Review of New York State Low-Level Radioactive Waste Siting Process (1996)

As noted in Chapter 1 of this report, the New York siting process was halted by the state legislature in 1995 after an eight-year, $55.2 million effort, which was marked in its end stages by intense public scrutiny and criticism. The committee's purpose in this chapter is to address the causes of this failure, both internal to the Siting Commission and externally imposed. The committee also attempts to identify the lessons that might be drawn from the New York experience for the benefit of decision makers involved in future efforts to site nuclear facilities, of which those involving nuclear waste may be a particularly useful example.

In the committee's judgment, a significant cause of failure of the siting process was the unrealistic schedules imposed on the Siting Commission by law and regulation. The federal and state legislation that created the framework for the Siting Commission's work (Chapter 2) contained strict time schedules with severe penalties for noncompliance. The Siting Commission was required to develop and carry out a process for identifying and characterizing a potentially certifiable site or sites for a low-level radioactive waste (LLRW) disposal facility within 19 months. The list of specific tasks for the Siting Commission was extensive (Chapter 2) and included site screening, submission of plans for site characterization studies to the Department of Environmental Conservation (DEC) for review, and site characterization and monitoring studies. The Siting Commission was also required to consult with DEC about the application for certification; submit for DEC's approval its proposed scope for a draft environmental impact statement; hold public meetings on the scope of the draft environmental impact statement; and submit copies of the application to DEC, the New York State Energy Research and Development Authority, the legislature, and the governor.

In the committee's opinion, the schedule imposed on the Siting Commission was unrealistic given the complexity of the project. In its review of the Siting Commission's work, the committee saw no indication that the commission fully realized the complexity of its task and the inherent conflict between its ambitious plan of work and the externally imposed time constraints. Perhaps because of the inexperience of its staff in siting activities, the commission's strict adherence to externally imposed schedules may have prevented it from undertaking the kind of careful planning and public outreach necessary to bring its work to a successful conclusion.

Although one could reasonably argue that the Siting Commission did what the regulations required it to do, in hindsight the Siting Commission would have been far better off had it made an effort early on to assess realistically whether its plan of work was achievable in light of others' experiences in siting such facilities. Such an assessment would probably have indicated that the New York effort was unlikely to succeed within the narrow time constraints allowed by law and regulation, and it may have prompted the Siting Commission to adopt a more deliberative siting approach following the examples of other states and compacts.

The difficulty of the Siting Commission's task was also increased by the intensity of public opposition. Some members of the public refused to play any role in the siting process. There was also an element of opposition that clearly and vocally stated that it would not accept any site, regardless of the technical justification.¹

One of the key lessons to emerge from the accumulating experience with developing radioactive waste disposal sites has to do with what Freudenburg and Gramling (1994, p. 91) call "the spiral of stereotypes" which often occurs when persons on different sides of an issue stop talking to one another but not about one another (see also Coleman, 1957). The process of polarization had become sufficiently advanced in New York State by the time this committee was established that committee members experienced a good deal of pressure to take sides and to agree with the partisans on one side of the issue that the partisans on the other side deserved censure or blame.

Research (see, for example, Galanter, 1974; Freudenburg and Pastor, 1992; Kunreuther et al., 1993) has shown that the initiators of projects have a great deal of influence over the degree to which the process becomes polarized or, alternatively, is characterized by relatively respectful, two-way communication. Proponents of future nuclear facilities will be well advised to avoid the adversarial escalation characteristic of the spiral of stereotypes and actively seek to develop better mutual understanding with facility opponents. Opponents of proposed facilities may not choose to cooperate with that approach, and even a siting process built on mutual respect and understanding cannot be guaranteed to succeed. However, evidence of the past 20 years indicates that approaches that contribute to a downward spiral in relationships are virtually guaranteed to fail.

As noted in this review, the Siting Commission played an important, although inadvertent, role in its own demise, owing to various deficiencies in the siting process and in its interactions with affected communities. In the committee's judgment, a primary reason for the failure of the siting effort was the siting process itself. The committee's review of the siting process (Chapters 3 to 6) revealed three significant technical flaws: (1) the goals of the process were ambiguous, (2) some aspects of the screening process were not well documented or technically defensible, and (3) strategic planning and quality assurance programs that could have identified and remedied these deficiencies were not put into place early enough in the process. These elements, combined with the unrealistic time frame, led to a strongly negative reaction from potential host communities that resulted in termination of the siting process.

As noted in Chapter 3, the Siting Plan suggested that the goal of the screening process was ''designed to identify sites that can satisfy the regulatory requirements and to demonstrate that no obviously superior alternatives can be readily identified'' (Siting Plan, p. S-4, emphasis

added). There may be many sites in New York that would meet the regulatory requirements to be certified and licensed. However, the demonstration that a site has no readily identifiable, superior alternatives is difficult at best. Many factors are involved in the suitability assessment, and no one site can be expected to be superior in all respects.

Part of this ambiguity may be due in part to perceptual differences among involved parties in what constitutes a site with no readily identifiable superior alternatives. To the professionally trained members of the Siting Commission, staff, and contractors, such a site could reasonably be perceived as one that meets the technical requirements for licensing and that is located in a community that will accept an LLRW disposal facility. Judging from the responses to the selection of candidate areas (see discussion in Chapter 5), however, many of the affected communities appeared to perceive such a site as "best" in some objective sense. This perception may have been reinforced by the use of a highly technical, quantitative screening process that sought to eliminate from consideration all but a handful of sites in the state. Whenever such a process is used, a decision to choose any site except the one with the "best score" is likely to create a need to justify or explain the choice.

Although the screening process may have led to the identification of licensable sites, the process itself was sufficiently complicated, with multiple screening steps involving different combinations of criteria and weighting factors, that it would have been very difficult for the Siting Commission to demonstrate to a skeptical public that superior sites did not, in fact, exist. The problems with the process identified in the latter stages of screening (e.g., the handling of offered sites; see Chapter 6) no doubt reinforced the perceptions of some that the process was not suited for identifying such sites.

The committee identifies several technical problems with screening in Chapters 5 and 6 of this report. These include the following:

• Some of the screening criteria were flawed in their design or application.
• Data used to evaluate some of the performance-related criteria were of unknown quality and completeness. In some cases, the quality of these data was highly variable across the state. Thus, there may be a weak correlation between scores on these criteria and the likely performance of the site as an LLRW disposal facility. Moreover, the scoring system used by the Siting Commission favored the selection of areas with limited data for these criteria.
• Some of the criteria used in screening were not useful for discriminating the desired characteristics of the site or were combined in inappropriate ways. For example, performance and socioeconomic criteria were combined inappropriately during Candidate Area Identification (CAI) and Potential Sites Identification (PSI) screening (see discussions of sensitivity analyses in Chapters 5 and 6). Thus, a site could receive low scores on performance criteria, yet still exceed the cutoff if it scored highly on socioeconomic criteria.
• There was insufficient analysis to determine the sensitivity of the scoring system to coupling effects among screening criteria, the order in which criteria were applied, or small changes in scaling and weighting factors. The Siting Commission did carry out limited sensitivity analyses, but they are poorly documented, and the analyses addressed only a small fraction of screening criteria.
• The Siting Commission did not always follow its own procedures as defined in the Siting Plan. For example, the commission did not follow the Siting Plan in selecting five potential sites in PSI screening (Chapter 6) or in evaluating offered sites.
• The Siting Commission did not document its decision-making processes adequately, particularly regarding the identification of potential sites.

Many of the technical problems identified in this report could have been addressed by the Siting Commission during the course of screening had strategic planning and a quality assurance program been properly developed and implemented early in the siting process. The

Siting Commission did not develop a strategic plan² prior to initiation of screening, and, in fact, to the knowledge of the committee, no such plan was ever developed. The lack of good advance planning made the Siting Commission's task of meeting the already unrealistic deadlines even more difficult to achieve.

Much of the Siting Plan is based on the application of exclusionary factors to yield a number of areas left over from which a site might be chosen. New York's chances of siting an LLRW facility would have improved if from the beginning the Siting Commission had had a clear idea of what was being sought to isolate LLRW. A strategic plan would have forced the Siting Commission to focus on milestones and develop plans to meet them, to develop a project tracking system, and to design a process for developing "work-around" plans to deal with unanticipated problems. The strategic planning process also could have led the commission to consider the need to change its approach at the turning point in the screening process, from one of eliminating unlicensable areas to one of identifying and becoming advocates for licensable sites based on a set of technically grounded siting criteria. The strategic plan also would have forced the Siting Commission to seek out and learn from previous siting efforts. There is a rich literature on this subject that could have been utilized by the commission.

The quality assurance program was not fully developed or implemented when the siting process was halted by the governor in 1990. In fact, the initial draft of the Quality Assurance Plan (Revision 0) was not completed until December 1989. Thus, all of the Siting Commission's screening activities were performed without an approved plan. The procedures that were finally developed came too late to support the important decisions that were made in the early stages of the program.

A quality assurance program would have helped the Siting Commission identify critical data to validate its decisions. The quality assurance plan would have forced the Siting Commission to address several critical aspects of the screening process, including the following:

• definition of the problem and necessary decisions,
• identification of inputs into the decision process,
• development of decision rules to guide the application of data,
• specifications for data quality, and
• optimal designs for obtaining data.

A quality assurance program also would have helped the Siting Commission implement a document tracking system. Problems with the document tracking system became evident to the committee when it requested a copy of the quality assurance Plan and procedures. Although these should have been controlled copies,³ they could not be located until 10 months after the committee's request.

Not only was the Siting Commission slow in establishing a quality assurance program, it lacked an understanding of the quality assurance program's importance and was unwilling to assume "ownership" responsibility. In response to the committee's question regarding responsibility for implementing the quality assurance program (Appendix F), the commission responded:

Implementation of the quality assurance program should have been validated by external audits and surveillance. Only two audits were conducted (for Roy F. Weston, Inc. and its subcontractor, Golder Associates, Inc.). Both were conducted by the staff of Roy F. Weston, Inc., not the Siting Commission.

As with most state and federal laws affecting the environment that have been passed since the late 1960s, the 1986 State Act contained specific requirements for public participation. The public was to be informed and their views, comments, information, and analysis heard throughout the siting process. The state law is silent on the basic purposes for such involvement, as are Siting Commission documents.

The committee believes that public involvement in the siting process is important for several reasons. Such involvement is consistent with a democratic form of government founded on the consent of the governed. It can be undertaken to improve decisions by broadening the information base and the range of options and factors considered by decision makers. It can also be undertaken to help ensure that decisions are consistent with public values and preferences and, theoretically at least, are more likely to be supported by the public and, therefore, to be implemented. Experience with siting emphasizes, however, that it is unrealistic to expect that public involvement will reduce conflict where there are fundamental disagreements about goals or that it will necessarily result in solutions to a problem as it is defined by a responsible agency or law.

The early implementation of the public participation plan may have appeared reasonably successful to the Siting Commission in that the public was informed, given an opportunity to provide input before decisions were made, and encouraged to comment on draft plans. As might be expected on the basis of other siting efforts, however, relatively few members of the public availed themselves of the opportunity to provide input at this stage of the process, probably because they did not connect this activity to their own communities. At the same time, there is little evidence that the Siting Commission recognized the difficulties that would be created for later stages of public participation by the set of decisions being put into place during these early stages (e.g., by development of the Siting Plan).

As described in Chapters 3 to 6, problems with public participation began to be much more evident at a particular point in Siting Commission activities: the transition from excluding lands to

selecting potential sites. The committee finds that the Siting Commission did not provide the leadership necessary to handle this transition well, probably because it lacked a strategic approach to site selection. The Siting Commission failed to recognize the change from an exclusionary to an inclusive role. That is, the commission did not redefine its role to one of finding a licensable site from one of excluding unlicensable areas. At this transition, public concern and the need for public participation increased significantly, yet critical decisions—for example, the elimination of candidate areas based on a staff decision—appear to have been made by the Siting Commission without adequate formal public review, and many of these decisions were not well documented.

The site selection methodology required a number of subjective decisions by the Siting Commission. These included selecting preference criteria, quantification of scaling criteria, deciding the order in which particular criteria would be applied, choosing an algorithm for scoring, and choosing cutoff scores. The methodology described in the Siting Plan defined a process that calls for careful justification at every step and an ongoing effort to build broad consensus on the many subjective elements of the system. The success (or failure) of such a process would be extremely sensitive to the degree of public participation in Siting Commission activities.

As the discussions in Chapters 5 and 6 illustrate, the level of public participation in these latter stages of screening was insufficient to provide citizens with the necessary level of confidence in the completeness and quality of the Siting Commission's work. Further, much of the public participation in these latter stages was oppositional in nature and focused on previous screening decisions or the legitimacy of the screening process. Yet when confronted with strong public opposition, the Siting Commission chose to continue on with its procedures rather than pause in order to assess the origin of the opposition and provide appropriate responses to the public's questions.

Previous sections of this chapter have focused on the screening process used by the Siting Commission in its attempt to identify sites for

an LLRW disposal facility. There are many lessons that could be learned from this effort, in terms of both improving the screening process and siting LLRW disposal facilities generally. In this final section of the report, the committee focuses its attention on the latter issue, that is, the lessons from the New York siting effort that can be applied to LLRW site selection generally.

The screening process employed by the Siting Commission, like the approaches used by many other compacts at the time, is perhaps best characterized as a "top-down" approach in that it entailed a stepwise screening of the entire state to identify ever-smaller parcels of land from which a preferred site could be selected.⁴ In addition, the process was designed and executed by a state-level body and its out-of-state consultant with relatively little participation by citizens, particularly during its early stages. Indeed, it was only after areas were designated that significant public interest developed.

There appeared to be relatively few technical or public acceptance problems with the Siting Commission's top-down approach during the early exclusionary phase of the process, probably for two reasons. First, land was being excluded from further consideration, which no doubt pleased citizens of the affected communities. Second, the exclusion decisions were made using good-quality, readily available data that required little in the way of "judgment calls" or interpretation (e.g., boundaries of state and federally protected lands) and that were not in serious dispute by most parties in the process. The limitations of the data became evident, however, once the process passed the "turning point" from exclusion of land to the identification of suitable areas and then of sites—that is, when the siting process shifted from Statewide Exclusionary Screening (SES) (Chapter 4) to CAI (Chapter 5) and PSI (Chapter 6).

The committee believes that there are at least three important lessons to be learned from the Siting Commission's experience. First,

top-down screening should not be pushed beyond the capabilities of the data and selection criteria to support reasonable and technically defensible decisions. In the case of the New York siting effort, the top-down approach probably should not have been pushed beyond SES, where data were readily available and of reasonably good quality and where the exclusionary criteria were based on laws and regulations that were viewed as reasonable by most parties in the process. The latter stages of screening focused on more abstract, qualitative exercises that required more subjective judgments and that were not as defensible technically. Hence, in the final stages of site identification, the decisions of the Siting Commission seemed arbitrary to many. Attempting to screen out areas based on partial data sets leads to perceptions of unfair treatment, as areas with incomplete descriptive information (often rural regions) are retained for further review, and more thoroughly-described (often urban) areas are excluded, generally to the relief of those living there. Further, the need to create complex data sets to resolve such discrepancies can force the entire siting process toward expensive, time-consuming, and generally unattainable goals.

Once the top-down screening process passes beyond the capabilities of the data and selection criteria to support technically defensible decisions, other strategies need to be considered. A wide variety of options are available, ranging from the collection of additional data to support continued top-down screening to a "volunteer" process. There is an accumulating literature on siting processes that can be used to inform and guide future efforts (e.g., Freudenburg and Rosa, 1984; Downey, 1985; Freudenburg 1985; U.S. Office of Technology Assessment, 1985; Jacob, 1990; Slovic, 1991; Pijawka and Mushkatel, 1992; Dunlap et al. 1993; U.S. Secretary of Energy Advisory Board, 1993; Erikson et al. 1994; Flynn and Slovic 1995; NRC, 1996).⁵

The second lesson to be learned is that public acceptance of the process and its results is necessary to the success of any siting effort. While the committee's charge did not require explicit attention to the public acceptance problems faced by the Siting Commission, it quickly became apparent that—as noted in much of the scientific literature that has now been written on the issue of nuclear waste facility siting (see the

previous paragraph for specific references)—the effort to identify waste disposal sites can quickly be derailed because of the failure to devote careful analysis to questions of "sociopolitical" acceptability, which often prove in practice to be impossible to disentangle from questions of "technical" acceptability.

As noted previously, a "superior" site may not be technically superior in all respects but may be a technically acceptable and licensable site that is located in a community that will accept the facility. Public acceptance requires both a technically defensible screening process and a willingness to engage the public substantively on a number of fronts. It is important to recognize, however, that substantive engagement takes time: time to solicit and obtain public input, time to address public perceptions (see the next section), time to make changes in the siting process in response to public comments, and, most of all, time to engage the affected communities effectively at each step of the siting process. As noted previously, time constraints imposed on the New York State Siting Commission by legislative actions and regulations did not allow effective public engagement to occur. Moreover, while substantive public engagement is a necessary ingredient in any siting effort, it is by no means sufficient to ensure success, absent a community willing to accept such a facility.

The third lesson to be learned is that strategic planning is essential to completing complex missions under tight deadlines. Such planning must include the identification of key milestones and objectives as well as procedures for dealing with the many unanticipated problems that inevitably arise in any project of this complexity. To be effective, the strategic plan must be developed at the earliest stages of the process and updated as necessary throughout the project.

Nuclear waste, like other toxic wastes, poses significant health risks if not managed properly. Unlike some other waste types, however, the radiation hazard associated with nuclear waste is not literally empirical—that is, the radiation cannot be detected by the (unaided) five senses. Thus, nuclear waste can create what social scientists call an

ambiguity of harm, and a growing body of empirical research on technological hazards suggests that such an ambiguity of harm may actually create higher levels of measurable stress than do well-understood hazards (for reviews, see Vyner, 1988; Freudenburg and Jones, 1991; Erikson et al., 1994). The nonempirical nature of radioactivity also means that rather than being able to establish a clear sense of controllability over the hazard, the public finds itself dependent on sophisticated radiation monitoring equipment and the technical experts who run that equipment and manage the hazard. While the nuclear industry has managed a complex technology with a high degree of safety for both workers and the public, several highly publicized incidents have occurred where the quality of management and responsibility have been lower than the norm. These incidents have effectively sent to many people a ''signal'' (Slovic, 1987) that the competence and reliability of experts should not be taken for granted.

As any number of authors have noted, government decisions—specifically including decisions relating to nuclear technology—tended to enjoy relatively widespread public deference in earlier decades, only to become the focus of growing public distrust in recent years. In general terms, the decline is seen as having begun in the mid-1960s, accelerating sharply in the 1970s and continuing into the 1980s (e.g., Lipset and Schneider, 1983); with respect to nuclear technology in particular, the growth in distrust may have begun somewhat later, in the mid-1970s (see, for example, Freudenburg and Baxter, 1985).

In 1984 a committee of the National Research Council (NRC) addressed the effects of public perceptions on nuclear waste facilities. A particularly important emphasis of the committee's report (NRC, 1984) involved what the scientific literature of the day called simply "special effects"—that is, those effects resulting from the presence, or even the potential presence, of a nuclear waste facility in an area. These effects included high levels of public anxiety, opposition, and the potential for stigmatizing regions and peoples. Indeed, the report predicted that "the special effects associated with the radiological mission of the repository will interact with, and may well exceed, the more conventional effects resulting from the location of any large industrial facilities . . ." (NRC, 1984, p. 12).

More recent NRC panels (e.g., NRC, 1993, 1994) have reflected a growing scientific awareness that it is less accurate to refer to "special" impacts than to use the more technical terminology of "opportunity-threat impacts" (see also Freudenburg and Gramling, 1992; Interorganizational Committee on Guidelines and Principles for Socioeconomic Impact Assessment, 1994). As the panel noted, while "changes to physical or biological systems do not occur until a project leads to physical alterations, observable and measurable alterations in the human environment can take place as soon as there are changes in social and economic conditions, which often occur from the time of the earliest rumors or announcements about a project'' (NRC, 1994, p. 130). These opportunity-threat impacts grow out of

The experience of the New York siting effort provides further reinforcement for these conclusions. In the New York effort, there were virtually no on-site impacts. Not a single shovelfull of soil was turned; not a single Siting Commission vehicle or study team was allowed onto the premises of any of the sites. Instead, virtually all of the impacts taking place were the special effects associated with the high levels of public anxiety that, with variations, have also afflicted other efforts to site nuclear waste facilities in this country.

The New York siting effort further confirms the results of social science research and previous experience on siting nuclear waste facilities. These results bear repeating: nuclear waste disposal evokes

feelings of anxiety for many members of the public and results in special socioeconomic impacts in the affected communities, and siting efforts ignore these effects at their own peril. Indeed, siting efforts must be structured to address these effects through a high level of public involvement in the siting process.