NIMBY and maybe: conflict and cooperation in the siting of low-level radioactive waste disposal facilities in the United States and Canada.

     Waste Disposal Capacity in the United States          73
     A. Early Stages in American LLRW Management           74
     B. LLRW Regulations                                   76

C. Siting Gridlock: Problems With The Regional

        Compacts                                           81
        1. The California Case                             82
        2. Background on the Ward Valley Site              83
        3. Political Fallout                               85
     D. Where the Supreme Court Standards on LLRW Siting   88
     E. Future LLRW Capacity Assurance                     89
III. The Canadian Approach: Signs of Cooperation           90
     A. Early Stages in Canadian LLRW Management           94
     B. Port Hope and Siting Conflict                      95
     C. The Task Force and the Social Process              98
     D. Revising the Classification System                100
     E. Exploring Alternative Disposal Methods            101
     F. Defining the Social Process                       103
     G. Implementing the Social Process                   104
     H. Possible Site Volunteers                          109
IV.  When Siting Works                                    112
     A. Extensive Public Participation                    114
     B. Burden Sharing and Freedom from Exploitation      115
     C. Public-Private Partnerships                       116
V.   Transferring the Process to the United States        118
VI.  Game Theory and Facility Siting                      121

I. INTRODUCTION

The domestic use of nuclear materials has traditionally been characterized as a collective good. Millions of Canadians and Americans enjoy relatively inexpensive energy from nuclear power plants. Thousands benefit from the post-world War II application of nuclear technology to medicine. From the formation of national regulatory entities in both nations through the 1970s, few people in either nation challenged the conventional wisdom that massive federal government subsidies for the development of nuclear power and medicine were anything other than a worthy endeavor which served broad, collective goals.

That consensus has unraveled in recent years, in part because of the issue of radioactive waste disposal. Episodes such as Three Mile Island drew attention to the safety of facilities generating nuclear power, but the issue of waste disposal poses a separate set of challenges for both nations. Whereas nuclear power and nuclear medicine are perceived as collective goods, Canadians and Americans recognize radioactive waste as a threat to public health, environmental protection, and the economic stability of any community which might become contaminated.

This paper examines one aspect of radioactive waste, so-called "low-level" waste, and one aspect of the waste management problem, siting facilities for waste storage and disposal. In both Canada and the United States, the evolution of nuclear technology has followed similar patterns and comparable technical and political waste disposal problems have emerged. Facility siting and management has been transformed from a fairly consensual area of environmental policy in the 1960s and 1970s to a conflict ridden area in more recent years. Time and again, when either Canadian or American communities are confronted with the possibility of "hosting" a new waste disposal or storage facility, the political reaction is immediate and intense. This reaction has blocked construction of any new facilities in either nation.

This manifestation of the Not-In-My-Back-Yard (NIMBY) syndrome resembles the pattern exhibited with other types of waste disposal facilities, such as hazardous, solid, and biomedical wastes. This phenomenon offers some significant societal benefits, such as pressuring radioactive waste generators to explore alternative waste reduction or elimination methods. It also creates a more aware and involved citizenry on both sides of the 49th parallel. In an era in which both Canadians and Americans lament declining levels of political participation and a growing alienation from the political process, this energy and interest is heartening from the standpoint of democratic theory.(1)

However, blocking the construction of new facilities does not necessarily resolve serious waste storage and disposal policy problems. Even if no additional nuclear power plants are constructed in North America, generators will continue to produce substantial quantities of low-level radioactive waste.

Moreover, badly contaminated areas warrant careful cleanups (which involve relocating wastes) and existing facilities must be decommissioned. This complex and expensive process requires removing radioactive and non-radioactive materials. Ironically, while the United States has found itself unable to open any new facilities since the early 1970s, it has, on a de facto basis, created thousands of sites for storage and disposal, including the nuclear power plants and research facilities that generate these wastes. These facilities are widely acknowledged as unsuitable for long-term storage and disposal on both technical and equitable grounds.

The American and Canadian experiences are ripe for a comparative analysis of effectiveness. These nations nurtured their nuclear industries in similar ways and devised relatively similar regulatory structures during the early decades of development. They also encountered many similar siting problems in the late 1970s and early 1980s.

Nonetheless, the two neighboring nations took fundamentally distinct approaches to siting over the past several years and have experienced different outcomes. On the American side, a "topdown" method of site selection, whereby government or corporate officials use technical criteria to select a preferred site and disposal technology, consistently encountered tremendous political opposition. A variety of state governments, working independently or in "compact" clusters, have failed in facilitating serious public deliberation over siting options, much less in achieving any siting accords.(2)

On the Canadian side, abandoning a top-down strategy in favor of a voluntary approach has stimulated extensive public discussion of siting options in multiple communities in Ontario, where the vast majority of Canada's low-level radioactive waste is generated. This "bottom-up" approach has left the selection of sites and alternative storage and disposal technologies to participating Ontario communities. At present, five such communities remain active participants in these deliberations, and one or more of them may assume responsibility for "hosting" facilities in the years ahead.(3)

This comparative analysis of low-level radioactive waste facility siting is particularly intriguing given its direct linkage to the processes for siting hazardous waste disposal facilities. In both the United States and Canada, particularly in the provinces of British Columbia and Ontario, facility siting has proven contentious for both hazardous waste and low-level radioactive waste. Variation of the top-down approach, whether guided by government officials or for-profit waste disposal concerns, consistently meets strong public opposition.(4) Two visible exceptions to this pattern of opposition, Alberta in 1984 and Manitoba in 1992, employed a voluntary siting strategy to facilitate broad public deliberation and ultimately reached a widely supported siting accord.(5) Greensboro, North Carolina successfully used a similar approach in the mid-1980s, suggesting some transferability potential.(6) This general approach is extremely similar to the one currently being implemented for low-level radioactive waste in Ontario.

These exceptional cases of cooperation indicate that siting conflict is not inevitable. In both Alberta and Manitoba, as well as the early stages of the Ontario plan, the players set certain ground rules. Siting authorities saw their role as providing information and seeking volunteer communities, rather than imposing definitive siting decisions. Possible host communities were given every opportunity to raise questions, negotiate economic and regulatory compensation packages, and express their preferences for the type of storage or disposal technology to be used. They were also free to withdraw from further participation in the process at any time. Furthermore, the process allowed formal exploration of "burden sharing" among multiple communities, rather than assuming that a single site would accept all disposal or storage responsibility for an entire state, province or region.(7)

The ultimate viability and adaptability of this approach rests on the final outcome of the Ontario experiment. The American political system may indeed be impervious to such voluntary strategies, given its political culture and adversarial environmental policy traditions.(8) Nonetheless, the near total gridlock in low-level radioactive waste facility siting the United States indicates the desirability of looking abroad to consider other approaches. Given the hazardous waste facility siting accords in Alberta and Manitoba, Canada is an obvious first case for comparative analysis. Moreover, the strong similarities between American and Canadian environmental policy and the tradition of borrowing regulatory ideas suggests some possibility for diffusion across national borders. Indeed, a central premise of this article is that the main impediment to American adoption of the more voluntary, participative Canadian style approach is political rather than legal. Some states have, in fact, begun to experiment with this approach already, for both low-level radioactive and hazardous wastes, facing no serious legal obstacles because relevant legislation delegates most siting decisions to the individual states.(9)

This comparative case analysis draws heavily on interviews with approximately fifty key informants and a review of relevant government documents. Some direct attributions to interviewees are made, although other references are made in more general ways when guarantees of anonymity were provided. hi contrast, review of relevant academic literature proved far less useful. Relatively little has been published, in either Canada or the United States, on the Canadian low-level radioactive waste siting case. Much of the existing literature on the American experience examines the structure of the interstate compact process rather than probe the conflictive processes of implementation.(10) The lone source we encountered that directly compares the American and Canadian experiences is a 1992 book by Ray Kemp of the United Kingdom.(11) However, this analysis is limited to a basic description of the respective programs, as its primary contribution is an examination of the politics of radioactive waste disposal in Western Europe.(12)

This article is intended to begin to fill this significant gap and facilitate greater cross-border awareness of common environmental policy problems and options. It begins with an overview of the American experience in low-level radioactive waste disposal and examines in detail a recent siting conflict in California. Many observers argue that California was in the best position among the American states to reach some siting settlement. The seeming derailment of that process in 1993 underscores the severity of siting gridlock in the United States. Indeed, the remaining states give little indication of reaching any siting agreements in future years. This case will be followed by an analysis of the Canadian situation, placing particular emphasis on the development and implementation of the voluntary process. The article will conclude with a direct comparison between the American and Canadian experiences and some reflections on future policy and research options.

II. THE STRUGGLE, TO ENSURE LOW-LEVEL RADIOACTIVE WASTE DISPOSAL CAPACITY IN THE UNITED STATES.

Recent events lead a number of informed observers to question when, if ever, a new low-level radioactive waste disposal facility will be opened in the United States. The two states that were generally considered most likely to meet the legislatively mandated deadline of January 1, 1993 -- Illinois and California -- encountered serious political obstacles in 1992 and 1993.(13) Other states and compacts appear even further removed from any serious siting option deliberation, much less approaching final siting agreement. Even if another state or compact were miraculously to clear the stumbling blocks that felled other siting efforts, there would be little possibility of providing access to non compact generators requiring disposal facilities. Authority to exclude nonsignatories of regional compacts is one of the basic incentives of the current regional compact siting approach mandated by the Low-Level Radioactive Waste Policy Amendnents Act of 1985.(14) However, whether or not a go-it-alone state would have the same exclusionary authority remains an unanswered legal question.

The result of this siting gridlock is a growing number of "temporary" storage facilities scattered around the United States. In Michigan alone, more than fifty facilities are already in operation, ranging from nuclear power plants to university hospital laboratories.(15) Many of these are located in densely populated areas and were never designed for long term storage. indicate the number of these sites will soon be in the thousands, despite significant advances in volume reduction technology and the virtual halt in recent decades of new nuclear power facility construction.(16) In addition to the obvious regulatory problems of monitoring and enforcement, there is a compelling public health argument against de facto storage.

A. Early Stages in American LLRW Management

The Pacific and Atlantic Oceans served as repositories for United States low-level radioactive waste (LLRW) during the first three decades of its production. Following the enactment of the Atomic Energy Act of 1954,(17) many states began assuming responsibility for licensing and regulating radioactive waste.(18) Those states which entered into agreements with the United States Nuclear Regulatory Commission (NRC) to regulate certain types of radioactive materials, including LLRW, became known as "agreement states" -- a classification that remains in use.

The major sources of commercial LLRW include nuclear power plants, biomedical and industrial research, and nonmilitary government projects. In most states, the vast majority of wastes come from nuclear power plants, many of which were built in the 1960s and are approaching the end of their useful lives. When these plants close, they no longer generate waste but must be "decommissioned." This entails decontaminating the plant (removal of radioactive material) and dismantling plant (removal of nonradioactive material), thereby creating an entirely new type of LLRW disposal problem. The em of United States commercial land waste disposal began in 1962 with the opening of the first disposal facility in Beatty, Nevada. By 1971, five other commercial sites had opened in Richland, Washington; Maxey Flats, Kentucky, West Valley, New York, Barnwell, South Carolina and Sheffield, IIlinois. Only Illinois lacked NRC "agreement state" status.(19) All six facilities used "first generation" shallow land burial technology, which consisted of burying waste packages in trenches, usually about thirty feet deep, and covering with several feet of dirt.(20)

The Maxey Flats and West Valley disposal sites were closed prematurely in the mid-1970s after media-reported discoveries of leaking radioactive materials.(21) Maxey Flats was operated by Nuclear Engineering Company (NECO), a Louisville, Kentucky based firm. Nuclear Fuel Services operated the West Valley, New York site. The Sheffield facility was closed in 1978 after the site operator, U.S. Ecology, experienced lengthy license renewal delays. After its closure, problems developed at Sheffield due to water infiltration.(22)

In 1986, the United States Environmental Protection Agency designated Maxey Flats a federal Superfund site, adjudging it to be among the most severely contaminated sites in the nation.(23) The West Valley site was stabilized in the early 1980s after radioactive leachate was discovered on the site.(24) A final environmental impact statement is scheduled to be released on the West Valley site in late 1994.(25)

The widely reported contamination incidents at Maxey Flats and in West Valley, and the Chemobyl and Three Mile Island nuclear accidents, in combination with increased public environmental degradation concerns may make LLRW siting efforts the biggest Not-in-My Backyard (NIMBY) issue ever.(26) As a result, no new LLRW disposal sites have opened since 1971 and none seem likely to be established in the next few years.

B. LLRW Regulations

Inadequate waste separation and packaging was the most significant factor in the contamination at West Valley, Maxey Flats, and Sheffield.(27) Early operating practices and specific siting characteristics also contributed to each site's problems.(28) Learning from these incidents, in 1983 the NRC issued new regulations imposing stringent new regulatory requirements on operators for the licensing and operation of commercial LLRW disposal facilities.(29) In addition to specific technical requirements, the regulations outlined four performance objectives for LLRW disposal facilities:

(1) Protection of the general population from radioactive

releases;

(2) Protection of inadvertent intruders;

(3) Protection of facility operators, and;

(4) Stability of disposal site after closure.(30) Although no uniform manifest system has been mandated by the NRC to track LLRW, the different manifests used by United States generators and disposal companies must comply with the regulations.(31)

The 1983 NRC rules define low-level radioactive waste as "radioactive waste not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or byproduct material."(32) Class A wastes, considered the least risky, comprise over 95 percent of the entire volume of LLRW annually; they will decay to acceptable hazard levels in 100 years or less.(33) Class B wastes decay to minimally risky levels within 100 years, but have more stringent waste form and packaging requirements.(34) By contrast, Class C wastes, which mainly comprise irridiated reactor components, have a 100-year or longer hazard life.(35)

In 1989, the Barnwell facility in South Carolina received sixty eight percent

of all commercial waste generated by volume (cubic feet) and eighty four percent of all waste by radioactivity-- in Curies (Ci). The Richland, Washington and Beatty, Nevada sites received, respectively, twenty five percent and seven percent of all commercial LLRW received by the three sites by volume and eleven percent and five percent by radioactivity.(36) In 1989, total volumes of commercial waste by category were: 1,575,349 cubic feet of Class A waste (28,639 Ci), 35,950 cubic feet of Class B waste (161,235 Ci), and 16,514 cubic feet of Class C waste (677,032 Ci).(37) In 1990, a total of 1,142,810 cubic feet of LLRW were shipped to the three open facilities.(38)

Since NRC's promulgation of the regulations the Barnwell, Beatty, and Richland sites have not reported problems related to their operating practices. The Barnwell facility remains quite popular in South Carolina, given its long-standing contributions to economic development and the relative lack of controversy surrounding its operation.(39) All three sites have experienced problems unrelated to site performance, however, such as receiving shipments of improperly packaged waste and damaged waste containers.(40) Because of these operational problems, the Beatty and Richland facilities closed temporarily in October 1979.(41) The governor of South Carolina joined the Washington and Nevada governors in threatening permanent site closures. Responding to the looming disposal crisis embodied in that threat, Congress passed the original Low-Level Radioactive Waste Policy Act of 1980.(42)

Unlike a number of European nations, the United States chose not to institute regulations for volume reduction and waste minimization, and plan for a central federal site for the nation's LLRW as a whole.(43) Instead, the 1980 Low-Level Radioactive Waste Policy Act (LLRWPA) decentralized regulatory authority, making each state responsible for its own LLRW and providing it freedom to devise its own siting approach.(44) The Senate did consider a centralized, federal LLRW disposal siting policy, but that proposal was unanimously opposed by the National Governors' Association (NGA), which lobbied hard for a state-based, regional approach to the problem.(45) Instead, Congress largely followed the recommendations of the NGA's State Planning Council on Radioactive Waste. The resulting Act represented the first radioactive legislation where the national government had loosened its dominant role over domestic or militarily generated radioactive wastes.(46) It received bipartisan support in Congress and among the nation's governors, and was hailed as a unique example of congressional responsiveness to the desires of the states.(47)

Under the LLRWPA, states could enter into compacts to establish and operate regional disposal facilities for low-level radioactive waste.(48) The Act also provided, upon congressional consent, that LLRW compact regions could limit use of their disposal sites to waste generated within their respective regions.(49) States choosing to work independently on this issue were not granted these exclusionary powers.(50) Further, the LLRWPA allowed states to develop their own selection procedures, criteria, regulations, and revenue producing fee structures for the commercially operated sites. Although the State Planning Council, the NGA, and the Department of Energy provided some guidance to states, they were essentially on their own. The legislation did not address site selection, leaving states free to consider either coercive or voluntary measures.

While Washington Nevada, and South Carolina quickly formed regional compacts with neighboring states,(51) remaining states had little incentive to meet the LLRWPA deadlines and search for new disposal outlets. Waste export to the available sites was still more popular politically than exploration of alternative sites. So in 1985 Congress intervened with the Low-Level Waste Policy Amendment Act of 1985.(52) Barnwell, Richland and Beatty were only twelve days away from being able to refuse all out-of-compact wastes when the act became effective. The Act pushed back the deadline for rejection of non-compact wastes, and included three incentives to encourage the development of LLRW disposal capacity in slow-moving states. These provisions were: (1) escalating disposal charges for use of present disposal facilities,(53) (2) requiring states to meet specific milestones in developing their own disposal facilities to maintain access to present disposal facilities,(54) and (3) requiring states unable to dispose of their LLRW by January 1, 1996 to "take title" to the waste with the risk of liability for any damages resulting from failure to do so.(55)

Despite these additional incentives, the "forced marriage" of regional and statewide system has not produced a single new LLRW disposal facility.(56) In fact, there is no such agreement being considered in any compact or state, while existing capacity continues to diminish. The Beatty, Nevada facility closed on January 1, 1993, leaving only two facilities open- Barnwell, South Carolina and Richland, Washington. The Richland site now excludes all non-compact wastes, with the possible exception of LLRW from the Rocky Mountain Compact, and the Barnwell facility was scheduled to close by mid-1994.(57) However, the Barnwell facility has agreed to remain open longer, accepting some waste imports from states and compacts which are supposed to be developing their own disposal capacity. States that are found to be delinquent in their efforts have been denied further access to Barnwell. Several states and districts, including Michigan; Vermont; Rhode Island; Washington, D.C.; and Puerto Rico, have been denied disposal access and must store waste at the points of waste generation.

The national demand for the technologies and products that generate low-level radioactive waste has not diminished along with the national disposal capacity. As Justice Sandra O'Connor wrote in the Supreme Court decision in New York v. United States(58):

We live in a world full of low level radioactive waste. Radioactive

material is present in luminous watch dials, smoke alarms measurement

devices, medical fluids, research materials, and the protective

gear and construction materials used by workers at nuclear power

plants .... The waste must be isolated from humans for long periods

of time, often for hundreds of years. Millions of cubic feet of

low level radioactive waste must be disposed of each year.(59)

Moreover, not even the collapse of efforts to expand American reliance on nuclear power will end the generation of LLRW in the United States.

C. Siting Gridlock: Problem With The Regional Compacts

The regional compact approach came with great enthusiasm due to the opportunity it gave states to resolve their LLRW disposal problems. During the late 1970s and 1980s, American states demonstrated considerable capacity for policy innovation, particularly in environmental policy.(60) The imprimatur of the National Governors' Association was considered particularly important, which suggested that the executive branches of state governments would apply their efforts to this concern.

Federal legislation gave considerable freedom to individual states and compacts in designing their own siting procedures. Once Congress formally approved compacts, local siting authorities devised their own methods of site selection. Like Canada, state and compact officials were generally given much latitude to form and implement a siting plan, rather than a legislatively-mandated blueprint. As long as state and compact siting strategies did not violate related federal laws, including the National Environmental Policy Act,(61) states were free to devise any siting strategy. However, most pursued more traditional methods of selecting sites without prior consultation. In most states and compacts, the process of developing siting procedures attracted minimal public attention, and thus gave little consideration to more voluntary site selection processes. Once implemented, however, siting approaches have resulted in enormous political acrimony. Most frequently, compact or state officials have employed a "top-down" or "regulatory" approach to siting. This utilizes various technical criteria to determine one or more preferred sites and then officials announce their findings to the public. At that stage, public protests ensue and ultimately officials withdraw their proposals. This pattern has been evident in numerous states, including Connecticut, Michigan, and New York.(62)

Select states and compacts have devised different siting strategies, using the flexibility afforded by federal legislation. Both Illinois and Nebraska, for example, faced no legal impediments to establishing a more voluntary siting arrangements and found potential site volunteers.(63) However, both cases have faced mounting political opposition and appear unlikely to arrive at any accord in future years. In Illinois, administrative malfeasance destroyed the public's trust in the siting process.(64) In Nebraska, failure to incorporate communities neighboring potential host communities into siting deliberations caused considerable political conflict.(65) Although more sensitive to public input than other states and compacts, both the Illinois and Nebraska approaches are different from the structured Canadian approach. More recently, officials from Connecticut reviewed the Canadian experience as a possible model for reforming their conflict-riddled siting effort. A new, voluntary program was approved by the state legislature in April 1993.(66)

1. The California Case

Even the Southwest Compact, which was considered to have the greatest chance of developing a new disposal facility by the 1993 deadline, has fallen victim to the ongoing controversy surrounding LLRW facility siting. Until late 1991, analysts of the prospects for siting LLRW facilities nationwide pointed to California as the host state most likely to reach a siting accord. One analyst concluded that only California had the good fortune "to have found a perfect site out in the desert where NIMBY doesn't apply."(67) What has occurred in California since is a testimony to the ongoing controversy surrounding LLRW facility siting.

2. Background on the Ward Valley Site

In 1982, the California Legislature directed officials at the state's Department of Health Services (DHS) to begin developing a LLRW disposal facility.(68) A year later the state Senate extended and modified the earlier legislation.(69) In 1987, the state approved a compact with Arizona, North Dakota, and South Dakota, which identifies California as the host state for the compact for at least the next 30 years.(70) The compact was quickly ratified by Congress.(71) Because California is an "agreement state" its DHS has been the major government player in the siting process. In addition to licensing operation and construction of the facility, DHS is charged with regulating its operation. In 1985, DHS selected US Ecology as license designee to locate, construct and operate the state's permanent disposal facility. Both Westinghouse and ChemNuclear had previously declined offers to be identified as license designee for the Southwest compact.

US Ecology chose to use advisory committees extensively throughout the siting process. It used technical siting criteria as the starting point for its siting process. Before beginning its initial site search, DHS and US Ecology constructed a process to choose the site using a Citizen's Advisory Committee. Its members were from the League of Women Voters, the Sierra Club and the Native American Heritage Foundation as well as the California Radioactive Materials Management Forum (CalRad).(72) Between 1986 and 1987, the committee identified eighteen potential sites. There were also private sector educational efforts, including a grant provided by two waste generator organizations in 1984 for publication of a guidebook. The guidebook, which was updated in 1987, provided information about the project, explained how citizens could participate in the environmental review and licensing processes, and offered basic information about radioactivity and current management practices in LLRW.(73) Although not as extensive as the public participation measures in Ontario, this process went well beyond most other states' and compacts' efforts.

In 1987, they narrowed the choice to the Ward, Silurian and Panamint Valleys. At each of the three sites a local advisory committee was formed, comprised of members from the community who were independently chosen by local organizations. The Ward Valley site was finally chosen as the best site, based in part on the local committees' recommendations, as well as technical considerations.(74) Ward Valley is twenty-four miles away from the small town of Needles, deep within the Mojave Desert.(75)

US Ecology's proposed facility in Ward Valley is an enhanced shallow land burial facility.(76) Proponents of the approach argue that improvements have made the technique substantially different from the early land burial method that led to water infiltration at the Maxey Flats, West Valley and Sheffield sites.(77)

In many Eastern states that have a lot of rainfall, this increases the likelihood of the "bathtub effect" occurring in the unlined trenches in which low-level radioactive waste is dumped. California has no such problems. In fact, the proposed Ward Valley site receives about four inches of rain a year and the groundwater is deep below the surface.(78) This easily met the state's technical specifications concerning annual rainfall limitations, which are more stringent than those imposed in regions with higher rainfall.(79)

In addition, the site also seemed to be a good match for non-technical reasons. As soon as the site choice was finalized, US Ecology opened an office in Needles and began to put money into the local economy. US Ecology made it clear that it was willing to hire qualified local contractors.

In mid-June 1991, many people working on the project anticipated that the proposed 70-acre LLRW facility would be open by January 1992. Those expectations were dashed a month later. By mid-July 1991, Greenpeace and Don't Waste United States had joined forces with more than 40 other local and regional groups to oppose the Ward Valley site.(80) Once organized, opponents quickly garnered enough support to turn hearings on the site sponsored by the California DHS in Needles, Sacramento, and Los Angeles into lengthy and explosive meetings.(81) Chief among the arguments raised at the hearings were concerns about US Ecology's use of an unlined land burial technique, the potential taxpayer liability for cleanup costs if leaks occurred, and the possibility that the site could be forced to accept waste from non-compact states.(82) Opponents argued that Ward Valley could become the repository for mixed low-level radioactive and hazardous wastes, even though it was developed as a non-mixed waste LLRW dump.(83)

3. Political Fallout 

After these hearings, the first roadblock to the project emerged from two of the three members of California's State Land Commission (SLC), Controller Gray Davis and Lt. Gov. Leo McCarthy. Recognizing their political vulnerability on the Ward Valley issue, Davis and McCarthy refused to agree to the land-transfer required to get the facility operative. They stated in a joint letter to the State's Health and Welfare Agency that they would not approve the transfer unless Congress granted California the unequivocal right to ban the importation of LLRW from any state outside of the Southwest compact.(84) In addition, they called for a requirement that US Ecology or waste generators who disposed of radioactive waste at the site be held liable for future damages and cleanup costs.(85)

The proposed Ward Valley site is owned by the federal Bureau of Land Management (BLM), which planned to transfer the land to the SLC at no cost as part of a long-standing land swap with the state. Without SLC acceptance of title to the Ward Valley site on behalf of the state, however, the swap was blocked.

Frustrated by the opposition's strength and the political obstacles to obtaining approval of the Ward Valley site, DHS officials directed their department's attorneys to find a way to acquire the land from the BLM that would not require the state land commission's approval. As news of DHS's decision to try to circumvent the SLC block was hit state newspapers, Assemblyman Tom Hayden obtained a copy of a nuclear industry internal memo outlining a proposal to lobby Gov. Pete Wilson to sign an executive order that would force DHS to take title to the Ward Valley land.(86)

The memo recommended that the lobbying effort be led by hospitals, universities and research institutions that generate LLRW, rather than by US Ecology or other nuclear waste producers that planned to dispose of their LLRW at the facility. Upon disclosure, the memo encouraged many anti-nuclear activists. These opponents argued that while the proposed facility was being described as a place for storing medical waste, medical waste made up a very small portion (4.9 percent) of all the LLRW destined for the site. Instead, the most waste would be generated by non-medical industries.(87) Even after the June 1992 California senatorial primaries, the Ward Valley site remained a source of headaches for the governmental agencies and other players involved. Notably, both Davis and McCarthy were defeated in the primary by Democrats Barbara Boxer and Dianne Feinstein, both of whom publicly opposed the Ward Valley site.

Facing the expiration of permits in August 1992, the state seemed about to gain ownership of the land by arranging a sale of the BLM land with money provided by US Ecology. Almost as soon as the land transfer was completed, Judge Marilyn Patel of the United States District Court for Northern California issued a temporary restraining order blocking the transfer.(88) The Mojave Desert is home to a desert tortoise listed as an endangered species.(89) According to US Ecology personnel, however, the company has already addressed the problem with a plan to fence the freeway near the proposed Ward Valley site and provide an underground tortoise pathway to ensure that desert tortoises in the area will not suffer a splitting of their gene pool.(90)

A second, separate legal battle is also underway. To win a drawn-out legislative confirmation opposed by state Democrats, Governor Wilson's nominee for Secretary of Health and Welfare, Russell Gould, agreed to hold adjudicatory hearings on the proposed Ward Valley facility. Proponents of the Ward Valley site, including patient and physician groups, have sued the state to prevent the additional hearings, which they say are unnecessary and could delay the facility's opening by two years or more.(91)

The very earliest Ward Valley may open is sometime in 1994. Consequently, many waste brokers have begun filing applications with the state's DHS to enable them to store more radioactive waste for indefinite storage periods. In addition, California is likely to face legal claims from compact partners Arizona, North Dakota, and South Dakota, seeking reimbursement for the additional interim storage costs incurred by their states' LLRW generators.(92) Continued delays are likely and some believe that construction will never begin on the Ward Valley site.

D. Where the Supreme Court Stands on LLRW Siting

As states have watched the deadlines pass and they remain unsuccessful in siting LLRW disposal facilities, their hopes of developing a state-based solution to the siting dilemma have faded. Consequently, states without disposal access after January 1, 1993 and facing the "take title" provision of the amended Low-Level Radioactive Waste Policy Act took notice in 1990 when New York State brought suit against the United States.(93) On appeal to the Supreme Court, New York argued that the three incentive provisions of the LLRWPA violated the Tenth Amendment and the Guarantee Clause of the United States Constitution.(94) Their challenge raised two questions crucial to the future of LLRW disposal policy: (1) would states that entered into compacts be able to deny access to their sites to out-of-compact wastes after January 1, 1993 and (2) would states without disposal capacity be forced to honor the liability measures outlined in the Act?(95) More than half of the states without assured disposal capacity after January 1, 1993 filed amicus briefs with the Supreme Court in support of New York's constitutional claims. Ironically, the Governors and Congressional delegations of many of these states supported LLRWPA.

The Supreme Court's decision in New York upheld the Act's monetary and access incentives, but found that the third incentive -- the "take title" provision -- lay outside of Congress' power and violated the Tenth Amendment.6 The Court's decision to sever the "take title" provision from the rest of the Act has left the states with a diminished set of incentives to encourage development of LLRW disposal capacities. The Court held that Congress

crossed the line from encouragement to coercion with this provision, leaving the States no practical alternative to either accepting ownership of the waste or regulating according to Congress' instructions.(97) Further, the majority concluded that the "consent" of state officials cannot authorize overriding the constitutional requirement of state sovereignty.(98)

E. Future LLRW Capacity Assurance

The overall framework of the Low-Level Radioactive Waste Policy Amendments Act was held constitutional by the Supreme Court.(99) However, the Court's invalidation of the "take-title" provision diminished the Act's ability to ensure that states without disposal sites will continue to commit to developing their own waste disposal facilities. Indeed, the decision further imperils a siting process that already seems headed toward deadlock and a de facto strategy of waste storage at various "temporary" sites.

Congress has several options to prevent further unravelling of the LLRWPA regional approach to LLRW disposal. First, Congress could amend the Act to include a conditional payment of funds for states which have not met the 1996 statutory deadline for establishing disposal capacity hinging on a state's willingness to take title to LLRW. Thus, as outlined by Justice White in his dissenting and concurring opinion, money collected pursuant to the monetary incentive portion of the Act could be disbursed to a state depending on the state's willingness to accept responsibility for in-state generated wastes.(100)

Second, Congress could also amend the Act to disallow LLRW shipment from non-compliant states after the 1996 deadline. Third, Congress could include a provision that provides LLRW generators a cause of action against state officials for failing to meet the goals designated in the federal-state siting program. Fourth, legislators could abandon LLRWPA as well as the cooperative state-federal solution approach it represents, and adopt a centralized, agency-based process for identifying possible LLRW sites.(101) This approach has been attempted for American high-level radioactive waste, with a highly-contentious siting process seeking support for a single facility site in Nevada.

Finally, Congress could replace the existing policy with an approach to sign modelled on the public participation model employed with some success in Canada. This would begin with a moratorium on continuing siting deliberations and allow time for extensive public education and participation before determining responsibility for LLRW disposal or storage. In exploring the possible desirability of the fifth option, we now turn to the Canadian case.

III. THE CANADIAN APPROACH: SIGNS OF COOPERATION

An examination of other nations, such as Canada, lends insight into whether industrialized western democracies must continue this pattern as an inevitable outcome of their siting processes, or if they can devise processes that are more likely to lead to some consensus over waste management. Canada is particularly appropriate for comparison because, while many aspects of Canadian low-level radioactive waste management are similar to those in the United States, in recent years Canada has shown the beginnings of a consensus over siting and broader LLRW management issues that has proven so elusive in United States.

By fostering an atmosphere m which prolonged discussion can take place, Canadian officials have defused some of the combustive qualities of siting deliberations that plague those in the United States. This process has not yet resulted in any final agreements over siting or the broader distribution of responsibility for LLRW management in Canada. It has, however, moved remarkably close to an agreement, with several Ontario communities participating in an effort to select one or more siting volunteers. The Ontario experience suggests that there are alternatives to the familiar NIMBY pattern.

The signs of greater cooperation over siting in Canada are noteworthy because the technical and political dimensions of LLRW management are similar to those of the United States. Both federal governments played a substantial role in endorsing and subsidizing the nuclear power industry in the decades following World War II. Despite tendencies toward environmental regulatory decentralization in both nations, particularly Canada, both federal governments have assumed central responsibility for radioactive waste management.(102) These governments continue to play a far more central role m every aspect of radioactive waste regulation than is the case with hazardous, bio-medical, or solid wastes.

Canada and the United States also tend to use same technical language concerning nuclear power and radioactive waste.(103) Waste definitions and communication schemes are quite similar and the technological options for waste reduction and disposal are largely identical.(104) Indeed, this is evident in all areas of waste management. There are few restrictions on the movement of many types of waste across Canadian and American borders, and there is an increasingly brisk business in hazardous and solid waste trade in both directions, particularly in the Great Lakes Basin, Quebec, and New England states. Free trade policy extends to waste disposal among these North American neighbors.(105)

Perhaps most importantly, both nations have experienced similar patterns of siting disagreement in management of all types of waste. The apparently intractable conflict in American LLRW siting resembles the pattern of hazardous waste facility siting in provinces such as British Columbia and Ontario and of solid waste facility siting in Alberta and Ontario. In hazardous waste, for example, Ontario has devised a siting strategy very similar to that employed in New York and North Carolina. The province has spent more than $100 million (Canadian) and devoted more than a decade to this project. Yet, as in American states, NIMBY gridlock has thwarted any siting agreement.(106) Moreover, the province has also experienced nearly identical problems in siting solid waste landfills, leading to serious solid waste disposal concerns in the greater metropolitan area of Toronto.(107) Similarities also abound in LLRW siting policy. In fact, until 1986 the Canadian approach to low-level radioactive waste facility siting was in many respects a carbon copy of the United States.

Different policy styles or political cultures cannot explain the recent trend of cooperation in Canada regarding LLRW management. True, Canadian political culture is widely viewed as less adversarial and more deferential to government authority than is American political culture.(108) In addition, Canadians seem less apprehensive about nuclear power in general, and Canadian environmental advocacy groups have been less successful in fostering anti-nuclear sentiment than their American counterparts. Nonetheless, public concern in Canada over nuclear power, radioactive waste management, and other environmental concerns has risen since the 1970s.(109) Also facility siting was mired in NIMBY controversy until a fundamental shift in policy direction in the mid-1980s.

The countries do differ in that federal environmental legislation and courts in Canada generally pose fewer potential stumbling blocks to agreements than their American counterparts. There is, for example, no Canadian equivalent to the United States' Endangered Species Act(110) or right-to-know legislation.(111) It is important not to overstate these differences, particularly in recent years with the growing "Americanization" of Canadian environmental law and adjudicatory practice.(112)

As in the United States, federal legislation in Canada requires federal government use of environmental impact statements that consider environmental and human health hazard for large development projects.(113) The Environmental Assessment and Review Process (EARP) is administered by the Federal Environmental Assessment Review Office (FEARO) and rivals NEPA in many respects. There are, however, two major differences in how the respective federal governments use environmental impact statements. First, the Canadians concentrate their review efforts only on very large projects proposed by government agencies. Second, the EARP is driven not by judicial decisions but rather by environmentally informed panels that formally and publicly advise the minister of environment on each case. "NEPA works because of pressure from the courts, but in Canada judicial review is much less likely to second-guess administrative judgments," explained a senior Environment Canada official, "that's why the public review process is so important, because it is highly visible, and it puts considerable pressure on the government to follow the requirements of the panel."(114) A 1991 decision by the Supreme Court of Canada, however, suggests that the judiciary will take a more forceful role in this process in the future, aligning the roles of EARP and NEPA more closely.(115) As with NEPA in the United States, it remains very difficult to discern the extent to which Canadian environmental impact assessment is an effective tool. A comparative analysis of the two programs concludes that the American requirements "thus far certainly have been more rigorous, and appear to have generated more assessment activity," although this examination does not take into account more recent developments in EARP.(116)

These differences are significant but do not contribute much to the differing outcomes in LLRW waste facility siting. American states and compacts remain free, under federal legislation, to pursue the approach to siting developed in Ontario if they wish. The larger political questions of the willingness of sub-national officials to contemplate voluntary, open-ended strategies is, as we shall discuss below, a far more substantial hurdle than any judicial pressure or administrative obstacle.

A. Early Stages in Canadian LLRW Management

Similar to the United States, Canada developed a regulatory infrastructure for nuclear power and related wastes shortly after World War II. In 1946, the Canadian Atomic Energy Act created the Atomic Energy Control Board (AECB), which retains authority for licensing and regulating the nuclear industry, including waste storage and disposal facilities.(117) It is distinct from Atomic Energy of Canada Limited (AECL), which is responsible for federal research and development related to atomic energy, and Ontario Hydro, a provincial public corporation that is responsible for that province's nuclear power plants.(118)

The AECB does share regulatory authority in the sense that it typically confers in a "working group" process with related agencies, such as Environment Canada and the Ontario Ministry of the Environment. It is not, however, bound to incorporate recommendations from these agencies into any final rules. Uniquely in Canadian environmental affairs, there is no formal sharing of regulatory power with provincial authorities, even in Ontario, the location of sixteen of the eighteen nuclear power plants in Canada Such, an intergovernmental relationship is also lacking in the United States in high-level radioactive waste management and has contributed to the federal government's largely unsuccessful efforts to establish disposal sites.(119)

Like the United States, Canada already has numerous de facto disposal "sites" for low-level radioactive waste. Most nuclear power plants keep such wastes on site under "interim storage" provisions, although these wastes could eventually be shipped to a more permanent central facility. In turn, wastes generated from the use of radioisotopes sold by the AECL Commercial Products Division must be returned for burial at the AECL Chalk River Nuclear Iaboratories. Finally, perhaps the most controversial disposal sites are located in and around the town of Port Hope resulting in a Canadian, radioactive waste counterpart to the American Love Canal scandal. Indeed, it was controversy surrounding the Port Hope case that put the radioactive waste disposal issue on the Canadian political agenda more than fifteen years ago and has triggered a search for more effective siting and disposal methods.

B. Port Hope and Siting Conflict

The problem of radioactive waste disposal at Port Hope actually precedes the formation of the AECB and the development of the nuclear power industry by more than a decade. In 1933, a radium refinery was built in Port Hope, located one hundred kilometers east of Toronto on the north shore of Lake Ontario. The refinery was primarily involved in making products used in medicine. By 1942, however, uranium refining and conversion began at the same site, reflecting Canada's role in the development of the atomic bomb. In its early stages, American investors largely financed the refinery. In 1944, Canada nationalized the site and Eldorado Resources Limited managed it. Eldorado is now a semiprivate company known as CAMECO.(120) The radium portion of the project ceased operation in 1952.(121) The refinery deposited wastes at several sites within the town of Port Hope from 1933 to 1948. In 1948, these sites were replaced by an L-shaped, thirty-six hectare site at Welcome, located one kilometer west of Port Hope, but still within township boundaries.(122)

Because of the discovery of arsenic contamination in a pasture and a stream at the Welcome site in 1955,(123) a new disposal site, Port Granby, opened in Clarke Township (now the Town of Newcastle). Materials from the Port Hope area were moved to Port Granby, an eighteen-hectare site located sixteen kilometers west of Port Hope. The site was bounded on the north by a road and on the east and west by agricultural land and consisted of a central plain with featured steep bluffs to the south which dropped thirty-five meters to Lake Ontario.(124)

In 1975, radioactive contamination was discovered in the Town of Port Hope. This contamination is dispersed around the community. Most is found in radioactive soil, but radioactive waste was deposited in the Port Hope harbor and in the contaminated building material of many town structures. Once the extent of the contamination was realized, AECB tore down sections of the town. Approximately 5,000 truckloads of waste, comprising 200,000 cubic meters, were transferred to Chalk River. Other parts of the community remain fenced off as "nuclear reservations" because of their high levels of contamination.(125)

In response to this discovery, the AECB established a federal/provincial task force to clean up Port Hope and the uranium mining communities of Elliot Lake, Ontario, and Uranium City, Saskatchewan. Previously, the AECB had not been significantly involved in waste management and had never licensed or regulated low-level radioactive waste sites. As in the United States, waste management issues were of minimal public or governmental concern until episodes of unsafe disposal practices became known. In 1975, approximately when the American government began to examine past disposal practices more carefully, the AECB issued its first license, for Port Granby. In its January 1977 reissue of that license, the AECB urged remedial efforts to bring contamination of ground and surface water and leachate under control. Two years later, the AECB licensed the inactive Welcome facility, but provided guidelines for remedial action at that site as well.(126)

In 1980, the AECB directed Eldorado to embark on a program to relocate 350,000 cubic meters of contaminated soils containing uranium and radium. Initially, Eldorado was to maintain soils in interim storage or in-situ within the Town of Port Hope as an interim measure, inadequate for the long term. Ultimately, the AECB envisioned relocation to a permanent disposal facility.

Eldorado responded by asking that the Port Granby and Welcome sites be decommissioned. The AECB, in turn, asked Eldorado to proceed in planning waste management facilities (including design and siting operations) under the federal EARP. As requested, Eldorado studied the possibility of locating a new site in the area that could accommodate 660,000 cubic meters of contaminated soils from the Port Granby and Welcome sites.(127)

Consequently, in 1982 the Ministry of Energy, Mines and Resources (MEMS) directed the AECL to create the Low-Level Radioactive Waste Management Office (LLRWMO). This office was created to manage the pre-1948 Port Hope wastes, now designated as "historic radioactive wastes." The wastes include those "which were managed in the past in a manner no longer considered acceptable but for which the original producer cannot reasonably be held responsible."(128) The LLRWMO added an additional 220,000 cubic meters of waste to the waste AECB had already targeted for disposal, and Eldorado began searching for a facility capable of handling at least 880,000 cubic meters of wastes and soils.(129)

In many ways Eldorado's approach to siting resembled troubled approaches to hazardous waste facility siting in Ontario, Florida, and New Jersey and LLRW siting in Connecticut, New York, and Michigan. This top-down approach precluded broad public education and extensive public input. For example, Eldorado's first step was to examine possible sites, using various technical criteria to assess the suitability of each. In August, authorities announced that Eldorado "had taken options on two properties in the Port Hope area" and would select one after completion of surface geological assessment on both sites.(130)

The authorities delayed any opportunity for public participation until after the August announcements, confining input to the federal EARP. The government appointed an environmental assessment panel that received the formal site proposal and an environmental impact statement. Authorities eventually made this material available to the public and planned local "issue identification" or "scoping" meetings. However, the public reaction to the announcement of the two site candidates was so strong that the government delayed these meetings until after final site selection. In reaction, public opposition so intensified that the federal government suspended the process and dropped the two sites from further consideration.

C. The Task Force and the Social Process

In place of the Eldorado program, Gerald Merrithew, Minister of State for Forestry and Mines, appointed an independent Siting Process Task Force in 1986 to develop a less confrontational site selection process.(131) The Task Force was commissioned to focus its efforts on "the development of a process for siting a disposal facility in Ontario for the existing, ongoing and historic wastes in the Port Hope area, and where advantageous, for the disposal of other existing and ongoing low-level wastes located in the province."(132) The main objective of the process was to identify one or more voluntary host communities, each with a suitable disposal technology.

The Task Force, in turn, recommended a process driven by "social" rather than "technical" criteria to resolve the LLRW disposal problem. In many respects, the successful experience of siting a comprehensive hazardous waste disposal facility m Alberta in the mid-1980s became a model for the Task Force in developing the new process for LLRW disposal facility siting. After a pair of NIMBY conflicts over privately proposed sites in the absence of prior public participation, Alberta opted for a moratorium on any siting proposals until the government employed extensive public education efforts.(133) The education program explained the nature of the hazardous waste problem m the province and also invited communities to consider volunteering to host a disposal and treatment facility. After hundreds of public meetings, five communities actively entertained accepting such a facility Ultimately, in 1984 residents of the Town of Swan Hills (209 kilometers northwest of Edmonton) voted overwhelmingly to supply a site.(134) It opened in 1987 and remains a central component of the most comprehensive hazardous waste management system in Canada or the United States.(135) The facility continues to operate with an unusually broad base of community support and strong relations between facility managers and the public. Manitoba replicated this process and reached a voluntary siting agreement in 1992.(136)

The process proposed in the 1987 Task Force report, entitled Opting for Cooperation,(137) drew heavily on the Alberta hazardous waste process. The Task Force was highly critical of the AECB for allowing technical criteria to drive the previous selection process, thereby failing to consult with affected communities until Eldorado had completed site selection. Not only had the AECB relied heavily on technical rather than social criteria in its siting endeavors, according to the Task Force, but it also insisted upon disposal of low-level radioactive waste through land burial rather than consider storage or other methods.

Given these concerns, the Task Force strongly recommended a new siting process in which potential volunteer communities would have the opportunity to learn about the problems of LLRW management as well as the possible economic rewards if they decided to accept a site. Under the Task Force's recommendation, volunteer communities should be free to opt out at any point in the exploratory phases of the process. Those deciding to proceed would become full partners in making relevant decisions. As a result, important features such as site selection and design, type of disposal technology, and impact management, are left open to negotiation rather than imposed by authorities.(138) Finally, not only does this cooperative consultative process guarantee the health and safety of a volunteer community's citizens, but equity payments also assure that the community is better off in economic terms after site construction was completed than it was before. The extraordinary emphasis on consultation prior to launching the technical studies associated with site selection and design was a reflection of the following sentiment:

... the greatest difficulty faced in radioactive waste management

is not technical, it is social. It is the problem of effectively responding

to the public perceptions of the dangers of radiation and the

peculiar dread in which the public holds all things having to do

with radiation and radioactivity.(139) In order to achieve the goal of siting a new LLRW facility, the Task Force suggested a five phase process: 1) six months to establish guidelines, 2) two to six months to hold regional information meetings, 3) six to twelve months to consult with those communities choosing to learn more about volunteering for a site, 4) eighteen to twenty-four months to assess the project, and, 5) six to nine months to implement the project.(140)

D. Revising the Classification System

In addition to addressing public fears, the Task Force discovered a serious waste classification problem. In the past, site selectors used administrative criteria rather than scientific or technical criteria. Aside from high-level radioactive waste (primarily spent fuel from nuclear power stations), the selectors categorized all other wastes as low level. These other wastes were divided into four categories: 1) historic wastes (managed by the LLRWMO for the federal government), 2) ongoing LLRW (managed by each producer), 3) mine and mill tailings (these were managed by mining companies, except for unmanaged closed mines, managed by LLRWMO), and 4) incidental wastes.(141)

This classification scheme creates problems because its administrative criteria do not measure the relative danger of these materials. In contrast, the United States has utilized a three tier approach to LLRW classification since the early 1980s. It has not been policy of AECB to sub classify, but Ontario Hydro (the major owner of nuclear power plants) and AECL have done so as they manage their wastes. Nonetheless, in general the Canadian classification scheme misleadingly implies that historic wastes and uranium tailings are significantly different in their physical characteristics and radiation hazards. Because the categories do not reveal physical characteristics or hazards, they serve to further complicate the waste management process.(142)

The Task Force decided that the administrative classifications were inadequate in determining which wastes are most dangerous and require urgent action.(143) It identified as high priority deposits the Port Hope and Port Granby sites and abandoned uranium mine tailings, as medium priority deposits the Welcome facility and Chalk River Nuclear Laboratories (waste site for AECL), and as low priority deposits about ten sites, including the Bruce facility that handles LLRW generated by Ontario Hydro.(144)

E. Exploring Alternative Disposal Methods

The new Task Force administrative classification system made it possible to determine which deposits needed immediate attention and emphasized the conflict between AECB and the Task Force regarding what kind of attention the deposits should receive. While the AECB asserted that permanent disposal through land burial is the most appropriate method,(145) the Task Force judged that practical short-term management solutions would be better. It emphasized that it was unsure why the AECB considered such costly disposal remedies when only a small percentage of LLRW presents serious problems. Weighed against the immediate danger inherent in sites like Port Hope and unfenced uranium mines, these considerations warrant less attention.

The Task Force concluded that in situ storage options may provide less costly and more easily attainable remedies for uranium tailings, phosphogypsum wastes, and the Port Hope area deposits. However, these less costly, short-term remedies will not adequately remedy the level of waste and contaminated soil at the Port Granby site, given the engineering needed to stop erosion. Furthermore, with the addition of Eldorado wastes, the Port Granby site will exceed its capacity in three years.(146)

Despite the availability of several less costly short-term options to the AECB's disposal plans, the Task Force's primary charge was to help site a new LLRW facility and approximate its costs.(147) Under the assumption that 880,000 cubic meters of waste will require removal and storage, the Task Force estimated the costs in Canadian dollars to be as follows: engineered trenches, $215.6 million; above ground vaults, $310.6 million; below ground vaults, $453.1 million; modular concrete canisters, $384.5 million; and mined caverns, $484.1 million.(148)

Transportation will add even more to the expense of the new site. Although sixty percent of Port Hope wastes fall below the radioactive thresholds that require extraordinary shipment, it would be too costly to segregate the materials below and above regulatory thresholds. Therefore, all wastes must be transported as radioactive material. Depending upon the means of transportation and the traveling distance costs could range from seven to seventy-six million dollars (Canadian). Including site repair after removal, associated infrastructure developments and a fifteen percent contingency, the transportation of the 880,000 cubic meters of wastes to a new site would run between $289 and $760 million Canadian).(149)

F. Defining the Social Process

The Task Force concluded its preliminary forecast by suggesting that the challenge in effective radioactive waste management lies primarily in countering public apprehension about radioactive waste.(150) Consequently, future implementation plans must include the following principals: 1) a fall range of disposal options, 2) an emphasis on "improved management" and "long-term storage," 3) detailed statements about management activity for each affected community, 4) input from advisory agencies to balance AGCB perspective on LLRW management, and 5) public access to the siting process to ensure that each community understands regulatory requirements.(151) These principles ground the five phase process which the Task Force developed to involve the host community in construction and management plans for a storage site capable of handling 880,000 cubic meters of contaminated soils and materials.(152)

Phase One of the process creates a new Siting Task Force (distinct from the Task Force proposing this process) which establishes guidelines for siting a new LLRW facility. Independent expert and public review of background reports shapes these guidelines.(153) Phase Two plans regional information sessions and corresponding regional profiles. These profiles provide community participants with an overview of the economic, social, infrastructure and topographic suitability of potential sites within the process. Letters informing community representatives attending the regional meeting of the Task Force's continued interest in their community as a potential site follow these sessions. Additional letters invite those communities still interested in the siting process to so indicate to the Siting Task Force.(154)

In Phase Three, the Siting Task Force provides interested communities with additional information and opportunities to consult among themselves and with outsiders. The development of more detailed community profiles would allow for accurate assessments of a community's prospects (economic, social, environmental). Community-wide information sessions follow preliminary studies and consultations. A report is submitted for the approval of local council (the community's general purpose governing body). The local council then appoints a community liaison group (CLG) to carry out continued consultation and information sessions independent of the council. Finally, the council formally requests the Siting Task Force to implement Phase Four.(155)

This phase marks the end of serious technical study of site and storage technologies. Furthermore, the community participates in an evaluation of potential environmental impacts and cost/benefit analyses of economic and social impacts. The public would have access to documents concerning all potential risks and costs of transportation to the site prior to a final plebiscite to determine community acceptance.(156)

Finally, in Phase Five, the local council reviews implementation agreements for final approval. A recommendation then goes to a cabinet-level committee for federal government approval. After cabinet approval and application for zoning changes a Board of Directors proceeds with implementation.(157)

G. Implementing the Social Process

On December 11, 1986, the federal government established a Task Force to look into LLRW siting. A year later it released the results of its deliberations regarding a new siting method through a report entitled Opting for Co-operation.(158) On September 30, 1988, the Minister of Energy, Mines and Resources appointed a new Siting Task Force (STF) to implement the first three phases of the voluntary approach to siting. The second primary duty of the task force was to report back to the Minister in eighteen months regarding potential volunteer communities, disposal and storage options, the terms of reference for negotiation with local communities, and detailed cost estimates of implementation. In response to great public interest in the process, the new STF received an extended work period of twenty-three months.(159)

The STF adjusted the five phases, moving site elimination and the identification of technical options from Phase Four to Phase Three, as it appeared that keeping those activities in Phase Four would prove too costly. In short, continuing the process with a willing community would not be cost-effective if serious "natural" obstacles to siting a facility in that community existed. The STF could detect such a situation without all of the Phase Four technical studies.(160)

Besides clarification of site suitability and alternative technical options for potential host communities, other elements of the consultative process, particularly those concerning community liaison groups (CLG), merited attention. An initial decision opened all CLG meetings to the public. This represented a significant step, as Canadian governmental deliberations tend to provide less extensive opportunities for public participation than similar American deliberations in most areas of environmental policy.(161) In addition, a CLG could decide to opt out of the process at any time.

Furthermore, a community could decide to receive newly generated, as well as historic, radioactive wastes even if the amounts would be relatively small and it would therefore be only a part of the larger LLRW management solution. The STF also had to clarify what had to be in CLG reports to the local council and to itself. Finally, access-route CLGs had to participate in Phase Four so they, like targeted host communities, would maintain an active role throughout the LLRW planning process.(162)

Impact management guidelines were of particular importance to the new STF. The Task Force wanted an explicit, impact management policy that would ensure community awareness of the range of options available to them. Pursuant to this goal, in February 1989, a Toronto workshop established four categories of suggestions for the impact process:

1) mitigation measures applied in design, construction and operation phases to prevent or reduce negative effects;

2) compensation measures to offset negative health or environmental effects or to enhance benefits to the local community;

3) contingency measures to detect problems and offer timely responses; and,

4) two-way community relations efforts so problems with construction and/or management could be dealt with in common. A community would not conduct its Phase IV vote until a plan incorporating these suggestions was in place.

Tentative site elimination criteria would accompany these general guidelines. In September 1989 experts examined draft criteria and decided to divide the criteria into two levels. In Level One if just one criterion was met, the site warranted elimination. In Level Two, one fulfilled criterion would not result in immediate elimination. Communities could add criteria if they wished.

Level One consisted of the following five criteria 1) resources which the Ministry of Natural Resources identified as requiring protection; 2) federal or provincial parks, existing or proposed; 3) natural areas; 4) unstable lands; and 5) archeological, historic or cultural resources. The criteria resemble types of land exempted from consideration for siting various waste disposal facilities in North America and Europe. After CLGs suggested modest revisions in January 1990, fourteen communities meeting with the STF agreed to these criteria However, the LCGs received the option of defining and ranking the criteria in a locally appropriate order.(163)

As the STF established these guidelines, Phase Two consultations with regions and communities began. In December of 1988, 850 communities received exploratory letters. In February of 1989, two representative from each community received an invitation to one of eight regional information meetings.(164)

These meetings focused on the need for improved management of LLRW, current process principles, and the safeguards available to those interested in pursuing the process. Community representatives, in turn, asked about community consultation procedure, about the dangers involved in transporting LLRW to their communities, about ongoing problems associated with managing such a facility, about type and number of jobs available to local citizens if a facility were built, and about impact on tourism.(165)

After regional consultations, twenty-six communities requested additional information. Between the regional meetings and follow-up informational sessions held by the STF, five communities dropped out After the informational sessions an additional seven withdrew, leaving fourteen to enter Phase Three of the process.(166) The STF discovered that local opposition became difficult to counter by community citizens who wanted to proceed in part because it could not always answer specific questions on the technical and employment aspects of the project Many of these answers would not become apparent until after the completion of the third and fourth phases of the process.

The concerns of communities proceeding to Phase Three fell into five categories: 1) the costs and risks associated with transporting LLRW from Port Hope to a volunteer community, 2) the number of long-term jobs created would be balanced against health risks, 3) problems associated with accepting ongoing, as distinct from historic, wastes, 4) the long-term health effects of exposure, and, 5) the impact on tourism.(167)

Despite these concerns, fourteen communities decided to create their CLGs, using various formal and informal contacts, including advertisements in local newspapers. The STF staff called listed CLGs to see if they met the criteria. Newspapers printed a final list to allow a two-week comment period regarding the list's being representative of the community. Fourteen CLGs formed by the end of April 1990. By request of the local councils, the Siting Task Force assumed responsibility for selecting CLG members.

As this process unfolded, the advantages of a socially driven process became clear. In a technically driven process, potential host communities react with surprise and anger upon learning of their nomination as a possible site. They are eager to resist any form of cooperation with siting authorities and may even compete with each other to persuade project proponents to eliminate them from consideration and select another site. This pattern was certainly evident in the technical siting approach to LLRW employed in Canada prior to 1986. The socially driven process with which the STF has experimented avoids this kind of confrontation.

The results of extensive consultation within communities, between communities and the STF, and between the communities and outside experts varied considerably.(168) The concerns of those communities that opted out were familiar. 1) the potential health risks, and the risks to ground and surface water, were too high, and a baseline health study was absolutely essential before proceeding (the STF disagreed), 2) the potential negative impacts on economic development and tourism were too severe, 3) the transportation risks and effects were also too great, 4) finally, the long-term technology needed to manage LLRW was too unreliable.(169)

Other concerns involved a lack of trust in the federal government's willingness to pay for compensation and a well-managed facility as well as a continuing distrust of the AECB. Concern also arose from the belief that if a community were to accept LLRW, other sorts of waste, including high-level radioactive or hazardous materials, would ultimately migrate there for disposal.(170)

The province of Ontario's extremely controversial efforts to locate sites for disposal of hazardous and solid wastes in the 1980s and early 1990s exacerbated these fears. In both of these cases, technical, top-down approaches to facility siting have led to the familiar outcome of gridlock and widespread concern that Ontario's effort to impose a major hazardous waste disposal facility near the American border could make it a magnet for American wastes. In contrast, the "social" approach to siting completed in Alberta and Manitoba has resulted in firm guarantees concerning the types of wastes that would fill new facilities.(171)

H. Possible Site Volunteers

These withdrawals did not mark the end of the voluntary siting process. Despite concerns that prompted a number of CIGs to opt out, several communities remain interested in the siting process and have continued deliberations with STF officials through 1993. Moreover, one source community was interested in cleaning up LLRW located within its own boundaries.(172)

Among the potential volunteer communities, the Deep River Council (a neighbor of the Chalk River facilities of AECL) chose to proceed after its CLG said "no" for four cluster communities.(173) The Deep River Council agreed to continue the process, subject to conditions.(174) Chalk River agreed to go along with the Deep River Council.(175)

Geraldton, located furthest west of all the potential sites, expressed interest in the opportunity for diversification which the process offers but was concerned over health impacts.(176) Despite these concerns, the community is generally thought to favor continued negotiation. Homepayne, on the other hand, faced strong local opposition that ultimately led to its withdrawal in April 1992.(177) The Township of James (Elk Lake) faced complications arising from conflicts with the neighboring Township of Kenabeck. The Council has decided to hold a referendum on the possibility of siting and to proceed according to the results.(178)

In addition to the potential volunteer communities, some source communities have decided to proceed to Phase Four as well. Port Hope is most active of these communities. Its citizens wanted most of all to find a permanent site for the wastes deposited within town boundaries.(179) Furthermore, they want to play a major role in the clean up and hope to do this by having their CLG stay in operation until the process is over. To fulfill its role, the CLG seeks authority to hire consultants and to contract for studies. In short, the Port Hope community, through its CLG, hopes to participate in the establishment of criteria for selecting a site, in the clean up of old sites, and in the decision regarding which wastes will require transfortation from the old to the new sites.(180)

During the latter months of 1992, the Port Hope community demonstrated intensified interest in the possibility of hosting a central facility. In October, the Port Hope Council passed a resolution which expressed a willingness to continue negotiations, but which also emphasized crucial conditions such as components of the compensation package.

Construction of a new harbor for Port Hope is central to deliberations over LLRW facility siting. The International Joint Commission has identified Port Hope Harbor as one of the forty-two most environmentally hazardous sites bordering the Great Lakes. In response, the Port Hope CLG recommended Port Hope Harbor for inclusion under criteria which the CLG and Siting Task Force would develop.(181) The CLG also recommended that the government of Canada consider creation of a new harbor in Port Hope as a demonstration of its commitment to the environmental integrity of the Great Lakes. Links between federal and provincial government could integrate LLRW management with larger environmental issues like sediment contamination and area-wide remediation, leading to increased public support and greater integration of environmental management in this part of Ontario.(182)

Hope Township, unlike Port Hope, did not complete the process. Its CLG defined its role in the process as including: 1) controlling evacuation and transportation of wastes from the Welcome LLRW site, 2) participation in the consultations that determine site location, and 3) continuing to function until the process is complete.(183) The Hope Township Council supports the above.(184)

Newcastle, sustained in its belief that Port Granby wastes must be moved outside its boundaries, has continued to be involved in the process. Scarborough did not form a CLG because it has already worked out a formal agreement with the federal and provincial governments regarding the disposal of a small amount of LLRW in that community.

The end of Phase Three found the Councils of Deep River, Chalk River, Geraldton and Homepayne in accord with moving into Phase Four. Chalk River, given the absence of available land, will probably not be able to participate, and, as noted, Homepayne ultimately withdrew. The source communities (Port Hope, Hope Township and Newcastle) will continue into Phase Four as well.(185)

In August 1991, Patrick MacCulloch, President of Peak Consultants, became chair of an independent Siting Task Force charged with completing Phases Four and Five in about four years. MacCulloch chaired a committee on training and education and was founding chair of the Mining Industry Technology Council of Canada which initiated and managed cooperative government and industry research and development programs. The new Siting Task Force received a budget of twenty-two million Canadian dollars over four years. The volunteer communities will explore the technical, environmental and social impacts of receiving wastes, while source communities will examine the impact of removing wastes. Joint decision making will be the Task Force's focus and will include the beginning of operational planning in the remaining volunteer communities (Geraldton and Deep River) and the remaining source communities (Port Hope and Newcastle).

IV. WHEN SITTING WORKS

The signs of evolving cooperation in LLRW siting in Canada are remarkable, given Canada's and the United States' historic opposition to siting all sorts of waste disposal facilities. Both nations have abandoned their historic tendencies to view waste disposal as a purely private matter, and to thus place few restrictions on waste generators' choices of disposal methods. In so doing, both have struggled to devise policies to reduce the volume of wastes generated and to assure safe disposal, treatment, or storage for wastes continuing to be generated or wastes that have been deposited and require remedial measures.

Environmental policy has generally moved more quickly to the top of the political agenda in the United States than in Canada; in other words Washington, D.C. and state capitals have tended to devise rigorous regulatory policy before their counterparts in Ottawa and provincial capitals.(186) As a result, in areas such as air and water pollution control and toxic substance regulation, Canada and its provinces have often turned to the American experience in modeling their own legislation and regulation. One of the most recent examples of this diffusion of innovation is Ontario's recent efforts to model water pollution control policy on America's experience with its Clean Water Act.(187)

In many areas of waste disposal policy, the United States has again acted first creating federal program such as Superfund(188) for which no Canadian or provincial counterpart yet exists. The United States also has an array of approaches to facilitate agreement over the siting of new facilities. In dealing with hazardous wastes, for example, Florida and New Jersey, have attempted top-down siting strategies, using technical criteria to pinpoint preferred siting targets. Michigan and Ohio, by contrast, have deferred siting decisions to private corporations which select preferred sites and then attempt to bargain with potential host communities. Finally, Massachusetts and Wisconsin have attempted to expand these corporate and community negotiations by providing neutral mediation services to attempt to resolve conflicts.(189)

The main lesson these strategies offer is that none of them seems likely to work. Each approach has resulted in a NIMBY type conflict time and again. Each of these strategies has failed to establish an atmosphere of trust, in large part because prospective communities feel unfairly targeted. Indeed, a common feature of these three distinct siting strategies is that none of them has a larger public consultation process or serious exploration of burden sharing for waste disposal among multiple communities or states. Instead, governmental agencies or private corporations simply inform communities that based on technical criteria they have been designated as a preferred site. Siting thus becomes a narrowly focused, take-it-or-leave-it proposition that most communities choose to reject.

The American experience in siting is one that Canada has apparently learned from and chosen to avoid, at least in the case of LLRW. Examining the dismal track record of many of its own provinces in hazardous and solid waste facility siting and its highly contentious early approach to LLRW siting, Canada undertook a significant reform of its siting policy in 1986. Canadian LLRW authorities eschewed the sorts of siting strategies used repeatedly without success in multiple states and provinces. Instead, they chose to model their new policy on a successful siting experiment completed in Alberta in 1984, and duplicated in Manitoba in 1992.

The Alberta and Manitoba agreements have a set of key conditions for siting. If met, these conditions may significantly increase the prospects for serious deliberation over siting choices and result in an agreement that can win wide political support. Applying these conditions to the evolving case of LLRW siting in Canada and to the United States indicates that the Canadians have been more successful in meeting these conditions than the Americans. This may explain why Canada seems so much more effective at establishing extended public dialogue over LLRW, and appears closer to reaching a siting agreement, than the United States.

A. Extensive Public Participation

In Alberta and Manitoba's early siting processes, extensive public education and participation efforts were crucial.(190) Before exploring any specific sites, government officials undertook major efforts to inform citizens of the nature of the hazardous waste problem in their provinces and the broad remedies available. Next, officials established a voluntary process whereby they invited communities to explore the possibility of hosting a facility. The communities were free to withdraw from the process at any time and were assured that siting would only proceed if the communities' electorates clearly expressed an interest.

Such a pattern closely resembles the Canadian LLRW siting effort. Public information and participation activities were probably not as numerous as in the western provinces but they were extensive. All involved communities had the option to withdraw at any point of the process. They were also assured of direct input in the selection of technology at any new facility that might be opened.

By contrast, the Ward Valley site in California reveals the relative absence of openness and voluntarism in the American LLRW siting experience. Californian authorities attempted to inform the public and provided ample opportunity for public comment. However, technical considerations continued to drive the site selection process, dramatically narrowing the field of potential sites at a very early stage of the process. In fact, much of the public information and participation activity occurred after a small number of potential sites had been selected. The site finalists did not have a provision for undertaking a plebiscite or referendum on the matter. Nor did they have any opportunity to influence the technology that would be used. With the possible exceptions of Illinois and Nebraska, no other state or compact appears to have even gone as far as California in devising extensive mechanisms for public information and participation. Although Federal law does not preclude such participatory provisions, states and compacts have not pursued them to date.

B. Burden Sharing and Freedom from Exploitation

The successful siting efforts in Alberta and Manitoba further indicate that citizens want reassurance that they will not become a magnet for wastes from other provinces or states if they agree to open a new disposal facility. Potential host communities understandably are reluctant to host a facility if their unilateral action will make it easier for other communities to skirt responsibility for managing their own wastes. Some formal agreement to share the burden for waste management in a fair way was crucial in both Alberta and Manitoba.(191) The agreements entailed, in one or both provinces, commitments to restrict out-of-province waste imports to any new facilities, provide regional waste transfer stations, develop supplemental storage and disposal facilities at other locations, and to reduce the volume of wastes being generated and requiring disposal. Such provisions fostered an atmosphere of trust and a general sense of broad burden sharing. This differed markedly from traditional siting practices whereby one community was selected to shoulder the entire waste management burden and considered itself, quite literally, dumped upon.

Canada's LLRW siting efforts have promoted the notion of burden sharing in a variety of ways. Perhaps most important, siting officials have remained open to the number of places that will participate in waste management and whether they will provide waste storage or more "permanent" disposal. One major facility may emerge while other communities develop more modest facilities. An option such as this is foreclosed in the American states or compacts, which intensively search for a single site to employ a single disposal technology to dispose of all the wastes generated within a state or compact.

The Canadian process has also benefitted from a general sense of assurance that it will not become a magnet for wastes from other parts of Canada. Since Ontario generates the vast majority of Canada's LLRW, there is little threat of exploitation by neighboring provinces. Moreover, officials have shown no intention of opening any new facility to waste from the United States or other nations. Such a shift could indeed undermine the cooperation that has emerged thus far.

American states have enjoyed no such assurances, despite legislative provisions to allow compact states to close access to wastes generated outside their boundaries. Indeed, California and other states have been mired in controversy over whether any new facilities would be able to exclude imported or non-radioactive wastes. Court challenges by more than a dozen states to the constitutionality of the compact process have further undermined public confidence that siting would include assurances that new facilities would not become magnets for waste from around the United States.(192)

The final aspect of burden sharing, combining siting efforts with expanded efforts to reduce the volume of waste being generated, has proven less prominent in LLRW deliberations in either Canada or the United States than in the hazardous waste facility siting agreements in Alberta and Manitoba. Both nations have made significant strides in waste reduction in recent years, but neither has formally incorporated burden sharing into its siting deliberations. By contrast, several European nations have made this linkage central to their siting policies.(193)

C. Public-Private Partnerships 

Alberta and Manitoba were also successful in devising managerial partnerships to defuse concern over long-term commitments to technical and financial feasibility of new facilities. Many private waste management corporations in both Canada and the United States have failed to maintain high levels of operational proficiency and to assure fiscal commitment to facility operation. In many siting controversies, the questionable integrity of private corporations which will be responsible for facility operation scuttles any possibility of agreement.

Both Alberta and Manitoba created public-private partnerships to assuage these very concerns.(194) Both established "crown corporations," responsible for sharing facility management with private firms overseen by provincial regulatory authorities.(195) In Canadian LLRW, the governmental role will be similarly large and enduring in any new storage or disposal facilities.

By contrast, California has proposed to delegate all managerial authority to a private firm, US Ecology.(196) This firm has been embroiled in numerous controversies over past LLRW management practices and is poorly positioned to win public respect and confidence.(197) Moreover, one of the most compelling arguments against the proposed Ward Valley facility is the fact that US Ecology is only accepting responsibility for the site for 30 years. While California plans to monitor the site for an additional 100 years,(198) the state's responsibility for any leakage that might occur after US Ecology departs is unclear. To date, California has not assured its citizens that they will not be stuck with the cleanup costs required after US Ecology leaves. The Canadian public's greater concentration of management responsibility for management has helped to defuse any comparable controversy in Ontario.

The three broad features of public participation, burden sharing, and an extensive governmental role in facility management have contributed to the evolution of cooperation in Canadian LLRW management, much as they did in hazardous waste facility siting agreements in Alberta and Manitoba. While the size and nature of economic packages are possible structural explanations for the different outcomes in LLRW siting in Canada and the United States, they are less significant given the strong similarities between them in both nations.

V. TRANSFERRING THE PROCESS TO THE UNITED STATES

Such comparisons leave unresolved the issue of whether the differences in siting outcomes between Canada and the United States are structural or cultural in nature. Many features of Canada's society appear inclined to the cooperative outcomes evident in Alberta and Manitoba, and possible LLRW siting in Ontario. However, in many instances, the process of siting facilities for disposal of hazardous, biomedical, and solid wastes is every bit as contentious in Canada as it is in the United States. Moreover, NIMBY-like controversy dominated the Canadian experience of LLRW siting before officials shifted course in the mid-1980s.

Political, legal, and cultural differences aside, the Canadian approach to LLRW siting has many features that American waste management policy has never seriously considered. These features parallel, in many respects, the sort of reforms that a number of prominent policy analysts have endorsed in recent years. Daniel and David Morell, for example, have argued that American waste policy needs to move beyond its adversarial approach which is expensive to implement and yet delivers limited environmental and public health protection.(199) They call for a series of reforms, including greater emphasis on meaningful public participation and reasonable sharing of burdens, that would involve many of the sort of efforts already in place in Canada.

The Canadian siting approach offers a model of participation that is designed to foster more democratic deliberation in examining waste management options. Whereas most siting policies narrow deliberation to a proposal for a single facility for a single community, Canada has attempted to broaden the scope of discussion. A broader scope allows citizens and government officials to devise agreements addressing community concerns and long-term waste management realities.

Individual states and compacts are not bound by federal legislation to pursue a top-down siting strategy. Indeed, California, Illinois, and Nebraska have experimented with somewhat more voluntary approaches, although none has gone nearly as far in this regard. Recently, Connecticut officials have conferred with Canadian officials about possibly adapting the voluntary approach in that state. In April 1993, the Connecticut legislature approved a new siting program which, like Ontario's emphasizes public education and participation.(200) This development confirms that the fundamental question concerning the United States' potential adaptation of the Canadian approach involves political acceptability rather than legal feasibility. Are LLRW officials prepared to open up their historically closed, top-down siting processes? Are American communities likely to be receptive and willing to explore such deliberations, or are they so distrustful of any approach that conflict is inevitable? These essentially political rather than legal questions represent the biggest uncertainties concerning America's capacity to adapt the Canadian approach.

The California case study suggests that, in the absence of an atmosphere of political trust, citizens can employ numerous legal tools to block possible siting agreements. In California, citizens opposed to the siting process have attacked it on the grounds of a possible violation of the Endangered Species Act and the execution of an intergovernmental land swap. One need only review the messy landscape of Canadian NIMBY battles, in solid and hazardous waste in many provinces and in prior periods of low-level radioactive waste, to realize that the United States is not unique in this regard. For example, Ontario's decade long hazardous waste facility siting controversy involved effective use of legal remedies by the opposition.(201)

Political scientists correctly note that the results of American efforts to foster greater public deliberation and input into policy making have often been disappointing. James Morone, for example, has lamented the recurring "democratic yearning" or "democratic wish," in American politics whereby Americans make some strides toward opening up avenues of political participation but fail to address fundamental questions of political power and equity in the process.(202) Thomas Cronin and others contend that the expanded use of "direct democracy" tools such as initiative and referendum fall prey to many of the same sort of abuses that befall representative democracy.(203)

Such cautionary statements, however, need not preclude exploration of more effective means for providing public participation and fostering serious public deliberation over complex public concerns. Perhaps the best model of a refined process for public participation in the United States comes not from environmental policy but from medical care. Recently, the state of Oregon has convened an unprecedented series of public meetings and hearings to examine options for rationing medical care to Medicaid recipients and uninsured citizens.(204) Through this public participation process the state reached a consensus prioritizing hundreds of medical interventions and eliminating from further coverage those thought least likely to contribute significant health benefits.(205) In turn, the savings from these expensive, high-technology procedures are to be used to provide an expanded preventative case program and to extend insurance coverage to uninsured or underinsured individuals.(206) Implementation of this strategy has begun following a 1993 Medicaid waiver from the federal government, and Oregon has formed a strong consensus that prioritization is preferable to the current system.(207) In this case, extensive provisions for public participation helped forge an agreement on one of the most technically and politically difficult issues facing the American political system: the rationing of medical care.

Without expanded public involvement, American efforts to manage LLRW may well continue to flounder in the years ahead. The possibility exists that America may not open new disposal or storage facilities for the rest of the century. As noted earlier, this could offer significant benefits, including increased pressures on waste generators to reduce the volume of wastes they generate. But even significant strides toward waste reduction and tight controls on new use of nuclear technology likely to generate wastes will not eliminate the problem of disposing of existing wastes or those likely to be generated in the future. In the absence of serious deliberation over what to do with these wastes, waste management is likely to be further decentralized to literally thousands of de facto sites around the nation. Many of these sites are ill-equipped for long-term storage or disposal and would pose profound problems for the basic monitoring and facility maintenance functions essential to protecting the environment and public health.

VI. GAME THEORY AND FACILITY SITING

Continuing research on the politics of LLRW facility siting may benefit from applying of certain game theory components that analyze conflictual relations and possibilities for consensus building. This could prove useful as the Canadian process continues to unfold and as the United States looks for alternatives to its current approach. "Prisoners' dilemma" games, for example, recognize the interdependency of political action and pinpoint many of the impediments to cooperative decision making. Such games would view siting as a strategic interaction between rational agents where each person prosecutes his or her self-interest and thus falls to provide for the collective interest.(208) In siting, this translates into potential host communities taking whatever steps necessary to thwart a proposed facility, but not necessarily exploring shared responsibility for waste disposal, storage, or reduction. This pattern suggests that, in many respects, the United States is mired in a classic example of a prisoners' dilemma conflict in LLRW facility siting.

Neither game theory nor prisoners' dilemma games are one sided theoretical constructs which invariably lead to conflict. Instead, they hold out the option that consensual behavior produces broader, more satisfying outcomes. In fact, much of the most important research related to prisoners' dilemma games over the past decade has explored the contexts in which such cooperation may emerge. According to a number of leading theorists, the fulfillment of certain conditions allows consensual patterns of dispute resolution to emerge and, in some instances, to endure.(209) These conditions include creating mechanisms for public participation, disseminating crucial information to the public in a timely and discernible manner, fostering long-term deliberation and relationships among various groups, increasing the general emphasis on the future rather than the immediate, and establishing governing norms and rules to guide conduct by officials of government and private firms, as well as the general citizenry.(210)

Satisfying the conditions makes deliberation and cooperation more possible than in the adversarial, "one-shot" variant. The very structure of the Canadian approach to low-level radioactive waste discourse in search of commonly-accepted strategies for waste storage and disposal. Although the Canadian approach has not yet resulted in a formal agreement over siting, it does suggest the possibility of moving beyond single-shot conflict toward a broader consensus in such matters. A more systematic application of this type of perspective, as well as games that examine governmental efforts to provide "assurance" to citizens and communities against exploitation in the event that they cooperate, may well prove useful as the American and Canadian cases unfold.(211)

(1.) See, e.g., Barry G. Rabe, Beyond the Nimby Syndrome: The Politics of Hazardous Waste Faculty Sitting in The United States and Canada (forthcoming 1994) [hereinafter Beyond Nimby]; Bruce A. Williams & Albert Matheny, Democracy, Dialogue and Social Regulation (forthcoming 1994). (2.) Ruth Marcus & Thomas W. Lippman, Court Rejects Key Part of A-Waste Law, Wash. Post, June 20, 1992, at Al. (3.) Canadian Ministry of Energy, Mines and Resources, Opting For Cooperation: The First Phases, Synopsis Report of the Sitting Task Force on Low-Level Radioactive Waste Management 9-12 (1990). (4.) Barry G. Rabe, Beyond the NIMBY Syndrome in Hazardous Waste Facility Siting, 4 Governance 194, 184-185 (1991). (5.) Barry G. Rabe, When Siting Works, Canada Style, 17 J. of Health Policy, Policy and Law 119, 119-142 (1992) [hereinafter Canada Style]. (6.) See Frances M. Lynn, Citizen Involvement in Hazardous Waste Sites: Two North Carolina Success Stories, 7 Envt'l Impact Assessment Rev. 347 (1987). (7.) See Canada Style, supra note 5, at 132-135. (8.) See R. Shep Melnick, Regulation and the Courts: The Case of The Clean Air Act (1983). (9.) Beyond NIMBY, supra note 1, at chs 4-5; Richard C. Kearney & Ande A. Smith, The Low Level Radioactive Waste Siting Process in Connecticut: Anatomy of a Failure, 24-26 Address Before the 1993 Annual Meeting of the American Society for Public Administration, (1993) (unpublished manuscript, on file with author). (10.) See, e.g., Edward L Gershey, et. al., Low-Level Radioactive Waste: From Cradle To Grave 117-134 (1990). (11.) Ray Kemp, The Politic of Radioactive Waste Disposal (1992). (12.) Id, at 83-130 (discussing approaches to radioactive waste disposal in Western Europe and Sweden). (13.) Frank Clifford, Boxer Alleges Cover-up of Nuclear Dump's Perils, LA. Times, Oct. 4, 1993, at A3 (California's political obstacles); Tim Novak, New Search for Nuclear Waste Site, ST. Louis Post-Dispatch, March 4, 1993 (discussing Illinois Governor Edgar's attempts to limit public input on locating a LLRW disposal facility). (14.) 42 U.S.C. [subsections] 2021b - 2021j (1988). (15.) Martin J. Moylan, State's Radioactive Waste Becoming Harder to get Rid of, Minneapolis-St. Paul CityBusiness, March 18, 1991, at 13, 14. (16.) Larry B. Stammer, Agency Seeks To Bypass Panel Blocking Dump, LA. Times, October 30, 1991, at A3. (17.) 42 U.S.C. [subsections] 2011-2282 (1988). (18.) See Idaho National Engineering Laboratory, Directions in Low-Level Radioactive Waste Management A Brief History Commercial Low-Level Radioactive Waste Disposal 19 (1990) [hereinafter INEL]. (19.) Mary R. English, Sitting Low-Level Radioactive Waste Disposal Facilities The Public Policy dilemma 6 (1992). (20.) Id at 9. (21.) INEL, supra note 18, at 1. (22.) Calvin Ozaki, et. al., Department of Energy Low-Level Radioactive Waste Disposal Concern (1991). (23.) 40 C.F.R [sections] 300, app. B (1992) (listing Maxey Flats as part of the National Priorities List). (24.) Sain H. Verhovek, Judge Delays Toxic Dump Town Wants, N.Y. Tow, September 18, 1991, at B1. (25.) Anthony Cardinale, State to Launch West Valley Study Next Week, The Buffalo News, June 2, 1993, at 1. (26.) Kirk Johnson, Connecticut Forced to Confront Being Its Own Waste Dump, N.Y. Tim, September 16, 1991, at B1. (27.) INEL, supra note 18, at 8. (28.) See Ozaki, supra note 22. (29.) 10 C.F.R. [sections] 61 (1983). (30.) Id. [subsections] 61.41 -.44. (31.) 10 C.F.R. [sections] 61.8; for a thorough discussion, see Edward L. Gershey, et. al., Low-Level Radioactive Waste: From Cradle To Grave (1990). (32.) 10 C.F.R. [sections] 61.2 (1983). (33.) 10 C.F.R. [sections] 61.7(5) (1983); for a regulatory definition of Class A, B, and C wastes, see 10 C.F.R. [sections] 61.55 (1993). (34.) 10 C.F.R. [sections] 61.7(2) (1983). (35.) Id. [sections] 61.7(5). (36.) INEL, supra note 18, at 10. (37.) John Walsh & Thomas Kerr, Approaches to LLRW Disposal Site Selection and Current Progress of Host States (1990). (38.) English, supra note 19, at 14. The data were compiled from 1990 data supplied by the National Low-Level Radioactive Waste Management Program, U.S. Department of Energy. (39.) Id. at ch. 4. (40.) Ozaki, supra note 22. (41.) Richard C. Kearney, Low-Level Radioactive Waste Management: Environmental Policy, Federalism and New York, 23 Publius. J. OF Federalism 57, 60 (1993) [hereinafter Environmental Policy and New York]. (42.) 42 U.S.C. [sections] 2021b-j (1988). (43.) Kemp, supra note 11, at 130-133. (44.) 42 U.S.C. [sections] 2021d (a)(1) (1988). (45.) Dawson Bell, Low-Level Waste Spurs High-Level Question, Detroit Free Press, Feb. 11, 1990, at 6E (1990). (46.) Gershey, supra note 10, at 133. (47.) On the early history of this legislation, see Richard C. Kearney & John J. Stucker, Interstate Compacts and the Management of Low-Level Radioactive Wastes, 45 Pub. Admin. Rev. 210 (1985); The Politics of Nuclear Waste (E. William Colgazer, Jr., ed. 1982); Richard C. Kearney and Robert B. Garey, American Federalism and the Management of Radioactive Wastes, 42 Pub. Admin. Rev. 12 (1982). (48.) 42 U.S.C. [sections] 2021d (1988). (49.) Id [sections] 2021e(a)(3); see also Barry G. Rabe, Low-Level Radioactive Waste Disposal and the Revival of Environmental Regionalism in the United States, 8 Envt'l and Planning L. Rev. 171, 180 (1990). (50.) Id. (51.) Gershey, supra note 10, at 126. (52.) 42 U.S.C. [sections][sections] 2021b-2021j (1988). (53.) Id. [sections] 2021e(d)(2)(C). (54.) Id. [sections] 2021e(e)(1)(D). (55.) Id. [sections] 2021e(d)(2)(C). (56.) David L. Congdon The Never Ending Story Low-Level Waste and the Exclusionary Authority of Noncompacting States, 30 Nat. Res. J. 65 (1990). (57.) English, Supra note 19, at 188. (58.) 112 S. Ct. 2408 (1992). (59.) Id. at 2414. (60.) James P. Lester, A New Federalism? Environmental Policy in the States, in Environmental Policy ic the 1990s 59, 62-63 (Norman J. Vig & Michael E. Kraft eds., 1990); William R. Lowry, The Dimensions of Federal ism, State Goverments and Pollution Control Policies (1992). (61.) 42 U.S.C. [subsections] 43214370b (1998). (62.) English, supra note 19, at 32-81. (63.) Kemp, supra note 11, at 139-142. (64.) Illinois' Low-Level Waste Site Back to Square one, Nuclear Energy Info, Jan. 1993, at 4-5; Charles Nicodemus, A-waste Dump Site Divisions Reviewed, Chicago Sun-Times, June 17, 1990, at 6; Charles Nicodemus, Nuclear Dump Site Hearings Open Today, Chicago Sun-Times, June 12, 1991, at 26; Charles Nicodemus, Nuclear Dump Rejection Sites Off Scramble, Chicago Sun-Times, Oct. 11, 1992, at 5. (65.) Peter T. Harbage, Burying the Past: The Necessity of Reconstructing Low Level Radioactive Waste Disposal Facility Siting Process in The United States (1993) (unpublished senior honors thesis, Department of Political Science, University of Michigan); see also Kemp, supra note 11, at 140-142. (66.) Kearney, supra note 9, at 25-26. (67.) Leonard Greenberger, Nuclear Waste and the NIMBY Syndrome, Pub. Util Fort., Nov. 1, 1991, at 93. (68.) Calif. A.B. 1513 (1982). (69.) Calif. S.B. 342 (1983). (70.) Calif. H. & S. Code [sections] 25877 (1993). (71.) H.R. 5232, 100th Cong., 1st Sess. (1987). (72.) Interview with California Radioactive Materials forum (CalRad) Member (1992) [hereinafter CalRad Interview]. (73.) Gloria Anderson League of Women Voters Southern California Regional Task Force, Disposing OF Low-Level Radioactive Waste in California: A Guidebook for Citizen Participation (1990). (74.) Interview with Robert Rittenberg, Project Manager, US Ecology, Inc. (1992) [hereinafter Rittenberg interview]. (75.) Shawn Hubler, Only California is on Track For Nuclear Dump, LA. Times May 20, 1991, at Al. (76.) CalRad Interview, supra note 72. (77.) Id. (78.) Greenberger, supra note 67, at 93. (79.) Rittenberg Interview, supra note 74. (80.) Larry Stammer & Paul Feldman, Nuclear Dump Denounced at State Hearings, L.A. Times, July 23, 1991, at A3, A23. (81.) Id. (82.) Larry Stammer and Paul Feldman, Nuclear Dump Denounced at State Hearings,L.A. Times, July 23, 1991, at A3, A23. (83.) Interview with Bill Buck, Greenpeace (1992). (84.) Larry B. Stammer, Roadblock Emerges to Proposed Nuclear Waste Dump, L.A. Times, July 13, 1991, at A3, A29. (85.) Id. (86.) Stammer, supra note 16, at A3. (87.) This information was provided to the authors by an opposition spokesperson on the condition that the source not be identified. (88.) Desert Tortoise v. Interior Dept, No. C-93-0114 (N.D.Calif. July 14, 1993); USFWS Violated ESA By Falling to Designate Habitat for Tortoise, Calif. Envt. Daily (BNA) (July 23, 1993). (89.) 50 C.F.R. [sections] 17.42(e) (1992). (90.) Rinenberg Interview, supra note 74. (91.) California Radioactive Materials Management Forum v. Dept. of Health Services (Senate Rules Committee), 15 Cal. App. 4th 841, 19 Cal. Rptr. 357 (1993); Maura Dolan, Court Rejects Heating on Nuclear Dump, L.A. Times, August 26, 1993, at B8. (92.) Stammer, supra note 16, at A3. (93.) New York v. United States, 757 F. Supp. 10 (N.D.N.Y. 1990), aff'd., 942 F.2d 114 (2d Cir. 1991) aff'd in part rev'd in part, 112 S. Ct 2408 (1992), on remand, 978 F.2d 705 (2d Cir. 1992). (94.) New York v. United States, 112 S. Ct 2408, 2416 (1992); New York also asserted that the Act violated the Due Process clause of the Fifth Amendment and the Eleventh Amendment However, they abandoned these challenges before the Supreme Court Id. (95.) Id. at 2415. (96.) Id. at 2429. (97.) Id. at 2428. (98.) Id. at 2431. (99.) New York v. United States, 112 S. Ct 2408, 2419-32 (1992). (100.) Id. at 2445 (White, J. concurring in part, dissenting in part). (101.) Kent Rissmiller, Equality of Status, Inequality of Result. State Power and High-Level Radioactive Waste, 23 Publius J. of Federalism 103, 104-110 (1993). (102.) See, e.g., Low-Level Radioactive Waste Policy Amendments Act, 42 U.S.C. [subsections] 2021b - 2021j (1988) (detailing a United States policy to encourage states to site a LLRW disposal (facility); Canadian Ministry of Energy, Mines and Resources, Opting for Cooperation: Report of the Siting Process Task Force on Low-Level Radioactive Waste Disposal 53-65 (1987) (outlining a federal mandate to locate a LLRW disposal facility) [hereinafter Cooperation]. (103.) John Urquhart, Canadian Nuclear Industry Expects Orders to Rise, Plans Compact Reactor for U.S., Wall St. J., Jan. 16, 1990, at B4 (discussing the interchange of technology between Canada and the United States). (104.) Beyond Nimby, supra note 1, at ch. 5. (105.) Barry G. Rabe, Exporting Hazardous waste in North America, 3 Int'l. Envt'l. Affairs 108, 110-113 (1991). (106.) See, e.g., Beyond NIMBY, supra note 1, at ch. 2. (107.) Doug MacDonald the Politics of Pollution: Why Canadians are Failing Their Environment 203-216 (1991). (108.) Seymour Martin Lipset, Continental Divide: The Values and Institutions of the United States and Canada (1989); Richard M. Partial Visions: Culture and Politics in Britain, Canada and the United States (1991). (109.) Herman Bakuis and Neil Nevitte, 7he Greening of the Canadian Electorate, in Canadian Environmental Policy: Ecosystems, Politics, and Process 144 (Robert Boardman ed., 1992) (providing an excellent discussion of the evolution of Canadian public opinion on environmental issues). (110.) 16 U.S.C. [subsections] 1531 - 1544 (1988). (111.) E.g., Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. [subsections] 11001 - 11050 (1988). (112.) Alastair R. Lucas, The New Environmental Law, in Canada: The States of The Federation 1989 167, 170-175 (Ronald L. Watts and Douglas R. Brown eds., 1989); Grace Sokogstad & Paul Kopas, Environmental Policy in a Federal System, in Canadian Environmental Policy: Ecosystems, Politics, and Process 52, 53 (Robert Boardman, ed., 1992). (113.) Barry G. Rabe, Cross-Media Environmental Regulatory Integration: The Case of Canada, 19 American Review of Canadian Studies 267 (1989). (114.) This information was provided to the authors on the condition that the source not be identified. (115.) Friends of Oldman River Society v. Canada Minister of Transport, 88 D.L.R.4th 1 (1992) (Can.). (116.) George Hoberg, Comparing Canadian Performance in Environmental Policy, in Canadian Environmental Policy: Ecosystems, Politics, and Process 258, 259 (Robert Boardman ed., 1992); see also Ted Screcker, Of Invisible Beasts and the Public Interest, Environmental Cases and the Judicial System in Canadian Environmental Policy: Ecosystems, Politics, and Process 93, 98 Robert Boardman ed., 1992). (117.) Canadian Atomic Energy Act, C.S. ch. A-16, [sections] 3 (1991). (118.) Id. [sections] 5. (119.) Rissmiller, supra note 101, at 104-110; see generally Public Reactions to Nuclear Waste: Citizen's Views OF Repository Siting (Riley E. Dunlap, Michael E. Kraft, & Eugene A. Rosa, eds. 1993). For additional discussion see Office of Technology Assessment, Partnership Under Pressure: Managing Commercial Low-Level Radioactive Waste (1989). (120.) Canadian Mining and Engineering Corporation, Port Granby: Waste Management Facility 1 (undated) [hereinafter Port Granby]. (121.) Canadian Ministry of Energy, Mines and Resources, Opting for Cooperation Report of the Siting Process Task Force on Low-Level RadioActive Waste Disposal (1987) [hereinafter Cooperation]. (122.) Port Granby, supra note 120, at 1-2. (123.) Cooperation, supra note 102, at 1. (124.) Port Granby, supra note 120, at 1. (125.) Id. (126.) Interview with William Whitehead, Project Director, Waste and Impact Division, Atomic Energy Control Board (Aug. 18, 1992). (127.) Id. (128.) Cooperation, supra note 102, at 14. (129.) Id. at 1. (130.) Id. at 3. (131.) Id. at i. (132.) Id. at ix. (133.) Rabe, supra note 4, at 190-191; Canada Style, supra note 5, at 124. (134.) Rabe, supra note 4, at 191; Canada Style, supra note 5, at 124. (135.) Rabe, supra note 4, at 190-194; Canada Style, supra note 5, at 119-142. (136.) See, e.g., Beyond NIMBY, supra note 1, at ch. 4. (137.) See Cooperation, supra note 102. (138.) See Rabe, supra note 4, at 119; Canada Style, supra note 5, at 124. (139.) Cooperation, supra note 102, at 25. (140.) Id. at xi-xv. (141.) Interview with William Whitehead, supra note 126. (142.) Cooperation, supra note 102, at 14. (143.) Id. at 15. (144.) Id. at 35-36. (145.) Interview with William Whitehead, supra note 126. (146.) Cooperation, supra note 102, at 38-39. (147.) Id. at ix. (148.) Id. at 40. (149.) Id. at 40-43. (150.) Id. at 87. (151.) Cooperation, supra note 102, at 44. (152.) For a complete discussion of the five phases, see id. at 69-86. (153.) Id. at at 70-72. (154.) Id. at 72-75. (155.) Id. at 75-77. (156.) Cooperation, supra note 102, at 77-80. (157.) Id. at 80-83. (158.) Id. (159.) Canadian Ministry of Energy, Mines and Resources, Opting for Cooperation: The First Phases, Synopsis Report of The Sitting Task Force ON Low-Level Radioactive Waste Management 3 (1990) [hereinafter Cooperation II]. (160.) Id. at 15-17. (161.) See George Hoberg, Sleeping with an Elephant: The American Influence an Canadian Environmental Regulation, 11 J. of Pub. Policy 107 (1991) [hereinafter Elephant Steeping]. (162.) Cooperation, II, supra note 159, at 13. (163.) Id. at 15-17. (164.) Id. at 5-6. (165.) Id. at 6. (166.) Cooperation II, supra note 159, at 6. (167.) Id. at 17. (168.) In Manitouwadge, Ear Falls, Red Lake, Atikokan, Mattice-Val Cote, and Upsala both the CLGs and the local Councils rejected further consideration of hosting a site. The CLGs of the United Townships of Rolph, Buchanan, Wylie, and McKay and of the Townships of Head, Clara and Maria declined to continue. The CLGs of Deep River, Hornepayne and Chalk River chose to withdraw, but their respective Councils approved movement into Phase Four. In contrast, the Elliot Lake and James Township CLGs wanted to continue, but their respective Councils were not supportive. Id. at 8. (169.) Cooperation, II, supra note 159, at 8. (170.) Id. at 13-14. (171.) Canada Style, supra note 5, at 121. (172.) Much of the following material is drawn from a series of observers of the Ontario siting process who were assured that they would not be directly identified. (173.) Cooperation II, supra note 159, at 8. (174.) The conditions are as follows: 1) given the risks and costs of transportation, siting a new facility at its current location serves as the best option, 2) relocation of waste to Deep River should occur by rail with the material in suitable containers, and 3) a federally funded referendum during or following Phase four should determine whether or not to continue the process. Id. at 9. (175.) Id. at 9-10. (176.) Id. at 10. The community requested a baseline study to assess any possible health impacts. Id. (177.) Cooperation II, supra note 159, at 8. (178.) Id. at 10. (179.) Id. at 11. (180.) Id. (181.) Id. (182.) For an overview of these remedial action areas, see generally Under RAPs: Toward Grassroots Ecological Democracy in the Great Lakes Basin John H. Hartig & Michael A. Zarull eds., 1992). (183.) Cooperation II, supra note 159, at 11. (184.) Id. at 10-11. (185.) Id. at 12. (186.) Kathryn Harrison & George Hoberg, Setting the Environmental Agenda in Canada and the United States: The Case of Dioxin and Radon, 24 Canadian J. of Pol Science 3 (1991) (compares and contrasts United States' and Canada's toxic substance regulations); Elephant Sleeping, supra note 161, at 109. (187.) 33 U.S.C. [subsection] 1251-1387 (1988). (188.) See The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. [subsection] 9601-9675 (1988). (189.) See, e.g., Beyond NIMBY, supra note 1, at ch. 2. (190.) See, e.g., id. at chs. 3-4. (191.) Id. at chs. 3-4. (192.) See, e.g., New York v. United States, 112 S. Ct. 2408 (1992). (193.) Kemp, supra note 11, at 83-90. (194.) See, e.g., Beyond NIMBY, supra note 1, at chs. 3-4. (195.) Jeanne Kirk Laux & Maurren Appel Molot, State Capitalism. Public Enterprise in Canada 62 (1988); Douglas F. Stevens, Corporate Autonomy and Institutional Control: The Crown Corporation As a Problem in Organizational Design (1992). (196.) Dale Vargas, Fight Over Nuke Dump Heating Up, Sacramento Bee, October 19, 1993, at B3. (197.) Juggling a Hot Potato Named Nuclear Waste, LA. Times, April 20, 1992, at B4. (198.) Bradley J. Fikes, Foes, Supporters Believe Ward Valley OK Near, SAN Diego Bus. J., Oct. 4, 1993, at 4. (199.) Daniel Mazmanian & David Morell, Beyond Superfailure: America's Toxics Policy For the 1990s (1992). (200.) See Conn. Gen. Stat. Ann. [sections] 16-50j (1993); see also Kearney, supra note 9, at 25-26. (201). MacDonald, supra note 107, at 210-215; See, e.g., Beyond NIMBY, supra note 1, at ch. 2. (202.) See James A. Morone, The Democratic Wish: Popular Participation and The Limits of American Government (1990). (203.) See Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (1989); on the differences and similarities in the use of direct democracy in Canada, see also Patrick Boyer, The People's Mandate: Referendums and A More Democratic Canada (1992). (204.) See generally Rationing America's Medical Care: The Oregon Plan and Beyond (Martin A. Strossberg et. al. eds., 1992). (205.) Oregon's Promising Health Reforms, St. Louis Post-Dispatch, Aug. 9, 1993, at 6B. (206.) Id. (207.) Edwin Chen, U.S. to Allow Oregon to Limit Medicaid Care, Philadelphia Inquirer, March 20, 1993, at A3. (208.) John M. Gillroy, Moral Considerations and Public Choices. Individual Autonomy and the NIMBY Problem, 4 Pub. Aff. Q. 319 (1991). (209.) See, e.g., Robert Axelrod, The Evolution of Cooperation (1984); Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990). (210.) Barry G. Rabe, The Hazardous Waste Dilemma and the Hazards of Institutionalizing Negotiation, in Conflict Resolution and Public Policy 3, 20 (Miriam K. Mills ed., 1990). (211.) See, e.g., Gillroy, supra note 208; see also Barry G. Rabe and John M. Gillroy, Intrinsic Value and Public Policy Choice, in Environmental Risk, Environmental Values, and Political Choices (John M. Gillroy ed., 1993).

Barry G. Rabe Association Professor of Health Politics, School of Public Health, University of Michigan--Ann Arbor and Visiting Associate Professor of Public Affairs, University of Wisconsin-Madison. Ph.D., M.A. University of Chicago; B.A. Carthage College.

The authors are grateful to the more than fifty people who agreed to be interviewed. They offered considerable insight into the process of low-level radioactive waste facility siting in Canada and the United States. We are also grateful to the Canadian Studies Faculty Research Grant Program and the Matthei Botanical Gardens of the University of Michigan Mary Lynn Becker and Norman London of the Canadian Embassy gave important encouragement. We appreciate the helpful comments of Katheryn Jarvis Coggon and Bob June, editors, Environmental Law, on earlier versions of this manuscript. Jessica Miller provided helpful research assistance. Finally, we would like to thank Becky Pace of the University of Michigan for her expert word processing.

William Gunderson Professor of Political Science, Cartage College, Kenosha, WI; Ph.D., Indiana University; M.A., Washington State University; B.A., Washington State University.

Hilary Frazer Research Analyst, Mathematica, Policy Research, Inc., Washington, D.C., M.P.H., University of Michigan, B.A., University of Pennsylvania.

John M. Gillroy Assistant Professor of Political Science and Public Policy, Trinity College, Hartford, Connecticut. Ph.D., M.A., Queen's University, B.A., Drury College.