Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 1 of 16

ATTACHMENTS

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 2 of 16

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

Document 209-3

Filed 10/26/2004

Page 3 of 16

ATTACHMENT

1

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 4 of 16

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)

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 5 of 16

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.

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 6 of 16

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.

- 2 -

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 7 of 16

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

- 3 -

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 8 of 16

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

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 9 of 16

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)

- 5 -

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 10 of 16

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

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 11 of 16

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

- 7 -

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 12 of 16

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

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 13 of 16

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 -

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 14 of 16

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

- 10 -

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 15 of 16

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

- Ii -

Case 1:99-cv-00447-CFL

Document 209-3

Filed 10/26/2004

Page 16 of 16

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 -