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HomeMy WebLinkAboutCOM 0931.013 1996-1998 A ' t tx OF M JOHN RAY yp o Hilo Phone: (808) 961-8265 Councilman Fax: (808) 969-3291 Waimea Phone: (808) 885-5875 ?~rE oFYH?~' Fax: (808) 885-7184 COUNTY COUNCIL County of Hawaii Hawaii County Building - 25 Aupuni Street i I Hilo, Hawaii 96720 I (rflt MEMORANDUM July 30, 1998 TO: Chairman James Y. Arakaki and Councilmembers FROM: John Ray SUBJECT: Council Action on Ordinance Proposed by Parents Against Irradiation 1 think it is advisable that the Hawaii County Council seriously examine the statutory validity of the ordinance proposed by the Parents Against Irradiation petition committee. The clarity of federal statutory authority respective to radiological safety and health, as embodied in the Atomic Energy Act of 1954; Chapter 42, U.S. Code; 10 CFR §30.4 Definitions; and an interpretation by the General Counsel, U.S. Nuclear Regulatory Commission re: AEC jurisdiction over nuclear facilities and materials under the Atomic Energy Act, strongly suggests that the supremacy of federal statutes may render the proposed ordinance invalid and unenforceable. The Atomic Energy Act of 1954 determined that the licensing and regulation of byproduct materials (radioisotopes) is the responsibility of the Atomic Energy Commission (AEC). To carry out statutory responsibility for the protection of public health and safety from radiation hazards, the AEC established requirements for the issuance of licenses and specified standards for radiation protection. In 1959, Congress enacted legislation (Section 274, Atomic Energy Act, 42 U.S. Code 2021) establishing a federal-state agreement protocol for orderly regulation of byproduct, source and special nuclear materials, while avoiding dual regulation (Section 274a). Commenting on the bill enacted as section 274, the Joint Committee on Atomic Energy stated: "It is not intended to leave any room for the exercise of dual or concurrent jurisdiction by States to control radiation hazards by regulating byproduct, source or special nuclear materials. The intent is to have the material regulated and licensed either by the Commission, or by the State and local governments, but not by both" In explaining section 274k of the Act, the Joint Committee said: "As indicated elsewhere, the Commission has exclusive authority to regulate for protection against radiation hazards until such time as the State enters into an agreement with the Commission to assume such responsibility." A General Counsel opinion published by the Nuclear Regulatory Commission [34 FR 7273, May 3, 1969] concludes that States which have not entered into a section 274 agreement with the AEC are without the authority to license and regulate, from the standpoint of radiological health and safety, byproduct, source, and special nuclear material or production and utilization facilities." UUMM No, 93 13 File Ref. 'r,Prtsented Gov,v ,L, Ref. Date G 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 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