Why is DOE collecting fees for 'program that isn't doing very much'? -- judge

A federal appeals court today raised serious questions about whether the Department of Energy should continue to collect fees for its nuclear waste fund despite the fact that there is still no national repository in place.

The National Association of Regulatory Utility Commissioners, the Nuclear Energy Institute and various energy companies want the U.S. Court of Appeals for the District of Columbia Circuit to put an end to the payments.

During today's arguments in NARUC v. DOE, two of the three judges seemed sympathetic to the petitioners, although it seems most likely that the court would remand the case to DOE in the first instance before potentially taking the more dramatic step of terminating the fees altogether.

On remand, Energy Secretary Steven Chu would likely have to explain why DOE thinks it can continue to collect the fees despite no national waste program being in place. The fund could surpass $26 billion this year.

Under the Nuclear Waste Policy Act (NWPA), utilities pay a fee that was designed to cover the cost the government would face in disposing of the waste.


DOE is required by the statute to review the fee each year.

The petitioners claim that the November 2010 review was unlawful because it did not take into account the fact that the Obama administration had terminated the plan to construct a nuclear waste facility at Yucca Mountain in Nevada. There are currently no other plans to build a facility.

It's an argument that Chief Judge David Sentelle had trouble disagreeing with. Referring to the $26 billion fund, he asked how that could be deemed "insufficient to cover the cost of a program that isn't doing very much."

As for the government's position that the 2010 assessment was in accordance with what was required under the NWPA, Judge Lawrence Silberman gave Justice Department lawyer Harold Lester short shrift.

"How can anybody say this is a reasonable interpretation of the statute?" he said.

He also pointed out that DOE had erroneously indicated that the projected $97 billion cost of a new facility would be paid for purely out of the fund, whereas in fact the government would likely pay $20 billion of that.

The government's assertion was "phonier than a four dollar bill," Silberman said.

Representing the petitioners, Jay Silberg of Pillsbury Winthrop Shaw Pittman, urged the court to suspend the fees if it does remand the case.

"For now, we shouldn't have to continue to pay $750 million a year," he said.

Utilities entered into contracts with the government in 1983 to dispose of the nuclear waste, but DOE has failed to dispose of more than 65,000 metric tons of nuclear waste piling up at reactors across the country.

With Yucca off the table, the Nuclear Regulatory Commission has ruled that spent fuel can be safely stored at reactor sites for at least 60 years beyond the operating life of existing reactors without major environmental impacts.

On May 2, the same court will hear another Yucca Mountain related case, in re: Aiken County. That litigation focuses on NRC's handling of the decision to shut down the project (E&ENews PM, July 29, 2011).

In the meantime, the Obama administration has assembled an internal working group within DOE to formulate a strategy for storing and disposing of nuclear waste.

The group has been tasked with presenting Chu a plan by this summer that addresses proposals from the president's Blue Ribbon Commission, an expert panel that released its final recommendations earlier this year (Greenwire, Jan. 26).

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