779 S.E.2d 805
S.C. Ct. App.2014Background
- Chem-Nuclear operates a low-level waste disposal facility in Barnwell County under DHEC license renewed in 2004.
- ALC upheld renewal but remanded for consideration of additional subsections of Regulation 61-63 Part VII.
- Court previously addressed subsections 7.10.1–7.10.4, 7.18, and some 7.10.5–7.10.10 in Chem-Nuclear I; remand ordered for 7.11, 7.23.6, and 7.10.5–7.10.10.
- 2005 ALC order required studies addressing rainfall-related groundwater contamination and methods to reduce water contact with waste.
- Blue Ribbon Panel reviewed ERPV predictions and concluded minimal long-term risk; DHEC relied on ERPV and panel conclusions in renewal decision.
- Court on remand accepts only 2005 order findings for analysis; focuses on compliance with remaining subsections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chem-Nuclear complied with 7.11.11.1 on rainfall migration | Chem-Nuclear failed to minimize rainfall onto disposal units | ALC relied on interim measures and results; noncompliance not shown | ALC erred; Chem-Nuclear did not comply |
| Whether Chem-Nuclear complied with 7.11.11.2 on waste-contaminated water migration | Actions reduced waste-contaminated water migration, per 5 order | Compliance permitted by results-focused evidence; broad ALARA tests apply | ALC erred; noncompliance found |
| Whether Chem-Nuclear complied with 7.11.11.4 on temporary collection and retention of water | Disposal design allowed collection/retention; records support compliance | No evidence of testing/retention measures; leachate system lacking | ALC erred; noncompliance found |
| Whether Chem-Nuclear complied with 7.10.7 regarding reasonable assurance of meeting technical requirements | Performance objectives suffice to show assurance | Technical requirements require action beyond ALARA results | ALC erred; failure to take required actions undermines assurance |
Key Cases Cited
- Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573 (Ct.App. 2004) (ALC as fact-finder; substantial evidence standard)
- Chem-Nuclear Systems, LLC v. S.C. Dep’t of Health & Envtl. Control, 387 S.C. 424 (Ct.App. 2010) (Chem-Nuclear I; remand for applying findings to additional sections of Reg. 61-63)
- S.C. Coastal Conservation League v. S.C. Dep’t of Health & Envtl. Control, 390 S.C. 418 (2010) (regulatory enforcement context; regulation has force of law)
- S.C. Dept. of Revenue v. Blue Moon of Newberry, Inc., 397 S.C. 256 (2012) (statutory/regulatory interpretation; de novo review of law)