Idaho says feds reneging on nuclear waste cleanup

BOISE – State attorneys have asked a federal judge to keep the U.S. Department of Energy from weaseling out of a 1995 deal to clean up buried nuclear waste at the Idaho National Laboratory compound, claiming the agency is guilty of “duplicitous conduct.”

The state filed closing statements late Monday with U.S. District Judge Edward Lodge, asking him to declare that the agreement to settle a long-standing legal battle between Idaho and the Energy Department means what state leaders thought it meant: that the DOE must remove all “transuranic” waste – rags, gloves and dirt contaminated with radioactive material such as plutonium – from the eastern Idaho nuclear research compound by 2018.

The DOE argues that the agreement it signed with the state 11 years ago only covered transuranic waste that was stored in barrels on asphalt pads above ground since 1970, not the toxic transuranics that were put into drums and cardboard boxes and dumped into pits and trenches for burial between 1954 and 1970.

The federal government will now file its written rebuttal to the state’s closing statements within the next week. Lodge is expected to rule by the end of this month.

The state has sued the DOE over its potential plan to leave tons of the buried radioactive waste over the Snake River aquifer, which provides drinking and irrigation water for much of southern Idaho. The DOE argued in court documents that leaving the buried waste where it is may be safer than trying to exhume it, since some toxic materials can explode when they come into contact with oxygen.

In February, Lodge presided over a five-day bench trial with more than a dozen witnesses, including former Idaho Govs. Cecil Andrus and Phil Batt and former Idaho Attorney General Alan Lance. Lodge ruled in favor of the state in the same case in 2003, ordering the DOE to remove all the transuranics – including buried waste – stored at INL by 2018.

The Bush administration appealed, and in 2004 the 9th U.S. Circuit Court of Appeals overturned Lodge, finding he should have heard more evidence from both the state and the DOE before deciding in favor of the state.

In their closing statements, state attorneys told Lodge that “DOE’s claim that the agreement was never intended to cover buried waste and its attempts to show Idaho knew this (were) rendered completely implausible by the testimony of DOE’s own witnesses.”

The state pointed to the testimony of the DOE’s Mark Frei, who said that federal negotiators decided not to oppose the buried waste issue because they “did not want to see the State of Idaho walk away from the negotiating table.”

“DOE not only knew Idaho wanted buried waste included in the agreement, but knew also that excluding it was a deal-breaking issue,” the state’s attorneys wrote.

The bitter legal showdown over INL cleanup comes as the Department of Energy has ramped up its processing of nuclear waste for shipment out of Idaho to an underground dump in New Mexico and is planning to release a survey that shows most Idaho residents have a positive attitude toward the nuclear research compound.

Kathleen Trever, the nuclear waste policy adviser to Gov. Dirk Kempthorne, said the state is pleased DOE is back in compliance with the disputed clean-up agreement.

“It took them a couple of years to get the bugs worked out of their processing plant,” said Trever, who was one of the state’s witnesses in the trial over the cleanup agreement. “We are happy they do not anticipate any further problems.”