Free Response to Supplemental Brief - District Court of Federal Claims - federal

Case 1:99-cv-00447-CFL

Document 214-4

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Page 1 of 17

to a systematic the part 83. of DOE DOE's

and and

unreasonable a taking of

overcollection

of

fees

on

of petitioners'

property. was to would program NWPA's to the NWPA, deprive be assuming

taking No

petitioners' permits beyond waste the

property Executive which

unauthorized. the petitioners to

statute Of

property the nuclear

that

necessary

fund

disposal with was the

an operational statutory its

repository DOE's

consistent failure and the

framework.

contrary

implementing 84.

regulations

statutory that

contract. this court

Petitioners from

respectfully violation

request of

enjoin

DOE

further rights.

petitioners' petitioners.request a

constitutional declaratory (a)

~pecifically,

judgment DOE's excess

that: collection which would of be fees at levels in had

continued of those

required by the

if DOE January taking and than into May

constructed 31, 1998, of

an operational constitutes the United

repository of

a violation States

clause (b) DOE's those account 1998 the

Constitution; of fees greater taking and DOE's

continued necessary the

collection to fund the

program

existing plan

fund

balance

18,

expenditure taking clause

constitutes United

a violation States

of

of the

Constitution. 85. order Petitioners DOE further from request that the court enter an

preventing

further

violating

petitioners'

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constitutional to are is propose required able to

rights

and

requiring

the in such on

Secretary fees as

of

Energy

to Congress to pay establish to

a reduction zero until court, to

the

petitioners the to Secretary

time notice

to this

petitioners, Fund are

that

additional

contributions

the

Nuclear

Waste

appropriate.

COUNT

IV (Declaratorlz Nuclear reallege 85

Judg~nent Regardin 9 Use of Waste Fl~nd) and incorporate by reference

86. paragraphs 87. Secretary only for

Petitioners 1 through Section "may the

of this of the

Petition. NWPA from provides the waste that the

302(d) make

expenditures

Waste

Fund

purposes under the this

of radioactive Act. 42 U.S.C. Waste funds

disposal

activities" 88. treasury to the

~ I0222(d). Fund held are not general pursuant

Funds funds,

in

Nuclear are

but

rather

in trust

NWPA. Use of these NWPA funds itself, and is but 1301, limited also by not the only by the

89. language found in

of the 31

prohibitions use of trust fund

U.S.C.

1321

governing

amounts. 90. Nuclear for Upon Waste information Fund other have than of the and belief, as funds general paid into the funds in 42

been those NWPA.

used

treasury

purposes

authorized

by Congress

U.S.C.

§ i0222(d)

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91. repository

Upon to

information petitioners delay the in the

and will

belief, increase

the as

cost

of

the result of

a direct

respondents' which

construction of

of the

repository

is solely 92. Upon to other

responsibility and the

respondents. DOE is now Fund using, to pay and

information using,

belief, Nuclear with

intends costs

continue than e.g., and

Waste

those

associated

an NWPA-compliant been sited, 31, 1998. these

repository, constructed Further delay

a repository operational of the

which

has to

made

prior

January Fund to

utilization costs is

Nuclear of the

Waste NWPA. request monies

defray

in violation

93. enter Nuclear that the an

Accordingly, order Waste declaring Fund be of

petitioners that all

that paid

this

court

into

the and annual

maintained Energy be

in

a separate to

account an

Secretary of all Further, declaring from the

required

provide

accounting 94. an order resulting for spent

amounts

spent. request increased developing that costs this of court enter

petitioners that delay fuel, any in

disposal repository of sources directly that an fund. order or

a permanent costs from used to

nuclear and the

including be

increased by DOE be

construction other than

operation, Waste an

borne and in

Nuclear

Fund

not

indirectly 95. restraining (a)

to justify Petitioners respondents further

increase that

payments court

request from: of

this

enter

misuse

the

fund;

and

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Case 1:99-cv-00447-CFL

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(b)

paying relate

from to

the

fund in

any

increased

costs

that of the

delay

construction

or operation

repository.

COUNT

V (Failure For 96.

To Establish Acceptance

Schedule,

Terms

~Ind

Conditions

Of Spent and

Nuclear

Fuel) by reference

Petitioners 1 through Sections

reallege 95 of this

incorporate

paragraphs 97. U.S.C. the

Petition. 302(a) (6) of the (6), for the the

lll(b) (i)) and

(i)

and

~ 10131(b) to and spent

42 U.S.C. in of writing

~ i0222(a)

Secretary

egtablish operation nuclear

a schedule for

construction disposal the terms of

a repository and criteria the

permanent forth rate of

fuel,

setting and spent

and

conditions, which

including DOE is

schedule to to DOE make the was the

acceptance, nuclear 98. collect spent by fuel

under

obligated available

disposal the

services

utilities. required age of to the

Under

statutory from and, accept

contract,

information nuclear DOE 31, The fuel would 1998

utilities using that

regarding data,

establish fuel

a schedule the

which

spent

nuclear

following

January 99.

start

date. delegated responsibility Office of for Civilian office rate recent

Secretary this Waste

establishing Radioactive published of

schedule Management reports spent

to DOE's

("OCRWM"). setting fuel forth by

That

periodic of

a hypothetical DOE. The most

acceptance

nuclear

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Case 1:99-cv-00447-CFL

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report Annual

published Capacity 100. DOE

was

the

1995

Acceptance

Priority

Ranking

and

Report. has failed to establish either conditions nuclear fuel a schedule governing under on and the Act. for

operating DOE's rate i01. the

a repository of In acceptance July 1983,

or terms~and of DOE spent

published Spent

a Report Fuel

Financing Processed DOE's

Disposal

of Commercial Radioactive of

Nuclear Report

High-Level first

Waste. the

This and

comprises for

pronouncement of I~ year. On spent

terms fuel

conditions following rate of

acceptance the tons NWPA. per 102. took into

nuclear

made

enactment 6000

of

specified

a design

receipt

metric

information multiple production the

and

belief

this

rate

of

acceptance

account of of

factors of spent

including nuclear resources

repository fuel, and for the

design,

rate

optimization program. 103.

transportation

required

Subsequent 900

reports metric

have tons of

published per year

projected for the fuel. Report, the ten See

rates years 1995

of approximately following Annual first

acceptance Ranking and

spent

nuclear Capacity

Priority 104. These for

~nnual do and

at 4.

"projections" a "schedule" because statutory expressly

not

satisfy and

Act's for

requirement spent DOE fuel

"terms

conditions" bind nor

acceptance under NWPA. the DOE

they

neither

condition

conduct the

scheme has

Congress

established that its

through

disclaimed

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Case 1:99-cv-00447-CFL

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projections Annual states Id.

amount

to

terms and "is

and

conditions. Capacity

In

its

1995 DOE only .... "

Priority that this

Ranking data

Annual for

Report,

planning

purposes

at i. 105. DOE's projections They delay attempt subsequent to to July 1983 are

unreasonable. unauthorized and thus

accommodate its

DOE's obligations, and for highly

in fulfilling Act fuel even if

statutory as terms

violate for

the spent

taken or

conditions repository restrictive of spent

acceptance

as a schedule are if based on

operation. assumptions fuel

These

projections only

applicable were to occur rather NWPA.

initial

acceptance Retrievable

nuclear ("MRS")

at Monitored the at 4.

Storage

facilities by the

than Id.

permanent Moreover, to the DOE's

repository "projections" capabilities petitioners the Disposal

required bear of the are of

no rational permanent See,

relationship repository e.g., 1983 for

technical

which on and Financing Processed.

paying. Commercial

Report Fuel

Spent at to

Nuclear ii. establish

High-Level 106. terms and 107. conditions 42 U.S.C.

Radioactive DOE also has

Waste, failed

other

essential (6). and by

conditions The for

required

by 42 U.S.C.

~ i0222(a) terms fuel

Secretary's the disposal (6)

failure of

to establish nuclear

spent the

required

~ i0222(a)

violates

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Case 1:99-cv-00447-CFL

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108. d~clare I0222(a) require days for

Accordingly, in violation Petitioners the entry

petitioners of 42

request

that

this (I) this

court

DOE

U.S.C.

~§ 10131(b)

(6). DOE

further to

request establish, in this no

court than 60

and

Secretary of

later the

following repository the made

an order and the

case,

schedule

operation rate

terms by

and which with

conditions, disposal the NWPA. services

including shall be

of acceptance, in

available

compliance that for this

Finally,

petitioners over terms and

request action

court of

retain determining by DOE comply

jurisdiction whether with the the

this and

purposes established the

conditions

NWPA

otherwise

enforcing

court's.order.

PI%A~fER FOR ItELIEF WHEREFORE, court enter petitioners respectfully of the request that and the the

judgment

in favor

companies,

grant

following (a)

relief: A declaration Sections NWPA. 42 lll(b) U.S.C. that (I), §~ respondents 302(a) (4), are in violation (6)

and 302(a)

10131(b) (I) , 10222 (a) (4)

i0222(a) (6). (b) A declaration petitioners Nuclear of the to that respondents' making decision payments levels and to require into the

continue Fund

Waste

at current due process

is a violation taking clauses

substantive

- 32 -

Case 1:99-cv-00447-CFL

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of the

fifth

amendment

to

the

United

States

Constitution. (c) A declaration and fee (5), the that, under 42 U.S.C. obligated to funds ensure § I0222(a) to seek (4) all by

Secretary

was

adjustments 31, 1998,

necessary of all

collection, to site, the

January

required

construct, repository (d)

license by that that October for with

and date.

make

operational

A declaration Report dated

DOE's 1996

most

recent

Fee to

Adequacy 42 U.S.C.

is contrary to reconcile fund through

~ i0222(a) proposed the (e) An

(4) fees

failure the

future balance 2010. costs of a and

existing plan any the

announced order

expenditure that from for costs by DOE

declaring resulting repository increased be borne payments

increased delay in

disposal permanent including operation, increase Waste (f)

developing fuel, and to

spent of

nuclear

construction not to be Used the

and

by

petitioners

Nuclear

Fund. requiring to Congress necessary program the Secretary of Energy to to no

An order propose more

a fee

reduction the

an amount waste existence

than

to fund

nuclear

disposal

assuming repository framework,

the

present

of

an operational NWPA's statutory

consistent

with

the a

or alternatively,

- 33 -

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reduction Secretary petitioners, Nuclear (g) An order Nuclear account required amounts (h) An order misuse costs of that

of is

the able that Fund

fee to

to

zero

until

such

time to to

as the

establish,

on notice

additional are that

contributions

the

Waste

appropriate. all monies in of paid into the

declaring Waste and Fund

be maintained Secretary an annual

a separate be of all

that

the

Energy

to provide spent. prohibiting the fund;

accounting

respondents and (b) paying

from any

(a)

further

increased of the

relate from

to delay the fund.

in construction

repository, (i) An order

requiring 60 days the

respondents following for

to'establish, entry of

no in

later this and

than case,

an order operation rate of

schedule and

repository including

the

terms

conditions, which

acceptance, made (j)

under in

disposal with

services the Act.

shall

be

available

compliance the

A determination jurisdiction assessing practices, and fuel its

that over

court

will for

retain purposes fee of

this DOE's

action

whether its

prospective for

assessment operation, for at a spent

schedule

repository conditions disposal and

established for

terms

and

acceptance comply

permanent the

repository

with

NWPA,

enforcing

- 34 -

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DOE's

compliance by and

with the

such

NWPA

requirements

as may

be approved (k) Such just. other

court. relief as the court deems

further

Respectfully

submitted,

Tami

Ly~Azor~y

r

/

MCKENNA & CUNEO, LoL.P. 1900 K Street, N.W. Washington, DC 20006 202-496-7500 Attorneys for

Consolidated Edison Company of New York, Inc. Consumers Energy f/k/a Consumers Power Company Illinois Power and Company Electric

Pacific Gas Company

Rochester Gas Corporation

and

Electric

Dated:

July

30,

1998

*Counsel

of Record

Of Counsel: C. Stanley Dees, Esq. Herbert L. Fenster, Esq. John Bonello, Esq. Suzanne Karbarz, Esq. MCKENNA & CUNEO, L.L.P. 1900 K Street, N.W.

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Washington, 202-496-7500

DC

20006

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Case 1:99-cv-00447-CFL Document 214-4 Nell $, "Buzz" C~rna

Filed 11/23/2004

Page 13 of 17

June 15, 1998
T~e.oh~ (914) 734-S713

The Honorable Federico Pena Secretary of Energy United States Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 Dear Mr. Secretary: On June 2, I998, the Nuclear Energy Institute advised you that the industry was united in rejecting your May18, 1998-proposal to address the Department of Energy's failure to accept spent nuclear fuel ("SNF') as required the Nuclear Waste Policy Act of 1982, as amended ('NWPA"). In addition to the shortcomings in DOE'sproposal that were raised by the industry as a whole, Consolidated Edison Companyof NewYork, Inc. is concerned that the May 18 proposal demonstrates disregard for DOE'sstatutory obligations that exist independent of the contracts with the various utilities_ This letter seeks your specific commitmentto comply with these statutory requirements as they apply to SNFnow in the possession of Con Edison. First, § 302(a)(6) of the NWPA requires the Secretary to "establish in writing criteria setting forth the terms and conditions under which SNFdisposal services shall be madeavailable." 42 U.S.C. § 10222(a)(6). No such criteria currently exist. DOE has failed to comply with the January 31, 1998 deadline to begin accepting SNFon grounds that the proposed repository is not yet available, but has offered no alternative plan. Commercialnuclear utilities at.this time do not -know when or at what rate DOE will accept spent nuclear fuel. Con Edison's specific requirements include acceptance by DOE SNFfrom our facility of commencingin 1999. Con Edison seeks, no later than July 10, 1998, the issuance of written criteria for disposal services which set forth the terms and condition~,. including the schedule, under which DOE will accept SNF. DOEalso has not complied with § 302(a)(4) of the NWPA. Section 302(a)(4) requires the Secretary to conduct an annual review of amountof the fees utilities are required to pay into the Nuclear Waste Fund. U.S.C. § 10222(a)(d-). If excess revenues exist in Fund the Secretary is , obligated to propose an adjustment to the fee. I_d. The attachment to your May 18 proposal demonstrates that excess~revenues exist in the fund. Based on DOE's ownprojections, the Fund currently contains significantly more than the estimated program costs through 2010. Continued collection of fees at the current rate

Case 1:99-cv-00447-CFL

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wouldcreate a Fundbalance even morndisproportionate to appropriations needs. Consistent with its statutory obligations DOE not continue to collect fees may whensuch a significant excess exists. DOE should therefore immediately propose to Congressa downward adjusu-aent of the fe¢ to zero. ConEdison, like other utilities ~equ~d continue holding spent to nuclear fuel, must find a near-term mechanism address both the continued to presence of SNF our property and the appropriateness of fe~s already paid and on to be paid into the Nuclear WasteFund. DOE,for its Far~ should immediately complywith the pertinent statutory requkements.Wewill expect to assurances of DOE's compliance no later than 1uly 10, 1998. Wewill be constrained to treat failure by DOE establish terms, conditions and schedule for to acceptance of Con Edison's SNF,or to reconcile fee assessments with progrm~ expenditures, as violations of the NWPA.

Verytruly yours,

Case 1:99-cv-00447-CFL

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Case 1:99-cv-00447-CFL

Document 214-4 Washin~on, 20585 OC ~uly 15, 1998

Filed 11/23/2004

Page 16 of 17

Departmentof Energy

Mr. Nell S. Cams ConsoIidati~d Edison Company of NewYork, ~c. rndiat~ Po/nt Star/on Broadway & Bleakley Avenue Buchanan, N.Y. 10511

This responds-to your Iune" 15, 1998let~ to former Secretary Pefla, in which you re.qtmsted comp/iance with certain requirements of the Nuclear Waste Policy Aot of 1982 as they apply to the spent nuclear fu~l nowin the poaacssiort of your company. Youexpress the c~aemaz LEst the E~partmetathas not pet established ha writ~g crit~ia setting forth the terms and conditions reader whichspoilt nuclear ft=¢l disposal services shall be made available and ask that the Departmeut issue such criteria, including a schedule for spent nuclear fuel acceptance by the Department. In 1983, the Departmentpublished the final rule promulgatingthe Standard Contract for Disposal of Spent Nuclear Fuel ~ad/or High-Level P~dioaetive Waste, 10 CFRPast 961, which established in writing the terms and conditions under whichnuclear fuel disposal services will be madeav-aflabl¢. Article IV of the Standard Contract provides that, beginning on April 1, 1991, the Department shall issue an annual acceptance priority ranking for receipt of spent fuel, and beginningncrt later than July 1, 1987, the Department shall i~stm an annual capacity report for planning purposes. The Department has issued Acceptance Priority Rankings in December1991, May1992, and Ma~ch1995 and Annmd Capacity Reports in June 1987, Sune I98g. December ! 99"3,.De-=emb~ .~.99 !,. May1993,.madMarch. 1995. Tbes~documents fomathe basis for the schedule in the Delivery Commitment Schedules annexed to individual SIRudard Contra~ts pursuant to Article V.B. of the StandardConU'aet to the d~lay in opatfing a disposal facility, Due the Department be.ca tmabl~to finalize the schedules. has Youalso expres~ the concern that the Departmenthas not yet conducted an annual review of the amounto£thc fees utilities are requLredto pay hato the Nuclear WasteFttmLIn ]tdy 1984, February 1985, Marcia 1986, Jm~ 1987, November 1990, aad October 1996, the Department completedreviews of the adequacyof the fees utillt/es are required to pay int 9 the Nuclear Was~ Ftmd. Weplan to release another review by the end oftkls )~tr. To date, the r~vicws showthat no adjustment in the I miLl/kwh is necessary or appropriate. fee

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2 I smsorry that you have concludedthat formerSecretary Pefia's offer is uot of interest to your company.As the Departmenthas indicated on s~veral occasions, we stattd ready to explore with i~dividual utilities contact amendmemts address aay haxxlshlps tI~t mayb~ experienced as a to result of the Department'sdelay. If you would'like to p~sue such discussions .madaddress the ooneems raised i~ your Intter, please have your staff corataet M.r. DavidZabramky the Office of of CiviLian Radioactive Waste Mxmagement (202) 586-9198to arraage for a me~ting. at Sincerely,

Lake H. Ba_4"at, Ao".~g D/reaor ~Offi~ o~ Civilian Rzdioa~tive Waste Managam~at