Judges from the D.C. Circuit Court of Appeals grilled Department of Energy attorneys yesterday during oral arguments in a suit filed by the National Association of Nuclear Utility Commissioners regarding the collection of fees for the Nuclear Waste Fund. The line of questioning focused on whether or not DOE was in violation of the Nuclear Waste Policy Act by continuing to collect fees for the Nuclear Waste Fund for something other than Yucca Mountain. A January DOE assessment, based on the strategy outlined by the Blue Ribbon Commission on America’s Nuclear Future, found that fees collected for the Nuclear Waste Fund were appropriate . DOE attorneys argued the fee should remain because “the government remains obligated to dealing with the waste.” Justice David Sentelle retorted, “Being obligated doesn’t cost you one dime.” Justice Laurence Silberman added, “You have a strategy, not a plan. The strategy is not in compliance with Congress.” The major point in NARUC’s case for throwing the DOE assessment out revolved around the assessment’s basis in a strategy that goes against the NWPA. NARUC’s attorneys argued, “The assessment is legally deficient because it relies on costs for a proposed waste strategy that violates the NWPA and may never be enacted into law.”
The Nuclear Waste Fund was established to collect ratepayer funds to cover construction of the Yucca Mountain geologic repository, a permanent storage facility for spent nuclear fuel. The Obama Administration shuttered the Yucca Mountain project in 2010, but, DOE still said it was necessary to continue collecting the fees. In June 2012, NARUC filed a legal challenge with the D.C. Court of Appeals asking that the fee be suspended. The court found DOE’s adequacy review from 2010 was “legally defective,” and ordered DOE to file a new review to support its claim that the fees should continue. That report was released in January and found: “The results of the assessment do not demonstrate that either insufficient or excess revenues are being collected to ensure full cost recovery.” NARUC then filed suit with the court on the basis that DOE conducted the assessment based on a plan which is not yet law and asked the court to cease assessment of the fund until the program gets moving again.
