Wednesday, November 10, 2010

Energysolutions, LLC. v. State of Utah

Nov 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-4122, 23, & 24. The issue in this case is whether the Northwest Interstate Compact on Low-Level Radioactive Waste allows its member states to exclude low-level radioactive waste from disposal at a Utah site. EnergySolutions is the owner and operator of a facility for the disposal of low-level radioactive waste located in Clive, Utah. Utah is a member state of the Northwest Compact, and required EnergySolutions to obtain permission pursuant to the Compact for the importation and disposal of low-level waste from a decommissioned reactor in Italy.
    The member states, including Utah, voted to deny this approval, based on exclusionary authority it claimed through the Federal statute approving the terms of the Compact. EnergySolutions contends the Clive Facility should not be subject to the authority of the Northwest Compact. It claims the Compact has limited authority only over regional disposal facilities, which does not include the Clive Facility. The district court concluded the Northwest Compact does not regulate the disposal of waste at the Clive Facility.
    The Appeals Court disagreed and said, "The terms of the Compact control in this situation, and the member states were within the bounds of their authority when they denied permission regarding this waste." In its conclusion the appeals Court ruled, "
Like the Supreme Court, we are hesitant to 'order relief inconsistent with the express terms of a compact.' Alabama, 130 S. Ct. at 2313 (quoting New Jersey v. New York, 523 U.S. 767, 811 (1998)) (internal punctuation omitted). Concluding the Northwest Compact is statutorily and constitutionally permitted to exercise exclusionary authority over the Clive Facility, we reverse and remand for proceedings consistent with this opinion."
    Access the complete opinion (click here).

Shieldalloy Metallurgical Corp v. NRC

Nov 9: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1268. As the Appeals Court explains, under § 274 of the Atomic Energy Act of 1954 as amended, Pub. L. 86-373, 73 Stat. 688 (1959) (AEA), the Nuclear Regulatory Commission (NRC) is authorized to transfer regulatory authority over various categories of nuclear materials within a state to the state government, provided that the state's regulatory program is "compatible with the [NRC's] program" and is "adequate to protect the public health and safety." Shieldalloy Metallurgical Corporation, which for a decade has been seeking NRC approval for a plan to decommission a New Jersey facility, challenges the NRC's recent transfer of regulatory authority to that state, arguing that New Jersey's program is incompatible with the Federal scheme and that the transfer of authority was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The Appeals Court agreed with the company.
    The Appeals Court said, ". . .the NRC's insufficient explanations on the applicability of criterion 25 [commitment to the uninterrupted "processing of license applications"] and the retention of jurisdiction render its transfer of regulatory authority to New Jersey arbitrary and capricious. We therefore grant Shieldalloy's petition, vacate the NRC's transfer of authority, and remand for proceedings consistent with this opinion."
    Access the complete opinion (click here).