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Cleanup Priority Act
On November 2, 2004, Washington state voters passed Initiative 297 by a vote of nearly 70 percent. The initiative created a new law in Washington called the Cleanup Priority Act (Chapter 70.105E RCW).
On December 1, 2004, the United States filed a lawsuit challenging state implementation of the CPA. On December 2, a U.S. District Court judge granted a temporary restraining order barring full application of the CPA. The order read, "Pending a preliminary injunction hearing, I-297 shall not be applied or enforced with respect to the activities on the Hanford Nuclear Reservation and at the Pacific Northwest National Laboratory except to the extent that it prohibits the import of mixed waste to Hanford."
On December 9, the court signed a revised stipulation and order that extended the order against implementing the CPA until the court decides the case. The order also prohibits the U.S. Department of Energy from shipping off-site nuclear waste to Hanford until that time.
On May 19, 2005 the State Supreme Court heard oral argument concerning the interpretation of certain definitions and provisions contained in the CPA. The arguments from the state and the United States addressed five questions certified from the federal district court on how the Act should be interpreted. The questions dealt with topics such as the definition of “mixed waste,” intra site transfer of waste, and severability.
On July 28, 2005 the State Supreme Court answered the questions. The answers included the court agreeing with the United States' interpretation of the mixed waste definition, clarifying the CPA does not prohibit intra site shipment of waste, and suggesting that even if certain parts of the CPA are found unconstitutional, other parts may still be implemented. The court did not rule on the questions of constitutionality.
On June 12, 2006, the United States District Court for the Eastern District of Washington struck down the CPA. In doing so, the court rules that the initiative is preempted by the Atomic Energy Act (AEA) and violates sovereign immunity. Moreover, the court rules that the initiative is facially invalid and cannot be applied constitutionally in any circumstances - i.e., severability is not an issue.
On December 11, 2006, Washington State filed an appeal in the Eastern District Court of Washington decision on the CPA. The state later filed its brief in the Ninth Circuit Court of Appeals.
In December 2007 oral arguments were heard before the Ninth Circuit Court. In May 2008 the Ninth Circuit upheld the District Court Decision. In August 2008 the state decided not to appeal this decision to the U.S. Supreme Court.
Reasons to not appeal include the following:
· The Supreme Court focuses on cases that involve questions of federal law, or conflicts between appellate circuits.
· Although I-297 involves federal Constitutional issues, those issues involve a state law question of how the Initiative operates. Two federal courts have already declined to adopt the state and Initiative sponsor’s interpretation of how the Initiative is intended to operate, indicating they think a Washington Supreme Court opinion has already answered the question
Since taking office in 2005, the Attorney General has dedicated a team of high-caliber attorneys with years of experience in technical areas and appellate practice to defend I-297. That office has vigorously defended I-297 in three courts. They continue to dedicate their best legal efforts to support the state’s oversight of Hanford cleanup
If you have questions or comments about the CPA, please contact Larry Goldstein at Ecology
CLEANUP PRIORITY ACT
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