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The federal government has no business overruling state laws blocking the transportation of spent nuclear fuel into Utah, the governor and attorney general said Friday, especially when the laws haven't even had a chance to be applied.
For that reason and others, the state is asking the U.S. Supreme Court to review a lower court's decision on the proposal to bring spent nuclear fuel to the Goshute reservation, Gov. Olene Walker and Attorney General Mark Shurtleff announced in a joint appearance at the Capitol.
Stopping a nuclear waste storage facility on the Skull Valley reservation 45 miles southwest of Salt Lake City is a states' rights issue, Walker said.
"My first priority is the safety of Utahns. I oppose high-level nuclear waste storage in Utah and hope the waste never comes here," she said. "But history has taught us that a strong framework of federal and state law is needed."
The state is petitioning the high court to review a 10th U.S. Circuit Court of Appeals ruling in August that said the state was wrong to pass laws in 1998 and 2001 intended to block the project because Congress already had decided it was the federal government, not the states, that is the authority on spent nuclear fuel.
The ruling upheld an earlier decision from U.S. District Judge Tena Campbell, and was considered a major setback in the fight to stop a plan by a consortium of eight electric utilities, known as Private Fuel Storage, to ship their deadly nuclear power plant waste to Utah for open-air storage until it could be taken to a permanent repository at Yucca Mountain, Nev.
The petition to the Supreme Court questions whether it was proper for the 10th Circuit to issue what Utah Assistant Attorney General Denise Chancellor called "an advisory position." Chancellor, the attorney who would present the case if the high court accepts it, said Utah also questions 10th Circuit intervention into a "totally local" issue of road transfers necessary to complete the PFS project.
The petition also asks for review of the project's potential unfunded liability and the nature of PFS's limited liability business structure.
Further, the appellate court "swept aside the Utah laws even though the laws have not yet been applied, may never be applied because the project still lacks the needed federal approvals" and could be applied without usurping federal laws, the petition claims.
PFS spokeswoman Sue Martin said she hadn't seen the state's petition but that the consortium's lawyers were reviewing it. "We understand it is certainly the state's right to appeal the decision of the appeals court," she said.
The proposed license for the facility at the Skull Valley reservation is now before the Atomic Safety Licensing Board, which in mid-September completed three weeks of closed-door hearings on the correctness of an earlier determination that the possibility of a fighter jet crashing on the canistered waste posed an unacceptable risk.
PFS wants to store as much as 44,000 tons of radioactive waste from the nation's 103 commercial reactors, nearly all such waste that has been generated since utilities turned to nuclear power for cheap electricity.
The 4,000 steel-and-concrete casks would hold the waste on 100 acres of the reservation for up to 40 years. The transportation plan would require shipping by rail, truck and barge and the construction of a rail spur to the reservation.
The group has presented the project as a temporary solution to the problem of the waste, which by federal law was supposed to have been shipped to a permanent federal repository that was to open in 1998. Utah has no nuclear power plants.
Multiple problems with the Yucca Mountain project, including lawsuits, intractable opposition from the state of Nevada and a lack of funding has made the new 2010 opening deadline unlikely. Democratic presidential candidate John Kerry has vowed to kill the Yucca Mountain project if he is elected.
A more fundamental problem with the PFS proposal recently came to light: The contracts under which the Department of Energy will accept the nuclear waste don't allow for PFS to send the fuel to Yucca Mountain in sealed canisters. The PFS proposal doesn't include a facility in Skull Valley that would allow the private business to package the spent fuel to DOE specifications.
Additionally complicating the PFS agreement with the Goshutes are two federal indictments pending against tribal chairman Leon Bear for embezzlement and tax fraud. Bear has been embroiled in a leadership battle with the 121-member tribe since he signed the contract with PFS on behalf of the tribe in 1997.
Utah officials fear that if PFS receives its 20-year renewable license - and that could happen as early as January - and the facility is built, what gets shipped here will never leave.
Walker this week posted on her Web site a missive declaring, "If it comes here, it will not leave," and concluding the only way to manage PFS was to block it.
"Moving this stuff is a huge enterprise," said Assistant Attorney General Jim Soper. "The attitude of the [nuclear] industry is, 'If we can send it to Utah it will be there for 40 years.' I think once it gets here, it won't leave."
Soper said the state on Thursday sent a 200-plus page response to the Atomic Safety Licensing Board's deliberations. The state expected to receive a copy of PFS' response Friday. Both sides then have three weeks to rebut each others' positions.
Candidates for governor, Republican Jon Huntsman Jr. and Democrat Scott Matheson Jr., oppose the facility, as does all of Utah's congressional delegation.