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

ELR Citation: 28 ELR 20022
Nos. 95-7382, 126 F.3d 193/(3d Cir., 09/18/1997) Petition for rehearing

The court upholds the Secretary of Energy's interpretation of the term "provide for" within 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. Plaintiff regional compact commission argues that it provided for the disposal of the compact's low-level radioactive waste by amending its export ban to authorize and encourage its generators to dispose of their waste at a recently reopened disposal facility in South Carolina. The Secretary interprets "provide for" to imply some meaningful affirmative action to facilitate the disposal of the region's low-level radioactive waste. The court first holds that, although this issue was not raised before the district court, the public interest is sufficiently implicated to require resolution of the issue without remanding the case to the district court. The court holds that the plain meaning of the term "provide for" clearly suggests that, before a state or compact may receive a rebate under the act, it must take some affirmative step to supply, afford, or furnish means to dispose of its waste. The commission took no meaningful affirmative action. It did not construct a disposal facility, take title to its regions low-level radioactive waste, or enter into a disposal contract. Accordingly, the commission is not entitled to a proportional rebate. The court next holds that even if the term "provide for" was ambiguous, the court would defer to the Secretary's interpretation. When the Secretary sent out final notices of response to comments on the draft procedures and policies, a final policy statement on the subject was issued. The Secretary is asserting this same policy as its position in the instant litigation. Moreover, the consistency between the Secretary's position in this litigation and the prior policy statement suggests that the usual justifications for not deferring to agency counsel's litigation position are absent. In addition, the court cannot conclude that Congress intended to reward generators that are in the same position that they were in prior to the passage of the 1985 Act. Simply returning to this prior regime would be contrary to the purpose of the statute.

[The district court's opinion is published at 27 ELR 20061, and a prior Third Circuit opinion is published at 26 ELR 21632.]

Counsel for Appellee
John W. Carroll
Pepper, Hamilton & Scheetz
200 One Keystone Plaza
P.O. Box 1181, Harrisburg PA 17108
(717) 255-1155

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

Before Becker and Roth, JJ.