U.S. District Judge Bruce Jenkins dismissed the group's last False Claims Act suit but in a ruling last month allowed the three men to modify and refile, to the protest of EnergySolutions attorneys.
All three men are former employees of EnergySolutions, then Envirocare. They claim the company, which stores low-level nuclear waste, made false claims for payments under contracts with the U.S. government when it certified that it had complied with federal and state regulations for disposing hazardous wastes at its facility in Clive, Tooele County.
While working at the company, the three employees say they documented numerous instances in which radioactive waste was improperly disposed of. The cells, which encase the waste, were poorly constructed and had cracks in them, the men allege.
EnergySolutions has denied the allegations and points out the lawsuit has been thrown out of court three times already.
In his ruling, Jenkins said the group would have to come back with more details in their suit. "I think we've been able to beef up the allegations of the complaint," said Steve Russell, attorney for the former workers. "What the judge was looking for primarily was evidence that Envirocare, now EnergySolutions, was certifying to the United States that they were doing everything according to their contracts as a prerequisite of being paid."
Russell said initially the group took its information to the U.S. attorney general. "There was a series of meetings with the A.G., the Department of Defense, the Department of Energy and others," Russell said. The U.S. government declined to pursue an investigation on the allegations. After that, Russell said the three decided to pursue a whistle-blower suit, which was first filed in 2002.
"We believe we run an exceptionally safe operation and are probably the most regulated private disposal facility of this type in the country," said EnergySolutions spokesman John Ward, who added his company is confident about its safety record.
"The lawsuit has been dismissed three times before. We haven't had a chance to review the latest attempt so we'll just have to wait and see what it says," Ward said.
Russell said the suit is important because the U.S. government is EnergySolutions' biggest client and because more than 90 percent of the country's low-level radioactive waste is stored by the company. "Now we're talking about foreign waste," he said.
"What we're hoping for is to get some light shining on the Envirocare/EnergySolutions facility out there. They're very closed about their operations and their finances. We believe they need to have a bit more oversight out there," Russell said.
The group points to the fact that each time Jenkins has dismissed the suit he has left the door open for the group to refine its claims the re-file. Russell said this, however, may be the group's last chance.
"I think this will be the last shot at it. I doubt, if this one doesn't pass, we'll get another chance," he said.