No. 98-384
APPENDIX A
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
Nos. 97-1064, 97-1065, 97-1370 and 97-1398
NORTHERN STATES POWER COMPANY, ET AL., PETITIONERS
v.
UNITED STATES DEPARTMENT OF ENERGY
AND UNITED STATES OF AMERICA, RESPONDENTS
IES UTILITIES, INC., ET AL., INTERVENORS
[Argued: Sept. 25, 1997
Decided Nov. 14, 1997]
Before: WILLIAMS, GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
In Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272 (D.C.
Cir. 1996), we held that the Nuclear Waste Policy Act ("NWPA")
imposes on the Department of Energy ("DOE") an unconditional obligation
to begin disposing of high-level radioactive waste and spent nuclear fuel
(collectively, "SNF") by January 31, 1998. After we issued our
decision, DOE nonetheless informed various utilities and state commissions
("petitioners") that it would not accept the SNF for disposal
by the 1998 deadline. Petitioners now seek a writ of mandamus requiring
DOE to comply with Indiana Michigan and begin disposing of the SNF by the
statutory deadline. We hold that the Standard Contract between DOE and the
utilities provides a potentially adequate remedy if DOE fails to fulfill
its obligations by the deadline, and thus do not grant in full the writ
requested by petitioners. We do agree, however, that DOE's current approach
toward contractual remedies is inconsistent with the NWPA and with our prior
decision in Indiana Michigan. We thus grant the petition in part, and issue
a writ of mandamus precluding DOE from advancing any construction of the
Standard Contract that would excuse its delinquency on the ground that it
has not yet established a permanent repository or an interim storage program.
I. Background
In the NWPA, Congress, confronting the "national problem" posed
by the accumulation of spent nuclear fuel and radioactive waste produced
by various domestic sources, 42 U.S.C. § 10131(a)(2), created a scheme
whereby the federal government would have the responsibility to provide
for the permanent disposal of the SNF, and the costs of such disposal would
be borne by the owners and generators of the waste and spent fuel. 42 U.S.C.
§ 10131(a)(4). The plan provided that the owners and generators of
the SNF would have the primary responsibility to provide and pay for its
interim storage until the Secretary of Energy accepts the material "in
accordance with the provisions of this chapter." 42 U.S.C. § 10131(a)(5).
As part of this regulatory program, Congress authorized the Secretary to
enter into contracts with the owners and generators for the acceptance,
transportation, and ultimate disposal of the SNF. 42 U.S.C. § 10222(a)(1).
Congress left open many of the terms of the contracts, but specifically
dictated, inter alia, the deadline by which DOE must begin disposing of
the SNF. In the language of the statute, the "[c]ontracts entered into
under this section shall provide that . . . in return for the payment of
fees established by this section, the Secretary, beginning not later than
January 31, 1998, will dispose of the high-level radioactive waste or spent
nuclear fuel involved as provided in this subchapter." 42 U.S.C. §
10222(a)(5)(B). "Payment of fees" referred to hefty contributions
into a so-called Nuclear Waste Fund by owners and generators of the SNF.
In accordance with the NWPA, DOE adopted the final Standard Contract after
notice and comment. The language of the Standard Contract is slightly different
than that of the statute, but does include the requirement that disposal
begin by January 31, 1998: "[t]he services to be provided by DOE under
this contract shall begin, after commencement of facility operations, not
later than January 31, 1998 and shall continue until such time as all SNF
and/or HLW [high-level radioactive waste] from the civilian nuclear power
reactors . . . has been disposed of." 10 C.F.R. § 961.11, Art.
II (1996).
In 1993, various utilities and state agencies became concerned about DOE's
ability to meet the 1998 deadline, and thus asked the Department to address
how it would go about performing its responsibilities. The Department, apparently
anticipating that it would not be ready to take the SNF by the deadline,
took the position that it did not have a clear legal obligation to accept
the SNF absent an operational repository or other facility. In its Final
Interpretation of Nuclear Waste Acceptance Issues, issued in 1995, DOE announced
that it "does not have an unconditional statutory or contractual obligation
to accept high level waste and spent nuclear fuel beginning January 31,
1998 in the absence of a repository or interim storage facility constructed
under the [NWPA]." 60 Fed. Reg. 21,793-94. The Department also took
the position that "it lacks statutory authority under the Act to provide
interim storage." 60 Fed. Reg. at 21,794.
The utilities and the states promptly filed petitions for review. The question
before us in Indiana Michigan was whether the legal obligation of DOE to
accept SNF by January 31, 1998, was conditioned on the presence of an operational
repository or interim storage facility. Reviewing DOE's construction of
the NWPA under the two-step analysis of Chevron U.S.A. Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984), we
concluded that DOE's interpretation was contrary to the unambiguously expressed
intent of Congress. We reached this conclusion after analyzing the plain
language of the statute, which mandates that DOE assume a contractual obligation
to start disposing of the SNF by January 31, 1998. We took special care
to emphasize the reciprocal nature of the obligations. DOE's duty to dispose
of the SNF in a timely manner is "in return for" the payment of
fees into the Nuclear Waste Fund. 42 U.S.C. § 10222(a)(5)(B). We held
that DOE's obligation to meet the 1998 deadline is "without qualification
or condition," and identified DOE's duty to "perform its part
of the contractual bargain." 88 F.3d at 1273. We therefore remanded
the matter to DOE for "further proceedings consistent with" our
opinion. Id. at 1277. DOE neither sought rehearing of that decision nor
petitioned the Supreme Court for further review.
After issuing our decision in Indiana Michigan, we would have expected that
the Department would proceed as if it had just been told that it had an
unconditional obligation to take the nuclear materials by the January 31,
1998, deadline. Not so. Quite to the contrary, the Department informed the
utilities and the states that it would be unable to comply with the statutory
deadline that this court had just reaffirmed. In late 1996, the utilities
and the states initiated discussions with DOE and asked about the procedure
and schedule that the Department would follow to comply with the court's
decision. DOE responded to the utilities by announcing that it "will
be unable to begin acceptance of spent nuclear fuel for disposal in a repository
or interim storage facility by January 31, 1998." Utility Petitioners'
Pet. at Tab 1; see also Tab 2. The Department recognized that the delay
would affect "large number[s]" of contract holders, but nonetheless
expressed "uncertainty as to when DOE will be able to begin spent fuel
acceptance." Id. The letter ended by cordially inviting "the views
of all contract holders on how the delay can best be accommodated."
Id.
In a similar letter to the states, DOE wrote that it "understands that
states are concerned about the Department's delay," and expressed an
interest in talking with the states about how to mitigate the harm caused
by the delay. State Petitioners' Pet., Att. D. DOE's letter also revealed
one of its asserted reasons for the delay: "The Administration continues
to believe that interim storage siting should not proceed until the Department
has the benefit of the information resulting from the Yucca Mountain Project
Viability Assessment." Id. By the Department's own estimates, this
Yucca Mountain facility will not be operational until the year 2010. Exhibits
to Resp. Response, Tab 6, at 8.
On January 31, 1997, the utilities and state agencies separately petitioned
for a writ of mandamus, seeking to compel DOE to comply with Indiana Michigan
and begin disposal of the nuclear materials by January 31, 1998. Petitioners
also requested that their payments to the Nuclear Waste Fund be placed in
escrow unless and until DOE meets its obligations to dispose of SNF, and
asked that the court prohibit DOE from taking any punitive action toward
those who suspend payments to the Fund.
On June 3, 1997, DOE responded to comments submitted by contract holders
regarding the anticipated delay. The Department began by recognizing that
"Section 302 [of the NWPA] specifies that the contracts shall provide
for the Department to begin to dispose of spent fuel not later than January
31, 1998." Exhibits to Resp. Response, Tab 6, at 4. DOE then expressed
its belief that "the Standard Contract adopted by the Department pursuant
to Section 302 and entered into by the contract holders specifies the available
remedies in the event the Department is unable to meet the January 31, 1998
date." Id. Under Article IX of the contract, the Department asserted,
the Department was "not obligated to provide a financial remedy for
the delay," because the delay, in the Department's estimation, was
"unavoidable." Id. at 2. After conceding that the delay may result
in "hardship" to contract holders, DOE expressed its willingness
"to consider amendments to individual contracts that would mitigate
the impacts of the delay particular contract holders will experience in
the acceptance of their spent fuel." Id.
II. Discussion
Petitioners assert that a writ of mandamus is necessary to force DOE to
comply with Indiana Michigan and begin acceptance of the SNF by the 1998
deadline. Their argument rests on our prior conclusion that "section
302(a)(5)(B) [of the NWPA] creates an obligation in DOE, reciprocal to the
utilities' obligation to pay, to start disposing of the SNF no later than
January 31, 1998." 88 F.3d at 1277. DOE has not only failed to undertake
"further proceedings consistent with" the court's opinion, petitioners
argue, but has informed them of its plans to default on its obligations.
Petitioners draw special attention to the fact that the Department currently
accepts SNF from 41 foreign countries, from which they conclude that DOE
is not unable but is simply unwilling to meet the 1998 deadline. They submit
that a writ of mandamus is an appropriate remedy for the Department's refusal
to comply with Indiana Michigan and perform its duties by the deadline set
by Congress.1
We start our consideration of the petition with the observation that "[t]he
remedy of mandamus is a drastic one, to be invoked only in extraordinary
situations." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34,
101 S. Ct. 188, 190, 66 L.Ed.2d 193 (1980). Mandamus is proper only if "(1)
the plaintiff has a clear right to relief; (2) the defendant has a clear
duty to act; and (3) there is no other adequate remedy available to plaintiff."
Council of and for the Blind of Delaware County Valley v. Regan, 709 F.2d
1521, 1533 (D.C. Cir. 1983) (en banc). The party seeking mandamus has the
burden of showing that "its right to issuance of the writ is clear
and indisputable." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485
U.S. 271, 289, 108 S. Ct. 1133, 1143, 99 L.Ed.2d 296 (1988) (internal quotations
and citations omitted).
Petitioners have established that they have a clear right to relief, and
thus have satisfied the first requirement for a writ of mandamus. As we
explained in Indiana Michigan, the NWPA requires DOE, "in return for
the payment of fees," to begin disposing of the materials "not
later than January 31, 1998." 42 U.S.C. § 10222(a)(5)(B). We specifically
noted that the payment of fees into the Nuclear Waste Fund is the "only
limitation placed on the Secretary's duties" found in the text of the
statute. 88 F.3d at 1276. The owners and generators have dutifully complied
with the NWPA, pouring billions of dollars of payments into the Fund with
the expectation that DOE would live up to its end of the bargain. The Department,
on the other hand, has tersely informed the parties that it "will be
unable to begin acceptance of spent nuclear fuel for disposal in a repository
or interim storage facility by January 31, 1998." Utility Petitioners'
Pet. at Tab 1. Petitioners' full compliance with the requirements of the
NWPA, taken in conjunction with DOE's refusal to perform its reciprocal
duties, compels the conclusion that petitioners have established a clear
right to relief in this case.
The second requirement is also satisfied. DOE's duty to act could hardly
be more clear. DOE argued in Indiana Michigan that its obligations under
the NWPA were contingent on the existence of a repository or interim storage
facility. We held that DOE's interpretation was inconsistent with the text
of the NWPA, which clearly demonstrates a congressional intent that the
Department assume a contractual obligation to perform by the 1998 deadline,
"without qualification or condition." 88 F.3d at 1276. DOE's duty
to take the materials by the 1998 deadline is also an integral part of the
Standard Contract, which provides that the Department "shall begin"
disposing of the SNF by January 31, 1998. 10 C.F.R. § 961.11, Art.
II. The contractual obligations created consistently with the statutory
contemplation leave no room for DOE to argue that it does not have a clear
duty to take the SNF from the owners and generators by the deadline imposed
by Congress.
Although petitioners have a clear right to relief, and the Department has
a clear duty to act, we decline to issue the broad writ of mandamus sought
by petitioners because they are presented with another potentially adequate
remedy. Although the statute does not prescribe a particular remedy in the
event that the Department fails to perform on time, the Standard Contract
does provide a scheme for dealing with delayed performance. 10 C.F.R. §
961.11, Art. IX. Specifically, Article IX of the Standard Contract outlines
how the parties are to proceed if one party is unable to fulfill its obligations
in a timely manner. Under Article IX, unavoidable delays are to be treated
differently than avoidable delays. A failure to perform is considered "unavoidable"
only if such failure "arises out of causes beyond the control and without
the fault or negligence of the party failing to perform." Id. at Art.
IX.A. If a party's delay is determined to be unavoidable, that party is
not liable for damages caused by the failure to perform in a timely manner.
Id. An avoidable delay, in contrast, is caused by "circumstances within
the reasonable control" of the delinquent party. Id. at Art. IX. B.
If a party's delay is avoidable, the charges and schedules in the contract
must be equitably adjusted to reflect additional costs incurred by the other
party. Id. The contract also provides a mechanism for resolving disputes
of fact that the parties may encounter along the way. See id. at Art. XVI.
Petitioners have not convinced us that this contractual scheme is inadequate
to deal with DOE's anticipated delay in accepting the SNF. Petitioners have
suggested that the contractual processes are inadequate, claiming that they
will "suffer additional billions of dollars in additional costs if
DOE fails to meet its January 1998 obligation," Utility Petitioners'
Pet. at 4, and that they will not be able to recover these costs in the
contract proceedings because the Department is excusing its own default.
See Utility Petitioners' Reply at 2. Such costs may in fact ensue if DOE
fails to perform on time, but there is no reason to believe that these additional
expenses will not be taken into account if the contractual processes operate
as Congress intended. See infra at 11-13. Accordingly, we conclude that
petitioners must pursue the remedies provided in the Standard Contract in
the event that DOE does not perform its duty to dispose of the SNF by January
31, 1998. This conclusion, we should note, comports with our decision in
Indiana Michigan. Even though we did not enter a remedy at that time, we
suggested that the provisions of the Standard Contract would determine the
appropriate remedy for the Department's failure to perform its obligations.
88 F.3d at 1277.
A writ of mandamus is required, however, to compel DOE to comply with our
prior mandate in Indiana Michigan. See Office of Consumers' Counsel v. FERC,
826 F.2d 1136, 1140 ("A federal appellate court has the authority,
through the process of mandamus, to correct any misconception of its mandate
by a lower court or administrative agency subject to its authority.");
see also Potomac Electric Power Co. v. Interstate Commerce Comm., 702 F.2d
1026, 1032 (D.C. Cir. 1983). We held in Indiana Michigan that the NWPA imposes
an unconditional obligation, memorialized in the Standard Contract, to begin
disposing of the materials by January 31, 1998. We rejected the Department's
attempt to water-down its obligations, finding that DOE's interpretation
would "destroy[ ] the quid pro quo created by Congress" and would
mean that the payment of fees into the Nuclear Waste Fund "was for
nothing." 88 F.3d at 1276. To effectuate DOE's duty, as we recognized
in Indiana Michigan, petitioners must be able to enforce the terms of the
contract in a meaningful way. Petitioners' ability to enforce the contract
would be frustrated if DOE were allowed to operate under a construction
of the contract inconsistent with our prior conclusion that the NWPA imposes
an obligation on DOE "without qualification or condition." Id.
Viewed in this light, DOE's current approach toward contractual remedies
violates our directives in Indiana Michigan. As explained above, the Department
has endeavored to proceed according to Article IX of the Standard Contract,
by first informing the parties of its anticipated delay, and then evaluating
whether its own delay is "unavoidable." Article IX describes an
unavoidable delay as a party's " failure to perform its obligations
. . . aris[ing] out of causes beyond the control and without the fault or
negligence of the party failing to perform." 10 C.F.R. § 961.11,
Art. IX.A. The contract goes on to list a few examples of circumstances
"beyond the reasonable control" of the delayed party: "acts
of God, or of the public enemy, acts of Government in either its sovereign
or contractual capacity, fires, floods, epidemics, quarantine restrictions,
strikes, freight embargoes and unusually severe weather." Id. The Contracting
Officer isolated six factors that, taken together, supposedly support the
conclusion that DOE experienced an unavoidable delay in this case: technical
problems; regulatory delays; roadblocks to implementation of interim or
monitored retrievable storage; funding restrictions; litigation delays;
and consultation requirements. Exhibits to Resp. Response, Tab 6. Reaching
the preliminary conclusion that the delay was unavoidable, the Department's
Contracting Officer let DOE off the hook for monetary damages.
The most glaring problem with DOE's position is that it is answering the
wrong question: it is attempting to explain why it will not have a "state-of-
the-art, deep geologic facility for the permanent disposal of the Nation's
spent nuclear fuel and high- level waste" ready by 1998. Id. Put another
way, DOE's position is that its delayed performance is unavoidable because
it does not have an operational repository, and does not have the authority
to provide storage in the interim. DOE is simply recycling the arguments
rejected by this court in Indiana Michigan. DOE unsuccessfully argued in
that case that it does not have an obligation to take the SNF in the absence
of an operational repository or other facility; here, DOE recycles that
same argument in the slightly different form that it does not have responsibility
for the costs resulting from its failure to perform that duty because it
does not have an operational repository or other facility. As we pointed
out in Indiana Michigan, the NWPA directs DOE to undertake the duty to begin
taking the SNF by January 31, 1998, whether or not it has a repository or
interim storage facility. DOE cannot now render its obligation contingent,
and free itself of the costs caused by its delay, by advancing the same
failed position that we rejected before.
Given DOE's repeated attempts to excuse its delay on the ground that it
lacks an operational repository or interim storage facility, we find it
appropriate to issue a writ of mandamus to correct the Department's misapprehension
of our prior ruling. Accordingly, we order DOE to proceed with contractual
remedies in a manner consistent with NWPA's command that it undertake an
unconditional obligation to begin disposal of the SNF by January 31, 1998.
More specifically, we preclude DOE from concluding that its delay is unavoidable
on the ground that it has not yet prepared a permanent repository or that
it has no authority to provide storage in the interim.
This necessarily means, of course, that DOE not implement any interpretation
of the Standard Contract that excuses its failure to perform on the grounds
of "acts of Government in either its sovereign or contractual capacity."
10 C.F.R. § 961.11, Art. IX.A. We held in Indiana Michigan that the
NWPA imposes an unconditional duty on DOE to take the materials by 1998.
Congress, in other words, directed DOE to assume an unqualified obligation
to take the materials by the statutory deadline. Under the Department's
interpretation of the governing contractual provisions, however, the government
can always absolve itself from bearing the costs of its delay if the delay
is caused by the government's own acts. This cannot be a valid interpretation,
as it would allow the Executive Branch to void an unequivocal obligation
imposed by Congress. DOE has no authority to adopt a contract that violates
the directives of Congress, just as it cannot implement interpretations
of the contract that contravene this court's prior ruling. We hold that
this provision in the Standard Contract, insofar as it is applied to DOE's
failure to perform by 1998, is inconsistent with DOE's statutory obligation
to assume an unconditional duty.
III. Conclusion
In conclusion, we do not grant petitioners' broad request for a writ of
mandamus because we conclude that the remedial scheme of the Standard Contract
offers a potentially adequate remedy. We do, however, grant the petition
in part because DOE has not abided by our prior conclusion that the NWPA
imposes an unconditional obligation on the Department to begin disposal
of the SNF by January 31, 1998. We therefore issue a writ of mandamus precluding
DOE from excusing its own delay on the grounds that it has not yet prepared
a permanent repository or interim storage facility. We retain jurisdiction
over this case pending compliance with the mandate issued herewith.
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1997
No. 97-1064
NORTHERN STATES POWER COMPANY, ET AL., PETITIONERS
v.
UNITED STATES DEPARTMENT OF ENERGY
AND UNITED STATES OF AMERICA, RESPONDENTS
IES UTILITIES, INC., ET AL., INTERVENORS
Consolidated with Nos. 97-1065, 97-1370 and 97-1398
No. 98-1069
IN RE: MAINE YANKEE ATOMIC POWER CO., PETITIONER
No. 98-1070
IN RE: SOUTHERN NUCLEAR OPERATING CO., ET AL., PETITIONERS
[Filed: May 5, 1998]
ORDER
Before: WILLIAMS, GINSBURG and SENTELLE, Circuit Judges.
Upon consideration of the Motions to Consolidate from Maine Yankee and Southern
Nuclear; the Motions from the Department of Energy to Dismiss the suits
of Maine Yankee and Southern Nuclear; the Motions for Enforcement of the
Mandate from the State Petitioners, the Utility Petioners [sic], and Connecticut
Yankee; and the Petitions for Rehearing from Yankee Atomic and the Department
of Energy, and the responses thereto and the replies, it is hereby
ORDERED that the Motions to Consolidate are granted. The Petitions and Motions
are otherwise denied.
I. Maine Yankee and Southern Nuclear Operating Company are parties to the
Department of Energy's ("DOE") Standard Contract for Disposal
of Spent Nuclear Fuel ("SNF"). Their suits against the DOE present
issues identical to those raised by the Utility Petitioners in Northern
States Power Co. v. DOE, 128 F.3d 754 (D.C. Cir. 1997). To make clear that
they are entitled to identical relief, we grant the motion to consolidate.
Our disposition of the motions for enforcement and petitions for rehearing,
discussed below, applies in full measure to Maine Yankee and Southern Nuclear.
II. The DOE moves for dismissal of the actions of Maine Yankee and Southern
Nuclear. Those utilities are entitled to the same relief as the other Utility
Petitioners; consequently, we do not dismiss their suits but instead consolidate
them with Northern States. The relief awarded in that decision extends to
them. To the extent that they join in the Utility Petitioners' motions,
the following dispositions also apply to them. The DOE's motion is denied.
III. The State Petitioners request an order that (1) bars the DOE from using
utility and ratepayer- supplied monies from the Nuclear Waste Fund ("NWF")
or fee collections to pay any costs or damages awarded to utilities under
the Standard Contract; (2) authorizes the payment of NWF fees into an interest-
bearing escrow account; and (3) requires the DOE to file a plan for disposing
of SNF before receiving any more shipments of foreign or domestic SNF at
its existing facilities.
We express no opinion on the legality of the DOE's using utility or ratepayer-supplied
monies to pay costs or damages, nor on the adequacy of any particular type
of equitable adjustment of fees that might be awarded to utilities under
the Delays Clause of the Standard Contract. Our decision in Northern States
barred the DOE from interpreting the Contract as imposing only a contingent
disposal obligation; such an interpretation, we ruled, would place the DOE
in violation of its statutory duties under the Nuclear Waste Policy Act
("NWPA"), which required it to undertake an unconditional obligation.
Beyond that clarification of the statute's requirements, we remitted the
utilities to their remedies under the Standard Contract. Suits based on
the Contract may present issues of the permissible forms of equitable adjustment,
and possibly the award of some forms of equitable adjustment would place
the DOE in violation of the NWPA and again properly trigger our jurisdiction
(as opposed to that of the Court of Federal Claims) under either the NWPA
or the APA. But as the DOE has not yet taken any of these actions, the issues
are not ripe for review as presented to us in these petitions.
The second and third elements of the State Petitioners' requested order
constitute equitable contract remedies against the DOE and fall outside
the scope of the Northern States mandate. Northern States describes the
nature of the DOE's obligation, which was created by the NWPA and undertaken
by the DOE under the Standard Contract. It does not place the question of
contract remedies in this court, nor set up this court as a source of remedies
outside the Standard Contract.
IV. The Utility Petitioners request essentially the same relief as the State
Petitioners. For the same reasons, their request is denied.
V. Yankee Atomic requests an order requiring the DOE to begin to dispose
of its SNF, asserting that monetary damages are inadequate. We do not address
the question of the adequacy of damages or of any contract remedy. The order
cannot issue because enforcement of our mandate does not extend to requiring
the DOE to perform under the Standard Contract. While the statute requires
the DOE to include an unconditional obligation in the Standard Contract,
it does not itself require performance. Breach by the DOE does not violate
a statutory duty; thus, our jurisdiction to hear allegations of failure
to take an action required under the NWPA, see 42 U.S.C. § 10139(a)(1)(B),
does not provide a basis for a move-fuel order.
VI. Connecticut Yankee requests an order prohibiting the DOE from using
NWF monies to compensate utilities for delay, and requiring the DOE to move
Connecticut Yankee's spent fuel. This request is covered by the discussion
above: the issue of recycling NWF monies is not ripe, and the move-fuel
order is beyond our mandate.
VII. The DOE petitions for rehearing, suggesting that this Court has erroneously
designated itself as the proper forum for adjudication of disputes arising
under the Standard Contract. As the above should make clear, we did not;
we merely prohibited the DOE from implementing an interpretation that would
place it in violation of its duty under the NWPA to assume an unconditional
obligation to begin disposal by January 31, 1998. The statutory duty to
include an unconditional obligation in the contract is independent of any
rights under the contract. The Tucker Act does not prevent us from exercising
jurisdiction over an action to enforce compliance with the NWPA. The DOE's
petition is denied.
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/ MICHAEL C. MCGRAIL
MICHAEL C. MCGRAIL
Deputy Clerk
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1997
No. 97-1064
NORTHERN STATES POWER COMPANY (MINNESOTA),
ET AL., PETITIONERS
v.
DEPARTMENT OF ENERGY AND UNITED STATES
OF AMERICA, RESPONDENTS
IES UTILITIES, INC., ET AL., INTERVENORS
Consolidated with Nos. 97-1065, 97-1370, 97-1398
[Filed: May 5, 1998]
Before: EDWARDS, Chief Judge; WALD, SILBERMAN, WILLIAMS, GINSBURG, SENTELLE,
HENDERSON, RANDOLPH, ROGERS, TATEL and GARLAND, Circuit Judges.
ORDER
Upon consideration of respondents' Suggestion for Rehearing In Banc, and
the absence of a request by any member of the court for a vote, it is
ORDERED that the suggestion be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/ ROBERT A. BONNER
ROBERT A. BONNER
Deputy Clerk
Circuit Judges Silberman and Garland did not participate in this matter.
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SEPTEMBER TERM, 1997
No. 97-1064
NORTHERN STATES POWER COMPANY (MINNESOTA),
ET AL., PETITIONERS
v.
DEPARTMENT OF ENERGY AND UNITED STATES
OF AMERICA, RESPONDENTS
IES UTILITIES, INC., ET AL., INTERVENORS
Consolidated with Nos. 97-1065, 97-1370, 97-1398, 98-1069, 98-1070
No. 98-1201
SOUTHERN CALIFORNIA EDISON COMPANY, PETITIONER
v.
DEPARTMENT OF ENERGY, RESPONDENT
No. 97-1213
WASHINGTON PUBLIC POWER SUPPLY SYSTEM AND
SOUTH CAROLINA ELECTRIC & GAS COMPANY, PETITIONERS
v.
DEPARTMENT OF ENERGY, RESPONDENT
[Filed: July 2, 1998]
ORDER
Before: WILLIAMS, GINSBURG, AND SENTELLE, Circuit Judges.
Upon consideration of the petitions for review and for a writ of mandamus,
the motion to consolidate, the motion to dismiss, the joint motion to withdraw,
and the stipulation regarding the response to the petition for review in
98-1213, it is
ORDERED that the motions to consolidate be granted. It is
FURTHER ORDERED that the petitions be denied. Because the holding of Northern
States v. Department of Energy, 128 F.3d 754 (D.C. Cir. 1997), bars the
Department of Energy from utilizing its previous interpretation of the Nuclear
Waste Policy Act in dealings with any entity, and because Standard Contract
holders must seek remedies available under the contract in other fora, these
cases and No. 97-1067 are concluded and no further relief can be sought
therein. See Northern States v. Department of Energy, No. 97-1064 (D.C.
Cir. May 5, 1998) (order explaining reasons for refusal to grant relief
on post-judgment petitions for review and for mandamus).
The Clerk is directed to withhold issuance of the mandate herein until seven
days after the disposition of any timely petition for rehearing. See D.C.
Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/ MICHAEL C. MCGRAIL
MICHAEL C. MCGRAIL
Deputy Clerk/LD
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SEPTEMBER TERM, 1997
No. 97-1064
NORTHERN STATES POWER COMPANY (MINNESOTA),
ET AL., PETITIONERS
v.
DEPARTMENT OF ENERGY AND UNITED STATES
OF AMERICA, RESPONDENTS
IES UTILITIES, INC., ET AL., INTERVENORS
Consolidated with Nos. 97-1065, 97-1370, 97-1398, 98-1069, 98-1070
No. 98-1284
DAIRYLAND POWER COOPERATIVE, PETITIONER
v.
DEPARTMENT OF ENERGY AND UNITED STATES OF AMERICA, RESPONDENTS
[Filed: July 2, 1998]
ORDER
Before: WILLIAMS, GINSBURG, AND SENTELLE, Circuit Judges.
Upon consideration of the petition for review and the motion for consolidation
with No. 97-1064, it is
ORDERED that the petition be denied, for the reasons stated in the court's
order filed May 5, 1998, in Northern States v. Department of Energy, No.
97-1064. It is
FURTHER ORDERED that the motion to consolidate be dismissed as moot.
The Clerk is directed to withhold issuance of the mandate herein until seven
days after disposition of any timely petition for rehearing. See D.C. Cir.
Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/ MICHAEL C. MCGRAIL
MICHAEL C. MCGRAIL
Deputy Clerk/LD
APPENDIX D
UNITED STATES COURT OF APPEALS,
DISTRICT OF COLUMBIA CIRCUIT
Nos. 95-1279, 95-1321 AND 95-1463
INDIANA MICHIGAN POWER COMPANY, ET AL., PETITIONERS
v.
DEPARTMENT OF ENERGY AND UNITED STATES OF AMERICA, RESPONDENTS, NORTHERN
STATES POWER COMPANY (MINNESOTA), ET AL., INTERVENORS
[Argued: Jan. 17, 1996
Decided: July 23, 1996]
Before: WILLIAMS, GINSBURG, AND SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
The Nuclear Waste Policy Act ("NWPA") of 1982 authorized the Secretary
of Energy ("Secretary") to enter contracts with owners and generators
of high- level radioactive waste and spent nuclear fuel ("SNF")
under which the private parties were to pay the Secretary statutorily imposed
fees in return for which the Secretary, "beginning not later than January
31, 1998, will dispose of the high-level radioactive waste or [SNF] involved."
42 U.S.C. § 10222(a)(5)(B) (1994). Petitioners are utilities and state
commissions who paid fees to the Secretary under the statute. They seek
review of the Department of Energy's ("DOE") final interpretation
declaring that the Department has no obligation to perform its part of the
contractual bargain. We conclude that the Department's interpretation is
not valid and we therefore allow the petition for review.
Background
In the NWPA, Congress created a comprehensive scheme for the interim storage
and permanent disposal of high-level radioactive waste generated by civilian
nuclear power plants. NWPA establishes that, in return for a payment of
fees by the utilities, DOE will construct repositories for SNF, with the
utilities generating the waste bearing the primary responsibility for interim
storage of SNF until DOE accepts the SNF "in accordance with the provisions
of this chapter." 42 U.S.C. § 10131(a)(5).
The NWPA requires the utilities to enter into standard contracts with DOE
for the disposal of the waste. According to the statute, the contracts shall
provide that:
(A) following commencement of operation of a repository, the Secretary shall
take title to the high-level radioactive waste or spent nuclear fuel as
expeditiously as practicable upon the request of the generator or owner
of such waste or spent fuel; and
(B) in return for the payment of fees established by this section, the Secretary,
beginning not later than January 31, 1998, will dispose of the high-level
radioactive waste or spent nuclear fuel as provided in this subchapter.
42 U.S.C. § 10222(a)(5). The final standard contract adopted by DOE,
following notice and comment, states that "[t]he services to be provided
by DOE under this contract shall begin, after commencement of facility operations,
not later than January 31, 1998 and shall continue until such time as all
SNF . . . from the civilian nuclear power reactors specified . . . has been
disposed of." 10 C.F.R. § 961.11, Art. II (1996).
In 1993, several states and utilities became concerned about DOE's ability
to meet its obligations under the NWPA. Therefore, they requested DOE to
address its responsibilities under the NWPA, particularly section 302(a)(5),
42 U.S.C. § 10222(a)(5), and the January 31, 1998 deadline. Daniel
Dreyfuss, Director of DOE's Office of Civilian Radioactive Waste Management,
responded in a letter that DOE "does not have a clear legal obligation
under the [NWPA] to accept [SNF] absent an operational repository or other
facility." In February 1994, DOE's Secretary, Hazel O'Leary, indicated
that, while at the time NWPA was enacted DOE "envisioned that it would
have a waste management facility in operation and prepared to begin acceptance
of [SNF] in 1998," DOE subsequently concluded it did not have "a
clear legal obligation under the [NWPA] to accept [SNF] absent an operational
repository or other facility constructed under the [NWPA]."
To address this issue, on May 25, 1994, DOE published a Notice of Inquiry
on Waste Acceptance Issues ("NOI"), requesting the views of affected
parties on matters relating to the continued storage of SNF at reactor sites
beyond 1998. 59 Fed. Reg. 27,007 (1994). DOE presented its preliminary finding
that it had "no statutory obligation to accept [SNF] beginning in 1998
in the absence of an operational repository or other facility constructed
under the [NWPA]." Id. at 27,008. DOE did note, however, that the terms
of the Standard Contract may have created such an expectation. Id.
On June 20, 1994, utility petitioners ("utilities") and state
petitioners ("states") filed petitions for review against DOE.
This Court dismissed the petitions, finding that the NOI did not constitute
final agency action. Northern States Power Co. v. DOE, Nos. 94-1457, 94-1458,
94-1574, 1995 WL 479714 (D.C. Cir. July 28, 1995) (order granting motion
to dismiss case).
On April 28, 1995, DOE issued its Final Interpretation. Final Interpretation
of Nuclear Waste Acceptance Issues, 60 Fed. Reg. 21,793 (1995). In the Final
Interpretation, DOE stated that it would not be able to begin taking SNF
by January 31, 1998, the date established by the NWPA. Id. at 21,793-94.
DOE concluded that it did not have an unconditional statutory or contractual
obligation to accept high-level waste and spent fuel beginning January 31,
1998 in the absence of a repository or interim storage facility constructed
under the NWPA. Id. The agency also determined that it had no authority
under the NWPA to provide interim storage in the absence of a facility that
has been authorized, constructed and licensed in accordance with the NWPA.
Id. at 21,797. Finally, DOE declared that, even if it did have an unconditional
obligation under the statute, the Delays Clause of the Standard Contract
would provide an administrative remedy for DOE's failure to satisfy an obligation
under the statute. Id.
Petitioners and intervenors then filed their petitions for review of the
Final Interpretation.
Analysis
In reviewing an agency's construction of a statute entrusted to its administration,
we follow the two-step statutory analysis established in Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104
S. Ct. 2778, 81 L.Ed.2d 694 (1984). First, we ask whether Congress has spoken
unambiguously to the question at hand. If it has, then our duty is clear:
"We must follow that language and give it effect." Wisconsin Elec.
Power Co. v. DOE, 778 F.2d 1, 4 (D.C.Cir.1985). If not, we consider the
agency's action under the second step of Chevron, deferring to the agency's
interpretation if it is "reasonable and consistent with the statute's
purpose." Nuclear Info. Resource Serv. v. NRC, 969 F.2d 1169, 1173
(D.C. Cir. 1992) (quoting Chemical Mfrs. Ass'n v. EPA, 919 F.2d 158, 162-63
(D.C. Cir. 1990)). We now apply that review to the Department's interpretation
of section 302(a)(5)(B).
Section 302(a)(5)(B) states that "in return for the payment of fees
. . . [DOE], beginning not later than January 31, 1998, will dispose of
the [SNF]. . . ." The states and utilities contend that this provision
means what it says: in return for the payment of fees to the utilities,
DOE will begin accepting SNF not later than January 31, 1998. DOE argues
that this language does not in fact require it to begin to dispose of SNF
by January 31, 1998; rather, the agency contends that this obligation is
further conditioned on the availability of a repository or other facility
authorized, constructed, and licensed in accordance with the NWPA. DOE contends
that this is the only interpretation possible when one examines the statute
as a whole.
To support this interpretation, the Department first argues that Congress's
use of the term "dispose" in section 302(a)(5)(B), which provides
that DOE "will dispose of the high-level radioactive waste or spent
nuclear fuel involved as provided in this subchapter," presupposes
the availability of a repository. Although conceding that the statute does
not define "dispose," DOE notes that the statute does define "disposal"
as "the emplacement in a repository of . . . spent nuclear fuel . .
. with no foreseeable intent of recovery." 42 U.S.C. § 10101(9).
DOE contends that "dispose" is simply a different grammatical
form of "disposal," and that Congress must have intended the two
terms be interpreted consistently. Thus, it argues, section 302 must require
a repository be operational before DOE may begin accepting SNF.
We disagree. The phrase "dispose of " is a common term. It has
a common meaning. For example, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
UNABRIDGED 654 (1961) defines it as meaning, among other things, "to
get rid of; throw away; discard." Admittedly, that and other dictionaries
list other definitions. Each of those definitions, however, is consistent
with the one set forth and not consistent with a limitation for placing
the object of the phrase "in the disposal." There is no indication
in the statute that Congress intended the words to be used in any but their
common sense. See McNally v. United States, 483 U.S. 350, 358-59, 107 S.
Ct. 2875, 2880-81, 97 L.Ed.2d 292 (1987) (interpreting commonly used phrase
according to "common understanding" where Congress had "not
indicat[ed]" an intent to depart from it). Indeed, the very fact that
Congress defined "disposal" restrictively and did not define "dispose"
bears mute testimony to the strong possibility that Congress intended the
former as a term of art, the latter as common English. Indeed, DOE itself
has previously concluded that the statutory definition of "disposal"
was not intended to define "dispose of." In an April 1, 1987 letter,
DOE's general counsel, although responding to a different issue, wrote "we
doubt that the[se] terms were intended to have identical meanings."
Furthermore, if DOE's obligation to dispose of waste was linked exclusively
to the Act's definition of "disposal" then that obligation would
be conditioned only upon the availability of a repository. However, Article
II of the Standard Contract provides that DOE will provide its services
after commencement of "facility" operations, 10 C.F.R. 961.11,
with "facility" being defined as including both a repository and
"such other facilit[ies] to which spent nuclear fuel and/or high-level
radioactive waste may be shipped by DOE prior to its transportation to a
disposal facility." Id. at Article I. It is difficult to see how that
paragraph and the Department's interpretation of the statutory section can
sensibly coexist.
Perhaps more importantly, we must interpret the section in light of the
whole statutory scheme. See Bailey v. United States, -- U.S. --, --, 116
S. Ct. 501, 506, 133 L.Ed.2d 472 (1995) (observing that a court must "consider
not only the bare meaning of the word but also its placement and purpose
in the statutory scheme.") In the scheme before us, indeed in another
subsection of the very section under review, Congress used even the elsewhere
narrowly defined "disposal" to encompass more than "emplacement
in a repository of . . . spent nuclear fuel . . . with no foreseeable intent
of recovery." That is, in section 302(d), 42 U.S.C. § 10222(d),
Congress authorizes the Secretary to make expenditures "for purposes
of radioactive waste disposal activities," and expressly includes within
the ambit of authorized "disposal" activities those conducted
not only in connection with repositories, but also with "any . . .
monitored retrievable storage facility or test and evaluation facility constructed
under this chapter." 42 U.S.C. § 10222(d)(1). Therefore, even
if we look to Congress's use of "disposal" to enlighten our interpretation
of "dispose of," we still find that Congress has not evidenced
limited usage for which the Department argues.
DOE next argues that subsections (A) and (B) of 302(a)(5) are not independent
provisions, but rather must be read together because taking title to the
waste cannot be separated from the disposal activities. To support this
proposition, DOE cites section 302(a)(1), which describes the Standard Contract
as "for the acceptance of title, subsequent transportation, and disposal
of such waste or spent fuel" and section 123, which provides that "[d]elivery
and acceptance by the Secretary, of any high-level radioactive waste or
spent nuclear fuel for a repository constructed under this part shall constitute
a transfer to the Secretary of title to such waste and spent fuel."
42 U.S.C. § 10143. Respondent contends that these provisions evince
Congress's intent that DOE take title to the waste before proceeding with
disposal. According to DOE, any other interpretation of these sections would
result in an anomaly in which one party would have ownership of the SNF
while another party would have physical control of it.
We do not find this argument persuasive. Sections 302(a)(5)(A) and (B) clearly
set forth two independent requirements. These separate obligations are independent
of whether DOE holds title to SNF when it begins to dispose of the material.
The duties imposed on DOE under subsections (A) and (B) are linked to different
events and are triggered at different times. DOE's duty under subsection
(A) to take title to the SNF is linked to the commencement of repository
operations and is triggered when a generator or owner of SNF makes a request
to DOE. DOE's duty under subsection (B) to dispose of the SNF is conditioned
on the payment of fees by the owner and is triggered, at the latest, by
the arrival of January 31, 1998. Nowhere, however, does the statute indicate
that the obligation established in subsection (B) is somehow tied to the
commencement of repository operations referred to in subsection (A).
This conclusion is reinforced by the placement of the two requirements in
the Standard Contract. DOE's obligation to dispose of SNF under section
302(a)(5)(B) is set forth in Article II-Scope, 10 C.F.R. § 961.11,
whereas DOE's obligation to take title to SNF under section 302(a)(5)(A)
is set forth in Article VII-Title. Id. In addition, contrary to DOE's assertions,
it is not illogical for DOE to begin to dispose of SNF by the 1998 deadline
and yet not take title to the SNF until a later date. As the utilities point
out, it is not unusual, particularly in the nuclear area, to recognize a
division between ownership of materials and other obligations relating to
such materials. For example, the Nuclear Regulatory Commission recognizes
a distinction between the ownership of nuclear materials and the right to
possess or use such materials. See also 10 C.F.R. § 70.20; 10 C.F.R.
§ 40.21.
In fact, a comparison of paragraphs (A) and (B) argues against the Department's
position. In (A), Congress expressly conditioned the obligation of the Secretary
on the commencement of the operation of a repository. In (B), Congress imposed
no such condition, but rather directed the beginning of the Secretary's
duty as "not later than January 31, 1998," without qualification
or condition. The only limitation placed on the Secretary's duties under
(B) is that that duty is "in return for the payment of fees established
by this section." The Department's treatment of this statute is not
an interpretation but a rewrite. It not only blue- pencils out the phrase
"not later than January 31, 1998," but destroys the quid pro quo
created by Congress. It does not survive the first step of the Chevron analysis.
467 U.S. at 842-43, 104 S. Ct. at 2781-82. Under the plain language of the
statute, the utilities anticipated paying fees "in return for [which]
the Secretary" had a commensurate duty. She was to begin disposing
of the high-level radioactive waste or SNF by a day certain. The Secretary
now contends that the payment of fees was for nothing. At oral argument,
one of the panel compared the government's position to a Yiddish saying:
"Here is air; give me money," and asked counsel for the Department
to distinguish the Secretary's position. He found no way to do so, nor have
we.
Finally, respondent asserts that reading subsection (B) as creating an unconditional
obligation cannot be reconciled with other requirements of the statute,
noting that the NWPA provides a complex scheme for the authorization, construction
and licensing of a repository or monitored retrieval storage facility. DOE
contends that "many contingencies facing the commencement of repository
operations strongly undercut the assumption that Congress intended to require
disposal by 1998 no matter what the outcome."
Although Congress anticipated the existence of a repository by 1998, the
fact that such a repository does not exist does not make subsection (B)
illogical; it simply affects the remedy we can provide. We agree with DOE
that Congress contemplated a facility would be available by 1998; however,
that Congress contemplated such a facility would be available does not mean
that Congress conditioned DOE's obligation to begin acceptance of SNF on
the availability of a facility. It does not make sense to assert that Congress
would express an intent to exempt DOE from the January 31, 1998 deadline
by including specific statutory procedures regarding the siting and development
of a repository in the NWPA. Rather, these prerequisites evince a strong
congressional intent that DOE's various obligations be performed in a timely
manner. See, e.g., Tennessee v. Herrington, 806 F.2d 642, 648 (6th Cir.
1986) ("[T]he overall structure of the Act does reveal a consistent
concern for timely implementation of the disposal provisions."), cert.
denied, 480 U.S. 946, 107 S. Ct. 1604, 94 L.Ed.2d 790 (1987). DOE's interpretation
of the provisions does not harmonize them. Instead, its interpretation reads
into section 302(a)(5)(B) language that appears only in section 302(a)(5)(A)
and reads out of section 302(a)(5)(B) language that actually appears in
that provision.
It is premature to determine the appropriate remedy, particularly as to
the interaction between Article XI and Article XVI of the Standard Contracts,
as DOE has not yet defaulted upon either its statutory or contractual obligation.
We therefore will remand this matter for further proceedings consistent
with this opinion.
Conclusion
In conclusion, we hold that the petitioners' reading of the statute comports
with the plain language of the measure. In contrast, the agency's interpretation
renders the phrase "not later than January 31, 1998" superfluous.
Thus, we hold that section 302(a)(5)(B) creates an obligation in DOE, reciprocal
to the utilities' obligation to pay, to start disposing of the SNF no later
than January 31, 1998. The decision of the Secretary is vacated, and the
case is remanded for further proceedings consistent with this opinion.
APPENDIX E
1. Section 119 of the Nuclear Waste Policy Act of 1982 (NWPA), as amended,
42 U.S.C. 10139, provides in pertinent part:
(a) Jurisdiction of the court of appeals
(1) * * * the United States courts of appeals shall have original and exclusive
jurisdiction over any civil action-
(A) for review of any final decision or action of the Secretary * * * under
this part;
(B) alleging the failure of the Secretary * * * to make any decision, or
take any action, required under this part;
* * * * *
(c) Deadline for commencing action
A civil action for judicial review described under subsection (a)(1) of
this section may be brought not later than the 180th day after the date
of the decision or action or failure to act involved, as the case may be,
except that if a party shows that he did not know of the decision or action
complained of (or of the failure to act), and that a reasonable person acting
under the circumstances would not have known, such party may bring a civil
action not later than the 180th day after the date such party acquired actual
or constructive knowledge of such decision, action, or failure to act.
2. Section 302(a) of the NWPA, as amended, 42 U.S.C. 10222(a), provides
in relevant part:
(a) Contracts
(1) In the performance of his functions under this chapter, the Secretary
[of Energy] is authorized to enter into contracts with any person who generates
or holds title to high-level radioactive waste, or spent nuclear fuel, of
domestic origin for the acceptance of title, subsequent transportation,
and disposal of such waste or spent fuel. Such contracts shall provide for
payment to the Secretary of fees pursuant to paragraphs (2) and (3) sufficient
to offset expenditures described in subsection (d) of this section.
* * * * *
(5) Contracts entered into under this section shall provide that-
(A) following commencement of operation of a repository, the Secretary shall
take title to the high-level radioactive waste or spent nuclear fuel involved
as expeditiously as practicable upon the request of the generator or owner
of such waste or spent fuel; and
(B) in return for the payment of fees established by this section, the Secretary,
beginning not later than January 31, 1998, will dispose of the high-level
radioactive waste or spent nuclear fuel involved as provided in this subchapter.
(6) The Secretary shall establish in writing criteria setting forth the
terms and conditions under which such disposal services shall be made available.
1 The state petitioners also contend that a writ of mandamus is warranted,
wholly apart from our decision in Indiana Michigan, under Telecommunications
Research & Action Center v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) ("TRAC").
State Petitioners' Pet. at 9-12. Because we issue a writ of mandamus to
effectuate our decision in Indiana Michigan, we decline to reach the additional
question of whether issuance of the writ would have been proper under TRAC.
40a