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General Elec. Uranium Management Corp. v. Department of Energy

Citation: 14 ELR 20442
No. No. 83-3049, 584 F. Supp. 234/21 ERC 1330/(D.D.C., 04/06/1984)

The court upholds the Department of Energy's (DOE's) spent Nuclear fuel fee rule, promulgated under § 302(a)(3) of the Nuclear Waste Policy Act of 1982 (NWPA). First, the court holds that it has jurisdiction to review § 302 rules, stating that the requirement for circuit court review of rules in § 119 does not apply to rules adopted pursuant to subchapter III of the NWPA. The court also holds that reference to the nuclear waste fund, into which the fees are deposited, in the purposes section of the NWPA, § 111(b)(4), does not bring the rule within the judicial review constraints of § 119. The court then holds that the rule complies with the requirement of § 302(a)(3) that the one-time fee charged per kilogram of fuel used before April 7, 1983 must be "equivalent to an average charge of 1.0 mil per kilowatt-hour" of electricity generated. Even though the rule has a four-tier formula that results in some owners paying considerably more than 1.0 mil per kilowatthour, the rule results in an industry-wide average fee of 1.0 mil per kilowatt-hour. The court holds that unlike § 302(a)(2), which requires the fee for fuel produced after April 7, 1983 to "equal" 1.0 mil per kilowatt-hour, the plain language of § 302(a)(3) allows the Secretary to set variable fees averaging 1.0 mil per kilowatt-hour. Next, the court holds that the legislative history of the NWPA supports use of the four-tier formula. The congressional purpose of the one-time fee was to make generators pay an equitable, ratable portion of the costs of nuclear waste disposal. Although Congress intended the one-time fee and the ongoing fee to have comparable rates, it intended existing waste and new waste to be handled separately. The legislative history of the ongoing fee, which Congress tied to quantity of electricity generated, is inapplicable to the one-time fee. Finally, the court holds that DOE's action in adopting the rule was procedurally correct. Although DOE's draft rule proposed a one-fee formula of exactly 1.0 mil per kilowatt-hour, the record shows that the final rule adopting the four-tier approach reflected the view of commenters and DOE that the revised formula was more equitable and more in keeping with the statutory objective of setting fees sufficient to offset disposal costs.

Counsel for Plaintiff
John T. Boese, Richard H. Wyron, Sam E. Fowler
Fried, Frank, Harris, Shriver & Kampelman
600 New Hampshire Ave. NW, Washington DC 20037
(202) 342-3500

John K. Restrick
Nuclear Energy Legal Operation
General Electric Co., 175 Curtner Ave., San Jose CA 95125
(408) 925-3103

Counsel for Defendants
J. Paul McGrath, Ass't Attorney General; Dennis G. Linder, Stephen E. Hart, Thomas Millet
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3301

Joseph E. diGenova, U.S. Attorney
U.S. Cthse., 3rd & Constitution Ave. NW, Washington DC 20001
(202) 633-1706

Counsel for Amicus Curiae
Bruce H. Turnbull, Scott T. Maker
Weil, Gotshal & Manges
1101 14th St. NW, Washington DC 20005
(202) 682-7000