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Indiana Mich. Power Co. v. Department of Energy

ELR Citation: 26 ELR 21406
Nos. 95-1279, 88 F.3d 1272/43 ERC 1033/(D.C. Cir., 07/23/1996)

The court holds that the Nuclear Waste Policy Act (NWPA) requires the U.S. Department of Energy (DOE), by January 31, 1998, to begin disposing of the spent nuclear fuel of parties that paid for such disposal, even if DOE does not yet have a repository for it. NWPA §305(a)(5)(B) states that "in return for the payment of fees . . . [DOE], beginning not later than January 31, 1998, will dispose of the . . . spent nuclear fuel." Although the statute defines "disposal" as "the emplacement in a repository of . . . spent nuclear fuel . . . with no foreseeable intent of recovery," the fact that Congress defined "disposal" restrictively and did not define "dispose" bears mute testimony to the strong possibility that Congress intended the former as a term of art, the latter as common English. DOE itself has previously concluded that the statutory definition of "disposal" was not intended to define "dispose of," and Congress used the term "disposal" elsewhere in the statute to encompass more than the emplacement of spent nuclear fuel in a repository. The court holds that §305(a)(5)(A), which requires DOE to take title to spent nuclear waste after commencement of repository operations, and §305(a)(5)(B) set forth independent requirements. The duties they impose on DOE are linked to different events and are triggered at different times. In addition, it is not unusual to recognize a division between ownership of materials and other obligations relating to such materials. Also, the fact that a repository does not exist, even though Congress anticipated its existence by 1998, does not make §305(a)(5)(B) illogical. Congress evinced a strong intent that DOE's various obligations would be performed in a timely manner.

[Briefs in this litigation are digested at ELR BRIEFS & PLEADS. 66450.]

Counsel for Petitioners
Jay E. Silberg
Law Offices of Jay E. Silberg
2300 N St. NW, Washington DC 20037
(202) 663-8063

Counsel for Respondents
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: WILLIAMS, GINSBURG, and SENTELLE, Circuit Judges.