42 U.S.C. § 10222

Nuclear Waste Fund

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(a) Contracts(1) In the performance of his functions under this chapter, the Secretary is authorized to enter into contracts with any person who generates or holds title to high-level radioactive waste, or spent nuclear fuel, of domestic origin for the acceptance of title, subsequent transportation, and disposal of such waste or spent fuel. Such contracts shall provide for payment to the Secretary of fees pursuant to paragraphs (2) and (3) sufficient to offset expenditures described in subsection (d).(2) For electricity generated by a civilian nuclear power reactor and sold on or after the date 90 days after January 7, 1983, the fee under paragraph (1) shall be equal to 1.0 mil per kilowatt-hour.(3) For spent nuclear fuel, or solidified high-level radioactive waste derived from spent nuclear fuel, which fuel was used to generate electricity in a civilian nuclear power reactor prior to the application of the fee under paragraph (2) to such reactor, the Secretary shall, not later than 90 days after January 7, 1983, establish a 1 time fee per kilogram of heavy metal in spent nuclear fuel, or in solidified high-level radioactive waste. Such fee shall be in an amount equivalent to an average charge of 1.0 mil per kilowatt-hour for electricity generated by such spent nuclear fuel, or such solidified high-level waste derived therefrom, to be collected from any person delivering such spent nuclear fuel or high-level waste, pursuant to section 10143 of this title, to the Federal Government. Such fee shall be paid to the Treasury of the United States and shall be deposited in the separate fund established by subsection (c).11 See References in Text note below. In paying such a fee, the person delivering spent fuel, or solidified high-level radioactive wastes derived therefrom, to the Federal Government shall have no further financial obligation to the Federal Government for the long-term storage and permanent disposal of such spent fuel, or the solidified high-level radioactive waste derived therefrom.(4) Not later than 180 days after January 7, 1983, the Secretary shall establish procedures for the collection and payment of the fees established by paragraph (2) and paragraph (3). The Secretary shall annually review the amount of the fees established by paragraphs (2) and (3) above to evaluate whether collection of the fee will provide sufficient revenues to offset the costs as defined in subsection (d) herein. In the event the Secretary determines that either insufficient or excess revenues are being collected, in order to recover the costs incurred by the Federal Government that are specified in subsection (d), the Secretary shall propose an adjustment to the fee to insure full cost recovery. The Secretary shall immediately transmit this proposal for such an adjustment to Congress. The adjusted fee proposed by the Secretary shall be effective after a period of 90 days of continuous session have elapsed following the receipt of such transmittal unless during such 90-day period either House of Congress adopts a resolution disapproving the Secretary’s proposed adjustment in accordance with the procedures set forth for congressional review of an energy action under section 6421 of this title.(5) Contracts entered into under this section shall provide that—(A) following commencement of operation of a repository, the Secretary shall take title to the high-level radioactive waste or spent nuclear fuel involved as expeditiously as practicable upon the request of the generator or owner of such waste or spent fuel; and(B) in return for the payment of fees established by this section, the Secretary, beginning not later than January 31, 1998, will dispose of the high-level radioactive waste or spent nuclear fuel involved as provided in this subchapter.¹(6) The Secretary shall establish in writing criteria setting forth the terms and conditions under which such disposal services shall be made available.(b) Advance contracting requirement(1)(A) The Commission shall not issue or renew a license to any person to use a utilization or production facility under the authority of section 2133 or 2134 of this title unless—(i) such person has entered into a contract with the Secretary under this section; or(ii) the Secretary affirms in writing that such person is actively and in good faith negotiating with the Secretary for a contract under this section.(B) The Commission, as it deems necessary or appropriate, may require as a precondition to the issuance or renewal of a license under section 2133 or 2134 of this title that the applicant for such license shall have entered into an agreement with the Secretary for the disposal of high-level radioactive waste and spent nuclear fuel that may result from the use of such license.(2) Except as provided in paragraph (1), no spent nuclear fuel or high-level radioactive waste generated or owned by any person (other than a department of the United States referred to in section 101 or 102 of title 5) may be disposed of by the Secretary in any repository constructed under this chapter unless the generator or owner of such spent fuel or waste has entered into a contract with the Secretary under this section by not later than—(A)June 30, 1983; or(B) the date on which such generator or owner commences generation of, or takes title to, such spent fuel or waste;whichever occurs later.(3) The rights and duties of a party to a contract entered into under this section may be assignable with transfer of title to the spent nuclear fuel or high-level radioactive waste involved.(4) No high-level radioactive waste or spent nuclear fuel generated or owned by any department of the United States referred to in section 101 or 102 of title 5 may be disposed of by the Secretary in any repository constructed under this chapter unless such department transfers to the Secretary, for deposit in the Nuclear Waste Fund, amounts equivalent to the fees that would be paid to the Secretary under the contracts referred to in this section if such waste or spent fuel were generated by any other person.(c) Establishment of Nuclear Waste FundThere hereby is established in the Treasury of the United States a separate fund, to be known as the Nuclear Waste Fund. The Waste Fund shall consist of—(1) all receipts, proceeds, and recoveries realized by the Secretary under subsections (a), (b), and (e), which shall be deposited in the Waste Fund immediately upon their realization;(2) any appropriations made by the Congress to the Waste Fund; and(3) any unexpended balances available on January 7, 1983, for functions or activities necessary or incident to the disposal of civilian high-level radioactive waste or civilian spent nuclear fuel, which shall automatically be transferred to the Waste Fund on such date.(d) Use of Waste FundThe Secretary may make expenditures from the Waste Fund, subject to subsection (e), only for purposes of radioactive waste disposal activities under subchapters I and II, including—(1) the identification, development, licensing, construction, operation, decommissioning, and post-decommissioning maintenance and monitoring of any repository, monitored,22 So in original. The comma probably should not appear. retrievable storage facility 33 So in original. Probably should be followed by a comma. or test and evaluation facility constructed under this chapter;(2) the conducting of nongeneric research, development, and demonstration activities under this chapter;(3) the administrative cost of the radioactive waste disposal program;(4) any costs that may be incurred by the Secretary in connection with the transportation, treating, or packaging of spent nuclear fuel or high-level radioactive waste to be disposed of in a repository, to be stored in a monitored,² retrievable storage site ³ or to be used in a test and evaluation facility;(5) the costs associated with acquisition, design, modification, replacement, operation, and construction of facilities at a repository site, a monitored,² retrievable storage site ³ or a test and evaluation facility site and necessary or incident to such repository, monitored,² retrievable storage facility ³ or test and evaluation facility; and(6) the provision of assistance to States, units of general local government, and Indian tribes under sections 10136, 10138, and 10199 of this title.No amount may be expended by the Secretary under this subchapter ¹ for the construction or expansion of any facility unless such construction or expansion is expressly authorized by this or subsequent legislation. The Secretary hereby is authorized to construct one repository and one test and evaluation facility.(e) Administration of Waste Fund(1) The Secretary of the Treasury shall hold the Waste Fund and, after consultation with the Secretary, annually report to the Congress on the financial condition and operations of the Waste Fund during the preceding fiscal year.(2) The Secretary shall submit the budget of the Waste Fund to the Office of Management and Budget triennially along with the budget of the Department of Energy submitted at such time in accordance with chapter 11 of title 31. The budget of the Waste Fund shall consist of the estimates made by the Secretary of expenditures from the Waste Fund and other relevant financial matters for the succeeding 3 fiscal years, and shall be included in the Budget of the United States Government. The Secretary may make expenditures from the Waste Fund, subject to appropriations which shall remain available until expended. Appropriations shall be subject to triennial authorization.(3) If the Secretary determines that the Waste Fund contains at any time amounts in excess of current needs, the Secretary may request the Secretary of the Treasury to invest such amounts, or any portion of such amounts as the Secretary determines to be appropriate, in obligations of the United States—(A) having maturities determined by the Secretary of the Treasury to be appropriate to the needs of the Waste Fund; and(B) bearing interest at rates determined to be appropriate by the Secretary of the Treasury, taking into consideration the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the maturities of such investments, except that the interest rate on such investments shall not exceed the average interest rate applicable to existing borrowings.(4) Receipts, proceeds, and recoveries realized by the Secretary under this section, and expenditures of amounts from the Waste Fund, shall be exempt from annual apportionment under the provisions of subchapter II of chapter 15 of title 31.(5) If at any time the moneys available in the Waste Fund are insufficient to enable the Secretary to discharge his responsibilities under this subchapter,¹ the Secretary shall issue to the Secretary of the Treasury obligations in such forms and denominations, bearing such maturities, and subject to such terms and conditions as may be agreed to by the Secretary and the Secretary of the Treasury. The total of such obligations shall not exceed amounts provided in appropriation Acts. Redemption of such obligations shall be made by the Secretary from moneys available in the Waste Fund. Such obligations shall bear interest at a rate determined by the Secretary of the Treasury, which shall be not less than a rate determined by taking into consideration the average market yield on outstanding marketable obligations of the United States of comparable maturities during the month preceding the issuance of the obligations under this paragraph. The Secretary of the Treasury shall purchase any issued obligations, and for such purpose the Secretary of the Treasury is authorized to use as a public debt transaction the proceeds from the sale of any securities issued under chapter 31 of title 31, and the purposes for which securities may be issued under such Act ¹ are extended to include any purchase of such obligations. The Secretary of the Treasury may at any time sell any of the obligations acquired by him under this paragraph. All redemptions, purchases, and sales by the Secretary of the Treasury of obligations under this paragraph shall be treated as public debt transactions of the United States.(6) Any appropriations made available to the Waste Fund for any purpose described in subsection (d) shall be repaid into the general fund of the Treasury, together with interest from the date of availability of the appropriations until the date of repayment. Such interest shall be paid on the cumulative amount of appropriations available to the Waste Fund, less the average undisbursed cash balance in the Waste Fund account during the fiscal year involved. The rate of such interest shall be determined by the Secretary of the Treasury taking into consideration the average market yield during the month preceding each fiscal year on outstanding marketable obligations of the United States of comparable maturity. Interest payments may be deferred with the approval of the Secretary of the Treasury, but any interest payments so deferred shall themselves bear interest.(Pub. L. 97–425, title III, § 302, Jan. 7, 1983, 96 Stat. 2257.)Editorial NotesReferences in Text

Subsection (c), referred to in subsec. (a)(3), was in the original “subsection (c) 126(b)” and was translated as subsection (c) as the probable intent of Congress in view of the establishment of the Nuclear Waste Fund by subsec. (c) of this section and the absence of a section 126 in Pub. L. 97–425.

This subchapter, referred to in subsecs. (a)(5)(B), (d), and (e)(5), was in the original “this subtitle”, and was translated as this subchapter to reflect the probable intent of Congress because title III of Pub. L. 97–425, which enacted this subchapter, does not contain subtitles.

Such Act, referred to in subsec. (e)(5), probably means chapter 31 of Title 31, Money and Finance.

Statutory Notes and Related SubsidiariesTermination of Reporting Requirements

For termination, effective May 15, 2000, of provisions in subsec. (e)(1) of this section relating to annual report to Congress, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 4th item on page 143 of House Document No. 103–7.

Notes of Decisions

Cited in 118 cases (4 in the last 5 years), 1984–2025 · leading case: Alabama Power Co. v. United States Dep't of Energy, 307 F.3d 1300 (11th Cir. 2002).

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Alabama Power Co. v. United States Dep't of Energy, 307 F.3d 1300 (11th Cir. 2002). · cites it 14× “” 42 U.S.C. § 10222 (a)(5)(B). It failed to do so.”

Dominion Resources, Inc. v. United States, 641 F.3d 1359 (Fed. Cir. 2011). · cites it 12× “Because the Nuclear Waste Policy Act (NWPA), 42 U.S.C. § 10222 , allows such assignments, we affirm the court's holding on this issue.”

Pac. Gas & Elec. Co. v. United States, 73 Fed. Cl. 333 (Fed. Cl. 2006). · cites it 9× “” 42 U.S.C. § 10222 (a)(5)(A). In order to accomplish the goals of the nuclear waste disposal program, the NWPA authorized the Secretary of Energy “to enter into contracts with any person who generates or holds title to [HLW], or [SNF], of domestic origin for the acceptance of…”

Boston Edison Co. v. States, 64 Fed. Cl. 167 (Fed. Cl. 2005). · cites it 7× “The sales contract included an assignment of the Standard Contract for disposal of SNF and HLW, as authorized by Section 302 of the NWPA, as amended, 42 U.S.C. § 10222 . 1 As the parties have construed the assignment, it permitted Boston Edison to retain claims for damages…”

Sys. Fuels, Inc. v. United States, 79 Fed. Cl. 37 (Fed. Cl. 2007). · cites it 8× “at 165 (citing 42 U.S.C. § 10222 (a)(1)). The NWPA provides that contracts were to be entered requiring the contracting utilities to pay a one-time fee for the electricity generated and sold prior to April 7, 1983, and a continuing fee based on the amount of electricity…”

Commonwealth Edison Co. v. United States, 56 Fed. Cl. 652 (Fed. Cl. 2003). · cites it 6× “See 42 U.S.C. § 10222 (a)(1). The NWPA required that all contracts “shall provide that” the Department will dispose of the waste “beginning not later than January 31, 1998,” id.”

Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed. Cir. 2005). · cites it 3× “7, 1983) (codified at 42 U.S.C. § 10222 (2000)), Congress directed DOE to “enter into [Standard Contracts with all entities that] generate[ ] or hold[] title to high-level radioactive waste, or spent nuclear fuel, of domestic origin for the acceptance of title, subsequent…”

Boston Edison Co. v. United States, 80 Fed. Cl. 468 (Fed. Cl. 2008). · cites it 11× “7, 1983) (codified as amended at 42 U.S.C. § 10222 ). Under the NWPA and the Standard Contract, DOE was to begin collecting SNF no later than January 31, 1998.”

Tennessee Valley Auth. v. United States, 60 Fed. Cl. 665 (Fed. Cl. 2004). · cites it 6× “7, 1983) (codified at 42 U.S.C. § 10222 ), authorizing DOE “to enter into contracts with any person who generates or holds title to high-level radioactive waste [‘HLW’], or spent nuclear fuel, of domestic origin for the acceptance of title, subsequent transportation, and…”

Sacramento Mun. Util. Dist. v. United States, 70 Fed. Cl. 332 (Fed. Cl. 2006). · cites it 5× “See 42 U.S.C. § 10222 (b)(2) (“No [SNF or HLW] may be disposed of by the Secretary .”

Wisconsin Elec. Power Co. v. United States, 90 Fed. Cl. 714 (Fed. Cl. 2009). · cites it 6× “42 U.S.C. § 10222 (b). 4 Ind. *725 Mich. II, 422 F.”

Yankee Atomic Elec. Co. v. United States, 73 Fed. Cl. 249 (Fed. Cl. 2006). · cites it 5× “2005) (citing 42 U.S.C. § 10222 (a)(1)); Maine Yankee, 225 F.”

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— 42 U.S.C. § 10222(a)(1) — 1 case

Nat'l Ass'n of Regulatory Util. Commissioners v. U.S. Dep't of Energy, 851 F.2d 1424 (D.C. Cir. 1988).

— 42 U.S.C. § 10222(a)(5) — 1 case

Entergy Nuclear Generation Co. v. States, 64 Fed. Cl. 336 (Fed. Cl. 2005).

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