Efforts to site new facilities for the disposal of hazardous waste (HW) and radioactive waste have met with utter paralysis. HW disposal companies have spent hundreds of millions of dollars trying to site new landfills and incinerators for this waste, but most of this money has gone down the drain. Since the enactment of the chief federal law on HW, the Resource Conservation and Recovery Act of 1976 (RCRA), only one new HW landfill has opened on a new site in the United States (in prophetically named Last Chance, CO). Siting attempts for nuclear waste have been just as fruitless; except for one small facility in the Utah desert, no new radioactive waste disposal sites have opened since the late 1960s.
This siting impasse is unnecessary. It results from a little-noticed structural flaw in our system of environmental law, and from a misunderstanding of the psychology of communities faced with facilities they perceive as dangerous.
The structural flaw is that we regulate every different kind of waste stream separately. Starting with nonradioactive wastes, there are RCRA hazardous wastes; remedial waste from the cleanup of Superfund and other contaminated civilian sites; remedial waste from the cleanup of RCRA waste disposal sites; contaminated soil from underground storage tank cleanups; contamination from old military facilities; old chemical weapons; hazardous waste from the demolition of buildings and structures, such as asbestos, lead, and polychlorinated biphenyls; non-RCRA industrial wastes; wastes from mining and from oil and gas extraction; sewage sludge; ash from air-pollution control devices and incinerators; and medical waste.
There are almost as many varieties of radioactive waste: high-level and
transuranic waste from nuclear weapons manufacture; spent-fuel rods from nuclear power plants; low-level waste from nuclear power plants and from medical, scientific, and industrial applications; cleanup waste from the facilities where nuclear weapons were made; decommissioned nuclear warheads; shutdown nuclear power plants; and uranium mill tailings.
In all, there are almost two dozen waste streams (not including ordinary municipal garbage, which is a separate problem). Every one of them has its own regulatory scheme and siting mechanism. This fragmented system interacts explosively with the fundamental political impulse that in different contexts is called nationalism or separatism or isolationism. A country or state does not want orders or problems imposed from outside. So it is with waste disposal. Communities are often willing to handle their own waste, but they don't want anyone else's. It has been possible (em not easy, but possible (em to site new landfills and incinerators for municipal solid waste, but nearly impossible to site facilities for radioactive and hazardous waste, because economies of scale make it necessary for each facility to accept waste from a multistate area.
Take the example of my home state, New York. We have the only commercial HW landfill in the northeast United States. New York is furious at the inequity of being the region's dumping ground, and has gone to federal court to try to correct that inequity. Yet, at the same time, we sent our low-level radioactive waste to South Carolina (until that state shut its borders). We aspire to send our spent-fuel rods to Nevada; much of our municipal solid waste goes to Ohio and Indiana; much of our sewage sludge goes to Oklahoma and Texas; we've contracted to send incinerator ash to Virginia; our
incinerable hazardous waste goes to Texas and elsewhere; and so on.
By regulating each waste stream separately, we create massive unnecessary conflict. Every siting attempt becomes a forum for the state to exercise its isolationist impulses, while forgetting that it exports many other kinds of waste to other states. Additionally, by imposing a waste disposal facility on a state or a locality, an unwanted neighbor is turned into a hostile invader. The widespread use of the preemption doctrine to overrule state or local laws fires up the isolationist impulse and makes the local opposition even more vehement.
Numerous psychological studies have shown that people will accept voluntary risks several orders of magnitude greater than involuntary risks. People will parachute out of an airplane or drive without seatbelts, but they don't want to live 10 miles from a secure landfill. By attempting to ram a facility down the throats of an unwilling community, the physical risks involved (em even if objectively small (em become involuntary and therefore magnified a hundredfold in the minds of the neighbors. It becomes a war (em and a war that the facility advocates cannot win. There have been hundreds of attempts, but there is not a single example in the United States in the last two decades where a hazardous or radioactive waste disposal facility was successfully sited, and remained open, on a new site in a community where the local government supported sustained opposition.
Surprisingly, however, many communities have volunteered for disposal facilities. The reason seems largely a matter of local culture. Different people and groups of people perceive risk differently. Waste disposal facilities tend to be less polluting than many factories that people willingly accept (em oil refineries, steel mills, or chemical plants. Places with such a factory, or with a military installation (em especially one that is closing (em are often willing to take a waste disposal facility. In such cases, successful sitings have been blocked because the states vetoed the plan. For example, Oak Ridge, TN, was willing to host a storage facility for high-level radioactive waste, but Tennessee said no. The voters of Fall River County, SD, voted in favor of a low-level radioactive waste facility, but the state said no. Right now, Lincoln County, NV, is trying to host a radioactive waste storage facility, but the state is balking. There at least a dozen other examples.
A voluntary approach has worked in Canada, however. The provinces of Alberta and Manitoba both successfully sited HW facilities by calling for volunteers; both were besieged with offers.
I propose that all the waste streams be considered together. The federal government would decide how much disposal capacity and how many facilities are really needed, after available means of waste minimization have been exhausted. The federal government would then decide which states would have responsibility for what facilities. I propose that a Federal Waste Disposal Commission be created to assign the allocations, modeled after the Defense Base Closure Commission. The new commission would consider the geological and other physical requirements of a facility, the amount and kinds of waste generated within the state's borders, and whether the state is already a net importer or exporter of waste.
Once a state received an allocation, it would hold the responsibility for finding a home within its borders for that waste, although a state would be free to trade with other states. Every site would have to meet minimum technical criteria for the type of facility (em depth to bedrock, distance from population centers, no siting in floodplains, and so on.
In finding facility sites, states would be encouraged to ask for volunteer communities using a compensation auction. Interested communities would receive technical assistance grants to perform their own studies of the proposal and the site. If the municipal government was satisfied that the proposed facility did not pose an unacceptable risk, there would be a public referendum. Only if the referendum passed would the facility go to that community.
Every state would have to take care of some waste stream or streams. A state that did not fulfill its responsibility would be sanctioned by being cut off: The other states would be allowed to close their borders to its waste.
This system would solve the fundamental flaws in the current siting method. States would not feel intruded upon, because every state would bear a fair share of the nation's waste disposal burden. Localities would not feel invaded, because they would only get a facility if they volunteered. t
Michael B. Gerrard is a partner in the New York City law office of Arnold & Porter, and an adjunct professor at Columbia Law School. He also chairs the environmental law section of the New York State Bar Association.
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