Jeremy L. Dillon
RW Monitor
1/10/2014
The Department of Energy filed for a re-hearing en banc late last week in the Court of Appeals for the D.C. Circuit concerning the court’s decision to reduce the Nuclear Waste Fund fee to zero. DOE argued that the three-judge panel’s unanimous ruling places it in a “damned if you do, damned if you don’t” situation, in which the Secretary of Energy cannot possibly satisfy the court’s demands, and as a result DOE wants the entire court to weigh in on the decision. “With its latest ruling, the panel has now said on the one hand that the Secretary cannot consider Yucca Mountain as a proxy to estimate the costs of permanent disposal of spent nuclear fuel, and on the other hand that the Secretary cannot consider non-Yucca Mountain cost assumptions,” the DOE filing states. “The sum of these inconsistent and erroneous rulings is that the panel has ordered the Secretary to cut a statutorily-established fee to zero, contrary to the plain language and intent of the Nuclear Waste Policy Act of 1982. En banc rehearing is warranted under these unusual circumstances,” the filing said.
The motion follows the three-judge panel’s unanimous decision to reduce the fee to zero as well as to deny a DOE request for more time to consider its appeal for a re-hearing to the original decision. The 3-0 decision ruled that DOE had to halt the collection of the fee from electricity rate payers due to the shuttering of the planned repository at Yucca Mountain and lack of alternative disposal plan for the nation’s high level nuclear waste as required by the Nuclear Waste Policy Act. For an en banc hearing to occur, a majority of the D.C. Circuit judges need to approve the motion, and then, if that happens, a rehearing would be presided over by all the judges of the court.
The National Association of Regulatory Utility Commissioners, along with the Nuclear Energy Institute, petitioned the court to reduce the fee due to the lack of planned disposal options. The fee amounted to one-tenth of a cent per kilowatt hour of energy generated by nuclear power, and was mandated under the Nuclear Waste Policy Act to pay for the ultimate disposal of spent fuel in a repository, designated as Yucca Mountain. But since the Yucca Mountain project has been shuttered since 2010, NARUC and NEI argued that the fees should be suspended as well. The court’s initial decision in June 2012 mandated completion a fee adequacy review, and the assessment DOE submitted said that the cancellation of Yucca Mountain did not merit any change in collection of the fee. DOE argued that the fund will likely be necessary to pay for future waste disposal. NARUC declined to comment this week on the en banc motion.
Moniz Asks Congress to Reduce the Fee
Meanwhile, DOE Secretary Ernest Moniz sent a letter to Congressional leaders last week asking them to reduce the Nuclear Waste Fund fee to zero in an attempt to comply with the court’s mandate. Two weeks ago, the court ruled in favor of a NARUC motion for expedited issuance of the mandate to reduce the fee to zero, compelling the Secretary to write to Congress to reduce the fee immediately. Under the NWPA, any change to the fee must first be submitted to Congress during a 90-day continuous session before any changes can take effect. This enables Congress to adopt a resolution that would disapprove of the change. NARUC feared that DOE would deliberately take its time submitting the letter so they filed for an expedited issuance.
In the letter, addressed to Vice President Joe Biden and Speaker of the House John Boehner (R-Ohio), Moniz wrote to request the fee be changed, but noted it was not of his doing. “Please note that this proposal is not the result of and is not consistent with the determination I am required to make pursuant to the Nuclear Waste Policy Act, as amended, 42 U.S.C. 10101 et seq., regarding the adequacy of the statutorily-established fee,” Moniz wrote. “I have not determined, as required by the NWPA, that the fees being collected are in excess of those required to offset the costs of the program; nor have I determined that collecting no fee will “insure full cost recovery.” 42 U.S.C. 10222(a). Thus, this proposal, mandated by the Court of Appeals, is not consistent with the process established in the NWPA for adjusting the fee charged to utilities,” he wrote.