Court overturns ruling on Hanford waste

YAKIMA -- An appellate court has overturned a lower court's ruling barring the Energy Department from reclassifying high-level waste at a nuclear site in Washington state, saying it was too soon to consider opponents' claims.

A federal judge in Idaho last year barred the Energy Department from reclassifying the waste after the Natural Resources Defense Council, the Snake River Alliance, the Yakama Nation and the Shoshone-Bannock Tribes filed suit.

The Energy Department maintains that some highly radioactive residue in the waste tanks is too expensive to extract. The department has proposed reclassifying it as less dangerous, combining it with concrete grout and leaving it in place.

U.S. District Judge B. Lynn Winmill of Boise, Idaho, ruled the Energy Department's plans conflicted with provisions of the 1982 Nuclear Waste Policy Act.

The appellate court said yesterday it was too soon to say if those plans violated the act. All parties must adopt a wait-and-see attitude rather than make assumptions about the Energy Department's intentions and ability to dispose of waste, a three-judge panel of the 9th U.S. Circuit Court of Appeals said.

"There might be some danger in waiting, but that is not a greater hardship for NRDC and the rest of our society than the one already imposed by our high-level-waste Frankenstein," the court said.

The court sent the case back to the lower court with directions to dismiss.

"The good news, from our perspective, is that the court did not rule on the merits of the case, and as far as we're concerned, it's a sound case. All it said is that the timing is off," said Elliott Negin, spokesman for the Natural Resources Defense Council.

The lawsuit had been filed to block waste reclassification in Idaho, South Carolina and Washington. Earlier this year, however, Congress approved a measure reclassifying sludge in the South Carolina and Idaho tanks from high level to incidental, a category that means it can be left in the tanks and combined with concrete grout.

The move essentially made the lawsuit moot for South Carolina and Idaho, but the reclassification did not apply to Washington state.

Washington and five other states filed "friend of the court" briefs, asking the appellate court to uphold the Idaho judge's decision.

David Mears, senior assistant attorney general for Washington state, said the state's concern all along has been that the Energy Department not violate the statute.

"The court recognizes how extremely important this issue is, the disposal of highly radioactive waste," Mears said. "We'll be watching DOE's actions very closely and making sure they follow this appropriately and will file a legal challenge if they don't."

Colleen French, an Energy Department spokeswoman, said the agency was reviewing the ruling and would not comment further.

As much as 100 million gallons of nuclear waste were stored over the years in 239 tanks in Idaho, Washington and South Carolina. Some of it has been removed and processed for permanent disposal. But about 85 million gallons remain to be processed.

Critics contended that leaving any waste in those tanks will threaten the Columbia River at south-central Washington's Hanford site, as well as the Snake River aquifer under the Idaho National Engineering and Environmental Laboratory and the groundwater at the Savannah River Site in South Carolina.

About 53 million gallons of highly radioactive waste from World War II and Cold War-era plutonium production is buried in Hanford's 177 aging underground tanks. An estimated 67 of the tanks have leaked radioactive brew into the soil, contaminating the aquifer and threatening the Columbia River less than 10 miles away.

The 1989 Tri-Party Agreement, a Hanford cleanup pact, requires the Energy Department to remove as much waste as technically feasible from Hanford, but not less than 99 percent.

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