A Policy Analysis of Bloomington,
Indiana's Flawed Efforts at Public-Private Cooperation
James R. Simmons
Iowa State University
Abstract. In recent years cities facing growing municipal trash and hazardous waste crises have attempted to develop innovative public-private sector relationships in order to resolve their multiple environmental problems. In this paper I will argue that the PCB Consent Decree recently negotiated between Westinghouse Corporation and three levels of government in Bloomington, Indiana, represents a seriously flawed effort at this form of issue resolution. Neither the experimental technology chosen for the cleanup nor the novel form of local control mandated for this process can be projected to live up to the expectations of the Decree's advocates. This agreement also leaves a number of other pressing and interrelated social issues unresolved. If other communities adopt this "Model," they can expect to be confronted with the kinds of conflict and continuing controversies facing Bloomington public officials.
INTRODUCTION
Disposing of the nation's growing volume of waste is gaining the attention of the public and govemment decisionmakers as a result of such widely publicized incidents as the New York garbage barge, Love Canal, Time's Beach, and the numerous local disputes over our rapidly diminishing landfill space. This public saliency of both municipal and hazardous waste has generated a search for innovative disposal technologies as well as more satisfactory publicprivate relations in efforts to develop an adequate response to an issue that may soon reach crisis proportions (Lester, 1983). Obviously, new policies must be developed, and a concensus seems to be emerging in some industry and government circles that waste-to-energy incinerators built through some form of cooperative partnership may be the "solution" to the waste problem.
James R. Simmons came to lowa State University in 1987 as Assistant Professor of Political Science and teaches Organizational Theory and Administrative Politics. Formerly he taught at De Pauw University and Indiana University, where he received hi Ph.D. in 1983. He has published articles on Indiana and contem porary American democracy and is currently investigating toxir waste disposal practices from the community and govemmental standpoints.
Requests for reprints may be addressed to James R. Simmons, Assistant Professor, Political Science Department, lowa State University, Ames, IA 50010.
THE ENVIRONMENTAL PROFESSIONAL Vol 10 pp.223-233 1988 Printed in the USA. All rights reserved. Because of the public and private sector interest in incineration, an assessment of this technological response and its ramifications seems long overdue. As an increasing number of cities begin to consider this method of waste disposal, it is important that we evaluate now the costs and benefits of such incinerators and that before more communities adopt them, we project their likely social, economic, and political impact. Such an effort seems particulary necessary because, given the great expense for this kind of solution, local officials will in the future be pressured to continue to operate incinerators even if new evidence proves that they create more problems than they resolve.
In this paper I will attempt to develop some generalizations about the suitability of incineration and corporate operations as a response to the waste issue. My analysis will focus on the recent agreement in Indiana between Westinghouse Corporation and three levels of Bloomington government. This agreement is being touted not only as the optimal resolution to the city of Bloomington's massive PCB contamination problem, but also as the answer for other communities facing similar crises. I will argue, based on a careful examination of the Bloomington Consent Decree and the efforts at implemention, that public officials should reject the form of public-private cooperation represented by the "Bloomington Model," unless they can achieve an agreement that has been designed without the flaws of the Indiana settlement. Furthermore, even if the cleanup efforts and technological approach chosen for Bloomington develop as planned, there will still remain political issues for which agreements such as the Consent Decree have no ready answers.
THE BLOOMINGTON PCB CONTROVERSY:
BACKGROUND AND CHRONOLOGY OF EVENTS
On October 11, 1983, Bloomington Mayor Tomi Allison called a news conference to announce that the end was in sight to the PCB contamination problems that had plagued the city for eight years. Westinghouse Electric Corporation and the city had just agreed "in principle" on the broad outlines of a settlement that would ensure the removal of polychlorinated biphenyls from six sites-including two owned by the city-in a high temperature incinerator that would also burn refuse from Monroe County homes and businesses. At this conference the mayor indicated that the agreement gave credibility to the case that "environmental problems can be solved through close cooperation between government and industry." Even though the final settlement was not to be revealed until over a year later, the mayor's statement did illustrate the hope by local of ficials that public-private negotiation and compromise would replace the politics of confrontation, regulation, and litigation that had characterized the PCB issue since the outset of the controversy.
The Consent Decree that was finally approved on August
22, 1986, by U.S. District ludge S. Hugh Dillen represented
the culmination of hundreds of hours of closed-door
meetings between attorneys for Westinghouse and those
serving the city, state, and federal authorities who had sued
the corporation for its contribution to the region's PCB
contamination problems. Four Superfund sites, a waste
treatment plant, and three river tributaries are covered by
the cleanup agreement, which became
operational this past year-this in the face of local opposition
that grew to massive proportions during the four
months of public hearings, in spite of approval votes by
government bodies, and which continued to mount
throughout the recent municipal election campaign.
Despite this widespread and vocal criticism, most public
of ficials have hailed the decree as the largest cleanup ever
successfully negotiated under the seven-year-old federal
Superfund law.
Even though Westinghouse has undertaken its first concrete interim cleanup measures at the contaminated landfills and is proceeding with its plans to build the "resource recovery" facility, there are few signs that the controversy over the PCB issue has ended or that there is now sufficient confidence in the corporation for a truly cooperative effort to proceed. Recent events such as complaints by area residents about the quality of the preliminary work done by the contractor hired by Westinghouse, the city's open criticism of the company's risk assessment, and the demand by the County Commissioners for the inclusion of other toxic sites in the project, all indicate that the passage of the consent decree did not signal the end of the debate, but only a restructuring of the framework within which the debate will be conducted. Indeed, given the history of the issue in Bloomington (see A History of PCBs) and the past behavior of Westinghouse, it is difficult to imagine how public-private cooperation might be expected to develop as the mayor had optimistically forecast.
Both the second thoughts by public officials over the merits of the agreement and the continuing heated opposition by groups outside government suggest that the basic policies outlined in the Consent Decree deserve reexamination. Thus this critical review seems to be particularly relevant at this time. Even though most elected and appointed of ficials along with their consultants continue to defend the results of their long and painful negotiations, they are at present posing questions about the settlement and directing at Westinghouse specific criticisms that bear an ironic resemblance to complaints formulated by the Decree's most outspoken critics. In fact, the tone and content of recent city correspondence with the corporation has been so contentious that Westinghouse has complained that "either the City doesn't understand the Consent Decree, or doesn't like it (1987)."
PUBLIC-PRIVATE SECTOR RELATIONS:
THE BLOOMINGTON MODEL
The 108-page Consent Decree is a complex document, but
its basic contents can be summarized as follows: under the
terms of this agreement Westinghouse will excavate approximately
650,000 cubic yards of contaminated
materials from six of ficially designated areas, transport this
matter to a temporary storage facility, and burn it in a hightemperature
incinerator that the company will design,
build, and operate over the projected twenty-year duration
of the operation. After having removed the contaminants
from the affected streams and landfills, the corporation will
have to maintain short- and long-term remedial measures
at these sites, including closing them properly against
leakage and then monitoring them continuously in order to
determine whether the groundwater has been tainted.
Should the water supply show signs of pollution, Westinghouse
must provide residents with access to an alternate
drinking water supply.
City authorities can impose additional conditions on the design and operation of the incinerator beyond those required by state and federal regulations, if they determine that "they are necessary to mitigate or prevent an unreasonable risk of injury to human health or the environment." Westinghouse retains the right of administrative appeal and can challenge the city's conditions in court. The corporation can also use technologies other than incineration to dispose of PCB wastes, if it can demonstrate to the other parties and the court that they are safe and effective. On the other hand, the corporation must pay for an independent consulting firm hired by the city and provide external monitoring devices in order to ensure local of ficials that the incinerator is operating properly. When all of the contaminants have been incinerated, the city can buy the facility, have the corporation dismantle it, or come to another agreement with Westinghouse for the continuing disposal of area garbage.
Bloomington and Monroe County are to provide trash to fuel the incinerator, which will also use oil- or gas-fired burners to maintain the approximately 2,200 degrees Fahrenheit temperature that some authorities claim is necessary to destroy PCBs. Westinghouse will charge "tipping fees" for the acceptance and disposal of this solid waste, but these fees are subject to review and cannot exceed the fees charged at the Monroe County landfill. Such fees would also be placed on the resulting byproducts of the process. Non-hazardous ash could be disposed of on the grounds of the city's Dillman Road sewage plant, which will be leased to Westinghouse as the incinerator site, or at another landfill provided by one of the parties. Hazardous ash, on the other hand, shall be disposed of at Westinghouse's expense at a federally licensed hazardous waste facility. In addition, Westinghouse can sell whatever steam or electricity is generated by the process at the market rate.
No regulated wastes or materials not described in the Consent Decree are to be bumed in the incinerator, except for materials from additional PCB sites found "in and around Monroe County" that have been approved by city, county, state, and federal authorities. The inclusion of additional sites would, of course, require a mutual agreement by the parties involved and be endorsed by the court. Westinghouse takes responsibility for all claims against the city and county over PCB exposure from sites covered by the agreement, the operation of the incinerator, or the implementation of the cleanup. Furthermore, the firm agrees to pay the city $250,000 as partial reimbursement for cleanup, legal, and consulting expenses, as well as $900,000 over four years as rent for the use of city property for a waste storage facility. In return, each party agrees not to sue any other party over the issues that had initiated the original litigation, if each of the parties meet their obligations under the decree. The burden of proof of non-performance and omission, however, is to be placed on the party seeking enforcement or claiming a violation.
EVALUATION AND CRITIQUE
Any prudent review or critical assessment of the Bloomington Consent Decree must center on at least three primary considerations: the adequacy of the experimental technology chosen by Westinghouse and approved by all parties to the agreement; the potential costs and risks to the local community that are likely to be produced by the decree's implementation; and the extent to which the agreement's "local control" provisions provide government of ficials with an effective means of public oversight. Each of these interrelated topics will be discussed in some detail.
Viability of the Technology
Westinghouse Electric Corporation has devoted over a year to a public relations effort and more than 600 pages of a company-issued risk assessment in its efforts to demonstrate that the trashburning incinerator it plans to build south of Bloomington will operate as planned with almost no impact on public health. Most city officials also argue that the proposal the company has submitted can, with some modifications, fulfill the Decree 's requirements. Indiana University professor David Parkhurst, for example, has stated in his capacity as city consultant (H-T, 1987):
I think it's a pretty thorough and effective job. But it does have some parts, I think, that should be redone before we can accept the results whole hog.
The city's satisfaction with the Westinghouse projection of the incinerator's performance is conditioned by the assumption that a rigorous program for monitoring the machine can be developed.
The case for the technology promulgated by industry authorities contains the following arguments:
Incineration, they claim, is an old and proven technology that is, furthermore, the only means available for dealing with Bloomington's specific problems. The Westinghouse risk assessment claims that the projected facility will operate at a temperature consistently high enough to destroy all forms of waste at a 99.9999% efficiency and reduce the volume of these materials by 90%. It also says that the risk of burning the wastes for residents from breathing airborne emissions, eating food grown in the area, and drinking local water would pose almost no increase in the region' s risk of cancer and other potential health problems. Finally, the company claims that this process will generate significant low-cost energy and create jobs that will help promote economic development in the area.
Although city officials are more cautious and are demanding additional data before they will endorse incineration, they insist that the Decree allows them to challenge the technology, should future evidence indicate that the corporation's assessment is faulty.
Despite the seeming unanimity among local experts, concern over the chosen technology is growing. Recent incidents have shown that existing incinerators break down, cause air pollution, and are subject to in-plant accidents (Beychok, 1987; Envirocon, 1984; Petzinger, 1985). The worst problem seems to be that some wastes such as heavy metals are not eliminated by burning, while other compounds such as dioxin and furans pose a significant health risk with any level of exposure. The emission and dispersal of threatening quantities of microscopic particles may plague operating incinerators because according to F.W. Karasek (1987):
Evidence of the presence of most of the PCDD
(dioxins) at high parts- per-billion levels has been
found in each fly-ash sample analyzed, regardless
of the type of garbage, the design of the incinerator,
or the detailed composition of the mixture
of the more than 400 organic compounds
found absorbed or the particles.
The doubts about the O'Conner combuster design that Westinghouse proposes are particularly strong. Although rotary kilns are relatively versatile in that they can burn a large quantity of a wide variety of wastes, practice has shown that this form of incineration demands high costs for installation and operation, produces low thermal efficiency, and is subject to changes in feed pressures that may force unburned wastes out the seal plates.
Westinghouse claims that the design planned for Bloomington will not be subject to the problems exhibited by conventional rotary kiln technology. And despite the disappointing performance of many on-line facilities, both the EPA and the waste-abatement industry conte.ld that a modern incinerator which is well engineered and equipped with scrubbers and fabric filters (ESPs) will operate reliably with little acid gas, particulate, heavy metal, or organic emissions. Unfortunately, the scientific evidence to support this contention is mixed. Some research (Commoner et al., 1987) indicates that there is no reliable relationship between temperature, combustion efficiency, pollution control device and incinerator emissions. A recent study of three New York Incinerators (Visali,1987), however, finds that an appropriate furnace temperature of 1400 to 1500 F can indeed minimize dioxin and furan flue gas concentrations. On the other hand, even the latter study argues that there are trade-offs to be considered. Higher temperatures tend to volatize greater amounts of heavy metals like lead, cadmium, and chromium. Furthermore, the New York data show a curvilinear relationship between temperature and dioxin and furan formation. Thus temperatures in excess of 1800 F that are essential for the destruction of PCB s may produce higher concentrations of metallic chloride particulate and thereby increase dioxin and furan emissions.
The experimental component of the company's proposal has been the source of the greatest concern. Although municipal solid waste incinerators are relatively common, only a few facilities that burn hazardous waste are now operational. None of these plants has attempted to do what Westinghouse proposes: that is, mix trash with conventional fuels as the source of combustible materials to burn excavated contaminants. While officials in some parts of the country are promoting the separation and recycling of garbage -paper, plastics. wood, and other wastes-either for their monetary value or to reduce health risks, corporate spokesmen are claiming that the Consent Decree and effective operation of the burn process require high levels of these materials be directed to the plant. The company insists that this unusual fuel will pose no problem, but the firm's experience in this field dates back only to 1983, when it purchased the tiny O'Connor company as a means of turning its current liabilities in Bloomington and other parts of the country into a potentially profitable venture. Even more suspicion has been raised by Westinghouse's refusal to conduct pilot tests, the omission from its risk assessment of data from the company's own incinerating facilities in other cities, and the praise the firm has extended to its other destruction technologies such as the plasma torch and electric pyrolyzer.
Objections to the plan might be overcome if the rigorous program for monitoring the performance of the incinerator that the city has promised can actually be put in place. Unfortunately, the technical devices promised by the parties to provide monitoring on a regular basis will measure the burn temperature and the oxygen and carbon monoxide levels in the flue gas, not the emissions of toxic dioxins. furans, metals, and other chemicals that are the cause for most of the concern. Tests for these latter particles can only be done by an expensive process during the occasional onsite inspections when incinerator operators are likely to be on their best behavior. Even if the industry's argument that sufficient heat and residence time will break down any dangerous substances, there is no guarantee against reformation of pollutants from products of incomplete combustion (PICs) or from other simple compounds that may combine in the stacks nor are we sure what will occur when the chemicals cool down as they are released into the atmosphere (Commoner,1986). Finally, the only evaluation of the proposed incinerator's performance under less than optimal conditions, such as during downtime, accidents, or as the plant ages, must be based on either existing theory or the company's own assessment.
Perhaps the greatest flaw in the Consent Decree with regard to the technology appropriate for waste disposal is that the document provides no clear standards against which the O'Connor combuster might be evaluated. The decree does discuss "public safety" in terms of "unreasonable risk," but it establishes no specific requirements that the company must meet. The city could use its authority under the Decree to set severe standards, establish levels for reasonable risk, and demand design changes in the project as a means of ensuring public safety, but it has failed to do so even though local officials now claim that the Westinghouse risk assessment has serious deficiencies and is technically defective. Nor is there any evidence that such specific guidance will be forthcoming given the city's lax regulatory history. The project is moving ahead with neither an Environmental Impact Statement nor an evaluation of the various alternative technologies (biodegradation, vaulting, pyrolysis, etc.) proposed by incineration opponents because these are not required under the agreement unless the corporation determines that they are necessary or desirable. This absence of clear performance criteria may prove to be a severe liability once the facility has been constructed because the company is likely to resist any alternatives or substantial design changes given the "sunk costs" already invested.
Community Costs and Risks
Proponents of the Consent Decree have focused on the benefits that will come to the Bloomington community from the implementation of the agreement. Advocates argue that the most seriously contaminated sites are already scheduled for cleanup and other sites may be added later because the agreement provides "a framework which can accomodate further discoveries." If there are victims of PCB exposure, the city claims that they cannot be identified conclusively and that, in any case, the local government cannot sue on their behalf, nor does it have the resources necessary for an adequate remedy to their problems. The choice of the incinerator and waste storage sites were determined on the basis of ease of transportation access, the money that the city will recover by leasing municipal property, and the proximity to public facilities that will ease the city's efforts at oversight. By and large, officials see the community gaining a great deal from the jobs created by the project as well as the reduction of the dangers to the area's water supply. Futhermore, they see Westinghouse's heavy investment in the incinerator and its development of a nearby industrial park as a long-term commitment to the region's efforts at economic growth.
Documented Sites Ignored
The glowing commendation of the agreement and its projected advantages, however, does not stand up to careful scrutiny. For one thing there are over 200 documented sites that the decree ignores. Many of these sites were contaminated by city-distributed sludge, the unwitting salvaging of electrical capacitors, and illegal dumping by independent haulers. When the agreement was negotiated, the parties involved seemed to have been concerned about only those sites for which they were directly liable. Westinghouse has shown strong resistance to the inclusion of any additional sites, and only the presiding federal judge can force the extensions the mounting evidence seems to indicate. This situation is particulary critical, since the city has been unsuccessful in adding the Fell Iron and Metal Company property to the cleanup even though its PCB levels are higher than those at any of the six of ficial sites. There are also very strong indications that the Westinghouse plant site would more than qualify for inclusion. Officials may have reduced their institutional difficulties by the nature of the action taken, but it is not clear how much of a threat to health and property values is posed by the contaminated materials that remain at the "unofficial" sites.
The city's position with regard to injured parties is also rather weak. Although government cannot sue a corporation on behalf of residents, the out-of-court negotiations and ultimate settlement might have included some form of compensation. For example, the agreement could have provided for some kind of funding for a local health study, compensation to homeowners on or near contaminated areas, and temporary relocation of those living close to the sites being excavated. As it stands, the former Westing house employee, exposed citizen, or innocent landowner will have to pursue individual or class-action suits in order to shift the legal responsibility to another responsible party . The decree's prohibition against future litigation by the respective parties to the agreement means that some level of government must now initiate and bear the full cost of any necessary remedial action, additional site search, vic tim compensation program, or health-effects study. If public pressures or new scientific findings indicate such policies, the resulting burdens on public expenditures and the taxpayer may well exceed the millions of dollars Westinghouse payrolls provide to the local economy.
It is also apparent that this transaction contains a number of hidden costs. In the firstplace, underthe financial arrangements the Decree allows, the city's utility will not stand to recover anything approaching its total legal expenses which now exceed $3 million. Secondly, there is no con sideration of costs to the community in the event of plant malfunction or transportation accidents. Nor is there any mention of the expenses for the training of local fire and police personnel in emergency services or the wear and tear on local roads caused by the trucking of tons of con taminants across town over at least two decades. Thirdly, it appears that residents of the aMuent Sherwood Oaks sub urb must suffer the full weight of the probable losses in their property values when the incinerator is built in such close proximity to their homes. Lastly, the industrial park may prove to be more of a liability than an economic gain. Indeed, if high waste or pollution generating industries move into this park in order to attempt to take advantage of the nearby incinerator's unique capabilities, this may discourage development more appropriate to a university town.
Consideration should also be given to the problems related to the residues from incineration as well as the potential losses represented by this method of disposal. Some experts argue that waste reduction from the burn process is in the range of 60%, rather than the much larger figure claimed by industry (Connett, 1986). The reductions in Monroe county may be even lower given the fact that most of the contaminated materials are in excavated soil that will not decrease in volume when burnt. If these large quantities of fly-ash prove to be toxic, the facility's customers may face disposal tipping fees that are increasingly expensive. Siting of a secure landfill for toxic residues may itself become a controversial issue and, even if it does not, careful monitoring of the landfill or vault will be necessary or the city will face a new crisis when the ash disposal facility decays. This crisis might come about even sooner if the EPA carries out its plan to exempt such ash from a hazardous classification and if the city fails to do an adequate job of testing. Should this happen, Westinghouse can dispose of these materials in an ordinary landfill such as the one operated by a private firm for the county.
Finally, it is not at all apparent that many of the projected benefits will materialize. Most new jobs will be of the short-term, construction variety, since incinerater operation and maintenance positions are limited in number and technically oriented. The industrial firms attracted to Bloomington by the corporate park may be more numerous and permanent; nevertheless, this potential gain must be balanced against the small businesses, students, and tourists that may be lost if this form of development should alter the town's character. Although the process will recover energy, most of it is likely to be used by the wastegenerating industry and, in any case, more energy could be saved through recycling. Such a program is unlikely, however, because Westinghouse has challenged the legality under the decree of any publicly sponsored program aimed at source separation, waste reduction, or recycling. The community may even become a regional depository for garbage from the surrounding counties as officials attempt to supply the tonnage of trash required to maintain the incinerator's combustion efficiency.
Limits of Local Control
The key value in the Consent Decree, according to local authorities, is that it gives the city some control over the nature and direction of the PCB cleanup. Without it, the mayor claims, the U.S. Environmental Protection Agency would determine what sites should be dealt with, when the process will begin, and what method will be used. The Consent Decree, according to local authorities, gives the local community a chance to be part of the decisionmaking process every step of the way (H-T ,1987):
We can force it into a review by an independent body. If we can really, honest to God, show that it's not safe, we can stop it, stop any aspect of it, any place along the line.
Although of ficials admit that the city's local control is no an absolute veto power, the city can use the agreement's "unreasonable risk" clause to insist on additional conditions not mentioned in the Decree so long as the U.S. District Judge can be convinced that these new demands are reasonable and are based on scientific fact. Thus the city can conceivably ask for regulations more rigorous than those mandated by state and federal agencies, for the inclusion of additional sites, and for the substitution of alternative technologies.
The primary concern stressed by municipal leaders is the adverse effects the community might suffer if the Consent Decree were ever abandoned. The city's rush to endorse the agreement can be attributed in large part to the fear that without it the EPA would unilaterally proceed with a cleanup and then bill the parties it felt were responsible for the environmental damages at three times the actual cost. This might mean that city government would share a substantial portion of the expense with Westinghouse, since it had contributed to the area's contamination problems through its own negligence. Furthermore, the federal agency had full authority to incinerate the PCBs and seemed intent on moving ahead with the project. If this were to happen, officials have argued, the EPA might use the facility for the destruction of contaminants from outside the county as well as those that had been locally produced. The process would then be monitored under federal guidelines which the city's consultants claim are inade-quate.
The city's claim that local authorities can do more to protect public health than federal laws reguire was dubious at the outset and now seems to have an extremely limited success in practice. The city has not developed the severe standards that would provide Westinghouse with specific guidance for its design of the incinerator, nor is there any ordinance before the city council that would do so. The city did manage to get the corporation to modify its plan to transport contaminants in open dump trucks and direct them to two pole barns. Instead, these wastes are to be carried by closed-container trucks and placed in a rigid-frame steel storage building. On the other hand, the city was not at all successful in getting the firm to test the contaminated sites for any substances other than PCBs before excavating them. This controversy delayed the cleanup for over a year before the EPA threatened emergency action, performed the on-site chemical identification, and allowed the company to proceed with the excavation. Moreover, once the cleanup had begun at Lemon Lane, neither the city, the state, nor the EPA had inspectors at the site until local ac tivists complained about the way in which the contracter Westinghouse had hired was violating the decree's provisions. The city also rejected calls for the evacuation of nearby residents, despite dust-laden winds five times EPA guidelines.
In some ways the Consent Decree has actually undermined efforts at local control. When Westinghouse proceeded with the cleanup without the permits required by the na tional Resource Conservation and Recovery Act (RCRA), the county prosecutor warned that these transportation and storage plans were a violation of state law. Judge Dillin then ruled that the Toxic Substances Control Act (TSCA) was at issue in this case, not RCRA, and allowed the com pany to proceed. Dillin also overruled an effort by the county to enact a zoning ordinance that would have forced Westinghouse to construct the incinerator further away from State Road 37. In each instance the judge made it clear that he would view any action outside the confines of the Consent Decree as an attempt to interfere with the agreement's implementation, something he would not tolerate. In effect, these rulings allow the parties to the Decree to bypass local laws, permitting processes, and government officials who are not parties to the agreement whenever it is mutually agreeable to the formal par ticipants.
Even if the city became more aggressive in efforts at over sight, the plans as they have evolved pose almost insur mountable problems for regulators. Although local of ficials claim that the Decree prohibits the incineration of "outside wastes," it is difficult to see how this can be com pletely prevented. If the city cannot perform source separa tion and since the company has no plans to do so, there will be no way of determining the contents of the trash to be burned. Under these circumstances, there will be nothing to prevent local businesses or individual citizens from slipping toxic or flammable wastes into the municipal trash. This practice may prove to be a serious prot lem if more hazardous waste-generating companies are attracted to Bloomington by the industrial park or the availability of the incinerator. Westinghouse and the EPA may create ad ditional difficulties for local omcials. The company may decide to redirect the PCB-filled electrical capacitors it is required to collect and retire to its own facility, rather than pay for their destruction at incinerators owned by other companies. The federal agency may attempt to use TSCA to justify sending hazardous materials to the Bloomington incinerator whenever it is the disposal facility closest to an accident or spill.
There are also strong reasons to question the city's insistence that outside pressures made acceptance of the Decree imperative. In the first place, there is every indication that from the outset of the debate city of ficials were attempting to achieve a settlement such as the one they finally agreed to. Negotiations characterized the city's response to the PCB controversy from its emergence as a local issue in 1975 to the present, and there is no evidence that the city's attorneys were ever prepared to go to trial. Nor were local of ficials unhappy with any of the Decree's provisions until public opposition developed. As late as a year after the announcement, the former deputy mayor and current PCB coordinator lohn Langley was quoted as saying, "I don't know why Westinghouse is being as aenerous as thev are (Andrews, 1984). " Even the city 's concerns over the potentially costly actions threatened by the EPA may be overblown, since local officials can cite few examples where the agency ever successfully recovered a significant share of the cleanup costs from either the local governments or corporations involved.
POLICY IMPLICATIONS AND CONCLUSIONS
During an era of environmental retrenchment, spokesmen for the corporate sector, state and local governments, and other regulated interests have joined with economists in advocating fundamental changes in the criteria used for deter mining standards as well as alternatives in the methods of securing compliance. During the 1980s, a national ad ministration largely hostile to the premises of past environ mental policies has insisted that the Environmental Impact Statement and "cost-oblivious" procedures give way to risk assessment and cost-benefit analysis. It was in this ideologically charged atmosphere that the parties to the Consent Decree worked out the framework and rules of the game that are the subject of continuing open debate. Moreover, it is under these circumstances that repre sentatives of major institutions in communities facing pres sures similar to those confronting Monroe County may turn to the form of public-private cooperation that the Bloomington Decree embodies.
The conclusion that must be drawn from the preceeding discussion of the Bloomington Model is that provisions of the Consent Decree will not stand up to close scrutiny whether the evaluator utilizes the traditional or the newer methods of analysis. The policy fails to achieve an ade quate standard of welfare, even if our criteria for the viability of the agreement is limited to calculating costs and benefits in terms of the dollar amounts that the respective organizations stand to gain or lose. The expenditures by the various levels of government will continue to accumulate despite the Decree, while Westinghouse will recover its ex penses and stands to profit from its newly acquired Waste Technology Services Division. If we add, as we should, the less calculable social costs as well as the losses by those individuals, groups, and institutions that are not party to this "solution," the disparities are even more marked. Worse yet, the Decree provides incentives to Westing house, the big gainer in this formula, and encourages the corporation to continue to generate waste based upon the potential return from its investment in pollution abatement and resource recovery.
For the city, the political deficits produced by the Decree seem to be mounting. Despite the flexibility officials insisted was built into the agreement, most of its major terms now seem to be written in stone. Not only has Westinghouse resisted any attempt at alteration, but Judge Dillin has made it clear that the court would "take a dim view" of attempts to change the Decree for political reasons. He went on to say (H-T, 1987):
Anything that was known or reasonably should have been known to the parties to this consent decree at the time I signed it is not going to be considered by this court as any basis for now going back and rethinking the whole thing. This thing has been in the process of being thought about and rethought about since 1981, and that should be long enough.
Thus the city seems to be "locked in" to the incinerator technology by court order. If a new, better, and safer method of disposal clearly emerges from the many competing altematives, the operational technology will not be easy to change. The same conditions apply to each of the other aspects of the Decree.
It seems obvious that public of ficials could have done better in the negotiations process. For example, they might have asked for a written evaluation of the strengths and weaknesses of the alternative technologies that would be made public prior to the settlement. Cleanup of all the PCB sites, funding for medical testing and research, and some fomm of compensation for health and property damages might have been included. If incineration was chosen as the appropriate disposal technology, a local independent monitoring agency could be created to review the facility's performance and provide its records to the public. Greater assurance might also have been provided if Westinghouse had posted a large cash perfommance bond and would automatically pay liquidated damages sufficient to cover an altemative form of disposal if the company's chosen technology should fail. Finally, the legitimacy of the agreement might have been enhanced if it had been subject to public referendum or, at least, if the public hearings had not been so obviously manipulated so as to produce a predetermined outcome.
City attomeys did not attempt to ask for these provisions because they claimed that they were negotiating from a position of relative weakness. Without the profit incentives, limited liability, and the assurance of managable costs, they argued, Westinghouse would have continued to stall as the local environment deteriorated. The local government, however, was not in as vulnerable a position as its attomeys implied. The city could have attempted to fomm a coalition with other communities that the corporation had contaminated. It could have shared infommation, resources, and strategies with fommer employees and other victims. The local prosecuter might have been encouraged to be more aggressive in his pursuit of various criminal charges against the company and its employees. A public relations effort might have been developed to discourage cities that were considering or were already involved in the construction of Westinghouse's new incineration plants. The company might have been faced with the loss of mil lions from multiple personal damage suits, forfeit of tax exempt status on development bonds, cut-off of propertytax abatements, and other local govemment subsidies. The threat of losses of this magnitude would surely have made the firm a bit more pliable.
Even if these efforts utimately failed and the city were forced to go to court in a losing effort, it could not have done much worse than the provisions its attomeys accomplished through negotiation. Such an effort might have even had positive national implications if other cities followed Bloomington's lead and companies like Westinghouse came to the determination that more equitable settlements might prove ultimately to be less expensive than continual litigation and constant confrontations with local governments. Furthermore, efforts of this kind might evolve into programs that encourage public decision makers to assess the available technologies, develop con tingency plans in the event of environmental crises, weigh the social costs of their various policy options, and estimate their ability to manage and monitor subsequent events. Finally, attention might then be focused upon methods of waste reduction or strategies that could profitably make use of resources that are currently thrown away or bumed.
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