The vexing issue of dealing with spent fuel from U.S. nuclear power plants will be the centerpiece of a couple of upcoming hearings in federal appeals courts.
The National Association of Regulatory Utility Commissioners (NARUC) will be party in oral arguments in the U.S. Court of Appeals for the District of Columbia Circuit on both April 20 and May 2.
On April 20, a three-judge panel will hear NARUC arguments concerning the Department of Energy’s (DOE) handling of the Nuclear Waste Fund.
This case dates back to late 2009 and deals with the fees nuclear utilities and their consumers pay into the Nuclear Waste Fund. Congress in the Nuclear Waste Policy Act of 1982 set up the Nuclear Waste Fund to pay for the spent-nuclear fuel program.
The fund is collected through fees assessed to nuclear utilities and their consumers. On average, consumers pay about $770m annually, and have contributed more than $31bn since 1983, according to NARUC.
The NWPA requires DOE to perform an annual fee adequacy assessment. This review enables DOE decide if fees are “adequate” enough to sustain the program. The White House has said the program no longer exists, so NARUC asked in July 2009 for DOE to suspend the fees.
The Department of Energy rejected the request and NARUC subsequently took the issue to court, according to a NARUC spokesperson.
The U.S. Court of Appeals in 2010 dismissed NARUC’s case because DOE, as required by law, released an assessment claiming that all funds are necessary for the program. NARUC has challenged DOE’s assessment.
Second case involves NRC license for Yucca Mountain
The May 2 case involves Nuclear Regulatory Commission (NRC) inaction on the Yucca Mountain spent fuel repository in Nevada.
The NWPA required the Energy Department to submit a license application for a geologic repository once a site has been designated. Congress designated Yucca Mountain, and DOE in June 2008 submitted its construction license for NRC approval. The law gives the NRC three years to review the case and make a determination.
This did not happen. Instead, during the Obama administration, DOE in early 2010 asked to withdraw its application. This has been a major point of controversy in the nuclear industry and many members of Congress who criticized NRC and the Obama administration for now allowing the Yucca Mountain licensing to proceed.
The NRC’s own Atomic Safety and Licensing Board ruled against the DOE motion in mid-2010, putting the matter before the full commission for further action.
More than a year after the ASLB recommended against the DOE request, the NRC in September 2011 revealed that its commissioners were deadlocked, meaning that the ASLB decision was upheld and its review of Yucca Mountain could continue.
But the NRC directed its staff to conclude its review within a month, citing lack of congressional funding. So the ASLB simply suspended the Yucca proceeding.
NARUC, South Carolina, and Nye County, Nev., filed a “mandamus petition” to the U.S. Court of Appeals, which, if granted, would force the NRC to act on the Yucca Mountain case.
“There’s been a lot of back and forth in this case, but simply put, we believe the NWPA is quite clear that the NRC has a three-year window to determine, one way or another, whether Yucca Mountain is a suitable location,” a NARUC spokesperson said.
In a legal filing earlier this year, NARUC said that NRC cannot cite federal budget constraints as the reason for not completing the Yucca Mountain process.
Earlier this year a federal “blue ribbon commission” recommended that the whole spent fuel issue be moved from DOE to a separate quasi-governmental organization.