For the second year in a row, the S.C. Court of Appeals has ripped the state’s environmental protection agency for failing to properly oversee a leak-prone nuclear waste dump in Barnwell County.
But this time, the appeals court isn’t telling regulators when to resolve problems at the 44-year-old site.
In an Aug. 12 ruling that disappointed landfill critics, the court backed away from requiring a specific timetable to improve conditions at Chem-Nuclear’s dump near the Savannah River.
Last year, the appeals court ordered the Department of Health and Environmental Control and site operator Chem-Nuclear to develop a written plan for correcting problems within 90 days. Both then appealed for a rehearing, which delayed the 90-day requirement and ultimately resulted in last week’s decision.
Sierra Club lawyer Bob Guild said this year’s decision leaves DHEC — the agency that has failed to properly manage the site — the discretion to react to the court ruling at its own leisure.
“We have an agency that has been lawless for years in not enforcing its own regulations, and now, the court is giving it another open-ended opportunity to review itself,’’ Guild said. “That is unfortunate. We are going to monitor this very carefully.’’
Guild’s group filed suit 10 years ago in an attempt to force tougher disposal practices at the unlined landfill, where radioactive tritium leaks first were detected in the 1970s. A plume of tritium extends downhill from the site and has for years trickled into a creek that flows toward the nearby Savannah River.
Sierra Club officials say DHEC has been lax in making Chem-Nuclear follow rules at the disposal site through the years.
The appeals court acknowledged problems, saying that DHEC “failed to enforce the law of South Carolina’’ in monitoring the 235-acre landfill outside the town of Snelling.
The court said DHEC, as the agency overseeing Chem-Nuclear’s activities, did not enforce a handful of specific regulations established to protect the environment. It also said Chem-Nuclear had failed to follow some of the rules on nuclear waste disposal. Except for the timetable, the court’s decision last week was similar to last year’s ruling that took DHEC and Chem-Nuclear to task.
“It is important that DHEC enforce its own regulations and require Chem-Nuclear to take action to comply with the technical requirements,’’ the ruling said in sending the matter back to DHEC for consideration.
DHEC spokesman Jim Beasley said the agency will weigh the court’s decision and decide how to proceed. The agency will “ensure full compliance with the court’s opinion and the regulations we are authorized to enforce.’’
Energy Solutions, the parent company of site operator Chem-Nuclear, said in an email Thursday it would “carefully review the Court of Appeals decision and, as instructed by the court, prepare a proposal for DHEC to review.’’ The company said it is “dedicated to safe and compliant operations.’’
DHEC and Chem-Nuclear have for decades said the tritium poses no risk to the public or the environment because it is in an isolated area and is not as dangerous as other radioactive materials.
An array of critics, however, say tritium is still toxic and often is a forerunner of other, more dangerous pollutants that will one day wash into groundwater. Leaks were discovered within a decade of the Barnwell County site’s opening in 1971, despite initial assurances from state regulators.
The disposal site once took low-level nuclear waste from atomic power plants, hospitals and other places from across the country. Today, the landfill is open only to South Carolina, Connecticut and New Jersey, and waste volumes have dropped sharply. But the Sierra Club has pressed ahead with its 2005 lawsuit, saying better disposal practices will prevent tritium leaks from getting any worse.
One of the major concerns centers on rain that falls into open burial trenches. Environmentalists for years have pushed the state to require the placement of tents or roofs atop the burial trenches. That would cut down on the amount of rain that pours in, picks up radioactive pollutants from the waste and leaks through the bottom of the landfill and into groundwater, they say.
The court said Chem-Nuclear had done nothing to keep rain out of the burial pits, even though a state regulation says it is supposed to minimize movement of water in the pits. And the court said DHEC had not forced the company to comply with the rule intended to keep rain out of the pits — or acted to prevent rain from leaking through the bottom and into groundwater.
“Neither Chem-Nuclear nor DHEC could name one action Chem-Nuclear took,’’ to reduce rainfall from getting into active disposal units, Wednesday’s decision said. The decision went on to say that Chem-Nuclear “has taken no action whatsoever to prevent even one raindrop from migrating onto one active vault or trench.’’
In addition to installing roofs atop open trenches, Chem-Nuclear could seal burial vaults that hold waste. Those vaults have holes and now leak water into the bottom of disposal pits, conservationists say. In 2005, a lower court and DHEC had told Chem Nuclear to consider such improvements, but “none are currently in place,’’ the order said.
The court also said that when Chem-Nuclear collects water that gets into the pits, it does not test the water to determine if it is polluted by radioactivity. The decision said Chem Nuclear needs to test the water to protect the public. It said DHEC did not oversee this requirement properly.
“It seems the danger to health and safety requires testing’’ and cleanup when warranted, the ruling said.
Guild said the good news from Wednesday’s ruling is its central message. It validates long-running criticism that DHEC hasn’t enforced its own rules in overseeing Chem-Nuclear’s operation, Guild said.
”We are not going away,’’ Guild said. “This confirms our position and we will keep dogging these guys.’’