as the court is no doubt away from reviewing the record this case the united states government for many years generated reprocessing waste in the process of producing radioactive isotopes used in nuclear weapons this presents a problem which the department of energy has devoted many years and will continue to vote many years to attempting to solve a longstanding approach the department has adopted is to use risk based criteria to distinguish those waste streams that require isolation those which do not that those risk based criteria were moralized in order for three five point one issued in one nine hundred ninety nine which set forth a general criteria and procedures to be used in making those types of  w r determination is likely and i underscore the word likely to be publicly disclosed by state regulatory fishelson through the environmental review process well before implementation i'm troubled by the word likely because it suggests something less than certain well that's maybe the rightness question because when is the appropriate time to challenge something i can understand the argument that says look if there's no way this goes any place in a particular situation without it being challenge will that then this isn't the right time but if you can't tell me that the application will be surely challengeable then watch what's in a parking about challenging at the state show it certainly  appears on page eighteen of the brief and i calyx bold this is an as applied challenge that is they say they are challenging the application of the criteria to the decisions they anticipate delia making at two hundred thirty nine approximately tanks that are located waste disposal tanks that are located at the three sites and as applied challenge as a matter of law under the a p a cannot run until it's final so my first response to you on his question is with all due respect i believe the practical limitations cannot get around the a p s requirement a final agency action in fact i don't believe it i think that is what the supreme court president mandates particularly the luan case where one vs national wildlife federation which rejected this kind of broad challenge to an agency program which is really what they're doing they're basically challenging by saying we are challenging the decisions they anticipate deal we making at these two hundred thirty nine tanks they are challenging an ongoing agency program not a final agency action so my first response to your honest question is with all due respect i think the court cannot entertain the challenge absent final agency action even if there might be some practical difficulties but you know what you are correct i cannot stand here in the face and tell the court that i know to an absolute certainty that these will be disclosed in advance that language we used in the brief was deliberate because we didn't want to mislead the court we do think it is highly likely that they will in fact have noticed the states are here they are represented i understand they intend to participate in the argument they may be able to sure that that's the way i understand their argument but if you are saying as a general argument you argue this is thanks to how you went on the argument that the statute doesn't apply here right maybe that's news you'd like to get now i can't i can't deny that you're that sounds more like a purely legal question than most of the other issues that raise which do depend on various claims about what the government is likely to do and what the effects environmental effects of its actions are likely to be a not withstanding that you're on i think there are two points that need to be ma of order for three five point one or at least challenge portion of third issue here deal with the criteria the department would use to classify the waves and their arguments to that it seems to me are clearly not right to go through factual issues cite specific issues and there are no final agency decisions making making those decisions so it's difficult for me to separate that the separate a legal issue out and say you can just define decide this in the abstract as a government's intention as things stand ways that whether the government is required to send other ways that that it acknowledges a high level waste to a geological positive or if it really becomes an academic dispute it seems to me if the criteria we've used for distinguishing between high level and other types of ways consul are valid because of the high level waste argument that it seems to be floating in the green just puzzles me completely the order itself and the manual make it clear that it will be just simply clear to me looks like they say it's going to be disposed of in accordance with the act you seem to be arguing we don't have to pay any attention to the and we can just do whatever we want as part of our management i don't know i don't see that in the order this being attacked i get that emanation from the from the geological positon no matter what that wouldn't make the order invalid that simply would be the court's interpretation of what the law requires us to do with high level waste in the way we've got into this issue as you know this court this case has previously before this court which ruled basically that the nuclear waste policy act requires that every every really every last molecule as far as i understand their position has to go to a geologic repository even if it's a deal we in the exercise can for example paint a license from the nuclear regulatory commission under section two of the the e r a the energy reorganization act to manage it on site we disputed that so the issue i don't think really ultimately of whether there is a requirement to dispose of all high level waste in a geologic a court said we were climbing unfettered discretion we're claiming nothing of the sort there you know we has the authority under twenty one twenty one forty two u s c twenty one twenty one twenty three to manage to dismantle the disposal disagrees with the waste management decision for challenge a final agency action under the a p a that is not consistent with all duty under the atomic energy act to provide for the safest possible of waste what we are saying is congress when it provided for geologic in the statute to see whether there's any indication clear indication that congress intended to do that here we have a clear indication in two distinct provisions that we cite in our brief that congress didn't intend that the congress in fact  some way supersede the department's authority under the atomic energy act we submit there are two notable aspects of the nuclear waste policy x definition of high level waste first it makes clear that the department will indeed take into the has taken to account the hazard that is the risk of the waste second the definition is sufficiently broad referring for example to sufficient concentrations of radionuclides referring to the need for geologic isolation referring to  radioactive waste without the finding those terms that the statute that the definition clearly makes an implied delegation to the agency to fill in the gaps to explain what are sufficient concentrations that's what the criteria that are being challenged the  aren't adequate to protect public health so we have here a case in which the department has adopted as a central and central part of its criteria for distinguishing between high level waste on the one hand and low level or or waist on the other health based performance objectives used for many years by the n r c not as far as i've been able to tell from a district court reste challenged and uneven certainly not invalidated or found suspect in any way by the district court that challenge so i've been puzzled by that all along ok your honor we believe that we meet both tests but we believe that this is an as applied challenge because the district court made two particular findings first that this is both highly radioactive waste and the result of reprocessing and that this order will apply to the two hundred thirty nine tanks in the three states around the country and in this order has a specific application to those tanks so that's why we see it as an as applied challenge we also beneath the district cour ruling the facial challenge test is also met because there is no potential opportunity for the we are criteria i'm sorry the waste incidental to reprocessing criteria three the order is subject to the act because the act directs disposal based on waste classification under section one i want to own one twelve the definition of high level waste and one zero one zero one not a political via section eight any of the act which goes to management authority your honor this is not management authority this is classification  lacks what's left the rest of section eight your honor and we think the district court gave meaning to the entirety of section eight as it understood the important thing to note which  be no interference with nuclear weapons production by the waste management and disposal activities that were ongoing at the time that the act was passed congress then went on to lay out in section eight inspection binny and evaluation by the president and by the agency to first in be one make a decision whether they would dispose of their high level waste and a defense only repositor or in a co mingled repository commingled with the spent nuclear fuel from commercial production then in subsection be to the this is the district court found the president must make a decision based on the recommendation of that agency the agency chose to dispose of it's high level waste commingled in that repulse atory the three which doesn't apply here  secretary shall proceed promptly with arrangement for the use of one or more of the repository is to be developed under part of the subchapter and then the as the district court noted such arrangements shall include and this is mandatory statutory language and it's not merely just a cost allocation include is merely just one of the factors a signature used that shows you know this is if if they want to use this facility this is what is on them and they chose to use this facility and the directive that president reagan signed in one nine hundred eighty five expressly states and this is found at supplemental excerpts of the record one thirty eight any that the agency should proceed with plans and actions to dispose of defense waste in a commercial repository to to to read section eight to allow the agency to merely make the evaluation and an elective exercise would be to notify the next page of the statute section one hundred one to one  where state in effect of private participation in development of the proposed repositories for defense waste the options the agency had your honour's come down to cite their own defense repository which is under b three what would have applied if they cited their own defense repository the agency chose not to go down that road when president reagan signed his directive in one thousand nine hundred five or the option that does apply under eight c is to cite with commercial feel so console may be slightly off point but i'm not sure i can either because part of your argument was that once this stuff kind of looks like high high level waste for it's mixed up and some of its high level waste that they are prohibited from processing it further to remove it's high level waste characteristic and leave it behind you politically suppose the brilliant d o d scientists covered a way to convert all water off to the repository because they can't do anything to eliminate its high level waste character i wrong about that yes your honor that's not our argument our argument is is is the argument of of whether and when they can remove the waste from the tanks treat that waste such that it no longer has fission products in sufficient concentration and it's in a solid form just as the district court found one that's a question for another day and that's not the issue before this court the issue before this court is the is the application of the we are criteria to the waste in these tanks but if they can remove it turn it into water that's harmless or for example maybe a better actual more realistic interpretation is something where they remove it and they can separate some portion into a highly reactive in into a highly radioactive portion that can go to a concrete block i understand you've drawn that distinction and that can be done for solid form but suppose the separation leaves the residue still in liquid form bot with the safety of water now like judgment and as i understood your argument to say things in a liquid form were high level ice that the statue did not provide for the hogwarts or otherwise conversion or or separating out some portion of that to be treated separately well that is that your position i mean is liquid really once it's attached with this level high level waste you can't do anything to change the level we don't believe so your honor we think the district court was very careful to note in its decision that and the district court was talking about the waste as it had been poured into the tanks and in the reprocessing waste it's essentially an acid bath for spent nuclear fuel that produces this viscous material that was then that extraordinar radioactive that was then poured into tanks the district court made a specific finding that that liquid waste was both highly radioactive and the result of reprocessing the district court also made a specific finding that there reclassification but not for the liquid in there the district court was referring to what was in the tanks now if they can remove what's in the tanks and it does get let's say it has all the radioactivity removed and it's still in a liquid form there's nothing barring the agency from putting that liquid i mean you can turn a liquid into a solid and in that you know whether you spread it through some sort of mass that would di there's nothing that would bar them to spread it into a solid without radioactivity that then could be potentially reclassified but that's a question for another day the important point we think for the court if you think converting to a solid but court was referring to that the district court was referring to were the liquids and solids in the tanks itself i mean this is think of your cup of coffee in the morning and that's precisely how the tanks have settled out where the grounds have settled to the bottom so the more concentrated radioactivity has settled to the bottom the important point the district court was going to and where the order contradicts the plain language of the act was the act has defined high level waste as highly radioactive material resulting from the reprocessing spent nuclear fuel the act of fines disposal in clear terms in placement of high level waste in a repository the agency issued the order to govern  classification of this high level waste and yet mean if you look at their excerpts of the record expressly in their guidance that you are two fifty one they allow for reclassification of waste that would otherwise be high level waste due to the source of its generation or concentration the agency suggests that the orders lawful because it determines that only low level waste would remain in a tank the agencies in correct the district court found that high level waste is both highly radioactive and the result of reprocessing and that supported by the record and the application of these three criteria to that waste would in no way change the nature of the way it's first waste re classified and this goes to the performance objectives point the council for the agency just brought up waste that the department has deemed to be low level waste meaning low level waste requirements is merely a statement of intent the district court also found that removal of radionuclides to the extent technically an economically practical ingests cost considerations and things not found in what congress clearly stated in the definition of high level waste and finally allowing high level waste to meet alternative requirements that are wholly undefined ignores the expressed directions of congress of how to treat this waste ultimately if they can remove this waste and treat it to such that it actually solve some of these problems that will be great that is not the issue before this even if it is a liquid form even if they do so in a liquid form but ultimately what first your honor we don't it's unlikely to be realistic that all the radioactivity would be removed and one of the one of the baseline criteria for any sort of radioactive waste disposal is to remove the liquids or turn them into a solid form whether you're talking about low level waste transuranic ways to meet all the waste you're hearing about today even at your low level waste disposal sites the thing or your muni hazardous waste down here in seattle the thing you want to avoid is liquids going through the waste because that's where that's what takes contaminants out and that's what can escape so the importance here your honor is reclassification of liquids is barred reclassification of sol ultimately is not part of the agency and i and i'm going to quickly be going into the states time i'm reserving five minutes for the states so i'm going to try and sum up quickly going straight to judge clifton's set of questions the agency ultimately your honor has no authority to adopt a policy that directly conflicts with its governing statute with that i'm going to sit down thank you reprocessing the spent nuclear fuel in a safe deep geologic repository that's what congress said in the nuclear waste policy act council's for n r d c it's already identified that the primary components of the statutory scheme that are relevant but i'd like to point out to that are a particular interest of the states the first is in section one zero one three one of the statute so a six this is the in the findings and purposes provision and this provision states that state and public participation in the planning and development of repositories is essential in order to promote public confidence in the safety of disposal of such waste and specifically implementing that that finding the purpose of the statute and section one a one to one of the act  simply direct that the u s to notify and to work with states in the siting of any repository for the disposal of defense activity waste these provisions don't really have any meaning if the department of energy can through the application of order for thirty five point one simply sidestep the act and treat waste that would otherwise under the act be considered high level waste and something else and dispose of it for instance by leaving it in our states in a in a state of storage or  place to respect energy energy defense activity and activities to find this management management does not include disposal disposal is a separately defined term in the statute and terms defense nuclear waste and materials by or one a one to one of the statute those provisions make expressed reference and linkages between the concept of high level waste and defense activity defense activities and it's for that reason that the court should find that the statute does apply to high level waste apartment defense activity high level waste i mean getting getting to one of the issues that judge clinton was addressing i want to be sure that it's the state's position on the how the order the definition applie eat is able to properly treat and solidify the waste that's in the tanks such that the solids to rise from containing concentrations of fission products unless they and those sufficient concentrations th from the state's perspective that's that's permissible for do we to treat that as something other than high level waste and i wasn't seeing you at the district courts that i was flipping through i wish i'd found it a few minutes earlier but you're the person standing there now so i'll i'll i'll say that the district court decision on page can so in so many words that and the e p a does not offer the option of reclassification for liquid waste produced directly in reprocessing drawing a distinction between liquid and solid so you're now apparently taking the position on behalf of the states granted that these that observation by the district court may have been incorrect that's correct we believe that was an end and the necessary observation by the court the court did not need to reach that issue but to the fact that this court wants to get into the how the criteria should be applied it is our position that the liquids have if treated improperly solidified may be treated as something other than high level waste really with with the proper application of the definition of high level waste deal we has really only two choices with regard to how they manage this waste both choices involve the placement in a repository that's what congress contemplated and the another hint to this is in section one hundred one three one of the statute in subsection eighty seven it discusses placement of the high level waste in a repository and describes it as an appropriate precaution to be taken to public protect public health and the environment for this and future generations  for that reason the district court's decision to invalidate or for order for thirty five point one was the appropriate decision it merely affirms a longstanding and settled understanding safira law thank you something called the nuclear waste fund set forth in section three zero two of the nuclear waste policy act this is a special funding the treasury the repository is not funded out of ordinary tax revenue which is funded out of a special fund that includes contributions from but on nuclear reactors and also from the government if it is to use the repository what this is directing the government to do is to pay money into that fund that will be available to pay the government cost of developing the repository it is not an  waste policy act would apply to such a repository to the various staffs and actions deal you must take to develop the repository but that's not with order for thirty five point one is about four thirty five point one is outside the scope of the nuclear waste policy act let me just briefly address the business of that correct the language of the definition of high level radioactive waste says highly the finds and that's the highly radioactive material resulting from the process reprocessing spent nuclear fuel including liquid waste produced directly and reprocessing and any solid material derive some from such look at ways that contains products in sufficient concentrations well that's what the criteria are directed to determine are these concentrations sufficient it's not of that it's not about reclassifying anything it's about making a determination geologic repository couldn't do that or as low level waste or as transuranic waste these materials will all be disposed of in solid physical form and that's what the criteria dress materials that have been solidified they may have been solidified long ago by natural processes but actually what the only intends to do is to solidify them in various forms my time is expired so i can't go into that basically let me summarize by saying what we are doing is simply defining what sufficient concentrations are so even if the nuclear waste policy act applies and have the authority to do this