March 26, 2004
States want ruling on DOE wastes upheld
By John Stang Herald staff writer
Six states asked an appellate court Thursday to uphold a federal judge's ruling that the Department of Energy cannot reclassify high-level radioactive wastes as a less dangerous category prior to treating it.
Washington, Oregon, Idaho, South Carolina, New Mexico and New York sent a friend-of-the-court brief Thursday to the U.S. Ninth Circuit Court of Appeals to oppose DOE's appeal of a July 3, 2003, decision by U.S. District Judge B. Lynn Winmill.
DOE says closing waste tanks at Hanford and elsewhere will stall if it loses this legal dispute.
Stalled work could include removing some solid wastes from otherwise cleaned-out tanks, developing alternatives to conventional glassification and converting about 1 million gallons of waste into transuranic powder to be shipped to New Mexico.
This dispute revolves around DOE's high-level radioactive wastes in underground tanks at Hanford, Idaho Falls, Savannah River, S.C., and West Valley, N.Y.
Hanford has 53 million gallons of tank wastes, of which 11 million gallons are classified as high-level and 42 million gallons are classified as low-activity.
DOE says it has the power to take wastes from a formally designated high-level waste tank, then designate whether the material has high-level or low-activity.
But two environmental groups, two Indian tribes and the six states all contend DOE cannot legally do that.
They contend DOE is trying to reclassify high-level wastes as low-activity wastes without treating the material.
High-level wastes must be glassified and stored in special vaults to await eventual shipment to a proposed permanent storage site at Yucca Mountain, Nev. Low-activity wastes face less stringent and cheaper treatment requirements, and will be buried at their host sites, such as Hanford.
"The problem of safely disposing of dangerous radioactive wastes cannot be solved by simply issuing an order redefining the problem," said Washington Attorney General Christine Gregoire in a news release. Her office is handling the friend-of-the court brief for the six states.
Meanwhile, DOE spokesman Joe Davis said unless DOE gets the powers that it believes it is entitled to, "We can't legally spend (some) money on cleanup."
DOE's fiscal 2005 budget request to Congress has $350 million, including $64 million for Hanford, set aside for tank farm matters nationwide, which can be used only when the reclassification issue is resolved to DOE's satisfaction.
Some critics view that set-aside money as DOE pressuring the states to drop their opposition.
Besides appealing Winmill's decision, DOE tried to get Congress to rewrite the 1982 law that the judge ruled it had violated. DOE tried to do that as a last-minute amendment to an appropriation bill in a closed-door House-Senate conference committee last fall. Both Republicans and Democrats rejected that attempt.
In its appeal, DOE argued that Congress intentionally exempted it and plutonium-production wastes are exempt from the 1982 Nuclear Waste Policy Act.
Also, DOE argues that its tank wastes are "wastes incidental to reprocessing," rather than "wastes resulting from reprocessing." The second phrase is part to the legal definition of high-level radioactive wastes, while the first phrase is not part of that legal definition.
Davis contends that if waste in a tank always had been treated a high-level radioactive waste, that does not necessarily mean it actually is high-level waste until DOE makes that determination.
DOE contends if some tank wastes remain classified as "high-level" that will slow efforts to remove solid residues from the bottoms of tanks earmarked for early closure, and might stall efforts to deal with some wastes as low-activity wastes.
DOE is looking at quickly converting some liquid wastes into dry transuranic wastes to ship to New Mexico. And it is looking at bulk vitrification and steam reforming as possible ways to treat low-activity wastes quicker and cheaper than possible with conventional glassification. DOE is supposed to decide by 2005 if those options are viable.
The six states' friend-of-the-court brief disputes DOE legal arguments and definitions.
The states' brief also contends that DOE is trying to sidetrack the law in order to avoid the expense and effort of treating wastes the legally correct way.