South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Court rules against Barnwell nuclear waste dump
July 31st, 2014

"In a sharp rebuke to state regulators, the S.C. Court of Appeals said it wants a plan within 90 days on how the landfill’s operator and the state’s environmental department will begin following rules to limit radioactive pollution after years of non-compliance."

South Carolina’s second-highest court took steps Wednesday that could plug leaks from a nuclear waste dump where radioactive groundwater is flowing toward the Savannah River near Barnwell.

In a sharp rebuke to state regulators, the S.C. Court of Appeals said it wants a plan within 90 days on how the landfill’s operator and the state’s environmental department will begin following rules to limit radioactive pollution after years of non-compliance.

The plan is expected to assess how to keep rain from drenching the atomic waste, picking up contaminants and trickling into groundwater beneath unlined burial trenches. Environmentalists who sued for improved disposal methods favor covering open burial pits when it rains and plugging holes in concrete vaults that contain waste in the trenches.

At a hearing last winter, the court questioned why site operator Chem-Nuclear had not covered the open trenches to keep waste dry. The court said Wednesday that Chem-Nuclear and state regulators had done little to address the problem.

“It’s about time they start doing things better down there,’’ said an elated Sierra Club attorney Amy Armstrong, who heads the S.C. Environmental Law Project, a non-profit legal group that has been fighting for improvements.

Energy Solutions, the parent company of Chem-Nuclear, has not decided whether to appeal the Court of Appeals ruling, spokesman Mark Walker said.

Wednesday’s decision, a major victory for conservationists after nearly a decade in court, criticized the S.C. Department of Health and Environmental Control for not obeying some of its own pollution rules and failing to hold Chem-Nuclear accountable for conditions that contributed to radiation leaks.

“We are concerned that DHEC did not follow the law in failing to require Chem-Nuclear to comply with’’ requirements that, among other things, limit releases of waste-polluted water from the dump, the court said.

Radioactive contamination has been detected in groundwater beneath the 43-year-old landfill for most of its existence. Much of the pollution is tritium, although a handful of other toxins have been detected. Tritium-polluted groundwater has seeped into a creek that drains toward the Savannah River and not far from a small neighborhood. Past tests have not found unsafe pollution levels in the river or private wells.

The Barnwell County landfill accepts low-level atomic waste from South Carolina, New Jersey and Connecticut, states that have a compact to use the 235-acre, South Carolina-owned site for disposal of old reactor parts and other nuclear refuse. The landfill once took waste from across the country and, at one time, was one of just two operating nationally. But former Gov. Jim Hodges limited the landfill’s use to three states by helping establish the Atlantic Compact. The site closed to all but the three states in 2008.

Wednesday’s appeals court decision overturns key parts of a 2005 lower court ruling that upheld a DHEC permit for the site. The ruling does not say that Chem-Nuclear will lose its permit, but it does focus on better disposal practices.

The decision questioned why DHEC had issued the new operating license for Chem-Nuclear without demanding tougher ways of managing the low-level nuclear waste.

“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,’’ the court said.

Armstrong said the ruling won’t resolve historic leaks at the site, but will prevent new leaks from occurring. Eventually, that could slow the flow of atomic waste trickling into groundwater, environmentalists say.

Susan Corbett, an official with the state Sierra Club, said Chem-Nuclear’s landfill is an example of why the public should hold agencies and corporations accountable.

“We must do a better job of dealing with this waste,’’ she said. “We can’t trust corporations or even our own government agencies to protect us. We as citizens have to be vigilant and make sure the rules are actually being followed and the best practices are being practiced.’’

DHEC spokesman Mark Plowden declined comment on the ruling, saying his agency just received the decision “and we are still in the process of reviewing its contents.’’

Energy Solutions spokesman Walker said the company, headquartered in Utah, was committed to safety.

“Barnwell is important to the nuclear industry, particularly to the compact that it is a part of,’’ Walker said. “It is important to be able to safely manage and dispose of that waste sent to Barnwell, and that is what we’re committed to doing.’’

The appeals court gave the site credit for helping to reduce tritium levels in the creek while creating buffer zones and fencing the property to limit public exposure. It also said the company had taken steps to cap closed burial trenches.

But the court’s decision chastised Chem-Nuclear and DHEC for failing to address how to adequately keep rainfall out of open trenches and burial vaults, as directed by an administrative judge.

The ruling also took aim at concrete vaults that were added to burial trenches in the 1990s. Much of the waste goes into the vaults. But those vaults have holes that allow toxin-polluted water to drain out.

“These holes permit water that has come in contact with residual tritium to drain into the trenches, which in turn allow the water to percolate into the soil and groundwater beneath the facility,’’ the court said. “Chem-Nuclear has not taken action to reduce to the smallest possible amount the migration of waste-contaminated water out of its vaults and trenches.’’

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