Butte Cnty. v. United States

• Decision Date: 19 January 2021
• Docket Number: No. 19-cv-00800,19-cv-00800
• Parties: BUTTE COUNTY, IDAHO, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

BUTTE COUNTY, IDAHO, Plaintiff, v. THE UNITED STATES, Defendant.

No. 19-cv-00800

United States Court of Federal Claims

January 19, 2021

Steve L. Stephens, Stephens Law Office PLLC, Arco, Idaho, for Plaintiff.

Daniel B. Volk, United States Department of Justice, Washington, D.C. for Defendant. With him on the briefs are Joseph H. Hunt, Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, Lisa L. Donahue, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Bettina Mumme, of counsel, United States Department of Energy, Washington, D.C.

MEMORANDUM AND ORDER

This case involves a claim for impact assistance payments associated with storage of spent nuclear fuel. Butte County, Idaho, alleges that the U.S. Department of Energy (DOE) violated the Nuclear Waste Policy Act of 1982 (NWPA or the Act), Pub. L. No. 97-425, 96 Stat. 2201 (codified as amended at 42 U.S.C. §§ 10101-10270), by failing to pay Butte County impact assistance payments associated with Federal interim storage of spent nuclear fuel at Idaho National Laboratory (INL). See Amended Complaint ¶¶ 1-2, 15 (ECF No. 8) (Am. Compl.). Specifically, Butte County alleges that a contract to provide interim storage for spent nuclear fuel from Three Mile Island did not comply with requirements for interim storage of spent nuclear fuel as provided for in Title I, Part B of the NWPA, 42 U.S.C. §§ 10151-10157 (Part B). Am. Compl. ¶¶ 38-41. Additionally, Butte County asserts that DOE failed to comply with Part B with regard to providing storage for spent nuclear fuel from the U.S. Navy by failing to deposit funds into the Interim Storage Fund in violation of 42 U.S.C. § 10156(b). Am. Compl. ¶¶ 55, 64-65. As relief, Plaintiff seeks an amount equal to portions of unpaid fees that it alleges DOE would have collected if DOE had abided by the interim storage requirements detailed in Part B of the NWPA. Am. Compl. ¶ 1. In its prayer for relief, Butte County seeks annual impact assistance payments as follows: $3,607,183 for 2013; $3,622,183 for 2014; $3,640,183 for 2015; $3,656,683 for 2016; $3,689,683 for 2017; and $3,694,183 for 2018. Am. Compl. at 25.

Defendant United States moves to dismiss Plaintiff's Amended Complaint pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (Rule(s)) for lack of subject-matter jurisdiction, or alternatively pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Defendant's Motion to Dismiss at 1 (ECF No. 11) (Def. Mot.); Defendant's Response in Opposition to Plaintiff's Motion for Summary Judgment and Reply in Support of Dismissal at 1 (ECF No. 15) (Def. Resp.).

On October 15, 2019, Plaintiff filed a cross motion for summary judgment, reiterating its position that Plaintiffs are entitled to impact assistance payments despite the Federal Government's failure to abide by the interim storage requirements detailed in Part B. See Butte County's Opposition to Defendant's Motion to Dismiss and Cross Motion (First) for Summary Judgment and Memorandum Support (ECF No. 12) (Pl. Resp. & Cross-Mot.) at 2, 39; Butte County's Reply in Support of Motion (First) for Summary Judgment (ECF No. 16) (Pl. Reply) at 16-20.

On February 27, 2020, this case was transferred to the undersigned judge pursuant to Rule 40.1(c), and this Court held oral argument on June 10, 2020. See February 27, 2020 Order (ECF No. 17); Tr. of June 10, 2020 Oral Argument (ECF No. 21). This Court has considered each ofthe parties' filings and arguments in ruling on the parties' motions. For the reasons set forth below, Defendant's Motion to Dismiss pursuant to Rule 12(b)(1) is GRANTED and Plaintiff's Cross Motion for Summary Judgment is DENIED.

BACKGROUND

I. Statutory Scheme for Federal Interim Storage of Spent Nuclear Fuel

The NWPA, enacted in January 1983, provides a framework for the storage and disposal of radioactive waste such as spent nuclear fuel (SNF) generated by nuclear power plants. See 42 U.S.C. § 10131; PSEG Nuclear, L.L.C. v. United States, 465 F.3d 1343, 1344 (Fed. Cir. 2006). Title I, Part B of the NWPA (Part B) addresses interim storage of commercial SNF. 42 U.S.C. §§ 10151-10157. Under Part B, owners and operators of commercial nuclear power reactors have "the primary responsibility for providing interim storage of spent nuclear fuel from such reactors, by maximizing, to the extent practical, the effective use of existing storage facilities at the site of each civilian nuclear power reactor, and by adding new onsite storage capacity in a timely manner where practical." Id. § 10151(a)(1). Nonetheless, Congress sought to "prevent disruptions in the orderly operation of any civilian nuclear power reactor that [could not] reasonably provide adequate spent nuclear fuel storage capacity at the site of such reactor . . ." by providing for a limited capacity for Federal "interim storage." Id. § 10151(b)(2).

"[T]he interim storage provisions of the Nuclear Waste Policy Act are not comprehensive regulations governing all federal storage of nuclear waste, but remedial legislation addressed to a specific problem. Congress recognized that federal facilities could provide interim storage for a limited quantity of the spent fuel left unaccounted for by the collapse of the reprocessing industry." State of Idaho v. U.S. Dep't of Energy, 945 F.2d 295, 298-99 (9th Cir. 1991), as amended on denial of reh'g (Dec. 13, 1991). "The Act's restrictive language limits the requirements to the specific setof remedial storage agreements authorized by the Act itself. Spent nuclear fuel accounted for by pre-existing agreement was not part of the pool of radioactive material for which there was no available storage and for which interim storage was necessary to ensure continued operations." Id. at 299. "Each of the Act's various requirements concerning interim storage are specifically limited to contracts entered into pursuant to section 10155(a)(1)(A)." Id.

Specifically, the Department of Energy "shall offer to enter into, and may enter into, contracts under section 10156(a) . . ." only if the Nuclear Regulatory Commission (NRC or Commission) makes certain determinations. 42 U.S.C. § 10155(b)(1). Under a section 10156(a) contract, "the Federal Government will (1) take title at the civilian nuclear power reactor site, to such amounts of spent nuclear fuel from the civilian nuclear power reactor as the Commission determines cannot be stored onsite, (2) transport the spent nuclear fuel to a federally owned and operated interim away-from-reactor storage facility, and (3) store such fuel in the facility pending further processing, storage, or disposal." Id. § 10156(a). In exchange for these services, the generator of the SNF must pay DOE the pro rata cost of storage and related activities. Id. § 10156(a)(3). The funds received from these contracts are to be deposited in an "interim storage fund." Id. § 10156(c). Additionally, if the Federal Government also put its own fuel into a storage facility being used for interim storage under Part B, then the Federal Government would have to "deposit in the Interim Storage Fund, amounts equivalent to the fees that would be paid to the Secretary [of Energy] under the contracts referred to in this section if such spent nuclear fuel were generated by any other person." Id. § 10156(b). The interim storage fund can be used to make "impact assistance payments" to the appropriate state and local government "in order to mitigate social or economic impacts occasioned by the establishment and subsequent operation of any interim storage capacity within the jurisdicational [sic] boundaries of such government orgovernments . . . ." Id. § 10156(d), (e)(1). However, impact assistance payments are to "be made available solely from the fees determined under subsection (a)." Id. § 10156(e)(4). Crucially, DOE was only authorized to contract for such interim storage for the period between January 7, 1983 and January 1, 1990. Id. § 10156(a)(1).

II. Idaho National Laboratory Storage of Spent Nuclear Fuel

The Idaho National Laboratory (INL) is one of several major Department of Energy installations across the United States and is, in part, located within Butte County, Idaho. Am. Compl. ¶ 18. At the present, the Department of Energy and Butte County share overlapping and concurrent jurisdiction over the portions of the Idaho National Laboratory inside the boundaries of Butte County. Id. ¶ 21. In 1949, federally owned lands were utilized in Butte County for Atomic Energy Act activities at an installation known as the National Reactor Testing Station inside what is now the Idaho National Laboratory. Id. ¶ 18. Beginning in 1957, SNF from naval reactors, particularly those used in nuclear-powered naval vessels, has been routinely transported to the INL. See Dep't of Energy Programmatic SNF Mgmt. & Idaho Nat'l Eng'g Lab. Envtl. Restoration & Waste Mgmt. Programs Final Envtl. Impact Statement, DOE/EIS-0203-F, Vol. 1, at 7 (Apr. 1995), https://www.energy.gov/nepa/downloads/eis-0203-programmatic-final-environmental-impact-statement. DOE also has provided and continues to provide interim storage capacity for spent nuclear fuel for the United States Navy at the INL in Butte County. Am. Compl. ¶ 53; see also Tr. of June 10, 2020 Oral Argument at 5:13-22.

On March 28, 1979, the "Three Mile Island" nuclear power plant located in Pennsylvania experienced partial melting of the fuel rods in one of its two reactors referred to as the TMI-2 reactor. Am. Compl. ¶ 22. In March 1980, DOE entered into a coordination agreement withGeneral Public Utilities Company (GPU), the owner of TMI-2, along with the Nuclear Regulatory Commission (NRC) and the Electric Power Research Institute (EPRI). Pl. Resp. & Cross-Mot. Appendix App. Part I (ECF No. 12-1) at A26 (R. C. Schmitt et al., DOE/ID-10400, Historical Summary...