Washington (Platts)--31Jan2013/502 pm EST/2202 GMT

The national body of state utility regulators and the nuclear industry asked a federal appeals court Thursday to reopen its review of their lawsuit over the US Department of Energy's collection of a fee worth more than $750 million a year from nuclear utility customers for a waste program that no longer exists and to order the department to suspend that action.

The motion the National Association of Regulatory Utility Commissioners and the Nuclear Energy Institute filed with the US Court of Appeals for the District of Columbia Circuit said the fee adequacy report the department filed with the court January 18 in connection with the case does not justify collection of the fee.

"DOE has based its conclusion to continue to collect the Nuclear Waste Fee, unabated, on a plan that has not been, and may never be, authorized and implemented by Congress," NARUC and NEI said in the motion.

The DOE fee report is based on a revamped nuclear waste strategy the department unveiled earlier in the month in which the waste program would be moved out of DOE to a separate entity. Under the DOE proposal, the new waste organization would use a consent-based process to site a pilot facility that would store spent fuel from permanently shut reactors, a larger consolidated storage facility and a repository. Congress must pass legislation to authorize the program changes envisioned.

The three-facility program would replace the waste program that DOE dismantled in 2010 that centered on a proposed repository at Yucca Mountain, Nevada. NARUC and NEI sued DOE in 2011 over the department's refusal to suspend collection of the fee even though there was no program to spend that money.

Nuclear utility customers are charged one-tenth of a cent for every kilowatt-hour of nuclear-generated electricity sold in order to bankroll the disposal of utility spent nuclear fuel. The fee is paid into the Nuclear Waste Fund, a federal trust fund that was valued at more than $28 billion in waste fee payments and interest late last year.

The petitioners added that the fee adequacy report analyzes 42 different scenarios but that none of them assess whether the money in the waste fund would be adequate to maintain the program if no new revenues are added.

"DOE's conclusion [in their report] that there is no compelling evidence of either insufficient or excessive funds is further belied by the extreme (to say the least) uncertainty in the ending waste fund balance scenarios predicted by DOE," petitioners said in the motion. "DOE's 42 scenarios have a range of $7 trillion, from the Nuclear Waste Fund having $4.9 trillion more than is needed to having $2 trillion too little."

NARUC and NEI added that even though most of the scenarios in the report "show the Nuclear Waste Fund is overfunded, DOE admits it made no effort to assess the probability of any of the scenarios." They said that, as a result, the scenarios are "as speculative as they are uncertain, and show that DOE failed to conduct a meaningful analysis."

--Elaine Hiruo, elaine_hiruo@platts.com --Edited by Jason Lindquist, jason_lindquist@platts.com