A federal appeals court today asked the Department of Energy to explain why it should be able to continue to collect fees for its nuclear waste fund despite the fact that there is no operating national repository.
The move by the U.S. Court of Appeals for the District of Columbia Circuit was not unexpected based on April's oral argument (Greenwire, April 20).
The court's decision to remand the case back to DOE, with a decision due within six months, falls short of what the National Association of Regulatory Utility Commissioners and other petitioners initially wanted. They had asked the court put an end to the payments altogether. It is expected there will be $28 billion in the fund by the end of this year.
In the ruling on behalf of a unanimous three-judge panel, Senior Judge Laurence Silberman concluded that although the court has the authority to suspend the fees, it instead chose first to ask DOE to revisit its 2010 determination that the fees could still be collected. The court could then potentially reconsider the issue at a later date.
Under the Nuclear Waste Policy Act, 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 had pointed out that the 2010 review did not take into account the fact that the Obama administration had terminated the plan to construct a repository at Yucca Mountain, Nev., and how that would affect how much money was needed in the fund. There are no other plans for a repository currently on the table.
Silberman wrote that the government's argument appeared to be that Energy Secretary Steven Chu could effectively, "like an ostrich, put his head in the sand" when it came to taking into account various factors that could determine the cost associated with disposing of nuclear waste.
The argument is "farfetched, almost absurd," Silberman wrote.
The panel concluded, however, that the immediate solution is to ask for a new determination from DOE rather than suspending the fees.
Pressure on DOE
The National Association of Regulatory Utility Commissioners applauded the court's decision as a win for consumers of nuclear power.
The decision puts pressure on the Energy Department to act, said Brad Ramsay, the group's general counsel.
"It tells the DOE if they do the same thing again, the court can suspend the fees," he said.
But Ramsay said it could be difficult for the agency to adequately assess the fee right now because the DOE doesn't have a plan for how to dispose of nuclear waste.
"How can you possibly figure out the costs if you don't know how or where you are going to dispose of the waste?" he added. "How can you figure out the costs of a plan for disposal that doesn't exist?"
Jay Silberg, an attorney representing the Nuclear Energy Institute, said DOE will have to come up with a methodology for assessing the fees but agreed that such a task will be difficult without a program in place. DOE's other option would be to acknowledge that no program is in place, and the fees should be suspended, he said.
"We think that would be the right outcome for their remand," he said. "Clearly, the court has rejected all the things the secretary has done."
A second case before the same appeals court might require the Nuclear Regulatory Commission to continue reviewing DOE's application to build the Yucca Mountain facility, which would then firm up a program and justify the fee (Greenwire, May 2).
That decision is due this summer.
The co-chair of President Obama's Blue Ribbon Commission, which was tasked with finding ways to dispose of and store nuclear waste, has said Yucca Mountain is still on the table if Nevada accepts the project.
But former National Security Adviser Brent Scowcroft has also said that a second repository will soon be needed because U.S. reactors have already generated 65,000 metric tons of waste (E&E Daily, Feb. 9).
Ramsay says it's questionable whether DOE can firm up a disposal option within six months to then ascertain the costs. "I'm glad I'm not the person at the DOE that has to come up with the next fee assessment because, unless the court forces continued review of the Yucca Mountain license, there is simply no way to justify any fee," he said.
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