9/24/08
EnergySolutions v. Northwest Interstate Compact on Low-Level Radioactive Waste Management
Rocky Mountain Compact Granted Intervenor Status in Suit Challenging Northwest Compact’s Authority
On September 18, 2008, the U.S. District Court for the District of Utah, Central Division, granted an Unopposed Motion to Join the Rocky Mountain Low-Level Radioactive Waste Compact as a defendant in a lawsuit filed by EnergySolutions against the Northwest Interstate Compact on Low-Level Radioactive Waste Management and against Michael Garner solely in his official capacity as Executive Director of the Northwest Compact. The State of Utah’s unopposed motion to intervene as a defendant in the action was previously granted by the court on August 28, 2008. The lawsuit—which was initiated on May 5 of this year—seeks, among other things, a declaratory judgment “to clarify the authority of the Northwest Compact to govern EnergySolutions’ privately owned, commercial, low-level radioactive disposal site in Clive, Utah.” (See LLW Notes, May/June 2008, pp. 25-28.)
Rocky Mountain Compact’s Motion to Intervene as a Defendant
Arguments In its motion to intervene as a party defendant, the Rocky Mountain Compact asserts that it has a right to intervene because • as a Congressionally-approved compact, it has the right to intervene in any administrative or judicial proceeding involving low-level radioactive waste; and, • it has an interest in the subject matter of the proceeding and is so situated that the case’s disposition may as a practical matter impair or impede its ability to protect that interest. The compact also argues that intervention should be allowed because “there are common questions of law and fact regarding the compact system which impact the Rocky Mountain Compact” and because the case “involves claims based upon state and federal regulations, orders, requirements, and/or agreements which relate to the management of low-level radioactive waste and the compact system.” Response While EnergySolutions stated that it does not agree with many of the assertions and legal conclusions set forth in the defendants’ motion and accompanying memorandum and does not agree that the Rocky Mountain Compact is a proper party to the action, the company acknowledged that the court has discretion to permit intervention in certain circumstances. Accordingly, EnergySolutions did not object to entry of an order making the state a party to the action, subject to conditions that were agreed upon and stipulated by the parties. Order Pursuant to the terms of the court’s order granting the Rocky Mountain Compact party status as a defendant in the case, the compact has 15 days to file an answer to EnergySolutions’ first amended complaint and must file their memoranda in opposition to the plaintiff’s motion for summary judgment on Count I no later than October 21, 2008. The compact is required to comply with previously established discovery and case management schedules and to coordinate with the defendants to avoid duplication of discovery. The compact may not file separate claims for relief unless EnergySolutions seeks leave to file a second amended complaint.
Rocky Mountain Compact’s Answer to the First Amended Complaint
On August 29, the Rocky Mountain Compact submitted its answer in response to EnergySolution’s first amended complaint. Responses to Arguments In its answer, the Rocky Mountain Compact affirmatively alleges that the facility is subject to the Northwest Compact’s authority and constitutes a “regional disposal facility” under the terms of the Northwest Compact. In addition, the compact denies EnergySolution’s allegation that the Clive facility has never been operated under a compact. The Rocky Mountain Compact also denies that the Northwest Compact’s actions regarding the proposed importation of foreign waste to the Clive facility violate federal statutes and/or the Commerce Clause of the U.S. Constitution. Affirmative Defenses As affirmative defenses, the Rocky Mountain Compact charges that • the complaint fails to state a claim upon which relief can be granted and raises non-justiciable political questions; • the court lacks personal jurisdiction over the defendants; • venue is not proper; • one or more of the listed claims are barred because they are not ripe for adjudication; • the plaintiff failed to exhaust its administrative remedies, waived one or more of the listed claims, and lacks standing to bring one of more of the listed claims; and, • the requested relief may be barred by the Eleventh Amendment to the U.S. Constitution.
Background
The action arises out of a proposal from EnergySolutions to import up to 20,000 tons of potentially radioactively contaminated material from Italy and to export for return to generators in Italy any of the imported waste that can not be recycled or does not meet the Clive facility’s waste acceptance criteria for disposal. (See LLW Notes, November/December 2007, pp. 6-9.) Under the proposal, the contaminated material would be processed at EnergySolutions’ Bear Creek facility for recycling and beneficial reuse with any resultant waste being disposed at the Clive facility. EnergySolutions estimates that approximately 1,600 tons of the imported material would be disposed as Class A LLRW at the Clive facility. The Northwest Compact heard from both proponents and critics of EnergySolutions’ proposal during a meeting on May 8, 2008. Following a closed-door session, they voted unanimously that the compact’s Third Amended Resolution and Order—which authorizes access for LLRW to the Clive facility subject to the provisions of the company’s license from the State of Utah—does not address foreign LLRW and that an arrangement would need to be adopted prior to such waste being provided access to the region for disposal at the Clive Facility. (See LLW Notes, May/June 2008, pp. 1, 7-9.) Three days prior to the meeting, on May 5, 2008, EnergySolutions filed a lawsuit challenging the Northwest Compact’s authority over the Clive facility. (See LLW Notes, May/June 2008, pp. 25-28.) Among other things, EnergySolutions argues that (1) the Clive facility is not a “regional disposal facility” as defined by the LLRWPA and the Northwest Compact therefore lacks authority to restrict the flow of LLRW to the facility; (2) NRC’s authority and responsibility for the regulation of the export and import of byproducts and nuclear materials preempt any attempt by the Northwest Compact to restrict or prevent the importation of foreign waste to the Clive facility; and, (3) any effort by the Northwest Compact to restrict or prohibit the Clive facility from receiving foreign LLRW would amount to unauthorized discrimination against foreign commerce and would be prohibited by the dormant Commerce Clause of the U.S. Constitution. The Rocky Mountain Compact has a contract with the Northwest Compact and the State of Washington for the disposal of commercial Class A, B and C low-level radioactive waste at the compact’s regional disposal facility in Richland, Washington. In 2005, the State of Washington and US Ecology agreed to incorporate a clause in the new sublease for the Richland disposal facility that allows the state to terminate the sublease if the Northwest Compact loses exclusionary authority on out-of-region low-level radioactive waste provided by federal law.
For additional information, please contact Leonard Slosky, Executive Director of the Rocky Mountain Compact, at (303) 825-1912; Tye Rogers, Vice President of Compliance and Permitting at EnergySolutions, at (801) 649-2000; or, Michael Garner, Executive Director of the Northwest Compact, at (360) 407-7102.
Sep. 19, 2008
Copyright © Las Vegas Review-Journal
CORRECTION -- 09/20/08 -- In a Friday Review-Journal story about the Yucca Mountain Project, a comment about momentum building among some members of Congress toward reprocessing nuclear waste was misattributed. The comment should have been attributed to Sen. John Ensign, R-Nev.
NUCLEAR PROJECTS AGENCY: Yucca fight reaffirmed
Lawmakers: Loux rift won't end opposition
By STEVE TETREAULT
STEPHENS WASHINGTON BUREAU
WASHINGTON -- No matter what happens with the embattled director of Nevada's Nuclear Projects Agency, the state will not give up the fight against Yucca Mountain, Nevada's senators vowed Thursday.
Sens. Harry Reid and John Ensign insisted the Energy Department's plans for a nuclear waste repository are still more dead than alive, even as the department made progress this summer moving it toward construction.
In a conference call with reporters, the senators said they wanted to nip in the bud any thoughts that the state should abandon its long-held opposition and seek benefits instead from the federal government to host the site."There will be no deal cut," Reid said.Rep. Shelley Berkley, D-Nev., echoed Reid and Ensign in a separate interview.Berkley said the nuclear industry and supporters of Yucca Mountain "smell blood" in the turmoil surrounding the Agency for Nuclear Projects, whose executive director, Bob Loux, is under fire for giving himself and his staff unauthorized raises.Although Berkley said she disapproved of Loux's actions and expected him to leave the job, "let's not throw out the baby with the bath water" by altering strategy in the anti-Yucca campaign.Members of the state's congressional delegation were largely silent in the days after the disclosure by Loux that he gave himself and other staffers raises up to 16 percent.Gov. Jim Gibbons demanded that Loux resign, but the director's fate rests with a seven-member Commission on Nuclear Projects that oversees his office.It is not clear when the case will be resolved. A commission meeting that was set for Tuesday has been canceled because of a failure to post a timely public notice. Commission chairman Richard Bryan said a new hearing might be Sept. 29 in Las Vegas.The pay scandal has sparked discussion in op-ed pages whether the state should take stock of its battle against Yucca Mountain.While polls show a majority of Nevadans oppose Yucca Mountain, there are citizens who believe the massive government project could provide an economic shot in the arm.Some others argue the repository is inevitable and the state should protect its interests rather than battle to the end.Reid insisted that only a "tiny segment" favors such a plan, and Ensign added that "there are no benefits to get."Chuck Muth, a Carson City conservative activist who has written that Nevada should reconsider its Yucca Mountain stance, said residents "have not gotten both sides of the story where they can make an intelligent decision" on the project."After 20 years, Nevadans have to look at the chance that it may come here," Muth said. "Is Yucca Mountain the best place? Maybe, maybe not. But we are not going to know if we just say no, no, no in knee-jerk fashion and not get the facts."Muth has acknowledged he has received backing from the pro-Yucca Nuclear Energy Institute, including $5,000 to buy gifts for attendees at a Conservative Leadership Conference in Las Vegas this week.State scientists have argued that deadly nuclear particles will escape Yucca Mountain, contaminate the environment, create a safety hazard and ruin the tourist-driven economy of Las Vegas, 100 miles southeast of the Mountain. Those arguments will be weighed by the Nuclear Regulatory Commission, which last week opened a three- to four-year review period for a Yucca construction license.Reid said some of Yucca's "cheerleaders" are leaving Congress, such as Sens. Pete Domenici, R-N.M., and Larry Craig, R-Idaho, and momentum is building toward reprocessing the waste instead of disposing it immediately.
Review-Journal writers Keith Rogers and Sean Whaley contributed to this report. Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.
Scientists question comparing nuclear waste storage costs
9/12/08
Senate Yucca Mountain foes seek figures
By STEVE TETREAULT
STEPHENS WASHINGTON BUREAU
WASHINGTON -- Government analysts are undertaking a study to compare the costs of building a nuclear waste repository at Yucca Mountain against the costs of leaving the waste at power plants, where it is now stored.
But scientists who spoke up Thursday at a briefing said the idea of such a study didn't make sense to them. There are so many uncertainties, such a comparison might be near-impossible, they said.
One expert said issues of cost historically have been low priorities when it comes to disposing of deadly waste compared to other impacts on society.
Nonetheless, the Government Accountability Office is tackling the study at the request of senators Harry Reid, D-Nev., John Ensign, R-Nev., and Barbara Boxer, D-Calif.
As part of a strategy to derail the ongoing government effort to bury nuclear waste at the Yucca site in Nevada, the senators introduced a bill that would leave radioactive spent fuel at reactor sites, where they now are stored in pools, and increasingly in concrete and steel dry cask silos.
One thing that is not known is how those economics stack up against Yucca Mountain, which the Department of Energy estimated earlier this summer could cost $96.2 billion to build and operate.
GAO officials said they are consulting experts as they put together a study plan. Thursday they turned to the Nuclear and Radiation Studies Board, an arm of the National Academy of Science, for advice on how they might proceed.
Analyst Ryan Gotschall said the GAO also plans to compare the costs of establishing interim storage sites, where nuclear waste could be kept for a hundred years before being moved to a final destination.
Radiation board members were skeptical a study could be done, or even was necessary.
Thomas Isaacs, director of policy and planning at Lawrence Livermore National Laboratory, said the thought troubled him.
Isaacs, a former Department of Energy strategic planning director, said policymakers placed economics last, behind health and safety and environmental protection, when they set a direction years ago for nuclear waste disposal.
They decided cost "should not be the driver for how the country decided to deal with this very vexing public policy issue," Isaacs said.
"Doing nothing ... has always been the cheapest thing to do," Isaacs said. "You don't have to do much of a study. I can tell you what the answer is. The answer is 'nothing.' "
Board Chairman Richard Meserve, a former member of the Nuclear Regulatory Commission, said the emphasis on cost "is completely contrary to how we deal with all our issues dealing with waste."
"It may be exactly what you were asked to do, but I would suggest it does not make much sense," Meserve told the GAO officials.
Several board members recognized a political purpose for the study.
"You are trying to make the best of a set of questions that you did not get a chance to design," Kevin Crowley, the board's executive director, told the analysts.
"It reminds me of the discussion that has been going on the last couple of days involving cosmetics and certain farm animals," Crowley said in a reference to debate in the presidential campaign over the phrase "lipstick on a pig."
Jon Summers, a spokesman for Reid, said the report is not due until May.
"We hope the GAO will shed some unbiased light on the costs associated with nuclear waste storage -- both on-site and in the proposed dump," Summers said. "American taxpayers deserve to know the costs associated with nuclear energy, particularly as some people are pushing it as a possible solution to the nation's energy challenges."
Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@ reviewjournal.com or 202-783-1760.
|
