Sierra Club v. S.C. Dep't of Health & Envtl. Control & Chem-Nuclear Sys., LLC , 426 S.C. 236 ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
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
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from the Administrative Law Court
Ralph King Anderson III, Administrative Law Judge
Opinion No. 27871
Heard April 18, 2018 – Filed March 27, 2019
AFFIRMED AS MODIFIED IN PART, REVERSED
IN PART, AND REMANDED
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.
JUSTICE JAMES: 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 BACKGROUND1
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
1
Our recitation of the facts is limited to the ALC's factual findings in its 2005 order.
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
2
Leachate is defined as "any liquid, including any suspended or dissolved
components in the liquid, that has percolated through or drained from the
[radioactive] material." 10 C.F.R. Pt. 40, App. A (2018).
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, S.C. 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
3
Noting the "undeniable rainfall problem," the ALC explained Chem-Nuclear had
previously considered conceptual designs to keep rainfall out of the trenches, but
Chem-Nuclear never submitted a report to DHEC—despite DHEC's request for a
report in 2001.
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 part5 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.
4
ALARA is an acronym for "as low as is reasonably achievable" and, as used in the
regulation governing radioactive materials, means "making every reasonable effort
to maintain exposures to radiation as far below the dose limits [provided by
regulation] . . . as is practical." S.C. Code Ann. Regs. 61-63 § 3.2.6 (2011). The
ALARA standard takes into account the "state of technology, the economics of
improvements in relation to state of technology, the economics of improvements in
relation to benefits to the public health and safety, and other societal and
socioeconomic considerations, and in relation to utilization of nuclear energy and
licensed materials in the public interest." Id.
5
The court of appeals affirmed the ALC as to Chem-Nuclear's compliance with other
subsections of Regulation 61-63. None of the parties challenge this portion of 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 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)).
III. DISCUSSION
A. Chem-Nuclear's Compliance with Part VII of Regulation 61-63
In designing, building, and operating its Barnwell facility, Chem-Nuclear
must adhere to all procedural requirements, performance objectives, and technical
requirements found in Part VII of Regulation 61-63. Part VII, entitled "Licensing
Requirements for Land Disposal of Radioactive Waste," sets forth the "procedures,
criteria, and terms and conditions upon which [DHEC] issues licenses for the land
disposal of wastes received from other persons." S.C. Code Ann. Regs. 61-63 §
7.1.1 (2011). "The requirements of this part are in addition to, and not in substitution
for, other applicable requirements of these regulations." Id. Part VII "establishes
procedural requirements and performance objectives applicable to any method of
land disposal. It [also] establishes specific technical requirements for near-surface
disposal of radioactive waste which involves disposal in the uppermost portion of
the earth." S.C. Code Ann. Regs. 61-63 § 7.1.3 (2011).
Of course, Chem-Nuclear's appeal to this Court focuses on the court of
appeals' conclusion that it was not in compliance with certain technical requirements
enumerated in Part VII. In pertinent part, subsection 7.11.11 of the South Carolina
Code of State Regulations (2011) provides:
The disposal units and the incorporated engineered
barriers shall be designed and constructed to meet the
following objectives:
7.11.11.1 to minimize the migration of water
onto the disposal units.
7.11.11.2 to minimize the migration of waste or
waste contaminated water out of the disposal units.
7.11.11.4 temporary collection and retention of
water and other liquids for a time sufficient to allow
for the detection and removal or other remedial
measures without the contamination of groundwater
or the surrounding soil.
Subsection 7.10.7 requires DHEC to find Chem-Nuclear "provides reasonable
assurance that the applicable technical requirements of [Part VII] will be met." S.C.
Code Ann. Regs. 61-63 § 7.10.7 (2011). The court of appeals concluded Chem-
Nuclear's compliance with subsection 7.11.11 as a whole could not be measured
solely by results and that consideration must be given as to "whether Chem-Nuclear
took any actions to meet the technical requirements imposed by these subsections,
and if so, the sufficiency of Chem-Nuclear's actions." Chem-Nuclear II, 414 S.C. at
600, 779 S.E.2d at 815.
As to subsection 7.11.11.1, the court of appeals found Chem-Nuclear had not
satisfied the technical requirement of designing and constructing its disposal units
and engineered barriers "to minimize the migration of water onto the disposal units."
Id. at 606, 779 S.E.2d at 818. Regulation 61-63 does not define "minimize." In their
joint brief to the court of appeals, Chem-Nuclear and DHEC presented a definition
of minimize: "to reduce to the smallest possible amount, extent, size, or degree."
The court of appeals accepted this definition, as do we. The court of appeals
interpreted the "migration of water" to include both surface water and rainfall. Id.
at 601, 779 S.E.2d at 815. During oral argument at the court of appeals, DHEC
conceded this point. The court of appeals found the record demonstrated Chem-
Nuclear had not taken any action "to prevent even one raindrop from migrating onto
one active vault or trench." Id. at 606, 779 S.E.2d at 818. The court of appeals also
found that "while initial clay caps and enhanced caps reduce the migration of water
onto inactive disposal units, there is no evidence and no finding by the ALC that
DHEC has required, or that Chem-Nuclear has taken, any action that would reduce
this migration to the smallest possible amount." Id.
As to subsection 7.11.11.2, the court of appeals found Chem-Nuclear had not
satisfied the technical requirement of designing and constructing its disposal units
and engineered barriers "to minimize the migration of . . . waste contaminated water
out of the disposal units."6 Id. at 610, 779 S.E.2d at 820. The court of appeals
acknowledged Chem-Nuclear had taken steps to reduce the migration of waste-
contaminated water out of disposal units; however, the court of appeals noted the
record failed to support a finding that Chem-Nuclear wholly complied with
subsection 7.11.11.2. Id. The court of appeals based its holding on "(1) Chem-
Nuclear's failure to comply with subsection 7.11.11.1, and (2) there being no
evidence, and no finding, that Chem-Nuclear has taken action to 'minimize'—reduce
to the smallest amount possible—the migration of waste-contaminated water out of
disposal units." Id. at 610-11, 779 S.E.2d at 820.
As to subsection 7.11.11.4, the court of appeals similarly found
noncompliance. Id. at 613, 779 S.E.2d at 821-22. The court of appeals concluded
this subsection requires Chem-Nuclear to: "(1) collect and retain water that migrates
onto the disposal units, (2) test this water for radioactive waste material, (3) if such
waste material is discovered, engage in removal or remedial measures, and (4)
accomplish this without contaminating the groundwater or surrounding soil." Id. at
611, 779 S.E.2d at 820. The court of appeals acknowledged Chem-Nuclear follows
a surface water management plan; however, the court of appeals found there was no
evidence in the record that Chem-Nuclear ever tested the water pumped from the
trenches for radioactive waste material. Id. The court of appeals noted the 2005
ALC order found there was no leachate collection system, and the court of appeals
explained such a system would allow Chem-Nuclear to satisfy all of the
requirements of subsection 7.11.11.4. Id. at 612-13, 779 S.E.2d at 821.
The court of appeals also found Chem-Nuclear had not complied with
subsection 7.10.7. Id. at 622, 779 S.E.2d at 826. Subsection 7.10.7 provides as a
condition for issuance of a license that the applicant provide "reasonable assurance
that the applicable technical requirements of [Part VII]" were met. This finding by
the court of appeals was based on its conclusion that Chem-Nuclear had not
demonstrated compliance with the "technical requirements" of subsections
7.11.11.1, 7.11.11.2, and 7.11.11.4. Chem-Nuclear II, 414 S.C. at 617, 779 S.E.2d
at 823.
1. Subsection 7.10.7
6
The court of appeals agreed with the ALC's determination that Chem-Nuclear
minimized the migration of radioactive waste-forms out of the disposal units. Id. at
607, 779 S.E.2d at 818.
Again, subsection 7.10.7 provides as a condition for issuance of a license that
the applicant provide "reasonable assurance that the applicable technical
requirements of [Part VII]" were met. Chem-Nuclear argues the court of appeals
incorrectly concluded section 7.11 sets forth mandatory "technical requirements" for
compliance. Chem-Nuclear claims this conclusion alters Chem-Nuclear I's
designation of section 7.11's requirements as "compliance requirements." Chem-
Nuclear argues, "In concluding [section] 7.11 imposed 'technical requirements'
instead of just 'compliance requirements,' the [c]ourt of [a]ppeals determined these
'newly discovered' requirements necessitated specific action by Chem-Nuclear."
We affirm the court of appeals' conclusion that subsections 7.11.11.1,
7.11.11.2, and 7.11.11.4 are in the category of "technical requirements" Chem-
Nuclear must satisfy as a condition of its license. However, we do not interpret the
court of appeals' decision to mandate any specific action Chem-Nuclear must take
in order to achieve compliance with the requirements of section 7.11. To the extent
the court of appeals' opinion can be interpreted to mandate certain specific actions
in this case, it is modified.
2. Subsection 7.11.11.4
We reverse the court of appeals' holding that Chem-Nuclear failed to comply
with subsection 7.11.11.4. Again, this subsection provides that all disposal units and
engineered barriers must be designed and constructed to allow for the "temporary
collection and retention of water and other liquids for a time sufficient to allow for
the detection and removal or other remedial measures without the contamination of
groundwater or the surrounding soil." Our focus upon this subsection is directed to
the seemingly innocent use of the article "the" before the words "detection and
removal." The ALC concluded this subsection requires the disposal units and
engineered barriers to be designed and constructed to allow for the temporary
collection of water and other liquids so as to allow for the detection and removal of
water and other liquids. The court of appeals held the "plain language" of the
subsection requires disposal units and engineered barriers to be designed and
constructed so as to allow for the detection and removal of radioactive waste
material. The sentence structure of subsection 7.11.11.4 is hardly "plain" and is
awkward at best. That unclear wording necessarily begs the crucial question of
exactly what must be detected and removed. Again, the ALC concluded water and
other liquids must be detected and removed, but the court of appeals concluded
radioactive waste material must be detected and removed.
Subsection 7.11.11.4 contains no specific reference to the detection and
removal of "radioactive waste material," nor does it contain any requirement that the
water and other liquids be tested at that point. The court of appeals erred in reading
those requirements into the subsection. North Carolina has adopted a very similar
set of technical requirements and performance objectives in its statutory scheme
addressing the storage of low-level radioactive waste. See N.C. Gen. Stat. § 104E-
25 (2017). Subsection 104E-25(f)(4) of the General Statutes of North Carolina is
North Carolina's corresponding section to our subsection 7.11.11.4. In pertinent
part, it provides that disposal units and engineered barriers must be designed and
constructed to allow for:
(4) Temporary collection and retention of water and other
liquids for a time sufficient to allow for their detection and
removal or other remedial measures without
contamination of groundwater or surrounding soil.
§ 104E-25(f)(4) (emphasis added). This subsection is, with the exception of the use
of the word "their," essentially identical to our subsection 7.11.11.4.7 The North
Carolina scheme's use of the word "their" confirms the purpose of its subsection
104E-25(f)(4) is to allow for the collection and retention of water and other liquids
for a time sufficient to allow for the detection and removal of water and other liquids.
The ALC interpreted our subsection 7.11.11.4 in this manner, and we agree with this
interpretation. After so concluding, the ALC found that Chem-Nuclear employs a
surface water management plan to manage precipitation collected in trenches, and
water is pumped into adjacent trenches to ensure it does not come into contact with
waste or disposal units. The ALC also found the water may be pumped into an
adjacent lined pond. The ALC further found the trenches are designed to prevent
the flow of surface water from coming into contact with waste. Thus, the ALC
concluded Chem-Nuclear has established the disposal units and engineered barriers
were designed and constructed in compliance with subsection 7.11.11.4. We agree
and therefore reverse the court of appeals' holding as to this subsection.
3. Subsections 7.11.11.1 and 7.11.11.2
We affirm the court of appeals' decision that Chem-Nuclear failed to comply
with subsections 7.11.11.1 and 7.11.11.2. We adopt the court of appeals' reasoning
7
Subsection 104E-25(f)(4) does not include the word "the" before the word
"contamination" and the word "surrounding." However, these omissions do not
affect the clarity of the subsection.
as to these two subsections. However, our affirmation of the court of appeals on this
issue is not to be construed as a mandate that covers be erected over the disposal
units; during proceedings to take place on remand, DHEC shall take all admissible
evidence into account when addressing the question of compliance with these two
subsections.
Subsection 7.11.11.1 provides that disposal units and incorporated engineered
barriers must be designed and constructed to "minimize the migration of water onto
the disposal units." DHEC's counsel conceded during oral argument at the court of
appeals that the phrase "migration of water onto" disposal units includes rainfall.
However, before this Court, DHEC joins Chem-Nuclear's position that the phrase
"migration of water onto" does not include rainfall. We disagree with Chem-Nuclear
and DHEC's position that subsection 7.11.11.1's reference to the "migration of water
onto" includes only surface water and excludes rainfall. The regulation does not
define the phrase "migration of water onto." However, based on the plain meaning
of the words "water" and "onto," we find this phrase includes rainfall and other
precipitation. See Brown v. Bi-Lo, Inc., 354 S.C. 436, 440, 581 S.E.2d 836, 838
(2003) (providing "where . . . the plain language of the statute [or regulation] is
contrary to the agency's interpretation, the Court will reject the agency's
interpretation"). Water can indeed both migrate directly "onto" the disposal units
from the sky as precipitation and migrate into and onto the disposal units as surface
water once it hits the ground.
Chem-Nuclear and DHEC argue the court of appeals improperly interpreted
the term "minimize" in subsections 7.11.11.1 and 7.11.11.2 to mean "prevent."8
Although we agree "minimize" does not mean "prevent," we do not agree with
Chem-Nuclear and DHEC that the court of appeals' opinion requires such
prevention. Nothing in the court of appeals' opinion requires the complete
elimination of the migration of water and waste-contaminated water onto or out of
the disposal units; in fact, the court of appeals stressed, "We do not believe our
opinion can be fairly read to require Chem-Nuclear to prevent all rainfall onto the
disposal units. Rather, the opinion is written to the requirement in subsection
7.11.11.1 that Chem-Nuclear 'minimize' rainfall." Chem-Nuclear II, 414 S.C. at 606
n.14, 779 S.E.2d at 818 n.14. The court of appeals simply applied the definition of
"minimize" provided by Chem-Nuclear and DHEC in their joint brief before the
8
Subsections 7.11.11.1 and 7.11.11.2 of the South Carolina regulation mandate
minimization; however, the corresponding North Carolina statutory provisions
mandate prevention. Compare S.C. Code Ann. Regs. 61-63 § 7.11.11.1-.2 (2011)
with N.C. Gen. Stat. § 104E-25(f)(1)-(2) (2017).
court of appeals—"to reduce to the smallest possible amount, extent, size, or
degree." Id. at 604, 779 S.E.2d at 816. We accept this definition and reiterate that
"minimize" does not mean "prevent."
4. ALARA
Chem-Nuclear also argues the court of appeals significantly enlarged its
original holding in Chem-Nuclear I, in which the court of appeals concluded section
7.11 "imposes 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 with section 7.11." Chem-Nuclear I, 387 S.C. at 435, 693 S.E.2d
at 19. Chem-Nuclear contends the court of appeals has abjectly rejected ALARA
considerations when it considered Chem-Nuclear's disposal operations. In Chem-
Nuclear II, when discussing the minimization requirement mandated in applicable
subsections of 7.11.11, the court of appeals found there was "no inherent
reasonableness or practicability consideration involved in analyzing Chem-Nuclear's
compliance." Chem-Nuclear II, 414 S.C. at 604 n.13, 779 S.E.2d at 816 n.13.
Additionally, the court of appeals stated, "In determining compliance with the
technical requirements of subsection 7.11.11.4, however, we consider the actions
taken by Chem-Nuclear to comply, not the reasons why it decided not to implement
a certain measure based on its own ALARA analysis." Id. at 613 n.18, 779 S.E.2d
at 821 n.18. Perhaps, such language could be interpreted to eliminate an ALARA
analysis in determining what actions must be taken to comply with the technical
requirements of the regulation.
We therefore modify the court of appeals' opinion insofar as these statements
or any other such language in the opinion suggest ALARA is eliminated from an
analysis of compliance with the technical requirements of the regulation. Although
compliance with ALARA alone is insufficient (as previously held by the court of
appeals in Chem-Nuclear I), we reject any interpretation by which ALARA is totally
divorced from the technical requirements. We repeat: when determining what
approach(es) Chem-Nuclear must take to achieve compliance with any given
technical requirement, DHEC must take ALARA into account, but DHEC shall not
rely upon ALARA as the sole basis for compliance with the technical requirement.
Chem-Nuclear's desire for our review of the court of appeals' decision is partly
centered on the health and safety of its workers, and we understand this concern.
Indeed, subsection 7.20, entitled "Protection of Individuals During Operations,"
provides in pertinent part, "Every reasonable effort should be made to maintain
radiation exposures as low as is reasonably achievable." S.C. Code Ann. Regs. 61-
63 § 7.20 (2011). However, there is a parallel concern regarding the public's and the
environment's exposure to radioactive waste. Subsection 7.18, entitled "Protection
of the General Population from Releases of Radioactivity," provides in pertinent
part, "Reasonable effort should be made to maintain releases of radioactivity in
effluents to the general environment as low as is reasonably achievable." S.C. Code
Ann. Regs. 61-63 § 7.18 (2011). Therefore, when reviewing Chem-Nuclear's actions
to meet the requirements of the regulations, DHEC must review the technical
feasibility of certain actions, weigh the consequences of requiring such actions, and
evaluate such actions in the context of other applicable regulatory requirements for
environmental and worker safety. Such an approach would allow for DHEC's
consideration of ALARA in determining whether Chem-Nuclear has complied with
the requirements of subsections 7.11.11.1 and 7.11.11.2.
Chem-Nuclear cannot rely upon its compliance with other result-based
portions of the regulations to excuse noncompliance with the requirements of
subsection 7.11.11. See S.C. Code Ann. Regs. 61-63 § 7.1.1 (2011) ("The
requirements of this part are in addition to, and not in substitution for, other
applicable requirements of these regulations."). However, evidence that establishes
compliance with such result-based regulations may well be relevant to the issue of
compliance with the requirements of subsection 7.11.11. The technical requirements
in 7.11.11 must be read in conjunction with the performance objectives. The
requirements of 7.11.11 are indeed designed to help meet certain performance
objectives; however, the requirements in 7.11.11 are not to be ignored after
performance objectives are satisfied. If mere compliance with performance
objectives were sufficient to demonstrate compliance with other sections of the
regulations—such as these technical requirements—then these other sections of the
regulations would become unnecessary and superfluous. See Duvall v. S.C. Budget
& Control Bd., 377 S.C. 36, 42, 659 S.E.2d 125, 128 (2008) ("The Court must
presume the Legislature intended its statutes to accomplish something and did not
intend a futile act."); State v. Sweat, 386 S.C. 339, 351, 688 S.E.2d 569, 575 (2010)
("A statute should be so construed that no word, clause, sentence, provision or part
shall be rendered surplusage, or superfluous." (quoting In re Decker, 322 S.C. 215,
219, 471 S.E.2d 462, 463 (1995))).
B. Deference to DHEC
Chem-Nuclear and DHEC argue that the court of appeals erred by not giving
deference to DHEC's interpretations of the requirements under section 7.11 since
DHEC has the technical expertise to balance the different competing considerations
that the judiciary may lack. Both contend deference should have been given in
interpreting and applying the multiple, intertwined sections contained in Regulation
61-63.
"[T]he Court generally gives deference to an administrative agency's
interpretation of an applicable statute or its own regulation." Brown, 354 S.C. at
440, 581 S.E.2d at 838. "If the statute or regulation is silent or ambiguous with
respect to the specific issue, the court then must give deference to the agency's
interpretation of the statute or regulation, assuming the interpretation is worthy of
deference." Kiawah Dev. Partners, II v. S.C. Dep't of Health & Envtl. Control, 411
S.C. 16, 33, 766 S.E.2d 707, 717 (2014) (internal quotation marks and citations
omitted). "Nevertheless, where . . . the plain language of the statute [or regulation]
is contrary to the agency's interpretation, the Court will reject the agency's
interpretation." Brown, 354 S.C. at 440, 581 S.E.2d at 838. Therefore, in summary,
"We defer to an agency interpretation unless it is 'arbitrary, capricious, or manifestly
contrary to the statute [or regulation].'" Kiawah, 411 S.C. at 34-35, 766 S.E.2d at
718 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844
(1984)). We believe we have given due deference to DHEC's interpretation of the
applicable regulations.
On a more specific point, as noted above, at oral argument before the court of
appeals, DHEC conceded the phrase "migration of water onto" included rainfall.
Now, DHEC urges us to adopt Chem-Nuclear's interpretation that the phrase
includes only surface water. Certainly, we are not required to give deference to an
agency's interpretation of a regulation when that very interpretation has changed
within the same litigation. Whatever the case, we do not give deference to DHEC's
current interpretation, as it runs afoul of what we conclude is the clear meaning of
the phrase.
C. Burden of Proof
Chem-Nuclear and DHEC argue the court of appeals improperly shifted the
burden of proof away from Sierra Club when concluding Chem-Nuclear was not in
compliance with DHEC's regulations. Chem-Nuclear and DHEC assert the court of
appeals shifted focus from whether Sierra Club demonstrated by a preponderance of
the evidence that Chem-Nuclear failed to comply with subsections 7.11.11.1,
7.11.11.2, 7.11.11.4, and 7.10.7, to whether Chem-Nuclear had demonstrated
compliance with the regulations. Chem-Nuclear and DHEC argue that by
demanding a demonstration of affirmative actions by Chem-Nuclear and DHEC to
show compliance with the court of appeals' interpretation of the regulations and in
presuming a lack of specific findings in the ALC's 2005 record demonstrates a
failure to comply with this interpretation, the burden is impermissibly shifted to
Chem-Nuclear and DHEC. We disagree.
The standard of proof in an administrative hearing of a contested case is by a
preponderance of the evidence. See S.C. Code Ann. § 1-23-600(A)(5) (Supp. 2018)
("Unless otherwise provided by statute, the standard of proof in a contested case is
by a preponderance of the evidence."). "In general, the party asserting the
affirmative issue in an adjudicatory administrative proceeding has the burden of
proof." DIRECTV, Inc. & Subsidiaries v. S.C. Dep't of Revenue, 421 S.C. 59, 78,
804 S.E.2d 633, 643 (Ct. App. 2017). Additionally, "the burden is on appellants to
prove convincingly that the agency's decision is unsupported by the evidence."
Waters v. S.C. Land Res. Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913,
917 (1996).
Here, Sierra Club undoubtedly bore the burden of proof before the ALC
because it was challenging DHEC's decision to renew Chem-Nuclear's operating
license. Additionally, the burden remained with Sierra Club as it was the appellant
before the court of appeals. With that in mind, we find the burden of proof was not
improperly shifted from Sierra Club to Chem-Nuclear and DHEC during the court
of appeals' review of the ALC's 2012 order.
Importantly, in Chem-Nuclear I, the court of appeals explicitly constrained
the ALC from making any new findings of fact on remand. 387 S.C. at 438-39, 693
S.E.2d at 20. This Court denied Chem-Nuclear's petition for a writ of certiorari to
review the court of appeals' decision in Chem-Nuclear I. Therefore, on remand, the
ALC was required to apply the detailed findings of fact from its 2005 order and reach
new conclusions of law regarding the unaddressed regulatory provisions. The ALC's
2012 order concluded, "[Sierra Club] has failed to carry [its] burden, as this Court
finds and concludes that the factual findings in the 2005 Decision, when applied to
[the regulations] demonstrate that the Barnwell Facility is compliant with these
regulations and that the renewal of [Chem-Nuclear's license] was proper." In Chem-
Nuclear II, the court of appeals also recognized its confinement to the findings of
fact from the ALC's 2005 order and concluded the ALC erred in finding Chem-
Nuclear's compliance with certain regulations were supported by the evidence in the
record. 414 S.C. at 622, 779 S.E.2d at 826.
Before the ALC in 2005, Sierra Club presented evidence detailing the current
disposal methods implemented by Chem-Nuclear and presented evidence regarding
the issue of rainwater falling onto the disposal units. Sierra Club introduced
evidence that the active disposal units were specifically designed to allow water to
flow into and out of them. Indeed, the ALC in 2005 recognized the "undeniable
rainfall problem" based on the evidence in the record and ordered Chem-Nuclear to
conduct further studies regarding ways to address the "legitimate issues" and
"evidence" presented by Sierra Club.
Although Sierra Club undoubtedly bore the burden of proving its case, Chem-
Nuclear nevertheless bore an overarching burden to satisfy the regulatory
requirements necessary for Chem-Nuclear to earn its license. We do not read the
court of appeals' conclusion that there was no evidence to show Chem-Nuclear's
compliance with subsections 7.11.11.1 and 7.11.11.2 to be an impermissible shift in
the burden of proof. The court of appeals applied the facts established at the hearing
to the legal requirements set forth in the regulations and concluded substantial
evidence did not support the ALC's findings as to subsections 7.10.7, 7.11.11.1, and
7.11.11.2.
D. Feasibility Report
Chem-Nuclear argues the court of appeals misapprehended or overlooked its
compliance with the ALC's directive in its 2005 order to conduct further studies to
address concerns regarding the reduction of contact between rainfall and waste.
Chem-Nuclear contends that while the court of appeals acknowledged the existence
of the report, it incorrectly concluded the report required it to take further affirmative
action. Chem-Nuclear asserts the report's findings demonstrate it conducted an
ALARA analysis and determined the benefits of certain proposed rainfall mitigation
designs did not outweigh the hazards to workers that would result if the designs were
implemented.
Through no fault of Chem-Nuclear, the details of the report's findings are not
part of the record on appeal. See Rule 210(h), SCACR ("[T]he appellate court will
not consider any fact which does not appear in the Record on Appeal."). Therefore,
this Court will not address the impact of these findings. Throughout the procedural
history of this case, Chem-Nuclear attempted—to no avail—to supplement the
record on appeal with the report. We acknowledge the report's findings may have
been helpful to Chem-Nuclear in making its compliance arguments; however, the
court of appeals' remand instructions in Chem-Nuclear I were specific and limiting,
and the remand instructions from the court of appeals in Chem-Nuclear II will now
allow Chem-Nuclear to supplement the record before DHEC without any
limitations. We are aware Chem-Nuclear and DHEC have continued to refine and
improve disposal practices and have made technological improvements at the
Barnwell facility since the ALC's 2005 factual findings. The record upon remand
will be open, and Chem-Nuclear will be able to present evidence of actions it has
taken to address its compliance with 7.10.7, 7.11.11.1, and 7.11.11.2.
The ALC's 2012 order states Chem-Nuclear conducted the studies required by
the 2005 ALC order and that DHEC "concurred with the report's evaluation of the
issues." In Chem-Nuclear II, the court of appeals expressed concern regarding
DHEC's failure to amend the requirements for issuance of Chem-Nuclear's license
following the ALC's instructions in its 2005 order for Chem-Nuclear to evaluate
these concerns and submit the report to DHEC. 414 S.C. at 621, 779 S.E.2d at 825.
The court of appeals noted "the fact that DHEC did not require Chem-Nuclear to
take any action or make any changes to its disposal practices casts doubt upon
DHEC's decision to renew the license." Id. at 621, 779 S.E.2d at 826. However, the
court of appeals stated "[t]he propriety of DHEC's decision to 'concur[] with the
report's evaluation of these issues' is not before this court, and we do not base our
holding on the merits of that decision." Id. at 621, 779 S.E.2d at 825 (alteration in
original) (emphasis added).
We likewise do not base our holding regarding Chem-Nuclear's compliance
with the applicable sections of the regulations on the fact that DHEC chose not to
amend the license requirements in light of the ALC's request for further studies in
its 2005 order. We agree with Chem-Nuclear that the ALC's 2005 order did not
mandate additional compliance requirements for Chem-Nuclear above and beyond
its duty to evaluate the ALC's concerns and submit its findings to DHEC.
Nevertheless, it was not reversible error for the court of appeals to comment on
DHEC's decision to choose not to amend Chem-Nuclear's license based upon the
ALC's 2005 request for further evaluations to be conducted.
E. The Facility's Natural Physical Attributes
Chem-Nuclear contends the specific natural physical attributes of the
facility—groundwater pathways and travel time—clearly contribute positively to a
reduction in the radiation and ensure site performance and compliance. Therefore,
Chem-Nuclear argues the court of appeals erred by not considering the facility's
natural physical attributes, analyzed under section 7.7, when concluding it was
noncompliant with subsections 7.11.11.1 and 7.11.11.2. We disagree.
Section 7.7, entitled "Technical Analyses," provides "[t]he specific technical
information shall also include the following analyses needed to demonstrate that the
performance objectives of this part will be met." S.C. Code Ann. Regs. 61-63 § 7.7
(2011). Subsection 7.7.1 states:
Pathways analyzed in demonstrating protection of the
general population from releases of radioactivity shall
include air, soil, groundwater, surface water, plant uptake,
and exhumation by burrowing animals. The analyses shall
clearly identify and differentiate between the roles
performed by the natural disposal site characteristics and
design features in isolating and segregating the wastes.
The analyses shall clearly demonstrate that there is
reasonable assurance that the exposures to humans from
the release of radioactivity will not exceed the limits set
forth in 7.18.
S.C. Code Ann. Regs. 61-63 § 7.7.1 (2011).
The court of appeals did not err in failing to consider the natural attributes of
the facility when concluding Chem-Nuclear was noncompliant with subsections
7.11.11.1 and 7.11.11.2. Although the natural attributes of the facility may assist in
a demonstration that there is reasonable assurance the exposure to humans from the
release of radioactivity from the disposed waste will not exceed the regulatory limits,
it is not a factor that excuses noncompliance from the requirements of subsections
7.11.11.1 and 7.11.11.2. Importantly, the natural physical aspects of the facility are
only relevant after water has been in contact with waste and has migrated out of the
disposal units. These aspects are irrelevant to the question of whether Chem-Nuclear
satisfied the provisions of 7.11.11.1 and 7.11.11.2, which require Chem-Nuclear to
minimize (1) the migration of water onto the disposal units and (2) the migration of
waste or waste-contaminated water out of the disposal units.
IV. CONCLUSION
We affirm the court of appeals' conclusion that Chem-Nuclear has not yet
demonstrated compliance with subsections 7.10.7, 7.11.11.1, and 7.11.11.2.
However, we modify the court of appeals' opinion to the extent it can be read to (1)
mandate what specific actions must be taken in accomplishing the technical
requirements of Part VII and (2) completely ignore the concept of ALARA when
Chem-Nuclear takes direct action to satisfy the technical requirements of Part VII.
As we noted above, upon remand to DHEC, there will be no limitations to the record,
and Chem-Nuclear will be free to introduce any additional actions it has taken to
conform to the requirements of the regulations. In the event of an appeal to the ALC,
the ALC may conduct its proceedings with no limitations from this Court on the
evidence it may consider. We reverse the court of appeals' conclusion that Chem-
Nuclear is noncompliant with subsection 7.11.11.4.
AFFIRMED AS MODIFIED IN PART, REVERSED IN PART, and
REMANDED.
BEATTY, C.J., KITTREDGE, J., and Acting Justices Paul E. Short and D.
Garrison Hill, concur.