The Pennsylvania Supreme Court has upheld a Pennsylvania Public Utility Commission (PUC) ruling permitting Metropolitan Edison Co. to charge current ratepayers approximately $8.3 million a year for a portion of the cost of decommissioning the disabled Three Mile Island Unit 2 (TMI 2) nuclear generating plant. A lower court found the cost recovery improper because the plant was not and would not be "used and useful" in providing service to customers (see Irwin A. Popowsky v. Penn. PUC, 642 A.2d 648, 153 PUR4th 244 (Pa.Commw.Ct. 1994)).The state supreme court found Edison obligated under federal law to decommission the plant as soon as the fuel was loaded, an event that occurred well before the accident. That duty would exist even if the accident had never occurred, the court said. According to the supreme court, the lower court erred in
relying on a provision of the state public utility code that permitted utility recovery of construction or facility expansion costs only where the facility was used and useful in providing service: "Plainly, costs of decommissioning a nuclear reactor are not costs of constructing or expanding such a facility." The supreme court further noted that the law did not apply to costs associated with removing a plant from service. It said the PUC acted within its discretion when it balanced the interests of ratepayers and shareholders, and concluded that Edison should not be permitted to earn a return on its TMI 2 investment from ratepayers, but that ratepayers should bear the cost of complying with federal regulations governing removal of radioactive contamination. Irwin A. Popowsky v. Penn. PUC, No. 119 M.D. 1994, Sept. 19, 1995 (Pa.Supr.Ct.).