The Tenth Circuit Court of Appeals has reversed a district court decision and ruled that the Northwest Interstate Compact on Low-Level Radioactive Waste Management (Compact) can bar a shipment of low-level radioactive waste to a Utah disposal facility. EnergySolutions, LLC v. Utah, No. 09-4122 (10th Cir. 11/9/10). Plaintiff EnergySolutions operated a low-level radioactive disposal facility in Clive, Utah, under a 1991 state-issued license that specifically required the facility to obtain permission from the Compact before disposing of any waste.

In 2007, EnergySolutions applied to the Nuclear Regulatory Commission (NRC) for a license to import low-level radioactive waste materials from decommissioned nuclear facilities in Italy. While the NRC license was pending, the Compact voted unanimously to deny permission to import the waste. EnergySolutions sued, claiming that the Compact had no statutory authority over the Utah facility under the Low-Level Radioactive Policy Act and that federal law preempted the Compact’s authority. The district court held that the Compact has limited authority over regional disposal facilities only and that, because the Clive facility was privately owned, it did not fit that definition. The Compact appealed, along with Utah and the other Compact members— Colorado, Nevada and New Mexico. They argued that, under the terms of the facility’s Utah license, the Compact had authority to approve waste shipments to the facility.

The appeals court reversed and remanded the district court’s decision, citing the language of the 1991 license, which specifically required the facility to obtain the Compact’s permission before disposing of any waste. The court also rejected the company’s argument that the Compact lacked authority under the Low-Level Radioactive Policy Act or that federal law preempted the Compact’s authority.