California Radioactive Materials Management Forum v. Department of Health Services

Page 357

19 Cal.Rptr.2d 357

15 Cal.App.4th 841

CALIFORNIA RADIOACTIVE MATERIALS MANAGEMENT FORUM, et al., Petitioners, v. DEPARTMENT OF HEALTH SERVICES, et al., Respondents SENATE RULES COMMITTEE, Real Party in Interest.

No. C013930.

Court of Appeal, Third District, California.

May 7, 1993.

Rehearing Denied June 2, 1993.

Review Denied Aug. 24, 1993.

Graham & James, Paul A. Dezurick, Jennifer L. Hernandez and Donald P. Margolis, San Francisco, for petitioner California Radioactive Materials Management Forum.

Baker & McKenzie, Abby B. Silverman and Keith D. Boesky, San Diego, for petitioners William H. Otterson et al.

Sheldon Trubatch, Washington, DC, for petitioners American College of Nuclear Physicians et al.

Latham & Watkins, David L. Mulliken, Christopher W. Garrett and Karl S. Lytz, San Diego, for petitioner US Ecology, Inc.

Pete Wilson, Governor, Janice Rogers Brown, Legal Affairs Secretary, Dale E. Bonner, Deputy Legal Affairs Secretary, Los Angeles, Luce, Forward, Hamilton & Scripps, Stephen P. Swinton, Mary L. Walker, San Diego, Edward Hirshfeld, B.J. Anderson, Grant Woods, Atty. Gen., State of Ariz., Charles S. Pierson, Asst. Atty. Gen., Phoenix, AZ, Snell & Wilmer and Richard A. Derevan, Irvine, amici curiae for petitioners.

Daniel E. Lungren, Atty. Gen., John H. Sanders, Supervising Deputy Atty. Gen., and Paula L. Gibson, Deputy Atty. Gen., for respondents.

Remcho, Johansen & Purcell, Joseph Remcho, Robin B. Johansen, Karen A. Getman, San Francisco, Strumwasser & Woocher, Frederic D. Woocher and Michael J. Strumwasser, Santa Monica, for real party in interest.

Fred Vendig, Gen. Counsel, Karen L. Tachiki, Asst. Gen. Counsel, Victor E. Gleason, Senior Deputy Gen. Counsel, D. Robert Shuman, Belvin Kent Smith, Richard J. Chivaro, Allison M. Holdorff, Daniel P. Selmi, Karl Manheim, Robert M. Myers and Robert C. Hight, Chief Counsel, Best, Best & Krieger, Gene Tanaka, Timothy M. Connor, Patrick H.W.F. Pearce and Cynthia M. Germano, Riverside, amici curiae for real party in interest.

SPARKS, Associate Justice.

This original writ proceeding arises out of a dispute over an application for a license for the construction and operation of a low-level radioactive waste disposal facility in Ward Valley near the City of Needles in the Southern California desert. ¹ The petitioners challenge an order of the Department of Health Services (the department) for administrative proceedings in a formal adjudicatory mode in connection with the application of US Ecology, Inc., (US Ecology) for the license in question. Petitioners are US Ecology and diverse individuals and groups with asserted interests in ensuring the timely construction and operation of the facility. ² Named as respondents are the department, Dr. Molly J. Coye in her capacity as Director of Health Services, the Health and Welfare Agency, and Russell S. Gould in his capacity as Secretary of the Health and Welfare Agency. ³ The state Senate Rules Committee was designated a real party in interest after we granted its motion to intervene. Numerous persons and groups have filed amici curiae briefs supporting and opposing the petitions. ⁴

The department has already conducted exhaustive administrative proceedings on the pending license application, and has admitted that the proposed adjudicatory proceeding is unnecessary. Nonetheless, the department has notified US Ecology that it must submit to the proposed proceeding before the department will render a decision on its license application. The proposed proceeding would be substantially similar to one conducted under those provisions of the Administrative Procedure Act (hereafter the APA) (Gov.Code, § 11340 et seq.) governing administrative adjudication (Gov.Code, § 11500 et seq.).

Petitioners contend that the order for formal adjudicatory proceedings is the result of unlawful coercion by members of the Senate Rules Committee during the confirmation hearings of Gould and Coye to head the Health and Welfare Agency and the department, respectively. The Senate Rules Committee admits that it obtained an agreement for further administrative proceedings from Gould and Coye during the confirmation process but characterizes the agreement as a legally proper compromise between two branches of government.

We conclude that the Senate Rules Committee's interference in the administration of the law was unconstitutional and the purported agreement with the administrative officers is void. Formal adjudicatory hearings are not otherwise required by law and the respondents have conceded that the void agreement is the only basis upon which they intend to conduct further proceedings. Accordingly, we shall issue a peremptory writ of mandate to require the department to consider US Ecology's license application without regard to the void agreement with the Senate Rules Committee.

FACTUAL AND PROCEDURAL BACKGROUND

The genesis of this writ proceeding may be traced to our country's large annual production of low-level radioactive waste and the shortage of an adequate number of disposal sites. ⁵ The problem is national and it has been the subject of federal legislation crafted to ensure the timely construction of disposal facilities throughout the country sufficient to accommodate the burgeoning waste. The congressional enactments were recently upheld in almost all respects by the United States Supreme Court in New York v. United States (1992) 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120. Justice O'Connor, writing for the majority, aptly described the nature of the problem and the resulting federal legislation. Since the federal legislation forms the backdrop for the present proceeding, her synopsis bears repeating.

"We live in a world of low level radioactive waste. Radioactive material is present in luminous watch dials, smoke alarms, measurement devices, medical fluids, research materials, and the protective gear and construction materials used by workers at nuclear power plants. Low level radioactive waste is generated by the Government, by hospitals, by research institutions, and by various industries. The waste must be isolated from humans for long periods of time, often for hundreds of years. Millions of cubic feet of low level radioactive waste must be disposed of each year.

"Our Nation's first site for the land disposal of commercial low level radioactive waste opened in 1962 in Beatty, Nevada. Five more sites opened in the following decade: Maxey Flats, Kentucky (1963), West Valley, New York (1963), Hanford, Washington (1965), Sheffield, Illinois (1967), and Barnwell, South Carolina (1971). Between 1975 and 1978, the Illinois site closed because it was full, and water management problems caused the closure of the sites in Kentucky and New York. As a result, since 1979 only three disposal sites--those in Nevada, Washington, and South Carolina--have been in operation. Waste generated in the rest of the country must be shipped to one of these three sites for disposal.

"In 1979, both the Washington and Nevada sites were forced to shut down temporarily, leaving South Carolina to shoulder the responsibility of storing low level radioactive waste produced in every part of the country. The Governor of South Carolina, understandably perturbed, ordered a 50% reduction in the quantity of waste accepted at the Barnwell site. The Governors of Washington and Nevada announced plans to shut their sites permanently.

"Faced with the possibility that the Nation would be left with no disposal sites for low level radioactive waste, Congress responded by enacting the Low-Level Radioactive Waste Policy Act, Pub L 96-573, 94 Stat 3347. Relying largely on a report submitted by the National Governors' Association, Congress declared a federal policy of holding each State 'responsible for providing for the availability of capacity either within or outside the State for the disposal of low-level radioactive waste generated within its borders,' and found that such waste could be disposed of 'most safely and efficiently ... on a regional basis. § 4(a)(1), 94 Stat 3348. The 1980 Act authorized States to enter into regional compacts that, once ratified by Congress, would have the authority beginning in 1986 to restrict the use of their disposal facilities to waste generated within member States. § 4(a)(2)(B), 94 Stat 3348. The 1980 Act included no penalties for States that failed to participate in this plan.

"By 1985, only three approved regional compacts had operational disposal facilities; not surprisingly, these were the compacts formed around South Carolina, Nevada, and Washington, the three sited States. The following year, the 1980 Act would have given these three compacts the ability to exclude waste from nonmembers, and the remaining 31 States would have had no assured outlet for their low level radioactive waste. With this prospect looming, Congress once again took up the issue of waste disposal. The result was the Low-Level Radioactive Waste Policy Amendments Act of 1985.

"... In broad outline, the Act embodies a compromise among the sited and unsited States. The sited States agreed to extend for seven years the period in which they would accept low level radioactive waste from other States. In exchange, the unsited States agreed to end their reliance on the sited States by 1992." (New York v. United States, supra, 505 U.S. at pp. ---- - ----, 112 S.Ct. at p. 2415, 120 L.Ed.2d at pp. 133-134, some citations omitted.)

The Low-Level Radioactive Waste Policy Amendments Act of 1985 (1985 Act) authorizes states to enter into regional compacts "as may be necessary to provide for the establishment and operation of regional disposal facilities for low-level radioactive waste." (42 U.S.C. § 2021d(a)(2).) The 1985 Act requires the three existing disposal sites to continue to accept out-of-state waste through the end of 1992 (42 U.S.C. § 2021e(a)(2)), but also permits the three sited States to exact graduated...