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WASHINGTON STATE BLDG. & CONSTR. TRADES COUNCIL AF

June 26, 1981

WASHINGTON STATE BUILDING & CONSTRUCTION TRADES COUNCIL AFL-CIO, a Washington Corporation and Labor Organization; Washington Voice of Energy, a Nonprofit Washington Corporation; U. S. Ecology, Inc., a California Corporation; Tri-City Nuclear Industrial Council, a Nonprofit Washington Corporation; Tri-State Motor Transit Co., a Delaware Corporation; Precision Castparts Corporation, an Oregon Corporation; Northern States Power Company, a Minnesota Corporation; and Chem-Nuclear Systems, Inc., a Washington Corporation, Plaintiffs,
v.
The Honorable John C. SPELLMAN, Governor of the State of Washington; the Honorable Kenneth Eikenberry, Attorney General of the State of Washington; and Alan J. Gibbs, Secretary of the State of Washington, Department of Social and Health Services, Defendants; UNITED STATES of America, Plaintiff, v. STATE OF WASHINGTON, John C. Spellman, Governor of the State of Washington, and Kenneth O. Eikenberry, Attorney General of the State of Washington, Defendants



The opinion of the court was delivered by: MCNICHOLS

MEMORANDUM DECISION

 One of the plaintiffs, U.S. Ecology, Inc. operates one of the three active commercial nuclear waste disposal sites in the United States. It provides disposal services to the United States, various state governments and numerous commercial users throughout the country. The United States, in addition to being a substantial user of the commercial facility, also maintains its own disposal sites in Washington.

 The defendant (State) by the Initiative, seeks to effectively ban the storage of all non-medical radioactive waste (waste) generated outside the State of Washington. The Initiative also bans the transportation of such waste to any storage site in Washington. The stated purpose of the Initiative was to protect the health and safety of the citizens of Washington. Although the State contends that the provision in the Initiative for an interstate compact might remove any impermissible ban on interstate commerce, the Initiative Compact Section does not provide a timely or effective exception to the ban.

 The Initiative does not ban the transportation for storage or the storage of waste generated in Washington. Nor does it ban the transportation of radioactive material through Washington for use or storage elsewhere. Consequently, the Initiative suggests that the perceived harms caused by the waste occur after its disposal in the storage sites.

 The plaintiffs jointly contend that the Initiative violates the Commerce Clause, U.S.Const., Art. I, § 8, cl. 3 and that under the Supremacy Clause, U.S.Const., Art. VI, cl. 2, it has been preempted by federal law. (Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.; Low-Level Radioactive Waste Policy Act, Pub.L.No. 96-573 (Dec. 23, 1980); Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq.). In addition, the United States contends that the Initiative violates the War Powers and Property Clauses of the United States Constitution. With respect to the Commerce Clause, the State contends that the Initiative is valid as an action of a market participant or as a proper exercise of the State's police powers. With respect to the Supremacy Clause, the State contends that the Initiative has not been preempted by federal law. I hold that the Initiative is unconstitutional and thus not enforceable.

 FACTS

 This controversy centers on the transportation to and storage of nuclear waste on the Hanford Reservation. This federal reservation consists of 562 square miles of land and facilities in and around Benton County, Washington. Since 1943, the reservation has been used for federal nuclear programs.

 There are three storage areas on the reservation. The first two areas are owned and operated by the federal government. The first area provides storage for waste generated from federal energy programs and national defense activities. The second area contains a near-surface test facility which is designed to test the feasibility of storing spent fuel and high-level waste in underground basalt formations. The third area arose out of a lease of approximately 1000 acres by the United States to the State of Washington. The State of Washington subleased approximately 100 of those acres to U.S. Ecology, Inc. for the operation of a low-level radioactive waste storage facility. Although there are two other active commercial facilities in the United States, the U.S. Ecology, Inc. site is the only existing commercial facility which can store absorbed low-level radioactive liquids.

 The commercial site is licensed for its current activity by the State of Washington. The site is regulated under State and Federal regulations pertaining to atomic energy and health and environmental protection. The United States Department of Transportation regulates the transportation of the radioactive waste.

 The commercial storage facility on the Hanford Reservation is a key facility in the nation's waste disposal program. Specifically, it is the only commercial storage site which can store "absorbed low-level radioactive liquids." Moreover, it accepted approximately twenty-seven percent (27%) of the total waste in 1980. While a site in Barnwell, South Carolina has been accepting more than fifty percent (50%) of the generated waste, a South Carolina "volume limitation program" will cut that site's capacity to less than twenty-five percent (25%) of the waste generated in 1985.

 The facts of this case present a classic supply and demand problem. It is clear that there is a serious national problem with the increasing volume of waste, which must be stored somewhere, and a nearly simultaneous reduction of the already limited storage capacity. Congress has recognized this problem and taken steps to solve it to the end that a few states will not continue to bear the waste ...


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