Nuclear Energy Institute opposes Texas’ request for restitution from Nuclear Waste Fund

The Nuclear Energy Institute (NEI) recently filed a brief in the U.S. Court of Appeals for the 5th Circuit opposing a lawsuit by the state of Texas that requests “restitution and disgorgement” payment from the Nuclear Waste Fund.

Texas’ March 2017 lawsuit challenges the failure of the U.S. Department of Energy (DOE) and the U.S. Nuclear Regulatory Commission (NRC) to complete licensing of the Yucca Mountain used fuel repository.

“The Nuclear Waste Fund is needed to pay for the used fuel management program and, therefore, restitution and disgorgement would be counterproductive and would potentially result in new costs being imposed on generators and their customers,” NEI Vice President, General Counsel and Secretary Ellen Ginsberg said.

Returning money from the fund to Texas would violate the Nuclear Waste Policy Act (NWPA), NEI said. Restitution and disgorgement of the Nuclear Waste Fund would result in a total breach of the standard contract established under the NWPA. This breach would effectively cancel the federal government’s duty to dispose of used nuclear fuel, the agency explained.

NEI also notes that the state of Texas is not a party to the standard contract and has not paid any fees into the Nuclear Waste Fund.

Federal courts have said parties could only file damage claims under partial breach of the standard contract, saying that a total breach is “foreclosed by statute.”