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Volume 15, Issue 1 — January 1985
OWEN OLPIN: Welcome to the 13th Annual Conference on the Environment, sponsored by the ABA's Standing Committee on Environmental Law. To open our discussion of hazardous waste siting issues, I am delighted to introduce Deputy Administrator Alvin Alm of the U.S. Environmental Protection Agency.
ALVIN ALM: I do not need to tell you that hazardous waste is a problem in the United States. EPA's most recent study estimated that in 1981, 71 billion gallons of liquid hazardous waste was being produced annually in this country. That is roughly one metric ton to every person in the United States. We have failed miserably in the past in dealing with hazardous waste, and, due to generations of neglect, our landscape is dotted with health threatening hazardous waste sites. New Jersey alone has 85 Superfund1 sites.
Congress has chosen in the past not to intervene directly in hazardous waste siting, and it is unlikely that they will change that course. The responsibility for siting new or expanded facilities has therefore become either a local one (From a land use perspective, the treatment, storage, and disposal (TSD) facility is treated as another conditional use for an industrial zone.) or, through preemption, a state function. Since Michigan's enactment of Mich. Comp. Laws § 299.501-526 in 1978, all major industrial states and most others have passes some form of siting legislation. Each statute describes a number of functions; I have selected several for discussion. All may not be found in a single statute, but they are common to most recent siting legislation.
Many statutes include a planning function to coordinate the need for new sites with those available, and then distribute that need around the state. The appointment of ad hoc siting boards responsible for making the siting decision is also common. At some point in the process a decision about preemption of local land use authority must be made. A number of states have chosen to preempt local land use authority, while anumber have chosen to preserve it. Still others employ subtle variations of preemption to [15 ELR 10237] maintain state control over the siting process. In addition to the usual technical assessment, many state statutes provide for enhanced public participation throughout the entire siting process. Non-regulatory approaches, including negotiation, bribes,1 mediation, and arbitration, have also been adopted.
Between the passage of the Resource Conservation and Recovery Act (RCRA) in 1976 and 1981, no new hazardous waste facilities had been sited in the United States. Public reaction to Love Canal and the Valley of the Drums, perceptions of health and environmental risks, and the resulting "not in my backyard" syndrome contributed to the construction freeze. The same concerns are being expressed today, but I feel that we, as a society, are now taking a more national and responsible view of hazardous wastes and recognizing our ability to deal with the problems of waste management and disposal. The problems are not technical. I sincerely believe that we have the technological capability to manage hazardous waste in a way that protects public health and the environment. The problems are social and political, and therefore the focus of my talk.
I would like to begin with a discussion of the concerns most often raised by citizen groups when a facility has been proposed for their community, and then identify the elements of the siting process that have led to the successful siting of new facilities.
I am going to speak about the mismanagement of hazardous waste and its effect on public health. The Superfund and other sites I will be discussing illustrate the variety of unanticipated incidents to occur at hazardous waste sites over the last several years.
Cousin to Love Canal, the Hyde Park landfill near Buffalo, New York, was operated by Hooker Chemical, and handled various wastes, including dioxins and pesticides from manufacturing plants in the Buffalo/Niagara Falls area. The landfill was located near an industrial complex, Niagara University, a residential area, and, most importantly, a small creek. After a rain storm, water would leak out of the facility and leach up out of the ground into what was appropriately called Bloody Run Creek, and flow through a little swampy area into the industrial and residential areas nearby. The sediment in the creek after several years of operation contained the pesticides myrex and lindane, and traces of dioxin. The waste eventually migrated all the way to the Niagara River and caused a significant contamination problem that has not yet been remedied.
ROBERT FRANTZ, Assistant General Counsel, Chemical Manufacturers Association
STEVEN CRAMER, Commissioner, Adams County, Brighton, Colorado
B. SUZI RUHL, Executive Director and General Counsel, Legal Environmental Assistance Foundation, Tallahassee, Florida
The difficulties inherent in mediation are well illustrated by a story about the attempt Kurt Waldheim, Secretary General of the United Nations, made to mediate the Iranian hostage crisis. When he arrived at the airport in Tehran, a large crowd was there to receive him. He stood at the microphone with his translator and said, "I've come here to mediate a compromise in this difficult controversy between your country and the United States." Well, it turns out that in Farsi, "mediate" means "meddle" and "compromise" is the worst of words, meaning to violate one's principles! There is not much doubt that at the time "United States" translated into the "Arm of Satan," thus it is not surprising to learn that Waldheim's stay in Tehran was quite short.
Skepticism about bringing an outsider into a dispute — although perhaps not to the degree in the situation above — is healthy and sometimes justified. A mediator is not needed if the parties can negotiate effectively on their own. The parties to some kinds of environmental disputes, however, often do not negotiate with each other effectively or even at all. Thus, the fact that mediators have been employed successfully over the past ten years in helping the parties negotiate settlements of scores of complex environmental disputes is encouraging.1
Professor Prosser, in his treatise on torts, states that "the law of torts . . . is concerned with the allocation of losses arising out of human activities."1 In the hazardous waste field, the potential for loss is very serious. Tort liability falls into two general areas. The first property damage associated with release of pollutants into the environment through ground and surface water, soil, and air transport. The second, victim compensation, has become the topic of considerable debate and study. When talking about the various tort theories, I must caution that property damage is more easily discovered and proven than personal injury. Even though property damage can often take as long to develop as injury to health, as with the gradual permeation of the soil by hazardous chemicals, it is far easier to establish. We will talk later of the specific barriers to victim compensation that arise under traditional tort theory.
Theories of tort liability applicable in the hazardous waste context include negligence, nuisance, trepass, and strict liability. We are all aware of the traditional elements of negligence theory. Failing to honor a standard of conduct (usually the care attributable to a reasonable person) must first be established. Then, it must be shown that as a result of this failure to live up to a reasonable standard of conduct, injury has resulted. In addition to the simple causal connection just described, proximate cause, or how the injury resulted from the failure to act, must also be proven. This is the most difficult element to satisfy in personal injury cases.
Discussion so far today has focused on the hazardous waste treatment, storage or disposal facility and onsite problems in siting a new facility. There has been very little consideration of transportation to and from the site, and this may become a major issue in siting a new hazardous waste disposal facility. The transportation question has at least two parts: actual and perceived risks. EPA Deputy Administrator Al Alm mentioned some actual transportation risks in discussing the recent study prepared for EPA that suggested that the risks associated with truck transport of hazardous wastes may be equal to, or greater than, the risks associated with the site itself. The study also reached the alarming conclusion that for every three truckloads of hazardous wastes transported, one drum is lost.
Perceived risks or the fear factor should also be considered. Citizen groups and local official will want to address the safety aspects of transportation and will expect participation, factual data, and assurances in response to their concerns.
ROBERT FRANTZ, Assistant General Counsel, Chemical Manufactures Association
STEVEN CRAMER, Commissioner, Adams County, Brighton, Colorado
B. SUZI RUHL, Executive Director and General Counsel, Legal Environmental Assistant Foundation, Tallahassee, Florida