That's how fast the money pours in to the nation's Nuclear Waste Disposal Fund, one mill at a time. And the money is attracting attention, especially during this election year, with Congress running out of time before its planned August recess.

"Today has been extremely rich in terms of rumors," said Mike McCarthy, administrator of the Nuclear Waste Strategy Coalition, when I talked with him on June 28.

"The leadership in the House and Senate have met. People seem to be adjusting their schedules. We understand that Senate Majority Leader Trent Lott (R-MS) would prefer to move forward during the window of July 12-16."

And then again, nothing may happen.

Budget Manipulation

Nuclear waste is everybody's headache, from Hazel O'Leary to Homer Simpson. Of course, utilities with nuclear plants have no choice. The 1992 Nuclear Waste Policy Act forces them to sign contracts with the Department of Energy (DOE) and makes their nuclear operating licenses conditional upon contributions paid in to the Fund. However, DOE's Office of Civilian Radioactive Waste Management must identify, evaluate, construct, and operate a permanent repository for nuclear waste, designated at Yucca Mountain, NV, by a 1987 congressional amendment.

But in May 1994 DOE suffered a change of heart. It sheepishly asked for comments on whether it need comply with the law. The other shoe dropped a year later when DOE abandoned its obligation to accept spent nuclear fuel and said it wouldn't even provide interim storage. (60 Fed. Reg. 21793, May 3, 1995).

In June 1994 some 20 state agencies filed suit in the U. S. Court of Appeals for the District of Columbia Circuit to force DOE to put its nose to the grindstone. Later joined by some 39 state agencies, 8 municipal utilities, 25 investor-owned electrics, and 20 states, the suit asks the court to reverse DOE's May 1995 ruling: To declare that section 302(a)(5) of the 1982 act imposes a duty on DOE to begin accepting waste for permanent storage beginning January 1, 1998, and to preserve for their intended purpose all fees paid in and to be paid into the fund by the utilities under their DOE contracts (Michigan v. DOE, No. 95-1321; Indiana-Mich. Pwr. Co. v. DOE, No. 95-1279; Pub. Serv. Elec. & Gas Co. v. DOE, No. 95-1463.)

In Congress, two remedial bills have worked their way through committee to the House and Senate floors (H.R. 1020; S. 1271) to instruct the Secretary of Energy to get with the program (em to develop and operate a permanent waste repository. But Congress remains torn on the issue. For the current fiscal year, Congress has earmarked only about 28 percent of some $600 million in fund contributions for waste-related activities. It siphons off the rest to make the budget deficit look smaller than it is. So although it wants to slap DOE's hand for wrongfully taking money from utilities and ratepayers, the fund comes in handy in an election year, as a budget manipulation tool.

Last year, the Virginia State Corporation Commission opened an investigation on whether to disallow rate recovery for money that electric utilities pay in to the fund, given what it called DOE's "continuing delays and lack of progress." It continued: "The DOE's failure to resolve the spent nuclear fuel issue is a threat to Virginia." (Re Investigation of Spent Nuclear Fuel Disposal, Case No. PUE950060, July 18, 1995 [Va.SCC].)

A Public Discussion

A few weeks ago on June 12, the Minnesota Department of Public Service (DPS) became the first state agency to challenge the DOE on the record. It issued a formal recommendation that the state public utilities commission (PUC) should allow Northern States Power Co. to withhold payments into the waste fund and direct them instead to an escrow account for nuclear waste and disposal.

Janet Gonzalez, speaking for the DPS, said the Minnesota PUC would solicit comments and then reply comments (due July 13, and August 21) on the DPS recommendation, and would schedule a hearing "sometime after September 1" and "most likely late fall."

DOE told me it would issue no official comment and will wait to see what the Minnesota PUC does.

I also talked with Gary Johnson, vice president and general counsel at Northern States Power. "We share the frustration (em the outrage (em that the DPS expresses, in that our customer's money has not been fully utilized for its intended purpose."

Although it might appear as a victory for utilities, an endorsement of the DPS recommendation by the Minnesota PUC would place utilities at risk of having their nuclear operating licenses by the Nuclear Regulatory Commission, presumably acting on a request from DOE.

"That threat has been articulated to us in the past by the DOE," said Johnson. "But we are optimistic on the outcome of the lawsuit against DOE. Oral argument was held the first week in January and, based on the comments of the Judges at the hearing, we are confident that the court will rule that DOE must begin accepting waste in 1998.

"Who knows, we may get sued by DOE for breach of contract, giving us the opportunity for a public discussion of what our customers have gotten for the millions of dollars they've paid."

At press time, a ruling was expected shortly on the federal court suit. "A reasonably knowledgeable source tells me it could come 'at any time,'" said McCarthy. "The Coalition is in a state of expected readiness."

Editor

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