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DOE Proposes Suspending NWF Fee But Asks Court for New Hearing

Jan. 9, 2014—Complying with a November federal appeals court ruling that ordered the Energy Department to suspend collection of fees from consumers of nuclear-generated electricity for the Nuclear Waste Fund, Energy Secretary Ernest Moniz last week sent Vice President (and President of the Senate) Joe Biden a proposal asking Congress to adjust the fee to zero from its current one-tenth of a cent per kilowatt-hour.

NEI and the National Association of Regulatory Utility Commissioners filed the lawsuit in response to DOE’s 2010 termination of the Yucca Mountain repository program, challenging the department’s continued collection of the fee to pay for a non-existent used nuclear fuel management program.

In the court’s unanimous decision on NARUC v. DOE, D.C. Circuit Senior Judge Silberman said no further fees should be collected “until such time as either the Secretary chooses to comply with the [Nuclear Waste Policy] Act as it is currently written, or until Congress enacts an alternative waste management plan.”

Ellen Ginsberg, NEI’s vice president and general counsel, said DOE’s request that Congress adjust the fee simply responds to the court’s order. She said, “No fee should be collected until the Energy Department meets its statutory and contractual obligations. If and when that occurs, the fee could be re-adjusted.”

The Nuclear Waste Fund collects $750 million a year, has a balance of approximately $30 billion and annually accrues about $1.5 billion in interest.

Ginsberg said the court’s decision should prompt Congress to reform the government’s nuclear waste disposal program, establish a new waste management entity, and endow it with the powers and funding necessary to implement an effective national used fuel program.

However, DOE on the same day requested that the entire U.S. Court of Appeals conduct a review of the panel’s decision in the case. DOE said in its filing that the court had put the secretary of energy in the position of being “damned if you do, and damned if you don’t” when it ruled that DOE could neither use Yucca Mountain as a proxy to estimate costs of permanently storing nuclear waste or non-Yucca Mountain cost assumptions. The ruling, according to DOE, prevents the secretary from carrying out his statutory duty to determine whether the congressionally mandated fee is sufficient.        

Ginsberg said the court’s bottom-line conclusion that DOE “cannot renounce Yucca Mountain and then reasonably use its costs as a proxy” is sound and should be upheld. “It is about time that nuclear generators and consumers of electricity are relieved of the obligation to pay for the program DOE willfully terminated.”