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March 24, 1995

Turning Nimby on its Head: A Siting Solution Based on Federal Allocation, State Responsibility, and Local Control

Environmental Reporter, Vol. 25, No. 46
Few laws have failed so completely as the federal and state statutes designed to create new facilities for the disposal of hazardous and radioactive waste. Despite scores of siting attempts and the expenditure of several billion dollars since the mid-1970s, operating today on new sites in the United States there is only one small radioactive waste disposal facility; only one hazardous waste landfill (in the aptly named Last Chance, Colo.); and a small handful of hazardous waste treatment and incineration units.

The current siting impasse has led to the perpetuation of old, poorly sited, environmentally unsound disposal facilities, which are disproportionately located in low-income and minority communities. The neighbors endure the dangers and annoyances of these old facilities without recompense, and thus they effectively subsidize the creation of hazardous waste and radioactive waste. An even more powerless group, our descendants, provides a further subsidy because the siting paralysis has left hazardous waste and radioactive waste contained in impermanent vessels (such as landfills and capped superfund sites) that will have to be cleaned up in the more or less distant future. These vessels proliferate around the country because most localities do not want to accept waste from any other place.

Partly as a result of the siting impasse, the price of waste disposal greatly increased in the early 1990s. This was both good and bad. It was good in that the creation of hazardous waste and certain radioactive wastes is quite price elastic, and the high price of disposal sparked the development of alternative, waste-reducing production techniques. These techniques may drastically reduce creation of hazardous waste; generation of low-level radioactive waste has already been cut by more than half. Generation of hazardous waste has also fallen sharply in the last few years, a result of a combination of high disposal prices, fear of superfund liability, and a weak economy. On the other hand, the high price of disposal increases the cost of cleaning up the waste that has already been created, leading to delayed and impermanent remedies.

Despite fond hopes to the contrary, there is no "out of sight, out of mind" solution to hazardous waste and radioactive waste. International law and politics prevent reliance on Third World countries, the oceans, and outer space. Domestic law and politics preclude shipping all the waste to remove deserts and wilderness. Recycling of hazardous waste and radioactive waste is environmentally problematic. New techniques for treating (as opposed to preventing) these wastes show promise, but some present their own environmental problems, and it is too early to know if they will make much of a contribution. Thus our quest for a solution to the waste management dilemma must focus on two methods: minimizing the creation of new wastes and finding a limited number of sites for new disposal facilities to replace the old, poorly sited units and to handle the remedial waste that already exists. Although these new facilities will be far superior environmentally to the old ones they replace, they will not be benign. Accordingly, their numbers should be minimized.

Community's Culture, State's Sense of National Fairness

A look at the experience throughout North America shows that the determinative issues in the success or failure of facility siting attempts seem to be (1) the culture of the local community and (2) the host state's sense of national fairness. Pre-emption of local control magnifies the sense of incursion and never works in the face of determined opposition backed by the local government. In those communities that fear the facilities will endanger their children's health, offer of compensation and negotiation are ineffective and offensive. On the other hand, there are some communities whose culture of risk perception does not lead them to fear (or at least to loath) hazardous or radioactive facilities; in these towns, compensation and negotiation, as well as some degree of local control, can achieve local acceptance.

It appears possible to reduce or eliminate a sense of incursion, although not a pre-existing dread. But even if the community is willing to host a facility, the state will often veto the idea, usually because the state feels that a disproportionate share of the nation's waste disposal burden is being foisted upon it. Numerous places in the United States have volunteered for such facilities, but their states have refused: Fall River County, S.D.; Freemont County, Wyo.; Apache County, Ariz.; Oak Ridge, Tenn.; Hermiston, Ore.; and many others.

The compartmentalization of disposal programs and laws fosters this sense of geographic inequity and leads to state rejection of local volunteers. Each state is sensitive to the few kinds of wastes that it takes in, but ignores the many more types of wastes that it exports. Since each of the dozens of types of waste streams is regulated separately, with its own siting program (or non-siting non-program), it is easy for single-waste myopia to set in. Among the non-radioactive materials, the different waste streams include hazardous waste regulated under the Resource Conservation and Recovery Act; remedial waste from cleanup of civilian inactive waste sites, such as superfund sites; remedial waste from the facilities in a monopolistic fashion, and have shared the cost of hazardous waste management between industry and the taxpayer."1 The Canadian provinces of Alberta and Manitoba have adopted a similar approach.


Any site selected for a waste disposal facility would have to go meet minimum technical criteria. Beyond that threshold, however, certain factors would make some sites more appropriate than others.

For the last decade the tendency in siting new disposal facilities, and new industrial operations in general, has been to look for "green fields" -- farms or other lands with no prior industrial use. There are two main reasons for this approach: (1) to avoid the possibility of assuming a prior owner's liability under the Comprehensive Environmental Response, Compensation, and Liability Act for contamination, and (2) to avoid the greater difficulty of monitoring leaks from a facility whose ground water is already contaminated from prior uses. This approach, however, also increases social conflict by attempting to impose waste disposal onto pristine areas, and it leads to the spoiling of ever larger swatches of American soil. Because of their low population densities and land costs, rural areas tend to rank very high in the numerical scoring systems used in trying to find disposal sites, but the people living in those areas often have a greater emotional attachment to -- and economic dependence on -- the land than do their urban cousins. In the Southeast, the "green fields" approach tends to site facilities in areas with mostly black populations.

A growing body of scientific evidence suggests that once the ground water is contaminated in certain ways, it will never be clean again, at least with current technology.2 No matter how much money is spent, many badly contaminated sites will always be dirty. Off-site waste migration must be halted, but I believe it makes little sense to spend huge sums in futile attempts to make badly contaminated sites suitable for residential use, while productive farmland is seized for fresh waste disposal sites. Here the perfect is the enemy of the good: By insisting on total cleanup, we pour billions of dollars into a few unproductive holes and allow many other sites to go unaddressed.

Moreover, making a site so clean that children can play on it -- the standard of cleanliness that is often required -- often involves digging up much of the old dirt and trucking it someplace else. This approaches a zero-sum game. Site A is cleaned at the expense of Site B, and in between there is the risk of spillage and the certainty of fuel consumption, with consequent adverse environmental effects in the places the fuel is extracted and processed.

There is a good chance that Site B, the destination of Site A's diggings, is an old, grandfathered, poorly sited disposal facility. Alternatively, Site B may be a recently virgin site that has now been converted into a permanent waste repository. Although on-site treatment of Site A's waste at Site A would ordinarily be preferred, that involves risks if Site A is in a populated community. Many on-site treatment methods involve a risk of airborne emissions, and they tend to take months or years to implement, preventing reuse of the site and depressing property values in the neighborhood, since a chain link fence with a "Keep Out-Hazardous Waste Site" sign is hardly a real estate broker's dream.

Instead, to the extent that waste needs to be moved from one place to another, it should go to places that are already contaminated and unlikely ever to be thoroughly clean.

Many sites around the country are available using this approach. The Pentagon is closing more than 100 domestic military bases, most of which have serious contamination problems.3 The military's inventory also includes several thousand smaller contaminated sites. The Nuclear Weapons Complex contains 17 major facilities, all of them contaminated, and several of them likely to cease all production. The closing facilities and the surrounding civilian communities that relied on them as their economic foundation are desperately seeking new missions.

Waste Management's Plans

Some of this is already happening. Waste Management Inc. has announced plans to build a large hazardous waste incineration and treatment complex at the nuclear reservation near Hanford, Wash., in the hopes of attracting much of the remedial waste from the cleanup there. The Army plans to incinerate hazardous wastes from chemical weapons and pesticide production at the Rocky Mountain Arsenal in Colorado. The Nuclear Regulatory Commission is considering proposals to allow the disposal of low-level waste at uranium mill tailings sites. Waste Management's hazardous waste complex in Niagara County, N.Y., was formerly a defense installation, the Lake Ontario Ordinance Works. On a much smaller scale, in 1973 and again in 1979 a private company built small hazardous waste disposal facilities on two abandoned Titan missile sites in Idaho.

Many civilian sites might also be suitable. Some former superfund sites are being reused for such purposes as transportation centers, industrial parks, and shopping centers, but that is the exception rather than the rule. The taint of contamination has killed development on many sites.

The idea that some places will always be contaminated, and will become "sacrifice zones," has been widely attacked.4 However, the permanent physical alteration of large areas of land is hardly a novel human activity. Lake Mead, created by Hoover Dam on the Colorado River, is 175 square miles, and if the area were drained the land would still be covered by many feet of sediment. The artificial Lake Volta in Ghana, formed by the Akosombo Dam in 1965, inundated 3,275 square miles of land. Many sites contaminated by nuclear weapons production and other military and civilian activities will never be completely clean. In fact, the only hope these sites would ever have of complete purity would be to excavate huge quantities of soil, with unknown health and safety impacts, and replace it with clean fill. The removed soil would, of course, have to go to some other disposal facility, via massive numbers of trucks.

Although we must regret the initial loss of land, the past cannot be undone. We should focus now on minimizing the risks at existing sites and avoiding the contamination of new sites. Building a limited number of centralized treatment and disposal facilities on already --contaminated land seems to be the way to achieve this goal.

Of course, every site should be remediated to the extent that it does not leak pollutants off-site through the water or the air. Once that occurs, the health benefits of cleaning a remote unpopulated site are less clear. (Concededly, wildlife may still be affected.) Hazardous waste poses great dangers to people, but only if there is exposure. It must be borne in mind that none of the major environmental disasters leading to heavy loss of life -- Bhopal, Chernobyl, Seveso -- involved inactive hazardous waste sites; they all stemmed from the accidents or explosions at operating facilities. The health effects of the most famous hazardous waste sites, such as Love Canal and Times Beach, are still disputed.

Finding Volunteer Communities

Under my proposal, a site for a centralized disposal facility would not merely have to be physically suitable -- it would also have to be acceptable to the neighboring community. As noted above, numerous communities in the United States have volunteered for hazardous or radioactive waste facilities. How does one find such communities and secure their consent?

Any effort to describe the communities that are most likely to be willing is perilous. Certain communities have cultures that make them eager to attract defense-related industries,5 and certain communities (perhaps some of the same) are amenable to hosting hazardous and radioactive waste disposal facilities. Predicting which communities these will be is very difficult, although some have suggested that areas with heavy industry already are likely candidates.6 A better approach to finding volunteer communities is simply to ask.

Herbert Inhaber has devised a procedure he calls a "reverse Dutch auction," which would presumably be carried out through the newspapers. The auctioneer would propose a compensation amount that would be paid to a volunteer community. Any county that thought it might be willing to accept the facility for that amount would bid. For example, the auctioneer might declare a bid $10 million and keep it open for a month. If no bids were received, the bid amount would be raised to $20 million the second month, $30 million the third month, and so on until a bid was received. (This is similar to the auction conducted by airlines seeking volunteers to give up their seats on overbooked flights.) A bid would have to specify a proposed site. Once a bid was received, the auction would stop until the site was studied to determine if it was physically acceptable. During this study period, bidding communities would receive funds from the state to hire their own consultants to do their own studies, and the communities could withdraw their bids at any time. Communities that did not want the facility under any circumstances would simply not bid.7

Questions Raised

This procedure raises several questions.

What mechanism would ensure that the facility is endorsed by the whole community, and not just a (biased/unrepresentative/corrupt) governing body?

The best procedure -- and the one actually used in seeking volunteers for several solid waste facilities -- is a referendum of the entire electorate after the detailed studies but before the final decision.

What is the geographic extent of the electorate?

Inhaber suggests a county. The county should consent, but sometimes there will be a politically isolated municipality within the county. For instance, the county could be dominated by one party but the municipality by another. Thus the referendum should be required to succeed in both the county and the municipality where the proposed site is located. If the proposed site is near a border, people in the adjoining jurisdiction need a voice as well. One method to provide this might be to include in the electorate all voters outside the voting jurisdiction but within a certain radius of the facility. An alternative method would be to draw a radius around the facility, and allow only people who live within that radius to vote in the referendum, regardless of their political jurisdiction.

What percentage of the electorate must vote yes for the proposition to pass?

Agreement to host a major hazardous or radioactive waste facility is a momentous event in the history of a community, like the adoption of a constitution. It can be argued that positive votes from more than just 50 percent -- perhaps two-thirds -- of those voting should be required. On the other hand, this will make it that much harder to secure assent. The Canadian approach has been to allow each municipal council to decide for itself what level of "yes" voters is appropriate.

What consideration should be given to close neighbors of the proposed site who are adamantly opposed to the facility but lose the referendum?

Several public opinion studies -- some done in real situations, others based on hypothetical cases in the laboratory -- have shown that opinion on the risks from waste sites and the like tends to be "bipolar." Some people believe the risks are very high, some believe they are very low, but few people are in the middle. Younger people, females, and those who notice odors from a facility are the most likely to believe the risks are high.8 Volunteer communities will obviously be those with a predominance of people who believe the risks are low, but there are likely to be some residents at the opposite pole, and they will probably want to move out. People within a close radius of the site should not be trapped, they should be offered the pre-proposal value of their property plus relocation costs. This would follow the experience of several chemical plants that have bought out all the homes around their plants to create buffer zones.9

What would be done with the compensation money?

Those neighbors who want to move should have a priority claim to being bought out. Beyond that, the governing bodies of the county and the municipality should initially determine the intended use of the compensation (for such purposes as tax relief, new schools and hospitals, or more police and teachers) and then include the proposed uses in the referendum question. Counties and municipalities play differing relative roles in different states; it would be up to each state legislature to decide the decision-making power, and compensation allocation, of its local governments in this process. Unless the money is spent on capital facilities, it should probably be made available over a period of years, to prevent all the benefits from going to current residents even though the facility will be there for many years to come.

Does every site have neighbors?

Some sites may be so remote that there are no residents for miles. At some point, it becomes unreasonable for people to believe that they could be affected by a facility, even in the event of a catastrophic accident. A worst-case analysis may reveal what this radius is for various kinds of facilities. (It would, of course, have to consider proximity to the transport route, and all other paths of exposure to contaminants.)

Needs Assessment

The facility siting process will require specific information on the nature, quantities, and generation patterns of waste. This assessment should address all RCRA hazardous waste, all regulated radioactive waste, and other categories of non-RCRA or RCRA-exempt waste for which a multistate disposal market and significant interstate siting conflicts exist. Examples include incinerator ash, PCBs, medical waste, and asbestos waste. Those waste streams that are usually handled locally would be excluded at this stage, even if there are occasional interstate conflicts -- such as municipal solid waste, sewage sludge, and dredge spoil.

For the waste streams included in the process, the next step would be to prepare a disposal needs assessment. EPA would take the lead in assessing non-radioactive wastes, and the Nuclear Regulatory Commission would assess radioactive wastes. The needs assessment would have five elements: current generation patterns, future generation projections, future waste generation targets, current disposal facilities, and future disposal needs.

The assessment would describe the quantities of wastes generated, where the generation occurs geographically, and the physical form of the wastes when they leave the site of generation. Waste streams disposed of on-site would not be the concern of the federal allocation process if, in the view of the state environmental agency, the on-site methods are environmentally satisfactory. Similarly, if the waste is treated on-site before being shipped off-site for disposal, then the form of the material as it leaves the site is what is relevant to the assessment, subject to the same proviso.

The assessment should include projections of how much of this waste will be generated in the future. This will require predictions of future patterns of economic growth and technological development. Although this is a complex undertaking, it is hardly novel. Waste disposal companies engaged in long-term planning, and financial analysts assessing the stock of those companies, perform such analyses routinely. Similar work is also performed in preparing permit applications and environmental impact statements for disposal facilities. Many states have their own hazardous waste planning processes that have addressed these questions. Thus there is a large body of existing research and analysis on which these projections could be based. The projections would include not only recurrent waste streams, such as waste from ongoing industrial processes, but also remedial waste from the cleanup of past contamination.

The assessment would also establish goals for waste reduction by adjusting future waste generation projections downward to reflect waste minimization, recycling, and other methods to reduce the amount of waste requiring disposal. An important goal of the process is to provide for the sound disposal of the waste that has to be disposed of, but not to create so much disposal capacity that waste generation will be encouraged. Industry-by-industry analyses of opportunities for waste minimization will be necessary in calculating these targets. This is similar to the process used by EPA in formulating technology-based effluent limitations under the Clean Water Act, land disposal restrictions under RCRA, and new source performance standards and air toxics limitations under the Clean Air Act  -- processes that have already given EPA a large data base about the production techniques used in virtually every major industry. Congress would have to determine the degree of technological stringency that will be required for the waste minimization technology to be assumed. The planning efforts now under way pursuant to the Pollution Prevention Act will help answer this question and will provide much of the required industry-specific information. In particular, EPA's Source Reduction Review Project is initially focusing its study on 17 important industrial categories.10

Inventory of Facilities

It will be necessary to inventory the nation's waste disposal facilities, their present and future capacity, and their regulatory status -- for example, whether they are under orders to close. EPA's RCRA databased and commercially produced directories already contain most of this information. Facilities operating under RCRA interim status and unable to obtain full RCRA Part B permits should be excluded from future capacity projections, because they might ordinarily be presumed to be environmentally unsatisfactory. Facilities under construction or in the permit application stage should also be inventoried, with an assessment of the likelihood that they will ever come into operation, and if so, when.

The inventory of current and proposed disposal facilities will allow a projection of future disposal capacity. A comparison to the future generation targets, prepared in the previous step, will allow a projection of future capacity shortfall: the deficit -- if any -- per type of waste, of future waste disposal capacity under future waste generation, even after the use of waste minimization. The deficit projections should specify the type of facilities necessary, such as incinerator, landfill, or aqueous treatment. This determination will require knowledge about the treatment technology involved with each type of waste: EPA has already compiled such information for most RCRA wastes in formulating its land disposal restrictions.

The draft needs assessments from EPA and NRC should be widely distributed and should be subject to public comment. This will ensure that all the affected industries and localities will be able to check the accuracy of the data and assumptions. The final needs assessments -- prepared by EPA and NRC after receiving the public comments -- will reveal what new waste disposal capacity needs to be created.

A somewhat similar process, limited to recurrent streams of RCRA hazardous waste, is now under way pursuant to the capacity assurance provision of CERCLA. In May 1993 EPA released its Guidance for Capacity Assurance Planning,11 requiring each state to submit base-year (1991) data and projections of commercial hazardous waste disposal capacity and demand for the applicable waste streams generated within that state. Based on this data, EPA released a Draft National Capacity Assessment Report in December 1994. The report concluded that there is sufficient national capacity to manage all RCRA hazardous wastes projected to be generated through the year 2013. EPA is now considering public comments on this draft before preparing its final capacity assessment.

Federal Allocation

The needs assessment prepared by EPA and NRC will reveal how much new disposal capacity will be required. Once the capacity needs are know, the process of allocating the satisfaction of those needs among the states should be assigned to an independent federal entity, perhaps called the Federal Waste Disposal Commission (FWDC). FWDC would have a thankless task: allocating hated facilities among reluctant states. To avoid unending, fruitless debate and rampant political interference, the FWDC should be a politically independent commission whose recommendations are subject only to the approval or rejection of the entire package by Congress, under the model of the Defense Base Closure and Realignment Act.12 The Defense Base Closure Commission created by this act has performed admirably in carrying out a similarly unpopular mission. Composed of distinguished people with no future political aspirations, this commission has been able to make base closure decisions on the merits, grounded upon detailed information provided by the Department of Defense, and its recommendations have been accepted by Congress -- with, of course, the customary outraged speeches on the floor of the House and Senate by members whose districts lost bases.

FWDC would have the job of determining what needed capacity should be provided by what states. Although it would announce its decisions all in one package, it should go about its internal deliberations in a step-by-step fashion. Since Congress has already decided, as national policies, that high-level radioactive waste should go to Yucca Mountain in Nevada and transuranic waste should go to the Waste Isolation Pilot Plant in New Mexico, this should serve as the starting point for state allocation, and no further capacity should be allocated to either of those states. If these facilities are canceled -- or they are built and later fill up or otherwise stop accepting waste  -- this issue would be revised. If NRC believes that a separate repository should be established for the remains of decommissioned nuclear power plants, FWDC would have to find a state where that repository would go. NRC would specify the minimum physical conditions that would be necessary for such a repository, and FWDC would have to allocate the repository to a state that had an ample supply of land meeting those conditions. NRC could also be asked to specify an optimal general location -- that is, the region of the country where the facility should go, determined on the basis of safety and cost, without reference to politics. Sophisticated computer programs have been developed to include transport risk in this kind of calculation. This specification would play heavily in FWDC's decision. Since most commercial nuclear power plants are located east of the Mississippi, this repository would probably be located in an Eastern state that contains such plants.

Low-Level Waste Repositories

Next should be repositories for low-level radioactive waste. FWDC should also look to NRC for guidance on the physically optimal number and general location of facilities; I suspect the answer will be either two or three. If the optimal number is two, then there should be one in the East and one in the West; if three, there should also be one close to the center of the country.

The process of finding a site for a monitored retrievable storage facility for high-level waste is already under way. If a site has been selected by the time FWDC gets to work, that state should be spared further allocations of new facilities. Once the permanent high-level waste repository is opened and the monitored retrievable storage (MRS) facility has been emptied, decades from now, the MRS state might again be eligible for a future allocation. If no site has been selected, and it appears that the initial volunteer process is not going to work, then FWDC would allocate this facility to a state, again looking to NRC for guidance on physically optimal location.

Uranium mill tailings should be allocated next. These wastes are extremely voluminous. Thus, unlike arrangements for high-and low-level wastes, long-distance transport is not feasible. Once again, NRC would designate the optimal number of facilities and their general locations. It is virtually certain that these facilities should be allocated to the Western states where the largest mill tailing piles are located. For this physical reason, a mill tailing repository for in-state waste might be located in a state that already has a high-level, transuranic, or MRS facility, as an exception to the rule that those states would be exempt from future allocation. If a national policy decision has been made by them to develop repositories for naturally occurring radioactive material, such sites would be allocated on a similar basis.

Non-Radioactive Waste Streams

By now all the major radioactive waste streams will have been allocated. The next subject of FWDC's deliberations would be the non-radioactive waste streams, including RCRA hazardous waste, PCBs (which by historical accident are regulated under the Toxic Substances Control Act rather than RCRA), asbestos, medical waste, and any other waste streams under FWDC's jurisdiction, as well as mixed radioactive/hazardous waste. EPA will have declared whether there are any national capacity shortages. If there are, EPA should also reveal whether there are any unique geological or other physical characteristics that must be met by a site for the required facility. It is unlikely that this will disqualify any states altogether; EPA has already promulgated location standards for RCRA and TSCA disposal facilities, and on their face they do not require, for example, an arid climate that would only be found in the west.

Based on the estimates of future waste generation and future waste disposal capacity calculated earlier by EPA, FWDC would determine which of the states still eligible for allocations  -- that is, those without a radioactive waste disposal facility  -- are projected to become net exporters of non-radioactive FWDC waste streams, primarily RCRA hazardous waste. The largest net exporters would receive the first allocations of new disposal capacity. The FWDC would allocate the largest new facility, measured in terms of tons per year, to the largest projected exporter; the second largest new facility to the second-largest projected exporter; and so on down the list, until every needed facility had been allocated to a state.

Under this allocative method, large centralized facilities probably would go to the largest exporting states; small transfer stations might go to importing states. In the following circumstances, however, FWDC could vary from this otherwise mechanical process:
  • If EPA advised that special physical characteristics were needed for a particular kind of facility, and the presumptively designated state for that facility lacked those characteristics;
  • If most of a particular waste stream is projected to be generated in places so distant from the target state that it would be clearly unsafe or inefficient to send it to that state; or
  • If it is unfair to assess exports purely on a tonnage basis, because some of the wastes involved have high volume but low toxicity, or vice versa.
Once all the needed facilities had been allocated to states, FWDC would issue its comprehensive report on where all the radioactive and hazardous waste facilities would go. The report would be submitted to Congress, which would be required to vote yes or no on the entire package. As with the Defense Base Closure and Realignment Act, the statute establishing FWDC would mandate that Congress consider the package as a whole and may not modify FWDC's recommendations.

Because every state generates hazardous waste, and every state exports hazardous waste to other states, every state should have some disposal obligations; no state should think it can get a free ride. The possibility of a free ride -- the knowledge that only one state in a compact region would probably have to host a facility -- is one of the major reasons for the failure of the federal siting efforts for low-level radioactive waste. States would be given credit in this allocation process for existing private disposal facilities within their borders, inasmuch as such facilities will tend to make these states importers rather than exporters. It could be argued that states should also be given credit for other undesirable items, such as federal prisons, strip mines, and abandoned, contaminated military installations. This list could be endless, and the line must be drawn somewhere; in trying to site hazardous and radioactive waste disposal facilities, drawing the line to include only other similar disposal facilities seems sensible, or at least defensible.

After Congress has acted, states should then be able to trade allocations among themselves. The National Governors Association or a similar group could establish a trading mechanism. States might also want to trade disposal rights for waste streams not within FWDC's jurisdiction, such as municipal solid waste. If New Jersey, for instance, wanted to export municipal trash to Indiana, then Indiana might agree if it could send some of its hazardous waste back to New Jersey.


Once the state-by-state allocations are established, each state should have the responsibility to find the necessary sites for any newly required facilities. Perhaps the state would look for volunteer communities using Inhaber's bidding process. Land on federal facilities would be made available to the extent it was physically suitable. Such land should be sold or leased to the state or the new facility operator at the prevailing price for comparable industrial land, so as not to create a hidden subsidy. In any state that shirked its responsibility, FWDC could step in and find sites itself. This resembles the process under the Clean Air Act in which a federal implementation plan can be prepared for any state that fails to submit a satisfactory state implementation plan.13 Such a role for FWDC would involve a limited violation of the anti-pre-emption principle, but may be necessary to induce states to provide sufficient incentives for volunteer communities to step forward.

Before sites are tentatively identified, it is important that minimum physical characteristics be defined. This should be undertaken by EPA for non-radioactive waste facilities. For many types of disposal units, such standards are already in place.14 Fatal characteristics -- such as presence in a flood-plain -- and necessary characteristics -- such as depth to bedrock -- would be defined in advance; features that are merely desirable or undesirable can wait. With these technical standards in place an initial screening can be performed to see if a given site has a good chance of surviving the licensing process. The screening can be undertaken by the volunteer community, or by the state once it has received an expression of interest from such a community. This would help avoid a repetition of the disastrous experience in Martinsville, Ill., where a community volunteered for a low-level radioactive waste facility, but after $85 million and years of litigation it was determined that the underlying geology was unsuitable. The state siting board that denied a permit to the Martinsville site wrote, "Politics and the need for local approval were what selected the [site]. Science and engineering were asked to come in after the fact to justify this politically acceptable site."15

Once sites were selected, the states would be responsible for overseeing the detailed characterization studies and the permitting and construction of the facilities, all under the applicable guidelines of EPA or NRC. An exception would be the high-level and transuranic waste repositories, which would have to be in federal hands because they will contain fissile materials. Local communities should be given technical assistance grants to participate in the process. Perhaps each facility would have its own board of visitors, with federal, state, and local representation. This board should have full access to the site and its records and could conduct inspections at will to ensure that all environmental standards are met. It would also regularly meet with facility management to discuss mutual concerns and could make the discussions public if its recommendations were not followed.

Additionally, FWDC might set caps on how much waste each facility could accept, to avoid the creation of excess capacity that might encourage waste generation.

The sanction for a state's failure to meet its FWDC-set allocation of waste disposal would be that other states could initially tax and ultimately exclude its waste from their FWDC-allocated facilities. A similar sanction for states failing to site facilities were upheld under the Low-Level Radioactive Waste Policy Amendments Act.16

To advance the goal of closing existing older facilities, private companies should be given special consideration to relocate to FWDC-allocated sites if they (or someone from whom they bought capacity rights) shut down older, environmentally deficient disposal units. The consent of the receiving state and locality to this move would still have to be obtained. This idea of disposal capacity trading is based on the emissions offset trading program under the Clean Air Act.17 Many disposal companies are currently in constant conflict with their neighbors, and I believe many would embrace this option of new, pre-selected sites. To encourage these moves, perhaps the older facilities with the greatest environmental problems should be required to move after a few years, such as when their existing permits expire. Companies moving to FWDC-allocated sites might be able to bypass ordinary site selection processes.

Actual construction and operation of facilities could well be contracted to the private sector. Private companies could also attempt to site and construct new commercial facilities above and beyond those found necessary by FWDC. In such cases, however, the firms would be on their own.


The system proposed here aims to reduce waste disposal requirements to a minimum, primarily through price incentives and elimination of hidden subsidies for waste generation. How much disposal capacity is still required would then be determined. This capacity would be allocated among the 50 states, based primarily on how much waste they generate what disposal facilities they already have, and their geological and other physical attributes. Volunteer communities would be sought in each state to handle that state's allocation.

Social and economic costs would be minimized through a sound siting process, and those that remained would be compensated. The national allocation process would achieve fairness among states; the search for volunteer communities would achieve fairness within states; the closure of antiquated facilities would reduce the disproportionate burden on the poor and minorities; and the construction of centralized destruction and disposal units, especially on already-contaminated federal land, would reduce the number of affected neighbors, preserve now-clean land for posterity, and help relieve future generations of the burden of caring for our waste.

This system would face many practical, political and economic obstacles, but it is superior to the current regime of impasse, conflict, fragmentation, and futile attempts at coercion.
1 Gary Davis et al., "Government Ownership of Risk: Guaranteeing a Treatment Infrastructure," in America's Future in Toxic Waste Management 95, 113 (Bruce W. Piasecki & Gary A. Davis, eds., 1987).
2 Curtis C. Travis & Carolyn B. Doty, "Can Contaminated Aquifers at Superfund Sites Be Remediated?" 24 Envtl. Sci. & Tech. 1464 (1990); Randy M. Mott, "Aquifer Restoration Under CERCLA: New Realities and Old Myths," 23 ER 1301 (Aug. 28, 1992); Roger L. Olsen & Michael C. Kavanaugh, "Can Groundwater Restoration Be Achieved?" 5 Water Envt. & Tech. No. 3 (March 1993); "Pump-and-Treat Policy Directive From OSWER Targets Dense Organic Compounds, Official Says," 23 ER 8 (May 1, 1992).
3 Congressional Budget Office, Environmental Cleanup Issues Associated With Closing Military Bases, August 1992.
4 E.g., Steven W. Setzer, "Army's Green is More Than Its Uniforms," Engineering News-Record, Nov. 30, 1992, at 30; David Evans, "Nuclear Cleanup Falling Into Gap," Chicago Tribune, Sept. 12, 1991), at 29; Paul Hoversten, "Some Military Bases Will Never Be Cleaned Up," USA Today, July 5, 1991, at 7A; Michael Satchell, "Uncle Sam's Toxic Folly," U.S. News & World Rep., March 27, 1989, at 20.
5 Ann Markkusen et al., The Rise of the Gunbelt: The Military Remapping of Industrial America 239-42 (1991).
6 Michael R. Greenberg and Richard F. Anderson, Hazardous Waste Sites: The Credibility Gap 166-67 (1984); David Morell and Christopher Magorian, Sitting Hazardous Waste Facilities: Local Opposition and the Myth of Preemptions 57-58, 154 (1982).
7 Herbert Inhaber, "A Market-Based Solution to the Problem of Nuclear and Toxic Waste Disposal," 41 J. Air Waste Mgmt. Ass'n 808 (1991); Herbert Inhaber, "Can We Find A Volunteer Nuclear Waste Community?" Pub. Utilities Fortnightly, July 15, 1991, at 19; Herbert Inhaber, "Of LULUs, NIMBYs, and NIMTOOs," Public Interest, Spring 1992, at 52.
8 These studies are reviewed in Gary H. McClelland et al., "The Effect of Risk Beliefs on Property Values: A Case Study of a Hazardous Waste Site," 10 Risk Analysis 485 (1990).
9 E.g., Keith Schneider, "Safety Fears Prompt Plans to Buy Out Neighbors," New York Times, Nov. 28, 1990, at 1; Jon Bowermaster, "A Town Called Morrisonville," Audubon, July Aug. 1993, at 42; Caleb Solomon, "How a Neighborhood Talked Fina Refinery Into Buying It Out," Wall St. J., Dec. 10, 1991 at 1; "Neighbors of Texas Plant Offered Buy-Out by Defendant in $100 Million Injury Suit," 7 TLR (BNA) at 461 (Sept. 16, 1992).
10 Lynn L. Bergeson, "The SRRP: Making Pollution Prevention Work," Pollution Engineering, July 1993, at 73.
11 U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response, OSWER Directive No. 9010.02, Guidelines for Capacity Assurance Planning: Capacity Planning Pursuant to CERCLA § 104(c)(9) (May 1993).
12 P.L. 101-510, 104 Stat. 1808. See Specter v. Garrett, 971 F.2d 936 (CA 3), vacated, 113 S.Ct. 455 (1992); County of Seneca v. Cheney, 806 F. Supp. 387 (DC WNY, 1992), vacated, 992 F.2d 320 (CA 2, 1993). Similarly, Eric Schmitt, "A Mission Accomplished: In Deciding Which Military Bases to Close, Commission Was a Fortress Against Politics," N.Y. Times, June 29, 1993, at A10.
13 See 42 USC 7410(c)(1).
14 E.g., 40 CFR 264.18 (location standards for RCRA hazardous waste landfills): 40 CFR 761.75 (EPA standards for LLRW facilities). However, many of these regulatory standards may not be sufficiently detailed for this purpose.
15 Seymour Simon et al., Martinsville: Report of the Illinois Low-Level Radioactive Waste Disposal Facility Siting Commission on its Inquiry into the Martinsville Alternative Site 449 (Dec. 18, 1992).
16 New York v. U.S., 112 S.Ct. 2408, 34 ERC 1817 (1992).
17 42 USC sections 7503(c), 7511(a)(4), 7511a(b)(5), 7511a(c)(10), 7511a(d)(2), 7511a(e)(1).