The Toxic Tycoon By Bobbye Pyke Natural Resources News Service Andrews County, TXTucked away on the Texas/New

Mexico border is a 15,000-acre lowlevel nuclear waste disposal site run by Waste Control Specialists (WCS), a subsidiary of Valhi, Inc. Only five miles away from the nearest city of Eunice, this site is to be a permanent disposal site for level A, B, and C radioactive waste. WCS sought two licenses that allowed them to accept a total of 60 million cubic feet of low-level radioactive waste from federal and state sources, including nuclear reactors, weapons programs, and hospitals, roughly enough to fill half of Cowboys Stadium. The citizens of Andrews County are thrilled to have the disposal site, which provides jobs and revenue to the small town. The town receives 5 percent of WCSs gross receipts and received their first payment in August, about $620,000. The company is owned by Harold Simmons, Texas billionaire and owner of Contran Corp, worth an estimated $9 billion; Titanium Metals Corp, the top producer of titanium for weapons and other industrial uses; Amalgamated Sugar; and WCSs Valhi Inc, a Texas-based waste management company. Simmons is considered by many to be a great philanthropist. Almost every hospital in Texas has a medical wing named after him based on his generous contributions. Yet, Forbes 55th richest man has some interesting relationships with politicians and has been named by D Magazine Dallas most evil genius. Photo credit Dallas Morning News

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Simmons graduated from the University of Texas at Austin Phi Beta Kappa and earned a masters degree in economics. According to Golden Boy: The Harold Simmons Story, the 2003 authorized biography of Simmons, his first business deal of significance was in 1956. A man who owned a bank in La Vernia, Texas, wanted to sell so he could retire. Simmons convinced him to sell with no money down. Simmons then sold the bank for $7,000 more than the asking price, paid the seller, and pocketed the profit, meaning Simmons sold the bank before he even owned it. By the mid-1970s, Simmons was a successful businessman, having built and sold a chain of drugstores. He was creating a small empire of insurance companies, farmland, and industrial manufacturers when he was indicated by a U.S. attorney in Illinois for mail and securities fraud relating to transactions he made on behalf of one of the insurance firms he owned. Simmons was found not guilty of criminal charges and settled a related civil suit out of court. In 1983, Simmons used $15 million from the pension fund of one of his Dallas-based hardware companies to take over an agricultural enterprise called Amalgamated Sugar. The U.S. Labor Department sued him in federal court. The judge ruled against Simmons, forcing him to sell the shares. Simmons responded by buying back the shares with his personal fortune and taking control of Amalgamated Sugar once again. It is with the takeover of this company that Simmons began his ongoing relationships with local, state and national politicians. Amalgamated Sugar processed domestically grown sugar beets. The company was successful because of Congresss willingness to maintain high tariffs on imported sugar. In 1997 Simmons is quoted as saying, We have a very hard battle every year in Congress and the Senate of that issue because our main opponents are Philip Morris, RJ Reynolds, and Hershey Foods, General Foodsmassive corporations who make more profit in one day than we make all yearWe have to really protect ourselves and work hard at it. But in the six years after Simmons took over Amalgamated Sugar the companys value grew nearly ten times to $330 million. With his success depending more and more on political decisions, Simmons developed an affinity for donating to political campaigns. The FEC fined him in 1988 for donating more than twice the legal limit in an election cycle for George H.W Bushs presidential campaign and other congressional candidates in positions to influence legislation that benefited his businesses. It was alleged that Simmons gave even more, millions of dollars of trust assets, to conservative political causes and politicians. Some of the alleged contributions were thought to be illegal and many were alleged to be designed to avoid federal election laws. Yet, the FEC took no action on these allegations and they were all but forgotten. By 1996, Simmons had developed a massive trust that not only included the vast majority of his personal wealth but also the majority of the stock of his publicly traded business holdings, which caught the eye of the IRS. They began pursuing Simmons for millions of dollars in back taxes, so Simmons paid a $600,000 fine and moved to dissolve one of the trusts to avoid further penalties. Simmons has been active in political fundraising since the 1990s and has always been influenced by Karl Rove, financing Rove campaigns since 1986. He donated $90,000 to George W. Bushs gubernatorial campaigns and $2.5 million to Bush-allied political organizations during his

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presidential runs. Valhi, a Simmons corporation, previously employed Gale Norton, the Bush administrations Secretary of the Interior, and former Vice President Dick Cheney. Norton was an attorney and lobbyist for Valhi, defending Natl Lead Industries in lawsuits involving lead paint poisoning and schoolchildren. Cheney was the former CEO of Halliburton when Valhi primarily owned it.

George Bush, Gale Norton, and Dick Cheney (left to right) Between 1997 and 2000 Simmons and his companies executives and PACs contributed nearly $650,000 to state candidates and PACs, according to Texans for Public Justice. He also donated $1 million to federal candidates, PACs, and Republican Party committees. In 2004, Simmons gave $4 millions dollars to the Swift Boat Veterans for Truth campaign, the GOP-backed effort to discredit Democratic presidential nominee John Kerrys Vietnam War military record. In 2008, Chris LaCivita launched the American Issues Project that aired TV ads trumpeting thencandidate Barrack Obamas past association with the former Weather Underground member William Ayers. The groups entire $2.9 million ad budget came from Harold Simmons. This year, Simmons donated $18.7 million to the Republican Party, including more than $14.5 million to Karl Roves American Crossroads and $800,000 to Restore Our Future. Simmonss private expenditure groups gave $800,000 to Mitt Romney, $1.2 million to Rick Santorum, $1.1 million to Newt Gingrich, and $1.1 million to Rick Perry. Clearly, Simmons donated a great deal of money to many politicians over the years and being a friend of Simmonss seems to have financial advantages. But does this campaign money come at a price? Is it really too good to be true? In 1997, two congressmen tried to establish a loophole for a specific type of agricultural cooperative transaction. Simmons happened to be making this type of agricultural cooperative transaction and also happened to have supported the congressmens campaigns. The congressional committee estimated that the loophole could have netted Simmons $60 million. President Clinton struck it down in the first ever use of the presidential line-item veto. NL Industries, another Simmons company, also left a particularly nasty legacy. In more than a century of continuous business, NL Industriess operations have involved magnesium, titanium,

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zinc, lead pigment, lead-based paint, lead smelters, lubricants, drilling equipment for oil fields, municipal, industrial waste disposal, the enrichment of uranium for nuclear weapons, and the production of projectile weapons using depleted uranium. NL Industries has left contamination across the country. According to the companys annual report from 1994, NL Industries and its subsidiaries had been named as a defendant, potentially responsible party, or both in approximately 80 governmental and private actions, with many sites and facilities on the EPAs Superfund National Priorities List or similar state lists. Simmonss relationship with WCS began in 1995 when Kent Hance, a former congressman and lobbyist in Austin, approached him about a business proposition. One of Hances lobbying clients at the time was WCS and the companys then president Ken Bigham was building a toxic waste dump near Andrews but was running out of money. Hance wanted Simmons to invest, and, over the years, Simmons acquired shares until he owned nearly all of the company. Even before Simmonss involvement, WCS made hundred of millions of dollars storing hazardous waste. But the radioactive waste disposal market held out the promise of even larger profits. The United States only had three privately-operated, low-level nuclear waste dumps and if WCS could break in to that market, they stood to make billions of dollars. However, Texas state law barred private companies from running nuclear waste dumps and with Bigham as President of WCS, they had been unable to change that. WCS caused a scandal in 1995 when two of its lobbyists, John Birdwell and 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 election. Representatives Robert Talton and Ray Allen reported the incident to the executive assistant to House Speaker Peter Laney, and the District Attorneys office. Allen claimed he was 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 said that it certainly sounded like a bribe using campaign contributionsThere was clearly a linkage between the campaign contributions and Robert dropping his opposition. Hance denied everything claiming that it was a cheap trick to kill the bill, saying it is an absolute lieI dont know what he is smoking. This guy is out of control. The bill comes up tomorrow, and he hates my client. Hance was referring to the fact that Talton knew Bigham and had some disagreement 20 years before when Talton was on the Pasadena police force and Bigham worked for the Harris County Sheriffs Office.

Ray Allen and Robert Talton

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Bigham was fired as CEO in 1999 and unsuccessfully sued Simmons and Hance, claiming that they had misused Simmonss connections with several state politicians, including then Governor George W. Bush and current Governor Rick Perry, as well as several federal politicians, including Kay Bailey Hutchinson, Phil Gramm, and Orrin Hatch. WCS executives drew up a memo detailing plans to stir up federal politicians for their benefit. According to Bigham, a copy of this memo found its way to an Energy Department official who faxed it back to a WCS consultant with a note saying, You cant expect us to be very supportive of [WSCs waste storage plant] with this kind of stuff going on.

Kay Bailey Hutchinson, Phil Gramm, and Orin Hatch left to right For WCS to be profitable they needed the state of Texas to allow them to run the nuclear waste dump and they needed to be able to store materials from other states, not just Texas. Initially the Texans Natural Resource Conservation Commission, which is now known as the Texas Commission on Environmental Quality or TCEQ, opposed the idea of a private company storing out-of-state waste in the Texas-based storage site. A lobbyist for then Governor Bushwho, as mentioned earlier, received $90,000 in campaign contributions from Simmonsvisited the commissions director. The commission reversed its position. Simmons later hired several of Bushs aids as lobbyists. Simmons had also discussed the issue with Bush and, according to the Dallas Morning News, said, I basically told George that I was involved in the company as a major investor and I wanted him to be aware of it in case the issue ever came up. An incoming general counsel in Bill Clintons Energy Department balked at the idea of a littleknown company storing federal waste. But Senators Hutchinson, Gramm, and Richard Shelby held up the appointees nomination; all were beneficiaries of Simmonss campaign financing. The Dallas Morning News obtained court documents after the dismissal of the WCS vs. DOE lawsuit in 1998, which revealed that Kent Hance asked Shelby, Hutchinson, and Gramm to block the nomination of Mary Anne Sullivan for DOE General Counsel. The three wrote a letter that was signed by 18 of the 30 Texas House members, nine of whom had received donations from top WCS supporters.

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State senators M. Teel Bivins and J.E. Buster Brown helped pass the bill allowing the private nuclear waste dump in Texas. They had collectively garnered at least $30,000 in contributions from Simmons. The first two attempts to pass the bill failed. The night the second attempt failed in the House in the spring of 2001, Simmons reportedly called the House Speaker Pete Laney demanding an explanation.

M. Teel Bivins, J.E. Brown, and Pete Laney left to right By 2003 WCS had renewed its push to get the legislation through the Texas House and finally succeeded. In an interview with Dallas Business Journal in 2006, Simmons all but claimed to have written the law himself saying, We first had to change the law to where a private company can own a license [to handle radioactive waste], and we did that. Then we got another law passed that said they can only issue one license. Of course, we were the only ones that applied. Pat Haggerty was the official who requested specifically that the compact dump be moved to Andrews County. Haggerty received campaign donations form Ken Bigham, former CEO of WCS, Chet Brooks, and Carl Parker, both former state senators and current WCS lobbyists. These donations were submitted on the same day only a few weeks prior to the El Paso meeting where Haggerty made the site suggestion.

WCS lobbyists Kent Hance, Chet Brooks, Bill Clayton, and Carl Parker (left to right) With the legislation passed, WCS had to prove that its site in West Texas was a safe place to permanently dispose of materials that could stay radioactive for thousands of years. The success

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of the application hinged on one question: Was the ground beneath Andrews County dry? Local geologists believed that it was but, according to the state Water Development Boards maps, the site came dangerously close to several groundwater deposits, including the Ogallala Aquifer, the largest underground water system in North America and possibly the world. To determine the location of the groundwater, TCEQ assigned 8 staffers to review the application. In August of 2007 a memo to an agency manager writer by four expertstwo geologists and two engineersnoted that based on the companys own data, Groundwater is likely to intrude into the proposed disposal unit and contact the waste from two different water tables in the area. The team suggested that one of the two sources for groundwater may be closer than 14 feet away from the facility and recommended emphatically that the agency deny WCS the license. By September, two TCEQ experts had quit over concerns about the WCS site when agency officials had ignored their recommendations. One of the members who quit was Glenn Lewis, a spokesman and public affairs officer at TCEQ who spoke, wrote, and published on behalf of the agency. In an affidavit from the WCS v. Greenwood trial, Lewis describes the events that led up to WCS receiving their license to store low-level nuclear waste. Lewis said, I came to be the technical editor on the team responsible for reviewing the application for a low-level radioactive waste license filed by Waste Control Specialists, LLP, or WCS. Among the team members were Peter Lodde, Bruce Calder, Abel Porras, and Roger Dockery. Peter Lodde and Abel Porras are engineers, and Bruce Calder and Roger Dockery are geologistsThe team spent four years reviewing the WCS application for a low level radioactive waste storage facility. A separate team reviewed WCSs application for a byproducts license. The team was unanimously disappointed with the content and organization of the application submitted by WCS.

Glen Lewis According to TCEQ records obtained by the Texas Observer, WCSs top executives, investors, and lobbyists made at least ten visits to the offices of the commissions top two officials between July 2007 and January 2008. In 2007, agency head Glenn Shankle overruled his own experts and recommended that the commission issue the license to store the waste. A year later WCS hired Shankle as the companys lobbyist in Austin.

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Glenn Shankle Chuck McDonald, a WCS spokesman, claimed that the water complaints were no longer relevant. Theres been six hundred wells drilled out there now, McDonald said. Weve got cored samples and test wells at every conceivable level out there. And they were able to determine unequivocally that the site is dry and doesnt impact any underground water sources.

Chuck McDonald In 2009, Lubbocks NewsChannel 11 interviewed David Barry, EPA spokesperson for Region 6. When he was asked about the boundaries of the Ogallala Aquifer he replied, Yes, the facility [WCS] does sit above the Ogallala Aquifer. It sits on the southern end of the aquifer. Strangely, in a phone interview a few months later with D Magazine, Barry seemed to reverse his opinion saying, It is the agencys 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. WCSs position statement on the aquifer, found on 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

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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. WCS claims its data convinced TWDB to redraw the boundaries of the Ogallala Aquifer. Yet, TWDB denies that it used WCS data. Leslie Anderson, the boards spokesperson, said, The TWDB technical staff initiated the change. The impetus for the change was work on a groundwater model that included the Pecos Valley Aquifer. Our revisions were not based of WCS data. The chance was based on our modeling work, past TWDB boundaries, and the U.S. Geological Survey boundary. Anderson adds that the changes to the maps 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. The revised hydrology maps, in fact, show this.

Toxic Tycoon Maps of Aquifer placement in Texas

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Andrews County

McDonald responded to this information by saying, 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 its separated by 500 feet

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of red-bed clay. Those regions designated as aquifers dont mean they have water underneathIf you drill a hole [at WCS], there is no water there. Yet director of the Sierra Clubs Texas chapter, Cyrus Reed, is not convinced. The site, he said, is close to the Ogallala Aquifer, a major source of drinking water. The Sierra Club is suing WCS, challenging the companys state environmental licenses because of the discovery of groundwater in some of the waste disposal sites 520 monitoring wells. Andrews County has responded by suing the Sierra Club in what Sierra Club lawyers are claiming is a strategic lawsuit against public participation, of a SLAPP suit, which is illegal in Texas. Andrews County claims that the actions of the Sierra Club have scared off potential business yet Reed says, Were just acting within our rights, as any citizen can, when you feel someone is acting against yours. The Sierra Club doesnt exist so that Andrews County can make money.

Cyrus Reed Lewis claims that at the time WCS submitted their original application, they claimed that ground water was protected by hundreds of feet of intervening impermeable clay. At the time of the submission of the WCS application, the TCEQ team of which I was a member, said Lewis, was aware, through Texas Water Development Board maps and geological records on file with TCEQ and the Texas Water Development Board that the Ogallala Aquifer was one of several aquifers in the immediate vicinity, if not directly underneath, the proposed WCS disposal site in Andrews County. The TCEQ team noted throughout its review that WCS, as applicant, refused to reference the proximity of the Ogallala Aquifer. Instead it referred to an aquifer called the OAG. The O in OAG means Ogallala. Lewis explains that the TCEQ team concluded that a mere 14 feet separated the water table from the proposed storage site and found groundwater from the OAG and Dockum water tables impinging on WCSs site. Thus, the team concluded that WCSs license should not be issued because, the geology of the site was incompatible with protecting the environment from radiation exposure. At the time Susan Jablonski became the director of the Radioactive Materials Division. Lewis claimed that Ms. Jablonski helped draft the legislation that made WCS the only company that met the qualifications to submit an application to import and bury radioactive waste in Texas. On August 14, 2007, Lewis wrote a memo to Jablonski formally advising TCEQ management of the fatal flaw in the application i.e. the geology. The memorandum stated that, Groundwater is

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likely to intrude into the proposed disposal units and contact the waste from either or both of two water tables near the proposed facility. WCS has failed to successfully use numerical modeling to predict the future location of one water table that is expected to intrude into radioactive waste. Therefore, the memorandum concluded that WCS has not demonstrated that the site is suitable for near-surface disposal of radioactive wastetechnical staff recommends denial of license issuance. According to the affidavit of Glenn Lewis, shortly after delivering the memo, Dan Eden and Susan Jablonski officially informed the team the Executive Director Glenn Shankle had decided to support issuance of a license to WCS. Lewis resigned rather than continue to work on this project along with Patricia Bobeck and Encarnacion Serna. Lewis stated, In late October, Susan Jablonski acknowledged in writing to senior management in the agency that faulty site conditions exist and that they cannot be corrected through license conditions. What is baffling is that Ms. Jablonskiat the same time acknowledging the inherent impossibility of correcting a bad applicationstill pledged to support whatever nonsensical recommendation her boss may decide to pursue. Due to all the issues with suspected groundwater at the Andrews County site, it seems simple enough that the site should be moved to a new location. However, the Andrews County site was important for one main reason: its approximation to the URENCO USA plant in Eunice, NM. URENCO USA enriches uranium and produces large quantities of nuclear waste. By having the sites across the border from each other, it guaranteed that URENCO USA would store its waste at WCSs facility. URENCO USA is a subsidiary of the foreign corporation, URENO, which partnered with Louisiana Energy Services (LES) to receive the license to open the plant. In 2006, the Louisiana-based energy company received the license for its uranium enrichment plant in New Mexico, while WCS was still lobbying for their own licenses. If the two managed to be located just across the New Mexico/Texas border from each other, URENCO USA could save millions transporting nuclear waste and WCS could make a fortune storing their waste. After WCS received its license, it lobbied hard to expand its market, which the state had restricted to waste from the federal government, Texas, and Vermont. In 2011, the legislature passed a bill that would allow 36 states to dump low-level waste in Texas. Simmons had contributed to nearly three-quarters of the legislators and 83 percent of voted for the bill. Simmons also contributed half a million dollars to state politicians outside of Texas since 2000 nearly all of them in states with nuclear power plants but without nuclear waste disposal facilities. When the dump was opened to 36 states, Valhi, WCSs parent company, saw a stock jump of 62 percent and Simmons saw his net worth jump from $5 billion to $9.6 billion in a single year. Tom Smity Smith, the Texas director of Public Citizen, said that opening the site to waste from other states could create a capacity problem. We may not have enough space for our wastefor Texas waste and Vermont waste, said Smith. He also cited concerns about the increased number of trucks carrying hazardous materials on Texas roads as well as the potential impact on local groundwater if the wastes migrated. The waste disposal site in Andrews County is divided into two sections. One section is slated for commercial waste and is permitted to hold 26 Olympic size swimming pools worth of the waste.

Toxic Tycoon The other section is the federal waste repository and is ten times that size. Scheduled for completion this year, Simmons and WCS now have to figure out how to fill the space.

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When the Nuclear Regulatory Commission in 2006 began to consider allowing private low-level nuclear waste dumps like WCS to accept depleted uranium from nuclear power plants and weapons sites, a higher grade of waste, a multibillion-dollar opportunity arose. Simmonss company lobbied the Obama administration, spending $885,000 from 2009 to 2011, according to Bloomberg. In 2010, when a federal commission was tasked with finding an alternate storage site after the Yucca Mountain project was sidelined, WCS executives invited the commission members to visit Andrews County. Chuck McDonald says that WCS has not lobbied in connection with the NRC deliberations. Yet WCS and Simmons stand to make a great deal of money if higher-level waste is allowed to be stored at locations like the one in Andrews Texas. Recently, Republican Drew Darby from San Angelo has presented a new bill to the Texas House that will limit a citizens ability to challenge WCS. The legislation limits out of state citizens and groups from challenging WCS, even though Eunice, New Mexico is only a few miles away from the site. The Sierra Club is challenging this new legislation. They (citizen of New Mexico) are not any less affected because theyre on the other side of the border, said Marisa Perales, an Austin attorney who represents the Sierra Club. I just cant imagine what the justification is. This contested bill also allows WCS to begin receiving even hotter waste. While currently restricted to 120,000 curries, which is a measure of radioactivity, this bill would allow WCS to receive 220,000 curries, a profitable but possibly dangerous venture. Interestingly enough, Drew Darby has received $20,000 from WCSs Super PAC. A family-related court case gave a glimpse inside Simmonss operations. Simmons transferred money regularly among his companies and the trust while also withdrawing money for contributions to individual politicians. This trust controlled three political action committees (PACs) and supplied most of the funding for a fourth. Simmons admitted in court to donating money in his daughters names and forging their signatures for authorization when he met his own legal limit for contributions. "I thought it was right to sign the names because it would help the Helms campaign. It was a mistake, wrong and bad judgment," he testified. The court case involving Simmonss two estranged daughters, the oldest from his first two marriages, could have been avoided with mediation but talks broke off a year before the trial began. Serena Connelly, one of the daughters who did not sue her father, objected to the political contributions in a letter filed with the court, writing: "I believe this practice to be highly unethical... I do not care what you do with your money. I do care what you do with my name." The nuclear waste dump in West Texas has grown incrementally in size and the amount of radiation it will store. Even if the federal repository at Yucca Mountain had opened, it would already be filled with waste from nuclear reactors and federal weapons programs. Nuclear proponents and environmentalists agree there is an urgent need for safe storage of radioactive materials. Harold Simmons is an octogenarian who will not live to see the consequences of his companys efforts to make money storing nuclear wastes. But generations from now, Texans and other Americans will be living with them.