Current U.S. laws do not typically provide for full exercise of due-process rights by those who may have been harmed by toxins or hazardous wastes. Many of the companies that handle dangerous substances do not have either full insurance for their pollution risk or adequate funds to cover their liability themselves. RCRA and CERCLA, however, require such companies both to show that they are capable of paying at least some of the damages resulting from their activities and to clean up their sites. Because enforcement of liability and coverage provisions of these laws is difficult, many hazardous-waste industries often operate outside the law. Furthermore, most insurers have withdrawn from the pollution market, claiming that providing such coverage carries the risk of payments for claims that would bankrupt them.
Just as insurers fear potentially large liability claims in cases involving hazardous-waste substances, so do members of the public. For example, in 1987 when the U.S. Congress chose Yucca Mountain, Nevada, as the likely site for the world's first permanent facility for high-level nuclear waste, local residents and the state asked for unlimited, strict-liability coverage for any nuclear-waste accident or incident. The U.S. Department of Energy's response to the citizens, based on the 1957 Price-Anderson Act, was that the government would allow the waste facility to bear only limited liability. Consequently, the U.S. nuclear program, including radioactive-waste management, has operated under a government-imposed limit for liability coverage. This limit, designed to protect the nuclear-waste industry from bankruptcy caused by accidents, is less than 3 percent of the government-calculated costs of the April 1986 Chernobyl nuclear catastrophe, and Chernobyl was not a worst-case accident (see Shrader-Frechette, 1993).
Limits on government or industry liability for hazardous-waste and toxic-substance incidents are problematic for several reasons. First, liability is a well-known incentive for appropriate, safe behavior. Second, refusal to accept full and strict liability suggests that hazardous- and radioactive-waste sites are not as safe as the government maintains they are. Third, if government officials may legally limit due-process right then, in the case of an accident at a hazardous-waste facility, the main financial burdens will be borne inequitably by accident victims rather than by the perpetrators of the hazard. Fourth, because much less is known about the dangers from hazardous wastes and toxic substances than about more ordinary risks, full liability seems a reasonable requirement. And finally, the safety record of hazardous facilities, in the past, has not been good. Every state and every nation in the world have extensive, long-term pollution from toxins. Even in the United States, the government has been one of the worst offenders. A congressional report has argued that cleaning up the hazardous and radioactive wastes at government weapons facilities would cost more than $300 billion (U.S. Congress; Shrader-Frechette, 1993). Such problems argue for citizens's rights to full liability.
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