DENVER - In a dispute being watched around the world, a federal appeals court hosted a debate Thursday on who has final say over what goes into a Utah radioactive waste site.
At issue is whether EnergySolutions Inc., which operates a radioactive waste landfill in Tooele County, can dispose of waste from foreign nations over the objections of the state and a regional oversight panel.
EnergySolutions Inc. attorney Mike Lee argued that Congress only granted the Northwest Interstate Compact on Low-level Radioactive Waste authority over the privately owned and operated Utah site for a couple of years.
Lee urged the three-judge panel to uphold last May's decision by U.S. District Judge Ted Stewart, which says the company has the right under the free-commerce provision of the U.S. Constitution to accept foreign waste.
"We're still confident in our legal position," said company president Val Christensen after oral arguments Thursday at the 10th U.S. Circuit Court of Appeals.
But lawyers for the state of Utah and two regional compacts told the judges that Stewart's ruling should be overturned because Congress never scaled back the compact's authority to manage the flow of waste in member states. In fact, Congress created compacts specifically to empower member states to stop outsiders from dumping on them.
"The bottom line," said compact attorney Kristen Brewer, "is that the compact is the only way the states have control over their own destinies."
Exactly who has the authority to control the flow of radioactive waste became an issue more than two years ago, when the Salt Lake City-based nuclear waste company requested a license to import low-level radioactive waste from Italy's dismantled nuclear program.
About 20,000 tons of the waste, which includes depleted uranium, would be imported under the proposal. Some 1,600 tons of debris would be buried in the company's Tooele County disposal facility after processing in Tennessee.
The U.S. Nuclear Regulatory Commission has put the import request on hold as it waits for the courtroom wrangling to end. The agency, which has received thousands of public comments opposing the plan and a couple hundred supporting it, cannot consider whether people like the idea of foreign waste imports but only whether the waste meets safety standards and a disposal site has agreed to accept it.
States are barred from restricting the waste under the Constitution's commerce clause. That leaves only the compacts with the legal authority to block unwanted shipments.
Utah required Envirocare of Utah, EnergySolutions' predecessor, to get the Northwest Compact's approval 19 years ago as part of the state license requirements. The company complied with the compact's terms until 2008, when the state of Utah asked fellow Northwest compact members to make it clear that foreign waste was banned.
Lee said Thursday that provision is no longer part of the company's license. He also told the judges that if states want to shut out foreign waste, they should not approve low-level waste sites.
"All states still have that right," said Lee, a U.S. Senate Republican candidate and former legal counsel to Gov. Jon Huntsman Jr.
Judges peppered both sides with questions aimed at zeroing in on exactly what Congress had in mind during the multi-year, multi-law process creating the compacts in the 1980's.
Judge Deanell Reece Tacha said the wording of federal law clearly gives compacts the authority to exclude waste and clearly adopts the charter of all the compacts, including provisions like the Northwest Compact's wording that all radioactive waste facilities within the boundaries of member states are subject to the compact's authority.
"It's just so clear," she said, calling herself "a plain-language person."
Utah Assistant Attorney General Denise Chancellor told judges the main concern for Utah is that once waste from Italy is allowed, then neither the state nor the NRC will have any way of limiting waste from all over the world.
In Congress, Utah Reps. Jim Matheson, a Democrat, and Jason Chaffetz, a Republican, are co-sponsors of legislation to ban most imports of low-level radioactive waste. Rep. Rob Bishop, the Republican representing EnergySolutions' district, is a former lobbyist for the company and has not supported the legislation.
Meanwhile, a Senate version of the bill is being held up because of objections by U.S. Sen. Bob Bennett, R-Utah, who says he is watching the court case and whose campaign chairman is a former communications director for the company.