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SOME JUSTICES DOUBT CONGRESSIONAL MANDATE OF N-WASTE SITES IS LEGAL

Some Supreme Court justices expressed doubts Monday that Congress may lawfully force states to dispose of low-level radioactive waste generated within their borders.

Justice Sandra Day O'Connor, with apparent sarcasm, described as a "pretty clever scheme" a federal law - challenged by New York - that gives each state until 1996 to provide a disposal site for such waste.If the law is constitutional, she said, then perhaps Congress "can require a state to take over a pro rata share of the national debt," or force states to build more prisons or require them to give medical care to the elderly poor.

Justice Anthony M. Kennedy called the radioactive waste law "a step further than Congress has ever gone" in seeking to control state activities. If the law is constitutional, he suggested, the federal government also might be able to order each state to confiscate illegal handguns.

Justice Department lawyer Lawrence Wallace agreed that the statute "is a novel approach." But the situation is unusual, he said.

Congress was responding to a request by the National Governors Association to a deal with a problem of "broad national concern," he said. How to dispose of the waste "must be solved if the people are to continue to enjoy the benefits of energy from nuclear power," he said.

The Bush administration's defense of the law was supported Monday by three states: Washington, Nevada and South Carolina. Those states have sites for radioactive waste and fear the burden on them if the other states do not also set up disposal sites.

William B. Collins, an assistant attorney general from Washington, said if the high court strikes down the federal law, "We have no choice but to accept all waste or shut down the site."