Imagine a Utah that cannot shut the gate on foreign radioactive waste, cannot outlaw hotter low-level waste and cannot even revoke the license of a nuclear waste disposal site within its borders.
That anything-goes scenario might well become reality if EnergySolutions Inc. wins its legal quest to strip a regional waste agency of its legal powers, according to a lawyer for the state of Utah.
The issue is at the core of a case argued Thursday before U.S. District Judge Ted Stewart.
EnergySolutions says a regional oversight agency has no say over the company's mile-square disposal site in Tooele County, since it's a private business with cross-border commerce rights granted by the U.S. Constitution.
On the other side, lawyers for the state, the Northwest Interstate Compact and the Rocky Mountain regional compact said Congress set up the national radioactive waste system specifically to give them control over hot waste within their boundaries.
The judge said he would rule as soon as possible, and he would not consider his decision's wider impacts.
"When all is said and done," said Stewart, "I have a very narrow responsibility and that is to rule on what Congress intended in 1985" in the amended Low-Level Radioactive Waste Policy Act.
EnergySolutions is asking for a declaratory judgment that says the company's landfill 80 miles west of Salt Lake City need not abide by the Northwest Compact, of which the state of Utah is a member. Congress never gave compacts broad authority over private sites, the company said.
But state and compact lawyers said all three sites that existed when Congress created the low-level waste system also were operated by private companies. Low-level sites, including one EnergySolutions runs in South Carolina for the Southeast Compact, have faced compact controls ever since, they argued.
Barbara Green, representing the Rocky Mountain Compact, noted that states asked Congress to create the compacts so they would stop being "dumping grounds" for other states that refused to develop their own hot waste sites. She said interpreting the law as EnergySolutions suggests would obliterate the compact system.
Utah Assistant Attorney General Fred Nelson recalled how lawyers for the state and the company agreed 18 years ago that the Northwest Compact's blessing was needed before the EnergySolutions' site could accept low-level radioactive waste and that complying with compact rules would be a condition of the company's state license.
Utah worried that, otherwise, the state's universities and businesses would not be able to send their low-level waste to Richland, Wash., for disposal. EnergySolutions is not permitted to take material that hazardous.
The case is being watched around the world.
In Europe, potential customers are waiting to see if the judge opens the door for waste generated there to come to Utah for disposal.
The company already has proposed importing 20,000 tons of waste from Italy, processing it at a plant in Tennessee and disposing of 1,600 tons of waste in Tooele County
Company chairman and chief executive officer Steve Creamer said in a conference call Thursday that accepting foreign waste would be benefit investors. "We believe we have a legal right to dispose of this material," he told them.
Nationally, states with disposal sites fear losing control over the flow of radioactive waste.
The Utah Radiation Control Board and Gov. Jon Huntsman Jr. oppose EnergySolutions' site housing foreign-generated waste. Thousands of Utah citizens urged federal regulators to deny the import license last year.
Utah legislative leaders said earlier this week that they are considering legislation to snare some of the profits from foreign-waste disposal if EnergySolutions wins its case. Earlier this month, the company proposed giving the state half its profits from foreign-waste disposal -- up to $1.5 billion over a decade.
The company applauded a ruling Stewart made in the first minutes of Thursday's hearing, that the Utah disposal site "is not a regional disposal facility."
Legislators have said in recent weeks that EnergySolutions had told them Stewart would rule from the bench Thursday in favor of the company. When asked if the parties had been informed of that ruling in advance, Stewart's clerk said: "I cannot confirm or deny that."
Attorneys for the state said they had not considered that determination significant to the case.
