By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
If the concrete canisters buried at Sierra Blanca release contaminants--rainwater could, for example, seep in and absorb radioactive materials, then leach out--there is no guarantee that the leaks would be contained or cleaned up. Though Texas law states that buried low-level waste must be capable of being "monitored and retrieved," those 50,000-pound canisters of waste most likely won't be going anywhere. "We have no intention of ever pulling one up out of the ground," says Alvarado. In fact, in order for the authority to exhume waste, its license would have to be amended.
Opponents of the dump have been handicapped by the lack of funds to conduct studies and hire expert witnesses--the two studies commissioned by the Sierra Blanca Legal Defense Fund, a coalition of anti-dump groups, were ruled inadmissible in the licensing hearing because the authority would not pay the author's $300-an-hour rate to be deposed. Opponents had only a few months to prepare their testimony, and their requests for more time were turned down. By contrast, the authority had nine years to prepare its license application, was able to spend more than $4 million on the hearings alone, and its witnesses were trained using a technical-assistance grant from the U.S. Department of Energy.
Time and again in their written July opinion, the two judges who conducted the administrative hearing acknowledged weaknesses in the authority's testimony. However, they could base their recommendations only on evidence presented during the hearing, so on several issues the judges ruled in the authority's favor saying opponents did not present controverting evidence. That's why the judges' ultimate recommendation--against granting the license--was a happy surprise for dump opponents. The judges ruled that the authority had failed to adequately address two of 17 concerns: the on-site fault and the socioeconomic impact of the facility.
However, when the authority issued a response to the ruling, it did not even hint at an acknowledgement of any shortcomings: "The authority believes it has met its burden of proof on all issues and feels that it has proposed a safe and suitable site which should be constructed as recommended."
Whether the Texas Natural Resources Conservation Commission agrees with this belief remains to be seen.
When Congress passed the Low-Level Waste Disposal Act in 1980, legislators were responding to what seemed like an impending crisis. Three dumps had closed because of mismanagement or contamination, and it was assumed the remaining three would soon close. By 1979, one disposal facility, in Barnwell, South Carolina, was receiving 79 percent of the nation's waste. As if to underline the urgency of the waste problem, Barnwell refused to accept radioactive materials from the Three Mile Island disaster in 1979.
Congress responded by passing a law making states responsible for low-level waste generated within their borders. They could manage their own waste, or join compacts in which one state would host a dump used by it and several others. The law set a series of deadlines for compliance and threatened that states would have to take title to unspoken-for waste if they had not provided a disposal solution by 1996. In 1992, the Supreme Court struck down that provision, but many states were well on their way to forming compacts and locating sites for their dumps. Nine of these compacts would eventually come into existence across the nation. Initially, Texas decided to go it alone, but the state would later reach a compact with Maine and Vermont.
In 1981, the Legislature entrusted the job of managing Texas' waste to a newly created agency, the Texas Low-Level Radioactive Waste Disposal Authority. The authority's board hired Rick Jacobi, a former nuclear-safety engineer at Houston Lighting & Power. Though his story would later change, Jacobi insisted at the time that Texas did not need to join a compact. He set upon the unenviable task of finding a home for Texas' dump.
Not yet practiced in deflecting resident opposition, the authority first set its sights on Dell City in northeast Hudspeth County in February 1983. But organized resistance soon put an end to that idea. The search then proceeded to South Texas--whose clay soil, plus the fact that it was not on top of an aquifer, made it an ideal region--but legislative actions turned the authority away (see "How to Site a Nuclear Waste Dump for $50 Million"). Finally, the authority designated a site near Fort Hancock in southwest Hudspeth County. But the authority had strayed too close to Hudspeth's only politically and economically powerful neighbor, El Paso County. And El Paso sued.
"To run over this county [Hudspeth] should have been as easy as Iraq seizing Kuwait," wrote state district judge Bill Moody in his ruling on the case in 1991. "However, just like cavalry, El Paso County came charging over the hill to try to protect its small and defenseless neighbor and itself."
Moody ruled that the Fort Hancock site was entirely inappropriate. "It makes no practical sense to build a facility of this nature in the only area of Texas that has ever experienced a significant earthquake," Moody wrote, adding that the site posed a threat to the water supply and nearby Native American rock art.
Opponents of the dump point to Moody's ruling as evidence that Sierra Blanca, 35 miles from Fort Hancock, is also an unsuitable site. Jacobi admits that the two sites are geologically similar, but he believes Moody's rejection of the Fort Hancock location was all about politics, not science. "We were facing a hometown judge, and we didn't really have much of a chance," Jacobi says. "I don't think we got a fair trial. Judge Moody is not a hydrologist; he's not a geologist; he's not a biologist; he's not a meteorologist."