Monday, November 8, 2004
Ruling Against Energy Department on Nuclear Waste Disposal Overturned
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals Friday overturned a lower court ruling barring the U.S. Department of Energy from reclassifying high-level waste at nuclear sites in Idaho, Washington and South Carolina, saying it was too soon to consider opponents’ claims.
A federal judge in Idaho last year barred the Energy Department from reclassifying the waste after the Natural Resource Defense Council, the Snake River Alliance, the Yakama Nation and the Shoshone-Bannock Tribes filed suit.
U.S. District Judge B. Lynn Winmill ruled the Energy Department’s plans conflicted with provisions of the 1982 Nuclear Waste Policy Act.
The appellate court on Friday said the issue was not ripe for resolution. All parties must adopt a wait-and-see attitude rather than make assumptions about the Energy Department’s intentions and ability to dispose of waste, the three-judge panel explained.
“There might be some danger in waiting, but that is not a greater hardship for NRDC and the rest of our society than the one already imposed by our high-level-waste Frankenstein,” Judge Ferdinand F. Fernandez wrote.
The court sent the case back to the lower court with directions to dismiss.
“The good news, from our perspective, is that the court did not rule on the merits of the case, and as far as we’re concerned, it’s a sound case,î Natural Resource Defense Council spokesman Elliott Negin said. ìAll it said is that the timing is off.î
Washington state and five other states had filed “friend of the court” briefs to the appellate court asking it to uphold the Idaho judge’s decision.
David Mears, senior assistant attorney general for Washington state, said the state’s concern all along has been that the Energy Department not violate the statute.
“The court recognizes how extremely important this issue is, the disposal of highly radioactive waste,” Mears said. “We’ll be watching DOE’s actions very closely and making sure they follow this appropriately and will file a legal challenge if they don’t.”
Colleen French, an Energy Department spokeswoman, said the agency was reviewing the ruling and would not comment further.
As much as 100 million gallons of nuclear waste were stored over the years in 239 tanks in the three states. Some of it has been removed and processed for permanent disposal. But about 85 million gallons remains to be processed in some manner.
Critics contended that leaving any waste in those tanks will threaten the Columbia River at south-central Washington’s Hanford site, as well as the Snake River aquifer under the Idaho National Engineering and Environmental Laboratory and the groundwater at the Savannah River Site in South Carolina.
Earlier this year, Congress approved a measure reclassifying sludge in the South Carolina and Idaho tanks from high level to incidental, a category that means it can be left in the tanks and combined with concrete grout. The reclassification did not apply to Washington state.
About 53 million gallons of highly radioactive waste from World War II and Cold War-era plutonium production is buried in Hanford’s 177 aging underground tanks. An estimated 67 of the tanks have leaked radioactive brew into the soil, contaminating the aquifer and threatening the Columbia River less than 10 miles away.
The 1989 Tri-Party Agreement, a Hanford cleanup pact signed by the state, the Energy Department and the U.S. Environmental Protection Agency, requires the Energy Department to remove as much waste as technically feasible, but not less than 99 percent.
The Energy Department plans to siphon out the liquid and sludge waste from the tanks, turning that into glass logs for disposal, but it maintains the remaining residue is too expensive to extract.
Copyright 2004, Metropolitan News Company