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Nuclear waste battle in D.C. court

And Reid supports effort to block storage at Skull Valley site

Utah on Tuesday asked the nation's second-highest court to revoke federal approval of a proposal to store high-level nuclear waste in the state.

Also on Tuesday, Sen. Harry Reid, D-Nev., announced he is throwing his support behind a move in Congress to block the Private Fuel Storage facility proposed for Skull Valley, Tooele County.

Sen. Orrin Hatch, R-Utah, also took action Tuesday against PFS, telling company officials they should look for alternatives to Skull Valley.

The triple attack comes a week after Hatch released letters of opposition to PFS by a Bureau of Land Management official, the secretary of the U.S. Department of Energy (DOE) and Hatch himself. The last was sent to the Nuclear Regulatory Commission.

Utah is petitioning the U.S. Circuit Court of Appeals for Washington, D.C., "for review of all issues related to NRC's licensing proceeding for storage up to 4,000 casks of spent nuclear fuel" on land owned by the Skull Valley Band of the Goshute Indians, according to the state Attorney General's Office.

Because this is a state appeal of an environmental issue and not an ordinary lawsuit, it skips the district court level and goes straight to the appeals court. The only court higher is the U.S. Supreme Court.

Utah is asking the court to "declare that the NRC's decisions relating to the PFS license application are arbitrary and capricious and inconsistent with applicable law; (and) direct the NRC to revoke any license" granted to the facility.

An accident, malfunction or negligence at the plant could cause significant harm to Utah, its citizens and the environment, the petition states.

Citing several specific "defects" with the process, the petition asserts that NRC board members didn't act according to their own earlier rulings and didn't offer any explanation why.

Also, it charges, the board and NRC failed to follow NRC regulations or federal statutes, failed to consider important evidence that would have changed the outcome of various decisions, violated Utah's due process rights and committed other errors.

The petition also contends:

The board and commission held that "PFS was not required to consider the environmental effects of a terrorist attack" on the plant.

State fears about an accident "from a crashing aircraft or bomb" at the storage facility were not given enough credence. Thousands of Air Force F-16s, some carrying live ordnance, fly over the site every year en route to the Utah Test and Training Range where "pilots engage in war maneuvers and weapons testing," the petition notes.

The possibility that the DOE will not collect and transport waste for the proposed permanent repository at Yucca Mountain, Nev., "unless it is first unsealed and repackaged elsewhere," implying that "elsewhere" is Skull Valley.

The petition was submitted by Utah Attorney General Mark Shurtleff; several staffers in his office: Denise Chancellor, Fred G. Nelson, James R. Soper and Connie Nakahara; and Washington, D.C., lawyers working for the state: Roy T. Englert Jr. and Noah Messing.

Meanwhile, Reid landed a stinging political blow against the storage plant, declaring in a news release that he is casting his lot with Utah against PFS and is dropping his opposition to a proposal to create a new wilderness area near the Skull Valley site. Wilderness designation could prevent the storage plant from opening.

"Reid has traditionally opposed the provision (to create a wilderness area) out of concerns it would set a bad precedent for future wilderness designation," the release states. "But, after a recent conversation with Utah's Sen. Robert Bennett, Reid agreed to set aside his concerns."

In a state where the federal government controls 80 percent of the land, Reid believes Congress "must be very careful in how we approach wilderness designation," according to the release. "While I continue to have concerns about the Cedar Mountain wilderness proposal," Reid states, "of even greater concern is the threat posed by deadly nuclear waste. With the proposed Goshute nuclear waste site moving forward, timing has become critical, and the state of Utah will need every available resource to fight this project."

Hatch said he and DOE deputy secretary Clay Sell are pointing out to the majority owners of PFS — Xcel Energy, according to a Hatch statement — that they should look elsewhere for alternative sites.

Hatch said in a press release that Xcel Energy CEO Dick Kelly and company president Paul Bonavia attended a meeting where he told them "I will pull out every stop" to block the PFS plan. He noted that he thinks progress is being made and that "we're very close to the point where we can move past the private Skull Valley plan and focus instead on a national policy for the interim storage of our spent nuclear fuel."

Hatch said he believes Xcel Energy "understands that the (Bush) administration and I have laid out an impassible minefield that PFS should not want to or even try to run through."