By all accounts, Gov. Mike Leavitt had lost every round in his battle to keep nuclear waste out of the state. Every round until Monday, that is, when the state won an unexpected victory — not a knockout punch but one that certainly changes the momentum.
"It is a watershed event, but it is certainly not over," he said cautiously.
The event was a "partial" ruling by the Atomic Safety and Licensing Board, an independent board of the Nuclear Regulatory Commission. In a 220-page decision, the board denied licensure for a spent nuclear waste repository on Goshute tribal lands in Tooele County because of the probability of an accident involving Air Force fighter jets that train in the same area.
"We find that there is enough likelihood of an F-16 crash into the proposed facility that such an accident must be deemed credible," the ruling stated. "The result is that the PFS (Private Fuel Storage) facility cannot be licensed without that safety concern being addressed."
PFS is a consortium of mostly Eastern nuclear power utilities that had negotiated a lease with the tiny Skull Valley Band of Goshutes to store up to 40,000 tons of spent nuclear fuel rods piling up at nuclear power plants around the nation. The company wants to store the waste in above-ground canisters pending the completion of a permanent waste repository inside Yucca Mountain, Nev., a project still 10 years or more away.
PFS project manager Scott Northard was putting the best spin on Monday's ruling, saying it reflects only the rigorous standards that must be met before any waste facility can be licensed.
"While we are disappointed with this initial partial decision, we continue to believe that our facility meets the federal regulations," Northard said.
PFS is examining its legal options, which include appealing the ruling to the licensing board or to the NRC, which ultimately has the final say on nuclear waste facilities.
More realistic are two options specified by the Atomic Safety Licensing Board ruling. One involves PFS getting an agreement from the Air Force to reduce the number of flights over Skull Valley or to change its flight patterns. That type of agreement "seems relatively unlikely," based on Air Force testimony, the ruling noted.
The Air Force has taken a neutral position on the proposal but has made it clear it isn't interested in moving the flight path or reducing the number of flights to accommodate PFS.
"Our position hasn't changed," said Marriane Miclat, spokeswoman at the Pentagon. "We would like to preserve our mission. We want to ensure unrestricted access, and that's our primary consideration."
The other option for PFS to satisfy the concerns is to redesign the above-ground canisters so that they are "so robust that an F-16 crash would not have appreciable health and safety consequences," according to the ruling.
That would also involve resubmitting the application with the new designs to another round of hearings before the licensing board, which is subordinate to the NRC.
PFS has 15 days to file a petition for review. If it doesn't, the decision becomes final in 40 days.
At the very least, the state has won an important stay of execution in a case where victories were hard to come by for the state. Federal lawsuits by the state have all been dismissed, while PFS successfully sued the state, having punitive laws passed by the Legislature declared unconstitutional.
"We are elated," said Jim Soper, chief counsel for the state. "This will require additional proceedings before the NRC if they want to continue their license application, and that will take time."
The more the state can delay the project, the greater the political pressure on PFS partners to bow out of the project. The consortium now consists of eight nuclear power utilities. Six of those have promised not to participate in the construction of the Goshute facility as long as there are no delays in construction of a permanent facility at Yucca Mountain.
Leavitt has long argued that support for PFS dissolved after President Bush announced a permanent waste dump at Yucca Mountain. "Their financial viability has come into question," Leavitt said.
With fewer partners to share the costs, and costs rising with delays, Leavitt is hoping the consortium doesn't have the $3.1 billion needed to complete the Skull Valley facility.
Caught in the middle of Monday's ruling were Utah's Goshutes, mostly impoverished and deeply divided over the waste issue. The ruling tribal government had looked to nuclear waste for their economic survival — something they said the state has ignored for the past 150 years.
Goshute tribal chairman Leon Bear was unavailable for comment.
Leavitt has argued the state should help the Goshutes with economic development, but the Legislature turned down his funding requests. And the tribe has not been all that interested, anyway.
"I'm sure there will be some disappointment (within the tribe)," Leavitt said. "We're prepared to help them in many ways."
This is the first of a several issues that must be decided by the licensing board. Among the major issues remaining are whether the facility can withstand earthquakes, whether access to the site would compromise wilderness values, and whether the threat of terrorist attacks has been properly addressed.
Longtime anti-nuclear activists cheered the ruling.
"I'm loath to declare victory prematurely," said Steve Erickson of Citizens Education Project. "But it's an enormously positive development and totally unexpected."
Utah's congressional delegation also hailed the decision — and said it may even help protect Hill Air Force Base in upcoming base closure battles.
Rep. Rob Bishop, R-Utah, said, "My biggest concern with the proposed facility in Skull Valley has always been the potential threat and problem it creates for Hill Air Force Base and the Utah Test and Training Range. The viability of these two military installations must not be harmed." He said the ruling helps ensure that.
Sen. Orrin Hatch, R-Utah, called the decision "a tremendous victory for safety and sensibility over recklessness and short-term profits."
But the battle isn't over yet.
"The risks posed by the project are simply too great," added Rep. Chris Cannon, R-Utah. "It's imperative that we continue to make clear our concerns about so-called 'temporary' and above-ground spent fuel storage in Utah."
Contributing: Lee Davidson