NARUC RESPONDS TO EN BANC MOTION IN NWF FEE CASE

The National Association of Regulatory Utility Commissioners suggested that the Department of Energy can fix the Nuclear Waste Fund fee on its own without the need for a rehearing en banc, according to NARUC’s response to DOE’s en banc motion filed this week. DOE is arguing that the court has placed it in a “damned if you do, damned if you don’t” situation regarding the fee assessment, in which it cannot possibly satisfy the court’s demands. NARUC did not find this argument compelling to match the stringent criteria for a rehearing en banc. “Even if the Petition met the rigorous en banc rehearing criteria (which it did not), there would still be no need for the full Court to act,” NARUC’s response said. “DOE can remedy its own grievance, or it can secure a remedy from Congress. To justify further fee collections, DOE need only comply with existing law and reinstate the nuclear waste program Congress mandated. Or, if DOE still insists on ignoring the law, it can wait until Congress enacts a nuclear waste program that DOE will carry out and conduct a fee assessment based on that program,” the response said. Currently, the fee sits at zero after a panel from the Court of Appeals for the D.C. Circuit unanimously mandated DOE set the fee to zero after failing to comply with the Nuclear Waste Policy Act by shuttering the Yucca Mountain geological repository.