TELEDYNE WAH CHANG v. PAULUS

PER CURIAM

We are called upon to review a ballot title for a proposed initiative measure to amend Oregon's Energy Facility Siting Council's certification requirements as provided in ORS 469.375. Pursuant to ORS 250.035 and 250.065, the Attorney General drafted a ballot title consisting of the following:

"ADDS REQUIREMENTS FOR APPROVAL OF RADIOACTIVE WASTE DISPOSAL SITES "QUESTION: Should the Energy Facility Siting Council be required to consider additional factors before approving a site for the disposal of radioactive wastes?

"EXPLANATION: This measure would add to existing requirements by requiring the Energy Facility Siting Council to find, before approving a site for the disposal of radioactive wastes, that the site is not subject to water erosion, earthquakes, volcanoes, or landslides; that there is no safer choice for such disposal; and that there will be no radioactive release from the waste site."

Petitioner challenges the ballot title as "insufficient and unfair" and proposes the following ballot title:

"MODIFIES REQUIREMENTS FOR DISPOSAL OF WASTES CONTAINING NATURALLY OCCURRING RADIOACTIVITY

"QUESTION:

"Should the requirements for licensing of disposal sites for wastes containing naturally occurring radioactivity be modified?

"EXPLANATION:

"This measure would modify the findings the Energy Facility Siting Council must make before licensing a naturally occurring radioactive waste disposal site and would thereby restrict the Council's regulatory powers under existing law to deal with factors affecting site suitability. The modifications would require findings that the site is not subject to water erosion or certain geological occurrences; that there is no better technology or site; and that the wastes will not release radioactivity."

In reviewing ballot title issues, we have said:

"* * * Our role is limited to determining whether the Attorney General's title is a concise and impartial statement of the purpose of the measure, and we are not concerned with whether the petitioner's proposed title may be better or even whether we could devise a better one ourselves. * * *" Priestley v. Paulus, 287 Or. 141, 145, 597 P.2d 829 (1979).

Furthermore, "our task is not to find or write a better title than that provided by the Attorney General, but only to test the provided title for insufficiency or unfairness." Bartels v. Paulus, 293 Or. 47, 53, 645 P.2d 1059 (1982).

With the standard of review in mind, we look to petitioner's four contentions. First, petitioner argues that the use of the words "additional" and "add" mischaracterizes the effect of the initiative because they erroneously imply that new requirements are being imposed on the Energy Facility Siting Council rather than mere modification of existing requirements. The proposed measure amends ORS 469.375 and requires the Council to make factual findings concerning (A) river or creek erosion; (B) 500-year flood plains; (C) fault activity; (D) land slides and mass movements; (E) ocean erosion; and (F) volcanic activity. None of the findings is required by the statute as it now reads. Petitioner claims that these facts are currently being considered by the Siting Council and therefore the measure only modifies that statute. Only findings regarding 500-year flood plain and wind and water erosion are currently required, and those findings are mandated by an Oregon Administrative Rule (OAR 345-50-060). The proposed measure adds these and other requirements to the statute. The use of the words "additional" and "add" is sufficient and fair.

Second, the petitioner criticizes the ballot title for failing to state that the measure reduces the flexibility of the Energy Facility Siting Council; in other words, that the ballot title fails to mention the effect of the measure. As we said in ACLU v. Paulus, 282 Or. 539, 544, 580 P.2d 168 (1978): "Statements about the effects of proposed measures are to be left to public debate; they have no place in ballot titles."

Third, petitioner argues that "licensing" would be a more appropriate word to use than "approving" because the use of the latter suggests to voters a lack of continuing regulation over waste disposal sites. We review for insufficiency or unfairness; we do not try to devise a "better" ballot title. Bartels v. Paulus, supra at 145. The use of the word "approving" is fair and sufficient.

Finally, petitioner contends that the failure to include the phrase "naturally occurring radioactive wastes" misleads voters by suggesting that the new requirements apply to controversial types of radioactive wastes, such as spent nuclear fuel. Because the scope of ORS 469.375 is narrowed by ORS 469.525 (1) so that disposal facilities may store only wastes containing "naturally occurring radioactive isotopes," it would be unfair if the ballot title did not reflect that narrowed scope. However, the alternative language proposed by petitioner would in itself be unfair; it potentially implies the radioactive wastes are natural rather than a result of technological processes. Therefore, the narrowed scope necessitated by ORS 469.525 (1) is reflected in the modified ballot title below.

We certify to the Secretary of State the following modified ballot title.

ADDS REQUIREMENTS FOR DISPOSING WASTES CONTAINING NATURALLY OCCURRING RADIOACTIVE ISOTOPES

QUESTION: Should the Energy Facility Siting Council consider additional factors before approving sites for disposing wastes containing naturally occurring radioactive isotopes?

EXPLANATION: This measure would add to existing requirements by requiring the Energy Facility Siting Council to find, before approving a site for the disposal of wastes containing only naturally occurring radioactive isotopes, that the site is not subject to water erosion, earthquakes, volcanoes, or landslides; that there is no safer choice for such disposal; and that there will be no radioactive release from the waste.

Ballot title certified as modified.