Heard February 5, 2014.
Withdrawn, Substituted and Refiled August 12, 2015
Appeal From The Administrative Law Court Ralph King Anderson, III,
Administrative Law Judge
Amy Elizabeth Armstrong and Michael Gary Corley, S.C. Environmental Law Project, both of Pawleys Island, and Robert Guild, of Columbia, for Appellant.
Mary Duncan Shahid and Stephen Peterson Groves, Sr., both of Charleston, and Sara S. Rogers, of Columbia, all of Nexsen Pruet, LLC, for Respondent Chem-Nuclear Systems; Claire Harley Prince and Jacquelyn Sue Dickman, both of Columbia, for Respondent South Carolina Department of Health & Environmental Control.
This is an appeal from the administrative law court (ALC), which upheld the South Carolina Department of Health and Environmental Control's (DHEC) decision to renew the license under which Chem-Nuclear Systems, LLC operates a disposal facility for low-level radioactive waste. We affirm the ALC as to all issues, except four subsections of the regulation governing DHEC's issuance and renewal of such licenses. See 24A S.C. Code Ann. Regs. 61-63, pt. VII (1992 & Supp. 2010).
I. Procedural History
Chem-Nuclear operates a disposal facility for low-level radioactive waste in Barnwell County (the "facility") pursuant to a license DHEC first issued in 1971. Part VII of regulation 61-63-entitled "Licensing Requirements for Land Disposal of Radioactive Wastes"-establishes "specific technical requirements" and "performance objectives" "upon which [DHEC] issues licenses for the land disposal of wastes." 24A S.C. Code Ann. Regs. 61-63 § 7.1.1, 7.1.3 (1992). Before DHEC may renew Chem-Nuclear's license to operate the facility, it must determine Chem-Nuclear designed, constructed, and operates the facility in compliance with the requirements and objectives of part VII of regulation 61-63. See generally § 7.1.
In 2000, Chem-Nuclear submitted an application to renew its license. After holding a public hearing and accepting comments, DHEC issued a renewal license to Chem-Nuclear in 2004. DHEC's decision to renew the license was challenged on the basis that the disposal methods at the facility do not meet certain requirements and objectives of part VII of the regulation. The ALC issued an order affirming DHEC's decision to renew the license (the "2005 order"), and found Chem-Nuclear complied with subsections 7.10.1 through 7.10.4 of South Carolina Code Regulation 61-63 (1992 & Supp. 2010) and section 7.18 of South Carolina Code Regulation 61-63 (1992). However, the ALC ordered Chem-Nuclear to conduct further studies to address concerns "related to the potential for groundwater contamination on and near the [facility]." In particular, the 2005 order stated these studies must "concern methods to reduce contact between radioactive waste and rainfall and other water at its facility" and ordered Chem-Nuclear to submit the results of the studies to DHEC within 180 days.
This court's opinion reviewing the findings of the 2005 order is reported at 387 S.C. 424, 693 S.E.2d 13 (Ct. App. 2010) (Chem-Nuclear I). We affirmed the findings related to section 7.18 and subsections 7.10.1 through 7.10.4. 387 S.C. at 438, 693 S.E.2d at 20. However, we remanded the case to the ALC to apply its factual findings from the 2005 order to determine whether Chem-Nuclear complied with the following subsections of regulation 61-63: 7.11.1 through 7.11.12 (1992 & Supp. 2010), 7.23.6 (1992), and 7.10.5 through 7.10.10 (1992 & Supp. 2010). 387 S.C. at 435, 436, 438, 693 S.E.2d at 18-19, 20.
On remand, the ALC issued an order affirming DHEC's conclusion that Chem-Nuclear complied with these subsections (the "remand order"). In this appeal, we review the findings in the remand order. After we filed our first opinion, Op. No. 5253 (S.C. Ct. App. filed July 30, 2014) (Shearouse Adv. Sh. No. 30 at 53), DHEC and Chem-Nuclear petitioned for rehearing. We granted a stay of the relief ordered in the first opinion on August 28, 2014, and we now grant both petitions for rehearing. We withdraw our original opinion and substitute this opinion.
II. Factual Findings in the 2005 Order
Following this court's instructions, the ALC considered on remand only the findings from the 2005 order. In reviewing the remand order, therefore, we likewise consider only the findings from the 2005 order. In this section of the opinion, we recite those findings relevant to our review. Unless otherwise indicated, all quotations in this section are from the 2005 order.
A. Overview of Chem-Nuclear's Disposal Practices
Chem-Nuclear disposes of waste at the facility using "enhanced shallow land burial with engineered barriers." An engineered barrier is "a man-made structure or device that is intended to improve the land disposal facility's ability to meet the performance objectives" set out in part VII of regulation 61-63. 24A S.C. Code Ann. Regs. 61-63 § 7.2.9 (Supp. 2010). The primary engineered barriers used by Chem-Nuclear are disposal trenches, disposal vaults, and enhanced caps.
Initially, waste is shipped to the facility in a disposal container. See 24A S.C. Code Ann. Regs. 61-63 § 3.2.30 (Supp. 2010) ("'Disposal container' means a container principally used to confine low-level radioactive waste during disposal operations at a land disposal facility . . . [and] for some shipments, the disposal container may be the transport package."). Depending on the type of waste, disposal containers are also shipped to the facility inside a container called a cask. When a shipment of waste arrives at the facility, it is directed to either the appropriate trench for disposal or the Cask Maintenance Building, where Chem-Nuclear performs quality control inspections to ensure the casks are not damaged. Following this inspection, Chem-Nuclear transports the casks to the appropriate disposal trench where the disposal containers are loaded into reinforced concrete disposal vaults inside the trench. As disposal containers are loaded into vaults, Chem-Nuclear continues to inspect them.
Some "large components, " such as steam generators and pressurizers, are considered disposal vaults themselves and can be placed directly into the trench after DHEC approves them for burial. Otherwise, all waste is contained inside a disposal container that is loaded into a vault, which is located within a trench.
Chem-Nuclear uses the term "active" to describe disposal vaults and trenches that are in the process of being filled. Thus, vaults are active until filled to capacity with disposal containers, and trenches are active until filled to capacity with vaults and large components. Once vaults and trenches become full, Chem-Nuclear refers to them as "inactive." When an individual vault becomes full, Chem-Nuclear covers the inactive vault with "general cover soils and an initial clay cap, " which reduces "the infiltration of surface water into the trench." When a trench becomes full, Chem-Nuclear installs an "impermeable" multi-layer enhanced cap over the inactive trench, which consists of an initial clay cap, polyethylene and bentonite, a sand drain layer, and general soil materials.
Waste is divided into three classes-A through C-based on the concentration of "long-lived" and "shorter-lived radionuclides" in the waste. Class A is the least radioactive waste, while C is the most radioactive. See 24A S.C. Code Ann. Regs. 61-63 § 18.104.22.168 to .8 (Supp. 2010). Chem-Nuclear currently uses three types of disposal trenches that are designed to hold different types of waste: (1) Class A trenches, which are the largest of the three types, hold vaults containing Class A waste; (2) Class B/C trenches hold vaults containing Class B and C waste; and (3) slit trenches, which are narrow, hold irradiated hardware and large components. Chem-Nuclear uses soil to fill voids between the vaults in each type of trench, which "enhance[s] long-term stability of the entire trench system."
Each trench has a drainage system "to facilitate monitoring of water accumulation entering the trench." Chem-Nuclear also implements a "surface water management plan" to manage rainfall after it collects in trenches, which consists of pumping water into either adjacent trenches or a lined pond.
B. Tritium Contamination of Groundwater
Tritium is a radioactive isotope of hydrogen that is found in "trace amounts in groundwater throughout the world." NRC Senior Management Review of Overall Regulatory Approach to Groundwater Protection (N.R.C., Rockville, M.D.), Feb. 9, 2011, at SECY-11-0019. Although tritium is naturally occurring, it is also a byproduct of the manufacture of nuclear power, and found in radioactive waste generated by nuclear power plants. Id.
The waste disposed of at the facility contains tritium. Rainfall "in and on the disposal trenches drives tritium into the groundwater beneath the facility." Chem-Nuclear initially discovered the presence of tritium in its disposal trenches in 1974. Chem-Nuclear determined that early disposal practices utilizing "unreliable containment and waste forms" led to this initial tritium contamination. However, these early containment methods "were acceptable at the time" under the regulations. In fact, they "were identical to practices at . . . other low-level radioactive waste disposal facilities."
Although "it is inadvisable to attempt to uncover or excavate" the old containers that caused the initial tritium release, improvements in disposal technology and changes in the operations at the facility have "enhanced site performance." In 1995, DHEC substantially revised part VII of regulation 61-63 to require engineered barriers for all waste classes disposed of at the facility. Specifically, DHEC required all waste, except large components, to be placed in vaults, and required enhanced caps to be installed on all inactive trenches. Chem-Nuclear began using vaults and enhanced caps to meet these new requirements. In addition, Chem-Nuclear began using high-integrity polyethylene disposal containers to hold certain waste forms and discontinued the disposal of unstable, liquid waste forms. All of these measures served to "reduce the amount of tritium migrating to groundwater."
DHEC imposes a regulatory limit on the amount of radioactive material Chem-Nuclear may release to the "general environment." See § 7.18. Although certain groundwater samples collected from beneath the facility show high concentrations of tritium, these samples are inappropriate for evaluating Chem-Nuclear's compliance with section 7.18. This is because DHEC regulates the release of radiation into the "general environment, " § 7.18, not into the groundwater within the boundaries of the facility where there is no risk of public exposure. To determine whether Chem-Nuclear is in compliance with section 7.18, DHEC established a "compliance point"-defined as the "first point where a hypothetical member of the public might receive a dose of radiation"-at which it measures Chem-Nuclear's release of tritium into the general environment. This compliance point is located at Mary's Branch Creek, where the groundwater from beneath the facility flows into an above-ground stream. Chem-Nuclear regularly samples the water from Mary's Branch Creek to determine whether there has been a release of tritium above the regulatory limit set by DHEC. Since 2001, tritium concentrations at the compliance point have been declining, and all measurements taken at Mary's Branch Creek have been well below the regulatory limit for exposure under section 7.18. In fact, "[t]here is no evidence of any actual release resulting in an exposure above regulatory limits to any member of the general public."
C. Actions to Prevent Tritium Exposure
Chem-Nuclear has taken steps to protect the public from exposure to radiation at the compliance point. The general public is restricted from accessing the waters of Mary's Branch Creek at the compliance point, and there are no known consumers of the water who are "located in and around the compliance point." Chem-Nuclear also erected a fence around the compliance point to prevent entry of unauthorized persons. Additionally, Chem-Nuclear has a restrictive covenant and easement on three parcels of property surrounding the compliance point. This property serves as a buffer zone by prohibiting the use of groundwater under the property, as well as surface water on the property, without written consent from DHEC. Moreover, changes in design and operations at the facility further reduce the potential for radioactive exposure to the general environment.
D. Long-Term Predictions for Compliance
As required by DHEC, Chem-Nuclear created a predictive model-the Environmental Radiological Performance Verification (ERPV)-to predict the future performance of the site for up to two thousand years. This model relies on data collected through a system of groundwater monitoring wells and thirty years of data derived from over two hundred sampling points. DHEC commissioned and funded a panel of experts-the "Blue Ribbon Panel"-to review the ERPV and determine whether Chem-Nuclear's predictions were accurate. After finding the ERPV predictions to be reliable, the Blue Ribbon Panel concluded the facility "pose[d] minimal risk to either the environment or members of the public, both today and into the long-term future." DHEC relied on the conclusions of both the ERPV and the Blue Ribbon Panel in deciding to renew the facility's license.
III. Standard of Review
In the 2005 order, the ALC conducted a de novo review of DHEC's decision to renew Chem-Nuclear's license. See Marlboro Park Hosp. v. S.C. Dep't of Health & Envtl. Control, 358 S.C. 573, 579, 595 S.E.2d 851, 854 (Ct. App. 2004) (stating the ALC acts "as the fact-finder" in a contested case and "must make sufficiently detailed findings supporting the denial [or grant] of a permit application" (alteration in original) (citation omitted)). In Chem-Nuclear I, this court reviewed the ALC's findings and conclusions in the 2005 order to determine whether they were "supported by substantial evidence or controlled by some error of law." See 387 S.C. at 430-31, 693 S.E.2d at 16 (relying on the standard of review set forth in S.C. Code Ann. § 1-23-610(B) (Supp. 2013)). Although we affirmed the ALC's determination that Chem-Nuclear complied with all sections of regulation 61-63 addressed in the 2005 order, we remanded for the ALC to apply the factual findings from the 2005 order to other, applicable sections it did not address. 387 S.C. at 439, 693 S.E.2d at 20-21. See 387 S.C. at 439, 693 S.E.2d at 20 (instructing the ALC "to apply its factual findings [from the 2005 order] to these sections of regulation 61-63" on remand). In the remand order, the ALC applied the factual findings from the 2005 order to determine whether Chem-Nuclear complied with these additional sections.
In this appeal from the remand order, we must accept the factual findings in the 2005 order. We review the remand order under the standard of review set forth in subsection 1-23-610(B)(d), and may reverse only if the ALC's decision was affected by an error of law. See § 1-23-610(B)(d) (stating an appellate court may reverse the ALC's decision when it is affected by an error of law); S.C. Dep't of Revenue v. Blue Moon of Newberry, Inc., 397 S.C. 256, 260, 725 S.E.2d 480, 483 (2012) ("The construction of a regulation is a question of law to be determined by the court. We will correct the decision of the ALC if it is affected by an error of law, and questions of law are reviewed de novo." (internal quotation marks and citations omitted)).
IV. Chem-Nuclear's Compliance with Regulation 61-63
DHEC drafted part VII of regulation 61-63 to include three general categories of regulations. See § 7.1.3 ("This Part establishes procedural requirements[, ] . . . performance objectives[, ] . . . [and] specific technical requirements for near-surface disposal of radioactive waste . . . ."). All three categories are applicable to the enhanced shallow land burial of low-level nuclear waste at the facility. In this appeal, we address the ALC's determination that Chem-Nuclear complied with regulations in two of these categories-regulations imposing technical requirements and performance objectives. Generally, regulations containing technical requirements require Chem-Nuclear to take action to comply with the regulation, while regulations containing performance objectives require Chem-Nuclear to achieve certain results sought under the regulation. There is some overlap, however, between the action-based and result-based requirements of these two categories of regulations.
Some regulations imposing "technical requirements" require Chem-Nuclear to take a specific action to meet the requirement. For example, subsection 7.24.2 of South Carolina Code Regulation 61-63 (1992) requires that Chem-Nuclear place five meters of material above Class C waste when the disposal unit is full and made inactive. See id. (requiring Class C waste be disposed of "so that the top of the waste is a minimum of 5 meters below the top surface of the cover"). Other regulations imposing technical requirements do not list any specific action, but leave to Chem-Nuclear the choice of action to take to comply with the regulation. For example, subsection 22.214.171.124 of South Carolina Code Regulation 61-63 (Supp. 2010) requires "[t]he disposal units and the incorporated engineered barriers . . . be designed and constructed to . . . prevent contact between the waste and the surrounding earth." Chem-Nuclear's compliance with "technical requirements" regulations may be determined only by examining the specific actions taken by Chem-Nuclear. As to subsection 7.24.2 and others, the required action is specifically listed in the regulation. As to subsection 126.96.36.199 and others, Chem-Nuclear may choose what action to take to comply with the regulation. In both instances, Chem-Nuclear must take action to meet the technical requirements of the regulation.
On the other hand, compliance with a regulation imposing "performance objectives" must be determined by examining whether Chem-Nuclear obtained the results required by the regulation. An example of such a regulation is section 7.18, which requires reasonable efforts be made to maintain radioactive releases to the general public "as low as is reasonably achievable"-a concept known by the acronym "ALARA." This and other result-based "performance objective" regulations require consideration of existing environmental conditions, such as the fact that tritium levels are declining in the groundwater below the facility and in the surface water of Mary's Branch Creek.
In Chem-Nuclear I, we affirmed the ALC's finding that Chem-Nuclear met the performance objectives of sections 7.18 and 7.10. 387 S.C. at 438, 693 S.E.2d at 20. Section 7.18 and the subsections of 7.10 that we addressed in Chem-Nuclear I relate to whether Chem-Nuclear is protecting the public from radioactive releases, and generally do not impose specific requirements as to how Chem-Nuclear must accomplish any particular result. In affirming Chem-Nuclear's compliance with section 7.18, we gave deference to the ALC's finding that "Chem-Nuclear . . . demonstrated adherence to ALARA . . . by taking appropriate measures to address tritium migration from the Barnwell facility and the potential for releases from other radionuclides." 387 S.C. at 429, 438, 693 S.E.2d at 15, 20. Showing similar deference, we affirmed the ALC's findings that Chem-Nuclear complied with four of the performance objectives in section 7.10. 387 S.C. at 438, 693 S.E.2d at 20. We found, however, the ALC did not address the six remaining subsections of 7.10 (7.10.5 through 7.10.10). 387 S.C. at 438-39, 693 S.E.2d at 20-21. We remanded for the ALC to determine whether Chem-Nuclear complied with those subsections. Id.
We also required the ALC to consider on remand Chem-Nuclear's compliance with section 7.11 and subsection 7.23.6. 387 S.C. at 435-36, 693 S.E.2d at 18-19. DHEC argued that in determining whether DHEC properly renewed the license, the ALC must consider compliance with the result-based requirements "set forth in section 7.10 . . . rather than apply criteria set forth in sections 7.11 and 7.23.6." 387 S.C. at 431, 693 S.E.2d at 16. We rejected that argument, finding "the technical requirements" of "section 7.11 impose additional compliance requirements for Chem-Nuclear such that the balancing test of ALARA would not be sufficient to address whether Chem-Nuclear is in compliance." 387 S.C. at 435, 693 S.E.2d at 18-19. Similarly, we found "the technical requirements of [sub]section 7.23.6 . . . impose additional compliance requirements for Chem-Nuclear." 387 S.C. at 436, 693 S.E.2d at 19. Under our holding in Chem-Nuclear I, therefore, the technical requirements of subsections 7.11.11 and 7.23.6 require Chem-Nuclear to take action to design and construct the disposal site, disposal units, and engineered barriers to meet the specifications in those subsections. See 387 S.C. at 432, 435, 436, 693 S.E.2d at 17, 19, 20. DHEC and Chem-Nuclear may not demonstrate compliance with those subsections simply by showing Chem-Nuclear met the performance objectives of other subsections. See id.
With these considerations in mind, we discuss the ALC's determination that DHEC properly found Chem-Nuclear complied with the applicable subsections of regulation 61-63.
A. Section 7.10 
The subsections of 7.10 that we review in this appeal set forth performance objectives for the issuance and renewal of Chem-Nuclear's license. The correctness of DHEC's and the ALC's determination of compliance with subsections 7.10.6 and 7.10.8 depends, in part, on Chem-Nuclear's progress in reducing the amount of tritium released from the facility. In reviewing the ALC's findings as to these subsections, therefore, we rely upon evidence that shows its operations are "adequate to protect the public health and safety, " which includes the following result-based evidence: (1) Chem-Nuclear's disposal operations currently meet the ALARA standard; (2) "improvements in waste disposal procedures" have enhanced site performance; and (3) there is a decline in the "tritium concentration at the compliance point."
1. Subsection 7.10.6
Subsection 7.10.6 provides that before DHEC may issue a license to Chem-Nuclear, it must find:
[Chem-Nuclear]'s proposed disposal site, disposal site design, land disposal facility operations, disposal site closure, and postclosure institutional control are adequate to protect the public health and safety in that they will provide reasonable assurance that long-term stability of the disposed waste and the disposal site will be achieved and will eliminate to the extent practicable the need for ongoing active maintenance of the disposal site following closure.
This subsection focuses our analysis on Chem-Nuclear's efforts to protect the public, the environment, and inadvertent intruders from radioactive exposure by ensuring "long-term stability of the disposed waste and the disposal site." We begin our discussion with the definitions of the relevant terms used in subsection 7.10.6.
"Site closure" is defined as "those actions that are taken upon completion of operations that prepare the disposal site for custodial care [by the State of South Carolina] and that assure that the disposal site will remain stable and will not need ongoing ...