Case 1:99-cv-00447-CFL
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ATTACHMENTS
Case 1:99-cv-00447-CFL
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INDEX TO ATTACHMENTS
ATTACHMENT1
"Petition For ReviewOf Actions AndFailures To Act Of The Secretary Of The Department Of Energy, The Department Of Energy And The United States Of America(Corrected Copy)," Consolidated Edison Co. of New York, Inc. v. United States, No. 98-1358(D.C. Cir. filed July 30, 1998) "Petitioners' ResponseIn Opposition To MotionTo Dismiss Petition," Consolidated Edison Co. v. New York. Inc. v. Department Enero, v, No. of 98-1358(D.C. Cir. filed Jan. 29, 1999)
ATTACHMENT2
Case 1:99-cv-00447-CFL
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ATTACHMENT
1
Case 1:99-cv-00447-CFL
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FORTHE DISTRICT OF COLUMBIA CIRCUIT
No. 98-1358
Consolidated Edison Company NewYork, Inc., et of aL Petitioners
September Term, 1997
Department Energy, et al., of Respondents
Department of Energy 1000 Independence Avenue, SW Washington, DC 20585
This case was filed and docketed on July 30, 1998. The respondent is hereby notified that the attachedis a true copyof the petition for review, filed in the United States Court of Appealsfor the District of Columbia Circuit, at Washington, D.C. in the above-entitled case. IN TESTIMONY WHEREOF, hereunto I subscribe myname and affix the seal of said United States Court of Appealsfor the District of ColumbiaCircuit, at Washington,D.C., 8./5/98.
FOR THE COURT: MarkJ. Lang.er, Clerk BY: Ma ry,~/h~ e McMain Deput~f Clerk
Form 26 (June 1992)
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FOR
UNITED STATES THE DISTRICT
COURT OF APPEALS OF COLUMBIA CIRCUIT
CONSOLIDATED EDISON NEW YORK, INC. 4 Irving Place New York, NY 10003
COMPANY
OF
No.: CONSUMERS ENERGY COMPANY f/k/a CONSUMERS POWER COMPANY 212 West Michigan Avenue Jackson, MI 49201-2276 ILLINOIS POWER COMPANY 500 South 27 TM Street Decatur, Illinois 62521 PACIFIC GAS AND ELECTRIC COMPANY 77 Beale Street San Francisco, CA 94177 AND ROCHESTER GAS AND ELECTRIC CORPORATION 89 Ease Avenue Rochester, NY 14649 Petitioners,
Vo
98-1358 COPY
CORRECTED
PETITION FOR P~VIEWOE ACTIONS AND FAILURES TO ACT OF THE SECRETAI%Y OF THE DEPARTMENT OF ENERGY, THE DEPARTMENT OF ENERGY AND THE UNITED STATES OF AMERICA
UNITED STATES DEPARTMENT ENERGY i000 Independence Avenue, Washington, DC 20585
OF S.W.
THE HONORABLE ELIZABETH ANNE MOLER ACTING SECRETARY OF ENERGY i000 Independence Avenue, S.W. Washington, DC 20585 AND UNITED STATES OF AMERICA,
Respondents.
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PETITION FOR REVIEW OF ACTIONS AND FAILURES TO ACT OF THE SECRETARY OF THE DEPARTMENT OF ENERGY, THE DEPARTMENT OF ENERGY AND THE UNITED STATES OF AMERICA
Under 21,
42
U.S.C.
§ 10139
and
Fed.
R.
App.
P.
15(a) for
and Review
petitioners and
respectfully Failures of the
submit of 6f
this
Petition
of Actions the
to Act
the
Department and the
of Energy, United Act of 1982
Secretary of
Department the and
Energy Waste
States ("NWPA"
America
under Act."),
Nuclear allege PARTIES
Policy
or "the
as follows:
I. company 42 U.S.C. 2. York, of the Inc.
Petitioners holds spent
are
public fuel
utility as defined
companies. by th$
Each NWPA,
nuclear
§ 10101(23). Petitioner ("Consolidated Point Unit Consolidated Edison") Nos. 1 and New Edison is the Company owner of and New operator
Indian
2 nuclear York.
generating Point Unit in license
stations, No.
located
in
Buchanan, in No.
Indian
1 commenced Indian the
operation Unit
1962
and
ceased its
operation operating commenced nuclear site is of
1974. from
Point
2 received ("AEC") Edison's at the
Atomic in
Energy
Commission
and spent
operation inventory spent fuel fuel
1973.
Consolidated stored current
fuel in 1,077
is currently pools. The or
Indian
Point
aggregate 430
inventory metric tons
assenfolies,
approximately
uranium.
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Consolidated in June 1883
Edison and has
executed paid
its
statutory
contract into the
with
DOE
over
$113,213,450
Nuclear
Waste
Fund. 3. Consumers ("Consumers") Nuclear an Energy Company, owner d/b/a and Consumers Power Big
Company Rock for
is the
operator
of the
Point which
Plant,
located was
in Charlevoix, issued by the of the
Michigan, AEC in 1962.
operating the
license owner near was and
Consumers Nuclear an
is also Plant,
operator Haven, by the
Palisades for which
located license
South
Michigan, AEC of or in spent 1971.
operating
issued
Consumers'
current
aggregate 1,400 fuel
inventory assemblies,
nuclear
fuel 500
is approximately metric contract tons of
approximately its statutory
uranium. DOE in the June
Consumers 1983 and
executed has Fund. is the located license paid
with
approximately
$57,0"00,000 4. the Clinton
into
Nuclear
Waste
Illinois Nuclear for which
Power Power
Company Plant,
owner near was
and
operator
of
Clinton, issued of or in 1987. nuclear
Illinois, Illinois fuel 201 is
an operating aggregate fuel
Power's
current
inventory assemblies, Power
spent
approximately tons into Pacific operator Avila of the
1,124 uranium. Nuclear
approximately paid almost
metric
Illinois Waste
has
$47,000,000 5. owner located and in
Fund. Company Canyon ("PG&E") Nuclear has is the Plant,
Gas of Beach,
& Electric the Diablo
Power two
California,
which
operating
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units, Nuclear
for
which
operating
licenses ("NRC") the Unit owner 3,
were in and
obtained 1981 and
from 1985 of
the
Regulatory PG&E Power for
Commission is also
respectively. Humboldt California, AEC in 1963. and Bay
operator in
the County, by the in in
Plant, an
located license from
Humboldt issued
which
operating retired
was
Unit
3 was
commercial license of from spent
operation the NRC
1983, 1988. fuel
received current
a possession-only aggregate 550 metric
PG&E's is
inventory tons with the of DOE
nuclear PG&E 1983 Fund. is the and
approximately its over statutory
uranium. in April Waste
executed has paid 6. owner located license owner of and
contract into and
$180,000,000 Gas of the County, by the in
Nuclear Corp. Nuclear for which RG&E
Rochester operator
Electric Ginna
("RG&E e) Power
R.P. New AEC the
Plant,
in Wayne was
Yorkr in
an operating is also Unit 2 the
issued
1969. Mile
a 14%
interest by
Nine
Point
facility inventory tons DOE of
operated of spent
NMPC.
RG&E's fuel
current
aggregate 340 contract into $3.4 the fuel metric with the
nuclear RG&E and at is
is approximately its over statutory $50,000,000
uranium. 1983 Fund
executed has paid
in April Waste
Nuclear per
a rate
of approximately to pay into
million fund
year.
RG&E
also
obligated for
approximately prior to 1983.
$83,000,000
spent
nuclear
generated
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7. States
Respondents Department of
are Energy,
the
Secretary the
of
Energy, States.
the
United
and
United
J-~IRISDICTION~I%rD 8. ~ I0139(a) jurisdiction United States to U.S.C. This (i), court which any has jurisdiction for under 42 U.S.Co and the exclusive in has All Writs Act the
provides civil
original under This action
over
action
NWPA also the
courts grant
of appeals. relief in and government this
court
authority Act (28 (28
under
~ 1651(a)) The
Declaratory has waived (i)
Judgment sovereign and
U.S.C.
§ 2201).
immunity
pursuant
to 42 U.S.C. Act
~ i0139(a) (5 U.S.C. court venue States
Administrative 9. ~ i0139(a) under the Venue (2),
Procedure is which in proper
~ 702-706). pursuant of any to 42 U.S.C. proceeding of Appeals for
in this for
provides the
section
10139
United
Court
District i0.
of ColunJ3ia have before
Circuit. standing this in court fact to bring £his they of action have the and
Petitioners parties redressable conduct.
are
proper
because
suffered
injury
as a result
respondents'
NATUIAE ii. failures Policy Petitioners to Act. act In within seek the
OF THE review meaning
ACTION of of respondents' the Nuclear actions Waste' of (4), and
particular, to act
petitioners under
seek
review
respondents'
failure
42 U.S.C.
~ i0222(a)
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requiring under the
the Act, to
Secretary and 42
to U.S.C.
evaluate
and
modify (6),
fees
collected
~ I0222(a) terms nuclear
requiring under services. other in that
Secretary which DOE
establish provide seek
written spent
and fuel
conditions disposal and act
will
Petitioners affirmative accordance respondents' required protected of the to~ by
also relief with
declaratory, DOE's
injunctive, failure to
to remedy
these
sections, to reduce
including the fee of
a declaration are
failure pay the
petitioners property and
deprives
petitioners due
interests clauses
substantive
process
taking seek DOE's
fifth
amendment. and Waste injunctive Fund.
Finally, relief
petitioners to remedy
declaratory the Nuclear
misuse
of
I~EQUII~EI~EIqTS 12. Act. The In 1982,
OF THE I~JCLF~iR enacted was, the
WASTE POLICY ACT Nuclear other Waste things, and and high Policy to
Congress of the for
purpose
NWPA the for and
among
establish operation level
a schedule of
siting, spent to
construction nuclear fuel federal waste and
repositories waste, the
radioactive for
establish of NWPA such
responsibility beginning Waste wast~ Fund and in to
disposal The the
spent
fuel
January ensure fuel be
1998. that in
established of timely with the
a Nuclear disposing of
costs
spent
accordance by the spent
NWPA's responsible for
requirements generating
would such
borne and
persons 42
waste
fuel.
U.S.C.
~ 10131.
6
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13. fuel
The
NWPA no
required later of than
that
DOE
dispose 31,
of
spent and
nuclear
beginning
January at
1998,
thereafter with for the
continue
disposing of the DOE
that and
fuel the
levels and
consistent conditions 42 U.S.C.
requirements disposal that
Act
terms to
was
directed
publish.
~§ 10131(b) 14. ~ i0222(a) of 1 mil used
(i) and i0222(a) 302(a) (2) of the a fee, for NWPA, 42 U.S.C. set spent after in the amount
Section (2), per to
established
initially of on or
kilowatt-hour, generate January (3) the
disposal sold U.S.C.
nuclear the date
fuel 90
electricity 7, 1983. Act, 42
days
after 302(a) that spent date on
~ i0222(a) ~ i0222(a)
(2).
Section required fee to for the
of the
42 U.S.C.
Secretary fuel the 42
establish used for to
a one-time
per-kilogram prior
nuclear which
generate
electricity spent (3). fees NWPA,
fee
prospective ~ i0222(a) and the
nuclear
fuel
became 15.
effective. the
U.S.C. fee
Both the
one-time Waste to
continuing by the for
are which of (4)
paid
into
"Nuclear of funds
Fund"
created costs U.S.C.
is the the and
source
cover
DOE's 42
disposing
utilities' 10222. 16. The
spent
nuclear
fuel.
~§ 10131(b)
Secretary from waste the
of
DOE
is
allowed Fund
to only
make for purposes ~ I0222(d). mandates of
expenditures radioactive 17. that DOE For take
Nuclear
Waste
disposal of
activities. this Petition, actions
42 U.S.C. the NWPA
purposes three
critical
to fulfill
its
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obligations requires against those costs to the the the
under
the
Act.
First,
42 U.S.C. annually whether
~ i0222(a) the fees
(4)
Secretary utilities will
to review and evaluate
levied of
collection
revenues of
provide waste event
revenue disposal
sufficient activities Secretary are an
to recover taken determines pursuant that
radioactive In the
Act.
that
the
either the to
insufficient is
or excess required this
revenues
being
collected, in the fee
Secretary Congress.
to propose section, if the
adjustment
Under
Secretary's does
proposal not reject
automatically the proposal 18. Secretary, spent
becomes within
effective ninety (90)
Congress
days. (5) require~ disposing 1998. of
Second, acting
42 U.S.C. through not
~ i0222(a) con~racts, than
to begin January 31, waste shall
nuclear
fuel
later
Upon fuel, to
acceptance title the to
of the such
high-level or spent
radioactive nuclear fuel
or spent transfer
waste 42
Secretary. 19. Third, the
U.S.C.
~ 10143. §~ 10131(b) establish (I) and i0222(a) for the siting, spent of under
42 U.S.C. to
require
Secretary and for
a schedule
construction nuclear written which fuel
operation disposal, setting
of repositories including forth the the terms
accepting publication and
criteria DOE will
conditions to the
make
disposal
services
available
utilities.
8
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IM~LE~fENTATION 20. procedures collection (hereinafter execution statutory by which of In 1983, DOE
OF THE STATUTORY through contract measures z and to
~.AIMEWOI~K rulemaking administer by the fee-
developed form of
a standard and
program-funding
mandated thereafter
Congress required
"statutory the contract
contract")! by
nuclear the fee
utilities. provisions of Part spent
The and the date
contract DOE by was the to
contained begin See the
disposing i0 C.F.R. nation's of the
nuclear
fuel
required 21. nuclear
Act. one of
961.11. owning spent an See
Every fuel,
utilities
including of
each the
petitioners, contract Waste with
executed DOE.
individual DOE Final
version
statutory of 60 Nuclear Fed.
Interpretation Interpretation"),
Acceptance 21794
Issues (May
("Fina~ 1995). 22. subject issuance plant.
Reg.
21793,
Failure the or
by
a utility to of denial
to
execute
the
contract request
would for power
utility renewal
of any to (A).
subsequent operate Without
a license (I)
a nuclear an
42
U.S.C.
~ I0222(b)
operating
!z This court already has determined that the Standard Contract is to be treated as a regulation. Commonwealth Edison v. United States Dept. of Energy, 877 F.2d 1042, 1045 (D.C. Cir. 1989). Unlike many regulations, however, this regulation contains specific terms mandated by Congress as to which petitioners and DOE had no discretion.
- 9 -
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license, power
no
utility in the
was United
or
is
permitted
to
operate
a nuclear
plant
States.
DOE
FAIL~ TO CO~IPLY W-~TH FUI~DINGREQUIRF/~ENTS Congress only designated candidate
THE
NW~A
23. site in
In
1987,
the site
Yucca for
Mountain
Nevada
as the
a permanent waste and
repository spent
designed fuel. 1993,
to store
high-level
radioactive
nuclear 24. In
various how
utilities it intended
and to
state
agencies its with
requested obligation the that fuel
DOE to
to state dispose 1998
perform
of spent
nuclear Respondents to
fuel
consistent th~ the
statutory they absent 25. The in had an
deadline.
took of
position spent
no legal
obligation
dispose or other
operational and
repository states These imposed fuel
facility. petitions a obligation than not to
utilities this
promptly petitions
filed sought
for
review
court. NWPA spent
declaration on DOE January meet and to
that dispose 1998,
the of
an unconditional beginning that to DOE's the no later
31,
a declaration was contrary
decision and
this
obligation relief.
Act, of
declaratory
injunctive Power
See, dated
e.g., May
Petition 30, 1995,
Indiana (Case No.
Michigan 95-1279). 26.
Company,
at 5-6
The
court
agreed
that on the
the
NWPA
imposed to
an of spent
unconditional nuclear fuel
obligation beginning
Secretary than
dispose 31, 1998.
no later
January
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Indiana 1272,
Michigan 2376-77 of
Powe~
Co.
v. 1996)
Department The court
of
Energy,
88 held
F.3d. that for in nor
(D.C. this
Cir. duty of
further "quid had
repudiation the the
would fees
destroy which rehearing
the
pro
quo"
utilities' NWPA. DOE the In
payment neither Supreme
Congress of that
created
sought Court to
decision
petitioned 27. court, 128
for
further utility
review. petition, of the Energy, the NWPA fuel
response
a further Power 1997), Co.
in Northern 754 (D.C.
States Cir.
v. Department confirmed to dispose a writ their had not to
F.3d
again
that of
imposed beginning
an unconditional January 31,
obligation 1998, from and
spent
issued
of mandamus in disposing constructed storage a
precluding of this
respondents on the
excusing that DOE
delay yet
fuel
ground and F.3d 31,
permanent in the
repository 128
had at 1998, fuel. for
no 761.
authority
provide
interim. On
28. accepting activities consuming Waste
January
respondents Despite more than
failed
to
begin
spent under over
nuclear the NWPA
having
conducted and the a and make by NWPA, Nuclear
20 years, from
$4.5
billion
in
expenditures even much Yucca
Fund,
respondents of site a
failed adequacy, at the to
to complete less
determination operational January 31,
construct
repository Contrary neither
Mountain
location of the nor
1998. have
the
requirements a schedule
respondents
established
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determined will
a date
certain
by
which
a permanent
repository
be operational. 29. Respondents of spent also failed fuel have to propose a plan of for a by which
storage permanent they from
nuclear and begin
pending
completion no
repository, commit General 13, 1997, to
established of that
date fuel.
will DOE
disposing to Michigan
Letter dated to when Waste
Counsel at
Attorney
General, as
January DOE Fund will Fee
1 (acknowledging of spent
uncertainty 1996
begin
disposing an
fuel); at
Nuclear waste
Adequacy: beginning Although its
Assessment,
6 (assuming
disposal 30. the NWPA, contracts, Since paid
in 2010). DOE did not perform its and with nuclear its obligations the their statutory obligations. have under
implementing have
regulations complied other NWPA,
petitioners petitioners, mandated and have the been
1983, the
and by the
utilities,
fees
implementing Specifically, rate of 1 mil
regulations, petitioners per
statutory paying at
contract.
a continuing
kilowatt-hour. 31. On average, $550 In the million addition, of industry each the as year a whole ($8.7 has paid total)
approximately the 1 mil fee.
billion interest
cumulative fee of
generated recent per
by investment contributed billion
unspent
accumulations another $219
has
in
years ($3.5
an average total) to the
million Fund.
year
Nuclear
Waste
- 12 -