Court: No dump, no fees

The U.S. Court of Appeals for the District of Columbia last week ordered the U.S. Department of Energy to stop collecting annual fees from nuclear power corporations to pay for disposal of nuclear waste because DOE has no foreseeable plans to store the waste—and has even been unable to calculate the fees with any certainty.

The federal government in the 1950s and '60s encouraged the construction of nuclear power plants and for years has collected fees from power companies for an eventual solution to waste storage. Congress in 1987 ended the scientific study of three candidate sites for a waste dump and targeted Nevada as the only site. Since then, the process has slowed to a crawl as Nevada, its congressional representatives, and environmental opponents have opposed the site. The federal targeting of Nevada left no back-up option for a single dump.

Although last week's court ruling characterized the petitioners as “a group of nuclear power plant operators,” the lawsuit was actually filed by the National Association of Regulatory Utility Commissioners, an indication of how cozy regulators have become with the industry they are supposed to scrutinize. The NARUC issued a statement:

“Today's decision from the court is great news for consumers of nuclear power. Nuclear utilities and their consumers have paid more than $30 billion since the early 1980s for the construction of a nuclear-waste repository. 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. Putting aside the political dispute about the proposed Yucca Mountain facility, nuclear-power ratepayers should not be charged for a program the federal government has closed down.”

The ruling is an uncertain victory for the industry, which wants storage more than it wants relief from fees. The industry saves an estimated $750 million, but still has no dump. The court opinion claimed there is “no viable alternative” to the Nevada site, but critics say the existing on-site storage is a viable option, one that prevents hazardous transportation of the waste. Moreover, if there is no viable alternative to Yucca, it is in part because the federal government failed to follow through on a promised dump in the eastern United States, where most of the waste is generated.

The U.S. is nearly alone in seeking deep underground storage of nuclear waste. No other nation has built such a dump and only one other nation—Finland—has even committed to try.

“[W]e are presented with an opinion of the [DOE] secretary that sets forth an enormous range of possible costs,” the court ruling reads. “According to the secretary, the final balance of the fund to be used to pay the costs of disposal could be somewhere between a $2 trillion deficit and a $4.9 trillion surplus. This range is so large as to be absolutely useless as an analytical technique to be employed to determine—as the secretary is obligated to do—the adequacy of the annual fees paid by petitioners, which would appear to be its purpose. (This presentation reminds us of the lawyer's song in the musical Chicago —‘Give them the old razzle dazzle.') Thus, the secretary claims that the range is so great he cannot determine whether the fees are inadequate or excessive, which is essentially the same position we rejected only last year as in derogation of his responsibility under the statute. The Secretary may not comply with his statutory obligation by 'concluding' that a conclusion is impossible.”

At the same time last week, in response to a different court ruling, the Nuclear Regulatory Commission said it would revive evaluation of the Yucca site, though it is not clear how that will be paid for, because Congress has not funded it. Indeed, the NRC was having trouble figuring out how to make the relevant documents available to the public because of the lack of money. There is about $11 million remaining for Yucca evaluation, a pittance given the cost of the work. The NRC has asked also DOE for a supplementary environmental impact statement, but it is unclear how that study would be funded.