Federal Court Denies DOE's Waste Fee Appeal

A federal court has denied the Department of Energy’s (DOE’s) petition for the full court’s review of a November 2013 decision suspending payments into the Nuclear Waste Fund. 

The decision culminates a legal dispute initiated by the National Association of Regulatory Utility Commissioners (NARUC) and the industry group, Nuclear Energy Institute (NEI), in 2010. The two groups sued the DOE for the collection of a “legally defective” fee for nuclear waste disposal, which they said totaled nearly $750 million a year since 1983—even though development of the Yucca Mountain permanent spent fuel waste facility had been discontinued.

The U.S. Court of Appeals for the D.C. Circuit in November 2013 found for the two groups when it ruled in NARUC v. DOE that, so long as the federal government has no viable alternative to Yucca Mountain as a repository for nuclear waste, nuclear power ratepayers should not be charged the annual fee to cover the cost of that disposal.

Following the appellate court’s decision, the DOE in January asked Congress to adjust the nuclear waste fee to zero from its current one-tenth of a cent per kilowatt-hour. “If Congress does not act within the 90-day period during which the proposal is pending before it, the fee will be reset to zero, relieving consumers of nuclear-generated electricity of the burden of paying for a program that DOE illegally terminated,” explained NEI Vice President and General Counsel Ellen Ginsberg on Tuesday.

According to the NEI, the Nuclear Waste Fund has about $34 billion remaining and annual interest income is accruing at the rate of about $1.3 billion.

Tuesday’s decision by the D.C. Circuit to deny the DOE’s petition for an en banc review of the court’s November 2013 decision is “a big win for consumers for nuclear power,” said NARUC in a statement.

The NEI added that “industry is extremely eager for the government to meet its legal obligation to dispose [of] used nuclear fuel.” It said that onsite storage is safe and can be maintained without any environmental impact. But that “does not in any way excuse the federal government’s failure to meet its commitment to generators, states, local governments and the public to remove used fuel to a [Nuclear Regulatory Commission]-licensed disposal facility.”

Energy Secretary Ernest Moniz earlier this month told POWERnews that the administration’s “bigger picture” tactics on nuclear waste were modeled on its January 2013–unveiled strategy, which calls for a phased, consent-based approach to siting and implementing a nuclear waste management and disposal system, and it endorses building a pilot interim storage facility by 2021.

The DOE is working on plans to build the pilot-scale facility to accommodate spent fuel for reactors that have already been shut down, he said. “That’s something that we are working on, hopefully to move in Congress this year or next year.”

The U.S. should “always have been pursuing in parallel, geological repository development and consolidated storage of spent fuel, as opposed to the idea of leaving it for long times at reactors,” Moniz said. If the federal government was going to take responsibility for spent fuel, “we should move it from reactors and consolidate it under, most likely, federal control.”

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)


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