Document 6gjV311NZe6yq0d2XymD1k6E

6*AP, F- h u,/rC?E rfftTS'is'* f/> v r- yz> ay l^Jew technologies are availablefor dealing with America's epidemic oftoxic waste. But using them effectively will require entirely new managerial approaches. f( ' A CridsL-SK - Restructuring Hazardous-Waste Controls in America BY BRUCE PIASECKI AND JERRY GRAYANDER HE image of America as a limitless reservoir ing. In fact, given our stubborn faith in the land as Tfor disposing of wastes has changed dra an ultimate sink, we might be among the last. matically since Love Canal. Each month Fifteen years before hazardous-waste problems brings more reports of the never-ending battlewetore publicly recognized in this country, several Eu contain leaking landfills, and with clockwork rerogpue an nations had evolved regulatory and mana larity news of toxic poisoning and groundwater con gerial systems that encourage alternatives to land tamination reinforces the public's distrust of land disposal. In 1973, Denmark established the Kom- disposal. munekemi facility in Nyborg, which now destroys Yet land disposal remains America's dominant over 90 percent of the nation's hazardous wastes. method of managing toxic waste. Secured landfills, This integrated treatment facility also recovers heat industrial lagoons, deep-well injection systems-- from its toxic-waste incinerators to supply Nyborg's each relies on America's time-worn trust in the re 18,000 residents with 35 percent of their heating silience of its soils. The Environmental Protection needs. West Germany has coordinated the construc Agency (EPA) reports that 57 percent of America's tion of 15 treatment centers that destroy the bulk of toxic wastes are now injected into deep wells, with the nation's worst wastes. Other European govern another 38 percent kept in leaking industrial lagoons ments, including those of Sweden, Austria, Finland, and surface storage tanks. A few firms have engi and the Netherlands, are now' following these early neered efforts to improve land disposal. But poli examples by minimizing access to dumping and re cymakers often express despair, and citizens remain quiring the use of recycling, incineration, and treat puzzled, over the prospects for adopting alternatives ment technologies. (See "A Grand Tour of Europe's before the end of this century. Hazardous-Waste Facilitiesby Bruce Piasecki and "We know we don't want our dumps expanded," Gary A. Davis, July 1984, page 20.) Europeans de says Keith Gowton, founder of the citizens' group stroy the same toxic solvents, dyes, and organics that Families United for a Safe Environment, "but we we dump into our soils and surface waters. can't say at town meetings or in the courts what else Once Americans acknowledge that there are prac might work." Similar statements echo through town tical alternatives to land disposal, a new series of halls from Philadelphia to Fairbanks. Yet Americans questions arises. Can we build facilities based on are not the first to investigate alternatives to dump European strategies that favor waste recycling and URL 03658 Toxic wastes originate from a variety of source*-- industrial, municipal, and individual. Researchers are often unsure how specific wastes are linked to par* ticular illnesses. However, they have no doubt that the growing amount of toxic wastes poses major health hazards to the American population. URL 03659 WHO PRODUCES HAZARDOUS WASTE: - L ; Electrical, gas and ' sanitary services ' and other: 4% r Machinery end electrical machinery: 7% / `Petroleum refining, primary :g snd fabricated s > metsls:8% Transportation . I equipment and : f motor freight {transport:% .- | Chemicals; 71%^. - treatment? Might we finance them with the same degree of government subsidy found in Europe? Is it feasible to operate U.S. waste-treatment centers on a European model of cooperation among govern ment, Industry, and the public? The political systems of Denmark, West Germany, and the other continental innovators differ signifi cantly from that of the United States. Not only do their socialistic institutions contrast sharply with the free-enterprise tradition of America'; they also have a long history of centralized decision making that often precludes the degree of legal access and appeal that Americans demand. Nevertheless, the European example offers one incontrovertible lesson: land dis posal of toxic wastes can be replaced by superior alternatives. The United States has had its own successes in solving pressing problems of environmental man agement. Faced with massive flooding, deteriorating urban wrater supplies, and mounting municipal sew age, this country evolved, over its first 200 years, a cooperative public-works program to solve these problems. Federal, state, and local governments co ordinated the construction of an infrastructure that includes dams, water mains, and sewers. Moreover, within the past 75 years, the agricultural extension service has been developed as a joint private-public venture to maintain the vitality of our farmlands. Both initiatives offer uniquely American models for responding to ubiquitous environmental threats-- models that could facilitate the transfer of European strategies for reducing, recycling, and treating toxic waste. A Tragedy of the Commons A willingness to conceive of the toxic-waste problem in a public-works context may prove the most im portant legacy of the European example, helping U.S. leaders see beyond their inherited institutional and ideological blinders. The various European ap proaches, while different in detail, have three pivora! factors in common: A willingness to stabilize a waste-treatment mar ket through comprehensive regulatory reforms, rather than through financial incentives that en courage individual changes in private business prac tice. A knack for cooperative financing and managing liabilities jointly between regional governments and private industries. A profound distrust of land disposal, despite en gineering advances in constructing and monitoring landfills and lagoons. These factors clash with some longstanding Amer ican biases. Perhaps the most crucial is the prejudice that favors upgrading existing technologies and re sists adopting foreign-based innovations. In less than a decade, the United States has poured millions of dollars into patching up dumps and improving land disposal techniques. In willful defiance of thermo dynamics and common sense, we have built up our dumps with precipitation caps, double liners, re straining walls, and collection systems for leaching wastes. Despite these technical reforms, the EPA es timates that we have less than 17 years of landfill capacity left in the continental United States. Only recently have we realized that the flaw is in our thinking, nor our machines. Managers first be came alert to the indirect results of environmental neglect through Garrett Hardin's popular "Tragedy of the Commons." By showing that the net benefit to the individual in adding cattle to the commons also represents a hidden cost to each of the other users, Hardin exposed the insidious logic of overuse. At the heart of our current approach to toxic wastes is timidity. Each individual's fear of new responses to toxic wastes--particularly to a plant slated to be <4 ocTotit.R m.; DIAGRAMS OMN:GR.APHICS Traditional mathods domi- nate disposal ol toxic westea in the United States. Many Europaan na* tions, by contrast, use modern technology to de atroy their wastes, and hance greatly reduce their health hazards. The U.S. must devise techniques for uaing these alternative dl*poaal methods. built nearby--together with a reliance on a familiar use of the land, leads to the present tragic costs to the commons. The fear is most forcefully evident in our communal failure to site safe detoxification fa cilities. With over a billion gallons of PCB-contaminated oil inside a variety of electrical components in this country, the need for pcb treatment of waste oils is clear. In fact, when Congress banned further pro duction of pcbs in 1977 and began monitoring their disposal, a number of companies designed chemical neutralization techniques. Sun Ohio Co. was first to market, with a device in a 40-foot truck that can reduce pcb contamination from 10,000 parts per million to less than 2 parts per million. The system uses metallic sodium to strip the chlorine from the pcbs and convert it to a form of common table salt. Acurex Corp., a builder of similar dechlorination trucks, boasts innovations that can even treat contaminated soils. Pleased by the timely emergence of these trucks, the EPA has granted interstate licenses and operating permits to their builders. However, even though these devices were ready to roll as early as 1980, the last five years have seen minimal use. From Massachusetts to Ne vada, town officials have ignored the EPA's assur ance^ that the systems are safe and have opted not to use them. Earlier this year, Environmental Services Co. (ENSCO) of Little Rock, Ark., built a portable rotary kiln that could reach temperatures high enough to incinerate PCB-contaminated soils beyond the 99.9999 percent efficiency required by law. The sys tem was successfully tested in Tampa on a non-PCB sludge, and the EPA has contracted to use it on pcbcontaminated soils in Jacksonville. But ENSCO ex ecutives fear that their multimillion-dollar invest ment might be booted into early retirement because of unfounded suspicions about the system's safety. Right now, citizens of Bloomington, Ind., are fighting over the best ways to use $64 million won in a consent decree against Westinghouse for con taminating six landfills with pcbs. The decree rep resents the largest toxic-waste settlement in history and requires that the money be spent to diminish risks to the public. To do this, the town has offered to zone public land for building a treatment center, and Westinghouse has agreed to provide technical assistance in setting one up. "But the effort has re mained in limbo for several years," notes Lynton I HOW HAZARDOUS WASTE IS DISPOSED OF: Land treatmentand v other: 2% Caldwell, father of the environmental impact state ment and a leading citizen of Bloomington. Because of local opposition to the proposed treatment center, Caldwell says, "There is now talk of simply covering the PCB-Iaden soils with plastic restrainers." Mayors often prefer delay over actions that cause contro versy among blocks of constituents. But when it comes to toxic contamination, short-term political compromise often denies the possibility of long-term managerial solutions. Whether the location is dioxin-stained Times Beach or the ribbon of developments stretching out from most cities, the core of the siting controversy remains the same. While the entire public shares in the benefits from a hazardous-waste treatment cen ter, residents near the center incur the risks. Yet each time an effort to move beyond land disposal is thwarted, each of us pays the cost, pcbs, for example, do not biodegrade; the carcinogen concentrates in fatty tissues as it moves up the food chain. The irony is that siting criteria often favor land disposal in insidious ways. In New York State, the Department of Environmental Conservation (DEC) published a set of 14 weighted criteria for evaluating sites for hazardous-waste treatment facilities. The criteria are designed to prevent the selection of sites that would contaminate groundwater and surface water. TECHNOLOGY RKVIEV 4J However, since there are considerable differences among the regions that generate waste, the DEC allows a committee of field investigators to adjust the weights according to local conditions. Under this guise, the tragedy of timidity resurfaces. Efforts to choose land-disposal sites have received the most lenient adjustments, while attempts to establish treatment and recycling facilities have faced con sistently stiffer resistance. This is not the result of a quirk but an atritudinal blindspot. The adjustments favor the maintenance costs of continued land dis posal over the new costs inherent in alternatives. The known, however inadequate, is easier to calculate and defend than "uncertain" innovations. Across the nation, similar discrepancies reign. The Internal Revenue Service, for example, precludes the use of municipal bonds to finance construction of toxic-waste recycling and treatment centers. This preference for land-disposal methods for treating waste cannot be explained only by the strength of the landfill lobbies. Despite the influence of the Na tional Solid Waste Management Association and the Chemical Manufacturers Association in Washing ton, the more fundamental fault is the nation's re fusal tjp acknowledge the tragedy to the commons. The Limits of Liability Americans traditionally overcome differences among entrenched positions by recourse to the courts. In the case of environmental hazards, citizen groups and government regulators have pursued legal bat tles with unprecedented singlemindedness, finding business liability to be their most powerful weapon. However, while this strategy is often the best means to a particular judicial end, it has been of limited use in shifting the nation beyond dumping. There are several reasons for this. No matter how many times astute lawyers win cases against landdisposal firms, the victories are not prescriptive. Li ability judgments may block specific cases of dump ing but do not promote safe alternatives. Chemical companies drained of their surplus capital from suits are seldom equipped to invest S25 million in new rotary-kiln incinerators. Waste handlers, justly fined in case after case, often walk a tightrope between spending so little that they achieve only marginal improvements and spending so much that their cap ital is exhausted. Indeed, bankruptcy threatens many of the larger land-disposal companies now repre sented by the National Solid Waste Management Association. Liability also fails to provide adequate and com prehensive compensation, for ultimately it can go only as deep as the pocket of the violator. Just the largest companies can afford to spend up to $30 million to completely clean-up each toxic-waste site. EPA's Superfund program, officially called CERCLA (the Comprehensive Environmental Response, Com pensation, and Liability Act), is designed to change this situation: the 1980 law provides EPA with the authority to finance the cleanup of 30 years of managerial mistakes. But whether this mechanism will encourage waste-treatment reform remains uncer tain: most of the CERCLA wastes recovered have merely been redrummed and shipped to other land fills. Of course, the threat of liability does encourage some significant reform. Companies such as 3M, Dow, and Kodak are recycling and incinerating their worst wastes, even though federal rules do not yet require that they do so. "Pollution prevention pays," says Don Huisingh, an environmental analyst at North Carolina State University at Raleigh, "but the trick is making most American companies click onto the concept." Once Americans acknowledge that legal tools are a necessary but insufficient force in a nation's search for superior waste management, the European ex ample assumes a heightened relevance. Western Eu rope made its shift toward treatment with minimal legal costs. Denmark and West Germany struck their critical agreements without recourse to the higher courts. The difference centers on the approach to rule making. Bargaining over Risks In the United States, regulatory rule making involves at least four basic steps. First, before the EPA pro poses a rule, each interest group lobbies informally for its position. As in the recent debates over ocean incineration of toxic waste, citizens, industry, and government are pitted against one another early in an atmosphere of mutual distrust. Second, the EPA publishes its announced notice of proposed rules (anprs) and holds public hearings to enable the public to respond. Opposition to the proposed regulations is often fierce and entrenched within the first few days. In the ocean-incineration ** October :?s: URL 03661 j I T Stvtral European nation* try to destroy thafr toxic wastes totally. Most of the Industrial wastes produced In the West German stats of Bavaria are Incinerated in facilities such as the one In Ebenhausen. Left: A crane operator feeds liquid end solid wastes to the fur> nance. Before wastewater from the plant can be released Into the Pear River, it must keep guppies alive (inset). Hazardous wastes found In long-abandoned dump sites keep cleanup crews busy. Above: Illegally buried drums at a site near Swartz Creek, Mich. con. talned cyanide, PCBs, acids, and pesticides, among other toxins. Ironl* calfy, most of tho toxic wastes removed through tho EPA's Superfund pro gram have been redrummed and buriad elsewhere. TECHNOLOGY REVIEW 4~ .99C01U0 Toxic-Waste Victims ' - ^ ' BY FRANK P. GRAD '."/ our society has not difficult to predict how many early eighties found 4,802 I decided how to dis- people will ultimately be af- such sites nationwide, while a pose of hazardous fected. ; '''1; ; government-sponsored study waste harmlessly* and we do TheVictims of exposure to . found 50,000. And more sites not quite know how to deal toxic waste are in the same ' are being discovered regu with injuries from exposure position'today as victims of - larly. to it. The two sets of issues' .exposure to asbestos about'- ' . The public's exposure to are related, and their resolu 30 years ago: there were few' toxic waste also depends on tion is hindered by uncertain acknowledged cases of asbes^' - the density ofpopulation near ties in both technology and " tos-relate.d disease because disposal sites, and on the path law. If a safe and technolog many'of the'thousands of . of exposure. Unfortunately^ ically and economically effi people who had been exposed toxic waste percolates cient way to dispose of toxic showed no symptoms. Indus through groundwater slowly, waste were'established, the le try and insurers asserted that and its movement under gal problems would eventu .there was no problem. , ground is difficult to track. ally disappear, and lawyers, i '.Illness from (exposure to . V We can drill test wells to industry and insurance com toxic waste is'even harder to- ; monitor this movement, but panies would no longer have deal with because it is more not without risking further to worry about victim com-" variegated and diffuse. People contamination. Monitoring pensarion. Because no such are mainly exposed to asbes: ' the health of the population system of disposal is about to tos'in the workplace, and the itself is just as troublesome, emerge, the problem will con ; substance causes a small because many people have al- tinue to trouble industry, in- -number'of recognizable dis-' ready been exposed to high surers, and lawyers for eases' such as asbestosis, that concentrations of chemicals plaintiffs and defendants. can be only attributed to it.'' in industry or from nature. Victim compensation has Exposures to hazardous In sum, we know that chou- remained a.public issue since waste, on the other hand, are ;. sands of people are exposed Congress debated the Super ubiquitous, and the variety of to hazardous waste, but we fund jaw in 1980. Bur despite substahees involved makes it cannot assess its effects until mounting evidence of the difficult'io establish the spe we have better data on ex health dangers from toxic cific causes of disease. Often posure and its relationship to waste, very few victims have we do not know to what ex illness. Our experience with . brought tlaims, and even tent illness is dose-related, or ; workplace exposure to haz fewer lawsuits have gone ' related .to the synergistic ef-. ardous chemicals suggests from claim to judgment. This , fects of many substances from that many cause latent ill has ted industry and insurers a single disposal site. nesses, including cancer, and to'assert that there is no prob To estimate the size of die mutagenic effects that will lem, or that proponents of exposed population, we must emerge in persons as yet un vicrim-compensarion legisla know how many disposal born. tion greatly exaggerate it. Un sites exist. But experts cannot Nevertheless, alleged vic fortunately, the problem is ; agree on'that number. An in- tims are beginning to bring enormous, even 'though it is v dustry-sponsored study in the claims. These suits have a number of common elements: They often involve multiple plaintiffs, aim at multiple de fendants, and seek large dam ages. In Kennedy v. Scientific Inc., in New Jersey, for ex ample, 95 plaintiffs are suing 667 defendants for millions of dollars. In Johnson v. E.l. du Pont de Nemours & Co., another New Jersey case, 22 plaintiffs have filed a class ac- URL 03663 hearings, experts representing various groups testi fied about anticipated damages to the fishing indus try, coastal recreation, arid tourism. Jack Ravan, EPA assistant administrator for water, called for an entirely new research protocol because the ANPR re ceived such severe criticism from both industrial and environmental groups. At stage three, the proposed regulatory package reaches the desk of the top government policymaker. By this stage, most of the public comments in the docket are virtually written in blood. Finally, after trying to accommodate as many of these requests as possible, the administrator establishes the agency's regulations. But once the new rules are published in the Federal Register, any of several entrenched groups may sue the agency for neglectful disobedi ence of their expressed needs in the public docket, and the vicious cycle continues in the courts. This rule-making process has a long and distin guished career in the United States and probably OCTOEER !9si tion on behalf of some 80 homeowners who live near the well-known Price's land fill. In] Harris County, Tex., 39 plaintiffs are pitted against 26 companies and allege that hundreds of thousands of people who live near certain dumpsites could also be plaintiffs. In Anderson v. Cra~ yovac in Woburn, Mass., some 20 plaintiffs maintain 4 V- Local resident* gather at Michigan's abandoned Swartz Creek dump. Gain* ing compensation for dam* ages from such dumps Is legally complex. that wellwater pollution caused by three companies has led to cases of childhood leukemia. Most of the pending suits will never coroe to trial or judgment because the parties will settle out of court. Legal uncertainties make plaintiffs willing to settle for less than they might have received rather than risk dismissal of their case. Defendants--gen erally large firms--are not only afraid of large verdicts against their deep pockets. They also want to avoid es tablishing legal .precedents chat would make it easier for other victims to prove caus. ation and joint liability. In the only case that has gone to judgment, a New Jer sey jury awarded about $16 million in damages against the owners of the Jackson municipal landfill, from which toxic wastes had alleg edly entered nearby residents' water supply. in that case, Ayers v. Township of Jackson, 339 residents sued the township, alleging nuisance and im proper and negligent conduct. The damages awarded were for impairment of quality of life, emotional distress, and the costs of medical surveil lance for cancer. The New Jersey Supreme Court, on June 5, 1985, affirmed the judgment for $5.6 million for impairment of qualiry of life, but did not allow the damages for emotional distress-- barred in actions against townships under the New Jer sey Torts Claims Act--and for medical surveillance, con sidering these too speculative. Further appeals are likely. Causation has emerged as a primary issue in injuries stemming from hazardous wastes. Although we know that exposure to certain kinds of toxic chemicals will cause health .problems, proving the cause of personal injuries re quires more than showing statistically that so much ex posure will give rise to so many injuries. To recover damages against Jones Dis posal Corp., Plaintiff Smith must show that his chloracne or cancer was caused, at least in part, by the particular toxic waste that Jones disposed of at a site. The mere fact that the Smiths live near the site is not enough unless they can show the path of exposure and a definite causal relation ship between the exposure, and the injury. - Another recurring issue In toxic-waste litigation is de ciding which defendant is re sponsible. Toxic-waste .sites often change hands fre quently, and firms deposit a variety of chemical wastes in each site. Even if all possible defendants are made parties to the litigation, the plaintiff must show that each had Continued on p. SO . URL 03664 represents the best overall approach in many situa tions. Yet the level of controversy tends to divert attention from establishing a comprehensive pro gram for managing wastes. For example, while high-temperature incineration of wastes is a step in the right direction, incineration at sea may be the wrong choice. Every time the EPA permits a new ocean-going incinerator ro operate, it will severely delay efforts to reduce waste at the source, to recycle wastes regionally, and to incinerate wastes near their site of generation. Nevertheless, now that the battle over ocean incineration has be gun, all the interested parties feel impelled to pursue it to a final decision. IndustryJias already spent more than $150 million to build ocean vessels for its test burns, while a single citizen group, the Gulf Coast Coalition for Public Health, spent $50,000 in fiscal 1984 alone to fight these fleets. The stakes are simply too high for either group to back off. In many ways, toxic-waste rule making resembles a Chinese finger- TECHNOLOGY REVIEW 49 URL U3bt>' vgfef- COMPENSATING < TOXIC-WASTE VICTIMS - Continuedfrom p. 49 some share in causing the ill ferent damages from a 23- ness before damages can be year-old homemaker of a 5- apportioned. * .v.` : - year-old child. Even so, the .The obstacles are even number of such cases, what ~ greater when the illness has a ever the joinder device used, ' long latency period, In' the 20 will cast an enormous burden \or 30 years between exposure on the courts, with uncertain : and illness, the'plaintiff will outcomes following lengthy .have suffered other expo delays. ' - sures, and the waste site will ; have changed ownership and No-Fault Compensation uses, greatly-increasing the difficulty of proving causa- .Three years ago, the study tion. In 12 states,'moreover, group created under Section the statute of limitations pro- 301(e) of the Superfund leg vides that thc period when a islation called for a no-fault lawsuit may be started begins compensation system giving to run at the time of exposure. victims compensation for In one. jurisdiction with a medical expenses and for the . three-year statute of limita . full amount of their lost earn tions, plaintiffs who discover ings, up to $3,000 per month -illnesses 25 years after expo {amounting to the equivalent sure will Have'lost the right to of $36,000 per year before .sue 22 years before. ; taxes). Under such a system, . Hazardous-waste injuries, plaintiffs could claim com like" other so-called toxic pensation far more easily forts, require an array of med . than in court actions, because ical, toxicological, and other proof of causation would be sophisticated and expensive eased considerably. The plan expert witnesses. The cost would not provide for dam may be prohibitive unless the . ages for pain and suffering or plaintiff is very wealthy or the punitive damages. But plain potential damages are so' tiffs who received awards large that an attorney is will could also bring full law ing to work for a contingent suits--although they would fee. One solution is for several have to reimburse the plan plaintiffs who have suffered out of any damages they re injuries from the same source covered. to join their lawsuits against The compensation plan the same responsible party, or would draw on an expanded for a large number of plain Superfund, which now fi tiffs to bring a class action. nances the cleanup of waste However, the courts have sites with money from a fed been reluctant to allow class eral tax on crude oil and actions because even if all chemical feedstocks. The plaintiffs are exposed to the fund would recover some of same disposal site, a 40-year- the money it paid out by old professional will have dif bringing its own suits against the difficulties of proving a toxic-waste claim. Plaintiffs' lawyers do not object to setting up a com pensation remedy for small claims--under $50,000 or $100,000--which they do the firms 'responsible for in not want to handle anyway. juries from waste sites. / For the large claims, they see ? - Congress has discussed the existing common-law court study group's recommenda actions as providing the best tions for the last two years, chance to recover large dam and several bills have been in ages, including punitive dam troduced. Some incorporate the compensation remedy, while others create a new fed eral right to sue for toxicwaste injuries. Unlike other tort actions for nuisance, tres pass, or negligence, which are brought in state courts, the new federal cause of action would apply only in the fed eral courts. Although hear ings were held on some of the bills, no further legislative ac tion is expected. California and Minnesota have enacted laws for com pensating the victims of toxic waste. However, the Minne sota law merely creates a new cause of.action without eas ing the problem of proving causation. And while Califor ages and those for pain and suffering. Of course, the law yers would then be able to collect large contingent fees. Insurance firms share in dustry's point of view, with one added concern: they be lieve that in the absence of claims experience for hazard ous waste injuries they cannot set insurance premiums for an efficient compensation sys tem. Apparently, both indus try and insurers would accept a compensation remedy if the government were willing to pay out of general public funds--which is what the as bestos industry proposed after the Johns Mansville bankruptcy. It seems that we will not nia has actually created a lim ited-compensation remedy, it applies only in cases where there is no available defend ant. Though the statutes have been on the books for almost two years, no victims have brought cases under either. provide a humane, economi cally sound, and prompt legal remedy for victims of expo sure to toxic waste until the number of the cases reaches substantial proportions. Thar will happen soon enough. Potential industrial defend ants have opposed all pro posals to make compensation easier to obtain. They argue that such proposals are pre mature because the courts can handle the few cases that have FRANK P. GRAD is Cham berlain Professor of Legisla tion and director of the Legislative Drafting Research Fund at Columbia Law School. Grad was a member been brought under the or dinary rules of the common law of torts. Of course, these are the very defendants that have an interest in preserving of the study group on inctim compensation established un der Section 301(e) of the Su perfund law, and he wrote the group's report. la OCTO&FR 19M 1 UfiL 03666 The EPA could team up citizens and industries to select better ways of managing wastes. box toy: the harder you attempt to pull your finger and dumping toxic wastes. from its noose, the tighter the clamp becomes. Yet EPA's predicament is far more complex than > European rule making for toxic wastes differs these critics acknowledge. The agency's many broad from the U.S. model in important ways. Disagree mandates impel it, in the face of recent cutbacks in ments among interest groups are arbitrated rather funds and technical and legal staff, to design regu than adjudicated, with the various groups openly latory programs capable of "self-enforcement." discussing the options before the process of pro These programs are designed to achieve broad com mulgating specific rules begins. Thus, both citizens pliance with a minimum of EPA-initiated suits and and industry identify preferred managerial options administrative actions. Toxic-waste programs de j before they have reason to disagree in public, and veloped by the Reagan administration are therefore ` hence lessen the burden of proof placed on the fed- diluted from the start, and this informal self-enforce ! eral government to defend its regulations. In con ment model has not been very effective. According trast, the U.S. system forces polarization among to a recent report by the General Accounting Office, j experts called to testify for each side--especially con- only 22 percent of the companies that manage Amer ; cerning legal and technical outcomes and among the ica's most active hazardous-waste facilities comply i lawyers representing various groups. According to with EPA regulations. Sheila Jasanoff, an attorney doing research at Cor The EPA could restore public confidence by in nell University's Program in Science, Technology, stituting a formal process whereby citizens and in and Society, U.S. law restricts the flexibility of the dustries team up to select superior methods of ruJe-making process by rigorously defining the gov managing waste. Citizens might well be willing to ernmental role and delineating agencies' decision bargain over sites for recycling and treatment cen making functions. ters, with compensation for their communities, if Is it possible to adapt the European strategy to they were assured that government and industry American needs? Establishing a formal process by were unified in their efforts to phase out land dis which the EPA acts as an arbitrator before publish posal. Moreover, innovative industries that wish to ing its rules would be an important first step. This reduce their liabilities from land disposal might agree is the announced preference of the new EPA admin to regulations requiring waste destruction and out istrator. "When I was in the hazardous-waste pro lawing sloppy handlers. gram," Lee Thomas has said recently, "we talked about alternatives to litigation for Superfund clean- The U.S. Search for Solutions j ups--concepts like mediation and arbitration." The EPA has so far used these techniques, which atrempt Several recent U.S. examples show the feasibility of to secure government-industry memos of under- adopting a European approach to managing toxic j standing without threats of bankruptcy or lawsuits, waste. Under Governor Jerry Brown, California in \ only with great reluctance. But Thomas has indicated itiated an aggressive program to phase out land dis ) that he plans to apply these strategies to other EPA posal of cyanides, strong acids, pcb liquids, and all efforts in an attempt to formalize the flow of infor- halogenated organics. A task force that included rep mation from all groups, and to prevent the possi- resentatives from Dow Chemical, Friends of the ; bility of sweetheart deals favoring one constituency. Earth, and various academic institutions devised a In particular, Thomas intends to employ European schedule for this phaseout. California also provides \ arbitration techniques to upgrade the standards for low-interest loans for builders of integrated treat | toxic-waste storage facilities, and to encourage con- ment centers through its Pollution Control Financing < struction of a new generation of treatment plants. Authority. And the state has expanded the California Critics of the EPA's regulatory process who fee! Waste Exchange, a clearinghouse operated by the that the agency already bargains over risks too often Department of Health that helps waste generators will undoubtedly oppose Thomas. For them, the EPA identify recycling opportunities. is debilitated by compromise, captured by special Major firms such as Dow, 3M, and DuPont al interests, and subjected to severe business pressures. ready treat some of their own waste on site. But To these critics, formalizing a means of compromise many links must be forged to create a comprehensive will only reinforce the existing system of producing w'aste-disposal system. Few firms have the capability TECHNOLOGY REVIEW 51 Tom-waste extension agents could help firms comply with regulations. im ^ of large chemical companies to process the poisons they produce, and even fewer local authorities know that treatment plants are practical or desirable. The European example shows that utilities for treating waste must be set up to coordinate govern ment requirements, regional needs, advanced tech nologies, and industrial skills in a public-private partnership. U.S. electric utilities, especially the Ten nessee Valley Authority (TVA), according to Gary A. Davis, an attorney and chemical engineer, are American precedents for the types of agencies that can invest capital to fulfill public objectives. Many producers of hazardous waste also have im mediate needs for information about how to deal with it. Amendments passed last November consid erably broaden the scope of the Resource Conser vation and Recovery Act, closing a longstanding loophole that exempted small generators of hazard ous materials from regulation. The EPA will now have jurisdiction over 795,000 more companies by 1986--including many gas stations, dry cleaners, textile industries, small paint and leather manufac turers, and electroplating shops. Yet these small firms will have trouble complying with the new law. Their predicament is similar to that confronting farmers early rhis century. Agricultural techniques were clearly failing from overuse and inexpert soil management, but thousands of farmers lacked the information they needed to upgrade their equipment and improve the handling of their land. Congress responded by passing the Smith-Lever Act of 1914, which created the Agricultural Extension Program. The act linked the federal Department of Agriculture with state land-grant universities and county gov ernments, and it put county extension agents into the field to educate farmers about new techniques. A toxic-waste extension service could similarly help America's small and middle-sized generators. Extension agents could secure voluntary compliance with regulations and help companies avoid future liability from wastes. The service might first provide selected waste-handling firms--those with the most reliable equipment and best record--with informa tion on how to set up a service to collect the newly regulated wastes from small generators. The Euro pean example shows that such collection partner ships are quite successful on a regional basis. The Danes, for instance, even collect household poisons, spent medicines, and old batteries at transfer stations in an all-out effort to keep hazardous materials from entering their drinking water. The extension program could serve as an arm of major universities, channeling the skills and research of faculty to the pressing needs of business. The list of clients for such information across the United States is growing, and includes major utilities, local and regional hospitals, and industrial parks. A pilot hazardous-waste extension service is al ready under way at the Georgia Institute of Tech nology. A $75,000, two-person operation in its first year, the service helps businesses employing up to 50 people to develop individual plans for handling toxic wastes. According to Kevin Kamperman, the staffer who makes on-site visits, the program helped "55 plants the first year, with over 400 barrels of wastes receiving proper analysis and thereby better treatment." The service, whose funding will rise above $200,000 in its second year, is confidential, with no threat of EPA involvement. Moreover, com pliance with the recommendations is voluntary. This pilot program suggests that confidential con sultation, custom services, and a process that enables the small firm to develop a capability to manage its own waste are important ingredients for success. There is no reason why we cannot set up similar programs across the country based on this experi ence. Such an effort would probably fare best if co ordinated by the federal government, for without it the tragedy of land disposal will continue. Of course, a toxic-waste extension service is merely a transitional device. The search for more pervasive solutions must continue. Waste reduction, recyling, and treatment are fundamental ideas whose time has come. Yet at a deeper level, they also are transitional. Ultimately Americans must revise their view of nature itself. America's 200-year-old myth of the unending resilience of its soils will die only with great difficulty, as this last decade of trauma over toxic wastes forcefully attests. Gaining a more robust understanding of nature's limited capacity to assimilate waste takes time, and a new view of hu manity's place in the global commons. BRUCE PlASECKI is the author of Beyond Dumping: New Strategies for Controlling Toxic Contamination (Greenwood Press. 1984} and president of the American Hazard Contra! Group, a consulting group. He is currently a visiting scholar at Cornell University's Program in Science, Technology and Society. JERRY GRAVANDER, Associate Dean of Liberal Studies at Clarkson University, is a philosopher of science who has worked on technology-assessment projects for KASA and the Energy Research and Development Administration.