An appeals court ruled Tuesday that the Energy Department could no longer collect $750 million in annual fees from nuclear power plant owners for the disposal of nuclear waste because the government has no viable alternative to the Yucca Mountain repository in Nevada, which is being discontinued by the Obama administration.
The fees have been going into a fund that has accumulated nearly $30 billion over three decades; interest alone is adding about $1.3 billion a year to the fund.
In a strongly worded ruling, the U.S. Circuit Court of Appeals for the District of Columbia said that Energy Secretary Ernest Moniz was “obviously disingenuous” about waste-disposal cost estimates used in court. The court added that “the key defect in the government’s position is that the Secretary still declines to carry out his basic statutory obligation.”
The Energy Department issued a statement saying it was “reviewing the court opinion.”
The Nuclear Waste Policy Act of 1982 established a timetable for the creation of a permanent underground repository for burying nuclear waste, which remains radioactive for thousands of years. Congress assigned the Energy Department the task of building and operating the site.
But concerns about the Yucca Mountain site and opposition in Nevada led the Obama administration to cut off funding, even though a succession of administrations had spent about $7 billion developing the site.
The appeals court ordered Moniz “to submit to Congress a proposal to change the [nuclear waste] fee to zero until such time as either the Secretary chooses to comply with the [Nuclear Waste Policy] Act as it is currently written, or until Congress enacts an alternative waste management plan.”
Before becoming secretary, Moniz was a member of the previous secretary’s Blue Ribbon Commission, which recommended that a new location for a national repository be found. But that hasn’t happened yet.
The National Association of Regulatory Utility Commissioners said the decision would help ratepayers where nuclear power is used. “These consumers have upheld their end of the deal, but unfortunately all they have to show for their investment is a hole in the Nevada desert,” the group said.
The Nuclear Energy Institute’s general counsel, Ellen Ginsberg, said the ruling “reinforces the fundamental principle that the federal government’s obligation is to carry out the law, whether or not the responsible agency or even the president agrees with the underlying policy.” She called for the creation of a new federal waste management entity.
To comply with an earlier appeals court order, the Nuclear Regulatory Commission said on Monday that it had ordered its staff to complete a safety evaluation of Yucca Mountain. The commission has about $11 million to complete the study. But the NRC said that licensing procedures for Yucca remain suspended.
The federal government has lost in recent months other lawsuits linked to the nuclear waste fund. The lawsuits have been brought by individual utilities seeking compensation for the cost of handling waste that was supposed to have been moved to Yucca, which had been expected to open about 15 years ago. Awards have totaled hundreds of millions of dollars so far.