• Secretary of Energy Ordered to Re-Evaluate Nuclear Waste Fees
  • June 22, 2012 | Authors: Kevin C. Fitzgerald; Peter S. Glaser; Kevin C. Greene; Clifford S. Sikora; Lara L. Skidmore
  • Law Firms: Troutman Sanders LLP - Washington Office ; Troutman Sanders LLP - Atlanta Office ; Troutman Sanders LLP - Washington Office ; Troutman Sanders LLP - Portland Office
  • On June 1, 2012, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) held in National Association of Regulatory Utility Commissioners v. United States Department of Energy that the Secretary of Energy (“Secretary”) failed to perform a valid evaluation of annual fees collected from generators for disposal of nuclear waste under the 1982 Nuclear Waste Policy Act (the “Act”). The DC Circuit ordered the Secretary to conduct a re-evaluation of the annual fees within six months, but stopped short of ordering the fees suspended.

    The case involves the annual fees that DOE collects from nuclear plant owners and operators for disposal of civilian nuclear waste. The annual fees are intended to cover the “full costs” of the government’s long-term disposal of civilian nuclear waste, and are placed in a Nuclear Waste Fund. Under the Act, the Nuclear Waste Fund must cover the lifetime costs of the government’s civilian nuclear waste disposal program, with excess funds returned to the contributors. However, because the government has discontinued the development of a nuclear waste disposal site at Yucca Mountain, Nevada, plant owners and operators argued that the annual fees should be suspended or at least reduced. In November 2010, the Secretary determined there was no basis for suspending or adjusting the fees.

    On appeal, the plant owners and operators argued that the Secretary violated his statutory obligation to evaluate the fees because he “neither conducted a cost evaluation nor accounted for the disposal program’s uncertain schedule.” They further argued that DOE should not use Yucca Mountain to estimate future costs considering the DOE’s decision to “discontinue use of that site.” In turn, the government argued that the Secretary’s only duty under the Act was to review the fees.

    Ultimately, the DC Circuit concluded that the Secretary failed to perform a valid evaluation, and his 2010 determination was legally inadequate. The DC Circuit remanded the Secretary’s 2010 determination and ordered the Secretary to respond to the remand within six months of the issuance of the mandate, with the DC Circuit retaining jurisdiction.