II 109th CONGRESS 1st Session S. 1198 IN THE SENATE OF THE UNITED STATES June 8, 2005 Ms. Stabenow (for herself and Mr. Levin) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the Solid Waste Disposal Act to authorize States to restrict receipt of foreign municipal solid waste, to implement the Agreement Concerning the Transboundary Movement of Hazardous Waste between the United States and Canada, and for other purposes.

1.

Short title

This Act may be cited as the International Solid Waste Importation and Management Act of 2005.

2.

Canadian municipal solid waste

(a)

In general

Subtitle D of the Solid Waste Disposal Act (42 U.S.C. 6941 et seq.) is amended by adding at the end the following:

4011.

Foreign municipal solid waste

(a)

Definitions

In this section: (1)

Agreement

The term Agreement means— (A)the Agreement Concerning the Transboundary Movement of Hazardous Waste between the United States and Canada, signed at Ottawa on October 28, 1986 (TIAS 11099) and amended on November 25, 1992; and (B)any regulations promulgated and orders issued to implement and enforce that Agreement. (2)

Foreign municipal solid waste

The term foreign municipal solid waste means municipal solid waste that is generated outside of the United States. (3)

Municipal solid waste

(A)

In general

The term municipal solid waste means— (i)material discarded for disposal by— (I)households (including single and multifamily residences); and (II)public lodgings such as hotels and motels; and (ii)material discarded for disposal that was generated by commercial, institutional, and industrial sources, to the extent that the material— (I)(aa)is essentially the same as material described in clause (i); or (bb)is collected and disposed of with material described in clause (i) as part of a normal municipal solid waste collection service; and (II)is not subject to regulation under subtitle C. (B)

Inclusions

The term municipal solid waste includes— (i)appliances; (ii)clothing; (iii)consumer product packaging; (iv)cosmetics; (v)debris resulting from construction, remodeling, repair, or demolition of a structure; (vi)disposable diapers; (vii)food containers made of glass or metal; (viii)food waste; (ix)household hazardous waste; (x)office supplies; (xi)paper; and (xii)yard waste. (C)

Exclusions

The term municipal solid waste does not include— (i)solid waste identified or listed as a hazardous waste under section 3001, except for household hazardous waste; (ii)solid waste, including contaminated soil and debris, resulting from— (I)a response action taken under section 104 or 106 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9604, 9606); (II)a response action taken under a State law with authorities comparable to the authorities contained in either of those sections; or (III)a corrective action taken under this Act; (iii)recyclable material— (I)that has been separated, at the source of the material, from waste destined for disposal; or (II)that has been managed separately from waste destined for disposal, including scrap rubber to be used as a fuel source; (iv)a material or product returned from a dispenser or distributor to the manufacturer or an agent of the manufacturer for credit, evaluation, and possible potential reuse; (v)solid waste that is— (I)generated by an industrial facility; and (II)transported for the purpose of treatment, storage, or disposal to a facility (which facility is in compliance with applicable State and local land use and zoning laws and regulations) or facility unit— (aa)that is owned or operated by the generator of the waste; (bb)that is located on property owned by the generator of the waste or a company with which the generator is affiliated; or (cc)the capacity of which is contractually dedicated exclusively to a specific generator; (vi)medical waste that is segregated from or not mixed with solid waste; (vii)sewage sludge or residuals from a sewage treatment plant; (viii)combustion ash generated by a resource recovery facility or municipal incinerator; or (ix)waste from a manufacturing or processing (including pollution control) operation that is not essentially the same as waste normally generated by households. (b)

Management of foreign municipal solid waste

(1)

State action

(A)

In general

Except as provided in paragraph (2) and subject to subparagraph (B), until the date on which the Administrator promulgates regulations to implement and enforce the Agreement (including notice and consent provisions of the Agreement), a State may enact 1 or more laws, promulgate regulations, or issue orders imposing limitations on the receipt and disposal of foreign municipal solid waste within the State. (B)

No effect on existing authority

A State law, regulation, or order that is enacted, promulgated, or issued before the date on which the Administrator promulgates regulations under subparagraph (A)— (i)may continue in effect after that date; and (ii)shall not be affected by the regulations promulgated by the Administrator. (2)

Effect on interstate and foreign commerce

No State action taken in accordance with this section shall be considered— (A)to impose an undue burden on interstate or foreign commerce; or (B)to otherwise impair, restrain, or discriminate against interstate or foreign commerce. (3)

Trade and treaty obligations

Nothing in this section affects, replaces, or amends prior law relating to the need for consistency with international trade obligations. (c)

Authority of Administrator

(1)

In general

Beginning immediately after the date of enactment of this section, the Administrator shall— (A)perform the functions of the Designated Authority of the United States described in the Agreement with respect to the importation and exportation of municipal solid waste under the Agreement; and (B)implement and enforce the Agreement (including notice and consent provisions of the Agreement). (2)

Regulations

Not later than 2 years after the date of enactment of this section, the Administrator shall promulgate final regulations with respect to the responsibilities of the Administrator under paragraph (1). (3)

Consent to importation

In considering whether to consent to the importation of Canadian municipal solid waste under article 3(c) of the Agreement, the Administrator shall— (A)give substantial weight to the views of each State into which the foreign municipal solid waste is to be imported, and consider the views of the local government with jurisdiction over the location at which the waste is to be disposed; (B)consider the impact of the importation on— (i)continued public support for and adherence to State and local recycling programs; (ii)landfill capacity as provided in comprehensive waste management plans; (iii)air emissions from increased vehicular traffic; and (iv)road deterioration from increased vehicular traffic; and (C)consider the impact of the importation on— (i)homeland security; (ii)public health; and (iii)the environment. (4)

Actions in violation of the agreement

No person shall import, transport, or export municipal solid waste for final disposal or for incineration in violation of the Agreement. (d)

Compliance orders

(1)

In general

If, on the basis of any information, the Administrator determines that any person has violated or is in violation of this section, the Administrator may— (A)issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both; or (B)commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent injunction. (2)

Specificity

Any order issued pursuant to this subsection shall state with reasonable specificity the nature of the violation. (3)

Maximum amount of penalty

Any penalty assessed in an order described in paragraph (1) shall not exceed $25,000 per day of noncompliance for each violation. (4)

Penalty assessment

In assessing a penalty under paragraph (1), the Administrator shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. (e)

Public hearing

(1)

In general

Any order issued under this section shall become final unless, not later than 30 days after the date on which the order is served, 1 or more persons named in the order request a public hearing. (2)

Procedure for hearing

The Administrator— (A)shall promptly conduct a public hearing on receipt of a request under paragraph (1); (B)in connection with any proceeding under this section, may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents; and (C)may promulgate rules for discovery procedures. (f)

Violation of compliance orders

If a violator fails to take corrective action within the time specified in a compliance order issued under this section, the Administrator may assess a civil penalty of not more than $25,000 for each day of continued noncompliance with the order.

. (b)

Conforming amendment

The table of contents of the Solid Waste Disposal Act (42 U.S.C. prec. 6901) is amended by adding after the item relating to section 4010 the following: Sec. 4011. Foreign municipal solid waste .