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Appalachian States Low-Level Radioactive Waste Comm'n v. O'Leary

ELR Citation: 27 ELR 20061
Nos. 3:CV-94-1033, 932 F. Supp. 646/(M.D. Pa., 05/22/1995)

The court strikes down the Secretary of Energy's interpretation of a provision of the Low-Level Radioactive Waste Policy Amendments Act that entitles states and regional radioactive-waste disposal compacts to a rebate of their waste-disposal surcharges if they provide for the disposal of all low-level radioactive waste generated within the state or compact by January 1, 1993. The Secretary interpreted the provision to mean that in order to qualify for a full rebate, states and compacts must provide for the disposal of all waste generated during the 36-month period from January 1, 1993, to January 1, 1996. Because plaintiff regional compact commission had provided for the disposal of its radioactive waste for only the 18 months following January1, 1993, the Secretary gave it only one-half the maximum rebate. The court first holds that the explicit language of the Act does not support the Secretary's position. Nowhere in the statute is there a direct or implicit requirement that a state or compact have a three-year contract with a waste-disposal facility in order to receive a full rebate of the surcharges. As long as a state or compact is able to provide for the disposal of all its low-level radioactive waste by the January 1, 1993, milestone, it is entitled to receive a full rebate. The court next holds that the Secretary's position is procedurally invalid. The 1994 notice containing the Secretary's interpretation was subject to the notice-and-comment provision of the Administrative Procedure Act. But in 1992, when the commission executed its regional compact, it had no notice of the three-year durational requirement outlined in the 1994 notice. Therefore, the commission cannot be held responsible for its terms. Moreover, the Secretary's attempt to apply a policy rendered in 1994 upon a contract formed in 1992 is an instance of retroactive rulemaking. The court thus orders the Secretary to grant plaintiff a full rebate of the waste-disposal surcharges.

[The Third Circuit's opinion overturning this decision is published at 26 ELR 21632.]

Counsel for Plaintiff
Timothy B. Anderson
Pepper, Hamilton & Scheetz
200 One Keystone Plaza
N. Front & Market Sts., Harrisburg PA 17108
(717) 255-1155

Counsel for Defendant
Robert J. DeSousa, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. Post Office Bldg., Lewisburg PA 17837
(717) 524-4415