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Court of Appeals Gives DHEC and Chem-Nuclear Ninety Days to Submit Plan for Reducing Nuclear Contamination of Groundwater at Disposal Site

In Sierra Club v. South Carolina Department of Health and Environmetal Control, the South Carolina Court of Appeals gave the South Carolina Department of Health and Environmental Control (“DHEC”) ninety days to submit a plan to bring a nuclear waste disposal facility operated by Chem-Nuclear Systems, LLC (“Chem-Nuclear”) located in Barnwell County into compliance with South Carolina regulations aimed at the prevention of radioactive waste contamination of groundwater at nuclear waste disposal facilities. Sierra Club v. S.C. Dep’t of Health & Envtl. Control, No. 2012-212791, 2014 WL 3734366, at *21 (S.C. Ct. App. July 30, 2014).

The case was an appeal from an administrative law court ruling upholding DHEC’s decision to renew Chem-Nuclear’s license to operate the Barnwell County nuclear waste disposal facility. Id. at *1. The court of appeals held that DHEC failed to comply with “four subsections of the regulation governing [the agency’s] issuance and renewal of such licenses.” Id. (citing 24A S.C. Code Ann. Regs. 61-63, pt. VII (1992 & Supp. 2010); see also id. at *12, *15–16, *20–21. The court expressed “concern[] that DHEC did not follow the law in failing to require Chem-Nuclear to comply with all of the technical requirements of [the regulations].” Id. at *20. The regulations DHEC failed to enforce include requirements to design and construct barriers to minimize the migration of rainwater onto and out of nuclear waste disposal units. See id. at *9 (quoting 24A S.C. Code Ann. Regs. 61–63 § 7.11.11.1–7.11.11.2); see also id. at *9–15. In addition, DHEC failed to require Chem-Nuclear to design and construct its disposal units and barriers in a way that allows for the “temporary collection and retention of water and other liquids for a time sufficient to allow for the detection and removal [of nuclear waste] or other remedial measures without the contamination of groundwater or the surrounding soil.” Id. at *9 (quoting 24A S.C. Code Ann. Regs. 61-63 § 7.11.11.4); see also id. at 15-16. DHEC’s failure to ensure that Chem-Nuclear met these technical requirements was itself a violation of the regulations. See id. at *19 (quoting 24A S.C. Code Ann. Regs. 61-63 § 7.10.7); see also id. at *20.

Because the appellant, Sierra Club, did not seek a revocation of Chem-Nuclear’s license, and sought only an order requiring DHEC to enforce its regulations regarding the prevention of groundwater contamination, the court of appeals ordered DHEC and Chem-Nuclear to submit a written plan for compliance with the applicable regulations within ninety days of the issuance of its opinion. Id. at *21.

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