Judge: Feds must obey nuke agreement with Idaho
Jackson Hole Star Tribune
May 26, 2006

BOISE, Idaho — A federal judge ruled Thursday the U.S. Energy Department must abide by a 1995 agreement with Idaho to remove all high-level radioactive waste stored at the Idaho National Laboratory and ship it out of state for disposal by 2018, regardless of whether it is buried or stored above ground.

U.S. District Judge Edward Lodge rejected DOE’s argument that the agreement signed with then-Gov. Phil Batt only covered waste such as rags, tools, gloves and dirt contaminated with radioactive material that had been stored in barrels on asphalt pads at the southeastern Idaho compound since 1970.

The federal government had claimed it was not required to dig up and remove other rotting containers of waste that was indiscriminately dumped into open pits and buried prior to 1970.

In February, during trial in the state’s 15-year-old lawsuit against DOE over the cleanup, Batt and former Gov. Cecil Andrus testified that state leaders believed the words “all transuranic waste” in the 1995 agreement meant removal of all nuclear waste from the site, formerly known as the Idaho National Engineering Laboratory.

Lodge agreed.

“The words of the contract could not be clearer,” Lodge wrote in his ruling. “In short, transuranic waste as defined in the 1995 agreement must be removed from INEL regardless of where it is located at INEL.”

DOE said in court documents that leaving the buried transuranic waste where it is may be safer than trying to exhume it, since some of the radioactive materials can spontaneously explode when exposed to oxygen.

State leaders have said they oppose abandoning the waste in place, since some studies have shown that buried radioactive materials are seeping toward the underground aquifer that feeds the Snake River, which runs almost the entire length and width of Idaho.

As part of the Environmental Protection Agency’s Superfund cleanup process, DOE is currently studying how to environmentally restore the radioactively contaminated soil beneath the nuclear site and above the aquifer.

Also on Thursday, a contractor working for DOE on the Superfund investigation released an initial inventory of radioactive and hazardous wastes buried at INL. It concluded migration of toxic waste through the soil was “very limited, with no imminent threat to the aquifer except for carbon tetrachloride.” That volatile organic compound is associated with nuclear weapons production waste sent to INL from the Rocky Flats plant in Colorado.

Lodge said the final results of the buried waste investigation and future decisions by the EPA may dictate a different cleanup schedule than the 1995 agreement’s timeline, which created a target removal date of the 2015 and a no-later-than date of Dec. 31, 2018.

But Lodge wrote that even if the Superfund investigation determines it would be cheaper to leave the radioactive debris where it is, or demonstrates there is a safe way to cap or contain the buried waste underground at INL, “the obligation to remove … remains.”

Thursday’s decision is likely not the final word in the longstanding cleanup battle, since Lodge is retaining jurisdiction over the case to monitor DOE’s compliance with its cleanup obligations under the 1995 agreement.

Lodge said he might have to rule again if the EPA ultimately agrees with DOE that it is too dangerous to exhume the buried waste, but the state disagrees with that finding.

State and federal attorneys involved in the case said Thursday they had not yet reviewed the 34-page ruling.

Jeremy Maxand, director of the Boise-based nuclear watchdog group The Snake River Alliance, hailed the ruling as a victory for Idaho’s residents and farmers who depend on the Snake River aquifer for drinking water, recreation and agriculture.

“This is a step in the right direction to getting some accountability and cleanup at the INL burial grounds, but the people of Idaho will still have to fight to make sure they have water 50 years from now that is not contaminated with radioactive waste,” he said.