In the opening salvo of a long-anticipated legal battle over a rule that would leave Texas open to radioactive waste from all over the country traveling along our highways to a West Texas dumpsite, Public Citizen’s Texas office filed a petition in Travis County District Court on Thursday.
The petition alleges many significant flaws in the process by which these rules were adopted and seeks to depose officials to find out whether these were a series of inept mistakes, or part of an effort to suppress citizens’ rights to comment on expanded importation of dangerous radioactive waste.
Public Citizen’s petition does not state any specific wrongdoing. Instead, it requests depositions be scheduled to investigate “potential claims concerning the Commission’s recent, flawed rule-making.”
During the 2010 holiday season Public Citizen and SEED tangled with aspiring radioactive waste dump company Waste Control Specialists (WCS)and the Texas Low Level Radioactive Waste Compact Commission (Compact Commission) over a radioactive waste rulemaking that Public Citizen claims was fraught with irregularities.
The petition alleges that:
- The commission published the wrong email address for comments
- The over 6,000 comments received weren’t properly reviewed, evaluated and responded to,
- The comments were undercounted,
- The commission failed to legally find that there is enough excess capacity to allow importation from other states
- The commission has failed to analyze the risk of a transportation accident or the risk of a terrorist capturing some of these waste
The Compact Commission began a public comment period the day after Thanksgiving and ended it the day after Christmas, putting the public at a serious disadvantage. They then claimed to have adequately responded to the over six thousand comments that poured in toward the end of the 30 day comment period in only a matter of days without any technical or legal staff to analyze those comments.
Based on existing evidence it seems most likely that [Compact Commission] Chairman Michael Ford attempted to read and respond to over six thousand public comments and the numerous technically complex filings from consumer organizations, law firms, and elected officials between Christmas and New Years while sitting around his mother-in-law’s kitchen table. That would meaning reading three comments a minute – a herculean and, frankly, impossible task. This is hardly the kind of reasoned analysis envisioned inTexaslaw.
Despite the fact that over six thousand Texans took time out over the holidays to write letters opposing the idea of importing radioactive waste from all over the country to Texas, the Compact Commission voted 6-2 in favor of the plan. The vote took place on January 4th, just two days before the inauguration of Vermont’s governor elect, who had publicly stated during his campaign that he intended to appoint two new Vermont members to the Commission. The Compact Commission is composed of six members fromTexas and two members fromVermont.
The petition also alleges that the Compact Commission’s importation rule would result in a substantial increase the number of trucks carrying radioactive waste along Texas highways, into the thousands according to WCS’s own transportation study submitted when they applied for their license. This dangerous waste would be vulnerable to accidents and roll-overs as well as terrorist attacks.
During a December 2010 legal challenge to the proceeding, federal judge Sam Sparks expressed concern over the way public comments were handled. If granted, the petition would provide a low-cost means to determine whether there were violations of state and federal laws by the Compact Commission. Further action by the state of Texasor Vermont and Public Citizen could hinge on what is revealed in the depositions of key decision-makers involved in the rule-making process, including Michael Ford, the Compact Commission’s chairman, and the Commission’s former executive director who left her post before the vote.
If the commission is inept, that should heighten everyone’s concern about whether they are competent to regulate radioactive waste. If they are actively trying to downplay the extent of opposition to importation, it raises serious questions about their commitment to following Texas open meeting and open records laws.
A hearing on the petition has been scheduled for May 9th at 2:30 PM.
