By Wayne Barber
The U.S. Court of Federal Claims, in a ruling earlier this month, held that an Entergy subsidiary is due more than $560,000 in spent fuel “characterization” costs from the U.S Energy Department.
The court had already awarded utility Entergy Gulf States total damages exceeding $47.5 million for site modifications, additional security, and cask loading costs at River Bend Nuclear Generating Station in Louisiana.
The May 11 decision from Judge Mary Ellen Coster Williams marks just the latest chapter in a long line of court awards to U.S. utilities amid the federal government’s failure to accept and dispose of spent nuclear fuel as required by the 1982 Nuclear Waste Policy Act. Entergy and other nuclear operators have piled up billions of dollars of wins from DOE for used-fuel management costs that have piled up over the decades.
In this decision, Judge Williams said related litigation that was decided in the U.S. Court of Appeals for the Federal Circuit in April 2016 concluded that because fuel storage casks may not be used for transportation, nuclear plant operators can be entitled under the law to “all of the costs of loading these storage casks.” The appeals court ruled that the expenses incurred for loading the storage casks “are expenses incurred entirely for storage due to the government’s breach.”
In the litigation before Williams, the government argued that the prior decision in a System Fuels Inc. case precluded an award for fuel characterization costs because the court only awarded cask-loading costs, not fuel characterization costs. System Fuels is an indirect subsidiary of Entergy.
Fuel characterization is the process of documenting the physical and nuclear characteristics of spent fuel assemblies. The process tests individual fuel assemblies to determine whether they are damaged or leaking radioactive materials, the court noted in the opinion.
In this case, Entergy performed fuel characterization because the Holtec cask system’s certificate of compliance, a Nuclear Regulatory Commission license governing the parameters, design, and configurations for that cask loading system, required Entergy to load only fuel assemblies that were intact and did not pose a risk of leaking.
The court records did not indicate how many fuel assemblies were involved.
“Fuel sipping” is one form of fuel characterization, used to test whether a fuel assembly has a defect or breach.
In essence, fuel characterization is an early step in the sequence of events that collectively comprise cask loading activities.
The federal government made various arguments before the court against the Entergy efforts to recoup the additional costs, but Williams rejected them.
“Plaintiffs here have established, as did the plaintiffs in System Fuels, that DOE will likely not accept the fuel as it is currently stored, requiring Plaintiffs to re-characterize and repackage the fuel prior to performance. The Court finds that the disputed $562,020 in fuel characterization costs were caused by DOE’s breach,” the judge wrote in the May 11 decision.
Entergy spokesman Michael Bowling said the company was pleased with the ruling and might make similar claims in the future.
“While this is not the first time an Entergy subsidiary has been awarded damages for fuel characterization costs, this decision is significant in that it further reinforces the nature of damages nuclear plants, such as River Bend, are entitled to recover for DOE’s continued breach of the Standard Contract for the disposal of spent nuclear fuel. The company intends to seek reimbursement for all costs incurred as a result of DOE’s continued breach of the Standard Contract,” Bowling said by email.
The Department of Energy had not responded to a request for comment by press time for RadWaste Monitor.
