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Few laws have failed so completely as the federal and state statutes designed to create new facilities for the disposal of hazardous and radioactive waste. Despite scores of siting attempts and the expenditure of several billion dollars since the mid-1970s, only one radioactive waste disposal facility, only one hazardous waste landfill (in the aptly named Last Chance, Colorado), and merely a handful of hazardous waste treatment and incineration units are operating on new sites in the United States today.

In 1981, a leading member of Congress, relying on data from the U.S. Environmental Protection Agency (EPA), predicted that by 1985 the country would need between 50 and 125 new off-site hazardous waste disposal facilities. Numerous legal commentators also stressed that many more facilities were desperately needed if the nation was to avert an environmental crisis. These facilities have not been built, yet no such crisis exists. The shortage of disposal facilities is actually far less severe and more localized than is usually portrayed. Its principal adverse environmental impact is that old, substandard, leaking disposal units stay open because there are no replacements. But there is a genuine political crisis – hundreds of battles have raged around the country, some dethroning elected officials, and some verging on violence – over the efforts of the federal and state governments to force hated facilities on terrified communities.

In this Article, I propose an approach to resolve the impasse in siting disposal facilities for hazardous wastes (HWs) and radioactive wastes (RWs). In doing so, I argue that the siting laws are based on a fundamental conceptual error, as well as several factual mistakes and policy blunders.


Administrative Law | Environmental Law | Law | Water Law


Sabin Center for Climate Change Law