On January 3, 2014, the U.S. Department of Energy (“DOE”) filed a petition for rehearing with the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) requesting the court reconsider a November 19, 2013 ruling that ordered DOE to stop collecting nuclear waste disposal fees.  DOE requested the D.C. Circuit rehear the case en banc – where all members of the court participate.

In the November 19 ruling, the D.C. Circuit held that the Secretary of Energy had failed to fulfill his statutorily obligated duty under the 1982 Nuclear Waste Policy Act (the “Act”) in evaluating annual fees that DOE collects from public utilities, and directed the Secretary to submit a proposal to Congress to change the annual fee to zero (see November 22, 2013 edition of the WER).  Specifically, the D.C. Circuit held the annual fees were improper because it could not be determined it the fees were proportionate to costs or if the fees were inadequate or excessive. The D.C. Circuit also held that collection of the fees may resume after a sufficient evaluation of the annual fees is completed by the Secretary, either because plans for Yucca Mountain (a nuclear waste repository) are renewed, or because Congress enacts different legislation.

In the request for rehearing, DOE argued that conflicting rulings from the D.C. Circuit, in which the court has ruled that DOE could not use Yucca Mountain as a proxy for calculating waste fees, and DOE could not use any non-Yucca Mountain considerations, has left DOE in a “damned if you do, damned if you don’t” position.  DOE also argued that operating under these two mandates makes it impossible for DOE to use any methodology to estimate the costs of disposal fees.  DOE continued to argue that the D.C. Circuit’s ruling violated the plain meaning of the Act, and substituted the court’s judgment over that of the Secretary and Congress.  DOE stated that the Act only allows the Secretary to propose setting the fee at zero when the Secretary determines that the fee is too high or no further fees are needed to ensure full recovery.  Therefore, DOE requested rehearing en banc to “correct the [D.C. Circuit’s] inconsistent and erroneous rulings in this matter of exceptional national importance.”

However, concurrent with DOE’s request for rehearing, Secretary of Energy Dr. Ernest Moniz complied with the November 19 ruling and submitted a proposal to Congress that recommends the nuclear waste disposal fee be set at zero.  In his letter, Secretary Moniz highlighted that his “proposal was not the result of and is not consistent with the determination I am required to make pursuant to the [Act].”  Secretary Moniz also stated he had made no determination that the fees were excessive. 

A copy of the request for rehearing is available here.  A copy of Secretary Moniz’s letter is available here.