The National Association of Regulatory Utility Commissioners (NARUC) expressed disappointment on Monday at the dismissal by the U.S. Court of Appeals for the D.C. Circuit of the association’s suit against the Department of Energy’s continued assessment of nuclear waste fees. However, it noted that the court did leave a window open for future action.

The NARUC statement said, "While we appreciate the court’s suggestion that we consider appealing the recent Department of Energy fee assessment, we still are disappointed in this procedural decision. This means that for the time being, consumers will continue picking up the tab for the federal government’s inability to implement a long-term nuclear-waste strategy. The Nuclear Waste Fund is now worth approximately $25 billion, with most all of it collected from ratepayers of nuclear-generating utilities. It is unfair that these consumers continue paying into the fund when they are clearly getting nothing out of it. NARUC will analyze its options going forward. We are taking the Court’s advice that we consider challenging the Energy Department’s recently completed, and well overdue, Nuclear Waste Fund annual assessment."

The Nuclear Waste Policy Act (NWPA) established a Nuclear Waste Fund (NWF)  to be used to pay for the disposition of commercial spent nuclear fuel (SNF) and high-level radioactive waste (HLW). The NWPA also requires the secretary of energy to review the adequacy of this fee annually, but since the enactment of the NWPA in January 1983, the secretary has never proposed a fee adjustment. The DOE’s recent NWF adequacy assessment, made public early last month, said all funds are necessary.

The most recent adequacy assessment noted that, although "the Secretary has determined that a geologic repository at Yucca Mountain is not a workable option, the Secretary has repeatedly affirmed the Department’s commitment to meeting its obligation to manage and dispose of the nation’s SNF and HLW."

It added, "One cannot determine with any confidence at this time precisely how much the yet-to-be selected disposal alternative will cost, but the closest proxy—albeit an imperfect one—is the costs of the proposed Yucca facility. Thus, the fact that the Department recently concluded that the fee should not be varied in order to meet the costs of the Yucca repository provided additional support for the conclusion that the fee should not be altered at this time (and, in particular, should not be lowered)."

A July Congressional Budget Office (CBO) report noted that "The NWPA authorized appropriations from the Nuclear Waste Fund to cover the costs of the civilian nuclear waste program. In addition, the law authorized the Secretary of the Treasury to invest the fund’s unspent balances in nonmarketable Treasury securities, which are credited with interest."

From 1983 to the end of fiscal 2009, the OMB said, "$31.0 billion was credited to the Nuclear Waste Fund. That amount includes fees paid by the nuclear industry totaling $17.1 billion as well as $13.8 billion from intragovernmental transfers of interest credited to the fund. Cumulative expenditures from the fund during that period totaled about $7.3 billion, mostly for analyses related to the waste disposal program and for initial design work by DOE on the Yucca Mountain facility. The NRC and other federal entities also received modest appropriations from the fund for work related to the program, leaving an unspent balance of $23.6 billion at the end of fiscal year 2009."

For more background on this issue and the history of the policy, see "The U.S. Spent  Nuclear Fuel Policy: The Road to Nowhere" in POWER‘s May 2010 issue. 

Sources: NARUC, DOE, POWERnews