Appeals Court Halts Nuclear Waste Storage Fees

As long as the federal government has no viable alternative to Yucca Mountain for storing nuclear waste, power plant operators should not be charged annual fees for the cost of that disposal, the judges ruled.

An appeals court ruling Nov. 19 is a victory for nuclear power plant operators, backing their position that the annual fees collected by the U.S. Department of Energy for storing nuclear wastes at Yucca Mountain are unreasonable. As long as the federal government has no viable alternative to Yucca Mountain for storing nuclear waste, power plant operators should not be charged annual fees for the cost of that disposal, three judges of the U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled in National Association of Regulatory Utility Commissioners v. U.S. Department of Energy, No. 11-1066.

The opinion dismisses the government's position entirely. The court previously had ordered DOE to determine the adequacy of the fee paid by plant operators, and the agency still did not determine that, the judges -- Judge Janice Rogers Brown and Senior Judges Laurence H. Silberman and David B. Sentelle -- held, noting the fund accrues interest of $1.3 billion annually.

"According to the Secretary [of Energy], the final balance of the fund to be used to pay the costs of disposal could be somewhere between a $2 trillion deficit and a $4.9 trillion surplus. This range is so large as to be absolutely useless as an analytical technique to be employed to determine -- as the Secretary is obligated to do -- the adequacy of the annual fees paid by petitioners, which would appear to be its purpose," they wrote.

DOE is not currently intending to complete the Yucca Mountain storage complex, according to the decision, but the agency could complete the assessment if the project is revived or Congress enacts a different plan, and then payments could resume.

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