Circuit Court of Appeals, where the authority of multistate compacts governing the storage of the material will be picked apart.

At issue is the May 2009 ruling by federal Judge Ted Stewart and the state's subsequent appeal that EnergySolutions' facility is not a "regional" disposal facility and thus falls outside the purview of a compact's ability to restrict the type of nonregional waste that is received.

Federal legislation set up multiple regional compacts in the mid 1980s to allow states a way to manage and store low-level radioactive waste generated within compacts' boundaries. The idea was to equitably spread the burden of storing the material, in contrast to 1979 when South Carolina's Barnhill facility received an estimated 80 percent of the nation's low-level radioactive waste.

Utah, joined by multiple compacts, has argued that because EnergySolutions' facility is located within the boundaries of the Northwest Compact, the regional association rightly has the ability to prohibit the company from accepting foreign waste.

Any legal edict to the contrary would set the compact system on its ear, give states no incentive to join and signal a return to the storage issues posed 30 years ago, they contend.

"The compact system was intended to be a solution to the serious low-level radioactive waste disposal problems that existed in the 1970s," according to arguments filed in the case. "The district court's ruling does nothing but undermine the solution and foreshadow a return to the crisis that plagued the nation prior to implementation of the compact system."

EnergySolutions counters that compacts correctly have authority to regulate "regional disposal facilities" within their boundaries, but the legislation was never intended to exercise such broad authority over a privately owned facility established after passage of the law.

While the Northwest Compact has acted to restrict the Richland, Wash., disposal site to only accept waste within the region's boundaries, EnergySolutions' facility at Clive was never "established and operated under a compact," and the facility has "without objection from the compact consistently received (low-level radioactive waste) generated outside the compact region," according to documents.