General Elec. Uranium Management Corp. v. U.S. Dept. of Energy

• Decision Date: 18 June 1985
• Docket Number: 84-5234,Nos. 83-2073,s. 83-2073
• Citation: 764 F.2d 896
• Parties: , 246 U.S.App.D.C. 263, 15 Envtl. L. Rep. 20,654 GENERAL ELECTRIC URANIUM MANAGEMENT CORPORATION, Petitioner, v. UNITED STATES DEPARTMENT OF ENERGY, and Donald P. Hodel, Secretary, United States Department of Energy, and United States of America, Respondents. GENERAL ELECTRIC URANIUM MANAGEMENT CORPORATION, Appellant v. UNITED STATES DEPARTMENT OF ENERGY, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 896

764 F.2d 896

22 ERC 1961, 246 U.S.App.D.C. 263, 15

Envtl. L. Rep. 20,654

GENERAL ELECTRIC URANIUM MANAGEMENT CORPORATION, Petitioner, v. UNITED STATES DEPARTMENT OF ENERGY, and Donald P. Hodel,

Secretary, United States Department of Energy, and

United States of America, Respondents.

GENERAL ELECTRIC URANIUM MANAGEMENT CORPORATION, Appellant v. UNITED STATES DEPARTMENT OF ENERGY, et al.

Nos. 83-2073, 84-5234.

United States Court of Appeals, District of Columbia Circuit.

Argued March 19, 1985.

Decided June 18, 1985.

Petition for Review of an Order of the United States Department of Energy.

John T. Boese, Washington, D.C., with whom Sam E. Fowler and Richard H. Wyron, Washington, D.C., were on the brief, for petitioner/appellant General Elec. Uranium Management Corp. in Nos. 83-2073 and 84-5234.

William G. Cole, Washington, D.C., for respondents/appellees U.S. Dept. of Energy in Nos. 83-2073 and 84-5234. Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., Robert S. Greenspan and Bruce G. Forrest, Attys. Dept. of Justice, Washington, D.C., were on the brief for respondents/appellees in Nos. 83-2073 and 84-5234. J. Paul McGrath, Dennis G. Linder and Thomas Millett, Atty., Dept. of Justice, Washington, D.C., entered appearances for respondents in No. 83-2073.

Scott T. Maker, Washington, D.C., and Richard J. Davis were on the brief of Westinghouse Elec. Corp., amicus curiae in Nos. 83-2073 and 84-5234, urging affirmance.

Before WALD, EDWARDS and BORK, Circuit Judges.

Opinion for the Court by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Under the Nuclear Waste Policy Act of 1982 ("the Waste Act"), ¹ the Secretary of Energy is directed to prescribe fees for the disposal of spent nuclear fuel ("SNF"). At issue in this case is a Department of Energy ("DOE") rule setting forth the basis upon which the agency will compute a one-time fee for fuel spent to generate electricity prior to April 7, 1983.

Section 302(a)(3) of the Waste Act prescribes a "1 time fee per kilogram of heavy metal in spent nuclear fuel ... in an amount equivalent to an average charge of 1.0 mil per kilowatt-hour for electricity generated by such spent nuclear fuel." The Secretary interpreted this language to permit the adoption of a fee schedule which takes into account the variation in the efficiency of the electric fuel burnup. Accordingly, under DOE's rule, the one-time "fee is designed to recover, on an industry-wide basis, a fee per kilogram of heavy metal which will bring in an average one mill [sic] for each kilowatt hour generated by the fuel discharged from reactors prior to April 7, 1983." DOE's Brief at 31-32. Under this approach, "the relatively increased cost of disposal of the spent fuel per unit of electricity generated from low burnup fuel is taken into account." Id. at 6. ²

In this case, General Electric Uranium Management Corporation ("GEUMCO") claims that the one-time fee established by DOE is contrary to the fee prescribed by Congress in the Waste Act. In particular, GEUMCO argues that Congress intended the one-time fee "to bear a direct relationship to the amount of electricity generated, regardless of any discrepancies in fuel efficiency or in volume." GEUMCO Brief at 22-23. Thus, GEUMCO complains about the "unjustifiable inequities" produced by the DOE formula, and asserts that it "must pay approximately three mills per kilowatt-hour simply because its spent fuel generated less electricity per volume than fuel with a higher burnup." Id. at 23.

On October 16, 1983, GEUMCO filed for judicial review in the District Court. On December 13, 1983, DOE moved to dismiss on two grounds: (1) that the District Court lacked subject matter jurisdiction because the Waste Act vests exclusive jurisdiction over review of agency action in the courts of appeals, and (2) that the Waste Act permits the one-time fee rule adopted by DOE. GEUMCO moved for summary judgment. The District Court rejected DOE's subject matter jurisdiction arguments but granted DOE's motion to dismiss for failure to state a claim upon which relief could be granted, finding DOE's rule to be consistent with the language, legislative history and purpose of the Waste Act. ³

GEUMCO then petitioned this court for direct review of DOE's rule and also appealed from the District Court's dismissal. By order of May 29, 1984, we consolidated these cases. Since we hold that we have original and exclusive jurisdiction over the subject matter of this case, and therefore that the District Court did not have proper jurisdiction to decide the case, we vacate the District Court's opinion.

On direct review, we affirm DOE's rule as a reasonable exercise of its discretion under the Waste Act. The statute clearly delegates to the DOE the authority to prescribe a one-time fee rule and does not specify the precise method of computing that fee. Furthermore, the legislative history is at best ambiguous on this question. Since DOE has acted within an area of its expertise, reached a result that is not contrary to any expressed intent of Congress, and adopted an approach that is a reasonable compromise between conflicting policies, we defer to the agency. This result, we believe, comports with the principles enunciated by the Supreme Court in Chevron. ⁴

I. BACKGROUND

Through the Waste Act, Congress conceived a comprehensive scheme for the disposal of SNF and other high-level radioactive waste generated by civilian nuclear power reactors. That scheme included the establishment of waste repository facilities under federal auspices to be fully funded by those generating the nuclear wastes. Section 302 of the Waste Act, which provides for the establishment of a Nuclear Waste Fund, authorizes the Secretary to

enter into contracts with any person who generates or holds title to high-level radioactive waste, or spent nuclear fuel, of domestic origin for the acceptance of title, subsequent transportation, and disposal of such waste or spent fuel. Such contracts shall provide for payment to the Secretary of fees ... sufficient to offset expenditures described in subsection (d) of this section [to identify, acquire, develop, license, construct, operate, maintain and monitor nuclear waste storage facilities and to pay the administrative costs of the disposal program]. ⁵

Congress expressly contemplated that utilities would be charged two different types of fees for DOE's disposal services: an ongoing fee for SNF used to generate electricity on and after April 7, 1983, and a one-time fee for SNF used to generate electricity before that date. Under the statute, Congress prescribed a relatively straight-forward cost-rule for the ongoing fee. ⁶ However, the task of promulgating the one-time fee was delegated to the Secretary:

For spent nuclear fuel ... used to generate electricity in a civilian nuclear power reactor prior to the application of the [ongoing] fee ... to such reactor, the Secretary shall, not later than 90 days after January 7, 1983, establish a 1 time fee per kilogram of heavy metal in spent nuclear fuel, or in solidified high-level radioactive waste. Such fee shall be in an amount equivalent to an average charge of 1.0 mil per kilowatt-hour for electricity generated by such spent nuclear fuel, or such solidified high-level waste derived therefrom.... ⁷

DOE commenced rulemaking proceedings by publishing a notice on February 4, 1983, ⁸ soliciting comments on a proposed standard form contract to be used for its SNF disposal services. Article VIII.A.2 of the proposed contract specified that the one-time fee would "be assessed by applying average dollar per kilogram charges to three (3) distinct ranges of fuel burnup reflecting actual disposal costs for those ranges so that the integrated cost across all discharged fuel is equivalent to 1.0 mill [sic] per kilowatt-hour." ⁹

DOE received over eighty written comments on its proposed rule, many of which addressed the one-time fee rule. GEUMCO submitted comments on the proposed rule and argued then, as here, that the only lawful method of assessing charges was the first alternative method to that in the proposed contract, which would compute the one-time fee at the rate of one mil per kilowatt-hour of electricity generated by each individual fuel assembly. GEUMCO contended that

[w]hile the [statutory] language for the one-time fee is phrased differently than that for the ongoing fee, it appears to be merely a recognition of the different stages the fuel is at rather than an attempt to have one category of fuel pay fees on a radically different basis than another category. After April 7, 1983, the fee will be collected on a periodic basis as electricity is generated. The fee is related to an ongoing stream of electricity that can be read at the meter. Electricity generation is not ongoing for the fuel prior to April 7, however, and Congress apparently perceived a need to allocate the fee to the physical commodity that remained so as to achieve an equivalent result. ¹⁰

GEUMCO presented similar testimony at the public hearing that the DOE held on March 3, 1983.

DOE published its final rule on April 18, 1983, essentially adopting the contract set forth earlier in its notice of proposed rulemaking. The rule prescribed three different sets of fees: a one-time fee for SNF discharged before April 7, 1983; an in-core fee for fuel which was in the core of an operating nuclear reactor on April 7, 1983; and an ongoing fee for SNF generated on or after April 7, 1983, set, as prescribed by the Waste Act, in the amount of 1.0 mil per kilowatt-hour on electricity generated by a purchaser's nuclear power reactors. The one-time fee, which is the only fee at issue in this case, was described as follows:

For SNF, or solidified high-level radioactive waste derived from SNF, which fuel was used to generate electricity in a civilian nuclear power reactor prior to April 7, 1983, a one-time fee...