Administration asked opinion on nuke waste case

Benjamin Grove

Tuesday, Jan. 11, 2005 | 9:25 a.m.

WASHINGTON -- The U.S. Supreme Court on Monday asked the Bush administration for its views on a Utah nuclear waste case that ultimately could have implications for Yucca Mountain.

The case involves Private Fuel Storage L.L.C., a company that aims to construct a temporary storage area for high-level nuclear waste on Goshute Indian land 45 miles southwest of Salt Lake City.

The site could eventually act as a layover storage area for waste ultimately bound for the federal government's planned permanent waste repository at Yucca, 90 miles northwest of Las Vegas. Yucca would not open until 2010 at the earliest.

Utah officials have battled to block the temporary dump. The Nuclear Regulatory Commission is still considering whether to license it.

Meanwhile Utah has said that barring nuclear waste storage should be a state's rights issue -- and used that argument when it tried to kill the project in court. But Utah lost its latest case in August when the 10th U.S. Circuit Court of Appeals effectively overruled Utah state laws that were designed to stop the the dump.

So Utah on Oct. 28 appealed to the Supreme Court to hear its case. Utah officials generally are arguing that barring nuclear waste storage should be a state's rights issue -- an argument Nevada officials have lost in recent years, including last year in a federal court.

But more specifically, Utah is asking the court to rule that, as a matter of law, the lower courts had no right to throw out state laws blocking the dump.

The high court is deciding whether to take the case, and on Monday the court asked the U.S. solicitor general's office for its stance on whether Utah can ban waste storage in the state and also asked whether the federal government has exclusive rights over nuclear waste shipping and storage.

The solicitor general handles Supreme Court cases for the White House and federal government.

If the court takes the case, Utah could prod the court to consider waste transportation issues that it has not previously dealt with, said Joe Egan, a lawyer hired by Nevada to fight Yucca legal battles.

But the Utah and Nevada cases are different in a number of ways so it's not clear yet how the Bush administration's opinion -- or the Supreme Court's -- would relate to Yucca, Utah assistant attorney general Denise Chancellor said.

In its case Utah is specifically asking for the Supreme Court to examine whether the lower court had the right to overrule its state laws banning the Goshute dump, and it is unclear whether those laws could be compared to Nevada state laws aimed at blocking Yucca.

Also, while the Utah site would be developed as a private venture, federal law specifically says that Yucca is to be the nation's waste repository, if it is scientifically suitable. The Energy Department has concluded that it is, and President Bush formally approved making it so.