ELR Citation: ELR 20282
No(s). 93-3131 (C.D. Ill. Jul 22, 1994)

The court affirms a U.S. Department of Energy (DOE) decision that the commission administering a radioactive waste compact for midwestern states is entitled to one-half of the surcharge that two radioactive waste generators paid the commission under the Low-Level Radioactive Waste Policy Amendments Act for taking their waste. Under 42 U.S.C. §2021e(d)(1), certain states with excess capacity storage facilities for low-level radioactive waste may charge for waste received from utility generators of other states and deposit 25 percent of the proceeds in trust with DOE. If by January 1, 1993, a state or compact whose utilities export radioactive waste is able to provide for the disposal of all low-level waste generated within the compact region, DOE must remit the amount in escrow to the state or compact. If the state from which the waste originated is unable to provide for the disposal of its own radioactive waste by that time and the state declines to take possession of its waste, then DOE must remit the funds to the waste generators over three years beginning February 1, 1993. If during that three-year period, the state compact is able to provide for the disposal of its radioactive waste, then the compact is entitled to a lump-sum payment of the remaining escrow fund balance. In this case, a southeastern state compact agreed to take the midwestern state compact's radioactive waste through June 30, 1994. DOE determined that the midwestern state compact was entitled to one-half the escrow amount and that the waste generators were entitled to monthly payments for the period from June 30, 1994, to January 1, 1996, unless the compact entered into another contract for radioactive waste disposal for that period. The court first holds that §2021e does not require states to develop their own disposal facilities. If Congress had meant for each compact to develop its own waste disposal facilities by the end of 1992, it would have expressly included such a condition in the statute. Instead, Congress merely required that states develop a means for disposing of their nuclear waste by the target date. In addition, if §2021e(d)(2)(B)(iv) is construed to require states to develop their own disposal facilities in order to receive the 25 percent rebate, it would be redundant to §2021e(d)(2)(C), which allows a state to obtain the rebate if it chooses to take possession of waste generated in its area.

The court next holds reasonable DOE's interpretation of §2021e(d)(2)(C) as meaning that a utility generator is entitled to receive part of the rebate if during the period from January 1993 to January 1996 a compact becomes unable to provide for the disposal of its radioactive waste. Under §2021e(d)(2)(C), if a state or compact region has failed to provide for disposal of its waste by January 1993, it is still entitled to receive a portion of the 25 percent rebate if it makes provision, before January 1996, for disposal of the waste. This three-year monitoring period is consistent with the statute's purpose of encouraging state compacts to arrange for disposal of their radioactive waste. If during the three years a compact region should either make arrangements for the disposal of its nuclear waste, or having previously made provision therefor, should become unable to dispose of its waste, then the payment of the rebate should be affected accordingly. DOE's interpretation of the statute provides for such a result.

Counsel for Plaintiffs
Lance T. Jones, Thomas R. Lamont
Gordon & Glickson
600 S. Second St., Springfield IL 62704
(217) 789-1040

Counsel for Defendant
Louise F. Milkman, Mark R. Haag
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000