Spent fuel rod storage containers at Entergy Vermont Yan­kee. (Reformer file photo)
Spent fuel rod storage containers at Entergy Vermont Yan­kee. (Reformer file photo)

BRATTLEBORO -- Stating the Department of Energy had hoisted itself "on its own petard," the U.S. Court of Appeals for the District of Columbia ruled DOE cannot, for the time being, charge a fee to nuclear power plant operators for the future disposal costs of nuclear waste.

"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," wrote the three-member panel that issued the ruling.
The court ordered DOE to submit to Congress a proposal to change the fee to zero until such a time as DOE begins to take spent fuel from the more than 70 storage sites around the nation, or until Congress itself enacts a waste management plan.

Currently, producers of nuclear waste collectively pay $750 million in annual fees to DOE. Since the early 1980s, when the fee was instituted, the fund has accrued $30 billion.

The Nuclear Energy Institute and the National Association of Regulatory Utility Commissioners filed the lawsuit to challenge the U.S. Department of Energy's continued collection of the one-tenth of a cent per kilowatt-hour surcharge to pay for used nuclear fuel management. NEI and NARUC contended that DOE's termination of the Yucca Mountain repository program prevented DOE from determining whether an appropriate fee was being collected because there is no program to be evaluated.

"We made the argument to court that the fund is growing by a billion-and-a-half a year just from interest, and without showing they need more money, we should take a pause because we don't have a (disposal) program," Jay Silberg of Pillsbury Winthrop Shaw Pittman, who argued the case for the National Association of Regulatory Utility Commissioners, told the Blog of Legal Times.

"Nuclear-power ratepayers should not be charged for a program the federal government has closed down," stated NARUC in a press release following the court decision.

Last year, the appeals court ordered DOE to conduct an audit to determine the adequacy of the fee structure imposed upon nuclear waste producers. The opinion DOE filed in response to the ruling, wrote the three-member panel, "reminds us of the lawyer's song in the musical, 'Chicago' -- 'Give them the old razzle dazzle.'"

According to DOE's response, the balance of the fund in 2048, when DOE believes a permanent repository might be ready, 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," wrote the court.

"Today's decision confirms that the federal government cannot continue to defy Congress' explicit direction to implement a viable program to manage reactor fuel from America's nuclear power plants," stated NEI in a press release. "The court's decision should prompt Congress to reform the government's nuclear waste disposal program. We strongly encourage Congress to establish a new waste management entity, and endow it with the powers and funding necessary to achieve the goals originally established in the Nuclear Waste Policy Act.

The court ruled DOE can't use the costs of the discontinued Yucca Mountain site as a basis for the fee.

"The government's failure to dispose of prior wastes on schedule is not the legal wrong that we are remedying," wrote the court. "The issue here, rather, is the government's failure to conduct an adequate present fee assessment, as required by statute."

The court's ruling also did not guarantee any sort of reimbursement to the producers of nuclear waste nor relieve them of the obligation "to ultimately pay for the cost of their waste disposal. When the (DOE) is again able to conduct a sufficient assessment, either because the Yucca Mountain project is revived, or because Congress enacts an alternative plan, then payments will resume."

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.