Prospects for Negotiation of Hazardous Waste Siting Disputes

Gail Bingham

Gail Bingham is a Senior Associate at The Conservation Foundation in Washington, D.C. and the author of a forthcoming book entitled Resolving Environmental Disputes: A Decade of Experience.

[15 ELR 10249]

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

The controversies that arise over siting new hazardous waste facilities are classic examples of complex, environmental disputes. Local communities that face the prospect of hosting such facilities are justifably concerned, and frequently express strong opposition to locating a new facility in their midst. Although states have attempted to deal with this opposition by tightening safety standards, by providing for greater public participation in the siting process, and by preempting local controls, local opposition has not diminished noticeably.

Negotiation, with offers of appropriate compensation for actual and potential losses suffered by the host community, appears to offer a more direct and equitable response to the causes and dynamics of public opposition than do other approaches alone. As reported in more detail elsewhere,² statutes in Massachusetts, Wisconsin, and Rhode Island have incorporated negotiation between the hazardous waste facility developer and the local community into each state's siting procedures. A negotiated siting agreement has been concluded successfully for a new hazardous waste treatment and storage facility in Rhode Island, and a negotiated siting agreement also has been reached for a solid waste facility in Wisconsin.

In these remarks, I would like to dispel three myths. First, host communities and their neighbors are not irrational in opposing facilities that may cause them more harm than good. Second, compensation does not have to mean bribery. And, third, based on the experience to date, negotiation is not a mysterious process to be approached with great fear — it is something people do all the time, it is something that people can learn how to do more effectively, and it can have a logical place in the siting process.

Recognition of the Legitimacy of Citizen Concerns

An implication in discussions about public opposition to siting hazardous waste facilities often seems to be that local communities are acting selfishly or irrationally in opposing new facilities that are important to the region. [15 ELR 10250] The public's fears, distrust of government, and emotionalism are offered as proof that they are irrational. If we are to deal with the realities of public opposition, however, it is essential to recognize that, if faced with the same choices, most people would oppose a hazardous waste facility in their community. It is a rational decision, based on the balance of costs and benefits to the potential host community. Rather than looking for ways to circumvent public opposition, therefore, we must develop mechanisms to change this balance of costs and benefits by compensating for the adverse impacts on a host community.³

Hazardous waste facilities present the classic siting problem — the proposed facility offers broad regional benefits but concentrated local costs. The public, although often dealt with in public participation efforts as a unified group, actually is composed of separate groups, each affected differently by such proposals. Most individuals in a region are net beneficiaries because of improved hazardous waste treatment or disposal, but those nearby are net losers. The first step in dealing with the public realistically is to acknowledge these differences. When this is done, those who may be negatively affected are likely to be treated less as a troublesome minority than as a group with unique and legitimate concerns. Only then can we begin to discuss the issues with project opponents and discover acceptable solutions to their problems. (Although this is a starting point, the siting of hazardous waste facilities probably never will be easy.)

Instead of dealing with the causes of citizen opposition, however, most states deal with the symptoms. If a community has the ability to deny approvals for a facility, then it has every reason to do so, regardless of the local and regional benefits that might be generated by the project. States often have responded to opposition by preempting local controls. If all of a community's decision-making power is preempted, however, then opposition is likely to surface in equally non-constructive, although different, ways. The opponents of new hazardous waste facilities have a certain amount of political power, in spite of attempts to preempt specific, local controls. States must choose whether to allow the residents of potential host communities the opportunity to exercise their power constructively in the decision-making process or force them to exercise it to defeat the process itself. If preemption is used, the process must empower the community in other ways and inspire constructive participation in the decision-making process.

Public "participation" as it is commonly conceived is not enough. Public participation is important to the process, but, without giving residents of potential host communities real power to affect theoutcome, it is merely another way to deal with the symptoms — not the causes — of conflict. Public participation usually means public education and public hearings — two forms of one-way communication. Both are important, but insufficient, to foster the two-way dialogue necessary to solve problems in a way that meets the needs of the community. Public education usually begins too late, after a site has been proposed and citizen fears heightened. Public hearings allow citizens to express their concerns, but are poorly set up to solve their problems. Public hearings frequently encourage extreme positions and discourage problem-solving. Negotiation, mitigation, and compensation for adverse impacts are much more likely to produce positive results.

Compensation and Creative Problem-Solving

Compensation does not, as many seem to think, have to mean bribery. If one assumes that the oppositions is unreasonable, then compensation may appear to be payment for doing what should have been done in the first place. But, if one accepts citizens' concerns as legitimate, compensation and mitigation are ways to deal with actual and potential problems, changing the balance of costs and benefits experienced by residents of a host community. In other words, it allows those involved to think about ways to solve citizens' problems creatively.

I do not advocate monetary compensation, however. Monetary compensation often is inappropriate because it does not address community concerns specifically enough.⁴ One must begin, not by asking the residents of a community what it would take for them to accept a proposed facility but by asking them what the problems are from their point of view. Asking this question often turn up problems that may not be considered carefully in public hearings because they are not easily addressed by regulatory agencies. In addition to the design of the facility, people often are concerned about transportation routes, the town's ability to handle emergencies, clarification of the types and amounts of wastes to be handled at the site, property values, and so on. Solutions to these problems may be expensive, but they do not necessarily require direct monetary payments to the community. Alternate transportation routes may be more acceptable; additional emergency equipment, training, and cooperation between the owner/operator of the facility and town officials may give the community greater confidence about its ability to handle emergencies; insurance policies or bonds might back property values; etc.

Assuming one is persuaded that compensation for and mitigation of adverse impacts are both effective and appropriate, the next question is how to arrive at the proper package. At least two options are available. Some state statutes allow compensation to a host community, based on a formula or decision by an impartial board or agency. In Massachusetts, Rhode Island, and Wisconsin the developer and the community are asked to negotiate directly with each other.⁵ I believe that the latter approach may be more effective, because those directly involved in the controversy are more easily able to determine what their concerns and priorities are and which solutions are most acceptable.

[15 ELR 10251]

An Example: The Antonelli Facility

In Rhode Island, a new state siting statute was enacted in early 1982. Soon after, the Antonelli Company, an electroplating firm, applied for a construction permit for a hazardous waste treatment and storage facility. Though an on-site facility, it was designed to take wastes from other companies off-site. Their construction permit was granted in November of 1982, and exactly 90 days later, community representatives signed a siting agreement with the company. Antonelli agreed to provide additional fire-fighting equipment, landscaping, and payment for an independent consultant chosen by the city to conduct annual monitoring. They also agreed to allow city officials and members of the public to visit the facility by appointment. When concerns about transportation were raised, an agreement was reached on transportation routes. When citizens objected to being a regional dumping ground, the company agreed to limit outside wastes to 40 percent of the total volume handled.

Not every issue was resolved, however, and not all opposition was satisfied. The issue of property values was raised, but no agreement was reached. Community representatives held two public meetings and met with extensive community opposition. The committee signed the agreement, however, because they felt they had obtained the best package possible for the community. The opponents sued the state and the company for faulty notice of the public hearings, but did not challenge the negotiation process itself. The facility has not yet been constructed, but it is expected to be built.

Effective Negotiation

Most people have a sense of the give-and-take of negotiations. Some people negotiate more effectively than others, however, first, because they realize that effective negotiation requires looking deeper than the positions taken by the opposition to the reasons why these positions are taken,⁶ and second, because they are able to look at the larger context. What are the rules of the game? Who plays? Who has what authority? When should the negotiations take place? What are the incentives to settle, and what are the risks of not agreeing? The answers to these questions are vital to the negotiation equation in complex environmental disputes. In the three states mentioned above — Massachusetts, Rhode Island, and Wisconsin — state statutes attempt to give some structure to the negotiation process.

Who negotiates is an important factor in the success of a negotiation process. In theory, the more interests represented, the more stable the potential agreement — and the more complex the dynamics. All three statutes specify the means for selecting a "local assessment committee" to represent the community in the negotiation process. In Massachusetts and Rhode Island, the host community has the authority to appoint all members of the local assessment committee. There is no guarantee that neighboring communities or all interests within the host community will be represented, but they are not excluded. Wisconsin casts a wider net and offers any community within a certain distance of the proposed facility the same opportunity as the host community to participate in the negotiation process. In Massachusetts, ratification of the negotiated agreement is made by the city council of the host community. In Wisconsin, abutting communities are further protected because all communities represented on the local assessment committee must ratify the siting agreement. More experience under each statute will be needed to evaluate how well each approach works.

Whether all parties have sufficient incentives, first, to negotiate and then, to settle is important. In Massachusetts and Rhode Island, both the community and the developer are required to negotiate (a directive that has met some resistance). Under the Wisconsin statute, the community is not required to negotiate. If it chooses to negotiate, all local land use controls that existed 15 months before the proposal was submitted remain in effect (this is to avoid juggling the groundrules before the negotiation begins). If it decides not to negotiate, it can still participate in the state permitting process, but local controls are preempted. This approach attempts to create incentives by investing power in the community if it agrees to negotiate, but removing power if it does not.In all three states, the statutes rely on an arbitration provision to provide incentives for the parties to reach a voluntary settlement.

Timing is also important in structuring a negotiating relationship. In Massachusetts and Wisconsin, local negotiations are begun either prior to or concurrent with the state permit procedures. In Rhode Island, negotiations do not commence until after the permit is approved by the state. The Rhode Island approach is particularly interesting because the issue of need for the facility is resolved before the community is asked to consider the issue. In both Massachusetts and Rhode Island, potential host communities asked to negotiate a siting agreement have questioned the need for the facility.

In Rhode Island, the importance of the electroplating business to the state's jewelry industry also contributed to public acceptance of Antonelli's argument that the facility was needed. The Wisconsin and Massachusetts statutes originally left the determination of need, site selection, and the choice of contractors to the marketplace. This remains true in Massachusetts. Due to extensive public pressure at the state level, Wisconsin has amended its statute to require the developer to document the need for the facility during the state permitting process.

One should not rush into negotiations. Information needs to be gathered and negotiations prepared for. In addition, good communication among differing interests within the local assessment committee should be established. An agenda should be set and groundrules clarified to avoid conflicts over procedural issues. Time for communication between the local assessment committee and the community is needed to ensure later ratification of the negotiated agreement.

It is interesting to note that Massachusetts provides technical assistance grants to the local assessment committee to help the committee obtain theappropriate technical background and advice needed to negotiate in its own best interests. If the impact on a community is not known and understood, a negotiating committee will have difficulty approving and selling a siting agreement. Independent technical assessment removes the cloud of ignorance and helps make approval possible.

Finally, the relationship between the host community and the site developer will be ongoing and should be planned. Massachusetts requires this by statute, recognizing that continuing communication after negotiations are concluded is very important.

1. G. BINGHAM, RESOLVING ENVIRONMENT DISPUTES: A DECADE OF EXPERIENCE (1985).

A. TALBOT, SETTLING THINGS: SIX CASES IN ENVIRONMENTAL MEDIATION (1983).

L. SUSSKIND, L. BACOW, & M. WHEELER, editors, RESOLVING ENVIRONMENTAL REGULATORY DISPUTES (1983).

2. BINGHAM & MILLER, Prospects for Resolving Hazardous Waste Siting Disputes Through Negotiation, 17 NATURAL RESOURCES LAWYER 473 (1984).

3. M. O'HARE, L. BACOW, & D. SANDERSON, FACILITY SITING AND PUBLIC OPPOSITION (1983).

4. Farmers and environmentalists rallied against the damming of the Laramie River. Farmers were most concerned about reduced instream flows that would lessen irrigation capabilities. Environmentalists were concerned that the reduced flow would impact critical whooping crane habitat. Developers of the Grayrocks dam attempted to pay opposition groups for their water rights. These "payoffs" or "bribes" were rejected. It was not until the state stepped in and obtained guarantees of minimum streamflow and the establishment of an independent trust fund for protecting the whooping crane habitat that the utilities were able to proceed with their plan. See M. O'Hare, L. Bacow, and D. Sanderson, Facility Siting and Public Opposition (1983).

5. R.I. Gen Laws 12 (1982); Mass. Gen. Laws Ann. ch. 21D, 12 (Law. Co-op. 1984); Wisconsin. Stat. Ann. 144.445 (West 1983-1984).

6. R. FISHER & W. URY, GETTING TO YES (1981).