COM 0931.013 1996-1998 - Laserfiche WebLink

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The applicability of this case merits some examination with respect to the proposed ordinance presently before the Council. While this case involved a nuclear reactor and fissionable material, unlike the irradiation treatment facility contemplated in Hawaii County, it points to a key concern expressed by Parents Against Irradiation regarding seismic activity on the Big Island. However, since their proposed amendment of Hawaii County Code would create an island-wide prohibition of "any quantity of radioactive material used in commercial irradiation facilities" while otherwise permitting "radiation sources or materials employed in therapeutic radiology, in biomedical research, or in educational endeavors," it is unclear how this distinction provides any basis to evaluate seismic and geological considerations relative to public safety and health. To date, Parents Against Irradiation has provided no engineering or geological fact-finding to the Council to provide a rationale for this anomaly. If, on the other hand, their proposed ban on "any quantity of radioactive material used in commercial irradiation facilities" is intended to undermine the lawful processing of food products as determined by the Food & Drug Administration and the U.S. Department of Agriculture, additional federal statutes may preempt any county law-making respective to food safety and interstate plant quarantine protocols. Meanwhile, we do know that since 1984, Isomedix, Inc. has operated an irradiator in Sandy, Utah, a Seismic 4 Zone like Hilo. Moreover, there are standards for the construction of commercial irradiators in seismic areas, as defined by the U.S. Geological Survey, published in the Federal Register. Finally, there is ample allowance for public comment, public hearings and contested case hearings in the licensing procedures administered by the Nuclear Regulatory Commission. The stated purpose of Article 8, Section 14-44 of the Hawaii County Code is "to maintain a clean and healthy environment for present and future generations in the County, to protect the health and safety of the residents of the County from radiation exposure resulting from dangers of accidents involving the transportation and storage of nuclear materials or the development of nuclear reactors, and to protect the general health, safety, comfort and welfare of the citizens of the County." The responsibility to protect the health and safety of our citizens relative to radiation hazards, however, appears clearly preempted by the federal laws and regulations cited above. As such, enactment of the proposed ordinance, without determination of its statutory validity and power of enforcement, may be an exercise in legislative and regulatory futility. Accordingly, I urge the Council to request that the Attorney General, State of Hawaii promptly issue a written opinion as to the preemption of federal statutes relative to the amendments of Article 8, Section 14- 45(a)(5) and 14-45(a)(6) proposed in the ordinance drafted by Parents Against Irradiation. The Council's request should specify a timeline for needed receipt of the Attorney General's opinion to allow the Council to deliberate further and satisfy deadlines for submittal of a ballot initiative to the State Elections Office. My recommendation to forward this inquiry to the State Attorney General stems from a sense that the public is best served by sound and, therefore, sustainable legislation. No amount of uproar or tide of opinion relieves the Council from the responsibility to examine the statutory validity of a proposed law, whether enacted by the Council or by the electorate through a ballot initiative. It should be made clear that the intent of this inquiry is not to obstruct the initiative process, but to provide the voters of the County an objective reading of the statutory merit of the legislation proposed on the ballot. cc: Legislative Auditor Corporation Counsel 3