The National Association of Regulatory Utility Commissioners (NARUC), the body representing the interests of state public utility commissions before the federal government, on Monday filed a lawsuit against the Department of Energy (DOE) for not suspending fees associated with the now-defunct Yucca Mountain nuclear spent-fuel repository.

The suit filed with the U.S. Court of Appeals for the District of Columbia Circuit alleges that the DOE failed to comply with the Nuclear Waste Policy Act (NWPA) of 1982, a law that authorizes the agency to charge nuclear power companies 1 mill (1/10 cent) per kilowatt-hour for developing the storage facility. “To date, the nation’s nuclear-power consumers have contributed approximately $31 billion, including interest, into the Nuclear Waste Fund since 1983,” NARUC said in a statement. “This amounts to approximately $770 million a year.”

The suit follows the appellate court’s rejection of a similar appeal in December on a procedural motion. In that appeal, NARUC said the DOE had not produced a Nuclear Waste Fund Fee Adequacy Assessment in a regular fashion, as required by the law. “The Fee Adequacy Assessment, which must be performed annually, is an agency review of whether the Nuclear Waste Fund fees are ‘adequate’ enough to meet the needs of the program,” the organization said. The appeal, which had been filed in April 2010, came after a July 2009 request by NARUC to suspend the fees to the DOE.

According to NARUC, the DOE submitted a “determination” that the fees associated with the Nuclear Waste Fund were adequate and would still be collected “just days before oral arguments were scheduled” in December, prompting the court to dismiss the NARUC pleading. The DOE said that its termination of Yucca Mountain would not affect its commitment to fulfill its obligations under the NWPA, and that it needed to collect the fees to have sufficient revenues to accept and dispose of high-level waste and spent nuclear fuel as it was obligated.

The court told NARUC it could now challenge the “veracity” of the Fee Adequacy Assessment itself, however.

“NARUC contends the purported fee assessment is facially deficient and lacks either intrinsic or record support,” the filing said. “At a minimum, DOE should be directed to immediately (i) propose suspension of the collection of the waste fee to the NWF pending DOE’s release of a fee review that complies with [the Nuclear Waste Policy Act], and (ii) transmit such a proposal for NWF fee suspension to Congress.”

“Consumers for 30 years have faithfully contributed more than $31 billion to pay for a program that was supposed to be operational 13 years ago, and now may very well never be operational,” said NARUC President Tony Clark of North Dakota. “We want to work with the Energy Department to find a solution to the nation’s nuclear waste problem, but consumers should be given a break until such a solution is found.”

Sources: POWERnews, NARUC, DOE