The Department of Energy filed for a re-hearing en banc late last week in the Court of Appeals for the D.C. Circuit concerning the court’s decision to reduce the Nuclear Waste Fund fee to zero. DOE argued that the three-judge panel’s unanimous ruling places it in a “damned if you do, damned if you don’t” situation, in which the Secretary cannot possibly satisfy the court’s demands, so it wants the entire court to look at the case. “With its latest ruling, the panel has now said on the one hand that the Secretary cannot consider Yucca Mountain as a proxy to estimate the costs of permanent disposal of spent nuclear fuel, and on the other hand that the Secretary cannot consider non-Yucca Mountain cost assumptions,” the filing stated. “The sum of these inconsistent and erroneous rulings is that the panel has ordered the Secretary to cut a statutorily-established fee to zero, contrary to the plain language and intent of the Nuclear Waste Policy Act of 1982. En banc rehearing is warranted under these unusual circumstances,” it said. The filing then goes on to argue that the court’s decision injects itself into a “political dilemma” with undo cause.
The motion for re-hearing en banc follows the three-judge panel’s unanimous decision to reduce the fee to zero as well as to deny a DOE request for more time to consider its appeal for a re-hearing to the original decision. The 3-0 decision ruled that DOE had to halt the collection of the fee from electricity rate payers due to the shuttering of the planned repository at Yucca Mountain and lack of alternative disposal plan for the nation’s high level nuclear waste as required by the Nuclear Waste Policy Act. The National Association of Regulatory Utility Commissioners along with the Nuclear Energy Institute petitioned the court to reduce the fee due to the lack of planned disposal options.
