If North Carolina was obligated under the Southeast Compact to be prepared to accept up to 32 million cubic feet of low-level radioactive waste, did the state's radioactive waste authority have to apply for a license to dispose of all 32 million, or could it license a smaller initial volume?

Plain-English summary

The NC Low-Level Radioactive Waste Management Authority was on the hook, as the Southeast Interstate Compact's second host state, to be prepared to accept up to 32 million cubic feet of low-level radioactive waste at a regional disposal facility. The Authority's contractor, Chem-Nuclear Systems, Inc. (CNSI), was preparing the license application. The Authority's Board had just decided, based on CNSI's volume projections and a margin for error, that the license application should specify only 11 million cubic feet, not 32 million. The Board conditioned the decision on a satisfactory legal review.

Special Deputy AG Terry Richard Kane, writing under AG Michael F. Easley, walked through the federal and state law and concluded the 11-million-cubic-foot license application was lawful.

The reasoning had three parts. First, the 32-million-cubic-foot figure in N.C.G.S. § 104F-1 (the codified Southeast Compact) and Pub. L. No. 101-171 was a maximum host-state obligation, not a minimum licensing target. NC had to "be prepared to accept up to" that volume; nothing in the compact or federal consent acts required the initial license to actually authorize disposal of that volume.

Second, the state regulatory framework (15A NCAC 11 .1200 et seq.) contemplated license modification and renewal. Licenses run for five years and can be amended to meet changed conditions. If projections proved wrong, the Authority could come back to the regulators and seek an expansion. There was no irrevocability concern.

Third, an under-license was prudent on policy grounds. Licensing for an unreasonably large volume could increase facility startup costs (land acquisition, infrastructure relocation, population relocation), and a conservative initial license could discourage non-Compact states from neglecting their own LLRW disposal duties. That latter point aligned with the purposes of the Low-Level Radioactive Waste Policy Act, which sought to keep each state or compact responsible for its own waste.

The opinion also surveyed the federal regulatory architecture. NC is an Agreement State under the Atomic Energy Act (42 U.S.C. § 2021) and regulates most uses of radioactivity through rules of the Radiation Protection Commission and enforcement by the Division of Radiation Protection. The 1980 Low-Level Radioactive Waste Policy Act made each state responsible for its own LLRW but encouraged regional compacts; the 1985 Amendments added milestone deadlines and penalties; the Supreme Court in New York v. United States (1992) struck down the most extreme "take title" penalty as unconstitutional, but left the rest of the framework intact, including the compact-restriction-on-interstate-commerce provision that had survived Philadelphia v. New Jersey (1978) doctrine.

NC and seven other states (Alabama, Florida, Georgia, Mississippi, South Carolina, Tennessee, Virginia) formed the Southeast Compact in 1983. NC was chosen as the second host state in 1986. The 32-million-cubic-foot maximum was added by an April 1990 certification by the Compact Commissioners, consented to by Congress in Pub. L. No. 101-171. After serving as host, NC would not host again until every other compact state had taken its turn.

The whole project ultimately did not produce a built facility, but in 1993 it was the AG's job to advise the Authority on whether the license application could shrink. The answer was yes.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The NC LLRW disposal facility project was a long, expensive saga that ultimately collapsed. NC was eventually expelled from the Southeast Compact for failing to bring a facility online; the resulting litigation and judgments are themselves substantial. The current federal and state LLRW framework has evolved with new compacts, new facilities (Texas and Utah operate the main commercial disposal sites today), and changed congressional consent acts. Anyone analyzing a current LLRW licensing question should pull the present text of Chapter 104G, the current 15A NCAC 11, and any current AG opinions or court decisions, including the NC v. Alabama and related compact-expulsion cases.

Common questions

Q: What is a host state under an LLRW compact?
A: A member state that, on a rotating basis under the compact's terms, takes responsibility for siting and operating the regional disposal facility. Under the Southeast Compact, NC was the second host state after South Carolina's Barnwell facility. Host status comes with a maximum volume obligation and a maximum duration (20 years or 32 million cubic feet under § 104F-1, Art. V(e)).

Q: Why did the Authority want to license for only 11 million cubic feet?
A: CNSI projected that 11 million cubic feet (with a margin for error) would cover the region's actual generation over the 20-year operating life. Licensing for more would have meant acquiring more land, relocating more infrastructure, and possibly more residents. The Authority wanted to size the facility to the realistic need, with the option to expand the license later if projections were wrong.

Q: Does the 32-million-cubic-foot maximum still bind anyone if the license is only for 11 million?
A: The compact obligation runs to the state and the Compact Commission, not directly to the facility. NC remained obligated to be prepared to accept up to 32 million; if regional volumes outpaced the 11-million license, the Authority would need to seek a license modification. The compact's volume cap was a ceiling on NC's exposure, not a floor on the initial license.

Q: What did New York v. United States hold about LLRW?
A: The 1992 Supreme Court decision struck down the most coercive provision of the 1985 LLRW Policy Amendments Act, the "take title" penalty that would have forced states to assume ownership of all LLRW within their borders by 1996. The Court held the take-title provision was an unconstitutional commandeering of state legislative authority. The rest of the LLRW framework survived, including the incentive structure and the consent to compact restrictions on interstate waste movement.

Q: Did NC ever build the facility?
A: No. The project ran into deep technical and political problems, was repeatedly delayed, and ultimately collapsed. The Southeast Compact eventually expelled NC, and the resulting compact-breach litigation is part of the project's legacy. The AG's 1993 advice about licensing volume turned out to be an early move in what became a much longer story.

Q: What is the practical difference between an "Agreement State" and a non-agreement state?
A: An Agreement State has signed a § 274 agreement with the federal Nuclear Regulatory Commission to assume regulatory authority over certain categories of radioactive material. NC signed its agreement in 1964 (29 Fed. Reg. 10619). That means the Radiation Protection Commission and the Division of Radiation Protection, not the NRC directly, license LLRW disposal in NC.

Background and statutory framework

Low-level radioactive waste includes contaminated equipment, protective clothing, filter media, and similar material from nuclear power plants, hospitals, universities, and industrial users. It is distinct from high-level waste (spent fuel) and from transuranic waste; LLRW disposal is the responsibility of the states (or interstate compacts), not the federal government, under the Low-Level Radioactive Waste Policy Act.

The Southeast Interstate Low-Level Radioactive Waste Management Compact, formed in 1983 by NC, AL, FL, GA, MS, SC, TN, and VA, established a regional system for managing LLRW disposal capacity. NC's compact obligations are codified at N.C.G.S. § 104F-1. The host-state regime rotates, with each member state taking a turn operating a regional facility for the others. Per Article V(e), a host state's maximum exposure is 20 years or 32 million cubic feet, whichever comes first.

Federal consent to the compact came through the 1986 Omnibus Compact Consent Act (Pub. L. No. 99-240) and the 1989 Amendments Consent Act (Pub. L. No. 101-171). Together those acts give the compact federal statutory authority to restrict importation of non-compact waste, a power individual states could not exercise on their own under Commerce Clause doctrine (Philadelphia v. New Jersey, 437 U.S. 617 (1978)).

NC's own implementing framework includes the Low-Level Radioactive Waste Management Authority Act of 1987 (Chapter 104G) and the licensing scheme in Chapter 104E. The Authority can contract with a private operator (here, CNSI), but the operator must hold a license from the Division of Radiation Protection, operate under Radiation Protection Commission rules, and submit to executive direction from the Authority. The license application has to specify a disposal volume, which is what the 1993 opinion was about.

Citations

• N.C.G.S. § 104E-5(9a) (LLRW definition)
• N.C.G.S. § 104E-7(a)(2), (8) (Radiation Protection Commission rulemaking)
• N.C.G.S. §§ 104E-10, 104E-10.1 (license application and content)
• N.C.G.S. § 104F-1 (Southeast Compact, codified)
• N.C.G.S. § 104F-1, Art. IV(e)(9) (super-majority required to authorize importation)
• N.C.G.S. § 104F-1, Art. V(a) (rotational host status)
• N.C.G.S. § 104F-1, Art. V(e) (20-year / 32-million-cubic-foot host maximum)
• N.C.G.S. § 104G-2(5) (LLRW definition mirroring federal)
• N.C.G.S. § 104G-6 (Authority's executive direction over facility)
• N.C.G.S. § 104G-10(a) (private operator authority)
• N.C.G.S. § 104G-11 (Authority licensing)
• 42 U.S.C. § 2021 (Atomic Energy Act Agreement State provisions)
• 42 U.S.C. § 2021b (LLRW definition)
• Pub. L. No. 96-573 (Low-Level Radioactive Waste Policy Act, 1980)
• Pub. L. No. 99-240 (1985 Amendments and Omnibus Compact Consent Act, 1986)
• Pub. L. No. 101-171 (Southeast Compact Amendments Consent Act of 1989)
• 15A NCAC 11 .1200, .1205(a)(3)(C), .1215(k), .1216, .1217 (NC LLRW disposal regulations)
• New York v. United States, 505 U.S. 144, 112 S.Ct. 2408 (1992) (LLRW take-title provision unconstitutional, rest of framework survives)
• Philadelphia v. New Jersey, 437 U.S. 617 (1978) (states cannot restrict interstate waste shipment absent federal authorization)
• 59 N.C.A.G. 40 (1989) (earlier AG opinion on prelicensing funding via SC surcharges)

Source

• Landing page: https://ncdoj.gov/opinions/low-level-radioactive-waste-disposal-facility/

Original opinion text

DATE: March 31, 1993

RE: Low-Level Radioactive Waste Disposal Facility; Requirement in N.C. GEN. STAT. § 104F-1 and Pub. L. No. 101-171 that State Be Prepared to Accept up to 32 Million Cubic Feet for Disposal; Effect upon License for Disposal Facility Sought pursuant to N.C. GEN. STAT. §§ 104E-10, 104E-10.1, 104G-11

Requested by: Raymond L. Murray, Ph.D., Chairman, North Carolina Low-Level Radioactive Waste Management Authority

Issued by: Administrative Division, Health and Public Assistance Section

Question: Does the requirement expressed in North Carolina and federal law that North Carolina be prepared to accept a maximum volume of 32 million cubic feet of low-level radioactive waste for disposal at a prospective regional facility in North Carolina preclude the specification of a lesser amount in the application for a license to operate the facility?

Conclusion: No.

Legal Background

As an "Agreement State" under the Atomic Energy Act, see Agreement between the Atomic Energy Commission and the State of North Carolina, 29 Fed. Reg. 10619 (1964), 42 U.S.C. § 2021, N.C. GEN. STAT. § 104G-10(a), North Carolina regulates most uses of radioactivity in the State under rules promulgated by the Radiation Protection Commission and enforced by the Division of Radiation Protection of the Department of Environment, Health and Natural Resources.

This regulation extends to the disposal of low-level radioactive waste ("LLRW"). LLRW is defined in 42 U.S.C. § 2021b as radioactive waste that is "not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or by product material" in other statutes, and defined compatibly in State law in N.C. GEN. STAT. §§ 104E-5(9a) and 104G-2(5). North Carolina regulations for the disposal of LLRW are found at 15A NC ADMIN CODE 11 .1200.

In 1980, upon the request of the National Governor's Association for a State-based solution to the problem of safely disposing of the nation's LLRW, Congress passed the Low-Level Radioactive Waste Policy Act, Pub. L. No. 96-573, 94 Stat. 3347 (1980). In this measure, each State was made responsible for disposal capacity for all LLRW generated within its borders, but the States were encouraged to enter into compacts to provide for regional solutions. As an incentive, compacts were given federal statutory authority to prohibit the importation of non-compact LLRW, a power apparently not constitutionally available to individual States under the rationale of Philadelphia v. New Jersey, 437 U.S. 617 (1978), and its progeny.

Congress revisited the LLRW issue in the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. No. 99-240, 99 Stat. 1842 (1986). The Amendments established a complex set of schedule milestones and penalties for States not complying with them. The most draconian of these, requiring noncomplying States to assume title to and liability for all LLRW within their borders by 1996, was held unconstitutional in New York v. United States, ___ U.S. ___, 112 S.Ct. 2408 (1992). Otherwise, the amended Low-Level Radioactive Waste Policy Act has passed constitutional scrutiny, including, at least inferentially, its continued permission for compacting States to restrict interstate commerce in LLRW.

North Carolina and the Southeast Compact

North Carolina joined with Alabama, Florida, Georgia, Mississippi, South Carolina, Tennessee, and Virginia to form the Southeast Interstate Low-Level Radioactive Waste Management Compact in 1983. The terms of the Compact have been codified in N.C. GEN. STAT. § 104F-1. In early 1986, consistent with Article I, section 10, clause 3 of the United States Constitution, Congress explicitly consented to the provisions of the Southeast Compact in the Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, Pub. L. No. 99-240, 99 Stat. 1842, 1871 (1986). Among these provisions is the Compact's requirement for a super-majority - including the votes of both of the host State's commissioners - to authorize the importation of any LLRW into the Southeastern region for disposal. N.C. GEN. STAT. § 104F-1, Art. IV(e)(9).

Later in 1986, the Southeast Compact Commission chose North Carolina as the Compact's second host State. A Southeast Compact host State's responsibilities are not unlimited. It must serve in that capacity for a maximum of twenty years or until it disposes of 32 million cubic feet of waste, whichever may come first. N.C. GEN. STAT. § 104F-1, Art. V(e). In April 1990 North Carolina's two Southeast Compact Commissioners certified that all other member States had enacted identical limitations. The limitations were consented to by Congress in the Southeast Interstate Low-Level Radioactive Waste Compact Amendments Consent Act of 1989, Pub. L. No. 101-171, 103 Stat. 1289 (1989). After serving as the region's host State, a State may not become the region's host State again until every other Compact State has taken a turn hosting a regional facility. N.C. GEN. STAT. § 104F-1, Art. V(a).

This Office has previously opined that the Southeast Compact may lawfully fund prelicensing development of the North Carolina facility through South Carolina's imposition of surcharges upon the region's generators of LLRW. 59 N.C.A.G. 40 (1989).

North Carolina's Prospective LLRW Disposal Facility

Consistent with its responsibilities as the Compact's second host State, North Carolina enacted the Low-Level Radioactive Waste Management Authority Act of 1987, codified as Chapter 104G of the General Statutes, creating the Authority and directing it to site a LLRW disposal facility in North Carolina as an urgent matter in the interest of the State's continued economic growth and of public health and the environment. A private company may operate the eventual disposal facility as the State's agent, N.C. GEN. STAT. § 104G-10(a), but must do so under the regulations of the Radiation Protection Commission, N.C. GEN. STAT. §§ 104E-7(a)(2), (8), under a license issued by the Division of Radiation Protection, N.C. GEN. STAT. §§ 104E-10, 10.1, and under the executive direction of the Authority, N.C. GEN. STAT. § 104G-6. In July 1989, the Authority contracted with Chem-Nuclear Systems, Inc. (CNSI), as the prospective facility operator.

CNSI must submit a license application specifying the amount of LLRW to be disposed of, 15A NC ADMIN CODE 11 .1205(a)(3)(C), and many of the technical data, calculations, and designs required in the license application are affected by the estimated volume of LLRW to be received for disposal. The license, once issued, may be amended to meet changed conditions. Id. .1216. Although the facility is expected to operate for twenty years, the license will be issued for only five years, Id. .1215(k), after which it may be renewed. Id. .1217.

Action by Low-Level Authority Further Restricting Waste Volume

On 27 January 1993, based upon regional waste projections it received from CNSI for the entire expected period of disposal facility operation in North Carolina, and allowing a substantial margin for error in the projections, the Authority directed CNSI to prepare a license application for the disposal of a maximum of only 11 million cubic feet of LLRW. The Authority expressly conditioned this direction upon a satisfactory legal review by this Office.

CNSI anticipates submitting an application for a license to operate a regional LLRW disposal facility in North Carolina by the end of 1993.

Analysis

While the Southeast Compact obligates North Carolina as a host State to accept a maximum of 32 million cubic feet of LLRW for disposal, neither federal nor State statutes require the Department of Environment, Health and Natural Resources to permit the disposal of this maximum waste burden in the initial license it grants, nor do they require the Authority and its contractor to seek a license for the maximum amount in the initial license application.

State regulations do not require the inclusion of all legally acceptable waste volume in the license application. On the contrary, provisions for applying for license modification and the requirement to apply to renew the license every five years would indicate an ability to adjust the quantum of waste volume, should conditions warrant such adjustment.

The Authority took its 27 January 1993 action limiting the LLRW volume to be specified in the license application to 11 million cubic feet after receiving volume projections from experts in the LLRW field and upon due deliberation, and in doing so allowed a judicious margin for error in the projections. If the experts' volume projections are even approximately correct, it is extremely unlikely that actual regional waste received during the facility's twenty years of operation will exceed the 11 million cubic feet to be specified in the initial license application. Conservative licensing in North Carolina, moreover, discourages States beyond the Southeast Compact from neglecting their own duty to provide for LLRW disposal capacity - a goal in thorough conformity with the Low-Level Radioactive Waste Policy Act, as amended, and its purposes.

To license at the outset, on the other hand, a North Carolina LLRW disposal facility for an unreasonably large volume greater than 11 million cubic feet might unnecessarily increase the facility start-up costs of land acquisition and infrastructure relocation, to say nothing of unnecessarily increasing the social costs of population relocation if residences, farms, and small businesses exist within the additional land needed.

North Carolina, as a Southeast Compact host State, is lawfully empowered to prevent the disposal of out-of-Compact waste at the State's future facility, and thereby to exercise substantial control over the volume of waste to be accepted during the course of the facility's operation. Limiting the volume of waste specified in the license application to a volume consistent with purely regional projections would be consonant with the exercise of that power.

MICHAEL F. EASLEY
Attorney General

Terry Richard Kane
Special Deputy Attorney General