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National Ass'n of Regulatory Utility Commissioners v. United States Department of Energy

ELR Citation: 43 ELR 20254
Nos. 11-1066, (D.C. Cir., 11/19/2013)

The D.C. Circuit held that so long as DOE has no viable alternative to Yucca Mountain as a depository for nuclear waste, it may not charge nuclear power plant operators an annual fee to cover the cost of that disposal. The court previously held that DOE violated its statutory obligation under the Nuclear Waste Policy Act to determine annually the adequacy of the fee plant operators pay to the government. Although using Yucca Mountain's depository cost as a proxy was unreasonable because the government had abandoned that program, the key defect in the government's position was its failure to make the statutorily required determination as to whether the fee was adequate. The court then ordered DOE to conduct a new fee assessment within six months. On appeal, DOE set forth an enormous range of possible costs, but it still failed to make the statutorily required determination. Until DOE comes to some conclusion as to how nuclear wastes are to be deposited permanently, it would be unfair to force operators to pay fees for a hypothetical option. The court therefore ordered DOE to submit to Congress a proposal to change the fee to zero until such a time as either the Secretary chooses to comply with the Act as it is currently written, or until Congress enacts an alternative waste management plan.