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Club v. South Carolina Department of Health and Environmental Control and Chem-Nuclear Systems, LLC

Supreme Court of South Carolina

March 27, 2019

Sierra Club, Respondent,
v.
South Carolina Department of Health and Environmental Control and Chem-Nuclear Systems, LLC, Defendants, of whom Chem-Nuclear Systems, LLC, is Petitioner, and South Carolina Department of Health and Environmental Control is Respondent. Appellate Case No. 2015-001915

          Heard April 18, 2018

          Appeal from the Administrative Law Court Ralph King Anderson III, Administrative Law Judge

          Stephen P. Groves, Sr., Mary D. Shahid and Sara S. Rogers, all of Nexsen Pruet, of Charleston, for Petitioner.

          Amy E. Armstrong, of South Carolina Environmental Law Project, of Pawleys Island, Robert Guild, of Columbia, Special Counsel Claire H. Prince and Chief Deputy General Counsel Jacquelyn Sue Dickman, both of Columbia, for Respondents.

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

          JAMES, JUSTICE

         This matter stems from the administrative law court's (ALC) decision to uphold the South Carolina Department of Health and Environmental Control's (DHEC) renewal of the license under which Chem-Nuclear Systems, LLC (Chem-Nuclear) operates a disposal facility for low-level radioactive waste. Sierra Club appealed the ALC's decision, and the court of appeals affirmed the ALC as to all issues, except as to four subsections of the regulation governing DHEC's issuance and renewal of such licenses. Sierra Club v. S.C. Dep't of Health & Envtl. Control, 414 S.C. 581, 779 S.E.2d 805 (Ct. App. 2015). We granted Chem-Nuclear's petition for a writ of certiorari to review the court of appeals' decision. Although DHEC did not file a petition for a writ of certiorari, DHEC submitted a respondent's brief in the matter agreeing with Chem-Nuclear's arguments and expanding on certain issues raised by Chem-Nuclear. We affirm as modified in part and reverse in part the court of appeals. We remand this matter to DHEC for further proceedings consistent with this opinion.

         I. FACTUAL AND PROCEDURAL BACKGROUND[1]

         Chem-Nuclear operates a low-level radioactive waste disposal facility in Barnwell County, South Carolina. The facility is located on approximately 235 acres of property owned by the State and leased to Chem-Nuclear. Chem-Nuclear began its disposal operations in 1971 and has been the sole operator of the Barnwell facility since. Chem-Nuclear's license and operations are overseen by DHEC. Throughout the years, Chem-Nuclear's operating license has been amended and renewed multiple times. The numerous amendments reflect improvements made in the disposal methods and operations of the facility. Early disposal practices, although acceptable at the time, were less than ideal, and Chem-Nuclear and DHEC have since been working together to improve disposal practices.

         In 2000, the General Assembly enacted the Atlantic Interstate Low-Level Radioactive Waste Compact Implementation Act (the Compact Act). See S.C. Code Ann. §§ 48-46-10 to -90 (2008 & Supp. 2018). Through this legislation, South Carolina joined the Atlantic Low-Level Radioactive Waste Compact (the Compact) with Connecticut and New Jersey. See § 48-46-30(3). The Barnwell facility was designated the regional waste disposal facility of low-level radioactive waste for the Compact. See § 48-46-40. The Compact Act mandated decreasing limits for the amount of waste to be disposed of at the Barnwell facility from 2001-2008. See § 48-46-40(A)(6)(a). After fiscal year 2008, the Barnwell facility could not accept any out-of-Compact waste, and the amount of waste that has been since disposed at the facility has been substantially reduced. See id.

         A. Summary of Chem-Nuclear's Low-Level Radioactive Waste Disposal Practices

         Chem-Nuclear disposes low-level radioactive waste at the facility using a method described as "enhanced shallow land burial with engineered barriers." Engineered barriers are man-made structures designed to improve the facility's ability to meet certain objectives. The primary engineered barriers implemented by Chem-Nuclear include disposal trenches, disposal vaults, and enhanced caps.

         Waste is shipped from outside sources into Chem-Nuclear's facility in disposal containers. Depending upon the type of shipment and waste classification, the transport vehicle will be directed to either the Cask Maintenance Building for further inspection or to the appropriate trench for disposal. At the appropriate trench, containers are unloaded and placed into concrete disposal vaults. Chem-Nuclear continues to inspect the containers as they are unloaded and placed into the vaults. Larger components-including steam generators and pressurizers-need not be stored in concrete vaults and are disposed of directly into a trench following DHEC's approval.

         Chem-Nuclear uses three engineered trench designs to separate waste by dose rates external to the waste packages. Each trench design has a drainage system to assist in the monitoring of water infiltration entering the trench. The bottoms of the trenches are lined with clay sand or sandy clay that is designed to be permeable to allow liquids to infiltrate the soil below the trenches. None of the trench designs at the facility have an impermeable liner or a leachate collection system.[2] Chem-Nuclear implements a surface water management plan to manage precipitation collected in its trenches, which consists of pumping water into either adjacent trenches or a lined pond.

         The concrete disposal vaults provide structural stability. By design, the concrete vaults are not sealed against water intrusion. The floors of the vaults have holes to permit water to drain from the vaults into the trench, and the lids of the vaults are not grouted or otherwise sealed to keep water from entering the vault. In the past, the holes in the floor of the vaults have allowed water that has collected in the trenches to rise up into the vault.

         Disposal vaults and trenches are "active" when they are in the process of being filled. Vaults are active until they are filled to capacity with disposal containers; trenches are active until they are filled to capacity with vaults and other large components. When a vault becomes full, Chem-Nuclear covers the vault with "general cover soils and an initial clay cap," reducing the infiltration of surface water into the trench. When a trench becomes full, Chem-Nuclear installs a multi-layer enhanced cap over the "inactive" trench; the enhanced cap consists of an initial clay cap, polyethylene and bentonite, a sand drain layer, and general soil materials for vegetation growth. When Chem-Nuclear is filling a vault, the active vault has no cover or roof, permitting rain to fall directly into the vault during the loading period. The Barnwell facility receives an average of forty-seven inches of rain annually. The enhanced cap is not installed until a trench is completely filled-a process that can sometimes take almost two years. DHEC inspections have revealed rainwater collecting in the open trenches. Water that comes in contact with the disposed materials eventually percolates into the soil and drives the groundwater movement that carries radioactive materials, such as tritium, out of the facility.

         Chem-Nuclear first discovered tritium in its trenches in 1974. Tritium is a radioactive isotope of hydrogen and is contained in the low-level radioactive waste disposed of at the Barnwell facility. Hydrogen is a key element in water, and tritium exchanges with hydrogen in water-causing this radioactive isotope to migrate with water and groundwater. Tritium is driven into the groundwater by precipitation falling in and on the disposed materials. DHEC and Chem-Nuclear have been working together to reduce the amount of tritium migrating into the groundwater at the facility. Tritium migration from the trenches is referred to as the "tritium plume."

         Chem-Nuclear has installed an extensive system of groundwater monitoring wells in and around the disposal areas at the facility. The groundwater from the facility rises to the surface and enters an above-ground stream known as Mary's Branch Creek. This stream is located outside the boundary of the property owned by the State and is on property owned and controlled by Chem-Nuclear. Chem-Nuclear has taken steps to protect the public from exposure to radiation at Mary's Branch Creek. For example, the general public is restricted from access to the waters of Mary's Branch Creek-the area is secured by a fence and is heavily vegetated. Chem-Nuclear regularly samples and tests the waters of Mary's Branch Creek.

         Because Mary's Branch Creek is the first point where a hypothetical member of the public could receive a dose of radiation, DHEC has approved this point as Chem-Nuclear's regulatory compliance point. Although high concentrations of tritium have been discovered in groundwater samples elsewhere on Chem-Nuclear's property, samples taken at the compliance point have been well-below the regulatory limit for exposure. After comparing data regarding tritium levels to rainfall data as gauged by water level tables, it appears tritium concentrations may fluctuate with the amount of rainfall and may not necessarily vary as a result of new storage methods at the facility.

         B. Current Controversy

         Chem-Nuclear's facility is licensed and overseen by DHEC pursuant to South Carolina's status as an "Agreement State" with the Nuclear Regulatory Commission (NRC) under the United States Atomic Energy Act of 1954. See 42 U.S.C. § 2021 (2005). South Carolina became an Agreement State in 1969 after enacting the Atomic Energy and Radiation Control Act and promulgating the necessary regulations governing the disposal and handling of radioactive waste. See S.C. Code Ann. §§ 13-7-10 to -100 (2017); S.C. Code Ann. Regs. 61-63 (2011 & Supp. 2018). In designing, building, and operating the facility, Chem-Nuclear is required to comply with these regulations. The breadth and complexity of the applicable regulations are a given because of the nature of the materials being permanently disposed into the ground at the Barnwell facility.

         In 2000, Chem-Nuclear timely submitted its application for the renewal of its operating license to DHEC. After reviewing Chem-Nuclear's application, DHEC imposed additional requirements on Chem-Nuclear outside of the regulations. These requirements included a comprehensive assessment of site performance (the Environmental Radiological Performance Verification (ERPV)) and a review of Chem-Nuclear's methodologies and conclusions in a predictive site assessment by a "Blue Ribbon" panel of experts appointed by DHEC. Following public hearing and comment, DHEC renewed Chem-Nuclear's license in 2004.

         Sierra Club requested a contested case hearing before the ALC to challenge the renewal. Sierra Club argued Chem-Nuclear's current practices for waste disposal at the Barnwell facility did not meet the regulatory requirements. Specifically, Sierra Club contended Chem-Nuclear's current disposal methods did not adequately prevent the migration of radioactive particles from the site into the groundwater and other waters surrounding the property. DHEC and Chem-Nuclear maintained the disposal methods were sufficient under the regulatory requirements.

         In 2005, the ALC affirmed DHEC's decision to renew Chem-Nuclear's license, concluding Sierra Club did not present sufficient evidence to warrant reversal of DHEC's renewal of the operating license. However, the ALC found Sierra Club raised legitimate issues and presented evidence suggesting additional studies were needed to investigate the scientific and economic feasibility of employing or implementing designs and operational procedures at the facility that would: (1) shelter the disposal trenches from rainfall and prevent rainfall from entering the trenches; (2) provide temporary dry storage facilities for the storage of waste received during wet conditions; and (3) provide for sealing and grouting the concrete disposal vaults to prevent the intrusion of water to the maximum extent feasible. In order to address these concerns, the ALC ordered Chem-Nuclear to conduct the above-mentioned studies and submit the results to DHEC within 180 days.[3]

         Sierra Club appealed, and the court of appeals affirmed in part and remanded in part. Sierra Club v. S.C. Dep't of Health & Envtl. Control, 387 S.C. 424, 693 S.E.2d 13 (Ct. App. 2010), cert. denied, SC Sup. Ct. Order dated July 21, 2011, (hereinafter, Chem-Nuclear I). The court of appeals affirmed the ALC's findings related to section 7.18 and subsections 7.10.1 through 7.10.4 of Regulation 61-63. Id. at 439, 693 S.E.2d at 20-21. However, the court of appeals held a remand was appropriate because the ALC failed to consider whether Chem-Nuclear's disposal practices were in compliance with sections 7.11, 7.23.6, and 7.10.5 through 7.10.10 of Regulation 61-63. Id. at 439, 693 S.E.2d at 20. Relevant to the matter before us, the court of appeals found section 7.11 "imposes additional compliance requirements for Chem-Nuclear such that the balancing test of ALARA[4] would not be sufficient to address whether Chem-Nuclear is in compliance with section 7.11." Id. at 435, 693 S.E.2d at 19. Importantly, in remanding the matter, the court of appeals instructed the ALC to apply the factual findings set forth in the ALC's 2005 order when addressing these unaddressed sections of Regulation 61-63. Id. at 439, 693 S.E.2d at 20. In effect, this requirement eliminated the ALC's ability to consider not only the study it mandated in its 2005 order, which Chem-Nuclear states it prepared and presented to DHEC, but also any improvements that have been made to the facility since the 2005 order.

         Upon remand in 2012, the ALC applied the factual findings from its 2005 order and issued a new order affirming DHEC's conclusion that Chem-Nuclear complied with the relevant sections of the regulation. Sierra Club appealed the ALC's 2012 remand order, and the court of appeals affirmed in part[5] and reversed in part, finding Chem-Nuclear had not complied with the following four subsections of Regulation 61-63: 7.11.11.1, 7.11.11.2, 7.11.11.4, and 7.10.7. Sierra Club v. S.C. Dep't of Health & Envtl. Control, 414 S.C. 581, 779 S.E.2d 805 (Ct. App. 2015) (hereinafter, Chem-Nuclear II). The court of appeals acknowledged the difficulty the restricted record imposed by Chem-Nuclear I had on Chem-Nuclear's ability to demonstrate recent compliance with certain regulations. Id. at 622, 779 S.E.2d at 826. The court of appeals provided that on remand, "DHEC shall consider all available information as to whether Chem-Nuclear has complied with the regulations." Id. We granted Chem-Nuclear's petition for a writ of certiorari to address several issues regarding the court of appeals' decision.

         II. STANDARD OF REVIEW

         When the court of appeals remanded the matter to the ALC in Chem-Nuclear I, the court of appeals instructed the ALC to apply the ALC's factual findings from the ALC's 2005 order to applicable sections of the regulation. Therefore, we accept the factual findings in the ALC's 2005 order. We review the ALC's 2012 order after remand under the standard of review provided in subsection 1-23-610(B)(d) of the South Carolina Code (Supp. 2018), and may reverse only if the ALC's decision constituted an error of law. See § 1-23-610(B)(d) (providing 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 ...


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