Hazardous Waste and Bankruptcy: Confronting the Unasked Questions
By David H. Topol
INTRODUCTION
The standard of living of all Americans is enhanced by industrial and economic expansion. At the same time, economic and industrial growth results in the generation, consumption and release of tons of toxic chemicals each year. Many manufacturing processes generate hazardous wastes.
There are two categories of hazardous waste. The first category includes wastes that “can cause or significantly contribute” to death or serious irreversible or incapacitating illness on account of “quantity, concentration, or physical, chemical, or infectious characteristics;” the second encompasses wastes that pose a substantial or potential danger “to human health or the environment” when mismanaged. To indicate the magnitude of this danger, in 1990 alone, approximately 19,600 industrial plants released over 3.5 billion pounds of toxic substances.
Special facilities are needed to treat, store or permanently dispose of hazardous wastes. There are six major types of hazardous waste facilities: 1) “waste transfer centers,” in which wastes are examined, identified and differentiated for further processing or transport to other facilities; 2) “liquid organics recovery facilities where liquid organic wastes” are examined for the existence of possible recyclable components; 3) “solidification, stabilization, and other specialized treatment facilities,” which change liquids into solids, make wastes less threatening to ground water and destroy the wastes' harmful ingredients; 4) water treatment facilities that convert otherwise contaminated water to drinkable water; 5) “incineration facilities where non-reclaimable, combustible organic liquids and solids are broken down into their basic elements;” and 6) impregnable landfills where non-recoverable wastes are permanently stored. Hazardous waste facilities either render hazardous wastes non-hazardous through some neutralizing process or contain the wastes.
More hazardous waste facilities are needed in order to maintain our current standard of living and ensure the continued safe disposal, treatment and storage of hazardous wastes. Consequently, there is a continuing demand for suitable sites for the location of additional facilities. But the site selection process is both complex and controversial.
Siting hazardous waste facilities is complex because a potential site must satisfy many technical criteria. One consideration is whether the land on which a potential site will rest is geologically stable or near sources of water used by persons or for agriculture. Transportation routes to and from the site are also important considerations in siting decisions, as are population densities surrounding a site. In short, the search for any given site for a hazardous waste facility entails many technical considerations.
Siting hazardous waste facilities is controversial because the siting process generally provokes opposition from potential host communities. Many residents fear exposure to hazardous wastes in light of the risk of explosions or accidents while hazardous wastes are being transported and the risk of waste mishandling inside hazardous waste facilities. Hazardous waste facilities also have negative economic consequences for the communities in which they are located, inasmuch as the noise and traffic generated by such facilities often translate into lower property values.
Health risks and adverse economic consequences associated with hazardous waste facilities complicate the siting of these facilities. Although a full treatment of the risks associated with hazardous waste facilities is beyond the scope of this Article, the Article assumes that such risks will always be affiliated with the facilities. Arguably, local opposition to the siting of a hazardous waste facility is a logical response to the imposition of large risks on a small population for the benefit of a much larger population.
Given the risks associated with hazardous waste facilities and local opposition to facility siting, the siting process requires a balancing of many factors. On the one hand is society's need for the facilities and for efficient and cost-effective provision of services provided by them. On the other hand are the negative consequences the facilities can have on host communities' economic stability and public health.
In spite of public opposition to the siting of hazardous waste facilities, many have been sited and are in operation. But recent studies on the demographics of communities in which hazardous waste facilities are located suggest that the facilities are found disproportionately in minority and poor communities. Terms such as “environmental justice,” “environmental poverty” and “environmental racism” have been coined to describe the unequal distribution of environmental risks associated with hazardous waste facilities. The apparently unequal distribution of environmental risks also has given rise to a concept known as “environmental equity,” or the equal distribution of environmental risks across population and income groups. This Article is concerned in particular with the equal distribution of hazardous waste facilities across race and income groups.
This Article investigates some of the reasons why hazardous waste facilities are located disproportionately in minority and poor communities. One possible cause is the manner in which the facilities are sited. The Article suggests that state siting processes are ill-suited to produce environmentally equitable results. Accordingly, the Article contains a proposal for a state siting scheme that addresses environmental equity, with the goal of distributing hazardous waste facilities in a more equitable manner so that poor and minority communities do not host disproportionate numbers of these facilities.
Part II of this Article explains the notion of environmental equity and analyzes the philosophical and moral underpinnings for environmental equity. Part II maintains that basic ideals of equality and democracy inherent in the Declaration of Independence and the Constitution support the proposition that no one minority group should carry an unequal burden of environmental risks associated with hazardous waste facilities. Part III presents evidence showing a disproportionate incidence of hazardous waste facilities in minority and poor communities. Part III also discusses public opposition to the siting of hazardous waste facilities and the claims of some commentators that the opposition may contribute to the higher numbers of facilities in minority and poor communities. Part III concludes with a critique of studies documenting the unequal placement of hazardous waste facilities in poor and minority communities and provides suggestions for further research. Part IV discusses the Resource Conservation and Recovery Act and outlines various state siting strategies, including methods by which states engage the public in siting processes. Part IV concludes with a critique of existing state siting models, arguing both that these schemes may contribute to the disproportionate placement of hazardous waste facilities in minority and poor communities and that the siting models do not promote environmental equity. Part V presents recommendations made by commentators to rectify environmental inequities and provides a critique of these suggestions. Part VI discusses a proposed model siting scheme that addresses environmental equity issues. The proposal utilizes some of the recommendations discussed in Part V and closes with a critique of the proposed siting scheme. Finally, Part VII concludes that hazardous waste facilities can be sited in a more equitable manner and that environmental equity is a worthy and achievable goal.
The standard of living of all Americans is enhanced by industrial and economic expansion. At the same time, economic and industrial growth results in the generation, consumption and release of tons of toxic chemicals each year. Many manufacturing processes generate hazardous wastes.
There are two categories of hazardous waste. The first category includes wastes that “can cause or significantly contribute” to death or serious irreversible or incapacitating illness on account of “quantity, concentration, or physical, chemical, or infectious characteristics;” the second encompasses wastes that pose a substantial or potential danger “to human health or the environment” when mismanaged. To indicate the magnitude of this danger, in 1990 alone, approximately 19,600 industrial plants released over 3.5 billion pounds of toxic substances.
Special facilities are needed to treat, store or permanently dispose of hazardous wastes. There are six major types of hazardous waste facilities: 1) “waste transfer centers,” in which wastes are examined, identified and differentiated for further processing or transport to other facilities; 2) “liquid organics recovery facilities where liquid organic wastes” are examined for the existence of possible recyclable components; 3) “solidification, stabilization, and other specialized treatment facilities,” which change liquids into solids, make wastes less threatening to ground water and destroy the wastes' harmful ingredients; 4) water treatment facilities that convert otherwise contaminated water to drinkable water; 5) “incineration facilities where non-reclaimable, combustible organic liquids and solids are broken down into their basic elements;” and 6) impregnable landfills where non-recoverable wastes are permanently stored. Hazardous waste facilities either render hazardous wastes non-hazardous through some neutralizing process or contain the wastes.
More hazardous waste facilities are needed in order to maintain our current standard of living and ensure the continued safe disposal, treatment and storage of hazardous wastes. Consequently, there is a continuing demand for suitable sites for the location of additional facilities. But the site selection process is both complex and controversial.
Siting hazardous waste facilities is complex because a potential site must satisfy many technical criteria. One consideration is whether the land on which a potential site will rest is geologically stable or near sources of water used by persons or for agriculture. Transportation routes to and from the site are also important considerations in siting decisions, as are population densities surrounding a site. In short, the search for any given site for a hazardous waste facility entails many technical considerations.
Siting hazardous waste facilities is controversial because the siting process generally provokes opposition from potential host communities. Many residents fear exposure to hazardous wastes in light of the risk of explosions or accidents while hazardous wastes are being transported and the risk of waste mishandling inside hazardous waste facilities. Hazardous waste facilities also have negative economic consequences for the communities in which they are located, inasmuch as the noise and traffic generated by such facilities often translate into lower property values.
Health risks and adverse economic consequences associated with hazardous waste facilities complicate the siting of these facilities. Although a full treatment of the risks associated with hazardous waste facilities is beyond the scope of this Article, the Article assumes that such risks will always be affiliated with the facilities. Arguably, local opposition to the siting of a hazardous waste facility is a logical response to the imposition of large risks on a small population for the benefit of a much larger population.
Given the risks associated with hazardous waste facilities and local opposition to facility siting, the siting process requires a balancing of many factors. On the one hand is society's need for the facilities and for efficient and cost-effective provision of services provided by them. On the other hand are the negative consequences the facilities can have on host communities' economic stability and public health.
In spite of public opposition to the siting of hazardous waste facilities, many have been sited and are in operation. But recent studies on the demographics of communities in which hazardous waste facilities are located suggest that the facilities are found disproportionately in minority and poor communities. Terms such as “environmental justice,” “environmental poverty” and “environmental racism” have been coined to describe the unequal distribution of environmental risks associated with hazardous waste facilities. The apparently unequal distribution of environmental risks also has given rise to a concept known as “environmental equity,” or the equal distribution of environmental risks across population and income groups. This Article is concerned in particular with the equal distribution of hazardous waste facilities across race and income groups.
This Article investigates some of the reasons why hazardous waste facilities are located disproportionately in minority and poor communities. One possible cause is the manner in which the facilities are sited. The Article suggests that state siting processes are ill-suited to produce environmentally equitable results. Accordingly, the Article contains a proposal for a state siting scheme that addresses environmental equity, with the goal of distributing hazardous waste facilities in a more equitable manner so that poor and minority communities do not host disproportionate numbers of these facilities.
Part II of this Article explains the notion of environmental equity and analyzes the philosophical and moral underpinnings for environmental equity. Part II maintains that basic ideals of equality and democracy inherent in the Declaration of Independence and the Constitution support the proposition that no one minority group should carry an unequal burden of environmental risks associated with hazardous waste facilities. Part III presents evidence showing a disproportionate incidence of hazardous waste facilities in minority and poor communities. Part III also discusses public opposition to the siting of hazardous waste facilities and the claims of some commentators that the opposition may contribute to the higher numbers of facilities in minority and poor communities. Part III concludes with a critique of studies documenting the unequal placement of hazardous waste facilities in poor and minority communities and provides suggestions for further research. Part IV discusses the Resource Conservation and Recovery Act and outlines various state siting strategies, including methods by which states engage the public in siting processes. Part IV concludes with a critique of existing state siting models, arguing both that these schemes may contribute to the disproportionate placement of hazardous waste facilities in minority and poor communities and that the siting models do not promote environmental equity. Part V presents recommendations made by commentators to rectify environmental inequities and provides a critique of these suggestions. Part VI discusses a proposed model siting scheme that addresses environmental equity issues. The proposal utilizes some of the recommendations discussed in Part V and closes with a critique of the proposed siting scheme. Finally, Part VII concludes that hazardous waste facilities can be sited in a more equitable manner and that environmental equity is a worthy and achievable goal.
