Metropolis: Wednesday, November 19, 2003
Dumping on the Dump

Environmentalists and others think legislative haste led to bad nuclear waste law.


On Earth Day, ironically enough, the 78th Texas Legislature finally passed what State Rep. Lon Burnam calls “a monopoly corporate welfare bill” — intended to enrich one specific corporation. He’s talking about the bill allowing development of a multi-state nuclear dump in Texas, and he says it was written for the benefit of Waste Control Specialists, a West Texas hazardous waste dump owned by Dallas billionaire Harold Simmons. “It will allow Texas to become a nuclear waste dumping ground for the nation — if not the world,” he said.

It was a long time coming. Versions of the so-called “low-level” radioactive waste disposal measure have been proposed repeatedly for nearly a decade, defeated each time by intense lobbying from environmental groups and anti-nuclear activists. This year they lost. The bill passed both chambers with little notice, Burnam said, as most of the media coverage centered on the redistricting dance between the two parties.

This is a “risky experiment,” Burnam said. The facility will be “host to commercial, federal, and mixed hazardous wastes all at the same site, a deadly combination of products that are not compatible.”

Opponents, however, have not given up the battle completely. They will fight a rearguard action in Austin on Dec. 17, trying to convince the state environmental agency to minimize the bill’s damage via licensing and operating rules. And they are hoping for help from an unusual quarter — the Nuclear Regulatory Commission, which is nearly always on the opposite side of issues from the anti-nuke lobby, but this time may be the groups’ best ally. The NRC has tossed in a monkey wrench that could shut the dump down altogether — or make it unprofitable for a private company to operate.

The law as written, the NRC says, is in direct conflict with federal statutes. Bottom line, according to NRC spokesperson Dave McIntyre, is that unless the law is changed, the NRC will not allow any shipments of federally owned radioactive waste to any Texas site. That alone could doom the dreams of Simmons.

But other concerns raised by the law are myriad. Susybelle Gosslee, president of the Dallas League of Women Voters, is most worried about the dangers of moving radioactive cargoes through the state to reach the dump. She wants the regs to require extra funding for “comprehensive first-response teams for communities throughout the state ... and adequate security” in transport. Burnam, the voters league, and others are also worried that, if the dump is located as expected on Simmons’ company’s land in West Texas, the radioactive and other hazardous wastes to be buried there in unlined trenches will eventually permeate the underlying red clay and contaminate the aquifer below.

Other dumps located on similar clays have turned into nuclear nightmares, Burnam said, with taxpayers ending up footing the bill. Burnam wants the regulations tightened to “zero leak tolerance.”

In fact, the new law raises so many concerns and potential conflicts that one environmental attorney has suggested that the state agency, the Texas Commission on Environmental Quality, will be opening the state up to years of litigation if it tries to implement the law in its present form.

“If there was ever a time for an agency charged with such a monumental task to go above and beyond the minimal requirements of the law,” Burnam said, “the time is now.”

The three-member environmental commission will take testimony on Dec. 17, before approving the policies that will govern the planned dump for about the next 15 years. Staffer Susan Jablonski said the TCEQ encourages public testimony, and that concerns raised at earlier hearings have already convinced staff to make some changes to the proposed regulations. She would not say what they are.

The changes that the Nuclear Regulatory Commission is seeking are no small matter. In a letter to the state agency, NRC official Paul Lohaus pointed out that the Texas law conflicts with federal law regarding ownership of the land, buildings, and ultimately the waste.

Federal regulations governing low-level nuclear waste disposal sites are stringent about ownership — and there are no exceptions, said the NRC’s McIntyre. They require that the land and the buildings be owned by either the state or federal government before a license to operate is issued, he said. Otherwise, the NRC will not approve any transfer of federal waste to the site.

Under the Texas law, the private owner would not be required to turn over the federal waste site to the feds until decommissioning, years into the future. “That’s not acceptable,” McIntyre said. “This ownership issue has to be resolved,” he said, before any wastes from a federal facility can be shipped.

Government ownership “from the beginning and into perpetuity,” is critical, McIntyre said, to guarantee that the contaminated site will be maintained and monitored for the safety and health of the public long after the license holder is gone. “There must be certainty of the stewardship” of a nuclear waste site beyond the 15 or 30 years of a license holder, he said. “The Texas regs have to be compatible with the NRC’s. Right now they are not.”

The issue is one of keen interest to billionaire Simmons. His company already owns a hazardous waste disposal facility on about 1,000 acres in Andrews County not far from the New Mexico border. He has reportedly spent about $1 million in the past two years lobbying and contributing to legislator’s campaigns, in an effort to get the bill passed. One portion of the resulting law will, for the first time, allow a nuclear dump to be privately owned and operated. The law also will allow the eventual licensee to accept tens of millions of cubic feet of radioactive waste, not only from nuclear power plants and medical facilities, but from nuclear weapons programs dating to 1943. Today those federal wastes are “temporarily” stored by the Department of Energy at aging and leaking facilities around the country.

There’s little doubt in Austin that Simmons’ company will win the license. “His lobbyists, 16 of them, helped write the bill,” Colin Leyden, an aide to Burnam, said.

Burnam represents the Texas Radioactive Waste Defense Fund, a coalition of statewide groups that includes the Sierra Club, Public Citizen, and the League of Women Voters. He said the regulations as currently proposed allow a tolerance for leaks, which is unacceptable.

“This dump will be built with an assumption that leaks will occur,” he said, and that the red clay underneath Andrews County will keep radiation, including long-lived isotopes such as plutonium, from migrating into the water tables.

Similar assumptions about the imperviousness of clay doomed a low-level waste dump at Maxey Flats in Kentucky, he pointed out in testimony before the TCEQ. It was closed in the 1980s after radioactive isotopes migrated to the groundwater. The operator walked away, and Maxey Flats is now a Superfund clean-up site. Burnam listed five other low-level waste sites around the country that had been touted as safe that turned into nuclear hot-spots.

The years-long effort to open a waste site in the state was driven by Texas’ commitment to Vermont and Maine under a compact approved in 1988, with Congressional approval. In that agreement, Texas committed to building a dump for nuclear waste generated within its borders and allowing the two smaller states to ship their wastes here for a $25 million fee. (The only exception is spent fuel from nuclear reactors. Those hot rods must be shipped to a federal high-level waste site that may or may not open someday at Yucca Mountain in Nevada.) The compact was supposed to shield Texas from having to accept nuclear waste from other states under interstate commerce regulations. However, Maine’s legislature voted last year to pull out of the compact because of the years of delay. Its only reactor has been decommissioned and sent to other disposal sites.

That leaves the radioactive detritus from Texas’ two nuclear plants and Vermont’s one plant, as well as a small amount of medical and research wastes. Not enough, Simmons reportedly has said, to make a dump profitable. He has lusted after the DOE wastes from the git-go, Burnam said. “That’s where the money is.” The Texas Observer recently estimated that profits from such a dump could top $100 billion.

But that potential for profit could also become a nightmare for the state, according to Austin environmental attorney David Fredrick, an opponent of the dump. Because there are such “large profits to be made in radioactive waste disposal,” he warned the commission, “there are a number of corporations, individuals, institutions, and even states that would have incentives to challenge the entire Texas ... program,” if the commission is forced to adopt rules that conflict with federal law. That could throw the state into litigation that could last for decades, he said.

“This bill was on the fast track this session,” Burnam said. “No one bothered to check with the feds. This is what you get when legislators don’t do their homework.”

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