LOCAL PROPERTY TAXATION – REAL PROPERTY – PERSONAL PROPERTY - INTENTION OF PERMANENT AFFIXATION – LEGISLATION, INTERPRETATION – BUSINESS RETENTION ACT – CHAPTER 117
Tax Court: Exelon Generation Company, LLC, C-O Schwer/Oyster Creek Environmental Protect v. Township of Lacey; Docket Nos. 002147-2018, 004238-2019, 007533-2020, 006775-2021, 005359-2022, 003409-2023, 004088-2024, opinion by Cimino, J.T.C., decided February 25, 2025. For plaintiff – Farhan Ali (McCarter & English LLP; Frank E. Ferruggia and Farhan Ali, on the Brief); for defendant – Andrea E. Wyatt, (Rothstein, Mandell, Strohm, Halm & Cipriani, P.A.).
Held: Taxpayers challenge whether storage casks which house highly radioactive spent nuclear fuel are subject to taxation as real property. Taxpayers must store the spent fuel in the casks to protect the public and the environment from exposure to harmful radiation emitted from the spent fuel. To be taxable as real property, the storage casks must be affixed permanently.
Taxpayers assert the spent fuel and storage casks are on-site temporarily until a disposal facility opens to accept the spent fuel from not only this site, but also other sites across the nation.
The Township asserts the spent fuel and storage casks are on-site permanently. By law, there is nowhere to move the spent fuel. Though there have been plans over the course of decades for various disposal facilities, the spent fuel has continued to accumulate at the site since the 1970s.
The court determines the storage casks are taxable since the Taxpayers cannot transfer the spent fuel to another site.
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