Appalachian States v. Secretary Energy

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

8-20-1996

Appalachian States v. Secretary Energy

Precedential or Non-Precedential:

Docket 95-7382

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-7382

APPALACHIAN STATES LOW-LEVEL

RADIOACTIVE WASTE COMMISSION

v.

HON. HAZEL O'LEARY, in her official

capacity as Secretary of Energy,

Appellant.

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 94-cv-01033)

Argued February 9, 1996

Before: BECKER, ROTH and MCKEE, Circuit Judges

(Opinion Filed August 20, 1996)

Frank W. Hunger

Assistant Attorney General

David M. Barasch

United States Attorney

Mark B. Stern

Michael S. Raab (Argued)

Assistant United States Attorneys

United States Department of Justice

Civil Division, Room 3127

10th & Pennsylvania Avenue, N.W.

Washington, DC 20530

Mary C. Frye

Assistant United States Attorney

Office of the United States Attorney

Federal Building

228 Walnut Street

P.O. Box 11754

Harrisburg, PA 17108

Attorneys for Appellant

John W. Carroll, Esq. (Argued)

Timothy B. Anderson, Esq.

Brian P. Downey, Esq.

Pepper, Hamilton & Scheetz

200 One Keystone Plaza

North Front and Market Streets

P.O. Box 1181

Harrisburg, PA 17108-1181

David Richman, Esq.

Pepper, Hamilton & Scheetz

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA 19103-2799

Attorneys for Appellee

Michael F. Healy, Esq.

Donald J. Silverman, Esq.

Sang Y. Paek, Esq.

Morgan, Lewis & Bockius

1800 M Street, N.W.

Washington, DC 20036

Attorneys for Amicus-Appellant

Scott Harshbarger

Attorney General

Commonwealth of Massachusetts

Kristin McIntosh, Esq.

William W. Porter, Esq.

Thomas A. Barnico, Esq.

Assistant Attorneys General

Commonwealth of Massachusetts

One Ashburton Place, Room 2019

Boston, MA 02108

Attorneys for Amicus-Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

In this appeal, we must evaluate the Secretary of

Labor's interpretation of the Low-Level Radioactive Waste Policy

Amendments Act of 1985 ("LLRW Act"), 42 U.S.C. §§ 2021a-2021j,

under the standard set forth in Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). We hold

that the Secretary's interpretation was a permissible reading of

an ambiguous statute and is properly accorded deference. We will

therefore reverse the district court's decision and enter

judgment for the Secretary.

I.

This case revolves around Congress's efforts to address

the nation's problems with the disposal of low-level radioactive

waste ("LLRW") and the Secretary of Energy's ("Secretary")

attempts to implement Congress's legislated solution. Much of

the background to this dispute is described in New York v. United

States, 505 U.S. 144 (1992), in which the U.S. Supreme Court held

unconstitutional the LLRW Act's requirement that states which

were not in compliance with the Act after January 1, 1993, take

title to their waste. 42 U.S.C. § 2021e(d)(2)(C)(i). The Court

held the take-title provision severable; the balance of the Act

remains in effect.

The LLRW saga began in the 1970s when six commercial

LLRW disposal sites were operating in the United States. By

1979, three of the facilities had closed permanently, and the

states where the three remaining facilities were located had

announced plans to shut down or to severely limit access to their

sites. The nation faced a substantial risk that thousands of

LLRW generators -- such as hospitals, research institutions,

universities, manufacturers, industrial facilities, and nuclear

power plants -- would have nowhere to dispose of their waste.

New York, 505 U.S. at 149-50.

Congress responded to this crisis by passing the Low-

Level Radioactive Waste Policy Act of 1980, Pub. L. No. 96-573,

94 Stat. 3347 (1980). This largely hortatory enactment

authorized states to form regional compacts that would cooperate

to plan, construct, and operate new LLRW disposal sites. The

1980 Act authorized the regional compacts to exclude waste

generated outside their regions beginning on January 1, 1986. As

that date approached, it became apparent that no new facilities

had been built. The nation faced a renewed LLRW crisis,

accentuated by the fact that those regional compacts containing

the three existing facilities could now exclude waste from the

remaining states. New York, 505 U.S. at 151.

Congress reacted by passing new legislation. The Low-

Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C.

§§ 2021a-2021j, created a revised set of deadlines and added a

variety of incentives and penalties to the formerly toothless

scheme. The goal of the program remained the construction of new

disposal sites. The new system of incentives and penalties was

designed to spur construction. The deadlines included a series

of milestones by which states had to submit plans, issue progress

reports, and eventually complete licensing applications for new

LLRW sites. States could also comply with the statute's

requirements by forming regional compacts in which one state

would build the requisite facility and the others would contract

for waste disposal. The incentives included an escalating scale

of surcharges, which states with sites could charge for LLRW

waste disposal and a rebate system to return a portion of those

surcharges to states that met the relevant milestones. 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.

The various statutory milestones followed a natural

progression toward full disposal. By July 1, 1986, "each non-

member State" had to manifest an "intent to develop a site for

the location of a [LLRW] disposal facility within such State."

42 U.S.C. § 2021e(e)(1)(A). By January 1, 1988, each non-sited

region had to identify the state that would contain the LLRW

facility and develop a detailed siting plan for establishing the

facility. Id. § 2021e(e)(1)(B). By January 1, 1990, each non-

sited compact region and each non-member state had to furnish a

complete application for licensing the LLRW facility.

Alternatively, any state without a facility could provide

"written certification . . . that such State will be capable of

providing for, and will provide for, the storage, disposal, or

management of any [LLRW] waste generated within such State and

requiring disposal after December 31, 1992 . . .." Id. §

2021e(e)(1)(C). The fourth and final milestone provided for

reimbursement only if "by January 1, 1993, the State . . . is

able to provide for the disposal of all [LLRW] generated within

such State or compact region." Id. § 2021e(d)(2)(B)(iv).

To comply with the LLRW Act, the states of

Pennsylvania, Delaware, Maryland, and West Virginia formed the

Appalachian States Low-Level Radioactive Waste Compact, governed

by the plaintiff-appellee Appalachian States Low-Level

Radioactive Waste Commission ("Commission"). Congress approved

this compact on May 19, 1988. Pub. L. No. 100-319, 102 Stat. 471

(1988). The record indicates that the Commission met the first

three statutory milestones.

This dispute turns on the fourth milestone. On

December 1, 1992, the Commission entered an eighteen-month

conditional contract with the Southeast Compact to obtain access

to the disposal facility in Barnwell, South Carolina, one of the

three sites that had been in existence when the original 1980 Act

was passed. The contract was not renewed, and the Commission

does not have a contract with any other compact region or state

for the disposal of LLRW. Nevertheless, this contract was in

effect on January 1, 1993, the date by which a state had to be

able to dispose of "all" LLRW to meet the fourth milestone and

qualify for a rebate.

On February 11, 1993, the Commission sent a letter to

the Department of Energy claiming that it had satisfied the

requirements of the LLRW Act and was therefore eligible for a

full 1993 rebate. On March 21, 1994, the Secretary published her

interpretation of the statute, clarifying the criteria for the

1993 rebate. She 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. States that only provided for

disposal for shorter periods would have their rebates reduced

proportionately. This interpretation was based on the

Secretary's reading of the statute as a whole, relying

particularly on the related provision in § 2021e(d)(2)(C) that

established the consequences of failing to meet the 1993

milestone. On April 22, 1994, the Commission renewed its request

for a full 1993 rebate. On September 1, 1994, pursuant to its

final policy and procedures, the Secretary paid the Commission

one half of the maximum rebate, plus interest. This amount was

based on the Commission's eighteen-month contract, which provided

for waste disposal for half of the three-year period.

The Commission responded by filing suit in the U.S.

District Court for the Middle District of Pennsylvania, seeking a

writ of mandamus to compel the Secretary to pay the full rebate.

Both sides moved for summary judgment. Ostensibly applying

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984), the district court held that (1) the statute

was ambiguous, but that (2) the Secretary had failed to adopt a

reasonable reading of the LLRW Act. See Appalachian States Low-

Level Radioactive Waste Comm'n v. O'Leary, Civ. No. 3:CV-94-1033,

slip op. at 16 (M.D. Pa. May 22, 1995) (hereinafter District

Court Op.). The Secretary appealed.

II.

The district court had jurisdiction over this action

pursuant to 28 U.S.C. § 1331 (federal question) and § 1361

("original jurisdiction of any action in the nature of mandamus

to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to plaintiff"). We

exercise appellate jurisdiction over the district court's final

order pursuant to 28 U.S.C. § 1291.

III.

In exercising plenary review over the district court's

grant of summary judgment, we must apply the standard that the

district court should have used initially. Goodman v. Mead

Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied,

429 U.S. 1038 (1977). Accordingly, the central issue before us

is whether the Secretary's action meets the test set forth in

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984). We conclude that, in interpreting the LLRW

Act, the Secretary adopted a permissible reading of an ambiguous

statute. The district court, by contrast, held the statute

ambiguous, but then went on to reject the Secretary's

interpretation. We will reverse the decision of the district

court.

Where Congress has entrusted a federal agency with the

administration of a statutory program, judicial review of that

agency's actions proceeds along well-established principles. In

Chevron, the Supreme Court set out the requisite two-step

inquiry. The reviewing court must first determine

whether Congress has directly spoken to the

precise question at issue. 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.

Id. at 842-43. If Congress has not directly addressed the

precise matter at issue, then "the question for the court is

whether the agency's answer is based on a permissible

construction of the statute." Id. at 843. In determining

whether a ruling is permissible, the court cannot conduct a de

novo investigation. Instead, the court must defer to the

agency's construction "unless it appears from the statute or its

legislative history that the accommodation is not one that

Congress would have sanctioned." Id. at 845 (quoting United

States v. Shimer, 367 U.S. 374, 382 (1961)).

Analysis therefore begins with the language of the

statute. We must determine whether the plain meaning of the

statute speaks to the precise question at issue, viz. whether the

Commission's eighteen-month contract for waste disposal satisfies

§ 2021e(d)(2)(B)(iv)'s requirement that a state provide for the

disposal of "all" its LLRW. Section 2021e(d)(2)(B)(iv) reads:

(iv) The twenty-five percentum of any

amount collected by a State under paragraph

(1) for low-level radioactive waste disposed

of under this section during the period

beginning January 1, 1990 and ending December

31, 1992, and transferred to the Secretary

under subparagraph (A), shall be paid by the

Secretary in accordance with subparagraph

(D) 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. § 2021e(d)(2)(B)(iv) (emphases and footnotes added).

The crucial word in this passage is "all." The

Commission contends that a contract to dispose of all waste for

an eighteen-month period meets the plain meaning of the January

1, 1993, milestone. The Secretary believes that neither the Act

itself nor the legislative history directly resolves the issue.

Nevertheless, based on congressional intent, legislative history,

and the statutory scheme as a whole, the Secretary interpreted

the provision as requiring the ability to dispose of all waste

over a three-year period from January 1, 1993, until January 1,

1996. See Surcharge Rebates: Notice of Response to Comments of

Draft Policies and Procedures, and Final Policies and Procedures,

59 Fed. Reg. 15188, 15191 (1994).

Chevron dictates that we begin by exploring the plain

meaning of the Act to see if it speaks directly to this

disagreement. In determining plain meaning, we start with the

text of the provision itself. In re Segal, 57 F.3d 342, 345 (3d

Cir. 1995). "Where . . . the statute's language is plain, 'the

sole function of the court is to enforce it according to its

terms.'" United States v. Ron Pair Enter., 489 U.S. 235, 241

(1989) (quoting Caminetti v. United States, 242 U.S. 470, 485

(1917)).

The district court held that "[t]he explicit language

of the Act does not support the Secretary's position." District

Ct. Op. at 10. It later added, "[h]owever, we also do not find

that Congress has expressly spoken in opposition to the

Secretary's interpretation." Id. at 11 n.11. The district court

also commented that "the pertinent language of the Act could be

more explicit." Id. We interpret these findings as expressing a

holding that the statutory language is ambiguous. After our own

independent inquiry, we agree. The plain meaning of the Act does

not speak to the precise question at issue.

The first prong of Chevron turns on the text of the

provision, in this case on the implications of the adjective

"all." This term is not defined in § 2021b's list of

definitions. Common usage, however, provides a measure of

insight. The Random House Dictionary of the English Language(1983),

offers the following as the first two definitions for the

term's adjectival form: "1. the whole of (used in referring to

quantity, extent, or duration): all the cake; all the way; all

year. 2. the whole number of (used in referring to individuals

or particulars, taken collectively): all men." Id. at 38.

Black's Law Dictionary (5th ed. 1979) offers similar

formulations. "All. Means the whole of--used with a singular

noun or pronoun, and referring to amount, quantity, extent,

duration, quality, or degree. The whole number or sum of--used

collectively, with a plural noun or pronoun expressing an

aggregate." Id. at 68.

There can be little doubt that these definitions

capture the sense in which the LLRW Act uses the word,

particularly in the phrase "all . . . waste." Waste is a

singular, collective noun. The adjective "all" may refer to the

entirety of that waste whether it be in quantity or in duration.

We must determine whether in the LLRW Act the use of

"all" refers only to quantity or whether it also incorporates

duration. The Commission believes that to satisfy its

obligation, it merely had to be able on January 1, 1993, to

dispose of all its waste without any requirement of future

capacity. The Secretary believes that "all" includes aspects of

duration, judged by the ability to dispose of waste over a three-

year period from January 1, 1993, until January 1, 1996. Given

the lack of an explicit statutory definition of "all," we believe

that the plain meaning of the statute is ambiguous.

Having found an ambiguity, our next task under Chevronis to

determine "whether the agency's answer is based on a

permissible construction of the statute." 467 U.S. at 843. We

stress once again that the reviewing court must not conduct an

independent inquiry. "The court need not conclude that the

agency construction was the only one it permissibly could have

adopted . . ., or even the reading the court would have reached

if the question initially had arisen in a judicial proceeding."

Id. at 843 n.11. A far more deferential standard is appropriate.

As the Supreme Court has described it, the judiciary's

task in such circumstances is "to defer to [the agency's] view

unless the legislative history or the purpose and structure of

the act clearly reveal a contrary intent on the part of

Congress." Chemical Mfrs. Ass'n v. Natural Resources Defense

Council, Inc., 470 U.S. 116, 126 (1985). As we have framed the

test, we must determine "whether the regulation harmonizes with

the plain language of the statute, its origin, and purpose. So

long as the regulation 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." Sekula v. F.D.I.C., 39 F.3d 448, 452 (3d Cir.

1994); see also Director, Office of Workers' Compensation, U.S.

Dept. of Labor v. Eastern Associated Coal Corp., 54 F.3d 141 (3d

Cir. 1995) (applying Sekula's formulation).

We therefore turn to the legislative history and

purpose of the statute to determine whether they clearly reveal a

contrary intent. Quite the opposite, our review of these sources

indicates that if anything, they support the Secretary's

interpretation. Both the history and purpose of the statute

suggest that "all" includes a durational aspect.

As noted in Part I, supra, the LLRW Act was passed to

address a "nationwide crisis in low-level radioactive waste

disposal." S. Rep. No. 199, 99th Cong., 1st Sess. 4 (1985). The

central purpose of the LLRW Act was to encourage the development

of new LLRW disposal facilities. H.R. Rep. No. 314, 99th Cong.,

1st Sess., pt. 2, at 55 (1985), reprinted in 1985 U.S.C.C.A.N.

3002, 3030. The Act's selection of incentives and penalties was

"an essential element of any solution to the serious problem now

facing the States in the unsited regions." S. Rep. No. 199, 99th

Cong., 1st Sess 4 (1985). By passing the 1985 Act, Congress

sought to remedy the difficulties that had rendered the 1980

legislation ineffective. By encouraging the development of new

storage space, Congress sought to avoid yet another LLRW crisis.

The goal of encouraging the construction of new

facilities reveals Congress's desire for a long-term solution.

This purpose is manifested in the structure of the Act,

particularly in its series of progressive milestones. These

milestones proceeded in graduated fashion, encouraging states to

move from a basic intent to create a facility, through the

planning stage, to arrive in 1993 with licensed, operational

facilities. Although states could meet the milestones by

contracting with facilities in other states or with other

compacts, the incremental structure of the provisions shows a

clear intent to promote the construction of new facilities.

Indeed, 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 LLRW problem.

Other provisions of the Act similarly manifest the

legislature's desire for a long-term solution. The allowable

surcharge for disposal was designed to increase steadily,

doubling from $10 per cubic foot in 1986 and 1987 (the period of

the first and second milestones) to $20 per cubic foot in 1988

and 1989 (the period of the third milestone), then doubling again

to $40 per cubic foot between 1990 and 1992 (the period leading

up to the final milestone). 42 U.S.C. § 2021e(d)(1). These

surcharges could increase by additional multipliers if a state

had failed to comply with previous milestones. Id. §

2021e(e)(2)(A)-(D). Rebate money that the states received for

meeting milestones could only be used for specific purposes, such

as the establishment of LLRW disposal facilities, mitigation of

LLRW disposal facility effects, regulation of LLRW disposal

facilities, or the decommissioning of existing LLRW disposal

facilities. Id. § 2021e(d)(2)(E). The entire structure of the

incentive program was aimed at encouraging the construction of

new, long-term facilities.

Given this statutory scheme, purpose, and legislative

history, it seems clear that the Secretary's interpretation of

the term "all" to include a durational aspect "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." Sekula v. F.D.I.C., 39 F.3d at 452. There is

certainly no evidence of a "contrary intent on the part of

Congress." Chemical Mfrs. Ass'n, 470 U.S. at 126.

Our conclusion is consistent with the specific terms of

the Secretary's interpretation. The Act provides that states are

to receive a surcharge rebate for being able to dispose of "all"

waste by January 1, 1993, and this rebate has to be awarded

within thirty days of the milestone's achievement. 42 U.S.C. §

2021e(e)(1)(F). The Secretary consequently needed a definite

standard for applying the final milestone's indefinite

requirement.

On March 31, 1994, the Department of Energy published a

regulation entitled "Surcharge Rebates: Notice of Response to

Comments on Draft Policies and Procedures, and Final Policies and

Procedures." 59 Fed. Reg. 15188 (1994). This regulation noted

that "[t]he Act does not explicitly define the term 'provide for

the disposal of all' LLRW." Id. at 15189. After exploring the

legislative history and statutory scheme, and after examining the

text of § 2021e(d)(2)(C), the Secretary concluded that "for

complete, lump-sum rebate eligibility, the States or their

compact regions must have provided for disposal capacity for the

entire 36-month period between January 1, 1993, and January 1,

1996." Id. at 15191.

To conclude that the Secretary's interpretation is

permissible, we need look no further than related sections of the

Act. While § 2021e(d)(2)(B)(iv) discusses the payments a state

earns for successfully meeting the final statutory milestone, the

very next subparagraph, § 2021e(d)(2)(C), addresses a state's

failure to meet the January 1, 1993, deadline. It seems obvious

that these two sections work together; the rewards are followed

by the penalties. The consecutive subparagraphs must be read

together to create a unified statutory scheme.

Section 2021e(d)(2)(C) provides that "[i]f, by January

1, 1993, a State . . . is unable to provide for the disposal of

all such waste . . . " that state must pay the surcharge rebate

that it would have received for compliance to the generators from

whom the surcharge was collected. 42 U.S.C. §

2021e(d)(2)(C)(ii). The details of the repayment of the

surcharge to waste generators have important implications for

this dispute.

Section 2021e(d)(2)(C)(ii) states that repayments to

the generators are to be made on a monthly basis with each

payment equal to one thirty-sixth of the total amount to be

repaid. These payments continue "until the State . . . is able

to provide for the disposal of all such waste . . . or until

January 1, 1996, whichever is earlier." Id. Section

2021e(d)(2)(C) further provides that any state that achieves the

ability to dispose of all waste at any time after January 1,

1993, and prior to January 1, 1996, will receive its lump sum

rebate, but "[t]hat such payment shall be adjusted to reflect the

remaining number of months between January 1, 1993 and January 1,

1996 for which such State . . . provides for the disposal of such

waste." Id. at § 2021e(d)(2)(C). The balance of the amount is

paid to the generator.

Section 2021e(d)(2)(C) thus creates an evaluatory

window spanning the three years from January 1, 1993, until

January 1, 1996. States have the duty to provide for disposal of

all waste indefinitely, but they are judged based on their

success during this clearly defined time period. Under the

provision, a state that fails to meet the disposal requirement

receives a rebate proportional to the amount of time during this

three-year period for which it did successfully meet the

requirement.

The case before us presents a scenario opposite to the

one described above in which a state first fails to meet the

requirement and then succeeds. In the current case, the

Commission succeeded for the first half of the designated period

and then failed. These two situations are symmetrical, and the

Secretary believed that they should be treated symmetrically. In

other words, she concluded that, when §§ 2021e(d)(2)(B)(iv) and

2021e(d)(2)(C) are read together, they establish a three-year

period of assessment during which a state is tested for its

ability to provide for disposal of "all" waste. The state should

receive a rebate proportional to the duration of the three-year

period during which it was able to meet the standard.

This interpretation meets the second prong of Chevron.

It provides a method of measuring state compliance that "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." Sekula v. F.D.I.C., 39 F.3d at 452. Indeed,

we believe that this interpretation is so well supported as to

venture beyond the merely permissible. In our view, the

Secretary was correct. A permissible interpretation, however, is

all that Chevron requires.

IV.

Having held the Secretary's interpretation permissible

under the second prong of Chevron, our inquiry is at an end. The

district court, however, came to two further conclusions that

could provide independent support for its entry of summary

judgment in favor of the Commission. We will address them

briefly.

First, the district court held the Secretary's

interpretation of the Act procedurally invalid, claiming that the

Secretary failed to comply with the Administrative Procedure

Act's requirements for notice and comment rule-making, 5 U.S.C.

§§ 533(b) & (c). This conclusion was incorrect as a matter of

law.

The Secretary's ruling was interpretative, and

interpretive rules are exempt from notice and comment procedures

pursuant to 5 U.S.C. § 553(b)(3)(A).

Interpretive rules constitute a body of

experience and informed judgment to which

courts and litigants may properly resort for

guidance. Interpretive rules are not

intended to alter legal rights, but to state

the agency's view of what existing law

requires. Such rules "merely clarify or

explain existing law or regulations."

Sekula, 39 F.3d at 457 (quoting Southern Cal. Edison Co. v.

F.E.R.C., 770 F.2d 779, 783 (9th Cir. 1985)). "If the rule in

question merely clarifies or explains existing law or

regulations, it will be deemed interpretive." Bailey v.

Sullivan, 885 F.2d 52, 62 (3d Cir. 1989). A rule is also

interpretive if the statutory scheme would have been fully

operative without the regulations and the regulation merely

published standards to be used in agency adjudication. American

Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106,

1108-09 (D.C. Cir. 1993).

These descriptions characterize the Secretary's action

in the current case. The LLRW Act imposed the obligation to

dispose of "all . . . waste." The Secretary's notice simply

publicized the standards she intended to use when applying §

2021e(d)(2)(B)(iv), clarifying her view of what existing law

required. In addition, the Secretary had the power to make

payment determinations in her role as trustee of the escrow

account pursuant to § 2021e(d)(2)(A). She would therefore have

made these decisions even if she had not publicized her standards

in the Federal Register. As such, her ruling was interpretive

and exempt from notice and comment requirements.

The district court also held the Secretary's position

procedurally invalid as an instance of retroactive rulemaking.

The court reached this conclusion largely because it believed

that the Secretary's 1994 publication of her interpretation

promulgated a new rule that could not be applied to a contract

formed in 1992. Retroactive rulemaking is presumptively

impermissible, see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

208 (1988); see also Landgraf v. USI Film Products, 511 U.S. 244,

___, 114 S. Ct. 1483, 1505 (1994), but retroactivity concerns are

irrelevant to this case. The Secretary's ruling was

interpretive. It therefore did not alter existing rights or

obligations; it merely clarified what those existing rights and

obligations had always been. See Manhattan Gen. Equip. Co. v.

Commissioner, 297 U.S. 129, 135 (1936) (explaining that agency

rule interpreting a statute "is no more retroactive in its

operation than a judicial determination construing and applying a

statute to a case in hand"). As a result, her interpretation had

no prohibited retroactive impact.

V.

Congress passed the LLRW Act to address the nation's

recurring problems with nuclear waste. Congress sought to

address the problem through the construction of new disposal

facilities, spurred by a carefully crafted series of incentives

and standards. These standards culminated in a requirement that

states be able to dispose of "all" waste. In the seven years it

had to prepare to meet Congress's 1985 requirements and in the

twelve years it had to meet the 1980 requirements, the Commission

failed to develop any options beyond a short-term contract with

one of the nation's original facilities. The Secretary evaluated

the sufficiency of this contract based on a permissible reading

of the Act and found it wanting. Under Chevron, this court

cannot substitute its judgment for the Secretary's. We will

therefore reverse the district court's decision and remand with

instructions to enter judgment for the Secretary.