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APPALACHIAN STATES LOW-LEVEL RADIOACTIVE WASTE COM

May 22, 1995

APPALACHIAN STATES LOW-LEVEL RADIOACTIVE WASTE COMMISSION, Plaintiff,
v.
HAZEL O'LEARY, Secretary, United States Department of Energy, Defendant.



The opinion of the court was delivered by: KOSIK

 Presently before the court are cross motions for summary judgment filed by the parties. The parties have submitted the proper briefing so that the motions are ready for disposition. For the reasons that follow, the court will grant the motion for summary judgment filed by the plaintiff, will deny the motion for summary judgment filed by the defendant and will grant the mandamus relief requested by the plaintiff.

 I. BACKGROUND

 The Statutory Framework

 Under the Low Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. § 2021b et seq. (hereinafter, the "Act"), the United States government sought to promote the safe and efficient disposal of low level radioactive waste (LLW) generated throughout the country, by encouraging the establishment and operation of regional disposal facilities. *fn2" The Act provides that individual states could group together into compacts to establish regional disposal facilities, *fn3" and/or to arrange for collective disposal of their LLW in facilities outside of their respective regions.

 To encourage the states to provide for the regional disposal of their LLW in a timely manner, the Act established the following incentive system, termed "Milestone Incentives", involving the collection of surcharges by states with LLW disposal facilities ("sited states") and the payment of rebates to LLW generating states which have met certain criteria:

 (1) Sited states are authorized to impose surcharges on out-of-state generators of LLW for the disposal of the waste from January 1, 1986 until December 31, 1992. 42 U.S.C. § 2021e(d) (1).

 (2) 25 percent of the surcharges collected by the sited states are to be transferred to an escrow account held by the Secretary of Energy as trustee. The Secretary is to invest the funds in an interest bearing account. 2021e(d) (2) (A).

 (3) If a state (or compact) "provides for the disposal of" all LLW by January 1, 1993 it is to receive a lump sum refund of the 25 percent collected and held by the Secretary. 2021e(d) (2) (B) (iv).

 (4) If a state (or compact) "provides for the disposal of" all LLW after January 1, 1993 and prior to January 1, 1996, the state (or compact) will be paid a refund of the 25 percent collected by the Secretary, minus ("adjusted to reflect") the time that has elapsed after January 1, 1993. *fn4"

 Factual History

 The underlying facts of this case are not disputed nor are they overly complex. Pursuant to the Act, the states of Pennsylvania, Delaware, Maryland and West Virginia formed a compact, entitled the "Appalachian Compact", sometime prior to December 1, 1992, to collectively dispose of low-level nuclear waste generated in their region, the "Appalachian Region". *fn5" The plaintiff in this action, the Appalachian States Low-Level Radioactive Waste Commission (the "Commission") is the governing body of the Appalachian Compact.

 On December 1, 1992, the Commission entered into an eighteen month agreement with the Southeast Interstate Radioactive Waste Management Commission (the "Southeast Commission"), whereby the Southeast Commission was to provide for disposal of all LLW generated in the Appalachian Region at the Barnwell, South Carolina disposal facility from January 1, 1993 until June 30, 1994. *fn6" Southeast imposed surcharges upon the Appalachian Compact pursuant to the Act, 25 percent of which were transferred to the Secretary who placed them in escrow. *fn7"

  By letters dated February 11, 1993 and April 22, 1994, the Commission requested that the Secretary refund all of the escrowed Appalachian Region surcharges. *fn8" The Secretary initially declined to offer a rebate. On September 1, 1994, after the filing of the instant action, the Secretary paid a rebate to the Commission representing one half of the escrowed surcharge, $ 2,124,307.69. *fn9"

 Both parties have filed motions for summary judgment *fn10" and supporting briefs. As discussed below, the Secretary claims that the Commission is only entitled to the partial rebate because the contract between the Appalachian Compact and the Southeast Commission (the "Southeast Contract") was for only eighteen months, one half of the three year period--January 1, 1993 to January 1, 1996--allegedly required by § 2021e(d) of the Act. The Commission argues that it is entitled to a full rebate because it provided for disposal of all waste by the January 1, 1993 Milestone date, and that the fact that the contract did not cover the entire three year period is of no concern.

 II. STANDARD OF REVIEW

 Rule 56(c) of the Federal Rules of Civil Procedure states that:

 
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 The Supreme Court has held that Rule 56(c), "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2551, 91 L. Ed. 2d 265 (1986). Summary judgment will not lie, "if the dispute about a material fact is 'genuine', that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). See Gile v. Optical Radiation Corp., 22 F.3d 540, 541 (3d Cir.), cert. denied, U.S. , 130 L. Ed. 2d 342, 115 S. Ct. 429 (1994).

 III. DISCUSSION

 There is no factual dispute before the court. The entire controversy is a matter of legal interpretation, centering on provisions in the Low Level Waste Management Act, 42 U.S.C. § 2021e(d), which relate to surcharge collection and repayment. The statute, in relevant part, reads as follows:

 § 2021e(d) Use of surcharge funds for milestone incentives; consequences of failure to meet disposed deadline...

 
(2) Milestone ...

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