                                                                                                                           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Precedential or Non-Precedential: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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"Appalachian States v. Secretary Energy" (1996). 1996 Decisions. Paper 89.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/89


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                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.
