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154 Fuel Cycle to Nowhere disposal site, had recently lost its village school to neighboring Naper and was in danger of disappearing as a community as teaching jobs were eliminated.88 Desperate for jobs that would ensure the town’s continued viability, Butte, population 366, offered itself for LLW site consideration; it also stood to gain $3 million per year in community development funds from the compact commission.89 The surrounding villages, stoked by a mix of jealousy and NIMBYism, embarked on a campaign against the proposed facility, enlisting state-level officials, including then-governor Ben Nelson.90 The facility was never built. The Current LLW Disposal Situation Civilian LLW Under LLRWPAA, states with existing disposal facilities were no longer required, after December 31, 1992, to provide access to out-of-state waste generators.91 A flurry of activity sprang up soon after this deadline passed. Bowing to political pressures, the governor of Nevada closed the Beatty site to LLW by executive order.92 Washington limited the Richland site to LLW generated by the Northwest and Rocky Mountain Compacts. South Carolina limited the Barnwell site to Southeast Compact waste.93 Then, in 1995, South Carolina left the Southeast Compact because North Carolina had failed to open a regional disposal facility as required by the agreement that established the compact.94 As a result, the Barnwell facility became open to LLW from every state except North Carolina.95 Between 1992 and 2003, the cap on waste surcharges at the facility increased from $40 to more than $300 per cubic foot.96 After joining the Atlantic Compact, South Carolina closed the Barnwell facility to out-of-compact waste effective July 1, 2008, citing capacity problems. Up to that point, Barnwell had been the only disposal site in the country accepting all classes of LLW from all states. In 1991, a commercially developed disposal facility at Clive, Utah, began receiving class A LLW. It is open to wastes from all states and has become the site for disposal of almost all the nation’s class A LLW. Since Clive opened, Barnwell has had difficulty attracting the Atlantic Compact’s class A waste, due to its high disposal fees.97 Volumes of class B and class C wastes generated by the states in the Atlantic Compact have been low, due to the small size of the compact.98 It is possible that the Barnwell facility could tap sufficient reserve capacity to reopen to out-of-compact class B and C LLW, if demand pushes prices high enough. Alternatively, the Atlantic Compact could add additional members in order to provide more compact waste for the site. Unaffiliated states such as New York, Michigan, and Massachusetts all produce substantial quantities of class B or C LLW and lack an available disposal facility. The Texas Compact’s regional disposal facility in Andrews, Texas, has acquired a permit and is under construction. Thanks to its control of the Texas Compact Commission , Texas can control licensing and operation of the facility and determine whether to accept or exclude out-of-compact waste and what fees to charge. Under the current Texas Compact arrangements, the Andrews facility is licensed to accept class A, B and C waste from the Texas Compact, as well as federal government waste.99 Recently, the Texas Low-Level Radioactive Waste Commission voted to authorize the Andrews facility to accept class A, B, and C LLW from as many as thirty-six states.100 If this plan Low-Level Waste Disposal 155 goes forward, Texas will have the sole disposal site for class B and C wastes from thirtysix states, thereby gaining significant market power. It will have succeeded in using the compact system to its own distinct advantage, squarely contrary to what Congress envisaged in its LLW legislation. It is by no means assured, however, that Andrews will be opened to all of these thirty-six states. Two members of the Texas Low-Level Radioactive Waste Commission voted against the measure. One of the dissenters stated that the facility and the commission were not prepared to deal with a huge influx of waste from other states. Local groups may well challenge the commission decision in litigation. In response to criticism that the decision would open Texas to a flood of waste from other states, a commission spokesman stated: “It’s actually just the opposite of opening up the floodgates. It’s putting a gate in place . . . [t]o determine what comes in and what doesn...

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