Appeals courts orders Energy Dept. to suspend collection of millions paid for nuclear waste

WASHINGTON – A federal appeals court on Tuesday ordered the Energy Department to suspend collection of about $750 million in fees annually for the permanent disposal of nuclear waste because the agency had no plans to use the money.

In a sharply worded opinion, the U.S. Court of Appeals for the District of Columbia said the Obama administration failed to provide a good reason why money for the federal Nuclear Waste Fund should continue to be collected.

The appeals court called a DOE analysis of the fee collection “absolutely useless” and compared the agency’s arguments to “the old razzle dazzle” offered by a disreputable lawyer in the musical “Chicago.”

Nuclear operators have paid more than $27 billion over the years to help cover the costs of long-term storage and disposal of nuclear waste from the nation’s 100 commercial nuclear reactors. With interest, the fund is approaching an estimated $30 billion.

The money has sat idle for decades amid disputes about how to dispose of the waste. The Obama administration has moved to close a nuclear dump planned at Nevada’s Yucca Mountain.

A DOE spokeswoman said the department was reviewing the court’s opinion.

The Nuclear Energy Institute, an industry group, hailed the ruling.

“Today’s decision confirms that the federal government cannot continue to defy Congress’ explicit direction to implement a viable program to manage reactor fuel from America’s nuclear power plants,” said Ellen Ginsberg, the institute’s general counsel.

The court ruling “reinforces the fundamental principle that the federal government’s obligation is to carry out the law, whether or not the responsible agency or even the president agrees with the underlying policy,” Ginsberg said.

The ruling marked the second time in three months the D.C. Appeals Court has rebuked the administration over a continued stalemate on how to store and dispose of nuclear waste. The court ruled in August that the Nuclear Regulatory Commission was “simply flouting the law” when it allowed the Energy Department to abandon the proposed Yucca Mountain waste site in Nevada. The action goes against a federal law designating Yucca Mountain as the nation’s nuclear waste repository.

The appeals court at the time ordered the NRC to complete the review of Yucca Mountain and approve or reject the Energy Department’s application for the never-completed project 90 miles from Las Vegas. The NRC said this week it has directed its staff to complete work on a key safety report related to Yucca Mountain.

In the opinion issued Tuesday, Senior Judge Laurence H. Silberman said the administration was contradicting itself in arguing that money for the Nuclear Waste Fund should continue to be collected even as the government no longer is pursuing Yucca Mountain as a long-term solution for nuclear waste storage.

The government “cannot have it both ways,” Silberman wrote on behalf of a three-judge panel. “It cannot renounce Yucca Mountain and then reasonably use its costs as a proxy” for determining how much money should be paid into the Nuclear Waste Fund.

“The government was hoist on its own petard,” Silberman wrote.

A group representing state utility regulators called the ruling great news for nuclear power consumers, who have spent billions to support nuclear waste storage. “Unfortunately all they have to show for their investment is a hole in the Nevada desert,” said Charles Gray, executive director of the National Association of Regulatory Utility Commissioners.

Putting aside the political dispute about Yucca Mountain, “nuclear-power ratepayers should not be charged for a program the federal government has closed down,” Gray said. “Thankfully, because of today’s actions, nuclear-power consumers will no longer have to pay for the government’s mishandling of this program.”


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