Follow up to previous postings on Yucca Mountain, this decision on June 1, 2012 from the United States Court of Appeals for the District of Columbia, No. 11-1066, National Association of Regulatory Utility Commissioners v. United States Department of Energy, Consolidated with 11-1068 On Petitions for Review of Final Actions of the Department of Energy:
“Opinion for the Court filed by Senior Circuit Judge Silberman: “Petitioners, nuclear power plant owners and operators, ask us to review a November 2010 determination by the Secretary of Energy finding that there was no basis for suspending, or otherwise adjusting, annual fees collected from them totaling some $750 million a year. Those fees are intended to cover the full costs of the governments long-term disposal of civilian nuclear waste. But the Administration has discontinued development of Yucca Mountain, which was the designated location for the disposal of the waste. According to petitioners, the Secretarys 2010 determination, made subsequent to that decision, failed to examine (or even mention) the anticipated costs of disposal, or compare them to expected revenues from the fees (and associated interest and investment income). The Secretarys determination is claimed, thereby, to have violated the 1982 Nuclear Waste Policy Act (the Act), which obliges the Secretary to annually evaluate whether collection of the fee will provide sufficient revenues to offset program costs. In the absence of such evaluation, it is argued, the determination was invalid, and because no future program has replaced Yucca Mountain, petitioners contend that the Secretary is obliged to suspend the fees and report his action to Congress…It is appropriate for us simply to declare that the Secretarys determination is legally defective and to remand. However, we are mindful that petitioners were obliged to first file suit in October 2010, in light of the Secretarys failure to conduct any fee adequacy determination since FY 2008. It was only after initial briefing was submitted that the Secretary issued his 2010 determination, thereby rendering the initial case moot. In light of that Departmental disposition to delay, we will order the Secretary to respond to the remand within six months of the issuance of the mandate and this panel will retain jurisdiction.”
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