Fort Mojave Indian Tribe v. Department of Health Services, B086429

• Citation: 45 Cal.Rptr.2d 822,38 Cal.App.4th 1574
• Decision Date: 05 October 1995
• Docket Number: No. B086429,B086429
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 7925, 95 Daily Journal D.A.R. 13,573 FORT MOJAVE INDIAN TRIBE et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF HEALTH SERVICES et al., Defendants and Appellants; US ECOLOGY, INC., Real Party in Interest and Appellant; California Radioactive Materials Management Forum, Intervener and Appellant.

Page 822

45 Cal.Rptr.2d 822

38 Cal.App.4th 1574, 95 Cal. Daily Op. Serv. 7925,

95 Daily Journal D.A.R. 13,573

FORT MOJAVE INDIAN TRIBE et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF HEALTH SERVICES et al., Defendants and Appellants US ECOLOGY, INC., Real Party in Interest and Appellant California Radioactive Materials Management Forum, Intervener and Appellant.

No. B086429.

Court of Appeal, Second District, Division 2, California.

Oct. 5, 1995.

Rehearing Denied Nov. 3, 1995.

Review Denied Jan. 18, 1996.

Cadwalader, Wickersham & Taft, Roger Lane Carrick, David B. Sadwick, Aimee Dominguez Silvers, Los Angeles, Hannah Bentley, San Francisco, Michael Lozeau and Allison Holdorff, Los Angeles, for Plaintiffs and Appellants.

Daniel E. Lungren, Attorney General, John H. Sanders, Supervising Deputy Attorney General, and Paula Lauren Gibson, Deputy Attorney General, for Defendants and Appellants.

Latham & Watkins, Karl S. Lytz, Kimberly M. McCormick, San Diego, and Darius Ogloza, San Francisco, for Real Party in Interest and Appellant.

Beveridge & Diamond, James L. Meeder, Jennifer L. Hernandez and Katherine B. Steuer, San Francisco, for Intervener and Appellant.

FUKUTO, Associate Justice.

This case concerns the California Department of Health Services' (DHS) approval of an environmental impact report (EIR) and license for the construction and operation of a low-level radioactive waste (LLRW) disposal facility at Ward Valley, San Bernardino County, in the Mojave Desert. Petitioners, the Fort Mojave Indian Tribe (Tribe) and three nonprofit corporations, ¹ sought a writ of mandate invalidating DHS's decisions certifying the EIR and granting the license to real party in interest US Ecology, Inc. (US Ecology). ² California Radioactive Materials Management Forum (Forum), an organization of institutions that generate LLRW and require its disposal, intervened in opposition. ³ The trial court gave judgment denying the petition on all substantive grounds, but requiring that the approvals be set aside and reconsidered in light of a scientific report, issued after their grant, which discussed the possibility of contamination of the Colorado River from the facility.

All parties have appealed. Petitioners seek broader relief from DHS's decisions, while respondents seek reversal of the limited grant of the writ and thus denial of the petition. We have concluded that there was insufficient basis to remand the matter for reconsideration, and that petitioners' other grounds for setting aside DHS's disposition were correctly determined to be without merit. We therefore reverse with directions to deny the petition.

STATEMENT OF THE CASE

1. The Administrative Proceedings.

The general background of the proceedings under review is described in California Radioactive Materials Management Forum v. Department of Health Services (1993) 15 Cal.App.4th 841, 848-854, 19 Cal.Rptr.2d 357 (CalRad ), which also concerned those proceedings. ⁴ In brief, LLRW is statutorily defined by excluding certain other radioactive material, the responsibility for safe disposal of which generally resides in the federal government. LLRW comprises a variety of radioactive materials, used in or generated by many medical, industrial, research, and other activities and facilities. (See 15 Cal.App.4th at p. 849, 19 Cal.Rptr.2d 357.) Only six facilities for land disposal of LLRW have previously been established, between 1963 and 1971. Most of them have since been closed. (Id. at pp. 849-850, 19 Cal.Rptr.2d 357.)

In 1980 and again in 1985, Congress enacted legislation to encourage every state to provide for disposal of its own LLRW, preferably on a regional basis pursuant to interstate compacts. (See CalRad, supra, 15 Cal.App.4th at pp. 850-851, 19 Cal.Rptr.2d 357.) In response, California enacted a series of amendments to its 1961 Radiation Control Law (Health & Saf.Code, § 25800 et seq. [RCL] ). The amendments first required DHS, the agency already responsible for issuing licenses under the RCL (Health & Saf.Code, § 25810), to plan for the disposal of California's LLRW. (E.g., Health & Saf.Code, §§ 25811.5, 25811.7.) The Legislature then directed the Governor to enter into an interstate compact, and DHS to select a private contractor, for a waste disposal facility. (See CalRad, supra, at pp. 851-852, 19 Cal.Rptr.2d 357.)

In 1987, California entered into the Southwestern Low-Level Radioactive Waste Disposal Compact (Health & Saf.Code, §§ 25877-25878 [compact] ), with Arizona, North Dakota, and South Dakota. The compact provided that this state would be the "host state" for a regional LLRW disposal facility for the first 30 years, the role thereafter to be extended or transferred at California's option. (Health & Saf.Code, § 25878, art. 2, subd. (G), art. 4, subd. (C)(1).) The compact obligated California to cause the facility to be developed on a timely basis, and to assure, among other things, protection and preservation of public health and safety in its siting, licensing, operation, closure, and long-term care. (Health & Saf.Code, § 25878, art. 4, subds. (E)(1), (2); see CalRad, supra, 15 Cal.App.4th at p. 852, 19 Cal.Rptr.2d 357.)

Pursuant to its statutory duty, DHS in 1985 selected US Ecology as the contractor, and prospective licensee, for the facility. US Ecology had operated four of the six previous LLRW facilities.

Both parties then turned to examining possible sites for the facility. Sixteen were considered. After extensive surveys, analyses, consultations and scientific studies, DHS selected as the preferred site among three candidates a location at Ward Valley, situated in a closed surface basin in the southeastern corner of the state, about 20 miles (including mountains) from the Colorado River. The site is extremely arid, with average annual rainfall of less than 5 inches but average annual evaporation of 80 to 100 inches, and with groundwater about 650 feet below surface, all helpful conditions for secure burial of enclosed waste.

The Ward Valley site was (and still is) owned by the federal government, through the Department of the Interior's Bureau of Land Management (BLM). Employment of the site therefore required transfer of title to California. The federal transfer in turn required review and an environmental impact statement under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.). DHS's own licensing of US Ecology also required environmental review, and an EIR, under the California Environmental Quality Act (Pub.Res.Code, § 21000 et seq. [CEQA] ). ⁵ DHS and BLM agreed to prepare the EIR and environmental impact statement as a joint document.

Between 1989 and 1993, the DHS regulatory process proceeded on two overlapping tracks: preparation of the EIR under CEQA, and completion and review of US Ecology's license application under the RCL. The initial, 11-volume license application was followed by DHS's propounding and US Ecology's responding to four sets of amplifying and clarifying interrogatories. The application focused on US Ecology's proposed methods for waste disposal, in compliance with federal regulations, including description of the types, amounts, and sources of waste to be received. The proposed disposal method involved burying the waste, enclosed in sealed containers, in a series of trenches, which would be refilled with earth and planted over. The trenches would be unlined, out of concern for moisture-dispersal, with a view toward prevention of waste migration.

As prepared and augmented, the license application became part of the EIR, physically or by reference. The draft EIR was released for public comment in June 1990. (See Guidelines, § 15084 et seq.) In July 1990, concurrently with BLM's public hearings on the draft EIR (no such separate hearings being required by CEQA), DHS held public comment hearings on the license application. The final EIR, including responses to comments received on the draft, was issued in April 1991. In the EIR, DHS concluded that the possibility for contamination of the Colorado River by accidental release and long-term migration of radioactive matter from the facility was not realistic, in light of (among other things) the physical and temporal inaccessibility of local groundwater and the separation between the Ward Valley and the river. In July 1991, DHS held recorded hearings on the license application, before an administrative law judge. (See Health & Saf.Code, § 25845, subd. (a).)

The state licensing process, and the federal transfer, then became embroiled in proceedings at other levels of government. In 1992, the State Senate Rules Committee extracted a commitment from DHS to hold an additional, APA-type hearing on the project. That requirement ultimately was ruled to lack basis in law, and DHS was directed to proceed to consider the license application without regard to it. (CalRad, supra, 15 Cal.App.4th 841, 19 Cal.Rptr.2d 357.) In the meantime, a new administration and Secretary of the Interior had assumed office. Secretary Bruce Babbitt resolved to proceed deliberately with the site transfer, and asked Governor Wilson to hold further hearings to that end.

In February 1993, three United States Geological Survey (USGS) geologists with professional experience in the area--Howard Wilshire, Keith Howard, and David Miller--wrote to Secretary Babbitt, stating that they had not been "consulted in the planning process," and offering consultation. The Secretary's special assistant requested their comments. On June 2, 1993, Wilshire, Howard and Miller responded with a three-page memorandum based on their review of the draft EIR of three years earlier (the Wilshire memorandum). ⁶ The memorandum set forth seven alleged deficiencies in that EIR, devoting a paragraph to each. The three that the authors labeled significant were as follows.

First, the authors concluded, from the persistence of vegetation downslope from flood-control levees in the...