Surcharge on Users of Barnwell Facility

Subject:

 

Requested By: Tenney I. Deane, Jr., Executive Director, North Carolina Low-Level Radioactive Waste Management Authority

 

Questions: (1)

Does the State of South Carolina have the legal authority to impose a surcharge on the southeast generators using the Barnwell facility and to transfer these funds to the Southeast Compact Commission ("Commission")?

(2)

Does the Commission have the legal authority to use these funds to provide financial assistance for the prelicensing activities of the second regional disposal facility in North Carolina?

Conclusions: (1)

Yes.

(2)

Yes.

Authority to Impose a Surcharge

The Southeast Interstate Low-Level Radioactive Waste Management Compact is found in Chapter 104F of the General Statutes of North Carolina. Pursuant to Article IV(h)(2)a. of the Compact,

[e]ach state hosting a regional disposal facility shall annually levy special fees or surcharges on all users of such facility, based upon the volume of wastes disposed of at such facilities, the total of which [among other things]:

a. Shall be sufficient to cover the annual budget of the Commission;. . . .

A "host state" is defined as "any state in which a regional facility is situated or is being developed." N.C.G.S. 104F-1, Art. II(e). A "regional facility" is defined in pertinent part as "the disposal facility in Barnwell, South Carolina, owned by the State of South Carolina and as licensed for the burial of low-level radioactive waste on July 1, 1982. . . ." N.C.G.S. 104F-1, Art. II(j)(2).

Under the Compact provisions, the State of South Carolina is a host state because the regional disposal facility at Barnwell is in South Carolina. The Compact provisions authorize South Carolina, as a host state, to levy surcharges on all users of the Barnwell facility which are sufficient to cover the annual budget of the Commission. See, N.C.G.S. 104F-1, Art. IV(h)(2)a.

Furthermore, under South Carolina law, there is a specific statutory provision, in addition to the Compact provision, which authorizes South Carolina to levy surcharges on generators using the Barnwell facility. Pursuant to S.C. Code Annot. Section 13-7-30(6), the South Carolina Budget and Control Board has the following specific power:

[i]n accordance with Section 48-47-100(2), [to] impose, collect, and disburse special fees or surcharges on all users of any regional disposal facility to provide for annual funding of the Southeast Low-Level Radioactive Waste Compact Commission. . . .

It is noted that the language contained in Section 48-47-100(2) of the South Carolina Code is the same as that found in Article IV(h)(2) of the Compact; that provision has been discussed earlier in this opinion.

Thus, as to the first question, it is concluded that the State of South Carolina has the legal authority to levy a surcharge on the Southeast generators using the Barnwell facility, especially since South Carolina has the authority to levy surcharges on all users of the Barnwell facility. However, pursuant to the Compact provisions and other provisions of South Carolina law, the surcharge can only be levied to fund the annual budget of the Commission.

Commission Financial Assistance for Prelicensing Activities of Second Regional Disposal Facility

There is no provision in the Compact which specifically authorizes the Commission to provide funding for the prelicensing activities of the second regional disposal facility. Pursuant to Article IV(k) of the Compact, the Commission is not responsible for any of the costs associated with a regional facility. Article IV(k) provides that

[t]he Commission shall not be responsible for any costs associated with (1) the creation of any facility, (2) the operation of any facility, (3) the stabilization and closure of any facility, (4) the post-closure observation, and maintenance of any facility, or (5) the extended institutional control, after post-closure observation and maintenance of any facility. N.C.G.S. 104F-1, Art. IV(k).

However, neither the above-referenced provision, nor any other provision in the Compact specifically prohibits the Commission from funding the prelicensing activities of the second regional disposal facility. Under Article IV(j) of the Compact, the Commission is authorized to accept, among other things, grants of money for any of its purposes and functions. The stated policy of the Commission in Article I of the Compact includes providing "sufficient facilities for the proper management of low-level radioactive waste generated in the region . . . [and]. . . . [distributing] the costs, benefits and obligations of successful low-level radioactive waste management equitably among the party states. . . ." See, N.C.G.S. 104F-1, Art. I.

Moreover, under Article IV(e)(6) of the Compact, the Commission has the duty to "seek to ensure that [the second regional disposal] facility is licensed and ready to operate as soon as is required. . . ." See, N.C.G.S. 104F-1, Art. IV(e)(6). Providing funding for the prelicensing activities of the North Carolina facility is a means for the Commission to carry out this duty.

Furthermore, while Article IV(k) provides that the Commission is not responsible for the costs associated with any regional facility, this provision does not prohibit the Commission from funding the prelicensing activities of the second regional disposal facility should the Commission choose to do so in its discretion.

From our review of Chapter 104F, it is the opinion of this office that neither Congress nor the Compact intended to forbid the Commission from receiving or using funds for the purposes set forth in this opinion. A contrary result would clearly not be in the best interest of the Compact, or the State of North Carolina.

Thus, in response to the second question, this office concludes that there is legal authority for the Commission to ensure that the second regional facility is licensed and ready to operate, and in order to fulfil this duty, the Commission has the implied authority to provide the funding for this purpose, should it so choose. To conclude otherwise would not only frustrate the policy of the Compact as set forth above but violate the rule of statutory construction that the legislature is presumed to have acted "in accordance with reason and common sense and did not intend untoward results." Commissioner of Insurance v. Automobile Rate Administrative Office, 294

N.C. 60, 68, 239 S.E.2d 48 (1978).

LACY H. THORNBURG Attorney General

Kathryn Jones Cooper Assistant Attorney General