California Radioactive Materials Management Forum v. Department of Health Services (15 Cal. App. 4th 841, 1993)

Opinion

SPARKS, J.

This original writ proceeding arises out of a dispute over an application for a license for the construction and operation of a low-level radioactive waste disposal facility in Ward Valley near the City of Needles in the Southern California desert. The petitioners challenge an order of the Department of Health Services (the department) for administrative proceedings in a formal adjudicatory mode in connection with the application of US Ecology, Inc., (US Ecology) for the license in question. Petitioners are US Ecology and diverse individuals and groups with asserted interests in ensuring the timely construction and operation of the facility. Named as respondents are the department, Dr. Molly J. Coye in her capacity as Director of Health Services, the Health and Welfare Agency, and Russell S. Gould in his capacity as Secretary of the Health and Welfare Agency. The state Senate Rules Committee was designated a real party in interest after we granted its motion to intervene. Numerous persons and groups have filed amici curiae briefs supporting and opposing the petitions.

The department has already conducted exhaustive administrative proceedings on the pending license application, and has admitted that the proposed adjudicatory proceeding is unnecessary. Nonetheless, the department has notified US Ecology that it must submit to the proposed proceeding before the department will render a decision on its license application. The proposed proceeding would be substantially similar to one conducted under those provisions of the Administrative Procedure Act (hereafter the APA) (Gov. Code, § 11340 et seq.) governing administrative adjudication (Gov. Code, § 11500 et seq.).

Petitioners contend that the order for formal adjudicatory proceedings is the result of unlawful coercion by members of the Senate Rules Committee during the confirmation hearings of Gould and Coye to head the Health and Welfare Agency and the department, respectively. The Senate Rules Committee admits that it obtained an agreement for further administrative proceedings from Gould and Coye during the confirmation process but characterizes the agreement as a legally proper compromise between two branches of government.

We conclude that the Senate Rules Committee’s interference in the administration of the law was unconstitutional and the purported agreement with the administrative officers is void. Formal adjudicatory hearings are not otherwise required by law and the respondents have conceded that the void agreement is the only basis upon which they intend to conduct further proceedings. Accordingly, we shall issue a peremptory writ of mandate to require the department to consider US Ecology’s license application without regard to the void agreement with the Senate Rules Committee.

Factual and Procedural Background

The genesis of this writ proceeding may be traced to our country’s large annual production of low-level radioactive waste and the shortage of an adequate number of disposal sites. The problem is national, and it has been the subject of federal legislation crafted to ensure the timely construction of disposal facilities throughout the country sufficient to accommodate the burgeoning waste. The congressional enactments were recently upheld in almost all respects by the United States Supreme Court in New York v. United States (1992) 505 U.S. _ [120 L.Ed.2d 120, 112 S.Ct. 2408]. Justice O’Connor, writing for the majority, aptly described the nature of the problem and the resulting federal legislation. Since the federal legislation forms the backdrop for the present proceeding, her synopsis bears repeating.

“We live in a world of low level radioactive waste. Radioactive material is present in luminous watch dials, smoke alarms, measurement devices, medical fluids, research materials, and the protective gear and construction materials used by workers at nuclear power plants. Low level radioactive waste is generated by the Government, by hospitals, by research institutions, and by various industries. The waste must be isolated from humans for long periods of time, often for hundreds of years. Millions of cubic feet of low level radioactive waste must be disposed of each year.

“Our Nation’s first site for the land disposal of commercial low level radioactive waste opened in 1962 in Beatty, Nevada. Five more sites opened in the following decade: Maxey Flats, Kentucky (1963), West Valley, New York (1963), Hanford, Washington (1965), Sheffield, Illinois (1967), and Barnwell, South Carolina (1971). Between 1975 and 1978, the Illinois site closed because it was full, and water management problems caused the closure of the sites in Kentucky and New York. As a result, since 1979 only three disposal sites—those in Nevada, Washington, and South Carolina— have been in operation. Waste generated in the rest of the country must be shipped to one of these three sites for disposal.

“In 1979, both the Washington and Nevada sites were forced to shut down temporarily, leaving South Carolina to shoulder the responsibility of storing low level radioactive waste produced in every part of the country. The Governor of South Carolina, understandably perturbed, ordered a 50% reduction in the quantity of waste accepted at the Barnwell site. The Governors of Washington and Nevada announced plans to shut their sites permanently.

“Faced with the possibility that the Nation would be left with no disposal sites for low level radioactive waste, Congress responded by enacting the Low-Level Radioactive Waste Policy Act, Pub L 96-573, 94 Stat 3347. Relying largely on a report submitted by the National Governors’ Association, Congress declared a federal policy of holding each State ‘responsible for providing for the availability of capacity either within or outside the State for the disposal of low-level radioactive waste generated within its borders,’ and found that such waste could be disposed of ‘most safely and efficiently ... on a regional basis. § 4(a)(1), 94 Stat 3348. The 1980 Act authorized States to enter into regional compacts that, once ratified by Congress, would have the authority beginning in 1986 to restrict the use of their disposal facilities to waste generated within member States. § 4(a)(2)(B), 94 Stat 3348. The 1980 Act included no penalties for States that failed to participate in this plan.

“By 1985, only three approved regional compacts had operational disposal facilities; not surprisingly, these were the compacts formed around South Carolina, Nevada, and Washington, the three sited States. The following year, the 1980 Act would have given these three compacts the ability to exclude waste from nonmembers, and the remaining 31 States would have had no assured outlet for their low level radioactive waste. With this prospect looming, Congress once again took up the issue of waste disposal. The result was the . . . Low-Level Radioactive Waste Policy Amendments Act of 1985.

“. . . In broad outline, the Act embodies a compromise among the sited and unsited States. The sited States agreed to extend for seven years the period in which they would accept low level radioactive waste from other States. In exchange, the unsited States agreed to end their reliance on the sited States by 1992.” (New York v. United States, supra, 505 U.S._[120 L.Ed.2d at pp. 133-134], some citations omitted.)

The Low-Level Radioactive Waste Policy Amendments Act of 1985 (1985 Act) authorizes states to enter into regional compacts “as may be necessary to provide for the establishment and operation of regional disposal facilities for low-level radioactive waste.” (42 U.S.C. § 2021d(a)(2).) The 1985 Act requires the three existing disposal sites to continue to accept out-of-state waste through the end of 1992 (42 U.S.C. § 2021e(a)(2)), but also permits the three sited states to exact graduated surcharges for waste arriving from outside their regional compacts during the 1986-1992 period (42 U.S.C. § 2021e(d)(l)). The 1985 Act also permits approved regional compacts to exclude radioactive waste generated outside the region following expiration of the seven-year transition period in December 1992. (42 U.S.C. § 2021d(c); New York v. United States, supra, 505 U.S. _ [120 L.Ed.2d at p. 135].)

In response to these congressional actions, the California Legislature enacted legislation of its own to fulfill California’s obligations under the Low-Level Radioactive Waste Policy Act and the 1985 Act. In 1982 the Legislature enacted legislation declaring that “California must develop plans to address the issues surrounding the long-term management, treatment, and disposal of low-level radioactive waste generated by licensed users of radioactive material within the state,” since “without means for adequate, safe disposal of low-level radioactive waste, medical, industrial and other operations which contribute to the health and safety of the people of California as well as to the state economy, may be seriously impaired.” (Stats. 1982, ch. 95, § 1, p. 305.) The bill amended several provisions of the Radiation Control Law (Health & Saf. Code, § 25800 et seq.), and directed the department to study, plan, and report on low-level radioactive waste storage and disposal (Stats. 1982, ch. 95, §§ 1-6, pp. 305-311).

In 1983 the Legislature enacted additional legislation which reiterated the policy statements of the 1982 legislation and further declared “that California, virtually alone among the 50 states, is not now a prospective member of a compact, and that California generators of low-level radioactive waste may, therefore, be excluded from use of disposal facilities in other states upon which they are now totally reliant.” (Stats. 1983, ch. 1177, § 1, pp. 4470-4471.) Consequently, the Legislature again amended the Radiation Control Law to direct the Governor to negotiate and enter into an interstate agreement for low-level radioactive waste disposal, and to require the department to select a private contractor to develop a low-level radioactive waste disposal facility. (Stats. 1983, ch. 1177, § 5, p. 4475, § 11, p. 4479.) The legislation also directed the department to promulgate emergency regulations concerning the licensing of the low-level radioactive waste disposal facility, including the adoption of regulations consistent with certain specified federal regulations. (Stats. 1983, ch. 1177, § 5, p. 4475.)

In 1987, California entered into a regional compact for the construction and operation of low-level radioactive waste disposal facilities with the States of Arizona, North Dakota, and South Dakota. The agreement, known as the Southwestern Low-Level Radioactive Waste Disposal Compact (Southwestern Compact), was ratified by the Legislature and codified as a new article 17 of the Radiation Control Law. (Health & Saf. Code, § 25877 et seq.) California agreed to be the “host state” for the first 30 years of the Southwestern Compact’s existence. (Health & Saf. Code, § 25878, art. 2, subd. (G) & art. 4, subd. (C)(1).) At the end of the 30-year period, the other member state producing the most low-level radioactive waste would become the host state if California declined to continue in that role. (Health & Saf. Code, § 25878, art. 4, subd. (C)(1).) Pursuant to the terms of the Southwestern Compact, the host state is obligated to “[c]ause a regional disposal facility to be developed on a timely basis . . . [and] [e]nsure by law, consistent with any applicable federal laws, the protection and preservation of public health and safety in the siting, design, development, licensing, regulation, operation, closure, decommissioning, and long-term care of the regional disposal facilities within the state.” (Health & Saf. Code, § 25878, art. 4, subd. (E).) Following ratification of the Southwestern Compact by the four member states, Congress ratified the Southwestern Compact in the Southwestern Low-Level Radioactive Waste Disposal Compact Consent Act. (Pub.L. No. 100-712 (Nov. 23, 1988) §§ 1-5, 102 Stat. 4773 [see Notes, 42 U.S.C.A. § 2021d (West Supp. 1992)].)

In December 1985 the department designated US Ecology as the proposed licensee of the proposed low-level radioactive waste disposal facility in California. In 1988, following extensive studies, the department identified the Ward Valley site near Needles in San Bernardino County as the most suitable location for the low-level radioactive waste disposal facility. In December 1989 the department deemed US Ecology’s application to construct and operate the facility to be complete.

Over the course of the next two years the department conducted a thorough investigation of US Ecology, the proposed disposal facility, and the proposed disposal site. At each step of the investigation, the department sought significant public participation. In June 1990 the department and the federal Bureau of Land Management issued a draft joint environmental impact report/statement (EIR/S) for the disposal facility. In July 1990 the department conducted hearings on the draft EIR at locations in Riverside, San Bernardino, Barstow and Needles. Following a period of revision and public comment, the department and the Bureau of Land Management issued a final joint EIR/S in April 1991.

The department thereafter scheduled public hearings on US Ecology’s license application. Several individuals and groups contacted the department and demanded that the hearings include APA-type procedures, such as discovery and the taking of sworn testimony subject to cross-examination. The department rejected those requests, but granted party status to those who expressed a desire to comment at the hearings. The department appeared in the Sacramento County Superior Court to successfully resist a legal action to compel it to conduct formal adjudicatory hearings.

The licensing hearings were conducted on July 22, 1991, at three sites: Needles, Los Angeles and Sacramento. Administrative law judges (ALJ’s) presided over the hearings. At the outset of each hearing, the ALJ stated that the hearing was being held in accordance with Health and Safety Code section 25845; there would be no testimony or cross-examination, but interested individuals would be given five minutes apiece to present their comments, recommendations or other information concerning the terms and conditions of the draft license, the final EER, the department’s compliance with federal, state, and local laws, and any other information relevant to the proposed license; the proceedings would be recorded and transcribed by a certified shorthand reporter, and the transcript would be made part of the administrative record; written submissions could be submitted either at the hearing or to the department by August 5, 1991; and any written submission would be included in the administrative record and considered by the department before deciding whether to issue the license. The hearings, which lasted several hours apiece, were spirited, and at times acrimonious, as there were speakers both for and against the project at all three locations.

After reviewing the hearing transcripts, written submissions, and all of the materials presented with the license application, the department determined, in December 1991, that no further information would be needed from US Ecology to rule on the license application.

Before the department could render its decision, however, the Senate Rules Committee intervened to impose a requirement for further administrative proceedings in a formal adjudicatory mode. From February through May 1992, the Senate Rules Committee convened committee hearings to consider the Governor’s nominations of respondent Gould to be Secretary of the Health and Welfare Agency and respondent Coye to be Director of Health Services. (See Gov. Code, § 1774.) The appointments were significant because the department is responsible for licensing the proposed low-level radioactive waste disposal facility and the department is subject to the supervision of the Health and Welfare Agency. (Health & Saf. Code, § 25810; Gov. Code § 12803.) During the committee hearings, Gould and Coye, who had been serving as the acting secretary and the acting director, were asked whether an APA adjudicatory proceeding would be required on the US Ecology license application prior to the department’s licensing decision. When the nominees replied in the negative, and opined that the earlier proceedings were sufficient, they were informed by committee members that their confirmations by the full Senate would be difficult. Eventually Gould and Coye agreed to require further proceedings which would include many attributes of an APA administrative hearing. Their nominations were then forwarded to, and approved by, the full Senate.

The hearings which Gould and Coye agreed to require and which the department intends to conduct would have the following components: notice of the hearing would be published and mailed to those that had received notice of the previous hearings; an ALJ and a scientific adviser to the ALJ would preside over the proceeding; those desiring to participate as parties at the proceeding would be required to respond within 30 days of notice and to specify the issues they intended to raise; 30 days after the receipt of the responses the ALJ would make a written finding as to each request to participate as a party, specify the issues to be considered at the hearing, and set a hearing date; within 15 days from the identification of parties and issues the parties would submit any discovery request; within 30 days of a discovery request the discovery materials would be provided; if discovery materials were not provided the affected party would be permitted to petition the ALJ to compel discovery; the actual hearing would commence 60 days after any discovery request or 30 days after compliance with an order to compel discovery, whichever was later; at the hearing US Ecology would proceed first, those granted party status would proceed second, and the department would proceed last; all witnesses would be sworn and subject to cross-examination in a manner consistent with an APA adjudicatory proceeding; 30 days from the close of the hearing the ALJ would submit a proposed decision including findings of fact and a legal analysis of the issues that the department is required to consider for the licensing decision; the findings and analysis would be served on all of the parties, with copies provided to the Governor and Legislature; thereafter the director would act on the license application based upon the entire record, including the record of earlier hearings, California Environmental Quality Act hearings, and the proposed proceeding; and in making the licensing decision the director would follow as closely as practicable the procedures for adoption of a decision by an ALJ in an adjudicatory proceeding under the APA.

Although the proposed proceeding just outlined was not labelled an APA proceeding as such, no elaborate comparison is needed to discern that the two are in substance and legal effect the same. With minor variations, the procedures detailed in the agreement mirror those of an APA adjudicatory proceeding. (See Gov. Code, §§ 11502-11517.)

On May 26,1992, US Ecology wrote to Director Coye and requested that she reject the proposed agreement with the Senate Rules Committee and make a licensing decision on the basis of the existing record. By letter dated June 2, 1992, Director Co ye denied these requests and informed US Ecology that both she and Secretary Gould intended to honor their agreement with the Senate Rules Committee “to provide a hearing consistent with the California Administrative Procedure Act.” The instant petitions were filed thereafter.

On September 1, 1992, the Governor signed into law a new budget that included a $2.3 million outlay for the proposed proceeding. (Stats. 1992, ch. 587, p. 225.) Although time estimates are necessarily speculative, the proposed proceeding is expected to delay construction of the disposal facility from 18 months to several years.

Discussion

I. Is the Proposed Hearing Legally Required?

A. Statutory Provisions

Federal law requires expeditious consideration of US Ecology’s license application, and the Southwestern Compact requires California, as the host state, to cause a regional disposal facility to be developed on a timely basis. (42 U.S.C. § 2021i; Health & Saf. Code, § 25878, art. 4, subd. (E).) However, as we have previously noted (ante, fn. 8) this state retains authority over the facility, and the facility must be approved and licensed in accordance with our laws. (Health & Saf. Code, § 25878, art. 5; 42 U.S.C. § 2021i.) Under our Radiation Control Law, the department is the agency which is responsible for the issuance of licenses. (Health & Saf. Code, § 25810.) Administrative procedures under the Radiation Control Law are governed by Health and Safety Code sections 25845 (hearings), 25846 (emergency regulations and orders), and 25847 (judicial review).

Health and Safety Code section 25845 provides: “(a) In any proceeding under this chapter for granting or amending any license, or for determining compliance with, or granting exceptions from, rules and regulations promulgated in accordance with this chapter, the department shall afford an opportunity for a hearing on the record upon the request of any person whose interest may be affected by the proceeding, and shall admit that person as a party to such proceeding.

“(b) Proceedings for the suspension or revocation of licenses under this chapter shall be conducted in accordance with the provisions of Chapter 5 (commencing with section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the department shall have all the powers granted therein.

“(c) The adoption, repeal, or amendment of rules and regulations pursuant to this chapter shall be accomplished in conformity with the provisions of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.”

In this part of the Radiation Control Law, the Legislature expressly provided for compliance with APA procedures with respect to rulemaking and in connection with adverse action against a licensee but not in connection with granting or amending a license. The APA provides that its procedures apply only to the functions of a state agency to which they are made applicable by statute. (Gov. Code, § 11501, subd. (a); Bertch v. Social Welfare Dept. (1955) 45 Cal.2d 524, 527 [289 P.2d 485], overruled on another ground in Frink v. Prod (1982) 31 Cal.3d 166, 180 [181 Cal.Rptr. 893, 643 P.2d 476]; Serenko v. Bright (1968) 263 Cal.App.2d 682, 690 [70 Cal.Rptr. 1]; Taliaferro v. Insurance Commission (1956) 142 Cal.App.2d 487, 489 [298 P.2d 914].) From the very terms of the statute, it follows ipso facto that formal APA adjudicatory procedures apply to the suspension or revocation of a license but not to the initial decision to grant or to amend a license.

We cannot imply a requirement of an APA-type adjudicatory hearing for granting or issuing a license. Where the Legislature has carefully employed a term or phrase in one place and has excluded it in another, it should not be implied where excluded. (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 [273 Cal.Rptr. 584, 797 P.2d 608]; Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 691 [193 Cal.Rptr. 511].) Health and Safety Code section 25845, subdivision (b), specifically requires an APA adjudicatory hearing for the suspension or revocation of licenses, and subdivision (c) specifically requires adherence to the APA for the adoption, repeal or amendment of rules and regulations. In view of these provisions the absence of an APA requirement in section 25845, subdivision (a), for granting or amending a license, is conspicuous and is strong evidence that the Legislature did not intend to require an APA-type adjudicatory hearing for granting or amending a license under the Radiation Control Law.

It is suggested that the specification of a “hearing on the record” implies the formality of an APA adjudicatory hearing. We disagree. In this state the phrase “hearing on the record” is not a term of art which implies a requirement of a formal APA-type adjudicatory hearing. We have found no statutory or decisional authority so construing the phrase. Rather, our Legislature has created and consistently employed a standard mechanism for triggering the requirement of an APA-type adjudicatory hearing, namely, where such a hearing is intended the statute providing for the hearing expressly states that it shall be conducted under the APA. (See, e.g., Health & Saf. Code, § 25845, subd. (b).) The Legislature has used these same words in a multitude of statutory provisions (Cal. Administrative Hearing Practice (Cont.Ed.Bar 1984) Appendix: State-Level Adjudicatory Activities, pp. 287-370 [compilation of statutes designating whether APA applies to particular administrative agency decision]; see also Cal. Administrative Hearing Practice Update (Sept. 1992) pp. 47-120), and where these words appear they indisputably designate application of the APA’s adjudicatory procedures, for clear statutory language is enforced according to its terms (Leroy T. v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 434, 438 [115 Cal.Rptr. 761, 525 P.2d 665]; Caminetti v. Pacific Mut. L. Ins. Co. (1943) 22 Cal.2d 344, 353-354 [139 P.2d 908]). As noted, the absence of these words in Health and Safety Code section 25845, subdivision (a), demonstrates that the Legislature did not intend that the APA apply to the licensing decision at issue. (Bertch v. Social Welfare Dept., supra, 45 Cal.2d at p. 527, overruled on another ground in Frink v. Prod., supra, 31 Cal.3d at p. 180; Serenko v. Bright, supra, 263 Cal.App.2d at p. 690.)

Decisional authorities construing the federal Administrative Procedure Act (federal APA) are inapposite. (See United States v. Florida East Coast R. Co. (1973) 410 U.S. 224, 236-238 [35 L.Ed.2d 223, 234-235, 93 S.Ct. 801]; United States v. Allegheny-Ludlum Steel (1972) 406 U.S. 742, 757 [32 L.Ed.2d 453, 465, 92 S.Ct. 1941]; West Chicago, III. v. U.S. Nuclear Regulatory Com’n. (7th Cir. 1983) 701 F.2d 632, 641; Gallagher & Ascher Co. v. Simon (7th Cir. 1982) 687 F.2d 1067, 1074, 66 A.L.R.Fed. 264; South Terminal Corp. v. Environmental Protection Agcy. (1st Cir. 1974) 504 F.2d 646, 660 [30 A.L.R.Fed. 109]; see 2 Davis, Administrative Law Treatise (2d ed. 1979) § 10:7, p. 329.) The procedures of the federal APA apply “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,” except where statutorily excluded. (5 U.S.C. §§ 554(a), 554(c), 556, 557; see also § 553(c).) Thus, while “on the record” is not a term of art (United States v. Florida East Coast R. Co., supra, 410 U.S. at p. 238 [35 L.Ed.2d at p. 235]), Congress has statutorily adopted an on-the-record requirement as a shorthand means for triggering federal APA adjudicatory procedures (see West Chicago, III. v. U.S. Nuclear Regulatory Com’n., supra, 701 F.2d at p. 641). In contrast, our Legislature has never adopted a similar shorthand means for incorporating the procedures of the APA, either by statutory enactment or by informal practice. Rather, our state APA applies only where it is specifically made applicable by statute. Accordingly, authorities considering the federal APA are not persuasive. In fact, we find it inconceivable that the Legislature would have chosen such an abstruse and ambiguous means of requiring a formal adjudicatory hearing in view of its otherwise consistent adherence to the standard means of incorporating the APA which it followed in other subdivisions of the same statute we are considering.

In any event, the analogy to federal authorities is superficial. It is a fundamental tenet of administrative law that the character of hearing which an agency must hold is dependent upon the nature of the contemplated agency action and the interest of the person to be heard. (Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 62 [151 Cal.Rptr. 547, 588 P.2d 249].) The federal APA recognizes the distinction between adverse action proposed to be taken against a licensee and the decision whether to grant a license: “In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.” (5 U.S.C. § 556(d).) Thus, under the federal APA, with respect to initial licensing decisions, federal agencies have discretion to determine whether formal adversary hearings are necessary. (Cellular Mobile Systems of Pennsylvania v. F.C.C. (D.C.Cir. 1985) 782 F.2d 182, 198 [251 U.S.App.D.C. 100]; United States v. F. C. C. (D.C.Cir. 1980) 652 F.2d 72, 88-96 [209 App.D.C. 79]; Yellow Forwarding Company v. I. C. C. (D.Kan. 1973) 369 F.Supp. 1040, 1048.)

Moreover, proposed actions of an administrative agency usually involve the agency and a person with a status such as applicant or licensee. With respect to other persons the federal APA provides: “So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function. . . .” (5 U.S.C. § 555(b).) This provision gives federal agencies broad discretion in determining whether interested parties will be permitted to participate and the nature of participation which will be permitted. (Nichols v. Asbestos Workers Local 24 Pension Plan (D.C. Cir. 1987) 835 F.2d 881, 897-899.) Many federal agencies have provided in their rules for third party participation; however, “[wjhile the practice varies with each agency, the majority provide for presentation of oral arguments or submission of briefs, or, on a more informal basis, an oral statement or submission of an informal letter. . . .” (See Comment (1959) 47 Cal.L.Rev. 747, 748-749.) Third party participation does not always, or even usually, include the right to trial-type or other formal procedures. (Nichols v. Asbestos Workers Local 24 Pension Plan, supra, 835 F.2d at p. 899, fn. 124.)

From these authorities it can be seen that under federal administrative law a reference to a hearing “on the record” does not mean that interested third parties will necessarily be entitled to insist upon a formal trial-type hearing to resolve objections to the granting of a license. (See United States v. Florida East Coast R. Co., supra, 410 U.S. at p. 241 [35 L.Ed.2d at pp. 236-237]; Long Island Railroad Company v. United States (E.D.N.Y. 1970) 318 F.Supp. 490, 498.) Accordingly, even if we accept the extremely dubious claim that our Legislature had federal APA procedures in mind in providing for a hearing on the record at the behest of any interested person, it would not follow that such an interested person is entitled to full participation in a formal adversarial hearing.

There are obvious reasons for the language utilized by the Legislature in Health and Safety Code section 25845, subdivision (a). As we have noted, generally a decision to issue a license or other certificate of authority is a matter between the licensing agency and the applicant. In this state it has been concluded that in the absence of statutory authority third parties have no standing to insist upon a hearing to resolve objections to the issuance of a license. (See Sale v. Railroad Commission (1940) 15 Cal.2d 612, 614-615 [104 P.2d 38]; 32 Ops.Cal.Atty.Gen. 297 (1959).) With respect to the issuance of licenses under the Radiation Control Law, the Legislature clearly intended to give any person whose interest may be affected the right to request a hearing. In order to do so it was necessary that the statute expressly so provide. (Ibid.) However, Health and Safety Code section 25845, subdivision (a), does not expressly or by necessary implication give interested third parties the right to insist upon full participation in a formal adjudicatory hearing.

The Legislature also intended that any decision to grant or amend a license would be subject to judicial review. (Health & Saf. Code, § 25847.) The Senate Rules Committee asserts that the provision for judicial review requires that the proceeding be conducted with APA formality. We disagree. Effective judicial review requires that an administrative proceeding be “on the record,” but that simply means that the proceedings be recorded and that the decision be based solely upon information in the record. (California Assn. of Nursing Homes etc., Inc. v. Williams (1970) 4 Cal.App.3d 800, 810-812 [84 Cal.Rptr. 590].) Judicial review does not require that an administrative hearing be conducted with APA formality. (See White v. County of San Diego (1980) 26 Cal.3d 897, 902-903 [163 Cal.Rptr. 640, 608 P.2d 728]; Dawson v. Town of Los Altos Hills (1976) 16 Cal.3d 676, 683 [129 Cal.Rptr. 97, 547 P.2d 1377].)

We conclude that the readily discernable purposes of the Legislature in Health and Safety Code section 25845, subdivision (a), those being to require a hearing at the behest of interested third parties and to provide a record for judicial review, do not require a formal APA-type hearing. Rather, the character of a public hearing “may be only ‘the opportunity to present statements, arguments, or contentions in writing, with or without opportunity to present the same orally.’ ” (Los Angeles County Civil Service Com. v. Superior Court, supra, 23 Cal.3d at p. 62.) The Senate Rules Committee asserts that reference to the department’s role in this matter, which it describes as a classic quasi-judicial function, requires formal adjudicatory procedures. The department’s role in these proceedings is hardly a classic quasi-judicial function. In a classic quasi-judicial proceeding, an applicant seeks a license or permit under existing statutes or regulations and an administrative agency is charged with determining whether the applicant has met the legal standard for issuance of the license or permit. (See, e.g., Weiss v. State Board of Equalization (1953) 40 Cal.2d 772, 775 [256 P.2d 1].) In contrast, in these proceedings the department is attempting to fulfill this state’s obligations under federal law and the Southwestern Compact, and under the policies declared by our Legislature. There is but one project and can be but one designee who may apply for a license. (Health & Saf. Code, § 25812.5, subd. (b).) The project is in the nature of a cooperative endeavor between the state and the prospective licensee. The land will be owned by the state and under our statutes cannot be privately owned. (Health & Saf. Code, § 25812, subd. (a)(1).) In the implementation of this project some of the department’s functions are in fact quasi-judicial, but in other respects, such as site selection and regulation, the department is exercising executive and quasi-legislative functions. (See Simpson v. Hite (1950) 36 Cal.2d 125, 130 [222 P.2d 225].) It was obviously due to the unusual nature of this proceeding that the Legislature took the unusual step of authorizing interested third parties to request a hearing. That is also the obvious reason the Legislature did not require that such a hearing be conducted with APA formality.

The Senate Rules Committee points to the legislative history of the Radiation Control Law to discern authority for its claim that an APA-type proceeding is required by Health and Safety Code section 25845, subdivision (a). The Radiation Control Law was enacted in response to federal legislation authorizing the Atomic Energy Commission (now the Nuclear Regulatory Commission) to enter into agreements for the transfer of authority for the regulation and control of certain types of nuclear materials from the commission to individual states. (42 U.S.C. § 2021(b).) To qualify for the transfer, the governor of a state that desired to assume regulatory authority was required to certify “that the State has a program for the control of radiation hazards adequate to protect the public health and safety with respect to the materials within the State covered by the proposed agreement . . . .” (42 U.S.C. § 2021(d)(1).) In order to facilitate the transfer of authority between governments, model legislation was drafted for use by the states in developing an adequate program for the control of radiation hazards. Section 12(a) of the model legislation provided: “(a) in any proceeding under this act [or cite appropriate act]: [ft] (1) for the issuance or modification of rules and regulations relating to control of sources of ionizing radiations; or [ft] (2) for granting, suspending, revoking, or amending any license; or [ft] (3) for determining compliance with [or granting exceptions from] rules and regulations of the [agencies or cite appropriate agency], [the agencies or agency] shall afford an opportunity for a hearing on the record upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.” (9 Assem. Interim. Comm. on Public Health, Subcom. on Radiation Protection (1959-1961) No. 23, Radiation Protection in Cal. (Jan. 1961) p. 69, fn. omitted & brackets in original.) Since, as we have noted, the federal APA adopts an “on the record” requirement as a means of incorporating federal APA procedures, and since the model legislation was designed to facilitate transfer of authority from the federal government to the states, it is asserted that the “on the record” provision in the model legislation was intended to require formal adjudicatory procedures. Because Health and Safety Code section 25845, subdivision (a), parallels the model legislation, it is asserted that it too was intended to require formal adjudicatory procedures.

The argument is unconvincing. As we have explained, under federal law an “on the record” requirement is not a term of art but is a statutorily adopted shorthand means for incorporating the federal APA. (United States v. Florida East Coast R. Co., supra, 410 U.S. at p. 238 [35 L.Ed.2d at p. 235].) And as we have further noted, our Legislature has never adopted a similar shorthand means of incorporating our APA either by statute or by informal practice. In enacting the Radiation Control Law our Legislature did not simply adopt the model legislation, which lumps together all proceedings with respect to rulemaking and licensing actions in imposing a hearing requirement. Rather, our Legislature specifically segregated decisions to grant or amend a license from decisions to revoke or suspend a license, and employed our statutorily adopted means for requiring formal adjudicatory hearings only with respect to the latter decisions. Such affirmative remodel-ling of the model legislation simply does not permit the conclusion that the Legislature intended to impose the same hearing requirements with respect to each type of action.

The Senate Rules Committee contends that the “compatability” requirements of federal and state law require formal adjudicatory hearings for the licensure of the Ward Valley facility. It claims that the Nuclear Regulatory Commission’s regulatory program would provide a formal adjudicatory hearing upon request in connection with the licensing of a low-level radioactive waste disposal facility (see 10 C.F.R. §§ 2.105(a)(2), 2.714(a)(1)), and that to be compatible a state regulatory program must also authorize an APA-type proceeding upon request. Petitioners, on the other hand, refer us to two letters from agents of the Nuclear Regulatory Commission expressing the commission’s view that the compatibility requirement does not extend to administrative procedures. The commission’s view is entitled to judicial deference. (Ford Motor Credit Co. v. Milhollin (1980) 444 U.S. 555, 566 [63 L.Ed.2d 22, 31, 100 S.Ct. 790]; Power Reactor Co. v. Electricians (1961) 367 U.S. 396, 408 [6 L.Ed.2d 924, 932, 81 S.Ct. 1529].) In any event, we find ample support for that view in the applicable federal statutory provisions.

In an earlier version, title 42, United States Code, section 2021(c), permitted the Atomic Energy Commission (now the Nuclear Regulatory Commission) to enter into agreements to transfer regulatory authority to the states with respect to certain kinds of radioactive materials. In support of such an agreement, the commission was required to find “that the State program is compatible with the Commission’s program for the regulation of such materials, and that the State program is adequate to protect the public health and safety with respect to the materials covered by the proposed agreement.” (42 U.S.C., former § 2021(d)(2).) In 1978 Congress acted to impose a public hearing requirement with respect to one specific type of nuclear material. It added subdivision (o) to section 2021 to provide, inter alia: “In the licensing and regulation of byproduct material, as defined in section 2014(e)(2) of this title, or of any activity which results in the production of byproduct material as so defined under an agreement entered into pursuant to subsection (b) of this section, a State shall require—. . . [ft] (3) procedures which—[ft] (A) in the case of licenses, provide procedures under State law which include—[ft] (i) an opportunity, after public notice, for written comments and a public hearing, with a transcript, [ft] (ii) an opportunity for cross examination, and [ft] (iii) a written determination which is based upon findings included in such determination and upon the evidence presented during the public comment period and which is subject to judicial review; . . ,” (Pub.L. No. 95-604 (Nov. 8, 1978) § 204(e)(1).) Congress amended section 2021(b) to provide that in support of an agreement transferring regulatory authority to a state the commission must find that the state program “is in accordance with the requirements of subsection (o) of this section and in all other respects compatible” with the commission’s program. (Pub.L. No. 95-604 (Nov. 8, 1978) § 204(b), 92 Stat. 3036.) The immediate imposition of the requirements of subdivision (o) upon the states proved burdensome and in 1979 Congress provided for a phase-in period by providing that subdivision (o) would apply only to the maximum extent practicable during the three-year period following its enactment. (Pub.L. No. 96-106 (Nov. 8, 1979) § 22(d), 93 Stat. 800.)

This history is significant. If federal hearing procedures were included within the general compatibility requirements imposed upon the states then it would have been wholly unnecessary to add specific hearing requirements with respect to byproduct materials. It would have been unnecessary to phase in those requirements to minimize the burden imposed upon the states. And, to require the states to comply with the hearing requirements of title 42, United States Code section 2021 (o) with respect to byproduct materials and otherwise be compatible with the commission’s program would be redundant. Moreover, the fact that Congress chose to impose specific hearing requirements upon the states with respect to only one type of nuclear material is convincing evidence that it did not intend to impose particular hearing requirements with respect to other types of nuclear material. (See Pasadena Police Officers Assn. v. City of Pasadena, supra, 51 Cal.3d at p. 576; Ford Motor Co. v. County of Tulare, supra, 145 Cal.App.3d at p. 691.)

By express definition, low-level radioactive waste is not “byproduct material” as defined in title 42, United States Code section 2014(e)(2) to which the hearing requirements of section 2021(o) apply. (42 U.S.C. § 2021b(9).) Under federal law, a state’s authority over the regulation of low-level radioactive waste is treated differently from state authority over other types of nuclear materials. Congress did not merely authorize the commission to transfer authority over low-level radioactive waste disposal to the states; rather, by separate statutory provision it imposed responsibility for the disposal of low-level radioactive waste upon the states. (42 U.S.C. § 2021c.) It authorized the states to enter into regional compacts to fulfill that responsibility. (42 U.S.C. § 2021d.) With respect to such compacts, Congress expressly imposed certain requirements upon the states and otherwise provided that nothing in the federal law “expands, diminishes, or otherwise affects State law.” (42 U.S.C. § 2021d(b)(5).) Although Congress acted to require states to consider license applications in an expeditious manner, it did not impose particular hearing requirements upon the states and instead provided that states “shall consider an application for a disposal facility license in accordance with the laws applicable to such application, . . . .” (42 U.S.C. § 2021i.) It left it to the states to establish procedures for considering license applications. (42 U.S.C. § 2021i(l).) Accordingly, we find nothing in federal law specific to low-level radioactive waste disposal which would impose particular hearing requirements upon the states.

Our state compatibility provisions do not furnish a basis for implying a formal hearing requirement for licensing decisions. In our Radiation Control Law, the Legislature established that it is the policy of this state that our regulatory program be compatible with the standards and regulatory programs of the federal government. (Health & Saf. Code, § 25801, subd. (a).) In the agreement with the Atomic Energy Commission by which regulatory authority was transferred to this state, California agreed to use its best efforts to maintain such compatibility. (Health & Saf. Code, § 25876, art. V.) Such a policy was a congressionally required condition of the agreement transferring regulatory authority. (42 U.S.C. § 2021(d).) We do not perceive in our compatibility provisions any greater requirements than those of the federal compatibility provisions.

In summary, in the Radiation Control Law the Legislature specifically separated proceedings for granting or amending a license from proceedings to suspend or revoke a license, and required formal adjudicatory proceedings only with respect to the latter. (Health & Saf. Code, § 25845.) We have found no basis for implying a formal adjudicatory hearing requirement with respect to license applications and we have found no other statutory basis for the claim that a formal adjudicatory hearing is required. Accordingly, we conclude that the proposed hearings are not statutorily required.

B. The Agreement With the Senate Rules Committee

This brings us to the real issue in this case, namely, whether respondents are required to proceed with a formal adjudicatory hearing based upon a purported agreement extracted from nominees during the confirmation process. That this agreement is the sole reason for the department’s intention to proceed with a formal adjudicatory hearing is beyond question. Without attempting to be exhaustive, this is established by the following facts:

(1) When the EIR process was completed and the department scheduled public hearings on US Ecology’s license application, it arranged the hearings in order to provide for widespread participation by interested parties but determined not to conduct APA-type hearings. The department rejected demands from several individuals and groups for APA-type hearings. The department appeared in the Sacramento County Superior Court to resist efforts by third parties to judicially compel it to hold APA-type hearings. Following the hearings the department determined that it had sufficient information to make a decision upon the license application and that no further hearings were needed.

(2) When respondents Coye and Gould appeared before the Senate Rules Committee for their confirmation hearings they initially expressed the view that further hearings were neither factually necessary nor legally required. The Senate Rules Committee used the confirmation process to convince the appointees to agree to further hearings in an APA mode. Thereafter in correspondence and otherwise the Senate Rules Committee and the appointees consistently referred to their agreement as the reason for the further hearings. When US Ecology objected to further hearings, Dr. Coye advised that she and Gould intended to abide by their agreement with the Senate Rules Committee. In its response in this court the Senate Rules Committee admits that the agreement is the reason for the proposed hearings and argues that this is a legally proper result of the confirmation process.

(3) In its appearances in this proceeding, by written and oral argument and by declaration, the department has consistently maintained that further hearings are not needed and are legally unnecessary. The department urged this court to issue a stay of further hearings and to consider the matter on petition for extraordinary relief. It asserts that further hearings are not required by the Radiation Control Law and invites this court to determine whether the purported agreement with the Senate Rules Committee is void. As Secretary Gould put it in his declaration: “Although, I do not believe that an additional hearing would be needed to enable the Department to make an informed decision regarding US Ecology’s license application, nor do I believe that one is legally required, I seek guidance from the Court as to how to proceed. I will take whatever action the Court concludes is legally required.”

The Senate Rules Committee asserts that the validity of the agreement for further hearings presents a nonjusticiable political question. It emphasizes its view that the agreement was not coerced but was simply the result of negotiation between the legislative and executive branches of government. The claim that the agreement was not coerced is somewhat disingenuous in view of the carrot-and-stick approach used by the Senate Rules Committee in the confirmation hearings. But that is not a determinative point since an executive officer’s assent to an unconstitutional act will not shield it from judicial review. (See INS v. Chadha (1983) 462 U.S. 919, 942, fn. 13 [77 L.Ed.2d 317, 339, 103 S.Ct. 2764].)

In support of its claim that this presents a nonjusticiable political question, the Senate Rules Committee relies upon a statement from Baker v. Carr (1962) 369 U.S. 186, at page 217 [7 L.Ed.2d 663, 686, 82 S.Ct. 691]: “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department. . . or the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government . . . .” The argument is unconvincing. As the Supreme Court noted in INS v. Chadha, supra, 462 U.S. at pages 941 and 942 [77 L.Ed.2d at pp. 338-339], a challenge to the constitutionality of an act is inherently a judicial rather than political question and neither the legislature, the executive, nor both acting in concert can validate an unconstitutional act or deprive the courts of jurisdiction to decide questions of constitutionality. (See Mullan v. State (1896) 114 Cal. 578, 584-586 [46 P. 670].) As we shall explain, the issues in this case do not involve a political question committed to the determination of the Legislature but instead involve an unconstitutional usurpation of legislative and executive authority by the Senate Rules Committee. Nothing in the political question doctrine requires the judiciary to refrain from addressing the constitutionality of such actions.

We conclude that the agreement with the Senate Rules Committee is unconstitutional and void. The issue is not a close or difficult question. “The powers of State government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (Cal. Const., art. III, § 3.) “The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the power of initiative and referendum.” (Cal. Const., art. IV, § 1.) “The Legislature may make no law except by statute and may enact no statute except by bill. . . .” (Cal. Const., art. IV, § 8, subd. (b).) “Each bill passed by the Legislature shall be presented to the Governor. . . .” (Cal. Const., art. IV, § 10, subd. (a).) The Governor may sign the bill into law, allow the bill to become law without his or her signature, or veto the bill. (Cal. Const., art. IV, § 10.) The Legislature may override a gubernatorial veto by a two-thirds vote in each house. (Cal. Const., art. IV, § 10, subd. (a).)

In general it may be said that it is for the Legislature to make public policy and for the executive to carry out the policy established by the Legislature. In practice the complexity of public business necessitates that many of the functions of government be accomplished by administrative agencies. (See Ray v. Parker (1940) 15 Cal.2d 275, 291 [101 P.2d 665].) Administrative agencies are part of the executive branch of government. (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 630-632 [268 P.2d 723].) This is true of the department (Health & Saf. Code, §§ 100-102; Gov. Code, §§ 11150, 12803), and of the Health and Welfare Agency (Gov. Code, §§ 12803, 12806, 12850 et seq.). Although administrative agencies may not exercise complete legislative or judicial powers (Laisne v. Cal. St. Bd. of Optometry (1942) 19 Cal.2d 831, 835 [123 P.2d 457]), they may be empowered to exercise limited legislative or judicial powers which are often described with the modifier “quasi” to denote their limited nature (Bixby v. Pierno (1971) 4 Cal.3d 130, 142 [93 Cal.Rptr. 234, 481 P.2d 242]; Ray v. Parker, supra, 15 Cal.2d at pp. 291-292). So long as the scope of an agency’s powers is properly defined and limited by the Legislature and the exercise of those powers is subject to appropriate judicial review, the exercise of limited legislative and judicial powers by an administrative agency does not offend the Constitution. (Ray v. Parker, supra, 15 Cal.2d at pp. 291-292.)

Within this scheme of things, the Legislature declares public policy and makes provision for the ways and means of its accomplishment, while carrying out those declared policies is an administrative or executive function. (Lincoln Property Co. No. 41, Inc. v. Law (1975) 45 Cal.App.3d 230, 234 [119 Cal.Rptr. 292]; Valentine v. Town of Ross (1974) 39 Cal.App.3d 954, 957-958 [114 Cal.Rptr. 678]; Reagan v. City of Sausalito (1962) 210 Cal.App.2d 618, 621-622 [26 Cal.Rptr. 775]; McKevitt v. City of Sacramento (1921) 55 Cal.App. 117, 124 [203 P. 132].) The Legislature may, by statute, exercise broad control over the policies to be implemented and the ways and means of their accomplishment. However, acts which are done to carry out the policies and purposes already declared by the Legislature are not a legislative function. (Ibid.)

With respect to low-level radioactive waste disposal, our Legislature has declared the public policy of this state. Among other things that policy is that this state will serve as the host state under the Southwestern Compact and will cause a regional disposal facility to be developed on a timely basis. (Health & Saf. Code, § 25878, art. 4, subd. (E).) The department is charged with responsibility for carrying out this policy and in doing so is required to determine whether to issue a license for the operation of the regional facility. In determining whether to issue a license, the department must accord an opportunity for a hearing on the record to any interested person. (Health & Saf. Code, § 25845, subd. (a).)

In requiring that interested third parties be accorded an opportunity for a hearing, the Legislature declined to require that such a hearing be conducted in accordance with formal APA-type procedures. (Health & Saf. Code, § 25845, subd. (a).) With respect to administrative procedures, a leading authority has observed: “The major malady that cuts deeply into efficiency is grossly excessive use of trial procedure, . . .” (3 Davis, Administrative Law Treatise (2d ed. 1980) § 14.1, p. 3.) It has been observed that “[t]he fact that the provisions of the California Administrative Procedure Act dealing with administrative adjudication are made applicable only to certain State agencies is indicative of the fact that the California Legislature has also recognized that different problems require different procedures. . . .” (48 Ops.Cal.Atty.Gen. 117, 122 (1966).) By declining to require formal APA-type hearings in Health and Safety Code section 25845, subdivision (a), the Legislature necessarily left the character of the hearings and the procedures which would be applicable to the discretion of the department. (See Vermont Yankee Nuclear Power Corp. v. NRDC (1978) 435 U.S. 519, 543 [55 L.Ed.2d 460, 479, 98 S.Ct. 1197]; Federal Comm’n v. Broadcasting Co. (1940) 309 U.S. 134, 138 [84 L.Ed. 656, 659, 60 S.Ct. 437].)

By injecting itself into the process and in attempting to force the department to conduct the type of hearings it desired, the Senate Rules Committee usurped to powers of not one but two branches of government. The Senate Rules Committee is one committee of one house of the Legislature. Its authority is subsidiary and auxiliary to the legislative functions of the Senate. (Cal. Const., art. IV, § 11; Swing v. Riley (1939) 13 Cal.2d 513, 518 [90 P.2d 313].) And, of course, a single house is not the Legislature. (Cal. Const., art. IV, § 1; Special Assembly Int. Com. v. Southland (1939) 13 Cal.2d 497, 498 [90 P.2d 304].) The Legislature cannot constitutionally delegate legislative authority to one house and certainly cannot delegate its authority to a committee. (Cal. Const., art. IV, §§1,8, subd. (b); see INS v. Chadha, supra, 462 U.S. at pp. 955-957 [77 L.Ed.2d 317, 347-348].) To do so would violate the bicameral and presentment clauses of our Constitution. (Cal. Const., art. IV, §§ 1, 8, subd. (b), § 10, subd. (a); see Legislature v. Reinecke (1972) 6 Cal.3d 595, 601 [99 Cal.Rptr. 481, 492 P.2d 385]; Mullan v. State, supra, 114 Cal. at pp. 584-586; People v. Toal (1890) 85 Cal. 333, 336-337 [24 P. 603]; see also MWAA v. Caan (1991) 501 U.S. _, _ [115 L.Ed.2d 236, 258-259, 111 S.Ct. 2298.) Here, the Legislature did not purport to delegate supervisory authority over the Radiation Control Law to the Senate Rules Committee; instead, the committee assumed that power for itself. In doing so the committee acted without legislative authorization and in a manner which would be unconstitutional and void even if the Legislature had purported to delegate such authority.

The action of the Senate Rules Committee also usurped the power of the executive in violation of the separation of powers provision of our Constitution. (Cal. Const., art. III, § 3.) The legislative prerogative is to declare public policy and to provide the ways and means of its accomplishment. (Lincoln Property Co. No. 41, Inc. v. Law, supra, 45 Cal.App.3d at p. 234; Valentine v. Town of Ross, supra, 39 Cal.App.3d at pp. 957-958.) Having enacted a statutory scheme, the Legislature has no power to exercise supervisorial control or to retain for itself some sort of “veto” power over the manner of execution of the laws. (State Board of Education v. Levit (1959) 52 Cal.2d 441, 461-462 [343 P.2d 8]; see also Bowsher v. Synar (1986) 478 U.S. 714, 726-727 [92 L.Ed.2d 583, 596-597, 106 S.Ct. 3181]; INS v. Chadha,