Forelaws on Board v. Energy Facility Siting Council

Citations: 760 P.2d 212; 306 Or. 205; 1988 Ore. LEXIS 439Docket: SC S33953; SC S33954

Court: Oregon Supreme Court; July 26, 1988; Oregon; State Supreme Court

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The Supreme Court of Oregon addressed the legality of the Energy Facility Siting Council's (EFSC) determination that certain waste from Teledyne Wah Chang Albany (TWCA) was not classified as "radioactive waste" under ORS 469.300(17). Petitioners challenged this decision, alleging misinterpretation of the statute, procedural errors, and insufficient evidence. The court affirmed EFSC's order, noting that disposal of radioactive waste requires a site certificate as per ORS 469.320(1). The definition of "radioactive waste" encompasses materials that are discarded and contain specific isotopes, but excludes certain materials identified in OAR 345-50, which are deemed to pose no significant danger to public health.

TWCA argued that its waste, while radioactive, falls under the "pathway exemption" of OAR 345-50-035, which applies to naturally occurring radioactive materials if exposure limits are not exceeded. The waste in question originated from the refining of zirconium, which involves isotopes such as radium-226 that decay into radon-222, a health risk when concentrated. Although TWCA claimed its waste met exemption criteria, it proactively sought a site certificate from EFSC to clarify the regulatory status of its waste at the sludge ponds Lower River Pond and Schmidt Lake, located near the Willamette River.

Petitioners and intervenors participated in the application proceeding concerning LRP and SL. The Energy Facility Siting Council (EFSC) concluded that while the gamma radiation and water effluent levels of LRP and SL were below the thresholds set by OAR 345-50-035, radon-222 concentrations in the air above the waste were likely to exceed the threshold. EFSC classified the waste as 'radioactive' and issued a site certificate to TWCA with conditions for waste storage. TWCA sought judicial review, resulting in a court decision that reversed and remanded EFSC's order due to insufficient findings regarding the annual average radon-222 concentrations. On remand, EFSC determined that these concentrations were below the threshold, thus ruling that the waste was not under EFSC's jurisdiction and ordered no further proceedings.

Petitioners challenged TWCA’s evidence regarding compliance with gamma radiation and water effluent thresholds. As the applicant, TWCA bore the burden of proof defining its waste as non-radioactive according to ORS 469.300(17)(a). The court's review focused on whether EFSC's order was supported by substantial evidence, which is defined as evidence that a reasonable person could rely upon to reach a conclusion. EFSC maintained its previous finding that gamma radiation levels from LRP and SL would not exceed the 500 millirem per year threshold. Measurements indicated levels between 0 to 280 millirem per year, excluding background radiation.

Petitioners argued that the placement of radiation measuring devices at the sludge pond perimeter might have led to underreporting of gamma radiation. An expert for TWCA clarified that the devices were placed 4 to 5 feet from the pond's shores, as the pond surfaces could not support the workers' weight. This expert asserted that gamma radiation intensity diminishes rapidly with distance, indicating that the radiation readings were accurate and not understated. There was no counter-evidence presented to dispute this assessment, nor was there any basis to infer that gamma radiation levels would be higher at the pond's center than at its perimeter.

EFSC's findings regarding radium-226 concentrations in water from LRP and SL were deemed reasonable based on sufficient evidence. Previous measurements indicated radium-226 levels of up to 13 picocuries per liter, with lower concentrations found in test wells outside the sludge ponds. EFSC concluded that the sludge ponds represented a 'worst case' scenario, affirming that LRP and SL were below the 30 picocuries per liter effluent threshold. Although there was additional testimony on remand, and petitioners suggested that unsampled areas might have higher concentrations, these speculations did not undermine the reasonableness of EFSC’s conclusions.

Petitioners also contested EFSC’s findings on radon-222 levels above LRP and SL. According to OAR 345-50-035, the radon-222 threshold is set at 3 picocuries per liter of air or approximately 0.0333 working levels. EFSC reported annual average radon-222 concentrations of 2.2 picocuries per liter (0.0044 working levels) for LRP and 7.5 picocuries per liter (0.027 working levels) for SL. While SL’s concentration exceeded the threshold in picocuries, it fell below in working levels, which EFSC considered the appropriate measure. OAR 345-50-035 outlines specific premises for measuring radiation and effluent, emphasizing that measurements should reflect conditions prior to any dilution or remediation, disregarding land use restrictions, and focusing on actual measurements of external gamma radiation and radon concentrations. Radon-222 evaluations are based on conditions in structures built on contaminated ground, which typically have higher indoor concentrations than outdoor levels due to limited dispersion.

Issues arose during proceedings before the Energy Facility Siting Council (EFSC) regarding the application of OAR 345-50-035 to radon-222 concentration evaluations. Key points of contention included whether to consider 'worst case' or 'annual average' concentrations, whether all waste or only portions causing radon-222 emissions should be evaluated, the appropriate measurement units, the relevance of measured versus calculated concentrations, and the characteristics of the dwelling evaluated for radon-222 levels. EFSC addressed these issues through interpretive rulings. Petitioners contended that these rulings were incorrect and that the matters should have been resolved through formal rulemaking under the Oregon Administrative Procedure Act (APA), citing relevant case law.

The APA defines a rule as any agency directive that implements or interprets law or policy. EFSC's interpretations of OAR 345-50-035 fit this definition and could have been established through rulemaking. However, the APA allows agencies to make general policy statements during contested case decisions that could also be enacted through rulemaking. Determining if rulemaking was necessary involves analyzing the statutory scheme governing the agency and the nature of the rule in question.

The statutes governing EFSC require it to adopt certain standards following APA procedures. For instance, ORS 469.470(3) mandates EFSC to establish standards for applicants seeking site certificates, while ORS 469.500(1) and ORS 469.510 direct EFSC to adopt safety standards and set rules for the operation and siting of thermal power plants and nuclear installations. Given that rulemaking allows broader public participation, there is a strong legislative intent for EFSC to engage in rulemaking rather than resolving policy issues in contested cases. The court's ruling in Marbet v. Portland General Electric underscored the necessity of rulemaking in similar contexts, particularly concerning site application standards.

The case involves a site certificate application by TWCA, but the primary issue is whether EFSC can regulate TWCA's waste based on thresholds of radioactivity established by rules adopted by the Legislative Assembly, particularly OAR 345-50-035. The EFSC's authority to modify these rules is strictly limited to adding isotopes not classified as posing significant health dangers. The Legislative Assembly has not granted EFSC broad policymaking powers regarding radioactivity levels; instead, it has set the policy, with EFSC responsible for applying it to specific cases.

The document clarifies that while EFSC may need to interpret statutes, it is not required to do so exclusively through formal rulemaking, provided that parties have had a chance to present relevant evidence. Petitioners argue they could not present evidence on health impacts due to EFSC's interpretations but fail to demonstrate they were unable to address whether TWCA's waste was 'radioactive' under those interpretations.

The petitioners challenge EFSC's interpretations of OAR 345-50-035 on multiple grounds, particularly concerning the mathematical model EFSC used to estimate radon-222 concentrations from TWCA's waste. They contest the model's variable values, which were based on averages rather than specific measurements, arguing that actual radon-222 levels in some homes could exceed predicted averages. This raises concerns about the model's accuracy in assessing potential health risks associated with radon exposure.

Petitioners challenge EFSC's methodology for calculating annual average radon-222 concentrations, arguing it lacks relevance as it does not indicate the percentage of houses built on waste that would exceed the radon threshold set by OAR 345-50-035. They highlight discrepancies between model predictions and actual measurements from houses on sludge ponds, asserting that EFSC should not rely on predictions contradicted by empirical data. Petitioners contend that the predicted radon-222 levels are influenced by numerous variables, and EFSC has not assessed how variations in these variables impact the validity of its predictions. However, these critiques are deemed more applicable to the rule itself rather than EFSC’s interpretation, as the rule emphasizes 'annual average concentration,' and prior court remands were based on EFSC's overreliance on expected ranges rather than annual averages. 

The significance of annual averages for public health is not addressed by the rule, which assumes compliance ensures safety. Petitioners' claim that EFSC should not disregard actual measurements in favor of model predictions is framed as a question of evidence sufficiency rather than rule interpretation. The rule does not mandate reliance solely on actual measurements from test structures, and while discrepancies may raise questions about the predictive model's accuracy, they do not automatically invalidate its use. EFSC maintains that mathematical models may provide better predictions by integrating broader data than singular test cases. 

Regarding the evaluation of radon-222 concentrations, EFSC considered only the top 30 centimeters of waste during its assessment. Petitioners argue that the rule necessitates evaluating the entire waste profile as it was when deposited in LRP and SL, asserting that natural dilution from environmental factors over the years affects the current characteristics of the waste. They note that radon-222 produced deeper within the waste decays before reaching the surface, but they acknowledge that only a portion of the waste is currently emitting radon-222. Nonetheless, they argue that future disturbances, such as construction or relocation of the waste, could expose lower-level waste that might also emit radon-222.

EFSC's order does not definitively classify TWCA's waste as 'non-radioactive' for all time; instead, it limits its evaluation to the waste's current state. This limitation is necessary because the model used to predict radon-222 concentrations relies on specific site conditions, such as wind speed and rainfall, which could yield different results if the waste were at another location. The intent of OAR 345-50-035 is to exempt waste from regulation if it does not emit harmful radiation levels. EFSC's focus on the portion of waste that emits radon-222 aligns with this purpose, allowing for potential re-evaluation if the waste's condition changes in the future.

Petitioners argue for assessing the waste based on its state when placed in sludge ponds, referencing OAR 345-50-035(1), which requires evaluation of waste as it exists prior to any dilution or remedial actions. This rule applies to sites both accumulating and not accumulating waste. The prohibition on considering dilution or remedial measures ensures that radioactivity evaluations remain unaffected by future remediation efforts. Exposing waste to environmental elements is not deemed a remedial action, as it does not increase radiation release. OAR 345-50-035 anticipates that waste will be assessed after exposure to natural diluting factors.

Furthermore, while OAR 345-50-035 outlines certain characteristics for houses built on the waste, it lacks detailed specifications. It states that special construction aimed at reducing radon diffusion must not be considered. EFSC interpreted this to require modeling a 'reasonable hypothetical house' to guide its evaluation of radon-222 concentrations.

A hypothetical house used to predict radon-222 concentrations must meet specific criteria: it should be typical for the Pacific Northwest, simple to model, not lead to abnormal radon levels, and comply fully with the Uniform Building Code. EFSC identified a 1,250 square foot house with a crawl space foundation as a reasonable model, reflecting the most common type of foundation in the region. Petitioners argued against this choice, citing that many houses do not adhere to building codes and that a significant proportion have basement or concrete slab foundations, which may have higher radon levels. They suggested a more complex assessment using a weighted-average approach. However, the EFSC's interpretation of the rule was upheld, emphasizing that the house must possess limited characteristics and not be specially designed to mitigate radon diffusion. 

Additionally, petitioners contended that EFSC should measure radon-222 concentrations in picocuries per liter instead of working levels. While picocuries measure the concentration of radon-222, the health risk primarily arises from the radioactive by-products, or daughters, of radon decay. Working levels, which quantify the alpha particle energy from radon-222 daughters, are considered a more relevant measure of health risk. The relationship between radon-222 and its daughters relies on the concept of radioactive equilibrium, where their decay rates stabilize at constant proportions. Under typical conditions, radon-222 and its daughters do not achieve this equilibrium, resulting in a working level that is lower than the specified threshold when measured in picocuries per liter.

Petitioners contend that the Oregon Administrative Rule (OAR) 345-50-035 specifies a radon-222 concentration of 3 picocuries per liter for safety, and argue that the Energy Facility Siting Council (EFSC) incorrectly assessed the radioactivity of TWCA's waste using working levels instead of picocuries per liter. However, the rule allows EFSC to use either measurement method. Expert testimony indicated that working levels provide a more accurate health risk assessment, which the petitioners did not dispute. Therefore, EFSC's decision was justified under ORS 183.482(8)(b).

Petitioners also challenge the evidentiary basis for several variables in EFSC's mathematical model, claiming the selected values were arbitrary and capricious. However, under the Oregon Administrative Procedures Act (APA), it is insufficient to merely argue for alternative values; the review standard is substantial evidence, defined as evidence that allows a reasonable person to support the findings. 

The petitioners contest the values for six specific factors: the moisture content of the waste, outdoor radon-222 concentrations, air changes per hour in the crawl space, and equilibrium factors for indoor and outdoor air. EFSC determined the moisture contents for SL and LRP waste at 55% and 63%, respectively, based on laboratory analyses and predictive models. Petitioners argued for lower percentages based on limited measurements taken during dry conditions, which are not representative of average conditions. EFSC's moisture content figures are deemed reasonable based on the evidence in the record.

Radon-222 concentration measurements conducted by the EFSC between March 1985 and March 1986 indicated an annual average of 5.92 picocuries per liter at one meter above the surface level (SL) and 1.72 picocuries per liter at one meter above the low reference point (LRP). Petitioners contested these figures, proposing higher values based on measurements from August 1985 to August 1986 and suggested a weighted average of all measurements from March to August 1986, estimating 6.76 for SL and 2.02 for LRP. EFSC rejected the petitioners' data, citing fewer samples in the later measurements, and did not address the weighted average suggestion. The court noted it could not second-guess EFSC's assessment of data accuracy, affirming that the rejection of the petitioners' data did not render EFSC's findings unreasonable.

Regarding radon-222 concentration at a height of 0.36 meters, no direct measurements were taken. EFSC estimated the annual average concentration at this height to be 8.05 picocuries per liter for SL and 2.34 for LRP, based on studies indicating a decrease in concentration with height. TWCA proposed lower values (6.0 and 1.6) using a theoretical air movement model, while petitioners suggested higher values (10.1 and 3.03) by extrapolating from higher measurements. Evidence indicated that extrapolation from higher to lower heights was not valid, supporting EFSC's findings as reasonable.

The radon-222 concentration in the crawl space, which affects the living area's concentration, is inversely related to the number of air changes per hour (ACH). Factors influencing ACH include crawl space volume, vent area, wind speed, and temperature differences. TWCA's experts estimated an annual average ACH of 7.0 based on a test house’s measurements, while measurements from four real houses showed varied ACH values. EFSC's consultant criticized the test house data due to its smaller size compared to typical houses. However, when adjusted for size, TWCA calculated that a hypothetical 1,250 square-foot house would maintain an ACH of 7.0, consistent with EFSC's scaling method.

Petitioners' expert measured crawl space air changes per hour (ACH) values of 1.1, 2.4, and 4.4 in Northern California and Portland, Oregon, suggesting that an ACH value of 3.0 was more appropriate. He claimed that the ACH values of 12.0 and 21.4 recorded by TWCA in Albany-area homes were theoretically impossible. The EFSC, however, determined a proper ACH value of 7.0 based on TWCA's estimates, rejecting the petitioners' expert's value due to its reliance on measurements from locations outside Albany, without comparing the climatic conditions during those measurements. This lack of comparison raises doubts about EFSC's reasoning for rejecting the petitioners' data. While the validity of the TWCA's high ACH values is questioned, EFSC's choice of 7.0 is deemed reasonable given the evidence. 

In terms of the percentage of air entering the house from the crawl space, EFSC adopted a model where radon-222 enters from both outside air and the crawl space. Assuming uniform air leakage, EFSC set the fraction of air from the crawl space (X[f]) at 0.34, based on the house's surface area. Petitioners' expert argued for a higher value of 0.55, citing the effect of heated air rising, but TWCA pointed out the influence of wind speed and referenced a study showing an X[f] value of 0.20. EFSC's consultant supported the equal-leakage assumption due to insufficient contrary evidence, leading to a reasonable finding by EFSC.

Regarding equilibrium factors for translating radon-222 concentrations into working levels, EFSC selected values of 0.4 for indoor air and 0.45 for outdoor air based on scientific literature. Although the petitioners' expert suggested an equilibrium factor of 1.0 for increased public health protection, EFSC's choice of 0.4 and 0.45 is considered reasonable based on the evidence presented.

Petitioners argue that the Energy Facility Siting Council (EFSC) made several unrelated procedural errors. First, they claim EFSC improperly failed to conduct an independent study of TWCA's waste. EFSC noted that TWCA had commissioned Battelle Pacific Northwest Laboratories to conduct a study, and under ORS 469.360, EFSC has the authority to commission an independent study only if an initial audit of Battelle's study indicates bias or failure to adhere to scientific methods. The auditor's report confirmed that Battelle’s study followed proper methods and was unbiased, leading EFSC to decline the petitioners' request for an independent study. Petitioners assert that reliance on the auditor was inappropriate and that the auditor identified inadequacies in Battelle's work. However, ORS 469.360(1) does not mandate an independent study, and ORS 469.470(1), while requiring EFSC to conduct studies, does not clarify if this applies to specific site applications or broader investigations. The auditor's report generally supported Battelle's findings, and even a contrary conclusion would not obligate EFSC to deem Battelle's work inadequate. Thus, EFSC's refusal to order an independent study was lawful.

Secondly, petitioners claim the proceedings were compromised by undisclosed ex parte contacts, specifically communications between EFSC's auditor and Battelle, and TWCA's direct objections to EFSC members regarding the hearing officer’s proposed order. However, these communications do not qualify as ex parte; the auditor acted as an expert witness, and communications shared with other involved parties are not considered ex parte. Furthermore, the Oregon Administrative Procedure Act (APA) permits ex parte communications as long as they are disclosed and other parties can respond.

Communications between EFSC's auditor and Battelle were disclosed to other parties for record-keeping purposes, but not as evidence. Petitioners claim that the EFSC hearing officer denied them opportunities to present relevant evidence, citing two instances of alleged denial. Both instances involved irrelevant testimony; one was rejected because petitioners deemed it irrelevant and sought to broaden the scope of proceedings, while the other was testimony responding to evidence that EFSC did not include in the record. Petitioners argued that TWCA's failure to object in a timely manner should not have led to the exclusion of the first testimony, but the hearing officer was within his rights to exclude irrelevant evidence per ORS 183.450(1). 

Furthermore, petitioners contested EFSC's decision to take "official notice" of a scientific article concerning radon-222 concentration, arguing it was improper. However, EFSC provided prior notice and included the article in the record, which TWCA did not challenge on appeal. The court found this argument inappropriate, affirming that EFSC followed the necessary procedures for taking official notice. Additionally, the document notes that despite the statutory framework for site certificates, ORS 469.525 prohibits the disposal of radioactive waste with specific exceptions. The court clarified its jurisdiction to review EFSC's actions regarding the site certificate application, affirming that EFSC's order functioned as a rejection of the application, making the review proper under ORS 469.400(1).

Petitioners argue for the application of a stringent standard of review previously established in Teledyne Wah Chang v. Energy Facility Siting Council, which pertains to the necessity of a concise statement of underlying facts in administrative orders as required by ORS 183.470(2). They assert this standard is relevant to the review of factual findings for supporting evidence. However, the court distinguishes between the substantial evidence required under ORS 183.482(8)(c) and the alleged "exacting" nature of the previous standard, noting that the prior administrative order failed to support its findings regarding radon-222 concentrations in waste, a deficiency not present in the current order under review.

Additionally, a "picocurie" is defined as one-trillionth of a curie, which is a unit indicating the activity of radioactive nuclides. Radon concentrations mentioned in OAR 345-50-035 are deemed sufficient for protection against radon-222 and its short-lived daughters. The excerpt also clarifies that while all administrative proceedings can be viewed as "rulemaking," the term specifically refers to the formal rule adoption process outlined in ORS 183.325 to 183.410.

The case of Trebesch is referenced, where the Employment Division was required to define the term "systematic and sustained effort to obtain work" to ensure uniform application statewide. Unlike the Employment Division's assistant director, the Energy Facility Siting Council (EFSC) is solely responsible for its adjudications, eliminating concerns of inconsistent interpretations.

Lastly, the excerpt notes that a mathematical model predicted radon-222 flux based on radium-226 concentration and other variables. However, measurements from two of three test houses indicated higher radon-222 emissions than the model predicted.

Petitioners claim that OAR 345-50-035(5)(b) mandates the Energy Facility Siting Council (EFSC) to determine radon-222 concentrations based on measured flux rather than predicted flux. While it is assumed that the average measured flux from three houses exceeded predicted values, this is not definitively established in the petitioners' briefs. OAR 345-50-035(5)(b) specifies that radon-emanation rates must be based on experimental measurements of disposal material. EFSC's model meets this requirement since it utilized measurements from TWCA's waste. The rule does not necessitate a direct correlation between radium concentration and radon-emanation rate, contradicting the petitioners' assertion. The data shows that only one test structure exceeded the radon-222 threshold, which was atypical for its unusually high radioactivity, representing a "worst case." EFSC did not establish that a 1,250 square foot house is the sole permissible size under the rule; it is commonly recognized in the Pacific Northwest, and EFSC would consider other common sizes if supported by evidence. Petitioners argue that EFSC inaccurately derived the 7.0 ACH value by averaging presented ACH values. However, it is clarified that EFSC adopted the ACH value from TWCA, which was close to the midpoint of the provided range, rather than averaging all values.