A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit has lost patience with the Department of Energy (DOE) for what the court characterizes as DOE’s failure to meet its statutory obligation to conduct an adequate assessment of fees nuclear power plant operators must pay to cover the cost of disposal of nuclear waste.  As a result, the court ordered the DOE to submit to Congress a proposal to change the fee to zero until either the DOE complies with the law or Congress enacts an alternative waste management plan (NARUC v. DOE) .

According to the National Association of Regulatory Utility Commissioners (NARUC), which brought the case against the DOE, the decision relieves nuclear utilities and their customers of having to pay for a program that has been shut down.  NARUC states that since the early 1980s more than $30 billion has been handed to the DOE for the construction of a nuclear-waste repository at Yucca Mountain, “and all they have to show for their investment is a hole in the Nevada desert.”

Affirmative obligation

The latest action follows the D.C. Circuit’s June 2012 opinion in which the court rejected DOE’s argument that the agency was not obligated to determine the fee’s adequacy until someone presented the DOE with evidence that the fee was excessive or inadequate.  NARUC had petitioned the court to review a November 2010 determination by the DOE that there was no basis for suspending, or otherwise adjusting, annual fees collected from them totaling some $750 million a year. The court ruled that the DOE had an affirmative obligation to examine the facts and come to a determination as to the adequacy of the fees.  Accordingly, the court ordered the DOE to conduct a new fee assessment within 6 months. 

‘Useless’ range of costs

In its more recent opinion, the D.C. Circuit concluded that the DOE has again declined to reach the statutorily required determination.

“Instead, we are presented with an opinion of the Secretary that sets forth an enormous range of possible costs,” states the court.  “According to the Secretary, the final balance of the fund to be used to pay the costs of disposal could be somewhere between a $2 trillion deficit and a $4.9 trillion surplus. 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.”

In other words, states the D.C. Circuit, the DOE is taking the same position the court rejected in the previous case—DOE’s contention that it cannot arrive at a final fee assessment.

Strategy sidesteps law

The D.C. Circuit also faults the foundation for DOE’s nonaction—the Agency’s 2011 Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste.  This strategy considered sites other than Yucca Mountain as well as the views of the states in which the repository would be located.  Both considerations are prohibited by the law, argued NARUC, and the court agreed.  The DOE contended that the strategy was anticipating changes to the law that would be made by Congress.  But the panel was not convinced.

“It is one thing to anticipate minor statutory additions to fill gaps,” said the court, “and quite another to proceed on the premise of a wholesale reversal of a statutory scheme.  The latter is flatly unreasonable.”

The court acknowledged the political dilemma associated with Yucca Mountain and siting a nuclear waste repository in general.  “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 court said.

NARUC v. DOE