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.

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.

ROBERT FRANTZ: John McGlennon made reference to the need for facilities. The premise of this entire discussion is that a serious need for hazardous waste facilities exists. Otherwise, we would not be here debating how they can best be sited.

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!

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.

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.

Editors' Summary: This Term, the Supreme Court will decide a case construing NEPA for the first time since 1983. The Court must decide, among other issues, whether NEPA requires federal agencies to include worst case analyses in EISs. The Court will review two Ninth Circuit cases ordering agencies to perform worst case analyses even though the Council on Environmental Quality (CEQ) removed the requirement from its NEPA regulations in 1986.

Editors' Summary: The public trust doctrine has been the subject of a large and growing body of scholarly analysis. This amorphous legal doctrine, which varies from state to state, generally provides that states hold certain submerged land and tidelands in trust for their citizens. The public trust literature has thoroughly discussed the use of the doctrine in the management of coastal areas. One issue that has not been addressed in detail is the potential preemption of state public trust doctrines in federal property.

Editors' Summary: One of Congress' major goals in amending the Comprehensive Environmental Response, Compensation, and Liability Act in 1986 was to better address the health threats posed by hazardous waste sites. Congress sought to add greater firepower to the role of the Agency for Toxic Substances and Disease Registry, a part of the Public Health Service. But more than three years after the amendments' passage, ATSDR remains an agency many have never heard of. Even environmental professionals are often confused about what it does and how it works.