421 Mass. 196 | Mass. | 1995
Lead Opinion
Nuclear Metals, Inc. (plaintiff), filed a complaint in the Superior Court seeking, in count I, a determination that an assessment imposed on it by the Low-Level Radioactive Waste Management Board (board), acting pursuant to G. L. c. 111H, §§ 4A and 4B (1994 ed.), and corresponding regulations, 845 Code Mass. Regs. § 4.00 (1992),
The parties submitted the case on a statement of agreed facts and the record of the administrative proceedings. A judge in the Superior Court ordered entry of judgment for the board on the claim contesting the validity of the assessment. He vacated the decision of the board on the plaintiff’s administrative challenge to the computation of the assessment on the ground that the board lacked jurisdiction to hear the appeal, and he ordered that the claim in count II of the complaint be dismissed. Both parties appealed from the judgment, and we granted the board’s application for direct appellate review. We affirm that part of the judgment which declares the assessment to be a valid fee rather than an unconstitutional charge. We vacate that part of the judgment dismissing the plaintiff’s appeal from the administrative decision of the board, and remand the case to the Superior Court so that it may be returned to the board for administrative consideration of the plaintiff’s claim respecting the amount of the assessment charged.
1. Facts. The material facts are straightforward and undisputed. The plaintiff is a manufacturer licensed by the United
2. Statutory basis for the assessment. The Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. §§ 2021a et seq. (1988) (Federal act), states as Federal policy that “[e]ach State shall be responsible for providing, either by itself or in cooperation with other States, for the disposal of . . . low-level radioactive waste generated within the State . . . .” 42 U.S.C. § 2021c (a) (1) (A). The goal of the Federal act is to decrease reliance on the few existing disposal sites, located in the States of Washington, South Carolina, and Nevada,
In New York v. United States, 505 U.S. 144 (1992), the United States Supreme Court interpreted the Federal act as providing to the States lacking in-State or regional disposal sites a series of strong incentives to comply with Federal policy concerning the disposal of low-level radioactive waste generated within their borders. Id. at 170. The Court explained that, in form, the Federal act is an “intricate” compromise between the States with, and the States without, disposal sites. Id. at 151. In effect, the Federal act authorizes burdens on interstate commerce that most likely would be unconstitutional absent express congressional authorization. See Philadelphia v. New Jersey, 437 U.S. 617 (1978) (law closing New Jersey’s borders to waste generated outside territorial limits unconstitutional burden on interstate commerce). States with disposal sites are granted the right to place escalating surcharges, beginning in 1986-1987, on disposal in their existing facilities, and, as of 1996, to deny access to the existing disposal sites to waste generators located in any State that has not met specific “milestones” set out in the Federal act. Those milestones mark progress toward the siting and licensing of an in-State or a regional facility for the disposal of a State’s low-level radioactive waste. Id. at 151-153. In the Court’s words, “any burden caused by a State’s refusal to regulate [in compliance with the Federal act] will fall on those [within the State’s borders] who generate waste and find no outlet for its disposal.” Id. at 174.
General Laws c. 111H (State act), inserted by St. 1987, c. 549, establishing the board and delineating its responsibilities, is the Commonwealth’s response to the Federal act. See Opinion of the Justices, 397 Mass. 1201 (1986). Under the State act, the board is charged with preparing and implementing a management plan to provide for the safe and efficient management of low-level radioactive waste produced in
3. The assessment. Pursuant to G. L. c. 111H, § 4A, the board must “annually assess each person licensed or registered to receive, possess, use, transfer or acquire radioactive materials in the Commonwealth, amounts sufficient to defray the costs annually incurred by the board” to implement its plan for managing the disposal of low-level radioactive waste generated in the Commonwealth. The total assessment is capped by statute at $500,000. That amount is to be reduced by any funds appropriated or obtained from other sources for implementing the management plan. See G. L. c. 111H, § 4A.
4. Validity of the assessment. The plaintiff challenges the validity of the assessment as a lawful fee. The plaintiff further argues that, if the assessment is viewed as a tax, it fails to pass constitutional muster. We agree with the judge, however, that the plaintiff has failed to satisfy its burden of proving that the assessment is not a lawful fee. See Southview Coop. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. 395, 403 (1985). See also Bertone v. Department of Pub. Utils., 411 Mass. 536, 549 n.12 (1992).
“[T]he nature of a monetary exaction ‘must be determined by its operation rather than its specially descriptive phrase.’ ” Emerson College v. Boston, 391 Mass. 415, 424 (1984), quoting Thomson Elec. Welding Co. v. Commonwealth, 275 Mass. 426, 429 (1931).* *
In the Emerson College case, this court observed that “fees share common traits that distinguish them from taxes: they are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner ‘not shared by other members of society,’ . . . they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge . . . and the charges are collected not to raise revenues but to compensate the governmental entity providing the services for its expenses” (citation omitted). Id. at 424-425, quoting National Cable Television Ass’n v. United States, 415 U.S. 336, 341 (1974). See Southview Coop. Hous. Corp. v. Rent Control Bd. of Cambridge, supra at 402; Berry v. Danvers, 34 Mass. App. Ct. 507, 510 (1993). A consideration of these factors, and the nature of the board’s regulatory responsibility, compels the conclusion that the assessment authorized by the act is a valid fee.
The plaintiff’s primary contention is that the board functions as a planning agency and provides no service for which it may legitimately exact a fee. We disagree. Because of the risk posed by low-level radioactive waste, see New York v. United States, supra at 149-150, its disposal is a highly regulated activity. There may be means to reduce the amount of waste produced by the plaintiff, and alternative disposal technology may be, or may become, available for small amounts of waste having particular characteristics. Nothing in the record suggests, however (and the burden is on the plaintiff), that the plaintiff will be able to avoid reliance on disposal facilities like those in Washington, Nevada, and
As to the remaining aspect of the first factor, the board’s services provide a “sufficiently particularized” benefit to the plaintiff to qualify as a valid fee. While the safe disposal of low-level radioactive waste is a public benefit, see New York v. United States, supra, it is the plaintiff (and not the general public) which requires access to disposal facilities for low-level radioactive waste meeting Federal and State stan
The second and third factors of the Emerson College test are also satisfied. The plaintiff is not “compelled” to pay the fee, even though it must pay the fee so long as it engages in manufacturing activities in the Commonwealth that produce as a byproduct low-level radioactive waste. The plaintiff has a Federal license, and therefore a right, to possess and use low-level radioactive materials, but “[f]ces are not taxes ‘even though they must be paid in order that a right may be enjoyed.’ ” Bertone v. Department of Pub. Utils., supra at 549, quoting Southview Coop. Hous. Corp. v. Rent Control Bd. of Cambridge, supra at 402. The plaintiff has a “choice,” in the sense that this term has been used in our cases, as to whether to engage in manufacturing activities resulting in the production of low-level radioactive waste. Cf. Emerson College v. Boston, supra at 426 (because of danger to public, plaintiff could not forgo firefighting services for which fee was charged). Just as the plaintiffs in the Bertone and Southview cases could have avoided the charges under consideration in those cases by forgoing the rights for which the charges were assessed, the plaintiff in this case could have avoided the, assessment imposed by the board, which was imposed only on current licensees and registrants.
We recognize that the “choice” presented in these cases cannot realistically be considered a free choice. In the Bertone case, the “choice” presented to the plaintiffs was to forgo the development of their property. In the Southview case, the “choice” presented to landlords in Cambridge was
We reject the plaintiffs argument that the board’s activities, all of which are funded by means of the assessments charged to waste generators, include services that are not of particular benefit to it. In connection with this point, the plaintiff singles out public information programs and the employment of a public participation coordinator. See G. L. c. 111H, § 4 (a) (6). As the board points out, an obvious purpose of such programs is to increase public acceptance of the need for a disposal facility for low-level radioactive waste, including the possibility that such a facility might be constructed in the Commonwealth. This service is essential to the board’s ability to meet its statutory obligations and directly benefits a generator of low-level radioactive waste. Because we conclude that the assessment is a valid fee, we need not consider the plaintiffs arguments that the assessment is improper when considered as a tax.
5. The computation of the assessment. On his own motion, the judge dismissed the plaintiffs appeal from the adminis
The regulations at issue provided (they have since been amended), in pertinent part, as follows. A licensee or registrant in receipt of a written notice of an assessment due and payable was required to “make payment in full on or before the due date . . . specified in the statement of assessment amount.” 845 Code Mass. Regs. § 4.03 (5). “Failure without just cause to pay any assessment when due” constituted a violation of 845 Code Mass. Regs. § 4.00 (emphasis added). 845 Code Mass. Regs. § 4.04 (1). Any licensee notified by the board of a violation of § 4.00 was entitled to request a hearing before being assessed civil penalties. 845 Code Mass. Regs. § 4.04 (4). The amount of the penalty was to be determined by the board based on consideration of a list of six factors. Id.
The board interpreted its governing statute, and the regulations promulgated thereunder, as permitting it to consider, in an administrative proceeding, whether a licensee or registrant had “just cause” to decline payment of an assessment because the assessment had been computed in a manner inconsistent with the statute and regulations. “An agency’s construction of its own rules and regulations ‘is one to .which considerable deference is due.’ ” Boston Police Superior Officers Fed’n v. Boston, 414 Mass. 458, 462 (1993), quoting Northbridge v. Natick, 394 Mass. 70, 74 (1985). We accept the board’s position on this point.
Before the board and the judge, the plaintiff raised numerous challenges to the board’s method of computing its assessment. Before this court, the plaintiff presses, as its single contention, the board’s exclusion from the assessment computation data on low-level radioactive waste produced during the relevant period and stored on-site for future disposal. The parties join in requesting that we resolve this issue.
As a general rule, this court does not consider claims which were not addressed by the court below. “However, ‘[tjhere may always be . . . particular circumstances which will prompt a reviewing or appellate court ... to consider questions of law which were . . . [not] passed upon by the court. . . below . . .’ ” (footnote omitted). Cruz v. Commissioner of Pub. Welfare, 395 Mass. 107, 111 (1985), quoting Hormel v. Helvering, 312 U.S. 552, 557 (1941). The plaintiffs claim concerns the interpretation of statutory and regulatory language and the validity of the agency’s interpretation of its regulation. These are questions of law, appropriate for our resolution. The issue properly was raised in administrative proceedings. The agency has considered and passed on the point and an adequate record exists for its review. In these circumstances, as a matter of judicial economy, we shall address the merits of the plaintiffs challenge to the validity of the assessment.
The board based the fiscal year 1992 assessment on data it collected pertaining to waste produced by registrants and licensees during 1990 and 1991. Although its survey requested data on waste produced during 1990 and 1991 and stored for later disposal, the board computed the individual assessment of each licensee and registrant based solely on waste shipped for disposal off-site during 1990 and 1991. According to the deputy director of the board, data on waste stored for future disposal were excluded because the data available on waste produced and stored for later disposal were less reliable than the data on waste shipped off-site for disposal. In the board’s view, the “substitution provision” of 845 Code Mass. Regs. § 4.03 (2) (c) (1), permitted it to rely solely on data as to waste shipped off-site for disposal in ap
The plaintiff contends that the board was required to apportion the assessment based on waste produced in the calendar period and either shipped off-site for disposal or stored for later disposal and that the board’s interpretation of its regulation fails to comport with the governing legislation. We agree.
“ ‘A state administrative agency in Massachusetts has considerable leeway in interpreting a statute it is charged with enforcing.’ A. Celia, Administrative Law and Practice § 747 (1986). See Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 850 (1977); Cleary v. Cardullo’s, Inc., 347 Mass. 337, [344] (1964); Massachusetts Nurses Ass’n v. Board of Registration in Nursing, 18 Mass. App. Ct. 380, 389 (1984). Regulations properly adopted by an administrative agency stand on the same footing as statutes and all rational presumptions are to be made in favor of their validity. Greenleaf Fin. Co. v. Small Loans Regulatory Bd., 377 Mass. 282, 293 (1979). Massachusetts Nurses Ass’n, supra. Such regulations are not to be declared void unless their provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate, Massachusetts Nurses Ass’n, supra at 389 n.19 . . . .” Berrios v. Department of Pub. Welfare, 411 Mass. 587, 595-596 (1992). These principles of deference, however, are not principles of abdication. See Warcewicz v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991). When an agency’s interpretation of its regulation cannot be reconciled with the governing legislation, that interpretation must be rejected. See Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 855 (1977).
The testimony before the administrative magistrate was that the board considered the data on waste stored for future disposal to be somewhat less reliable for purposes of determining volume and activity of waste that should be subject to the assessment. The board admitted, nonetheless, that it would be relying on data concerning waste stored for later disposal in calculating its annual assessment once out-of-State disposal facilities closed their doors to waste generators in the Commonwealth. Thus, there was no contention that the board could not conform to the legislative directive. In these circumstances, we conclude that the board’s interpretation of the “substitution provision” of its regulation cannot be reconciled with the language of G. L. c. 111H, § 4A. The board will have to recompute the plaintiff’s fiscal year 1992 assessment. In so doing, the board may use actual 1992 data and any other information that has become relevant since this controversy began.
6. Commerce clause violation. The plaintiff also contends that the assessment is in violation of the commerce clause of
7. Disposition. We affirm the judgment as to count I of the plaintiff’s complaint, declaring the assessment charged by the board a fee and not an unconstitutional tax. We vacate that part of the judgment which vacates the administrative decision of the board and dismisses the plaintiff’s appeal from that decision. We remand the case to the Superior Court so that it may be returned to the board for recomputation of the plaintiff’s fiscal year 1992 assessment in accord with the principles expressed in this opinion.
So ordered.
The board has since amended its regulations, and the relevant regulations are now codified at 345 Code Mass. Regs. § 4.00 (1994).
General Laws c. 111H, § 1 (1994 ed.), defines low-level radioactive waste as “radioactive'material that (1) is neither high-level waste, nor spent nuclear fuel, [nor] by-product material as defined in section 11(e)(2) of the Atomic Energy Act of 1954, as amended, 42 USC Section 2014(e); and (2) is classified by the Federal Government as low-level radioactive waste, but not including waste which remains a federal responsibility, as designated in section 3(b) of the Low-Level Radioactive Waste Policy Act, as in effect as of the effective date of this chapter, as amended, 42 USC Section 2021c(b).”
There is also a private commercial facility in Utah, not mentioned in the Federal act, that is authorized to accept for disposal waste which has very limited concentrations of radionuclides. The plaintiff has been able to send the limited amount of its waste which has appropriate characteristics to the Utah facility for disposal.
The management plan is codified at 345 Code Mass. Regs. § 1.00 (1994).
As an incentive, among others in the Federal act, States meeting the planning milestones are entitled to a share of the surcharges which the existing disposal sites are authorized to levy from waste generators in States that lack disposal sites. See 42 U.S.C. § 2021e (d).
Users of radioactive material either hold a license from the United States Nuclear Regulatory Commission to possess federally regulated radioactive material, or hold a license from the Commonwealth’s Depart
We reject the plaintiffs argument that the term “assessment” necessarily means that a “tax” rather than a “fee,” has been imposed. See Union Pac. R.R. v. Public Util. Comm’n of Or., 899 F.2d 854 (9th Cir. 1990) (considering whether “assessment” was “fee” or “tax”).
We note, in connection with this point, that the board has made a formal determination that additional disposal capacity for low-level radioactive waste generated in the Commonwealth is required to meet the present and projected needs of waste generators in the Commonwealth. 345 Code Mass. Regs. § 1.74 (1994).
Contrary to the contention in the dissent, see post at 214 n.l, the record confirms that because of the terms of the Federal act, the plaintiff cannot manage the disposal of its waste without reliance on the regulatory services performed by the board. The Federal act authorizes the disposal facilities on which the plaintiff has relied in the past (as well as any new sites that are now opened), to refuse waste from generators in States which have not met the milestones in the Federal act. See New York v. United States, 505 U.S. 144, 174 (1992) (“States may either regulate the disposal of radioactive waste according to federal standards by attaining local or regional self-sufficiency, or their residents who produce radioactive waste will be subject to federal regulation authorizing sited States and regions to deny access to their disposal sites”). Nothing in the record supports the assertion that the plaintiff will not continue to need access to facilities comparable to those located in Washington, Nevada, and South Carolina.
We are unable to discern the “tangible benefit” to landlords of the service provided by the rent control board under discussion in the case of Southview Coop Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. 395, 403 (1985), which the dissent asserts was conferred. See post at 217. For this reason, we have suggested that the services provided by the rent control board and the board in this case are in some measure analogous. Certainly, the landlords seeking rental adjustments received nothing analogous to access to electrical services, use of a sewage system, or the right to moor a boat.
We do not think that a clear line necessarily can be drawn between planning activities and the provision of tangible benefits. Even if such a line could be drawn, in this case, the board’s planning activities obtain for the plaintiff a present tangible benefit: continued access to facilities for the disposal of its radioactive waste.
The dissent distinguishes this Federal authority by noting that in most cases (but not all) where the service provided was not voluntarily requested, the regulatory agency in question issued licenses or permits to the fee-paying entities, and suggests that the voluntary application for a license or permit supplies the otherwise absent element of voluntariness. post at 216 & n.4. The decisions themselves make no such point. If a regulated entity must obtain a license to engage in a particular activity or business, the application for a license is not a free or unconstrained act.
The dissent, post at 218, also relies on a recent decision by the Appeals Court, Berry v. Danvers, 34 Mass. App. Ct. 507 (1993), in which that
General Laws c. 111H, § 4A (a), the statutory authority for the regulations provides, in pertinent part: “Failure without just cause to pay any lawful assessment pursuant to this section shall constitute a violation of this section.”
The judge concluded that the board’s regulations limited administrative proceedings to a consideration of the size of the penalty that should be imposed for a licensee’s failure to remit its assessment to the board within the ninety days specified by regulation. See 845 Code Mass. Regs. §§ 4.03 (3), 4.04 (4) (1992). The judge neither ruled nor implied that the board could not adopt regulations permitting administrative consideration of sub
The board’s regulations define “Waste Produced and Shipped for Disposal Off Site or Stored for Later Disposal,” as low-level radioactive material in a licensee’s or registrant’s possession that will not be put to productive use by any person, will not be discharged as air or water effluent, and is not being stored for decay within the storage period authorized by a current license or registration. 845 Code Mass. Regs. § 4.02.
Dissenting Opinion
(dissenting, with whom O’Connor, J., joins). The assessment at issue cannot be justified as a fee for services; it is instead an unconstitutional tax. The assessment does not possess any of the common traits which distinguish a fee from a tax, as set out in Emerson College v. Boston, 391 Mass. 415, 424-425 (1984).
First, the party paying the fee must receive in exchange a particular government service which benefits that party in a manner not shared by the general public. Id. at 424. In this case, however, the activities of the Low-Level Radioactive Waste Management Board (board) are not services which provide a tangible present benefit to the plaintiff. The board’s relevant statutory task is to produce a management plan for the purpose of protecting public health, safety, and the environment in the safe and efficient disposal of low-level radioactive waste. G. L. c. 111H, § 12 (1994 ed.). The board does not license or regulate the generation, processing, or treat
While the plaintiff may benefit from the activities of the board in planning for and managing the disposal of low-level radioactive waste in the future, there is no evidence to suggest any present benefit to the plaintiff from these activities. Until such time as the board’s plan for the disposal of waste is implemented, there are no beneficiaries of the board’s “services.” Without any present beneficiaries, it is impossible to determine whether the benefits of the services are sufficiently particularized to meet the first prong of the Emerson College test.
Moreover, the board’s planning activities do not provide the type of tangible benefit which existed where our courts
There are services for which the plaintiff does receive a present benefit, but the board does not provide them. The plaintiff receives a license to receive, acquire, possess, and transfer low-level radioactive waste from the United States Nuclear Regulatory Commission (NRC) and is subject to regulation and inspection by that agency. See 42 U.S.C. §§ 2092, 2093, 2111, 2113, 2232, 2233, 2236 (1988); 10 C.F.R. §§ 40.1-40.4, 40.14, 40.20, 40.31, 40.32, 40.35, 40.41, 40.51 (1995); 10 C.F.R. §§ 40.34, 40.42, 40.43 (1992). The NRC charges the plaintiff a fee for the costs of processing the license application and regulating the licensee. 10 C.F.R. §§ 170.31, 171.16 (1992). The Federal act does give the States limited power to regulate the disposal of low-level radioactive waste. 42 U.S.C. § 2021c (a) (1) (1988). See New York v. United States, 505 U.S. 144, 174 (1992). At the same time, however, the Federal act explicitly reserves to the NRC the right to continue regulating its licensees in most, if
In addition, when and if the board provides the plaintiff with access to a low-level radioactive waste disposal facility, the statute requires that a surcharge be levied on anyone using the facility. G. L. c. 111H, § 33 (o) (6), § 38 (c), § 41, § 42 (1994 ed.). This surcharge, which would be imposed in exchange for the use of a disposal facility, a service which would plainly benefit the plaintiff, more closely resembles a fee than the charge before the court.
The second common characteristic of a fee is that it is paid by choice. Emerson College, supra at 424-425. Generally, fees are charged for services voluntarily requested. Id. at 426. See National Cable Television Ass’n v. United States, 415 U.S. 336, 340 (1974) (“A fee . . . is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station”); New England Power Co. v. United States Nuclear Regulatory Comm’n, 683 F.2d 12, 14 (1st Cir. 1982), quoting National Cable Television Ass’n, supra, with approval. Here, the plaintiff did not request the board to develop a plan for managing and effecting the safe disposal of low-level radioactive waste.
The court says the plaintiff can choose whether to engage in manufacturing activities resulting in the production of low-level radioactive waste. Although recognizing that this “choice” cannot realistically be considered voluntary, the court states that the element of choice is not a compelling consideration which can be used to invalidate an otherwise legitimate charge. Ante at 206. I cannot accept the court’s cavalier dismissal of this crucial element.
The plaintiff does not have a choice in paying the fee; it is “compelled” to do so. The plaintiff is not able to avoid paying without forfeiting its Federal license and, thereby, forfeiting its right to use radioactive material. Avoidance of the fee by foregoing a privilege bestowed by a Federal license can hardly be described as a voluntary act. See Emerson
The third characteristic of a fee is that it is not collected for general revenue but to compensate the agency for its services. Emerson College, supra at 425. To require the plaintiff to subsidize the administrative costs of an agency simply because the agency makes plans that might affect the plaintiff in the future is compensating an agency for its expenses, but certainly not for its services. Such a scheme is a far cry from the payment of a fee for the use of State-owned property, facilities, or the issuance of licenses or permits. To permit the fee for services concept to be based on such a tenuous relationship would destroy a fundamental concept on which taxation is based.
Since the charge is not a valid fee, it can only be justified as a tax. The board contends that the assessment on the plaintiff should be upheld as a valid excise on the privilege of generating low-level radioactive waste requiring disposal. I disagree. For an excise on the enjoyment of the privilege to be valid, the exercise of the privilege must be a voluntary act. An excise may be imposed only where “the element of absolute and unavoidable demand is lacking.” Emerson College v. Boston, supra at 428, quoting P. Nichols, Taxation in Massachusetts 16 (3d ed. 1938). What I said in discussing the charge as a fee applies here as well. The plaintiff would not be able to avoid paying the tax without forfeiting the privilege granted by its Federal license. Avoidance of the tax by forgoing a privilege bestowed by a Federal license can hardly be described as a voluntary act. See Emerson College v. Boston, supra at 426. Furthermore, to suggest that the plaintiff could cease doing business as an alternative to paying the tax is to frustrate the use which is authorized by its Federal license and calls into question the preemption doctrine.
Moreover, the taxing power under our Constitution comprehends only two general powers: to impose proportional
I conclude, in light of the foregoing analysis, that the assessment is an unconstitutional tax. I therefore respectfully dissent.
-The court relies on the board’s contention that, if the plaintiff is to continue to engage in its current manufacturing activities, it must rely on a service provided by the board in the form of planning for disposal of low-level radioactive waste generated in the Commonwealth in compliance with Federal law and standards. Ante at 203. The plaintiff has managed its own low-level radioactive waste in the past by shipping it to sites in South Carolina, Nevada, Washington, and Utah. The court relies on the fact that this situation may change in the future and that, by 1996, States are authorized to refuse waste under certain conditions. Ante at 199. Such future contingencies do not justify the imposition of the current fee for services. Furthermore, there is no indication that the plaintiff will be unable to continue managing its own waste without the assistance of the board. Moreover, the plaintiff need not show that it will be able to avoid reliance on out-of-State disposal facilities in the future in order to meet its burden here.
In characterizing the planning activities of the board as services which provide a benefit to the plaintiff, the court fails to distinguish between present and future potential services. Ante at 202-203. On the one hand, a fee may be charged for a service which is presently available, even if the service is not actually used. See Maine v. Department of Navy, 973 F.2d 1007, 1014 (1st Cir. 1992) (Navy benefits from availability of spill response team, even though team has never responded to spill at shipyard). On the other hand, no case has held that a fee may be charged for a service the benefit of which is presently unavailable. In spite of the court’s assertion to the contrary, there is nothing in the record to support the contention that the board’s activities provide the plaintiff with continued access to waste facilities.
Title 42 U.S.C. § 2021d (b)(3) (1988), provides, in relevant part:
“Nothing contained in [this act] . . . may be construed to confer any new authority on any . . . State —
“(A) to regulate the packaging, generation, treatment, storage, disposal, or transportation of low-level radioactive waste in a manner incompatible with the regulations of the Nuclear Regulatory Commission or inconsistent with the regulations of the Department of Transportation;
“(B) to regulate health, safety, or environmental hazards from source material, byproduct material, or special nuclear material; [or]
“(C) to inspect the facilities of licensees of the Nuclear Regulatory Commission . . . .”
As the court notes, some Federal courts have upheld fees where the services provided were not voluntarily requested. See Maine v. Department of Navy, 973 F.2d 1007, 1012-1014 (1st Cir. 1992), and cases cited. Ante at 206. In Maine and the cases it cites (with one exception), the fee-paying party also sought or received a license or permit from the regulatory agency to engage in certain activities. Thus the voluntary act of applying for a permit or license was a precursor to the regulatory activities for