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Eleven years after the government pledged to begin storing nuclear waste for commercial nuclear plants, the Department of Energy decided to scrap its planned repository at Yucca Mountain, Nevada — leaving the Justice Department with dozens of lawsuits on its hands.

Michael Hertz, Deputy Assistant Attorney General for the Civil Division (photo by Channing Turner / Main Justice)

Michael Hertz, Deputy Assistant Attorney General for the Justice Department’s Civil Division, told lawmakers on the House Budget Committee Tuesday that the government may be liable for billions of dollars if it doesn’t follow through on its promise to build a disposal site to store nuclear waste.

“DOE’s most recent estimate of potential liability … was as much as $13.1 billion,” Hertz said. “This estimate does not fully account for the government’s defenses or the possibility that plaintiffs will not be able to prove the full extent of their claims, and they were created before the administration’s 2009 announcement that it would not proceed to build a repository at Yucca Mountain.”

Under the Nuclear Waste Policy Act of 1982, the government agreed to collect and store nuclear waste from nuclear energy companies beginning in 1998. The next year, it entered into 76 contracts — most with commercial entities — to accept quarterly payments in exchange for waste disposal.

But the government has yet to accept any waste from nuclear companies, and that delay has led 72 utility companies to file suit in the U.S. Court of Federal Claims for partial breach of contract.

The DOJ’s Civil Division has been defending the government in those cases, Hertz said, but with the Yucca Mountain plans stalled, there’s no end in sight.

“Until we begin performing under the contract, until we begin picking up waste … we will keep incurring damages,” Hertz said.

Litigation costs for the government — which currently stand at $29 million in attorney costs, $111 million in expert funds and $52 million in litigation support — will continue to compound because utilities companies must file new cases every six years to comply with the statute of limitations, Hertz said.

And these cases could even extend until after the Department of Energy starts accepting waste, now projected for 2020, Hertz said.

In addition, the government has already accepted $2 billion in liability for judgments and settlements entered between 1998 and 2009. The amount could change as cases are appealed or remanded, he added.

Barring settlements, the number of cases brought against the government could also increase as additional damages accrue, Hertz said.

The majority of cases involve damages claimed by utility companies, but several plaintiffs have also filed lawsuits that attempt to reverse the Energy Department’s decision to abandon Yucca Mountain. South Carolina and Washington state are among those now contesting Energy Secretary Steven Chu’s authority to withdraw the repository’s licensing application in In Re Aiken County.

Undersecretary of Energy Kristina Johnson defended the administration’s decision to withdraw from Yucca and instead form a blue ribbon commission to investigate alternatives.

The commission would examine scientific advancements in the understanding of nuclear waste and provide a draft of solutions in about a year, with a final report due six months after that, Johnson said.

“Yucca Mountain, as a site, is off the table,” Johnson said.

The Energy Department’s latest analysis (pdf) of the Yucca Mountain project, issued in July 2008, estimated the lifetime cost at $96 billion.

“I’m deeply troubled — very troubled — by this,” said Rep. Betty McCollum (D-Minn.). “It is irresponsible to abandon the study of Yucca Mountain as a viable option, particularly after $100 billion has already been spend on the project.”

Hertz’s full testimony is embedded below:

Testimony of Michael Hertz on Yucca Mtn. House Budget. 7.27.10