The National Association of Regulatory Utility Commissioners (NARUC) filed an appeal on Friday against the U.S. Department of Energy (DOE) over its decision last year to continue charging fees associated with moving and disposing of spent nuclear fuel. To date, ratepayers have paid approximately $17 billion into the fund over the last 27 years, according to NARUC. Further, the fund has earned an additional $13.5 billion in interest, bringing it to about $30 billion.

NARUC filed a petition for review at the U.S. Court of Appeals for the District of Columbia Circuit. NARUC is the national association representing the State Public Service Commissioners who regulate essential utility services, such as energy, telecommunications, and water.

At issue is the DOE’s October 2009 rejection of a request from NARUC to suspend payments into the Nuclear Waste Fund (NWF), which Congress established in 1982 to pay for the transportation and permanent disposal of commercial nuclear waste. The fees are assessed to nuclear utility companies and passed through to ratepayers by NARUC’s Public Service Commission members based upon the federal government’s explicit promise that the waste would be moved and safely disposed by the DOE, most likely at the Yucca Mountain nuclear waste repository in Nevada.

"Since 1983, the nation’s nuclear-utility consumers have faithfully contributed almost $20 billion into the Nuclear Waste Fund, with the expectation that the spent-nuclear fuel would be safely moved and stored," said NARUC President David Coen of Vermont. "Unfortunately, the federal government has failed to live up to its end of the bargain. We do not take this action lightly; we are hopeful that the newly appointed Blue Ribbon Commission on America’s Nuclear Future will chart a workable path. But until that time, there is no need to assess these fees on our consumers, particularly when we have no idea what solutions the Commission will suggest, and whether they will be implemented."

Although the Yucca Mountain project was repeatedly delayed, DOE in 2008 filed an application with the Nuclear Regulatory Commission for a license to operate the repository. Then, after taking office in January 2009, the Obama administration made clear its intent to shutter the project and convened the Blue Ribbon Commission on America’s Nuclear Future to recommend a new disposal strategy.

With the administration effectively zeroing out funding for the Yucca Mountain project in its budget proposals, NARUC last July asked the DOE to suspend payments into the NWF, determining that since the project was stalled, ratepayers shouldn’t be charged for it. In response, DOE rejected the request, asserting that all fee payments to the fund are essential. NARUC in its petition said the DOE’s rejection is an actionable determination that can be challenged in court.

Southern Company is among 71 nuclear utilities that have sued the DOE for breach of contract regarding waste disposal, according to a December report from the Congressional Research Service. The utilities have won $1.2 billion in damages,  although most of the cases are still tied up in DOE appeals, McClatchy-Tribune Regional News and The Atlanta Journal-Constitution reported on Saturday.

Southern won a $77 million judgment against the DOE in 2007 related to the added costs to ratepayers through 2004. The case is under appeal. Southern is readying a second lawsuit related to more recent costs of storing waste.

Source: NARUC, McClatchy-Tribune Regional News, The Atlanta Journal-Constitution