"The DOE has identified this case for what it really is, an effort to dictate waste
management policy to
the agency (and the nation) that, not coincidentally,
would offer WCS a way to evade Texas state law
and serve the firm's economic interests."
- Texas Attorney General Dan Morales, Brief for Amicus Curiae, State of Texas, March 1998.
WCS's Reputation around the Texas Capitol Nothing New
Andrews County has a long history in the oil business. In 1929, when oil was discovered, Andrews became the largest
oil producer in the US. In 1966, the Chamber of Commerce formed the Andrews Industrial Foundation (AIF), a small group of wealthy
business leaders, which would control economic development in the County to present day.
During the OPEC embargo of 1973, the sharp rise in oil prices stimulated oil production and profit in Andrews.
After the oil boom, prices dropped, and the AIF began to look to other means to attract new business. Throughout the 1980s,
the Foundation began lobby for nuclear industry projects. When the DOE was investigating the suitability of Deaf Smith
County for high level waste disposal (later sited at Yucca Mountain), Andrews had actively sought to also be a candidate.
Andrews was also runner-up in the bid for the Superconducting Super-Collider project. None of these proposals met suitability
requirements, primarily due to the presence of the Ogallala aquifer in the county.
By 1986, oil prices hit bottom, and Andrews' economy was drooping from it's previous heights.
June 1987, the TLLRWDA had been contacted about
siting a disposal facility owned by the University of Texas about 20 miles east
of the town of Andrews. When the TLLRWDA visited the proposed site and noted that the site was
probably not suitable due to the proximity of the Ogallala, the Andrews Board asked to begin
drilling test holes to demonstrate this wasn't the case, which they did, and found the Ogallala
40 feet just below the site. The TLLRWDA newsletter said, "protection of the State's waters is
perhaps the most important siting criteria that the authority must meet. With the presence of
the country's largest aquifer located a mere 40 feet below the surface, the Andrews County site was
immediately disqualified." (as a sidenote, it should be pointed out here that water issues were never a concern of the
TLLRWDA when it came to the Sierra Blanca dump, and this had contributed to a feud between the Andrews Industrial Foundation
(including WCS) and the TLLRWDA).
Waste Control Specialists LLC (WCS) was formed in 1989 by Houston Industrialist Ken Bigham, with the goal of building
a hazardous waste dump. Bigham bought 16,000 acres in Andrews on the Texas-New Mexico State Line
and planned a 11,274,000 cubic yard landfill on the property. In March of 1993, WCS applied to the TNRCC for a RCRA Part B
permit, which allows disposal of all hazardous chemical waste (over 2,000 toxic substances), and were granted a license in
record time by August 1994. Less than one year later, WCS cited a declining market for hazardous waste disposal, and with the
blessing of the Andrews Industrial Foundation, began to bid for the disposal of "low-level" and mixed radioactive wastes.
In 1995, WCS lobbied the Texas Legislature, and caused quite a stir-up when two of their lobbyists,
John Birdwell and former congressman Kent Hance, were exposed trying to get an outspoken
republican opponent of their radioactive
waste bill to change his mind by promising $60,000 in campaign contributions in the next elections.
Reps Robert Talton (R-Pasadena) and Ray Allen (R-Grand Prarie) reported the incident to the executive
assistant to House Speaker Pete Laney, and the District Attorneys office.
Allen stated that he had been approached by Birdwell who said of Talton,"why, they would put $60,000
in his campaign in a heartbeat if he would back off." Allen stated that "it certainly sounded like
a bribe using campaign contributions...
There was clearly a linkage between the campaign contributions and Robert dropping his opposition."
Tarlton mentioned that Hance had also approached him concerning a possible opening in his law firm
(Hance, Scarborough, Woodward, and Weisbart)
becoming available if he dropped opposition to the bill. "He implied that he needed another lawyer
in Houston," Talton said. "And I said I made over $1 million last year, and I don't need this."
Hance denied everything. He stated that it was a "cheap trick"
to kill the bill, and went on to say "it is an absolute lie... I don't know what he is smoking.
This guy is out of control. The bill comes up tomorrow, and he hates my client."
Hance was refering to the fact that Talton knew Ken Bigham, then-president of WCS, and had some disagreement
over 20 years before when Talton was on the Pasadena police force, and Bigham had worked for the Harris County
Hance claimed that Talton had said he still hates Bigham and
said of Talton, "he's going to do whatever he can to get rid of him." Talton explained that he and
Bigham had a disagreement, but that it was 20-25 years ago, and that he hadn't seen Bigham since.
Addressing the entire situation, including Hance's suggestion that opposing the bill was some sort of
vindictive move by Talton, Rep Allen pretty much summed it up saying, "this is a stinky deal, and the public needs
to get a whiff of this"
This bill was introduced by Senator Teel Bivins, and would have allowed a private company to obtain a radioactive
waste disposal license. WCS could then bring in and dump enormous portions of waste without hinderance.
The bill was killed, revived, and killed again during the closing days of the Session. In future legislatures,
Senator Bivins would continue to introduce bills which would enable WCS to become a national radioactive waste dump.
This episode was obviously a huge embarrassment to WCS, but they were soon rescued in November, when
50% of WCS was bought by Dallas-based Valhi Inc., run by billionaire Harold Simmons,
who is a personal friend of George W. Bush and major contributor to his campaigns. Simmons had a reputation for
funnelling massive campaign contributions to state and federal candidates, and had an team of
high paid Washington lobbyists to orchestrate these Congressional allies when elected.
Between 1994 and June of 1996, according to the Dallas Morning News, Simmons, Bigham and Hance
donated over $170,000 to Governor Bush and Lieutenant Governor Bob Bullock.
Simmons had also discussed the issue with Bush when Governor. "I basically told George that I was involved
in the company as a major investor," Simmons told the Morning News, "and I wanted him to be aware of
it in case the issue ever came up."
The lobbying team for WCS has been made up almost exclusively of ex-state officials and congressmen.
Leading up the team was Kent Hance, former Railroad Commissioner, who represented Andrews County when he was a
Congressman in the 1980s. Hance was a WCS major stockholder and Chairman with an option to buy 25% of the company. Carl Parker is
a former state senator (D-Port Arthur); Chet Brooks, a former state senator; Cliff Johnson, former state
representative from Palestine who served as commissioner of the Texas Water Board; Jim Rudd,
former state rep from Brownfield; Daryl Owen, former top aide to the senate energy committee.
WCS was in hostile competition with the State of Texas LLRWDA, who was busy attempting to build a dump of their own.
legislative agenda meeting of El Paso city, county, and state officials held December 1996, a
resolution opposing the Sierra Blanca site was unanimously approved. According to those present, only
one official wanted to request specifically that the compact dump be moved to Andrews County: El Paso state
representative Pat Haggerty. Ethics Commission filings show that Haggerty received campaign donations
from Ken Bigham, and WCS lobbyists Chet Brooks and Carl Parker - all on the same
day, and only a few weeks prior to the El Paso meeting.
By early 1997, WCS had submitted an application and soon afterward was granted a license
to process and store, but not dispose radioactive
waste at Andrews. This and the 75th legislature occured in the midst of a
20-month lawsuit between WCS and the DOE.
The Dallas Morning News obtained court documents after
the dismissal of the WCS vs DOE lawsuit in 1998 which
revealed a number of things about WCS's character.
In line with the Simmons-Valhi reputation, WCS had been hiring well-connected lobbyists in Washington, for example,
former top Senate Energy Committee aide Daryl Owen had been lobbying for WCS since October 1995, and
was promised a huge $18.4 million award if successful. By this time, Simmons, Bigham and others connected to WCS had
already donated over $90,000 to key senators and House members.
Also revealed was that Kent Hance had asked three senators who had recieved large WCS contributions
to block the nomination of Mary Anne Sullivan for DOE General Counsel, which succeeded
[the three were Shelby (R-Alaska), Hutchison (R-Texas) and Gramm (R-Texas)].
WCS was even getting its congressional allies to assist in things like letterwriting campaigns.
One targeted at Energy Secretary Federico Pena asked him why his department was still doing business with Envirocare,
and urging him to reconsider WCS proposals during the WCS vs DOE lawsuit. Gramm, Hutchison, and Shelby were among the
letterwriters, which included one letter signed by 18 of the 30 Texas House members, nine of whom had received
donations from top WCS supporters.
Wright Andrews, past president of the American League of Lobbyists, said WCS's lobbying has been hard-edged,
even for Washington.
"It sounds as thought this has been an exceptionally aggressive and very political lobbying effort." He continued
that he had lobbied Congress on nuclear waste issues before, "but it sounds like it is high-stakes"
Repeatedly, and unsuccessfully, WCS would introduce bills into every Texas Legislature which would allow a private
company to be granted a disposal license, thus allowing them to dump waste in unrestricted amounts from all over the nation.
Not unlike a child who repeatedly asks the same question over and over until the targeted adult, exasperated,
gives in with the desired answer, WCS continues to harrass our elected officials and regulatory agencies to have
its way with changing Texas Law to obtain the hundreds of billions in profits it seeks. When the vast
campaign contributions and other breaches of ethics reaches critical mass, it becomes clear
that the adults are forced to discipline the child, meaning that at some point the abuse of corporate accountability
will reach a point where State and Federal governments will have to say "enough's enough."
The DOE v.s WCS Lawsuit (Sept 1996-May 1998) : Bypassing State Law
Envirocare's Utah site is the nation's only state-licensed
private low-level waste dump, and has been the source of much aggressive
rivalry with WCS. During a lawsuit with the DOE, WCS claimed that Envirocare had
monopoly status on dumping DOE waste, and that WCS should also be able to open a DOE dump in Texas and reap the
promised billions in profits. Before WCS delivered its proposal to the DOE or the TNRCC in the case, Envirocare
Chief Executive Khosrow Semnani
bought up 880 acres near the WCS site and notified the TNRCC of an intent to license a federal DOE dump
which served as a pre-emptive strike against WCS, forcing a TNRCC
policy decision before WCS could act.
Since WCS was unable to change Texas law in 1995 to allow a private company a
license for a dump, they prepared a method to bypass state law.
In September 1996, WCS submitted a bid in response to a DOE open call for proposals to take waste from it's plant in
Fernald, Ohio. Part of the deal was that the company must take title to the waste, and be able to get the proper
disposal permits. The DOE did not see WCS as qualifying, and just about the same time on
October 18, TNRCC denied Envirocare's request for a license,
saying it didnt have the legal authority to grant such a permit under state law.
TNRCC executive director Dan Pearson sent a letter to WCS saying the same thing, and
emphasized that as a matter of policy the agency was opposed to "any scenario or arrangement" that
involved state oversight of a private disposal
In a second letter, Pearson suggested that a federally regulated DOE site was a legal feasibility,
and if such a proposal were formally made it would merely require a policy decision by the TNRCC's three
commissioners, who were all Bush appointees.
WCS's response was to submit another proposal to the DOE which outlined how they could operate a dump legally
under DOE contract without obtaining a state or NRC license. This also involved a research
partnership with Texas Tech University.
They had hoped that if the DOE opened a site
with them at Andrews, that this would
exclude the State of Texas from having any say in the process, for they claimed that as a DOE contracted site,
they should be exempted from State regulation.
Citing internal policy, the DOE said they couldn't do it, so WCS filed a complaint saying its proposal could be lawfully
implemented and that DOE unfairly rejected the proposal. DOE responded that they did see what WCS proposed
as being lawful, but that alternative regulatory agreements such as suggested were not covered under a poilicy decicion.
On October 3, 1997, Judge Joe Kendall of the U.S. District Court for the Northern District of Texas, Wichita Falls
Division, heard WCS' case against DOE, and issued a preliminary injunction against DOE.
He determines that a state and/or NRC permit is not necessary for DOE radioactive waste disposal at a
privately-owned site under contract with DOE. The injunction barred DOE from awarding contracts for the disposal of
low-level and/or mixed radioactive wastes without considering bids from WCS.
By February 1998 the lawsuit sped up when it came to the attention of the National Governors' Association, who weren't too pleased
that the DOE considered the WCS proposal as legal (since it infringed on state rights). WCS started asking for injunctive reliefs such as:
preventing the DOE from using U.S. Army Corps of Engineers contracts to ship their low-level wastes to
Envirocare's private dump in Utah; and, keeping the DOE from shipping low-level wastes to states unless an agreement
existed with a particular state. Two days later, sixteen states responded very concerned, with an amicus brief
of a full statement condemning WCS's arguments.
Among other things they said,
"if a privately owned and operated facility that seeks to profit from disposing
radioactive waste generated by DOE is exempt from external regulation, public health
and the environment may be severely compromised. Radiation protection regulations
must not be rendered ineffective merely because a private facility agrees to dispose
DOE waste." They continued that "the WCS proposal cannot be implemented under the Atomic Energy Act.
WCS is not exempt from State regulation simply because it disposes DOE waste at its privately owned and
operated facility. Further, disposal of DOE waste at the WCS facility in the absence of State regulation
is inconsistent with the Low-Level Radioactive Waste Policy Amendments Act of 1985."
U.S. 5th Circuit Court of Appeals reversed the preliminary injunctions placed upon the
DOE and dismissed the case in May 1998. However, the court not only denied entering the amicus brief the states had filed
but also found that the district court was correct
in determining that a state or NRC license is not required for a private site to dispose of
low-level or mixed radioactive waste from the DOE, but that the DOE has the discretion to require a state or
NRC license before granting a contract.