N-waste facility against law, state lawyers say

It is unlawful to store high-level nuclear waste at an off-site facility that is not owned and operated by the federal government, Utah attorneys say.

That is why the lawsuit filed by a consortium of nuclear power utilities against the state should be dismissed.

This is the state's latest legal argument in an attempt to block Private Fuel Storage from shipping and storing nuclear waste at a proposed facility on Goshute tribal lands.

In a motion filed in U.S. District Court Thursday, the state asked Judge Tena Campbell to dismiss the lawsuit because the Nuclear Waste Policy Act of 1982 prohibits high-level nuclear waste from being stored off-site at another facility that is not owned and operated by the federal government.

"What we're saying is the proposed storage facility is unlawful," said Larry Jensen, an assistant attorney general. "It's prohibited by federal law and if we're right there is no basis for the PFS lawsuit."

Sue Martin, spokeswoman for PFS, said that argument has no merit.

"(Nuclear waste) has been shipped to other facilities from time to time," Martin said. For instance, when Northern States Power Co. in Minnesota closed down one of its plants it stored nuclear waste at a General Electric plant in Illinois, she added.

Jensen said that plant may have been licensed to store the waste prior to federal law in 1982.

"The reality is that 99.9 percent of the stuff is stored where it is generated," he said. "And that is what Congress said it must do in 1982."

It hadn't become an issue until after 1997, Jensen said. That's when Goshute tribal leaders signed a lease with PFS seeking to store up to 40,000 tons of spent nuclear fuel rods in above-ground steel casks. The Nuclear Regulatory Commission is currently reviewing the application.

Gov. Mike Leavitt, Utah's congressional leaders and state legislators have fought it every step of the way.

During the 2000 Legislature, lawmakers passed laws prohibiting the shipment of nuclear waste into the state requiring PFS to pay $150 billion in upfront fees, imposing a 75 percent tax on anyone providing services to the project and barring Tooele County from providing municipal services including police and fire to the storage site about 70 miles southwest of Salt Lake City.

PFS responded in April with a federal lawsuit challenging the constitutionality of the laws. PFS's lawsuit maintains the state is violating interstate commerce and is interfering with tribal sovereignty.

In concept, the storage plan calls for the waste to remain in Skull Valley only until a permanent repository is built, presumably at Yucca Mountain, Nev., sometime in the next two decades.

Congress has been debating what to do with the nation's spent nuclear fuel rods, which are currently piling up at temporary storage sites at nuclear reactors around the country.

"The utilities for a long time thought the federal government was going to provide a storage facility," Jensen said.

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E-mail: donna@desnews.com