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Appalachian States Low-Level Radioactive Waste Com'n v. Pena

September 18, 1997

APPALACHIAN STATES LOW-LEVEL RADIOACTIVE WASTE COMMISSION

v.

HON. FEDERICO PENA, *fn1 IN HIS OFFICIAL CAPACITY AS SECRETARY OF ENERGY, APPELLANT

ON PETITION FOR PANEL REHEARING



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSLYVANIA

(D.C. No. 94-cv-1033)

Before: BECKER, ROTH, and MCKEE, Circuit Judge s.

McKEE, Circuit Judge.

Filed September 18, 1997

Argued: February 9, 1996

Reargued: May 21, 1997

OPINION OF THE COURT

This is the second time this dispute has come before this panel. The first time, then-Secretary of Energy Hazel O'Leary appealed the district court's grant of summary judgment to the Appalachian States Low-Level Radioactive Waste Commission *fn2 ("the Commission") in the mandamus action the Commission had filed in an attempt to compel the Secretary to release all funds that had been escrowed pursuant to the Low-Level Radioactive Waste Policy Amendments Act of 1985, *fn3 42 U.S.C. Section(s) 2021b et seq. At issue was whether the Commission had provided for the disposal of "all" its low-level radioactive waste by January 1, 1993, one of the milestone dates established under that statute. We concluded that the term "all" in the statute was ambiguous and that the Secretary's interpretation of that term was reasonable *fn4 and thus entitled to deference. Accordingly, we reversed the district court's grant of summary judgment to the Commission and remanded the case with instructions to enter judgment for the Secretary. See Appalachian States Low-Level Radioactive Waste Comm'n v. O'Leary, 93 F.3d 103 (3d Cir. 1996).

The parties come before us now on the Commission's petition for rehearing of our earlier decision. Specifically, the Commission asks us to consider a fact that arose after the district court's decision, namely, South Carolina's withdrawal from the Southeast Compact and the subsequent reopening of the Barnwell waste-disposal facility in July 1995. Because of South Carolina's withdrawal from the Southeast Compact, the Dormant Commerce Clause operated to prohibit that state from discriminating against waste generated outside its borders. Consequently, the Commission amended its policy to authorize and encourage its generators within the Appalachian region to export their low-level waste to facilities like Barnwell. The Commission claims that, in this way, it "provided for" the disposal of all low-level radioactive waste generated by the Appalachian states between July 1995 and January 1996. Accordingly, the Commission now seeks a proportional rebate for this period. The Secretary, however, contends that "provide for" does not mean "permit," and, because the Commission merely"permit[ted] its generators to export their waste to South Carolina" for the last six months of 1995, it is not entitled to that rebate. Answer To Pet. at 3.

For the reasons explained below, we will enter judgment for the Secretary.

I.

The circumstances that gave rise to the instant dispute are set forth in our earlier decision in this case, see Appalachian Comm'n, 93 F.3d at 105-07, and the Supreme Court's decision in New York v. United States, 505 U.S. 144 (1992)(invalidating the take-title provision of the 1985 Act). Therefore, we present only those facts necessary for a complete understanding of the this appeal.

In 1985, Congress passed the Low-Level Radioactive Waste Policy Amendments Act, 42 U.S.C. Section(s) 2021b et seq. (the "Act"), which created various incentives to encourage states without low-level radioactive waste disposal facilities to establish means to dispose of their low-level radioactive waste by 1992. *fn5 "The incentives included an escalating scale of surcharges, which states with sites could charge for [low-level radioactive] waste disposal and a rebate system to return a portion of those surcharges to states that met the relevant milestones." Appalachian Comm'n, 93 F.3d at 106. *fn6 At issue here is one of the Act's several monetary incentives, specifically, the incentive payment pursuant to the fourth provision of the "Milestone incentives." See 42 U.S.C. Section(s) 2021e(d)(2)(B)(iv). That provision states that

twenty-five per centum of any amount collected by a State under paragraph (1)[as surcharges] for low-level radioactive waste disposed of under this section during the period beginning January 1, 1990 and December 31, 1992, and transferred to the Secretary under subparagraph (A)[into an escrow account held in trust by the Secretary], shall be paid [to a state] . . . if, by January 1, 1993, the State in which such waste originated (or its compact region, where ...


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