Decision delayed on importing nuclear waste

NRC says federal court case must finish first

By Brice Wallace
Deseret News

The Nuclear Regulatory Commission said Monday that it will hold off on deciding about EnergySolutions Inc.'s application to import low-level radioactive waste from Italy for disposal in Utah, saying a federal court case in Utah must finish first.

In its order, the commission said it would defer action — including hearings — on the pending application until a federal lawsuit brought by the company is resolved or EnergySolutions "outlines an alternative plan for disposal" of the imported waste.

EnergySolutions has applied for an NRC license to import 20,000 tons of low-level radioactive waste from closed nuclear plants in Italy for processing at an EnergySolutions facility in Tennessee. The company would dispose of part of the waste — about 1,600 tons of Class A radioactive waste — in Utah at a state-licensed facility in Clive, Tooele County. Any materials unable to be disposed of there would be exported back to Italy, although EnergySolutions has indicated it doesn't expect that would be necessary.

The eight-state Northwest Interstate Compact on Low-Level Radioactive Waste Management, of which Utah is a member, has ruled that EnergySolutions can accept domestic low-level waste from outside the compact area, but no foreign low-level waste, at the Clive facility.

In May, EnergySolutions filed a federal lawsuit against the compact, seeking a ruling that the compact has no regulatory authority over the Clive facility because it is not a regional disposal facility created by the compact.

"While both EnergySolutions and the state of Utah briefed this issue, the commission will not wade into the legal dispute between EnergySolutions and the Northwest Compact now before the federal district court in Utah," the commission said in its order Monday. "A commission decision on the extent of the Northwest Compact's exclusionary jurisdiction would not be binding on the courts."

"Basically, if the court were to issue a decision or the two sides were to reach a settlement, the next step for the NRC would then be to pick up the request for a hearing and decide, based on the situation at that time, whether they would grant a hearing, and after that, they could direct the staff to do one thing or another regarding the license application," NRC spokesman David McIntyre said Monday.

Jill Sigal, senior vice president of government relations for EnergySolutions, said the NRC's action is "another step in the process" and "a very prudent course of action."

"We are not surprised by the commission action today," Sigal said. "We respect the commission's decision. We think it is a reasonable action to take in light of pending actions for a declaratory judgment...We do not view this as a setback. It makes sense for the NRC to take this action until the action for declaratory judgment is decided by the judge."

Sigal said EnergySolutions maintains its stance that its application meets the requirements for an NRC license.

"The material poses no health or safety risks, and we have both permanent facilities in Tennessee to process the material and a permanent licensed facility in the state of Utah to dispose of the residual small amount of Class A waste," she said.

Rep. Jim Matheson, D-Utah, said the NRC's delay shows it is unclear who is in charge of regulating the import of foreign radioactive waste, and underscores the need for a bill he is pushing with Rep. Bart Gordon, D-Tenn., to ban such imports.

"What we have is a company asking to dump foreign waste in this country, even though there's no state willing to take it, and it's created a policy vacuum that leaves us vulnerable to becoming the world's nuclear garbage dump," Matheson said.

Gordon said the delay may give him and Matheson time to enact their bill. "By postponing their decision until this lawsuit is decided, my colleagues and I will have time to get the ban on importing foreign nuclear waste signed into law," he said.

The NRC received more than 2,500 responses — mostly negative — to EnergySolutions' application before the public comment period ended in June.