Panel Discussion

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

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.

I would like to talk about a number of factors that have prompted the need for new facilities. As a representative of the chemical industry, I should inform you that we are trying to minimize the generation of hazardous waste and thereby minimize the need to site more facilities. Our industry is actively engaged in developing recycle and re-use technologies so as to rely as little as possible on the land disposal method of managing hazardous wastes. Our board of directors has adopted a hierarchical policy of waste management. The most desirable technique is reducing the generation of waste. Recycling waste, followed by either chemical or incineration treatment are then preferred. Only if other means of treatment are infeasible is land disposal, in whatever form, recommended.

[15 ELR 10245]

As you are probably aware, amendments to the Resource Conservation and Recovery Act (RCRA) are currently before the Senate.¹ The House has passed its own version in H.R. 2867. A number of tensions in the bill will drive us toward siting new treatment, rather than disposal, facilities. I am, of course, alluding to the land disposal ban provisions. As land disposal of particular types of hazardous wastes is banned, additional capacity for incineration and alternative technologies will have to be explored. Senator Stafford has proposed an amendment to S. 767 which will require generators to certify when sending waste for disposal that they have done all they can to reduce the volume produced. Generators must also report annually to the EPA that they have taken all economically feasible measures to reduce their waste production.

Despite all these efforts to reduce waste generated, however, some waste will remain which must be disposed. The need for disposal capacity is also being created by the large volumes of waste generated by Superfund cleanups. Although cleanups generally tend to be site-specific, which helps reduce their waste output, some wastes are sent offsite for disposal. The thousands of tons of contaminated earth found at most Superfund sites is not required to be dug up and sent to another facility for disposal. Rather, on-site containment measures like slurry walls, counter pumping, and biological treatment systems are employed to control ground water migration and contamination. Above-ground drummed wastes, however, must often be sent to secure RCRA facilities. Moreover, the volume of waste from Superfund cleanups will continue to increase as more site cleanups are undertaken. Secure Subtitle C facilities must be found to meet the demand.

Another significant factor will be EPA's expanded hazardous waste listing. Since January EPA has released four or five new listings, but the Office of Solid Waste will admit that the surface has just been scratched in identifying and publishing a comprehensive list of hazardous waste substances. Our association believes that many hazardous wastes that should be listed are not; our members already handle them as if they were listed as hazardous.

Industrial growth will also account for additional need. A number of new high-tech industries are introducing chemicals into their manufacturing processes, and those chemicals must be disposed of in some fashion. This fact should be recognized and planned for so that industrial growth is not stifled by unnecessarily difficult siting processes.

The chemical industry would like to see a model siting process that is not so cumbersome that it becomes impossible to issue permits. The economic burden of siting new facilities must be recognized. An estimate of over $100,000 has been given for submitting an application. I think the cost is substantially more than that if a complex facility is contemplated. This cost will be added to the price of the final product.

STEVEN CRAMER: John McGlennon covered the issues raised by a siting proposal as well as I have heard, but I disagree that it is necessary to give the state the power to override or preempt the local government's authority in order to get a facility sited. We in the West have very strong feelings about local government and its capability to do the job it is supposed to do. We are also realistic about state political maneuvering, and know when unjustified opposition is futile.

When we entered our first hearing on the Last Chance proposal we were destined to deny the site. The state legislature had established criteria for denial in the siting process, so we examined the proposal until we found a ground on which to deny it. Only afterwards did we recognize the gravity of the state's hazardous waste problem and seriously consider a solution.

A coalition of counties was organized, and drafted a resolution that was taken to the State House. We then worked with industry and the state legislature to devise Senate Bill 282, which established specific criteria for siting a hazardous waste disposal facility. If a local entity denies a facility that meets the siting criteria, the statute provides for judicial review. In our case, after we denied the first proposal, I was sure the governor would override our decision. He didn't feel that state preemption was either appropriate or politically practical in our instance, however. It would have been very simple and politically safe for the county commissioners and the city councils to turn the whole process over to the state. We could have then sat back and said 'look what the state did to us,' but we just don't do things that way. The siting models being proposed are fine in theory, but if state siting boards are really able to handle the job, can anyone show me where they actually have done so?

The key to the process is local involvement. Local governments must be given the tools to do the job they were elected to do but, in many cases, the state has preempted them away. The Colorado siting statute made our job politically feasible because it required us to site the project if the criteria were met. I can assure you that before we went into the second hearing, everyone in the county knew what those criteria were and that if they were met we would have to give our approval.

Our first hearing went on for 20 straight hours. We didn't break because hostilities were so high that we weren't sure we would be able to get back into the building. The second hearing lasted two full days, and again emotions were extremely high. There were valid reasons for our denial of the first proposal. The generators offered no support and the applicant was very arrogant, convinced he was going to shove the site down our throats. They offered no public education and were not prepared to respond to the public's fears. The closest residence was a mile and a half away and the next was almost five and a half miles away, but any place is someone's backyard and 450 people were at the first hearing to tell us that. The generators and the applicants should not have ignored the education phase of the process. Because of my participation on the state Hazardous Waste Regulations Committee, I am now convinced the site is safe. I was not convinced of that at the first hearing, though.

The attitude encouraged by state preemption power only inspires suspicion and resentment in local officials. Solutions can be found if local governments are brought into the process. The Colorado system can work elsewhere. The siting problem can be solved, but not with theorization alone. Solutions are possible if we learn from past experience and come together with sensible proposals.

B. SUZI RUHL: The first point I would like to make is that, despite flaws in RCRA, innovations are being made [15 ELR 10246] in waste technology. RCRA has been a land disposal rather than a resource recovery statute. Public opposition has been the only technology-forcing mechanism available. Yet, for several reasons, more progressive, environmentally sound facilities are being located than ever before. They are generally smaller, and located in existing industrial complexes. Their waste is usually put back into the stream of commerce rather than into the environment, through innovative technologies such as recycling. Consequently, there is less opposition. We should promote these alternative technologies to enhance opportunities for successful siting of hazardous waste facilities.

The second issue I would like to address is preemption. It is theoretically possible for a state to maintain ultimate authority over the siting process and deny local governments the opportunity to create their own land use policy. There are dangers and weaknesses in the preemption strategy, however. First, all forms of opposition can't be preempted. Zoning authority is all that is subject to state preemption. The locality can still institute and enforce safety and health requirements such as limitations on weight, hours of operation, and noise emissions. Second, a preemption provision in the state siting statute can be overridden through the state political process. Legislation can be rescinded or the state constitution amended. Preemption should not be used as an excuse to avoid enacting comprehensive siting policies. Preemption is just one of many tools available in the siting process and should be respected as such.

John McGlennon addressed public management of the siting process. The public needs to be informed about and involved in the whole process, but, as yet, the only tool allowed communities facing hazardous waste siting issues has been emotion. Denied access to technical and legal experts, the public can only respond with feeling and sentiment. EPA's "Waste Alert" program did a tremendous job of educating the public about the problems posed by hazardous waste at Love Canal and the Valley of the Drums, but that office was eliminated before the public could be educated about solutions. The public doesn't know the difference between Love Canal and a secure permanent facility. They think all hazardous waste sites are dumps.

The education process should be as professional as the technical process. Just as there are lawyers, doctors, engineers, and planners, there are educators. The state of the art in education includes understanding the origins and condition of public opposition. The public is not a single homogeneous body. It consists of a variety of people with a variety of motives. A proper education program recognizes and can adjust to different levels of understanding and sophistication.

The public should also be made a part of the decision-making process. Public hearings come too late in the process to address effectively public concerns; most major decisions are made long before the hearing stage. Placing the public on the defensive only creates further opposition. It is very important to develop a comprehensive public management program and to implement that program early in the siting process.

Data development and analysis also are needed. The public does not understand where hazardous waste comes from. They don't understand that it comes from products that they use every day, and that it has to go somewhere: a secure facility, someone's backyard, an open pit, or somewhere else. Adequate data must be provided on the need for a facility, the amount and type of waste being generated, and the source of the waste.

The abandoned site problem needs also to be addressed. I am very encouraged by the Florida model. A comprehensive hazardous waste assessment program has been developed there to identify abandoned sites. Small quantity generators are included, and must provide the state with information about the type and quantity of waste being produced and where it is being sent. When the state faces the public it can now say, "We have these wastes here right now; what is going to be done with them?" The law also requires every local government to identify two areas where a transfer or storage facility could be located. The rationale behind the statute is that the public should go through the siting process without the imminent threat of a hazard. Local government becomes involved in the process earlier and people can afford to approach the problem rationally.Efforts must be spent on facilitating public involvement, which can be done through press releases, workshops, and committees.

The most disturbing and difficult aspect with which to deal is potential health risks. It is difficult to assess the health effects of long-term, low-level exposure to chemicals. Unfortunately, many experts report that there are no health effects from a particular exposure when, in truth, the possible health effects are simply not known. The latency between exposure and the disease must be recognized. The synergistic effects of exposures to various chemicals and combined exposures aren't easily measured but must be considered. Society can't wait for a body count, but must develop more sensitive mechanisms for identifying health consequences. Complete records of morbidity to identify recurring abnormalities must be maintained. More sensitive and specific indicators to identify early manifestations of disease must be developed. Such efforts can be used as evidence that government will not wait for cancers to develop or birth defects to appear before they will act to avert health problems.A lawsuit was required to implement the program, but the Agency for Toxic Substances and the disease registry under CERCLA will contribute to this effort.

Another problem in the health area is inadequate standards for exposure to toxic chemicals. Under the Clean Air Act,² only four or five air pollutants meet the hazardous substance standards. Under the Safe Drinking Water Act,³ only fifteen to twenty substances meet the standard. In addition, when asked whether there is a potential health problem in a community, government often responds that federal standards have not been violated, thus no problem can exist. For example, Dr. Melius mentioned the fire at the American Electric site in Jacksonville, Florida. This facility had been permitted long after RCRA, in the early 1980s. Government officials responded to the public concern about PCB contamination with statements that the PCB levels did not violate the federal 50 parts per million standard for a sanitary landfill. This is not an adequate response to citizen concern. More reliable and valid standards are definitely in order. The question should be asked, "Who wants to live in a sanitary landfill?"

[15 ELR 10247]

Discussion

DAN TARLOCK: What is the Chemical Manufacturers Association position on the relevance of need assessments in siting facilities? I ask because I consulted with CMA in drafting a model statute, and was told that need would not be an acceptable statutory consideration. Should the need for a facility be included in the statute as a relevant mandatory criterion?

FRANTZ: I don't know if the issue has been directly addressed by CMA. CMA is concerned that in five years we will face a needs crisis. They believe that need is certainly an appropriate factor to think about.

OWEN OLPIN: Could it be that CMA was saying that need is something that should be determined generically and on a broader basis so that individual siting controversies don't have to revisit the need issue with every proposal?

TARLOCK: That may be true to some extent. In any land use controversy, need is always one of the most important underlying issues and its relevance is not properly recognized.

Ms. Ruhl's comments on the function of preemption in a siting scheme are well taken. I don't know of two states that treat the issue in the same way. I also think it is important to view preemption as a scalpel, not as a cleaver. Although some states have opted for the straight up-down model, preemption schemes should be tailored to local conditions; what is appropriate in New Jersey certainly will not be appropriate in the West. As has been pointed out, the siting procedures now in place are only experiments.

PARTICIPANT: Would Mr. McGlennon elaborate on the Alberta experience? I'm surprised that there hasn't been more interest in referenda in the United States. What kind of communities conducted the referenda, and were they binding?

JOHN MCGLENNON: There is a good deal of community interest in referenda in the United States. Those who draft siting procedures will not build them into the procedures, however, because they believe that if a referendum is required, facilities are less likely to be built. Massachusetts has had referenda, and I have heard of others elsewhere, but referenda are not yet common siting procedures.

In Alberta, referenda were not a part of the siting law or regulation; the communities chose to have them. I am not sure whether the provincial government would have pursued drilling had results of the referenda been different. I would guess that they would not, because other sites were available. The Alberta communities were rural and very small, with a low tax base and a population of between 750-1000. Four to five hundred residents voted in each of the elections. They felt they could benefit from the few jobs, from the increased tax revenue, and from the investment the provincial government would make in providing utilities to the site. One of the towns had a public water supply shortage, so a big water line sufficient to provide water for the entire town was to be built to cool the site's incinerator. This was clearly a benefit to the community — an incentive, not a bribe. In Swan Hills, the site eventually selected, the transportation network to the facility needed improvement. The community benefited from a new road.

Both the government and the developer can take action to provide incentives and create a favorable climate for a facility. It can happen here in the United States.

I would like to make two comments. As Bob Frantz pointed out, complicated siting processes don't work. A design that includes public participation and incentives may look good on paper, but if the up-front costs are too great, developers won't submit applications. Some states, Connecticut, for instance, have deliberately designed cumbersome procedures to avoid having to site facilities. BFI pulled out of Connecticut because the siting procedure was too complicated, with heavy front-end costs and a high risk to the developer. The same is becoming true in Massachusetts. Bob Frantz mentioned a figure of $100,000 to site a project. If IT goes forward with its facility, the licensing process could cost as much as $2 million. So, projects can be costly even before filing the application.

I would also like to ask Steve Cramer whether the attitudes of the company and the public changed after the Colorado state legislature enacted a law with specific selection criteria for approval.

CRAMER: The company's approach changed dramatically from one of antagonism to one of cooperation. With absolute criteria to meet, they came to us the second time and systematically proved their compliance. The attitude of the public did not change very much, though. There was still no public education, and the people were worried about their safety. Once the applicant met the criteria, however, we had no choice but toapprove the project or let a judge approve it when we were finished.

PARTICIPANT: Have any of you stood for reelection?

CRAMER: A Commissioner who participated in the original vote against the proposal stood for reelection and was defeated. In November we will know what is going to happen to those of us who voted in favor of the second proposal. The campaigns have begun, however, and the issue has not been raised.

JAMES MELIUS: I agree that the government has not sufficiently delineated that health effects from low-level exposures and the synergistic effects of multiple exposures. We have also misapplied standards in some situations. I would caution, however, that while we need to develop information on potential health effects from exposures to hazardous wastes, that study should be conducted by medical researchers and not become a part of a siting process or siting guarantee. Management and control of exposure are feasible and proper elements of a siting process, but a guarantee that cancer and other health risks will be monitored is not. The monitoring of exposures through air and water, and the management of possible catastrophes such as fire and transportation accidents are very important. Because of resource limitations, however, it will be the responsibility of the utility to develop better data and more information on health effects. This is very difficult to explain to the public; they are not convinced that reliance on the developer is in their best interest. Exposures can be controlled, however, so that a site does not create a public health problem. After the mistakes that have been made, it will be difficult to convince the public that our available [15 ELR 10248] technology is sufficient protection. They want guarantees that the technology will work. Both the public and developers need to be educated about health protection and available technology.

PARTICIPANT: How does one define "need"?

FRANTZ: It seems to me that we're talking about need in at least two different contexts. The first is the educational context. John McGlennon's position is that need must be demonstrated to the public. No one in the chemical industry would disagree with that proposition, but making the need determination a substantive factor for consideration by a state siting board or commission will only increase the already $1-2 million cost for permitting a site. The permit applicant has already found economic justification for the facility. When included in siting statutes, need assessments require unnecessary expenditures of capital.

PARTICIPANT: We included need as the first consideration in our process because there was a statewide concern that one firm might improperly find an economic justification for siting a facility where others would not. It was feared that that would lead to unsuccessful and abandoned sites and require post-closure procedures.

PARTICIPANT: Mr: McGlennon, can your public assistance grant monies be used to finance the educational process? I just don't see that states are going to want to expend the required funds to implement your model process.

MCGLENNON: The community assistance grant should be used for technical analysis of the siting proposal. It should not be an educational vehicle. The community assistance grant and educational program siting proposal are quite separate. The purpose of the technical assistance grant is to evaluate the developer's proposal: the environmental assessment document, the socio-economic document, and the public health effects documents prepared as part of the application. The grant money should go to a local assessment group, whether county commissioners or board of selectmen or an independent and diverse body appointed by the local government. The local assessment committee is responsible for reviewing the project, speaking on behalf of the community to the state licensing board and the facility operator, and demanding changes to meet local concerns. The technical assistance grant should be used to assist in this process.

The education program should be funded separately by the state and the developer. I envision a two-tiered educational program. The first stage includes a state-funded general program about hazardous waste: where it comes from, how it is generated, what is done with it, why we need treatment and disposal facilities, what the health and economic impacts on a host community can be, what the potential impacts on the environment are, what happens to waste if it isn't treated in a properly managed facility. The second stage is a specific education program directly addressed to the intended host community and funded by the developer. Brochures discussing the facility, the company record, and other facilities operated by the developer would be distributed. Advertisements in the local newspaper, a newspaper column, a newsletter to the community, a store-front and hotline responding to questions, and funded trips for local citizens to inspect other facilities operated by the eveloper or that are similar to the facility proposed can be included. It is expensive, but I think it is worth it, because it works.

PARTICIPANT: I have found the media very difficult to educate about hazardous waste.

MCGLENNON: You are right. In Massachusetts, Tufts University ran a weekend program especially for the media. Professionals were brought in to inform participants about hazardous waste, to teach them not to call facilities "dumps," and to show why displaying a picture of a skull and crossbones behind a TV anchor every time hazardous waste is brought up was inappropriate and inaccurate. It worked for two or three months until the field manager for the TV station moved to Pittsburgh, and the newspaper reporter was promoted. We are once again dealing with people unfamiliar with the terminology and unable to present the facts objectively.

RUHL: I think it's important to remember that public education undertaken by a company will be perceived as public relations. Also, it is too late to start a public education program once an area has been selected. It needs to be in place well before a site or company has been selected, and should not be site-specific.

PARTICIPANT: What is the proper role of the federal government in the siting process? Is there a federal solution?

RUHL: The Compact Clause of the U.S. Constitution and the development of regional approaches should be further explored.⁴ Many areas in Alabama show impermeable clay formations to a depth of 700 feet. A major hazardous waste landfill is already located there. On the other hand, Florida's groundwater is four inches below the surface, making a landfill virtually incomprehensible. Must Alabama dispose of all of Florida's waste, as it is doing now? Not if a regional strategy to minimize risk can be designed that accommodates both states. Alabama should take those wastes that have to be landfilled, but Florida can develop, and is developing, transfer stations to consolidate the waste, assuring fewer and better trucks on the roads between the two states, and siting different types of hazardous waste facilities. It is important to take a broader perspective and to look at the issue on a regional level. Therefore, the federal government should facilitate interstate activity and provide technical and financial assistance. There are lessons to be learned from the 1980 Low-Level Radioactive Waste Policy Act.

PARTICIPANT: Wouldn't a national needs assessment by the federal government solve many of the problems discussed today about proving and communicating need to the public?

[15 ELR 10249]

MCGLENNON: EPA conducted a needs assessment about four years ago in which they measured the volumes of hazardous waste generated on- and off-site within each EPA region in order to demonstrate that some regions had more capacity than need, and some more need than capacity. That study is being updated. A Massachusetts firm is doing a national small generator needs assessment.

It is difficult to gather accurate data for needs assessments because some companies are not inclined to release sensitive information, particularly to government agencies vulnerable to public requests for data under the Freedom of Information Act. The chemical industry has been more cooperative than others in providing this information. It is very difficult for states or industrial associations to prepare accurate needs assessments, and federal attempts are met with even more resistance.

MICHAEL LAST: I have seen industry reluctant to participate in public discussion and to influence public opinion. Industry is not taking a leading role; they aren't providing data, they aren't at the public forums.I think that industry will have to become more active in order to turn the public around.

FRANTZ: There are a number of reasons for the industry's low visibility in the process. Chemical companies know that they may not have a lot of credibility in the community. They aren't enthusiastic about entering a heated local dispute. You are absolutely right, however. Industry must be involved in the process.

1. Congress enacted amendments. See supra Alm address, note 2.

2. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

3. 42 U.S.C. §§ 300f-300j-10, ELR STAT. 41101.

4. The Interstate Compact provision empowers Congress to authorize states to form binding agreements, even if they restrict the flow of commerce. In RCRA, Congress attempted to encourage cooperation among states in solving waste disposal problems, and authorized states to develop compacts for cooperative efforts and mutual assistance in hazardous waste management. Two states ripe for such a compact are Alabama and Florida.