The winners of a lawsuit that defeated the Department of Energy's attempt to claim broad, radioactive waste reclassification powers say they are willing to take the dispute to a mediator.

DOE's stance on mediation: Unknown.

However, DOE still is trying to convince Congress to grant it those broad reclassification powers in the next several weeks, despite opposition by the U.S. House, four states that would be affected by those powers, and a federal judge's ruling.

This dispute revolves around high-level radioactive wastes in underground tanks at Hanford, Idaho Falls, Idaho, and Savannah River, S.C.

DOE has claimed it has the legal power to declare some high-level radioactive tank wastes as low-activity wastes prior to treating the material.

Two environmental organizations and two Indian nations challenged that claim in federal court. The states of Washington, Oregon, Idaho and South Carolina filed briefs in support of the plaintiffs.

On July 3, U.S. District Court Judge B. Lynn Winmill in Boise ruled against DOE.

Then DOE appealed Winmill's ruling to the U.S. Ninth Circuit Court of Appeals.

As a routine part of the appeals process, both sides had until Oct. 10 to file paperwork to say whether they would be willing to take the dispute to a mediator instead of arguing before the appellate court. Each side is legally allowed to keep its filed answer on this question confidential.

On Thursday, DOE spokesman Joe Davis said he did not know what answer DOE filed Oct. 10 on the mediation question, but that he would find out. Davis could not be reached for comment Friday.

Fettus said DOE has not informed the plaintiffs on its stance toward mediation.

DOE is in charge of treating 53 million gallons of radioactive tank wastes at Hanford, another 34 million gallons at Savannah River and 900,000 gallons at Idaho Falls.

Some of those wastes are classified as high-level wastes, which require glassification by melters, temporary storage on their sites, and eventual shipment to a permanent, specially designed storage site at Yucca Mountain, Nev.

Another portion of those wastes are low-activity wastes, which can be glassified by conventional melters, or possibly glassified with electrodes, or possibly treated by other methods. Treated, low-activity tank wastes can be buried on their home sites under less strict conditions than would be required at Yucca Mountain.

Hanford has 11 million gallons of high-level tank wastes and 42 million gallons of low-activity wastes.

DOE contends that the National Waste Policy Act of 1982 gives it the power to designate the wastes as high-level and low-activity as the material moves from the tanks to the treatment facilities.

The Yakama and Shoshone-Bannock tribes, environmental groups and the four states argued that DOE actually is claiming the power to reclassify wastes, which they say the 1982 law does not grant the federal agency. They fear DOE will arbitrarily reclassify some wastes solely so it can route the material to cheaper and less stringent treatment measures.

Winmill agreed with the tribes, environmental groups and states.

While DOE appealed the case to the appellate court, it also approached a joint U.S. House-Senate conference committee trying to reconcile the two chambers' energy bills -- a reconciliation effort that is ongoing. DOE lobbied the committee to insert language in an eventual compromise energy bill to give the federal agency the powers Winmill ruled it did not have.

In an Oct. 2 resolution, the U.S. House unanimously recommended that the conference committee not insert DOE's proposed language into the energy legislation.

U.S. Rep. Doc Hastings, R-Wash., supported that resolution, saying the matter should be postponed until next year to allow all parties to publicly discuss the matter. Washington's two U.S. senators, Patty Murray and Maria Cantwell, both Democrats, also oppose DOE trying to insert that language during closed-door conference committee discussions.

On Thursday, Davis said DOE still is trying to convince the conference committee and some congressional members to insert the agency's desired language into the energy legislation. He noted the U.S. House's resolution is not binding on the conference committee.

Davis said waiting until 2004 for Congress to debate the issue leaves DOE vulnerable now to possible lawsuits that could challenge how the tank wastes are currently classified. He contended such a lawsuit could drastically delay clean-up efforts.

Right now, no states or environmental groups have threatened to file any lawsuits over how the high-level and low-activity wastes are currently classified.