Appeals judges appear dubious of DOE's rationale for collecting fees

Federal judges today posed stiff questions to Department of Energy officials on why the agency continues to collect fees for disposing of nuclear waste even though it has no operating national repository.

The entire three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit appeared skeptical of DOE's arguments for maintaining the $750 million it collects from utilities annually.

Senior Judge David Sentelle said that under the law, DOE was supposed to have a repository up and running by 1998. But it has failed to do so, and it abandoned the proposed Yucca Mountain project in Nevada more than three years ago.

"How can you possibly say the government has met its obligation?" he asked DOE's attorney. "How is it fair to collect anything?"

The Nuclear Waste Policy Act required DOE to collect fees from utilities to dispose of spent nuclear fuel. The department is further mandated to reassess the fees annually.


Utilities and regulators, represented by the National Association of Regulatory Utility Commissioners, or NARUC, and the Nuclear Energy Institute, challenged the fees, arguing that DOE has taken no action to actually dispose of the waste.

Allison Kidd-Miller, representing DOE for the Department of Justice, argued that the fee was directly linked to electricity generation, not the waste repository.

"We remain obligated," she said, "and we are working toward taking your waste."

Further, Kidd-Miller contended that DOE had legitimately conducted the assessment and considered 42 potential scenarios for the waste.

But that argument was quickly shot down by Senior Judge Laurence Silberman.

"Never before have you blatantly come up with scenarios that violate the statute," he said.

The judges are very familiar with the issue. The same panel heard a nearly identical case last year. And, in June 2012, it sent the assessment back to DOE to re-examine, calling its scheme "legally defective" (Greenwire, June 1, 2012).

DOE later told the D.C. Circuit that it had no intention of suspending the fees and may use the nearly $30 billion fund to enact a new strategy laid out by the Obama administration in January that calls for a national repository by 2048 (Greenwire, Jan. 21).

Those remarks were quickly criticized by industry groups and led the D.C. Circuit to reopen the case in February.

Kidd-Miller advocated for a similar result today, saying that if the judges find flaws, the assessment should again be remanded.

But that, too, drew criticism from the bench.

If DOE is right, said Judge Janice Rogers Brown, the agency "could start all over again and never actually build" a waste repository.

"Your argument is that there is no way to get off this hamster wheel," she said.

The judges, all Republican appointees, seemed concerned about the remedy. Silberman asked both DOE and the utilities' lawyers if the court has the authority to reduce the fees to zero.

Jay Silberg of Pillsbury Winthrop Shaw Pittman, the utilities' lawyer, said the court does have that authority and that another remand would be a "fruitless exercise."

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