Can the NC Low-Level Radioactive Waste Management Authority pursue 'decay-in-storage' (holding radioactive waste long enough for it to decay to safe levels) as an alternative to permanent disposal, under its existing statutory mandate?

Plain-English summary

Some kinds of low-level radioactive waste have short half-lives. If you hold the waste in safe interim storage long enough, the radioactivity decays to background levels and the material can be released as ordinary waste. That technique is called "decay-in-storage" (DIS). It is an attractive alternative to permanent burial for the short-lived fraction of the waste stream.

The NC Low-Level Radioactive Waste Management Authority asked the AG whether it could pursue DIS within its existing statutory framework. Chapter 104G was written primarily to authorize a permanent disposal facility. Could the Authority, without new legislation, build a DIS facility instead?

Yes for study and recommendation, no for actual construction.

Chapter 104G is broad enough to include storage. The legislative findings in G.S. 104G-3 speak of "management" of LLRW, not just "disposal," and direct the Authority to ensure access to "sufficient facilities for the proper management and permanent disposal" of waste. The statute distinguishes between a "low-level radioactive waste facility" (broad, including storage) and a "low-level radioactive waste disposal facility" (narrower, permanent burial). G.S. 104G-2(6) and (7). So storage is a recognized category within the statute.

The Authority's mandate is open-ended. G.S. 104G-4 charges the Authority with determining "whether any other facilities are required for the responsible management of low-level radioactive waste in this State, and to do whatever may be necessary, consistent with this Chapter, to meet those requirements." G.S. 104G-6(a)(22) directs the Authority to periodically review facility availability, determine whether other facilities are required, and "make appropriate recommendations to the General Assembly."

But the actual decision is the legislature's. The Authority's role under G.S. 104G-6(a)(22) is to make recommendations to the General Assembly. Implementing a new option requires General Assembly action. Construction or licensure of a DIS facility goes beyond recommendation. Before the Authority can move from study to construction, it must obtain explicit approval and direction from the General Assembly.

The Southeast Compact does not bar DIS. NC is a party to the Southeast Compact (Chapter 104F), which addresses regional disposal facilities. The Compact preserves party-state authority to regulate and license facilities within their borders. Article VI(a)(9). So Compact membership does not foreclose a DIS option. In fact, the Compact's "facility" definition includes storage as a recognized management method.

Procedural path. The Authority may study and recommend DIS to the General Assembly. The legislature can then choose to amend Chapter 104G to expressly authorize DIS, fund it, and set the licensing conditions. Without that step, the Authority cannot build or license.

Currency note

This opinion was issued in 1999. 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 Low-Level Radioactive Waste Management Authority's history since 1999 includes the ultimately abandoned siting effort for a permanent disposal facility (Wake County), the 1999-2008 wind-down period, and the eventual restructuring of NC's LLRW handling through Southeast Compact channels. The DIS option discussed here did not produce a stand-alone NC facility. Anyone analyzing a current LLRW question should pull the current text of Chapter 104G and check the Authority's status (which may have changed substantially).

Common questions

Q: What is "low-level radioactive waste"?
A: Defined under the federal LLRWP Act and adopted in NC, LLRW is radioactive material that is not high-level waste (spent reactor fuel, reprocessing waste), transuranic waste, or naturally occurring/accelerator-produced radioactive material. LLRW comes from hospitals, research universities, industrial users, and nuclear power plants. It varies widely in radioactivity, from very low to relatively high.

Q: Why does decay-in-storage make sense?
A: Because much LLRW is short-lived. If you can hold it safely for 10 half-lives (so the material decays to less than 0.1% of its original activity), the material is essentially indistinguishable from background and can be released. For waste streams with half-lives of months or a few years, DIS is much cheaper than permanent burial.

Q: Why does the Authority need legislative approval before building?
A: Because Chapter 104G was written as a disposal-facility statute. The Authority's powers under that statute focus on a permanent disposal site. To build a different kind of facility (storage), the Authority needs new statutory authority. The general "do whatever may be necessary" language in G.S. 104G-4 was read by the AG as authority to recommend, not authority to construct.

Q: Could the General Assembly authorize DIS?
A: Yes. A simple amendment to Chapter 104G could expressly authorize the Authority to construct and license a DIS facility, set the technical standards, and provide funding. The 1999 opinion does not address whether the legislature was likely to do that.

Q: Did NC ever build a permanent LLRW disposal facility?
A: No. NC pursued a siting effort through the late 1990s and early 2000s for a permanent facility, but the effort eventually collapsed for political, fiscal, and technical reasons. NC LLRW continues to be shipped out of state, currently to facilities in Texas, Utah, and South Carolina.

Q: What is the Southeast Compact?
A: An interstate compact among southeastern states (NC, SC, GA, FL, AL, MS, TN, VA) that originally provided for regional sharing of LLRW disposal. The Compact has evolved as the regional disposal landscape has changed. NC's relationship to the Compact has had its own ups and downs.

Background and statutory framework

The federal Low-Level Radioactive Waste Policy Act (1980) and its 1985 amendments made each state responsible for providing disposal capacity for LLRW generated within its borders. States could go it alone or join compacts. NC joined the Southeast Compact and committed to siting a regional disposal facility, with Chapter 104G enacted in 1987 to create the LLRW Management Authority and authorize the siting effort.

The Authority spent the 1990s pursuing a Wake County site. The siting was politically difficult; the Authority's technical work and the Compact's regional dynamics added complexity. By 1999, the Authority was beginning to look at alternatives. DIS was one of those alternatives.

The 1999 AG opinion gave the Authority a green light to study DIS and a yellow light on implementation. The technical study was within the existing mandate. Implementation required legislative action.

The opinion is a model of statutory construction. The Authority pointed to expansive language ("do whatever may be necessary") and the AG read the operative powers narrowly given the statute's overall structure. The Authority gets latitude to think, not latitude to act.

Citations

• N.C. Gen. Stat. ch. 104E (NC Radiation Protection Act)
• N.C. Gen. Stat. § 104E-5(9b), (9c) (definitions of LLRW facility and disposal facility)
• N.C. Gen. Stat. ch. 104F (Southeast Compact law)
• N.C. Gen. Stat. ch. 104G (LLRW Management Authority)
• N.C. Gen. Stat. § 104G-2(6) (LLRW facility, broader definition including storage)
• N.C. Gen. Stat. § 104G-2(7) (LLRW disposal facility, narrower)
• N.C. Gen. Stat. § 104G-3 (legislative findings, "management" framing)
• N.C. Gen. Stat. § 104G-4 (purposes, "whatever may be necessary")
• N.C. Gen. Stat. § 104G-6(a)(22) (Authority's recommendation function)

Source

• Landing page: https://ncdoj.gov/opinions/decay-in-storage-proposal/

Original opinion text

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).

Like other related statutes [footnote 1], Chapter 104G expressly distinguishes between a "low-level radioactive waste facility" and a "low-level radioactive waste disposal facility." N.C.G.S. §§ 104G-2(6) and -2(7) (emphasis added). The broader definition includes a facility for the storage of low-level radioactive waste. N.C.G.S. § 104G-2(6).

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

Moreover, the legislative findings in Chapter 104G speak in terms of the proper "management" of LLRW [footnote 2], not just "disposal," and allow for multiple "facilities" to accomplish this task, 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.

[footnote 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.]

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 low-level radioactive waste in this State, and to do whatever may be necessary, consistent with this Chapter, to meet those requirements.

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 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