Appeals court sends issue back to lower court for consideration
By SAMMY FRETWELL (in the State)
The South Carolina Court of Appeals sided with conservationists Wednesday in their fight against a 39-year-old nuclear waste dump that has buried atomic garbage in open trenches and leaked radioactive pollutants into groundwater.
After six years of legal skirmishes about the landfill, the appeals court agreed to keep alive the state Sierra Club's case for tougher disposal controls at the Barnwell County dump.
The ruling sends the case back to a lower court for a decision on whether to issue a permit for the landfill. The state Administrative Law Court must answer legitimate legal questions raised by the Sierra Club about Chem-Nuclear's burial of atomic refuse, the appeals court said. It could be months before a decision is rendered.
While the ruling doesn't resolve the matter as environmentalists had hoped, the Appeals Court's apparent sympathy for the Sierra Club's case helps. It could influence the lower court to require tighter nuclear waste disposal practices in a state permit, said club lawyer Jimmy Chandler.
"I think it will, and I think it should," Chandler said.
The Sierra Club appealed Chem-Nuclear's state permit in 2004, arguing that South Carolina regulators didn't follow their own rules in making a decision. It was the first appeal of a permit for the site since it opened in 1971.
Conservationists say they want Chem-Nuclear to stop letting rainwater get into open burial trenches. The trenches contain radioactive waste that, when washed by rainfall, leaks into groundwater, conservation groups say. They also want the holes in burial vaults to be sealed shut.
"If we are going to put a single square foot of radioactive waste in the ground, it ought to be in a safe container," Chandler said. "Otherwise, we are just continuing to add to the problem."
Barnwell County's landfill took the nation's low-level atomic waste for decades until closing to the nation in 2008. But the site remains open for disposal of atomic garbage from South Carolina, Connecticut and New Jersey. Tougher disposal practices would stop future waste buried there from further endangering groundwater, conservationists say.
Leaks of radioactive tritium from the landfill date to at least 1982. Tritium has trickled into groundwater and polluted a creek that drains into a tributary of the Savannah River. Tritium levels in the creek are 23 times higher than the U.S. Environmental Protection Agency's standard for safe drinking water. Tritium in groundwater beneath the landfill is in places more than 1,000 times the EPA drinking water standard.
No one's private well has been polluted by high tritium levels near the site, but critics say that could change. They say the landfill never should have been allowed to contaminate groundwater.
The Department of Health and Environmental Control - which says the Barnwell site is safe - has maintained that it issued the landfill permit legally. DHEC spokesman Thom Berry had no immediate comment on the court decision Wednesday. Energy Solutions of Utah, the parent company of Chem-Nuclear, did not respond to questions from The State.
Much of the legal case centers on whether DHEC issued a permit that complies with state disposal rules. The rules say Chem-Nuclear must limit the amount of water that gets into burial trenches and keep any pollution in the trenches from escaping. The rules also say there must be "reasonable assurance" the waste will be isolated, while also preventing the waste from contacting "the surrounding earth."
In its decision Wednesday, the appeals court said those rules imposed requirements on Chem-Nuclear that were never decided when an Administrative Court upheld DHEC's decision to issue the 2004 permit. The appeals court said the Administrative Law Court must decide this and related issues.
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Nuclear Energy 
