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GE URANIUM MGMT. CORP. v. UNITED STATES DOE

April 5, 1984

GENERAL ELECTRIC URANIUM MANAGEMENT CORPORATION, Plaintiff,
v.
UNITED STATES DEPARTMENT OF ENERGY, et al., Defendants



The opinion of the court was delivered by: RICHEY

 Before the court are defendants' motion to dismiss for lack of jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted; and plaintiff's motion for summary judgment. On March 30, 1984, the court issued its judgment and order, concluding that it had jurisdiction over plaintiff's suit and granting defendants' motion to dismiss for failure to state a claim upon which relief can be granted. The court writes now to explain those conclusions.

 General Electric Uranium Management Corporation ("GEUMCO") is seeking to set aside the fee imposed by defendants for the disposition of its spent nuclear fuel ("SNF") under the Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10101, et seq. ("the Waste Act"). That legislation created a comprehensive program for disposing of SNF and high-level radioactive waste, including the establishment of waste repository facilities under federal auspices. It also authorized the Department of Energy ("DOE") to contract with private owners and generators of SNF for disposal services. 42 U.S.C. § 10222(a)(1). GEUMCO objects to DOE's final rule establishing the one-time fee to be incorporated in DOE's standard contract, 48 Fed. Reg. 16590-16608 (April 18, 1983), claiming that it is arbitrary, capricious, and contrary to law because it exceeds the congressionally prescribed fee. For the reasons set forth below, the court finds that it has jurisdiction to hear this case, that plaintiff's objection is without merit, and that defendants are entitled to dismissal under Federal Rule of Civil Procedure 12(b) for failure to state a claim upon which relief can be granted.

 TECHNICAL AND STATUTORY BACKGROUND

 Section 302 of the Waste Act provides for the creation of a "Nuclear Waste Fund" to finance disposal operations. 42 U.S.C. § 10222. Owners and generators of SNF may contract with DOE for acceptance of title, subsequent transportation, and disposal. § 10222(a)(1). The fee to be imposed for DOE's services depends on when the fuel was used to generate electricity. For SNF used to generate electricity after April 7, 1983, *fn1" "the fee under paragraph (1) shall be equal to 1.0 mil per kilowatt-hour." § 302(a)(2). This is referred to as the "ongoing fee." In contrast, for SNF used to generate electricity before April 7, 1983, § 302(a)(3) provides that:

 
"the Secretary shall . . . 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 . . . to be collected from any person delivering such spent nuclear fuel."

 42 U.S.C. §§ 10222(a)(2) and (a)(3).

 It is the interpretation of this second fee provision, referred to as the "one-time fee," that is the focus of this litigation, since the parties agree on all material facts. All of the SNF held by GEUMCO was used to generate electricity before April 7, 1983, and so falls under § 302(a)(3). In addition, it is all "low-burnup fuel," because it was removed from a nuclear reactor before substantial quantities of fuel had been burned. *fn2" In contrast, "high-burnup fuel" has had greater amounts of fuel "burned" and will have generated more electricity per kilogram of mass than low-burnup fuel. GEUMCO contends that defendants must adopt a fee of one mill *fn3" per kilowatt-hour for the electricity generated by its low-burnup fuel. Instead, DOE's rule created four tiers of SNF, varying by degrees of burnup, and established different fees for each tier, which average one mill per kilowatt-hour. The difference to plaintiff between these two methods is substantial: under its view, GEUMCO would owe about four million dollars (Judson affidavit para. 9), while under DOE's formula it owes over twelve million dollars (Judson affidavit para. 8).

 Upon examination of the language and legislative history of § 302(a) of the Waste Act, the court finds that DOE's rule is consistent with the statutory mandate and is a reasonable exercise of its discretion.

 JURISDICTION OVER PLAINTIFF'S CHALLENGE TO THE ONE-TIME FEE UNDER § 302 LIES IN THE DISTRICT COURT

 Defendants mistakenly contend that jurisdiction over this case lies exclusively with the court of appeals. Although the Waste Act is silent on judicial review of agency action pursuant to § 302, plaintiff relies on this court's federal question jurisdiction, 28 U.S.C. § 1331, and the Administrative Procedure Act, 5 U.S.C. § 702. Defendants assert that a specific limited jurisdiction provision in the Waste Act serves to restrict all judicial review under the Act to the courts of appeals. Section 119(a)(1)(A) provides that:

 
Except for review in the Supreme Court of the United States, the United States Courts of Appeals shall have original and exclusive jurisdiction over any civil action --
 
[A] for review of any final decision or action of the Secretary, the President, or the ...

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