ORDERS:
104. ALARA is an acronym for “as low as is reasonably achievable” and, as used in the regulations governing radioactive materials, means “making every reasonable effort to maintain exposures to radiation as far below the dose limits [provided by regulation] . . . as is practical.” 24A S.C. Code Ann. Regs. 61-63, § 3.2.6 (Supp. 2004).
105. The contamination data collected at the compliance point is for purposes of protecting the public. Chem-Nuclear also performs monitoring and analysis to ensure that its workers are protected. (House Prefiled Test. at 44-45.)
106. Any ALARA analysis involves balancing the benefit to the general public with the risk associated with worker exposure. (Moeller Prefiled Test. at 36-37.)
107. The changes in design and operations at the Barnwell Facility implemented over the past ten years—the use of vaults to stabilize the trenches, the use of high-integrity polyethylene disposal containers to contain waste forms, the elimination of liquid waste forms, and the installation of impermeable caps on inactive trenches—have enhanced site performance so as to support Chem-Nuclear’s predictions of a continued declining trend in radioactive releases to the general environment. (Moeller Prefiled Test. at 22-23.)
108. There is no evidence of any actual release resulting in an exposure above regulatory limits to any member of the general public as a result of the operations at the Barnwell Facility. There are no known incidents of such releases since the inception of the Facility. (House Prefiled Test. at 21.)
109. The definition of ALARA in Regulation 61-63 contemplates that a facility will make all practical and reasonable efforts to keep the exposure of radiation to the environment and the public as low as possible. Because of this requirement, neither DHEC nor Chem-Nuclear can simply be satisfied with sampling data that reveal releases below the regulatory limit. (Hr’g Tr., vol. IV, at 124, 160.)
110. Chem-Nuclear has made efforts to maintain exposure to radiation as far below the dose limits as is practical. Chem-Nuclear has access to reliable data through a system of groundwater monitoring wells and thirty years of historical data, and has applied this data in extensive modeling efforts to predict Barnwell Site performance two thousand years into the future. And, these modeling efforts have been confirmed by a panel of experts. Further, Chem-Nuclear has undertaken a variety of measures over the years to enhance Site performance. Compliance data demonstrates that these measures are effective. (Hr’g Tr., vol. IV, at 180-82.)
111. The regulatory definition of ALARA also weighs “the economics of improvements in relation to benefits to the public health and safety.” There is no evidence in the record demonstrating that the alternative disposal or storage methods proposed by Petitioner satisfy this calculus. There is no performance data available on the “assured isolation storage facilities” or “above-ground disposal facilities” recommended by Petitioner, as such facilities have not been constructed in the United States. (Hr’g Tr., vol. II, at 158.) Further, Petitioner did not offer any evidentiary support to establish the economic viability of these alternate disposal methodologies.
112. The alleged improvements to be attained by such facilities will only apply to the small volume of waste that Chem-Nuclear is statutorily authorized to receive until 2008 and the even smaller amount expected to be received after 2008. Petitioner does not advocate changing the technology for waste that has already been disposed of at the Barnwell Site. (Hr’g Tr., vol. II, at 117-19; Howe Prefiled Test. at 14.)
113. The Blue Ribbon Panel concluded that most of the releases into Mary’s Branch Creek are the result of waste disposed of at the Barnwell Site a number of years ago, prior to the development of the disposal practices discussed above. Any change in operations and design will have no effect on the transport of radionuclides from waste already disposed of at the Barnwell Facility. (Hr’g Tr., vol. II, at 86; Chem-Nuclear Ex. #28, app.)
Compliance
114. The Barnwell Facility has been inspected weekly by DHEC for at least the past ten years. (Hr’g Tr., vol. III, at 87-88; Hr’g Tr., vol. IV, at 115-16.)
115. Petitioner, through discovery, was provided access to all of DHEC’s compliance reports. Petitioner introduced into evidence records of DHEC’s compliance visits on only ten different dates. These dates appeared to follow heavy rainfall in the Barnwell area. (Hr’g Tr., vol. III, at 89; Petr. Ex. #10.) Such rainfall is not, however, uncommon in Barnwell, and highlights the potential for ground and surface water contamination caused by the collection of rainwater in the open disposal trenches and on the radioactive waste waiting to be buried at the site.
116. Photographs taken during DHEC inspections revealed rainwater collecting in open trenches. Trenches are designed to prevent the flow of surface water from coming in contact with waste. (Hr’g Tr., vol. III, at 89-90.)
117. Chem-Nuclear implements a surface water management plan to manage precipitation collected in its trenches. Water is pumped into adjacent trenches to ensure that it does not come in contact with waste or disposal vaults. Water may also be pumped into an adjacent lined pond. (Hr’g Tr., vol. III, at 89.)
118. Certain photographs provided by Petitioner depicted conditions in Trench 86. There is available disposal area in Trench 86 that measures approximately 75 feet by 200 feet. Chem-Nuclear anticipates closing Trench 86 within two years. (Hr’g Tr., vol. III, at 84.)
Other Applicable Regulatory Standards
119. No concrete evidence was presented to establish that the renewal of License No. 097 constitutes an unreasonable risk to the health and safety of the public. (Hr’g Tr., vol. IV, at 182-84; DHEC Ex. #25; Chem-Nuclear Ex. #16.)
120. The licensee, Chem-Nuclear, is qualified to carry out disposal operations at the Barnwell Site. Chem-Nuclear’s qualifications are evident from its Exhibit Number 7, from the compliance history of the Barnwell Site, and from the extensive modeling and monitoring efforts undertaken by the Chem-Nuclear staff. (DHEC Ex. #25; Chem-Nuclear Ex. #16; Hr’g Tr., vol. IV, at 184-85.)
121. No concrete evidence was presented to demonstrate that the Barnwell Site design and operations are inadequate to protect the public health and safety because they fail to provide reasonable assurances that the general population will be protected from releases of radioactivity above the limits established in Regulation 61-63, § 7.18. (Ichimura Prefiled Test. at 32; DHEC Ex. #25; Chem-Nuclear Ex. #16.)
122. No concrete evidence was presented to show that the Barnwell Site design and operations are inadequate to protect the public health and safety because they fail to provide reasonable assurances that inadvertent intruders are protected in accordance with Regulation 61-63, § 7.19. (Chem-Nuclear Ex. #16; DHEC Ex. #25; Hr’g Tr., vol. IV, at 185.)
123. This Court agreed with Chem-Nuclear in its Motion in Limine that any testimony from Petitioner regarding legislative diversion of monies from the Long-Term Care Fund to other uses was not relevant for determination of the validity of this permit appeal.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
Jurisdiction and Burden of Proof
1. This Court has jurisdiction over this matter pursuant to Article I, Section 22, of the South Carolina Constitution and the South Carolina Administrative Procedures Act. See S.C. Const. art. I, § 22; S.C. Code Ann. § 1-23-600(B) (Supp. 2004); S.C. Code Ann. § 1-23-310 et seq. (2005). Pursuant to that jurisdiction, an administrative law judge presides over all hearings of, and serves as the finder of fact in, contested DHEC permitting cases. See Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577, 595 S.E.2d 851, 853 (Ct. App. 2004) (citing Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002)).
2. In presiding over a contested case, the administrative law judge conducts a de novo hearing with the presentation of testimony and evidence and issues a decision with detailed findings of fact supporting the decision. See Marlboro Park Hosp., 358 S.C. at 579, 595 S.E.2d at 854.
3. Petitioner, as the moving party challenging the Department’s decision to renew Chem-Nuclear’s license, bears the burden of proving its case by a preponderance of the evidence. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).
4. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
5. In weighing the testimonial and documentary evidence presented and making findings of fact thereupon, this tribunal is guided by several general principles to determine whether a proffer of evidence is sufficient to warrant a finding:
A verdict or finding must be based on the evidence and must be based on the facts proved. Under this well established rule, although difficulty of proof does not prevent the assertion of a legal right, the verdict or finding cannot rest on surmise, speculation, or conjecture. Furthermore, a verdict of the jury or a finding of the court cannot be supported only by guesswork. Also, it has been said that the verdict or finding cannot rest on supposition, assumption, imagination, suspicion, arbitrary action, whim, percentage, or conclusions that are in conflict with undisputed fact.
The evidence on which the verdict or finding is based must be competent, legal evidence received in the course of the trial, credible, and of probative force, and must support every material fact. The decision should be against the party having the burden of proof where there is no evidence, or the evidence as to a material issue is insufficient . . . .
32A C.J.S. Evidence § 1339, at 757-58 (1996) (emphasis added); see also S.C. Code Ann. § 1-23-320(i) (2005) (“Findings of fact shall be based exclusively on the evidence and on matters officially noticed.”).
Expert Testimony
6. Under the South Carolina Rules of Evidence, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Rule 702, SCRE. An expert is granted wide latitude in determining the basis of his or her opinion, and where an expert’s testimony is based upon facts sufficient to form an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 470, 494 S.E.2d 835, 846 (Ct. App. 1997).
7. “[E]xpert testimony is essential in cases which involve a subject of special technical science, skill, or occupation of which the members of the jury or the trial court are not presumed to be specially informed.” 32A C.J.S. Evidence § 729, at 85 (1996). For example, the South Carolina Supreme Court has held that, in medical malpractice cases, “the plaintiff must use expert testimony . . . unless the subject matter lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.” Pederson v. Gould, 288 S.C. 141, 143, 341 S.E.2d 633, 634 (1986).
8. In general, “expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or evidence . . . [;] the triers of fact cannot, and are not required to, arbitrarily or lightly disregard, or capriciously reject, the testimony of experts or skilled witnesses, and make an unsupported finding to the contrary of the opinion.” 32A C.J.S. Evidence § 727, at 82-83 (1996). However, the trier of fact may give an expert’s testimony the weight he or she determines it deserves. Florence County Dep’t of Soc. Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App. 1992). Further, the trier of fact may accept the testimony of one expert over that of another. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).
General Regulations Applicable to Radioactive Materials
9. 24A S.C. Code Ann. Regs. 61-63, § 3.56.1 (Supp. 2004) establishes the classifications and characteristics of low-level radioactive waste for land disposal. This regulation classifies such waste as Class A, B, or C waste, in increasing levels of radioactivity, and requires the consideration of both the concentration of long-lived radionuclides and shorter-lived radionuclides in determining the proper classification of radioactive waste. Id. Under the permitting requirements for the land disposal of low-level radioactive waste, “waste” is generally defined as “those low-level radioactive wastes that are acceptable for disposal in a land disposal facility.” 24A S.C. Code Ann. Regs. 61-63, § 7.2.22 (1992).
10. 24A S.C. Code Ann. Regs. 61-63, § 7.10 (1992 & Supp. 2004) sets forth the general requirements for the issuance of a license for the receipt, possession, and disposal of waste containing or contaminated with radioactive material. Under this regulation, such a license may not be issued unless the Department finds, among other things, that:
(1) the issuance of the license will not constitute an unreasonable risk to the health and safety of the public;
(2) the applicant is qualified by reason of training and experience to carry out the disposal operations requested in a manner that protects health and minimizes danger to life or property;
(3) the applicant’s proposed disposal site, disposal design, land disposal facility operations, including equipment, facilities, and procedures, disposal site closure, and post-closure institutional control are adequate to protect the public health and safety in that they provide reasonable assurance that the general population will be protected from releases of radioactivity as specified in the performance objective in [§] 7.18; and,
(4) the applicant’s proposed disposal site, disposal site design, land disposal facility operations, including equipment, facilities, and procedures, disposal site closure, and post-closure institutional control are adequate to protect the public health and safety in that they will provide reasonable assurance that individual inadvertent intruders are protected in accordance with the performance objective in [§] 7.19. 24A S.C. Code Ann. Regs. 61-63, §§ 7.10.1 to 7.10.4 (1992). Section 7.18 of Regulation 61-63 addresses the protection of the general public from releases of radioactivity and provides that:
Concentrations of radioactive material which may be released to the general environment in groundwater, surface water, air, soil, plants, or animals shall not result in an annual dose exceeding an equivalent of 25 millirems (0.25 mSv) to the whole body, 75 millirems (0.75 mSv) to the thyroid, and 25 millirems (0.25 mSv) to any other organ of any member of the public. Reasonable effort should be made to maintain releases of radioactivity in effluents to the general environment as low as is reasonably achievable.
24A S.C. Code Ann. Regs. 61-63, § 7.18 (1992) (emphasis added). Section 7.19 addresses the protection of individuals from inadvertent intrusion upon a closed disposal site and provides that the “[d]esign, operation, and closure of [a] land disposal facility shall ensure protection of any individual inadvertently intruding into the disposal site and occupying the site or contacting the waste at any time after active institutional controls over the disposal site are removed.” 24A S.C. Code Ann. Regs. 61-63, § 7.19 (1992).
11. As used in Section 7.18 and in other portions of DHEC’s regulations governing radioactive materials, the regulatory requirement that exposure to radioactivity be kept as low as is reasonably achievable (ALARA) means
making every reasonable effort to maintain exposures to radiation as far below the dose limits in [the applicable regulation] as is practical consistent with the purposes for which the licensed activity is undertaken, taking into account the state of technology, the economics of improvements in relation to state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to utilization of nuclear energy and licensed materials in the public interest.
24A S.C. Code Ann. Regs. 61-63, § 3.2.6 (Supp. 2004).
Conclusions as to Petitioner’s Allegations of Error
12. Petitioner has presented no evidence so as to warrant reversal of the renewal of License No. 097 based on Regulation 61-63, § 7.10.1, which requires that the issuance of the license not constitute an unreasonable risk to the health and safety of the public. I conclude that no sufficient evidence was presented to establish that the issuance of the license would constitute an unreasonable risk to the health and safety of the public.
13. Similarly, Petitioner has not presented sufficient evidence to warrant the reversal of the renewal of License No. 097, because Chem-Nuclear’s disposal practices fail to satisfy the requirements of Regulation 61-63, §§ 7.10.2 and 7.10.3.
14. Further, Petitioner presented no evidence to demonstrate that Chem-Nuclear’s operations at the Barnwell Facility do not comply with Regulation 61-63, § 7.10.4, which addresses the protection of inadvertent intruders upon the site. Chem-Nuclear’s disposal practices, which include the use of enhanced capping, assure protection for inadvertent intruders.
15. Finally, Petitioner has failed to demonstrate a violation of ALARA, as set forth in Regulation 61-63, §§ 3.4.2 and 7.18. Chem-Nuclear and DHEC have shown adherence to ALARA in the measures taken by Chem-Nuclear to address tritium migration from the Barnwell Facility and the potential for releases from other radionuclides that are contained in the waste buried at the Site.
16. Nevertheless, Petitioner did raise legitimate issues and presented evidence suggesting that further studies are needed to evaluate the scientific and economic feasibility of employing or implementing designs and operational procedures at the Barnwell Site that will (1) shelter the disposal trenches from rainfall and prevent rainfall from entering the trenches, (2) provide temporary dry storage facilities for the storage of wastes received during wet conditions, and (3) provide for sealing and grouting the concrete disposal vaults to prevent the intrusion of water to the maximum extent feasible. In order to address these concerns, Chem-Nuclear shall conduct the studies identified above and submit the results to DHEC within 180 days of the date of this Order. It should be noted that no evidence was presented by either Respondent or the Department that the Blue Ribbon Panel considered any of these particular issues in its report. Moreover, with specific regard to the undeniable “rainfall problem,” see Findings of Fact #47, 48, 50, 101, 115, Chem-Nuclear has already considered conceptual designs to keep rainfall out of the trenches, but it failed to complete a report on its research and has not submitted such a report to DHEC, despite its request. See Finding of Fact #50; see also Findings of Fact #46, 49, 56 (discussing Dr. Ichimura’s acknowledgement of the contamination problems caused by rainfall during disposal activities at the site).
17. In sum, while Petitioner raised serious concerns regarding the disposal methods and practices authorized by DHEC and employed by Chem-Nuclear for the disposal of low-level radioactive waste at the Barnwell Facility, it could not ultimately meet the heavy burden it carried in this matter. To demonstrate a violation of the regulatory requirements for such disposal, it is not enough to merely show that DHEC has not required, and Chem-Nuclear has not employed, the most protective or most isolating methods of radioactive waste disposal currently available. Rather, the regulatory standards require a highly detailed, highly technical analysis that weighs both the state of the technology of waste disposal and the social and economic costs of various disposal practices to determine whether the methods in question adequately protect the public from exposure to radioactive materials. See, e.g., 24A S.C. Code Ann. Regs. 61-63, § 3.2.6 (defining “ALARA” as a balancing between scientific questions regarding the state of technology and practical considerations including the economics of any improvements, various societal and socioeconomic considerations, and the use of nuclear energy in the public interest). In the instant case, Petitioner did not provide the Court with concrete, competent evidence to demonstrate that the disposal methods permitted under License No. 097 fail to satisfy such regulatory requirements, and, therefore, DHEC’s permitting decision must stand.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that DHEC’s decision to renew Radioactive Material License No. 097 issued to Respondent Chem-Nuclear Systems, LLC, for the operation of the low-level radioactive waste disposal facility in Barnwell, South Carolina, is SUSTAINED. However,
IT IS FURTHER ORDERED that, in light of certain known problems related to the potential for groundwater contamination on and near the site raised during these proceedings, Chem-Nuclear must conduct a study, as outlined above, concerning methods to reduce contact between radioactive waste and rainfall and other water at its facility, and must submit the results of that study to DHEC within 180 days of the date of this Order.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731
October 13, 2005
Columbia, South Carolina
104. ALARA is an acronym for “as low as is reasonably achievable” and, as used in the regulations governing radioactive materials, means “making every reasonable effort to maintain exposures to radiation as far below the dose limits [provided by regulation] . . . as is practical.” 24A S.C. Code Ann. Regs. 61-63, § 3.2.6 (Supp. 2004).
105. The contamination data collected at the compliance point is for purposes of protecting the public. Chem-Nuclear also performs monitoring and analysis to ensure that its workers are protected. (House Prefiled Test. at 44-45.)
106. Any ALARA analysis involves balancing the benefit to the general public with the risk associated with worker exposure. (Moeller Prefiled Test. at 36-37.)
107. The changes in design and operations at the Barnwell Facility implemented over the past ten years—the use of vaults to stabilize the trenches, the use of high-integrity polyethylene disposal containers to contain waste forms, the elimination of liquid waste forms, and the installation of impermeable caps on inactive trenches—have enhanced site performance so as to support Chem-Nuclear’s predictions of a continued declining trend in radioactive releases to the general environment. (Moeller Prefiled Test. at 22-23.)
108. There is no evidence of any actual release resulting in an exposure above regulatory limits to any member of the general public as a result of the operations at the Barnwell Facility. There are no known incidents of such releases since the inception of the Facility. (House Prefiled Test. at 21.)
109. The definition of ALARA in Regulation 61-63 contemplates that a facility will make all practical and reasonable efforts to keep the exposure of radiation to the environment and the public as low as possible. Because of this requirement, neither DHEC nor Chem-Nuclear can simply be satisfied with sampling data that reveal releases below the regulatory limit. (Hr’g Tr., vol. IV, at 124, 160.)
110. Chem-Nuclear has made efforts to maintain exposure to radiation as far below the dose limits as is practical. Chem-Nuclear has access to reliable data through a system of groundwater monitoring wells and thirty years of historical data, and has applied this data in extensive modeling efforts to predict Barnwell Site performance two thousand years into the future. And, these modeling efforts have been confirmed by a panel of experts. Further, Chem-Nuclear has undertaken a variety of measures over the years to enhance Site performance. Compliance data demonstrates that these measures are effective. (Hr’g Tr., vol. IV, at 180-82.)
111. The regulatory definition of ALARA also weighs “the economics of improvements in relation to benefits to the public health and safety.” There is no evidence in the record demonstrating that the alternative disposal or storage methods proposed by Petitioner satisfy this calculus. There is no performance data available on the “assured isolation storage facilities” or “above-ground disposal facilities” recommended by Petitioner, as such facilities have not been constructed in the United States. (Hr’g Tr., vol. II, at 158.) Further, Petitioner did not offer any evidentiary support to establish the economic viability of these alternate disposal methodologies.
112. The alleged improvements to be attained by such facilities will only apply to the small volume of waste that Chem-Nuclear is statutorily authorized to receive until 2008 and the even smaller amount expected to be received after 2008. Petitioner does not advocate changing the technology for waste that has already been disposed of at the Barnwell Site. (Hr’g Tr., vol. II, at 117-19; Howe Prefiled Test. at 14.)
113. The Blue Ribbon Panel concluded that most of the releases into Mary’s Branch Creek are the result of waste disposed of at the Barnwell Site a number of years ago, prior to the development of the disposal practices discussed above. Any change in operations and design will have no effect on the transport of radionuclides from waste already disposed of at the Barnwell Facility. (Hr’g Tr., vol. II, at 86; Chem-Nuclear Ex. #28, app.)
Compliance
114. The Barnwell Facility has been inspected weekly by DHEC for at least the past ten years. (Hr’g Tr., vol. III, at 87-88; Hr’g Tr., vol. IV, at 115-16.)
115. Petitioner, through discovery, was provided access to all of DHEC’s compliance reports. Petitioner introduced into evidence records of DHEC’s compliance visits on only ten different dates. These dates appeared to follow heavy rainfall in the Barnwell area. (Hr’g Tr., vol. III, at 89; Petr. Ex. #10.) Such rainfall is not, however, uncommon in Barnwell, and highlights the potential for ground and surface water contamination caused by the collection of rainwater in the open disposal trenches and on the radioactive waste waiting to be buried at the site.
116. Photographs taken during DHEC inspections revealed rainwater collecting in open trenches. Trenches are designed to prevent the flow of surface water from coming in contact with waste. (Hr’g Tr., vol. III, at 89-90.)
117. Chem-Nuclear implements a surface water management plan to manage precipitation collected in its trenches. Water is pumped into adjacent trenches to ensure that it does not come in contact with waste or disposal vaults. Water may also be pumped into an adjacent lined pond. (Hr’g Tr., vol. III, at 89.)
118. Certain photographs provided by Petitioner depicted conditions in Trench 86. There is available disposal area in Trench 86 that measures approximately 75 feet by 200 feet. Chem-Nuclear anticipates closing Trench 86 within two years. (Hr’g Tr., vol. III, at 84.)
Other Applicable Regulatory Standards
119. No concrete evidence was presented to establish that the renewal of License No. 097 constitutes an unreasonable risk to the health and safety of the public. (Hr’g Tr., vol. IV, at 182-84; DHEC Ex. #25; Chem-Nuclear Ex. #16.)
120. The licensee, Chem-Nuclear, is qualified to carry out disposal operations at the Barnwell Site. Chem-Nuclear’s qualifications are evident from its Exhibit Number 7, from the compliance history of the Barnwell Site, and from the extensive modeling and monitoring efforts undertaken by the Chem-Nuclear staff. (DHEC Ex. #25; Chem-Nuclear Ex. #16; Hr’g Tr., vol. IV, at 184-85.)
121. No concrete evidence was presented to demonstrate that the Barnwell Site design and operations are inadequate to protect the public health and safety because they fail to provide reasonable assurances that the general population will be protected from releases of radioactivity above the limits established in Regulation 61-63, § 7.18. (Ichimura Prefiled Test. at 32; DHEC Ex. #25; Chem-Nuclear Ex. #16.)
122. No concrete evidence was presented to show that the Barnwell Site design and operations are inadequate to protect the public health and safety because they fail to provide reasonable assurances that inadvertent intruders are protected in accordance with Regulation 61-63, § 7.19. (Chem-Nuclear Ex. #16; DHEC Ex. #25; Hr’g Tr., vol. IV, at 185.)
123. This Court agreed with Chem-Nuclear in its Motion in Limine that any testimony from Petitioner regarding legislative diversion of monies from the Long-Term Care Fund to other uses was not relevant for determination of the validity of this permit appeal.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
Jurisdiction and Burden of Proof
1. This Court has jurisdiction over this matter pursuant to Article I, Section 22, of the South Carolina Constitution and the South Carolina Administrative Procedures Act. See S.C. Const. art. I, § 22; S.C. Code Ann. § 1-23-600(B) (Supp. 2004); S.C. Code Ann. § 1-23-310 et seq. (2005). Pursuant to that jurisdiction, an administrative law judge presides over all hearings of, and serves as the finder of fact in, contested DHEC permitting cases. See Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577, 595 S.E.2d 851, 853 (Ct. App. 2004) (citing Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002)).
2. In presiding over a contested case, the administrative law judge conducts a de novo hearing with the presentation of testimony and evidence and issues a decision with detailed findings of fact supporting the decision. See Marlboro Park Hosp., 358 S.C. at 579, 595 S.E.2d at 854.
3. Petitioner, as the moving party challenging the Department’s decision to renew Chem-Nuclear’s license, bears the burden of proving its case by a preponderance of the evidence. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).
4. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
5. In weighing the testimonial and documentary evidence presented and making findings of fact thereupon, this tribunal is guided by several general principles to determine whether a proffer of evidence is sufficient to warrant a finding:
A verdict or finding must be based on the evidence and must be based on the facts proved. Under this well established rule, although difficulty of proof does not prevent the assertion of a legal right, the verdict or finding cannot rest on surmise, speculation, or conjecture. Furthermore, a verdict of the jury or a finding of the court cannot be supported only by guesswork. Also, it has been said that the verdict or finding cannot rest on supposition, assumption, imagination, suspicion, arbitrary action, whim, percentage, or conclusions that are in conflict with undisputed fact.
The evidence on which the verdict or finding is based must be competent, legal evidence received in the course of the trial, credible, and of probative force, and must support every material fact. The decision should be against the party having the burden of proof where there is no evidence, or the evidence as to a material issue is insufficient . . . .
32A C.J.S. Evidence § 1339, at 757-58 (1996) (emphasis added); see also S.C. Code Ann. § 1-23-320(i) (2005) (“Findings of fact shall be based exclusively on the evidence and on matters officially noticed.”).
Expert Testimony
6. Under the South Carolina Rules of Evidence, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Rule 702, SCRE. An expert is granted wide latitude in determining the basis of his or her opinion, and where an expert’s testimony is based upon facts sufficient to form an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 470, 494 S.E.2d 835, 846 (Ct. App. 1997).
7. “[E]xpert testimony is essential in cases which involve a subject of special technical science, skill, or occupation of which the members of the jury or the trial court are not presumed to be specially informed.” 32A C.J.S. Evidence § 729, at 85 (1996). For example, the South Carolina Supreme Court has held that, in medical malpractice cases, “the plaintiff must use expert testimony . . . unless the subject matter lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.” Pederson v. Gould, 288 S.C. 141, 143, 341 S.E.2d 633, 634 (1986).
8. In general, “expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or evidence . . . [;] the triers of fact cannot, and are not required to, arbitrarily or lightly disregard, or capriciously reject, the testimony of experts or skilled witnesses, and make an unsupported finding to the contrary of the opinion.” 32A C.J.S. Evidence § 727, at 82-83 (1996). However, the trier of fact may give an expert’s testimony the weight he or she determines it deserves. Florence County Dep’t of Soc. Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App. 1992). Further, the trier of fact may accept the testimony of one expert over that of another. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).
General Regulations Applicable to Radioactive Materials
9. 24A S.C. Code Ann. Regs. 61-63, § 3.56.1 (Supp. 2004) establishes the classifications and characteristics of low-level radioactive waste for land disposal. This regulation classifies such waste as Class A, B, or C waste, in increasing levels of radioactivity, and requires the consideration of both the concentration of long-lived radionuclides and shorter-lived radionuclides in determining the proper classification of radioactive waste. Id. Under the permitting requirements for the land disposal of low-level radioactive waste, “waste” is generally defined as “those low-level radioactive wastes that are acceptable for disposal in a land disposal facility.” 24A S.C. Code Ann. Regs. 61-63, § 7.2.22 (1992).
10. 24A S.C. Code Ann. Regs. 61-63, § 7.10 (1992 & Supp. 2004) sets forth the general requirements for the issuance of a license for the receipt, possession, and disposal of waste containing or contaminated with radioactive material. Under this regulation, such a license may not be issued unless the Department finds, among other things, that:
(1) the issuance of the license will not constitute an unreasonable risk to the health and safety of the public;
(2) the applicant is qualified by reason of training and experience to carry out the disposal operations requested in a manner that protects health and minimizes danger to life or property;
(3) the applicant’s proposed disposal site, disposal design, land disposal facility operations, including equipment, facilities, and procedures, disposal site closure, and post-closure institutional control are adequate to protect the public health and safety in that they provide reasonable assurance that the general population will be protected from releases of radioactivity as specified in the performance objective in [§] 7.18; and,
(4) the applicant’s proposed disposal site, disposal site design, land disposal facility operations, including equipment, facilities, and procedures, disposal site closure, and post-closure institutional control are adequate to protect the public health and safety in that they will provide reasonable assurance that individual inadvertent intruders are protected in accordance with the performance objective in [§] 7.19. 24A S.C. Code Ann. Regs. 61-63, §§ 7.10.1 to 7.10.4 (1992). Section 7.18 of Regulation 61-63 addresses the protection of the general public from releases of radioactivity and provides that:
Concentrations of radioactive material which may be released to the general environment in groundwater, surface water, air, soil, plants, or animals shall not result in an annual dose exceeding an equivalent of 25 millirems (0.25 mSv) to the whole body, 75 millirems (0.75 mSv) to the thyroid, and 25 millirems (0.25 mSv) to any other organ of any member of the public. Reasonable effort should be made to maintain releases of radioactivity in effluents to the general environment as low as is reasonably achievable.
24A S.C. Code Ann. Regs. 61-63, § 7.18 (1992) (emphasis added). Section 7.19 addresses the protection of individuals from inadvertent intrusion upon a closed disposal site and provides that the “[d]esign, operation, and closure of [a] land disposal facility shall ensure protection of any individual inadvertently intruding into the disposal site and occupying the site or contacting the waste at any time after active institutional controls over the disposal site are removed.” 24A S.C. Code Ann. Regs. 61-63, § 7.19 (1992).
11. As used in Section 7.18 and in other portions of DHEC’s regulations governing radioactive materials, the regulatory requirement that exposure to radioactivity be kept as low as is reasonably achievable (ALARA) means
making every reasonable effort to maintain exposures to radiation as far below the dose limits in [the applicable regulation] as is practical consistent with the purposes for which the licensed activity is undertaken, taking into account the state of technology, the economics of improvements in relation to state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to utilization of nuclear energy and licensed materials in the public interest.
24A S.C. Code Ann. Regs. 61-63, § 3.2.6 (Supp. 2004).
Conclusions as to Petitioner’s Allegations of Error
12. Petitioner has presented no evidence so as to warrant reversal of the renewal of License No. 097 based on Regulation 61-63, § 7.10.1, which requires that the issuance of the license not constitute an unreasonable risk to the health and safety of the public. I conclude that no sufficient evidence was presented to establish that the issuance of the license would constitute an unreasonable risk to the health and safety of the public.
13. Similarly, Petitioner has not presented sufficient evidence to warrant the reversal of the renewal of License No. 097, because Chem-Nuclear’s disposal practices fail to satisfy the requirements of Regulation 61-63, §§ 7.10.2 and 7.10.3.
14. Further, Petitioner presented no evidence to demonstrate that Chem-Nuclear’s operations at the Barnwell Facility do not comply with Regulation 61-63, § 7.10.4, which addresses the protection of inadvertent intruders upon the site. Chem-Nuclear’s disposal practices, which include the use of enhanced capping, assure protection for inadvertent intruders.
15. Finally, Petitioner has failed to demonstrate a violation of ALARA, as set forth in Regulation 61-63, §§ 3.4.2 and 7.18. Chem-Nuclear and DHEC have shown adherence to ALARA in the measures taken by Chem-Nuclear to address tritium migration from the Barnwell Facility and the potential for releases from other radionuclides that are contained in the waste buried at the Site.
16. Nevertheless, Petitioner did raise legitimate issues and presented evidence suggesting that further studies are needed to evaluate the scientific and economic feasibility of employing or implementing designs and operational procedures at the Barnwell Site that will (1) shelter the disposal trenches from rainfall and prevent rainfall from entering the trenches, (2) provide temporary dry storage facilities for the storage of wastes received during wet conditions, and (3) provide for sealing and grouting the concrete disposal vaults to prevent the intrusion of water to the maximum extent feasible. In order to address these concerns, Chem-Nuclear shall conduct the studies identified above and submit the results to DHEC within 180 days of the date of this Order. It should be noted that no evidence was presented by either Respondent or the Department that the Blue Ribbon Panel considered any of these particular issues in its report. Moreover, with specific regard to the undeniable “rainfall problem,” see Findings of Fact #47, 48, 50, 101, 115, Chem-Nuclear has already considered conceptual designs to keep rainfall out of the trenches, but it failed to complete a report on its research and has not submitted such a report to DHEC, despite its request. See Finding of Fact #50; see also Findings of Fact #46, 49, 56 (discussing Dr. Ichimura’s acknowledgement of the contamination problems caused by rainfall during disposal activities at the site).
17. In sum, while Petitioner raised serious concerns regarding the disposal methods and practices authorized by DHEC and employed by Chem-Nuclear for the disposal of low-level radioactive waste at the Barnwell Facility, it could not ultimately meet the heavy burden it carried in this matter. To demonstrate a violation of the regulatory requirements for such disposal, it is not enough to merely show that DHEC has not required, and Chem-Nuclear has not employed, the most protective or most isolating methods of radioactive waste disposal currently available. Rather, the regulatory standards require a highly detailed, highly technical analysis that weighs both the state of the technology of waste disposal and the social and economic costs of various disposal practices to determine whether the methods in question adequately protect the public from exposure to radioactive materials. See, e.g., 24A S.C. Code Ann. Regs. 61-63, § 3.2.6 (defining “ALARA” as a balancing between scientific questions regarding the state of technology and practical considerations including the economics of any improvements, various societal and socioeconomic considerations, and the use of nuclear energy in the public interest). In the instant case, Petitioner did not provide the Court with concrete, competent evidence to demonstrate that the disposal methods permitted under License No. 097 fail to satisfy such regulatory requirements, and, therefore, DHEC’s permitting decision must stand.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that DHEC’s decision to renew Radioactive Material License No. 097 issued to Respondent Chem-Nuclear Systems, LLC, for the operation of the low-level radioactive waste disposal facility in Barnwell, South Carolina, is SUSTAINED. However,
IT IS FURTHER ORDERED that, in light of certain known problems related to the potential for groundwater contamination on and near the site raised during these proceedings, Chem-Nuclear must conduct a study, as outlined above, concerning methods to reduce contact between radioactive waste and rainfall and other water at its facility, and must submit the results of that study to DHEC within 180 days of the date of this Order.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731
October 13, 2005
Columbia, South Carolina
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