1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-20-1996

Appalachian States v. Secretary Energy

Precedential or Non-Precedential:

Docket 95-7382

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Recommended Citation

"Appalachian States v. Secretary Energy" (1996). 1996 Decisions. Paper 89.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/89
 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 LowLevel 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 LowLevel 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 nonmember 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 nonsited 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 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 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 threeyear 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.