Appalachian States v. Secretary Energy

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

9-18-1997

Appalachian States v. Secretary Energy
Precedential or Non-Precedential:

Docket
95-7382

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Filed September 18, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-7382

APPALACHIAN STATES LOW-LEVEL RADIOACTIVE
WASTE COMMISSION

v.

HON. FEDERICO PENA,1 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)

Argued: February 9, 1996
Reargued: May 21, 1997

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

(Filed September 18, 1997)

_________________________________________________________________

1. Pursuant to Fed. R. App. P. 43(c), Federico Pena has been substituted
as a party for Hazel O'Leary whom he succeeded as the Secretary of
Energy.

Frank W. Hunger, Esq.
Assistant Attorney General
U.S. Department of Justice
Civil Division, Rm. 3127
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001

David M. Barasch, Esq.
United States Attorney
U.S. Department of Justice
Civil Division, Rm. 3127
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Mark B. Stern, Esq.
Assistant United States Attorney
U.S. Department of Justice
Civil Division, Rm. 3127
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001

Michael S. Raab, Esq. (Argued)
Assistant United States Attorney
U.S. Department of Justice
Civil Division, Rm. 3127
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001

Mary C. Frye, Esq.
Office of United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburgh, PA 17108

Attorneys for Appellant

2

John W. Carroll, Esq. (Argued)
Pepper, Hamilton & Scheetz
200 One Keystone Plaza
P.O. Box 1181
Harrisburg, PA 17108-1181

Timothy B. Anderson, Esq.
Pepper, Hamilton & Scheetz
200 One Keystone Plaza
P.O. Box 1181
Harrisburg, PA 17108-1181

Brian P. Downey, Esq.
Pepper, Hamilton & Scheetz
200 One Keystone Plaza
P.O. Box 1181
Harrisburg, PA 17108-1181

David Richman, Esq.
Pepper, Hamilton & Scheetz
3000 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103-2799

Attorneys for Appellee
OPINION OF THE COURT

McKEE, Circuit Judge.

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 Commission2 ("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
_________________________________________________________________

2. Pursuant to the Low-Level Radioactive Waste Policy Amendments Act
of 1985, the states of Pennsylvania, Delaware, Maryland, and West
Virginia formed a compact to collectively dispose of the low-level
radioactive waste generated in their region.

3

pursuant to the Low-Level Radioactive Waste Policy
Amendments Act of 1985,3 42 U.S.C. 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 reasonable4 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
_________________________________________________________________
3. Under that Act, a state or compact that met certain milestone dates
would receive incentive payments from an escrow account funded by
surcharges imposed on waste generators and held in trust by the
Secretary of Energy.

4. Then-Secretary O'Leary "explained that a full 1993 rebate would be
given only to those states that had provided for disposal of all their
waste
for the entire three-year period from January 1, 1993, until January 1,
1996." Appalachian States Low-Level Radioactive Waste Comm'n v.
O'Leary, 93 F.3d 103, 107 (3d Cir. 1996). Although the Commission had
entered a contract for the disposal of its waste by January 1, 1993, that
contract only covered half of the relevant three-year period, and
therefore
the Commission was only entitled to half of the rebate.

4

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. 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 1992.5 "The incentives included an escalating
_________________________________________________________________

5. The Act was designed to address the crisis that developed following
the enactment of its predecessor act, the Low-Level Radioactive Waste
Policy Act of 1980. In the 1980 Act, "Congress declared a federal policy
of holding each State `responsible for providing for the availability of
capacity either within or outside the State for the disposal of low-level
radioactive waste generated within its borders,' and found that such
waste could be disposed of `most safely and efficiently . . . on a
regional
basis.' " New York v. United States, 505 U.S. at 150. To effectuate that
policy, "[t]he 1980 Act authorized States to enter into regional compacts
that, once ratified by Congress, would have the authority beginning in
1986 to restrict the use of their disposal facilities to waste generated
within member States." Id. Compacts formed around the three disposal
facilities then in existence leaving approximately thirty-one states that,
beginning in 1986, would be without an outlet for their low-level
radioactive waste. Faced with this prospect, Congress passed the Low-
Level Radioactive Waste Policy Amendments Act of 1985.

5

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 106.6
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. 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 applicable) is
able to provide for the disposal of all low-level
radioactive waste generated within such State or
compact region.

42 U.S.C. S 2021e(d)(2)(B)(iv). To comply with this
milestone, a state or compact "could provide for disposal by
either operating a disposal facility or pointing to a valid
contract with another state or compact for disposal of the
region's waste." Central Midwest Interstate Low-Level
Radioactive Waste Comm'n v. Pena, 113 F.3d 1468, 1471
(7th Cir. 1997). However, the "full 1993 rebate would be
given only to those states that had provided for disposal of
all their waste for the entire three-year period from January
1, 1993, until January 1, 1996. States that only provided
for disposal for shorter periods would have their rebates
reduced proportionately."7 Appalachian Comm'n, 93 F.3d at
107.
_________________________________________________________________
6. "States that failed to meet the milestones would forfeit these rebates,
would face higher surcharge rates, and could be barred from disposing
of their waste at a given facility." Appalachian Comm'n, 93 F.3d at 106.
7. We previously held that the Appalachian Commission was not entitled
to a full rebate because it had only "entered an eighteen-month
conditional contract with the Southeast Compact to obtain access to the
disposal facility in Barnwell, South Carolina" and thus could not provide
for the disposal of all of its waste for the entire period between January
1, 1993 and January 1, 1996. Appalachian Comm'n, 93 F.3d at 106. The
contract was not renewed, and the Commission did not contract with
another compact region. Accordingly, the Commission was only entitled
to half of the escrowed funds.

6

Six months prior to the end of the three-year period,
South Carolina withdrew from the Southeast Compact. As
a result, the Dormant Commerce Clause operated to
prohibit that state from discriminating against waste from
outside its region. "The dormant aspect of the Commerce
Clause `prohibits economic protectionism--that is,
regulatory measures designed to benefit in-state economic
interests by burdening out-of-state competitors.' " Tolchin v.
Supreme Court of New Jersey, 111 F.3d 1099, 1106 (3d Cir.
1997). Once it withdrew from the Southeast Compact,
South Carolina "waived its rights under the [Act] to exclude
waste from outside the region," Midwest Interstate Low-
Level Radioactive Waste Comm'n v. O'Leary, 926 F. Supp.
134, 136 n.2 (D. Minn. 1996), thereby making the Barnwell
disposal facility in that state available to the generators
within the Appalachian region.

On July 27, 1995, the Commission amended its export
policy to authorize and encourage the disposal of waste
from the Appalachian region at any licensed facility,
including Barnwell. Generators in the Appalachian region,
therefore, could contract for disposal of their waste at
Barnwell for the last six months of 1995. The Commission
itself did not negotiate or enter a new contract with South
Carolina covering this period. Nevertheless, the Commission
contends that it "provided for" the disposal of the low-level
radioactive waste generated in its region for the last six
months of 1995 and thus is entitled to a proportional
rebate of the escrowed funds. The Commission now asks us
to remand this case to the district court so that it can
consider its claim in the context of the reopening of the
Barnwell facility to generators outside of South Carolina.
However, since the facts are not in dispute, we will decide
the Commission's legal entitlement to the remaining funds
without remand to the district court.

II.
"As a general rule, we do not consider on appeal issues
that were not raised before the district court." Tabron v.
Grace, 6 F.3d 147, 153 n.2 (3d Cir. 1993); see also Harris
v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994);
Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir.

7

1983); Franki Found. Co. v. Alger-Rau & Assocs. , 513 F.2d
581, 586 (3d Cir. 1975); O'Neill v. Ambrose-Augusterfer
Corp., 411 F.2d 139, 143-44 (3d Cir. 1969). This rule,
however, "is one of discretion rather than jurisdiction, and
in the past we have heard issues not raised in the district
court when prompted by exceptional circumstances,"
Selected Risks, 718 F.2d at 69, or "whenever the public
interest or justice so warrants," Franki Found., 513 F.2d at
586. We believe that the public interest is sufficiently
implicated here to require resolution of the issue raised in
the Commission's petition without remanding this case to
the district court.

III.

Once again, we are asked to evaluate the Secretary of
Energy's interpretation of the Low-Level Radioactive Waste
Policy Amendments Act under the standard set forth in
Chevron, U.S.A. v. Natural Resources Defense Council , 467
U.S. 837 (1984). More specifically, we are asked to consider
the Secretary's interpretation of "provide for" in sections
2021e(d)(2)(B)(iv) and 2021e(d)(2)(C) of that Act. As noted
above, section 2021e(d)(2)(B)(iv) states that twenty-five
percent of the surcharges held in escrow shall be paid to
the state "if, by January 1, 1993, the State in which such
waste originated (or its compact region, where applicable) is
able to provide for the disposal of all low-level radioactive
waste generated within such State or compact region." 42
U.S.C. S 2021e(d)(2)(B)(iv) (emphasis added)."If a State (or,
where applicable, a compact region) in which low-level
radioactive waste is generated provides for the disposal of
such waste at any time after January 1, 1993 and prior to
January 1, 1996, such State (or, where applicable, compact
region) shall be paid . . . a lump sum . . . adjusted to reflect
the . . . months between [that period] for which such State
(or, where applicable, compact region) provides for the
disposal of such waste." 42 U.S.C. S 2021e(d)(2)(C)
(emphasis added).

The Commission claims it is entitled to a proportional
rebate pursuant to these provisions for the last six months
of 1995 when the Barnwell facility became accessible to its
generators through the Dormant Commerce Clause.
 8

Following Barnwell's reopening, the Commission amended
its export policy to authorize and encourage its generators
to dispose of their waste at that facility. However, as noted
above, the Commission did not itself negotiate or enter a
contract with Barnwell for this six-month period. Instead,
the generators were left to do so on their own. The
Secretary of Energy contends that this arrangement did not
satisfy the Act's requirement that a state "provide for the
disposal of all low-level radioactive waste generated within
such State or compact region." 42 U.S.C.
S 2021e(d)(2)(B)(iv). According to the Secretary, "provide for"
does not mean "permit." Instead, that phrase implies "some
meaningful affirmative action . . . to facilitate the disposal
of [the] region's [low-level radioactive waste]." Resp. To Rely
at 2-3. That interpretation is at issue here.

The one court of appeals that has decided this issue
upheld the Secretary's interpretation of "provide for" as
reasonable. See Central Midwest Interstate Low-Level
Radioactive Waste Comm'n v. Pena, 113 F.3d 1468 (7th Cir.
1997). There, the Central Midwest Commission8 sent a
letter to the Secretary after the Barnwell facility reopened
demanding a rebate for the period July 1, 1995 through
December 31, 1995 "claim[ing] it was entitled to the cash
because it had provided for disposal by allowing generators
to ship their waste to [that facility]." 9 Id. at 1472. The
Secretary of Energy disagreed reasoning that "provide for"
required more than "simply permit[ting] generators to
export their waste." Id. The commission then sued in the
district court to recover the escrowed funds. That court
entered summary judgment in favor of the Secretary, and
the commission appealed.
_________________________________________________________________

8. This commission is comprised of Illinois and Kentucky.

9. Like the Appalachian Commission, the Central Midwest Commission
had entered into an 18-month contract with the Southeast Compact that
guaranteed access to the Barnwell disposal facility in South Carolina.
That contract lapsed on June 30, 1994. During the period between that
lapse and the reopening of the Barnwell facility, the generators stored
their waste. After Barnwell reopened, they claimed they could send this
stored waste to the reopened facility and therefore sought a refund for
the entire period July 1, 1994 through June 30, 1995 as well.

9
The Seventh Circuit Court of Appeals agreed with the
Secretary's position and found that the commission had
done nothing to "supply, afford, contribute, make, procure,
or furnish for future use" means to dispose of low-level
radioactive waste. Id. at 1474. The commission asserted,
however, that the decision to lift its compact's export ban
together with the Barnwell facility's reopening"provided for"
the disposal of the Central Midwest region's low-level
radioactive waste. The court, however, considered this
reasoning flawed because "South Carolina--not the
Commission--made th[e] call [to reopen Barnwell], and the
fourth milestone clearly states that a compact is entitled to
incentives only when the compact provides for disposal." Id.
Accordingly, that court affirmed the district court's grant of
summary judgment to the Secretary. We reach a similar
result here based upon the plain language of the statute.

IV.

"When a court reviews an agency's construction of the
statute which it administers, it is confronted with two
questions. First, always, is the question whether Congress
has directly spoken to the precise question at issue. . . . If,
however, the court determines Congress has not directly
addressed the precise question at issue, . . . the question
for the court is whether the agency's answer is based on a
permissible construction of the statute." Chevron, 467 U.S.
at 842-43.

Because the Act does not define the phrase "provide for,"
see 42 U.S.C. S 2021b ("Definitions"), we begin by
considering the statute's plain meaning. See Smith v.
Fidelity Consumer Discount Co., 898 F.2d 907, 909 (3d Cir.
1990)("We begin with the familiar canon of statutory
construction that the starting point for interpreting a
statute is the language of the statute itself." (quoting
Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc. , 447
U.S. 102, 108 (1980))); see also Ries v. National R.R.
Passenger Corp., 960 F.2d 1156, 1161 (3d Cir. 1992)(same).
"In construing statutes, `we must, of course, start with the
assumption that the legislative purpose is expressed by the
ordinary meaning of the words used.' " Id. (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 482 (1992)). The ordinary

10

meaning of "provide" is "[t]o make, procure, or furnish for
future use, prepare" as well as "[t]o supply; to afford; to
contribute." BLACK'S LAW DICTIONARY 1224 (6th ed. 1990).
Other definitions of "provide" include: "1: to take
precautionary measures"; "2: to make a proviso or
stipulation"; "3: to make preparation to meet a need"; "1
archaic: to prepare or get ready in advance"; and "2a: to
supply or make available . . . b: to make something
available to." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 948
(1990); see also WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
1827 (1971)(same).

The disputed language in the Act is not ambiguous.
Thus, our statutory interpretation is at an end, and we
must give that language effect. See Chevron, 467 U.S. at
842-43 ("If the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of
Congress."); Smith, 898 F.2d at 910 (same). Its plain
meaning 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. That is not what the Commission did.
Here, the Commission took no meaningful affirmative
action. It did not construct a disposal facility, take title to
its region's low-level radioactive waste, or enter into a
disposal contract. The Commission has yet to even select a
site for its disposal facility, let alone complete its
construction.

Accordingly, the Commission, is not entitled to a
proportional rebate for the last six months of 1995. See
Central Midwest Comm'n, 113 F.3d at 1474 (concluding
that the Central Midwest Commission had not "provided
for" the disposal of its low-level radioactive waste)("After its
Barnwell contract expired the Commission did not supply,
afford, contribute, make, procure or furnish anything
related to the disposal of the region's waste. Rather, the
Commission sat back and let fate run its course."); Midwest
Comm'n, 926 F. Supp. at 136 (concluding that the Midwest
Commission had not "provided for" the disposal of its low-
level radioactive waste)("[The commission's argument to the
contrary] strains the ordinary and natural meaning of these

11

terms, since the Midwest Commission has merely permitted
disposal in South Carolina.").

V.

Even if "provide for" were ambiguous, we would reach the
same result because we believe the Secretary's
interpretation of that phrase is consistent with the policy
statements issued by the Department of Energy. We have
previously held that we owe substantial deference to an
agency's policy position. See Elizabeth Blackwell Health Ctr.
for Women v. Knoll, 61 F.3d 170, 183 (3d Cir. 1995)("We
must give substantial deference to an agency's construction
of its own regulation."), cert. denied, 116 S. Ct. 816 (1996).
Here, the Secretary sent out final notices of response to
comments on the draft procedures and policies previously
published and issued a final policy statement on the
subject. That policy statement explains that, in addition to
constructing a new disposal facility,

one demonstration of the ability to provide for the
disposal of all LLRW generated within a State or
compact region would be the existence of an
enforceable contract for disposal with a sited State or
region. A second demonstration would be that
generators are in fact provided with the ability to
dispose of their waste under a contractual arrangement
between their State or compact region and a sited State
or region, even if that contract were not by its terms
enforceable.

Surcharge Rebates: Notice of Response to Comments on
Draft Policies and Procedures, and Final Policies and
Procedures, 59 Fed. Reg. 15188, 15189 (1994).
Alternatively, a state provides for the disposal of such waste
if it "takes title, possession, and liability for the waste [it
generates]." 59 Fed. Reg. at 15194.

The Secretary is asserting this same "policy" as its
position in the instant litigation. No deference is due an
agency's litigation position. See United States v. Trident
Seafoods Corp., 60 F.3d 556, 559 (9th Cir. 1995)("No
deference is owed when an agency has not formulated an
official interpretation of its regulation, but is merely

12

advancing a litigation position."); Idaho Dep't of Health &
Welfare v. United States Dep't of Energy, 959 F.2d 149,153
(9th Cir. 1992)(same). However, here, we would not be
deferring to the agency's litigation position, but to the prior
policy statement that happens to be consistent with it.
Moreover, the consistency between the Secretary's position
in this litigation and the prior policy statements issued by
the Department of Energy suggests that the usual
justifications for not deferring to agency counsel's litigation
position--that the position does not reflect the view of
agency heads or was developed hastily by agency counsel--
are absent. See Federal Labor Relations Auth. v. United
States Dep't of Treasury, 884 F.2d 1446, 1455 (D.C. Cir.
1989)(identifying these basic justifications for courts'
reluctance to defer to agency counsel's litigation position);
see also Skandalis v. Rowe, 14 F.3d 173, 179 (2d Cir.
1994)(suggesting that a position taken during litigation that
is consistent with an agency's earlier position is a "factor in
determining whether deference is appropriate"). Thus, if the
statute were ambiguous, we would afford the same
treatment to the Secretary's position here that we would a
more formal agency interpretation.

Accordingly, we would uphold the Secretary's
construction if it " `[were] based on a permissible
construction of the statute.' " Smith, 898 F.2d at 910
(quoting Chevron, 467 U.S. at 843). In making that
determination, we must decide " `whether [that position]
harmonizes with the plain language of the statute, its
origin, and purpose. So long as the [interpretation] bears a
fair relationship to the language of the statute, reflects the
views of those who sought its enactment, and matches the
purpose they articulated, it will merit deference."
Appalachian Comm'n, 93 F.3d at 110 (quoting Sekula v.
F.D.I.C., 39 F.3d 448, 452 (3d Cir. 1994)).

As stated earlier, the Act was enacted to address the
"crisis" that followed the passage of the original Low-Level
Radioactive Waste Policy Act of 1980. Although the 1980
Act declared that states should assume responsibility for
the disposal of their low-level radioactive waste, in the five
years after the Act's passage, no new disposal facilities had
been constructed or were projected to be completed before

13

the 1990s. Yet, under the Act, the three facilities then in
existence could begin excluding waste generated outside
their region beginning in 1986. All three states had
expressed an unwillingness to shoulder the entire nation's
low-level radioactive waste disposal beyond that time. This
situation "trigger[ed] a national emergency with grave
implications for the public's health and safety." H. Rep. No.
314(II), 99th Cong., 1st Sess. (1985), reprinted in 1985
U.S.C.C.A.N. 3002, 3007. Faced with the prospect that a
majority of states would be without access to a waste
disposal facility, Congress enacted the Low-Level
Radioactive Waste Policy Amendments Act of 1985.

That Act extended states' access to the existing facilities
until 199210 and included several milestones and monetary
incentives to encourage the construction of new facilities.
These features were designed "to assure that a crisis
similar to the one [previously] facing Congress and the
states would not recur at the end of the 1986-1992 period
of access to the currently operating sites." H.R. Rep. No.
314(I), 99th Cong., 1st Sess. (1985), reprinted in 1985
U.S.C.C.A.N. 2974, 2978. The rebates were specifically
intended to "provide an additional incentive for states and
compact regions to meet the milestones on time." H. Rep.
No. 314(II), 1985 U.S.C.C.A.N. at 3012 (emphasis added).
Indeed, we have previously stated:

[T]he incremental structure of the provisions shows a
clear intent to promote the construction of new
facilities. . . . [and] it is impossible to conclude
otherwise, knowing that the original 1980 Act was
passed due to the inadequacy of existing storage
facilities and that the revised 1985 Act was passed to
spur construction through a program of incentives. It
is ludicrous to think that Congress envisioned short-
term contracts with the already existing Barnwell
facility as the preferred solution to the national[low-
level radioactive waste] problem.

. . . The entire structure of the incentive program was
_________________________________________________________________

10. In exchange, the facilities were permitted to assess graduated
surcharges on outside waste.

14

aimed at encouraging the construction of new, long-
term facilities.

Appalachian Comm'n, 93 F.3d at 110-11.

Against this background, we 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--when generators had access to the existing
disposal facilities through operation of the Dormant
Commerce Clause. That Clause merely prohibited the states
with disposal facilities from discriminating against out-of-
state waste. However, nothing prevented those states from
imposing across-the-board limitations on the quantity of
waste accepted or closing their facilities altogether. See
Midwest Comm'n, 926 F. Supp. at 137 ("Before the Act,
generators could dispose of waste in any facility that was
open, but states could elect to close their facilities.
Similarly, states could limit the total amount of waste
accepted for disposal in a facility, as long as they acted
without discrimination against out-of-state waste."). The
same situation existed when the Barnwell facility reopened
in 1985. Because it had no contracts with that facility, the
Commission was only guaranteed that Barnwell would not
discriminate against waste generators from the Appalachian
region. The Commission otherwise had no assurances as to
how much and for how long Barnwell would accept that
region's waste.
We agree with the Secretary's position that to reward the
Commission "for simply returning to th[is] prior regime . . .
would be contrary to the purpose of the statute." Resp. To
Reply at 5-6 (internal quotations omitted); see also Central
Midwest Comm'n, 113 F.3d at 1474 ("[T]he Commission's
interpretation leaves generators (armed only with the
dormant Comm[erce] Clause) 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."). Under the Secretary's interpretation, a state or
compact would be entitled to a rebate if it made"an
affirmative effort to arrange for its generators to obtain
disposal capacity during [the relevant period]." Resp. To
Reply at 8. That interpretation of "provide for" is consistent

15

with the purpose of the Act. Simply authorizing generators
"to fend for themselves" is not sufficient affirmative effort.
Thus, even if the statute were not plain, we would defer to
the Secretary's interpretation of "provide for."11

VI.

For the foregoing reasons the petition for panel rehearing
is denied. The prior opinion and judgment of this Court
remain in effect.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

11. "[We] need not conclude that [this] construction [is] the only one
[the
Secretary] permissibly could have adopted to uphold the construction, or
even the reading [this Court] would have reached if the question initially
had arisen in a judicial proceeding." Chevron , 467 U.S. at 843 n.11.

16