Tuesday, June 25, 2024 Jun 25, 2024
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Harold Simmons Is Dallas’ Most Evil Genius

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

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.