The Louisiana branch of power company Entergy last week filed another lawsuit seeking to recoup ongoing expenses for management of spent reactor fuel that the federal government is legally obligated to remove from the River Bend Station nuclear power plant.
This is the third such lawsuit filed by Entergy Louisiana and its predecessor, Entergy Gulf States. The first two cases resulted in nearly $67 million in judgments against the United States government.
The United States is the sole defendant in the latest complaint, filed Jan. 6 in the U.S. Court of Federal Claims.
As with many similar lawsuits filed by other utilities, the case cites the Department of Energy’s Jan. 31, 1998, deadline to begin accepting used reactor fuel from commercial nuclear power providers for disposal. That date was set in the 1982 Nuclear Waste Policy Act. It was then further locked in through separate Standard Contracts between Washington and those nuclear utilities, under which they paid into the federal Nuclear Waste Fund with the understanding that the money would be used to build a permanent repository for their radioactive waste.
The Energy Department has not accepted any used fuel and does not have a repository. Licensing of its planned disposal site at Yucca Mountain, Nev., has been frozen for about a decade, and Congress in recent years has repeatedly dismissed White House requests to appropriate funds to resume the proceeding.
“For more than 20 years since the performance date, DOE has continued to retreat on the date a permanent geologic repository will become operational from 2010 to 2017 to 2020 and now, in its latest projection made in January 2013, the year 2048, and has failed to provide any firm commencement date for the disposal of” spent nuclear fuel, lawyers for Entergy Louisiana wrote in the complaint.
River Bend Station’s boiling water reactor began producing power in June 1986 and is licensed by the Nuclear Regulatory Commission to operate to August 2045. The facility stores used fuel on-site at St. Francisville, in central Louisiana, and continues to generate more of the material. A current count of used fuel assemblies was not immediately available.
Entergy Gulf States and the Energy Department sealed their Standard Contract in August 1984. Through the Obama administration’s suspension of collections in 2014, Entergy Louisiana paid over $174 million into the Nuclear Waste Fund, the lawsuit says.
The complaint covers expenses incurred from Jan. 1, 2017, through at least the end of 2019. It cites costs for spent fuel management including engineering for dry-fuel storage gear and infrastructure; security; maintenance of the dry storage pad; licensing and other regulatory requirements through the NRC; and fees to the federal regulator.
Failure to act by the federal government represents a partial breach of its commitment under the Standard Contract, the complaint says. The United States has also violated “an implied covenant of good faith and fair dealing” with Entergy Louisiana and is “taking without just compensation,” it adds.
Entergy is seeking damages to be determined at trial, along with pre- and post-judgment interest, legal fees, and other relief allowed by the court. While the complaint does not include a specific amount, a cover sheet for the lawsuit cites a claim estimate of $35 million.
Entergy Gulf States filed its first Standard Contract lawsuit for River Bend in 2003, which led to a 2015 trial and a 2016 order from the Court of Federal Claims awarding $47.5 million in damages for expenses through Dec. 31, 2010.
Entergy Louisiana followed that up with a 2016 lawsuit for expenses from Jan. 1, 2011, to Dec. 31, 2016. That resulted in a $19 million settlement last August.
By the end of fiscal 2018, the government had paid $7.4 billion in damages in dozens of lawsuits filed by nuclear utilities, according to the Congressional Research Service. Its total liability is estimated at up to $35.5 billion, paid from the U.S. Treasury Department’s Judgment Fund.
The Department of Justice this week did not respond to a query regarding the latest lawsuit from Entergy Louisiana.
