{"id":36038,"date":"2014-04-16T09:04:16","date_gmt":"2014-04-16T14:04:16","guid":{"rendered":"http:\/\/stateimpact.npr.org\/texas\/?p=36038"},"modified":"2014-04-16T09:04:16","modified_gmt":"2014-04-16T14:04:16","slug":"court-thwarts-sierra-clubs-radioactive-waste-challenge","status":"publish","type":"post","link":"https:\/\/stateimpact.npr.org\/texas\/2014\/04\/16\/court-thwarts-sierra-clubs-radioactive-waste-challenge\/","title":{"rendered":"Court Thwarts Sierra Club’s Radioactive Waste Challenge"},"content":{"rendered":"

<\/h4>\n
\"John<\/a>

<\/p>

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.<\/p><\/div>\n

From the Texas Tribune:<\/em><\/a><\/h4>\n

A state appeals court has thwarted a challenge to a low-level radioactive waste disposal site in West Texas \u2013 a ruling that signals growing difficulties for those trying to scrutinize the decisions of Texas environmental regulators.<\/p>\n

Depending on whom you ask,\u00a0such a trend would either\u00a0rightly save companies time and money or unjustly bar citizens from fully sharing their environmental concerns.<\/p>\n

The site, a\u00a036-acre facility in Andrews County\u00a0operated by Waste Control Specialists \u2014 a company\u00a0formerly owned by the late Dallas billionaire Harold Simmons \u2014 is the final resting place for hazardous waste and slightly radioactive items from shuttered nuclear reactors and\u00a0hospitals, among other places.<\/p>\n

Both the company and\u00a0state regulators have repeatedly called the site safe. But environmental groups have closely scrutinized the site as it has expanded\u00a0the scale of waste it accepts<\/a>, raising concerns about the effects on\u00a0groundwater and other resources.<\/p>\n

The Sierra Club has long argued<\/a> that state regulators never gave the organization\u00a0the chance to voice opposition to Waste Control Specialists’ permits\u00a0through a contested-case hearing \u2014 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\u2019 opinions.<\/p>\n

Earlier this month, Texas’ 3rd Court of Appeals\u00a0upheld a lower court’s ruling<\/a> that the Texas Commission on Environmental Quality properly denied the group a hearing because none of its members met the threshold of being a \u201cperson affected.”<\/p>\n

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\u00a0originated at a long-closed U.S. Department of Energy Facility that is now a \u201cSuperfund\u201d site<\/a>.<\/p>\n

The Sierra Club said that the waste site could negatively\u00a0affect two of the group’s\u00a0members 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.<\/p>\n

But the three-judge panel said the TCEQ \u2014 whose analysis showed that the disposal site would have minimal impacts \u2014 had the authority to rule that those members were not \u201caffected.\u201d<\/p>\n

In making that determination, the court cited two Texas Supreme Court decisions handed down last year \u2014 TCEQ v. City of Waco<\/a> and TCEQ v. Bosque River Coalition<\/a>. Both involved challenges to feedlots\u2019 wastewater discharge permits.<\/p>\n

Cyrus Reed, conservation director for the Lone Star Chapter of the Sierra Club, said he worried the appellate court’s recent\u00a0ruling would have implications that extend beyond Andrews County, giving regulators more wiggle room to deny hearings they might consider burdensome.<\/p>\n

\u201cOur 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,\u201d he said. \u201cIt could also eliminate the right of all Texans to present evidence and challenge the decisions of a state agency.\u201d<\/p>\n

In an emailed statement, the TCEQ said it was \u201cvery pleased\u201d with the court\u2019s decision, and that the agency takes seriously “<\/strong>its obligations to uphold the law \u2014 as was done in this case.\u201d<\/p>\n

Texas is one of just a\u00a0few 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.<\/p>\n

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\u00a0up to a year and cost up to\u00a0$1 million a project, he said.<\/p>\n

Jim Bradbury, an environmental lawyer who has represented clients on both sides of such disputes, said the Sierra Club ruling confirms the TCEQ\u2019s discretion to determine who gets a hearing, but doesn\u2019t fully erode the process. Parties who live adjacent to or directly downstream from companies seeking environmental permits will likely still draw hearings, he said.<\/p>\n

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.<\/p>\n

\u201cIt\u2019s a bit of a mess,” he said. \u201cThis process is used by all sides to game the system.\u201d<\/p>\n

Citing such criticism, some state lawmakers have pitched legislation<\/a> trying to change the system. Last session, for instance, state Sen.\u00a0Troy Fraser<\/a>,\u00a0R-Horseshoe Bay, wrote a bill<\/a> that would have ditched the contested hearing process. That legislation failed, but Bradbury and others expect it to crop up again next session.<\/p>\n

Meanwhile, the Sierra Club has another challenge to Waste Control Specialists pending in the same appeals court. That one concerns a license for a different type of low-level radioactive waste.<\/p>\n

Disclosure: The Harold Simmons Foundation is a major donor to The Texas Tribune. <\/i>A complete list of Texas Tribune donors and sponsors can be viewed\u00a0here<\/a>.<\/i><\/p>\n

This article originally appeared in The Texas Tribune<\/a> at http:\/\/www.texastribune.org\/2014\/04\/16\/court-thwarts-sierra-clubs-nuclear-waste-challenge\/<\/a>.<\/p>\n\n","protected":false},"excerpt":{"rendered":"

From the Texas Tribune: A state appeals court has thwarted a challenge to a low-level radioactive waste disposal site in West Texas \u2013 a ruling that signals growing difficulties for those trying to scrutinize the decisions of Texas environmental regulators. Depending on whom you ask,\u00a0such a trend would either\u00a0rightly save companies time and money or […]<\/p>\n","protected":false},"author":50,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[59],"tags":[55,378,27,33,374],"acf":[],"_links":{"self":[{"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/posts\/36038"}],"collection":[{"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/users\/50"}],"replies":[{"embeddable":true,"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/comments?post=36038"}],"version-history":[{"count":2,"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/posts\/36038\/revisions"}],"predecessor-version":[{"id":36041,"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/posts\/36038\/revisions\/36041"}],"wp:attachment":[{"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/media?parent=36038"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/categories?post=36038"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/stateimpact.npr.org\/texas\/wp-json\/wp\/v2\/tags?post=36038"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}