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 ------- |