Monday, January 26, 2004
Copyright © Las Vegas Review-Journal

YUCCA MOUNTAIN: Nuclear waste lawsuits grow

Utilities want Energy Department to pay for missing deadline for repository

"The vast majority are going to seize on this as a reason to expedite Yucca Mountain when we know it is unsafe." REP. SHELLEY BERKLEY, D-NEV.

WASHINGTON -- The Energy Department is facing a new wave of lawsuits that could cost taxpayers billions of dollars because DOE missed a 1998 deadline to have a nuclear waste repository up and running in Nevada.

While the Yucca Mountain Project has been the subject of high-profile fights in Congress and within the judicial system in the past two years, dozens of legal claims by nuclear power utilities against DOE have been following a quieter path through the courts.

That could change in coming months if judges begin ordering payment of multimillion-dollar awards to the nuclear power industry, attorneys said.

"An entire industry is engaged in some high-stakes litigation with the federal government. I would hope this would get somebody's attention," said Jerry Stouck, a lawyer who has filed lawsuits on behalf of the Yankee power companies in New England, among others.

Utility companies are rushing to the U.S. Court of Federal Claims before Jan. 31, a statute of limitations deadline.

The date is six years after DOE breached long-standing contracts with utilities by failing to take ownership of thousands of tons of their nuclear waste by Jan. 31, 1998, according to court rulings.

Thirty-one lawsuits were pending at the end of 2003. Another 16 were filed this month, and more are expected before the deadline.

As many as 50 or more may be docketed before the end of the month, attorneys said.

"The reality is that every single utility will be filing a lawsuit," Stouck said.

Most of the lawsuits do not specify damages. Industry officials said they could amount to between $38 billion and $61 billion.

A Department of Energy lawyer said those estimates are overstated by many billions.

Bob Loux, executive director of the Nevada Agency for Nuclear Projects, said the prospect of heavy financial damages illustrates the pressure the Energy Department is under to get a repository opened at Yucca Mountain, 100 miles northwest of Las Vegas.

"Certainly these suits have bearing on the schedule that the Department of Energy is trying to implement with this program," Loux said.

DOE "is clearly getting whipped by the utilities and through them by Congress to hurry this thing up at the expense of doing a good job," Loux said. "They are the ones driving the show."

The lawsuits keep the Yucca program moving forward, said Jay Silberg, an attorney involved in the lead case against the Energy Department.

Silberg said utilities ultimately want to get rid of their nuclear waste. About 40,000 tons of radioactive material has been generated by plants in 34 states.

"I honestly believe these lawsuits have kept the pressure on DOE and Congress and the administration," Silberg said. "There are limits on how fast anything can move; but left to their own devices programs will slow, and we don't want that to happen."

Rep. Shelley Berkley, D-Nev., predicted legal judgments against DOE will provide pro-nuclear lawmakers with ammunition to speed the Yucca project.

"The vast majority are going to seize on this as a reason to expedite Yucca Mountain when we know it is unsafe," Berkley said. "It will give them further evidence to move forward with what is an insane idea."

In 2000, President Clinton vetoed a bill that called for nuclear waste deliveries to Nevada before a repository is built.

A similar effort last year in the U.S. House was killed by Reps. Jim Gibbons and Jon Porter, both R-Nev.

"These lawsuits won't help speed up the project, because I believe Yucca Mountain will never open," Sen. Harry Reid, D-Nev., said in a statement "The lawsuits are distracting the nuclear power industry from what they should be doing, which is looking seriously now at dry cask storage and asking the government for help with the costs."

The legal problem found its roots 20 years ago in the government's effort to find permanent disposal of commercial spent fuel and its own high level waste from nuclear bomb manufacturing.

In 1983, the Energy Department signed contracts with 68 utilities and seven other commercial nuclear waste owners. DOE would begin taking their waste by Jan. 31, 1998, and store it at a permanent repository or a monitored temporary facility.

In return, utilities would pay into a waste fund a one-time fee for spent fuel generated before 1983 and ongoing fees based on electricity sold.

The fund, earmarked to pay for waste disposal, has generated more than $17 billion.

The 1998 deadline came and went.

The Energy Department now says it expects to have a repository open in 2010, a timeline viewed by some scientists and government officials as overly optimistic.

"We sue the government because it has broken its promises," John W. Rowe, then-chairman of the Unicom Corp., and Commonwealth Edison, said at a 1999 Senate hearing.

A 2000 merger made Rowe chief executive of Exelon Corp., the largest nuclear utility.

The U.S. Circuit Court of Appeals ruled in August 2000 that DOE was liable for missing the 1998 contract deadline and could be sued for damages.

Judges in the Court of Federal Claims will decide damage amounts, based on arguments that involve the amount of waste each utility holds, when they expected the government to take ownership of it and the rate at which the Energy Department was expected to begin moving it to a repository.

The first trial begins March 1 in a case brought by Indiana Michigan Power Co. for its Donald C. Cook plant in Michigan.

Among major claims, utilities want repayments for what they are spending to keep nuclear waste stored on-site in dry casks, some at plants that have been closed, or by re-racking spent fuel assemblies to create more space in deep water cooling pools.

They also claim added costs to upgrade security following the Sept. 11, 2001, terrorist attacks.

Several lawsuits in the past week were filed by companies that have sold interests in power plants. They charge their sales prices were devalued because of uncertainty over nuclear waste.

DOE spokesman Joe Davis maintained the cases have little bearing on DOE's management of the Yucca project.

"I don't think the lawsuits play into our motivation at all," Davis said. "The department has been charged with finding a way to take care of nuclear waste, whether it comes from commercial fuel, government waste streams or research reactors. It's bigger than just the commercial reactors and that's been our major motivation."

Stouck said the government's liability grows with every day of delay. He predicted the cases will wind on for another five to 10 years.

"Money is not the only thing the utilities want," Stouck said. "They want to get rid of their spent fuel."