FORMAL OPINION DATE: March 31, 1993
RE: Low-Level Radioactive Waste Disposal Facility; Requirement in N.C. GEN. STAT. § 104F1 and Pub. L. No. 101-171 that State Be Prepared to Accept up to 32 Million Cubic Feet for Disposal; Effect upon License for Disposal Facility Sought pursuant to N.C. GEN. STAT. §§ 104E-10, 104E-10.1, 104G-11
Requested by: Raymond L. Murray, Ph.D., Chairman, North Carolina Low-Level Radioactive Waste Management Authority
Issued by: Administrative Division, Health and Public Assistance Section
Question: Does the requirement expressed in North Carolina and federal law that North Carolina be prepared to accept a maximum volume of 32 million cubic feet of low-level radioactive waste for disposal at a prospective regional facility in North Carolina preclude the specification of a lesser amount in the application for a license to operate the facility?
Conclusion: No.
Legal Background
As an "Agreement State" under the Atomic Energy Act, see Agreement between the Atomic Energy Commission and the State of North Carolina, 29 Fed. Reg. 10619 (1964), 42 U.S.C. § 2021, N.C. GEN. STAT. § 104G-10(a), North Carolina regulates most uses of radioactivity in the State under rules promulgated by the Radiation Protection Commission and enforced by the Division of Radiation Protection of the Department of Environment, Health and Natural Resources.
This regulation extends to the disposal of low-level radioactive waste ("LLRW"). LLRW is defined in 42 U.S.C. § 2021b as radioactive waste that is "not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or by product material" in other statutes, and defined compatibly in State law in N.C. GEN. STAT. §§ 104E-5(9a) and 104G-2(5). North Carolina regulations for the disposal of LLRW are found at 15A NC ADMIN CODE 11 .1200.
In 1980, upon the request of the National Governor’s Association for a State-based solution to the problem of safely disposing of the nation’s LLRW, Congress passed the Low-Level Radioactive Waste Policy Act, Pub. L. No. 96-573, 94 Stat. 3347 (1980). In this measure, each State was made responsible for disposal capacity for all LLRW generated within its borders, but the States were encouraged to enter into compacts to provide for regional solutions. As an incentive, compacts were given federal statutory authority to prohibit the importation of non-compact LLRW, a power apparently not constitutionally available to individual States under the rationale of Philadelphia v. New Jersey, 437 U.S. 617 (1978), and its progeny.
Congress revisited the LLRW issue in the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. No. 99-240, 99 Stat. 1842 (1986). The Amendments established a complex set of schedule milestones and penalties for States not complying with them. The most draconian of these, requiring noncomplying States to assume title to and liability for all LLRW within their borders by 1996, was held unconstitutional in New York v. United States, ___ U.S. ___, 112 S.Ct. 2408 (1992). Otherwise, the amended Low-Level Radioactive Waste Policy Act has passed constitutional scrutiny, including, at least inferentially, its continued permission for compacting States to restrict interstate commerce in LLRW.
North Carolina and the Southeast Compact
North Carolina joined with Alabama, Florida, Georgia, Mississippi, South Carolina, Tennessee, and Virginia to form the Southeast Interstate Low-Level Radioactive Waste Management Compact in 1983. The terms of the Compact have been codified in N.C. GEN. STAT. § 104F-1. In early 1986, consistent with Article I, section 10, clause 3 of the United States Constitution, Congress explicitly consented to the provisions of the Southeast Compact in the Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, Pub. L. No. 99-240, 99 Stat. 1842, 1871 (1986). Among these provisions is the Compact’s requirement for a super-majority -including the votes of both of the host State’s commissioners — to authorize the importation of any LLRW into the Southeastern region for disposal. N.C. GEN. STAT. § 104F-1, Art. IV(e)(9).
Later in 1986, the Southeast Compact Commission chose North Carolina as the Compact’s second host State. A Southeast Compact host State’s responsibilities are not unlimited. It must serve in that capacity for a maximum of twenty years or until it disposes of 32 million cubic feet of waste, whichever may come first. N.C. GEN. STAT. § 104F-1, Art. V(e). In April 1990 North Carolina’s two Southeast Compact Commissioners certified that all other member States had enacted identical limitations. The limitations were consented to by Congress in the Southeast Interstate Low-Level Radioactive Waste Compact Amendments Consent Act of 1989, Pub. L. No. 101-171, 103 Stat. 1289 (1989). After serving as the region’s host State, a State may not become the region’s host State again until every other Compact State has taken a turn hosting a regional facility. N.C. GEN. STAT. § 104F-1, Art. V(a).
This Office has previously opined that the Southeast Compact may lawfully fund prelicensing development of the North Carolina facility through South Carolina’s imposition of surcharges upon the region’s generators of LLRW. 59 N.C.A.G. 40 (1989).
North Carolina’s Prospective LLRW Disposal Facility
Consistent with its responsibilities as the Compact’s second host State, North Carolina enacted the Low-Level Radioactive Waste Management Authority Act of 1987, codified as Chapter 104G of the General Statutes, creating the Authority and directing it to site a LLRW disposal facility in North Carolina as an urgent matter in the interest of the State’s continued economic growth and of public health and the environment. A private company may operate the eventual disposal facility as the State’s agent, N.C. GEN. STAT. § 104G-10(a), but must do so under the regulations of the Radiation Protection Commission, N.C. GEN. STAT. §§ 104E-7(a)(2), (8), under a license issued by the Division of Radiation Protection, N.C. GEN. STAT. §§ 104E-10, 10.1, and under the executive direction of the Authority, N.C. GEN. STAT. § 104G-6. In July 1989, the Authority contracted with Chem-Nuclear Systems, Inc. (CNSI), as the prospective facility operator.
CNSI must submit a license application specifying the amount of LLRW to be disposed of, 15A NC ADMIN CODE 11 .1205(a)(3)(C), and many of the technical data, calculations, and designs required in the license application are affected by the estimated volume of LLRW to be received for disposal. The license, once issued, may be amended to meet changed conditions. Id. .1216. Although the facility is expected to operate for twenty years, the license will be issued for only five years, Id. .1215(k), after which it may be renewed. Id. .1217.
Action by Low-Level Authority Further Restricting Waste Volume
On 27 January 1993, based upon regional waste projections it received from CNSI for the entire expected period of disposal facility operation in North Carolina, and allowing a substantial margin for error in the projections, the Authority directed CNSI to prepare a license application for the disposal of a maximum of only 11 million cubic feet of LLRW. The Authority expressly conditioned this direction upon a satisfactory legal review by this Office.
CNSI anticipates submitting an application for a license to operate a regional LLRW disposal facility in North Carolina by the end of 1993.
Analysis
While the Southeast Compact obligates North Carolina as a host State to accept a maximum of 32 million cubic feet of LLRW for disposal, neither federal nor State statutes require the Department of Environment, Health and Natural Resources to permit the disposal of this maximum waste burden in the initial license it grants, nor do they require the Authority and its contractor to seek a license for the maximum amount in the initial license application.
State regulations do not require the inclusion of all legally acceptable waste volume in the license application. On the contrary, provisions for applying for license modification and the requirement to apply to renew the license every five years would indicate an ability to adjust the quantum of waste volume, should conditions warrant such adjustment.
The Authority took its 27 January 1993 action limiting the LLRW volume to be specified in the license application to 11 million cubic feet after receiving volume projections from experts in the LLRW field and upon due deliberation, and in doing so allowed a judicious margin for error in the projections. If the experts’ volume projections are even approximately correct, it is extremely unlikely that actual regional waste received during the facility’s twenty years of operation will exceed the 11 million cubic feet to be specified in the initial license application. Conservative licensing in North Carolina, moreover, discourages States beyond the Southeast Compact from neglecting their own duty to provide for LLRW disposal capacity — a goal in thorough conformity with the Low-Level Radioactive Waste Policy Act, as amended, and its purposes.
To license at the outset, on the other hand, a North Carolina LLRW disposal facility for an unreasonably large volume greater than 11 million cubic feet might unnecessarily increase the facility start-up costs of land acquisition and infrastructure relocation, to say nothing of unnecessarily increasing the social costs of population relocation if residences, farms, and small businesses exist within the additional land needed.
North Carolina, as a Southeast Compact host State, is lawfully empowered to prevent the disposal of out-of-Compact waste at the State’s future facility, and thereby to exercise substantial control over the volume of waste to be accepted during the course of the facility’s operation. Limiting the volume of waste specified in the license application to a volume consistent with purely regional projections would be consonant with the exercise of that power.
MICHAEL F. EASLEY Attorney General
Terry Richard Kane
Special Deputy Attorney General