Federal Court Orders DOE to Reevaluate Nuclear Waste Fund, Rules Fee Is Unlawful

A federal court on Friday ruled that collection of a fee by the Department of Energy that totaled nearly $750 million a year from nuclear generators for nuclear waste disposal since 1983 was “legally defective” because development of the Yucca Mountain permanent spent fuel waste facility had been discontinued. But in lieu of suspending the fee, the court ordered the DOE to conduct a reevaluation of the Nuclear Waste Fund within six months.

In its case at the U.S. Court of Appeals for the District of Columbia against the Energy Department, the National Association of Regulatory Utility Commissioners (NARUC) argued that Energy Secretary Steven Chu’s 2010 determination made just after the Obama administration pulled its support for Yucca Mountain failed to examine—or even mention—the anticipated costs of disposal or compare them to expected revenues from the fees.

NARUC said the energy secretary’s determination therefore violated the 1982 Nuclear Waste Policy Act, which requires he “evaluate whether collection of the fee will provide sufficient revenues” every year to offset program costs. Because no evaluation occurred, the determination was invalid, NARUC contended, and because no future program replaced Yucca Mountain, the DOE was legally required to suspend the fees and report that action to Congress.

Agreeing with NARUC, Senior Circuit Judge Lawrence Silberman wrote in the court’s opinion that the energy secretary “has failed to perform a valid evaluation, as he is obliged to do under the Act,” but, short of handing a victory to the organization, he said, “we do not think it appropriate to order the suspension of the fee at this time.”

The court instead remanded to the secretary with directions to comply with the statute within six months. “The panel will retain jurisdiction over this case so that any further review would be expedited,” the court said.

“Today’s decision by the court is an important victory for nuclear-power consumers. The court made clear that the Energy Department has not justified continued payments into the Nuclear Waste Fund,” said David Wright, NARUC president. “Although the court did not suspend these payments, the Energy Department is on notice that they must do a thorough and complete assessment within six months as to whether the fees—charged to nuclear utilities and passed through to their consumers—are necessary. If the Department does not, the court stated that they have the authority to suspend the payments into the Fund.”
NARUC claims that nuclear-power utilities and their consumers have paid more than $30 billion into the Nuclear Waste Fund for nearly 30 years. “To date they have nothing to show for their investment except political delays, bureaucratic red tape, and a hole in the Nevada desert,” said the group that represents the interests of state public utility commissions before the federal government.

Sources: POWERnews, U.S. Court of Appeals for the District of Columbia, NARUC