A Model Siting Process and the Role of Lawyers

John A.S. McGlennon

John A.S. McGlennon is President, ERM-McGlennon Associates in Boston, Massachusetts.

Between the passage of the Resource Conservation and Recovery Act (RCRA) in 1976 and 1981, no new hazardous waste facilities had been sited in the United States. Public reaction to Love Canal and the Valley of the Drums, perceptions of health and environmental risks, and the resulting "not in my backyard" syndrome contributed to the construction freeze. The same concerns are being expressed today, but I feel that we, as a society, are now taking a more national and responsible view of hazardous wastes and recognizing our ability to deal with the problems of waste management and disposal. The problems are not technical. I sincerely believe that we have the technological capability to manage hazardous waste in a way that protects public health and the environment. The problems are social and political, and therefore the focus of my talk.

I would like to begin with a discussion of the concerns most often raised by citizen groups when a facility has been proposed for their community, and then identify the elements of the siting process that have led to the successful siting of new facilities.

The concern most consistently expressed, and the first to be addressed in a responsible siting process, is whether there is a genuine need for a facility. Many jurisdictions in the United States, including the Commonwealth of Massachusetts, do not address the need issue in their siting legislation. This is a serious oversight. The public must know that there is, in fact, a need for a proposed facility, that volumes of waste are generated within the state and not safely handled, that a number of large companies and their employees are affected, and that it is in the best interest of the community and the state to solve the problem.

A second concern often raised is where the waste will come from. Invariably, the community to be affected by a proposed facility will want the waste sources to be local. A great deal of community resistance can be expected when large regional facilities designed to treat waste from broad reaches of the country are contemplated.

Most communities also want to know what the potential effects on public health will be. The environmental and health effects assessment and evaluation must answer this question if community opposition is to be minimized.

The transportation routes to and from the facility, the number of trucks to be travelling local roads, hours of heavy traffic, and other transportation questions are also raised. In virtually every community surveyed regarding its concerns about hazardous waste facilities, the transportation issues ranked on the same high level as issues of public health effects. Despite this fact, facility developers usually underrate transportation issues.

Communities also want information on the potential impact on real estate values near and adjacent to the facility, and on public access to the facility and public monitoring of the records of operation.

Citizen groups often inquire whether the state can be trusted to enforce adequately applicable state and federal regulations. An almost universal lack of confidence in the states' ability and willingness to enforce regulations at a proposed facility prompts communities to seek alternative mechanisms to ensure safe operation.

Compensation to the host community is a final concern raised.¹ An increase in tax revenue is not sufficient to meet this challenge. Public works and services are likely targets for negotiating a siting agreement.

We have seen an evolution in siting procedures since 1978. After the passage of RCRA and the subsequent attention given to the hazardous waste dilemma, most state legislature, with the exception of a few in the South, introduced new hazardous waste management legislation. Much of that legislation has not been as effective as it was hoped, however, and these same legislatures are now considering revisions to their existing siting statutes.

For example, the Massachusetts siting process did not work as the Commonwealth thought it would. Recently, a group of industry, citizen, and government representatives met under the auspices of the New England Council to evaluate Massachusetts's siting procedures. The Massachusetts Siting Congress emerged from this effort. As concerned citizens with a vested interest in the smooth operation of the state siting process, not as a legislative body, we are making recommendations to appropriate state bodies to improve the siting process. We have examined public participation, new site identification, legal constraints, enforcement problems, and other factors. At our second meeting, we began to formulate a course of action that will be incorporated into recommendations to the governor. [15 ELR 10240] This informal council may prove to be an effective means of revising a state siting process that is not functioning as intended.

In states where new siting procedures seem to be working, one can identify several generic steps in their siting processes. The first is the conduct of a needs assessment. States analyze the amount of waste generated and the corresponding need for new facilities. They often establish formal site selection criteria, either specifically in the siting statute or sometimes through appropriate state agency regulation. The site selection process usually includes the appointment of a state siting board. Also required are environmental assessments evaluating legal and health factors and relevant socio-economic data. The state may also specify a contractor selection process. Under some statutes, a contractor may initiate the process by filing a proposal to build a facility, while in others the siting board selects the appropriate contractor. Then the usual state licensing procedure follows, with review of the application, the facility design, the operation plan, and the safety and monitoring plans.

The preliminary steps just described are unique to the siting and licensing of hazardous waste facilities. In Louisiana and a few other states where no special hazardous waste legislation has been enacted, contractors need only follow the usual industrial siting procedure, and therefore escape any special preliminary review. If a state has adopted a new siting procedure, however, at least some of these steps are required.

State legislatures must confront several difficult issues when designing their siting procedures. One is the selection of a hazardous waste site. The state can either develop a criteria-screening exercise to evaluate and eliminate inferior sites, leaving only those termed "above the acceptable environmental threshold" for consideration by the siting board, or can instead allow the contractor to identify both need and potential sites. In this second approach, the contractor initiates the selection process by taking an option on a suitable parcel of land, preparing the permit application, and spending at least a year defending his choice.

State legislatures and siting boards must also decide the means of selecting a contractor. In some jurisdictions, the state manages the process. The siting board sends a Request for Proposal (RFP), containing a description of the project and outline of the selection criteria, to all waste management companies. Any contractor wishing to submit a bid on the project may then do so. In other states, the contractor is self-selected; the contractor determines the market for a facility, chooses the site, and files an application for a siting permit.

A determination of whether to preempt local zoning authority also must be made. When a state legislator votes to override local land use authority in order to facilitate the siting of a hazardous waste project, that legislator must recognize that the proposed facility may end up in his or her district, and may signal the end to a glorious political career. As will become clear later, however, the authority to preempt can be a valuable tool in gaining a reluctant community's participation.

Finally, the legislature must decide what size and type of facility should be sited. A state siting process can, by its structure, encourage the location of a single large, integrated facility capable of treating wastes from the entire region with an incinerator, landfill, chemical treatment plant, and solvent reprocessing and solidification units. Or the process can encourage the siting of several small, highly refined, single function facilities.

I have developed a model siting process to address these questions and, I believe, increase the potential for successfully siting a new facility. It is not a formula for guaranteed success, not a panacea, but its elements have recently led to the efficient and sensible siting of well-managed, safe facilities.

The importance of the need issue to those concerned about a potential facility siting has already been established. The public must be satisfied that need does exist; thus, the first task performed should be a credible waste inventory. Armed with accurate factual data, the state and potential operator can justify their efforts to site a new facility.

It is also essential to institute a program to educate, and to provide the public with information about hazardous waste: what is it, where does it come from, why are treatment facilities needed, and what are the real health and environmental impacts? Unfortunately, when appropriations for state siting boards are cut, the public information program is usually the first to go.

A state-managed site selection process with criteria for state screening is also essential. The public should be involved in establishing the criteria. The process adopted by Massachusetts and other states, in which contractors decide, on the basis of independent market surveys, when and where they want to build a facility, take an option on a piece of land, and then submit an application for a permit, is no longer acceptable.

A state-managed contractor selection process providing for participation of the host community goes hand-in-hand. Just as sites should not be contractor-selected, contractors should not be self-selected. The host community should have representation on a state contractor selection committee responsible for reviewing all site proposals. The community must be involved from the beginning to help select the most capable operator and manager. It is essential that the state manage the entire selection process from needs assessment and site selection through distribution of an RFP and selecting a contractor.

State assistance grants to host communities are strongly suggested. It is unreasonable to expect a community to raise the funds necessary to secure competent technical assistance from its own tax levy. The state must provide resources to enable the community to evaluate effectively the environmental and health impact assessments of the proposed facility.

A mechanism should be established for state override of local zoning restrictions. It needn't always be exercised, but if the state has the authority to override local zoning decisions, the community is on notice that its participation in the siting process depends on its own fairness and objectivity.

Negotiated siting agreements are now a recognized part of the siting process in most states. The most complete siting agreement that I have seen was negotiated in Last Chance, Colorado. The contractor is expected to negotiate an agreement that addresses transportation issues, facility operation, public monitoring and access to data, and compensation to the host community. Siting agreements have successfully resolved a variety of important conflicts and are now so recognized and accepted that a siting plan without express provisions for siting agreements is likely to fail.

[15 ELR 10241]

A permanent monitoring committee composed of the host community residents is the final element in the model siting process.

There are some who suggest that state siting procedures are not working. Operators claim that public opposition is so widespread and state procedures so cumbersome that it is impossible to site a new hazardous waste facility. Yet, many new facilities in the United States and Canada have been sited recently and now are licensed.

In Louisiana, the IT Corporation project has not yet broken ground, but, after a number of appeals, an operating permit has been issued. Dow Chemical has opened a new on-site facility in Midland, Michigan. The SCA incinerator in Chicago has been newly licensed under the complicated Illinois siting process, and even has clearance to burn PCBs. In Providence, Rhode Island, a commercial off-site facility at the Antonelli Plating Company was licensed under a new siting law requiring a negotiated siting agreement. BFI was successful in licensing a facility in Last Chance, Colorado. Florida also has licensed a new solvent reprocessing facility. In Quebec, Canada, a very large solidification facility has been opened by Stablex Corporation, and two other Canadian facilities are far into the process, having had sites identified, contractors selected, and approval received by provincial siting boards.

The model process that I have just described to you is most like the processes used in Alberta, British Columbia, and Minnesota. I believe that the Minnesota process is a good one and will prove to be effective. It is taking longer to implement and costing more than was expected, but I am convinced that it is a sound and workable process.

In Alberta, after an extensive criteria-screening exercise, 16 public hearings, and 75 informational meetings, three sites for a large integrated facility were declared to be "above the acceptable environmental threshold." Borings then had to be made to gather additional geological data for the final site assessment. Two communities held referenda to allow the provincial government to drill at the sites. In both communities, over 75 percent of the residents voted in favor of the facility. The Alberta process is working! There have been no successful referenda in the United States, but I contend that if similar siting procedures are instituted, they are possible.

Many contractors and operators are hostile toward the American public, claiming that their opposition to new sitings is ill-motivated. I disagree. The problem lies not with the public, but with the siting process that we, the industry, have designed. When modified to meet better the concerns of the public, these processes will lead to the successful siting of new facilities, just as they have in Canada.

I will close by discussing the role of lawyers in siting a hazardous waste facility. Although I would have it otherwise, lawyers will inevitably be involved in any attempt to site a new facility. Their participation is unavoidable in the United States, usually representing the proposed host community or the operator.

Regardless of which party is represented, the first duty of an attorney involved in a siting attempt is to ensure that the process is equitable. It must not only be a fair one, but it must be perceived to be fair by the host community. The lawyer must also ensure that the process is legal. The community's representative must protect the public interest, and if the facility is sited, the lawyer must see that the community cuts the best possible deal. The real strength of a community's representation is in preventing a siting where the process is not legal or equitable, or where the siting agreement does not sufficiently protect the community's interest.

I would like to share with you my experience in dealing with attorneys on two separate cases. In both examples, my company was working with an operator to site a new facility, and we were facing opposition from the host community and their representatives.

My experience at the IT project in Warren, Massachusetts was very positive. I worked with attorney Michael Last (who is on this afternoon's program), and we discovered that the relationship between the developer and community's lawyers does not have to be adversarial. In fact, where it was not, the interests of the community were better served. I have not discussed this with Mr. Last, but I believe the atmosphere in Warren enhanced our ability to communicate the community's concerns to IT, and changed the complexion of the project. Because the attorneys worked together, I believe that IT has been more responsible and has done some things differently than would otherwise have been the case.

My involvement in an unsuccessful siting attempt was not nearly as constructive. Before selecting an attorney, the community required a commitment to oppose the facility in any way possible. Lawsuits were filed on every aspect of the siting law. Every decision made by the state siting board was appealed. The constitutionality of the state's preemption of local zoning authority was challenged. All court actions were unsuccessful, but SRS eventually withdrew its application, with a cost to the developer of approximately $500,000. Of course, the attorney had a little help — while I was testifying that the contractor was a great manager and that this was going to be the best operated facility ever sited in the United States, his facility in New Jersey blew up. Everyone gets a free one, but when there was a similar accident at one of his other facilities a month later, we had no choice but to withdraw the application!

Lawyers can play a constructive role in the siting process. Positions do not need to be adversarial, and the lawyer who facilitates the process does so to the advantage of the host community and society as a whole.

Discussion

PARTICIPANT: What is "community" for the purpose of your model siting process, and what body should represent the "community's interest"?

McGLENNON: First of all, the community is not limited to the town's borders, but might include a group of towns. In Massachusetts, we have identified the host community and those abutting it as "the community." Second, a broader representation than that reflected by elected officials is necessary for adequate public participation. The town council or equivalent body should appoint a local action committee or liaison group representative of the whole public interest. It might include, for instance, university professors, community people, waste generators, local environmental groups, the League of Women Voters, the Chamber of Commerce, and representatives from neighboring communities.

[15 ELR 10242]

PARTICIPANT: Of course you can't overstructure the appointment process for this committee, because the moment it is determined who appropriately represents the public interest, those excluded will come forward in protest and the committee will never get to its business.

JOSE URANGA: If, in your model, the state is given the power to preempt and reject any unpopular decisions made by the locality, why should the community participate in this elaborate process, and what is the community's bargaining strength? It appears to me that discussion of citizen committees and siting agreements is pointless if, once a site is chosen, the state can impose its wishes regardless of any opposition, valid or not, raised by the community.

McGLENNON: The community knows that the state can preempt, but that is not to say that the state will do so. The incentive for community involvement is that the facility can be constructed and operated to a certain extent as the community specifies. To the degree that the community participates with the operator in the siting process, details like transportation routes, hours of operation and hauling, placement or extension of buffer zones, public access and monitoring of the activity, and other items can be negotiated. If the community merely throws up its hands and refuses to have anything to do with the project, it leaves the imposition and negotiation of terms to the state. It seems to me that it is in the community's best interest to determine its own destiny.

NICHOLAS ROBINSON: How does your proposed state assistance grant program operate, and how are funds dispersed? Does the siting board, local committee, or existing public agency receive the funds?

McGLENNON: Public assistance grants are specifically provided for in the siting process. In most states, the appropriation is made to the state siting board, which then approves individual grant requests from the localities. Grant amounts are usually between $15,000 and $30,000. The community presents a budget, and the siting board releases the funds a little at a time. In some jurisdictions, the community assistance grant fund is reimbursed through the licensing fees paid by the contractor, so that, depending on the number of applications in the state process, $250,000 or $300,000 might be available to the communities at any one time.

1. Mr. Tarlock used the term "bribe" when he spoke of compensation. There are distinguishable meanings between compensation and bribe, and I prefer to refer to the exchange between an operator and host community as compensation. The community is actually being compensated for inconvience or risk posed by the facility.