Northern States Power Co. v. U.S. Dept. of Energy
| Decision Date | 14 November 1997 |
| Docket Number | 97-1370 and 97-1398,97-1065,Nos. 97-1064,s. 97-1064 |
| Citation | 128 F.3d 754,327 U.S. App. D.C. 20 |
| Parties | Nuclear Reg. Rep. P 20,587, 45 ERC 1783, 327 U.S.App.D.C. 20, 28 Envtl. L. Rep. 20,231 NORTHERN STATES POWER COMPANY, et al., Petitioners, v. UNITED STATES DEPARTMENT OF ENERGY and United States of America, Respondents, IES Utilities, Inc., et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jay E. Silberg, Washington, DC, argued the cause for utility petitioners, with whom David J. Cynamon and Mindy A. Buren, were on the briefs.
Don L. Keskey, Assistant Attorney General, Lansing, MI, argued the cause for state petitioners, with whom Frank J. Kelley, Attorney General, Thomas L. Casey, Henry J. Boynton and Larry G. Watterworth, Assistant Attorneys General, Lansing, MI, Robert S. Golden, Jr., Assistant Attorney General, Hartford, CT, Robert D. VanDiver, General Counsel, Florida Public Service Commission, Tallahassee, FL, Judith S. Yogman and Leslie Greer, Assistant Attorneys General, Boston, MA, Rolayne Ailts Wiest, Assistant Attorney General, South Dakota, Greg Huwe, Assistant Attorney General, St. Paul, MN, Michael A. Gross, Assistant Attorney General, Florida, Mary W. Cochran, General Counsel, Arkansas Public Service Commission, Bryan G. Moorhouse, General Counsel, and Susan S. Miller, Assistant General Counsel, Maryland Public Service Commission, Baltimore, MD, Roger W. Steiner, Assistant General Counsel, Missouri Public Service Commission, Jefferson City, MO, Charles F Walker and Kevin P. Maloney, Deputy Attorneys General, Delaware, Wilmington, DE, Carla J. Stovall, Attorney General, and John W. Campbell, Deputy Attorney General, Kansas, Topeka, KS, Diane Munns, Acting General Counsel, Iowa Utilities Board, Des Moines, IA, Conrad Smith, Vermont, Lawrence F. Barth, Assistant Counsel, Veronica A. Smith, Deputy Chief Counsel, and John F. Povilaitis, Chief Counsel, Pennsylvania Public Utility Commission, Harrisburg, PA, Steven M. Schur, Chief Counsel, and David Ludwig, Attorney, Public Service Commission of Wisconsin, Madison, WI, Edward W. O'Neill, San Anselmo, CA, and Robert C. Cagen, Public Utilities Commission of California, Lawrence G. Malone, Solicitor, New York State Public Service Commission, Albany, NY, Lester M. Bridgeman, Alabama Public Service Commission, Mobile, AL, James J. Grawe, Assistant Attorney General, Kentucky, Frankfort, KY, M. Brent Hare, Assistant Attorney General, Maryland, Baltimore, MD, Caroline Vachier and Helene S. Wallenstein, Deputy Attorneys General, New Jersey, Newark, NJ, James R. Anderson, Assistant Consumer Advocate, New Hampshire, Concord, NH, Jeffrey B. Pine, Attorney General, Paul J. Roberti and Alan M. Schoer, Special Assistant Attorneys General, Rhode Island, Providence, RI, Shirley E. Guntharp, Deputy Attorney General, and Charles L. Moulton, Assistant Attorney General, Arkansas, Little Rock, AR, George M. Fleming, Mississippi Public Service Commission, L. Steven Grasz, Deputy Attorney General, Nebraska, Lincoln, NE, Frank Spencer, Special Assistant Attorney General, Mississippi, Jackson, MS, Wynn E. Arnold, Assistant Attorney General, New Hampshire, Concord, NH, Ben Stead, Iowa, Des Moines, IA, Carl Josephson, Assistant Attorney General, Virginia, Richmond, VA, F. David Butler, General Counsel, Public Service Commission of South Carolina, Columbia, SC, Thomas D. Warren, State Solicitor, Maine, Augusta, ME, Charles E. Johnson, Special Assistant Attorney General, North Dakota Public Service Commission, Bismarck, ND, Daniel B. Dovenbarger, Deputy Attorney General, Indiana, Indianapolis, IN, Sammy R. Kirby, Deputy General Counsel, North Carolina Utilities Commission, Raleigh, NC, Duane W. Luckey and Steven T. Nourse, Assistant Attorneys General, Public Utilities Commission of Ohio, Columbus, OH, Joel H. Peck, Senior Counsel, and C. Meade Browder, Jr., Attorney, Virginia State Corporation Commission, Richmond, VA, Gary J. Newell and Frances E. Francis, Public Systems Group, Washington, DC, Michael R. Fontham, New Orleans, LA, and Noel J. Darce, Louisiana Public Service Commission, Jennings, LA, Charles D. Gray, General Counsel, and James Bradford Ramsay, Assistant General Counsel, National Association of Regulatory Utility Commissioners, Washington, DC, and Eric A. Eisen, Arizona Corporation Commission, Bethesda, MD, were on the briefs.
Jerry Stouck and Robert L. Shapiro, Washington, DC, were on the briefs for petitioner Yankee Atomic Electric Company.
John A. Bryson, Attorney, U.S. Department of Justice, Washington, DC, argued the cause and filed the brief for respondents. Martin W. Matzen, Attorney, entered an appearance.
William H. Chambliss, Senior Counsel, and C. Meade Browder, Jr., Attorney, Richmond, VA, were on the brief for intervenor Virginia State Corporation Commission.
Michael A. Bauser, Washington, DC, was on the brief for intervenor Northeast Utilities Service Company.
Before: WILLIAMS, GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
In Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272 (D.C.Cir.1996), we held that the Nuclear Waste Policy Act ("NWPA") imposes on the Department of Energy ("DOE") an unconditional obligation to begin disposing of high-level radioactive waste and spent nuclear fuel (collectively, "SNF") by January 31, 1998. After we issued our decision, DOE nonetheless informed various utilities and state commissions ("petitioners") that it would not accept the SNF for disposal by the 1998 deadline. Petitioners now seek a writ of mandamus requiring DOE to comply with Indiana Michigan and begin disposing of the SNF by the statutory deadline. We hold that the Standard Contract between DOE and the utilities provides a potentially adequate remedy if DOE fails to fulfill its obligations by the deadline, and thus do not grant in full the writ requested by petitioners. We do agree, however, that DOE's current approach toward contractual remedies is inconsistent with the NWPA and with our prior decision in Indiana Michigan. We thus grant the petition in part, and issue a writ of mandamus precluding DOE from advancing any construction of the Standard Contract that would excuse its delinquency on the ground that it has not yet established a permanent repository or an interim storage program.
In the NWPA, Congress, confronting the "national problem" posed by the accumulation of spent nuclear fuel and radioactive waste produced by various domestic sources, 42 U.S.C. § 10131(a)(2), created a scheme whereby the federal government would have the responsibility to provide for the permanent disposal of the SNF, and the costs of such disposal would be borne by the owners and generators of the waste and spent fuel. 42 U.S.C. § 10131(a)(4). The plan provided that the owners and generators of the SNF would have the primary responsibility to provide and pay for its interim storage until the Secretary of Energy accepts the material "in accordance with the provisions of this chapter." 42 U.S.C. § 10131(a)(5).
As part of this regulatory program, Congress authorized the Secretary to enter into contracts with the owners and generators for the acceptance, transportation, and ultimate disposal of the SNF. 42 U.S.C. § 10222(a)(1). Congress left open many of the terms of the contracts, but specifically dictated, inter alia, the deadline by which DOE must begin disposing of the SNF. In the language of the statute, the "[c]ontracts entered into under this section shall provide that ... in return for the payment of fees established by this section, the Secretary, beginning not later than January 31, 1998, will dispose of the high-level radioactive waste or spent nuclear fuel involved as provided in this subchapter." 42 U.S.C. § 10222(a)(5)(B). "Payment of fees" referred to hefty contributions into a so-called Nuclear Waste Fund by owners and generators of the SNF.
In accordance with the NWPA, DOE adopted the final Standard Contract after notice and comment. The language of the Standard Contract is slightly different than that of the statute, but does include the requirement that disposal begin by January 31, 1998: "[t]he services to be provided by DOE under this contract shall begin, after commencement of facility operations, not later than January 31, 1998 and shall continue until such time as all SNF and/or HLW [high-level radioactive waste] from the civilian nuclear power reactors ... has been disposed of." 10 C.F.R. § 961.11, Art. II (1996).
In 1993, various utilities and state agencies became concerned about DOE's ability to meet the 1998 deadline, and thus asked the Department to address how it would go about performing its responsibilities. The Department, apparently anticipating that it would not be ready to take the SNF by the deadline, took the position that it did not have a clear legal obligation to accept the SNF absent an operational repository or other facility. In its Final Interpretation of Nuclear Waste Acceptance Issues, issued in 1995, DOE announced that it "does not have an unconditional statutory or contractual obligation to accept high level waste and spent nuclear fuel beginning January 31, 1998 in the absence of a repository or interim storage facility constructed under the [NWPA]." 60 Fed.Reg. 21,793-94. The Department also took the position that "it lacks statutory authority under the Act to provide interim storage." 60 Fed.Reg. at 21,794.
The utilities and the states promptly filed petitions for review. The question before us in Indiana Michigan was whether the legal obligation of DOE to accept SNF by January 31, 1998, was conditioned on the presence of an operational repository or interim storage facility. Reviewing DOE's construction of the NWPA under the two-step analysis ofChevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), ...
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