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Central Midwest Interstate Low-Level Radioactive Waste Comm'n v. Peña

ELR Citation: 27 ELR 21289
Nos. 96-3674, 113 F.3d 1468/(7th Cir., 05/20/1997)

The court upholds the Secretary of Energy's decision that an interstate compact is not entitled to surcharge rebates under the Low-Level Radioactive Waste Policy Amendments Act of 1985. The court first holds that although the Secretary does not possess rulemaking authority, some deference is due regarding the Secretary's interpretation of the Act. The surrounding cirumstances represent a thorough and deliberate attempt to implement the will of Congress through the regulatory process. Although the Secretary did not jump through all of the procedural hoops necessary to promulgate a full-fledged "rule," because interpretive rules are exempt from the Administrative Procedure Act's notice-and-comment provisions, the Secretary published a notice on the topic in 1992, solicited written comments, considered the issue for 18 months, and released a final policy statement in March 1994. Even if de novo review were appropriate, the Secretary's position was correct. The compact did not provide for full disposal of the waste. Contrary to the compact's interpretation, "provide for" means something more than simply allowing waste to make its way out of the region. The compact did not supply, afford, contribute, make, procure, or furnish anything related to the disposal of the region's waste. The fact that an outside facility reopened is not sufficient to provide for disposal. Further, the Act clearly states that a compact is entitled to incentives only when the compact, not a generator, provides for the disposal. The compact did not take any responsibility for the region's waste. Rather, it simply relied on its 1988 decision to lift the export ban and hoped the generators would shoulder the responsibility for making sure their waste wound up at a proper facility.

Next, the court holds that a new contract would have been neither impossible nor meaningless, contrary to the compact's belief. First, the generators worked out deals with the outside facility, so nothing prevented the compact from doing the same. Second, a contract could have guaranteed continued access or, at a minimum, provided an avenue of recourse if the facility scaled back or shut down its operation. The court then rejects the compact's contention that the Secretary's interpretation is against public policy. The compact's interpretation leaves generators to fend for themselves, gives states and compacts absolutely no incentive to increase disposal capacity, and hinders the development of a network of fairly and evenly distributed regional disposal sites. Such an interpretation would directly contradict the purposes of the 1985 Act. Last, the court holds that the Secretary's interpretation is not unconstitutionally vague.

Counsel for Plaintiff
Eric M. Schwing
Schwing & Salus
301 1/2 W. Cook St., Springfield IL 62704
(217) 544-3232

Counsel for Defendant
Michael S. Raab
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before CUMMINGS, DIANE P. WOOD, and EVANS, Circuit Judges.