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Nuclear Energy Institute
FOR IMMEDIATE RELEASE: February 19, 1998
Contact:, 202.739.8000 or 703.644.8805 (after hours and weekends)

Utilities Seek Court Order Requiring Energy Department To Dispose of Used Nuclear Fuel ‘Immediately’

WASHINGTON—Utilities harmed by the U.S. Department of Energy's (DOE) failure to remove used nuclear fuel from commercial power plants asked the U.S. Court of Appeals today to order the agency to develop a program to begin disposing of used fuel "beginning immediately."

The 41 utility petitioners asked the federal appellate court to enforce its Nov. 14, 1997, ruling in Northern States Power Co. et al v. U.S. Department of Energy because the agency continues "to evade this Court's clear and repeated holdings that DOE has an unconditional obligation to dispose of utilities' spent nuclear fuel beginning no later than January 31, 1998."

The utilities, whose nuclear energy operations supply nearly 20 percent of U.S. electricity, told the court that an enforcement order is needed because DOE has demonstrated that it will manipulate the remedial provisions of its disposal contract with the utilities in a manner that "renders the Standard Contract remedy meaningless." The utilities are asking the Court of Appeals to:

  • Compel DOE to submit to the court within 30 days a program, with appropriate milestones, to dispose of used nuclear fuel beginning immediately.
  • Declare that the utilities are relieved of their reciprocal obligation to pay fees into the Nuclear Waste Fund, and are authorized to place such fees in escrow "unless and until DOE commences disposing of their spent nuclear fuel pursuant to its obligations under the Nuclear Waste Policy Act (of 1982)."
  • Prohibit the federal government from suspending or terminating its disposal contract with the utilities, or from imposing any interest, penalties or other charges or fees as a result of a utility's suspension of payments to the Nuclear Waste Fund.
  • Preclude the federal government from using fees paid into the Nuclear Waste Fund to compensate the utilities for damages or additional costs that they have incurred as the result of the agency's breach of its obligation.

In its ruling last November, the Court of Appeals reaffirmed the Energy Department's unconditional disposal obligation under the Nuclear Waste Policy Act and rejected the agency's efforts to skirt its liability by claiming that it faced an "unavoidable delay" in disposing of used fuel. The court stopped short of issuing the full writ of mandamus sought by the utility petitioners on the grounds that the remedial scheme of the Standard Contract offers a "potentially adequate remedy" for damages resulting from the Energy Department's inaction.

The utilities told the court that, as the result of DOE's efforts to deny them adequate remedies, all three of the criteria that the court identified as necessary for issuance of a full writ of mandamus requiring DOE action now have been met.

"Aside from continuing to ignore the Court's ruling that DOE has an unconditional obligation under the NWPA, DOE has announced its intention to apply the Standard Contract remedy identified by this Court in a manner that will make it wholly illusory," the utilities' motion states. "Specifically, in its Petition for Rehearing, DOE states that it intends to pay any additional costs incurred by Standard Contract holders out of the (Nuclear Waste) Fund itself and then simply to offset such payments by increasing NWF fees paid by the standard contract holders.

"...In other words, DOE intends to make utilities pay for their own damages. Such an interpretation, of course, makes a complete mockery of the Standard Contract remedy that this Court envisioned might be 'potentially adequate' to compensate the utilities for the additional costs caused by DOE's breach of its obligation."

Every month since 1983, customers who have received nuclear-generated electricity have paid one-tenth of a cent per kilowatt-hour into the Nuclear Waste Fund to pay for disposal of the radioactive waste resulting from the generation of that electricity, including transportation of used fuel from the 83 existing commercial and defense sites located in 41 states. To date, approximately $14 billion has been paid into the fund by consumers, but DOE says that a disposal facility will not be operational until 2010 at the earliest.

The Nuclear Energy Institute estimates that taxpayers nationwide could incur damages totaling as much as $56 billion as the result of the Energy Department's failure to meet its obligation under the Nuclear Waste Policy of 1982.

Utilities Represented in the Lawsuit Against DOE

  • Northern States Power Company
  • Duke Power Company
  • Niagara Mohawk Power Corp.
  • Jersey Central Power & Light Company
  • Pennsylvania Electric Company
  • Union Electric Company
  • Public Service Electric and Gas Company
  • Wolf Creek Nuclear Operating Corp.
  • Kansas City Power & Light Company
  • Indiana Michigan Power Company
  • Virginia Electric and Power Company
  • Centerior Energy Corp.
  • Duquesne Light Company
  • New York Power Authority
  • Entergy Operations, Inc.
  • Texas Utilities Electric Company
  • Pacific Gas and Electric Company
  • Boston Edison Company
  • Florida Power and Light Company
  • Vermont Yankee Nuclear Power Corp.
  • GPU Nuclear, Inc.
  • Metropolitan Edison Company
  • Wisconsin Public Service Corp.
  • Detroit Edison Company
  • Florida Power Corp.
  • Kansas Gas and Electric Company
  • Kansas Electric Power Cooperative, Inc.
  • PECO Energy Company
  • Baltimore Gas and Electric Company
  • Consolidated Edison Co. of New York, Inc.
  • Mid-American Energy Company
  • Pennsylvania Power & Light Company
  • Rochester Gas and Electric Corp.
  • Carolina Power & Light Company
  • Commonwealth Edison Company
  • Illinois Power Company

Utilities Filing Separate But Similar Lawsuits

  • Southern Nuclear Operating Company
  • Nebraska Public Power District
  • Maine Yankee Atomic Power Company
  • Omaha Public Power District
  • Wisconsin Electric Power Company

The Nuclear Energy Institute is the nuclear energy industry’s policy organization. This news release and additional information about nuclear energy are available on NEI’s Internet site at