April 16, 2014

by Jim Malewitz
Texas Tribune

Photo by: David Bowser
John Ward, operations project task manager at Waste Control Specialists’ facility near Andrews, Texas, walks over to inspect concrete canisters that will house drums of nuclear waste.

A state appeals court has thwarted a challenge to a hazardous waste disposal site in West Texas – a ruling that signals growing difficulties for those trying to scrutinize the decisions of Texas environmental regulators.

Depending on whom you ask, such a trend would either rightly save companies time and money or unjustly bar citizens from fully sharing their environmental concerns.

The site, a 36-acre facility in Andrews County operated by Waste Control Specialists — a company formerly owned by the late Dallas billionaire Harold Simmons — is the final resting place for hazardous waste and slightly radioactive items from shuttered nuclear reactors and hospitals, among other places.

Both the company and state regulators have repeatedly called the site safe. But environmental groups have closely scrutinized the site as it has expanded the scale of waste it accepts, raising concerns about the effects on groundwater and other resources.

The Sierra Club has long argued that state regulators never gave the organization the chance to voice opposition to Waste Control Specialists’ permits through a contested-case hearing — a drawn-out process resembling a trial in which companies and their critics present evidence and testimony in front of an administrative law judge in the hopes of swaying regulators’ opinions.

Earlier this month, Texas’ 3rd Court of Appeals upheld a lower court’s ruling that the Texas Commission on Environmental Quality properly denied the group a hearing because none of its members met the threshold of being a "person affected."

At issue in that Sierra Club case was one of several permits the TCEQ has granted Waste Control Specialists. The permit enabled the company to dispose of high-purity uranium metal that originated at a long-closed U.S. Department of Energy Facility that is now a "Superfund" site.

The Sierra Club said that the waste site could negatively affect two of the group’s members who lived just across the border in Eunice, N.M., putting their air and water quality at risk. That included Rose Gardner, who operates a feed store just four miles from the waste site.

But the three-judge panel said the TCEQ — whose analysis showed that the disposal site would have minimal impacts — had the authority to rule that those members were not "affected."

In making that determination, the court cited two Texas Supreme Court decisions handed down last year — TCEQ v. City of Waco and TCEQ v. Bosque River Coalition. Both involved challenges to feedlots’ wastewater discharge permits.

Cyrus Reed, conservation director for the Lone Star Chapter of the Sierra Club, said he worried the appellate court’s recent ruling would have implications that extend beyond Andrews County, giving regulators more wiggle room to deny hearings they might consider burdensome.

"Our concern is that this ruling could be applied broadly and that it would make it very difficult for folks to be granted the right to a contested-case hearing," he said. "It could also eliminate the right of all Texans to present evidence and challenge the decisions of a state agency."

In an emailed statement, the TCEQ said it was "very pleased" with the court’s decision, and that the agency takes seriously "its obligations to uphold the law — as was done in this case."

Texas is one of just a few states that allow the public to request contested-case hearings, said Jeff Civins, an Austin-based attorney who has represented companies in such hearings. In most states, citizens are invited only to submit comments to regulators ahead of a vote.

Civins said it makes sense that regulators determine who should get a hearing, because they are the ones ultimately ruling on the permits and because the process eats up a lot of resources. The process can take up to a year and cost up to $1 million a project, he said.

Jim Bradbury, an environmental lawyer who has represented clients on both sides of such disputes, said the Sierra Club ruling confirms the TCEQ’s discretion to determine who gets a hearing, but doesn’t fully erode the process. Parties who live adjacent to or directly downstream from companies seeking environmental permits will likely still draw hearings, he said.

Over the years, the hearing process has been a useful tool for concerned stakeholders, Bradbury said, but it has also been abused by groups trying to advance policy or business goals by slowing down the permitting process.

"It’s a bit of a mess," he said. "This process is used by all sides to game the system."

Citing such criticism, some state lawmakers have pitched legislation trying to change the system. Last session, for instance, state Sen. Troy Fraser, R-Horseshoe Bay, wrote a bill that would have ditched the contested hearing process. That legislation failed, but Bradbury and others expect it to crop up again next session.

Meanwhile, the Sierra Club has another challenge to Waste Control Specialists pending in the same appeals court. That one concerns a license for disposal of low-level radioactive waste.

REFERENCE MATERIAL
Sierra Club v. TCEQ and Waste Control Specialists
PDF (138.9 KB) download

Disclosure: The Harold Simmons Foundation is a major donor to The Texas Tribune. A complete list of Texas Tribune donors and sponsors can be viewed here.