By Wayne Barber

The federal government does not have to return more than $4 million in Nuclear Regulatory Commission fees to Southern Co. subsidiaries Alabama Power and Georgia Power, a Court of Federal Claims judge ruled Monday.

In granting summary judgment to the U.S. government in this third round of litigation by the utilities, Judge Patricia E. Campbell-Smith said earlier court rulings had already considered whether the companies should recoup NRC fees they said were incurred due to the Energy Department’s ongoing failure to take possession of spent nuclear fuel from U.S. nuclear power reactors.

In court papers, the companies said they had not immediately appealed the denial of a potential $4.3 million recovery of NRC fees for fear that it would have delayed the already-awarded total of approximately $63 million they had won in a prior ruling on the DOE spent fuel breach.

The U.S. Court of Appeals for the Federal Circuit has not ruled out the possibility of some nuclear plant operators collecting NRC fees, “only that in each case the evidence must be evaluated to determine whether the plaintiff met its burden of proof,” Campbell-Smith wrote in the nine-page order.

The 1982 Nuclear Waste Policy Act, as amended by Congress in 1987, requires DOE to take possession of spent nuclear fuel from U.S. nuclear reactors and dispose of it permanently in the Yucca Mountain deep geological repository in Nevada. However, the repository has been in limbo since 2010, when the Barack Obama administration effectively canceled the project. The Donald Trump administration has proposed reviving the project as part its fiscal 2018 budget proposal for DOE.

Southern Co. did not comment on the matter this week.