In a memorandum opinion released April 29, Court of Federal Claims Judge Susan Braden writes that DOE’s 1983 contract with the Sacramento Municipal Utility District to take responsibility of the waste produced by the Rancho Seco nuclear power station should be rescinded. She proposes granting a $40-million refund to the customer-owned California utility to cover the cost of building a storage facility on site.

"There is no evidence that Yucca Mountain ever will be licensed to store spent fuel and high-level radioactive waste," Braden says in the ruling issued after a two-week trial held in March.

Braden’s decision only affects this case, but it could set a pattern for about 60 similar cases pending before the court, say industry officials. Braden asked that the parties and those interested in the ruling file comments to her by June 20.

SMUD officials were surprised at the proposed ruling. "Rescinding the contract wouldn’t help make us whole," says Steve Cohn, SMUD’s assistant general counsel.

The utility filed suit against DOE asking for $78 million to cover the capital costs of a dry storage system. It also is seeking ongoing operations and maintenance costs from the government. This year the utility has spent $4.8 million on O&M.

The 1983 contract requires DOE to take responsibility for the waste in 1998. "I think we’re seeing a great deal of doubt that Yucca Mountain will ever open for business," says Nevada U.S. Sen. John Ensign (R).