PHOENIX -- In a slap at the federal Department of Energy, a federal appeals court on Tuesday ordered it to stop collecting fees from nuclear plant operators -- including $580 million so far from Arizona utility customers -- to finance a waste site that may never be built.
Judge Laurence Silberman, writing for the unanimous court, said the agency is using cost estimates for a long-proposed nuclear waste site at Yucca Mountain in Nevada -- and very loose ones at that -- to collect more than $750 million a year from utilities nationwide and their customers. But the judge said the agency has pretty much abandoned that site and is instead looking at some alternatives.
Silberman said that not only violates federal law which specifies Yucca Mountain but also makes the fees, based on that site, totally arbitrary.
So the court ordered the agency to ask Congress to reduce the fee to zero until the energy secretary either complies with the law or Congress comes up with an alternate plan for storing wastes somewhere other than Yucca Mountain.
Tuesday's ruling is a key victory for the National Association of Regulatory Utility Commissioners which, with the privately funded Nuclear Energy Institute, had sought to halt the fees. All totaled, those assessments and earnings to date now are in the range of $31 billion.
Bob Stump, chairman of the Arizona Corporation Commission, said this also is a victory for consumers who have been footing the bill.
"Thanks to this decision, Arizonans will no longer be forced to pay for a mothballed nuclear waste repository in the Nevada desert,' he said.
NEI estimates that Arizonans who are customers of Arizona Public Service and Salt River Project have so far paid about $580 million. Those two utilities are part owners of the Palo Verde Nuclear Generating Station.
NARUC spokesman Robert Thormeyer said there is no objection to paying into a nuclear waste fund if the money is really going to be used to transport and store the wastes at a central site which was supposed to be at Yucca Mountain.
Only thing is, the Energy Department halted work at Yucca Mountain and has begun looking at other sites. But in the meantime the fees continue to be assessed.
"It doesn't cost anything to not do a program,' Thormeyer said.
In his ruling, Silberman said this is the second time the agency failed to comply with legal obligations to annually determine how much utilities need to pay to ultimately build the Yucca Mountain site. Instead, the agency gave the court a range of possible costs -- costs that could leave the fund with anywhere from a $2 trillion deficit to a $4.9 trillion surplus.
"This range is so large as to be absolutely useless as an analytical technical to be employed to determine -- as the (Energy) Secretary is obligated to do -- the adequacy of the annual fees paid,' Silberman wrote. In fact, he said what the federal agency offered "reminds us of the lawyer's song in the musical 'Chicago' -- 'Give them the old razzle dazzle.' '
But the real problem, Silberman said, is that the government is using figures for putting together a site at Yucca Mountain when it appears it is no longer interested in placing the waste dump there. He said the agency "cannot have it both ways.'
"It cannot renounce Yucca Mountain and then reasonably use its costs as a proxy,' the judge wrote. "The government was hoist on its own petard.'
NEI spokesman Steve Kerekes said Tuesday's ruling confirms "the government hasn't been doing what it's supposed to do.' He said the ruling helps not only the nuclear power industry but customers of utilities that rely on those plants.
"Our customers are the ones who have really been paying for this,' Kerekes said, under the premise the government would fulfill its obligation to take control of the nuclear wastes. In the interim, each power plant has been storing those wastes on site.
Thormeyer said regulators recognize that there will be a cost for transporting and storing nuclear wastes.
"No one opposes the collection of the fees,' he said. "What we oppose is collection of the fees for a program that doesn't exist.'
Thormeyer said the fees should not resume until the government either restarts work on Yucca Mountain or comes up with an alternate plan.