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Leavitt steps up fight to bar N-waste

State has filed a counterclaim in pro-storage suit

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Gov. Mike Leavitt has stepped up his battle to keep high-level nuclear waste out of Utah.

On Wednesday, the governor announced the state has filed a counterclaim in a lawsuit filed by a consortium of nuclear power utilities against the state that seeks to overturn several laws passed by the Legislature to impede shipments and storage of nuclear waste.

And the state will request the lawsuit be decided by a Utah jury — a strategy clearly designed to take advantage of the fact that nearly 80 percent of Utahns are opposed to a nuclear waste facility on Goshute tribal lands.

"We want a jury of the state of Utah to make this decision," Leavitt said.

The state's counterclaim, filed Wednesday morning in U.S. District Court for Utah, maintains Private Fuel Storage's lawsuit fails on five key points:

The Nuclear Regulatory Commission (NRC) has no authority to grant a waste-storage license to Private Fuel Storage, a private, for-profit company.

Any NRC license will violate the National Environmental Policy Act because the environmental impacts of the facility will remain there for generations beyond the terms of the license.

The Skull Valley Band of Goshutes did not lawfully approve its lease with PFS in 1997.

The U.S. Bureau of Indian Affairs violated federal rules and laws in allowing the lease.

Any BIA approval, conditional or otherwise, will be invalid as a breach of the United States' trust obligations to the Indian tribe, in that the facility would allegedly become a permanent repository and destroy the trust purposes of the land.

The counterclaim is the latest move by the state to block nuclear waste shipments to the West Desert. Earlier this year, lawmakers passed laws prohibiting the shipment of nuclear waste into the state, requiring PFS to pay $150 billion in up-front fees, imposing a 75 percent tax on anyone providing services to the project and barring Tooele County from providing municipal services like police and fire to the storage site about 70 miles southwest of Salt Lake City.

PFS and the Goshutes responded in April with a federal lawsuit challenging the constitutionality of the laws. Their lawsuit maintains the state is violating interstate commerce and is interfering with tribal sovereignty.

Sue Martin, spokeswoman for PFS, said the counterclaims do not address the constitutionally of the state laws blocking the shipments of nuclear waste.

"It seems like this is a blatant attempt to divert the court's attention," she said.

The dispute has been festering for years, with a majority of tribal members supporting a lease with PFS that would bring much-needed revenues and jobs to the impoverished tribe.

Tribal Chairman Leon Bear was unavailable for comment before press deadline.

PFS wants to store up to 40,000 tons of spent nuclear fuel rods in above-ground steel casks. In concept, the storage plan calls for the waste to remain in Skull Valley only until a permanent repository is built, presumably at Yucca Mountain, Nev., sometime in the next two decades.

Congress has been debating what to do with the nation's spent nuclear fuel rods, which are currently piling up at temporary storage sites at nuclear reactors around the country. The nation's current energy crisis and President Bush's policy shift to construct more nuclear power plants has pushed the problem into the national spotlight.

Utah officials, as well as Utah's congressional delegation, fear that if Skull Valley is licensed to accept the nuclear waste on a temporary basis, the site will inevitably become permanent.

The Legislature has appropriated more than $1 million for a legal warchest and for a public relations campaign.

Utah's counterclaim is against PFS, not the Goshutes, said Monte Stewart, the state's lead attorney.

E-mail: donna@desnews.com