Toxic Waste Disposal?
Not in My Backyard!
The proposed siting of a low level radioactive waste disposal facility in Hudspeth County, Texas, is of serious concern to the people living in far Southwest Texas. However, notwithstanding the enormity of the issue, the publicity surrounding the proposed facility presents an opportunity to observe a state agency in action. The disposal of nuclear waste begins with enabling legislation and ends with the agency's determination of what lies in the public interest. The following information on the legislation enabling the state to dispose of toxic waste and the thorny questions the state agency must consider in arriving at a decision is provided to assist the observer in following the media coverage of the case.
ENABLING LEGISLATION. Regulation of radioactive material was originally an exclusive function of the Atomic Energy Commission (AEC) of the federal government under the Atomic Energy Act of 1954. The AEC (now the U.S. Nuclear Regulatory Commission) was amended by congress in 1959 to permit states to regulate some kinds of radioactive material by formal agreement with the AEC. The Low Level Radioactive Waste Policy Act of 1980 required each state to be responsible for disposing of low level waste commercially generated within the state. This disposal could be a cooperation with other states through a compact.1 Texas is such an Agreement State.
In Texas, jurisdiction over low-level radioactive waste is shared by the Texas Department of Health (TDH), the Texas Natural Resource Conservation Commission (TNRCC) and the Texas Low Level Radioactive Waste Disposal Authority (TLLRWDA). The TDH is responsible for the use, processing, classification and transportation of low level waste. The TNRCC licenses and regulates disposal of the low level waste. The TLLRWDA is responsible for siting, developing and operating the low level waste disposal facility.2 Texas has entered into a compact with Maine and Vermont for disposal of low level waste from those states. The compact has to be ratified by the United States Congress. Radiation regulations promulgated by the TDH are known as the Texas Regulations for Control of Radiation (TRCR), which were adopted by the TNRCC in its rules at 30 Tex. Admin. Code ¤336.1 (West 1996). The TLLRWDA's application was made under TRCR Part 45, "Licensing Requirements for the Surface Land Disposal of Radioactive Waste."
THE APPLICATION. The TLLRWDA applied for a low level nuclear waste dump site near the town of Sierra Blanca in Hudspeth County in 1992. The application was voluminous and was revised numerous times between 1992 and 1996. The site is to be 18 miles north of the Rio Grande.3 The minimum design capacity is 1,200,000 cubic ft. The facility can accommodate up to 60,000 cubic ft. per year, and its operating life is to be 30 years.4 After closure of the site, there will be a 5 year observational phase followed by some monitoring for 100 years or longer.5
The cost of the project is enormous. Since the filing of the application in 1992, the state has spent $18.6 million on the Sierra Blanca site project. Including the money spent on other locations which failed to materialize, the total amount spent toward the low level nuclear waste site is $46 million.6 Hudspeth County is expected to be paid $5,000,000 for the site and $800,000 to $1,000,000 per year for the 30 years of operational life.7 Hudspeth County is not a highly populated county. Its population was 2,915 in the 1990 census.8
QUALIFICATIONS FOR PARTY STATUS. In order to have standing, a party must be "an affected" person. An "affected" person is one who has personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application. An interest common to members of the general public does not qualify as a personal justiciable interest."9 Section 55.29 of the Tex. Admin. Code lists the factors which are considered relevant to a determination of "affected person." Every person outraged (or overjoyed!) by the prospect of having a nuclear waste dump in his or her back yard, every environmental group in the country, every governmental entity which might be alarmed or might want a piece of the action is not necessarily an affected person. Out of many applications for party status, only a select number of governmental, environmental and Mexican agencies achieved party standing.
IMPACT OF ADMINISTRATIVE DECISIONS. The Third Court of Appeals accurately identified the role of administrative agencies and the deference given by the courts to their decision-making. "The agency knows best the interrelationship between the law, fact, and administrative policy as to all the relevant issues; it knows best the state of its resources, its calendar, and where the public interest lies in orchestrating all its activities; it is intimately familiar with the entire body of evidence in the record of the case, much of which may be lost in a reviewing court. We in the judicial department owe the executive officials in the agencies a good deal of deference as they attempt to sort out these matters, identify the public interests involved, and carry out their public administrative responsibilities."10 The sorting out of these matters, the evidentiary phase, is currently under way and final hearings are scheduled in early 1998. The TNRCC will make its official decision shortly thereafter. Its ultimate decision will profoundly impact the people in Southwest Texas.
IDENTIFYING THE PUBLIC INTEREST. The agency faces a difficult task in determining what lies in the public interest because the issue of radioactive waste, even at low levels, is highly charged and emotional.
Proponents of the site view the issue from the perspective of cash flow to the community and the creation of jobs, even though the TLLRWDA estimates the total permanent jobs to result from the operational phase of the waste disposal site will only be 33, with a total estimated impact of 65 full time jobs. (There will be more jobs on a temporary basis during the construction phase.)11 In a rural community such as Hudspeth County, the inflow of cash which can be used to improve the local schools, hospitals, libraries and the overall quality of life for the next 30 years is powerfully attractive. But, even if the site is viewed favorably, questions still persist. What becomes of the community during the 100 year interval when the payments have ceased and migration into the county has not occurred in sufficient numbers to form a large tax base? What will happen to it if federal and/or state laws change over the next 30 years so that the annual income is reduced or stopped altogether?
Opponents of the site view the issue from the perspective of health, environmental and social issues. Is low level radioactive material completely safe? Will it leak into the atmosphere or the water? Will people and animals be exposed to it, given that the site is expected to last for 130 or more years? What if there is an accident in transport to the site or transfer to the storage canisters? Was environmental racism a factor in selection of the site? Is the money worth it? There is some history to support the opposing view. The safety of nuclear waste disposal sites has been a matter of concern in the past. In the 1970's there were six nuclear waste disposal sites located in Sheffield, Illinois; Maxey Flats, Kentucky; West Valley, New York; Hanford, Washington; Beatty, Nevada; and Barnwell, South Carolina. Three of the sites were forced to close before 1980. In 1978, the facility in Sheffield, Illinois, was closed due to reaching maximum capacity, and through 1992, it had experienced seepage of waste which still required cleanup and maintenance.12 In Maxey Flats, Kentucky, the site was closed in 1977 because contaminated water leaked into its waste trenches.13 The cleanup was still in progress as of August 1993.14 The site in West Valley, New York, was closed in 1975, after experiencing leakage. A portion of the site had been decontaminated by December 1993.15 The Beatty, Nevada, site was closed twice in 1979 due to mishandling of the waste during transport.16 The Hanford, Washington, site was temporarily closed in 1979 as well. The Governor of South Carolina reduced the waste accepted at the Barnwell site in response to the Hanford closure.17 Will the TLLRWDA learn how to build, operate and maintain a fail safe site from these past mistakes or will history repeat itself? The siting of a low level nuclear waste dump will probably not occur again within the State of Texas, hence, it is a unique application. Furthermore, once the site is closed and decommissioned, it will continue to be monitored for radiation by the TLLRWDA for a hundred years or longer. One hundred years is a long time to live under the specter of possible radiation leaks.
Justice Frankfurter's comments made in 1944 regarding agency determination of public interest are still true today: "But its [the statute's] very foundation is the 'public interest', and the public interest is a texture of multiple strands. It includes more than contemporary investors and contemporary consumers. The needs to be served are not restricted to immediacy, and social as well as economic costs must be counted."18 The TNRCC must struggle with balancing these "multiple strands," which are all relevant to determining the "needs to be served."
It is beyond the scope of this article to discuss the technical, environmental, legal, or ethical intricacies of nuclear waste dumps and the merits of locating the waste within the State of Texas, especially in Sierra Blanca, Texas. However, you should be hearing about the case in the news media as it progresses.19 Nuclear wastes are accumulating at an alarming rate and the places to dispose of toxic waste are very limited, thus the issue of nuclear waste disposal is a serious one that affects not only the residents of Sierra Blanca and the immediate vicinity, but also the entire State of Texas. While people agree that nuclear waste has to be disposed of somewhere, people do not agree it should be placed in their own back yard.
TEXAS PARALEGAL JOURNAL
Summer 1997
©1997 Legal Assistants Division, State Bar of Texas