Academic journal article Energy Law Journal

Report of the Nuclear Regulation Committee

Academic journal article Energy Law Journal

Report of the Nuclear Regulation Committee

Article excerpt

This report summarizes significant court decisions, regulatory developments, and legislative actions that have occurred in the area of nuclear energy regulation from January 1 to December 31, 2013.*

I. COURT DECISIONS

A. In re Aiken County

On August 13, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued a writ of mandamus compelling the U.S. Nuclear Regulatory Commission (NRC or Commission) to continue review of the U.S. Department of Energy's (DOE) construction authorization application for a high-level radioactive waste repository at Yucca Mountain.1 The court reasoned that in abstaining from exhausting all appropriated funds to review the Yucca Mountain license application, "the Nuclear Regulatory Commission has continued to violate the law governing the Yucca Mountain licensing process."2

Although the Nuclear Waste Policy Act of 1982 (NWPA) designates Yucca Mountain as the site for the nation's nuclear waste repository and the NRC's Atomic Safety License Board ruled in 2010 that the DOE lacked authority to withdraw its application,3 the project has reached a political impasse in the Congress,4 which has not appropriated funds for continued NRC review of the license since fiscal year 2011.5 In this case, the court rejected the NRC's argument that Congressional intent to no longer appropriate funds in the future could justify an immediate shutdown of a statutory mandate.6 Moreover, some appropriated funds remain; as the court noted, "the Commission has at least $11.1 million in appropriated funds to continue consideration of the license application in support of its decision to issue the writ."7

In 1982, the NWPA ordered the DOE to build and operate a permanent underground nuclear disposal facility.8 In 2002, Congress designated Yucca Mountain as the nation's first permanent nuclear waste repository.9 On November 18, 2013, the NRC ordered its staff use its remaining carryover funds to complete the Safety Evaluation Report associated with the DOE's construction authorization application for a high-level radioactive waste repository at Yucca Mountain.10

B. NARUC v. DOE

On November 19, 2013, the U.S. Court of Appeals for the District of Columbia Circuit ordered the Secretary of Energy to suspend the nuclear waste fee until the Yucca Mountain repository resumes progress or there exists a viable alternative enabling, for which the Secretary could use as a basis to reassess the fee.11 This decision follows a previous ruling by the court in 2012,12 holding that the Secretary of Energy could not abdicate his responsibility to determine the adequacy of the waste fee absent contrary evidence from a challenger but rather has an affirmative obligation to assess the fee's adequacy based on current facts.13 In response to the petitioners' request in 2012 for a suspension of the fee, the court remanded with instructions that the Secretary conduct a new fee assessment.14

In its 2013 decision, the court found the Secretary's assessment, ranging from a $2 trillion deficit to a $4.9 trillion surplus, to be "absolutely useless as an analytical technique to be employed to determine . . . the adequacy of the annual fees paid by petitioners."15 The Respondents argued that the Secretary cannot rely on cost calculations for Yucca Mountain when assessing the fee per the court's direction in 2012 and now would be required to make an assessment based on a yet-to-be-determined hypothetical non-Yucca Mountain site.16 The court dismissed this argument as a problem of the government's "own making."17 Moreover, the court declined the government's request for a remand, reasoning that the government may not permissibly force the petitioners to pay the fees until the DOE arrives at a tangible conclusion of how it can permanently deposit nuclear waste, should a future plan require additional funds.18

In 2013, the DOE assessed the value of the nuclear waste fund at approximately $28. …

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