Petition — Don't Waste Washington Legal Defense Foundation v. Washington

Supreme Court brief1983

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Supreme Court of the United States

DON'T WASTE WASHINGTON LEGAL

DEFENSE FOUNDATION,

. Petitioner,

STATE OF WASHINGTON, et al.,

Defendants,

WASHINGTON STATE BUILDING AND CONSTRUCTION

TRADES COUNCIL, AFL-CIO, et al.,

UNITED STATES OF AMERICA,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BRICKLIN & GENDLER

By: MICHAEL W. GENDLER

Counsel of Record for

Petitioner

Office and P.O. Address:

Suite 900

Fourth & Pike Building

Seattle, Washington 98101

(206) 621-8868

ABCD AT CRAFTSMAN PRESS, SEATTLE

Office Supreme Court, U.S

92-841 FILER ~

NO. NOV 15 1982

IN THE CLERK

QUESTIONS PRESENTED

l. Is a state law (Initiative 383)

limiting import of low-level radioactive

wastes consistent with the Commerce Clause,

when enacted solely for health and safety

reasons and contrary to the state's eco-

nomic interests?

2. Has Congress preempted state

regulation through a statute expressly

reaffirming the states’ responsibility to

manage low-level wastes?!

lIPetitioner does not contend before this

Court that the State of Washington may

regulate high-level radioactive waste

storage and transportation or the lawful

activities of the United States. These

issues were addressed by the courts below.

Petitioner is Don't Waste Washington

Legal Defense Foundation, a nonprofit

Washington corporation affiliated with the

Don't Waste Washington Committee, sponsor

of Initiative 383. The other parties are:

Washington State Building & Construction

Trades Council, AFL-CIO; Washington

1 (Cont.)

Voice of Energy; US Ecology, Inc.; Tri-City

Nuclear Industrial Council; Tri-State Motor

Transit Company; Precision Cast Parts

Corporation; Northern States Power Company;

Chem-Nuclear Systems, Inc.; John C. Spell-

man, Governor of Washington; Kenneth

Eikenberry, Attorney General of Washington;

Alan J. Gibbs, Secretary of the State of

Washington; the State of Washington;

United States of America.

iii

Page

TABLE OF CONTENTS

Gpinions Below ..«+e«ertseeeee 1

Basis for Jurisdiction ....e«-«-. 2

Constitutional Provisions and

Statutes . . 7 . . >. . - — >. . . . 2

Statement of the Case ....+-+-e-« 2

A. Facts . . 7 . o >. . . . . . 2

B. Proceedings Below ....s. - 6

Argument in Support of Petition... 8

A. 383 is a Health and Safety

Measure Consistent with the

Commerce Clause ..+.+-e+-«s-«. 8

B. 383 Is Not Preempted by Federal

Law > >. > . . . >. . >. * _ _ . 16

ae ae oe ee ee ee ee ae a ee ee 22

Append ix oe we On Ze oe ee, Be et Te Se ge ee A-1

TABLES OF AUTHORITY

Table of Cases

Brotherhood of Locomotive Engineers

v. Chicago, Rock Island, & Pacific

R.R.,

DeCanas v. Bica, 424 U.S. 35l

(1976) >. > . . >. >. >. > > >. > > >. >. 20

Florida Lime & Avocado Growers v.

Paul, 383 U.S. 132 (1963) . . . . . 20

Hughes v. Oklahoma, 441 U.S. 332

) _ _ >. >. . >. > >. _ >. >. >. . >. 14

Kassel v. Consolidated Freight Corp.,

1Gn Se. Ce. 1909 C(i9SL) «© © ew eo 15

Lewis v. BT Investment Manage rs,

inc., 447 U.S. 27 (1980). Sa 13

Minnesota v. Cloverleaf Creamer

Company, 101 Ss. pleat croneey ,

New York State Department of Social

~~ Services v. Bublinc, 413 U.S.

Pe eek he eae. 6 6 @ e 20

Pacttic Legal Foundation v. State

~ Energy Resources Conservation &

Develo nt Comm'n, 659 F.2d 903

(Sth apne 1981), cert. denied,

S08 @. Ges Sees Caeeel «6 ¢ « ec

11,20

ee er eyat v. New Jersey, 437 U.S.

) . . . . . . . . -8,9,10, 13,21

Raymond Motor Transportation, Inc.

v. Rice, 434 U.S. 155 T1978). ae

Rice v. Santa Fe Elevator Corp.,

. . , * . . . . . . . 21

Vermont Yankee Nuclear Power Corp.

Vv.

“Bd

U.S.

U.S. Const.

Constitutional Provisions

U.S.C.

126 Cong.

Lucas,

Cha

Const.

Art. I,

Art. VI .

Statutes

§ 1254(1) .

5 288k 3

$1337 ..

$1345 ..

§ 2101(c) .

§§ 2021b-d

§ 2021d(a) (1) (A)

§ 8 cl.

§ 2021d(a)(2)(A).

§ 2021d(a) (1) (B)

§ 2021d(b)(1)(D).

Other Authority

Rec. H12496 (1980).

Rec. S16543 (1980)

Nuclear Waste Management:

erg

llenge to Federalism,

L.Q. 17 (1979) oe Se ee

Page

2,7,12,14,22

2,7

-2,16,17,18

- 12,15

- 11,14

Page

Tribe, California Declines the Nuclear

Gamble: Is Such a State Choice

Preempted?, 7 Ecol. L.Q. 679 (1979) 11,16

Washington Initiative

No. 383 . . . . . . . -1,2,3,4,6,7,passim

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1982

DON'T WASTE WASHINGTON LEGAL

DEFENSE FOUNDATION,

Petitioner,

Vv.

STATE OF WASHINGTON, et al.,

Defendants,

Vv.

WASHINGTON STATE BUILDING AND CONSTRUCTION

TRADES COUNCIL, AFL-CIO, et al.,

UNITED STATES OF AMERICA,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The District Court for the Eastern

District of Washington, McNichols, J.,

granted summary judgment to respondents and

held Initiative 383 unconstitutional. 518

F. Supp. 928 (1981). The Court of Appeals

for the Ninth Circuit, Goodwin, J., af-

firmed. 684 F.2d 627 (1982).

BASIS FOR JURISDICTION

The decision of the Ninth Circuit was

filed on August 17, 1982. This Court's

jurisdiction is invoked pursuant to 28

U.S.C. §§ 1254(1), 2101(c).

CONSTITUTIONAL PROVISIONS AND STATUTES

The Commerce Clause (U.S. Const. Art.

I, § 8, cl. 3), the Supremacy Clause (Art.

VI), pertinent provisions of the Low-Level

Radioactive Waste Policy Act (42 U.S.C. §§

2021b-d), and Washington Initiatve 383 are

set forth in the appendix to this petition.

STATEMENT OF THE CASE

A. Facts

In November, 1980, the voters of the

State of Washington enacted Initiative

Measure No. 383 ("383") prohibiting the

transportation and storage within Washing-

ton of radioactive waste produced outside

the state. 684 F.2d at 629. Initiative

383 set forth findings, not challenged in

the district court, that “radioactive

wastes are highly dangerous, in that

releases of radioactive materials and

emissions into the environment are inimical

to the health and welfare of the people

of the State of Washington, and contribute

to the occurrences of harmful diseases."

383, § 1(1).

Further findings in 383 establish that

transportation and storage of radioactive

wastes present a hazard to health and

safety because of the ever-present risk of

accident, § 1(2); that these hazards are

magnified both by the long time that the

wastes remain radioactive and by the

increasing quantities of wastes transported

to Washington for storage, § 1(1) and (3);

and that accidental releases of radioactive

Bie

wastes into the environment may contaminate

the air and water. § 1(4).

Ninety five percent of low-level waste

stored in Washington originates in other

states. 684 F.2d at 629.”

At the time of judgment below there

were three commercial sites available in

the United States for storage of low-level

radioactive waste. These sites were

Barnwell, South Carolina; Beatty, Nevada;

and Richland, Washington. See United

States Department of Energy, (Draft)

Low-Level Radioactive Waste Management

Report at 13-24 (Apr. 21, 1981) (this

report ("DOE Report") was included in the

2Initiative 383 exempted from the scope of

the prohibitions described above “medical

waste”, in recognition of the great bene-

fits derived from the application of nuc-

lear technology to the field of medicine,

and the comparatively low risk accompanyin

Wastes generated in such research. 383, §

242), 3 & 4. Also exempted are wastes

stored pursuant to interstate compacts “for

the regional storage of radioactive

wastes.” 383, § 6. A Northwest compact

has been submitted to Congress for ratifi-

cation. 684 F.2d at 630.

district court record). Three other sites

which in the past were used for storage of

low-level wastes had been closed. Id. Two

of these sites have experienced problems

with leaching of radioactive wastes and

contamination of the environment. Id. at

15, 23-24. Concerns that similar leaching

will contaminate the Columbia River were

a major consideration in enactment of

383.

Subsequent to the Ninth Circuit's

opinion, the Nevada Board of Health ordered

the closing of the Beatty site within

thirty days. This action leaves Richland

as the only commercial waste site in the

western United States. Previously, both

Beatty and Barnwell had begun to limit the

quantities of wastes accepted. DOE Report

at 17, 21-22.

Only Richland continues as a site for

unlimited storage. However, Governor Ray

was required to close the Richland facility

temporarily in 1979 due to shippers’ non-

compliance with packaging and transporta-

tion regulations. DOE Report at 18.

Similar action was required by the Governor

of Nevada at the same time. Id. at 22.

B. Proceedings Below

On March 27, 1981, US Ecology, Inc.,

the operator of the low-level waste site at

Richland, together with seven other plain-

tiffs filed suit under 28 U.S.C. §§ 1331

and 1337 seeking a declaration that 383 was

unconstitutional. Shortly thereafter, the

United States of America filed a similar

suit, invoking 28 U.S.C. § 1345. The

Governor of Washington and state officials

charged with inspecting radioactive waste

shipments and supervising the Richland site

were named as defendants.

On May 15, 1981, petitioner filed

timely motions to intervene in both

actions. The district court denied the

motions “without prejudice” but allowed

petitioner to appear as amicus curiae.

Plaintiffs in both actions filed

motions for summary judgment, supported by

affidavits, statements of material facts,

and memoranda. The state defendants filed

no affidavits or other evidence, instead

stipulating to the facts submitted by

plaintiffs.

The district court issued a memorandum

decision granting summary judgment on June

26, 1981, holding that 383 violated both

the Commerce and Supremacy Clauses. 518 F.

Supp. 928. Petitioner and the State

appealed to the Ninth Circuit, which

consolidated the cases and expedited the

hearing at petitioner's request. The Ninth

Circuit ruled that the district court erred

in denying petitioner's motion to inter-

vene, 684 F.2d at 629-30, but affirmed the

district court's decision on the merits.

Id. at 630-32.

ARGUMENT IN SUPPORT OF PETITION

A. 383 is a Health and Safety Measure

Consistent with the Commerce Clause

This petition presents an important

question of constitutional law reserved by

this Court's decision in Philadelphia v.

New Jersey, 437 U.S. 617 (1978). There,

the Court struck down a New Jersey statute

closing scarce and valuable landfill space

to out-of-state users, stating:

There has been no claim here that

the very movement of waste iato or

through New Jersey endangers health,

or that waste must be disposed of as

soon and as close to its point of

generation as possible.

Id. at 629.

Washington voters explicitly deter-

mined, in findings not challenged below,

that radioactive wastes are “highly danger-

ous," and the ever-present risk of accident

posed by transportation and storage pre-

sents a serious hazard to health, safety

and environment. 383, §§ 1(1), (2) & (4).

This case therefore poses the question

not answered in Philadelphia v. New Jersey,

whether the Commerce Clause precludes state

prohibitions deemed essential to health and

safety. In contrast to New Jersey's

efforts to preserve a scarce resource for

its own citizens, Washington has acted

against its own economic interests by

limiting waste disposal for health and

safety purposes. Indeed, the State, which

leases the Richland site to US Ecology and

collects substantial user fees and business

taxes from operation of the site, 684

F.2d at 629, submitted no evidence in

defense of 383.

The court of appeals clearly erred in

dismissing the stated health and safety

justifications in 383 as a mere “incanta-

tion" entitled to no deference. 684 F.2d

at 631. The burden was on those challeng-

ing 383 to demonstrate that the asserted

safety justifications were illusory. See

Raymond Motor Transportation, Inc. v.

Rice, 434 U.S. 429, 443 (1978); Vermont

Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 585 (1978) (fundamental pciicy

questions resolved in legislative process

are not subject to reexamination in

federal courts).

In accepting respondents’ contention

that 383 was impermissible “economic

isolationism," 684 F.2d at 631, the court

of appeals failed to recognize that 383 is

contrary to the state's economic interests.

The validity of legislation excluding

"highly dangerous" wastes whose “very

movement . . . endangers health" requiring

disposal “as close to its point of gener-

ation as possible” was reserved for another

day in Philadelphia v. New Jersey.

The serious dangers presented by

radioactive wastes are compounded by the

absence of an adequate waste disposal

technology and policy to cope with the ever

increasing quantities of the wastes. See

Pacific Legal Foundation v. State Energy

Resources Conservation & Development

Comm'n, 659 F.2d 903 (9th Cir. 1981), cert.

denied, 102 S. Ct. 2959 (1982); Lucas,

Nuclear Waste Management: A Challenge to

Federalism, 7 Ecol. L.Q. 917, 917-18 &

mn. 1-4 (1979); Tribe, California Declines

the Nuclear Gamble: Is Such a State Choice

Preempted?, 7 Ecol. L.Q. 679, 709 (1979).

While ninety five percent of radio-

active waste in Washington originates from

other states, forty eight other states now

refuse to provide storage for any wastes.

Lucas, supra at 919 & n.6; DOE Report at

13-24. This abdication of responsibility

by the other states has left Washington as

the major recipient of radioactive wastes

in the nation, thereby magnifying the risk

to health, safety, and environment in

Washington.

Under these circumstances, an absolute

ban on transportation and storage of radio-

active wastes would have been amply justi-

fied. However, in contrast to most other

states, Washington recognized its responsi-

bility to manage the wastes generated

within the state, a responsibility con-

firmed subsequently by Congress. 42 U.S.C.

§ 2021d(a)(1)(A). Again acting in advance

of congressional policy, Washington pro-

vided for regional storage of wastes as an

appropriate alternative to separate manage-

ment in each of the fifty states. See 383,

§ 6; 42 U.S.C. § 2021d(a)(1)(B).

The effect of the decisions below is

to require Washington to accept low-level

waste solely because it already has a waste

site. The decision appears to excuse other

states from sharing the risks and burdens.

The Commerce Clause does not require a

state to stand by helplessly as these risks

increase. In effect, the courts below

have penalized Washington for refusing to

join 48 other states in abdicating their

responsibility.

This Court has recognized that a state

may exclude articles whose “worth in

interstate commerce was far outweighed by

the dangers inhering in their very move-

ment." Philadephia v. New Jersey, supra at

622. The practical effect of state legis-

lation is “the principal focus of inquiry”

in determining whether such legislation

impermissibly burdens interstate commerce.

Lewis v. BT Investment Managers, Inc., 447

U.S. 27, 35-37 (1980). Respondents failed

entirely to demonstrate that 383 will have

more than an incidental impact on inter-

state commerce. No evidence was offered to

show that low-level waste can be stored

only in Washington.

Instead, respondents speculated that

383 will hinder the development and use of

nuclear power. This assertion, wholly

unsupported by the record below, is at odds

with the nuclear industry's contention that

waste management issues are unrelated to

the use of nuclear technology. Lucas,

supra at 918. Behind respondents’ incon-

sistent position is a desire to defer

development of a national waste management

policy solely at the risk of Washington

residents.

This Court has employed a balancing

approach in Commerce Clause cases, uphold-

ing state laws which serve a “legitimate

local purpose” and employ the least dis-

criminatory means available to achieve that

purpose. Hughes v. Oklahoma, 441 U.S. 332,

336 (1979). The Court has recognized

that safety is the highest purpose a state

can assert as a counterbalance to a burden

on interstate commerce. Raymond Motor

Transportation, Inc. v. Rice, supra at 443;

Hughes v. Oklahoma, supra at 337.

Where intended safety benefits are not

illusory or insubstantial, federal courts

must defer to the state's lawmakers on the

appropriate balance to be struck against

other interests. Kassel v. Consolidated

Freight Corp., 101 S. Ct. 1309, 1321 (1981)

(Brennan, J., with Marshall, J., concurring

in the judgment); Minnesota v. Cloverleaf

Creamery Company, 101 S. Ct. 715, 724-25

(1981). The courts below failed to give

any deference to Washington's lawmakers’

efforts to protect against the dangers of

radioactive wastes. E.g., 518 F. Supp. at

934.

Washington has accepted responsibility

for its own wastes, consistent with federal

policy, 42 U.S.C. § 2021d(a)(1)(A), has

made the Richland site available for

regional storage, and will continue to

accept wastes generated in medical research

from any part of the country. Initiative

383 reflects the state's judgment as to the

least discriminatory means available to

protect its citizens against the “ever-

present risk" of nuclear accident. 383,

§ 1(2) & (4).

B. 383 is Not Preempted by Federal Law

The court of appeals departed from

this Court's standards by implying preemp-

tion of 383 in the ‘“ow-Level Waste Policy

Act, 42 U.S.C. §§ 2021b-d. Implied preemp-

tion is disfavored as an invitation to

Congress to avoid making difficult politi-~

cal decisions in reliance on the courts.

Such decisions are not the proper role

of the courts. See Tribe, supra at 690.

The Low-Level Radioactive Waste Policy

Act, 42 U.S.C. §§ 202lb-d, enacted one

month after 383, is Congress’ most specific

and most recent legislation addressing

low-level wastes. The act established

federal policy:

(A) each State is responsible for

providing for the availability of

capacity either within or outside

the State for the disposal of

low-level radioactive waste gener-

ated within its borders except for

waste generated as a result of

defense activities of the Secretary

or Federal research and development

activities; and

(B) low-level radioactive waste

can be most safely and efficiently

managed on a regional basis.

The Low-Level Waste Act encouraged

formation of interstate compacts for

regional waste management, 42 U.S.C. §

2021d(a)(2)(A), while planning for “interim

storage” of commercial wastes at federal

sites. Id. § 2021d(b)(1)(D).

Washington is one of the only states

actively carrying out the federal policy of

providing capacity for its own waste,

having sub-leased and licensed the Richland

site. 684 F.2d at 629. Washington also

pioneered regional management through the

Northwest compact, id. at 630, thereby

fulfilling the second stated federal

policy.

The Act confirmed Congress’ respect

fer state authority to exclude low-level

waste by planning for interim storage of

commercial waste at federal faciliites. 42

U.S.C. § 2021d(b)(1)(D). The Act's legis-

lative history clearly confirms this

intent.

The clearest expression of congres-

sional intent was the explicit confirmation

by Senator McClure, a co-sponsor of the

Low-Level Waste Act, that the Act would not

require states to accept wastes from other

states. 126 Cong. Rec. S16543 (Dec. 13,

1980). Senator Thurmond confirmed Con-

gress' understanding of the existing

federal-state relationship. After refer-

encing the recent enactment of 383 in

Washington, the Senator stated:

I wish to leave the responsibility

for handling this problem where it

rightfully belongs -- with the

individual states.

Id. at S16544. See also 1°6 Cong. Rec.

H12496 (Dec. 13, 1980) (House co-sponsor

characterizing recent actions by site

states including 383 as “responsible").

Had Congress intended preemption in

its most specific and recent act addressing

low-level wastes, it surely would have done

more than tell the states to find storage

capacity. Senate leaders believing the

field already preempted would not “leave

the responsibility . . . with the indi-

vidual States." Nor would a co-sponsor of

preemptive legislation provide the confir-

mation requested by a colleague that his

state could prohibit “another State in

another part of the country from putting

its waste within that State.” 126 Cong.

Rec. S$16543 (Dec. 13, 1980).

The finding of preemption by the

courts below is contrary to the principles

of federalism established by this Court's

decisions. State laws are preempted only

if there is an “irreconcilable conflict”

with federal law, or where the “clear

and manifest purpose of Congress" to pre-

empt is evident. Florida Lime & Avocado

Growers v. Paul, 383 U.S. 132, 146 (1963).

Preemption is not to be inferred merely

from the existence of comprehensive federal

law in the field. New York State Depart-

ment of Social Services v. Dublino, #413

U.S. 405, 415 (1973). The Court has

stated:

Only a demonstration that complete

ouster of state power--including

state power to promulgate laws not

in conflict with federal laws--

was “the clear and manifest purpose

of Congress” would justify that

conclusion.

DeCanas v. Bica, 424 U.S. 351, 357 (1976).

See also Pacific Legal Foundation, supra

(state laws “zoning” nuclear power plants

upheld).

The principle that preemption will not

be presumed lightly is especially forceful

in its application to state health and

safety laws. Brotherhood of Locomotive

Engineers v. Chicago, Rock Island, &

Pacific R.R., 383 U.S. 423 (1966). See

also Philadelphia v. New Jersey, supra at

620-21 n.4 (declining to find preemption

in management of solid wastes); Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947) (recognizing historical police power

in fields traditionally occupied by the

state).

This policy of judicial restraint

recognizes the ultimate authority of

Congress to establish the federal-state

balance, while preserving essential state

authority to the extent consistent with

federal law. The courts below cut off

state authority clearly in advance of

congressional resolution of the issue.

CONCLUSION

The courts below have deprived Wash-

ington of its power to exclude dangerous

substances, extending application of the

Commerce Clause to wastes whose very

movement endanger health. Their decision

invaded Congress‘ authority to delineate

state and federal roles in low-level waste

management. The courts have answered

questions reserved for Congress, and may

well have reached a result opposite from

that intended by Congress.

The Court should grant the petition

and address the important constitutional

issues raised by the state's efforts to

address a too long ignored critical health

and safety issue.

DATED this __—‘- day of November, 1982.

Respectfully submitted,

BRICKLIN & GENDLER

MICHAEL W. G R

Counsel of Record for Petitioner

Don't Waste Washington Legal

Defense Foundation

APPENDIX

The Constitution of the United States

reads in pertinent part:

Article I, Section 8:

The Congress shall have Power ***

To regulate Commerce with foreign

Nations, and among the several States, and

with the Indian Tribes:

Article VI.

This Constitution, and the laws of

the United States which shall be

made in Pursuance thereof, and all

Treaties made, or which shall be

made, under the Authority of the

United States, shall be the supreme

Law of the Land; and the Judges in

every State shall be bound thereby,

" any Thing in the Constitution or

Laws of any State to the Contrary

notwithstanding.

A-2

The Low-Level Radioactive Waste

Policy Act

Title 42 U.S.C.

Sec. 2, As used in this Act--

(2) The term “low-level radio-

active waste" means radioactive

waste not classified as high-level

radioactive waste, transuranic

waste, spent nuclear fuel, or

byproduct material as defined in

section lle.(2) of the Atomic Energy

Act of 1954.

LOW-LEVEL RADIOACTIVE WASTE DISPOSAL

Sec. 4. (a)(1) It is the policy of the

Federal Government that--

(A) each State is responsible for

providing for the availability of

capacity either within or outside

the State for the disposal of

low-level radioactive waste gener-

ated within its borders except for

waste generated as a result of

defense activities of the Secretary

A-3

or Federal research and development

activities; and

(B) low-level radioactive waste

can be most safely and efficiently

manased on a regional basis.

(2)(A) To carry out the policy set

forth in paragraph (1), the States may

enter into such compacts as may be neces-

sary to provide for the establishment and

operation of regional disposal facilities

for low-level radioactive waste.

(B) A compact entered into under

subparagraph (A) shall not take effect

until the Congress has by law consented to

the compact. Each such compact shall

provide that every 5 years after the

compact has taken effect the Congress may

by law withdraw its consent. After January

1, 1986, any such compact may restrict. the

use of the regional disposal facilities

under the compact to the disposal of

A-4

low-level radioactive waste generated

within the region.

(b)(1}) In order to assist the States

in carrying out the policy set forth in

subsection (a)(1), the Secretary shall

prepare and submit to Congress and to each

of the States within 120 days after the

date of the enactment of this Act a report

which--

(A) defines the disposal capacity

needed for present and future

low-level radioactive waste on a

regional basis;

(B) defines the status of all

commercial low-level radioactive

waste disposal sites and includes an

evaluation of the license status of

each such site, the state of oper-

ation of each site, including

operating history, an analysis of

the adequacy of disposal technology

employed at each site to contain

A-5

low-level radioactive wastes for

their hazardous lifetimes, and such

recommendations as the Secretary

considers appropriate to assure

protection of the public health and

safety from wastes transported to

such sites;

requirements on a regional basis and

in comparison with performance of

present transportation practices for

the shipment of low-level radio-

active wastes, including an inven-

tory of types and quantities of

low-level wastes, and evaluation of

shipment requirements for each type

of waste and an evaluation of the

ability of generators, shippers, and

carriers to meet such requirements;

and

(D) evaluates the capability of

the low-level radioactive waste

A-6

@isposal facilities owned and

operated by the Department of Energy

to provide interim storage for

commercially generated low-level

waste and estimates the costs

associated with such interim stor-

age.

(2) In carrying out this subsection,

the secretary shall consult with the

Governors of the States, the Nuclear

Regulatory Commission, the Environmental

Protection Agency, the United States

Geological Survey, and the Secretary of

Transportation, and such other agencies

and departments as he finds appropriate.

A-7

COMPLETE TEXT OF

Initiative Measure 383

AN ACT Relating to radioactive waste;

prohibiting the storage of certain

radioactive waste in Washington state;

creating a new chapter in Title 70

RCW; and providing penalties.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF

WASHINGTON:

NEW SECTION. Section 1. The people

of the state of Washington find that:

(1) Radioactive wastes are highly

dangerous, in that releases of radioactive

materials and emissions to the environment

are inimical to the health and welfare of

the people of the state of Washington, and

contribute to the occurrences of harmful

diseases, including excessive cancer and

leukemia. The dangers posed by the trans-

portation and presence of radioactive

wastes are increased further by the long

time periods that the wastes remain radio-

active and highly dangerous;

A-8

(2) Transporting, handling, storing,

or otherwise caring for radioactive waste

presents a hazard to the health, safety,

and welfare of the individual citizens of

the state of Washington because of the

ever-present risk that an accident or

incident will occur while the wastes are

being cared for;

(3) The likelihood that an accident

will occur in this state involving the

release of radioactive wastes to the

environment becomes greater as the volume

of wastes transported, handled, stored, or

otherwise cared for in this state in-

creases;

(4) The effects of unplanned releases

of radioactive wastes into the environment,

especially into the air and water of the

state, are potentially both widespread and

harmful to the health, safety, and welfare

of the citizens of this state.

—

A-9

The burden and hazards posed by

increasing the volume of radioactive wastes

transported, handled, stored, or otherwise

cared for in this state by the importation

of such wastes from outside this state is

not a hazard the state government may

reasonably ask its citizens to bear. The

people of the state of Washington believe

that the principles of federalism do not

require the sacrifice of the health,

safety, and welfare of the people of one

state for the convenience of other states

or nations.

NEW SECTION. Sec. 2. The definitions

set forth in this section apply throughout

this chapter.

(1) “Radioactive waste” means unwanted

radioactive material, including radioactive

residues produced as a result of electric

power generation or other reactor opera-

tion.

A-10

(2) “Medical waste” means radioactive

waste from all therapy, diagnosis, or

research in medical fields and radioactive

waste which results from the production and

manufacture of radioactive material used

for therapy, diagnosis, or research in

medical fields, except that “medical waste”

does not include spent fuel or waste from

the fuel of an isotope production reactor.

(3) “Radioactive waste generated or

otherwise produced outside the geographic

boundaries of the state of Washington”

means radioactive waste which was located

outside the state of Washington at the time

of removal from a reactor vessel.

NEW SECTION. Sec. 3. Notwithstanding

any law, order, or regulation to the

contrary, after July 1, 1981, no area

within the geographic boundaries of the

state of Washington may be used by any

person or entity as a temporary, interim,

Or permanent storage site for radioactive

A-11

waste, except medical waste, generated or

otherwise produced outside the geographic

boundaries of the state of Washington.

This section does not apply to radioactive

waste stored within the state of Washington

prior to July l, 1981.

NEW SECTION. Sec. 4. Notwithstanding

any law, order, or regulation to the

contrary, after July 1, 1981, no person or

entity may transport radioactive waste,

except medical waste, generated or other-

wise produced outside the geographic

boundaries of the state of Washington to

any site within the geographic boundaries

of the state of Washington for temporary,

interim, or permanent storage.

NEW SECTION. Sec. 5. (1) A viola-

tion of or failure to comply with the

provisions of section 3 or 4 of this act is

a gross misdemeanor.

(2) Any person or entity that violates

or fails to comply with the provisions of

A-12

sections 3 or 4 of this act is subject to a

civil penalty of one thousand dollars for

each violation or failure to comply.

(3) Each day upon which a violation

occurs constitutes a separate violation for

the purposes of subsections (1) and (2) of

this section.

(4) Any person or entity violating

this chapter may be enjoined from contin-

uing the violation. The attorney general

or any person residing in the state of

Washington may bring an action to enjoin

violations of this chapter, on his or her

own behalf and on the behalf of all persons

similarly situated. Such action may be

maintained in the person's own name or in

the name of the state of Washington. No

bond may be required as a condition to

obtaining any injunctive relief. The

superior courts have jurisdiction over

actions brought under this section, and

venue shall lie in the county of the

A-13

plaintiff's residence, in the county in

which the violation is alleged to occur, or

in Thurston county. In addition to other

relief, the court in its discretion may

award attorney's and expert witness fees

and costs of the suit to a party who

demonstrates that a violation of this

chapter has occurred.

NEW SECTION. Sec. 6. Notwithstanding

the other provisions of this chapter, the

state of Washington may enter into an

interstate compact, which will become

effective upon ratification by a majority

of both houses of the United States Con-

gress, to provide for the regional storage

of radioactive wastes.

NEW SECTION. Sec. 7. This chapter

shall be liberally construed to protect the

health, safety, and welfare of the indi-

vidual citizens of the state of Washington.

NEW SECTION. Sec. 8. If any provi-

sion of this act or its application

A-14

to any person or circumstances is held

invalid, the remainder of the act or the

application of the provision to other

persons or circumstances is not affected.

NEW SECTION. Sec. 9. This act may be

known as the Radioactive Waste Storage and

Transportation Act of 1980.

NEW SECTION. Sec. 10. Sections 1

through 9 of this act shall constitute a

new chapter in Title 70 RCW.

A-15

WASHINGTON STATE BUILDING AND

CONSTRUCTION TRADES COUNCIL,

AFL-CIO, et al., Plaintiffs-Appellees,

Vv.

The Honorable John C. SPELLMAN,

Governor of the State of Washington,

et al., Defendants-Appellants.

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

STATE OF WASHINGTON, et al.,

De fendants-Appellants.

WASHINGTON STATE BUILDING AND

CONSTRUCTION TRADES COUNCIL,

AFL-CIO, et al., Plaintiffs-Appellees,

Vv.

The Honorable John C. SPELLMAN,

et al., Defendants,

and

Don't Waste Washington Legal Defense

Foundation,

Intervenor-De fendant-Appel lant.

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

STATE OF WASHINGTON, et

al., Defendant,

and

A-16

Don't Waste Washington Legal Defense

Foundation,

Intervenor-Defendant-Appel lant.

Nos. 81-3453, 81-3454, 81-3460

and 81-3461.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 5, 1982.

Decided Aug. 17, 1982.

Suit challenging constitutionality

of Washington statute prohibiting transpor-

tation and storage with” state of radioac-

tive waste produced outside state was

brought. The United States District Court

for the Eastern District of Washington,

Robert J. McNichols, Chief Judge, 518

F.Supp. 928, found the statute unconstitu-

tional, and appeal was taken. The Court of

Appeals, Goodwin, Circuit Judge, held that

the statute violated both the supremacy and

the commerce clauses.

Affirmed.

A-17

1. Federal Civil Procedure 331

In action challenging constitutional-

ity of Washington statute prohibiting

importation of low-level radioactive waste

originating outside state, public interest

group that sponsored statute as initiative

measure was entitled to intervene as matter

of right. Fed. Rules Civ. Proc. Rule

24(a), 28 U.S.C.A.

2. States 4.10, 6

Washington statute closing borders of

state to entry of low-level radioactive

waste orginating outside state violated

supremacy clause since it sought to regu-

late legitimate federal activity of dispos-

ing of such waste and since statute was not

authorized by federal law permitting

establishment and operation of regional

disposal facilities through interstate

compacts because it was not framed in terms

of compact and because compact had not been

A-18

approved by Congress. U.S.C.A. Const. Art.

6, cl. 2; Atomic Energy Act of 1954, § 274,

42 U.S.C.A. § 2021; Low-Level Radioactive

Waste Policy Act, § 2 et seq., 42 U.S.C.A.

§ 2021b et seq.

3. Commerce 52.10, 61(1)

Washington statute prohibiting trans-

portation and storage within state of

radioactive waste produced outside state

was unconstitutional as violation of

commerce clause since Congress had estab-

lished pervasive statutory scheme to

regulate nuclear activity. U.S.C.A. Const.

Art. 1, § 8, cl. 3; Atomic Energy Act of

1954, § 274, 42 U.S.C.A. § 2021; Low-Level

Radioactive Waste Policy Act, § 2 et seq.,

42 U.S.C.A. § 2021b et seq.

4. Commerce 12

Even in absence of pervasive federal

legislation, commerce clause prevents

states from erecting barriers to free flow

A-19

of interstate commerce. U.S.C.A. Const.

Art. 1, § 8, cl. 3.

5. Commerce 12

State statute may affect commerce

without violating commerce clause if

statute serves legitimate state interest

and if it is applied in nondiscriminatory

manner. U.S.C.A. Const. Art. 1, § 8, cl.

6. Commerce 13.4, 54

Criteria for determining whether

commerce clause has been violated is

whether state law regulates evenhandedly,

accomplishes legitimate local public

purpose, and has only incidental effect on

interstate commerce. U.S.C.A. Const. Art.

1, § 8, cl. 3.

Michael B. Crutcher, Seattle, Wash.,

argued for Washington State Bldg. et al.,

W. Russell Daggatt, Catherine B. Roach,

A-20

Roberta R. Katz, Preston, Thorgrimson,

Ellis & Holman, Seattle, Was., on brief.

Michael Hanbey, Asst. Atty. Gen.,

Olympia, Wash., argued for Spellman, et

al.; Kenneth 0. Eikenberry, Atty. Gen.,

Kenneth M. MacIntosh, Asst. Atty. Gen.,

Olympia, Wash., on brief.

Michael W. Gendler, Seattle, Wash.

for amicus curiae.

Appeal from the United States District

Court for the Eastern District of Washing-

ton.

Before GOODWIN and POOLE, Circuit

Judges, and EAST*, District Judge.

GOODWIN, Circuit Judge

The district court granted summary

judgment in favor of the United States and

certain commercial users of a low-level

*The Honorable William G. East, Senior

United States District Judge for the

District of Oregon, sitting by designa-

tion.

A-21

radioactive waste disposal site in the

State of Washington. The decision, re-

ported at 518 F.Supp. 928 (E.D. Wash.

1981), struck down as unconstitutional a

Washington statute closing the borders of

Washington to the entry of low-level

radioactive waste originating outside the

state. Don't Waste Washington (DWW), a

public interest group which had sponsored

the challenged initiative legislation,

appeals the denial cf leave to intervene as

a party. The State appeals the summary

judgment.

For more than fifteen years, the State

of Washington has leased from the United

States 1,000 acres in an area known as the

Hanford Reservation. During this time, the

State has sub-leased part of tie land for

use as a commercial low-level radioactive

waste dump. By arrangement with the United

States under § 274 of the Atomic Energy Act

(42 U.S.C. § 2021), Washington monitors the

A-22

dumping site (Richland) and inspects

shipments of waste to determine their

compliance with state and federal regula-

tions concerning radioactive material. The

State also licenses users and collects a

fee from them.

Richland is one of three low-level

radioactive dump sites in operation nation-

wide and receives about 40 percent of the

country’s low-level radioactive waste. It

is also the only currently operating site

accepting absorbed-liquid low-level radio-

active waste. Approximately 95 percent of

the waste received bv Richland originates

outside the State of Washington.

In November 1980, the voters of the

State of Washington enacted Initiative

Measure No. 383 ("383") prohibiting the

transportation and storage within Washing-

ton of radioactive waste produced outside

the state. The initiative also gave

permission for the state to enter into an

A-23

interstate compact to solve the problem of

radioactive waste on a regional basis.

Federal legislation had already provided

for military and high level radioactive

wastes.

After the Washington initiative was

approved by the voters, Congress passed the

Low-Level Radioactive Waste Policy Act of

1981 (Pub.L. No. 96-573, 94 Stat. 3347,

hereinafter referred to as the “Low-Level

Waste Act") encouragina the use of compacts

between and among states to accomplish

regional storage of low-level radioactive

waste. At the time the Low-Level Waste Act

was passed, Congress was aware of the

enactment of 383 in Washington.

. The operator of the site, together

with seven other plaintiffs, filed an

action in district court seeking a declar-

ation that 383 was unconstitutional and

requesting injunctive relief. Shortly

A-24

afterward, the United States of America

filed a similar action.

The parties concede that regulation of

the disposal of high-level radioactive

waste has been preempted by the federal

government and that this area is therefore

not susceptible to regulation by the

states. The dispute concerns the power of

a state to regulate within its borders the

importation and disposal of low-level

radioactive waste such as filter sludges,

resins, filter bottoms, used gloves and

protective clothing, rags, tools, papers,

plastic and material used in the manufac-

ture of smoke detectors, luminous dials and

emergency exit signs.

The government and the users of the

Richland site attack the state statute on

two grounds: (1) the Atomic Energy Act and

the Low-Level Waste Act preempt state

action; and (2) Measure 383 violates the

Commerce Clause of the United States

A-25

Constitution. The State of Washington

contends that § 274 of the Atomic Energy

Act and the interstate compact provision of

the Low-Level Waste Act cede control to the

state over low-level waste disposal in

general. The State also argues that 383

does not violate the Commerce Clause.

[1] DWW appeals the district court's

denial of its motion to intervene either as

a matter of right under Federal Rules of

Civil Procedure 24(a), or under Rule

24(b)'s provision for permissive interven-

tion.

Denial of DWW's motion to intervene

was error and accordingly we reverse as

to that holding. Rule 24 traditionally has

received a liberal construction in favor of

applicants for intervention. 7A C. Wright

& A. Miller, Federal Practice and Procedure

§ 1904 (1972). DwWW, as the public inter-

est group that sponsored the initiative,

Per

A-26

was entitled to intervention as a matter of

right under Rule 24(a). However, while we

sustain DWW's appeal, this reversal does

not require a new trial because the holding

of the case would not be changed. DWW

was permitted to participate in the argu-

ment on the appeal from the order granting

summary judgment, and its contentions were

duly considered. We conclude that the

Gistrict court was correct in granting

summary judgment to the plaintiffs. No

genuine issue of fact exists. Initiative

383 violates the Supremacy Clause and the

Commerce Clause of the United States

Constitution.

1. Supremacy Clause

[2] The initiative violates the

Supremacy Clause because it seeks to

regulate legitimate federal activity and to

avoid the preemption of the Atomic Energy

Act. Neither § 274 of the Act nor the

A-27

Low-Level Waste Act is a grant of total

authority to the states over the disposal

of low-level wastes within their own

borders.

The regulation of the disposal of

low-level radioactive waste is a legitimate

federal activity, and Congress has not

waived or delegated its authority over the

subject. The United States’ § 274 agree-

ment with the State of Washington gives the

State authority over such matters as

licensing, inspection, and levying of

lease and maintenance fees. However,

as the district court correctly points out,

complete control of the Richland site did

not pass with the assignment of regulatory

responsibilities.

The Low-Level Waste Act comes closer

to yielding control of disposal sites to

the states in which the sites are located.

The Act permits the establishment and

operation of regional disposal facilities

A-28

through interstate compacts. Because

Congress specifically gives permission for

regional disposal in this Act, states

signatory to a compact could exclude waste

from nonsignatory states without violating

the Supremacy or Commerce Clauses. Permis-

sion to exclude such wastes, however, is

conditioned on participation in a compact.

The State of Washington has signed the

proposed Northwest Interstate Compact on

Low-Level Radioactive Waste Management

(Northwest Compact) with Oregon, Idaho,

Montana and Utah. As of this date, the

proposed compact has not received Congres-

sional approval. Until the state partici-

pates in a compact which has become law,

the Low-Level Waste Act does not grant

power to any state to close its borders to

interstate traffic in low-level waste.

In any case, Initiative 383 was not

framed in terms of the Northwest Compact.

It was an unqualified closing of the

A-29

Richland facility to all out-of-state

users. As such, it violates the Supremacy

Clause.

II. Commerce Clause

[3] Initiative 383 also violates the

Commerce Clause. The initiative is based

upon an impermissible exercise of the State

of Washington's police powers. Congress

has established in the Atomic Energy Act a

pervasive statutory scheme to regulate

nuclear activity. As discussed above,

through § 274 of the Act and through the

Low-Level Waste Act, Congress has also

ceded some regulatory authority to the

states. But Congress stopped short of

granting the states power to ban wastes

transported from outside their borders.

(4,5] Even in the absence of pervasive

federal legislation, “the Commerce Clause

prevents the States from erecting barriers

to the free flow of interstate commerce."

Raymond Motor Transportation, Inc. v. Rice,

A-30

434 U.S. 429, 440, 98 S.Ct. 787, 54 L.Ed.2d

664 (1978). A state statute may affect

commerce without violating the Commerce

Clause, however, if the statute serves a

legitimate state interest and if it is

applied in a nondiscriminatory manner.

14.

[6] The criteria for determining

whether the Commerce Clause has been

violated are articulated in Pike v. Bruce

Church, Inc., 397 U.S. 137, 142, 90 S.Ct.

844, 847, 25 L.Ed.2d 174 (1970). The Pike

test asks whether the state law (1) regu-

lates evenhandedly; (2) accomplishes a

legitimate local public purpose; and (3)

has only an incidental effect on interstate

commerce.

Low-level waste from within Washington

and that traveling through the state are

exempted from the initiative. Only out-of-

state waste bound for disposal with Wash-

ington is banned. Such uneven treatment of

A-31

in-state and out-of-state parties fails the

first part of the Pike test.

This facial discrimination, in turn,

“invokes the strictest scrutiny of any

purported legitimate local purpose and of

the absence of nondiscriminatoary alterna-

tives." Hughes v. Oklahoma, 441 U.S. 322,

337, 99 S.Ct. 1727, 1737, 60 L.Ed.2d 250

(1979). The initiative cannot withstand

this level of scrutiny.

A challenge to bona fide safety

regulations must overcome a strong pre-

sumption of validity. Bibb v. Navajo

Freight Lines, 359 U.S. 520, 524, 79 S.Ct.

962, 964, 3 L.Ed.2d 1003 (1959). However,

the Supreme Court has recently held that

“the incantation of a purpose to promote

the public health or safety does not

insulate a state law from Commerce Clause

attack." Kassel v. Consolidated Freight-

ways Corp., 450 U.S. 662, 670, 101 S.Ct.

1309, 1316, 67 L.Ed.2d 580 (1981).

A-32

The state relies upon the proposition

that “releases of radioactive materials and

emissions to the environment are inimical

to the health and welfare of the people of

Washington ... ." Initiative 383, § l.

Undoubtedly, the release of radioactive

materials and emissions is inimical to the

safety of the people of any state. The

State of Washington neglects to address,

however, the manner in which local waste,

transported and stored within Washington

has superior safety and environmental

virtues over waste produced elsewhere and

similarly controlled by state regulatory

measures. Initiative 383, therefore, also

fails the second part of the Pike test.

Finally, Initiative 383 has more than

an incidental effect on interstate com-

merce. Washington receives two-fifths of

the country's low-level radioactive waste

and has the only site currently available

to receive absorbed-liquid low-level waste.

A-33

Closing Washington's borders would signif-

icantly aggravate the national problem of

low-level waste disposal. Thus, 383 fails

to meet the last part of the Pike test and

violates the Commerce Clause.

Further, 383 fails to qualify under

either the market participant or quarantine

theory exceptions to the Commerce Clause.

The State's contention that it is a “market

participant," thereby placing the initia-

tive beyond the reach of the Commerce

Clause, is unconvincing. The State argues

that 383 is a proprietary measure enacted

to limit the state's participation in the

waste disposal market. Whether or not the

State is a proprietor of the Richland site,

the initiative is cast in state regulatory

rather than in proprietary terms. The

measure is based on public safety rather

thar. on economic considerations. The

measure denies entry of waste at the

state's borders rather than at the site the

A-34

State is operating as a market participant.

The measure establishes civil and criminal

penalties which only a state and not a mere

proprietor can enforce.

The State's quarantine theory is

equally unconvincing. Under the quarantine

theory, a state may close its borders to

protect citizens against health hazards

such as epidemics.

In Philadelphia v. New Jersey, 437

U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475

(1978), however, the Supreme Court held

that one state may not “isolate itself from

a problem common to many by erecting a

barrier against the movement of interstate

trade." Id. at 628, 98 S.Ct. at 2538. In

that case, the out-of-state user of a New

Jersey disposal site challenged a New

Jersey statute prohibiting the importation

of out-of-state waste. The New Jersey

statute, like the Washington initiative,

protected the health of the individual

A-35

MEMORANDUM DECISION

ROBERT J. McNICHOLS, Chief Judge.

The plaintiffs in these cases chal-

lenge the constitutionality of Washington's

Radioactive Waste Storage and Transporta-

tion Act Measure No. 383 (Initiative).

Since the plaintiffs’ motions for summary

judgment rest on substantially similar

grounds, their motions were joined for

purposes of argument.

One of the plaintiffs, U.S. Ecology,

Inc. operates one of the three active

commercial nuclear waste disposal sites in

the United States. It provides disposal

services to the United States, various

state governments and numerous commercial

users throughout the country. The United

States, in addition to being a substantial

user of the commercial facility, also

maintains its own disposal sites in Wash-

ington.

A-36

The defendant (State) by the Initi-

ative, seeks to effectively ban the storage

of all non-medical radioactive waste

(waste) generated outside the State of

Washington. The Initiative also bans the

transportation of such waste to any storage

site in Washington. The stated purpose of

the Initiative was to protect the health

and safety of the citizens of Washington.

Although the State contends that the

provision in the Initiative for an inter-

state compact might remove any impermis-

sible ban on interstate commerce, the

Initiative Compact Section does not provide

a timely or effective exception to the

ban.

The Initiative does not ban the

transportation for storage or the storage

of waste generated in Washington. Nor does

it ban the transportation of radioactive

material through Washington for use or

A-37

storage elsewhere. Consequently, the

Initiative suggests that the perceived

harms caused by the waste occur after its

disposal in the storage sites.

The plaintiffs jointly contend that

the Initiative violates the Commerce

Clause, U.S.Const., Art. 1, § 8, cl. 3 and

that under the Supremacy Clause, U.S.

Const., Art. VI, cl. 2, it has been pre-

empted by federal law. (Atomic Energy Act,

42 U.S.C. §§ 2011 et seq.; Low-Level

Radioactive Waste Policy Act, Pub.L.No.

96-573 (Dec. 23, 1980); Hazardous Materials

Transportation Act, 49 U.S.C. §§ 1801

et seq.). In addition, the United States

contends that the Initiative violates the

War Power and Property Clauses of the

United States Constitution. With respect

to the Commerce Clause, the State contends

that the Initiative is valid as an action

of a market participant or as a proper

exercise of the State's police powers.

A-38

With respect to the Supremacy Clause, the

State contends that the Initiative has not

been preempted by federal law. I hold that

the Initiative is unconstitutional and thus

not enforceable.

FACTS

This controversy centers on the

transportation to and storage of nuclear

waste on the Hanford Reservation. This

federal reservation consists of 562 square

miles of land and facilities in and around

Benton County, Washington. Since 1943, the

reservation has been used for federal

nuclear programs.

There are three storage areas on the

reservation. The first two areas are owned

and operated by the federal government.

The first area provides storage for waste

generated from federal energy programs and

national defense activities. The second

area contains a near-surface test facility

A-39

which is designed to test the feasibility

of storing spent fuel and high-level waste

in underground basalt formations. The

third area arose out of a lease of approx-

imately 1000 acres by the United States to

the State of Washington. The State of

Washington subleased approximately 100 of

those acres to U.S. Ecology, Inc. for the

operation of a low-level radioactive waste

storage facility. Although there are two

other active commercial facilities in the

United States, the U.S. Ecology, Inc. site

is the only existing commercial facility

which can store absorbed low-level radio-

active liquids.

The commercial site is licensed for

its current activity by the State of

Washington. The site is regulated under

State and Federal regulations pertaining to

atomic energy and health and environmental

A-40

protection. The United States Department

of Transportation regulates the transporta-

tion of the radioactive waste.

The low-level radioactive waste

problem is of national concern. S.Rep. No.

548, 96th Cong. (1980), reprinted in

U.S.Code Cong. & Ad. News 11230. The

latest Department of Energy statistics

indicate commercial facilities generated

over three million cubic feet of low-level

waste in 1980. Low-Level Radioactive Waste

Management Report (Draft Report, April 21,

1981). By 1985, the figure is expected to

increase to over five and a half million

cubic feet per year. Id.

The commercial storage facility on the

Hanford Reservation is a key facility in

the nation's waste disposal progam.

Specifically, it is the only commercial

storage site which can store “apsorbed

low-level radioactive liquids." Moreover,

A-41

it accepted approximately twenty-seven

percent (27%) of the total waste in 1980.

While a site in Barnwell, South Carolina

has been accepting more than fifty percent

(50%) of the generated waste, a South

Carolina “volume limitation program" will

cut that site's capacity to less than

twenty-five percent (25%) of the waste

generated in 1985.

The facts of this case present a

Classic supply and demand problem. It is

clear that there is a serious national

problem with the increasing volume of

waste, which must be stored somewhere, and

a nearly simultaneous reduction of the

already limited storage capacity. Congress

has recognized this problem and taken steps

to solve it to the end that a few states

will not continue to bear the waste of

many. If the Initiative were permitted to

stand it would aggravate an already criti-

cal situation.

A-42

DISCUSSION

The Initiative is invalid for two

reasons: it violates the Supremacy Clause

and the Commerce Clause of the United

States Constitution.

{1,2] The Initiative violates the

Supremacy Clause because it seeks to

regulate legitimate federal activity, and

because it has been preempted by federal

law.

If the Initiative seeks to regulate

the transportation for storage and storage

of all federal waste generated outside the

State of Washington and the operations of

the federal storage facility, the Initia-

tive violates the Supremacy Clause. U.S.

Const. Art. VI, cl. 2. Since defendants’

counsel are unable to represent that the

Initiative did not apply against the

federal government, I mut, in light of the

Initiative's clear language, assume that it

A-43

does purport to apply to the federal

government. Therefore, I am compelled to

find that, to the extent that it is applic-

able to the United States government, the

Initiative, in the absence of an express

Congressional waiver of sovereignty, is

unconstitutional. Hancock v. Train, 426

U.S. 167, 96 S.Ct. 2006, 48 L.Ed.2d 555

(1976); Mayo v. United States, 319 U.S.

441, 63 S.Ct. 1137, 87 L.Ed. 1504 (1943).

The doctrine of federal preemption has

its roots in the Supremacy Clause. The

issue is whether the federal government has

preempted the state regulation of high-

level and low-level radioactive wastes.

Since preemption may be demonstrated

in either of two ways, my function is to

determine: (1) Whether there is evidence

(pervasive federal scheme or dominant

federal interest) that Congress intended to

supersede the police powers of the State,

A-44

Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed.

1447 (1947) or (2) Whether the Initiative

“stands as an obstacle to the accomplish-

ment and execution of the full purposes and

objectives of Congress." Hines v. David-

owitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404,

58 L.Ed. 581 (1941).

By reviewing the pervasive federal

statutory schemes for the regulation of

radioactive waste, the Atomic Energy Act,

the Low-Level Radioactive Waste Policy Act

and the Hazardous Materials Transportation

Act, and applying established judicial

reasoning, I am convinced that Congress

intended that the transportation and

storage of all materials which pose radi-

ation hazards would be regulated by the

federal government except where jurisdic-

tion was expressly ceded to the states.

Northern States Power Company v. State of

Minnesota, 447 F.2d 1143 (CA 8 1971),

A-45

aff'd, 405 U.S. 1035, 92 S.Ct. 1307, 31

L.Ed.2da 576 (1972) (nuclear waste re-

leases); Consolidated Rail Corporation

v. City of Dover, 450 F.Supp. 966 (D.Del.

1978) (hazardous freight and toxic mate-

rials.)

The State concedes, and the most

recent legislative history confirms the

fact that Congress has not expressly ceded

management of high-level radioactive waste.

S.Rep.No. 548, 96th Cong. (1980), reprinted

in U.S. Code Cong. & Ad.News 11231. Since

it is clear that federal law preempts any

state ban on high-level waste, the only

remaining issue is whether Congress has

expressly ceded regulation of low-level

wastes.

In this case, there are two federal

expressions which might be interpreted

as a grant of such authority: (1) the

Agreement between the United States

Atomic Energy Commission and the State

A-46

of Washington pursuant to Section 274

of the Atomic Energy Act (42 U.S.C. §

2021), and (2) the Low-Level Radioactive

Waste Policy Act, Pub.L. No. 96-573 (Dec.

23, 1980).

Although the Section 274 Agreement

expressly ceded qualified regulatory

responsibility over byproduct materials,

source materials and special nuclear

materials, it did not cede control over all

low-level wastes. Also, the Agreement, by

its terms, contemplates “that State and

Commission programs for protection against

hazards of radiation will be coordinated

and compatible." Agreement at p. 2.

Moreoever, the Agreement recognizes the

desirability of reciprocal recognition of

licenses. Agreement at p. 5. Furthermore,

Congress granted the authority to regulate

certain nuclear material. It did not grant

the authority to effectively ban the

receipt and disposal of such material.

A-47

Finally, the Initiative was expressly based

upon the State's police power to protect

the health, safety and welfare of the

citizens of Washington State. It was not

premised on the Section 274 Agreement.

Thus, neither the Agreement nor the

statute which authorized it represent an

express grant of the authority to the State

to effectively ban the storage or transport

of low-level radioactive waste.

The Low-Level Waste Policy Act,

(Low-Level Act), does constitute a valid

but limited grant of authority to effec-

tively ban the storage of certain waste.

The Low-Level Act is important for several

reasons. First, it clearly excludes

federal waste or facilities from any action

taken under a regional compact.

Second, the Low-Level Act recognizes

the particularly acute national problem of

a high demand for storage and a dwindling

supply of storage capacity. At the same

A-48

time, the Act recognizes that those states

(Nevada, South Carolina and Washington)

which provide the nation's entire commer-

cial disposal system cannot be expected to

continue to bear the burden of the other

states’ waste problems.

Thirdly, the Low-Level Act presents a

rational and equitable approach for resolv-

ing the waste disposal problem. Each state

is now responsible “for providing for the

availability of capacity either within or

outside the State" for low-level radio-

active waste disposal. Section 4(a)(1)(A).

The Low-Level Act recognizes that a region-

al approach affords the safest and most

efficient management. Section 4(a)(1)(B).

Congress has authorized the states to join

interstate compacts to provide for regional

disposal sites. Section 4(a)(2)(A). These

compacts are subject to approval by Con-

gress. After January 1, 1986, any such

regional compact may preclude disposal of

A-49

extra-regional waste in the compact's

regional sites. Section 4(a)(2)(B).

The State's argument that Congress, by

this statute, ceded complete authority to

regulate is not persuasive because the

statute merely makes each state “respon-

sible for providing for the availability of

capacity.”

The State contends that the Federal

Low-Level Waste Act does not preclude the

State from presently banning the importa-

tion of waste. Such an interpretation

of the statute is strained. Congress

has authorized the State to enter into

interstate compacts. After such compacts

are approved by Congress, the regions

established thereby may exclude waste from

without the region after January 1, 1986 or

at such other times as Congress may author-

ize.

A close reading of the statute and the

legislative history reveals a Congressional

A-50

plan to place future responsibility on the

individual states to dispose of their

waste. To encourage individual state

action, Congress made it clear to all

states that if they did not make provision

for their own waste by January 1, 1986,

they could be denied access to other

regions’ disposal sites. At the same time,

Congress recognized that the organization

of regional compacts and construction of

disposal sites would take time. Conse-

quently, Congress expressly delayed any

authorized ban on radioactive waste until

January 1, 1986. If I were tc adopt the

contentions that Washington may ban waste

today, the State of Washington would

obstruct the efforts of Congress toward an

orderly resolution of a significant nation-

al problem.

For the aforementioned reasons, the

Initiative cannot withstand scrutiny under

the Supremacy Clause.

A-51

COMMERCE CLAUSE

The plaintiffs contend that the

Initiative violates the Commerce Clause,

U.S.Const., Art. 1, § 8, cl. 3, because it

discriminates against and interferes with

interstate commerce. The State contends

that the Initiative does not violate the

Commerce Clause because: (1) the inter-

state movement of radioective waste, unlike

other substances, is not “commerce” within

the meaning of the Commerce Clause; (2) the

state is acting as a market participant;

and (3) the Initiative is based upon a

permissible exercise of the state's police

powers.

[3] Both a common sense view of the

facts and the principle that “[a]Jll ob-

jects of interstate trade merit Commerce

Clause protection; none [are] excluded by

definition at the outset[,]" Philadelphia

v. New Jersey, 437 U.S. 617, 622, 98

A-52

S.Ct. 2531, 2534, 57 L.Ed.2a 475 (1978),

(solid or liquid waste), support a determi-

nation that the movement of radioactive

waste in interstate commerce fits within

the definition of “commerce” for constitu-

tional purposes.

[4] The State's contention that the

Initiative merely reflects the action of a

“market participant” and that as such the

Initiative is beyond the reach of the

Commerce Clause is not persuasive. The

Initiative is not a proprietary measure.

The clear language of the Initiative

establishes that it is a regulatory mea-

sure. It purports to effectively ban the

transport for storage and the storage of

certain material. It establishes civil and

criminal penalties for violations. More-

over, the Initiative is based on a per-

ceived need to protect the health and

safety of the citizens of Washington. It

is not based on economics or other factors

A-53

traditionally associated with proprietary

measures. Finally, the State, as a lessor,

is engaged in the rental business. The

real proprietors are the United States

government as an operator of two federal

sites and U.S. Ecology, Inc., as the

operator of the commercial site. Having

determined that the movement of radioactive

waste is “commerce” and that the State is

not a “market participant”, I must now

determine whether the Initiative is permis-

sible as an exercise of Washington's police

power. I hold that the State of Washing-

ton, through the Initiative, has exceeded

its police powers.

[5-8] Unlike the situation in South

Carolina State Highway Department v.

Barnwell Brothers, Inc., 303 U.S. 177, 58

S.Ct. 510, 82 L.Ed. 734 (1938), Congress

has established a pervasive statutory

scheme, in this case, to regulate nuclear

activity. Although Congress has ceded some

A-54

of this authority to the states, it has not

granted the states the power to effectively

ban the transportation for storage or the

storage of radioactive waste generated

outside Washington. In the presence of

such pervasive federal legislation, the

Initiative must be invalidated. Campbell

v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7

L.Ed.2da 299 (1961) (supplemental state

tobacco regulation).

Even in the absence of federal legis-

lation, “the Commerce Clause prevents the

States from erecting barriers to the free

flow of interstate commerce." Raymond

Motor Transportation, Inc. v. Rice, 434

U.S. 429, 440, 98 S.Ct. 787, 793, 54

L.Ed.2d 664 (1978). However, a state

statute which affects commerce does not

violate the Commerce Clause if it is

designed to serve a legitimate state

interest and if it is applied in a nondis-

criminatory manner. Id. The court in such

A-55

instances must make a “delicate adjustment

of the conflicting state and federal

claims." Great Atlantic & Pacific Tea Co.,

Inc. v. Cottrell, 424 U.S. 366, 371, 96

S.Ct. 923, 928, 47 L.Ed.2d 55 (1976),

quoting from H. P. Hood & Sons, Inc. v. Du

Mond, 336 U.S. 525, 553, 69 S.Ct. 657, 679,

93 L.Ed. 865 (Black, J., dissenting). The

traditional criteria for this “delicate

adjustment” are set forth in Pike v. Bruce

Church, Inc., 397 U.S. 137, 142, 90 S.Ct.

844, 847, 25 L.Ed.2d 174.

The Pike test centers on three key

issues: (1) As a threshold issue, does the

state law regulate evenhandedly; (2) Does

the state law effectuate a legitimate local

public purpose; and (3) Does it have only

an incidental effect on interstate com-

merce. Assuming these questions are

answered in the affirmative, “the Initi-

ative will be upheld unless the burden

A-56

imposed on such commerce is clearly exces-

sive in relation to the putative local

benefits. . .." Id. This balancing

effort involves “a sensitive consideration

of the weight and nature of the state

regulatory concern in light of the extent

of the burden imposed on the course of

interstate commerce." Raymond Motor Trans-

portation, Inc. v. Rice, supra, 434 U.S. at

441, 98 S.Ct. at 794.

The threshold issue must be answered

in the negative. Where, as here, a state

“overtly blocks the flow of interstate

commerce at [the] State's borders," Phil-

adelphia v. New Jersey, 437 U.S. 617, 624,

98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978),

the state statute on its face discriminates

against interstate commerce on the basis of

origin. Such facial discrimination,

regardless of the State's purpose, may by

itself provide a sufficient basis to

invalidate the statute. Id. Moreover, in

A-57

light of the Initiative's implied exemp-

tions and the recent decision in Kassel v.

Consolidated Freightways Corporation

of Delaware, U.S. » 101 S.Ct. 1309,

67 L.Ed.2d 580 (1981), it is also clear

that an application of the Initiative to

the movement of radioactive waste in

interstate commerce would discriminate

against commerce. The exemptions in the

Initiative, particularly the implied

exemption of all radioactive waste gener-

ated in Washington, offers the benefits of

available radioactive waste storage to

Washington's nuclear industry and effec-

tively denies such benefits to the bulk of

this country's nuclear industry. Moreover,

since the Initiative impliedly exempts the

shipment of radioactive waste through the

State and, by its terms, is directed at the

origin of the waste, it would appear that

the State has decided that the principal

harm from radioactive waste arises after

A-58

its disposal in a storage site: Thus,

there is no basis to distinguish waste

generated in Washington from waste gener-

ated in other states. In short, the

Initiative on its face and in its plain

effect is unconstitutional because it does

not regulate evenhandedly. See Kassel v.

Consolidated Freightways, supra; Phil-

adelphia v. New Jersey, supra.

Even if such facial and substantive

discrimination is not a per se fatal

defect, “such facial discrimination invokes

the strictest scrutiny of any purported

legitimate local purpose «nd of the absence

of nondiscriminatory alternatives." Hughes

v. Oklahoma, 441 U.S. 322, 337, 99 S.Ct.

1727, 1737, 60 L.Ed.2da 250 (1979). The

Initiative cannot withstand such scrutiny.

While it has been held that “if safety

justifications are not illusory, the Court

will not second-guess legislative judg-

ment,” Raymond Motor Transportation, Inc.

A-59

v. Rice, supra 434 U.S. at 449, 98 S.Ct.

at 798 (Blackmun, J., concurring), the mere

incantation of “a purpose to promote the

public health or safety does not insulate a

state law from Commerce Clause attack.”

Kassel v. Consolidated Freightways,

U.S. ’ » 101 S.Ct. 1309, 1316, 67

L.Ed.2d 580 (1981). This should be par-

ticularly true where, as here, the state

law is a product of the Initiative process

and not a product of the more detailed and

deliberate approach normally associated

with tue state legislature.

Moreover, when discrimination against

commerce is demonstrated, the State has the

burden of demonstrating the local benefits

flowing from the state statute and the

unavailability of adequate nondiscrimi-

natory alternatives. Hunt v. Washington

Apple Advertising Comm'n., 432 U.S. 333,

353, 97 S.Ct. 2434, 2446, 53 L.Ed.2d 383

(1977). Here the defendants have failed to

A-60

present evidence that non-medical radio-

active waste, transported and stored in

compliance with Federal regulations, is

dangerous to the health and safety of the

citizens of the State of Washington.

Indeed, a recent study by the Department of

Social and Health Services of the State of

Washington suggests that nuclear waste, if

properly regulated, can be safely trans-

ported and also suggests that there are

less discriminatory means to protect the

public. See Stipulation of Authenticity of

Documents, Exhibit 10. The closing sen-

tence of the report's Abstract is particu-

larly instructive:

None of our studies detected serious

personnel exposure problems, but

further reductions can be obtained

through the institution of better

storage procedures, quicker handling

techniques and maintaining greater

distances from radiation sources.

Finally, the Initiative will clearly

have more than an incidental effect on

interstate commerce. As noted earlier,

A-61

Congress and the Department of Energy have

noted the rapid growth of radioactive waste

and the reduction in storage capacity. The

Initiative will aggravate this national

problem by substantially reducing all

low-level radioactive waste storage and by

precluding any commercial storage of

absorbed low-level radioactive liquids.

Even if I were to consider the weight

and nature of the state regulatory concern

in light of the extent of the burden on

interstate commerce, I would still hold

that the Initiative violates the Commerce

Clause. Since the State's safety interest,

assuming proper compliance with adequate

regulations, is at least arguably illusory

and since the Initiative significantly

impairs the federal interest in encouraging

the peaceful use of radioactive material

and in solving the radioactive waste

problem, the Initiative cannot be harmon-

ized with the Commerce Clause.

A-62

CONCLUSION

For the aforementioned reasons, I hold

that the Initiative is unconstitutional and

thus unenforceable. Therefore, plaintiffs’

Motions for Summary Judgment are GRANTED.

The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.