Out-Gunned?

illustration by Doug Potter

It wasn't a win and it wasn't a loss. Instead, it was a bit of both. Last week, the three members of the Texas Natural Resource Conservation Commission (TNRCC) ruled that nine opponents of the radioactive waste disposal facility in Sierra Blanca, outside of El Paso, will be able to retain their legal status in the ongoing fight over the site. But now, instead of just fighting lawyers hired by the Texas Low Level Radioactive Waste Disposal Authority (TLLRWDA), opponents will have to contend with an additional fleet of lawyers hired by the state's two biggest electric utilities.

The January 22 hearing was the latest legal maneuver in the ongoing fight over the siting and licensing of what could become one of the biggest disposal sites for non-military nuclear waste in the country.

The TLLRWDA's attorney, Doug Caroom of the Austin law firm Bickerstaff Heath Smiley Pollan Kever & McDaniel, asked the TNRCC commissioners to rule on a pair of legal questions that could have excluded the nine entities opposing dumping at the site -- the city of El Paso, El Paso County, Presidio County, Culberson County, Alpine resident Susan Curry, Marfa residents Patty Godbold and Gary Oliver, Ciudad Juarez in Mexico, and the Donald Judd estate of Marfa -- from further participation in the licensing hearing process. The waste disposal agency also forced the TNRCC to decide how lawyers for proponents of the dump will be aligned in the upcoming public hearing on the Sierra Blanca site in Hudspeth County, which is scheduled to begin operations in November.

In the first question, the TLLRWDA asked the three commissioners -- Ralph Marquez, John Baker, and chairman Barry McBee -- to decide whether a region which "may be affected by the perception of adverse environmental or health consequences" gives them a "justiciable interest within TNRCC's jurisdiction."

Caroom argued that the nine entities in question could not bring a civil lawsuit against the state because they cannot prove that they have been harmed by the proposed waste site. "We still are going to have a full and fair hearing, Caroom told the commissioners. "And we have had abundant opportunity for public input." But opponents of the Sierra Blanca site said the waste authority's effort to throw them out of the process indicated their lack of concern for public participation. "There is a lot of lip service about the need for public participation," said Teresa Todd, the Presidio County Attorney. "But we have seen repeated attempts by the authority to limit public participation."

In the second question, the TLLRWDA asked if its interests are "sufficiently distinct from other intervenors that it should be aligned independently from other intervenors supporting the application?"

Caroom and lawyers from the state's two nuclear utilities, Houston Lighting & Power and Texas Utilities, argued that they should be aligned separately because even though all of them want the TLLRWDA to get a license, their interests are not identical. But the Public Interest Counsel, an office at TNRCC that represents the interests of the public, told the three commissioners that by allowing the utilities to be separated out, they would "become a second string applicant" and would be able to "double their discovery options." Attorneys for the TNRCC's executive director, Dan Pearson, also recommended that the authority and the utilities be aligned together. David Frederick, a partner in the Austin law firm of Henry Lowerre, Johnson Hess & Frederick, who represents the Sierra Blanca Legal Defense Fund, told the commissioners, "The utilities have virtually unlimited income. The authority, for all practical purposes, has unlimited income. On the other side, you have some of the poorest people in Texas."

After listening to all the parties, McBee made a motion to allow the nine entities to stay in the process. He then moved to allow TLLRWDA to be separated from the electric utilities. Both motions passed unanimously.

The decision was a clear win for the TLLRWDA. By being aligned separately, the authority and the utilities can bring more legal firepower to the fight. The TLLRWDA has budgeted more than $2 million for legal expenses this year. The two utilities, which have combined annual revenues of about $10 billion, can afford to hire the biggest and best law firms in the state.

The utilities are pushing hard for Sierra Blanca because it will be a low-cost disposal site for waste generated by the South Texas Project and Comanche Peak. Radioactive waste is expected to provide 70% of the volume of all the waste buried at Sierra Blanca. However, that 70% will account for more than 95% of all the radiation contained at the site.

Although the hearing resulted in a favorable outcome for the nine entities opposed to the Sierra Blanca site, the fact that they had to come to Austin to fight to stay in the case left many of them angry. Jake Brisbin, the county judge from Presidio County, asked the commissioners, "What is the logic in trying to limit public participation?"

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State of the World, 1997

It comes out every year, so it's easy to overlook the Worldwatch Institute's annual State of the World report. This year's effort has studies on global climate change, the decreasing amounts of arable land, ozone depletion, and other issues of global importance. Perhaps the most interesting section of this year's edition is called "Reforming Subsidies." Written by David Malin Roodman, the report estimates that governments around the world now provide subsidies worth "at least $500 billion a year toward activities that harm the environment, from overfishing to overgrazing." He points out that mining companies are still getting huge subsidies from federal taxpayers courtesy of the Mining Act of 1872. "In 1994, for instance," writes Roodman, "a Canadian concern bought 790 hectares [about 2000 acres] of federal land in Goldstrike, Nevada for $5,190; the tract contained gold worth $10 billion." Since the mining act became law, Roodman estimates, American taxpayers have been cheated out of some $242 billion worth of royalties.

To get a copy of the latest State of the World report, contact: Worldwatch, 1776 Massachusetts Ave. NW, Washington, DC 20036, or call 800/555-2028.