The D.C. Circuit Court of Appeals has ruled that the U.S. Department of Energy (DOE ) has not justified continued payments by nuclear utilities into the federal Nuclear Waste Fund to pay for management of high-level nuclear waste and ordered DOE to conduct a thorough assessment of the fees’ necessity within six months. Nat’l Ass’n of Regulatory Util. Comm’rs v. DOE, No. 11-1066 (D.C. Cir. 6/1/12).

The Nuclear Waste Policy Act (NW PA) established the fund to pay for the disposal of spent fuel generated by commercial nuclear facilities. In 2010, however, the federal government terminated work on the designated long-term storage facility at Yucca Mountain in Nevada, and no such facility has been opened. The NW PA requires DOE to annually review the amount of fees to be paid the following year. Petitioners, nuclear power plant owners and operators, challenged a November 2010 DOE determination that found no basis for suspending or otherwise adjusting the annual fees that total $750 million per year.  

The court concluded that DOE failed to perform a valid evaluation of the fees, but rather than suspend payment of the fees, the court remanded DOE ’s determination and ordered a reassessment of whether the fees are necessary. The court retained jurisdiction over the matter and noted that if DOE fails to conduct the assessment within six months, the court may suspend payments without DOE ’s approval.