COM 0931.013 1996-1998 - Laserfiche WebLink

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The State of Hawaii has never entered into agreement with the AEC to assume regulatory authority with respect to byproduct materials or any other source or special nuclear materials deemed insufficient to form a "critical mass." As a "non-agreement" state, all licenses for radioactive materials in Hawaii are issued and regulated by the U.S. Nuclear Regulatory Commission (see Table 13. U.S. Material Licenses by State, Nuclear Regulatory Commission). Further jurisdictional clarity is provided in 10 CFR §30.4 which provides definitions for the provisions of the Atomic Energy Act of 1954. Included in the definition of person(s) subject to the authority of the Act are any State or any political subdivision of or any political entity within a State..." Additional sections of Chapter 42, U.S. Code raise questions as to the validity of the ordinance proposed by Parents Against Irradiation. Section §2111. states: "The Commission is authorized to issue general or specific licenses to applicants seeking to use byproduct material for research or development purposes, for medical therapy, industrial uses, agricultural uses, or other such useful applications as may be developed." Consequently, a commercial irradiator providing post-harvest disinfestation of agricultural produce would appear to satisfy the licensing criteria of the Commission. Precedence for NRC licensing approval for food irradiators has already been established in Florida, Illinois, New Jersey and other states. As the irradiator to the built by Isomedix is intended to furnish USDA-approved quarantine treatment to facilitate the commercial movement of Hawaii-grown agricultural produce to the U.S. mainland, the provisions of Section 2135 respective to anti-trust provisions governing licenses are germane. Section 2135 directs the Commission to "report promptly to the Attorney General any information" that may "restrict free competition in private enterprise." Since the utilization of an irradiation treatment facility by Hawaii farmers enables them to engage in interstate commerce, a county ordinance prohibiting construction of the facility may violate interstate commerce and anti-trust statutes. Such prohibition as proposed by the Parents Against Irradiation ordinance might also violate the Equal Protection Clause of the 14th Amendment of the U.S. Constitution by denying equal protection under the law to Hawaii farmers otherwise enjoyed by citizens involved in radiology, biomedical research and educational endeavors. Finally, the proposed addition of Subsection (D) to Section 14-45 of the Hawaii County Code stating "any quantity of radioactive material used in commercial irradiation facilities" would appear to violate the provisions of Section § 2021, 42 U.S. Code which states that the "Commission shall retain authority and responsibility with respect to regulation of "the export from or import into the United States of byproduct, source or special nuclear materials as defined in regulations or orders of the Commission." It would appear that this section is applicable to the importation of sealed source Cobalt-60 isotopes from a Canadian supplier, MDS Nordion, to an irradiator operated by Isomedix, Inc. in Hawaii. On October 20, 1980, the County of Hawaii Corporation Council issued an opinion on a proposed county ordinance relating to nuclear energy and concluded that the ordinance would be "invalid as attempting to legislate in an area preempted by federal law." The opinion held that the doctrine of preemption holds that when Congress legislates pursuant to its delegated powers, the supremacy clause directs that any conflicting state law must yield (Gibbons v. Oedm, 22 U.S.1, 1824). Corporation Council noted that under Section § 2021(6)(b), "the state would be able to regulate certain materials in the area of protection of public health and safety from radiation hazards if done pursuant to an agreement with the Nuclear Regulatory Commission" Corporation Counsel stated that "'there is no such agreement at the present time." As noted earlier, Hawaii's status as a non-agreement state remains unchanged. The 10/20/80 Corporation Counsel opinion did cite a case (Northern Califamia Association IQ Preserve Bodee Head and Harbor Inc v Public Utilities Commission, 390 P2d 200, 1964) that held "that the federal government has not preempted the question of the safety of the location of atomic reactors." In this case, application by a utility company to construct a nuclear power unit located "at or near an active earthquake fault zone" was deemed to involve "safety considerations in addition to radiation hazards" 2