SITING HAZARDOUS WASTE MANAGEMENT FACILITIES
Dilemma and Challenge
This document (SW-951) was prepared
by Pat M. Fox for the Office of Solid Waste.
I
RECEIVED
t rv* ^ tf'T BRANCH
f EPA. REGION V
U.S. ENVIRONMENTAL PROTECTION AGENCY
1981; rev. ed., 1982
-------
HANDBOOKS ON SITING
HAZAFDOUS WASTE MANAGEMENT FACILITIES
EPA is developing a series of handbooks on the siting of hazardous
waste management facilities. This summary is based on these detailed
studies. Titles in the series are:
Using Compensation and Incentives When Siting Hazardous Waste Manage-
ment Facilities—A Handbook
Discusses |he concept of providing compensation or incentives to
communities for accepting a hazardous waste management facility in
their area. Describes various techniques, ways to form binding
agreements, and many cases where compensation or incentives have
been used successfully. k
Using Mediation When 'Siting Hazardous Waste Management Facilities—A
Handbook
Discusses the new approach of using an independent environmental
mediator to help people resolve their differences. Describes what
mediation is, what it can be expected to accomplish, how to know
when it is needed, and whom to go to for assistance.
Consulting with the Public When Siting Hazardous Waste Management
Facilities—A Handbook
Discusses techniques to help developers and State agencies conHauni-
cate more effectively with the public.
Identifying Potential New Sites for Hazardous Waste Management Facil-
ities—A Handbook
Discusses criteria and procedures that can be used to narrow the
universe of possible facility locations to those with the most
potential for withstanding intensive environmental review.
-------
Siting "hazardous waste management facilities (HWMFs) is one of the most im-
portant environmental issues of this decade. Attempts to site new facilities have
encountered difficult and sometimes insurmountable obstacles in the past. This
is partly because of concerns everyone shares—economic, health, and environmen-
tal. In some cases, the adverse effects the cotmunity fears may not materialize,
but, nevertheless, they are very real. The risks related to management of haz-
ardous waste are not always certain, and citizens question the ability of gov-
ernmsnt, industry, or anyone else to assure long-term safety. The fact remains,
however, that HWMFs are needed. .,
In order to site a facility successfully—allaying negative reactions as
much as possible—developers can use a number of techniques. The first thing
that must be done, of course, is to find an environmentally acceptable site.
After the site has been selected, the developer ought to consider a consulta-
tion program that includes all of the publics interested in the siting. Should
the proposed facility site be controversial, the parties nay want to use medi-
ation to help resolve the conflict. And, finally, the developer can ccnpensate
individuals and cornrounities for the costs they bear when a facility is located
in their area. He might also provide incentives that will make a hazardous
waste facility more attractive to the comrrunity hosting it.
This document sunroarizes the techniques mentioned above. It is based on a
series of four technical studies conducted by EPA.
-------
IDENTIFYING POTENTIAL SITES
There is need for general guidelines to identify and select sites for
new HWMFs. These guidelines can be used to limit the number of possible sites
to those able to withstand the most rigorous environmental and comrunity
review.
Environmental Factors
A developer should consider environmental factors first when seeking
possible sites for a facility. The most important of these factors are
the following:'
Soil. Because they are used for containment, soils are a significant
element to be analyzed. Texture, permeability, and attenuation capacity
are the most important factors related to soil. The first two determine
the potential for water and leachate to move through the soil's layers;
the third determines the soil's capacity to remove a certain amount of
hazardous material passing through the soil. Water generally tends to move
more quickly through sandy (highly permeable) soils than through clay soils.
Thus, less permeable soils are more suitable for land treatment and disposal
facilities. Soil is not an important factor for incinerators and chemical-
physical treatment and storage facilities except in regard to establishing
a firm foundation. Since deep-well injection does not occur in the soil
zone, it is not affected by characteristics of the soil.
Hydrology. This science deals with the properties, distribution, and
circulation of water on the surface of the land, in the soil, and in the
atmosphere. The developer must know something about the hydrology of the
area where he plans to site his HWMF, particularly the distance from the
-------
base of the facility to the nearest underlying aquifer. This distance can vary
as a result of seasonal fluctuations, natural events such as severe rainfall,
and seismic activity. Landfills in extremely arid areas subject to infrequent
but heavy downpours nay not need to be as far from ground-water sources as humid
areas because rainwater usually evaporates quickly from the soil rather than
infiltrating into ground water. The larger quantities of rainwater in humid
areas, on the other hand, promote the formation of leachate in ground water.
Ground-water flow patterns are of most concern in siting surface impound-
ments, land treatment facilities, and landfills since these types of HWMFs
have the greatest potential for ground-water contamination. For aboveground
facilities, such as incinerators and contained treatment units, the developer
must, however, also consider ground-water flow because of leakage from storage
piles and accidental spills, and deep-well injection because of the zone through
which waste is injected.
The developer must also take into account the distance between the facility
and surface water. If there is only a short distance, the potential exists for
contaminating the surface water because of runoff from heavy rains, of the under-
ground migration of leachate from the facility, and of complete washout or partial
destruction of the facility from flooding.
Geology. The developer should consider the geology of the area in which he
plans to site a facility. Thus, he must have knowledge of the attributes of the
rocks and their formations and constituents. This includes the properties of
bedrock (a particularly important consideration in sites to be used for deep-well
injection), seismic activity, and the potential effects of mining operations close
to the site.
Climate. Although climate does affect the design, operation, and closure
of HWMFs, one might debate the extent since moisture and temperature usually
-------
change very little over relatively wide areas. The developer should/ never-
theless, obtain information on atmospheric temperature, rainfall, evaporation
rates, wind velocity and direction, and soil tenperature and moisture.
Land disposal facilities are vulnerable to problems from heavy precip-
itation, such as the inability of diversion and runoff structures to handle
excessive amounts of liquid, difficulties in moving transportation equipment,
and the possibility of mudslides on embankments. Lack of moisture can, on
the other hand, also cause difficulties. Certain kinds of clays used in
liners, for example, may shrink, which results in cracks. Also, vapor trans-
portation of wastes occurs more frequently in dry areas.
Design specifications for facilities in areas with extreme variations
in tenperature must reflect freeze-thaw effects on concrete structures,
liners, collection systems, earthen dikes, and roads. Land treatment re-
quires heat to trigger biodegradation (microbial activity essentially ceases
when the temperature of the soil is below 5° C). Thus, the length of the
season during which land treatment nay occur is limited in many locales.
Wind speed and direction influence where dust, aersols, and pollutants
are transported. Emissions from land treatment facilities and landfills
generally consist of dust and fairly heavy particulates that are not car-
ried long distances. Incinerators, however, normally have smokestacks or
some outlet that enables pollutants to be emitted more directly into air cur-
rents, thus allowing them to be carried further by the wind. Areas surround-
ing incinerators and chemical treatment facilities are also more likely to
be affected by tenperature inversions. Winds can, however, be used to ad-
vantage. If a facility is sited downwind from a population center, winds
carry the pollutants away from the center.
-------
Topography. The physical or natural features of an area and their
structural relationships—the area's topography—should be considered by
the developer. This includes: the slope of the terrain, which affects
erosion; the potential for flooding; and vegetation, which involves roots
and plant cover. The effects of these topographical characteristics on
siting HWMFs are obvious.
Unique Features of an Area. Areas that are in most respects appro-
priate for the siting of HWMFs nay in some special way be unsuitable. They
nay, for exanple, be a habitat for a particularly valuable species of plant
or.animal; an area that is aesthectically, ecologically, or economically im-
portant; or a location with particular archaeological or historic signifi-
cance.
It is probably wise for the developer to abandon plans to site a fa-
cility in any of these kinds of areas. In some cases, such as with endan-
gered species, he nay appeal to the appropriate governmental agency if he
feels there is some overriding reason to locate the facility in a particu-
lar area. Such an action is usually unwise, however, since it would prob-
ably encounter strong public opposition.
Characteristics of Waste. It is important to know the characteristics
of the proposed facility's wastes and leachates since their interaction with
the soil determines whether there is a potential for ground-water contamin-
ation. Such contamination results from changes in the permeability and at-
tenuation capacity of the soil.
Land Area Required, Capacity of the Site, and Costs. When siting a
HWMF, it is important to obtain an accurate estimate of the land area that
will be required over the entire life of the facility. In locations close
-------
to outcrops of rocks, industrial and conrrunity sites, and surface water,
expansion of facilities could be impossible.
Capacity of the site is, of course, related to the land area required.
In addition to the factors limiting the size of the facility, the developer
must also consider the depth to bedrock when he is determining capacity.
It is obvious that siting costs are higher where it is necessary to
excavate large rock or gravel areas or to build numerous access roads.
Also, it is more expensive to purchase land in urban rather than in rural
areas. Finally, costs increase with each additional mitigating measure
__ _ —*
needed to create an environmentally acceptable site.
Contnunity Factors. The developer should consider community factors
only after a number of environmentally sound sites have been identified.
Conrnunity-related considerations are important, however, and mast be seri-
ously addressed before a site is selected. These concerns, which include
transportation, land use, public services, and political boundaries and
jurisdictions, vary in importance. Some nay actually impose constraints
on the siting of HWMFs. Zoning and land-use ordinances may, for example,
prohibit them near schools or public areas. Other factors nay simply re-
sult in one site's being more desirable than another. Thus, although dis-
tance is not generally a prohibitive factor in transporting hazardous ma-
terials, shorter distances between points of generation and disposal are
more desirable than longer ones.
Use of Environmental and Ccrmmnity Factors in Siting
Since each siting of a HWMF is unique, no single set of criteria can
be used in all situations. Some generalizations can be made, however, re-
garding criteria for specific types of facilities. Criteria that emphasize
-------
surface and subsurface geologic features are, for example, generally used
for land treatment facilities, surface impoundments, and landfills. Prob-
lems related to air pollution (such as wind direction and proximity to pop-
ulation centers) and suitability of soil for foundations usually determine
the criteria for incinerators.
Criteria Evaluation Systems
There are several systems for weighting and ranking criteria used to
select sites for HWMFs. They consist of procedures for determining the
relative importance of each criterion. Six systems demonstrate the range
_ - - — *
of complexity: "Report to the Arizona Legislature Regarding the Siting of
a Statewide Hazardous Waste Disposal Facility"; "Technical Criteria for
Identifying and Screening of Sites for Hazardous Waste Facilities"; "Site
Selection Criteria for Hazardous Waste Facilities"; "Program for the Man-
agement of Hazardous Wastes"; "A Standardized System for Evaluating Waste
Disposal Sites"; and "Development of a Soil-Waste Interaction Matrix for
Assessing Land Disposal of Industrial Wastes."
These systems employ four general approaches to siting—exclusionary
(where sites are eliminated), inclusionary (where the most desirable sites
are identified), numerical weighting and ranking, and nonnumerical weight-
ing and ranking. Each approach has advantages and disadvantages, and no
single approach is clearly superior to the others. The best siting strat-
egy is, therefore, one that uses a combination of approaches to minimize
the disadvantages and maximize the advantages of each approach.
Siting Procedures
Two procedures are employed for selecting sites—overlay mapping
and data collection for use in ranking systems. The former is best suited
-------
for inclusionary and exclusionary criteria evaluation systems and the latter
for ranking and weighting systems. In order to select the most appropriate
procedure, the developer must identify the data needed, which usually is re-
lated to the size of the search area. Implementation of a well-developed
siting strategy requires the same careful, unbiased assessments as preparation
of the strategy.
Once the evaluation criteria and the strategy for evaluating sites have
been developed and inplemented, the developer should have three to five pos-
sible sites from which to make his final selection. He then reviews the rat-
ing systems he employed to evaluate the strengths and weaknesses of each of
the sites. On the basis of this evaluation, he arrives at the most viable
site. He then proceeds to convince the public to accept the facility.
8
-------
CONSULTING WITH THE PUBLIC
There is little doubt that the developer of a hazardous waste management
facility will find it helpful to establish a public consultation program. Such
a process provides the public infornation on the proposed facility, responds
to the public's questions and concerns regarding the facility, and exchanges
infornation among all parties involved in the siting.
A public consultation program is not legally required: the developer under-
takes it voluntarily. The program typically begins when the developer tentatively
selects a specific site for a facility. It usually ends when the appropriate
regulatory body begins deliberations on the permit application. During that tine
the developer attempts to provide technical, complex infornation to the public.
The program may educate people about HWMFs in general, but it is primarily de-
signed to give them infornation and establish a dialogue about a specific
site.
Success of Public Consultation Programs
Many public consultation programs have, in the past, been unsuccessful.
Developers are often unable to establish credibility with the public. A. number
of factors cause this situation. Developers do not voluntarily provide informa-
tion to the public early in the siting process. They do not give the public
the opportunity to express their views on proposed facilities. And, occasion-
ally, their performance in waste disposal has been less than satisfactory.
Developers' major technique for disseminating information is the public
meeting, which is not successful by itself. It is almost impossible to provide
conplex information in such a setting, and there is little opportunity for
the parties to come to an understanding about their various points of view.
-------
These meetings, in fact, often degenerate into hostile and highly emotional
shouting matches. Public meetings should not, however, be totally discounted
because they can be effective, especially if used in conjunction with other
elements of a public consultation program.
Elements of the Public Consultation Program
A public consultation program consists of planning, making the initial
announcement, disseminating information, monitoring the public response, and
docuraentating and evaluating the effort. These activities mist be integrated
into the overall process of siting, which involves technical studies and
regulatory review in addition to the public consultation program.
Planning. The developer's initial step in siting a facility is to con-
duct technical studies on a regional scale to identify potential sites. The
developer begins to plan how to consult with the public when she or he tenta-
tively selects the best possible site, using some of the information from the
studies that were conducted for the selection of the site.
Making the Initial Announcement. Before the preparation of specific impact
statements and of detailed studies of the site, the developer makes the initial
announcement. Since this announcement signals the beginning of the most intense
stage of the consultation program, it should be well thought out and carefully
planned. The announcement must provide basic information in a manner that is
easily comprehensible, and it must address those questions that most iimediately
concern the public, such as the rationale for the location of the facility, the
opportunities for the public to participate in the decisionmaking process, basic
information on the operation of the facility, and the major impacts of the facil-
ity on the comtunity. It must, furthermore, convince the public that the consul-
tation program is credible and that they may use it as source of additional
information.
10
-------
Opposition to the proposed facility usually erupts at this time. For
this reason it is important that leaders in the community be provided with
full information as soon as possible. They can then respond in a knowledge-
able way when questioned by their constituents or the media. Providing this
information does not, of course, guarantee support by these people, but they
will probably be nonconmital and certainly favor the principle of providing
information to the public. They nay, in addition, help limit the spread of
misinformation and misconceptions. If, on the other hand, these leaders do
not have such information, it is highly likely that they will react more
negatively to-the proposed siting. . •..:„, ; ,
The initial announcement is disseminated by the local media. The
developer should, therefore, provide them with press releases and should
conduct briefings and press conferences. Because the developer mist depend
on community leaders and the media to make the initial announcement, it is
imperative that the information be accurate and complete. If it is not,
this crucial segment of the consultation program could have a disastrous
effect on the siting process.
At the same time that the initial announcement is made, the developer
usually applies for a permit to site the facility. The next stage in the
consultation program—dissemination of information—begins immediately after
the initial announcement.
Disseminating Information. The period during which information is
disseminated is the longest in the entire program. At this time, the devel-
oper must ensure that all organizations and individuals in the connunity
have the opportunity to ask questions. He must also provide all the answers
and attempt to allay all the concerns raised by the public.
One of the keys to a successful consultation program is understanding
that "the public" comprises many segments—both organized and unorganized.
11
-------
"The public" consists of at least seven components. First is the general
public; it is conposed of local residents who are not affiliated with organ-
ized groups but who want information concerning the facility. Second is the
local, organized public, which is made up of existing clubs or groups that
take an interest in the proposed facility and those groups formed specifically
in reaction to the facility. Third are the decisionmakers—appointed and
elected officials who nay make decisions related to the facility. Fourth
are regional .or national- public interest groups such as those representing
environmentalists or industry. Fifth are the media, both local and national.
Sixth are those who will be affected economically, for example, generators
of waste. Seventh are local experts—individuals with a specific interest
in and a detailed knowledge of the technology of managing wastes.
The information the developer provides each group should reflect the
interests of the particular group. The developer must also consider the
characteristics of each group in order to determine the techniques to employ
in disseminating the information. Among the techniques used in the program
can be information centers, briefings, "hotlines," fact sheets, public meet-
ings, and citizens' advisory connittees.
The information center is usually in an easily accessible and highly
visible location such as a shopping center. Extended hours make it possible
for the public to pick up brochures and look at exhibits, maps, charts, and
reports, at their convenience. A trained staff and sometimes the developer
are available to answer questions. Workshops, briefings, and other meetings
can be held there, and it is the logical location for an information hotline.
The information center can, in fact, be the focal point for the entire
public consultation program.
Briefings provide the site developer and representatives of various
12
-------
organizations or publics the opportunity to meet in small groups and to discuss
their specific concerns. These representatives can then pass on information to
their memberships or constituencies. No attenpt is made to solve problems or to
resolve issues. The success of briefings depends on the ability of the developer
and his staff to present information competently and accurately and to retain
credibility.
By means of the hotline, people can obtain answers to their specific questions.
They need only call a toll-free number that has been made known to them through
advertisements, radio and television announcements, and various other methods em-
ployed in the consultation program. Callers may receive specific recorded infor-
mation such as on a forthcoming public meeting; they nay be requested to ask. their
questions on a recording machine, and they will be called back with the answer;
or they may talk to one of the developer's staff who is prepared to answer ques-
tions. The hotline may operate during normal business hours or be available 24
"hours a day.
Fact sheets are relatively short documents that provide information on spe-
cific aspects of the proposed facility. The developer issues them periodically
and thus is able to maintain a continuing and updated flow of information. Fact
sheets are inexpensive to prepare and produce and can be easily disseminated
through the information center. They can be passed readily from one person to
another.
Public meetings are usually ineffective for accomplishing the goals of a
consultation program. By definition, they are open gatherings at which the gen-
eral public and the developer share information. There are usually formal pre-
sentations followed by a question-and-answer period. As has been said, these
meetings often degenerate into emotional, nonproductive exchanges between the
public and the developer.
There is, however, an option to the traditional public meeting: the
13
-------
large-group-small-group arrangement. TViis variation on the public meeting begins
with a presentation by the developer. After the presentation the meeting breaks
up into snail groups presided over by the developer's staff or members of the
comrunity Who have been trained by the staff to be discussion leaders. This for-
mat provides more personal interaction between the public and the developer and
thus produces a better understanding of one another's point of view. It also
diminishes the possibility that those who are the most vocal will dominate the
meeting.
A citizens' advisory committee consists of the developer, public officials,
and representatives of all groups with an interest in the siting of the facility.
It provides a forum for all participants to discuss and evaluate issues. Although
it does not have decisionmaking authority, it usually makes recommendations that
are presented to the regulatory body involved in the approval process. In addi-
tion to providing information to the public through the committee, the developer
establishes his credibility simply by being a visible member and showing his
willingness to work with the community.
Monitoring. While the developer is disseminating information, she or he
should be monitoring the public's reaction. Monitoring is important because it '
establishes a dialogue between the public and the developer, which distinguishes
public consultation from public relations.
Monitoring involves, essentially, feedback for the information program.
There should be mechanisms to record the public's response to the proposed facil-
ity and to the public consultation program. The developer must be able to deter-
mine whether the public is receiving and understanding the information being dis-
seminated. It is essential that questions or concerns that have not been addressed
be identified so that this situation can be rectified. If this is done, it is
possible to make changes in the proposed facility and thus eliminate potential
problems.
14
-------
Mechanisms for monitoring vary with the consultation technique. Question-
naires or cotment sheets can be handed out at the information center. The devel-
oper might request a written brief from organized groups involved in the consul-
tation program. A procedure could be established by which the staff can record
questions or comments at the information center and on the hotline. There might
be frequent debrief ings of the developer's staff who are in contact with the
public. Methods can be established whereby the numbers of people participating
in the program and their characteristics (such as the amount of education, place
of residence, affiliations) can be recorded.
In selecting monitoring mechanisms, the developer must keep in mind that
the results have to be examined, and this involves cost. It takes considerable
staff time, for example, to analyze questionnaires and coverage in the media.
In addition, the results of some monitoring mechanisms have to be made available
to the public. People cannot be expected to fill out questionnaires, for
instance, and then never find out the results. The developer would lose credi-
bility if this were to happen. Thus, while monitoring is an absolute necessity,
the amount and kind must be considered seriously since a heavy expenditure may
be involved.
It is also important to remember that information from other sources, partic-
ularly those opposed to the facility, must be monitored. . This information nor-
mally indicates accurately the cormunity's reaction to the facility. Hence, the
developer should monitor news stories in all the media, letters to the editor,
editorials, newsletters and other types of information prepared by other groups
involved in the siting process, and statements made by conrunity leaders. Should
any of this information be inaccurate or misleading, a response can be issued by
the developer to correct the situation.
Documentating and Evaluating. The developer needs to record What the program
15
-------
has done, using the data to evaluate the program. The developer seeks to achieve
a number of objectives through documentation and evaluation. First, "he wants to
show the efforts he has made to inform the public on the iitpacts of the proposed
facility. Second, he attenpts to demonstrate that he understands the public's
concerns about and objections to the facility. Third, he tries to establish that
he has done everything possible to mitigate the public's concerns. Finally, he
strives to prove that he has met or exceeded any mandatory requirements for inform-
ing and consulting with the public.
The evaluation report summarizes the way the developer has achieved the objec-
tives of the public consultation program. It includes data on the availability
of information: the number of people attending meetings, using the information
center, and calling on the hotline? the number of corments and tsriefs received
from the public; the groups and organizations participating in the process; cover-
age by the media; the techniques used in the program. The report also covers the
comprehensiveness of the information; indicates an understanding of the public's
concerns; discusses the steps taken to respond to those concerns; and presents
the alternatives proposed by the public concerning the design and operation of
the facility.
Public and Private Site Developers
There are no fundamental differences between the consultation programs of
public and private developers. These programs vary only in minor ways, which
are based on the public developer's relationship to the regulatory process.
This means that the public developer must demonstrate that there is no collu-
sion between him and the body that approves the facility.
But even this aspect of the program may not differ from that of the private
developer. Many private developers have worked closely with regulatory agencies
16
-------
and, thus, may have to demonstrate their autonomy from these agencies, 'fine pri-
vate developer has the advantage of not having to defend the past and present
waste management practices in the State. He has the disadvantage/ "however/ of
convincing the public that he will be available in the future to honor his
commitments.
The Developer and the Director
of the Public Consultation Program
The validity of the public consultation program may be questioned if the
developer conducts his own program. To avoid this criticism, the developer can
find a neutral party to run the program and perhaps even secure an independent
source of funding, but even such programs are based upon local studies done by
the developer. Successful consultation programs in the past have not, however,
been rejected by the public simply because the developer conducted them.
Value of a Public Consultation Program
The developer is usually not required to conduct a public consultation
program of the type described above; it is done voluntarily. And/ While
conducting such a program is not a guarantee that all public opposition to
the facility will be overcome, it is reasonable for the developer to expect
to gain some public and governmental support for his siting effort. Such
a program should also enable him to solve a number of problems associated
with siting HWMFs at an early stage in the process.
17
-------
MEDIATION
Mediation is a process whereby a disinterested party intervenes among con-
flicting parties to promote reconciliation, settlement, or understanding. Al-
though mediation has not yet been used in siting a HWMF, the technique is a pos-
sible approach to settlement that should not be overlooked. It is important,
therefore, that those involved in siting facilities have sane knowledge of the
process.
It should be recognized at the outset that the objective of mediation is
compromise. ~ Thus, if those involved in a dispute adopt an uncompromising posi-
tion, mediation will not work. It is usually the last attenpt to resolve dif-
ferences before the parties become involved in lengthy, expensive litigation.
Deciding on a Mediator
Any group engaged in a dispute involving siting a HVM? nay decide to try
mediation to settle that dispute. The group must consider first whether its
position, and that of the other parties, may still be flexible and open to com-
promise. If so, the group should attenpt to find a mediator who suits its needs
and is acceptable to the other parties. This can be done by consulting the list
of mediators and mediation organizations published by RESOLVE Center for Envi-
ronmental Conflict Resolution and reproduced in EPA's Using Mediation When
Siting Hazardous Waste Management Facilities—A Handbook. The group can also
get in touch with its State labor mediation service or a private mediator with
whom someone in the group is acquainted.
Selecting the proper mediator is extremely important because people's
resources, concerns, and future are in his hands. The mediator must be accept-
able to all the parties. If there are any reservations concerning that person,
another mediator would be more effective.
One should consider several criteria when choosing a mediator. Mediators
must, first of all, have no stake in the dispute or its outcome. There should
18
-------
be no intellectual, economic, or emotional involvement. One should also con-
sider the demonstrated experience of the mediator and the mediation organization
and the individual's skills in dealing with people. Not only is it necessary for
mediators to be experienced in mediation, but it is imperative that they be able
to make the process understandable to the groups with whom they are working.
Although mediators need not be (and perhaps should not be) technical experts, they
mist become familiar with the political and legal context of the dispute and be
able to understand the language involved.
Mediators must, of course, be able to devote adequate time to all parties.
The ability to listen is an absolute necessity; mediators who talk more than they
listen will not be successful. Good judgment must be reflected in handling con-
fidential information. Mediators have to be able to distinguish between inforna-
tion that can and should be passed on to the other parties and information that
should remain confidential. Finally, mediators rtust be sufficiently perceptive
to know if the agreement reached is workable; otherwise everyone's time and effort
will mean nothing.
How Mediation Works
Anyone who is a party to the dispute or is knowledgeable concerning it can
make the initial contact with the mediator. That person will inform the mediator
about his or her view of the dispute: parties involved, issues, power relation-
ships among the parties, pressure to negotiate, and uncertainty concerning the
outcome of litigation. Unless mediators see no possibility for mediation, they
will discuss the next step—approaching the other parties. These contacts can
be made by the mediator, the person from the group that enlisted his aid, someone
who is trusted by all the parties involved, or some combination of these individ-
uals.
When all of the parties agree to try mediation, the mediator meets with
19
-------
each group individually to explain the process, to discuss the group's position,
and to determine the group's perspectives. He also encourages the groups to
ask questions about the process.
Once all the parties agree to participate, the mediator normally calls a
joint ireeting that all or most of the parties attend. In conducting the meeting,
the mediator treats each party equally and grants each an opportunity to present
its views. At some point all of the groups appoint negotiators to represent them.
When the negotiators feel unsure concerning some point, the mediator encourages
them to caucus with their technical experts. The mediator also caucuses with
the negotiators of the various parties, making suggestions and encouraging them
to exchange proposals with the other parties. The mediator may even suggest a
proposal. By this process the parties hope to reach agreement on the specific
terms of the settlement and the ways to implement it. The final step is to
to create a mechanism by which the parties can resolve any future disputes.
They might, for example, set up an advisory committee or establish a process
for arbitrating a controversy.
One should keep in mind that either the parties or the mediator may decide
at any point to discontinue the process, to select a new mediator* to use a
different technique to resolve the conflict, or to resort to litigation.
Advantage of Mediation
Even though mediation has not yet been used in settling disputes related
to the siting of HWMFs, there are reasons to believe that it may be useful.
The fact that it has been successful in equally difficult situations such as
labor disputes argues strongly for its use. While many of its advantages
can be perceived in the above discussion, an important one has not been men-
tioned: cost. Compared to lengthy litigation, mediation is usually far less
expensive. Most mediators and mediation organizations operate on grants from
20
-------
from foundations or governmental agencies. These grants usually caver salaries
and reasonable travel expenses. If any additional expenses are involved, a pay-
ment plan can be worked out among the mediator and the parties in the dis-
pute.
Perhaps the most important reason to attempt to mediate disputes is that it
usually allows the parties to discuss and compromise on the real issues that divide
them. Litigation, by contrast, often focuses on narrow issues that serve as effec-
tive causes of action, but that are not necessarily issues about which parties have
the strongest feelings. Mediation can focus on the most pressing concerns of each
party, thereby promoting a better atmosphere for compromise and resolution.
21
-------
COMPENSATION AND INCENTIVES
Useful tools in successfully siting facilities are compensation and incentives.
Many potentially adverse effects can, however, be mitigated before compensation
or incentives are enployed. A developer could, for exanple, redesign the facility
to provide extra protection from ground-water pollution. Or, he could buy addi-
tional property to serve as a buffer between the facility and neighboring property.
Mitigation is useful for a number of reasons. It demonstrates commitment
and credibility, which are useful when negotiating with local groups, and an atti-
tude of good neighborliness, which can be important for a lasting business. And
it can avoid the payment of compensation.
Compensation
Why is conpensation important? There is no way to avoid all the potential
adverse effects of a HWMF, even if the developer adheres to strict regulatory
requirements and employs mitigation measures. Compensation deals with these
effects.
There are essentially four types of compensation: monetary payments, in-kind
replacement of affected resources or services, contingency funds and insurance,
and land-value guarantees and payments.
Monetary payments. Monetary payments to individuals and conmanities allow
the recipient to decide how to deal with the costs resulting from the siting of
a facility. This flexibility is, however, accompanied by possible accusations
of buying off the recipient. Thus, it is important to have a direct connection
between the burden on the recipient and the payment to offset the burden. These
payments are best suited to measurable effects and defined costs.
Monetary conpensation can be in the form of one-time or continuing payments.
Payments are in cash or its equivalent and are often known as "tied impact pay-
ments." This means that the funds can be used only for stipulated purposes such
22
-------
as for recreation areas or roads. Continuing payments may take a number of forms:
property tax payments, payments in lieu of taxes, gross receipt taxes, tipping
fees, and adjustments to State-local aid formulas.
There are many combinations of providers—private developers and States—
and recipients—individuals, groups, and cormunities. The form of payment varies,
of course, depending on the particular combination of provider and recipient.
In-Kind Replacement of Affected Resources or Services. This type of com-
pensation offsets the burden imposed on a community or individual by replacing the
particular resource or service. It works particularly well for those things that
a developer or a State can provide directly. While this type of compensation has
the advantage of being directly connected with the problem it is addressing and
of meeting criticisms of bribery and payoff, it has a number of disadvantages.
It does not, for example, deal completely with such intangibles as the quality of
life in a conrunity. The community may also prefer to replace its own resources
or services than have it done by a developer or the State.
Contingency Funds and Insurance. Contingency funds and insurance (beyond
what EPA and some States may require of facilities) constitute promises to pay
for adverse consequences of a hazardous waste management facility. The conse-
quences cannot be reliably predicted and are, in fact, unlikely to occur.
Contingency funds usually either guarantee the performance of the owner or
operator of a facility or provide protection against unexpected events. Per-
formance requirements might include the operations, maintenance, and closure of
a facility beyond the legal requirements. Such unexpected events as accidents,
fires, and spills cannot be predicted, but they can pose problems for the environ-
ment and for the health of the conrunity. The contingency fund compensates for
damages caused by these events.
There are a number of ways to finance contingency funds: one-time payments,
payments over time, or additional payments as they are needed. States, developers,
23
-------
or both can finance them. Both insurance and contingency funds can cover a single
facility or a number of facilities.
land-Value Guarantees or Payments. The presence of a HWMF say bring about a
decline in property values in the area adjacent to it because of noise, traffic,
odors, and risk of property damage. Mitigation can lessen these effects, but
usually not eradicate them. And, since the value of the property decreases, the
whole contTunity suffers a loss of taxes and revenues.
Two means to compensate individuals for the decline in property values are
the purchase of the affected property at fair market value or payment to offset
the loss. The community can also be compensated by the developer's paying the
cotrnunity the present value of the revenue lost in property taxes and deduct-
ing this amount from that given to the affected individuals. He could, as an
alternative, reimburse the community on a continuing basis as funds are available.
Incentives
Incentives are defined as benefits that are not related to specific adverse
impacts of a facility. While compensation, as we define it, may -jtake people
feel neutral about a facility, incentives may actually resolve a controversy
over siting. They may also produce the goodwill necessary to help a facility
remain in business.
When considering incentives, a developer should keep three factors in mind.
First, long-term payments to the community that are tied to the amount of waste
being disposed of and that are supplemental to compensation could be more expen-
sive than providing a one-time donation of land or equipment to the community.
Second, the least expensive incentive—supplying disposal services to local
industries or sharing such equipment as a fire truck—may have an equal strategic
24
-------
value to other types of incentives. Third, the greatest danger of incentives is
that they will raise suspicions that the facility is worse than it actually is
or that the developer is acting unethically in some way.
It is usually not appropriate for States to require developers to provide
benefits beyond corrpensation for the adverse effects of a facility. Developers
feel that it is their prerogative to arrange for incentives directly with the
cormunity. They do not oppose, of course, the States' supplementing their own
incentives. But, if States do provide incentives, they should clearly explain
to the public why they are doing so.
The Role of the State
Successful siting of new HWMFs depends largely upon States' sharing respon-
sibility with the developer. The degree of support and assistance has, in the
past, varied from State to State. The States' attitudes toward ccnpensation and
incentives have ranged from being completely passive, to encouraging their use,
to requiring them of developers, to providing them directly. Now, however, many
States are enacting laws that establish systems for siting facilities. These
laws include creation of siting boards, public participation programs, and incen-
tives for the host cormunity.
There are several reasons why States may want to provide compensation and
incentives directly. It may be an inducement for developers to build facilities
and for the cormunity to accept them. Provision of compensation and incentives
by the State may resolve differences between developers and cormunities and
thus shorten the process of siting a facility. In States where home rule laws
are strong, the only way to site facilities may be for the State to provide
compensation and incentives. Finally, if the State, in addition to the developer,
provides compensation and incentives, it is less likely that they would appear as
unethical.
25
-------
There are, on the other hand, reasons why States should not provide ccnpensa-
tion and incentives. Developers nay consider such provision public interference
in the private sector. Seme people nay view State involvement as unfairly subsi-
dizing business. Others, particularly State hazardous waste management officials,
fear that these payments will establish a precedent for other public and private
facilities, even though HWMFs are, indeed, special cases. The possibility exists
that the State regulatory role could be undermined by paying compensation and
incentives, -even though they are paid 'to individuals and communities and not to,
the developers. Many State constitutions forbid long-term monetary payments,
and so special legislation nay have to be enacted every year to allow continuing
payments.
State Financing Methods
States fund compensation and incentives in three ways: from the general
fund; from fees or taxes on operators of facilities or generators of waste;
from grants or loans by Federal agencies. When States provide compensation
and incentives, they should consider placing the burden on consumers who buy
more products that generate hazardous waste by-products rather than consumers
generally. States may also wish to avoid subsidizing generators from out of
State who use the facility. These problems can be avoided by a tax or fee
on all HWMFs and by inter-State arrangements concerning compensation and ince—
centives, such as joint funding of compensation funds.
State Requirements for Payments by Facilities
States nay require compensation by developers. An agency or board that
issues permits may be authorized to include compensation among the conditions
necessary for approval of the permit. The compensation must generally be
26
-------
related to the impacts of the facility and meet a legal test of "reasonable-
ness." Any State requirement is likely to be controversial and should be
carefully evaluated before being imposed.
Binding Agreements
It is inportant to recipients that the premised compensation be legally
enforceable, particularly if it is to continue in the future. A fonral agree-
ment is also a way by which developers can demonstrate their good faith and
oontratment. -If possible-and appropriate, developers prefer that recipients
premise to support them or at least to refrain from opposing them.
Two points must be made about agreements concerning the siting of HWMFs.
First, arrangements between local governments and developers to support the
siting of such facilities are not binding on all residents of the coramunity.
Thus, for some adverse impacts, the developer will have to establish agree-
ments with individuals or groups. Even these agreements, however, may not
prevent certain factions in the group from opposing by legal means the sit-
ing of a facility. Second, local governments cannot contract away their
right to control HWMFs, such as through zoning, occupancy permits, and build-
ing permits. Thus, a developer will find it impossible to gain the promise
he seeks most: a guarantee that he can build and operate his facility.
27
-------
CONCLUSION
The solution to the successful siting of new HWMFs lies in developing and
testing safe approaches to manage hazardous waste and in providing information
to the public on these safe techniques to allay fears regarding health and the
environment. While some of the methods of informing the public discussed in
this document have not been tested for siting HWMFs, they have proved to be
successful in similar'.types of,activities. Because of individualized factors
regarding each facility (such as location, economic strength of the community,
and types and quantities of waste), various methods in varying ccnfoinations
can be adapted that will result in the siting of facilities that will serve
the ccnminity and industry alike.
28
------- |