[Congressional Record Volume 144, Number 42 (Friday, April 3, 1998)]
[Senate]
[Pages S3233-S3236]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE TEXAS/MAINE/VERMONT COMPACT

 Mr. WELLSTONE. Mr. President, the Senate has just passed H.R. 
629, legislation granting congressional consent to the Texas/Maine/
Vermont Compact. I have often been asked why I--a senator from 
Minnesota--should have such a deep and abiding interest in this 
legislation, which appears to involve only those three states. Until 
this week, I had not agreed to a time limit for debate, and this held 
up consideration of the bill for more than year. I think I owe it to my 
colleagues to explain why I was insisting on a full and thorough 
debate, and why I think this discussion is so important.
  What has troubled me from the very beginning is that this legislation 
would result in the dumping of low-level radioactive waste in a small, 
poor, majority-Latino community in rural West Texas--a town called 
Sierra Blanca. In this respect, the Texas/Maine/Vermont Compact is 
different from other Compacts the Senate has considered. We know 
beforehand where this waste will be dumped. The Texas legislation in 
1991 identified the area where the dump will be located. The Texas 
Waste Authority designated the site near Sierra Blanca in 1992. A draft 
license was issued in 1996.
  Whether we like it or not, this knowledge makes us responsible for 
what happens to Sierra Blanca. I'll be the first to acknowledge that 
this is a terrible responsibility. The fate of the people who live 
there ultimately rests in our hands. Their livelihoods, their 
community, their property, their health, their safety, and in many 
respects their lives, all depend on how we choose to proceed on this 
bill.
  I believe very strongly that the Compact raises important and 
troubling issues of what has variously been described as 
``environmental justice,'' ``environmental equity,'' ``environmental 
discrimination,'' or ``environmental racism.'' And a diverse array of 
civic organizations agree with me about this. The Texas NAACP, The 
Sierra Club, the League of United Latin American Citizens (or 
``LULAC''), Greenpeace, the Bishop and the Catholic Diocese of El Paso, 
the House Hispanic Caucus, Friends of the Earth, and Physicians for 
Social Responsibility, to name just a few.
  As a very basic proposition, I think we can all agree that it's wrong 
for poor, politically powerless, minority communities to be singled out 
for the siting of unwanted hazardous waste dumps. It's wrong when that 
happens in Sierra Blanca, and it's wrong when it happens in hundreds of 
other poor minority communities all across this country. I want to do 
whatever I can to stop it, and I don't see why every one of us should 
not want to do the same. I don't understand why it should be considered 
unusual for a senator to care about these things. On the contrary, I 
think it should be unusual for a senator not to care about these 
things.
  Let me tell you something about Sierra Blanca. It's a small town in 
one of the poorest parts of Texas, an area with one of the highest 
percentages of Latino residents. The average income of people who live 
there is less than $8,000. Thirty-nine percent live below the poverty 
line. Over 66 percent are Latino, and many of them speak only Spanish. 
It's a town that has already been saddled with one of the largest 
sewage sludge projects in the world. Every week Sierra Blanca receives 
250 tons of partially treated sewage sludge from across country. And 
depending on what action Congress decides to take, this small town with 
minimal political clout may also become the national repository for 
low-level radioactive waste.

  Supporters of the Compact would have us believe that the designation 
of Sierra Blanca had nothing to do with the income or ethnic 
characteristics of its residents. That it had nothing to do with the 
high percentage of Latinos in Sierra Blanca and the surrounding 
Hudspeth County--at least 2.6 times higher than the state average. That 
the percentage of people living in poverty--at least 2.1 times higher 
than the state average--was completely irrelevant. They would have us 
believe that Sierra Blanca was simply the unfortunate finalist in a 
rigorous and deliberate screening process that fairly considered 
potential sites from all over the state. That the outcome was based on 
science and objective criteria. I don't believe any of this is true.
  Let me be clear. I'm not saying science played no role whatsoever in 
the process. It did. Indeed, based on the initial criteria coupled with 
the scientific findings, Sierra Blanca was disqualified as a potential 
dump site. It wasn't until politics entered the picture that Sierra 
Blanca was even considered.
  I think its worth taking a moment to review how we get to where we 
are

[[Page S3234]]

today. The selection criteria for the dump were established in 1981, 
and the Texas Waste Authority hired engineering consultants to screen 
the entire state for suitable sites. In March 1985, consultants Dames & 
Moore delivered their report to the Authority. Using ``exclusionary'' 
criteria established by the Authority, Dames & Moore ruled out Sierra 
Blanca and the surrounding area, due primarily to its complex geology.
  Let me quote from that report. Features ``applied as exclusionary as 
related to the Authority's Siting Criteria'' included ``the clearly 
exclusionary features of: complex geology; tectonic fault zones,'' et 
cetera. ``The application of exclusionary geological criteria has had a 
substantial impact'' in screening potential sites, the report observed. 
In its final composite, the report explained, ``Complex geology and 
mountainous areas in West, West-Central, and the Panhandle of Texas 
were excluded,'' including the Sierra Blanca dump site. The report also 
found, ``Many tectonic faults occur in West Texas within massive blocks 
of mountain ranges. This area includes El Paso [and] Hudspeth'' 
counties ``and has undergone several phases or episodes of tectonic 
disturbances.'' Finally, it went on to observe that, ``Although not 
excluded, the remainder of Hudspeth County does not appear to offer 
good siting potential.''
  So much for the science. Repeatedly since the early 1980s, the Waste 
Authority has come back again and again to this politically powerless 
area. It has designated four potential sites in all, and--with one 
revealing exception--all of them were in Hudspeth County. There are 
only three communities in the entire County, all of them poor and 
heavily Latino, and all of them targeted by the Authority.
  The one exception to the pattern was in 1985, after completion of the 
engineering consultants' report, Dames & Moore concluded that the 
``best'' sites were in McMullen and Dimmit Counties, and the Waste 
Authority settled on a site in McMullen County. But this decision met 
with fierce opposition. Politically influential individuals demanded 
that the Authority move the dump to Hudspeth County.

  At this point any pretense of objectivity was abandoned. The 
selection criteria were changed in 1985 so as to rule out the two 
``best'' sites identified by Dames & Moore. The new criteria gave 
preference to sites located on state-owned land. This change had the 
effect of virtually guaranteeing selection of a site somewhere in 
Hudspeth County, large portions of which are owned by the state of 
Texas.
  So the Waste Authority proceeded to designate, based on an informal 
and cursory process, five sites in Hudspeth County. Its clear choice, 
however, was Fort Hancock, one of the County's three poor Latino 
communities. Unfortunately for the Authority, the more politically 
powerful city of El Paso next door decided to fight back. Together with 
Hudspeth County, El Paso filed suit against the site selection. They 
argued that the Fort Hancock site was located in an area of complex 
geology--like Sierra Blanca, incidentally--and lay on a 100-year flood 
plain. The amazing thing is that they won. In 1991 U.S. District Court 
Judge Moody ruled in their favor and ordered that no dump could be 
built in Fort Hancock, Hudspeth County.
  But the County's court victory was short-lived. The Waste Authority 
was clearly not about to give up. The Authority went back to the state 
legislature to get around Judge Moody's decision by once again changing 
the rules. A legislator from Houston, far to the East where the big 
utilities are based, proposed a bill that ignored all previous 
selection criteria and designated Fort Hancock once and for all. 
Interestingly enough, this maneuver aroused a great deal of public 
indignation, precisely because of the Authority's perceived 
discriminatory practice of dumping on Latino communities.
  There was an impressive show of force against discrimination, but the 
outcome was not exactly what Hudspeth County had in mind. After Judge 
Moody's remarkable decision, lawyers for El Paso and the Waste 
Authority worked out a compromise. Fort Hancock would be saved, but a 
400 square mile area further north in Hudspeth County would take its 
place. This oblong rectangle imposed on the map--an area that included 
Sierra Blanca--was subsequently dubbed ``The Box.'' The Texas 
legislature passed the so-called ``Box Law'' by voice vote only days 
before the end of session in May 1991.
  Once again, the previous site selection procedures were stripped 
away. The Box Law repealed the requirement that the dump had to be on 
public land, the very requirement that had pointed the Authority 
towards Hudspeth County in the first place. This was necessary because, 
at that time, the Sierra Blanca site was not public land at all. Most 
importantly, to prevent another troublesome lawsuit like the Fort 
Hancock debacle, the Box Law essentially stripped local citizens of the 
right to sue. It denied them all judicial relief other than an 
injunction by the Texas Supreme Court itself, and for this unlikely 
prospect citizens would be required to drive 500 miles to Austin.
  This story is depressingly familiar. A similar scenario unfolds over 
and over again in different parts of the country, with different names 
and faces in every case. Sometimes there is no intention by anyone to 
discriminate. But pervasive inequalities of race, income, and access to 
the levers of political power exercise a controlling influence over the 
siting of undesirable waste dumps. The people who make these decisions 
sometimes are only following the path of least resistance, but in far 
too many instances the result is a targeting of poor, politically 
marginalized minority communities who lack the political muscle to do 
anything about it.

  The remarkable thing about this story is that some people in Hudspeth 
County did fight back. Dell City fought back and won in the early 
1980s. Fort Hancock fought back and won their court case in 1991. And 
make no mistake, the people of Sierra Blanca are fighting back, too. 
Many of them have been here on the Hill. Father Ralph Solis, the parish 
priest for Sierra Blanca and Hudspeth County, was here in February, and 
his delegation may have visited your office. These people know that the 
odds are stacked against them, but they are persevering just the same.
  One of the amendments I included in this bill is intended to give 
them a fighting chance. It gives them their day in court--the right to 
challenge this site selection on grounds of environmental justice. It 
says that the Compact cannot be implemented in any way--and that would 
include the siting process, the licensing process, or the shipment of 
waste to the site--that discriminates against communities because of 
their race, national origin, or income level. If local residents can 
prove discrimination in court, then they can stop the Compact 
Commission from operating the dump. They don't have to prove intent, by 
the way, although that certainly would be sufficient. All they have to 
show is disparate treatment or disparate impact.
  I know some of my colleagues don't believe issues of environmental 
justice are implicated here. Or they may think this is not a question 
for the Senate to decide. I believe this amendment meets the concerns 
of those colleagues. All my amendment does is give local residents the 
right to make their case in court. There is no guarantee they will win. 
After all, it is extremely difficult to prove environmental 
discrimination. But I'm glad this amendment has been accepted as part 
of H.R. 629, and I certainly will insist that it be included in any 
final legislation passed by this body. I do not see how anyone would 
want to deny these people a chance to make their case.
  Short of defeating the bill outright, I believe passing this 
amendment is the only way for us to do right by the people of Sierra 
Blanca. Yet, as amazing as it sounds, Compact proponents also claim to 
have the best interests of Sierra Blanca at heart. They claim the 
Compact will protect local residents because it keeps out waste from 
states other than Maine and Vermont. They have used this argument again 
and again, in Sierra Blanca, in the Texas legislature, in the House of 
Representatives, and they're using it again in the United States 
Senate. But this argument makes no sense. The dump does not have to be 
built, it is indeed unlikely to be built without congressional consent 
to this Compact, and the Compact would not protect Sierra Blanca in any 
event.

[[Page S3235]]

  The point that keeps getting lost here is there's no compelling 
reason why the Sierra Blanca dump must be built. Some of you might have 
seen the headline in the New York Times on December 7 of last year: 
``Warning of Excess Capacity in Nation's Nuclear Dumps--New Technology 
and Recycling Sharply Reduce the Volume of Nuclear Waste.'' The article 
discusses a study by Dr. Gregory Hayden, the Nebraska Commissioner for 
the Central Interstate Compact Commission. Dr. Hayden found that 
``there is currently an excess capacity for low-level radioactive waste 
disposal in the US without any change to current law or practice.'' He 
went on to explain, ``These disposal sites have had low utilization due 
to falling volumes since 1980. Thus, a high capacity remains for the 
future, without any change to the current configuration of which states 
may ship to which disposal site.'' Let me repeat the essential point: 
there is no compelling need for any new low-level radioactive waste 
dumps in this country. And if no new dump is built, nobody can argue 
that the compact is needed to protect Sierra Blanca.

  The most popular argument for building another dump involves disposal 
of medical waste. I'm sure all of you have heard it. It's claimed that 
waste from medical facilities and research labs is getting backed up--
that it has to go somewhere. But let me emphasize one central and 
indisputable fact: over the last few years, over 99 percent of the 
waste from Maine and Vermont has come from nuclear reactors. Less than 
one percent has been from hospitals and universities. And from all 
three states, 94 percent of the low-level waste between 1991 and 1994 
came from reactors. This dump is being built--first and foremost--to 
dispose of radioactive waste from nuclear reactors, not from hospitals.
  So why are the nuclear utilities hiding behind hospitals and 
universities? It's not very hard to figure out. In 1984 the Texas Waste 
Authority hired a public relations firm to increase the popularity of 
nuclear waste. The PR firm recommended, ``A more positive view of safe 
disposal technologies should be engendered by the use of medical 
doctors and university faculty scientists as public spokesmen for the 
[Texas Waste] Authority.'' ``Whenever possible,'' the report said, 
``the Authority should speak through these parties.'' Well, that advice 
has been followed to the letter. We all have sympathies for hospital 
work and university research. I know I do. But we cannot let those 
sympathies blind us to the existing excess capacity for disposal of 
low-level waste.
  Not only has there been no convincing demonstration of need for this 
dump, but odds are no dump will be built if the Compact fails. Let me 
quote from an article from the Texas Observer of last March: ``Texas 
generates nowhere near enough waste on its own to fill a three-million 
cubic feet dump, and by its own projections [the Texas Waste Authority] 
could not survive without Maine and Vermont's waste.'' Moreover, there 
are indications the Texas legislature will not appropriate funding to 
build the dump if Congress rejects this Compact. Texas lawmakers 
refused the Waste Authority's request for $37 million for construction 
money in FY 1998 and FY 1999. In fact, the Texas House initially zeroed 
out all funding for the Authority, but funding for licensing was later 
restored in conference committee. My understanding is that construction 
funding was made contingent on passage of the Compact, whereupon Maine 
and Vermont will each be required to pay Texas over $25 million.
  Supporters of the Compact are trying to have it both ways. When 
challenged about the environmental justice of targeting Sierra Blanca, 
they respond that no site has been selected, and environmental justice 
can only be addressed if and when that ever happens. Then in the 
same breath they insist that the dump in Sierra Blanca is definitely 
going forward and the Compact is therefore necessary to protect local 
residents from outside waste. So which is it? Either the Sierra Blanca 
dump is a done deal or it's not. The truth is, the most likely scenario 
is that the dump will be built in Sierra Blanca if Congress approves 
this Compact, subject to any legal challenges, but the project will not 
go forward if the Compact is rejected.

  Even if the dump is built, however, the Compact does not protect 
Sierra Blanca. The Compact Commission would be able to accept low-level 
radioactive waste from any person, state, regional body, or group of 
states. All it would take is a majority vote of the Commissioners, who 
are appointed by the Compact state governors. Why should the people of 
Sierra Blanca expect unelected commissioners to keep waste out of their 
community? Is there anything in their recent experience that would 
justify such faith?
  The fact is, the state will have every economic incentive to bring in 
more waste. The November 1997 report by Dr. Hayden concluded that ``the 
small volume of waste available for any new site would not allow the 
facility to take advantage of economies of scale. Thus, it would not 
even be able to operate at the low-cost portion of its own cost 
functions.'' The new dump will need high volume to stay profitable. The 
Texas Observer reports, ``A 1994 analysis by the Houston Business 
Journal suggests that the Authority would open the facility to other 
states to keep it viable.''
  We have here the potential for establishing a new national repository 
for low-level nuclear waste. Not only will Texas have an incentive to 
bring in as much waste as possible, but the same will be true of 
nuclear utilities. The more waste goes to Sierra Blanca, the less they 
will be charged for disposal. Rick Jacobi, General Manager of the Texas 
Waste Authority, told the Houston Business Journal: ``The site is 
designed for 100,000 cubic feet per year, which would be about $160 per 
cubic foot. But if only 60,000 cubic feet per year of waste arrives, 
the price would be $250 per cubic foot.'' That's a big difference. As 
Molly Ivins says, ``That sure would drive up costs for Houston Lighting 
and Power and Texas Utilities.'' And the going rate at one existing 
dump is a whopping $450 per cubic foot. In the end, it will be in the 
economic interest of everyone--from the nuclear utilities to the Waste 
Authority--to ship as much waste to Sierra Blanca as they can.
  My second amendment addresses this problem. Throughout the process of 
approving the Compact, supporters claimed the waste would be limited to 
three states. I want to hold them to that promise. My amendment puts 
that promise in writing. I doubt anyone would disagree that this 
understanding was shared by everyone who participated in the Compact 
debate. If Compact supporters truly plan to limit waste to three 
states, which has been everyone's understanding all along, they can 
have no objection to my amendment. It's nothing but a protection 
clause. A nearly identical amendment--called the Doggett Amendment--was 
attached to the bill passed by the House. I am pleased that the Senate 
has accepted my amendment, but I will insist that it be included in any 
final legislation passed by this Congress.
  There are other issues I will not be able to address with amendments. 
I think there is a fundamental concern about whether this kind of 
disposal is safe at all. The League of Conservation Voters warns that, 
despite the hazards involved, waste will be buried in soil trenches 
destined to leak, as have nuclear dumps in Kentucky, Illinois, and 
Nevada. LCV did score the House vote on final passage, and has 
announced that it may score Senate votes as well.

  There is also an obvious concern about the unsuitability of Sierra 
Blanca's geology--the exclusionary criterion from the 1985 Dames & 
Moore report. Sierra Blanca is situated right in the middle of the 
state's only earthquake zone. Its 1993 license application stated that 
this is ``the most tectonically active area within the state of 
Texas.'' In April 1995 there was a 5.6 earthquake 100 miles away, in 
Alpine, Texas. And there have been two tremors in the area in the last 
four years.
  The concern about the environmental impact of this dump extends well 
beyond the border. The Mexican equivalent of the EPA announced its 
opposition on March 5 on grounds that the Sierra Blanca dump poses an 
environmental risk to the border region. On February 11, the Mexican 
Congress, represented by its Permanent Commission, declared ``that the 
project in Sierra Blanca in Texas, and all such dumping projects along 
the border with

[[Page S3236]]

Mexico, constitute an aggression against national dignity.'' Moreover, 
the project apparently violates the 1983 La Paz Agreement between 
Mexico and the U.S., which commits both countries to prevent pollution 
affecting the border area.
  My paramount concern, however, and the reason I have resisted a time 
agreement on this bill, was that I could not stand by and watch while a 
poor, politically powerless, Latino community was targeted to become 
the premier repository of low-level nuclear waste for the entire 
country. Much less give it my blessing. Not when I have the power to do 
something about it. At the very least, the amendments I included in 
this bill will keep Sierra Blanca from becoming a national dump, and 
will give local residents their day in court to seek elusive relief 
from environmental discrimination.
  I hope my amendments accomplish something more than that, as well. I 
hope they keep alive the spirit of community this controversy has 
ignited. The newspaper columnist Molly Ivins has written that ``this is 
community action and local organizing at its very best.'' I couldn't 
agree more. We have to maintain grass-roots pressure on the House or 
the conference committee, as case may be, to keep these amendments in 
the bill. And I hope the residents of Sierra Blanca will continue this 
struggle in every forum possible. I do believe they have right on their 
side, and I am still naive enough to hope and believe that right can 
beat might, and that justice can prevail against the odds.

                          ____________________