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Utah nuke case gets dumped by court

Published December 6, 2005 12:26 am
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WASHINGTON - The Supreme Court has declined to review a lower court's ruling striking down a series of Utah laws aimed at blocking a private high-level nuclear waste storage site in the state.

The justices met Friday to consider Utah's appeal and announced Monday, without comment, that they would not hear arguments in the case.

State officials said they had expected as much, even while hoping for a different outcome.

"We had concluded our odds were fairly low on this," said Mike Lee, counsel to Gov. Jon Huntsman Jr. "The governor is disappointed by that, but not terribly surprised."

Huntsman was in Washington on Monday, pressing the fight on another front - helping with last-minute lobbying on a provision seeking to block rail access to the proposed waste storage site. Leaders of House and Senate armed services committees are expected to decide the issue soon and the provision's fate remains uncertain.

Sue Martin, spokeswoman for Private Fuel Storage, a group of electric utilities that wants to store 44,000 tons of spent nuclear fuel on the Skull Valley Indian reservation in Utah's west desert, said the company was relieved by the Supreme Court's announcement Monday.

"We're very pleased," Martin said. "Hopefully this lays to rest this particular strategy that the state has tried over and over again, and we're glad that we don't have the specter of those punitive laws hanging over our heads."

The case involves a series of changes to state law passed by the Utah Legislature between 1998 and 2001, aimed at blocking the PFS project.

Among the provisions, the state laws required a spent nuclear fuel facility to clear a series of health and safety hurdles to be licensed by the state and imposed substantial licensing fees on such a facility - $5 million upfront, plus posting a bond of at least $2 billion.

They also stripped Tooele County of ownership of the only road leading to the reservation, and required counties to either ban storage and transportation of spent nuclear fuel or adopt a comprehensive plan for land use and mitigation of any health effects.

The laws were initially struck down by U.S. District Judge Tena Campbell in July 2002. The 10th U.S. Circuit Court of Appeals upheld Campbell's ruling in April 2004, agreeing that Utah lawmakers overstepped their legal bounds by pre-empting the role of Congress and the Nuclear Regulatory Commission in regulating nuclear material under the Atomic Energy Act.

Utah asked the Supreme Court to reconsider, arguing that the appeals court shouldn't have struck down the laws before they had been applied to a nuclear facility seeking a license.

The Bush administration's solicitor general, Paul Clement, filed a brief in the case in September, arguing the court should not hear the case. That brief was a serious blow to Utah's case.

The Supreme Court gets about 7,500 petitions to hear cases each year, but generally accepts about 100. It takes four of the nine justices voting to hear the case for the court to grant it a full review.

What's ahead in the state's fight against PFS:

The Interior Department must grant PFS permission to build a rail line across federal land to deliver waste to the reservation. Before that can happen, the Air Force is required to complete a study on the impacts of the waste dump on the Air Force's nearby Utah Test and Training Range.

Congress is considering a provision that would create a wilderness area near the reservation and take other steps to prohibit the rail line to the reservation. PFS has said it would force them to truck waste to the site.

The state and members of the Skull Valley Band of Goshutes filed a lawsuit last month in the U.S. Court of Appeals for the District of Columbia Circuit challenging the Nuclear Regulatory Commission's decision to approve the PFS license.

The Interior Department, in its role as trustee for American Indians, must give final approval to the lease agreement between PFS and the Skull Valley Band.

Senate Democratic Leader Harry Reid has proposed a plan to keep waste at the nuclear reactors that produced it until it can be reprocessed. It has the support of Utah's governor and congressional delegation, with the exception of Sen. Orrin Hatch.




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