oral argument not yet scheduled in the …resources.nei.org/documents/legal/brief of... · pursuant...

ORAL ARGUMENT NOT YET SCHEDULEDCase Nos. 11-1066 and 11-1068

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS; NUCLEAR ENERGY INSTITUTE, et al.,

Petitioners,

v.

U.S. DEPARTMENT OF ENERGY AND UNITED STATES OF AMERICA Respondents.

ON PETITIONS FOR REVIEW OF FINAL ACTIONS OR FAILURES TO ACT BY THE UNITED STATES DEPARTMENT OF ENERGY

BRIEF OF CONSOLIDATED PETITIONERS

James Bradford Ramsay Jay E. Silberg Robin Lunt Timothy J.V. Walsh NATIONAL ASSOCIATION OF PILLSBURY WINTHROP SHAW REGULATORY UTILITY PITTMAN LLP COMMISSIONERS 2300 N Street, N.W. 1101 Vermont Ave., N.W. Suite 200 Washington, D.C. 20037 Washington, D.C. 20005 (202) 663-8000 (202) 898-2207

Ellen C. Ginsberg Anne W. Cottingham NUCLEAR ENERGY INSTITUTE 1776 I Street, N.W., Suite 400 Washington, D.C. 20006 (202) 739-8000

USCA Case #11-1068 Document #1325453 Filed: 08/22/2011 of 79

i

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Consolidated Petitioners the National Association of Regulatory Utility

Commissioners (“NARUC”), the Nuclear Energy Institute (“NEI”), Florida Power

& Light Company (“FPL”), NextEra Energy Seabrook, LLC (“NextEra

Seabrook”), NextEra Energy Duane Arnold, LLC (“NextEra DAEC”), NextEra

Energy Point Beach, LLC (“NextEra Point Beach”), Omaha Public Power District

(“OPPD”), PSEG Nuclear, LLC (“PSEG”), Indiana Michigan Power Company

(“I&M”), PPL Susquehanna, LLC (“PPL Susquehanna”), Northern States Power

Company d/b/a Xcel Energy (“Xcel Energy”), The Detroit Edison Company

(“Detroit Edison”), Wolf Creek Nuclear Operating Corporation (“WCNOC”),

Kansas Gas and Electric Company d/b/a Westar Energy (“KGE”), Kansas City

Power & Light Company (“KCPL”), Kansas Electric Power Cooperative, Inc.,

(“KEPCo”), and Nebraska Public Power District (“NPPD”) certify as follows:

1. Parties: In addition to Consolidated Petitioners, parties to this action

are Respondents U.S. Department of Energy (“DOE” or the “Department”) and the

United States of America. The Florida Public Service Commission and the Florida

Office of Public Counsel have each requested leave to participate in the

consolidated cases as amicus curiae in support of Petitioners.

2. Rulings Under Review: The rulings under review in these

consolidated cases are set forth in DOE’s self-styled Secretarial Determination of


ii

the Adequacy of the Nuclear Waste Fund Fee (“Determination”), signed by the

Secretary of Energy and dated November 1, 2010. The Determination was

attached to the Petitions for Review and is Record document 1, Joint Appendix

(“JA”) ___.

3. Related Cases: By Order dated March 10, 2011, on the Court’s own

motion, Case Nos. 11-1066 and 11-1068 were consolidated. In addition, last year

Consolidated Petitioners brought suit (Nos. 10-1074 and 10-1076) against

Respondents requesting that this Court direct DOE to perform a Nuclear Waste

Fund (“NWF” or “the Fund”) fee adequacy review, as required by Section 302 of

the Nuclear Waste Policy Act of 1982 (“NWPA” or “the Act”), 42 U.S.C. § 10222;

and to suspend further collection of the fee until such time as an appropriate fee

review had been completed. Subsequently, after briefing had been completed and

oral argument scheduled, DOE issued the Determination at issue here. Thereafter,

on December 13, 2010, the Court dismissed the consolidated Petitions for Review,

finding, inter alia, that issuance of the Determination rendered “moot” the requests

that the Court “order the Secretary to conduct an annual assessment under

the . . . [NWPA] and to suspend the NWF fee pending completion of his annual

assessment.” The Court stated, however, that,


iii

“Given the Secretary’s recent completion of his annual assessment, petitioners may

now be able to properly raise this claim through a challenge to that assessment.”

Respectfully submitted,

/s/ James Bradford Ramsay* /s/ Jay E. Silberg James Bradford Ramsay Jay E. Silberg Robin Lunt Timothy J.V. Walsh NATIONAL ASSOCIATION OF PILLSBURY WINTHROP SHAW REGULATORY UTILITY PITTMAN LLP COMMISSIONERS 2300 N Street, N.W. 1101 Vermont Ave., N.W. Suite 200 Washington, D.C. 20037 Washington, D.C. 20005 (202) 663-8000 (202) 898-2207 Counsel for NEI, FPL, NextEra Seabrook, NextEra DAEC, Ellen C. Ginsberg NextEra Point Beach, OPPD, PSEG, Anne W. Cottingham I&M, PPL Susquehanna, Xcel NUCLEAR ENERGY INSTITUTE Energy, Detroit Edison, WCNOC, 1776 I Street, N.W., Suite 400 KGE, KCPL, KEPCo, and NPPD Washington, D.C. 20006 (202) 739-8000

Dated: August 22, 2011

*James Bradford Ramsay consents to Jay E. Silberg’s filing of this document.


iv

JOINT CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. R. 26.1, Consolidated

Petitioners NARUC, NEI, FPL, NextEra Seabrook, NextEra DAEC, NextEra Point

Beach, OPPD, PSEG, I&M, PPL Susquehanna, Xcel Energy, Detroit Edison,

WCNOC, KGE, KCPL, KEPCo, and NPPD respectfully submit this Joint

Corporate Disclosure Statement identifying (1) the parent corporation for each

Petitioner and any publicly held corporation that owns 10% or more of each

Petitioner’s stock or other ownership shares; and (2) the general nature and

purpose for each Petitioner, insofar as is relevant to this litigation:

1. NARUC is a quasi-governmental non-profit association incorporated

in the District of Columbia. NARUC has no parent corporation nor is there any

publicly held corporation that owns stock or other interest in NARUC. NARUC is

supported predominantly by dues paid by its State public utility commissioner

members and through revenues generated by meetings of those members held three

times each year.

2. NEI is a trade association organized under Section 501(c)(6) of the

Internal Revenue Code. NEI has no parent corporation and no share owners. NEI

is responsible for establishing unified industry policy on matters affecting the

nuclear energy industry, including matters governed by the NWPA. NEI’s

members include all entities licensed to generate electricity from civilian nuclear


v

power reactors in the United States who pay fees into the NWF in accordance with

the provisions of NWPA Section 302(a), 42 U.S.C. § 10222(a).

3. NextEra Energy, Inc. is the parent company of FPL and owns all of its

stock. FPL is an electric utility company and owns and operates the Turkey Point

Nuclear Plant, Units 3 and 4, located in Florida City, Florida, and also owns and

operates the St. Lucie Nuclear Plant, Unit 1, and is the majority owner and operator

of St. Lucie Nuclear Plant, Unit 2. Both St. Lucie Units are located in Jensen

Beach, Florida. FPL pays fees into the NWF for these four reactor units. FPL is a

member of NEI.

4. NextEra Energy, Inc. is the parent company and owns all the stock of

NextEra Energy Capital Holdings, Inc., which is the parent company of and owns

NextEra Energy Resources, LLC, which in turn is the parent company of and owns

ESI Energy, LLC, which in turn is the parent company of and owns Petitioners

NextEra Seabrook, NextEra DAEC, and NextEra Point Beach. NextEra Seabrook

is the majority owner and operator of Seabrook Station, a single reactor unit

located near Seabrook, New Hampshire. NextEra DAEC is the majority owner

and operator of the Duane Arnold Energy Center, a single reactor unit located near

Palo, Iowa. NextEra Point Beach owns and operates the Point Beach Nuclear

Plant, Units 1 and 2, located near Two Rivers, Wisconsin. NextEra Seabrook,


vi

NextEra DAEC, and NextEra Point Beach each pay fees into the NWF for their

respective reactors and are each members of NEI.

5. OPPD is a public corporation and political subdivision of the State of

Nebraska which has no parent corporation or other share owner. OPPD owns and

operates the Fort Calhoun Station, a single reactor unit located near Omaha,

Nebraska. OPPD pays fees into the NWF for the Fort Calhoun Station. OPPD is a

member of NEI.

6. PSEG is a wholly-owned subsidiary of PSEG Power, LLC, which is a

wholly-owned subsidiary of Public Services Enterprise Group, a publicly traded

holding company. PSEG solely owns and operates Unit 1 of the Hope Creek

Nuclear Generating Station, and is the majority owner and operator of Units 1

and 2 of the Salem Nuclear Generating Station. All three units are located in

Salem County, New Jersey. PSEG pays fees into the NWF for these three nuclear

reactor units. PSEG is a member of NEI.

7. American Electric Power Company, Inc. is the parent company of

I&M and owns all of its stock. I&M is an electric utility company and owns and

operates the Donald C. Cook Nuclear Plant, Units 1 and 2, located near Bridgman,

Michigan. I&M pays fees into the NWF for these two reactor units. I&M is a

member of NEI.


vii

8. PPL Susquehanna is a wholly-owned subsidiary of PPL Generation,

LLC, which is a wholly-owned subsidiary of PPL Energy Supply, LLC, which is a

wholly-owned subsidiary of PPL Energy Funding Corporation, which is a wholly-

owned subsidiary of PPL Corporation, a publicly traded holding company. PPL

Susquehanna is the majority owner and operator of Units 1 and 2 of the

Susquehanna Steam Electric Station located near Berwick, Pennsylvania. PPL

Susquehanna pays fees into the NWF for the Susquehanna Steam Electric Station.

PPL Corporation is a member of NEI.

9. Xcel Energy Inc. is the direct and ultimate parent company of Xcel

Energy. Xcel Energy owns and operates the Prairie Island Nuclear Generating

Plant, Units 1 and 2, near Red Wing, Minnesota, and the Monticello Nuclear

Generating Plant, a single reactor unit in Monticello, Minnesota. Xcel Energy pays

fees into the NWF for the Prairie Island and Monticello units. Xcel Energy Inc., is

a member of NEI.

10. Detroit Edison is a wholly-owned subsidiary of DTE Energy

Company. Detroit Edison owns and operates the Fermi Nuclear Power Plant Unit

2, a single reactor unit near Newport, in Monroe County, Michigan. Detroit

Edison pays fees into the NWF for the Fermi Nuclear Power Plant Unit 2. Detroit

Edison is a member of NEI.


viii

11. KGE is a wholly-owned subsidiary of Westar Energy, Inc., a publicly

traded company. KCPL is a wholly-owned subsidiary of Great Plains Energy

Incorporated, a publicly traded company. Petitioner KEPCo is an electric utility

and a cooperative, non-profit membership corporation that issues no stock and has

no owners. Petitioners KGE, KCPL, and KEPCo are each partial owners of the

Wolf Creek Generating Station, a single reactor unit located in Coffey County,

Kansas. Petitioner WCNOC is a wholly-owned subsidiary of KGE, KCPL, and

KEPCo and operates the Wolf Creek Generating Station on behalf of its owners.

WCNOC, as agent for its owners, pays fees into the NWF for the Wolf Creek

Generating Station. WCNOC, KGE, KCPL, and KEPCo are members of NEI.

12. NPPD is a public corporation and political subdivision of the State of

Nebraska which has no parent corporation or other share owner. NPPD owns and

operates the Cooper Nuclear Station, a single reactor unit located near Brownville,

Nebraska. NPPD pays fees into the NWF for the Cooper Nuclear Station. NPPD

is a member of NEI.


ix






x

TABLE OF CONTENTSPage

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............................................................................................................ i

JOINT CORPORATE DISCLOSURE STATEMENT ..................................... iv TABLE OF CONTENTS .......................................................................................xTABLE OF AUTHORITIES .............................................................................. xii GLOSSARY ........................................................................................................ xvii JURISDICTIONAL STATEMENT ......................................................................1STATEMENT OF ISSUES PRESENT FOR REVIEW .....................................3STATUTES AND REGULATIONS ......................................................................4STATEMENT OF FACTS......................................................................................5I. The Nuclear Waste Policy Act of 1982...........................................................5II. Fee Adequacy Reports.....................................................................................9III. NWF Collections and Balance ......................................................................13IV. The Current Administration’s Decision to Cancel the Yucca Mountain

Program..........................................................................................................15A. Development of the Yucca Mountain Site ....................................................15B. The Current Administration’s Decision to End the Yucca Mountain

Program..........................................................................................................16C. The Current Administration’s Efforts to Terminate Yucca Mountain

Licensing........................................................................................................19V. Blue Ribbon Commission..............................................................................22VI. Existing NWPA Statutory Structure Remains in Place.................................27VII. Previous Litigation.........................................................................................27VIII. The November 1, 2010 Determination..........................................................31IX. Petition for Review........................................................................................34ARGUMENT SUMMARY ...................................................................................35STANDING …………………………………………………………………….. 38 I. NARUC’s Standing .......................................................................................38II. Generators’ Standing .....................................................................................40


xi

III. NEI’s Standing...............................................................................................41ARGUMENT…………………………………………………………………… 42 I. Standard of Review........................................................................................42II. DOE’s Final Action or Failure to Act Is Reviewable Under NWPA

§ 119 ..............................................................................................................45III. DOE Action/Failure to Act Violates the NWPA...........................................46

A. There is no waste disposal program ..............................................................48B. There is no schedule for implementing a waste disposal program ...............48C. There are no waste disposal program costs ...................................................49D. The Determination Contains No Evaluation of Waste Disposal

Program Costs................................................................................................49E. DOE’s Asserted Inability to Propose Fee Suspension Contravenes

NWPA Section 302(a)(4) ..............................................................................51F. DOE’s Purported Concern for Intergenerational Fairness to Future

Ratepayers Does Not Trump the NWPA.......................................................53IV. DOE Must Act to Reduce the NWF Fee to Zero ..........................................54

A. Fee Suspension is Appropriate in Light of the NWF’s Balance of Over $24 Billion and Over $1 Billion in Annual Interest Accruals.......................54

B. Suspension of the NWF Fee Is Proper in the Absence of a Valid NWF Fee Review ....................................................................................................55

C. The Current Status of DOE’s Waste Disposal Program Requires Suspension of the NWF Fee ..........................................................................56

CONCLUSION...................................................................................................... 58 CERTIFICATE OF COMPLIANCE ................................................................. 60 ADDENDUM – PERTINENT STATUTES AND REGULATIONS ADDENDUM – PETITIONERS’ AFFIDAVITS


xii

TABLE OF AUTHORITIES

CASES

* Ala. Power Co. v. DOE,307 F.3d 1300 (11th Cir. 2002) .............................................6, 7, 8, 42, 46, 56

* Bennett v. Spear,520 U.S. 154 (1997).......................................................................................38

Blue Chip Stamps v. Manor Drug Stores,421 U.S. 723 (1975).......................................................................................46

* Chevron, U.S.A., Inc. v. NRDC,467 U.S. 837 (1984)...........................................................................42, 43, 44

City of Waukesha v. EPA,320 F.3d 228 (D.C. Cir. 2003).................................................................39, 41

Conn. Nat’l Bank v. Germain,503 U.S. 249 (1992).......................................................................................44

Con. Ed. of N.Y. v. DOE,870 F.2d 694 (D.C. Cir. 1989).......................................................................53

Eagle Broad. Grp., Ltd. v. FCC,563 F.3d 543 (D.C. Cir. 2009).................................................................43, 45

G. E. Uranium Mgmt. Corp. v. DOE,764 F.2d 896 (D.C. Cir. 1985).......................................................................45

In re Aiken County,645 F.3d 428 (D.C. Cir. 2011).......................................................................20

* Ind. Mich. Power Co. v. DOE,88 F.3d 1272 (D.C. Cir. 1996)...............................................................5, 6, 27

Indianapolis Power and Light Co. v. ICC,587 F.2d 1098 (7th Cir. 1982) .......................................................................39

Authorities upon which Petitioners chiefly rely are marked with an asterisk.


xiii

INS v. Chadha,462 U.S. 919 (1983).........................................................................................8

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992).................................................................................38, 40

* Nat’l Ass’n of Regulatory Util. Comm’rs v. DOE,851 F.2d 1424 (D.C. Cir. 1988).............................................................5, 6, 39

Nat’l Ass’n of Regulatory Util. Comm’rs v. DOE,405 Fed. App’x 507 (D.C. Cir. 2010)............................................................30

Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC,737 F.2d 1095 (D.C. Cir. 1984), cert. denied, 469 U.S. 1227 (1985)...........39

Nat’l Ass’n of Regulatory Util. Comm’rs v. FERC,475 F.3d 1277 (D.C. Cir. 2007).....................................................................39

Nat’l Ass’n of Regulatory Util. Comm’rs v. ICC,41 F.3d 721 (D.C. Cir. 1994).........................................................................39

Nat’l Treasury Emps. Union v. U.S.,101 F.3d 1423 (D.C. Cir. 1996).....................................................................41

Neb. Public Power Dist. v. U.S.,590 F.3d 1357 (Fed. Cir. 2010) .....................................................................45

NEI v. EPA,373 F.3d 1251 (D.C. Cir. 2004).....................................................................15

Northern States Power Co. v. DOE,128 F.3d 754 (D.C. Cir. 1997), cert. denied, 525 U.S. 1015 (1998)..............5

Ransom v. FIA Card Servs., 131 S. Ct. 716 (2011)....................................................................................47

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ......................................................................................42

Teva Pharm. Indus. Ltd. v. Crawford,410 F.3d 51 (D.C. Cir. 2005).........................................................................44


xiv

Tourus Records, Inc. v. DEA,259 F.3d 731 (D.C. Cir. 2001).......................................................................45

U.S. Dep’t of Energy (High-Level Waste Repository), LBP-10-11,71 N.R.C. __, slip op. (June 29, 2010) ..........................................................16

U.S. Dep’t of Energy (High-Level Waste Repository), LBP-09-6,69 N.R.C. 367 (2009) ....................................................................................16

U.S. Dep’t of Energy (High-Level Waste Repository), CLI-09-14,69 N.R.C. 580 (2009) ....................................................................................16

U.S. v. Braxtonbrown-Smith,278 F.3d 1348 (D.C. Cir. 2002), cert. denied, 536 U.S. 932 (2002).............42

U.S. v. Mead Corp.,533 U.S. 218 (2001).......................................................................................42

United Food & Commercial Workers v. Brown Grp., Inc.,517 U.S. 544 (1996).......................................................................................39

U.S. v. Southern Motor Carriers Rate Conference, Inc.,467 F. Supp. 471 (N.D. Ga. 1979), aff’d 672 F.2d 469 (5th Cir. 1982), aff’d en banc on reh’g, 702 F.2d 532 (5th Cir. 1983), rev’d on othergrounds, 471 U.S. 48 (1985) .........................................................................39

Wash. Utils. and Transp. Comm’n v. FCC,513 F.2d 1142 (9th Cir. 1976) .......................................................................39

* Wis. Elec. Power Co.,778 F.2d 1 (D.C. Cir. 1985)...............................................................46, 50, 53

STATUTES, REGULATIONS & OTHER DOCUMENTS

5 U.S.C. § 706(2)(A) (2006)……………………………………………………...45

Nuclear Waste Policy Act of 1982, § 8(b)(2), 42 U.S.C. § 10107(b)(2)…...8, 14, 57

Nuclear Waste Policy Act of 1982, § 111(a)(4), 42 U.S.C. §§ 10131(a)(4)............38

Nuclear Waste Policy Act of 1982, § 111(b)(4), 42 U.S.C. §§ 10131(b)(4) .............5


xv

Nuclear Waste Policy Act of 1982, § 114, 42 U.S.C. § 10134……………………15

Nuclear Waste Policy Act of 1982, § 114(a)(2) 42 U.S.C. § 10134(a)(2)..…….…15

Nuclear Waste Policy Act of 1982, § 115, 42 U.S.C. § 10135…………………....15

Nuclear Waste Policy Act of 1982, § 116, 42 U.S.C. § 10136……………………15

Nuclear Waste Policy Act of 1982, § 119(a)(1)(A),42 U.S.C. § 10139(a)(1)(A).....................................................................45, 46

Nuclear Waste Policy Act of 1982, § 119(a)(1)(B), 42 U.S.C. § 10139(a)(1)(B).........................................................................................45, 46

Nuclear Waste Policy Act of 1982, § 119(a)(1), 42 U.S.C. § 10139(a)(1)................1


Nuclear Waste Policy Act of 1982, § 119(b), 42 U.S.C. § 10139(b).........................2

Nuclear Waste Policy Act of 1982, § 160(a), 42 U.S.C. § 10172(a) .......................12

Nuclear Waste Policy Act of 1982, § 301(b)(3), 42 U.S.C. § 10221(b)(3) .............56

Nuclear Waste Policy Act of 1982, § 302 ................................................................45



Nuclear Waste Policy Act of 1982, § 302(a)(3), 42 U.S.C. § 10222(a)(3)............6, 8

* Nuclear Waste Policy Act of 1982, § 302(a)(4), 42 U.S.C. § 10222(a)(4), ...........................................1, 3, 7, 8, 18, 32, 43, 44, 47, 49, 51, 52, 54, 55, 56

Nuclear Waste Policy Act of 1982, § 302(a)(5), 42 U.S.C. § 10222(a)(5)(B) ..........5

Nuclear Waste Policy Act of 1982, § 302(c)(1), 42 U.S.C. § 10222(c)(1)…..........55


xvi

* Nuclear Waste Policy Act of 1982, § 302(d),42 U.S.C. § 10222(d)………………………..7, 13, 18, 32, 44, 47, 48, 49, 50

Nuclear Waste Policy Act of 1982, § 302(e), 42 U.S.C. § 10222(e) ...................6, 56

Nuclear Waste Policy Act of 1982, § 302(e)(3), 42 U.S.C. § 10222(e)(3)………..55

Nuclear Waste Policy Act of 1982, § 304, 42 U.S.C. § 10224 ................................18

47 U.S.C. § 254 (1996) ............................................................................................39

47 U.S.C. § 410(c) (1971)........................................................................................39

Memorandum for the Sec’y of Energy, Blue Ribbon Comm’n on America’s Nuclear Future, 75 Fed. Reg. 5,485 (Feb. 3, 2010) .................................................22

U.S. Dep’t of Energy (High Level Waste Repository); Notice of Hearing & Opportunity to Petition for Leave to Intervene on an Application for Authority to Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain, 73 Fed. Reg. 63,029 (Oct. 22, 2008) ...........15

Yucca Mountain Dev. Act, Pub. L. No. 107-200, 116 Stat. 735 (July 23, 2002)....15

Yucca Mountain; Notice of Receipt & Availability of Application,73 Fed. Reg. 34,348 (June 17, 2008) .......................................................................15

To Consider the Nomination of Steven Chu to be Secretary of Energy: Hearing Before the Sen. Comm. on Energy & Natural Res.,S. Hrg. 111-3, 111th Cong., 1st Sess. (Jan. 13, 2009) .............................................16

Fed. R. App. P. 26.1..................................................................................................iv

Fed. R. App. P. 32(a)(5)...........................................................................................60

Fed. R. App. P. 32(a)(6)...........................................................................................60

Fed. R. App. P. 32(a)(7)(B) .....................................................................................60


xvii

GLOSSARY

Act Nuclear Waste Policy Act

BRC Blue Ribbon Commission on America’s Nuclear Future

Commission Nuclear Regulatory Commission

DOE Department of Energy

FY Fiscal Year

FOIA Freedom of Information Act

GAO Government Accountability Office

HLW High-Level Radioactive Waste

NARUC National Association of Regulatory Utility Commissioners

NEI Nuclear Energy Institute

NRC Nuclear Regulatory Commission

NWF Nuclear Waste Fund

NWPA Nuclear Waste Policy Act

NWPAA Nuclear Waste Policy Act Amendments of 1987

OCRWM Office of Civilian Radioactive Waste Management

SNF Spent Nuclear Fuel

TSLCC Total System Life Cycle Cost

YMDA Yucca Mountain Development Act


1

JURISDICTIONAL STATEMENT

Consolidated Petitioners challenge DOE’s act and/or failure to act in

preparing the legally insufficient assessment of the Nuclear Waste Fund (“NWF”)

fee as mandated by the Nuclear Waste Policy Act (“NWPA”). The Determination,

signed by the Secretary of Energy and dated November 1, 2010, fails to meet the

most basic fee review requirements of the NWPA, including those of NWPA

Section 302(a)(4), 42 U.S.C. § 10222(a)(4).

NARUC represents the interests of State public utility commissioners,

whose statutory responsibilities include protecting electricity consumers from

excess or unlawful rates. The NWF fee paid by electric utilities is passed through,

by NARUC’s members, to ratepayers.

FPL, NextEra Seabrook, NextEra DAEC, NextEra Point Beach, OPPD,

PSEG, I&M, PPL Susquehanna, Xcel Energy, Detroit Edison, WCNOC, KGE,

KCPL, KEPCo, NPPD (collectively, the “Generators”), and all other NEI members

who own and/or operate civilian nuclear power reactors pay the NWF fee, which is

the subject of the November 1, 2010 Determination.

This Court has jurisdiction over this matter pursuant to NWPA

Section 119(a)(1), 42 U.S.C. § 10139(a)(1). Venue properly lies in this Court

pursuant to NWPA Section 119(a)(2), 42 U.S.C. § 10139(a)(2). This Petition is

brought within the 180 day period set forth in NWPA Section 119(b),


2

42 U.S.C. § 10139(b), based upon the November 1, 2010 date of the

Determination.


3

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether the Respondent DOE’s Determination complies with the

NWPA, specifically the NWF fee review requirements of NWPA Section

302(a)(4), 42 U.S.C. § 10222(a)(4).

2. Whether this Court should declare that the Determination is arbitrary,

capricious, and contrary to applicable law based on its statement that there is no

reasonable basis to conclude that either excess or insufficient funds are being

collected by the NWF, and, therefore, that the NWF fee should not be adjusted.

3. Whether, in the absence of a legally sufficient NWF fee adequacy

review, this Court should direct DOE to comply with Section 302(a)(4) of the

NWPA by proposing to Congress that collection of the NWF fee be suspended.

4. Whether, in light of the total absence of a DOE nuclear waste disposal

program, the resulting absence of a basis to project its cost, the current multi-

billion dollar balance in the NWF, and the more than a billion-dollar per year

increase in the NWF balance simply as a result of interest, this Court should direct

DOE to comply with Section 302(a)(4) of the NWPA by proposing to Congress

that collection of the NWF fee be suspended.


4

STATUTES AND REGULATIONS

Pertinent statutes and regulations are set forth in an addendum bound with

this brief.


5

STATEMENT OF FACTS

In accordance with the congressional mandate of the NWPA, the nation’s

nuclear electric companies pay to the U.S. Treasury a NWF fee that, by statute, is

required to offset the costs incurred by DOE in disposing of the spent nuclear fuel

(“SNF”) and high-level radioactive waste (“HLW”) that the utilities’ nuclear plants

generate. Also pursuant to the congressional mandate, the Secretary of Energy is

required to review the fee annually to assure that it is neither too large nor too

small, and to adjust it as necessary. DOE has failed to perform an adequate

review. In particular, the November 2010 Determination fails to reflect DOE’s

termination of the nuclear waste program and the absence of any costs to be offset

by the NWF fee.

I. The Nuclear Waste Policy Act of 1982

Congress enacted the NWPA to establish a comprehensive program for the

disposal of HLW/SNF generated by civilian nuclear power reactors. Nat’l Ass’n of

Regulatory Util. Comm’rs v. DOE, 851 F.2d 1424, 1425 (D.C. Cir. 1988)

(“NARUC”). The Act required DOE to begin disposing of SNF and HLW by a

date certain, January 31, 1998, and required that the generators of this waste pay

the costs for its disposal. 42 U.S.C. §§ 10131(b)(4), 10222(a)(5)(B); Ind. Mich.

Power Co. v. DOE, 88 F. 3d 1272, 1277 (D.C. Cir. 1996); Northern States Power

Co. v. DOE, 128 F.3d 754, 756 (D.C. Cir. 1997), cert. denied, 525 U.S. 1015


6

(1998). As recognized by this and other Circuits, the congressionally mandated

quid pro quo is a central feature of the NWPA. Ind. Mich., 88 F.3d at 1276-1277;

see also Ala. Power Co. v. DOE, 307 F.3d 1300, 1302 (11th Cir. 2002). Further, to

ensure that the generators of SNF and HLW pay the full cost – no more and no less

– of the program, the NWPA requires “the payment to the Secretary [of Energy] of

fees” that are “sufficient to offset expenditures” for the program. 42 U.S.C.

§ 10222(a)(1). In other words, the fees charged SNF and HLW generators “should

fully offset the costs of developing and operating” the disposal facilities. Ala.

Power, 307 F.3d at 1303. See also, R1, Determination at 2, JA__.1

The NWPA set the fee at 1.0 mil (one-tenth of one cent) per kilowatt-hour of

nuclear-generated electricity sold 90 days or more after the NWPA’s enactment,

i.e., after April 7, 1983.2 42 U.S.C. § 10222(a)(2). Unexpended deposits in the

NWF earn interest that is credited to the NWF. 42 U.S.C. § 10222(e).

The NWF fee is to be neither too high, nor too low, but just enough. See

NARUC, 851 F.2d at 1426. Though the Act set the on-going fee at 1.0 mil per

kilowatt-hour, “[t]his initial assessment was to be only a starting point.” Ala.

1 In this brief, “RXX” denotes the number of the document identified as XX in the

Certified Index of the Administrative Record. The notation “JA__” refers to the applicable pages of the Joint Appendix, to be provided after briefing has been completed.

2 The NWPA also established a “one time” fee for electricity generated by civilian nuclear power plants prior to April 7, 1983. 42 U.S.C. § 10222(a)(3).


7

Power, 307 F.3d at 1302. The Act directs that DOE “annually review the amount

of fees established by paragraphs (2) [the one mil fee] and (3) [the ‘one-time’ fee]

to evaluate whether collection of the fee will provide sufficient revenues to offset

the costs” of the program, which are “defined in subsection (d)”. 42 U.S.C.

§ 10222(a)(4). NWPA Section 302(d) in turn identifies the specific radioactive

waste disposal activities whose cost the NWF fee is intended to offset. These costs

include the costs for (1) identification, development, licensing, construction,

operation, decommissioning, and post-decommissioning maintenance and

monitoring of any repository or monitored retrievable storage facility; (2)

nongeneric research, development, and demonstration activities under the NWPA;

(3) administration of the waste disposal program; (4) transportation, treating, or

packaging of spent nuclear fuel; (5) acquisition, design, modification, replacement,

operation, and construction of facilities at a repository site or monitored retrievable

storage facility; and (6) provision of assistance to States, local governments, and

Indian tribes under the NWPA. 42 U.S.C. § 10222(d).

The statute expressly ties the annual fee review to the evaluation of the

radioactive waste disposal activity costs identified in NWPA Section 302(d). If the

annual evaluation

determines that either insufficient or excess revenues are being collected, in order to recover the costs incurred by the Federal Government that are specified in subsection (d) [NWPA § 302(d)], the


8

Secretary shall propose an adjustment to the fee to [e]nsure full cost recovery.

42 U.S.C. § 10222(a)(4). In light of the full-cost recovery nature of the fee,

Congress intended that the fees would be “adjusted in the most responsive way.”

Ala. Power, 307 F.3d at 1308.

Because the “one-time” fee is retrospective and is not adjusted, see 42

U.S.C. § 10222(a)(3), only the 1.0 mil fee is adjusted. An adjustment to the 1.0

mil fee proposed by DOE automatically takes effect unless contrary legislation is

enacted within 90 days.3

In addition, NWPA § 8(b)(2) provides for the disposal of defense-related

HLW in the repository or repositories developed for the disposal of commercial

nuclear waste. 42 U.S.C. § 10107(b)(2). The NWPA requires that the costs for

such disposal “shall be paid by the Federal Government, into the special account

established under section 302,” i.e., the NWF. Id.

3 As enacted, NWPA § 302(a)(4) directed the Secretary to submit the proposed fee

adjustment to Congress, which would become effective unless either House of Congress adopted a disapproval resolution with 90 days. The unconstitutionality of this provision under the Supreme Court’s subsequent decision in INS v. Chadha, 462 U.S. 919 (1983), was confirmed in Ala. Power, which effectively revised this provision to provide that the Secretary’s proposal would become effective unless within 90 days legislation was enacted revoking or revising the proposal. 307 F.3d at 1307-08.


9

II. Fee Adequacy Reports

DOE began the fee adequacy review process immediately following

enactment of the NWPA. To the best of Petitioners’ knowledge, except for the

November 2011 Determination at issue here, all of the published fee adequacy

assessments were based on HLW/SNF disposal in at least one geologic repository.

Although the waste disposal program’s assumptions changed over time, the basic

program – geologic disposal – did not. And except for the Determination at issue

here, all of the published fee adequacy assessments were supported by overall

program cost estimates of the waste disposal program’s assumptions in place at the

time of the assessment.4

Most of the published annual reports were accompanied by and relied on a

separately published total system life cycle cost (“TLSCC”) estimate of the waste

disposal program.5 The TLSCC “presents a reasonable estimate of total system

costs and forms a rational basis for assessment of the adequacy of funding and

projected revenues to determine fee adequacy.” TSLCC History at 2, JA__. “The

TLSCC analyses identify the cost impact of major program milestones and allow

4 The annual fee adequacy review has often, but not always, been published in a

publicly available report. 5 R23, History of Total System Life Cycle Cost and Fee Adequacy Assessments

for the Civilian Radioactive Waste Management System (Sept. 2008) (“TSLCC History”) at 1, JA__.


10

informed decisions to be made about potential redirection of the program.” Id. at

1, JA__.

The TLSCC estimates are complex analyses. The TLSCC sums the annual

costs estimated for each major cost category (historical, program integration,

transportation, and repository), based on an estimation method. Id. First, a

reference case is defined by determining the components of the waste management

system and the path of waste material flows. Id. at 1-2, JA__. Next, assumptions

are developed that characterize the facilities and processes in the system in

sufficient detail in order to derive engineering cost estimates, and assumptions that

specify the quantity and schedule of waste acceptance. Id. at 2, JA__.

Assumptions for the rate of waste generation, the minimum age at which SNF will

be accepted, and the waste acceptance rate are used to estimate annual waste flows

that will occur when the system is operational. Id. Waste flow assumptions, in

turn, “determine both transportation and repository costs because they determine

when and how much waste has to be transported and how long the repository must

operate before it is filled to capacity.” Id. Table 1 of the TSLCC History (JA__)

summarizes the TLSCC estimates conducted.


11

For example, the 1983 Fee Report,6 which was the first NWF fee evaluation

prepared pursuant to the NWPA, “present[ed] the results of extensive analyses that

explored the costs of implementing a nuclear waste disposal program” that

“presuppose[d] the construction of two geologic repositories,” considered “[c]osts

for repository site exploration and development, spent fuel and waste packaging,

transportation, construction of the first two geologic repositories, related research

and development (R&D) and administrative programs,” and “projected and

examined revenue flows generated from the mandated fees.” 1983 Fee Report at 1,

JA__.

In 1985, DOE first publicly released a TLSCC, which provided a range of

cost estimates depending on the locations of the two repositories, and a sensitivity

analysis for delays to the system, quantities of waste disposed, and transportation-

cask technology. TSLCC History at 6, JA__. Reflecting the 1985 TLSCC, the

1985 Fee Report7 presupposed a “two repository waste disposal system”;

considered NWF fee revenues generated under two different nuclear electricity

generation growth projections; and estimated life-cycle costs for development of

6 R3, U.S. DOE, Nuclear Waste Policy Act Project Office, Report on Financing

the Disposal of Commercial Spent Nuclear Fuel and Processed High-Level Radioactive Waste, DOE/S-0020/1 (July 1983) (the “1983 Fee Report”), JA__.

7 R5, U.S. DOE OCRWM, Nuclear Waste Fund Fee Adequacy: An Assessment (DOE/RW-0020) (Feb. 1985) (the “1985 Fee Report”), JA__.


12

the repository program, waste transportation, and geologic repository construction,

operations, and decommissioning. 1985 Fee Report at 4-6, JA__.

The 1990 TSLCC estimate and The 1990 Fee Report8 considered the

program changes since passage of the Nuclear Waste Policy Act Amendments of

1987 (the “NWPAA”), which, among other things, directed DOE to investigate

only Yucca Mountain for a repository and to stop all work on the second repository

program. TSLCC History at 14, JA__; 1990 Fee Report at 1, JA__; see also 42

U.S.C. § 10172(a). Because “[u]nder the NWPAA, only one repository is

authorized, and only the Yucca Mountain, Nevada, candidate site is authorized for

scientific investigations,” the 1990 Fee Report base case assumed that “the Yucca

Mountain candidate site is found suitable for development as a repository and that

the first repository is located at Yucca Mountain.” 1990 Fee Report at 7, JA__.

For a final example, the 2008 Fee Report9 was based on a 2008 TSLCC

analysis of the entire waste program “reflect[ing] the current system design

presented in the Yucca Mountain license application submitted to the” Nuclear

Regulatory Commission (“NRC” or “Commission”). 2008 Fee Report at 2, JA__.

The 2008 Fee Report considered “all defense wastes currently destined for disposal

8 R8, U.S. DOE OCRWM, Nuclear Waste Fund Fee Adequacy: An Assessment

(DOE/RW-0291P) (Nov. 1990) (the “1990 Fee Report”), JA__. 9 R27, U.S. DOE OCRWM, Civilian Radioactive Waste Management 2008 Fee

Adequacy Assessment, Letter Report (Jan. 13, 2009) (the “2008 Fee Report”), JA__.


13

at Yucca Mountain and projected discharges of SNF from commercial utilities,”

including the 48 reactors that had received 20 year license extensions as of January

2008. Id. The analysis modeled a total of 28 combinations of four cost and seven

economic conditions. Id. at i, JA__.

In summary, prior fee adequacy evaluations could be performed because

there was a program that could be evaluated. Consistent with the requirement that

the fee review evaluate the cost of the radioactive waste disposal activities

specified in NWPA Section 302(d), and consistent with Congress’ intent that the

fee reviews be responsive, the fee adequacy reports published prior to the

Determination evaluated costs associated with (among other things) the number

and schedule of repositories to be constructed, the type of canisters in which

SNF/HLW would be placed, how much SNF/HLW would be received by DOE

each year, and NWF fee receipts.

III. NWF Collections and Balance

As noted in the 2008 Fee Report, “[t]he majority of the [waste disposal]

Program’s future income will come from investment earnings,” i.e., interest

accrued on the existing NWF balance. Id. at 2, JA__. Continued collection of the

NWF fee results in the deposit of approximately $750 million of receipts annually

into the Waste Fund. The Waste Fund’s balance accrues annual interest of over $1

billion, producing total annual income into the Waste Fund in excess of $1.750


14

billion.10 The current value of the Waste Fund is approximately $24 billion. R1,

Determination at 2, JA__.

Notably, and in contrast with the continuing collection of NWF fees from

utilities for commercial SNF disposal, the Federal Government made no

contribution to the NWF (notwithstanding the requirement of NWPA § 8(b)(2)) for

the disposal of defense-related HLW in FY 2011, and proposes zero funds in 2012.

See FY 2012 Budget, Appendix at 396 (providing zero appropriations in FY 2011

and requesting zero appropriations in FY 2012 for the “Defense Nuclear Waste

Disposal” “Repository Program” ). The explanation provided for the termination

of the defense-related contribution to the NWF is:

In FY 2010, the Department closed the Yucca Mountain Project and the Office of Civilian Radioactive Waste Management (RW). Related activities that were performed by RW are now being performed elsewhere in the Department .

Id.

10 Indeed, the Administration estimates that in Fiscal Year 2012, the NWF will

accrue approximately $1.5 billion in investment earnings. See Budget of the U.S. Government, Fiscal Year 2012, Appendix at 415 (“FY 2012 Budget”), available athttp://www.whitehouse.gov/sites/default/files/omb/budget/fy2012/assets/doe.pdf(last visited Aug. 15, 2011).


15

IV. The Current Administration’s Decision to Cancel the Yucca Mountain Program

A. Development of the Yucca Mountain Site

In 2002, pursuant to NWPA § 114 and after more than 20 years of scientific

and technical study, the Secretary of Energy recommended to the President that the

Yucca Mountain site be developed as the repository. NEI v. EPA, 373 F.3d 1251,

1301 (D.C. Cir. 2004). The President then submitted to Congress his

recommendation, pursuant to NWPA § 114(a)(2), that the Yucca Mountain site be

developed as the repository. Id. Shortly thereafter, the State of Nevada exercised

its right under NWPA §§ 115 and 116 to disapprove the President’s site

designation, id., and, in response, under the procedures set forth in NWPA § 115,

Congress overrode Nevada’s disapproval. Id.; Yucca Mountain Dev. Act (P.L. No.

107-200, 116 Stat. 735) (July 23, 2002) (“YMDA”).

In June 2008, DOE submitted to the NRC an application to authorize

construction of a repository at Yucca Mountain.11 In October 2008, the NRC

provided notice that a public adjudicatory licensing hearing would be held on the

construction authorization application and invited members of the public to

petition for leave to intervene in the proceeding.12

11 Yucca Mountain; Notice of Receipt and Availability of Application, 73 Fed.

Reg. 34,348 (June 17, 2008). 12 Notice of Hearing, 73 Fed. Reg. 63,029 (Oct. 22, 2008).


16

In December 2008, various parties, including NEI, petitioned to intervene in

the proceeding. In May 2009, an NRC licensing board admitted multiple parties,

including NEI, into the proceeding and accepted approximately 300 contentions for

adjudication.13 On appeal, the Commission upheld almost all of the licensing

board’s decision.14 The proceeding had turned to preparations for conducting

discovery and resolving identified legal issues when DOE’s decision to cancel the

Yucca Mountain project altered the proceeding’s course.

B. The Current Administration’s Decision to End the Yucca Mountain Program

The current Administration foreshadowed its decision to terminate the

Yucca Mountain project even before taking office. For example, during the

confirmation proceedings for then Energy Secretary-designate Dr. Steven Chu,

Dr. Chu stated that “President-elect Obama has stated that he does not believe that

Yucca Mountain is a workable option for the permanent disposal of spent fuel” and

“has provided clear guidance” to that effect.15

13 U.S. DOE (High-Level Waste Repository), LBP-09-6, 69 N.R.C. 367 (2009).

Subsequently, NARUC petitioned to intervene and was admitted as a party. U.S. DOE (High-Level Waste Repository), LBP-10-11, 71 N.R.C. __ (2010).

14 U.S. DOE (High-Level Waste Repository), CLI-09-14, 69 N.R.C. 580 (2009). 15 To Consider the Nomination of Steven Chu to be Secretary of Energy: Hearing

Before the Sen. Comm. on Energy & Natural Res., S. Hrg. 111-3, 111th Cong., 1st

Sess. (Jan. 13, 2009) at 55, 56, 59, available athttp://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_senate_hearings&docid=f:47253.pdf.


17

Immediately after taking office, the Obama Administration began formal

and aggressive efforts to cancel the Yucca Mountain repository project. For

example, on May 19, 2009, Energy Secretary Chu testified to the Senate

Appropriations Committee that

The [Fiscal Year (“FY”)] 2010 budget request of $197 million for OCRWM implements the Administration’s decision to terminate the Yucca Mountain program while developing nuclear waste disposal alternatives. All funding for the development of the Yucca Mountain facility would be eliminated . . . .16

On July 27, 2009, the Office of Management and Budget in the Executive

Office of the President issued a “Statement of Administration Policy” on the

energy appropriations bill.17 Therein, the current Administration stated that, while

it remained committed to meeting the Federal Government’s obligations for

managing and eventually disposing of HLW/SNF, it would create a Blue Ribbon

Commission “to evaluate options and make recommendations for a new plan for

the back end of the fuel cycle.” Id. The policy statement asserted, without citation

or support, that “[a]ll of the fees collected in the Nuclear Waste Fund are essential 16 R35, Fiscal Year 2010 Appropriations: Hearing Before the Subcomm. on Energy

& Water Dev. of the Sen. Comm. on Appropriations, 111th Cong., 1st Sess. (May 19, 2009) (Statement of Steven Chu, Sec’y of Energy) (“Secretary Chu May 2009 Testimony”) at 10, JA__. See also R30, Sen. Comm. on the Budget, 111th

Cong., 1st Sess. (Mar. 11, 2009) (Statement of Steven Chu) (“Secretary Chu March 2009 Testimony”) at 3 (“Yucca Mountain is not a workable option”), JA__.

17 R40, Statement of Admin. Policy: H.R. 3183 – Energy & Water Dev. & Related Agencies Appropriations Act, 2010 (July 27, 2009) (Statement of Sen. Inouye) (“Statement of Administration Policy”) at 2, JA__.


18

to meet . . . [the Federal Government’s] obligations.” Id. The Policy Statement

neither mentioned the Administration’s stated intention to cancel the Yucca

Mountain Program, nor identified any replacement. Nor did it contain any

“evaluat[ion of] whether collection of the fee will provide sufficient revenues to

offset the costs” of the radioactive waste disposal activities identified in NWPA

Section 302(d). 42. U.S.C. §§ 10222(a)(4), (d).

The President’s proposed budget for FY 2011 eliminated all funding for the

Yucca Mountain program and stated (without elaboration) that Yucca Mountain “is

not a workable option and that the Nation needs a better solution.”18 In addition,

the proposed FY 2011 budget terminated the Office of Civilian Radioactive Waste

Management (“OCRWM”),19 notwithstanding the fact that OCRWM was

explicitly created by NWPA § 304 to carry out the functions of the Secretary of

Energy under the NWPA. 42 U.S.C. § 10224.

On February 17, 2010, DOE announced its determination to “reprogram”

approximately $115 million in remaining FY 2010 appropriations from pursuing

licensing before the NRC to ensuring the “orderly close” of Yucca Mountain in FY

18 R58, Terminations, Reductions, and Savings, Budget of the U.S. Government,

Fiscal Year 2011 (Feb. 1, 2010) at 62, JA__. 19 R57, DOE, FY 2011 Congressional Budget Request, Vol. 7: Nuclear Energy,

Defense Nuclear Waste Disposal (Feb. 2010) (“FY 2011 Budget Request”) at 176, JA__.


19

2010.20 According to the U.S. Government Accountability Office’s (“GAO’s”)

report on the steps DOE has taken to dismantle the Yucca Mountain program,21

DOE “undertook an ambitious schedule to terminate the repository program and

dismantle OCRWM and the Yucca Mountain repository program by September 30,

2010.”22 In its comments on the GAO report, DOE disputed the GAO’s

characterization of the shutdown process, but otherwise confirmed the termination

of the Yucca Mountain program and OCRWM.23 As ultimately enacted in the FY

2011 Full-Year Continuing Resolution, zero funds were appropriated to DOE for

OCRWM and the Yucca Mountain program.24 Moreover, while Congress has not

yet acted for FY 2012, the President’s FY 2012 budget request includes no funding

for nuclear waste disposal activities. Id.

C. The Current Administration’s Efforts to Terminate Yucca Mountain Licensing

The current Administration has taken a number of actions to carry out its

decision to end the Yucca Mountain licensing process. On March 3, 2010, DOE

20 R62, Letter, Steve Isakowitz (DOE Chief Financial Officer) to the Honorable

Peter J. Visclosky, U.S. House of Representatives (Feb. 17, 2010) at 1, JA__. 21 U.S. Government Accountability Office, Commercial Nuclear Waste: Effects of

a Termination of the Yucca Mountain Repository Program and Lessons Learned, GAO-11-229 (Apr. 2011) (“GAO Report”), available athttp://www.gao.gov/new.items/d11229.pdf (last visited Aug. 15, 2011).

22 GAO Report at 14. 23 GAO Report at 60-73 (DOE comment letter authored by Dr. Peter B. Lyons, the

Acting Assistant Secretary for Nuclear Energy). 24 See FY 2012 Budget, Appendix at 396, 415.


20

filed in the NRC licensing proceeding a motion to withdraw, with prejudice, its

application for authorization to construct a geologic repository at Yucca

Mountain,25 declaring that “it does not intend ever to refile an application to

construct a permanent geologic repository for [SNF] and [HLW] at Yucca

Mountain.” DOE Motion at 3 n.3, JA__.26 Explaining the basis for the Motion,

DOE stated that “the Secretary’s judgment here is not that Yucca Mountain is

unsafe or that there are flaws in the [license application], but rather that it is not a

workable option and that alternatives will better serve the public interest.”27 DOE

did not identify any scientific, engineering, environmental, or technical reasons

why Yucca Mountain was not “workable,” or what “alternatives” would “better

serve the public interest.”

At oral argument before an NRC licensing board on DOE’s Motion to

Withdraw, DOE unequivocally stated that the Secretary of Energy’s decision not to

go forward with the license application was a “policy judgment” (without

explaining the policy), and that the Secretary determined that it is not appropriate

“to be following the course that was decided on 25 years ago” because “[t]here are

25 R64, DOE Motion to Withdraw (Mar. 3, 2010), JA__. 26 This Court recently determined that a challenge to DOE’s attempt to withdraw

the license application was not yet ripe for judicial determination. In re Aiken County, 645 F.3d 428, slip opinion, Case No. 10-1050, consolidated with Case Nos. 10-1052, 10-1069, and 10-1082 (D.C. Cir. 2011).

27 R78, U.S. DOE’s Reply to the Responses to the Motion to Withdraw (May 27, 2010) at 31 n.102, JA__.


21

better alternatives,”28 (without identifying the better alternatives). In short,

according to DOE, “[t]he Yucca facility is not going to be built.” Id. at 87, JA__.

On June 29, 2010, the licensing board denied DOE’s Motion to Withdraw

because, among other reasons, the NWPA does not give the DOE Secretary “the

discretion to substitute his policy for the one established by Congress in the NWPA

that, at this point, mandates progress toward a merits decision by the [NRC].”29

DOE has asked the Commission to reverse the licensing board’s decision based on,

inter alia, DOE’s claim that Congress did not intend “the Commission and its Staff

to expend their time and resources reviewing and adjudicating an application for a

project that is not going forward and for which other necessary approvals are not

being sought.”30 Briefing to the Commission was completed by July 19, 2010, but

the Commission has yet to issue a decision on the licensing board’s denial of

DOE’s Motion to Withdraw.31

28 R79, U.S. Department of Energy (High-Level Waste Repository) Hearing

Transcript (June 3, 2010) (“Motion to Withdraw Hearing Tr.”) at 34, 43, 73 (Mr. Lev), JA__.

29 R80, U.S. Department of Energy (High-Level Waste Repository), LBP-10-11, 71 N.R.C. __, slip op. at 3 (June 29, 2010), JA__.

30 R81, DOE Brief in Support of Review & Reversal of the Board’s Ruling on the Motion to Withdraw (July 9, 2010) at 28, JA__.

31 On July 29, 2011, a group of petitioners including NARUC filed with this Court a Petition for Writ of Mandamus (Agency Action Unreasonably Withheld) (Case No. 11-1271) that, among other things, seeks to compel the NRC to comply with the statutory mandate that it consider the Yucca Mountain license application within three years of the application’s submission.


22

V. Blue Ribbon Commission

In parallel with his plans to terminate the Yucca Mountain program, the

President established the Blue Ribbon Commission on America’s Nuclear Future

(“BRC”).32 The BRC will neither pick a disposal site to replace Yucca Mountain,

nor recommend a disposal technology. Rather, the BRC will revisit all

programmatic assumptions and decisions made since NWPA’s enactment, and

advise the Administration on possible next steps. The BRC is to “conduct a

comprehensive review of policies for managing the back end of the nuclear fuel

cycle, including all alternatives for the storage, processing, and disposal of civilian

and defense used nuclear fuel and nuclear waste,” and to “consider a broad range

of technological and policy alternatives.” 75 Fed. Reg. at 5,485. See also BRC

Charter33 at 1-2, JA__. The BRC has 24 months to prepare a final report (due

January 2012). Id. at 2, JA__.

Although its review is supposed to be “comprehensive,” the BRC’s review is

not to consider Yucca Mountain. At the BRC’s first public meeting, Secretary Chu

confirmed that the BRC is not to “spend[] time . . . looking at past history,” such as

by asking whether “Yucca Mountain [was] a good decision or a bad decision and

32 Memorandum for the Sec’y of Energy, Blue Ribbon Comm’n on America’s

Nuclear Future, 75 Fed. Reg. 5,485 (Feb. 3, 2010). 33 R63, DOE, Blue Ribbon Commission on America’s Nuclear Future, Advisory

Committee Charter (Mar. 1, 2010) (“BRC Charter”), JA__.


23

whether it can be used as a future repository.”34 Nor will the BRC consider any

specific site for waste disposal facilities. In its draft report to the full BRC, the

BRC Disposal Subcommittee was “clear on one point at the outset,” that it had

“not sought to develop recommendations concerning specific locations (or

potential locations) for any component or facility of the U.S. nuclear waste

management system.”35

The BRC issued its draft recommendations on July 29, 2011.36 The BRC

urged “that the United States needs a new, integrated strategy for managing the

back end of the nuclear fuel cycle, including, in particular, a new approach to siting

nuclear waste storage and disposal facilities.” BRC Draft Report at xv. The BRC

confirmed that it had “not made any findings about the Yucca Mountain repository

site or about any alternative sites.” BRC Draft Report at 2. Although the BRC’s

recommendations included developing one or more permanent deep geologic

disposal facilities, as well as one or more consolidated interim storage facilities,

id., the BRC proposed an entirely new strategy for implementing these ends. The

34 R72, BRC Meeting Transcript (Mar. 25, 2010) at 27, JA__. 35 BRC Disposal Subcommittee, Report to the Full Commission (DRAFT) (June 1,

2011) (“BRC Disposal Subcommittee Draft Report”) at i, available athttp://www.brc.gov/sites/default/files/documents/draft_disposal_report_06-01-11.pdf (last visited Aug. 15, 2011).

36 Blue Ribbon Commission on America’s Nuclear Future, Draft Report to the Secretary of Energy (July 29, 2011) (“BRC Draft Report”), available athttp://www.brc.gov/sites/default/files/documents/brc_draft_report_29jul2011_0.pdf (last visited Aug. 15, 2011).


24

recommended new strategy includes an “adaptive, staged, consent-based,

transparent, and standards- and science-based” approach to siting and developing

nuclear waste management and disposal facilities. Id. The new strategy is to be

implemented by a single-purpose organization chartered by Congress outside of

the Department of Energy. Id. at xv, 72.

Acknowledging a “growing sense of outrage that the only aspect of the

waste management program that has been implemented in full and on schedule is

the part that involves collecting fees for a contractually required service that the

federal government has never managed to deliver,” BRC Draft Report at 88, the

BRC recommended fundamental changes in the way the NWF fee is collected.

Under the BRC’s proposal, only an amount equal to actual appropriations from the

NWF is collected in fees each year, with the remainder retained by utilities in an

approved trust fund to be available for future use. BRC Draft Report at 89.

According to the BRC, this proposal would help stem the flow of waste fees into a

currently inaccessible Treasury account. Id.

Whatever the BRC’s final recommendations, the adoption and

implementation of any new waste disposal program and commensurate funding

mechanism could take years, if not decades. GAO noted that DOE has “essentially

restart[ed] the search for a permanent solution” for radioactive waste disposal.

GAO Report at 42. With respect to the new entity that BRC’s proposes to be


25

developed to implement a new waste management program, the BRC Disposal

Subcommittee specifically “recognize[d] that it could take several years for this

new entity to be authorized, funded, staffed and ready to proceed” and that “the

process of establishing a new organization will not be easy or fast.” BRC Disposal

Subcommittee Draft Report at iv, 28. The full BRC concurred, stating that,

“[f]rom an implementation standpoint,” establishing a new waste management

program entity “is clearly among the most difficult recommendations advanced by

the” BRC, and “that it could take several years for a new organization to be

authorized, funded, staffed and fully launched.” BRC Draft Report at 72, 82.

Once and if the implementing organization is established, the BRC suggested that

it “contemplate a range of . . 15 to 20 years to accomplish site identification and

characterization and to conduct the licensing process” for a disposal facility, but

should nonetheless expect “unforeseen developments that could cause siting to

take a longer or shorter period of time.” BRC Draft Report at 65.

The BRC’s recommendations will require new implementing legislation.

The BRC Disposal Subcommittee “recognize[d] that Congress will need to take

legislative action to establish a new waste management organization, address

current funding issues, and set a new course for the nation’s nuclear waste


26

program.” Id. at 29.37 The full BRC proposed multiple areas where legislative

changes were needed, including legislation that would establish a new facility

siting process, authorize consolidated interim storage facilities, establish the new

waste management organization, ensure access to funding, and promote

international engagement to support safe and secure waste management. BRC

Draft Report at v. Although the BRC believes its proposal for changing the way

fees are collected will not require legislation, it does “recognize[] that legislative

action to create a new waste management organization with full access to the

nearly $25 billion balance in the NWF” is needed, but “will be difficult in the

current political and budgetary climate.” Id. at 89.

At bottom, the BRC concedes that “[a]ll of [its] recommendations are

interconnected and will take time to implement fully, particularly since many

elements of the strategy we propose require legislative action to amend the NWPA

and other relevant laws.” BRC Draft Report at v. Implementing the BRC’s

37 Another indication of the time required to implement a new waste disposal

program appeared in a draft report issued in May 2011 by the BRC Transportation and Storage Subcommittee. That draft report discusses establishing one or more centralized, interim storage facilities for SNF. The subcommittee’s analysis proceeds on the basis of an assumption “that a consolidated storage facility could be operational by 2030 or shortly thereafter.”BRC Transportation and Storage Subcommittee Draft Report to the Full Commission (May 31, 2011) at 49, available at http://www.brc.gov/sites/default/files/documents/draft_ts_report_6-1-11.pdf (last visited Aug. 15, 2011). No such assumption appears as to the availability of a disposal facility.


27

strategy “will not be quick or easy.” BRC Draft Report at 4. Moreover, the BRC’s

recommendations for a new program may or may not be accepted by DOE and the

Administration. The DOE and Administration decisions may or may not require

congressional enactment. If and when these events may happen is purely

conjectural.

VI. Existing NWPA Statutory Structure Remains in Place

The NWPA remains unmodified and in force. The current Administration

has proposed no amendments to the NWPA, and none has been enacted. The

reciprocal obligations of DOE to dispose of HLW/SNF, and the nuclear electric

generators’ obligation to pay for such disposal remain. Ind. Mich., 88 F.3d at

1272-73. Most important for the purposes of this litigation, the Secretary’s

obligations to conduct a valid annual review of the 1.0 mil fee, and to propose

appropriate adjustments to Congress, continue.

VII. Previous Litigation

In light of the current Administration’s repeated statements that it would

terminate the Yucca Mountain program and its determined efforts to effectuate

such an outcome, NEI, by letter dated July 8, 2009, requested that DOE’s required

annual fee adequacy review fully account for the impact of the Yucca Mountain

program’s termination on program costs, and that DOE suspend collection of


28

payments to the NWF.38 The then most recent fee adequacy review was based on

the Yucca Mountain program going forward, not its termination.39 NEI’s letter

reasoned, inter alia, that payments into the NWF should be suspended because (1)

there was no longer a waste program to be funded, and (2) the “interest that the

NWF accrues is more than enough money to cover the $196.8 million provided for

in [the] fiscal 2010 budget proposal.” NEI July 2009 Letter at 3, JA__.

Also on July 8, 2009, NARUC submitted a letter to DOE in support of NEI’s

request that DOE suspend collection of the NWF fee.40 NARUC explained that, if

the waste disposal program was “going to pause to reconsider disposal options,” it

would be “appropriate to pause the fee payments.” NARUC July 2009 Letter at 1,

JA__.

In a September 29, 2009, internal memorandum to Energy Secretary Chu,

the OCRWM Acting Director Christopher A. Kouts acknowledged the NEI and

NARUC requests to suspend the NWF fee, and admitted that DOE would not be

able to perform the fee adequacy review:

38 R37, Letter from Marvin S. Fertel, NEI, to the Honorable Steven Chu, DOE, Re:

Performance of Annual Fee Adequacy Analysis and Suspension of Payments to Nuclear Waste Fund (July 8, 2009) (“NEI July 2009 Letter”) at 1, JA__.

39 2008 Fee Report at 2, JA__. 40 R38, Letter from Frederick F. Butler, et al., NARUC, to the Honorable Steven

Chu, DOE (July 8, 2009) (“NARUC July 2009 Letter”), JA__.


29

SENSITIVITIES: Given the policy decision to terminate work on developing the proposed Yucca Mountain repository, the methodology for evaluating fee adequacy will need to be revisited for future assessments. It will not be possible to implement a completely revised methodology for the 2009 determination since it is unlikely that a decision will be made this year concerning alternative storage and disposal options. In addition, the reduced budget for FY 2009 did not include funding for a life cycle cost estimate for a fee adequacy assessment or a comprehensive revision of the methodology used for assessing fee adequacy.41

Just over a week after the Kouts Memorandum issued, DOE rejected the NEI

and NARUC fee suspension requests in essentially identical letters dated October

8, 2009.42 The DOE Letters stated that DOE will propose an adjustment if it

“determines that either insufficient or excess revenues are being collected.” DOE

Letters at 1, JA__. However, DOE’s response neither acknowledged the

Administration’s then ongoing efforts to terminate the Yucca Mountain program,

nor recognized DOE’s failure to even suggest a replacement program. Nor did the

DOE Letters acknowledge the conclusion of the Kouts Memorandum that a revised

fee adequacy review could not be performed absent a decision on alternative

storage and disposal options. Rather, DOE primarily based its refusals to conduct 41 R41, Memorandum for the Secretary, From Christopher A. Kouts, Acting

Director, OCRWM, Subject: Information: The 2008 Determination of the Adequacy of the Nuclear Waste Fund Fee, EXEC-2009-012439 (Sept. 29, 2009) (“Kouts Memorandum”) at 2-3, JA__ (capitalized and bold text in original).

42 R43, Letter from Christopher A. Kouts, DOE OCRWM, to Marvin S. Fertel, NEI (Oct. 8, 2009) at 1 (“October 8 letter to NEI”), JA__; R44, Letter from Christopher A. Kouts, DOE OCRWM, to Frederick F. Butler, NARUC (Oct. 8, 2009) at 1 (“October 8 Letter to NARUC”), JA__ (collectively, the “DOE Letters”).


30

a fee adequacy assessment and to suspend the fee on the July 27, 2009 Statement

of Administration Policy, which asserted without explanation that all of the NWF

fees are “essential” to meet the Federal Government’s HLW/SNF obligations,

DOE Letters at 2, JA__.

Thereafter, NARUC, followed by NEI and the Generators, brought suit

(Case Nos. 10-1074 and 10-1076, respectively) against Respondents requesting

that this Court direct DOE to perform a NWF fee adequacy review as required by

the NWPA; and to suspend further collection of the fee until such time as an

appropriate fee review had been completed. Subsequently, after briefing had been

completed and oral argument had been scheduled, DOE issued the Determination

at issue here. Thereafter, on December 13, 2010, the Court ruled that issuance of

the Determination rendered “moot” requests that the Court “order the Secretary to

conduct an annual assessment under the . . . [NWPA] and to suspend the NWF fee

pending completion of his annual assessment.”43 The Court also stated, however,

that, “[g]iven the Secretary’s recent completion of his annual assessment,

petitioners may now be able to properly raise this claim through a challenge to that

assessment.” Id.

43 Nat’l Ass’n of Regulatory Util. Comm’rs v. DOE, 405 Fed. App’x 507, 507

(D.C. Cir. 2010).


31

VIII. The November 1, 2010 Determination

By memorandum dated November 1, 2010, Secretary of Energy Steven Chu

(the “Secretary”) issued a “Secretarial Determination of the Adequacy of the

Nuclear Waste Fund Fee” that “adopt[ed] and approve[d]” the attached October

18, 2010 “Annual Determination of the Adequacy of the Nuclear Waste Fund Fee”

authored by Mr. David K. Zabransky, the Director of the Office of Standard

Contract Management, which in turn was based on an attached, undated document

entitled “Annual Review of the Adequacy of the Nuclear Waste Fund Fee”

prepared by the Office of Standard Contract Management (“Annual Review”)

(collectively, the “Determination”).44 Secretary Chu stated that there was “no

reasonable basis at this time to conclude that either excess or insufficient funds are

being collected” and thus proposed no adjustment to the NWF fee. Determination

at 1, JA__. Mr. Zabransky similarly stated that there was “no reasonable

evidentiary basis to conclude” any adjustment to the fee was necessary. Id. at 2

(emphasis added), JA__.

Both Secretary Chu and Mr. Zabransky stated that their conclusions were

based on the Annual Review. Apparently ignoring the statutory command that the

annual fee review must “evaluate whether collection of the fee will provide

44 The Office of Standard Contract Management was set up by DOE in its Office of

General Counsel after DOE’s dismantlement of OCRWM. See Office of Standard Contract Management website at http://www.gc.energy.gov/1668.htm.


32

sufficient revenues to offset the costs” of the radioactive waste disposal activities

defined in Section 302(d), 42 U.S.C. § 10222(a)(4), the Annual Review states that

the “NWPA does not prescribe a methodology for how the Secretary must carry

out the fee adequacy review provision of [NWPA] Section 302(a)(4).”

Determination at 7, JA__. Unlike the prior fee adequacy reports, the

Determination evidences no attempt to identify the features of the waste disposal

program whose costs are to be evaluated, to estimate the costs of that program, to

evaluate anticipated fee collections, and to determine whether such collections

would offset the costs of the waste disposal program activities specified in NWPA

Section 302(d).

Nor does the Determination acknowledge the Kouts Memorandum and its

conclusion that it will not be possible to implement a new fee adequacy

methodology absent a decision on alternative waste disposal and storage options.

The Determination does not indicate that any life cycle cost estimate or any new

fee assessment methodology have been prepared.

Rather, the Determination notes that the President has established the BRC

to analyze and recommend waste disposal program alternatives, which will inform

DOE’s “[f]uture decisions as to these matters.” Determination at 8, JA__.

Because the BRC had not yet reported its recommendations, however, the Annual

Review concluded that “no action has been or could be taken in light of its


33

recommendations,” because “there is no basis to say” whether “more or less

money” will be required by DOE to meet its waste disposal obligations. Id., JA__.

Based on this rationale, the Annual Review contends that the NWPA “requires (or,

at the least, permits) the amount of the waste fee to remain” at 1.0 mil. Id., JA__.

Further, the Annual Review found that “[o]ne cannot determine with any

confidence at this time precisely how much the yet-to-be-selected disposal

alternative will cost.” Determination at 9, JA__. But instead of recommending

that the NWF fee be suspended until a replacement program was recommended,

adopted by DOE, legislatively enacted, and implemented, and a determination

made as to how much the replacement program will cost, the Annual Review

recommended continuing to collect the fee from utilities at the same level that was

necessary to offset the costs of the now-terminated Yucca Mountain waste disposal

program. To support this recommendation, the Annual Review cited the Yucca

Mountain waste disposal facility – the one and only program that DOE has

characterized as “unworkable” and has thus terminated – as “the closest proxy –

albeit an imperfect one” to what the unspecified, not-yet-recommended, adopted,

enacted, or implemented waste disposal program will cost. Determination at 9,

JA__.


34

IX. Petition for Review

On March 7, 2011, NARUC filed a Petition for Review challenging the

adequacy of the DOE Determination. On March 8, 2011, Petitioners NEI and the

Generators filed a similar Petition.


35

ARGUMENT SUMMARY

The NWPA specifies that DOE shall annually evaluate the NWF fee to

assure that it is neither too large nor too small and fully offsets the costs of the

waste disposal program. It is impossible to make such an assessment without

specifying and accounting for the waste disposal program’s current status and

costs. All prior fee assessments have done so.

The November 1, 2011 Determination, however, does not. It ignores the

clear, unambiguous statutory obligation to review the adequacy of the fee in light

of the current status of the waste disposal program. It contains no credible cost

evaluation.

The lack of a credible cost evaluation is not a surprise. No basis exists for

such an evaluation. There is no waste disposal program. There is no schedule for

implementing a waste disposal program. There are no waste disposal program

costs.

DOE offers two excuses for its non-compliance with these unambiguous

statutory mandates.

First, DOE asserts that Yucca Mountain – the one and only waste disposal

program that DOE has deemed “unworkable” and thus terminated – can be used as


36

an admittedly “imperfect” proxy for what a waste disposal program would cost.

However, the statute requires DOE to evaluate the current status and costs of the

waste disposal program. If DOE were able to justify continued collection of the

NWF fee based on evaluations of past waste disposal programs, the requirement

for an annual evaluation would be meaningless.

Second, DOE claims it is unable to propose adjustment to the fee because

the BRC has not yet issued its recommendations. But this ignores the fact that

BRC’s final recommendations for a waste disposal program will be just that –

recommendations. They will not provide any basis to conduct an assessment

unless and until they are accepted by DOE, adopted by the Administration, and

enacted by Congress. There is simply no telling if or when these actions will

occur.

Absent a waste disposal program whose costs can be evaluated, DOE’s

statutory duty is clear. The NWPA specifies that the Secretary is to immediately

submit to Congress an appropriate adjustment to the fee. Nothing prevents DOE

from complying with the NWPA by immediately proposing to Congress that the

fee be suspended in light of the current status of the waste disposal program.

Given DOE’s non-compliance with the NWPA’s clear mandate, this Court

should order DOE to immediately submit to Congress the suspension of the fee


37

until DOE has a waste disposal program in place. DOE has unilaterally abandoned

the waste disposal program set forth in the NWPA and mandated in subsequent

legislation, and has no idea what will replace it. The NWPA demands that the

NWF fee offset specified, anticipated waste disposal program costs. But without a

waste disposal program in place, no such costs can be calculated and,

consequently, no justification for continued collection of the NWF fee exists. As a

result, the Determination is not a valid fee evaluation. Until DOE has a viable

program replacement in place, it cannot justify continued NWF fee collection,

particularly where the NWF has an unexpended balance of approximately $25

billion and will annually accrue well over $1 billion of interest, even if no further

fees are collected.


38

STANDING

Petitioners have both prudential and constitutional standing to challenge

DOE’s action or failure to act. Prudential standing requirements are met where “a

plaintiff’s grievance must arguably fall within the zone of interests protected or

regulated by the statutory provision or constitutional guarantee invoked in the

suit.” Bennett v. Spear, 520 U.S. 154, 162 (1997). Prudential standing

requirements are met here because NARUC’s, NEI’s, and the Generators’

grievances fall within the zone of interests protected by the NWPA. The NWPA

obligated the Federal Government to provide for the permanent disposal of SNF,

and obligated those who benefit from SNF generation to pay for its disposal. 42

U.S.C. § 10131(a)(4).

The “irreducible constitutional minimum” of standing requires a

demonstration of injury in fact, causation, and redressability. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992). The following sections describe how the

Petitioners meet the requirements for constitutional standing.

I. NARUC’s Standing

For over 100 years, NARUC has represented the interests of State public

utility commissions in the fifty States, the District of Columbia, Puerto Rico, and

the Virgin Islands charged with regulating the rates and conditions of service

associated with the intrastate operations of electric utilities. NARUC is sui generis


39

and is recognized by Congress in several statutes45 and consistently by the

Courts46 as the proper entity to represent the collective interests of State utility

commissions. Moreover, NARUC qualifies to represent the interests of its

members where (1) at least one of the association’s members has standing to sue in

its own right; (2) the interests the association seeks to protect are germane to its

purpose; and (3) neither the claim asserted nor the relief requested requires the

associations’ members participate in the lawsuit.47 Here, NARUC meets this test.48

45 See 47 U.S.C. § 410(c) (1971) (Congress designated NARUC to nominate

members of Federal-State Joint Board to consider issues of common concern); see also 47 U.S.C. § 254 (1996); see also NARUC v. ICC, 41 F.3d 721, 724 (D.C. Cir 1994) (where this Court explains “Carriers, to get the cards, applied to…(NARUC), an interstate umbrella organization that, as envisioned by Congress, played a role in drafting the regulations that the ICC issued to create the "bingo card" system.)

46 See, e.g., U.S. v. Southern Motor Carriers Rate Conference, Inc., 467 F. Supp. 471 (N.D. Ga. 1979), aff’d 672 F.2d 469 (5th Cir. 1982), aff’d en banc on reh’g,702 F.2d 532 (5th Cir. 1983), rev'd on other grounds, 471 U.S. 48 (1985) (where the Supreme Court notes: “The District Court permitted [NARUC] . . . to intervene as a defendant. Throughout this litigation, the NARUC has represented the interests of the Public Service Commissions of those States in which the defendant rate bureaus operate.” id., n. 10. See also, Indianapolis Power and Light Co. v. ICC, 687 F.2d 1098 (7th Cir. 1982); Wash. Utils. and Transp. Comm’n v. FCC, 513 F.2d 1142 (9th Cir. 1975), cert denied, 423 U.S. 836 (1975); compare, NARUC v. FERC, 475 F.3d 1277 (D.C. Cir. 2007), cert. denied, 552 U.S. 1230 (2008); NARUC v. DOE, 851 F.2d 1424, 1425 (D.C. Cir. 1988); NARUC v. FCC, 737 F.2d 1095 (D.C. Cir. 1984), cert. denied, 469 U.S. 1227 (1985).

47 City of Waukesha v. EPA, 320 F.3d 228, 233 (D.C. Cir. 2003); see also United Food & Commercial Workers v. Brown Grp., Inc., 517 U.S. 544, 553, 557 (1996).


40

Under the NWPA, utilities pay for the eventual disposal of commercial

nuclear waste through NWF fees. Those fees are, in turn, passed through, by

NARUC’s members, to ratepayers. Since the NWPA was enacted in 1982,

ratepayers served by our members, along with reactor owners, have paid more than

$17 billion dollars into the NWF. NARUC members’ statutory responsibilities to

maintain just and reasonable electric rates are directly affected by DOE’s conduct.

II. Generators’ Standing

Generators pay the currently required fee of 1.0 mil per kilowatt-hour, have

paid many hundreds of millions of dollars into the fund, and expect to pay many

millions more each year. See Addendum, Petitioners’ Affidavits at 21-39

(Generators’ Affidavits). Thus, Generators clearly meet the constitutional

requirements for standing as their harm is neither hypothetical nor conjectural.

Lujan, 504 U.S. at 560-61. An order from this Court directing DOE to conduct the

required review and to propose to Congress that collection of the fee be suspended

until a program is in place would redress Generators’ injuries at issue in this

lawsuit.

48 See Affidavit of the Honorable David Wright, NARUC Member Commissioner,

in Support of the Standing of the National Association of Regulatory Utility Commissioners (Aug. 19, 2011), Addendum, Petitioners’ Affidavits at 1-14.


41

III. NEI’s Standing

NEI meets the requirements for associational standing to sue on behalf of its

members because (1) NEI’s members would have standing to sue in their own

right, see discussion supra; (2) the interests NEI seeks to protect are “germane to

NEI’s overall purpose of advancing the interests of the nuclear power industry”;49

and (3) neither the claim asserted nor the relief requested requires that NEI’s

members participate in the lawsuit because the relief sought is injunctive.

Waukesha, 320 F.3d at 233, 236.

Under Nat’l Treasury Emps. Union v. U.S., 101 F.3d 1423, 1427 (D.C. Cir.

1996), NEI can also sue on its own behalf because DOE’s continued collection of

over $750 million per year from NEI’s members, absent a valid NWF fee adequacy

assessment, directly conflicts with NEI’s mission to support the interests of the

commercial nuclear industry, which includes a functioning governmental nuclear

power program that addresses among other things, SNF/HLW disposal. In

addition, NEI has expended resources to identify and counteract DOE’s unlawful

failure to conduct an appropriate fee adequacy assessment. NEI has had to develop

and implement a strategy to protect the financial interests of its members.

McCullum Declaration at ¶¶ 12-14, Addendum, Petitioners’ Affidavits at 19.

49 See also Declaration of Rodney J. McCullum in Support of the Standing of

Petitioner Nuclear Energy Institute (Aug. 18, 2011) at ¶¶ 2-4 (“McCullum Declaration”), Addendum, Petitioners’ Affidavits at 15-16.


42

ARGUMENT

I. Standard of Review

The Court’s review is de novo and owes no deference to DOE’s action or

failure to act at issue. See, e.g., U.S. v. Braxtonbrown-Smith, 278 F.3d 1348, 1352

(D.C. Cir. 2002), cert. denied, 536 U.S. 932 (2002). Although review of an

agency’s construction of a statute entrusted to its execution typically follows the

two step statutory analysis established in the Supreme Court’s decision in Chevron,

U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), that analysis does not apply here. No

Chevron deference is due to agency interpretations made without “administrative

action with the effect of law,” or those without “a relatively formal administrative

procedure tending to foster the fairness and deliberation that should underlie a

pronouncement of such force.” U.S. v. Mead Corp., 533 U.S. 218, 230 (2001).

See also Ala. Power, 307 F.3d at 1312 (quoting Mead). In a case such as this

where there has been no formal administrative procedure – in fact, no

administrative procedure at all – “[t]he weight accorded to an administrative

judgment ‘will depend upon the thoroughness evident in its consideration, the

validity of its reasoning, its consistency with earlier and later pronouncements, and

all those factors which give it power to persuade . . . .’” Mead, 533 U.S. at 228

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).


43

The Court owes no deference to DOE’s purported fee adequacy assessment,

as it fails to properly account for the current status of the waste disposal program,

or to DOE’s decision to continue collecting the NWF fee absent a waste disposal

program whose costs can be assessed. DOE’s perfunctory Determination

contradicts the express statutory command that it “evaluate whether collection of

the fee will provide sufficient revenues to offset the costs” of the waste disposal

program activities, which are “defined in subsection (d)”. 42 U.S.C.

§ 10222(a)(4). DOE’s actions or failures to act were accompanied by no formal

administrative procedure and do not constitute administrative action with the force

of law. One will search in vain through the “Administrative Record” for any

analysis or explanation of DOE’s assessment. Nor have multiple Freedom of

Information Act requests lead to the disclosure of any such analysis or explanation.

Assuming, arguendo, that the two-step Chevron analysis does apply, DOE’s

actions or failures to act are entitled to no deference.

Under Chevron step one, the Court examines the statute de novo to

determine whether Congress has directly spoken to the precise question at issue.

See, e.g., Eagle Broad. Group, Ltd. v. FCC, 563 F.3d 543, 550 (D.C. Cir. 2009). If

Congress has done so, the Court as well as the agency must give effect to the

unambiguously expressed intent of Congress. Chevron, 467 U.S. at 842-43. The

Court “must presume that a legislature says in a statute what it means and means in


44

a statute what it says …When the words of a statute are unambiguous … this first

canon is also the last: judicial inquiry is complete.” Teva Pharm. Indus. Ltd. v.

Crawford, 410 F.3d 51, 53 (D.C. Cir. 2005) (quoting Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253-54 (1992)).

Congress has unambiguously directed DOE to perform an annual fee

adequacy assessment that evaluates the costs of the waste disposal activities

specified in NWPA Section 302(d), and requires that DOE “shall immediately

transmit” to Congress a downward fee adjustment proposal if “excess revenues are

being collected.” 42 U.S.C. § 10222(a)(4). Congress also explicitly directed DOE

to compare the revenues generated by the fee to the costs of the waste disposal

program activities identified in NWPA Section 302(d).

Only if Congress left a gap for the agency to fill is deference due the agency.

Chevron, 467 U.S. at 843-44. And even when deference is due, the agency’s

interpretation cannot be sustained if it is arbitrary, capricious, or manifestly

contrary to the statute. Id.

Again, assuming arguendo, this Court finds that deference is due under

Chevron’s step two, DOE failure to conduct a fee adequacy assessment that takes

account of the current status of the program and to propose suspension of the fee


45

are manifestly contrary to the statute, and arbitrary and capricious.50 “A

fundamental requirement of administrative law is that an agency set forth its

reasons for decision; an agency’s failure to do so constitutes arbitrary and

capricious agency action.” Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C.

Cir. 2001) (quotations and citations omitted).

II. DOE’s Final Action or Failure to Act Is Reviewable Under NWPA § 119

NWPA § 119(a)(1)(A) provides for review in the U.S. Courts of Appeals of

any final decision or action by the Secretary. NWPA § 119(a)(1)(B) provides for

review in the U.S. Courts of Appeals of any failure of the Secretary to make all

decisions or take “all actions concerning waste disposal,” including “questions

concerning the composition of the [NWF].” G. E. Uranium Mgmt. Corp. v. DOE,

764 F.2d 896, 901-02 (D.C. Cir. 1985) (holding that actions under NWPA § 302

are reviewable under § 119).51 DOE’s failure to comply with NWPA § 302(a) in

that it did not conduct a valid NWF fee adequacy review and, correspondingly, did

not propose to Congress that collection of the NWF fee be suspended, constitutes

either final decisions or actions, or failure to make any decision or take any action,

50 DOE’s failure to conduct a fee adequacy assessment and its decision to continue

collecting the NWF fee also fail the Administrative Procedure Act’s proscription of agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Eagle Broad., 563 F.3d at 551 (quoting 5 U.S.C. § 706(2)(A)).

51 See also Neb. Pub. Power Dist. v. U.S., 590 F.3d 1357, 1365-67 (Fed. Cir. 2010) and cases cited therein.


46

reviewable under the above-referenced sections of the NWPA, 42 U.S.C.

§§ 10139(a)(1)(A) and (B).

III. DOE Action/Failure to Act Violates the NWPA

The November 1, 2010 Determination fails to satisfy the requirements of the

NWPA. DOE has failed to comply with its clear, unambiguous statutory

obligation to review the adequacy of the 1.0 mil fee in light of the status of the

waste disposal program and adjust the fee appropriately. The issue here does not

concern adjusting the 1.0 mil fee based on relatively minor perturbations in the

waste disposal program’s cost. Rather, DOE has violated its statutory mandate by

failing to recognize the total absence of a waste disposal program and the absence

of any rational basis to assess the costs of such a program.52

Ascertaining what is necessary under the NWPA begins with examining the

plain language of the statute. Blue Chip Stamps v. Manor Drug Stores, 421 U.S.

723, 756 (1975) (Powell, J. concurring) (“The starting point in every case

involving construction of a statute is the language itself.”; see, also, e.g., Wis. Elec.

Power Co. v. DOE, 778 F.2d 1, 4 (D.C. Cir. 1985) (“WEPCO”) (“Where the

52 The issue here bears no resemblance to the situation described in Alabama

Power of a challenge to DOE’s failure to decrease the fee (or to a DOE-proposed increase) based on “nebulous calculations” or “nebulous predictions” of particular unauthorized expenditures. Ala. Power, 307 F.3d at 1309, 1311.Whether or not such challenges might “face an insurmountable burden of proof,” the challenge here is far more plain – DOE has simply failed to assess a program and its costs.


47

language Congress chose to employ is clear, the duty of the judiciary is likewise

clear. We must follow that language and give it effect”). Turning then to the Act,

Section 302(a)(4) requires an “annual [] review” of the NWF fee “to evaluate

whether the collection of the fee will provide sufficient revenues to offset the

costs” of the waste disposal activities specified in Section 302(d). 42 U.S.C.

§ 10222(a)(4). Because “evaluate” is not defined in the NWPA “we look to the

ordinary meaning of the term.” Ransom v. FIA Card Servs., __ U.S. __, 131 S. Ct.

716 (2011). As defined by merriam-webster.com, the word “evaluate” means “to

determine or fix the value of” or “to determine the significance, worth, or condition

of[,] usually by careful appraisal and study.”

DOE’s self-styled Determination, however, completely fails to “determine

or fix the value” or “determine the significance, worth, or condition” of the NWF

fee because it offers no basis for performing such an evaluation. Indeed, as

discussed below, there is no basis for performing such an evaluation because there

is no waste disposal program, there is no schedule for implementing a waste

disposal program, and there are no waste disposal program costs. As a result, the

Determination contains no credible cost evaluation. The arguments DOE offers to

justify its failure to conduct a cost evaluation do not themselves constitute an

evaluation of the cost of the waste disposal program activities specified in NWPA

Section 302(d). Therefore, the Determination violates the NWPA.


48

A. There is no waste disposal program

Although DOE has not disclaimed its obligation to dispose of SNF, it is

undisputed that DOE currently has no active waste disposal program. DOE has

requested no funding for the waste disposal program in FY 2012, and DOE

admittedly has terminated the Yucca Mountain program.53 The BRC certainly is

not a replacement for DOE’s Yucca Mountain waste disposal program. The BRC

is undertaking none of the waste disposal program activities identified in NWPA §

302(d). Its existence therefore cannot justify continued NWF fee collection.

B. There is no schedule for implementing a waste disposal program

DOE has no schedule for implementing a new waste disposal program.

Indeed, it has no schedule for the creation of such a program. At most, the BRC’s

final recommendations for a new program might – or might not – be accepted by

DOE, the President, and by Congress. When these actions might occur is pure

conjecture. In testimony before the BRC, Secretary Chu stated that, “as a

minimum,” DOE had at least “50 years to develop things” and “probably [has]

more.” 54 And DOE concedes that speculation regarding alternative disposal

program costs is “premature at least until the [BRC] issues its recommendations

and actions have been taken in light of those recommendations.” GAO Report at 53 See, e.g., GAO Report at 60 (Assistant Secretary for Nuclear Energy claiming

that DOE “has acted responsibly in carrying out the Yucca Mountain Project shutdown”).

54 R72, BRC Meeting Transcript (Mar. 25, 2010) at 23, JA__.


49

71 (Letter from Assistant Secretary for Nuclear Energy). Without a program and a

schedule to implement a program, there is no basis to determine what costs will be

incurred.

C. There are no waste disposal program costs

Absent a waste disposal program and a schedule for implementing a waste

disposal program, there are no program costs to be evaluated. It is beyond

peradventure that program costs must first be established before it is possible to

determine how much the fee needs to be in order to be adequate.

D. The Determination Contains No Evaluation of Waste Disposal Program Costs

Because there is no waste disposal program, no schedule for implementing a

waste disposal program, and no program costs, DOE cannot perform a credible

cost evaluation. DOE claims that the “NWPA does not prescribe a methodology

for how the Secretary must carry out the fee adequacy review provision of

[NWPA] Section 302(a)(4),” Determination at 7, JA__, but this ignores the

statutory command that the annual fee review must “evaluate whether collection of

the fee will provide sufficient revenues to offset the costs” of the radioactive waste

disposal activities defined in Section 302(d), 42 U.S.C. § 10222(a)(4). The

Determination contains no evidence or indication, whatsoever, of any evaluation or

“careful appraisal and study” of revenues that would be generated by the fee and

the costs of waste disposal activities specified in Section 302(d). In this regard, the


50

Determination stands in marked contrast to all of the fee adequacy reports prepared

and published to date.

The lack of a credible cost evaluation comes as no surprise. Internally, DOE

was aware that such an evaluation would not be possible. In the words of the

Director of the Yucca Mountain program when the decision was made to terminate

it, “[g]iven the policy decision to terminate work on developing the proposed

Yucca Mountain repository,” and absent any “decision . . . concerning alternative

storage and disposal options,” it is certainly “not . . . possible to implement a

completely revised methodology for [a fee adequacy] determination . . . .” Kouts

Memorandum at 2-3, JA__. The Determination, however, ignores Mr. Kouts’

conclusion.

Contrary to the statutory mandate, DOE has basically “blue pencil[ed] out”

the word “evaluate” in the statute.55 Instead, rather than acknowledge any

reasoned basis to evaluate costs of a waste disposal program and the appropriate

level of the fee, DOE has created a strawman by asserting that the one disposal

alternative which DOE has taken off the table is the basis for the cost analysis

which the Determination purports to make. The Determination cites – of all things

– the Yucca Mountain project as a “proxy” in terms of being an admittedly

55 Compare WEPCO, 778 F.2d at 3-4 (“[T]he practical effect of DOE’s

interpretation is to blue pencil out two words in an already brief one-sentence provision.”).


51

“imperfect” example of what an undetermined disposal program will cost.

Determination at 7, 8 JA__. Yucca Mountain, however, is the one, and the only,

waste management option DOE has specifically asserted is “not . . . workable,” and

which it has decided to “terminat[e]”, Determination at 2, 3, 4, JA__, as well as the

only specific alternative that the BRC cannot consider.56 DOE’s reliance on a

“unworkable” program – terminated without basis and by its own hands – to justify

continued fee collection not only fails to comply with the fee adequacy evaluation

requirement, but is arbitrary and capricious in the extreme. DOE cannot justify

continued collection of the NWF fee based on the costs of the former waste

disposal program, otherwise the NWPA’s requirement for an annual review of the

fee would be meaningless.

E. DOE’s Asserted Inability to Propose Fee Suspension Contravenes NWPA Section 302(a)(4)

In addition to its strawman “proxy,” DOE claims that it is “aware of no

evidence that would provide a reasoned and sound basis for determining that

excess or insufficient revenues are being collected for the costs for which DOE is

responsible.” Determination at 8, JA__. This is because “[f]uture decisions as to

these matters will be informed by the recommendations of the BRC,” yet the BRC

has “not reported” its recommendations. Id. And even had the BRC reported its

56 R72, BRC Meeting Transcript (Mar. 25, 2010) at 26-27 (testimony of Secretary

Chu), JA__.


52

recommendations, those recommendations are not self-executing. They require

DOE, Administration, and Congressional approval. But instead of temporarily

suspending the fee until a new waste disposal program is established and

implemented, and whose costs can then be evaluated, DOE claims that “no action

has been or could be taken” because the BRC’s recommendations have not yet

been made and future waste disposal decisions have yet to be “informed” by the

yet-to-be-made BRC recommendations. Id. In other words, DOE’s position is that

DOE (1) can unilaterally terminate the statutorily mandated waste disposal

program and take no action with respect to a replacement waste disposal program

(or its costs) until the BRC makes its recommendations; but (2) is powerless to

adjust the NWF fee because DOE’s own actions have left it without a waste

disposal program, or any recommendations for such a program, whose costs it can

evaluate.

DOE’s circular logic contradicts the clear statutory command that DOE

propose an adjustment to the fee “if excess revenues are being collected . . . to

ensure full cost recovery for the waste disposal program,” NWPA § 302(a)(4), and

is otherwise arbitrary and capricious. DOE cannot evade the statutory mandate

because it perceives itself to be paralyzed in a situation created by its own actions.

Nothing compelled DOE to terminate the waste disposal program, or to do so

without a replacement program whose costs could be evaluated. And nothing has


53

prevented the Secretary from complying with the NWPA by immediately

proposing to Congress a temporary fee suspension because it has no waste disposal

program, no schedule for a replacement waste disposal program, no associated

costs, and therefore no justification to continue collecting the fee.

F. DOE’s Purported Concern for Intergenerational Fairness to Future Ratepayers Does Not Trump the NWPA

DOE’s alleged intergenerational equity concerns do not trump the explicit

language of the NWPA. DOE asserts that any temporary fee suspension “would be

inequitable to future ratepayers” because current ratepayers would “avoid paying

the costs of their SNF disposal.” Determination at 9. However, this Court has

twice rejected DOE’s objection to reducing the amount of fees collected over the

concern that current ratepayers will not pay their fair share for disposal of nuclear

waste. WEPCO, 778 F.2d at 6-8; Consol. Edison Co. of N.Y. v. DOE, 870 F.2d

694, 697-98 (D.C. Cir. 1989) (“ConEd”). Just as in ConEd and WEPCO, the clear

wording of the NWPA requires a fee adjustment if excess revenues are being

collected to ensure full cost recovery. DOE cannot depart from that clearly

expressed intention. ConEd, 870 F.2d at 698. In any event, over-collecting from

the present generation is just as inequitable as over-collecting from future ones.

Since DOE has no reasoned basis to support the amount being currently collected,

it has no basis to conclude that it is being unfair to future generations.


54

IV. DOE Must Act to Reduce the NWF Fee to Zero

Based on the foregoing, this Court should declare both that: (a) DOE’s

purported NWF fee review contravenes the explicit statutory requisites of Section

302(a)(4) of the NWPA, 42 U.S.C. 10222(a)(4), and is otherwise arbitrary and

capricious and contrary to applicable law; and (b) that the Determination’s

statement that there is no reasonable basis to conclude that either excess or

insufficient funds are being collected by the NWF, and, therefore, that the NWF

fee should not be adjusted, is arbitrary, capricious, and contrary to applicable law.

In addition, the Court should direct DOE to comply with the fee adjustment

provision of NWPA Section 302(a)(4) by requiring DOE to “immediately

transmit” to Congress the proposal that collection of the NWF fee be suspended

pending completion of a fee review that complies with the provisions of

Section 302(a)(4) of the NWPA, 42 U.S.C. § 10222(a)(4).

A. Fee Suspension is Appropriate in Light of the NWF’s Balance of Over $24 Billion and Over $1 Billion in Annual Interest Accruals

Suspension of the fee is also proper in light of the NWF’s balance and the

annual interest generated on that balance. The current unexpended NWF balance

is approximately $24 billion, which accrues annual interest of approximately $1

billion. Determination at 4, JA__; see also FY 2012 Budget, Appendix at 415

(estimating an unexpended NWF balance of approximately $26 billion at the start

of FY 2012, and approximately $1.5 billion in investment earnings in FY 2012).


55

That interest is in turn added to the balance of the NWF. 42 U.S.C. §§ 10222(c)(1)

and (e)(3). This annual income to the NWF far exceeds any current or authorized

program costs. Zero funds were appropriated for the waste disposal program in FY

2011, and the Administration has requested zero funding for the waste disposal

program in 2012. Thus, the current fund balance and annual interest being credited

to that unexpended balance are more than adequate for full recovery of any current

costs, particularly in light of the Administration’s termination of the program and

its appropriation of zero dollars for the program. Only when DOE performs an

appropriate fee adequacy review, i.e., when there is a waste program whose costs

can be evaluated, can DOE determine that the current NWF balance, over $24

billion and growing by well over $1 billion per year, is not adequate.

B. Suspension of the NWF Fee Is Proper in the Absence of a Valid NWF Fee Review

In the absence of a timely and proper annual NWF fee adequacy review,

there is no basis to justify DOE’s continued collection of the 1.0 mil fee. The

NWPA requires that DOE annually “evaluate whether collection of the fee will

provide sufficient revenues to offset the costs as defined in subsection (d) [of

NWPA § 302]”. 42 U.S.C. § 10222(a)(4). Thus, DOE is required to evaluate how

its current plans for the waste disposal program take account of those costs. DOE

must assess how its program costs “entail some sort of advancement or step toward

permanent disposal, or else an incidental cost of maintaining a repository.” Ala.


56

Power, 307 F.3d at 1313. Failure to do so means that DOE cannot ensure that the

fees charged utilities offset costs, as the NWPA requires, no more and no less.

Absent such an analysis, DOE has no justification to continue fee collection.

And without such justification, the NWPA requires that DOE immediately

transmit to Congress a proposal to adjust the fee that reflects the absence of the

need to collect further fees. NWPA § 302(a)(4) is unambiguous with respect to

DOE’s obligation to propose an adjustment to the 1.0 mil fee if more revenues are

being collected than are necessary to fund the nuclear waste program. 42 U.S.C.

§ 10222(a)(4). The mandate here contrasts with other NWPA provisions, where

Congress determined to afford DOE discretion in its NWPA responsibilities. See,

e.g., NWPA § 302(e), 42 U.S.C. § 10222(e) (“If the Secretary determines that the

Waste Fund contains at any time amounts in excess of current needs, the Secretary

may request the Secretary of the Treasury to invest such amounts . . .”) (emphasis

added); NWPA § 301(b)(3), 42 U.S.C. § 10221(b)(3) (“The Secretary, after

reviewing of any other comments made by such agencies and revising the mission

plan to the extent that the Secretary may consider to be appropriate . . .”) (emphasis

added).

C. The Current Status of DOE’s Waste Disposal Program Requires Suspension of the NWF Fee

The current status of the waste disposal program is that DOE no longer has

one. There is no funding for Fiscal Year (“FY”) 2011, and the Administration has


57

asked for no funding for FY 2012. In the absence of a waste disposal program,

DOE’s required fee adequacy assessment cannot assume any program costs. This

point is reflected by the absence of any appropriations. Further, continued

collection of the NWF fee from utilities is wholly inconsistent with – and in stark

contrast to – the Federal Government’s suspension of contributions to the NWF to

cover the cost of disposing of wastes resulting from defense activities, as

prescribed in NWPA § 8(b)(2), 42 U.S.C. § 10107(b)(2). See FY 2012 Budget,

Appendix at 396 (providing zero appropriations for FY 2011 and requesting zero

appropriations for FY 2012 for the defense-related nuclear waste disposal

repository program).

As long as Yucca Mountain is no longer being pursued and DOE does not

know and cannot say what the future waste disposal program is, when it will be

implemented, and what its costs will be, DOE can make no meaningful assumption

about how much the waste disposal program will cost. Consequently, the NWPA

requires DOE to propose to Congress a suspension of the fee.


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CONCLUSION

The Determination fails the NWPA mandate to annually review the amount

of the NWF fees being collected to assure that those funds will offset the costs of

the nuclear waste program and will be neither too large nor too small. The

Determination fails to recognize the current administration’s wholesale termination

of the nuclear waste program whose costs formed the basis of the prior

determinations that the 1.0 mil fee would generate sufficient revenue to cover the

costs of the program. DOE’s attempted justification for failing to suspend the fee

while the waste disposal program is itself suspended violates the NWPA and is

otherwise arbitrary and capricious. For these reasons and the other reasons

explained in this Brief, Petitioners respectfully request that this Court direct DOE

to immediately submit to Congress the proposal to suspend further collections of

the fee until such time as a fee adequacy review has been performed which

demonstrates that further fee collections are necessary to fund a nuclear waste

program as it has been authorized and implemented.


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60

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) and contains 12,870 words. In making this certification, Petitioners’

counsel has relied on the word count function of Microsoft Word, the word

processing system used to prepare this brief.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Office

Word 2003 in 14 pt. font Times New Roman type style.

/s/ Jay E. Silberg Jay E. Silberg Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, N.W. Washington, D.C. 20037 Tel: (202) 663-8000 Fax: (202) 663-8007 E-mail: [email protected]


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CERTIFICATE OF SERVICE

I hereby certify that the electronic original of the foregoing “Brief of Consolidated Petitioners” (including Addenda) was filed with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit on this 22nd day of August, 2011 through the CM/ECF electronic filing system, and thus also served on counsel of record.

/s/ Jay E. Silberg _________________________Jay E. Silberg Pillsbury Winthrop Shaw Pittman, LLP 2300 N St., NW Washington, DC 20037 Tel: (202) 663-8063 Fax: (202) 663-8007 E-mail: [email protected]


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