Judges toss DOE's 'unfair' fees for nuclear waste disposal

Federal appellate judges today ordered the Department of Energy to stop collecting fees for disposing of nuclear waste, because the agency has abandoned the Yucca Mountain project in Nevada and has no plans for an alternative repository.

The U.S. Court of Appeals for the District of Columbia Circuit said DOE fell far short of justifying why it continues to collect $750 million per year from utilities.

"We are not unaware of the political dilemma in which the Department is placed," wrote Senior Judge Laurence Silberman. "But until the Department comes to some conclusion as to how nuclear wastes are to be deposited permanently, it seems quite unfair to force petitioners to pay fees for a hypothetical option, the costs of which might well -- the government apparently has no idea -- be already covered."

The case is the latest in a long string of challenges to DOE's nuclear waste program since it abandoned the Yucca Mountain proposal three years ago. DOE was statutorily obligated to get the Yucca Mountain repository up and running by 1998, using fees collected from utilities.

Once it abandoned that proposal, however, the Nuclear Waste Policy Act required DOE to reassess the fees it collects from utilities every year. Utilities and regulators, represented by the National Association of Regulatory Utility Commissioners, or NARUC, and the Nuclear Energy Institute, challenged DOE's continued collection of the fees, arguing that the department has failed to justify them.


Last year, the D.C. Circuit sent the fees back to DOE for re-examination. In today's opinion, the unanimous three-judge panel made it clear that it was unsatisfied with the agency's response that the costs of disposal range from a deficit of $2 trillion to a surplus of $4.9 trillion.

"This range is so large as to be absolutely useless as an analytical technique to be employed to determine -- as the Secretary is obligated to do -- the adequacy of the annual fees paid by petitioners," Silberman, a Republican appointee, wrote.

He then compared the calculation to the lawyer's song from the trial in the musical "Chicago": "Give them the old razzle-dazzle."

Consequently, the panel ordered DOE to set the fees to zero.

"The Secretary's position is so obviously disingenuous that we have no confidence that another remand would serve any purpose," Silberman wrote.

Silberman was joined on the panel by Senior Judge David Sentelle and Judge Janice Rogers Brown, both also Republican appointees. They seemed skeptical of DOE's position at oral arguments in September (Greenwire, Sept. 25).

NARUC Executive Director Charles Gray welcomed the ruling, noting that the suspension of the fees will benefit consumers.

"Nuclear utilities and their consumers have paid more than $30 billion since the early 1980s for the construction of a nuclear waste repository," he said. "These consumers have upheld their end of the deal, but unfortunately, all they have to show for their investment is a hole in the Nevada desert. ... Thankfully, because of today's actions, nuclear power consumers will no longer have to pay for the government's mishandling of this program."

Click here for the opinion.

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