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Thu Sep 1, 2011

By Chris Baltimore, Peter Henderson and Karen Brooks
Reuters News

AUSTIN, Texas (Reuters) – Texas governor Rick Perry tried to sideline a state commissioner who opposed expanding the scope of a nuclear-waste landfill owned by one of the governor’s biggest political donors, Reuters has learned.

Bobby Gregory, owner of a wildlife ranch and landfill company south of Austin, had opposed a plan to let 36 states send nuclear waste to a 1,338-acre site in Andrews County.

On the other side of the issue was billionaire Harold Simmons and his company Waste Control Specialists LLC, which stood to gain millions of dollars from accepting out-of-state shipments. Simmons had donated over $1 million to Perry’s gubernatorial campaigns.

A report in the Los Angeles Times in August examined the case of the Texas waste site and Perry’s ties to Simmons, a conservative who funded the Swift Boat campaign that helped torpedo John Kerry’s presidential bid.

Perry maintains his appointments are based on merit, and Simmons is inclined to help any conservative Republican, spokespeople for the two said.

In any case, the January vote by the eight-member Texas Low-Level Radioactive Waste Disposal Compact Commission was key to the future profitability of the nuclear landfill.

Reuters has learned that late last year, after it became clear that the commission might block Waste Control’s request to truck in waste from around the country, Perry’s appointments chief, Teresa Spears, offered commissioner Gregory an alternative job — a prestigious appointment as a regent of a state university.

Under Texas law, Gregory could not hold two state-appointed positions requiring Senate approval at the same time, and so taking the regent job would have required him to leave the waste commission.

Gary Newton, a lawyer for Gregory’s company, Texas Disposal Systems, told Reuters his boss declined the offer. "There was a call from Ms. Spears. Bobby said they asked him if he was interested in this position. It was a Board of Regents position. He said ‘No, I’m not interested in that type of appointment,’ and declined," Newton said.

Gregory’s term as commissioner ended on August 31 this year, so Perry can now replace him. The waste commission voted in January to allow imports, though it still has to examine and approve specific applications to import waste on a case-by-case basis.

Perry spokeswoman Catherine Frazier said: "Governor Perry’s decisions are based solely on what’s in the best interests of the people of Texas."

The news of Perry’s intervention in the nuclear-waste issue comes as the governor is climbing the polls in the fight to take on President Barack Obama as the Republican candidate in the U.S. presidential election next year.

The Texan is running on a pro-jobs, pro-business platform. His political foes allege that he has granted favors to businesses owned by Perry donors (which wouldn’t necessarily be improper under Texas campaign-finance rules). The governor’s camp says he pushes the interests of all business in Texas.

FIGHT OVER IMPORTS

The WCS-operated site will store 2.3 million cubic feet of low-level nuclear waste, which is everything from cut up nuclear power plants, to radioactive detritus from hospitals and research labs — but not spent nuclear fuel itself.

A key issue for the economics of the nuclear waste site was whether it would be allowed to handle waste imported from states other than Vermont. Texas already had a "compact" deal to handle Vermont’s low-level waste.

In the latter part of 2010, Gregory was one of two people on the eight-member panel known to oppose allowing out of state imports. Two other members of the panel were Republican appointees from Vermont who favored the imports, but they were due to be replaced, presumably by Democratic appointees who would be in the opposition camp, early in 2011.

That could have swung the balance of the committee from 6-2 in favor to a 4-4 stalemate. Replacing Gregory would have given importation proponents the vote to carry the day.

After Gregory declined the job offer, the commission was called to vote on January 4, before the terms of the Vermont Republicans ended.

At a meeting that day, Gregory pleaded with his fellow commissioners to vote against importation.

"Without question in my mind this is too much, too soon, too fast, and I’ve added the caveat — if at all," Gregory told the meeting. "It is beyond preposterous, it is beyond absurd," that the commission should vote without reading over 5,000 public comments, he said.

The panel voted 5-2 in favor of allowing out-of-state imports, and the Texas legislature sealed the importation allowance into law in May.

The Andrews County dump could begin accepting waste late in 2011 or early in 2012.

Perry’s spokeswoman did not dispute the details of the regent offer, but would not comment on the donor’s ties to Perry or the governor’s intention to remove a waste specialist from a waste regulatory board in favor of overseeing a university. She broadly defended the process.

"Governor Perry makes appointments based on the qualifications of an individual and his or her ability to serve in Texans’ best interests, nothing more," Frazier said. "As you may know, the project you mention was approved overwhelmingly by the Texas legislature, and has the support of the local community," she added.

Simmons’ support of Perry is not unique and extends to Republican conservative candidates nationwide, said Chuck McDonald, spokesman for Waste Control Specialists, who dismissed any suggestion that Simmons’ donations had gained him any favors from Perry or state regulators.

"The record is pretty clear: If you are a conservative Republican seeking office, Mr. Simmons is going to support you," McDonald said. "Every congressman who comes dragging through Texas, if he stops in (Simmons’) office and he’s got an "R" by his name, he’s going to get money."

(Editing and additional reporting by Mark Hosenball in Washington; Editing by Claudia Parsons and Michael Williams)

May 27, 2009

by LARAY POLK
Counterpunch

RadWaste and Texas’ Future

"It took us six years to get legislation on this passed in Austin, but now we’ve got it all passed. We first had to change the law to where a private company can own a license (to handle radioactive waste), and we did that. Then we got another law passed that said they can only issue one license. Of course, we were the only ones that applied." –Harold Simmons, Valhi Inc.

How do you get people to vote for radioactive waste to be dumped in Texas in close proximity to the Ogallala and Dockum aquifers? And how do you also get the same community to agree to bankroll the project’s $75 million buildout costs? You sell it as a prosperity issue.

The promise of future prosperity is more hopeful than discussing point-blank realities. Namely, that the source of prosperity is a dumpsite in west Texas, near the border of New Mexico, that has the potential for receiving varying grades of radioactive waste from 36 states. And the geographical area in question has three inherent properties that have scientists, engineers and activists worried: red clay, aquifers and high winds.

On May 9, voters from Andrews County went to the booth to participate in a bond election, paid for by Waste Control Specialists (WCS), to decide whether or not their county will pay for such a dumpsite. 642 people voted affirmative and 639 against.

A discrepancy of three votes has decided a crucial decision that could have far-ranging affects on all present and future residents of Texas and beyond. According to business interests involved in the project, financing through normal channels would require a two to three year wait in the current economic downturn. With Andrews County paying for the initial costs, construction is planned to begin this summer.

The preliminary funding hurdle has been cleared, but central to receiving radioactive waste is a license granted by state regulators. Earlier this year, WCS received their license from the Texas Commission on Environmental Quality (TCEQ). It allows them to accept waste from Texas and Vermont as well as from the U.S. Department of Energy (DOE). Waste accepted from the DOE may originate from anywhere in the country.

Proper licensing coupled with immediate financing is a boon for WCS. If they proceed as planned, they will capitalize on South Carolina’s decision in July to shutter its low-level radioactive waste operations. The Texas site stands to profit by absorbing the radioactive waste from the 36 states that South Carolina will no longer be servicing.

And the recent move by the Obama administration to put a hold on the Yucca Mountain repository may leave the door open for the proposed Texas dumpsite to become an alternative location for nuclear reactor waste that had been previously destined for Nevada.

While WCS is licensed to accept Class A, B, and C waste (A is the least hazardous), they currently cannot accept waste outside the compact with Vermont. That would require the approval of eight compact commissioners, six from Texas and two from Vermont.

This arrangement, however, is rife with conflicts of interest. The commissioners in Texas are appointed by Gov. Rick Perry. WCS is owned by Valhi. Valhi is owned by Harold Simmons, a major Republican party and Perry donor. Other campaign contributions include Simmons’ financial support for attack ads on the two most recent Democratic presidential candidates. He helped fund both the swiftboating of John Kerry and the ads by the American Issues Project that questioned Barack Obama’s relationship with Bill Ayers.

Valhi’s rush to buildout in Andrews County, ironically, is tied to receiving federal stimulus money for processing the PCBs from the Hudson River.

***

This issue of an expanding radioactive waste dumpsite and corollary ones will not be going away any time soon as Texas has its own dependency on such sites. In addition to being home to two commercial nuclear reactors, eight additional entities are currently seeking licenses to build reactors in Texas.

WCS has been licensed to operate Andrews County’s radioactive waste dumpsite for 15 years. In that length of time, varying grades of radioactive refuse could make its way underground in Texas, releasing radionuclides into the Ogallala and Dockum aquifers. The voters of Andrews County have spoken but theirs should not be the final voice on this issue.

For further reading and updates, see No Bonds for Billionaires and Nuke Free Texas.

LARAY POLK is a multimedia artist and writer who lives in Dallas,Texas. She can be contacted at laraypolk(at)me.com.

FEB 2010

By by Laray Polk
D Magazine

How will the Texas billionaire make his next billion? By burying hazardous waste in West Texas.

The windows of the new Winspear Opera House have a name: the Annette and Harold Simmons Signature Glass Façade. Ascending 60 feet, it was designed to create a seamless flow from the exterior park to the interior lobby. It is ironic that a monument to transparency would be made possible by a $5 million gift from a man like Harold Simmons, who, despite his enormous wealth, has managed to conduct his affairs in relative obscurity.

Simmons, 78, rarely grants interviews. He declined to answer questions for this story. The best intel on him comes from two places: an authorized (and thus sanitized) 2003 biography titled Golden Boy: the Harold Simmons Story and a very public, very ugly lawsuit brought against him by two of his daughters in 1997.

Simmons was born in rural Golden, Texas, where he grew up in a shack without plumbing or electricity. He graduated Phi Beta Kappa from UT Austin, where he earned a master’s in economics. In 1961, he bought a drugstore across the street from SMU with $5,000 of his own money and a $95,000 loan. Twelve years later, he owned 100 stores that he sold to the Eckerd chain for $50 million.

After that first big payday, Simmons went on to amass a vast fortune by acquiring and selling a variety of companies, including Amalgamated Sugar, Lockheed Corporation, McDermott International, Muse Air, and many others. Simmons is often called a "corporate raider,"though he bristles at the term. In a video produced in 1990 during his effort to take over Lockheed Corporation, he said, "A corporate raider is destructive. That’s not my record at all. I’m a builder."

Today, through his holding company, Contran Corporation, Simmons controls a thicket of private and public companies. The largest subsidiary is called Valhi. Based in Dallas, the publicly traded Valhi, about 95 percent of which is owned by Contran, conducts operations in metals (Titanium Metals Corporation), chemicals (NL Industries and Kronos Worldwide), waste management (Waste Control Specialists), and precision ball bearing slides and locking systems (CompX International). In 2008, the revenues of the companies under the Contran umbrella eclipsed $4.3 billion. As an officer of many of the companies, Simmons took home about $10 million. Forbes pegs his worth at $3.7 billion. That’s down about $3.2 billion from the previous year, though it still puts him at No. 80 on the magazine’s list of richest Americans.

Simmons has been generous with his wealth. He has given away more than $300 million, including a $20 million endowment at SMU and $50 million to establish a cancer center at UT Southwestern Medical Center. But he has used his money in other ways that have drawn decidedly less favorable press.

His NL Industries has been the subject of continuous litigation. The most recent case involves plaintiffs who managed the company that cleaned up NL Industries’ environmental liabilities. They were also minority shareholders. In 2009, a Dallas County jury found NL Industries liable for not honoring contractual agreements and manipulating stock values. The plaintiffs were awarded $178.7 million in damages.

On a more personal level, before he sold out to Eckerd, Simmons and his second wife put their money in a trust for their daughters (he has four, two of which were born to his first wife). Simmons took the unusual step of naming himself the sole trustee, giving himself broad powers to spend and invest the money as he pleased. His wealth grew in those trusts without much attention until 1991, when the IRS began raising difficult questions. As the New York Times put it: "Why were his homes, his jet, even the jewelry his wife wore, accounted for as corporate purchases or expenses? How could he say that all his holdings formed one huge tax-exempt trust when he treated them as properties he still owned, managed, and enjoyed?"

The Times story arose in 1997, after two of his daughters sued Simmons over the way he was managing their trusts. Simmons had tried to restructure the trusts, a process that forced him to, in effect, file suit against his daughters and their children. His third daughter, Andrea Swanson, had just returned home from the hospital with her first baby, who’d been born three months prematurely. Simmons asked his daughter to drop the court papers into the baby’s crib.

The family squabble brought to light that Simmons had broken campaign donation laws. Swanson told the Times that her father gave her $1,000 for each blank political donation form she signed. Simmons said he gave the money not as a quid pro quo but as a way to show affection. In 1993, he was hit with a $19,800 fine for violating contribution limits. Five years later, he settled the lawsuit brought by his two daughters by paying them each $50 million. He no longer talks to them.

Which brings us back to the engine that has driven Simmons to this point. In his Forbes listing, after mentioning how much money he lost in the last year, it says this: "Planning to make it back with Valhi’s recently approved low-level radioactive waste disposal license."

Exploring the implications of that one sentence will reveal Harold Simmons’ real genius. In short, it appears that the "King of Superfund Sites,"as he’s known in some circles, has figured out a way to clean up a radioactive mess one of his companies made in Ohio by—according to some experts—creating another radioactive mess in West Texas. The best part: he’s gotten the folks in West Texas to support the plan and the federal government to pay for it.

Simmons has been generous with his wealth. He has given away more than $300 million, including a $20 million endowment at SMU and $50 million to establish a cancer center at UT Southwestern Medical Center. But he has used his money in other ways that have drawn decidedly less favorable press.

Cadillac Heights is a small enclave south of downtown Dallas, situated close to the Trinity River. About 200 small frame houses, most built in the 1940s, are hemmed in on three sides by various metal industries, a meat rendering plant, and a water treatment facility. Pit bulls roam freely on crowned narrow streets that are thinly paved. From street to yard, there are dirt ravines and no concrete curbs and few walkable sidewalks. The neighborhood floods frequently, evidenced by water lines on the bases of homes and debris clinging to fences.

For years, two lead smelters operated in Cadillac Heights, poisoning the people who lived there. One, Dixie Metals, remained in operation until 1990. It’s now a mounded landfill with a chain-link perimeter fence in the middle of a residential area. The other smelter closed in 1978, but remnants of it remain standing. It belonged to a company now controlled by Harold Simmons, NL Industries.

Peter Johnson, longtime community activist, remembers Cadillac Heights’ recent past: "It was a community that was poisoned; the earth had been polluted. And it stunk. Most of those people were sick with cancer and kidney problems. The children had birth defects. They were poor people. The city didn’t pay attention to their problems. Lead was a part of that community for a long time."

In smelters of the recent past, lead was reclaimed mostly from used vehicle batteries. The lead was melted down in furnaces to arrive at reusable product. The process also produced metallic refuse called slag. The slag and casing debris from the batteries would often be dumped in landfills both on- and off-site. It was also mixed with soil and used for ground cover in areas close to the smelter. In Cadillac Heights, casing debris was used as pavement for driveways.

In February 1997, the state of Texas announced it would fund a cleanup of Cadillac Heights with the possibility of suing NL Industries and Dixie Metals to recover costs. The state entered into negotiations with the companies, and by April, both had agreed to pay for the removal and replacement of lead-contaminated soil from the yards of 57 houses.

But of the neighborhood’s 230 properties, 62 tested for high levels of contamination. The state spent $180,000 to clean up the five properties that the companies claimed did not warrant their attention. The cleanup did not include particulate matter inside homes or contaminated soil in common areas such as alleys and ditches. And what lead remained in Cadillac Heights has no doubt been dispersed by the periodic flooding to which the neighborhood is subjected.

In Lopez, et al. v. The City of Dallas, counsel for the plaintiffs provided ample evidence that the city had continued a policy of discrimination by failing to provide flood protection to Cadillac Heights residents. Despite the significance of the U.S. District Court’s ruling in 2006, the construction of a levee has yet to materialize. According to a city spokesperson, "If funds become available, construction will start in 2012."The city of Dallas presently buys houses piecemeal from the remaining Cadillac Heights residents, the money coming from the 2006 bond election. Once Cadillac Heights is cleared of people and houses, the property will become home to the Dallas Police Academy.

Community activist Luis Sepulveda knows about lead contamination. He was a driving force in getting the EPA to designate part of West Dallas a Superfund cleanup site. To his mind, the prospect of rebuilding in Cadillac Heights causes concern for future occupants. "I’m not sure they’re [Police Academy] aware of what property that is being bought,"he says. "There is so much buried there. It will contaminate the water eventually. What if they [the officers in training] get sick? What if they have respiratory problems?"

Why would Harold Simmons become involved with an operation like NL Industries? He bought the company in 1986, long after the dangers of lead were known and the lawsuits had begun working their way through the court system. The answer, it seems, is that Simmons doesn’t mind a mess if there’s money to be made.

NL Industries’ history is lengthy and layered. In more than a century of continuous business, NL Industries’ operations have involved magnesium, titanium, and zinc; lead pigment and lead-based paint; lead smelters; lubricants and drilling equipment for oil fields; municipal and industrial waste disposal; the enrichment of uranium for nuclear weapons; and the production of projectile weapons using depleted uranium.

NL Industries sloughed off lead operations in 1974, a prescient move that predated the federal ban on lead-containing paint by four years. As litigation against the lead industry largely failed in the recovery of compensation, and titanium dioxide began replacing lead as a paint enhancer, NL Industries landed on its feet. Its subsidiary, Kronos, is currently one of the largest manufacturers of titanium dioxide pigments in the world.

But NL Industries has left a legacy of contaminated sites across the country. According to the company’s annual report from 1994, NL Industries and its subsidiaries, which included Kronos, had "been named as a defendant, potentially responsible party, or both … in approximately 80 governmental and private actions,"with many sites and facilities on the EPA’s Superfund National Priorities List or similar state lists.

While NL Industries’ operations in Cadillac Heights were never designated as a Superfund, another of its operations in Ohio was.

Then one day she got a call from her congressman. He said that three off-site wells had been contaminated, but the Department of Energy was telling everyone they were fine and below dangerous limits.

In early 1985, Lisa Crawford, a full-time working mother, lived directly across the street from an NL Industries operation in Fernald, Ohio, a rural area 15 miles to the northwest of Cincinnati. When she and her husband and 2-year-old son moved into the house six years earlier, they were looking for a quiet country community "away from the blacktop and cement,"as she puts it. The checkered water towers and signage at the facility had given her few reasons to question its operations. A large sign at the entrance of the 1,050-acre site featured an image of a little Dutch boy next to the words "National Lead of Ohio."Dutch Boy paint was a product line of NL Industries.

Then one day she got a call from her congressman. He said that three off-site wells had been contaminated, but the Department of Energy was telling everyone they were fine and below dangerous limits. A year earlier, in 1984, an accidental uranium release from the NL Industries facility had received media attention. The accident, along with the call from the congressman, led the Crawfords and other residents to worry about the facility they knew relatively little about.

Beginning in 1951, NL Industries contracted with the Atomic Energy Commission (then its successor, the DOE) to produce high-purity uranium. The facility made uranium products that were fed to other facilities within the nuclear weapons complex.

NL Industries performed similar work in New York. The facility in Colonie operated as a munitions plant beginning in 1958. In 1984, the New York State Supreme Court closed the facility because of excessive airborne releases of radioactive material. Cleaning up the site took two decades and cost $190 million.

In Fernald, Ohio, the story unfolded in a similar fashion. In 1985, after the accidental uranium release and the contaminated wells, NL Industries’ contract to operate the facility was canceled, and the facility was thrust into a struggle between the EPA and DOE over which agency had authority over operations. The EPA wanted an immediate cleanup of the site; the DOE, however, wanted the facility to remain operational. In 1986, the year Harold Simmons bought NL Industries, a congressional amendment to law required DOE to remediate the Fernald site under a Federal Facilities Compliance Agreement with the EPA. Cleanup didn’t start until 1991, and remediation wasn’t declared complete until 2006—at a total cost of $4.4 billion dollars.

NL Industries’ facilities at both Fernald and Colonie were provided substantial protection by having contracted with the DOE. In 1989, the DOE agreed to pay $78 million to settle claims with the residents who lived near the Fernald facility; the jury had recommended $136 million. The settlement is viewed as significant on two counts: first, it was an admission by the government that a weapons production facilit

y may have harmed nearby residents. Second, the suit had been brought against the contractor, but the government paid, absolving NL Industries of liability.

Crawford, one of the plaintiffs in the case, had initiated contact with the Ohio EPA and Ohio Department of Health soon after the phone call from her congressman. Both agencies provided testing but gave her conflicting advice about whether she should drink from her well. Crawford immediately knew what to do.

"We stopped drinking the water then and there,"she says. But her worries went beyond what she drank. "Every time you have to put your child in a bathtub full of water, you wonder,"she says. "And every time you wash a load of clothes, you wonder. And every time you do a load of dishes in the kitchen sink, you wonder."

Further testing at Fernald would prove that wells in proximity to the NL Industries facility were not the only water sources in Ohio subject to uranium contamination. In 2008, the DOE settled a lawsuit with the Ohio EPA for $13.75 million for radioactive contamination of groundwater, including the Great Miami Buried Valley Aquifer. Ohio officials estimate that radioactive contamination of the groundwater may persist for 100 years.

Fernald, Cadillac Heights, Colonie—NL Industries has, over the years, created quite a mess. As noted, much of that mess was made before Harold Simmons bought the company. But he clearly learned from its history.

In 1995, he bought a company called Waste Control Specialists (WCS), a hazardous waste disposal company. It is now on the lucrative end of Superfund cleanups. In 2009, for instance, WCS buried 390,000 tons of sediment contaminated with polychlorinated biphenyls, or PCBs, dredged from the Hudson River in Upstate New York. The waste is a result of General Electric Company’s 30-year discharge of PCBs into the water system.

Also last year, WCS buried 3,776 canisters of uranium byproduct waste generated by the NL Industries facility across the street from Lisa Crawford’s house in Fernald, Ohio.

One Simmons company made the waste. The other buries it. And it all comes to West Texas.

Ohio officials estimate that radioactive contamination of the groundwater may persist for 100 years.

Andrews County, in West Texas, is mostly flat and thoroughly punctured with oil and gas wells. For many people, the land offers a hardscrabble life broken into two rotating shifts, crews of six to eight men in F-350 duallys headed out to oil fields or coming back from them. They drive fast, as if by echolocation. Between shifts, the roughnecks spend their time in the cafes of the city of Andrews and at impromptu barbecues and card games held on sidewalks, outside doorways of dusty motels.

Waste Control Specialists is located 31 miles west of Andrews, on the Texas-New Mexico border. The facility sits on a 1,338-acre site, where it is licensed to service a wide variety of projects, from toxic and hazardous waste resulting from Superfund sites to various classes of radioactive waste from DOE cleanups.

How Simmons was able to obtain licenses from the state of Texas to dispose of nearly the full gamut of radioactive waste is more a story of politics and money than one of sound science. Critics have pointed out that the nation’s largest aquifer underlies the site and is in an earthquake hazard zone. As Simmons told the Dallas Business Journal in a rare interview in 2006: "It took us six years to get legislation on this passed in Austin, but now we’ve got it all passed. We first had to change the law to where a private company can own a license [to handle radioactive waste], and we did that. Then we got another law passed that said they can only issue one license. Of course, we were the only ones that applied."

Legislative changes and licensing have been one half of the equation. The other half has been the company’s successful assimilation into the region with little skepticism from residents and local media. Andrews County has one major population center of approximately 10,000 residents, the city of Andrews, and no interstate. WCS promises 60 permanent positions after the construction phase and a facility whose "operating costs will boost the region’s economic activity by about $75 million a year."

Reports in local media have misled residents about the nature of the waste being disposed of. In October 2009, WCS sponsored a tour of its facilities exclusively for local media outlets. At the time, the disposal of the canisters from Fernald was almost complete. Reports of the tour described the canisters from the Fernald site as a product of the WWII war effort. The Odessa American reported that the waste is a "byproduct from ore … used in the Manhattan Project during World War II."And the Fort Stockton Pioneer said, "According to WCS, the Fernald Project is the disposal of 3,776 canisters—20,000 pounds each—containing uranium production waste from the World War II Manhattan Project."

But that’s not true. Jane Powell, DOE Legacy Management site manager of the Fernald Preserve, says, "The waste in the canisters was not produced as a part of the Manhattan Project; the [NL Industries Fernald facility] did not begin operating until 1951. The content of the canisters is the result of Belgian Congo ore that was processed on-site. The ore was very high in radium and radon gas."The ore Powell refers to primarily came from one mine, located in what is now known as the Republic of Congo. Ore from the region has an unusually high concentration of uranium: 35 to 60 percent, compared to about 1 percent or less found in most American-mined ore.

So for whatever reason, the local press around Andrews has reported inaccuracies about material WCS is actually burying. The sort of work NL Industries did in Fernald produced highly radioactive residues, also known as decay-chain products or radionuclides.

Two events facilitated WCS’ ability to dispose of waste from Fernald. First, in 2004, Congress reclassified those residues as "byproduct material."The legislative downgrade of the highly radioactive waste made it possible for a private entity with the proper licensing to dispose of it, an activity formerly off limits to sites not overseen by the Nuclear Regulatory Commission. And then, in 2008, WCS received its byproduct material disposal license from the Texas Commission on Environmental Quality (TCEQ).

A year later, the TCEQ issued WCS yet another license, this one for low-level radioactive waste (LLRW). The license allows WCS to "receive, possess, use, store, dispose, and transfer"three classes of LLRW. Materials covered by this new license include radioactive waste from research, industrial, and medical facilities; fission products from nuclear reactors; and nuclear weapons-related waste generated by federal facilities. The license stops short of the "hottest"waste, such as spent reactor fuel.

Since the beginning of Waste Control Specialists’ bid to obtain licensing for the disposal of radioactive waste, the central question has been whether the site sits atop an enormous water deposit like the one in Ohio that NL Industries polluted. Some experts have suggested that the hydrogeology of the Andrews site is sufficiently complex to halt development for further study. Others have recommended that the site is "irredeemably unsuitable"for the disposal of radioactive waste.

In 1999, the University of Texas’ Bureau of Economic Geology produced a report that reviewed hydrogeological data in Andrews County. It was prepared by Dr. Alan Dutton, who unambiguously called for further study: "Most of Andrews County is underlain by the High Plains Aquifer [Ogallala] … and the presence of this aquifer should be expected to pose a great deal of questions from regulators and the public for licensing a low-level radioactive waste repository. … WCS consultants indicate that saturated groundwater conditions do not occur at the WCS site. Additional scientific data would be needed to confirm or refute this conclusion and address site-suitability requirements for licensing."

The controversy surrounding the presence or absence of the Ogallala Aquifer at the WCS site is ongoing because there is no means for establishing consensus between state and federal agencies that deal with mapping. So far, the TCEQ and WCS have been able to dominate the discussion on the boundaries of the Ogallala and other hydrogeological features of the site.

In 2009, Lubbock’s NewsChannel 11 interviewed David Barry, EPA spokesperson for Region 6. When asked about the boundaries, he replied, "Yes, the facility [WCS] does sit above the Ogallala Aquifer. It sits on the southern end of the aquifer."But strangely, in a phone interview a few months later with D Magazine, Barry seemed to reverse his opinion, saying, "It is the agency’s position that the WCS site is not above the aquifer. A portion of the site sits on top of the Ogallala Formation, a non-water-bearing part of the Ogallala."

WCS’ position statement on the aquifer (posted at savetheogallalaaquifertruths.com) claims: "In the last 18 years, WCS … [has] spent tens of millions of dollars to verify the subsurface properties of western Andrews County and, as a result, have further delineated the boundaries of the Ogallala Aquifer. As a result of the data developed from these efforts, the Texas Water Development Board [TWDB] remapped the Ogallala Aquifer in late 2006 to definitively show that the boundary does not extend to WCS’ property. The current State of Texas aquifer maps show a more accurate depiction of the proper location of the aquifer."

In other words, WCS says its data convinced the TWDB to redraw the boundaries of the Ogallala. But the TWDB denies that it used WCS’ data. "The TWDB technical staff initiated the change,"says Leslie Anderson, the board’s spokesperson. "The impetus for the change was work on a groundwater model that included the Pecos Valley Aquifer. Our revisions were not based on WCS’ data. The change was based on our modeling work, past TWDB boundaries, and the USGS [U.S. Geological Survey] boundary."Anderson adds that the changes reflect "the boundary between two aquifers. When we changed the boundary for the Pecos Valley Aquifer, it also affected the boundary for the Ogallala Aquifer."

So it’s not the Ogallala that underlies the WCS site; it’s the Pecos Valley Aquifer. The revised hydrology maps, in fact, show this.

When D Magazine asked WCS about the presence of the Pecos Valley Aquifer under its site, spokesperson Chuck McDonald first replied, "I don’t understand the question. There is no aquifer beneath the site."He then offered to review the maps and call back. Later, McDonald explained: "The area where WCS is located is part of the Pecos Valley system. However, that does not mean that there is potable water at the site. The nearest water underneath the site is a brine formation, the Dockum, and it’s separated by 500 feet of red-bed clay."McDonald added, "Those regions designated [on TWDB maps] as aquifers doesn’t mean they have water underneath. … If you drill a hole [at WCS], there is no water there."

McDonald was then asked if the Dockum, a minor aquifer, is hydraulically connected to other aquifers. He responded, "I don’t know. I can’t answer that question. … Keep in mind, the site has been one of the most characterized sites there has been. A great deal is known. That is why we are where we are."

Andrews County, according to the TWDB revised maps, is underlain by four aquifers. In addition to the Dockum, there are three major aquifers: Ogallala (or High Plains), Pecos Valley (or Cenozoic Pecos Alluvium), and Edwards-Trinity Plateau. The TWDB and USGS websites both state that the Edwards-Trinity Plateau Aquifer is hydraulically connected to four major aquifers, including the Ogallala, and several minor aquifers, including the Dockum.

To recap: first the boundary dispute involved one aquifer under the site. Then the revised maps showed it was another aquifer. Then WCS said no, it was actually a third, and it was briney. But both the state board in charge of aquifers and the USGS say there is interchange among the aquifers. If there is hydraulic communication between aquifers in Andrews County, then disputes over the boundaries of the Ogallala Aquifer at the WCS site are beside the point.

WCS spokesman McDonald disagrees. He says the matter has been settled. "The TCEQ oversight has been intense. Every step of the program has been well documented and thorough. It has been extremely closely scrutinized for years and years,"he says. "We must accept that the state has done its job."

But there are questions, too, about how the state did that job.

To obtain final approval for both licenses, WCS endured a five-year review process. A TCEQ team comprising scientists, engineers, and a technical writer reviewed permit applications. Many times, the team required WCS to produce more data or resolve inconsistencies in previous answers.

But then as now, the final decision to grant a license rests with three TCEQ commissioners who are appointed by the governor. And Simmons has been a major campaign contributor to Governor Rick Perry. Registered donations put the amount at $620,000. (It should be noted that Simmons gives generously to many Republican causes and candidates. In the 2004 election cycle, he gave $3 million to the Swift Boat Veterans for Truth, which helped defeat John Kerry by calling into question his service record in Vietnam.) During WCS’ application process, three members of the eight-member review team quit: engineer Encarnación "Chon"Serna Jr., geologist Patricia Bobeck, and technical writer and team spokesperson Glenn Lewis.

Lewis, the only one of the three who would speak on record, says professional advisories regarding the unsuitability of the site were ignored by upper management in the rush to grant licenses. The team’s concerns largely centered on the proximity of the WCS site to two aquifers and the high possibility of radioactive waste leaking into groundwater. "Issues about the unsuitability of the site were never limited to concern about the Ogallala,"Lewis says. "They were first and foremost about any groundwater present at the site. Any groundwater at the site is unacceptable. Water to a radionuclide is like the Autobahn. It’s a very fast path."

In 2008, the TCEQ commissioners voted 2 to 1 to grant WCS a byproducts materials license. Commissioners Buddy Garcia and Bryan Shaw voted in favor, and Larry Soward voted against. Soward said at the time that a hearing should be allowed to fully air arguments regarding the safety of the site. In 2009, the commissioners voted 2 to 0 on the LLRW license, expanding WCS’ customer base. Commissioners Garcia and Shaw voted to approve the license. Soward abstained. Less than a year later, Soward stepped down from his post.

TCEQ executive director Glenn Shankle, who served as the liaison between the review team and the commissioners, left his position shortly after the issuance of the byproduct material license in May 2008. Records obtained by the Texas Observer reveal that Shankle had several meetings with WCS officials, attorneys, and lobbyists during his tenure. He was visited at his office at least once by Kent Hance, a WCS investor and chancellor of the Texas Tech University System. Six months after leaving TCEQ, Shankle became a lobbyist for WCS.

If things go as planned, Simmons’ nuclear waste dump in West Texas will exist on a scale that is hard to imagine.

There is one more element of Harold Simmons’ business plan, a flourish that shows his real genius: he might actually get the citizens of Andrews County to loan him money to develop his waste disposal site. In a May 2009 bond election, Waste Control Specialists won the right to borrow $75 million from the county. The election was decided by just three votes (642 for, 639 against). The argument made by WCS was that credit markets had dried up, and the money was needed to keep construction on pace. With the county getting 5 percent of WCS’ revenue (and the state another 5 percent), WCS estimates that the county this year will receive $3 million to $4 million. The bonds are in limbo right now only because two sisters, Melodye and Peggy Pryor, have filed suit in El Paso contesting the election.

Finally, it appears Harold Simmons may benefit from a bit of good luck. Despite giving $2.8 million to the American Issues Project in the 2008 election cycle to fund attack ads linking Barack Obama to William Ayers and the Weather Underground, Simmons will likely benefit from Obama’s initiatives. To date, the American Recovery and Reinvestment Act of 2009 has allocated the largest direct federal contracts to the DOE. The DOE will use $6 billion in federal stimulus money to clean up sites within the U.S. nuclear weapons complex. Radioactive materials retrieved from those cleanups will need off-site locations with the proper licensing for permanent disposal.

If things go as planned, Simmons’ nuclear waste dump in West Texas will exist on a scale that is hard to imagine. Waste Control Specialists is currently licensed by the state of Texas to accept up to 57 million cubic feet of low-level radioactive waste from federal sources. Waste Control Specialists has the space to expand its facility to more than 20 square miles.

Research support for this story was provided by the Investigative Fund at The Nation Institute.

August 20, 2011

By KATE GALBRAITH
New Your Times

Brian Harkin for The New York Times
Wind turbines on a mesa in Nolan County outside Sweetwater.
Wind energy has become a booming industry in West Texas.

In the opening days of his presidential campaign, Gov. Rick Perry of Texas has railed against a favorite target, the Environmental Protection Agency, and declared himself a "skeptic" on the subject of humans as the cause of global warming.

If Mr. Perry wins the White House, his national energy policy will focus on cutting federal regulations, especially at the E.P.A., his spokesman, Mark Miner, said.

"The governor’s energy priorities will be centered around scaling back the E.P.A.’s intrusive, misguided and job-killing policies, which will empower states to foster their own energy resources without crippling mandates and open the doors for our nation to pursue and strengthen an all-of-the-above energy approach," Mr. Miner wrote in an e-mail.

Read the full article at the New York Times website…

26 organizations, including New England Coalition, want safety examined after Fukushima

Wednesday, August 17, 2011

By Olga Peters
The Commons

BRATTLEBORO—The New England Coalition (NEC) has no plans to stand still while the calendar ticks down to September when the Entergy v. Vermont case — litigation that could decide the fate of the Vermont Yankee nuclear power station’s renewal license and three Vermont statutes — resumes in U.S. District Court in Brattleboro.

Instead, the 40-year-old antinuclear organization has filed contentions in conjunction with multiple advocacy groups, such as Beyond Nuclear, Riverkeeper Inc., and Citizens Environment Alliance of Southwestern Ontario, against the U.S. Nuclear Regulatory Commission (NRC).

The 26 organizations filed 19 legal challenges against the NRC last week calling for the delay or cancellation of all nuclear reactor relicensing pursuant to federal law.

NRC spokesperson Neil Sheehan said the federal agency "will review the groups’ filings and respond appropriately to each filing."

In a press release, the 26 groups contend that the NRC needed to "put on the brakes" when it came to licensing or renewing licenses for U.S. nuclear plants in light of the earthquake and tsunami in Japan in March that heavily damaged the Fukushima Daiichi nuclear power complex.

The groups say that federal law requires the NRC to strengthen regulations to protect citizens from "severe accident risks, or until it has made a careful and detailed study of the environmental implications of not doing so."

The one-two punch of the earthquake and tsunami led to partial nuclear meltdowns in three of the six Fukushima Daiichi reactors, and led to the largest radiation release since the 1986 nuclear disaster at Chernobyl in Ukraine.

The NRC commissioned a task force to investigate whether what had happened in Japan could happen at a U.S. reactor and compile a "lessons learned" report.

The 26 groups say the task force’s 90-day review "produced substantial new information" raising health and safety concerns warranting new environmental impact statements for plants in the licensing process.

"In light of the disastrous and ongoing events at Fukushima, it is clear that the issues of public safety raised by the task force are exceptionally grave," said Dr. Arjun Makhijani, a nuclear expert who prepared a declaration that will be filed with the contentions.

Proceeding without completing such impact statements would be illegal, said the groups. They insist that if the NRC issued a license prior to conducting required environmental analyses, federal courts could hold the commission liable.

"Significant regulatory changes are needed to ensure that existing or new nuclear reactors do not pose unacceptable safety and environmental risks to the public," said Makhijani.

According to the groups’ press release, additional analysis could yield substantial results and the possible rejections of some license applications by the NRC.

Nuclear facilities addressed by the groups’ contentions include Diablo Canyon (California), Watts Bar (Tennessee), Bellefonte (Alabama), Summer (South Carolina), South Texas, Comanche Peak (Texas), Vogtle (Georgia), Turkey Point (Florida), Indian Point (New York), Calvert Cliffs (Maryland), Davis-Besse (Ohio), Seabrook (New Hampshire), Fermi (Michigan), Levy County (Florida), Shearon Harris (North Carolina), North Anna (Virginia), Bell Bend (Pennsylvania), and W. S. Lee (South Carolina).

According to the press release, the groups are also pursuing a technical finding from high in the NRC that leads to upgraded safety standards.

"This near-simultaneous and nationwide attack on the NRC’s way of doing business regarding license renewals of nuclear stations is in response to the NRC’s refusal to consider the events in Fukushima in any meaningful way," said Clay Turnbull, a staff member of the NEC.

"These legal actions are intended to force the NRC to obey the law, to pause in the rush to lock in 20-year license renewals for the aging fleet of reactors in the U.S., and to learn from events still unfolding in Fukushima," Turnbull said.

"We are a long way off from understanding some of the most rudimentary forces that contributed to the destruction at the Fukushima Daiichi nuclear complex," he continued.

On the coast
The NEC, in conjunction with Friends of the Coast (FOC), has filed a contention to address the safety and environmental implications of the Fukushima task force report as it pertains to NextEra Energy Seabrook LLC’s Seabrook Nuclear Station, Unit 1, in Seabrook, N.H.

Although the plant’s 40-year operating license won’t expire until 2030, NextEra has decided to start the renewal process in 2010. The company claims that seeking licensing approval at the current stage of the plant’s life allows for the best long-term planning for maintenance and equipment expenditures.

The Seabrook power station has one power unit generating 1,244 megawatts of electricity. Westinghouse manufactured the reactor, while General Electric built the plant’s turbine.
According to their court documents, the NEC and FOC contend similar claims logged by the 24 other organizations: namely the post-Fukushima task force’s reports of concerns about the safety of Seabrook during a severe accident, like flooding or earthquake.

These concerns, said the two groups, require a re-evaluation of many of Seabrook’s emergency response plans.

"Pursuant to the National Environmental Policy Act (‘NEPA‘), the analysis demanded by this contention may not be deferred until after Seabrook is licensed," wrote NEC and FOC lawyers in their court filing.

The two organizations say NRC commissioners have delayed action on the task forces’ recommendations. For this reason, the groups have told the court that their contention "constitutes the only way" of ensuring that the environmental implications around Seabrook are given fair consideration.

In their filing, the NEC and FOC, said that the task force found that "the NRC’s safety approach is incomplete without a strong program for dealing with the unexpected, including severe accidents." In turn, the task force recommended the commission perform safety investigations, impose design changes, upgrade equipment, and make improvements to emergency planning and operating procedures.

The two parties also noted that the task force had discovered that the accident at Fukushima was not the NRC’s first warning regarding strengthening safety programs.

In 1979, according to court documents, an independent body commissioned by the NRC investigated the core meltdown at Three Mile Island Nuclear Generating Station in Pennsylvania.
The group, headed by Mitchell Rogovin of the NRC’s Special Inquiry Group, recommended an "expansion" of accidents covered under the basic-design requirements.

The Fukushima accident task force, according to the NEC and FOC, said that despite the findings of the Three Mile Island report, the NRC had not made any "fundamental changes" to their basic accident design requirements.

The NEC and FOC also highlighted the task force’s concern that, in general, the NRC does not require mitigation measures for accidents more severe than those covered by a plant’s basic design requirements unless the measures show a favorable cost-benefit analysis. The plant can adopt such measures voluntarily.

The task force recommended that the U.S. nuclear fleet should adopt the "severe accident mitigation measures" without regard to cost. The NEC and FOC charge that this is true for the Seabrook plant as well.

"At the time the NEC was formed, nuclear plants were planned for all over New England, and our founders saw the need for a coordinated effort to educate and to intervene that went beyond any one reactor community," said Turnbull about the NEC and FOC’s collaboration.

Lessons of Fukushima
The NRC’s five commissioners and its chairman, Gregory B. Jaczko, have begun assembling their reactions to the task force’s recommendations.

The NRC’s office of the secretary will consolidate these responses and then the commissioners will take a final vote, said Sheehan.

Sheehan said the NRC reviewed the post-Fukushima task force’s "near-term" recommendations last month. A "longer-term" review remains on the horizon.

Fukushima-related changes will apply to all U.S. reactors, said Sheehan. In the meantime, the task force has told the commission the "existing plants are safe" and there are "no immediate concerns."