Statement on Austin Court of Appeals Decision to Reject Sierra Club’s Challenge to TCEQ’s Radioactive By-Product Disposal Facility

Cyrus Reed, Conservation Director, Lone Star Chapter, Sierra Club

AUSTIN – Earlier this week, the Austin Court of Appeals rejected a Sierra Club challenge to the Texas Commission on Environmental Quality (TCEQ) issuing a license for a Radioactive By-Product Disposal Facility by Waste Control Specialists L.L.C. (WCS). In an unusual ruling authored by Justice Rose, the court determined that Sierra Club could not claim standing in the case and therefore could not have access to a contested case hearing if the TCEQ Executive Director had already concluded that the project would have no impact to a potential off-site resident at the property boundary.

“The Court in reaching its decision in Sierra Club v. TCEQ & WCS not only eliminates an individual’s ability to challenge the authorization of radioactive waste disposal within their own community, but the court’s opinion is written so broadly that it could also eliminate the right of all Texans to present evidence and challenge the decisions of a state agency in a contested-case hearing,” commented Cyrus Reed, Conservation Director for the Lone Star Chapter of the Sierra Club.

“The court describes the public meeting that TCEQ held, during which they announced their decision, as a public hearing. But to describe this meeting as a hearing would suggest that all parties were able to participate and present their evidence. This simply did not occur. There was no opportunity for our plaintiffs to present evidence of how they would be negatively impacted by the facility. They were not even allowed to present oral comments to the TCEQ commissioners.”

Reed noted that the case is actually one of two WCS licenses in which the Club is seeking legal redress before the 3rd Court of Appeals. In a decision on Sierra Club’s other challenge to a WCS license, the State District Court ruled that TCEQ erred by not granting the Sierra Club a contested case hearing on a radioactive waste license for low-level radioactive waste that is also disposed of by WCS in Andrews County.  That decision was immediately appealed by the State of Texas and WCS.

“We will continue to review all of our legal options in both the by-product and low-level radioactive waste cases,” Reed said. “With all of the proposed industrial activity in Texas, and talk of bringing high-level radioactive waste to Texas, we need to assure that citizens and landowners have the right to question and provide evidence even when the State tells us an activity is perfectly safe.”

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