
Filed:  January 11, 2001
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of Amendment of RulesOAR 345 Division 50 Regarding SiteSuitability for Radioactive Waste Disposal.
FREMONT LUMBER COMPANYand KERR-McGEE CORPORATION,
Petitioners,
	v.
ENERGY FACILITY SITING COUNCIL,
Respondent.
(EFSC 330 000; SC S46401)
	On petition for judicial review of amendments to Oregon
Administrative Rules 345-050-0010 and 345-050-0060, adopted
February 26, 1999, and filed with the Secretary of State March 5,
1999.
	Argued and submitted May 10, 2000.
	Ellen Borgersen, of Morrison & Foerster LLP, San Francisco,
argued the cause for petitioners.  Scott J. Kaplan, of Stoel
Rives LLP, Portland, filed the briefs.  With him on the briefs
were Gail Achterman, of Stoel Rives LLP, Portland, Mark P. Reeve,
of Reeve Kearns, LLP, Portland, and Michèle B. Corash, of
Morrison & Foerster LLP, San Francisco.
	Philip Schradle, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent.  With him on the
brief were Hardy Myers, Attorney General, and Michael D.
Reynolds, Solicitor General.
	Before Carson, Chief Justice, and Gillette, Durham,
Kulongoski, Leeson, and Riggs, Justices.*
	RIGGS, J.
	Rules upheld.
	*Van Hoomissen, J. retired on December 31, 2000, and did
not participate in the decision of this case.  De Muniz, J. did
not participate in the consideration or decision of this case.
	RIGGS, J.
	Petitioners challenge amendments to two rules, quoted
below, of the Energy Facility Siting Council (EFSC) pertaining to
the cleanup of uranium mine overburden. (1)  Petitioners contend
that, in adopting the rule amendments, EFSC exceeded its
statutory authority.  We uphold the challenged rules.
	Before 1999, OAR 345-050-0060(2) barred siting a "waste
disposal facility" either within an area subject to surface water
erosion or within a 500-year flood plain of a river.  ORS
469.300(30) defines a "waste disposal facility" as "a
geographical site in or upon which radioactive waste is held or
placed."  ORS 469.300(22) defines "radioactive waste" and
expressly excludes uranium mine overburden from the definition of
radioactive waste. (2)
	The challenged 1999 amendments effect two different,
albeit related, things.  First, EFSC amended OAR 345-050-0060 (as
well as OAR 345-050-0010) to apply the siting prohibitions for
waste disposal facilities to the cleanup of uranium mine
overburden.  Second, EFSC amended OAR 345-050-0060(2) to prohibit
siting a waste disposal facility and carrying out the cleanup of
uranium mine overburden within the 500-year flood plain of a
stream or creek, as well as a river.
	As amended, OAR 345-050-0060 provides, in part:
"In order To issue a site certificate for a waste
disposal facility, or to carry out a cooperative
agreement or arrangement with an agency of the federal
government to clean up radioactive waste, uranium mine
overburden or contaminated material pursuant to ORS
469.559(2), the Council must find that the site is
suitable for the type and amount of waste the applicant
intends to dispose of disposal of such wastes, and the
amount thereof, intended for disposal at the site.  For
purposes of this rule, uranium mine overburden means
earth and other material overlying natural deposits of
uranium ore and removed to gain access to the ore, if
disposal of the material would result in an exceedance
of any of the pathways in OAR 345-050-0035 as in effect
on the date of this rule.  A site is not suitable if it
is not located in:


"(1) An area determined by the Council to be
subject to surface water erosion over the projected
life of the facility.  In reaching making this
determination, the Council shall consider geological
evidence of historical erosion, ancient shorelines,
stream beds and cutting due to floods.


"(2) The 500-year flood plain of a river, stream
or creek, taking into consideration the area the
Council determines under section (1) to be potentially
subject to erosion within the lifetime of the
facility."

(Strikeout indicates deleted text; underscoring indicates new
text.)  EFSC amended OAR 345-050-0010, in part, as follows:
"(2) It is also the purpose of these The rules in
this division to establish standards for the siting of
those waste disposal facilities which would only
include for disposal of wastes that were generated
before June 1, 1981 through industrial or manufacturing
processes which and that contain only naturally
occurring radioactive isotopes.  It is the purpose of t
These rules to implement the requirements of ORS
469.375, 469.470 and 469.501 to 469.559 469.507 for
such waste disposal facilities.  Except as provided in
OAR 345-050-0060, tThese rules do not apply to uranium
mine overburden or uranium mill tailings, mill wastes
or mill by-product material which that are subject to
OAR Chapter 345, Divisions 092 and 095."

(Strikeout indicates deleted text; underscoring indicates new
text.) 
	We review the challenged rules to determine whether
they exceed EFSC's statutory authority.  ORS 183.400(4)(b). (3)  For
the reasons that follow, we reject petitioners' arguments and
uphold the challenged rules.
	We first consider whether EFSC exceeded its statutory
authority by extending the siting prohibitions in OAR 345-050-0060 to uranium mine overburden.  Petitioners rely on ORS
469.375, which provides, in part:
     "The Energy Facility Siting Council shall not
issue a site certificate for a waste disposal facility
for uranium mine overburden or uranium mill tailings,
mill wastes or mill by-product or for radioactive waste
or radioactively contaminated containers or receptacles
used in the transportation, storage, use or application
of radioactive material, unless, accompanying its
decision it finds:


     "(1) The site is:


     "(a) Suitable for disposal of such wastes, and the
amount of the wastes, intended for disposal at the
site;


     "(b) Not located in or adjacent to:
     "(A) An area determined to be potentially subject
to river or creek erosion within the lifetime of the
facility; [or]
     "(B) Within the 500-year flood plain of a river,
taking into consideration the area determined to be
potentially subject to river or creek erosion within
the lifetime of the facility[.]"
Petitioners point out that the standards for siting in ORS
469.375 apply to the siting of "radioactive waste" and that the
statutory definition of "radioactive waste" expressly excludes
uranium mine overburden.  ORS 469.300(22)(b).  They contend that
EFSC lacks authority to apply the siting standards in ORS 469.375
to uranium mine overburden.  Petitioners further argue that any
other construction of those statutes renders meaningless the
exclusion of uranium mine overburden in ORS 469.300(22)(b).  EFSC
argues that petitioners' focus on ORS 469.375 is too narrow and
that other statutes -- ORS 469.470, ORS 469.556, and ORS 469.559
-- authorize it to promulgate the challenged amendments.
	In considering the meaning of a statute, we first
examine the text and context of the statute to discern the intent
of the legislature.  PGE v. Bureau of Labor and Industries, 317
Or 606, 610, 859 P2d 1143 (1993).  
	ORS 469.559(2) expressly applies the siting standards
in ORS 469.375 to a project to clean up uranium mine overburden:
"The [EFSC] and the Office of Energy may enter
into and carry out cooperative agreements and
arrangements with any agency of the federal government
implementing the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C.
section 9601 et seq., to clean up wastes and
contaminated material, including overburden, created by
uranium mining before June 29, 1989.  Any such project
need not obtain a site certificate from the council,
but shall nevertheless comply with all applicable,
relevant or appropriate state standards including but
not limited to those set forth in ORS 469.375 and rules
adopted by the council and other state agencies to
implement such standards."

(Emphasis added.)  In addition to applying the siting standards
to a project to clean up uranium mine overburden, ORS 469.559(2)
exempts such a project from the need to "obtain a site
certificate."  As explained below, that exemption is important to
resolving one aspect of petitioners' rule challenge.  
ORS 469.320 generally prohibits construction of a waste
disposal facility unless EFSC issues a site certificate. (4)
 The
legislature has enacted procedures that govern the site
certification process.  See, e.g., ORS 469.330 (requiring site
certificate applicants to file notice of intent; requiring EFSC
to give public notice); ORS 469.360 (requiring EFSC to evaluate
site applications); ORS 469.370 (requiring EFSC to hold public
hearings regarding site applications).  
	Although ORS 469.559(2) exempts projects to clean up
uranium mine overburden from the site certification process, that
statute nevertheless applies the standards for site certification
to projects to clean up uranium mine overburden.  In short,
although projects to clean up uranium mine overburden are not
required to comply with other statutes that govern site
certification of a waste disposal facility, such projects are
required to comply with the siting standards in ORS 469.375.  The
exclusion of uranium mine overburden from the definition of
radioactive waste in ORS 469.300(22)(b) is consistent with that
premise.  Petitioners' argument to the contrary is not well
taken.
	We continue our analysis of whether EFSC has authority
to apply, by rule, the siting standards in ORS 469.375 to the
disposal of uranium mine overburden.  In addition to ORS
469.559(2), ORS 469.556 authorizes EFSC to promulgate rules
relating to the treatment, storage, and disposal of uranium mine
overburden.  That statute provides:
"The [EFSC] shall adopt rules governing the
location, construction and operation of uranium mills
and uranium mill tailings disposal facilities and the
treatment, storage and disposal of uranium mine
overburden for the protection of the public health and
safety and the environment."

(Emphasis added.)  Under that statute, EFSC has plenary authority
to promulgate rules relating to the treatment, storage, and
disposal of uranium mine overburden, as long as the rule is for
the protection of the public health and safety, and the
environment.  We conclude that EFSC's broad rulemaking authority
under ORS 469.556, together with its express authority under ORS
469.559(2) to apply the standards in ORS 469.375 to uranium mine
overburden, authorize EFSC to apply, by rule, the siting
standards in ORS 469.375 to the disposal of uranium mine
overburden.  
	We turn to petitioners' argument that OAR 345-050-0060
is invalid, because it is not a "rule" within the meaning of ORS
183.310(8).  See ORS 183.310(8) (defining "rule" as "any agency
directive, standard, regulation or statement of general
applicability").  Specifically, they argue that, because OAR 345-050-0060 applies to cooperative agreements or arrangements with
federal agencies to clean up uranium mine overburden, it is not a
rule of "general applicability."  According to petitioners, in
amending the rule, EFSC intended to alter the course of decision-making for only one site.  We disagree with petitioners'
argument.
	OAR 345-050-0060 does not apply to just one cooperative
agreement or arrangement.  The rule applies to any such agreement
or arrangement.  Thus, the rule is one "of general applicability"
within the meaning of ORS 183.310(8).  The fact that OAR 345-050-0060 affects only one active project at any point in time does
not keep the rule from being one of general applicability.  See
ORS 183.400(3)(a) (limiting judicial review of administrative
rule to "[t]he rule under review"); GTE Northwest, Inc. v. Public
Utility Commission, 321 Or 458, 464, 900 P2d 495 (1995)
("Judicial review of an agency's rule under ORS 183.400 is
limited to a determination of whether the rule, as written, is
valid[.]").  Here, if other uranium mine overburdens came into
existence, the cleanup of those overburdens would be subject to
the rule.
	For the reasons discussed above, we hold that EFSC has
the authority to apply the siting standards in OAR 345-050-0060
to the cleanup of uranium mine overburden.  
	We next consider whether EFSC exceeded its statutory
authority by broadening the prohibition on siting from the 500-year flood plain of a "river" to the 500-year flood plain of a
"river, stream or creek."  Petitioners first contend that, as
amended, OAR 345-050-0060(2) violates ORS 469.375(1)(b)(B). (5) 
Second, petitioners contend that the rule violates ORS 469.310
and ORS 469.375(2), by eliminating a class of potential sites
(i.e., those within the 500-year flood plain of a stream or
creek) that might best protect the public and the environment.  
See ORS 469.310 (declaring policy of siting energy facilities "in
a manner consistent with protection of the public health and
safety"); ORS 469.375(2) (requiring EFSC to find, before
approving site, that "no available alternative site * * * would
better protect the health, safety and welfare of the public and
the environment"). (6)  EFSC argues that ORS 469.470, ORS 469.556,
and ORS 469.559 authorize its amendments to OAR 345-050-0060(2).We conclude that ORS 469.556 provides EFSC with
authority to prohibit the cleanup of uranium mine overburden
within the 500-year flood plain of a river, stream, or creek.  It
is evident that the siting prohibition relates to the "treatment,
storage and disposal of uranium mine overburden."  ORS 469.556. 
The only remaining question is whether the prohibition is "for
the protection of the public health and safety and the
environment."  Id.  It is.  The potential flooding of an area
where radioactive material is stored obviously is relevant to the
public health and safety, and the environment.  Consequently, the
prohibition is within the EFSC's authority under ORS 469.556.     
	Petitioners also argue that this court's decision in
Fremont Lumber Co. v. Energy Facility Siting Council, 325 Or 256,
936 P2d 968 (1997) (Fremont Lumber I) requires us to sustain
their challenge to OAR 345-050-0060(2).  That argument is not
well taken.  In Fremont Lumber I, this court considered a
challenge to the fiscal impact statement of EFSC's amendment to
OAR 345-50-060 (subsequently renumbered OAR 345-050-0060),
wherein EFSC broadened the prohibition on siting a waste disposal
facility within the 500-year flood plain of a river to the flood
plain of a river, stream, creek, or lake.  325 Or at 259.  The
fiscal impact statement stated that, because the amendment merely
clarified ORS 469.375, it would not impose costs greater than
those that existing law would impose.  This court held that the
fiscal impact statement was inadequate because the rule amendment
expanded on, rather than clarified, ORS 469.375.  Id. at 266. 
Accordingly, this court invalidated the challenged rule. 
Notably, this court in Fremont Lumber I expressly declined to
consider whether another statute grants authority to EFSC to
promulgate a rule prohibiting siting within the 500-year flood
plain of a river, stream, or creek.  Id. at 267 n 3.  That issue
is central to this case.
	Finally, petitioners argue that, by categorically
prohibiting siting within the flood plains of creeks and rivers,
OAR 345-050-0060(2) violates the statutorily mandated energy
policy of protecting public health and safety.  We disagree. 
EFSC cannot approve the disposal of uranium mine overburden
unless it finds that a particular site is suitable, ORS
469.375(1)(a), and that there is no alternative site that would
better protect public health, safety, and welfare, ORS
469.375(2).  See ORS 469.559(2) (applying standards in ORS
469.375 to projects to clean up uranium mine overburden.)  As we
have discussed, EFSC acted within its authority when it
promulgated a rule prohibiting the disposal of uranium mine
overburden within the 500-year flood plain of a river, stream, or
creek.  Accordingly, EFSC cannot approve a site within such an
area.  The finding of no better alternative must be viewed only
in the context of a site that meets the other standards of
suitability.
	In sum, we hold that EFSC acted within its statutory
authority when it amended OAR 345-050-0010 and OAR 345-050-0060
to apply the siting criteria in OAR 345-050-0060 to the cleanup
of uranium mine overburden.  We also hold that EFSC acted within
its statutory authority when it amended OAR 345-050-0060(2) to
prohibit the disposal of uranium mine overburden within the 500-year flood plains of a stream or creek. 
	Rules upheld.




1. 	OAR XXX-XX-XXXX defines "uranium mine overburden," in
part, as "earth and other material overlying natural deposits of
uranium ore and removed to gain access to the ore."

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2. 	ORS 469.300(22)(a) defines "radioactive waste" as:
	"[A]ll material which is discarded, unwanted or
has no present lawful economic use, and contains mined
or refined naturally occurring isotopes, accelerator
produced isotopes and by-product material, source
material or special nuclear material as those terms are
defined in ORS 453.605. * * *"
 
ORS 469.300(22)(b), however, qualifies the foregoing definition:
	"Notwithstanding paragraph (a) of this subsection,
'radioactive waste' does not include uranium mine
overburden or uranium mill tailings, mill wastes or
mill by-product materials as those terms are defined in
Title 42, United States Code, section 2014, on June 25,
1979."
(Emphasis added.)

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3. 	Petitioners sought direct review by this court.  See
ORS 469.490 (providing that Supreme Court may determine validity
of rule adopted by EFSC on petition filed within 60 days after
date rule becomes effective).  Under ORS 469.490, the standards
set out in ORS 183.400 control our review.
		ORS 183.400(4) provides, in part:
		"The court shall declare the rule invalid only if
it finds that the rule:


		"* * * * *


		"(b) Exceeds the statutory authority of the
agency[.]"
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4. 	ORS 469.320(1) provides:
		"Except as provided in subsections (2) and (5) of
this section, no facility shall be constructed or
expanded unless a site certificate has been issued for
the site thereof in the manner provided in ORS 469.300
to 469.563, 469.590 to 469.619, 469.930 and 469.992. 
No facility shall be constructed or operated except in
conformity with the requirements of ORS 469.300 to
469.563, 469.590 to 469.619, 469.930 and 469.992."
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5. 	The voters enacted paragraph (b) of ORS 469.375(1)
through the initiative process.  Or Laws 1985, ch 4.  In
interpreting such a statute, we look to the text and context of
the statute to discern the intent of the voters who passed the
initiative.  State v. Guzek, 322 Or 245, 265, 906 P2d 272 (1995). 

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6. 	ORS 469.310 provides, in part:
		"In the interests of the public health and the
welfare of the people of this state, it is the declared
public policy of this state that the siting,
construction and operation of energy facilities shall
be accomplished in a manner consistent with protection
of the public health and safety and in compliance with
the energy policy and air, water, solid waste, land use
and other environmental protection policies of this
state. * * *"
		ORS 469.375(2) prohibits EFSC from approving a
site unless it finds that:
		"There is no available disposal technology and no
available alternative site for disposal of such wastes
that would better protect the health, safety and
welfare of the public and the environment[.]"
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