California Radioactive Materials Management Forum v. Department of Health Services
Decision Date | 07 May 1993 |
Docket Number | No. C013930,C013930 |
Citation | 15 Cal.App.4th 841,19 Cal.Rptr.2d 357 |
Court | California Court of Appeals Court of Appeals |
Parties | CALIFORNIA RADIOACTIVE MATERIALS MANAGEMENT FORUM, et al., Petitioners, v. DEPARTMENT OF HEALTH SERVICES, et al., Respondents; SENATE RULES COMMITTEE, Real Party in Interest. |
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.
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 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.).
was designated a real party in interest after we granted its [15 Cal.App.4th 848] motion to intervene. Numerous persons and groups have filed amici curiae briefs supporting and opposing the petitions. 4
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.
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 "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.
Low-Level Radioactive Waste Policy Amendments Act of 1985.
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...
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