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

Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 1 of 13

32. averaged 33.

In less The

comparison, than $350

DOE's million

total per of the

incurred year. Nuclear

costs

have

present $7.5 NWPA

balance

Waste

Fund

is

approximately 34. annually the The would

billion clearly the

dollars. contemplated fee collected that in the Secretary with

reassess

connection and and begin

spending

plan

required

to site,

construct 31, 1998,

operating would timely

a repository adjustments

by January, to DOE's House the

immediately to fund

propose

fee

as necessary obligations. on (5) the (B)]

accomplishment 35. As noted into in

of the

NWPA

Report 302(a)

version makes

of

the

bill

passed

law,

"[Section for

Secretary spent fuel

responsible as provided

disposing this not fees

of high subtitle later

level

waste

or

under beginning of

in permanent than January by this 1998,

disposal in return

facilities, for H.R. DOE an the

payment No.

established at 59 (1982).

section." 36. implement collect have the an fee

Rep.

97-491, an

was

thus

under

ongoing

obligation

to and to to

on-time

repository 31, 1998, all

construction program by that

program,

by January operational payment NWPA, 1982,

funding date. were Office In

necessa!y addressing

repository the

obligations the when program

utilities Budget before the

to assume noted on in 31,

under April order

the 26,

Congressional the bill was

Congress, mandated

that, January

to match

funding

with

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Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 2 of 13

1998,

repository of the

operational costs qf this

date, bill

"It will

is expected be is incurred expected 1982

that by

the the

majority year 2000

when and

repository the facility

construction operational." Report

to be

completed at 3833, Budget

U.S.C.C.A.N.

97 th Cong.,

2 n~ Sess.

of the

Congressional

Office. 37. The annual Fee an Adequacy adjustment only that Reports in the published fee. Each of the by DOE

never

have

proposed have produce

year i mil

Respondents fee would 38. deadline, which pay the

stated

continuation to of the fund the time fees the

the

revenues

"adequate" the passage of

program. 31, over to DOE 1998

Notwithstanding and NWFA thus the

January period

expiration that DOE

required and

collect costs of

sufficient repository, to over

all

siting

construction the 1 mil

continues million the Waste

to collect per year) in

fee

(amounting the

$600 of Nuclear

accordance Fee

with

recommendation See 1996

DOE's Fund 39.

most Fee

recent

Adequacy An

Report.

Adequacy: proposes the

Assessment. collection DOE to adjust that, of fees the within DOE by at this

.DOE

to continue Act required 1998 would

rate

even

though from

fees that to site,

annually period, construct January

1982

until funds

to assure

sufficient and 31,

be collected of

for

initiate

operation

a repository

1998.

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Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 3 of 13

40. despite Waste only twelve

DOE the

proposes $7.5

to

continue existing plan

to

collect in

this the

amount

billion

balance which

Nuclear spend next all

Fund about

and

an expenditure of future 1998, DOE's program

shows

it will over wrote for the to

one-half On May

yearly

receipts Pena plan

years.

18,

Secretary expenditure through the

petitioners nuclear date and by

identifying disposal DOE This will

the - the

waste which

year

2010

currently plan

estimates that than Pena's of money

repository DOE's

completion-

beyond. 2010

indicates less

expenditures per year.

through 41.

average

$340 May

million 18 letter

Moreover, that

Secretary the amount

demonstrates is, by itself, costs DOE

currently all

in the of DOE's

fund

more through thus from

than

adequate

to cover

program 42. that at

2010. current fee assessment of would was the practices NWPA in.

proposes the

deviate two

mandatory respects: recognition and and of 1998, initial the

requirements (a) that all fees DOE

least

important without 1982

continue to the

be collected collect, siting, and (b)

required for

between

fees

necessary of

construction continuation systematic fee

operation fee

a repository; would under

existing

structure

perpetuate which annual

and

persistent would

overcollection exceed annual

collections program

NWPA-compliant

waste

expenditures.

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Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 4 of 13

DOE

FAILURE 43. In fuel

TO

COMPLY to

WITH their

NWPA

PERFORMANCE to

REQUIREMENTS accept spent

addition beginning and

obligation 31, 1998,

nuclear

January

under

42 U.S.C. fees to the of under develop repository spent the

~ i0222(a) U.S.C. schedule and

(5),

their

obligation

to adjust are obligated of

~ i0222(a) for the terms that

(4),

respondents and

construction and are

operation for

publish fuel

conditions in all

acceptance compliant ~ 10131(b)

nuclear

respects

with (i)

requirements i0222(a) such (6).

of the Neither or 1995,

NWPA. DOE

42 U.S.C. nor the

Secretary

have

published

schedule 44. In

criteria. DOE and published Annual an the latest reports of the to of achieve that between of its Annual what

Priority

Ranking

Capacity estimate

providing rate for of

is purported of spent

to be

only

acceptance ten

nuclear

fuel first

DOE

intends

the DOE

years

following

acceptance to distinguish permanent and

fuel. fuel

intentionally temporary as required

failed and

accepted

for

storage by the

emplacement stated are

in a repository the rates of terms

NWPA,

also report DOE. OF

that not

acceptance and

identified and do

in the not bind

contractual

conditions

DOE'S 45. obligations conditions

REPUDIATION failures the fee of

NW~A to meet

OBLIGATIONS their statutory and are critical

Respondents' to for modify

and spent

publish nuclear

terms fuel

acceptance

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Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 5 of 13

in light fuel reduce on

of

DOE's 31,

failure: 1998, fees

(a)

to

begin by

disposing the NWPA;

of and

spent (b)

January or

as required collected to establish

eliminate

from

petitioners for

while

simultaneously repository nuclear following 46. and

refusing

a schedule for of acceptance spent

operation, or

a start or

date rate

of spent acceptance

fuel,

a schedule

fuel

commencement Petitioners Power the

of repository Consolidated

operations. Edison, to the RG&E, Consumers

Illinois

separately Secretary 42 U.S.C. (6)

wrote comply § i0222(a)

Secretary statutory adjustments)

demanding obligations and 42

that

with (4)

DOE's (fee

under

U.S.C.

~ I0222(a) These

(establishment highlighted the

of terms Secretary's that exist and

conditions). "disregard independent requested See, dated e.g., June 47. Edison by 42

letters

for of

DOE's the

statutory

obligations with the

contracts of future

various by to

utilities," July, 1998.

assurances Letter 15, On

compliance Edison i)

from

Consolidated

Secretary

Pena,

1998, 15,

at 1 (Attachment 1998, DOE

July

responded that

to

Consolidated not obligated

and U.S.C.

Consumers,~ § I0222(a)

I asserting (6) to

it was

establish

schedule

~ DOE Power.

did

not

respond

to the

letters

from

RG&E

or

Illinois

- 17 -

Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 6 of 13

acceptance disposal § I0222(a) 1998, initial it was all

of spent facility, (4) funds it

nuclear and

fuel

due

to delay under 42 by

in

opening

a

denying obligated for

that

U.S.C. January and that

was

to collect the siting,

necessary of

construction DOE denied

operation required with

a repository. to program e.g., 15, has

Further, match further

prospectively its waste (4). dated

fee plans DOE pursuant to 2). the

collections to Section

expenditure Letter 1998 not (4) from

I0222(a) Edison, date, under the

See,

Consolidated 48. obligation Congress To

July

(Attachment fulfilled to propose to bring

the 42

Secretary

U.S.C. in

~i0222(a) fees with

adjustment into

necessary NWPA in the has

fee or the

collections program 49. obligation publish nuclear the

alignment

requirements May not (i) 18, 1998

expenditures To date, the

announced Secretary

letter. the

fulfilled and

under and

42 U.S.C.

~§ 10131(b) for the

i0222(a) of spent to the or promulgate permanent rate and make of

terms fuel,

conditions the

acceptance has failed for

because for

Secretary of

schedule

operation nuclear

a repository fuel, other the

emplacement acceptance conditions disposal

of of

spent this

schedule

fuel, to

and

criteria, in which

terms DOE will

relating services

the

manner to the

available

utilities.

- 18 -

Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 7 of 13

COUNT

I (Violation Eliminate Petitioners 1 through The Act

Of Statutory Fees Collected reallege 49 of this to fund the and

Obligations Under The incorporate

To Reduce NW~A) by

Or

50. paragraphs 51. only those

reference

Petition. collect, from petitioners, disposal Act.

permits necessary

DOE to

fees

a nuclear

waste

program 52.

which

complies 302(a)

with (4)

requirements NWPA, that

of the

Section (4), the

of the requires

42 U.S~.C. the Secretary and review

~ i0222(a) annually whether

explicitly levied

fees

against

the

utilities will

determine revenue

collection to

of those costs

revenues of such

provide

sufficient program. 53. amount the DOE, of

recover

a statutorily-compliant

In

the

event

that

the

Secretary is in

determines of or

that less

the

fees

collected to

either cover

excess costs to

than by

amount the

necessary Secretary in The the Act

legitimate to propose

incurred an

is required fee. required that fund of date. and that DOE the

Congress

adjustment 54. necessary fees and

DOE

make

adjustments by January 31, 1998,

to ensure to

collected, siting,

sufficient initial fuel On all

construction, for disposal

licensing, of spent

operation by that

a repository

nuclear 55. collect initiate

information funds

belief, to site,

DOE

did,

by

that

date, and

necessary of the

construct, in a timely

license fashion.

operation

repository

- 19-

Case 1:99-cv-00447-CFL

Document 214-3

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Page 8 of 13

56. greater nuclear of

DOE's than waste

failure which

now

to

reduce

fees

to

an

amount to fund

no the

that

is reasonably program assuming is agency

necessary the

disposal

present of

existence 42 U.S.C.

a fully

functional (4) and

repository

a violation action

§ i0222(a) withheld. 57. with either facility 58. are excess On

constitutes

unlawfully

information and will did

and not

belief, know

respondents to January or

do

not

know

certainty, when DOE

prior

31,

1998, this

construct

a repository

the

form

will

take. can make fees no rational evaluation by 42 U.S.C. under and which of of what

Respondents or (4)

inadequate without will be

as required of the and

~ I0222(a) the this

knowledge completed

schedule form

repository repository. 59.

the

location

Respondents'

continued is arbitrary

collection and

of

fees and (4). $12

under

these

circumstances

capricious § i0222(a) more than

constitutes 60. fees twice Letter 18, and the

a violation Respondents interest. amount

of 42 U.S.C. have collected next than to ten it

billion

in

Over each

the

years, to

DOE

will

collect

year Pena DOE

plans

spend.

See dated Fund May

from

Secretary

Consolidated Nuclear

Edison, Waste

1998

(identifying

projected

appropriations). 61. constant Respondents' rate of 1 mil continued per collection of fees at a the

kilowatt-hour,

notwithstanding

- 20 -

Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 9 of 13

fact

that

respondents'

program of was

expenditure incurred costs

plan

shifts

a

disproportionate fifteen years

quantity later and thah

to a point the initial is the

contemplated of the contrary 1 mil

in

establishment arbitrary statutory 62. surrounding DOE's intent and

assessment and

fee,

also and

capricious

to the

Act

contract. Given the the form existing and cost at fund balance, the uncertainty repository, than initially the 1 mil and

of the

required rate

to incur may with not

costs

a slower continue

projected, fee

DOE

lawfully NWPA. most

to collect

consistent 63.

the

Respondents' the the waste and

recent

fee

adequacy

report

fails of a Waste the per

to

reconcile

uncertainty excess program amounts

surrounding currently plan

construction in set of the Nuclear by

repository, Fund, the

expenditure

forth

Secretary

the fee.

proposed

continuation

the

1 mil

kilowatt-hour 64. Nuclear announced inability will In Waste by to

light Fund,

of

the the

excess waste

amounts

currently

in plan DOE's

the

program May 18,

expenditure 1998, and and in

Secretary state with

Pena

on

certainty the

when,

what

form, to is a

it

construct

a repository, in fee

Secretary's

failure

propose violation

a reduction

assessments (4)

to Congress of the NWPA DOE

of 42 U.S.C. agency

~ I0222(a)

constitutes has

action in

unlawfully excess of

withheld. what it

already

substantial

amounts

will

spend

- 21 -

Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 10 of 13

through further 65. failure fee, excess Nuclear 66. declare 67. declare Secretary to ensure required of the

2010

and

should this

be precluded excess.

from

any

collection

that

increases As to

a direct comply with have DOE Fund.

and

proximate statutory or will may

result

of

the to to

Secretary's adjust pay into fees the the in

the been

obligation be required payments

petitioners of what

lawfully

require

Waste

Accordingly, DOE in violation

petitioners

request

that

this (4). court (5),

court

of 42 U.S.C. request

§ 10222(a) that (4) this and

Further, that was under

petitioners 42 U.S.C. to

~ i0222(a) seek any 31, fee

obligated

adjustments of all

necessary funds operation

collection, to site,

by January

1998,. and

construct, by January further §§

license 31, 1998.

initiate

repository

68. that,

Petitioners 42 U.S.C.

request and

that (5),

this the

court

declare

under

10222(4)

Secretary to an amount

currently no more

is obligated than necessary

to seek to fund

a fee

reduction waste

a nuclear

disposal repository

program from

assuming 31,

existence 1998, going

of a fully forward. request Report (4)

operational

January 69.

Petitioners recent Fee

further Adequacy

that dated for

the

court

declare 1996 reconcile the

DOE's

most to

October to

contrary future

42 U.S.C. fees

~ i0222(a) with the

failure fund

proposed

existing

balance,

- 22 -

Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 11 of 13

expenditure regarding 70. an order 42 to

plan when

through

2010, form

and the

respondents' repository that

uncertainty will be built. enter

and

in what

Finally, requiring U.S.C. a level had of

petitioners the Secretary (4)

request to of the of that

this to

court

propose NWPA, which and

Congress,

under fees

§ i0222(a) not DOE in

a reduction would be

excess

appropriate operation disposal required

sited,

constructed repository by

initiated the permanent as

fully

functional nuclear fuel

for 31,

of spent by the

January

1998,

NWPA.

COiZNT 71. paragraphs 72. payments than

II (Deprivation reallege 70 of

Of S~3mstantive and

Due

Process) by'reference

Petitioners 1 through Petitioners' into be the

incorporate

this

Petition. January at 31, 1998, no to make

right,

after Fund the

Nuclear to

Waste fund

a level

greater disposal

would had

necessary

nuclear

waste spent

program

DOE

constructed 31,

an operational 1998, due is

nuclear

fuel

repository protected amendment Amend. V. 73. a level fund fully no

by January by to the the

a property

interest of the U.S. fifth Const.

substantive United

process

clause See

States

Constitution.

Petitioners" greater and than DOE's is

right would May

to be

make

payments if

into the

the

NWF

at

required

existing plan were

balance

18,

1998

expenditure protected

recognized

a property

interest

by the

- 23 -

Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 12 of 13

substantive United States 74. insistence levels

due

process

clause See

of

thefifth Const.

amendment Amend. and V. its at

to

the

Constitution. refusal

U.S.

Respondents' that

to

adjust fee

fees

petitioners

continue and part

payments

existing

results

in a systematic of fees on the

unreasonable of DOE and deprives

overcollection petitioners 75. not The

of their actions related

protected of

property are

interests. Executive of actions

respondents the in

rationally

to and,

accomplishment fact, are and

a legitimate to the NWPA

government and its

objective

contrary the

implementing

regulations,

statutory

contracts. 76. denial of 77. enjoin Accordingly, petitioners' Petitioners from respondents' substantive respectfully violation conduct due constitutes rights. this court a

process that

request of

DOE

further rights.

petitioners' petitioners request a

constitutional declaratory (a)

Specifically,

judgment DOE's excess

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

continued of those an

required

constructed 31, 1998r

operational

repository of and fees

by January petitioners'

constitutes due process

a violation rights; of

substantive (b) DOE's those account

continued necessary the

collection to fund the

greater taking and DOE's

than into May 18,

program

existing

fund

balance

- 24 -

Case 1:99-cv-00447-CFL

Document 214-3

Filed 11/23/2004

Page 13 of 13

1998

expenditure

plan

constitutes due

a violation rights. court

of

petitioners' 78. an order Petitioners preventing

substantive further

process that this

request further

enter

DOE

from

violating the in

petitioners' of Energy

constitutional to are propose required to to

rights Congress to pay to

and

requiring

Secretary fees as

a reduction zero until court are

the

petitioners the Secretary pay~nents

such that

time

is able into the

establish

to this Fund

additional

Nuclear

Waste

appropriate.

COD-~ 79. paragraphs 80. payments than Petitioners 1 through Petitioners' into the

Ill (Taking) and incorporate by reference

reallege 78 of this

Petition. January at 31, 1998, to make

right,

after Fund the

Nuclear to

Waste fund an

a level

no greater disposal nuclear of fuel the V. no

would had

be necessary DOE is

nuclear

waste spent

program

constructed

operational within U.S.

repository fifth

a property taking

interest clause. See

the

meaning ~nend. at

amendment 81.

Const.

Petitioners' than May would 18, be 1998

right

to

make if the

payments existing were of

a level

greater and

required

fund fully the

balance recognized

DOE's

expenditure within See the U.S. to

plan meaning Const. adjust at

is a property amendment 82. that

interest clause.

fifth V. requirement amount

taking

Amend. fees and

Respondents'

refusal

petitioners

continue

payments

existing

levels

- 25 -