### 1996 D e c i sion s O p inion s of the U nit e d

S t at e s C our t of Appe al s for the Thir d C ir c uit

8-20-1996 

# App al a chi a n S t at es v

. S ecr et a r y E ne rg y

P r e c e de n t i al or N on-P r e c e de n t i al :

D ocke t 95-7382

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no va

. e du/thir dc ir c uit_1996

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no va

U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 1996 D e c i sion s b y a n author i z e d a dmini s tr a t or of V i l l a no va

U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no va

. e du

. 

### Re c omme nde d C it a t ion

" App al a chi a n S t a t e s v

. S e cr e t a r y E ne r g y " (1996). 1996 D e cisio n s

. P ape r 89.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no va

. e du/thir dc ir c uit_1996/89UNITED 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 C ourt for the Middle District of Pennsylvania (D.C. Civil Action No. 94-cv-01033)

Argued February 9, 1996

Before: BECKER, ROTH and MCKEE, Circuit Ju dges

(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 20530Mary 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-AppelleeOPINION OF THE COURT

ROTH, Circuit Judge: In this appeal, we must evaluate the Secre tary of Labor's interpretation of the Low-Level Radioactive Waste Policy Amendments Act of 1985 ("LLRW Act"), 42 U.S.C. §§ 2 021a-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 permissib le reading of an ambiguous statute and is properly accorded defer ence. We will

therefore reverse the district court's decision and enter judgment for the Secretary.

I. This case revolves around Congress's effor ts to address the nation's problems with the disposal of low-leve l radioactive waste ("LLRW") and the Secretary of Energy's ("Secr etary") attempts to implement Congress's legislated solutio n. 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. Supr eme Court held unconstitutional the LLRW Act's requirement that st ates 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 balanc e of the Act

remains in effect. The LLRW saga began in the 1970s when six commercial LLRW disposal sites were operating in the United St ates. By 1979, three of the facilities had closed permanentl y, and the states where the three remaining facilities were lo cated had announced plans to shut down or to severely limit a ccess to their

sites. The nation faced a substantial risk that th ousands of LLRW generators -- such as hospitals, research inst itutions, universities, manufacturers, industrial facilities, and nuclear power plants -- would have nowhere to dispose of th eir waste. New York, 505 U.S. at 149-50. Congress responded to this crisis by passi ng the LowLevel Radioactive Waste Policy Act of 1980, Pub. L. No. 96-573, 94 Stat. 3347 (1980). This largely hortatory enact ment authorized states to form regional compacts that wo uld cooperate to plan, construct, and operate new LLRW disposal s ites. The 1980 Act authorized the regional compacts to exclud e waste generated outside their regions beginning on Januar y 1, 1986. As that date approached, it became apparent that no ne w facilities

had been built. The nation faced a renewed LLRW cr isis, accentuated by the fact that those regional compact s containing the three existing facilities could now exclude was te from the remaining states. New York, 505 U.S. at 151.Congress reacted by passing new legislatio n. The LowLevel Radioactive Waste Policy Amendments Act of 19 85, 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 const ruction of new disposal sites. The new system of incentives and p enalties was designed to spur construction. The deadlines inclu ded a series of milestones by which states had to submit plans, issue progress reports, and eventually complete licensing applicat ions for new LLRW sites. States could also comply with the stat ute's requirements by forming regional compacts in which one state would build the requisite facility and the others w ould contract for waste disposal. The incentives included an esc alating scale of surcharges, which states with sites could charge for LLRW waste disposal and a rebate system to return a port ion of those surcharges to states that met the relevant mileston es. States

that failed to meet the milestones would forfeit th ese rebates, would face higher surcharge rates, and could be bar red 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 nonmember State" had to manifest an "intent to develop a site for the location of a [LLRW] disposal facility within s uch State." 42 U.S.C. § 2021e(e)(1)(A). By January 1, 1988, ea ch non-sited region had to identify the state that would contain the LLRW facility and develop a detailed siting plan for est ablishing the facility. Id. § 2021e(e)(1)(B). By January 1, 199 0, each nonsited compact region and each non-member state had to furnish a complete application for licensing the LLRW facilit y. Alternatively, any state without a facility could p rovide

"written certification . . . that such State will b e capable of providing for, and will provide for, the storage, d isposal, or management of any [LLRW] waste generated within suc h State and requiring disposal after December 31, 1992 . . .." Id. § 2021e(e)(1)(C). The fourth and final milestone pro vided for reimbursement only if "by January 1, 1993, the Stat e . . . is able to provide for the disposal of all [LLRW] gene rated 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 Comp act, governed by the plaintiff-appellee Appalachian States Low-Le vel Radioactive Waste Commission ("Commission"). Congr ess approved this compact on May 19, 1988. Pub. L. No. 100-319, 102 Stat. 471 (1988). The record indicates that the Commission m et the first three statutory milestones. This dispute turns on the fourth milestone . On December 1, 1992, the Commission entered an eightee n-month conditional contract with the Southeast Compact to obtain access to the disposal facility in Barnwell, South Carolin a, one of the

three sites that had been in existence when the ori ginal 1980 Act was passed. The contract was not renewed, and the Commission does not have a contract with any other compact reg ion or state for the disposal of LLRW. Nevertheless, this contr act was ineffect on January 1, 1993, the date by which a stat e had to be

able to dispose of "all" LLRW to meet the fourth mi lestone and qualify for a rebate. On February 11, 1993, the Commission sent a letter to the Department of Energy claiming that it had satis fied the requirements of the LLRW Act and was therefore elig ible for a full 1993 rebate. On March 21, 1994, the Secretary published her interpretation of the statute, clarifying the crite ria for the 1993 rebate. She explained that a full 1993 rebate would be given only to those states that had provided for di sposal of all their waste for the entire three-year period from J anuary 1, 1993, until January 1, 1996. States that only prov ided for disposal for shorter periods would have their rebat es reduced proportionately. This interpretation was based on the Secretary's reading of the statute as a whole, rely ing 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 renew ed its request for a full 1993 rebate. On September 1, 1994, purs uant to its final policy and procedures, the Secretary paid the Commission one half of the maximum rebate, plus interest. Thi s amount was based on the Commission's eighteen-month contract, which provided for waste disposal for half of the three-year perio d. The Commission responded by filing suit in the U.S. District Court for the Middle District of Pennsylva nia, 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 faile d to adopt a reasonable reading of the LLRW Act. See Appalachia n States LowLevel 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 t his 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 Stat es or any agency thereof to perform a duty owed to plaintiff" ). We exercise appellate jurisdiction over the district c ourt's final order pursuant to 28 U.S.C. § 1291.

III. In exercising plenary review over the dist rict court's grant of summary judgment, we must apply the standa rd that the district court should have used initially. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), ce rt. denied, 429 U.S. 1038 (1977). Accordingly, the central iss ue before us is whether the Secretary's action meets the test se t forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We conclude that, in interpre ting 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 'sinterpretation. We will reverse the decision of th e district

court. Where Congress has entrusted a federal age ncy with the administration of a statutory program, judicial rev iew of that agency's actions proceeds along well-established pr inciples. In Chevron, the Supreme Court set out the requisite tw o-step inquiry. The reviewing court must first determine whether Congress has directly spoken to th e 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 agen cy, must give effect to the unambiguously expressed intent of Congress. Id. at 842-43. If Congress has not directly addres sed the precise matter at issue, then "the question for the court is whether the agency's answer is based on a permissib le

construction of the statute." Id. at 843. In dete rmining whether a ruling is permissible, the court cannot c onduct a de novo investigation. Instead, the court must defer to the agency's construction "unless it appears from the s tatute or its legislative history that the accommodation is not o ne that Congress would have sanctioned." Id. at 845 (quoti ng United States v. Shimer, 367 U.S. 374, 382 (1961)). Analysis therefore begins with the languag e of the statute. We must determine whether the plain meani ng of the statute speaks to the precise question at issue, vi z. whether the Commission's eighteen-month contract for waste disp osal satisfies § 2021e(d)(2)(B)(iv)'s requirement that a state pro vide 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 paragrap h (1) for low-level radioactive waste dispos ed of under this section during the period beginning January 1, 1990 and ending Decem ber 31, 1992, and transferred to the Secretary under subparagraph (A), shall be paid by t he Secretary in accordance with subparagraph (D) if, by January 1, 1993, the State in which such waste originated (or its compac t region, where applicable) is able to provi de for the disposal of all low-level radioact ive waste generated within such State or compa ct region. 42 U.S.C. § 2021e(d)(2)(B)(iv) (emphases and footno tes added). The crucial word in this passage is "all." The Commission contends that a contract to dispose of a ll waste for an eighteen-month period meets the plain meaning of the January 1, 1993, milestone. The Secretary believes that ne ither the Act itself nor the legislative history directly resolve s the issue. Nevertheless, based on congressional intent, legisl ative history, and the statutory scheme as a whole, the Secretary interpreted the provision as requiring the ability to dispose o f all waste over a three-year period from January 1, 1993, unti l January 1, 1996. See Surcharge Rebates: Notice of Response t o Comments ofDraft Policies and Procedures, and Final Policies a nd Procedures,

59 Fed. Reg. 15188, 15191 (1994). Chevron dictates that we begin by explorin g the plain meaning of the Act to see if it speaks directly to this disagreement. In determining plain meaning, we sta rt 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 accordi ng 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 explic it language of the Act does not support the Secretary's positio n." 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 a s expressing a holding that the statutory language is ambiguous. After our own independent inquiry, we agree. The plain meaning o f the Act does not speak to the precise question at issue. The first prong of Chevron turns on the te xt 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 mea sure of insight. The Random House Dictionary of the Englis h Language(1983), offers the following as the first two definitions f or 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 t o individuals or particulars, taken collectively): all men." Id . at 38. Black's Law Dictionary (5th ed. 1979) offers simila r 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 express ing an aggregate." Id. at 68.

There can be little doubt that these defin itions capture the sense in which the LLRW Act uses the wo rd, particularly in the phrase "all . . . waste." Wast e 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 in corporates 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" includ es aspects of duration, judged by the ability to dispose of waste over a threeyear period from January 1, 1993, until January 1, 1996. Given the lack of an explicit statutory definition of "al l," we believe that the plain meaning of the statute is ambiguous. Having found an ambiguity, our next task u nder Chevronis to determine "whether the agency's answer is based on apermissible 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 i s appropriate. As the Supreme Court has described it, the judiciary's task in such circumstances is "to defer to [the age ncy's] view unless the legislative history or the purpose and s tructure of the act clearly reveal a contrary intent on the par t of Congress." Chemical Mfrs. Ass'n v. Natural Resourc es Defense Council, Inc., 470 U.S. 116, 126 (1985). As we hav e framed the test, we must determine "whether the regulation har monizes 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 sou ght 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' Compen sation, 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 histo ry and purpose of the statute to determine whether they cl early reveal a contrary intent. Quite the opposite, our review of these sources indicates that if anything, they support the Secret ary's interpretation. Both the history and purpose of th e statute suggest that "all" includes a durational aspect. As noted in Part I, supra, the LLRW Act wa s passed to

address a "nationwide crisis in low-level radioacti ve waste disposal." S. Rep. No. 199, 99th Cong., 1st Sess. 4 (1985). The central purpose of the LLRW Act was to encourage th e 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 seriou s 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 develo pment of new storage space, Congress sought to avoid yet another LLRW crisis. The goal of encouraging the construction o f new facilities reveals Congress's desire for a long-ter m solution. This purpose is manifested in the structure of the Act, particularly in its series of progressive milestone s. These milestones proceeded in graduated fashion, encourag ing states to move from a basic intent to create a facility, thro ugh the planning stage, to arrive in 1993 with licensed, op erational facilities. Although states could meet the milesto nes by contracting with facilities in other states or with other compacts, the incremental structure of the provisio ns shows a clear intent to promote the construction of new fac ilities. Indeed, it is impossible to conclude otherwise, kno wing that the original 1980 Act was passed due to the inadequacy of existingstorage facilities and that the revised 1985 Act wa s passed to

spur construction through a program of incentives. It is ludicrous to think that Congress envisioned short-t erm contracts with the already existing Barnwell facility as the preferred solution to the national LLRW problem. Other provisions of the Act similarly mani fest the legislature's desire for a long-term solution. The allowable surcharge for disposal was designed to increase ste adily, doubling from $10 per cubic foot in 1986 and 1987 ( the period of the first and second milestones) to $20 per cubic f oot in 1988 and 1989 (the period of the third milestone), then doubling again to $40 per cubic foot between 1990 and 1992 (the pe riod 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 r eceived for meeting milestones could only be used for specific purposes, such as the establishment of LLRW disposal facilities, m itigation of LLRW disposal facility effects, regulation of LLRW disposal facilities, or the decommissioning of existing LLRWdisposal facilities. Id. § 2021e(d)(2)(E). The entire stru cture of the incentive program was aimed at encouraging the cons truction of new, long-term facilities. Given this statutory scheme, purpose, and legislative history, it seems clear that the Secretary's interp retation of the term "all" to include a durational aspect "bear s a fair relationship to the language of the statute, reflec ts 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 spec ific terms of the Secretary's interpretation. The Act provides t hat states are to receive a surcharge rebate for being able to dis pose 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 indefin ite requirement. On March 31, 1994, the Department of Energ y published a regulation entitled "Surcharge Rebates: Notice of Response to Comments on Draft Policies and Procedures, and Fina l Policies and Procedures." 59 Fed. Reg. 15188 (1994). This regu lation noted that "[t]he Act does not explicitly define the term 'provide for the disposal of all' LLRW." Id. at 15189. After e xploring the legislative history and statutory scheme, and after examining the text of § 2021e(d)(2)(C), the Secretary concluded t hat "for complete, lump-sum rebate eligibility, the States o r their compact regions must have provided for disposal cap acity for the entire 36-month period between January 1, 1993, and January 1,

1996." Id. at 15191. To conclude that the Secretary's interpret ation is permissible, we need look no further than related s ections of the Act. While § 2021e(d)(2)(B)(iv) discusses the paym ents a stateearns 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 mu st 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 surc harge rebate that it would have received for compliance to the g enerators from whom the surcharge was collected. 42 U.S.C. § 2021e(d)(2)(C)(ii). The details of the repayment o f the surcharge to waste generators have important implic ations for this dispute. Section 2021e(d)(2)(C)(ii) states that rep ayments to the generators are to be made on a monthly basis wi th each payment equal to one thirty-sixth of the total amou nt 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. Secti on 2021e(d)(2)(C) further provides that any state that achieves the ability to dispose of all waste at any time after J anuary 1, 1993, and prior to January 1, 1996, will receive it s 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 di sposal of such waste." Id. at § 2021e(d)(2)(C). The balance of t he amount is paid to the generator. Section 2021e(d)(2)(C) thus creates an eva luatory window spanning the three years from January 1, 199 3, until January 1, 1996. States have the duty to provide f or disposal of all waste indefinitely, but they are judged based o n their success during this clearly defined time period. U nder the provision, a state that fails to meet the disposal requirement receives a rebate proportional to the amount of tim e during this three-year period for which it did successfully mee t the requirement. The case before us presents a scenario opp osite 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 desi gnated period and then failed. These two situations are symmetri cal, and the Secretary believed that they should be treated symm etrically. 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. Th e state should receive a rebate proportional to the duration of th e three-year period during which it was able to meet the standar d. 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, r eflects the views of those who sought its enactment, and matche s the purpose they articulated." Sekula v. F.D.I.C., 39 F.3d at 452. Indeed,we believe that this interpretation is so well supp orted as to

venture beyond the merely permissible. In our view , the Secretary was correct. A permissible interpretatio n, however, is all that Chevron requires.

IV. Having held the Secretary's interpretation permissible under the second prong of Chevron, our inquiry is a t an end. The district court, however, came to two further conclu sions that could provide independent support for its entry of summary judgment in favor of the Commission. We will addre ss them briefly. First, the district court held the Secreta ry's interpretation of the Act procedurally invalid, cla iming that the Secretary failed to comply with the Administrative Procedure Act's requirements for notice and comment rule-maki ng, 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 comme nt 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 f or guidance. Interpretive rules are not intended to alter legal rights, but to sta te 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. Ediso n 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." Bail ey v. Sullivan, 885 F.2d 52, 62 (3d Cir. 1989). A rule i s also interpretive if the statutory scheme would have bee n fully operative without the regulations and the regulatio n merely published standards to be used in agency adjudicati on. American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1108-09 (D.C. Cir. 1993). These descriptions characterize the Secret ary's action in the current case. The LLRW Act imposed the obli gation to dispose of "all . . . waste." The Secretary's noti ce simply publicized the standards she intended to use when a pplying § 2021e(d)(2)(B)(iv), clarifying her view of what exi sting law required. In addition, the Secretary had the power to make payment determinations in her role as trustee of th e escrow account pursuant to § 2021e(d)(2)(A). She would th erefore have made these decisions even if she had not publicized her standards in the Federal Register. As such, her ruling was i nterpretive 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 i t believed that the Secretary's 1994 publication of her interp retation promulgated a new rule that could not be applied to a contractformed in 1992. Retroactive rulemaking is presumpt ively

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 retroactivit y concerns are irrelevant to this case. The Secretary's ruling wa s interpretive. It therefore did not alter existing rights or obligations; it merely clarified what those existin g rights and obligations had always been. See Manhattan Gen. Eq uip. 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 inte rpretation had no prohibited retroactive impact.

V. Congress passed the LLRW Act to address th e nation's recurring problems with nuclear waste. Congress so ught to address the problem through the construction of new disposal facilities, spurred by a carefully crafted series o f incentives and standards. These standards culminated in a req uirement that states be able to dispose of "all" waste. In the s even 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 c ontract with one of the nation's original facilities. The Secre tary evaluated the sufficiency of this contract based on a permiss ible reading of the Act and found it wanting. Under Chevron, th is 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.