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CENT. MIDWEST WASTE COM'N v. O'LEARY

July 22, 1994

CENTRAL MIDWEST INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMMISSION, ET AL., PLAINTIFFS,
v.
HAZEL O'LEARY, SECRETARY OF ENERGY, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

A case of statutory construction.

The Court is presented with motions for summary judgment concerning a ruling of the Department of Energy interpreting a nuclear waste disposal statute.

The Department is affirmed.

I. Background

This cause of action is the result of a federal statute enacted to promote the efficient disposal of radioactive waste produced by nuclear power generators. Under 42 U.S.C. § 2021e(a) & (d), certain states with excess capacity storage facilities for low level radioactive waste may charge for waste received from utility waste generators of other states and deposit 25% of the proceeds in trust with the Department of Energy. The surcharge rates and the process of placing the funds in escrow are set forth in 42 U.S.C. § 2021e(d)(1) and (d)(2)(A), respectively. In order to promote more uniform nationwide disposal of radioactive waste, 42 U.S.C. § 2021d(a)(2) provides that states may enter into compacts to establish regional disposal facilities. Illinois and Kentucky entered into such a compact, which is administered by Plaintiff Central Midwest Waste Commission.

Certain targets were established by the federal waste statute to encourage the development of these regional disposal facilities. Under the statute, if by January 1, 1993, a state or compact whose utilities export radioactive waste is "able to provide for the disposal of all low-level waste generated within such . . . compact region," the Department of Energy is required to remit the 25% escrow funds to the state or compact within 30 days. 42 U.S.C. § 2021e(d)(2)(B)(iv). However, if the state from which the waste originated is unable to provide for the disposal of its own radioactive waste by that time and the state declines to take possession of its waste, then the funds held in trust are to be repaid by the Department of Energy, with interest, to the generators of the waste over a period of thirty-six months, beginning February 1, 1993. 42 U.S.C. § 2021e(d)(2)(C). Nonetheless, if during the three-year repayment period the state compact should be able to provide for the disposal of its radioactive waste, then the compact is entitled to a lump-sum payment of the remaining escrow fund balance. Id.

In this case, Illinois Power and Commonwealth Edison each generated and paid surcharges on radioactive waste which was sent outside of Illinois and Kentucky for storage. The total amount of the surcharges paid is $1,042,448 and $9,607,165, respectively. Plaintiff Central Midwest Waste Commission is entitled to receive 25% of these surcharges held in escrow by the Department of Energy upon proof of adequate waste disposal capacity as of January 1, 1993. In order to satisfy the statute's target, Plaintiff Central Midwest did not develop any of its own disposal facilities in Illinois or Kentucky, but instead entered into a contract with the Southeast Interstate Waste Commission — another compact of states — for disposal of radioactive waste through June 30, 1994. When the Department of Energy failed to make any payments within 30 days after the January 1, 1993 target date, Plaintiff Central Midwest filed the present action, seeking declaratory and injunctive relief. Thereafter, Plaintiffs Illinois Power and Commonwealth Edison intervened, asking the Court to declare that they are entitled to receive the funds held by the Department of Energy.

On March 25, 1994, the Department of Energy issued its final decision concerning the escrow funds. The Department held that the contract entered into by Plaintiff Central Midwest Waste Commission with the Southeast Interstate Waste Commission satisfied in part the January 1, 1993 statutory target, because the Central Midwest Waste Commission had arranged for disposal of its nuclear waste through June 30, 1994. The Department of Energy thus determined that the Central Midwest Waste Commission was entitled to receive a lump-sum payment of one-half of the escrow funds, with the balance to be paid to the utility waste generators on a monthly basis for the remainder of the three-year repayment period (until January 1, 1996) unless Central Midwest should enter another 18-month contract for disposal of its waste or continue to ship waste to the Southeast Commission without a modified contract. If a new contract were entered for the remainder of the three-year period, the Central Midwest Waste Commission would be entitled to another lump-sum payment; otherwise, it could receive payment on a monthly basis for as long as it continued to send nuclear waste to the Southeast Commission after the expiration of the original contract in June of 1994.

Plaintiffs Illinois Power and Commonwealth Edison now move for judgment as a matter of law, arguing that the ruling of the Department of Energy is void, because it is contrary to the language of the waste disposal statute. Illinois Power and Commonwealth Edison contend that the statute requires each state or compact to provide for disposal of its radioactive waste by development of its own disposal facilities, and not by transferring its waste to another compact. Because the Central Midwest Waste Commission did not provide for disposal of radioactive waste within Illinois or Kentucky, Illinois Power and Commonwealth Edison seek a declaration that they are entitled to all of the escrow funds, and they request that this Court order the Department of Energy to disburse those funds to them. Payment of the funds has been stayed pending the outcome of this litigation. The Defendant has also filed a motion for summary judgment, seeking an affirmance of its ruling, and Plaintiff Central Midwest Waste Commission has filed a motion requesting this Court to affirm the Department of Energy's ruling that Central Midwest has made adequate provision for disposal of its waste through June 30, 1994, but requesting that the case be remanded to the Department of Energy for reconsideration of its ruling that the utility generators may be entitled to payment of the remaining escrow funds after June 30, 1994.

II. Summary Judgment

Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir. 1985). The moving party has the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of a material fact exists, the evidence is to be taken in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).

III. Analysis

There is no factual dispute in this case. The only contested issue is whether the decision of the Department of Energy directing the payment of the escrow funds is consistent with the language of 42 U.S.C. ยง 2021e. Consequently, this Court is presented with a question of statutory ...


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