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Press Release: NEI Welcomes Federal Court’s Denial of DOE’s Waste Fee Appeal

Ellen Ginsberg
The Nuclear Energy Institute today issued the following statement from Vice President and General Counsel Ellen Ginsberg after the U.S. Court of Appeals for the D.C. Circuit denied the Department of Energy’s request that the original panel and the entire court review the November 2013 decision in NARUC v. DOE.

In that decision, the D.C. Circuit held that the department could not continue to collect the one-tenth of a cent per kilowatt-hour surcharge to pay for used nuclear fuel management. In the lawsuit, NEI and National Association of Regulatory Utility Commissioners asserted that DOE’s termination of the Yucca Mountain repository program and the absence of a congressionally approved alternative to Yucca Mountain prevented DOE from determining whether an appropriate fee was being collected because there is no program to be evaluated.

In a unanimous decision, D.C. Circuit Senior Judge Silberman wrote that, “Because the Secretary is apparently unable to conduct a legally adequate fee assessment, the Secretary is ordered to submit to Congress a proposal to change the [nuclear waste] fee to zero until such time as either the Secretary chooses to comply with the [Nuclear Waste Policy] Act as it is currently written, or until Congress enacts an alternative waste management plan.”

Ellen Ginsberg's statement follows:
“Today’s decision rejecting DOE’s efforts to reopen its fight to collect fees for a program that the department unilaterally terminated is both appropriate and timely. DOE has already submitted to Congress the required proposal to adjust the fee to zero. If Congress does not act within the 90-day period during which the proposal is pending before it, the fee will be reset to zero, relieving consumers of nuclear-generated electricity of the burden of paying for a program that DOE illegally terminated.

“Nuclear energy generators are very pleased that their consumers will not have to pay the fee while no program is under way. However, the industry is extremely eager for the government to meet its legal obligation to dispose of used nuclear fuel. Onsite storage is safe and can be maintained without any environmental impact. But that does not in any way excuse the federal government’s failure to meet its commitment to generators, states, local governments and the public to remove used fuel to a NRC-licensed disposal facility.

“Once the Energy Department’s Yucca Mountain repository program is restarted or another waste disposal program is enacted by Congress, DOE then will be able to evaluate the projected costs of the program to determine whether additional funds will be required. Currently, the Nuclear Waste Fund has approximately $34 billion remaining and annual interest income is accruing at the rate of about $1.3 billion.”
For more on how the industry manages used nuclear fuel, see NEI's website.

Comments

Joffan said…
Is there a reason that the government lawyers feel obliged to appeal these decisions? I mean, is it actually a policy that all decision should be appealed by default, or do they make a choice each time?

Collecting fees for a service not being rendered is one of the more obvious bad choices. The whole government approach to Yucca Mountain development is a readily apparent breach of contract, and has been for twenty or more years.

Meanwhile, the interest accruing on the NWF should easily cover the absent payments to support the government's still-active and still-pending obligation to take custody of used fuel. If - big if - it is legal for the nuclear power generators to do so, I would suggest that they continue collecting the fee explicitly to fund an industry-wide waste research body. Of course such a body would have to operate in the knowledge that its funds would eventually be cut off, but I'm sure they could do useful and important work with the funds they collected.
Anonymous said…
I always thought it was a matter of common law and common sense that you cannot charge someone for a service you are not providing. I know if I did that in my business I not only would lose customers very fast, but likely face criminal penalties (fraud, misrepresentation, etc.). Not to mention that it just isn't right. But I have this damnable sense of fair play and logic. Guess that's why I'm not a lawyer, or in a government bureaucracy.

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