NEI opposes Texas bid for waste refund

The US Nuclear Energy Institute (NEI) has called for the US Court of Appeals for the 5th Circuit to reject a state of Texas request for payments from a fund intended for the disposal of used nuclear fuel. The request was made in a lawsuit filed in March by Texas Attorney General Ken Paxton against federal agencies, including the Department of Energy and Nuclear Regulatory Commission (NRC).

Paxton claimed the federal government had violated the country's Nuclear Waste Policy Act (NWPA) in failing to complete the licensing process for a permanent repository for used nuclear fuel at Yucca Mountain, Nevada. A second motion, filed by Paxton in June, asked the court to declare the federal government to be in non-compliance with the NWPA.

In the March petition, as well as seeking to compel the NRC to complete the Yucca Mountain licensing process, Texas sought "restitution and disgorgement" of the Nuclear Waste Fund. The NEI on 31 July filed a brief with the court opposing those requests, saying such relief would "cause direct and significant harm" to the nuclear utilities that generate used nuclear fuel and have paid fees into the fund.

"The Nuclear Waste Fund is needed to pay for the used fuel management program and, therefore, restitution and disgorgement would be counterproductive and would potentially result in new costs being imposed on generators and their customers," NEI vice president, general counsel and secretary, Ellen Ginsberg, said yesterday. "Texas simply will not achieve its objective to have the government resume the disposal program if the Nuclear Waste Fund is depleted," she added.

Under the NWPA, which was enacted in 1982, the US federal government undertakes the obligation to dispose of used nuclear fuel. To pay for this, generators of the used fuel - nuclear utilities - pay fees into the Nuclear Waste Fund through a levy of 0.1 cent per kilowatt-hour of nuclear electricity generated. By the end of 2016, utilities had contributed over $21.2 billion into the fund, which attracts interest at about $1 billion per year. These obligations are detailed in a "standard contract", the creation of which was authorised by the NWPA.

In its filing, the NEI said that restitution and disgorgement of the fund would not be possible without a "total breach" of the standard contract. A total breach, however, would essentially revoke the federal government's obligation to dispose of the used fuel. A total breach is also "foreclosed by statute", the NEI said.

Payments out of the Nuclear Waste Fund would also unfairly disadvantage nuclear utilities - and their customers - that would have to pay into it, resulting in an increase in fees, the NEI said. It also said the state of Texas, not being a party to the standard contract, does not have standing to seek payments out of the Nuclear Waste Fund as it has not paid any fees into it.

Researched and written
by World Nuclear News