Lawmakers look at nuke waste dump bill

March 29, 2019

A bill is moving through Texas Congress that would lower the amount of money sent to the state from the radioactive waste facility in Andrews County and provide nearly two-thirds of the site for use as a dumping ground for the entire nation.

The bill, HB 2269, was filed by Rep. Brooks Landgraf (R-Odessa) in the Texas House of Representatives, and an identical bill, SB 1021, was filed in the Texas Senate by State Sen. Kel Seliger (R-Amarillo). Landgraf brought the bill before the Texas House of Representatives Environmental Regulation Committee Tuesday, who also heard testimony from some in support of the bill, and many in opposition of it.

HB 2269 would reduce the surcharge on imported waste goods paid by Waste Control Specialists, which runs the facility, to the state of Texas, which goes into a perpetual account meant to clean up abandoned radioactive waste sites, and would also reduce the facility’s income tax fee from 10 percent to 5 percent. Additionally, the bill would allow WCS to use up to two-thirds of the site for imported waste, as opposed to waste from facilities in Texas or Vermont, which are part of a compact with Texas to store waste at the facility. This is an increase from the 30 percent previously allocated for states outside of the compact.

Landgraf told the committee that, when the compact agreement was originally made, it was assumed there would be a steady stream of waste imported from other states.

“Because of decommission delays in other parts of the country, that has not been the case, which has resulted in difficulty for the operator to maintain viability under current circumstances,” Landgraf told the committee.

The reason this matters for Texas, Landgraf continued, is because should WCS become insolvent, the compact agreement requires Texas to implement a contingency plan, which may force the state to take control of the facility or expose itself to litigation from the state of Vermont for breach of contract.

Lloyd Eisenrich, chairman of the Andrews Industrial Foundation, spoke in favor of the bill, and said it only helps to assure the long-term viability of the facility, which he called innovative, safe and well-regulated.

Stacy Suits spoke on the bill on behalf of the League of Women Voters of Texas, and said the facility was originally approved in 2003 as a dumping site for Texas and other compact states like Vermont and Maine, and not to include more states.

“Since that time, WCS has made repeated requests for higher levels, larger volumes of radioactive waste and storage waste from throughout the country, all with a lower payment to Texas,” Suits said. “With that history, what will they ask for next?”

Suits called transportation of radioactive waste through the state of Texas an accident waiting to happen, with large numbers of railroad cars traveling through urban, suburban and rural areas creating a potential hazard for public health and the environment.

Michael Sis, the Catholic bishop of the Diocese of San Angelo, similarly spoke out about wanting amendments to the bill, and said he was concerned about the well-being of present and future generations of residents in the area.

“It was promised the site would always be low-level waste, however, it is a fact the WCS has applied to the federal government for a permit to bring high-level nuclear waste to the site in Andrews County,” Sis said. “They’ve applied for a permit to bring 40,000 tons of it. This is spent fuel rods from nuclear reactors around the country.”

While WCS has applied for a license to take in high-level radioactive waste, Landgraf said this bill only addresses low-level waste, and that if this bill were a backdoor attempt to bring high-level radioactive waste into the area, he would probably not support it.

Tom ‘Smitty’ Smith, an Austin-based environmental activist and former director of the Texas office of Public Citizen, said it’s time for the state to tell WCS they’ve had enough.

“If you let them bring in more waste, that’s more risk, and year after year that risk is going to increase,” Smith said.

Smith said that, despite claims of financial struggles, WCS will receive $500 million from the decommissioning of the Vermont Yankee Nuclear Power Plant, as long as they set up a bond for it.

“Although they’re ‘poor-boying’ you today, down the line they’re gonna have lots and lots of money, buckets of money they ought to be paying at least a portion of that to the state,” Smith said.

Smith added WCS should be putting some of that money into a fund to clean up the facility after they eventually leave the site, and suggested the state needs to do an analysis of the worst-case scenario, should something like a leak at the facility happen.

“Let’s get it right, as opposed to getting convinced by a company now owned by billionaires that we need to come to their rescue one more time,” Smith said. “These guys keep saying they’re in a hole financially, but they want to dig another hole. That doesn’t make any sense.”

WCS President David Carlson called the facility very safe, and said they have a record of safety unmatched in their area. He said the facility has always lost money due to economic restrictions imposed by statutes. He called the surcharges as they are now excessive and uncompetitive when compared to other states.

“We’re not asking for Texas to undo or to operate this Texas-owned compact waste facility, we’re saying that we can do it at no cost to Texas if we’re allowed to compete in the free market,” Carlson said.

More concern was raised by Adrian Shelley, director of the Texas office of Public Citizen, who pointed out that Section 6 of the bill would repeal a requirement that contracts for non-party compact waste disposal must be negotiated in good faith, conform to applicable antitrust statues and be nondiscriminatory, and would also repeal a section giving Texas Commission on Environmental Quality oversight and review authority over WCS contracts.

“A contract that was discriminatory, in violation of antitrust law and negotiated in bad faith could not be reviewed by the director of the TCEQ, and that seems like a bad precedent to set,” Shelley said.

Carlson said there is already a body of contract law that requires contracts non discriminate, violate antitrust law or be negotiated in bad faith, and called TCEQ review an extra review that wasn’t necessary.

“It’s just a step that was unnecessary, but frankly also slowed us down a lot in terms of just competing in the marketplace,” Carlson said.

Former State Rep. Lon Burnam, who now heads the Tarrant Coalition for Environmental Awareness, called the HB 2269 the “biggest, most important, baddest, ugliest vendor bill you will see this session.”

“I’ve been saying for over a decade that this vendor is going to walk away from this facility as soon as they’ve made as much money as they think they can make and the state will be economically liable for the leaks and contamination and proper disposal,” Burnam said.

Burnam also said there needed to be a plan in place for the eventual clean-up of the facility after it’s outlived its use. Landgraf said there is already a $20 million bond in place and HB 2269 actually requires the bond to stay in place in the event the company should go insolvent.

“We basically required them as a state to have what’s effectively an insurance policy so that in the event there is an insolvent operator, that the state’s not left footing the bill for it,” Landgraf said.

Landgraf said if you didn’t have WCS in Andrews County, an area he called geologically equipped for the facility, the state could have 1,000 smaller facilities across the state, in areas like Dallas or Houston.

“This is a safe place to deposit it, and in order for that viability to continue, we have to make some adjustments to the statute, and that’s what this does,” Landgraf said.

While WCS is in the middle of a process to get a license to store high-level radioactive waste, which would conceivably raise their revenue, Carlson said that process could take years.

“We’re in the situation of the compact waste facility having lost money every year it’s been in business, so we’re trying to turn that around now rather than something that may or may not happen many years from now,” Carlson said.

Cyrus Reed, interim director of the Lone Star Chapter of the Sierra Club, is another opponent of the bill and said he wanted the facility to make money, but said they had already made a deal with the state on how the facility would be run.

"I don’t think they should be bending over backward for a private investor because they’re not making as much money as they thought they would," Reed said.

The bill has yet to be passed out of the committee due to the fiscal note attached to the bill which states the HB 2269 could have a negative impact on state general revenue funds of $3 million through August 2021.

Should HB 2269 and SB 1021 be passed, they would take effect Sept. 1.