North Carolina Department of Justice
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Reply to: Gayl M. Manthei Health & Public Assistance Tele: (919) 716-6855 Fax: (919) 716-6758

January 11, 1999

Mr. Robert B. Heater Chairman, Technical Committee North Carolina Low-Level Radioactive

Waste Management Authority 116 West Jones Street, Suite 2109 Raleigh, North Carolina 27603-8003

Re: Advisory Opinion: “Decay-in-Storage” Proposal, Chapter 104G of the N.C. General Statutes

Dear Mr. Heater:

You asked for an advisory opinion about the North Carolina Low-Level Radioactive Waste Management Authority’s legal ability to pursue “decay-in-storage” (DIS) as a method of managing low-level radioactive waste (LLRW) within the framework of the Authority's enabling act (Chapter 104G). In considering this response, keep in mind that it does not address either the technical or economic feasibility of pursuing such an option, or any regulatory acceptance of the same. Moreover, this response assumes DIS will be treated as a waste management method different from the “permanent disposal” contemplated in Chapter 104G and elsewhere.

While the primary purpose of Chapter 104G and thereby the Authority is to site, build, operate and close a low-level radioactive waste disposal facility, the Act provides enough flexibility to explore other options if necessary to solve the "urgent problem" of low-level radioactive waste management. See N.C.G.S. §§ 104G-3, -4, and -6(a)(22).

1

Like other related statutes , Chapter 104G expressly distinguishes between a "low-levelradioactive waste facility" and a "low-level radioactive waste disposal facility." N.C.G.S. §§ 104G

1 See, e.g., the North Carolina Radiation Protection Act, N.C.G.S. §§ 104E-5(9b) and -5(9c).

Mr. Robert B. Heater January 11,1999 Page 2

2(6) and -2(7) (emphasis added). The broader definition includes a facility for the storage of lowlevel radioactive waste. N.C.G.S. § 104G-2(6).

Moreover, the legislative findings in Chapter 104G speak in terms of the proper

2

"management" of LLRW , not just "disposal," and allow for multiple "facilities" to accomplish thistask, if necessary:

[T]he safe and efficient management of low-level radioactive waste, including the timely establishment of adequate facilities for the comprehensive management and permanent disposal of low-level radioactive waste, presents urgent problems for North Carolina....

It is the policy of the State to provide and ensure continuous access to sufficient facilities for the proper management and permanent disposal of low-level radioactive waste...; [and] to limit the number of facilities required to effectively and efficiently manage and dispose of these wastes....

N.C.G.S. § 104G-3.

Chapter 104G's legislative "purpose" contains an even broader mandate. In addition to ensuring that North Carolina fulfills its responsibilities under the national Low-Level Radioactive Waste Policy Amendments Act to provide adequate capacity for the permanent disposal of LLRW,

[t]he Authority is also to be responsible for determining whether any other facilities are required for the responsible management of lowlevel radioactive waste in this State, and to do whatever may be necessary, consistent with this Chapter, to meet those requirements.

2 Chapter 104G does not define "management," but see Chapter 104F (the Southeast Compact law), Article II(m), which defines "waste management" as storage, treatment, or disposal of waste. Hence, storage is a recognized waste management option.

Mr. Robert B. Heater January 11,1999 Page 3

N.C.G.S.
§ 104G-4 (emphasis added). "Whatever may be necessary" could obviously include consideration of a "storage" option if the method of doing so is consistent with the rest of Chapter 104G.
N.C.G.S.
§ 104G-6 sets out the powers and duties of the Authority. Among other things, the Authority must periodically
[I] review the current and projected availability and adequacy of facilities for the management of low-level radioactive waste, [ii] determine whether any facilities for the management of such wastes are required in addition to the disposal facility operated pursuant to this Chapter, and [iii] make appropriate recommendations to the General Assembly.
N.C.G.S.
§ 104G-6(a)(22). Thus, the Authority has not only the ability but also the duty to consider other non-disposal options if it deems them necessary to the proper management of LLRW in North Carolina.
However, despite the seemingly open-ended mandate of N.C.G.S. § 104G-4 to do "whatever may be necessary" to effectively manage LLRW, the Authority's role in implementing any other options is to recommend appropriate changes to the General Assembly for ultimate action there. See
N.C.G.S.
§ 104G-6(a)(22). Therefore, before attempting to construct or obtain a license for a DIS facility, the Authority must obtain approval and direction from the General Assembly.

The Compact law (N.C. General Statutes, Chapter 104F) is not a bar to the Authority’s investigation of the DIS concept. Nothing in the Compact law is intended to "[a]ffect the rights and powers of any party state . . . to regulate and license any facility within its borders . . . ." N.C.G.S. § 104F-1, Article VI(a)(9). Furthermore, any rights, duties or powers granted to party or host states by virtue of the Compact law are in addition to their rights as sovereign states, "and nothing in this Mr. Robert B. Heater January 11,1999 Page 4

compact shall be construed to infringe upon, limit or abridge those rights." Article III. In fact such a “facility” could be designated as an official “regional facility” to receive waste from all compact party states. See Articles II(b), (j), and (m); Article IV(e)(4).

Sincerely,

Ann Reed Senior Deputy Attorney General

Gayl M. Manthei Special Deputy Attorney General

cc: Walter B. Sturgeon