[Senate Hearing 106-357]
[From the U.S. Government Publishing Office]
S. Hrg. 106-357
INTERSTATE TRANSPORTATION OF
MUNICIPAL SOLID WASTE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
JUNE 17, 1999
__________
ON
S. 533, A BILL TO AMEND THE SOLID WASTE DISPOSAL ACT TO AUTHORIZE LOCAL
GOVERNMENTS AND GOVERNORS TO RESTRICT RECEIPT OF OUT-OF-STATE MUNICIPAL
SOLID WASTE, AND FOR OTHER PURPOSES
S. 663, A BILL TO IMPOSE CERTAIN LIMITATIONS ON THE RECEIPT OF OUT-OF-
STATE MUNICIPAL SOLID WASTE, TO AUTHORIZE STATE AND LOCAL CONTROLS OVER
THE FLOW OF MUNICIPAL SOLID WASTE, AND FOR OTHER PURPOSES
S. 872, A BILL TO IMPOSE CERTAIN LIMITATIONS ON THE RECEIPT OF OUT-OF-
STATE MUNICIPAL SOLID WASTE, TO AUTHORIZE STATE AND LOCAL CONTROLS OVER
THE FLOW OF MUNICIPAL SOLID WASTE, AND FOR OTHER PURPOSES
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
59-376 cc WASHINGTON : 2000
------------------------------------------------------------------------------
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
ROBERT F. BENNETT, Utah RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
(ii)
C O N T E N T S
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Page
JUNE 17, 1999
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 7
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 1
Crapo, Hon. Mike, U.S. Senator from the State of Idaho........... 8
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 54
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 8
Moynihan, Hon. Daniel Patrick, U.S. Senator from the State of New
York........................................................... 53
Reid, Hon. Harry, U.S. Senator from the State of Nevada.......... 2
Smith, Hon. Robert, U.S. Senator from the State of New Hampshire. 52
Voinovich, Hon. George V., U.S. Senator from the State of Ohio... 9
Additional material submitted for the record................. 13
Warner, Hon. John, U.S. Senator from the Commonwealth of Virginia 5
WITNESSES
Bayh, Hon. Evan, U.S. Senator from the State of Indiana.......... 20
Prepared statement........................................... 59
Eisenbud, Robert, Director, Legislative Affairs, Waste
Management, Inc................................................ 39
Prepared statement........................................... 77
Responses to additional questions from Senator Graham........ 85
Kernan, Joseph E., Lieutenant Governor, State of Indiana......... 25
Prepared statement........................................... 62
Responses to additional questions from Senator Voinovich..... 64
Miles, Floyd H., Sr., Chairman, Charles City County Board of
Supervisors, Providence Forge, Virginia........................ 34
Prepared statement........................................... 72
Responses to additional questions from Senator Voinovich..... 73
Norquist, Grover G., President, Americans for Tax Reform......... 37
Prepared statement........................................... 74
Responses to additional question from Senator Graham......... 76
Robb, Hon. Charles, U.S. Senator from the Commonwealth of
Virginia....................................................... 17
Prepared statement........................................... 56
Responses to additional questions from Senator Graham........ 58
Seif, Joseph M., Secretary of Environmental Protection,
Department of Environmental Protection, Commonwealth of
Pennsylvania................................................... 28
Prepared statement........................................... 65
Responses to additional questions from Senator Graham........ 67
Sondermeyer, Gary, Assistant Commissioner for Environmental
Regulation, State of New Jersey................................ 32
Prepared statement........................................... 68
Responses to additional questions from:
Senator Graham........................................... 71
Senator Voinovich........................................ 69
Specter, Hon. Arlen, U.S. Senator from the Commonwealth of
Pennsylvania................................................... 16
Prepared statement........................................... 55
Stokes, Dewey R., President, Board of Commissioners, Franklin
County, Ohio, on Behalf of the National Association of
Governors...................................................... 36
Prepared statement........................................... 73
ADDITIONAL MATERIAL
Letters:
Association of American Railroads............................ 86
National Association of Counties............................. 13
Governors of Indiana, Ohio, Michigan, and New Jersey......... 14
Governor of Pennsylvania..................................... 15
Western Governors' Association............................... 14
Statements:
Competetive Enterprises Institute............................ 93
Republic Services, Inc....................................... 86
Santorum, Hon. Rick, U.S. Senator from the Commonwealth of
Pennsylvania............................................... 61
INTERSTATE TRANSPORTATION OF MUNICIPAL SOLID WASTE
----------
THURSDAY, JUNE 17, 1999
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:33 a.m. in
room 406, Senate Dirksen Building, Hon. John H. Chafee
(chairman of the committee) presiding.
Present: Senators Chafee, Reid, Baucus, Lautenberg, Crapo,
and Voinovich.
OPENING STATEMENT OF HON. JOHN H. CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. I want to welcome everyone this morning. It
is a meeting of the full Committee on Environment and Public
Works on interstate transportation and flow control of solid
waste.
We're here today to hear testimony on the issues of
interstate transportation of municipal solid waste, also known
as MSW, or, in more common terms, it is trash. And we're also
going to discuss flow control.
Three bills have been introduced on these issues--S. 533 by
Senators Warner and Robb, S. 663 by Senator Specter, and S. 872
by Senators Voinovich and Bayh.
I want to welcome the Senators who are here today. We are
delighted that you are able to be present.
Interstate waste and flow control aren't new issues for
this committee. Concerns about increased interstate shipments
of solid waste and the potentially adverse economic impacts of
flow control have been around for almost a decade. In this
committee, the full Senate and the House have all tried on
several occasions to address these concerns through
legislation. We've never succeeded.
I think that the legislation we crafted back in the 104th
Congress represented a good compromise for the time. It
balanced the interest of importing States with the legitimate
disposal needs of exporting States and tried to provide a
narrow grandfather for facilities that had relied on flow
control.
It was a good bill, but things have changed. I appreciate
the concerns raised by Virginia, Pennsylvania, Ohio, and
Indiana that import large volumes of solid waste. I can
understand that these States don't want to become or be
perceived as the dumping grounds for New York's trash.
There's another side to the story, however. Interstate
waste shipments have increased over the past 5 years, but this
is due largely to the closure of hundreds of small landfills
who were unable to comply we new stringent environmental
standards. As a result, waste may be crossing State lines, but
it is ending up in facilities that meet the highest standards--
double liners, leachate collection systems, and groundwater
monitoring requirements. In most cases, it is being shipped to
facilities in communities that choose to accept out-of-State
waste.
The facts on flow control have also changed. In 1995, in
wake of the Carbone decision in the Supreme Court, State and
local governments predicted that recycling and disposing
facilities would go bankrupt and entire waste management
systems collapse without flow control. These predictions turned
out to be overly pessimistic. The vast majority of facilities
that previously relied on flow control have survived without
it.
So things have changed from 1993 and 1994. The proponents
of Federal legislation on interstate waste and flow control
this year have a special burden to make the case that it is
still needed. The principles I will use to evaluate any
legislation are simple. I believe that solid waste is
fundamentally like all other commodities and should be
protected by the commerce clause of the Constitution. The
Supreme Court has consistently affirmed that principle.
If Congress is going to restrict shipments of solid waste,
whether through limitations on interstate movement or flow
control, it should do so in a way that minimizes the
interference with free commerce and insures the highest degree
of protection for the environment.
State and local governments I don't believe should be given
broad authority through flow control to create solid waste
monopolies. Consumers--in this case the solid waste
generators--should have the freedom to send their waste to the
most economically efficient facilities.
So it seems to me the issue is no longer one of insuring
adequate capacity for our Nation's trash; instead, the question
we should be asking ourselves is: how can we insure that solid
waste is managed in the most environmentally responsible
manner?
I believe the answer lies in recognizing the economies of
scale that have enabled regional state-of-the-art facilities to
comply with EPA regulations and continuing to allow solid waste
to flow to the best new facilities.
So we look forward to hearing from out witnesses and
appreciate that they are all present.
Senator Reid, did you have anything you wanted to say?
OPENING STATEMENT OF HON. HARRY REID,
U.S. SENATOR FROM THE STATE OF NEVADA
Senator Reid. Yes, I do, Mr. Chairman.
I, first of all, would welcome Senators Bayh, Warner, and
Specter to the hearing this morning.
Mr. Chairman, a substantial settlement was just arrived in
Las Vegas after 2 years of litigation and administrative
tribunal work. We had in Las Vegas a solid waste landfill for
some 35 years. It closed, and then the trouble really started.
There were some who said it would go into Lake Mead, garbage
from that facility.
Solid waste is a very, very difficult problem, and the fact
that you have a solid waste landfill is a problem in and of
itself, so I certainly understand why the three of you are
here.
I would say, specifically to Senator Bayh, your
predecessor, Senator Coats, was very courageous. He was one of
two Republicans who voted to support our nuclear waste issue,
and he did this with a lot of--it took a lot of guts to do
that, because it became a very partisan issue, which it
shouldn't have, and that was bringing nuclear waste to the
State of Nevada.
I'm familiar not as much with the State of Pennsylvania as
I am with the State of Virginia, because I have a home in the
State of Virginia, and it is, I understand, a difficult
problem, and I have watched admirably as you and Senator Robb
have tried to make sure that there is some reasonable program
to stop the flow of waste into the State of Virginia.
I've read your bill. It seems like, to me, at this stage it
makes common sense to change the rules of the road. It seems
like everything that you've asked to do in the legislation is
constitutional, which also, with interstate commerce, causes a
constitutional problem. So I am willing to work with you on
this issue, and I think that you are doing the right thing.
It is not my goal this morning to put anyone on the spot,
but I want to recognize the similarities between the battle
that we have been fighting for 6 years on interim storage of
nuclear waste and for more than 15 years of battle of permanent
storage of nuclear waste and the issue that we now have before
this body.
Yesterday, I am happy to report, the Energy and Natural
Resources Committee passed a bill that doesn't have interim
storage of nuclear waste in Nevada, and that's really a step
forward, so I'm happy to report there will not be a battle on
the Senate floor this year dealing with nuclear waste.
So, anyway, I guess the one message I would like to leave
here is that we talk a lot about States' rights, but when it
comes to issues of garbage--and that's what this is--States'
rights hasn't had anything more than lip service.
We have in the past, here in this body and in the Congress,
generally, worked very hard to establish flexibility. We did
that in the last surface transportation bill. We worked on it.
Senator Warner was instrumental in working on that. We've done
the safe drinking water revolving fund. These are issues that
we resolved with the Governors, mayors, and even State
assemblymen. We need to make sure that there is input on this
legislation, also.
So the problem with municipal landfills in big cities, as
the big cities begin to close, is going to get worse, not
better. I ask my colleagues: should any State be forced to
accept trash from another State against their will?
Maybe I grew up in a simpler time, but I'm still a firm
believer in the notion that if you make a mess you should clean
it up yourself.
I read recently that New York Mayor Giuliani has said that
accepting New York's trash is the price the rest of the Nation
should pay for having access to all the cultural activities
that the Big Apple has to offer. With all due respect to my
colleague, Senator Moynihan, senior member of this committee
who I know disagrees with me on this issue, I hope the citizens
of New York will choose to keep their garbage and their mayor
at home.
[The prepared statement of Senator Reid follows:]
Statement of Hon. Harry Reid, U.S. Senator from the State of Nevada
Thank you, Mr. Chairman, for holding a hearing on these important
issues.
I would like to welcome my colleagues, Senators Robb, Bayh, and
Specter to today's hearing. All three of you are representing slightly
different, but compatible points of view on interstate transport of
solid waste.
Senator Bayh, I supported your predecessor, Senator Coats, in his
efforts to impose some reasonable, state-option restrictions on
transport of solid waste and I am glad to see that you have taken up
that torch.
Senator Specter, we also have worked on this and many other issues
in recent years. I am delighted to see you here today.
Senator Robb, I am most familiar with your situation. I spend a
fair bit of time in Virginia. My home when I am here is in your neck of
the woods. I have witnessed first hand how hard you have worked, in
conjunction with my good friend, Senator Warner, to try to introduce
some reasonable restrictions on interstate transport.
I have read your bill and it seems like it makes some reasonable,
common sense changes to the rules of the road. As someone who has spent
much of his career trying to keep waste of another kind out of my
state, I know someone who is willing to fight to the finish for his
state when I see him. I am proud to work with you on this issue.
It is not my goal this morning to put anyone on the spot, but do
not dismiss lightly the similarities between forcing states to accept
unwanted trash from other states and the desire of many in this body to
force Nevada to accept waste from America's nuclear reactors.
Nevada does not rely on nuclear power and never has. Nevada has
never wanted and never will want a dump at Yucca Mountain, yet here we
are.
Worse, rather than closing 110 ``landfills'' and opening just one,
we are really just opening the 111th landfill.
Again, I don't want to beat this to death this morning, but it
often seems like ``states' rights'' is just something we pay lip
service to on this issue.
We spend a lot of time in the Committee talking about kitchen
table, quality of life issues that affect the everyday lives of all
Americans.
In the last year alone, we have addressed issues of congestion, air
quality, and drinking water quality. These are issues that concern most
people every day.
As part of our effort to alleviate these problems, this Committee
has worked hard to ensure that our states and local governments have
the tools and resources they need to effectively combat these quality
of life detriments.
Tremendous resource flexibility under TEA-21 and the Safe Drinking
Water Revolving Fund are both examples of this Committee listening to
our Governors, mayors, and state assemblymen when they have told us
what they need to most effectively run our states.
Today, we are considering three bills in this same tradition. Our
states are telling us that they want and need the ability to say,
``No,'' to other states that want to ship their trash out-of-State.
Senator Chafee. Senator Warner, what's your situation?
You've got a hearing?
Senator Warner. I'm due before the Foreign Relations
Committee momentarily to introduce one of the President's
nominees, and if I could just make a brief statement and submit
my full statement for the record, I would be most appreciative
to the chair and my colleagues.
Senator Chafee. All right.
Senator Lautenberg. I have no objection, Mr. Chairman,
provided we have chance to make the----
Senator Chafee. You'll have a chance.
Senator Lautenberg. With that assurance, I'm delighted to
accommodate our good friend.
Senator Warner. Well, I thank you.
Senator Reid. Mr. Chairman, where he made his mistake, he
should be up here on the dais rather than down there at the
witness table.
STATEMENT OF HON. JOHN WARNER, U.S. SENATOR FROM THE
COMMONWEALTH OF VIRGINIA
Senator Warner. I wanted to face the chairman, and I'll
tell you why, my good friend.
First, I'm almost ready to take my distinguished colleague
from Nevada's State and supplant it with mine--that is, let his
statement stand for Virginia.
But, Mr. Chairman, I copied down something you read from
your prepared statement. You said, ``I regard solid waste like
all other commodities.'' Now, my good friend, you and I have
been associated for some 30 years in public service. I want to
invite you to Virginia to look at the roads that are laden with
the grease and the debris from leaking trucks by the thousands
that come into our State. I want to take you down to one place
where there is a mountain of garbage as tall as the Washington
Monument and 994 football fields wide. I don't know of any
other commodity that parallels that, my dear friend. Perhaps
you'd like to revise your statement.
Senator Chafee. Is this an invitation you're giving me?
Senator Warner. Yes.
[Laughter.]
Senator Warner. And if you would like----
Senator Chafee. I mean for the summer vacation.
Senator Warner.--we can get the former Secretaries of the
Navy, get a little barge and take you up the James River
following one of these barges coming in and let you waft in the
vapors. It's unlike anything you've ever seen.
Now, having said that, my good friend, clearly under our
Constitution Congress has the authority to give the States the
latitude and the flexibility they need to address the
legitimate environmental, health, and safety concerns whose
overly onerous scope is unfairly inherited, I think, by States
like mine.
I say to you in all candor, what I am seeking in this
legislation, the bill put in by my colleague, Mr. Robb, who
will be here momentarily, and myself--and I've been at this for
15 years with various bills, as you know. My good friend to the
left might recount one of our earlier legislative efforts where
the chairman was instrumental in that in 1994, but that's a
footnote of history.
The point is, we're trying to simply strike a balance
between the free enterprise system. There are witnesses here
from my State who take views different from mine, and I ask
that you respect them as you will respect me. But we are trying
to strike a balance between the free enterprise system in their
right to handle waste and the citizens of the several States in
their right to look after their safety, their environmental
concerns, their quality of life.
In our State, I must say we're very proud of our heritage
and the forefathers that worked to establish freedom and
democracy in this country and to provide for such a balance in
the magnificence of the Constitution, but right now our State
ranks, depending on the day and the month, one, two, or three
nationwide in terms of the quantity being brought in.
The time has come to strike a balance, I say most
respectfully to the chairman and the members of the committee,
and I thank the committee for the opportunity to speak.
Senator Chafee. Thank you. Your full statement will go on
the record.
Senator Warner. Thank you.
[The prepared statement of Senator Warner follows:]
Statement of Hon. John W. Warner, U.S. Senator from the Commonwealth of
Virginia
Mr. Chairman, thank you for holding this hearing to review the
different proposals introduced by my colleagues as well as the
legislation introduced by Senator Robb and myself to give our States
and local governments authority to manage the disposal of municipal
waste within their borders.
For several years, the Committee on Environment and Public Works,
on which I am privileged to serve, has considered many legislative
proposals to convey authority to States and localities to begin to
address this serious problem. Unfortunately, no legislation has been
enacted since this serious problem first surfaced in the early 1990's.
Today, large volumes of waste are traveling from Northeastern
states to Mid-west and Mid-Atlantic states. Over the past few years,
the amount of waste traveling across state lines has greatly increased
and projections are that interstate waste shipments from certain states
will continue to grow.
Most States and localities are responsible in ensuring that
adequate capacity exists to accommodate municipal waste generated
within each community. I regret, however, that the evidence available
today shows that there are specific situations where State and local
governments are neglecting responsible environmental stewardship.
The result of this neglect is that other States such as my home
state of Virginia are bearing the burden of disposing of waste
exporting states. These State and local governments currently have no
authority to refuse this waste or even to control the amount of waste
that is sent for disposal on a daily basis.
We must strike a balance between the rights of free enterprise to
deal in waste and the rights of citizens of states to protect
themselves from less controlled, excessive imports and the negative
impacts on our quality of life and environment. For Virginia may I also
add, we are proud of our heritage in our forefathers devising our
system of democracy and free enterprise. But now we rank at the very
top as recipients of waste.
The Virginia General Assembly passed laws this year to self-
regulate trash disposal and self-limit dumping. As expected, these laws
passed with overwhelming support of the people of Virginia but now face
lawsuits in Federal courts deeming these state laws unconstitutional.
These lawsuits challenge Virginia's right to protect her waterways
and landscape from the uncontrolled expansion of landfills.
Stemming the flow of trash into Virginia is as much a matter of
public safety and responsible public policy as it is a common sense
matter. A recent series of articles in the Washington Post detailed
Federal safety records showing the rise in serious accidents involving
trash haulers in Virginia along the I-95 corridor, barge leaks into the
James River, and the rise in metals found in the groundwater at two
mega-fills.
These mega-fills challenge the imagination. Picture a mountain of
garbage as tall as the Washington Monument and 994 football fields
wide. That's how big a mega-fill in Sussex County, Virginia alone would
be if built out as planned to accommodate out of state trash not agreed
to by Virginia's state and local community leaders.
The legislation I have cosponsored, S. 533, recognizes that in the
normal course of business it is necessary for some amount of waste to
travel across State lines, particularly in circumstances where there
are large urban areas located at State borders. S. 533 will not close
down State borders or prevent any waste shipments.
States will have, however, for the first time, the ability to
effectively manage and plan for the disposal out-of-State waste along
with waste generated within their borders.
Specifically, S. 533 will allow States who are today receiving 1
million tons of waste or more yearly to control the growth of these
waste shipments. My bill does not mandate that states take any specific
action -it only gives them the authority should they choose to do so.
These States would be permitted to freeze at 1998 levels the amount
of waste they are receiving or, if they decided, they could determine
the amount of out-of-State waste they can safely handle. Today, they
have no voice, but this legislation will give all citizens the right to
participate in these important waste disposal decisions.
For all States and localities, protections would be provided to
ensure that all interstate waste must be handled pursuant to a host
community agreement. These voluntary agreements between the local
community receiving the waste and the industry disposing of the waste
have allowed some local governments to determine waste disposal
activities within their borders.
According to the Constitution, Congress has the authority to give
the states the latitude and flexibility they need to address the
legitimate environmental, health and safety concerns whose overly
onerous scope is unfairly inherited by states like Virginia.
I ask my colleagues to give fair consideration to S. 533 and the
testimony we are privileged to receive today so we can develop a fair
and equitable resolution to this problem.
Senator Chafee. Now what I'd like to do is finish up the
opening statements here briefly and then we'll get to--how's
your time? Have you got a few minutes, Senator Specter?
Senator Specter. I have a few minutes.
Senator Chafee. All right. Let's go through.
Senator Baucus?
OPENING STATEMENT OF HON. MAX BAUCUS,
U.S. SENATOR FROM THE STATE OF MONTANA
Senator Baucus. Thank you, Mr. Chairman. I will be very
brief.
I very much hope we can resolve this issue this Congress.
This is the fifth Congress we've attempted to deal with this
issue. We came very close--and seeing the Senator from Indiana
at the table reminds me of Senator Coats, who worked very, very
hard on this issue. In fact, he would often tell me, ``Oh, my
gosh, my Governor back home was just hammering me on this. I've
got to do something on interstate waste.''
Senator Voinovich. You've got to watch those Governors.
Senator Baucus. Yes, you've got to watch them.
And we, unfortunately, were unable in this Congress to
resolve it then. I very much hope we can now.
The key problem--actually, it's a benefit--is the commerce
clause of the Constitution, which, in effect, prevents the
States from handling this issue, and it also is the reason why
flow control has been ruled unconstitutional--efforts by States
to govern flow control.
I have a lot of sympathy with the statement made by the
Senator from Nevada. A lot of us in the west in the rural open
States just don't like having garbage dumped in our States,
just don't like it, and we want to have the ability to say no.
It's that simple.
Now, it is a bit complicated. I'm not going to sit here and
say that every State should have the absolute right to always
say no in all instances, because, as I vaguely recall,
something like 40 States--maybe more than that--both export and
import solid waste. Nobody is really--no one really wears a
black hat here and nobody wears a white hat. There are various
shades of gray.
But we want to be able to help those States who do want to
say no to give them a very strong voice in their ability to say
no, trying to find that right balance.
Mr. Chairman, I very much hope that, after many, many
tries, we can finally get it resolved. Thank you.
Senator Chafee. Senator Reid?
Senator Reid. Want me to give another one?
Senator Chafee. Oh, excuse me.
[Laughter.]
Senator Chafee. Excuse me. Senator Crapo?
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. Thank you, Mr. Chairman. I have to go to the
floor momentarily, so I'll just make a very brief statement, if
that's all right.
I just want to echo the comments of Senator Baucus about
the fact that many of us come from States that want to assure
that we retain the right to control our own destinies on this
issue, and I perceive this very much to be an issue that
requires that we recognize the interests of the various States
and their rights to self-government.
With that, Mr. Chairman, I will submit the remainder of my
statement for the record.
Senator Chafee. Thank you, Senator.
Senator Lautenberg?
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Yes. Thanks, Mr. Chairman.
I'm going to take just a couple minutes to read a
statement, because this is a complicated subject with no clear
answers, and so we are going to try to find our way through the
very thick thicket, and it is--I listened to my colleagues with
great respect, and I hear about the objections that people
raise to having to take other people's trash. Well, we in New
Jersey object to taking other people's trash, as well. Some of
it is delivered through the air, toxics that are emitted from
chimneys all over the place that flow and drop acid and spoil
our waters, our tributaries and our land, so this is not the
kind of a game where you can just look at one possibility.
My State had a suit that went to the Supreme Court to try
and stop Philadelphia, which was dumping trash in New Jersey,
and New Jersey lost on the case. This was years ago, Senator
Specter, and we thought we had a right.
Now New York to our east wants to send its trash west, and,
while so many of our people work there and earn their pay
there, contribute to the development of that city, we don't
want their trash to follow our commuters back home at night
when they come.
So we have a very strong environmental question in our tiny
State, the most-densely-populated State in the country, and we
try to keep our green areas green and our waters clean and it
is not easy.
We have the highest recycling rates among the highest
recycling rates in the country, and it is an accomplishment
that is developed household-by-household. It is an
accomplishment that reflects broad public commitment to
environmental protection, and our environmental ethic was
developed the hard way.
Not too long ago, New Jersey was a favorite dumping ground
for more than one State and burning dumps could be found around
the State. As a consequence of that, we have the highest number
of Superfund States of any State in the country--and, again, in
terms of geography, we probably rank 47th or 48th in size--so
we put in place some of the most modern waste management
facilities in the country, though often at great financial and
political cost.
Today we face challenges in the area of waste management
with the fall of flow control and the deregulation of waste
management. Many counties have been left with stranded waste
facilities that they bonded, they paid for.
Our neighbor to the east, a great city--we don't want their
trash, but they could warp what we create in our own State in a
very short order.
And we hear the resentment of those communities which
accept our trash, and I understand it, but this is a Federal
issue when you talk about, in my view, environment. Lots to be
resolved.
I know there are many legislative solutions proposed on the
issue, several of which we're going to hear about today. I
know, however, that the situation in New Jersey is, as I assume
it is in other States, influx, and that approach seems to make
sense. The approach that seemed to make sense just a few years
ago doesn't necessarily work any more, but we shouldn't rush to
a solution that we'll repeat in the future.
Now, I'm going to be looking at this issue very carefully,
Mr. Chairman, and for that reason I thank you for holding this
hearing. And I would say this: if we abandon, if we force flow
control on some of our communities, their tipping rates will go
to more than double, on top of very heavy real estate taxes.
So we are, again, somewhat in the muddle, as they say, and
we're going to work with all of our colleagues as vigorously as
we can to arrive at a compromise that satisfies the largest
number of people.
Thank you very much.
Senator Chafee. Thank you very much.
Senator Voinovich?
OPENING STATEMENT OF HON. GEORGE V. VOINOVICH,
U.S. SENATOR FROM THE STATE OF OHIO
Senator Voinovich. Mr. Chairman, I want to thank you for
conducting this hearing today. It is a problem that has plagued
States nationwide--the uncontrollable amounts of trash being
dumped into our landfills and incinerators from other States. I
have just a few brief remarks, and I'd ask that my total
statement be put into the record.
I'd like to welcome Dewey Stokes from the Franklin County
Board of Commissioners today, who is going to be testifying
about the importance of flow control.
Senator Bayh, it's nice to see you here, and Senator Robb,
Senator Specter.
Senator Bayh and I have been working on this problem since
1991, when I was Governor of Ohio, and, Senator Baucus, I may
have testified before you several times over the last number of
years to try and do something about this problem.
Now, it is viewed in some instances as a midwest problem,
but I think it is safe to say that this is a problem that
affects States nationwide. Non-midwest States such as Virginia
and Oregon have passed Ohio in the volume of out-of-State waste
received in their States. Because it is cheap and expedient for
other States, they've simply put their garbage on trains,
trucks, barges, and shipped it to other places.
However, lacking specific delegation of authority from
Congress, States and local governments have acted responsibly
to implement environmentally sound waste disposal plans, and
recycling programs are still being subjected to a flood of out-
of-State waste.
I am very proud, Senator Lautenberg, of what we've done in
Ohio about recycling, but there is a problem when you're asking
people to recycle and then have all this stuff coming in from
out-of-State, and they're saying, ``We're recycling and they're
filling up our landfills.''
The bill that Senator Bayh and I introduced reflects an
agreement on interstate waste and flow control provisions that
our States, along with Michigan and Pennsylvania reached with
Governor Whitman, whose own State of New Jersey is a large
exporter of trash.
In fact, the provisions of Senate Bill 872 enjoy broad
support from our Nation's Governors. Twenty-four Governors,
including Governor Whitman and Western Governors Association,
have sent letters to Congress supporting the provisions that we
have in our bill.
In addition, Senate Bill 872 is consistent with the
National Governors Association policy, which was adopted by all
of the Nation's Governors. This policy states that Governors
must be able to act on their own initiative to limit, reduce,
or freeze waste import levels at existing and at future
facilities.
Mr. Chairman, I would ask that the letters of support sent
by individual Governors, the Western Governors Association, the
National Association of Counties be inserted in the record.
For Ohio, the most important aspect of our bill is the
ability for States to limit future waste flows through permit
caps. This provision provides assurances to Ohio and other
States that new facilities will not be built primarily for the
purpose of receiving out-of-State waste.
For example, Ohio EPA had to issue a permit for a landfill
that was bidding to take 5,000 tons of garbage a day--
approximately 1.5 million tons a year--from Canada, alone. This
would have doubled the amount of out-of-State waste entering
Ohio. Thankfully, this landfill lost the Canadian bid.
Ironically, though, the waste company put their plans on hold
to build the facility because there is no need to build a
facility in Ohio.
They've got the permit. We had to give it to them. They
wanted a permit because they wanted to bring in the garbage
from Canada, and when they lost the contract with Canada they
said, ``Well, we're not interested in doing it any more,'' and
that was the end of it.
Unfortunately, efforts to place reasonable restrictions on
out-of-State waste shipments have been perceived by some as an
attempt to ban all out-of-State trash. On the contrary, we're
not asking for outright authority for States to prohibit all
out-of-State waste, nor are we seeking to prohibit waste from
any one State. What we're asking for are reasonable tools that
will enable State and local governments to act responsibly to
manage their own waste, limit unreasonable waste imports from
other States, and such measures would give States the ability
to plan facilities around their own State needs.
And so, Mr. Chairman, I think this is an important issue.
It has been around a long time. It would be wonderful if we
could take care of it in the 106th Congress.
[The prepared statement of Senator Voinovich and additional
material submitted for the record follow:]
Statement of Hon. George V. Voinovich, U.S. Senator from the State of
Ohio
Mr. Chairman, I thank you for conducting this very important
hearing today on a nationwide problem interstate waste shipments. I
strongly believe it is time for Congress to give State and local
governments the tools they need to limit garbage imports from other
States and manage their own waste within their own States.
Ohio received about 1.5 million tons of trash in 1998 from other
States. (Up from 1.4 million tons in 1997 and 1.1 million tons in
1996.) While I am pleased that these shipments have been reduced from
1.9 million tons when I first became Governor, I believe it is still
entirely too high. And we have no assurances that our out-of-State
waste numbers won't rise to our record high of 3.7 million tons in
1989.
Because it is cheap and because it is expedient, other States have
simply put their garbage on trains, trucks or barges and shipped it to
States like Ohio, Indiana, Michigan, Pennsylvania and Virginia. This is
wrong and it has to stop.
Many State and local governments have worked hard to develop
strategies to reduce waste and plan for future disposal needs. As
Governor of Ohio, I worked aggressively to limit shipments of out-of-
State waste into Ohio through voluntary cooperation of Ohio landfill
operators and agreements with other States. We saw limited relief. But
honestly, Ohio has no assurance that our out-of-State waste numbers
won't rise significantly with the upcoming closure of the Fresh Kills
landfill on Staten Island in 2001.
However, the Federal courts have prevented States from enacting
laws to protect our natural resources. What has emerged is an unnatural
pattern where Ohio and other States both importing and exporting have
tried to take reasonable steps to encourage conservation and local
disposal, only to be undermined by a barrage of court decisions at
every turn.
Quite frankly, State and local governments' hands are tied. Lacking
a specific delegation of authority from Congress, States that have
acted responsibly to implement environmentally sound waste disposal
plans and recycling programs are still being subjected to a flood of
out-of-State waste. In Ohio, this has undermined our recycling efforts
because Ohioans continue to ask why they should recycle to conserve
landfill space when it is being used for other States' trash. Our
citizens already have to live with the consequences of large amounts of
out-of-State waste increased noise, traffic, wear and tear on our roads
and litter that is blown onto private homes, schools and businesses.
Ohio and many other States have taken comprehensive steps to
protect our resources and address a significant environmental threat.
However, excessive, uncontrolled waste disposal in other States has
limited the ability of Ohioans to protect their environment, health and
safety. I do not believe the commerce clause requires us to service
other States at the expense of our own citizens' efforts.
A national solution is long overdue. When I became Governor of Ohio
in 1991, I joined a coalition with other Midwest Governors Governor
Bayh , Governor Engler and Governor Casey, and later Governors Ridge
and O'Bannon to try to pass effective interstate waste and flow control
legislation.
In 1996, Midwest Governors were asked to reach an agreement with
Governors Whitman and Pataki on interstate waste provisions. Our States
quickly came to an agreement with New Jersey--the second largest
exporting State--on interstate waste provisions. We began discussions
with New York, but these were put on hold indefinitely in the wake of
their May 1996 announcement to close the Fresh Kills landfill.
The bill that Senator Bayh and I introduced, S. 872, reflects the
agreement that our two States, along with Michigan and Pennsylvania,
reached with Governor Whitman.
For Ohio, the most important aspect of this bill is the ability for
States to limit future waste flows. For instance, they would have the
option to set a ``permit cap,'' which would allow a State to impose a
percentage limit on the amount of out-of-State waste that a new
facility or expansion of an existing facility could receive annually.
Or, a State could choose a provision giving them the authority to deny
a permit for a new facility if it is determined that there is not a
local or in-State regional need for that facility.
These provisions provide assurances to Ohio and other States that
new facilities will not be built primarily for the purpose of receiving
out-of-State waste. For instance, Ohio EPA had to issue a permit for a
landfill that was bidding to take 5,000 tons of garbage a day
approximately 1.5 million tons a year from Canada alone, which would
have doubled the amount of out-of-State waste entering Ohio. Thankfully
this landfill lost the Canadian bid. Ironically though, the waste
company put their plans on hold to build the facility because there is
not enough need for the facility in the State and they need to ensure a
steady out-of-State waste flow to make the plan feasible.
With the announcement to close the Fresh Kills landfill, it is even
more critical to Ohio that States should receive the authority to place
limits on new facilities and expansions of existing facilities. The
Congressional Research Service estimates that when Fresh Kills closes,
there will be an additional 13,200 tons of garbage each day diverted to
other facilities. However, CRS also points out that there is only about
1,200 tons per day of capacity available in the entire State of New
York. Even if New York handles some of that 13,200 tons a day in-State,
it is estimated that about 4 million tons per year will still need to
be managed outside the State from that landfill alone.
In addition, this bill would ensure that landfills and incinerators
could not receive trash from other States until local governments
approve its receipt. States also could freeze their out-of-State waste
at 1993 levels, while some States would be able to reduce these levels
to 65 percent by the year 2006. This bill also allows States to reduce
the amount of construction and demolition debris they receive by 50
percent in 2007 at the earliest.
States also could impose up to a $3-per-ton cost recovery surcharge
on out-of-State waste. This fee would help provide States with the
funding necessary to implement solid waste management programs.
And finally, the bill grants limited flow control authority in
order for municipalities to pay off existing bonds and guarantee a
dedicated waste stream for landfills or incinerators.
Flow control is important to States like New Jersey, which has
taken aggressive steps to try to manage all of its trash within its
borders by the year 2000. New Jersey communities have acted responsibly
to build disposal facilities to help meet that goal. However, if
Congress fails to protect existing flow control authorities, repayment
of the outstanding $1.9 billion investment in New Jersey alone will be
jeopardized.
I am deeply concerned that responsible decisions made by Ohio, New
Jersey and other States have been undermined and have put potentially
large financial burdens on communities and have encouraged exporting
States to pass their trash problems onto the backs of others.
Twenty-four Governors, including Governor Whitman, and the Western
Governors' Association have sent letters to Congress strongly
supporting the provisions that are in our bill.
In addition, S. 872 is consistent with National Governors'
Association policy, which was adopted by all of the nation's Governors.
This policy states that Governors must be able to act on their own
initiative to limit, reduce or freeze waste import levels at existing
and future facilities. It also calls for the ability for States to
impose surcharges on interstate waste shipments.
Unfortunately, efforts to place reasonable restrictions on out-of-
State waste shipments have been perceived by some as an attempt to ban
all out-of-State trash. On the contrary, Senator Bayh and I are not
asking for outright authority for States to prohibit all out-of-State
waste, nor are we seeking to prohibit waste from any one State.
We are asking for reasonable tools that will enable State and local
governments to act responsibly to manage their own waste and limit
unreasonable waste imports from other States. Such measures would give
substantial authority to limit imports and plan facilities around our
own States' needs.
I believe the time is right to move an effective interstate waste
bill. S. 872 represents a consensus of importing and exporting States--
States that have willingly come forward to offer a reasonable solution.
______
Voinovich-Bayh Interstate Waste Bill
Major Provisions
Freeze Authority. Allows States to freeze out-of-State waste at
1993 levels.
Presumptive Ban. Gives local governments more power to determine
whether they want to accept out-of-State waste by prohibiting disposal
facilities that did not receive out-of-State waste in 1993 from
receiving such waste until the affected local government approves its
receipt. Facilities that have a host community agreement or permit in
place that specifically authorizes the facility to accept out-of-State
waste would be exempt from the ban.
Ratchet. Allows States that received more than 650,000 tons of out-
of-State waste in 1993 to reduce their waste to 65 percent of 1993
levels by 2006 and thereafter.
Permit Caps. A State legislature may set a percentage limitation on
the amount of out-of-State waste that new facilities or expansions of
existing facilities could receive. Such limitation would apply
statewide to all such facilities. A State legislature could not set a
percentage limit below 20 percent.
Needs Determination. Gives States an option to deny a permit for a
new facility or major modification to a facility if it is determined
there is not a local or in-State regional need for that facility.
Construction and Demolition Debris. Allows States to reduce the
amount of construction and demolition debris by 50 percent in 2007 at
the earliest.
Authority to impose fees on out-of-State waste. Allows States to
authorize up to a $3 per ton surcharge on out-of-State waste.
Flow Control. Authorizes any State or political subdivision that
adopted flow control prior to 1984, or that adopted flow control that
was later suspended due to court action or any violation of the
Commerce clause, to reinstate it. Authorizes any State or political
subdivision to reinstate flow control for solid waste and recycled
materials for the life of a bond.
______
National Association of Counties,
June 16, 1999.
The Honorable George V. Voinovich,
United States Senate,
Dirksen Senate Office Building,
Washington, DC 20510.
Dear Senator Voinovich: The National Association of Counties (NACo)
supports the reinstatement of enforceable flow control authority to
local governments that own or operate debt-financed solid waste
facilities. We commend you for sponsoring legislation that will
enable counties and municipalities to recover one of their tools to
effectively carry out the waste management responsibilities.
As you know, in 1994 the U.S. Supreme Court, in C&A Carbone v. Town
of Clarkstown, struck down an ordinance directing municipal solid waste
generated within the town's borders to a designated facility, thereby
depriving the town of the revenue stream that financed an
environmentally sound solid waste management system. As a result of the
ruling, and similar lower court decisions, the financial underpinning
of many public landfills and waste-to-energy facilities have been
placed in jeopardy. To assure that debt service payments were made on
tone, counties, cities and towns have dipped into reserve fiends and
adopted new taxes and user fees on residents and businesses.
S. 872 will ``godfather'' local facilities that relied upon flow
control authority prior to the Carbone decision and allow prior bonded
debt to be repaid with revenues from a steady stream of municipal solid
waste. It will also permit local governments that have successfully
prevailed in Federal courts since the Carbine ruling to maintain the
alternative solid waste funding systems they have established.
NACo is appreciative of your efforts on behalf of local governments
on this issue, and we are pleased to endorse the floor control
provisions of S. 872. Thank you for your sponsorship of this important
legislation. Please feel tree to contact NACo's Associate Legislative
Director for environment, energy and land use, Diane Shea (202/942-
4269) if you have any questions.
Very truly yours,
Larry B. Naake, Executive Director
______
Western Governors' Association,
June 15, 1999.
The Honorable George Voinovich,
Hart Senate Office Building,
Washington, DC 20510.
Dear Senator Voinovich: On behalf of the Western Governor's Association
(WGA), we would like to commend you for introducing S. 872, ``The
Municipal Solid Waste Interstate and Transportation and Local
Authority Act of 1999.'' This bill would authorize much needed
tools to States to manage the disposal of out-of-State municipal
solid waste. We strongly support sections 2 and 3 of the bill, and
urge their passage during this Congress. WGA does not have a
position on ``flow control,'' and therefore does not advocate any
position on that section of the bill.
Western Governors believe each State should do everything it
possibly can to manage the wastes generated within its borders. We do
not support an outright ban on waste shipments between States because
there are many examples of safe, effective and efficient cross-border
waste management arrangements.
We believe the provisions in sections 2 and 3 of yoru bill would
provide States reasonable controls over both current, and future, waste
streams. The Governors particularly appreciate section ``2(i) Cost
Recovery Surcharge.'' Authority for cost recovery surcharges is needed
to help States offset their costs for overseeing the disposal of out-
of-State wastes. The Governors also support section ``3(b) Authority to
Deny Permits to Impose Percentage Limits.'' Percentage limitations are
necessary for States to paln and protect future in-State disposal
capacity by ensuring that a portion of landfills and incinerators will
be available for in-State use. To that end, we would seek an amendment
that addresses significant increases of out-of-State waste going to
existing sites under host community agreements.
Again, we commend you for introducing S. 872, and urge its passage
this Congress.
Sincerely,
Michael O. Leavitt, Governor of Utah,
WGA Lead Governor.
John A. Kitzhaber, M.D.,
Governor of Oregon.
______
State of Indiana,
State of Ohio,
State of Michigan,
State of New Jersey.
April 22, 1999.
Dear Senators Voinovich and Bayh: We are writing to express our strong
support for the Municipal Solid Waste Interstate Transportation and
Local Authority Act of 1999, which you plan to introduce this week.
This legislation would at long last give State and local
governments Federal authority to establish reasonable limitations
on the flow of interstate waste and protect public investments in
waste disposal facilities needed to address in-State disposal
needs.
Both of you know firsthand the problems States face in managing
solid waste, as required by Federal law. During your terms of office as
Governors, you worked to support the passage of effective Federal
legislation that would vest States with sufficient authority to plan
for and control the disposal of municipal solid waste, including
noncontaminated construction and demolition debris. The need for such
legislation arose from venous U.S. Supreme Court rulings applying the
commerce clause of the U.S. Constitution to State laws restricting out-
of-State waste and directing the flow of solid waste shipments.
We are committed to working with all States and building upon the
broad State support which exists to pass legislation in the 106th
Congress that will provide a balanced set of controls for State and
local governments to use in limiting out-of-State waste shipments and
directing intrastate shipments. The need for congressional action on
interstate waste/flow control legislation is becoming more urgent. Last
year, the Congressional Research Service reported that its most recent
data showed interstate waste shipments increasing to a total of over 25
million tons. The closing of the Fresh Kills landfill in New York City
is likely to dramatically increase that figure.
Your bill includes provisions which we believe are important for
State and local governments such as the general requirement that local
officials formally approve the receipt of out-of-State municipal solid
waste prior to disposal in landfills and incinerators. The legislation
does include a number of important exemptions for current flows of . It
also provides authority for States to establish a statewide freeze of
waste shipments or, in some cases, implement reductions. In addition,
the legislation explicitly authorizes States to implement laws
requiring an assessment of regional and local needs before issuing
facility permits or establishing statewide out-of-State percentage
limitations for new or expanded facilities.
We legislation would also allow States to impose a $3-per-ton cost
recovery surcharge on out-of-State waste and would provide additional
authority for States to reduce the flow of noncontaminated construction
and demolition debris. Under a separate set of provisions, States would
also be authorized to exercise limited flow control authority necessary
to protect public investments.
We recognize that the Municipal Solid Waste Interstate
Transportation and Local Authority Act of 1999 would not establish an
outright ban on out-of-State waste shipments; instead, it would give
States and localities the tools they need to better manage their in-
State waste disposal needs and protect important natural resources. We
pledge our support for your efforts to ensure that no State is forced
to become a dumping ground for solid waste. We believe your bill will
enjoy wide support and look forward to working with you to secure its
passage.
Sincerely,
Frank O'Bannon, Governor, State of Indiana.
John Engler, Governor, State of Michigan.
Bob Taft, Governor, State of Ohio.
Christine T. Whitman, Governor, State of New Jersey.
______
Commonwealth of Pennsylvania
Office of the Governor
Harrisburg, April 22, 1999.
Dear Senator Voinovich and Senator Bayh: I am writing to express my
strong support for the Municipal Solid Waste Interstate
Transportation and Local Authority Act of 1999, which you plan to
introduce this week. This legislation would at long last give State
and local governments Federal authority to establish reasonable
limitations on the flow of interstate waste and protect public
investments in waste disposal facilities needed to address in-State
disposal needs.
Both of you know firsthand the problems States face in managing
solid waste, as required by Federal law. During your terms of office as
Governors, you worked to support the passage of effective Federal
legislation that would vest States with sufficient authority to plan
for and control the disposal of municipal solid waste, including
noncontaminated construction and demolition debris. The need for such
legislation arose from various U.S. Supreme Court mlings applying the
commerce clause of the U.S. Constitution to State laws resmcting out-
of-State waste and directing the flow of solid waste shipments.
I am committed to working with all States and building upon the
broad State support which exists to pass legislation in the 106th
Congress that will provide a balanced set of controls for State and
local governments to use in limiting out-of-State waste shipments and
directing innate shipments. The need for congressional action on
interstate waste/flow control legislation is becoming more urgent. Last
year, the Congressional Research Service reported that its most recent
data showed interstate waste shipments increasing to a total of over 25
million tons. The closing of the Fresh Kills landfill in blew York City
is likely to dramatically increase that figure.
Your bill includes provisions which I believe are important for
State and local governments such as the general requirement that local
officials formally approve the receipt of out-of-State municipal solid
waste prior to disposal in landfills and incinerators. lye legislation
toes include a number of important exemptions for current flows of
waste. It also provides authority for stares to establish a statewide
freeze of waste shipments or, in some cases, implement reductions. In
addition, the legislation explicitly authorizes States to implement
laws requinug an assessment of regional and local needs before issuing
facility permits or establishing statewide out-of-State percentage
limitations for new or expanded facilities.
The legislation would also allow sums to impose a S3-per-ton cost
recovery surcharge on out-of-State waste and would provide additional
authority for States to reduce the flow of noncontaminated construction
and demolition debris. Under a separate set of provisions, States would
also be authorized to exercise limited flow control authority necessary
to protect public investments.
We recognize that the Municipal Solid Waste Interstate
Transportation and Local Authority Act of 1999 would not establish an
outright ban on out-of-State waste shipments; instead, it would give
States and localities the tools they need to better manage their in-
State waste disposal needs and protect important natural resources. I
pledge our support for your efforts to ensure that no State is forced
to become a dumping ground for solid waste. I believe your bill will
enjoy wide Support and look forward to working with you to secure its
passage.
Sincerely,
Tom Ridge.
Senator Chafee. Well, thank you very much.
Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, U.S. SENATOR FROM THE
COMMONWEALTH OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman. I ask
that my full statement be made a part of the record so that I
may speak more briefly and summarize my views.
Senator Chafee. It will be.
Senator Specter. It is a pleasure to appear again before
this distinguished committee, and I think it not inappropriate
to note this may be my last appearance before the committee
chaired by you, Senator Chafee, and I regret that aspect of it.
We're going to miss you very much.
Senator Chafee. Aren't you nice. Thank you.
Senator Specter. And especially in this committee.
While it may be a little premature to speculate about
forthcoming elections, or whatever Mayor Giuliani's plans may
be--I'm sorry that Senator Reid has departed, but I'll see him
on the Senate floor and convey my personal regards and my
message when I see him--there's another important
constitutional provision which may or may not govern Mayor
Giuliani's activities. There is a constitutional provision
which prohibits interfering with the movement or travel of any
Member of Congress, which would include a Member of the Senate
en route to Washington. Now, there is no need to pass through
Nevada, but should Rudolph Giuliani pass through Pennsylvania
en route to Washington for any purpose, I think even New
Jersey, he'd be very welcome.
Now on to today's topic.
I would echo what Senator Baucus has said--that we really
ought to get this matter resolved in the 106th Congress. I can
recall we came within a hair's breadth in one Congress, and it
was all wrapped up and I was on the train heading toward New
Jersey with an intermediate stop in Philadelphia when I was
called back to the cloak room and the bill was stopped at the
very, very last second.
The Senate did pass a good compromise in the 104th
Congress, and I applaud the work of the committee starting
early to try to get it through the Senate and through the House
in this Congress to resolve the matter.
I, too, have been at this for more than a decade. Senator
Heinz and I commiserated 1 day about the tremendous stench on
the highway outside Scranton with enormous garbage trucks
situated there, and I think Senator Warner has characterized
the situation as to what problems. He has made the invitation
you Navy Secretaries all stick together. And when the Supreme
Court has categorized waste in the same category with other
commercial projects, I would disagree with that, as I do from
time to time.
What we're doing is dealing with a nuisance here,
practically criminal conduct. Creation of a nuisance is a crime
under common law and under many statutes. So I hope we can deal
with it.
The legislation which I have proposed--and there are great
similarities in all these bills--would put a presumptive ban on
all out-of-State and municipal solid waste unless there is
agreement from local governments. And I understand the point
that Senator Chafee has made, and there perhaps should be
enabling legislation at the State government level so that the
State puts is imprimatur on what the Congress authorizes,
because Congress does have the authority to deal with the
interstate issue constitutionally.
The freeze authority I think should be at the 1993 levels,
which was about the time we really started to get into this
issue.
I speak from the point of view of a State which is the
largest importer of waste. It increased from less than four
million tons in 1993 to more than seven million tons in 1998.
Now, the flow control authority issue is somewhat
complicated, but I believe that the narrow provisions in Senate
bill 663, my bill, provide the balance in saying that the local
authorities can institute flow control on facilities
constructed before 1994 when the Supreme Court decision came
down banning flow control.
I think it was a reasonable expectation prior to that
decision that flow control was appropriate, so that if there
had been reliance on it, a very solid legal principle where
reliance is established, that ought to be recognized, so that
flow control, I think, while perhaps not a principle which we
would generally want to incorporate, for that limited purpose
where there is a showing of reliance, where local authorities
had purchased bonds in reliance on what the law was prior to
the Supreme Court decision.
That, Mr. Chairman and members of the committee, is a very
abbreviated statement of my bill. A longer statement will be
included for the record, and I thank you, Mr. Chairman, for
moving ahead at an early stage in this Congress, and we'll be
glad to work with the committee to try to structure a bill from
the varieties of legislative proposals which are now before
this distinguished committee.
Senator Chafee. Well, thank you very much, Senator Specter.
Senator Robb?
STATEMENT OF HON. CHARLES ROBB, U.S. SENATOR FROM THE
COMMONWEALTH OF VIRGINIA
Senator Robb. Thank you, Mr. Chairman. I thank you for
holding this hearing, and I hope it will soon be followed by a
markup. Congress, as members of this committee and others
testifying today have already indicated needs to act soon to
address the problem that is faced by States, in many cases,
that are being inundated with unwanted out-of-State trash.
Senator Specter and I, along with a number of those on this
committee, including my senior colleague, John Warner, from
whom you heard just a moment ago, have been working for years
to give States and localities the authority that they need to
regulate interstate garbage.
When I first started working on this problem in 1993, we
faced a situation slightly different than the one that
confronts us today. Then there were waste companies that were
threatening to build landfills in communities where they were
absolutely unwanted. Unfortunately, many rural communities were
powerless to stop them, so I introduced legislation to protect
all communities from being dumped on by unwanted out-of-State
garbage.
In an effort to move this debate forward, Senator Warner
and I have crafted legislation using some new and relatively
novel approaches to try to strike the proper balance between
allowing interstate commerce and necessary protections for
States and localities. I hope some of the ideas we included in
our bill, S. 533, can help form the basis of a bill that can
break the logjam that has prevented passage of interstate waste
legislation in the past.
All of us who represent States on the receiving end of all
this interstate garbage understand that the only bill that will
truly protect our States is a bill that can be signed into law.
So, while we may be tempted to introduce draconian legislation
that would score political points back home, we need to stay
focused on developing a solution that scores legislative points
in the Congress.
It is time for us to craft a serious, sensible, workable
piece of legislation that will provide communities with the
authority to say no to waste imports, provide Governors with
the authority to limit waste imports if the cumulative effect
of imports proves harmful, and to assure that importing States
receive compensation for the increased costs incurred from
handling waste imports.
The situation in Virginia I believe is similar to that in
many States. In the past 10 years, Virginia has issued permits
to seven large landfills. Because the cumulative impact of
these disposal facilities can be broad and negative, States
need to have the authority to address these potential long-term
cumulative effects. In an effort to gain some protection this
year, Virginia's General Assembly enacted legislation
attempting to address the problems created by the cumulative
impact of these seven mega-landfills, but this effort serves to
highlight the need for Congress to act.
To overcome a constitutional challenge, the State placed a
limit on the amount of waste that each landfill could accept.
This total cap applies to both Virginia trash and non-Virginia
trash headed for the landfill. If a landfill operator can
accept only a limited number of tons, however, then common
sense suggests that they will accept the most lucrative tons
first. To get access to that landfill then Virginia communities
might have to get into a bidding war with trash coming in from
outside the State.
Because the Virginia law does not and may not, under the
Constitution, discriminate against waste from outside the
state, it is likely that the cost of waste disposal for
Virginians will go up.
Without Congressional action, States that try to regulate
waste imports reasonably are severely limited in their options.
Even though the Virginia legislation appears to conform to the
commerce clause of the U.S. Constitution, it was challenged
last week on constitutional grounds. Whether or not the
Virginia statute stands, Virginia and other States need our
help.
The bill Senator Warner and I developed has four major
provisions to help States. These provisions are intended to
broaden the discussion and examine new approaches for solving
this longstanding problem.
The first provision provides local communities with the
authority to say no to imports of municipal solid waste. S. 533
sets out specific requirements for information that is made
available to communities before they enter into these
agreements and ensures that the agreement is negotiated in the
sunshine so that all the citizens of the jurisdictions, as well
as the neighboring jurisdictions and the State are well aware
of the potential effects and the benefits of the facility.
By requiring host community agreements, S. 533 provides
local governments with the authority needed to make the best
arrangements for their communities. This has been the basis of
legislation I have sponsored previously, which came very close
to being enacted 5 years ago.
The second provision allows Governors to cap receipts of
imported waste at 1998 levels. This provision is similar to the
newly-adopted law in Virginia that would allow receipts of in-
State waste to continue to grow. Frankly, I wish we had passed
the legislation in 1994 and used those levels to limit imports.
Unfortunately, since that time new landfills have been opened
and have begun accepting out-of-State trash.
This presents us, as policy-makers, with a dilemma. If we
limit the amount to 1993 levels, that would mean either that
landfills built after that time would accept no waste, or the
levels the State accepted in 1993 would be apportioned among
the landfills existing today.
Using 1998 as a base year avoids the problem of trying to
determine what volume of waste was imported in earlier years.
Some of the legislation under consideration requires that
we would treat the level of imports received in 1993. Although
this is desirable in many ways, it seems to me it would be
virtually impossible to apportion equitably the waste receipts
among existing landfills if the earlier date were used as a
base.
My concern is that this would open up the States to
expensive, lengthy litigation. S. 533 also provides for a $3-a-
ton import fee. I liken this fee to out-of-State tuition. There
are costs associated with disposal of waste that are borne by
the State that imports the waste. For example, in Virginia
those costs come out of the general fund. The cost of site
inspections, weigh stations, safety checks, and other
enforcement activities are assumed by the importing State. It
is appropriate, it seems to me, that we share these costs with
the exporting entity. A fee of $3 per ton will cover many of
these incremental costs associated with waste importing.
Last, S. 533 contains provision new to this debate. In the
past, we've focused on protecting importing States. The last
provision in S. 533 focuses, instead, on encouraging exporting
States to begin to find in-State solutions for their garbage
disposal needs. The section provides that, beginning in 2001,
any State can refuse all imports from a super-exporting State.
Should an importing State choose to continue to accept waste
from these exporters, the Governor can assess a premium of $25
a ton on imports in 2001, $50 a ton for waste received in 2002,
and $100 a ton for waste received in 2003 and all years
thereafter. These fees would give Governors of both importing
and super-exporting States some room to negotiate as new
capacity is developed. It buys some time for the exporters at a
cost high enough to provide needed incentives to site
additional space within the State of origin.
It is important to remember that fees are applied to always
from a super-exporter, from the first ton to the last.
Hopefully, that will motivate all citizens of exporting States
to look for in-State solutions.
It is clear that some interstate commerce in trash is
necessary and perhaps beneficial. For example, Virginia sends
some of its waste to Tennessee, and most States, as has already
been indicated, accept at least some waste from other States.
But it now appears that New York intends to shut the last
disposal site serving New York City without siting additional
in-State capacity. This would increase the pressures already
felt by neighboring States.
Mr. Chairman, Congress should act before Fresh Kills closes
so that the city will not rely on other States for additional
disposal capacity.
In the past, I had hoped that by simply providing for the
use of host community agreements we would ensure that
communities would take only the waste that they felt was
essential to operate state-of-the-art disposal facilities.
The lack of true authority in this area has aggravated the
problem, and now it is necessary to give more authority at the
State level as well as the local level. It is time for Congress
to step in.
I believe S. 533 provides new ideas that can strike the
right balance, and I hope the Senate can use it as a framework
in concert with other solutions that have been offered by other
Members of this body to find a real solution to a very real
problem.
With that, Mr. Chairman, I thank you and the members of the
committee and I look forward to working with you on crafting
legislation.
Senator Chafee. Thank you very much, Senator Robb.
If you have other appointments, please feel free that you
can leave now if you so choose.
Senator Robb. Thank you.
Senator Chafee. Senator Bayh?
STATEMENT OF HON. EVAN BAYH, U.S. SENATOR FROM THE STATE OF
INDIANA
Senator Bayh. Thank you very much, Mr. Chairman, for your
leadership on this issue. I, too, would request respectfully
that the entirety of my prepared statement be entered into the
record.
Senator Chafee. Yes, it will be.
Senator Bayh. I'd like to express my appreciation also to
the other members of the committee who are here this morning
giving their time to this very important issue, and, in
particular, to my colleague, Senator Voinovich. As Senator
Voinovich indicated, we have been colleagues for many, many
years, first as Governors, now as Senators. We've had a
productive relationship on many issues, including this one, and
so, George, I am grateful for your leadership on this issue, as
well.
Also to our co-sponsors, both Senators from Ohio, Senator
Lugar from Indiana, both Senators from Michigan, as well as
Senator Feingold from Wisconsin have very graciously agreed to
co-sponsor our legislation, so we do have a good bipartisan
support for our approach.
Before beginning, Mr. Chairman, I'd just like to briefly
echo some comments from our colleague, Senator Warner, and say
that the shipment of out-of-State garbage is different. It is
different than most commodities. It is different when residents
in a community find that there are used needles contained in
this material. It's different when they discover there is
potentially infectious medical waste included in this material.
It is different when they find that these large trucks that are
used to transport the garbage too often contain maggots and
other vermin that can leak and get about in the community. It
becomes a very emotional issue, and it decreases property
values. Fear goes up, and people get demobilized. To fully
understand this perhaps it is necessary to visit with some of
the constituent community groups and recipient communities.
I remember vividly visiting with a woman named Terry Moore
near Cloverdale, Indiana. She started a group called ``Dump
Watchers,'' because the semi tractor trailers were coming
through past her home practically 24 hours a day, all too often
leaking. It is just different than most other commodities with
which I am familiar, and that is the fact that underlies the
importance of the legislation that I am honored to be before
you today to testify about.
Mr. Chairman and members of the committee, let me try to
put this in some perspective for you by beginning with just a
couple of questions.
How would you and your neighbors react if the person next
door began dumping tons of trash in your back yard? What if he
said there was nothing you could do to stop it, and that he
planned to increase the amount he was dumping in your back yard
every day? What if his dumping of his trash in your back yard,
in fact, increased the cost of you disposing of your own trash?
Sound far-fetched? Sound outrageous? Well, that's the
position that Indiana and many other States find themselves in
in trying to deal with the rising tide of waste imposed upon us
from other States.
As you well know, States such as ours have been struggling
for years to ensure the safe, responsible management of out-of-
State municipal solid waste. As Governor of our State, I tried
to ensure that our State's disposal capacity would meet
Indiana's long-term solid waste needs. However, our efforts to
institute effective, long-term waste management policies were,
and continue to be, thwarted by obstacles at the Federal level
which allow massive and unpredictable flows of out-of-State
waste into our State disposal facilities.
There are negative environmental as well as economic
impacts. Depriving importing States of the ability to impose
reasonable regulations, this waste creates unacceptable
burdens.
First, Mr. Chairman and members of the committee,
unregulated out-of-State waste interferes with a State's duty
to protect the health and safety of our citizens.
There are significant difficulties in ensuring that out-of-
State waste flows comply with State disposal standards. Last
year, alone, the Indiana Department of Environmental Management
was forced to suspend operation of two transfer stations and
fine nine others for failure to provide proper documentation of
the waste that they handled. The State sent inspectors to 21
other landfills to investigate other violations.
We're vigilant in monitoring our facilities, but the sheer
volume of waste makes it virtually impossible to detect and
catch every violation.
Second, Mr. Chairman--and I like to emphasize this because
of your long and very honorable support of environmental
protection efforts across our country--this situation
undermines our State environmental objectives.
The expansion of landfilling discourages waste minimization
and our State recycling programs. During my years as Governor,
we started the very first recycling grants in the history of
our State and the very first grants to businesses to try and
minimize the waste stream that they were generating. How can we
convince citizens in Indiana to reduce their waste and increase
recycling of by-products if they see our landfills being filled
up with out-of-State waste from other jurisdictions? Where is
the incentive for responsible waste management when our
accomplishments will be overwhelmed by millions of tons of
waste coming from other jurisdictions that perhaps don't share
our concerns about reducing the long-term waste stream because
it is easier and cheaper for them to take the short-run
solution of just dumping their trash in a State like Indiana.
It really does undermine the incentive for long-term,
responsible waste policies in the States that have to receive
this waste.
Third, there are significant economic burdens that come
with out-of-State waste. States make economic decisions not to
dispose of their own waste, as Senator Robb was referring to,
and transfer some of these costs to States that must receive
it.
As landfill space inevitably diminishes, the cost of
disposal in low-cost States like Indiana will rise. Ultimately,
Indiana citizens will be paying a penalty imposed on them by
other States who choose not to provide for their own waste
disposal needs.
I believe there is a term for this. It's called ``taxation
without representation.'' It's simply not right that a policy
of neglect in some jurisdictions can lead to the rise of costs
on the part of citizens in other States.
It is this unfairness that brings us here today. As
previous witnesses have testified, the Supreme Court has ruled
that Congress must act before States have the ability to deal
with this problem.
The need for that authority has never been more acute.
Nationwide, interstate waste shipments increased by 32 percent
last year, alone. Shipments to Indiana have been steadily
rising over the last few years to a current level of 2.8
million tons. The same is happening in other States, such as in
Ohio and Virginia. And these increases will be dwarfed by the
impact, as Senator Robb mentioned, of the planned closing in
2001 of the Fresh Kills landfill in New York, which will send
another 13,000 tons of municipal waste into interstate commerce
each and every day. That's almost five million tons a year.
In Indiana, after decreasing from 1992 to 1994, waste
imports significantly increased in 1995 and doubled in 1996.
Between 1996 and 1998, out-of-State waste received by Indiana
facilities increased by 32 percent, to its highest level in the
last 7 years. In fact, in 1998, 2.8 million tons of out-of-
State waste were disposed of in Indiana, and that's 19 percent
of all the waste disposed of in our State coming from someplace
else.
Our State Department of Environmental Management has
predicted that our State will run out of landfill space by the
year 2011, or perhaps earlier, given the surge of out-of-State
waste imports.
Now, we have laws in place, such as a needs determination
law, that allows the State to deny an operating permit to a new
disposal facility if no local or regional need for the facility
is established. However, without Congressional action, Indiana
may lack the authority to implement our law.
I could go on about the impacts on the State of South
Dakota that's facing a $10 million fine because of its efforts.
Impacts on States such as Virginia and others have been
outlined here today.
Now, the Voinovich-Bayh legislation would end this
uncertainty in Indiana and other States that are trying to
implement effective, long-range waste management strategies.
Senator Voinovich and I believe that we have crafted a
comprehensive, equitable approach to interstate waste disposal.
Our bill, S. 872, is a bipartisan, national approach to
interstate waste management and it is based upon principles
developed and supported by a coalition of 24 Governors, Mr.
Chairman, from around the country, and has been endorsed by the
Governors not only of my State and Senator Voinovich's State,
but the States of Michigan, Pennsylvania--Senator Lautenberg,
I'm happy to say the Governor of your home State, as well, has
endorsed this approach--as well as the Western Governors
Association and the National Association of Counties.
Mr. Chairman, I know we need to get on to other witnesses.
I have many other things that I could say here outlining the
provision of our bill. I won't go through them all because
you've been very gracious with your time today. Let me just
conclude by saying we see this as an issue of basic fairness.
Every State can, we believe must be, primarily responsible
for taking care of its own waste. Senator Lautenberg mentioned
the situation of acid rain. It was a decision of this Congress
to deal with this on a national level, and the utilities in our
State have invested hundreds of millions of dollars to comply.
Our rate-payers are now paying more to try to stop some of this
material from going to States like New Jersey.
We ask that a similar national approach be taken to the
problems of out-of-State waste.
Before I depart, Mr. Chairman, I also have an additional
privilege here today. Our lieutenant governor is with us,
representing our State. Lieutenant Governor Joe Kernan has a
long and distinguished career in public service. He is a
decorated veteran of the Vietnam Conflict, as well as the
former mayor of South Bend, his home town. Elected in 1987, he
served in that position longer than any other mayor in the
city's history--nine years.
In 1996, he became Governor O'Bannon's lieutenant governor
and has been doing an outstanding job leading economic
development, agriculture, tourism, and other important
responsibilities for the State of Indiana.
He is a fine public servant, Mr. Chairman, in addition to
which he is my dear friend, and I'm pleased that he could be
with me here today representing our State.
Thank you for your patience, Mr. Chairman. I appreciate the
ability to come and testify before your committee.
Senator Chafee. Did the lieutenant governor serve under
that noted Governor Bayh?
Senator Bayh. Only as mayor, Mr. Chairman, not as
lieutenant governor.
Senator Chafee. Not as lieutenant governor?
Senator Bayh. Lieutenant Governor O'Bannon is now Governor
O'Bannon, I'm happy to say.
Senator Chafee. I see. All right. Well, thank you for your
comment. Let me just ask you one question, if I might, Senator
Bayh.
The impression is that in many of these instances the local
communities desire to be a waste disposal facility. In other
words, they have created these facilities. Presumably, there
are some jobs involved with it. And so it is not always the
case where the receiving facility objects to it. Am I correct
in that or inaccurate?
Senator Bayh. That is not always the case, Mr. Chairman.
You are right in some instances. But I would have to say that
in a majority of cases, many communities would very much like
the ability to deal with this situation. Often, private
companies have the ability to contract around the desires of a
local communities, and that's another reason for this
legislation. Our approach will give local communities and local
governments the ability to have the first say in how trash is
disposed of in their own back yards.
Senator Chafee. Okay. Fine. Well, thank you.
Senator Lautenberg. Mr. Chairman?
Senator Chafee. Yes.
Senator Lautenberg. Just one quick thing.
I'm happy to be here to witness the reunion of the Retired
Governors Club. I want to say thanks to both of you, Senator
Bayh and Senator Robb. I think that your interests are in
solving a problem, and to try to do it in a compromise fashion
is a very difficult problem.
Senator Bayh, when you talk about your neighbor putting
trash in your back yard, I assume that your back yard would not
be a licensed landfill and collecting revenue for that;
otherwise, I would be certain that a good lawyer like you could
stop that very quickly.
Senator Bayh. We would certainly try, Senator.
Senator Lautenberg. Thank you.
Senator Chafee. All right. Thank you all very much.
Now we'll go to the next panel. Thank you both, gentlemen.
We appreciate your coming.
Next witness will be Lieutenant Governor Kernan of Indiana.
Senator Chafee. Now what we're going to do is we're going
to have a limit of 5 minutes for your presentation. Your entire
statement will go in the record, but if you could keep an eye
on these lights that would be helpful.
Mr. Kernan. I will do so, Mr. Chairman.
Senator Chafee. Thank you.
STATEMENT OF HON. JOSEPH E. KERNAN, LIEUTENANT GOVERNOR, STATE
OF INDIANA
Mr. Kernan. Mr. Chairman and distinguished members of the
committee, I'm pleased to be here to be able to testify on
pending legislation that would vest in States and localities
the Federal authority to control shipments within reason of
out-of-State municipal solid waste.
I would ask, in the interest of brevity, if my comments and
my formal statement, as well, be made a part of the record, Mr.
Chairman.
Senator Chafee. Right. It will be.
Mr. Kernan. In Indiana, as Senator Bayh mentioned, during
calendar year 1998 we had some 2.8 million tons of out-of-State
waste that was disposed of in our State. That is enough to,
coupled with Senator Warner's analogy, to cover two lanes of
Interstate 95 from Washington, DC, to Richmond, Virginia, each
way with 10 feet of garbage.
We, in the State of Indiana, over time have taken
aggressive enforcement measures through State regulations to
try to limit the amount of out-of-State flow from our
landfills. We've negotiated agreements with the States of New
Jersey and New York, as well, and we've had several of our
landfills that accepted out-of-State waste that have closed,
but we still see the amount of waste that comes into our State
increasing, even though we are no longer--in 1998, anyway--
taking imports that come from the east coast.
As a mayor, I can relate to you, Senator, that it is, as
Senator Voinovich and Senator Bayh mentioned, very difficult to
explain the your constituents, when you are implementing waste
reduction measures, recycling measures, to see your landfill
capacity continue to be eaten up because of the import of out-
of-State waste.
We in my community did not see the import of out-of-State
waste as being a good way to approach economic development. It
is not something that we wanted in our community, but the
answer that we had to give was that there was nothing that we
can do about it because it is interstate commerce, and I don't
believe that that is a good answer.
We made several legislative attempts in Indiana going back
almost a decade with higher tipping fees for out-of-State
trash, as well as certification that there was no hazardous or
infectious waste. All of those efforts, with the exception of
one, were struck down by the Supreme Court.
We still have a law in place that requires applicants for
new landfills or expansions to demonstrate that there is a
local or regional need for additional capacity, and this needs
statute has been used to deny permits on several occasions, but
there is no certainty that it will withstand a court challenge
if one comes about.
Several of the highlights of S. 872 that we believe are
very important in Indiana are, one, that it ensures that the
local officials who have the responsibility are held
accountable for in-State disposal capacity by imposing the
presumptive ban after enactment and requiring formal approval
for out-of-State shipments.
Second, that State officials be permitted to freeze out-of-
State shipments at all facilities at the 1993 levels unless
such a limitation conflicts with an existing host agreement or
a permit which authorizes a higher level.
We also believe that the provision that permits those
States that receive more than 650,000 tons of out-of-State MSW
in 1993 may impose a ratchet in order to be able to reduce the
amount of trash that they receive by 35 percent over a 7-year
period.
And, finally, States are given some perspective controls
with laws that would permit State laws, such as we have in
Indiana, that deal with a needs requirement that is similar, as
well, to what has been enacted in other States.
Taken together, we believe that the provisions of S. 872 do
not eliminate all together out-of-State waste shipments, which
would neither be prudent nor necessary. They do, however,
provide a mix of public notice, requirements, and controls that
will ensure public support for States' waste management
programs and prevent unwanted floods of out-of-State trash.
We believe, as has been mentioned by many of the speakers
before, that this is a measured approach. It is reasonable. It
provides provisions that we think are balanced, and we believe
that it is time for the Congress to act.
I appreciate, Mr. Chairman, the opportunity to be here on
behalf of Governor O'Bannon and the State of Indiana, and thank
you for this opportunity.
Senator Chafee. Well, thank you very much, Governor.
Is it my understanding--I think in your entire written
statement you have a suggestion that you've been able--Indiana
has been able to reduce the volumes coming in from New Jersey
and New York, and using aggressive enforcement of your existing
laws, and also through--apparently, you negotiated some
agreements with those two States.
Doesn't that suggest that you are able to take care of the
situation?
Mr. Kernan. No, Senator, I don't think that it does, given
the fact that we have seen the amount of trash that has come in
from out-of-State continue to increase, even with those
agreements with New York and New Jersey.
And, as was mentioned by Senator Bayh, as well as Senator
Robb, we are concerned with what will happen when the Fresh
Kills landfill in Staten Island becomes fully closed in the
year 2001.
So, while we have been able to negotiate agreements with
some States, we have not with others, and have seen the amount
of trash that continues to come in increase over that period of
time, and we believe very strongly that Federal legislation is
required--again, in a balanced way--to give us the tools that
are necessary at the State and local level to be able to make
some of these decisions, ourselves.
Senator Chafee. Senator Lautenberg?
Senator Lautenberg. I have no questions, Mr. Chairman.
Senator Chafee. Senator Voinovich?
Senator Voinovich. Yes. Some of the industry
representatives and public officials have expressed concern
that our bill and similar legislation would be administered
unevenly and disrupt waste shipments because of different
choices made by State and local government. Do you have any
response to that criticism?
Mr. Kernan. Senator, I guess that I would disagree very
strongly. Where we find ourselves today and have for the last
decade is in a position where we have tried to come up with
schemes that will be successful, will not be overturned by the
Supreme Court, in order to limit out-of-State trash.
There is a great deal of uncertainty in local communities,
in States, as well as, I believe, within the waste management
industry because there is no clear guidance, and I think that
that speaks to the fact that we would be much better off, there
would be much better guidance if the Congress would act in the
responsible way that has been proposed, particularly in S. 872.
Senator Voinovich. Thank you.
Senator Chafee. You all set?
Senator Voinovich. Fine.
Senator Chafee. Indiana, itself, is an exporter to some
degree, is it not?
Mr. Kernan. We are, Mr. Chairman. We exported in 1997 about
660,000 tons of solid waste. That is less than 25 percent of
the amount of solid waste that came into the State.
Again, we are looking for a balanced approach here and one
that will not limit, will not prohibit out-of-State shipments,
but that gives States and local communities the ability to be
able to say yes or no within reasonable guidelines, and we are
certainly cognizant of the fact that if we have an additional
2.8 million tons worth of capacity in the State, that we have
the additional room to be able to accommodate that 660,000 tons
that went out-of-State of 1997.
Senator Chafee. I suppose one way of restricting the import
of it is to not have the facilities. In other words, all of
your facilities I presume are state-of-the-art facilities with
the base provided. Am I correct in that?
Mr. Kernan. You are correct, Senator. We have today, if we
look at just our projections on in-State trash, about 24 years
worth of capacity. We believe that it is prudent to have in the
neighborhood of 20 years worth of capacity at least as we look
forward, recognizing the difficulty of siting landfills.
At the same time, if the imports of trash continue at the
same levels, that capacity will be reduced by a third, and we
only have 16 years worth of capacity--again, assuming that we
stay at the same levels that we have been in 1998.
So, while we have state-of-the-art facilities that are
operated, for the most part, by one of the 61 solid waste
districts, which are multi-jurisdictional in Indiana, we
believe that other States should take on the same kind of
responsibility that we have to make sure that there is in-State
capacity that is provided to be able to handle your own garbage
and not those of anyone who wishes to ship that garbage into
your community.
Senator Chafee. Okay. Fine. Well, thank you very much,
Governor, for coming. We appreciate it a great deal.
Mr. Kernan. Thank you, Mr. Chairman.
Senator Chafee. Give our best wishes to your Governor, too.
Mr. Kernan. I will. Thank you.
Senator Chafee. Now, the next panel will consist of--if
those gentlemen and ladies would come forward--Mr. Seif from
Pennsylvania, Mr. Sondermeyer, Floyd Miles from Virginia, Dewey
Stokes from National Association of Counties, Grover Norquist,
and Robert Eisenbud.
Mr. Seif, I understand you have an engagement that you have
to get to, and what we'll do is we'll put you on and then we'll
ask you questions and then you can be excused. So why don't you
proceed.
Now, if you would, when you see the yellow, wind down; when
you see the red, that's the time to stop.
Go ahead.
STATEMENT OF JAMES M. SEIF, SECRETARY OF ENVIRONMENTAL
PROTECTION, DEPARTMENT OF ENVIRONMENTAL PROTECTION,
COMMONWEALTH OF PENNSYLVANIA
Mr. Seif. Thank you, Senator. Good morning. I'm Jim Seif,
secretary of Environmental Protection, Pennsylvania,
representing Governor Tom Ridge and 12 million other
Pennsylvanians who are fed up to here with this interstate
trash issue.
What we seek, quite simply, is Federal legislation, like
the bills before you now that will give us a voice in deciding
how to handle a problem that only over the last few years has
gotten worse.
In every year of Governor Ridge's term--that's 5 years--he
and I have visited Members of Congress, including some of you,
and, in fact, this is my second appearance on this issue before
this committee.
The previous Governor of Pennsylvania, Bob Casey, was
equally energetic and equally frustrated on this issue, and he
was joined by many other Pennsylvanians in that regard.
Why are we again here today? Because the problem that we
recognized over this last decade has only gotten worse.
First, in the last 5 years, trash imports to Pennsylvania
have increased from 6.6 million tons a year to nearly 10
million tons, which is approaching half of all the waste that
goes into Pennsylvania landfills.
Second, we can anticipate more of this same kind of problem
as Fresh Kills closes and other market events take place. I
might add that the closing of Fresh Kills is an environmental
plus for New York and for the Nation and it should go forward.
The fact of the matter is that other machinery should be in
place, as well, for that event.
And, finally, a new problem has emerged, referred to very
eloquently by Senator Warner. Pennsylvania is host to 600,000
trash truck trips per year. Our inspections show, including
some very recent ones, some egregious violations of every
common-sense safety and trash hauling precept at the continuing
rate of about 25 percent.
These facts have increased our resolve to press this issue
and to join others in finding a common-sense solution. We have
become even more convinced in the process that, no matter what
we do, only Federal legislation giving us some additional
permission to do sensible things is the solution.
Senator Chafee, I think you are absolutely right that trash
is interstate commerce. It is a commodity. We use landfill
methane from landfills now to generate electricity. We will
some day mine these landfills, I'm sure, for the resources that
we foolishly threw away. We earn fees from landfills. We have
employees at landfills. And we know that the trash that goes
into landfills goes across State borders each way, each day,
into and out, as Senator Lautenberg has pointed out.
We do not doubt that it is interstate commerce, but, you
know, not all interstate commerce is equal, as Senator Bayh and
Senator Warner have pointed out. It is not the same to have a
software company set up in your community as it is to have a
landfill. It has a different effect, it requires a different
configuration of services and protections. It is, simply,
different, and States have treated it differently in every
other regulatory context.
Pennsylvania has made heavy investments and hard choices
over the last decade since 1988 when Act 101 was passed, and no
matter what we do--the investment of hundreds of millions of
dollars, the Nation's toughest environmental standards for
landfills, the largest system of curbside recycling, and so
on--no matter what we do, the trash keeps coming from
elsewhere.
This is, in effect, a misuse of an asset that we have
gathered about us. The investment of political capital and
ordinary dollars in this infrastructure is being used up by
others. It is as if someone ran a pipe into one of the Great
Lakes and said, ``Let's send it to Mexico.'' It is an asset. I
think the Congress wouldn't stand by and leave that area
unregulated. Maybe they wouldn't close the pipeline, and we
don't ask that the trash pipeline be closed, but the fact is
something would be done and we ask for that here.
We built a great system and, like that Field of Dreams,
they came, and they're helping us use it up at a greater rate
than we had a right to predict.
We ask that no fence be built at the borders. We ask for no
money. We ask for the right to export trash to others under
reasonable constraints. And we ask for the elements of the
bill, whether it is Voinovich-Bayh, who have done so much over
the years as Governors and Senators on this problem, or any
other bills that would give us at least the following tools:
the right of communities to allow--not bar, but allow, as well,
because it is commerce--trash; the imposition of a freeze and a
ratchet at sensible numbers; and the capping of out-of-State
waste that goes into a State. We also think it is a great idea
to help exporting States, and it might be that the committee
will want to do that, as Senator Robb has suggested.
We hope that Pennsylvania will respond to an invitation by
the Congress to act reasonably in this area in a reasonable
way, just as the court has invited the Congress to act
reasonably in this area.
Thank you.
Senator Chafee. Well, thank you very much, Mr. Seif.
I don't have any questions.
Senator Lautenberg?
Senator Lautenberg. Just one, briefly, Mr. Chairman.
Mr. Seif, the ratcheting down--and I'm pleased to hear the
fact that you want a reasonable--expect a reasonable solution
to be found, because otherwise nothing will happen.
But if it ratcheted down and the communities that have
landfills continue to want to receive the revenue and the
material that comes, how would you suggest making the decision
as to which community can continue to receive at the old rate
if you have one limit overall for the State?
Mr. Seif. In one respect, the old rate is locked in by
existing contracts, and the renewability of them might be
countenanced by a State law or encouraged, for that matter,
since a community also has a right to predictability, as does
the industry.
I think Federal legislation would actually increase
predictability here, because right now, as political pressure
builds, States are going to do all manner of things--some of
them capricious, not all of them constitutional--in this area
in an unpredictable way, and if their efforts and zeal were
channeled by a sensible Congressional set of formations and a
predictable ratchet, then I think we could help the industry,
as well.
Senator Lautenberg. Thanks, Mr. Chairman.
Senator Chafee. Senator Voinovich?
Senator Voinovich. I'd just like to comment that I think
the comment you made about States taking all kinds of inventive
ways of preventing it--I know I faced that when I came in as
Governor of Ohio. We tried everything possible to move forward,
and we even had some people suggest that the State Highway
Department should get a little bit more active on our
interstates, and called and said, ``No, we're not going to do
that.''
But the fact is that we do have a crisis now in our States,
and with Fresh Kills closing it is going to get a lot worse,
and you're right--people are going to start using some things
they ought not to be using.
But I would say to you we'll have some testimony today
stating that it interferes with the commerce clause and the
free enterprise system and so forth. What do you say to some of
the witnesses that will be making that argument today?
Mr. Seif. That we would agree that interference with
interstate commerce is a no-no constitutionally and
economically, but that this is not the kind of an interference
that will hurt the industry or hurt the States who are
exporting in the long term. It will cause predictability. It
will let States do what States ought to be doing, which is act
responsibly within their own borders and to step up to the
plate if they haven't already.
It is no solution to say we're not going to import trash
because we don't have the capacity. What that does is the
citizens in your own State are stuck with higher costs and
problems and economic issues. The fact is, you should arrange
for your own capacity, as we are doing, and the Congress can,
without violating the interstate commerce clause, provide for
sensible, reasonable provisions for State law to do that.
Senator Voinovich. You might argue that, in other words,
you have certain rights, but when you exercise those rights, if
they start interfering with my rights and driving up my costs
and taking up my valuable land, then there is some reason to
say that the exercise of that right should have some
limitations on it.
Mr. Seif. It's the misuse of a State's asset, and a State
ought to be able to protect that within limits, and that's
what's going on here.
Senator Voinovich. It's a tough thing. I can tell you I'll
never forget the first news conference I had was on all this
waste coming in in 1991, and everyone said, ``Don't worry about
it. The stuff is good, and no infectious waste.''
Well, they had a traffic situation. A truck turned over,
and the only thing that was in that truck was infectious waste,
and all of the comforting statements that we got from the
landfill operator and others that this was wonderful and
proper, in fact, wasn't. So that's the other problem that you
have--you don't know what you're getting into your respective
States.
Mr. Seif. I did have--time doesn't permit--a lot of dirty
pictures to share with the committee, namely, the results of
our most recent truck stop, and the leaking and the problems
and the contents that shouldn't have been there going both
ways. We would like permission to work--in fact, the idea of
working with a highway department is not a bad idea. I'm going
to take it back--and to protect ourselves in that public safety
aspect, as well.
Senator Chafee. It seems to me one of the points that has
been made here constantly is that trucks coming down with stuff
running out of the trucks, and so forth, that, it seems to me,
is something that can be controlled by the State wherein it is
occurring. It seems to me that if a truck is leaking and not
adhering to environmental regulations, then there's a way of
enforcing that.
I think--was it you--one of the witnesses said that 25
percent of the trucks were--was that your testimony----
Mr. Seif. Yes, sir.
Senator Chafee.--were in violation of local laws. Well,
they ought to be made to obey local laws. So I'm not sure I
find that as convincing an argument on this whole subject
because something can be done about it in your case of
Pennsylvania.
Mr. Seif. I will bolster the argument in this fashion: the
truck has already traveled hundreds of miles by the time it
gets to our border. I don't think we help interstate commerce
at all when we stop it there because it is leaking. It ought to
be stopped at the State of origin. There ought to be some
provisions, perhaps in a bill that would permit the States to
get together in special regulation of that kind of hauling,
like the food backhauling issue is now covered.
It also seems to me that the problem would be more easily
regulated, if regulation is the answer, if there were just a
whole lot fewer trucks. We don't need 600,000 to serve
Pennsylvania. We need about half that.
Senator Chafee. Well, it seems to me that if you come down
on them hard enough they are going to straighten out their act.
It would seem that way to me.
Okay. Fine. Well, thank you very much.
Mr. Seif. Thank you, Senator.
Senator Chafee. I know you have an appointment, so if you
wish to be excused, you can be.
Now Mr. Sondermeyer, assistant commissioner for
environmental regulation in the State of New Jersey.
Did you want to say a few comments?
Senator Lautenberg. Well, just to welcome Mr. Sondermeyer.
New Jersey prides itself on its ability and its interest to
fighting for a cleaner environment, and this is such a serious
problem. Everybody keeps on mentioning Fresh Kills, and we're
going to be in the first wave when that stuff starts coming if
something else isn't done about it.
And we know that Mr. Sondermeyer has had long experience
working on environmental issues. We welcome him here and I look
forward to hearing what New Jersey from Trenton thinks about
how we ought to solve that problem, Mr. Chairman.
Mr. Sondermeyer. Thank you, Senator.
Senator Chafee. All right. Go to it. If you'd follow the
lights, likewise, that would be helpful.
Mr. Sondermeyer. Okay.
STATEMENT OF GARY SONDERMEYER, ASSISTANT COMMISSIONER FOR
ENVIRONMENTAL REGULATION, STATE OF NEW JERSEY
Mr. Sondermeyer. Good morning, Mr. Chairman and
distinguished members, and thank you for the welcome, Senator
Lautenberg. I greatly appreciate the opportunity to update you
on New Jersey's situation.
A great deal has changed since Congress last seriously
debated the need for interstate waste shipment and flow control
legislation. Nationally, as has been noted repeatedly, the
closure of Fresh Kills and the prospect of 13,000 tons per day,
or almost five million tons per year of additional waste
leaving the city has generated renewed interest and concern.
To put this in perspective, New Jersey exports about two
million tons per year.
From recent data, it shows that we are no longer
exclusively an exporter of solid waste. Today we are receiving
waste for disposal from New York, Connecticut, and
Massachusetts. With the phased closure of Fresh Kills, exports
to New Jersey for disposal and transport through our State to
disposal locations to our south and west will increase
significantly, as has been noted.
Also, since the Carbone and more recent Atlantic Coast
decisions, New Jersey has worked with our counties to
reconstruct our State's solid waste system. As a result, 15 of
our 21 counties are now operating in a free market environment.
However, the State and the counties are still faced with about
$1.2 billion in outstanding debt which was a result of New
Jersey's 20-year program to achieve self-sufficiency and to
handle our own waste in an environmentally sound manner.
Under our State plan, 31 state-of-the-art waste management
facilities were constructed. New Jersey's waste flow control
rules had been specifically upheld in Federal court in 1988.
The recent Carbone and Atlantic Coast decisions changed our
course in mid-stream.
As we move into this Statewide free market, tipping fees
are substantially lower, but inadequate funds and in some cases
no funds are being collected out of disposal facilities to pay
down the $1.2 billion debt.
To date, two counties have entered technical default, and
the State has provided nearly $41 million to address stranded
investments in five counties.
The bond rating situation is also of significant concern.
Rating agencies have lowered the rates on almost all solid
waste debt to below investment grade. Moody's Investors has
downgraded the individual revenue bond rating for five counties
to varying levels of junk bond status. Standard & Poor's has
either downgraded or announced the risk of being downgraded for
seven additional counties.
During the past year-and-a-half, the State has been very
aggressive in moving to a Statewide free market system. We have
pledged over $200 million in debt relief through a combination
of a public question to approved by New Jersey voters last year
and general fund appropriations.
We have adopted emergency rules to streamline our
regulatory process. Our State treasurer has been conducting
operational audits of 13 of our 21 county systems to ensure
that tipping fees are as competitive as possible.
New Jersey has also entered a number of interstate
agreements with our sister State of Pennsylvania, where we
export most of our waste, which paved the way for a coordinated
approach to future solid waste management.
In addition, we are working with Governors' offices from
seven States across our region--Ohio, Michigan, Indiana,
Pennsylvania, Virginia, and New York--in a good faith effort to
find common ground on the difficult issues of waste disposal.
Despite these efforts, many of our counties still require
long-term financial assistance. To add even more uncertainty,
nearly 30 challenges remain lined up in the courts to test the
validity of county and State actions taken since deregulation
began.
New Jersey continues to believe in the philosophy that
States should be responsible for managing their own waste. We
support legislation to provide reasonable limits on out-of-
State waste if it is combined with limited flow control
authority.
We recognize that our old system of flow control is gone
and, therefore, we seek only limited flow control authority as
a transition tool to be used by a small number of New Jersey's
21 counties to pay off outstanding debt.
Toward this end, New Jersey supports S. 872, sponsored by
Senators Voinovich and Bayh. S. 872 would not establish an
outright ban on out-of-State waste shipments, but would give
States and localities the goals they need to better manage
their in-State waste disposal needs.
Further, S. 872 contains limited flow control authority
necessary for counties in the State of New Jersey to rationally
move to a free market, to pay off outstanding debt and to meet
the interstate waste limitations authorized in the bill.
We also support S. 663 sponsored by Senator Specter for
these reasons.
Conversely, New Jersey cannot at this time support S. 533.
It is critical for New Jersey that any Federal interstate waste
shipment legislation be balanced with at least a limited flow
control provision.
Federal legislation that both limits interstate waste
shipments and gives limited flow control authority, provides
the tools and flexibility needed by the States and localities
to rationally manage our solid waste.
I sincerely thank you for your kind attention. I'd be happy
to entertain any questions you may have.
Senator Chafee. Well, thank you very much, Mr. Sondermeyer.
Now, Mr. Miles, chairman, Charles City County Doctor of
Supervisors, Providence Forge, in Virginia.
Mr. Miles?
STATEMENT OF FLOYD H. MILES, SR., CHAIRMAN, CHARLES CITY COUNTY
BOARD OF SUPERVISORS, PROVIDENCE FORGE, VIRGINIA
Mr. Miles. Mr. Chairman and members of the committee, my
name is Floyd Miles, Sr., and I'm chairman of the Board of
Supervisors in Charles City County, Virginia.
Thank you for the opportunity to present the experience and
the point of view of Charles City County concerning out-of-
State waste.
The free market forces that brought a reasonable landfill
to Charles City County have been both an environmental and
financial success story, and we are very concerned with any
legislation that would arbitrarily impact interstate commerce
without any justification other than political expediency.
Way of explanation, Charles City County is one of the
originals. They established in Virginia in 1634, and when they
took the last census in 1990 we had approximately 400 more
people in Charles City than when the first census was taken in
1790.
We're located between Richmond and Williamsburg----
Senator Chafee. That's what you call a slow rate of growth.
Mr. Sondermeyer. Yes, sir.
[Laughter.]
Mr. Sondermeyer. Controlled. That's right.
We're located between Richmond and Williamsburg on the
James River, with almost no industry, no cities or towns, no
stop lights. We are essentially one of the poorest counties in
eastern Virginia.
In 1987, the State of Virginia mandated that we close our
local landfill, which was typically of most landfills at that
time, which was just an unlined hole in the ground without any
monitoring wells.
Although the State mandated that we close the facility and
replace it with something else, no funds were made available to
us from the State. At that time, our tax rate was $1.29 per
hundred, which was one of the highest rates of any tax rate in
any rural county in this State. Even with this high tax rate
our school system was physically deteriorating and we had no
hopes of other significant improvements to cheaply recognize
alternatives for handling that solid waste at that time would
have require a real estate tax increase of at least 50 percent.
None of these alternatives were acceptable to us, and we
proposed a public/private partnership where a private company
would operate the reasonable landfill owned by the county,
would do so under extremely, extreme, strict environmental
safeguards and would still pay significant revenues to the
county.
After many public hearings, the citizens of Charles City
supported this approach and our landfill operator was selected.
That led to the construction of Charles City County's regional
landfill that now serves not only eastern Virginia but cities
along the east coast.
We recognized from the beginning that if a landfill design
was going to be as stringent as we required to assure the
safety of our citizens, there would be a substantial amount of
trash brought to us from landfills outside of the county. We
did not discriminate at that time between trash from the city
of Richmond, our capital in northern Virginia, or to the trash
of Newark or Network. The cost of building an acre of landfill
to our specification for twice the standards required by the
State of Virginia and their environmental protection agency is
approximately $300,000. We were willing to trade off the
handling of other plaintiff's trash in return for having such a
safe facility.
In and to providing Charles City with an environmentally
safe landfill, our agreement has provided to offset it with a
dramatic source of revenue. Since the landfill began operating
in 1990, we've collected approximately $40 million in payments.
These funds have allowed the county to reduce its tax burden to
its citizens to $0.72 per hundred, to replace completely its
failing school facilities, to expand its recreational programs
for its citizens, and to provide new office facilities for both
county government and the county school board.
Because the regional landfill was such an unqualified
success in Charles City, a number of other Virginia counties
have allowed regional landfills to be placed in them. These
counties are typically rural with low tax base. As a result,
Virginia now has seven regional landfills.
We recognize that public pressure and concern that revolves
around the handling of trash, but this committee should
recognize that the drive to limit out-of-State trash has
nothing to do with the environment and everything has to do
with politics, especially in our State.
A review of the actions of our Governor and our Legislature
during the most recent session of the General Assembly that
ended in February proved this point. While the Governor and the
Legislature bent over backwards to discriminate against out-of-
State waste, there was also a bill which would have required
the closure of unlined landfills that have been demonstrated to
be leaking and posing a threat to the environment of Virginia.
This bill received no support from the Governor and was
defeated by the Legislature.
So Virginia is left with officially sanctioned leaking
landfills, while we are concerned today with the quality of the
New York trash versus Richmond trash and what State is No. 1,
two, or three in terms of hauling out-of-State waste.
I should also point out that there's a certain amount of
hypocrisy in Virginia's position, since all of our hazardous
waste is disposed of outside of Virginia, primarily in Ohio and
in New York, and our nuclear waste is disposed of out-of-State.
Interstate commerce works to the extent which it is
restricted, will have real impacts on real people. The
consequences of such a restriction will be increased fees for
other generators of solid waste, and the same time, penalize
counties who have attempted to meet the requirements of the
State and EPA with environmentally safe landfill facilities.
Thank you, Mr. Chairman.
Senator Chafee. Thank you very much, Mr. Miles. We
appreciate that.
Now we will hear from Mr. Dewey Stokes, president, Board of
directors of Commissioners, Franklin County, Ohio, on behalf of
the National Association of Counties.
Mr. Stokes?
STATEMENT OF DEWEY R. STOKES, PRESIDENT, BOARD OF
COMMISSIONERS, FRANKLIN COUNTY, OHIO, ON BEHALF OF THE NATIONAL
ASSOCIATION OF GOVERNORS
Mr. Stokes. Thank you, Mr. Chairman. I am Dewey Stokes,
president of the Board of Commissioners of Franklin County,
Ohio, and I'm testifying today on behalf of the National
Association of Counties and represent over 3,000 counties in
the United States, and we are also speaking on behalf of the
Local Government Flow Control Coalition.
We commend you, Mr. Chairman Chafee for holding this
hearing and for allowing the longstanding issue of interstate
waste and flow control to again be brought before the
committee.
I also want to compliment Senator Voinovich for his
dedication to solving this problem and his persistence in
sponsoring Senate 872 legislation that is vitally important to
my county and many other communities, and similar bill,
Seignette bill 663 by Senator Specter, is also worthy of our
praise.
A great deal of investment in pub infrastructure has taken
place in the local governments that used flow control as a
method to finance facilities dispose of solid waste. Since
1980, over 20 billion in State and local bond issues were sold
for solid waste facilities.
The need for legislation to grandfather these existing
facilities continues just as strongly today as it did when the
U.S. Supreme Court in 1994 decided the Carbone case.
We have not defaulted on our bonds. Most communities have
made large financial sacrifices in order to meet these bond
payments. But surely no one would seriously suggest that flow
controlled reliant communities must endure an Orange County,
California, type experience to justify Congressional action.
To avoid default and bond downgrades, communities have
raised taxes, imposed new trash fees, cut back on waste
management and recycling services and draw down on reserve
cash.
Nationally, the total outstanding debt that has either been
downgraded or put on a credit watch for potential downgrading
by the rating agency, since the Carbone case is over $2.3
billion by local public agencies.
What does all this mean? It means that when counties go to
the bond market to borrow funds for other public projects like
jails, bridges, and schools, the interest rate is significantly
higher. This additional cost is borne by local taxpayers, small
businesses, as well as all our other residents.
In Franklin County, we have over $160 million in stranded
investments in a wasted energy facility that was closed on the
heels of the Carbone decision. After that Carbone decision, we
also laid off $250 employees and imposed a $7 per ton fee on a
waste tax on all municipal solid waste generated in Franklin
County and disposed of in Ohio Landfills.
We had to take that action to generate sufficient revenue
to meet our debt obligations due to the Carbone decision and
Congress's failure to help us.
My community will do everything possible to prevent a bond
default and to keep our bond rating. I would expect other
communities everywhere to do the same thing.
The flow control provision of S. 782 and 663 are exactly
the same, and I repeat, they are exactly the same as the
stranded cost protection provisions of the electronic, utility,
restructuring leg that is supported by many of the Senate's
most staunch advocates of a free market economy.
Under that legislation, no electric utility will have to
suffer a bond downgrade or, worse yet, a bond default to be
eligible for financial protection.
Local governments are equally deserving of protection on
the same basis, without being forced to suffer more downgrades,
more local tax increases, and more litigation.
We ask only for equitable treatment. Simply put, the
Carbone decision in 1994 changed the rules of the game. S. 872
and 663 provide narrow grandfather union for pre-Carbone use of
a flow control to assist affected communities and making that
transition.
Under these bills, flow control authority can be
reinstituted only for those communities that initially used
flow control before May 1994. Once pre-Carbone debt is paid
off, the community's authority under these bills terminates.
We hope that the committee will join with the Senators who
have sponsored the flow control bills and temporarily give us
back what the Supreme Court took away.
We urge you to support Senate S. 872 and similar bills.
I also want to commend Senator Voinovich for addressing the
issue of interstate waste in his bill.
Like my counterparts in many other States, we want to make
sure that your communities have the control over waste imports
from others states, whether we welcome it or whether they
reject it.
In conclusion, I hope we can finally resolve these
difficult issues, and we certainly stand ready to help and
assist wherever we can.
Thank you, Mr. Chairman, for the opportunity to offer this
testimony today.
Senator Chafee. Well, thank you very much, Mr. Stokes.
Now we have Mr. Grover Norquist, president, Americans for
Tax Reform.
Mr. Norquist, we welcome you once again.
STATEMENT OF GROVER G. NORQUIST, PRESIDENT, AMERICANS FOR TAX
REFORM
Mr. Norquist. Thank you. Glad to be here.
I represent Americans for tax reform. We're a citizen
organization and we receive no money from Federal, State, or
local taxpayers or institutions.
I have just been over in the House the last couple of days
where they have been taking turns going after the First
Amendment and the Second Amendment, and today we're having a
discussion about whether the commerce clause is a good idea
over here on the Senate side.
I think commerce clause is a good idea. I think interstate
commerce is a wonderful idea.
I think that, as a country, we've moved away from George
Wallace's fraudulent understanding of State's rights and the
idea that States have the ability to go after the people inside
their states. Peoples rights do not change when they cross
State borders. We are one country, and interstate commerce is
one of the most important things that keeps it that way.
The economist Bruce Bartlett said that if somebody really
wished the United States ill, he should convince the government
to keep statistics on the flows of balance of payments on goods
and services between States. Then, every State would fight
about whether they were buying too many cars from West Virginia
or California or whether computer software is being built in
one State rather than another.
Are we going to get into discussions about liver
transplants--somebody was saying all trash has to be buried in
the State where it was made. Do all liver transplants have to
be within States. Shall we allow a State to decide that heart
and liver transplants shouldn't cross State borders, or the
State should be able to grab those?
I think these are very dangerous, but there are two bad
ideas being discussed today. The first is limiting interstate
commerce. The second is flow control.
I think flow control is extremely dangerous as a concept.
All the taxpayer groups, all the free market groups are very
concerned that what flow control does is subsidize and bail out
white elephants. Some politicians made some very bad decisions
in getting their counties and local governments into businesses
they had no business getting involved in. This is the United
States of America. This is not Poland running steel mills 30
years ago. We ought not to be in the business of having
government-run businesses that compete with the private sector,
and then, when they do--and they do it poorly, and then they
invest poorly, they want to turn around and impose a tax,
because that's what flow control is, a tax on the people who
live near them to bail out these white elephants that they put
in.
If they were poorly built, if there was poor judgment of
putting them in, the politicians who put them in should be
fired and removed. They should pay the consequences if there
was corruption involved, and that's why the facilities aren't
worth what people said they were going to be worth when they
built them. If there has been corruption, the guilty ones
should go to jail, not just out of office. But again, Mayor
Brett Schundler has pointed out that flow control legislation:
``would institutionalize one of the worst excesses of the 'big
government knows best' mentality. We're forced to spend money
on waste disposal that we would rather use for schools or
police.'' The coalition against flow control, which includes
the National Federation of Independent Business, the National
Restaurant Association, the National Association of
Manufacturers, the Association of Builders and Contractors have
said, ``Small business owners strongly oppose flow control
because it would allow local governments to dictate where small
business must send their waste and allow these governments to
set monopoly prices.
The National Association of Manufacturers says ``flow
control embodies the worst of all government monopolies--a
hidden tax in the form of higher prices, reduced efficiency,
more intrusive government at a stifle-free market. Karen
Kerrigan of the Small Business Survival Committee has
explained, ``Flow control is nothing short of centralized State
planning that harms individuals, families, and businesses. It
raises taxes, increases the size of government, and hurts
American consumers.
Americans for Tax Reform considers a vote for flow control
to be a vote for tax increases. Flow control is a stealth tax.
It is a hidden burden imposed on families an businesses by
artificially inflating the price of waste collection. The
American people already pay too much in taxes. We do not need
yet another tax increase. Those politicians who built the white
elephants should pay at the poles for having done so. They
should not inflict their mistakes on the taxpayers.
Senator Chafee. I'll put you down as undecided then, shall
we?
[Laughter.]
Senator Chafee. All right. Mr. Eisenbud, director,
legislative affairs, Waste Management, Inc.
STATEMENT OF ROBERT EISENBUD, DIRECTOR, LEGISLATIVE AFFAIRS,
WASTE MANAGEMENT, INC.
Mr. Eisenbud. Thank you, Mr. Chairman.
There's not a lot for me to say that has not already been
said by one witness or another. Let me just briefly run through
some of the points I make in the written statement and then try
to respond to a few points that have come up.
You've heard about the development of regional landfills in
response to the closure of small landfills as a result of
subtitle D requirements and financial burdens and so forth. Let
me just indicate that Waste Management operates five of the
seven regional landfills in Virginia, and our experience there
is illustrative of what I think is typical.
Senator Chafee. Do you operate the one in Miles' city, in
the Charles City----
Mr. Eisenbud. We do, sir, Charles City County. And I have--
--
Senator Chafee. Mr. Miles, does he operate the one in
your----
Mr. Miles. Yes, sir.
Senator Chafee. Thank you. Go ahead, Mr. Eisenbud.
Mr. Eisenbud. Our experience in Virginia is typical of what
occurs throughout the country, we think. All of those five
regional landfills are built in accordance with subtitle D or
better, in terms of the RCRA requirements. By contrast, there
are 63 local landfills still operating in Virginia. Of those,
30 have no liners at all. Operations at 15 of the local
landfills have contaminated the groundwater. No action is
scheduled at all to do anything about the problem or to close
the leaking landfills. Let me repeat: no action is scheduled at
all for any of the leaking landfills.
Meanwhile, the two others that are operated are providing
safe, economic, environmentally protective waste disposal,
plus, as Mr. Miles indicated, for the cumulative impact at our
five landfills, $18 million of benefit fees and services in
1998, alone. These revenues and services, which I detail to
some extent in the statement, have made it possible for host
communities to improve and maintain infrastructure and services
that would simply not otherwise be feasible.
Now, in my statement I suggest that there are three
criteria that could usefully be applied to evaluate proposed
legislation. They are the extent to which the legislation
provides protection, opportunity, and predictability. Those
three catch-all criteria capture a number of other questions
and concerns that we raise in the statement.
I hope the need for protection is obvious. We're talking
about good faith reliance on existing law and a long line of
Supreme Court cases that have formed the basis for contracts
and investments of very substantial proportions.
Similarly, legally binding contracts under State law should
be protected, since they are entered into in good faith.
The opportunity criterion refers to simply an ability to
participate in an interstate market that has thus far served
very, very well.
And, finally, predictability--and this is particularly
relevant, I hope, Senator Voinovich, to a concern that you
raised earlier.
We need to know what the rules are, and, frankly, the
proposed legislation provides no predictability. The array of
discretionary authority that is vested in Governors makes it
impossible to predict which Governor will impose which
authority when, and whether that authority that is imposed will
last into the next Administration, or might even be changed by
the current Administration. Frankly, it makes business planning
impossible.
As you might gather, for a number of reasons, we find that
all of the bills before the committee at the present time fail
to meet the criteria that we suggest.
Finally, on Fresh Kills, let me just mention that there are
two facts that have escaped attention. One is that nine States
and the District of Columbia export more than New York when
measured as a percentage of waste generated. Four of them are
represented on this committee.
Second, New York has indicated that it intends to ship
waste only to landfills that have agreed to receive out-of-
State waste. So, as I say in the statement, ``What, as a matter
of policy, is wrong with that?''
Finally, as I indicate in the statement, we have strongly
opposed flow control in its proposed form because we think it
is simply too late to put Humpty Dumpty back together again 5
years after the decision. Too much has transpired by way of
contracts, investments, people hired, arrangements made. It is
not possible to take a snapshot of 5 years ago and say, ``Let's
reimpose that on the current world.''
Thank you, Mr. Chairman.
Senator Warner [assuming the chair]. We thank you very
much. Chairman Chafee is checking into his responsibility
before the Finance Committee. They have the nominee for the
Secretary of Treasury, of course.
My colleague, would you like to lead off with the
questions?
Senator Lautenberg. That's very generous, and I do
appreciate it.
Senator Warner. You deferred to me this morning very
graciously, and I thank you for that.
Senator Lautenberg. Well, we belong to a similar club here,
white hair and all that.
[Laughter.]
Senator Lautenberg. Of the wizened heads.
Mr. Chairman, it is interesting to hear the contrasting
opinions, and I have a couple of questions that I assume kind
of nag everybody, and that is: how do we square away the costs
to those communities who are careful with their recycling and
want to ship out their trash to the most cost-effective place?
That might be out of State, might be in State--dump sites that
are licensed--they all are.
Mr. Eisenbud, I assume that any dump site that is now
created will have to meet the environmental standard that a
license requires.
Mr. Eisenbud. I would say so. Yes, sir.
Senator Lautenberg. All right. So that we're not creating
new problems in the State of New Jersey. We have the largest
number of Superfund sites in the country. New York ranks very
closely behind us. And we learned a painful lesson--that if you
want to do it, you've got to do it right because you pay the
price. It is just deferred as to when you pay it.
And so I would ask, Mr. Sondermeyer, the New Jersey
Business and Industry Association strongly opposes flow
control, as do the Americans for Tax Reform--I think we heard
that. How do we reconcile their opposition as taxpayers to the
flow control that you feel is necessary to restore the
financial health of some of our New Jersey counties? What's
fair here?
Mr. Sondermeyer. You're right, Senator. It is a very--I
think you used the term ``thicket'' in your earlier comments.
It is a very complex situation to try to deal with, and the
problem is that we went ahead in good faith on the rules of the
game going back 20 years ago and built a significant solid
waste infrastructure of state-of-the-art facilities due, as you
know, to the legacy of problems that we had both in Superfund
sites, and essentially we had a town dump in 567 towns, and we
built 17 state-of-the-art disposal facilities, 13 of which are
public facilities, and that's part of the problem that we have
to try to deal with, which is somewhat different than other
parts of the country.
And what we need in terms of the rates situation that
you're addressing, I think, is a rational transition to a free
market.
We agree that, notwithstanding the good faith of the system
that was built, we're not going to go back to directing every
single town to send solid waste to specific facilities, but we
have to have a transition, and we're seeing that transition
take place now. We've seen rates in New Jersey come down, on
average, $28 per ton, but what goes with that is some services
have been cut back and some services are jeopardized.
In particular, you had noted recycling and the job that New
Jersey has done in recycling. We're seeing some slippage in
recycling in the State because of this reduction in the rates,
because what we try to do is build a holistic system that dealt
not just with disposal but also with source reduction,
household hazardous waste and so forth.
So it is a difficult issue to reconcile, and right now
we're very concerned because we have had a couple of counties
enter technical default and we have already had to provide
bail-out funds to the tune of $41 million just so far, and
we've utilized, I think, every tool that we could under
existing law to try to guide our counties. The counties have
stepped up to try to deal with this situation, but we still
have substantial default possibilities that we're facing.
Senator Lautenberg. So we would have to, rather than simply
say, ``Okay, we'll control the volume,'' we would have to build
in some kind of incentives for continuing or expanding
recycling efforts.
So to show good faith interests by the communities, to
control the volume of trash that they create, none of us ought
to be free to just dump out whatever we feel like. You know,
there are communities around the country where you pay per bag,
and a bag contains a certain weight of trash, so that people
have an interest in curbing the volume that they create.
But what is the difference, if you can tell me, between
tipping fees that might be available for those communities that
ship their trash to wherever they ship it to, as opposed to
being forced to send their material to an incinerator or
another place designated as part of the flow control system?
Mr. Sondermeyer. I think at this point we've seen some
transition with the rates, and they're coming quite closer.
There was a wider disparity that had been reported in earlier
years between the tipping fees in our State and in other
States. I think at this point the regional differences have
diminished. Actual disposal costs in the industry have gone up,
I believe, $10 per ton at many of the facilities operated even
out-of-State, and our rates have come down. So that
differential is narrowing.
Senator Lautenberg. What had been the rates for those
places that built the facilities? Listen, we've got to find a
way to give them some relief.
Mr. Sondermeyer. Yes.
Senator Lautenberg. They did what they did in the context
of the then law and the context of the then policies, so they
are out there with these things. But what--just so that we
know, what might the costs be for a community that sends its
facility--its material to a facility that has been created in
our State?
Mr. Sondermeyer. In our system right now it's about $60 per
ton.
Senator Lautenberg. As contrasted to $10 a ton?
Mr. Sondermeyer. No, no. As contrasted--in Pennsylvania,
landfills I think now are in the $50 to $55 per ton rate, so
the differential is very close.
Senator Lautenberg. I'd like permission, Mr. Chairman, to
get----
Senator Warner. Senator, take such time as you wish. It's
just the two of us here, so if you want to continue for a bit
that's fine.
Senator Lautenberg. Well, we've got our good friend, the
ex-Governor----
Senator Warner. I'm sure our good friend will----
Senator Lautenberg. Ex-Governors don't really want to
wrestle with this problem.
Senator Warner. I find this one has adapted himself quite
well to this institution.
Senator Lautenberg. I think so. Well, I said before, Mr.
Chairman, that I felt like I was an associate member of the
Retired Governors Club because we had four Governors between
two there and two here, so now we're finally regaining a
majority.
But I would ask if Mr. Sondermeyer could provide the
committee with a specific list of communities that handle their
trash both ways in the State of New Jersey to give us an
example about what the differences might be so that we can help
make sensible decisions.
[Information to be supplied follows:]
The following chart compares the tipping fees charged at the
primary transfer or disposal facility in each of New Jersey's 21
counties just prior to deregulation (November 1, 1997) and the current
rate in place as of June 1, 1999. The chart reflects, on average, a $28
per ton decrease which is a direct function of deregulation and the
need to set rates that are competitive in the region. At first glance
this appears to represent positive rate reduction. After further
analysis it must be recognized that in the wake of deregulation,
counties and authorities have been charging market rates in order to
attract any appreciable volume of waste, whether the rate is reflective
of covering debt obligations or not. In many cases, sufficient funds
are not being collected. By the end of 1998, two counties had already
entered technical default and the State provided nearly $41 million to
address stranded investments in five counties.
Should Congress enact interstate waste shipment and flow control
legislation, we do not anticipate rates to climb back to 1997 levels
for several reasons:
First, it is now clear that flow control authority is not needed in
every county. We anticipate that only those counties with significant
stranded investment would need to resort to exercise flow control
authority in the future.
Second, for counties with significant stranded investment, the
State has already set aside $210 million to help subsidize rates, where
appropriate, following the entering of grant and loan agreements to
help keep tipping fees in the competitive range.
Third, any county which requests State financial assistance must
agree to undergo a detailed operational audit of their solid waste
operations by the Department of Treasury and related State agencies.
Through this review, all methods of streamlining operations and
reducing costs have and will be identified, with specific conditions
built into the grant or loan agreement. To date, 13 of our 21 counties
have undergone comprehensive operational audits. This will help keep
rates in the competitive range regionally until stranded investments
can be retired.
New Jersey Solid Waste Disposal Rate Summary
------------------------------------------------------------------------
11/10/97 6/1/99
Pre- Post-
County Primary Facility Atlantic Atlantic
Coast Coast
Rate Rate
------------------------------------------------------------------------
Atlantic.................... ACUA System......... $120 $48
Bergen...................... BCUA Trans. Sta..... $102 $60
Burlington.................. County Landfill..... $49 $51
Camden...................... Camden Incinerator.. $93 $50
Cape May.................... CMCMUA Landfill..... $93 $76
Cumber...................... County Landfill..... $60 $60
Essex....................... Essex Incinerator... $73 $50
Gloucester.................. Glouco. Incinerator. $101 $60
Hudson...................... SWTR Trans. Sta..... $63 $60
Hunterdon................... County Trans. Sta... $93 $57
Mercer...................... MCIA Trans. Sta..... $117 $98
Middlesex................... MCUA Landfill....... $55 $51
Monmouth.................... County Landfill..... $75 $55
Morris...................... MCMUA Trans. Sta.... $88 $83
Ocean....................... OCLF Landfill....... $63 $55
Passaic..................... No Facility......... $105 No Rate
Salem....................... County Landfill..... $64 $64
Somerset.................... BRI Transfer Sta.... $133 $73
Sussex...................... County Lanfill...... $109 $58
Union....................... UCUA Incinerator.... $83 $50
Warren...................... PCFAWC Inciner...... $100 $48
Averages................ NA.................. $88 $60
------------------------------------------------------------------------
Senator Lautenberg. Mr. Eisenbud, do you know what the
difference might be for communities that use your managed
facilities and as compared to other local landfill sites or
what have you?
Mr. Eisenbud. I don't have that information available. I
can try to get it for you, sir.
Senator Lautenberg. I'd appreciate it.
[Information to be supplied follows:]
New Jersey and Pennsylvania Tipping Fees\1\
------------------------------------------------------------------------
Tipping Fee ($/ton)
Date --------------------------
Pennsylvania New Jersey
------------------------------------------------------------------------
March 1992................................... 58.19 100.77
June 1992.................................... 58.72 98.74
September 1992............................... 58.15 96.91
December 1992................................ 58.06 97.18
March 1993................................... 55.62 96.27
June 1993.................................... 54.68 99.18
September 1993............................... 54.37 100.52
December 1993................................ 55.66 97.72
March 1994................................... 56.29 91.80
June 1994.................................... 55.67 94.33
September 1994............................... 55.31 94.73
December 1994................................ 55.60 92.99
March 1995................................... 53.58 87.33
June 1995.................................... 53.51 88.45
September 1995............................... 53.22 85.90
December 1995................................ 54.59 87.99
March 1996................................... 54.98 86.04
June 1996.................................... 56.77 86.73
September 1996............................... 52.91 87.00
December 1996................................ 52.28 87.02
March 1997................................... 53.46 88.41
June 1997.................................... 51.69 87.97
September 1997............................... 51.77 86.82
December 1997................................ 51.81 75.89
March 1998................................... 51.34 74.56
June 1998.................................... 50.60 72.53
September 1998............................... 51.27 68.73
December 1998................................ 51.35 66.37
March 1999................................... 51.42 66.30
------------------------------------------------------------------------
\1\ Chartwell Information Publishers
Senator Lautenberg. Mr. Chairman, we have an interesting
situation here where Mr. Stokes, an old friend of mine, used to
be the national president of the Fraternal Order of Police, and
so I would guess that anybody that violates the rules that have
been established are in for deep trouble.
Mr. Stokes. We'll monitor that, what you said earlier about
the trucks, Senator.
Senator Lautenberg. Yes. Well, you know, I'm charmed by
different views on this, because, in addition to shipping trash
to Indiana and receiving some part of their public electric
facilities or power generating facilities, we shipped them some
fantastic football players that played at Notre Dame and the
University of Indiana, and we want some compensation for those
things.
Mr. Stokes. We thank you, Senator
[Laughter.]
Senator Lautenberg. Thank you, Mr. Chairman.
Senator Warner. Our colleague from Ohio.
Senator Voinovich. Mr. Stokes, could you go into a little
more detail about the impact that this lack of flow control has
had in your community in terms of raising taxes and citizens
giving up services and how that has impacted the taxpayers
around the country as a result of the fact that they pulled the
plug on--and your ability to finance those facilities.
Mr. Stokes. I think since the Carbone decision, right
after, a couple weeks afterwards we had to close, we closed our
plant. We laid off approximately 250 employees and
constituents. We still have, as a result of the Carbone
decision, $160 million debt to pay off the plan. It makes it
very difficult to compete.
We charge $27 per ton. It is a little lower than our State
average in my county for that. But, in addition to that, we've
had to impose a $7 a ton surcharge tax on our taxpayers to make
those--meet the financial costs of the operation after the
closure of the plant.
So it does have an impact, and this is about taxes and
taxes and taxes on our people. It's a tax issue. But, at the
same time, if we don't meet that obligation of those bonds and
we default on those bonds, our taxpayers are going to pay more
when we go out to bond the schools, the bridges, and other
items that we have to go out to bond in the cities and the
counties that are affected by our regional plan.
So it is about facing economics and changing the game,
changing the rules of the game in the middle of the game.
We had a flow control in our State that met the obligations
and still does today. What we're asking the Congress to do is
pick up where the Supreme Court said, ``It is now your
responsibility to protect those States that had the flow
control, justified flow control system prior to May 1994.''
So I think it is only fair that Congress invoke your
legislation to protect those States that went out on the limb
to control.
What would we do with the garbage today if we hadn't gone
out, if they hadn't taken the venture, if they hadn't went out
in Virginia and built the plants to take in that trash? What
would we do? Where would the trash go?
Senator Voinovich. I think that the objective evaluation of
this is--and I was there as a county commissioner back in
Cuyahoga County many years ago, and we had a tremendous problem
of what are you going to do with the garbage and all the other
things that were there, and there was enormous pressure on us
by the citizenry to do something about this problem, and so
many communities--we didn't go forward with it, but many
communities did, and duly-elected representatives of the
community exercised their best judgment to deal with the
problem that was plaguing the community, and they made those
decisions and they went forward with them.
The point you're making is that after those decisions were
made the ability to capture the garbage and have flow control
disappeared as a result of the Supreme Court decision.
It seems to me, in fairness to those communities that got
involved in this, they ought to not have that situation just
kind of dumped in their lap and they should be given some
credit for the decision-making that those communities have
made, and I think that's what this legislation is trying to
remedy for those communities.
In terms of bond issue rating, having everything--your bond
rating lowered because of the fact that you've got a problem
with a waste facility, which penalizes your people when they go
out and borrow money for something else.
So I think that there is a real strong, I think, argument
here that if people acted responsibly and did what they thought
they were supposed to do that you don't, as you mentioned,
change the rules in the middle and then kind of let them say,
you know, ``You're stuck with it.'' And we're trying to do that
right now with public utilities in this country who----
Mr. Stokes. Absolutely.
Senator Voinovich.--went ahead and built nuclear power
plants and did all kinds of things. By the way, they were
trying to be consistent with good environmental concerns. And
now they're stuck out there with these stranded costs, and
we're trying to reach out to try and do something about it, and
so I think that that's something that is real important, that
we are talking about taxpayers.
Mr. Stokes. We absolutely are, and Franklin County right
now stands at a point that, if challenged and it went to the
Supreme Court of the United States, it could possibly reverse
what we're doing and put us in a worse condition than we're in
right now.
We have strived to minimize the damage and minimize the
taxes on the taxpayers in our county, and I think it is only
fair that the Congress pick up the gauntlet that the Supreme
Court laid at its doorstep and give us the temporary flow
control situation that we need to meet those obligations.
And I might say, those obligations were met, Senator, as
you said, based upon the future and upon the demands of the
time of getting rid of trash they made, and those politicians
that were in office, at least in our area, made an intelligent
decision to build this facility to answer a very serious
problem.
Can you imagine the criticism they would have gone under if
we did not have proper trash disposal facilities? And the
health care problems that would evolve from that would have
been more catastrophic than what we face even today.
Senator Voinovich. Mr. Chairman?
Senator Warner. Take such time as you wish, Senator.
Senator Voinovich. Okay.
Senator Warner. Although I might add I'm going to ask if
you would chair the committee until Chairman Chafee returns or
place the committee in recess awaiting his return.
I have a few questions, but if you want to continue on----
Senator Voinovich. I'd just like to make one other comment.
Senator Warner. Sure.
Senator Chafee. Mr. Eisenbud, you set up a criteria and I'd
like to comment on it, because we looked at it.
You talked about protection. The current system does not
protect sound environmental recycling laws and policies today
established by State. It also doesn't protect communities that
do not want to take out-of-State waste.
Now, in the case of Virginia, you wanted it, right? And I'm
sure there are communities in my State that may want to have
these kinds of facilities built. This doesn't say that they
can't do it. It sets up an understandable way of dealing with
the problem and, frankly, just response to the local concerns
of communities. If you want to do that, that's fine.
The other thing you talk about is opportunity. The current
system does not provide an opportunity for affected local
communities to say no to out-of-State waste shipments. In other
words, we had a community, you know, that didn't want to have
it, business comes in, gets the permit, permit is issued, they
can go ahead and build it and the local community has nothing
to say about whether or not they're going to have that there or
not in their community.
Predictability--the current system does not provide
predictability to States who make tough decisions to site
landfills and incinerators and determine how much property is
available to dispose of trash in the State.
It doesn't provide predictability to local governments who
have to submit disposal plans.
In other words, I don't know whether you know how tough it
is to site landfills. I mean, you know, I've been in trying to
site landfills and go through these things and getting people
to go along with them, and then, once it's done and then they
find out that, you know, the stuff is coming in from all over
the place, they get angry with you.
What we're trying to do here is to deal with a problem that
has been around here a long time in an understandable fashion.
Now, if there are some things that we can do to kind of
sway some of your problems, maybe we can sit down and talk
about it, but we just can't let this thing keep going the way
it is going. And it is going to get worse.
I'm going to tell you something: I'll say this to the
citizens of New York--I don't think it is fair that they should
just dump their problem on the rest of the country, and right
now they are exporting 3.7 million tons, and now when Fresh
Kills is gone it's another 13,000 each day. Each community,
each State has a responsibility to deal with this, and the
politicians in those States have the responsibility to step to
the table and take on siting landfills that people don't want
and deal with the NIMBY problem.
So we're trying to get some equity and fairness here. Maybe
we can provide an incentive to States to say to start to deal
with the problem.
Why isn't the State of New York right now, why isn't
Governor Pataki out there saying, ``We've got a problem. We
need to do it,'' go to the Legislature and work on siting these
facilities? Why not?
Mr. Eisenbud. I trust that is a rhetorical question.
Senator Voinovich. It is. So we'll let somebody else do it
someplace else.
You know, this may be--there's different types of
interstate commerce. I've got to tell you something, Mr.
Norquist: the people in my State don't think that infectious
waste and garbage is interstate commerce. They feel it's a
threat to the public health and welfare. Okay? That's the way
they look at it.
Mr. Chairman?
Senator Warner. Well, I thank you very for your views,
Senator. I'm glad you've come to the Senate for many, many
reasons, not the least of which has been the few of us fighting
this lonely battle for many, many years, about 15 for this
Senator.
Senator Voinovich. Mr. Chairman, I want to say to you I
have been working on this problem since 1991. Twenty-four
Governors now are in favor of doing something about it. The
Western Governors, Governor Whitman, Governor Floria--Governor
Whitman is now for it.
We had this ready to go 2 years ago and it got killed in
the House because the chairman of the Rules Committee in the
House was from New York State and he made sure it didn't get
done.
We don't have that any more and we can get it done this
time.
Senator Warner. You know, I think, my colleague, I want to
make two observations.
One, throughout my career in the Senate I've always been
deferential to the Governor of my State, whether they're
democrat or republican, and the State Legislature. I've always
tried to work and be helpful. I have no answer to this question
in Virginia about the series of landfills which are not under
your aegis, Mr. Eisenbud, but which you bring up, Mr. Miles, in
your well-prepared statement.
I don't have an answer. I make no excuses as to why our
State hasn't enacted such legislation as is necessary to bring
about a correction of the existing situation. But I do feel
very strongly this bill that Senator Robb and I put in is fair,
and I say, Mr. Miles, to you, you've written a very good
statement. Your constituents should take pride in how you've
represented their interest, and that's your job. But listen to
this--``immediate authority''--this is the Robb-Warner bill--
``on or after the date of enactment of this section, a Governor
of a State that imported more than a million tons of municipal
solid waste during the calendar year 1998 may restrict the
quantity of out-of-State municipal waste received for disposal
at each landfill during a calendar year to the quantity of out-
of-State municipal solid waste received for disposal at the
landfill during 1998.''
Now, Virginia is somewhere in the five to six million tons.
That's a lot of trash that is permitted by this to continue to
be brought into the State. Now, all I'm trying to do in this
legislation is strike a balance.
So my question to you, Mr. Miles, is: do you feel that
that's an unreasonable provision, when we're trying to strike a
balance between those who suffer a detriment to their quality
of life--indeed, their environment and possibly their health,
safety, and the highways are clogged with the transportation
systems bringing this in? Is that unreasonable in your
judgment?
Mr. Miles. Well, Senator, to answer your question, let me
go back just a little bit and ask to be allowed that time, sir.
When we first were directed by the State to close our
landfill because it was a hole in the ground, we as a county--
and I served on that board at that time, which was almost 12
years ago--we decided that we would build the most
environmentally safe landfill that there was at that time.
So what we did, we mandated that the contractor build a
hazardous waste landfill that was only allowed to accept
municipal solid waste.
Now, why did we do that? Because that required an
additional amount of liners, and we felt that we needed to make
sure that our citizens were protected, so we told them, ``If
you want to build a landfill, here are the requirements that
you have to build it to.''
When we looked at the landfill, itself, we looked at it
from the long-range process. A lot of additional landfills in
Virginia have opened up with an unlimited amount of tons per
day that they could accept in. We started off with a low number
and gradually ended up at 6,000 tons per day because we felt
that that was a number that we could take in safely to provide
our citizens with their disposal of solid waste and also
receive the funds necessary to improve the standard and the
quality of life for those in the county.
So we, in turn, put a 6,000-ton limitation per day that
could be accepted. Well, if you look at 1998 levels, because of
our looking at it for the future, we're only accepting an
average of 2,500 tons per day.
When this law went into effect for us we were the original
regional landfill in the county because now we're restricted to
2,500 tons a day, when some of our neighbors that, for whatever
reason, decided not to put a cap on it, they can accept, 6,000,
7,000, 8,000, 9,000, 10,000 tons per day based on 1998 levels,
and we're saying that's punishing us as a county when we tried
to look long-range and tried to look at what we felt was best
for the citizens and the State.
The State is mandating to us what we can and cannot do.
I've heard continuously statements made that we want to look at
it from the standpoint of what the State and local government
can do.
Our citizens--we had a mandate from them that we needed to
do something. We were in a predicament that we had to do
something, and we felt that we would turn a negative into a
positive. We had to accept ways to--let's get some revenues
from it so that we can completely rebuild our school system.
We have a new K-12 school system. The State was in the
process of telling us that unless you improve your school
systems we're going to take it over. We said that was not going
to happen, so we built a completely new school system.
Senator Warner. I appreciate the economics in your county.
I have visited your county through the years, and I recognize
the problem and I want to commend you and other responsible
citizens in your country for trying to certainly construct your
physical plant in such a way as to maximize the preservation of
the environment in your immediate area and meet other
requirements for quality of life in the county.
But I've got to balance against that, say, the folks up
here in northern Virginia who witness every day these trucks
going down I-95--you know, that's a principal corridor, am I
not correct?
Mr. Miles. That's correct, sir.
Senator Warner. That congests the highways, it adds
pollution, and in some instances those trucks have not been
equipped in such a way as to prevent some leakage of this
refuse--primarily the fluid--as it goes down the highway.
So people of our State of over six million citizens are
affected far beyond the environs of Charles City County by the
importation of this waste.
Likewise, the James River--I've had people in my office--I
really had to contain them--about the leakage into the river,
pollution that is occasioned by these heavy barges transporting
this waste up, the odors that are attendant to this
transportation system. So I'm trying to strike a balance.
It seems to me that six million tons or thereabout a year
is still an awful lot of trash. If I had my way, I wouldn't
allow this to continue.
Now, I cannot explain why the Virginia Congressional
delegation in the House--I haven't petitioned all of them--
have, I think, somewhat views different than mine, but I'm
going to forge ahead--may be by myself with Senator Robb, but
I'm going to forge ahead to see what I can do to help strike a
balance in terms of the quality of life of our citizens
throughout the State that could be affected by this.
But, again, you've discharged your responsibility very
fairly and commendably. You've raised some interesting
questions, and I'm candid to say I don't have the answer.
Mr. Miles. Senator, if I could, just one additional
comment. It is kind of ironic that we talk about the trucks and
whatever when we were trying to allow barges, which have been
proven to be safer--we've got some containers going up the
James River going to some of our neighborhoods that have some
stuff in them that if it touches your skin for 3 seconds it
will eat your skin off, and we've been trying to allow barge
traffic to come through----
Senator Warner. You mean other than those associated with
your landfill?
Mr. Miles. Yes, sir. We have, going to the chemical
companies on the James River, they have some stuff in those
tankers that if it touched your skin for 3 seconds it will eat
through your skin, and we've got the double-lined barges that
we want to send up there, but yet the State is saying you can't
do it. That's why we've challenged them in court, to prove that
yes, we can do it.
Senator Warner. Well, as you can see, this is a very
controversial issue.
Mr. Miles. Yes, sir, it is.
Senator Warner. And it is a responsibility of the U.S.
Congress to weigh carefully and fairly the arguments of all and
try and come and make a decision.
Mr. Miles. Yes, sir.
Senator Warner. Now, Mr. Eisenbud, what views do you have
about the constituents that come to see me about, say, that
main corridor of transportation, which is an artery in our
State, and its ever-increasing number of trucks associated with
this situation? What do you say? Do you feel that this is an
inequitable approach?
Mr. Eisenbud. Senator, I wouldn't use ``inequitable'' to
describe it. I think it is problematic for us.
If I could take your points in series, the problem that we
see with the text is that the freeze----
Senator Warner. With the what?
Mr. Eisenbud. With the freeze authority. It does not
protect contracts at all, as far as we can determine. So if we
had a contract that was written in good faith in reliance on
the existing law that was legally binding in the State of
Virginia under Virginia law that called for an increase of
deliveries to the facility at Charles City County over a period
of years, the freeze would prevent that from ever happening,
and obviously there has been reliance on that contract.
Second, when the super export ban kicks in under your bill,
as we understand it, the ban will overwhelm the freeze, and so,
to the extent that waste has been coming to Charles City County
from New York--which it clearly has--that super exporting ban
will prohibit it entirely, and so it is very likely to result
in considerably less than the freeze level in that
circumstance.
Senator Warner. What approach, then--and I ask this in a
constructive and with a fair tenor of voice and intention--what
approach would you suggest that I take with respect to the
literally millions of people right along this corridor of 95
who are suffering some degradation in terms of their lifestyle
as a result of this burgeoning economy of waste?
Mr. Eisenbud. I appreciate that concern and would very much
like to try to help, and I'd like, if I might, to talk further
with you about it, recognizing the complexity.
Senator Warner. Let's talk right here in the open hearing.
Here we all are.
Mr. Eisenbud. One of the things that I would offer is that
barges make much more sense than trucks. The Coast Guard has
testified in Virginia hearings that barges are safer. We are
proposing, as Chairman Miles indicated, to use double-hulled,
steel-alloy, sealed, floatable containers. Even if the barge
sinks, the containers will float without contaminating anything
and be towed ashore probably by an ordinary boat. In the
meantime, they'll contaminate nothing.
For every barge load, we will take literally hundreds of
trucks off I-95 if permitted to do so. That's got to be a net
environmental benefit if the barge containers and operations
are as we intend them to be.
Now, I want to acknowledge to you, Senator, candidly, there
were problems----
Senator Warner. I beg your pardon. Do you want to go back
on that a little bit. Senator what?
Mr. Eisenbud. I want to acknowledge to you very candidly
that there were problems with barging that some of your
constituents may be referring to. Those were 2 years ago, with
a totally different operation, without those sealed containers.
Senator Warner. That may well serve----
Mr. Eisenbud. And there is no barging going on now.
Senator Warner. That may well serve my State. I'm not that
familiar with my colleague's State, but I know a lot of areas
barge is not an alternative to the arterial highways, and
that--anyway, I've raised my questions. I'm going to turn the
gavel over to my distinguished colleague here now to continue
with his inquiries and then allow the chairman an opportunity
to return.
Senator Voinovich [assuming the chair]. Has he indicated
he's coming?
Senator Warner. He has so indicated. Thank you.
Senator Voinovich. Well, I think what I'm going to do then
is recess the committee until the chairman comes back, because
I haven't any further questions I'd like to ask any of the
witnesses. Thank you very much for being here today.
[Recess.]
Senator Voinovich. The meeting is adjourned.
[Whereupon, at 11:55 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Robert Smith, U.S. Senator from the State of New
Hampshire
Well, here we go again.
Two years ago, I opened a hearing by saying that I was disappointed
to be revisiting the issues of interstate waste and flow control. My
views haven't changed much in that regard. In the 4 years since the
Senate addressed interstate waste and flow control in 1995, we have
seen State and local governments continue to address this topic in the
context of a free market. Even witnesses testifying today in support of
Federal legislation will acknowledge that fact. In my view, the case
for Federal intervention becomes more difficult to make with each
passing day.
In 1995, Senator Chafee and I worked very hard to pass an
interstate waste and flow control bill, S. 534. The House took a more
free market approach to the issues, however, and S. 534 died in that
body. That may have been the right outcome, in hindsight.
I believed then that the legislation we passed had significant
flaws, particularly in regards to flow control. At the time, however, I
thought it was important to quickly address these issues, in light of
the allegedly dire consequences we faced if we failed to act. Well,
Congress did not enact Federal legislation in this area, parties
continued to operate in a free market in this regard, and, simply put,
the sky did not fall.
I would like to make a few specific comments about the two issues
we are here today to discuss. In previous Congresses, we heard
testimony supporting flow control stating that immediate action was
required to protect municipalities from having to default on bonds they
had issued to fund their waste-to-energy and recycling efforts. Today,
however, one of the witnesses will testify that bond defaults should
actually not be the ``litmus test'' for legislation. The reason for
that new position is clear: While some downgrades have taken place--a
total of 17 nationwide--widespread municipal defaults did not occur.
Testimony from another witness indicates that only two counties in New
Jersey have entered ``technical default'' -which as I understand it
means the issuer is still current on payments but the revenue available
for debt service has declined.
Rather than simply defaulting, localities have responded the way we
would hope and expect them to: they have instituted competitive tipping
fees, cut their overhead costs, and sought alternative streams of
revenue. That is the way the free market should work, and that is the
way it has worked. I commend those communities for taking
responsibility for their own actions.
The fact is, supporters of flow control have a much tougher case to
make this year. It is clear that the free market is not broken. Tipping
fees have fallen and competition has proven favorable to residents who
ultimately pay for this disposal. Flow control legislation would upset
market forces that are reducing costs for residents. It would
constitute a tax on consumers, no matter how disguised as a ``user
fee.'' If localities want to impose a tax on their citizens, they
should do so directly, rather than hiding it in Federal flow control
legislation.
Proponents of interstate bans or controls also have a difficult
case to
make, but I am interested in hearing about creative solutions that
can balance competing interests in this regard. I understand the need
for States to plan for their future in-State disposal needs. I also
understand the real benefits of the free market, as Mr. Miles so
eloquently States in his written testimony.
The interstate issue remains complex. Many States, including my
own, both import and export significant amounts of waste, in
cooperation with neighboring States. Regional solutions are clearly
being sought--and found--to regional problems. I do not see how
allowing individual States within a region to take themselves out of
the equation helps matters, but I am concerned about in-State capacity
issues--particularly in light of the impending closure of the Fresh
Kills landfill. Those 11,000 tons of excess waste from New York must be
disposed of, and I understand that other States don't want their own
planning and in-State capacity disrupted by that State's waste.
To date, however, I have seen no evidence that we can improve upon
the solutions emerging from the interplay of local, State, and regional
political and business entities operating within a free market system.
I remain unconvinced that the bills before us are the answer to
concerns about the interstate transportation of solid waste. There may
be creative solutions out there to these issues, but it is not clear to
me that presumptive bans, freezes, and ratchets are among them.
I want to thank the witnesses for coming today and I look forward
to their testimony.
__________
Statement of Hon. Daniel Patrick Moynihan, U.S. Senator from the State
of New York
The proper disposal of municipal solid waste (MSW) is an issue that
should rightly concern us, and one that this committee has taken up
several times in past years. In the 104 Congress, we committee members
representing both importing and exporting States worked to pass S. 534.
The bill permitted States to limit unwanted MSW imports while
protecting contractual agreements between host communities, waste
management companies, and exporting communities. By protecting host
community agreements, S. 534 ensured that communities which agreed to
receive MSW would not suffer adverse economic consequences as the
result of any import cap.
As the committee again focuses on this issue, I feel that we should
consider three policy areas. First, we should ensure that the shipment
of MSW across State lines is environmentally safe and poses no danger
on our roadways or waterways. Second, we should empower communities to
resist the disposal of unsolicited MSW in those communities. Finally,
we must respect the right of communities to enter and maintain host
community agreements to receive MSW that is generated beyond city,
county, or State lines. The escalating cost of constructing
environmentally secure landfills (some cost more than $300,000 per acre
to build) necessitates that Congress respect the right of communities
to receive MSW to aid in the financing of modern landfills.
As the nation's largest exporter of MSW, New York State is
committed to ensuring that waste generated within its boundaries is
disposed of in a responsible manner. Both Governor Pataki and Mayor
Giuliani have a policy of requiring host community agreements for the
issuance of any contracts to dispose of MSW generated in New York City
and State. None of the contracts that will be granted for the disposal
of MSW which presently goes to Fresh Kills landfill in New York City
will be made without firm host community agreements.
New York State is also engaged in talks with States that import
large quantities of MSW to find agreement on how to ensure that the
transport of MSW across State lines is as unobtrusive as possible. And
finally, New York is working hard to reduce the amount of MSW it
generates. Statewide, 42 percent of the waste stream is recycled--one
of the nation's highest rates.
While New York is aggressively pursuing means to limit the amount
of MSW it generates, and the State continues to import MSW from
neighboring States, New York will likely remain a net exporting State.
As the committee considers potential restrictions on the volume of MSW
any city, county, or State may export, I feel we should also review the
disposal patterns of other forms of waste. In New York's case, we might
be able to reduce the amount of hazardous waste which is transported
across State lines for processing in the Empire State.
__________
Statement of Hon. Bob Graham, U.S. Senator from the State of Florida
Mr. Chairman, members of the committee, thank you for the
opportunity to speak on the subject of regulation of municipal solid
waste. It is a subject that this committee has struggled with over the
past several years. We in Florida also struggle with this issue.
Management of municipal solid waste has traditionally been the
responsibility of local governments, within the guidelines established
by the Federal and State government for protection of human health and
the environment. Current guidelines for construction of landfills have
driven the cost of these facilities beyond the ability of many
communities to pay for them. The closing of old landfills and movement
towards large, modern, regional landfills provides increased protection
of our groundwater, and other natural resources.
Florida faces many challenges to responsible management of
municipal solid waste. Our vulnerable groundwater and sensitive
wetlands restrict the number of suitable locations for landfills,
especially in the most densely populated and fastest growing areas of
the State. Many communities have turned to incineration of waste as an
alternative to landfills, and they are struggling with questions of how
to finance those facilities. Because of our geography, export of waste
to other States is not as attractive to Florida as it is to some other
parts of the country, so we are attempting to deal with our waste
within the State.
I appreciate the concern that many communities have expressed about
accepting large volumes of waste from outside their local area. I also
appreciate the need of the private sector for a stable and predictable
regulatory environment on which to base their investment decisions. I
also believe in the power ofthe free market to provide the most cost
effective services to consumers. I look forward to hearing the
viewpoints of our witnesses today, and working with my colleagues to
develop an acceptable approach to regulation of municipal solid waste.
__________
Statement of Hon. Arlen Specter, U.S. Senator from the Commonwealth of
Pennsylvania
Mr. Chairman and members of the Committee, I appreciate the
opportunity to testify before you today on the critical issue of
interstate shipments of solid waste, which is a top environmental
priority for millions of Pennsylvanians and for me.
As you are aware, Congress came very close to enacting legislation
to address this issue in 1994, and the Senate passed interstate waste
and flow control legislation in May, 1995 by an overwhelming 94-6
margin, only to see it die in the House of Representatives. I am
confident that with the strong leadership of my good friends and
colleagues Chairmen Chafee and Smith, and Senators Voinovich and
Warner, we can get quick action on a strong interstate waste bill and
conclude this effort once and for all.
As you are aware, the Supreme Court has put us in the position of
having to intervene in the issue of trash shipments. In recent years,
the Court has struck down State laws restricting the importation of
solid waste from other jurisdictions under the Interstate Commerce
Clause of the U.S. Constitution. The only solution is for Congress to
enact legislation conferring such authority on the States.
It is high time that the largest trash exporting States bite the
bullet and take substantial steps towards self-sufficiency for waste
disposal. The legislation passed by the Senate in the 103d and 104th
Congresses would have provided much-needed relief to Pennsylvania,
which is by far the largest importer of out-of-State waste in the
nation. According to the Pennsylvania Department of Environmental
Protection, 3.9 million tons of out-of-State municipal solid waste
entered Pennsylvania in 1993, rising to 4.3 million tons in 1994, 5.2
million in 1995, 6.3 million tons in both 1996 and 1997, and a record
7.2 million in 1998. In fact, millions of tons of trash generated in
other States find their final resting place in more than 50 landfills
throughout Pennsylvania. Most of this trash comes from New York and New
Jersey, with New York responsible for 3.1 million tons and New Jersey
responsible for 2.9 million tons in 1998, representing 83 percent of
the municipal solid waste imported into Pennsylvania.
This is not a problem limited to one small corner of Pennsylvania.
As you are all well aware, this problem affects municipalities across
the United States. Nationally 25 million tons of municipal garbage
cross State lines annually for disposal, and interstate shipments
overall have increased 32 percent in recent years. Now, more than ever,
we need legislation which will go a long way toward resolving the
landfill problems facing Pennsylvania, Ohio, Virginia and similar waste
importing States. In 1997, nine States imported in excess of a million
tons of solid waste and additional 20 States imported in excess of
100,000 tons of solid waste. I am particularly concerned by the
developments in New York, where Governor Pataki and Mayor Giuliani have
announced the closure of the City's one remaining landfill, Fresh
Kills, in 2001. That will require the City to find landfill space for
as much as 13,200 tons of waste per day, forcing it to landfills in
importing States such as Ohio, Indiana, Pennsylvania and Virginia.
Over the past several years, I have met with numerous county
officials, environmental groups, and other Pennsylvanians to discuss
the solid waste issue. I have come away from those meetings impressed
by the deep concerns expressed by the residents of communities which
host a landfill rapidly filling up with the refuse of millions of New
Yorkers and New Jerseyans whose States have failed to adequately manage
the waste they generate.
Recognizing the recurrent problem of landfill capacity in
Pennsylvania, since 1989 I have pushed to resolve the interstate waste
crisis. I introduced legislation with my late colleague, Senator John
Heinz, and then with former Senator Dan Coats along with cosponsors
from both sides of the aisle which would have authorized States to
restrict the disposal of out-of-State municipal waste in any landfill
or incinerator within its jurisdiction. I was pleased when many of the
concepts in our legislation were incorporated in the Environment and
Public Works Committee's reported bills in the 103d and 104th
Congresses, and I supported these measures during floor consideration.
During the 103d Congress, we encountered a new issue with respect
to municipal solid waste--the issue of waste flow control authority. On
May 16, 1994, the Supreme Court held (63) in Carbone v. Clarkstown that
a flow control ordinance, which requires all solid waste to be
processed at a Designated waste management facility, violates the
Commerce Clause of the U.S. Constitution. In striking down the
Clarkstown ordinance, the Court stated that the ordinance discriminated
against interstate commerce by allowing only the favored operator to
process waste that is within the town's limits. As a result of the
Court's decision, flow control ordinances in Pennsylvania and other
States are considered unconstitutional.
I have met with county commissioners who have made clear that this
issue is vitally important to many local governments in Pennsylvania
and my office has, over the past years received numerous phone calls
and letters from individual Pennsylvania counties and municipal solid
waste authorities that support waste flow control legislation. Since
1988, flow control has been the primary tool used by Pennsylvania
counties to enforce solid waste plans and meet waste reduction and
recycling goals or mandates. Many Pennsylvania jurisdictions have spent
a considerable amount of public funds on disposal facilities, including
upgraded sanitary landfills, state-of-the-art resource recovery
facilities, and co-composting facilities. In the absence of flow
control authority, I am advised that many of these worthwhile projects
could be jeopardized and that there will be a significant negative
fiscal impact on some communities where there are debt service
obligations.
In order to fix these problems, I introduced legislation (S. 663)
on March 18, 1999 with Senator Santorum and Congressman Greenwood
introduced companion legislation in the House of Representatives. The
legislation would provide a presumptive ban on all out-of-State
municipal solid waste, including construction and demolition debris,
unless a landfill obtains the agreement of the local government to
allow for the importation of waste. It would provide a freeze authority
to allow a State to place a limit on the amount of out-of-State waste
received annually at each facility. These provisions will provide a
concrete incentive for the largest exporting States to get a handle on
their solid waste management immediately. To address the problem of
flow control, my bill would provide authority to allow local
governments to designate where privately collected waste must be
disposed. This would be a narrow fix for only those localities that
constructed facilities before the 1994 Supreme Court ruling and who
relied on their ability to regulate the flow of garbage to pay for
their municipal bonds.
I understand that Virginia's Senators Warner and Robb and Ohio's
Senators Voinovich and Bayh have introduced similar legislation to
address the interstate shipments of solid waste. I look forward to
working with them and the Committee to solve the interstate waste
problem once and for all. In the past, the Committee has devised
appropriate legislation which protected the ability of municipalities
to plan effectively for the management of their municipal solid waste
while also guaranteeing that market forces will still provide
opportunities for enterprising companies in the waste management
industry. I urge the Committee to take the same approach in the 106th
Congress and report flow control legislation to the full Senate as soon
as possible. Thank you again for the opportunity to share my views.
__________
Statement of Hon. Charles S. Robb, U.S. Senator from the Commonwealth
of Virginia
Mr. Chairman, I thank you for holding this hearing. And I hope it
will soon be followed by a mark-up. Congress needs to act soon to
address the problem faced by States, in many cases, that are being
inundated by unwanted out-of-State trash.
Senator Specter and I, along with a number of those on this
Committee, including my senior colleague John Warner, have been working
for years to give States and localities the authority they need to
regulate interstate garbage. When I first started working on this
problem in 1993, we faced a situation slightly different than the one
that confronts us today. Then, there were waste companies that were
threatening to build landfills in communities where they were
absolutely unwanted. Unfortunately, many rural communities were
powerless to stop them, so I introduced legislation to protect all
communities from being dumped on by unwanted out-of-State garbage.
In an effort to move this debate forward, Senator Warner and I
crafted legislation using some and relatively novel approaches to try
to strike the proper balance between allowing interstate commerce and
necessary protections for States and localities. I hope some of the
ideas we included in our bill, S. 533, can form the basis of a bill
that can help break the logjam that has prevented passage of interstate
waste legislation in the past. All of us who represent States on the
receiving end of all this interstate garbage understand that the only
bill that will truly protect our States is a bill that can be signed
into law. So while we may be tempted to introduce draconian legislation
that could score political points back home, we need to stay focused on
developing a solution that scores legislative points here in the
Congress.
It is time for us to craft a serious, sensible, workable piece of
legislation that will provide communities with the authority to say
``no'' to waste imports, provide Governors with the authority to limit
waste imports if the cumulative affect of imports proves harmful, and
to ensure that importing States receive compensation for the increased
costs incurred from handling waste imports.
The situation in Virginia, I believe, is similar to that in many
States. In the past 10 years Virginia has issued permits to seven large
landfills. Because the cumulative impact of these disposal facilities
can be broad and negative, States need to have the authority to address
these potentially long-term cumulative effects.
In an effort to gain some protection, this year Virginia's General
Assembly enacted legislation attempting to address the problems created
by the cumulative impact of these seven mega-landfills. But this effort
serves to highlight the need for Congress to act. To overcome a
constitutional challenge, the State placed a limit on the amount of
waste that each landfill could accept. This total cap applies to both
Virginia trash and non-Virginia trash headed for the landfill. If a
landfill operator can accept only a limited number of tons, then common
sense suggests that they will accept the most lucrative tons first. To
get access to that landfill, then, Virginia communities might have to
get into a ``bidding war'' with trash coming in from outside the State.
Because the Virginia law does not (and may not under the
Constitution) discriminate against waste from outside of the State, it
is likely that the cost of waste disposal for Virginians will go up.
Without Congressional action States that try to regulate waste imports
reasonably are severely limited in their options. Even though the
Virginia legislation appears to conform to the Commerce Clause of the
U.S. Constitution, it was challenged last week on constitutional
grounds. Whether or not the Virginia statute stands, Virginia and other
States need our help.
The bill Senator Warner and I developed has four major provisions
to help States. These provisions are intended to broaden the discussion
and examine new approaches for solving this long-standing problem.
The first provision provides local communities with the authority
to say ``no'' to imports of municipal solid waste. S. 533 sets out
specific requirements for information that is made available to
communities before they enter into these agreements, and ensures that
the agreement is negotiated in the sunshine, so that all the citizens
in the jurisdiction, as well as neighboring jurisdictions and the
State, are well aware of the potential effects and benefits of the
facility. By requiring host community agreements, S. 533 provides local
governments with the authority needed to make the best arrangement for
their communities. This has been the basis of the legislation I have
sponsored previously, and which came very close to being enacting 5
years ago.
The second provision allows Governors to cap receipts of imported
waste at 1998 levels. This provision is similar to the newly adopted
law in Virginia, but would allow receipts of in-State waste to continue
to grow. Frankly, I wish we had passed the legislation in 1994 and used
those levels to limit imports. Unfortunately, since that time new
landfills have been opened and have begun accepting out-of-State trash.
This presents us, as policy- makers, with a dilemma. If we limit the
amount of waste to 1993 levels, that would mean either that landfills
built after that time would accept no waste, or the levels the State
accepted in 1993 would be apportioned among the landfills existing
today. Using 1998 as a base year avoids the problem of trying to
determine what volume of waste was imported in earlier years. Some of
the legislation under consideration requires that we retreat to the
level of imports received in 1993. Although this is desirable in many
ways, it seems to me it would be virtually impossible to apportion
equitably the waste receipts among existing landfills if the earlier
date were used as a base. My concern is that this would open up the
States up to expensive and lengthy litigation.
S. 533 also provides for a $3/ton import fee. I liken this fee to
out-of-State tuition. There are costs associated with the disposal of
waste that are borne by the State that imports the waste. For example,
in Virginia those costs come out of the general fund. The cost of site
inspections, weigh stations, safety checks, and other enforcement
activities are assumed by the importing State. It is appropriate it
seems to me, that we share these costs with the exporting entity. A fee
of three dollars/ton will cover many of these incremental costs
associated with waste importing.
Lastly, S. 533 contains a provision new to this debate. In the
past, we've focused on protecting importing States. The last provision
in S. 533 focuses instead on encouraging exporting States to begin to
find some in-State solutions for their garbage disposal needs. The
section provides that beginning in 2001 any State can refuse all
imports from a ``super exporting State''. Should an importing State
choose to continue to accept waste from these exporters, the Governor
can assess a premium of $25/ton on imports in 2001, $50/ton for waste
received in 2002, and $100/ton for waste received in 2003 and all years
there after. These fees would give Governors of importing States and
super exporting States some room to negotiate as new capacity is
developed. It buys some time for the exporters, at a cost high enough
to provide needed incentives to site additional space within the State
of origin. It is important to remember that the fees are applied to all
waste from a super exporter, from the first ton to the last. Hopefully,
that will motivate all citizens of exporting States to look for in-
State solutions.
It is clear that some interstate commerce in trash is necessary,
and perhaps beneficial. For example, Virginia sends some of its waste
to Tennessee, and most States, as has already been indicated, accept at
least some waste from other States. But it now appears that New York
intends to shut the last disposal site serving New York City, without
siting additional in-State capacity. This could increase the pressures
already felt by neighboring States. Mr. Chairman, Congress should act
before Fresh Kills closes, so that the city will not rely on other
States for additional disposal capacity.
In the past, I had hoped that by simply providing for the use of
host community agreements we would ensure that communities would take
only the waste that they felt was essential to operate State of the art
disposal facilities. The lack of true authority in this area has
aggravated the problem, and now it is necessary to give more authority
at the State level, as well as the local level. It is time for the
Congress to step in. I believe S. 533 provides new ideas that can
strike the right balance, and I hope the Senate can use it as a
framework, in concert with other solutions that have been offered by
other members of this body, to find a real solution to a very real
problem. With that Mr. Chairman, I thank you and the members of this
committee, and I look forward to working with you on crafting
legislation.
______
Responses by Senator Robb to Additional Questions from Senator Graham
Question 1. State records show that Pennsylvania and Virginia ship
most of their hazardous waste to disposal facilities in New York. What
is the justification for allowing Pennsylvania and Virginia to restrict
imports of MSW from New York, but not allowing New York to restrict
imports of hazardous waste from Pennsylvania and Virginia?
Response. I cannot address the issue of waste exchange between New
York and Pennsylvania, but let me speak to waste transport between New
York and Virginia. According to the most recent available records from
USEPA, Virginia does export more hazardous waste to New York than it
imports, but the volumes are relatively low. The volumes reflect the
treatment regimes required under RCRA Subtitle C. Under these standards
specific treatment procedures are required for different waste streams.
Although most States do provide some type of treatment of hazardous
wastes, few States (if any) could provide all the different varieties
of treatment necessary to satisfy requirements under RCRA. The volumes
transported between Virginia and New York are small quantities of each
waste produced in different manufacturing processes. Economies of scale
are available when hazardous wastes are accumulated and moved to
treatment facilities that treat specific types of waste. The ``90 day''
rule under Subtitle C that allows generators to accumulate waste onsite
without a permit is evidence that the economies of scale necessary to
make treatment affordable are recognized as necessary, as are regional
facilities for treatment and disposal.
Municipal solid waste (MSW) differs from hazardous waste because it
is so uniform, and there are only one or two disposal options
available. Landfilling is the most common method of disposal for MSW
and the standards and engineering practices are largely the same from
State to State. Although economies of scale do apply to MSW disposal,
the geographic coverage necessary to reach that scale is generally much
smaller. In addition, the volumes of MSW generated are exponentially
greater than that of hazardous waste. For example while it is true that
New York accepted more hazardous waste from Virginia than it exported,
they will export more than 4,000,000 tons of MSW to Virginia this year.
That is over 500 times more MSW than the hazardous waste that was
imported from Virginia. In addition, there is no special treatment
regime required for MSW, there are simply not enough facilities in New
York.
Limiting exports of MSW ensures that wastes are disposed of close
to the point of origin and quickly, which is an essential public health
protection component of MSW disposal. The safest most environmentally
sound disposal occurs in a state-of-the-art landfill, or thermal
treatment facility and is completed within the shortest time possible.
In general that means that the facilities should be as close as
possible to the source of the waste.
Question 2. If States are allowed to cap wastes imports based on
volumes received in previous years, the market in those importing
States would effectively be frozen, creating virtual monopolies for the
companies that have existing contracts to handle wastes in those
States. Has the effect of this action on the waste management industry
and on consumer prices been evaluated?
Response. Although S. 533 does cap waste imports at existing
facilities, it does not prohibit the siting of facilities to compete
for waste generated inside any State. For that reason the bill does not
create monopolies in the industry. No waste business is prohibited from
siting a landfill in any State to serve as a disposal site for waste
generated in that State. In fact there is great need in some States for
additional capacity, and that need will continue to grow. S. 533 does
nothing to inhibit the competition between companies. In fact, by
limiting imports at specific facilities the bill will have the effect
of increasing competition by ensuring that new facilities are sited in
States that export vast volumes of waste.
__________
Statement of Hon. Evan Bayh, U.S. Senator from the State of Indiana
Mr. Chairman, members of the committee, I first want to thank you
for holding this hearing on the national problem of municipal solid
waste management. I particularly want to thank Senator Voinovich for
his work on our bill, and our cosponsors, who include both Senators
from Ohio and, Michigan, my colleague from Indiana, Senator Lugar, and
Senator Feingold from Wisconsin. This is a critical issue for my State,
as well as many others, and I look forward to working with you to move
forward with solutions.
Let me try to put this issue in perspective. How would you react if
your neighbor began dumping tons of trash in your backyard? What if he
said there was nothing you could do to stop it and that he planned to
increase the amount he dumped in your yard every day--and expected you
to pay for it? Sound Outrageous? Absurd? Well, that's the position that
Indiana and many other States are in trying to fight the rising tide of
waste from other States. As you well know, some States have been
struggling for years to ensure safe, responsible management Of out-of-
State municipal solid waste.
As Governor of Indiana, I tried to ensure that Indiana's disposal
capacity would meet Indiana's municipal solid waste needs. However, our
efforts to institute effective long-range waste management policies
were--and continue to be--- thwarted by obstacles at the Federal level,
which allow massive and unpredictable amounts of out-of-State waste to
flow into State disposal facilities.
Unregulated flows of out of State waste have significant negative
environmental and economic impacts. Depriving importing States of the
ability to impose reasonable regulations on this waste creates
unacceptable burdens.
First, unregulated out-of-State waste interferes with States' duty
to protect the health and safety of its citizens. There are significant
difficulties in ensuring that out-of-State waste flows comply with
State disposal standards. Last year, the Indiana Department of
Environmental Management was forced to suspended operation of two
transfer stations, fine 9 others for failure to provide proper
documentation of the waste they handled. The State sent inspectors to
21 other landfills to investigate other violations. We are vigilant in
monitoring our facilities, but the sheer volume of waste makes it
impossible to catch every violation.
Second, it undermines State environmental objectives. The expansion
of landfilling discourages waste minimization and recycling programs.
How do we convince Indiana citizens to reduce their waste and increase
their recycling if they see our landfills being filled with out-of-
State trash. Where's the incentive for responsible waste management
when our accomplishments will be overwhelmed by waste from States that
don't manage their wastes?
Third, there are economic burdens that come with out-of-State
waste. States that make the economic decision not to dispose of their
own waste transfer the hard choices and costs of landfilling to States
where disposal is cheaper. As landfill space inevitably diminishes, the
costs of disposal in low-cost States, like Indiana, will rise.
Ultimately, Indiana citizens will be paying a penalty imposed on them
by States who choose not to provide for their own waste. I believe
that's what's called taxation without representation. It is not right
that States whose sole waste policy is to ``ship it out'' can undermine
carefully developed long-term waste management policies in States like
mine.
It this unfairness that brings us here today. Because the Supreme
Court has ruled that municipal solid waste is a commodity in interstate
commerce, only Congress has the authority to regulate it. Before States
can plan for, and manage, the waste that comes into their States,
Congress must statutorily delegate that authority to them.
The need for that authority has never been more acute. Nationwide,
interstate waste shipments increased by 32 percent last year. Shipments
to Indiana have been steadily rising over the last few years to the
current level of 2.8 million tons. The same is happening other States,
such as Ohio. And these increases will be dwarfed by the impact of the
planned closing of 2001 of the Fresh Kills Landfill in New York, which
will send another 13,000 tons of municipal waste into ``interstate
commerce'' every day. That's almost 5 million (4.75) tons a year.
In Indiana, after decreasing from 1992 to 1994- waste imports
increased significantly in 1995 and doubled in 1996. Between 1996 and
1998, out-of-State waste received by Indiana facilities increased by 32
percent to their highest level in the last 7 years. In fact, in 1998,
2.8 million tons of out-of-State waste were disposed of in Indiana--
that's 19 percent of all the waste disposed of Indiana's landfills.
Our Department of Environmental Management has predicted that the
State will run out of landfill space in 2011--or earlier, depending on
the volume of waste. We have laws in place, such as a needs
determination law, that allows the State to deny an operating permit to
a new disposal facility if no local or regional need for the facility
is established. However, without Congressional action, Indiana's
authority to make this decision is subject to challenge. The
uncertainty created by this cuts against responsible environmental and
economic planning. This is a concern for every State that tries to
manage its land resources and waste disposal. For instance, a Federal
court recently ruled that the State of South Dakota owes a landfill
developer $10 million dollars for blocking the operation of the
landfill through a statewide referendum. And lawsuits have recently
been filed challenging Virginia's new laws to limit anticipated
shipments New York trash.
The Voinovich/Bayh bill would end this uncertainty in Indiana and
other States that are trying to implement effective, long-range waste
management strategies. Senator Voinovich and I believe we have crafted
a comprehensive, equitable approach to interstate waste disposal. Our
bill, S. 872, is a bi-partisan, national approach to interstate waste
management. It is based on principles developed, and supported by a
coalition of 24 Governors from around the country and it has been
endorsed by the Governors of Indiana, Ohio, Michigan, Pennsylvania and
New Jersey, as well as the Western Governors Association and the
National association of Counties .
Before I discuss what our bill will do, let me tell you what it
will NOT do. It will not ban interstate waste disposal.
S. 872 simply would gives States the authority to make waste
management decisions that reflect the needs and desires of their
communities. The key to this authority is giving States the power to
place reasonable limits on the waste that can comes in to the State.
Our bill will give States the power to set a percentage cap on the
amount of out-of-State waste that new or expanding facilities could
receive. Alternatively, States would have the option to deny a permit
to a new or expanding facility if there is no regional or in-State need
for the facility. These provisions will ensure that States can make
long-range waste management decisions that will not be undermined by an
unchecked flow of out-of-State waste. They also give States the right
to decide whether they want to dedicate their finite land resources to
landfills built primarily to accommodate waste from other States.
In addition to State authority, our bill will also enhance local
authority to make waste disposal decisions by creating a presumptive
ban on receipt of out-of-State trash. What that means is, that unless
there is an existing host community agreement or permit, disposal
facilities that didn't receive out-of-State waste in 1993 (the year
that Supreme Court action limited State authority and made
Congressional action necessary) would be prohibited from starting to
take the trash until the local government approved.
Other provisions of the bill will give States the power to ensure
manageable and predictable waste flows by freezing waste imports at
1993 levels. States bearing the greatest burden of interstate waste--
those that disposed of more than 650,000 tons in 1993--could reduce
imported waste to 65 percent of the 1993 level by 2006. Acceptance of
construction and demolition debris, a rapidly growing component of
interstate waste shipments, could also be reduced. Under what's
referred to as a ratchet, construction and demolition waste could be
reduced by 50 percent over the next 7 years.
In addition to State authority, our bill will also enhance local
authority to make waste disposal decisions by creating a presumptive
ban on receipt of out of State trash. What that means is, that unless
there is an existing host community agreement or permit, disposal
facilities that didn't receive out-of-State waste in 1993 would be
prohibited from starting to take the trash until the local government
approved. States would be permitted to charge a $3-a-ton cost-recovery
surcharge to defray the costs of their solid waste management plans.
Further, our bill would allow States to track municipal solid waste
shipped though transfer stations by requiring annual reports on the
origin and amount of out-of-State waste received for transfer.
Currently, the origin of large amounts of interstate waste traveling
through transfer stations is obscured because the transfer station is
treated as the originator of the waste in landfill records.
Mr. Chairman, we see this as an issue of basic fairness. Every
State can be--must be responsible for taking care of its own waste. We
should not reward States for foisting the hard choices of landfill
citing and waste management on neighboring States. The Voinovich/Bayh
bill will ensure that the hard work and hard decisions our States have
made to manage our municipal waste will not be overruled by an ever-
growing stream of waste from other States. We are trying to give the
people who have to live with waste planning decisions the power to make
them. I look forward to working with you to move this important
legislation forward.
Before I depart, I would also like to welcome Lieutenant Governor
of Indiana, Joe Kernan, who will be testifying later at this hearing.
Lt. Governor Kernan has a long and distinguished career in public
service. He is a decorated veteran of the Vietnam conflict, as well as
the former mayor of South Bend, his home town. Elected in 1987, he
served in that position longer than any other mayor in the city's
history, 9 years. In 1996, he became Governor O'Bannon's Lieutenant
Governor. As Lieutenant Governor Joe Kernan serves as the President of
the Indiana Senate, the Director of the Indiana Department of Commerce,
and as the Commissioner of Agriculture. He is uniquely qualified to
discuss the Indiana perspective on interstate waste, and I am very glad
the Committee has invited him here to today and that he was able to
join us.
__________
Statement of Hon. Rick Santorum, U.S. Senator from the Commonwealth of
Pennsylvania
Chairman Chafee, I appreciate the opportunity to present testimony
today as your committee hears from many interested parties regarding
the disposal of interstate waste. I regret that I am unable to deliver
these remarks personally, however, I would like to extend my regards to
Governor Tom Ridge who is scheduled to testify with respect to
Pennsylvania's role in the interstate waste debate.
Without a doubt, this is a significant issue for the citizens,
government, and business interests in the Commonwealth of Pennsylvania.
As many are aware, the Commonwealth has the dubious distinction of
being the No. 1 importer of out-of-State waste. In fact, since 1993
when the state lead all others in trash imports, imports have increased
by 60 percent. Additionally, Pennsylvania is surrounded by three states
that annually export more than 1 million tons of waste, at a minimum,
to their neighbors. With the looming pressures of consolidation within
the waste management industry, leading to more regional concentration
of waste disposal, coupled with the pending closure of New York City's
Fresh Kills Landfill in 2001, I strongly believe the time for
Congressional action is before us.
While the focus of the committee's hearing will be directed towards
two bills, those introduced by the Senate delegations from Ohio and
Virginia, I am a cosponsor of legislation, S. 663, The Solid Waste
Interstate Transportation and Local Authority Act of 1999, that was
introduced by Pennsylvania's senior Senator. Such regional, and unified
state interest merely serves to highlight the importance and need for
an in-depth Congressional look at the issue of interstate waste
disposal. Even further, Federal court decisions have determined that
state and local governments cannot restrict shipments of interstate
waste as they are protected under the Constitution, by the interstate
commerce clause, thereby leaving the authority with Congress. While
there have been numerous legislative attempts to give states certain
authority over shipments of interstate waste since the 103d Congress, a
consensus measure has never been reached.
With the leadership of Chairman Chafee, the dedication of Senator
Bob Smith coupled with the ongoing efforts of many Governors who have
been meeting to find a mutually agreeable solution, the opportunity
exists for Congress to step forward. Any future legislation will need
to carefully balance the rights of states and their local governments
to oversee and guide waste disposal; the needs of waste exporting
communities; existing contracts with local governments; and what type
of waste would qualify for restriction.
Mr. Chairman, I appreciate your willingness to address this very
timely issue, and hope that you will give continued consideration to
all legislative initiatives addressing the disposal of interstate
waste.
__________
Statement of Lt. Gov. Joseph E. Kernan, State of Indiana
Introductory Remarks
Mr. Chairman and distinguished members of the committee, I am
pleased to testify on pending legislation that would vest States and
localities with Federal authority to control shipments of out-of-State
municipal solid waste (MSW). As members of the committee may know,
Indiana's elected State officials and Federal representatives have long
been concerned that our State's efforts to manage the disposal of our
solid waste, as required under Federal law, are threatened by
unconstrained flows of garbage. I am therefore gratified to offer
comments on behalf of the State of Indiana on two bills, S. 872 and S.
533, recently introduced in the U.S. Senate to address this issue.
Today's hearing comes at an auspicious time. Shipments of
interstate municipal solid waste continue to rise nationally, and so
does public concern. A 1998 report issued by the Congressional Research
Service showed a 32 percent increase of imports over the 2-year period
from 1995 to 1997. In Indiana, during calendar year 1998, almost 2.2
million tons of out-of-State municipal solid waste was disposed of at
our MSW facilities, mostly landfills, representing 30 percent of the
total amount. Adding construction and demolition (C&D) debris and
special waste, which are recorded separately, a total of 2.8 million
tons of out-of-State waste was disposed of at Indiana MSW disposal
sites last year--enough to cover two lanes of Interstate 95 from
Washington, DC to Richmond, VA and back again with 10 feet of garbage.
Almost all of Indiana's out-of-State waste currently comes from
neighboring States, with most shipments originating at transfer
stations in the Chicago area and going to landfills in the northern
portion of the State. A number of years ago, Indiana was deluged with
garbage shipments from New Jersey and New York. However, through
aggressive enforcement of State regulations concerning the types of
waste allowed in landfills, negotiated agreements between Indiana and
those two States, and the filling-up and closure of several landfills
receiving out-of-State waste, the flow was dramatically reduced. In
fact, last year, our State received no long-haul shipments from the
East Coast.
While this situation could change, especially with the closure of
the Fresh Kills landfill in Staten Island, New York, Governor Frank
O'Bannon and I are chiefly concerned with ensuring that our
administration and local officials gain the ability to control the
overall amount of out-of-State waste shipments. Our primary goal is to
protect our State's disposal capacity and natural resources; the origin
of out-of-State shipments is less important.At the present time, we
have 24 years of in-State capacity based on current disposal rates, and
the State's 61 solid waste districts are working hard to meet our goal
of reducing disposal by 50 percent by the year 2001. At the current
rate of out-of-State waste shipments, however, that capacity could be
reduced by 8 years.
Our efforts to manage in-State capacity needs could be frustrated
by the growing influx of garbage, which serves to exhaust landfill
capacity that is saved through local recycling and waste reduction
efforts. It becomes difficult to make the case for waste reduction in
Indiana as other States' garbage flows freely across our borders.
When, in 1990, out-of-State waste became an issue of public concern
in Indiana, our State legislature passed several provisions of law to
protect our citizens against the unregulated dumping of trash. These
included a higher tipping fee for out-of-State waste and a requirement
that out-of-State shipments be certified as not containing hazardous or
infectious waste. A Federal judge who ruled they violated the Commerce
clause of the U.S. Constitution later struck these provisions down.
A year later, in 1991, additional regulatory provisions were
passed, including a ban on the hauling of food and other products in a
vehicle used to also haul solid waste and an identification sticker for
vehicles transporting waste into Indiana. These too were ruled
unconstitutional.
Today, we still have a law in place from 1990 that requires
applicants for new landfills or expansions to demonstrate that there is
a local or regional need for additional capacity. This ``needs''
statute has been used to deny permits on several occasions, but there
is no certainty it will withstand court challenge without Federal
legislative action.
After listening to today's testimony, I urge you to act to address
this issue in a manner that carefully balances the concerns of State
and local officials, the importance of protecting our natural
resources, and the legitimate business interests of the waste industry.
Congress could have and should have acted on this issue years ago and
two former Members of Congress from Indiana--Senator Dan Coats and
Congressman Phil Sharp--labored long and hard to pass legislation.
Indiana's current congressional delegation stands united in its support
of enacting a Federal interstate waste law.
S. 872, the ``Municipal Solid Waste Interstate Transportation and Local
Authority Act''
I believe that S. 872, introduced by Senator George Voinovich of
Ohio and Senator Evan Bayh of Indiana, represents a measured approach
to providing States and localities with tools to limit but not
eliminate out-of-State waste shipments. The Voinovich-Bayh bill, which
is similar to legislation introduced in the Senate by Senator Arlen
Specter of Pennsylvania (S. 663) and Congressmen Jim Greenwood and Ron
Klink of Pennsylvania in the House (H.R. 1190), is also supported by
the coalition of Governors who are working in a bipartisan,
collaborative fashion to win passage of Federal interstate waste and
flow control legislation. In addition to Governor O'Bannon, this group
includes Governor John Engler of Michigan, Governor Bob Taft of Ohio,
Governor Tom Ridge of Pennsylvania, and Governor Christine Whitman of
New Jersey. I note that the congressional delegations of the five
States represented by this coalition are being urged to work together
on a bill that can pass both the House and Senate. Congressmen Steve
Buyer and Pete Visclosky are leading Indiana's efforts in the House.
S. 872 ensures that local officials are held accountable for in-
State disposal capacity by imposing a ``presumptive'' ban after
enactment and requiring formal approval for out-of-State shipments.
Such approvals must be granted in host community agreements in the form
of written, legally binding documents. These agreements must include a
specific authorization worded in a manner that ensures public notice of
out-of-State shipments.
The bill provides exemptions to the ban for current flows covered
by existing host agreements or permits that include specific
authorizations. In addition, S. 872 also exempts waste streams at
facilities that were taking waste in 1993, the point in time when State
and local officials, along with the waste industry, were clearly put on
notice that Congress might pass requirements for more disclosure and
approval of out-of-State MSW shipments.
Other provisions in S. 872 allow State officials to freeze out-of-
waste shipments at all facilities at 1993 levels unless such a
limitation conflicts with an existing host agreement or permit
authorizing a higher level. If a State does not implement a freeze, an
affected local government, as defined under the bill, can implement a
freeze at a particular facility if it has not executed a host agreement
and the facility does not have a permit authorizing a higher level.
Alternatively, States that received more than 650,000 tons of out-
of-State MSW in 1993 may impose a ``ratchet'' to reduce imports by 35
percent over 7 years.
States are also given some prospective controls under provisions
that authorize implementation of State laws requiring either a
``needs'' requirement similar to Indiana's statute or a percentage
limitation cap for new or expanded facilities. S. 872 establishes a
minimum level of 20 percent for the facility cap to ensure a reasonable
flow of out-of-State shipments.
In addition, S. 872 includes separate provisions that would allow
States to ratchet down shipments of out-of-State C&D debris by 50
percent over 10 years and impose a surcharge of up to $3 per ton on
out-of-State solid waste to help defray the cost of administering their
waste management programs. The bill also includes reporting
requirements for both waste disposal facilities and transfer stations,
which will help to better inform State officials and the general public
of the origin of solid waste coming into each State, and in the case of
transfer stations, the next destination of waste shipments passing
through these facilities.
The Voinovich-Bayh legislation also includes provisions that would
allow States that previously adopted ``flow control'' laws designed to
direct locally-generated waste to local facilities, which were
subsequently struck down by the U.S. Supreme Court, to reinstitute
those authorities for the life of bonds issued in reliance on such
statutes. These grandfather provisions would prove beneficial to a
number of States, including New Jersey, which enacted flow control laws
and sited waste facilities in a good faith effort to better meet their
in-State disposal needs.
Taken together, the provisions of S. 872 do not eliminate
altogether out-of-State waste shipments, which would be neither prudent
nor necessary. They do, however, provide a mix of public notice
requirements and controls that will ensure public support for States'
waste management programs and prevent unwanted floods of out-of-State
trash.
For Indiana, the presumptive ban on waste flows not granted
explicit approval through host agreements or otherwise exempted, as
well as the authorization for needs statutes, are the two most
important features. The inclusion of controls for out-of-State C&D
waste, which is becoming more of a problem in Indiana, is also
important to us.
I also want to stress the significance of the definitions used in
S. 872. For example, ``affected local government'' is defined as the
public body responsible for planning for the management of MSW unless
no such designation is made under State law. This requirement ensures
that the public officials vested with authority for managing waste are
also given the ability and responsibility to approve host community
agreements.
S. 533, the ``Interstate Transportation of Municipal Solid Waste
Control Act of 1999''
This legislation, introduced by Senators Chuck Robb and John Warner
of Virginia, takes a somewhat different approach to addressing the
issue of interstate waste shipments, relying principally on the use of
a freeze at 1998 levels for States receiving over 1 million tons of
out-of-State MSW shipments. Unfortunately, requiring the use of
Indiana's record level of MSW shipments to establish a ceiling for the
State is not a satisfactory solution given the long-term impact of out-
of-State shipments on the State's disposal capacity. Other States
currently receiving less than 1 million tons of out-of-State MSW may
also find this an unacceptable threshold for utilizing a freeze
authority.
The authority to impose a ban on waste shipments from States
exporting MSW in excess of 6 million tons per year would have little
real effect at this time since no single State has yet reached this
level of exports.
While S. 533 also includes a general ban on municipal solid waste
shipments not approved by affected local governments, all publicly-
owned facilities are exempted from this requirement. Further, the bill
language is unclear as to whether approvals sought after enactment of
the legislation require actual host community agreements and specific
authorizations to receive out-of-State waste.
S. 533 also does not include any Federal authorization for States
such as Indiana to implement ``needs'' statutes. Since many other
States have enacted a form of the needs requirement--Pennsylvania,
Michigan, and Virginia to name just a few--we believe it essential for
Federal legislation to address this concern.
In addition, ``affected local governments'' are defined so broadly
as to include any elected officials with responsibility for waste
management or land use for purposes of post-enactment approvals and as
any party (public or private) to a host community agreement entered
into before enactment. Frankly, these provisions fail to provide
sufficient public notice or accountability for approvals to receive
out-of-State waste shipments.
I also note that S. 533 does not include any controls over C&D
waste shipments, which are of concern to a number of States, including
Indiana.
Closing Remarks
I recognize that your committee must weigh the interests and
concerns of all 50 States and the private sector when considering a
matter involving interstate commerce. On this issue, however, I am
hopeful that you and your colleagues will agree that States should be
allowed to exercise a reasonable set of controls to protect their
natural resources and solid waste disposal capacity, and ensure public
support for their own waste reduction efforts. I do believe there is
sufficient consensus among the States for Congress to act.
The provisions of S. 872 reflect a series of provisions developed
by the coalition of importing States after years of negotiations with
the waste industry and several of the large exporting States. While
representatives of this coalition are continuing to discuss possible
areas of agreement with representatives of the State of New York in an
effort to forge a mutually acceptable agreement, Governor O'Bannon and
I believe Congress should not indefinitely delay legislative action.
Thank you again for allowing me to share the State of Indiana's
concerns about this important public policy matter.
______
Responses by Joseph Kernan to Additional Questions from Senator
Voinovich
Question 1. Many of the definitions in S. 872 are the result of
negotiations from the various interests in this issue. Could you please
explain the importance of the definitions used in S. 872?
Response. The definitions used in S. 872 are extremely important.
The waste industry and interested States and local governments have
worked for a number of years to identify key terms and define them in a
way that will provide all parties with certainty as to what they mean.
The results of those efforts are the definitions in S. 872.
By comparison, we have several concerns about the definitions in S.
533. First, the definitions in that bill are different from those
included in previous interstate waste bills passed by the Senate (e.g.
``affected local government''). Second, the bill also creates new
definitions (e.g. ``owner and operator'') that create additional
loopholes in the host community agreement requirement. Finally, it
fails to define some important terms such as ``specific authorization''
that are essential for ensuring public notice of host agreements
allowing out-of-State shipments.
Question 2. As you know, Midwest States have been asked repeatedly
to try to reach consensus on controlling interstate waste shipmentS.
And in good faith, they have tried to do so. In fact, S. 872 is the
result of a consensus among Midwest Governors and New Jersey--which is
a large exporter of trash. Should Congress wait indefinitely until all
States reach consensus?
Response. No. There are many issues on which complete consensus
cannot be achieved before the Congress actS. While representatives of
Indiana are currently engaged in good faith discussions with their
counterparts from our coalition States plus Virginia and New York, we
have no assurances that they will be able to agree on a package of
legislative provisionS.
Indiana and other waste importing States engage in negotiations on
this subject with no leverage because of a lack of the broad-based
Congressional action that we seek. We believe S. 872 is a balanced and
fair approach to dealing with this problem that recognizes the
legitimate interests of the waste industry and exporting StateS. The
consequences for Indiana are too great for Congress to wait for
complete and total agreement on every secondary and tertiary issue.
Question 3. Could you please explain the importance for States to
have the authority to place restrictions on prospective waste flows--
either through ``permit caps'' or ``needs determination''?
Response. ``Permit caps'' and ``needs determinations'' are not
intended to be mechanisms for blocking waste shipments altogether. They
are tools that States can use to ensure that they have sufficient
instate disposal capacity both statewide and within regional areaS.
Equally as important, allowing State and local officials to have
some control over the amount of waste coming in from out of State helps
those officials build public support for the State's own waste
reduction effortS. Depriving State and local officials of those
controls penalizes them for taking the responsible, and often very
difficult steps to provide instate disposal capacity.
S. 872 entitles States to utilize either percentage caps or a needs
requirement on new or expanded facilitieS. These choices should
actually help to clarify State policy to waste industry officials and
public officials in exporting StateS.
__________
Statement of Hon. James M. Seif, Secretary, Department of Environmental
Protection, Commonwealth of Pennsylvania
Chairman Chafee, members of the committee, my name is Jim Seif and
I am the Secretary of Pennsylvania's Department of Environmental
Protection. I am here today on behalf of Governor Tom Ridge who had
hoped to be here personally to talk about an issue of vital importance
to the Commonwealth of Pennsylvania--interstate waste. What we are
asking for should be simple--federal legislation giving communities a
voice in deciding whether trash from other States should come into
their community for disposal.
Pennsylvania has made every effort to protect our communities from
the burdens associated with the large volumes of waste that we receive,
but we must have Federal legislation in order to implement an effective
solution.
Over the last 5 years Governor Ridge and I have visited many
Members of Congress, including some of you, to talk about the waste
issue. In fact, I appeared before this very committee 2 years ago
asking for your action.
The previous Governor of Pennsylvania, Robert P. Casey, also worked
on this issue, as did members of our General Assembly from both sides
of the aisle.
For the last 10 years, dozens of States and hundreds of communities
have come to Congress asking for the same thing-the right to choose
their own destiny on waste issues.
So why are we here again today?
The answer is simple-the threat we face from unwanted trash coming
to our communities is larger than it has ever been:
In the last 5 years, trash imports to Pennsylvania have increased
from 6.6 million tons to 9.8 million in 1998.
In 2001, Fresh Kills Landfill serving New York City will close--
forcing the city to find new disposal sites for an additional 4.7
million tons of trash a year. They have already announced they will
rely on exporting waste to solve their disposal problem.
Trucks hauling trash make over 600,000 trips a year in Pennsylvania
alone, our inspections show a persistent 25 percent or more of these
trucks have safety and environmental violations.
These facts have increased our resolve and the interest of our
neighboring States in finding a regional solution to our waste issues,
but Federal legislation remains the only key to finding a solution to
the issue of unwanted trash imports.
In numerous decisions dating back to 1978, the U.S. Supreme Court
has ruled that the transport and disposal of municipal waste is
interstate commerce protected by the Constitution and that States do
not have the authority to limit the flow of waste across State lines,
until Congress grants them that authority.
Our democracy is built on the foundation of empowering people to
make choices. It is also built on fairness.
Our communities now have no voice in deciding whether millions of
tons of trash come to them for disposal from other States.
It is unfair that States like Pennsylvania, who have made the hard
choices to build recycling programs and promote waste management
programs to take care of the waste we generate, have no choice when it
comes to trash imports.
Pennsylvania has invested hundreds of millions of dollars in our
recycling and waste management programs over the last 11 years . We
have adopted the nation's toughest environmental standards for
landfills, built the nation's largest system of curbside recycling
programs, and helped put 10-year waste plans in place in each of our
counties. We now have over 130 companies that use recycled content in
their products, and our State government has supported such companies
by purchasing over 89 million dollars worth of these products last
year.
We have also taken a number of additional steps in recent months to
further improve our waste management programs.
Governor Ridge has proposed legislation for consideration by our
general assembly that would permanently reduce and cap municipal and
residual waste disposal capacity. He has issued an executive order to
impose daily volume limits at waste facilities, and to study the impact
of increased waste flows on public health, safety and natural resources
in the commonwealth.
However, all of the political and financial capital that we have
invested in this problem could be lost without Federal legislation.
Clearly, no State can resolve this issue on its own.
Many of the efforts Pennsylvania has made over the years to solve
our waste problem have only served to make it cheaper and easier for
other States to avoid meeting their responsibilities.
While we thought we were saving over 2 millions tons of landfill
space through increased recycling, that amount and more has been easily
eaten up by imported waste.
The people of Pennsylvania are asking Congress to give them a voice
in deciding whether trash from other States should come to their
communities for disposal. We are not seeking to build a fence at our
borders to turn back every waste truck or to turn our backs on the
legitimate needs of our neighbors. We are not asking for Federal money.
We are simply asking the Congress to give States the authority to place
reasonable limits on unwanted municipal waste imports in a planned,
balanced and predictable manner.
Specifically, Pennsylvania is seeking Federal legislation on
interstate waste that includes these provisions:
Give communities the ability to allow the disposal of imported
waste through host community agreements;
Impose a freeze on waste imports immediately with a predictable
schedule for reducing imports over time;
Allow States to impose a percentage cap on the amount of out-of-
State waste that a new facility could receive;
Allow States to consider regional need as part of the permitting
process;
Allow communities to adopt waste flow control ordinances to protect
existing bond debt.
In addition to the Governor's leadership in seeking Federal
legislation, I also want to mention that the Pennsylvania Senate and
the Pennsylvania House of Representatives recently passed resolutions
memorializing Congress to act on interstate waste legislation.
We are pleased to support the legislation sponsored by Senators
Voinovich and Bayh, long-time allies in the interstate waste battle, as
well as that of Senator Specter. Both of these bills would go a long
way to provide the waste controls that Pennsylvania needs.
We would also be pleased to work with Senators Robb and Warner to
make improvements to their bill, should the Committee see S. 533 as an
appropriate vehicle. However, in its current form, S. 533 would not
provide sufficient controls for Pennsylvania as it would lock-in the
unacceptable levels of waste imports we received in 1998, and not
provide us with the ability to reduce those levels.
We look forward to working with Congress to address this important
issue and to developing a consensus that will benefit all States and
communities.
______
Responses by James Seif to Additional Questions from Senator Graham
Question 1. What environmental, health, and safety risks from
municipal solid waste are not currently addressed by existing
transportation and waste management laws? Is there evidence that
unrestricted movement of municipal solid waste across State lines
results in bad waste management decisions?
Response. Certain environmental and health risks are not currently
addressed by existing transportation and waste management laws. Most
States currently do not have the authority to inspect and cite a waste
truck for environmental and health violations, i.e., leaking leachate,
mixing municipal waste with other waste (medical), and improper
covering or containment.
The unrestricted movement of municipal waste across State lines
does result in poor waste management decisions. For example, waste
haulers make approximately 600,000 trips a year across Pennsylvania
transporting millions of tons of waste. Many other States also
experience unnecessarily large volumes of trash transportation. It is a
poor waste management decision to allow such intense usage of our
highway system when municipal waste can be disposed locally.
Further, Pennsylvania's waste hauler inspection program, called
``Trashnet,'' demonstrates that 25 percent or more of the waste trucks
inspected failed to comply with basic environmental and safety
regulations. These waste truck inspections are conducted jointly by the
Department of Environmental Protection, the State Police, and the
Department of Transportation. Waste trucks show more frequent
violations than other hauling vehicles during highway inspections. In
one recent inspection sweep, citations were issued to over 600 of the
2100 trucks inspected for violations such as unsecured loads, bad
brakes, damaged axles, leaking trailers, illegal loads of waste, and
uncovered or improperly enclosed loads.
Question 2. Why should Congress allow States to restrict the
movement of municipal solid waste, but not other materials that are
more of a threat to human health and the environment, such as hazardous
wastes?
Response. Much of the interstate movement of hazardous waste is due
to the widely variable nature of hazardous waste. Hazardous waste can
take on many different forms and characteristics that require
specialized treatment and disposal techniques. Many times the
techniques are specific to a given type of hazardous waste. The waste
generated in one State may not be enough to economically justify the
siting of a specific type of treatment or disposal facility.
For example, in Pennsylvania, the prevalence of steel and its
associated manufacturing activities has led to a commercial hazardous
waste management industry in the State that is directed toward metal
bearing inorganic wastes. These commercial facilities play an important
role in managing wastes from steel making facilities in Pennsylvania,
as well as other States.
The hazardous waste industry. is also very integrated. In
Pennsylvania, there is no commercial capacity for fuel blending or
solvent recovery. To be managed by one of these methods, organic wastes
from generators in Pennsylvania must be sent to out-of-State
facilities. A large portion of these wastes are managed in States
adjacent to Pennsylvania. Much of the blended fuel is sent back to
Pennsylvania to be burned for energy recovery in the cement-making
process.
Municipal waste, on the other hand, is ubiquitous and can be safely
disposed of in normal landfills. The technology used to landfill the
waste is the same from one landfill to the next. It does not require
specialized treatment at facilities that must rely on imports of waste
to economically operate. All States in the union generate enough
municipal waste to economically operate a municipal waste landfill.
Question 3. Allowing restrictions on interstate transport of
municipal solid waste will make it more difficult to finance modern,
state-of-the-art landfills, resulting in waste continuing to be
disposed of in older, less protective facilities. How will States
ensure that waste disposal facilities are protective of human health
and the environment?
Response. Since 1988, all State environmental agencies are mandated
by Federal law (Resource Conservation and Recovery Act (RCRA) Subtitle
D) to adopt, at a minimum, Federal design, operation, and monitoring
performance standards as a part of their municipal waste base program.
All landfills constructed before 1988 in Pennsylvania were required to
upgrade to meet those requirements or to close. This is true in almost
all other States as well. In addition, all municipal waste
incinerators, regardless of the State, are subject to clean air laws
and regulations.
Reasonable limits on the interstate movement of municipal waste
will not interfere with financing of any landfills. The billion dollar
waste industry would continue to prosper and would not suffer if such
controls were implemented.
Question 4. Is there any evidence that interstate transport of
waste interferes with efforts to increase recycling and reduce land
disposal?
Response. Yes, States are working to increase recycling rates, but
they are thwarted by the unrestricted flow of municipal waste. In 1997,
Pennsylvania diverted 2.4 million tons from their municipal waste
stream. These recycling efforts resulted in the preservation of an
equal amount of landfill space. However, the preserved capacity was
easily consumed by waste imported from other States. This has created a
negative perception that business and public efforts to preserve their
natural resources through recycling are in vain.
Landfills are able to reduce their tipping fees based on long-term
contracts to import waste from other States. These reduced rates make
it difficult for municipalities to choose the more costly and
environmentally responsible option of recycling. The Commonwealth's
efforts to promote recycling and preserve its natural resources are
clearly being undermined by increased imports of municipal waste.
__________
Statement of Gary Sondermeyer, Assistant Commissioner New Jersey
Department of Environmental Protection
Good morning Mr. Chairman and distinguished committee members. My
name is Gary Sondermeyer and I serve as assistant commissioner for
environmental regulation at the New Jersey Department of Environmental
Protection. I have been involved with solid waste management in New
Jersey for nearly 20 years and have been an active participant in
national interstate waste and flow control discussions over the past 10
years. I greatly appreciate the opportunity to appear before you today
to update you on New Jersey's situation.
A great deal has changed since Congress last seriously debated the
need for interstate waste shipment and flow control legislation.
Nationally, the closure of Fresh Kills Landfill in New York and the
prospect of 13,000 tons per day, or almost 5 million tons per year, of
additional waste leaving the city has generated renewed interest and
concern. To put this in perspective, New Jersey exports about 2 million
tons per year. Recent data from 1997 and 1998 show that we are no
longer exclusively an exporter of solid waste. Today we are receiving
waste for disposal from New York, Connecticut and Massachusetts. With
the phased closure of Fresh Kills, exports to New Jersey for disposal
and transport through our State to disposal locations to our south and
west will increase. Significantly. also since the Carbone and the more
recent Atlantic Coast decisions, New Jersey has worked with our
counties to reconstruct the State's solid waste management system. As a
result, 15 of our 21 counties are now operating in a free market
environment. However, the State and counties are still faced with about
$1.2 billion of outstanding solid waste debt, the result of New
Jersey's 20 year program to achieve self-sufficiency and to handle our
own waste in an environmentally sound manner. Under our State plan, 31
state-of-the-art solid waste management facilities were constructed.
New Jersey's waste flow control rules had specifically been upheld by
the Federal district court as a valid exercise of State power in 1988.
The recent Carbone and Atlantic Coast decisions changed our course in
midstream.
As we move into this state-wide free market, tipping fees are
substantially lower, but inadequate funds, or in some cases no funds,
are being collected at our disposal facilities to pay down the $1.2
billion debt. To date, two counties have entered technical default and
the State has provided nearly $41 million to address stranded
investments in five counties.
The bond rating situation is also of significant concern. Rating
agencies have lowered the rates on almost all solid waste debt to below
investment grade. Moody's Investors has downgraded the individual
revenue bond rating for five counties to varying levels of junk bond
status. Standard & Poors has either downgraded or announced a risk of
being downgraded for seven additional counties.
During the past year and a half, the State has been very aggressive
in moving to a state-wide free market system. We have pledged over $200
million in debt relief through the combination of a public question
approved by New Jersey voters last year and general fund
appropriations. We have adopted emergency rules to streamline out
regulatory process. Our State treasurer has been conducting operational
audits of 13 of the 21 county systems to ensure that tipping fees are
as competitive as possible.
New Jersey has also entered a number of interstate agreements with
Pennsylvania, where we export most of our waste, which pave the way for
a coordinated approach to future solid waste management. In addition,
we are working with Governors' offices from 7 States across the
region--Ohio, Michigan, Indiana, Pennsylvania, Virginia, and New York
in a good faith effort to find common ground on the difficult issues of
waste disposal.
Despite these efforts, many of our counties still require long term
financial assistance. To add even more uncertainty, nearly challenges
remain lined-up in the courts to test the validity of county and State
actions taken since deregulation began.
New Jersey continues to believe in the philosophy that States
should be responsible for managing their own waste. We support
legislation to provide reasonable limits on out-of-State waste if it is
combined with limited flow control authority. We recognize that our old
system of flow control is gone, and we therefore seek only limited flow
control authority as a transition tool to be used by a small number of
New Jersey's 21 counties to pay off outstanding debt. The flow control
authority would only be allowed for the life of the bonds.
Toward this end, New Jersey supports S. 872 sponsored by Senators
Voinovich and Bayh. S. 872 would not establish an outright ban on out-
of-State waste shipments but would give States and localities the tools
they need to better manage their in-State waste disposal needs.
Further, S. 872 contains the limited flow control authority necessary
for counties and the State of New Jersey to rationally move to a free
market, to pay off outstanding debt, and to meet the interstate waste
limitations authorized in the bill. We also support S. 663 sponsored by
Senator Specter for these reasons.
Conversely, New Jersey cannot, at this time, support S. 533. It is
critical for New Jersey that any Federal interstate waste shipment
legislation to be balanced with at least a limited flow control
provision.
Federal legislation that both limits interstate waste shipments and
provides limited flow control authority provides the tools and
flexibility needed by the States and localities to rationally manage
solid waste.
I sincerely thank you for your kind attention and would be happy to
entertain any questions you may have.
______
Responses by Gary Sondermeyer to Additional Questions from Senator
Voinovich
Question 1. Why is flow control an essential element of an
interstate waste bill? Why do you believe that it is important for the
two issues to move together?
Response. The exercise of flow control provides the complementary
tool needed in some New Jersey counties, as well as others around the
country, to be able to comply with interstate waste shipment
restrictions.
As noted in my June 17 testimony, New Jersey supports limiting
interstate waste shipments, particularly in light of the closing of
Fresh Kills landfill in New York in 2001 and the substantial increase
in New York exports through New Jersey to other States that is
expected. New Jersey's flow control authority, first instituted in
1982, served several purposes. First, it was a financial tool to pay
for state-of-the art, environmentally sound municipal landfills and
resource recovery facilities necessary for the State to dispose our
waste within our own borders. Second, as we proceeded to develop this
increased disposal capacity over the past 20 years, it was an important
tool that allowed us to gradually decrease the amount of waste we
exported to other States. For example, from 1988 to 1994, New Jersey's
trash exports were cut by 50 percent. We were on a downward export
trend annually and we were well on our way to self-sufficiency. This
trend was interrupted by the 1994 Carbone decision and subsequent
Federal court challenges to New Jersey's flow control authority. During
the past 4 years, exports have leveled off at about 2 million tons per
year. By restoring limited and temporary flow control for New Jersey,
we will be able to resume our downward trend of solid waste exports,
thereby helping us meet interstate waste restrictions. Flow control for
New Jersey, and probably other counties, is the bridge that will
facilitate easing into interstate restrictions.
Question 2. Is the threat of default for your counties, or other
counties around the country, a real problem or just a perceived
problem?
Response. Through a combination of reduced bond ratings across the
State, inability to raise sufficient revenues through tipping fees, and
the ongoing and escalating need for the State to contribute funds to
keep county facilities afloat, our fiscal situation is tenuous.
The threat of default for some New Jersey counties and authorities
is not only real, it has already begun to occur. As noted in my June 17
testimony, two counties have already entered technical default by being
forced to tap dedicated reserve funds in order to meet quarterly bond
payments. In addition, the major rating agencies have lowered the rates
on almost all solid waste debt to below investment grade. These ratings
affect 12 of our 21 counties where solid waste bonds have been degraded
to junk bond status.
It is also important to point out that New Jersey is unique in its
public ownership of major solid waste disposal facilities. Of the 17
major landfill and waste to energy facilities operating in New Jersey,
13 are publicly owned. In addition, three of the four privately owned
facilities have contractual relationships with host counties and county
authorities that result in fiscal responsibilities at the county level.
As a result, it is accurate to say that the State, as well as the
State's entire solid waste disposal infrastructure, is at financial
risk through the continued inability to meet routine debt obligations.
To address the fiscal circumstances in our State, $210 million has
already been dedicated as an initial safety net for stranded investment
relief. To date, $41 million has been allocated to five counties in
order to avoid solid waste default. In addition, $107 million has been
authorized for direct debt relief in eight counties through voter
approval of a bond issue in November 1998. Of our 21 counties, six are
currently in significant fiscal difficulty and four additional counties
may find themselves in a similar situation within the next year.
The prospects for the balance of the year are also of great concern
to the State. We anticipate that at least four counties will fall short
in revenues toward satisfying debt payments over the balance of
calendar year 1999.
The entire bond rating situation discussed in my June 17 testimony
will also eventually compromise a county's ability to raise capital for
needed public works projects, such as roadways, bridges, or other vital
infrastructure improvements. In addition, the chance of reduced bond
ratings at the State level could have implications on the fiscal
integrity of the State of New Jersey that has consistently been held
among the highest bond ratings in the United States.
Question 3. While your testimony touches on this, could you please
explain how New Jersey finds itself in such a unique situation relative
to flow control?
Response. New Jersey is unique in its application of Statewide flow
control covering all 566 municipalities, as well as all non-hazardous
wastes including residential, commercial, industrial, institutional,
construction and demolition debris, vegetative waste, and animal and
food processing waste. We are also unique inasmuch as we applied a
mandatory statewide and legislatively imposed planning process that
covered every resident, business, industry, and institution located in
New Jersey. New Jersey's goal was to develop an environmentally sound
system that would allow the State to dispose its waste within our
borders. This system was held together through the imposition of
adopted statewide regulations which imposed flow control.
In answering this question, it is important to remember that the
entire issue of restricting interstate waste was first argued in New
Jersey. In the mid 1970's while our private landfills were being filled
with waste from the cities of New York and Philadelphia, New Jersey
attempted to block the interstate waste shipment of Philadelphia waste
in order to preserve its capacity for the health, safety, and welfare
of New Jersey residents. In the landmark decision of City of
Philadelphia vs. New Jersey, the U.S. Supreme Court found solid waste
to be an article of interstate commerce and covered under the
protection of the Commerce Clause of the U.S. Constitution. Following
our loss in the City of Philadelphia vs. New Jersey case, a statewide
planning approach was developed and our 21 counties became responsible
for developing comprehensive solid waste plans. Each district was
charged to develop 10-year master plans that would need to be renewed
every 2 years under the umbrella guidance of a statewide solid waste
management plan.
With the establishment of waste planning districts and the use of
flow control, counties began to develop solid waste plans and to
propose the siting of new solid waste facilities. Ultimately, 33
facilities were built; 12 double lined landfills; 5 state-of-the-art
energy recovery incinerators; and 16 modern transfer stations. To
compliment these efforts, our State Legislature adopted mandatory
recycling in 1987. Taken together, the siting of 33 major new
facilities and imposition of mandatory recycling put New Jersey in the
forefront of integrated solid waste management nationally. Flow
control, in conjunction with county planning became the lynch pin of
our system and the tool through which facilities were properly sized
and constructed to serve the long term needs of each planning district.
We have now struggled with piecemeal approaches to address the loss
of flow control for approximately 18 months. We have been able to avoid
full default. We continue to use short- term, temporary financial
assistance solutions that in no way eliminate the longer term fiscal
problem.
______
Responses by Gary Sondermeyer to Additional Questions from Senator
Graham
Question 1. What environmental health and safety risks from
municipal solid waste are not currently addressed by existing
transportation and waste management laws? Is there evidence that
unrestricted movement of municipal solid waste across State lines
results in bad waste management decisions?
Response. We do have concerns over the unrestricted movement of
solid waste negatively impacting management decisions at the local
level with respect to recycling New Jersey's mandatory recycling
program dates to 1987 and is among the most environmentally protective
in the nation. Through the designation of wastesheds and the State's
use of flow control, detailed analysis of waste composition occurred in
all the counties. Based on this composition analysis, some counties
have required programs to source separate batteries, fluorescent bulbs,
mercury switches, thermostats, computer screens, and other screens that
contain heavy metals. We have also required these counties through the
permit process to perform inventories of jewelry stores, camera shops,
metal platers and other industrial establishments in order to implement
education programs to avoid indiscriminate disposal of household
hazardous waste. New Jersey does not have the authority, nor does any
other State, to impose our recycling requirements on solid waste
imports.
Question 2. Why should Congress allow States to restrict the
movement of municipal solid waste, but not other materials that are
more of a threat to human health and the environment, such as hazardous
wastes?
Response. The human health and environmental protection aspects of
the design and operation of both solid waste landfills and hazardous
waste disposal sites are regulated by Federal EPA. States' interest in
having the authority to restrict interstate solid waste shipments has
more to do with local land use decisions to preserve long term disposal
capacity. Local land use is not an issue in regulating hazardous waste.
It has been recognized that planning responsibilities for solid
waste disposal can best be done at the State and local level. It has
been administered with extremely limited, and in many cases non-
existent, Federal oversight and guidance. The exception to this was the
recently adopted Part 258 landfill requirements which, for the first
time, brought some level of national consistency to the design and
operation of municipal solid waste landfills.
In contrast, Subtitle C of the Resource Conservation and Recovery
Act (RCRA) and subsequent amendments for hazardous wastes, have been
implemented with a highly regulated Federal approach, which States can
administer if delegated the authority. Both solid and hazardous waste
programs currently have the necessary built-in components to protect
public health and the environment.
Since the siting of hazardous waste disposal facilities is very
difficult to accomplish at the local level, many are located directly
where the waste is generated. This clearly is not the case for a
landfill, which accepts waste from millions of homeowners and
businesses. The local siting process for solid waste landfills can be
contentious for many other different reasons including increased truck
traffic, noise, and odors, which is why we believe local communities
and governments should have authority over the ultimate use of their
land.
Question 3. Allowing restriction on interstate transport of
municipal solid waste will make it more difficult to finance modern,
state-of-the-art landfills, resulting in waste continuing to be
disposed of in older, less protective facilities. How will States
ensure that waste disposal facilities are protective of human health
and the environment?
Response. With the Federal Part 258 landfill standards, substandard
landfills have been virtually eliminated. All New Jersey disposal
facilities are currently protective of human health and the
environment. Each has been designed to state-of-the-art standards and
has detailed solid waste, air, and water resource permits that guide
facility operations. In addition, the Department administers, as most
States do, a rigorous enforcement program to monitor the activities at
facilities to ensure their compliance with permit conditions.
Question 4. Is there any evidence that interstate transport of
waste interferes with efforts to increase recycling and reduce land
disposal?
Response. As we transition to a free market in New Jersey, we see
evidence of reduced recycling for waste being disposed both inside and
outside the State.
New Jersey has operated under a mandatory source separation and
recycling law over the past 12 years. Through State legislation and an
extremely aggressive approach to recycling, we have been able to obtain
a statewide total waste stream recycling rate of 61 percent and a
municipal waste stream of 42 percent.
As we move to deregulate our system in New Jersey, we have found
numerous cases where materials which should have been source separated
for recycling are commingled and shipped out-of-State for disposal.
Economic considerations and the convenience of not source separating
recyclable materials have, in most cases, been the motivating factor
for this type of activity. We are also concerned, that some out-of-
State facilities operate under the guise of recycling and really amount
to nothing more than landfills or other disposal facilities.
__________
Statement of Floyd H. Miles, Sr., Chairman Charles City County Board of
Supervisors, Providence Forge, Virginia 23140
Thank you for the opportunity of presenting the experience and
point of view of Charles City County concerning out of State waste. The
free market forces that brought a regional landfill to Charles City
County have been both an environmental and financial success story and
we are very concerned with any legislation that would arbitrarily
impact interstate commerce without any justification other than
political expediency.
By way of explanation, Charles City County is one of the original
shires established in Virginia in 1634 and, when they took the last
census in 1990, we had approximately 400 people more than when they
took the first census in 1790. We are located between Richmond and
Williamsburg on the James River, have almost no industry, no cities or
towns and no stop lights. We are essentially one of the poorest, if not
the poorest, county in eastern Virginia.
In 1987, the State of Virginia mandated that we close our local
landfill, which was typical of most landfills at that time, that is it
was an unlined hole in the ground without any monitoring wells.
Although the State mandated that we close this facility and replace
it with something else, no funds were made available to us. At the
time, our tax rate was $1.29 per hundred, which was the highest tax
rate of any rural county in the State. Even with this high tax rate,
our school system was physically deteriorated and we had no hope of any
significant improvements. The cheapest recognized alternative for
handling our solid waste at that time would have required a real estate
tax increase of at least 50 percent. \1\
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\1\ We considered building a new lined landfill by ourself, joining
another county to build a joint lined landfill, building a transfer
station and then transporting the garbage to another landfill or simply
paying a landfill operator to collect the County's waste at various
locations and to dispose of it.
---------------------------------------------------------------------------
None of these alternatives were acceptable to us and we proposed a
public-private partnership whereby a private company would operate a
regional landfill owned by the County, would do so under extremely
strict environmental safeguards and would still pay significant
revenues to the County. After many public hearings, the citizens of
Charles City supported this approach and a landfill operator was
selected. That led to the construction of the Charles City regional
landfill that now serves not only eastern Virginia, but cities along
the east coast. we recognized from the beginning, that if the landfill
design was going to be as stringent as we required to assure the safety
of our citizens, there would have to be a substantial amount of trash
brought to the landfill from outside of the County. We did not
discriminate at that time between trash from the City of Richmond or
northern Virginia and the trash of Newark or New York. The cost of
building an acre of landfill to our specifications, which is twice the
standard required by the State of Virginia and the Environmental
Protection Agency, is approximately $300,000.00 and we were willing to
trade off the handling of other people's trash in return for having
such a safe facility. \2\
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\2\ Both EPA and Virginia design requirements specify that new
landfills must have a liner system with a leachate collection system
above the liner to preclude leachate escaping from the landfill and
getting into the ground water. The Charles City license agreement
requires that our operator construct landfill cells with two (2) liner
systems and two (2) leachate collection systems and that they fund a
separate account of approximately $300,000.00 per year to allow the
County to hire independent engineers to monitor both the construction
and operation of the landfill on a weekly or daily basis as necessary.
The Virginia Department of Environmental Quality has its own inspector
view the landfill on a quarterly basis.
---------------------------------------------------------------------------
In addition to providing Charles City with an environmentally safe
landfill, our agreement has provided the County with a dramatic source
of revenue. Since the landfill began operation in 1990, we have
collected approximately 40 Million Dollars in payments. These funds
have allowed the County to reduce its tax burden for its citizens (it
is currently $0.72 per hundred), to replace completely its failing
school facilities, to expand its recreational program for its citizens
and to provide new office facilities for both County government and the
County School Board.
Because the regional landfill was such an unqualified success for
Charles City, a number of other Virginia counties have allowed regional
landfills to be placed in them. These counties are typically rural with
low tax base. As a result, Virginia now has seven (7) regional
landfills. We recognize the public pressure and concern that revolves
around the handling of trash, but this committee should recognize that
the drive to limit out of State trash has nothing to do with the
environment and every thing to do with politics. A review of the
actions of our Governor and our legislature during the most recent
session of the General Assembly that ended in February proves this
point. While the Governor and legislature bent over backwards to
discriminate against out of State waste, there was also a bill which
would have required the closure of unlined landfills that have been
demonstrated to be leaking and posing a threat to the environment of
Virginia. This bill received no support from the Governor and was
defeated by the legislature. So Virginia is left with officially
sanctioned leaking landfills while we are concerned today with the
quality of New York trash versus Richmond trash and what State is
number 1, 2 or 3 in terms of handling out of State trash. I should also
point out that there is a certain amount of hypocrisy in Virginia's
position, since all of our hazardous waste is disposed of outside
Virginia, primarily in Ohio and New York, and our nuclear waste is also
disposed of out of State.
Interstate commerce works and the extent to which it is restricted
will have real impacts on real people. The consequences of such a
restriction will be to increase arbitrarily fees for many generators of
solid waste and, at the same time, penalize counties who attempted to
meet the requirements of the State and EPA with environmentally safe
landfill facilities.
______
Responses by Floyd Miles to Additional Questions from Senator Voinovich
Question 1(a). What percentage of out-of-State waste enters the
Charles City County landfill annually?
Response. For the calendar year 1998 the percentage of out-of-State
waste entering the Charles City County landfill was 51 percent.
Question 1(b). How many tons of out-of-State waste enters the
facility annually?
Response. For the calendar year of 1998 the total tons of out-of-
State waste entering the Charles City County landfill was 359,366.
__________
Statement of Dewey R. Stokes, President, Board of County Commissioners,
Franklin County, Ohio, on behalf of the National Association of
Counties
I am Dewey R. Stokes, President of the Board of Commissioners of
Franklin County, Ohio. I am testifying today on behalf of the National
Association of Counties (NACo), which represents the over-3000 counties
in the United States. We are also speaking on behalf of several
individual local governments who are part of a coalition created
specifically to support flow control legislation.
We appreciate being invited to participate in this hearing. As you
know, counties have been before this committee on several occasions on
this subject. We are delighted to have a chance to again press our case
for Federal legislation to allow local governments to protect our huge
investments in our municipal solid waste facilities.
We commend you, Chairman Chafee, for holding this hearing, and for
allowing the longstanding issues of interstate waste and flow control
to again be brought before the Committee. I also want to compliment
Senator Voinovich for his dedication in solving these persistent
problems by sponsoring S. 872, legislation that is vitally important to
my county and many other communities. A similar bill, S. 663 by Senator
Specter, is similarly worthy of our praise.
A great deal of investment in public infrastructure has taken place
in the local governments that used flow control as a method to finance
facilities to dispose of solid waste. Since 1980, over $20 billion in
State and local bond issues were sold for solid waste facilities.
The need for legislation to grandfather these existing facilities
continues just as strongly today as it did when the U.S. Supreme Court
in 1994 decided the Carbone case (C. & A. Carbone, Inc. v. Town of
Clarkstown, NY, 114 S.Ct.)
No, we have not defaulted on our bonds--most communities have made
large financial sacrifices in order to meet those bond payments. Surely
no one would seriously suggest that flow control-reliant communities
must sustain an Orange County, California-type experience to justify
congressional action. To avoid default and bond downgrades, communities
have raised taxes, imposed new trash fees, cut back on waste management
and recycling services, and drawn down reserve funds.
Nationally, credit-rating agencies downgraded debt ratings for 17
local and State solid waste authorities. Moody's downgraded 15 issues,
of which approximately half were downgraded to ``junk bond'' status.
Junk bond status, as I'm sure you know, means that the bonds are
speculative and carry a significant risk that they will not be re-paid.
In addition to the downgrades, Moody's has 19 additional bond
issues in the ``unstable credit watch'' category, due specifically to
the absence of Federal legislation. As litigation by trash companies
continues to be brought against counties and cities, the downgrades
will also continue. The total outstanding debt that has either been
downgraded or put on a credit watch for potential downgrading by the
rating agencies since the Carbone case is over $2.3 billion by local
public agencies.
What does this mean? It means that when a county goes to the bond
market to borrow funds for other public projects--like jails or bridges
or schools--the interest rate is significantly higher. This additional
cost is borne by local taxpayers--small businesses as well as
residents.
In Franklin County we have over $160 million of ``stranded''
investment in a waste-to-energy facility that was closed on the heels
of the Carbone decision. After the Carbone ruling we had to impose a $7
per ton fee--a waste tax--on all municipal solid waste generated in
Franklin County and disposed at in-State landfills. We had to take that
action to generate sufficient revenue to meet our debt obligations due
to the Carbone decision and the Congress' failure to help us.
My community will do everything possible to prevent a bond default
and keep our bond rating, and I would expect communities everywhere to
do the same thing. Surely bond defaults will not somehow be the litmus
test for flow control legislation.
In this regard, I must emphasize that the flow control provisions
of S. 872 and S. 663 are exactly the same as--I repeat, exactly the
same--as the stranded costs protection provisions of the electric
utility restructuring legislation that is supported by many of the
Senate's most staunch advocates of a free market economy. Under that
legislation, no electric utility will have to sustain a bond downgrade,
or worse yet, a bond default, to be eligible for financial protection.
Local governments are equally deserving of protection on the same
basis--without being forced to sustain more downgrades, more local tax
increases, and more litigation. We ask only for equitable treatment.
Simply put, the Carbone decision in 1994 changed the rules in the
middle of the game. S. 872 and S. 663 provide narrow ``grandfather''
authority for pre-Carbone uses of flow control to assist affected
communities in making the transition. If enacted, flow control
authority can be re-instituted only for those communities that
initially used flow control before May, 1994.
Let me emphasize that the flow control provisions of S. 872 and S.
663 are self-limiting. Once pre-Carbone debt is paid off, a community's
authority under these bills terminates.
Opponents claim that flow control is a ``hidden tax''. Nothing
could be further from the truth. The reality is that the absence of
flow control authority has forced increased taxes and fees in many
counties and cities. That is hardly a surprise--our debt obligations
did not go away with the Supreme Court's Carbone decision. If that debt
expense is not recovered through flow control-supported user fees, it
will have to be recovered by increasing taxes or imposing new fees.
There is no free lunch.
We hope that this Committee will join with the Senators who have
sponsored the flow control bills and temporarily give us back what the
Supreme Court took away. We urge you to support S. 872 and similar
bills.
We also want to commend Sen. Voinovich for addressing the issue of
interstate waste in his bill. Like my counterparts in many other
States, we want to make sure that our communities have some control
over waste imported from other States--whether to welcome it or reject
it. The closing of New York's Fresh Kills landfill in just 2 years only
makes the situation more critical.
But I urge you to remember that controlling interstate waste is
only one half of the coin. Without the ability to keep waste at our own
facilities, our local waste will be exported to cheaper landfills
further west and south, and then more States will have to deal with the
problem. I hope we can finally resolve this difficult issue, and we
stand ready to help.
__________
Statement of Grover G. Norquist, President, Americans for Tax Reform
I. Introduction
Chairman Chafee, members of this subcommittee, and ladies and
gentlemen in the audience, thank you for the opportunity to address
you. I addressed this committee on the same topic we are discussing
today in March 1997. Nothing has changed since this period, nothing,
none of the dire predictions of the proponents of flow control of
massive foreclosure, to warrant the reimposition of flow control.
My name is Grover Norquist and I am the president of Americans for
Tax Reform (``ATR''). As you may know, ATR is an organization comprised
of individuals, corporations, and associations that favor lower taxes,
less regulation, and a smaller Federal Government. We do not accept any
Federal grant money nor do we benefit from specific Federal programs.
I come before you today to speak briefly about the free market,
taxes, interstate waste restrictions and flow control legislation.
II. Americans for Tax Reform Opposes Interstate Waste Restrictions and
Flow Control
Americans for Tax Reform believes that flow control promotes
wasteful and inefficient practices at the expense of free market
principals. It is anti-competitive, anti-taxpayer, and anti-growth. How
else would one define the practice of permitting local governments to
set up government-run trash disposal monopolies that virtually
eliminate private-sector competition? I said in March 1997 and I will
restate it now. ATR will score a vote for flow control and interstate
restrictions as a vote for higher taxes.
In essence, flow control dictates where municipalities and
businesses send their waste, and then artificially sets prices for
disposal at above-market rates. These additional expenses are passed
directly on to consumers in the form of higher costs for goods and
services. In effect, flow control is a stealth tax. It is critical to
remember that such costs will not be borne solely by corporate
America--individuals, families, senior citizens and persons on fixed
incomes will all shoulder the tax burden of flow control, and the
larger government bureaucracy that it requires.
Moreover, the concept of flow control goes against free market
principles. As you may know, the Supreme Court struck down local flow
control regulations in 1994 in the case of Carbone v. Clarkstown, NY.
The Court found that state-mandated flow control infringed upon
interstate commerce. ATR believes that any interference with
unrestricted movement of goods and services undermines the free market,
and therefore, harms the American taxpayer.
At a time when Congress is empowering communities and individuals,
in such cases as welfare reform and agricultural policy, the last thing
our elected officials should consider is concentrating more power in
the hands of elected officials. One cannot reconcile a theoretical
commitment to a leaner and smarter government with the concept of a
state-run monopoly that precludes private sector competition.
III. The Costs of Flow Control
ATR is proud to join with other champions of the free market on
this issue. As Jersey City, NJ Mayor Brett Schundler so eloquently put
it, flow control legislation ``would institutionalize one of the worst
excesses of the 'big government knows best' mentality that has long
dominated Congress. . . we're forced to spend money on waste disposal
that we would rather use for schools or police.''
We've also seen a broad and diverse business coalition form around
this issue. Representing organizations such as the National Federation
of Independent Business, the National Restaurant Association, the
National Association of Manufacturers, and the Association of Builders
& Contractors, the Coalition Against Oppressive Flow Control has
written: ``Small business owners strongly oppose flow control because
it would allow local governments to dictate where small business must
send their waste and it allows these governments to set monopoly
prices.''
In another statement, the National Association of Manufacturers
says: ``flow control embodies the worst of all government monopolies--a
hidden tax in the form of higher prices, reduced efficiency, a more
intrusive government and a stifled free market.''
And finally, Karen Kerrigan of the Small Business Survival
Committee has explained: ``Flow control is nothing short of centralized
State planning that harms individuals, families, and businesses. It
raises taxes, increases the size of government and hurts American
consumers.''
I couldn't agree with them more.
Perhaps as a way of summary, let me present four arguments against
flow control. In so doing, I also hope to answer Chairman Smith's
questions about what happens to communities in the absence of such
regulation.
1) Flow control is nothing but a trash tax. ATR firmly believes
that a vote to reinstate the practice of flow control is a vote to
raise taxes. Flow control is a stealth tax--a hidden burden imposed on
families and businesses by artificially inflating the price of waste
collection. The American people already pay too much in taxes. We do
not need yet another tax increase. Voters know that taxes on businesses
are ultimately borne by consumers and taxpayers in the form of higher
prices, lower economic growth, and fewer jobs. ATR will work to make
sure that the American people understand the harm done to them if flow
control is enacted.
2) Flow control costs jobs. We know that flow control means small
business can no longer shop around for the best price for its trash
collection. Consequently, entrepreneurs face higher prices and have
less money to pay their workers or hire new ones. Moreover, with scarce
resources being diverted to pay increased ``garbage taxes,'' there is
less money for businesses to invest in their own communities. That
means fewer private-sector jobs.
3) The cost of waste disposal is declining thanks to free market
principles already in place. In the 3 years since local flow control
was suspended, the price of waste collection has dropped. Contrary to
the dire predictions of unelected bureaucrats, communities are not just
surviving, but actually growing without flow control in place. The free
market has forced inefficient government agencies that used to rely on
flow control to become more efficient. This has lead to lower costs for
homeowners and small businesses. For example, people under the
regulation of Virginia's Southeastern Public Service Authority have
seen prices cut by over 20 percent. Within Hennepin County, Minnesota,
disposal prices have been slashed by 50 percent, from a high of $95/ton
to $41/ton. In contrast, a study by the National Economic Research
Associates reveals that flow control can actually increase the cost of
waste collection by as much as 40 percent.
4) Flow control impedes market-oriented environmental and recycling
efforts. The EPA has found that flow control fails to facilitate
recycling or create other environmental benefits. I never thought that
I would be united with Greenpeace, the Sierra Club, and the Audubon
Society, but on this issue we agree. According to one environmental
activist: ``Flow control laws discourage environmental innovation . . .
Congressional authorization of flow control could inhibit the
development of alternative waste management options, including market-
driven recycling efforts. Flow control laws unnecessarily inhibit the
ability of recyclers and other ecological entrepreneurs to compete in
the marketplace.''
IV. Conclusion
As many of you know, I have relentlessly fought over the years for
a smaller Federal Government and lower taxes. There could hardly be a
better example of how Washington could threaten these principles than
today's fight over flow control. The lines are cleanly drawn in this
battle. On one side are the flow control proponents advocating a
government-sanctioned monopoly. On the other side are the champions of
the free market, American consumers, and the millions of small
businesses across our nation. The choice could not be clearer.
Americans for Tax Reform strongly urges this Committee to protect
American taxpayers and strike a blow for the free market. We urge you
to oppose anti-competitive, anti-small business and anti-taxpayer
programs such as the proposed flow control regime.
______
Responses by Grover Norquist to Additional Questions from Senator
Graham
Question: You advocate that a free market for waste disposal
services provides the lowest cost for consumers. Given that two
companies dominate the municipal waste disposal market in the United
States, do consumers really have a choice of providers? Is there true
competition in the marketplace?
Response. Whether a market is competitive is not determined by how
many producers exist. There are many milk producers in America. But the
Congress has created so many cross subsidies and barriers to entry that
it is not a competitive or free (or rational) market.
When I was at college, I was taught by very well educated idiots--
my professors--that the fact that there were three major car companies
meant there was not a free market. I suggested, this is back in the
1970's, that entry was available from foreign car manufacturers and
that unless tariffs or non-tariff barriers were erected by Congress
this would keep the US car market competitive even with only three
domestic producers. This I was assured was silly. Then in the 1980's,
we discovered that there was relative ease of entry from Japan, Korea,
Italy, Britain and Germany.
I understand that Congress, the EPA and State and local regulators
have created many barriers to entry to the creation of new waste
disposal sites and to waste carriers. You ought to stop doing this. You
should undo the damage you and EPA and State and local governments have
done by creating needless barriers to entry. No fair creating barriers
to entry and then whining that there are not enough entrepreneurs
willing to brave your barriers.
Actually, my testimony didn't deal with a free market in waste
disposal services--as important as that issue is. I focused on the
threat to the commerce clause presented by demagogic politicians who
threaten interstate commerce and the commerce clause by playing to
voters understandable antipathy to ``icky'' industries. I also spoke
against ``flow control'' which is nothing less than an attempt by
corrupt and incompetent local governments that got themselves involved
in the waste disposal businesses--where they had no business being in
business--and then found that they could not compete in the market and
want the government to ``force'' citizens to use their overprices,
featherbedded, and otherwise wasteful facilities.
__________
Statement of Robert Eisenbud, Director of Legislative Affairs, Waste
Management
Mr. Chairman, I appreciate the opportunity to testify today on
proposed interstate waste legislation on behalf of Waste Management,
the world's largest publicly held solid waste management company.
In the United States, Waste Management companies provide municipal
solid waste (MSW) collection, recycling, and disposal services in all
the States. Waste Management operates more than 300 solid waste
landfills and 23,000 waste collection and transport vehicles serving
approximately 1.6 million commercial and industrial customers as well
as 19 million residential customers. In addition, through Wheelabrator
Technologies, Inc.'s 14 waste-to-energy plants, we produce energy from
waste for the 400 communities they serve.
We provide these services in a heavily regulated and highly
competitive business environment. Like all businesses, we are keenly
interested in proposals, such as restrictions on the interstate
movement of MSW, that would change that regulatory or competitive
environment, and threaten the value of investments and plans we have
made in reliance on the existing law.
In the balance of this statement, I will try to share with the
Committee our reasons for concern and opposition to the proposed
legislation before you. I will discuss the background and context as we
see it, and suggested criteria for evaluation of legislation. I will
then comment briefly on the Fresh Kills issue as well as the bills
under consideration and proposals to restore flow control. More
detailed comments on the bills are set forth in attachments to this
statement.
The Scope of Interstate Movements
Approximately 8 percent of the MSW generated in the United States
is shipped across State lines for disposal. These shipments form a
complex web of transactions that often involve exchanges between two or
more contiguous States in which each State both exports and imports
MSW. An August 1998 Congressional Research Service report documents
interstate movements of MSW between 43 States during 1997, involving
exports by 33, and imports by 36 States. Nineteen States both exported
and imported more than 100,000 tons of MSW.
The report explains that there are several factors contributing to
these interactions. In some States, areas without disposal capacity are
closer to landfills, or to less expensive disposal, across a border at
strategically located regional landfills.
The Role of Regional Landfills
The CRS report notes that the number of landfills in the US
declined by 46 percent between 1993 and 1997 as small landfills have
been closed in response to the increased costs of construction and
operation under the Federal RCRA Subtitle D and State requirements for
environmental protection and financial assurance. The number of
landfills in the early 1990's was nearly 10,000; today there are about
2,600, and the total number continues to decline as small landfills
close, and communities in ``wastesheds'' turn to state-of-the-art
regional landfills that are able to provide safe, environmentally
protective, affordable disposal.
Construction and operation of such facilities, of course, requires
a substantial financial investment. By necessity, regional landfills
have been designed in anticipation of receiving a sufficient volume of
waste from the wastershed, both within and outside the host State, to
generate revenues to recoup those costs and provide a reasonable return
on investment.
It was widely recognized that the costs to most communities of
Subtitle D-compliant ``local'' landfills were prohibitive. The
development of regional landfills was not only entirely consistent with
all applicable law, it was viewed and promoted by Federal and State
officials and policy as the best solution to the need for economic and
environmentally protective disposal of MSW.
Waste Management's experience and activities in Virginia, where it
operates 5 regional landfills, is illustrative of the role that these
facilities play throughout the country. While I will defer to the
comments of Mr. Miles and refrain from detailed comments about the
Charles City County landfill, let me just describe the situation
generally and provide a few details for you.
There are 7 regional landfills and 63 local landfills in Virginia
that accept MSW. All of the regional landfills have been sited,
constructed, and operated with liners, groundwater monitoring wells,
and the other requirements of Subtitle D Standards. By contrast, 30 of
the local landfills have no liners, and operations at 15 local
landfills have resulted in contamination of the groundwater. No action
is scheduled to abate the problems or close the leaking local
landfills.
Meanwhile, the regional landfills provide safe and affordable
disposal as well as significant contributions to the local economy
through host fees, property taxes, and business license fees, totaling
about $18 million from our 5 sites in 1998 alone. Additional
contributions to the communities include free waste disposal and
recycling services, and in some cases assumption of the costs of
closing their substandard local landfills. These revenues and services
enable the host communities to improve and maintain infrastructure and
public services that would otherwise not be feasible.
The Broader Context
The proposed legislation before you would radically disrupt and
transform the situation I have described. For that reason, as well as
the precedential nature of some of the provisions, let me suggest that
you consider those bills in a broader context.
The applicability of the Commerce Clause to the disposal of out-of-
State MSW has been well established by a long line of decisions by the
U.S. Supreme Court spanning more than 20 years. The Court has
consistently invalidated such restrictions in the absence of Federal
legislation authorizing them.
Throughout this period, companies like Waste Management have done
what businesses do: they have made plans, invested, written contracts,
and marketed their products and services in reliance on the rules,
which clearly protected disposal of out-of-State MSW from restrictions
based solely upon its place of origin.
In this fundamental sense, the interstate commerce in waste
services is like any other business, and proposed legislation to
restrict it should be evaluated in the broader context of how you would
view it if its principles and provisions were made applicable to other
goods and services, rather than just garbage.
Consider, for example, parking lots. Suppose a State or local
government sought Federal legislation authorizing it to ban. limit, or
charge a differential fee for parking by out-of-State cars at privately
owned lots or garages, arguing that they were using spaces needed for
in-State cars, and that the congestion they caused was interfering with
urban planning, etc. Or suppose they asked for authority to tell
privately owned nursing homes or hospitals that they couldn't treat
out-of-State patients because of the need to reserve the space,
specialized equipment, and skilled personnel to meet the needs of their
own citizens. Similar examples can easily be identified--commercial
office space for out-of-State businesses, physicians and dentists in
private practice treating out-of-State patients, even food or drug
stores selling to out-of-State customers.
I would hope that in all of these cases, you would respond to the
proponents of such legislation by asking a number of questions before
proceeding to support the restrictions: What kind of restrictions do
you want? Are they all really necessary? Can you meet your objectives
with less damaging and disruptive means? What about existing
investments that were made in reliance on the ability to serve out-of-
State people? What about contracts that have been executed to provide
that service? Would authorizing or imposing such restrictions be an
unfunded mandate on the private sector providing those services, or on
the public sector outside the State that is relying on them? Would such
restrictions result in the diminution of the value of property
purchased in reliance on an out-of-State market, and thereby constitute
a ``taking''? Will the restrictions be workable and predictable? I
respectfully suggest that you ask the same questions about the proposed
legislation involving restrictions on interstate MSW.
Suggested Criteria
At some risk of oversimplification, the questions and concerns
described above can be captured in 3 criteria by which to evaluate the
proposed legislation; would the legislation provide Protection,
Opportunity, and Predictability?
I hope the need for Protection is obvious. Good faith investments
made in reliance on existing law should be protected. So, too, should
the good faith decisions of local governments to enter Host Community
Agreements approving receipt of out-of-State waste. Similarly, legally
binding contracts entered into before enactment of a change of rules
must be protected out of fairness and to avoid sending a terribly
threatening signal about the reliability of contracts, which constitute
a fundamental building block of our economy.
The Opportunity criterion refers to the need to ensure the
opportunity to compete in a lawful market that demands services, and to
grow by virtue of the quality of the services offered. Discriminatory
or arbitrary measures that deny or limit entry or participation in a
market are simply bad policy that runs counter to the overwhelming
trend in this country. They deny the public the benefits of
competition.
By ``Predictability'', I intend to suggest that we need to know
what the rules are. While nothing Is entirely certain or predictable in
business or life, legislation should not add to market dynamics
uncertain, external factors that allow for a change of rules based on a
change of political winds or even personal whim. Business planning is
rendered futile in the face of such uncertainties.
The Proposed Legislation
When measured against the suggested criteria, all the proposed
legislation before you (S. 533, S. 663, and S. 872) fail on all counts.
None of the bills provides the Protection for host agreements,
investments or contracts that they deserve. None of the bills preserves
an Opportunity for entry into and growth in a market that demands
economic and protective waste disposal. Finally, none of the bills
provides Predictability about the rules that will apply to interstate
shipments of waste. The array of discretionary authorities for
Governors to ban, freeze, cap, and impose fees, and then change their
minds over and over again, promises to result in chaos and a totally
unpredictable and unreliable market and waste disposal infrastructure.
The ``Fresh Kills Issue''
My comments thus far have dealt with interstate waste shipments
generically, because the bills before you are applicable throughout the
Nation. Let me turn now to comment on the ``Fresh Kills Issue'' that
has attracted so much attention and motivated, at least in part, some
of the legislative proposals.
In doing so, I want to stress that it is New York, not Waste
Management, that has decided to close Fresh Kills landfill, and to
request proposals for disposal of its MSW outside New York City. We are
competing for that business. Our shareholders expect us to do so.
My purpose here is not to speak for New York State or the City, but
rather to suggest that you consider the implications of two facts that
have largely escaped attention.
First, the fact is that New York is not the largest exporter of MSW
when measured as a percentage of the MSW a State generates. Nine States
(DE, MD, NJ, RI, VT, LA, IL, MO, ID) and the District of Columbia all
exported a greater percentage of their waste than the 13 percent
exported by New York.
Second, New York City has committed to send Fresh Kills waste only
to landfills in communities that have approved receipt of out-of-State
MSW.
As a matter of policy, exactly what's wrong with a State exporting
13 percent or some similar percentage of the waste it generates to
state-of-the-art landfills in communities that have approved receipt of
out-of-State waste? If there is something wrong with it, precisely what
must be changed, why, and how will legislation accomplish it?
Flow Control
Finally, let me comment briefly on the proposals in S. 633 and S.
872 to restore flow control authority.
We oppose restoration of flow control because we believe that it's
simply too late to put Humpty Dumpty back together again. Restoration
of flow control is neither feasible nor desirable.
In the 5 years since the Carbone decision, landfills and transfer
stations have been constructed, trucks have been bought, people have
been hired, contracts have been written, and both the consumers and
providers of waste services have experienced the benefits of a
competitive market. These investments and arrangements cannot be
undone, nor should they be.
There is also good reason to question whether these flow control
provisions, based on an approach crafted 3 years ago, are even needed
any longer. Federal court decisions have upheld the use of waste
districts, generation fees, and competitively awarded contracts as
means to direct waste or provide funding to formerly flow controlled
facilities.
Thank you, Mr. Chairman. That concludes my statement.
Attachments
what's wrong with s. 533?
The provisions of S. 533 would result in unfair, unnecessarily
severe, and probably unworkable restrictions on the interstate movement
of waste that would abrogate contracts, diminish the value of private
property and investments, void decisions by local governments, increase
the cost of waste disposal, and disrupt existing and planned
arrangements for waste disposal services. These problems are
illustrated by the provisions discussed below.
Federal Presumptive Ban: Proposed new section 4011(b)(3) at page 13
imposes a Federal ban on receipt of out-of-State (OOS) municipal solid
waste (MSW) unless the landfill is exempted from the ban (1) as a
result of an existing or new Host Community Agreement (HCA) approving
receipt of OOS MSW, (2) because it is located in a bi-State
metropolitan statistical area, or (3) because it accepts for disposal
less than 10,000 tons per year. Unlike other pending bills, there is no
exemption for landfills that received OOS MSW in past years, or for
those with State permits authorizing its receipt.
The ban is effective immediately upon enactment of the new section
unless a State opts out under subsection (g) at page 25. As a result,
every community in the Nation that hosts a facility without an HCA or
other basis for exemption will be required by Federal law to expend the
time and money to conclude an HCA in accordance with the elaborate and
extensive requirements of proposed new section 4011(d) at pages 13-19,
if it wants the facility to be able to receive OOS waste. This Federal
requirement to spend time and money would be imposed even if the
community had no desire to limit receipt of OOS MSW. The immediate
effectiveness of the ban means that the flow of OOS MSW to facilities
in those communities will be immediately and entirely cut off until
they conclude the HCA process.
Moreover, even those communities that have concluded an HCA will be
at risk as well, since there is no provision for resolving potential
disputes about whether the facility is exempt from the ban. What agency
enforces the ban? What is the penalty for violation of the ban? What
courts have jurisdiction over disputes about the validity of HCAs? What
happens to the flow of waste while the dispute is pending in the
courts?
Freeze Authority: Subsection (b)(1) at pages 8-9 gives the Governor
of any State that imports more than 1 million tons a year immediate
discretionary authority to freeze imports at the 1998 level, even at
landfills with valid HCAs. Thus, the facilities that escaped the
presumptive ban because of their HCAs are subject to a freeze on
volumes, and the decisions of local governments to allow imports are
voided.
Super Exporting State Ban: Subsection (b)(2) gives the Governor of
any State the discretionary authority, beginning in 2001, to ban all
imports of OOS MSW from ``super exporting States'' that export more
than 6 million tons per year. Here again, this authority applies to
facilities with HCAs, thereby again vitiating the decisions of local
elected officials.
Discretionary Adjustments of Freeze and Ban: Subsection (b)(3)
gives any Governor who imposes the freeze or super exporting State ban
the authority to adjust either one so as to give some landfills special
privileges (exemptions), while imposing them on others.
Interestingly, a Governor's failure to respond to a request for an
exemption is deemed an approval in the case of the freeze (page 11),
but not in the case of the ban (page 12). Why not? What is an affected
local government that receives no response supposed to do? More
fundamentally, this discretionary authority to grant special exceptions
would seem to invite the most undesirable political machinations and
favoritism, making sound business planning by disfavored competitors
virtually impossible. Indeed, planning by even the favored landfill and
community will be in jeopardy of a change of political winds, since
there is nothing irrevocable about the grant of an exception.
Contract Protection: There is no protection for legally binding
contracts entered into before enactment of the legislation. The Federal
ban, the freeze, the super exporting State ban, and the fees could all
impair or abrogate such contracts.
While the discretionary actions of a Governor might be challenged
successfully as violations of the Contract Clause of the U.S.
Constitution, doing so would entail substantial expense and time,
during which performance of the contract would be impaired.
The absence of explicit language protecting contracts is even more
troubling in the context of the Federal ban. Imports pursuant to a
contract entered into before enactment will likely not be protected
from the ban because the Governor of the importing State would not have
a role in banning the import; it would be prohibited by the Federal
statute. State law is not likely to provide protection from a Federal
ban. Conversely, the Contract Clause applies only to actions by a State
that abrogate a contract, so it would not protect the contract flows
either.
Fees: Subsection (f) at pages 22-23 authorizes any State to impose
a fee of up to $3 per ton of OOS MSW beginning in 2001 and a fee on OOS
MSW from a super exporting State of $25 per ton in 2002, $50 per ton in
2003, and $100 per ton in 2004.
Unlike other pending legislation, there is no requirement that a
State show that there is an unrecovered cost to the State for
management of OOS MSW, nor is there an offset for benefit fees
voluntarily paid to a host community. Moreover, like all the other
discretionary authorities in this proposed section, there is nothing
irrevocable about the decision of a Governor to impose or not impose a
fee. As a result, fees can be imposed, then lifted, then imposed again,
and so on, creating virtual chaos in the market, and foiling the best
efforts of exporters, importing facilities, and host communities to
predict, plan, contract, and invest based upon reasonable expectations
and normal business dynamics.
Public vs. Private Sector: Although the text is not entirely clear
or consistent, it appears to discriminate against the private sector
and to favor the public sector by exempting from restrictions landfills
owned or operated by a State or local government (page 7, line 20
through page 8, line 2). Why should a decision by an affected local
government to allow receipt of OOS MSW at a privately owned/operated
landfill be irrelevant, but so relevant for a publicly owned facility
that no restrictions at all are imposed?
Reporting Requirements: Subsection (e) at pages 19-22 establishes a
complicated, burdensome, and probably unworkable reporting system by
which to determine the amount of MSW exported and imported by each and
every State during the preceding year. Among the difficulties posed are
the following:
The ``owner or operator'' of a landfill does not include
States or local governments under subsection (a)(8) at page 7, so
publicly owned/operated landfills will not report under subsection
(e)(1)(A), and the data will therefore be incomplete;
States are given only 30 days after receipt of data from
landfills, and EPA is given only 30 days to compile their reports. Such
expeditious action is both unreasonable and unprecedented;
States are required by subsection (e)(2)(A)(ii) to report
the quantity of MSW exported during the preceding year. Exactly how are
they expected to determine that amount? Few, if any, States currently
gather such information on a comprehensive basis;
Subsection (e)((2)(B)(iv) at page 20 requires States to
report the ``identity'' of the generator of MSW. If this is meant to
require the name of each person generating MSW, it is both impossible
and irrelevant; and
Subsection (e)(2)(D) at page 22 precludes judicial review
of the list prepared by EPA. What, then, is an aggrieved party to do if
the data, upon which bans, freezes and fees are based, are clearly
erroneous?
TSCA-Regulated Waste: Subsection (a)(6) excludes from the
definition of the MSW covered by the bill hazardous waste listed under
section 3001, but waste regulated under the Toxic Substances Control
Act is not excluded. The failure to expressly do so suggests that
receipt of OOS TSCA-regulated waste at any landfill or incinerator is
subject to the bans and limits of the bill.
Drafting Uncertainties: It is unclear as to whether incinerators
are covered by some of the restrictions in the bill. ``Incinerator'' is
included under the definition of affected local government, host
community agreement, and owner or operator, but not elsewhere. The
intended role of the subsection (a)(2) ``affected local solid waste
planning unit'' is also unclear.
what's wrong with section 2 of h.r. 1190 and s. 663?
Section 2 of H.R. 1190 and S. 633 would abrogate contracts,
diminish the value of private property and investments, void decisions
by local governments, increase the cost of waste disposal, and disrupt
existing and planned arrangements for waste disposal services. These
problems are illustrated by the provisions discussed below in the order
in which they appear in the bill.
Federal Presumptive Ban: Proposed new section 4011(a) at page 2
imposes a Federal ban on receipt of out-of-State (OOS) municipal solid
waste (MSW) unless the landfill or incinerator is exempted from the ban
(1) as a result of a Host Community Agreement (HCA) approving receipt
of OOS MSW, (2) because it has a permit authorizing its receipt, or (3)
because it has entered into a binding contract for a specific quantity
of OOS MSW. All three of these purported exemptions are either much
more limited than they appear or entirely illusory, as discussed below.
The ban is apparently effective immediately upon enactment of the
new section. As a result, every community in the Nation that hosts a
facility without an HCA, permit or contract for receipt of OOS MSW will
be required by Federal law to expend the time and money to conclude an
HCA in accordance with the elaborate and extensive requirements of
proposed new section 4011(c) at pages 3-7, if it wants the facility to
be able to receive OOS waste. This Federal requirement to spend time
and money would be imposed even if the community had no desire to limit
receipt of OOS MSW. The immediate effectiveness of the ban means that
the flow of OOS MSW to facilities in those communities will be
immediately and entirely cut off until they conclude the HCA process.
Moreover, even those communities that have concluded an HCA or host
facilities that have permits or contracts will be at risk as well,
since there is no provision for resolving potential disputes about
whether the facility is exempt from the ban. What agency enforces the
ban? What is the penalty for violation of the ban? What courts have
jurisdiction over disputes about the validity of HCAs, permits, or
contracts? What happens to the flow of waste while the dispute is
pending in the courts?
Definition of ``Complies'' and ``Compliance'': The exemptions from
the Federal ban are contingent on the facility being in ``compliance''
with Federal and State laws and regulations (page 11, lines 3-17) and
with all of the terms and conditions of a permit authorizing receipt of
OOS MSW (page 9, line 5), as well as the terms and conditions of the
HCA (page 2, lines 24-25). This is a giant loophole, since the terms
are not defined. Unless they are adequately defined, arbitrary and
capricious action by State officials could lead to closure of a
facility to all OOS MSW because of a litter violation, a 1-day delay in
filing of a required report, or other minor infraction. Moreover, there
is no mechanism for disputing the alleged non-compliance or any
requirement that it be proven. A mere allegation of non-compliance
would appear to suffice.
State Laws on HCAs: Proposed new subsection (C)(6) at page 8, lines
2-6 would authorize States to enact laws governing the entry by an
affected local government into an HCA. There is no requirement that
such laws be consistent, or not inconsistent, with the provisions of
the section. Thus, for example, a State might enact a law requiring
approval of a proposed HCA by the Governor or legislature of that
State, or impose other requirements that would effectively preclude
HCAS.
Contract Protection: Receipts of OOS MSW under certain legally
binding contracts entered into before March 18, 1999 are explicitly
protected from the ban by subsection (d)(1)(B)) at page 9, line 12-page
10, lines 1-7. In addition to the fact that this means that no
subsequent contracts would be protected, even if the bill is not
enacted for more than a year, the pre-March 1999 contracts will be
protected only if the receiving landfill or incinerator on the date of
enactment ``has permitted capacity actually available'' for the OOS MSW
covered by the contract. Since sound business planning and cash flow
considerations will ensure that this will almost never be the case, the
protection is illusory. Moreover, even if there is permitted capacity
for the total volume of waste to be received during the life of the
contract, the subsection establishes a new Federal law of contracts
that denies protection to contract renewals and extensions, even if
they are not ``novations'' of the contract, and even if they would be
protected under State law.
Limitations on Amount of Waste Received: Proposed new subsection
(f) at page 11, line 18 through page 14, line 14 would allow a State or
affected local government to freeze at 1993 levels the amount of OOS
MSW that ``naked grandfather'' facility may receive. These are the
facilities that are exempt from the ban because they received OOS MSW
in 1993, but they do not have the required HCAs or permits authorizing
receipt of OOS MSW.
A fundamental question arises as to whether a State could freeze
receipts at facilities that do not have the requisite HCAs, permits, or
contracts that would exempt them from the ban. The text of the
subsection (a) Federal ban applies to all facilities unless they are
specifically exempted. What naked grandfathers would be subject to the
freeze rather than the ban?
In addition, for those facilities that are subject to the freeze,
as is the case with exemptions from the ban, the exemptions are more
apparent than real because
a facility with an HCA is protected only if it had
permitted capacity at the time of entering into the HCA to receive all
of the OOS MSW authorized by the HCA (page 13, lines 1-5). This is a
null set. Virtually all facilities with HCAs will be subject to the
freeze.
The owner or operator of the facility must be able to document the
``identity of the generator'' of OOS MSW that was received in 1993.
Assuming that this requires the names of each person from whom such
waste was collected, it imposes an impossible burden and guarantees
that all naked grandfather facilities will be subject to the ban, not
the freeze.
Needs Determination: Subsection (g)(1) on pages 14-15 guts all of
the protection granted by other provisions of the bill for facilities
with HCAs, permits, or ``naked grandfather'' status to receive OOS MSW
by giving State permitting officials the power to deny permits for
construction of new facilities and expansions of existing facilities if
the officials determine that there is no local or regional need for the
facility. Subsection (k) on page 22 ``immunizes'' such a denial from
lawsuits based on the Commerce Clause.
The effect of this text would be to allow a State to discriminate
against OOS MSW by denying permits for landfills or incinerators that
would receive waste from outside the State, since the local area or
region in the State would not ``need'' a facility for that out-of-State
waste. This would make a nullity of any protection that might otherwise
be gained from the rest of the bill, In the midst of widespread efforts
to eliminate barriers to entry so as to promote competitive markets in
virtually every sector of the economy, this proposal would move in
exactly the opposite direction with centralized planning that will
stifle competition and increase the costs of waste disposal. The
existing facility would be given a monopoly, free from competition from
``unneeded'' capacity. Moreover, how will the central planners pick
which facility gets a permit when and if they decide that new capacity
is needed?
Caps: Subsection (g)(2) on pages 15-16 further erodes the
protections ostensibly secured by other provisions of the bill. It
authorizes any State to adopt a law that caps the amount of OOS MSW
that may be received under permits issued after enactment at 20 percent
of all MSW received annually. This would be a severe problem for
regional landfills and incinerators for which there would simply not be
sufficient in-State waste to sustain adequate operations.
Paragraph (B) exempts from the caps receipts at facilities that
entered into HCAs prior to enactment, but only if the HCA specified the
quantity of OOS MSW that may be received. Since few, if any, HCAs
specify an amount, the effect of this paragraph is to deny any
protection to pre-enactment HCAS. Moreover, since it makes no mention
of post-enactment HCAs, it appears that they would be of no value in
escaping a 20 percent cap, even if they did specify an amount. The
combined effect of these provisions is to eliminate any reason to
negotiate HCAs after enactment, and to so severely curtail operations
as to eliminate existing regional facilities with HCAS.
Authority Based on Recycling Programs: Proposed subsection (h) on
pages 16-19 allows States with comprehensive recycling programs to
freeze receipts of OOS MSW at the levels facilities received in 1995,
the year before Wisconsin's law was declared unconstitutional. Here
again, facilities with HCAs are exempt only if they had, at the time of
entering the HCA, permitted capacity to receive the waste authorized by
the HCA a null set.
Affected Local Government: Subsection (m)(1) on page 23 defines the
``affected local government'' that is authorized to enter into an HCA
and thereby exempt a facility from the ban and perhaps the freeze on
its receipt of OOS MSW.
The text defines affected local government as the planning entity
in all cases unless there is none authorized by State law, rather than
the elected officials of the city, town, etc. with whom HCAs have
traditionally been entered. This failure to recognize any but the
planning body is artificial and a radical departure from all previous
versions of proposed legislation on this subject, including the texts
of H.R. 4779 that passed the House September 28, 1994, S. 2345 that
passed the Senate September 30, 1994, S. 2345 that passed the House by
unanimous consent on October 7, 1994, and S. 534 that passed the Senate
on May 16, 1995. All of these texts allowed HCAs with either entity
before enactment.
Here again, the effect of this provision would be to invalidate
existing HCAs that have been concluded in good faith with the elected
officials of local governments before enactment of any legislation.
Their decisions on behalf of the people most directly affected by OOS
MSW would be vetoed by the Federal legislation requiring that the time
and money spent on public hearings and deliberations be cast aside, and
that they effectively beg for approval from the MSW planning body to
decide and determine their own best interestS.
Construction and Demolition Waste: The subsection (m)(3) definition
of ``MSW'' includes on page 22, lines 13-24 C&D waste from
``structures''.
The effect of this text would be to subject all C&D waste to an
unworkable regime that will increase the costs of its disposal for the
following reasons:
``Structures'' is not defined: Is debris from a tollbooth on a
highway from a ``structure''? Is the pavement at a drive-in food store
or gas station, or the parking lot for an apartment building or store
included as debris from ``structures'' when they and their associated
buildings are constructed, repaired, or demolished? What about mixed
loads from those sources, or from the sites of the Florida hurricane,
Los Angeles earthquake, Midwest floods, or Oklahoma City bombing?
How does the landfill owner know whether the debris was from a
``structure'' and covered by a ban or limit when it arrives in a truck
at the landfill?
TSCA-Regulated Waste: Subsection (m)(3) excludes from the
definition of the MSW covered by the bill hazardous waste listed under
section 3001, but waste regulated under the Toxic Substances Control
Act is not excluded. The failure to expressly do so suggests that
receipt of OOS TSCA-regulated waste at any landfill or incinerator is
subject to the bans and limits of the bill.
Industrial Waste: In a similar departure from all previous
approaches to this problem, industrial, non-hazardous waste is not
excluded from coverage under the bill. Subsection (m)(3)(B)(v) on page
24 excludes only that industrial waste that is sent to a ``captive''
facility owned by the generator or its affiliate. All other non-
hazardous industrial waste generated by manufacturing or industrial
processes would be subject to the bans and limits of the bill. The
result would be a drastic reduction in the amount of industrial waste
moving in competitive interstate commerce, and a dramatic increase in
the costs of disposal.
what's wrong with section 2 of s. 872?
Section 2 of S. 872 would result in unfair, unnecessarily severe,
and probably unworkable restrictions on the interstate movement of
waste that would abrogate contracts, diminish the value of private
property and investments, void decisions by local governments, increase
the cost of waste disposal, and disrupt existing and planned
arrangements for waste disposal services. These problems are
illustrated by the provisions discussed below.
Federal Presumptive Ban: Proposed new section 4011(b) at page 11
imposes a Federal ban on receipt of out-of-State (OOS) municipal solid
waste (MSW) unless the landfill or incinerator is exempted from the ban
(1) as a result of an existing Host Community Agreement (HCA) approving
receipt of OOS MSW, (2) as a result of a new HCA, or (3) because it has
a permit authorizing its receipt, received OOS MSW in 1993, or is
located in a bi-State metropolitan statistical area. All three of these
purported exemptions are either much more limited than they appear or
entirely illusory, as discussed below.
The ban is apparently effective immediately upon enactment of the
new section. As a result, every community in the Nation that hosts a
facility without an HCA, permit or other basis for exemption will be
required by Federal law to expend the time and money to conclude an HCA
in accordance with the elaborate and extensive requirements of proposed
new section 4011(d) at pages 12-18, if it wants the facility to be able
to receive OOS waste. This Federal requirement to spend time and money
would be imposed even if the community had no desire to limit receipt
of OOS MSW. The immediate effectiveness of the ban means that the flow
of OOS MSW to facilities in those communities will be immediately and
entirely cut off until they conclude the HCA process.
Moreover, even those communities that have concluded an HCA or host
facilities that have permits or received OOS MSW in 1993 will be at
risk as well, since there is no provision for resolving potential
disputes about whether the facility is exempt from the ban. What agency
enforces the ban? What is the penalty for violation of the ban? What
courts have jurisdiction over disputes about the validity of HCAs,
permits, or 1993 receipts? What happens to the flow of waste while the
dispute is pending in the courts?
Contract Protection: Proposed new subsection (g) at pages 22-25
would allow a State to freeze at 1993 levels the amount of OOS MSW that
``naked grandfather'' facilities may receive. These are the facilities
that are exempt from the ban because they received OOS MSW in 1993, but
they do not have the required HCAs or permits authorizing receipt of
OOS MSW. Subsection (g) (1) (C) at page 24 States that nothing ``in
this subsection'' supercedes any State law relating to contracts. No
such language can be found with respect to the other subsections. As a
result, receipts of OOS MSW under contracts are apparently not
protected from the subsection (b) ban or the subsection (h) ratchet at
pages 25-27.
The absence of explicit language protecting contracts is
particularly troubling in the context of the Federal ban. Imports
pursuant to a contract entered into before enactment will likely not be
protected from the ban because the Governor of the importing State
would not have a role in banning the import; it would be prohibited by
the Federal statute. State law is not likely to provide protection from
a Federal ban. Conversely, the Contract Clause of the U.S. Constitution
applies only to actions by a State that abrogate a contract, so it
would not protect the contract flows either.
Affected Local Government: Subsection (a)(1) on pages 2-3 defines
the ``affected local government'' that is authorized to enter into an
HCA and thereby exempt a facility from the ban and freeze on its
receipt of OOS MSW.
The text defines affected local government as the planning entity
in all cases unless there is none authorized by State law, rather than
the elected officials of the city, town, etc. with whom HCAs have
traditionally been entered. This failure to recognize any but the
planning body is artificial and a radical departure from all previous
versions of proposed legislation on this subject, including the texts
of H.R. 4779 that passed the House September 28, 1994, S. 2345 that
passed the Senate September 30, 1994, S. 2345 that passed the House by
unanimous consent on October 7, 1994, and S. 534 that passed the Senate
on May 16, 1995. All of these texts allowed HCAs with either entity
before enactment.
The effect of this provision would be to invalidate existing HCAs
that have been concluded in good faith with the elected officials of
local governments before enactment of any legislation. Their decisions
on behalf of the people most directly affected by OOS MSW would be
vetoed by the Federal legislation requiring that the time and money
spent on public hearings and deliberations be cast aside, and that they
effectively beg for approval from the MSW planning body to decide and
determine their own best interests. The facilities covered by those
HCAs would be subject to the ban or, at best, to the freeze and ratchet
if they accepted OOS MSW in 1993.
Construction and Demolition Waste: The subsection (a)(8) definition
of ``MSW'' at pages 8-10 does not expressly exclude C&D waste. If that
is the intent, the exclusion should be expressly set forth among the
exclusions. Failure to do so would give rise to the argument that C&D
waste is included, and dramatically increases the costs of its
disposal.
Host Community Agreement: An additional problem results from the
subsection (a)(4) definition of ``Existing HCA'' at page 5 and the
subsection (a)(9) definition of ``New HCA'' at page 10. Existing HCAs
are those entered into before January 1, 1999, while New HCAs are those
entered into on or after the date of enactment. So what is the status
of HCAs entered into after 1/1/99 but before enactment?
TSCA-Regulated Waste: Subsection (m)(3) excludes from the
definition of the MSW covered by the bill hazardous waste listed under
section 3001, but waste regulated under the Toxic Substances Control
Act is not excluded. The failure to expressly do so suggests that
receipt of OOS TSCA-regulated waste at any landfill or incinerator is
subject to the bans and limits of the bill.
______
Responses by Robert Eisenbud to Additional Questions from Senator
Graham
Question. You advocate that a free market for waste disposal
services provides the lowest cost for consumers Given that two
companies dominate the municipal waste disposal market in the United
States, do consumers really have a choice of providers? Is there true
competition in the marketplace?
Response. Yes, consumers do have a choice of waste disposal service
providers precisely because there is true competition in the
marketplace. The availability of choice for the consumer and the
existence of true competition among service providers are evidenced by
several facts.
First, the recent merger of Waste Management and USA Wash would
never have been approved by the US Department of Justice were it not
certain that true competition would be sustained in the waste services
marketplace. Thirteen States, including Florida, were on the consent
decree approving the merger, and Oregon issued a parallel side letter
All those authorities concluded that the merger as approved would not
result in the kind of ``''domination'' to which you refer.
Second, the composition of the waste services industry itself
supports the finding that there is true competition. Of the estimated
$36 billion per year of solid waste services revenue, the Environmental
Industry Associations estimates that municipalities capture 32 percent,
the 5,500-7,000 privately owned companies capture 27 percent, and
publicly held companies such as Waste Management, BFI, Allied, Casella,
Republic, and Superior capture the remaining 41 percent of the
revenues. It can hardly be said that any 1, 2, or even 10 or 12
companies 'dominate'' the marketplace.
Finally a specific case may help to illustrate the effects of this
true competition on the rates consumers pay for waste services. Before
our Okeechobee landfill opened in Florida in 1993, the disposal rate at
the Dade County landfill was $59 per ton. That rate has been reduced in
response to the competition, and it is now $45 per ton. The regional
Okeechobee landfill has had a similarly beneficial effect on disposal
rates for consumers in the Orlando area.
__________
Association of American Railroads,
June 23, 1999.
The Honorable John Chafee, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Dear Mr. Chairman: The Association of American Railroads (AAR) is
writing in opposition to pending legislation which would restrict
the interstate transportation of municipal solid waste, as well as
permit government officials to require that all local waste be sent
to publicly financed disposal facilities. Although well-
intentioned, the legislation would impose an inappropriate burden
on interstate commerce, unnecessarily distort consumer markets, and
do nothing to enhance environmental protection.
America's railroads play a key role in the safe and efficient
transportation of municipal solid waste to state-of-the-art disposal
facilities. In many cases, these sophisticated facilities have replaced
smaller, local landfills that were forced to close because they failed
to comply with stringent new environmental requirements. As you pointed
out in a recent statement, modern facilities are engineered to meet the
highest standards, including double liners, leachate collection
systems, and groundwater monitoring requirements.
AAR opposes legislation such as S. 533 introduced by Senators
Warner and Robb, S. 663 introduced by Senator Specter, and S. 872
introduced by Senators Voinovich and Bayh--all of which would
significantly increase the challenge of properly treating and disposing
of solid waste. Enactment of the legislation would impede the free
market and artificially limit the availability of cost-effective waste
management options. In the end, the Nation would be less well off
because of the barriers the measures would erect to the free flow of
commodities across State lines.
Under the Constitution, Congress is vested with the power to
``regulate Commerce . . . among the several States. '' Consistent
adherence to this principle has helped to create a seamless U.S.
economy and the finest transportation network in the world. The
enactment of interstate waste and flow control proposals, however,
would balkanize waste management and create a troubling precedent which
Congress might subsequently choose to extend to other commodities.
Moreover, this balkanization of waste management along State and
local lines would sharply drive up consumer costs. Under the
legislation, States might be forced to replicate facilities which
already exist in other jurisdictions. These new landfills might not be
as environmentally protective as larger, regional facilities because
the cost structure of advanced sites often depends on substantial
economies of scale. By cutting off access to multi-State supplies of
municipal solid waste, the bill would also make investment in such
facilities less likely in the future.
As you have correctly noted, the question public officials should
be asking is not how to ensure additional capacity for our nation's
municipal solid waste--it is how to ensure that solid waste is managed
in the most environmentally responsible manner. Railroads agree that
the answer lies in allowing solid waste to flow to the best new
regional facilities which incorporate state-of-the-art technology and
which meet or exceed Environmental Protection Agency regulations.
I appreciate this opportunity to submit these comments on S. 533,
S. 663, and S. 872. I request that my statement be made a part of the
record in connection with the June 17 hearing before the Committee on
Environment and Public Works on this legislation.
Thank you very much.
Sincerely,
Edward R. Hamberger.
__________
Statement of Republic Services, Inc.
Republic Services, Inc. submits this statement for the record in
connection with the Senate Environment and Public Works Committee's
June 17, 1999, hearing on proposed legislation that would ban or
severely restrict the interstate movement of municipal solid waste.\1\
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\1\ The bills include S. 533, sponsored by Senators Warner and
Robb, and S. 872, sponsored by Senators Voinovich, Bayh, Abraham,
DeWine, Levin, and Lugar. A similar bill, S. 663, introduced by Senator
Specter, was not referenced in the hearing announcement.
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i. republic services and its interest in proposed legislation
Founded in 1995, Republic Services, Inc. is a leading provider of
solid waste collection and disposal services. Once the merger of
Browning Ferris Industries (``BFI'') and Allied Waste Systems is
completed, Republic Services will be the nation's third largest
provider of these services.\2\ Republic Services provides waste
collection services in 26 States and owns or operates 76 transfer
stations and 58 landfills. In the past year, Republic Services acquired
16 landfills, 11 transfer stations, and 136 collection routes that
Waste Management and USA Waste were forced to divest as a result of
their merger.
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\2\ In 1998, Waste Management generated $12.7 billion in revenues;
BFI, $4.2 billion; and Allied Waste, $2.2 billion. William P. Barrett,
Waste Not, Forbes 22 (Apr. 5, 1999). Republic Services' 1998 revenues
were approximately $1.4 billion.
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Republic Services has a substantial interest in any legislation
designed to restrict the movement of solid waste. Its position in the
market and recent growth provide a somewhat different perspective from
the industry Goliaths, Waste Management and Allied/BFI. As a result,
the committee will benefit from considering Republic Services'
perspective when it deliberates on the proposed legislation.
Republic Services shares many of the concerns that have been
brought to the committee's attention in years past. Republic Services
believes that the nation's prosperity arises in no small part from the
framers' inclusion of the commerce clause in the Constitution.
Congress's historic reluctance to confer authority upon the States to
interfere with the free flow of goods and services across State borders
has served the nation well. Republic Services has not seen evidence
that a compelling public interest would be served by abandoning this
reluctance in the case of municipal solid waste. Republic Services'
views on the advantages of unburdened interstate commerce generally,
and specifically the advantages stemming from allowing solid waste to
cross State borders for disposal, are set out in Section III of this
statement.
Republic Services firmly believes that Congress should not confer
authority on States to interfere with the movement of solid waste
across State borders for mere political expedience. Republic Services
also believes that the burden falls upon those who want to authorize
States to restrict such movement to demonstrate the public interest in
doing so. This statement sets out the reasons why Republic Services
believes that proponents of this legislation cannot bear that burden.
These views are set out in Section IV of this statement.
Before turning to the more frequently voiced arguments, however,
this statement focuses on what Republic Services regards as the
potential anti-competitive and, as a result, anti-consumer aspects of
the bills. This is an area in which Republic Services believes its
perspective might uniquely inform the committee.
ii. anti-competitive and anti-consumer effects
The proposed legislation would mean bad news for consumers: less
competition among waste disposal service providers, higher disposal
costs, and less local autonomy.
A. Less Competition
By freezing in place certain existing relationships, the proposed
legislation could lead to less competition among companies vying to
provide waste collection and disposal services for local communities.
Provisions in the legislation that would restrict the volume that
landfills could import to 1993, 1995, or current baselines effectively
freeze current market share. Authorizing a State to ``cap'' total solid
waste imports into the State at a given baseline year has the same
effect. The practical result would be to confer monopolies on
established market dominators.
In essence, those large enterprises that are currently importing
solid waste into a State would have a monopoly on the waste trade
between the exporting and importing States. Only those integrated
companies with disposal sites that were accepting the waste at the time
the legislation passed (or at any baseline year) would be in a position
to provide collection services in those markets where out-of-State
disposal is the preferable management option. In light of this fact, it
is easy to understand why Waste Management/USA Waste and Allied/BFI,
the Goliaths of the industry, may be willing to accept ceilings on a
State's annual out-of-State waste imports. The ceilings would not only
further cement their present domination of the interstate waste trade
but also strengthen their stranglehold on major metropolitan areas'
collection services, where out-of-State disposal would be the preferred
disposal option.
The net effect of this would be to diminish competition for waste
collection in large markets, depriving consumers of competitive outlets
for their collection services. Members of the committee will be
familiar with the advantages that arise from competition: price
competition and vendors vying for customer loyalty through continued
quality improvement. The proposed legislation would result in a loss of
these advantages.
Republic Services stands to lose significantly if a law is enacted
that places a ceiling on transboundary waste shipments. Republic
Services is now approaching the size that its business planning can
address the efficiencies achieved through transboundary waste
movements. Not one of the pending bills adequately addresses the
apportionment of State waste import quotas among competitors. If all
the waste imports authorized by the legislation are already in the
Goliaths' hands, then Republic Services will be effectively--and
unfairly--foreclosed from competing to provide these services.
B. Higher Waste Disposal Costs
Diminished competition translates into fewer choices among
potential waste service vendors and, as a result, increased disposal
costs for consumers. In addition, the benefits which consumers
currently reap from economies of scale associated with regional
landfills would be jeopardized.
As recognized by the U.S. Environmental Protection Agency, landfill
size is a key factor in determining the cost per ton of waste
disposal.\3\ Construction and maintenance costs for state-of-the-art
disposal facilities are substantial, and, for small communities, even
prohibitive. However, by spreading these costs among greater numbers of
consumers, landfill operators are able to achieve economies of scale,
and lower the cost-per-ton of waste disposal.\4\ Regional landfills
also promote efficiency by allowing communities in the same general
proximity to avoid the expense of siting separate fills.
---------------------------------------------------------------------------
\3\ Solid Waste Disposal Facility Criteria, 56 Fed Reg. 50,978,
50,987 (Oct. 9, 1991).
\4\ See James E. McCarthy, Congressional Research Service, CRS
Issue Brief, Solid Waste Issues in the 106th Congress 2 (April 9,
1999); see also Kirsten Engel, Reconsidering the National Market in
Solid Waste: Trade-Offs in Equity, Efficiency, Environmental
Protection, and State Autonomy, 73 N.C.L. Rev. 1481, 1504 (1995).
---------------------------------------------------------------------------
Restrictions on the interstate transport of waste would harm
consumers by eliminating the opportunities to create regional landfills
that take advantage of these economies of scale and efficiencies of
consolidation. In the short term, consumers in exporting States would
be forced to pay higher disposal prices, because they would be unable
to make use of regional landfills located in other States. In the long
term, consumers in importing States would also face higher disposal
costs. Many larger landfills currently depend on imported waste to
generate sufficient revenue to cover operating costs. If these
landfills are no longer permitted to freely accept out-of-State waste,
they would be forced to raise their tipping fees in order to account
for the smaller volumes of waste entering their facilities. Ultimately,
construction of state-of-the-art facilities could come to a halt,
leaving disposal to small, local facilities unable to achieve economies
of scale.\5\
---------------------------------------------------------------------------
\5\ See Margaret A. Walls and Barbra L. Marcus, Should Congress
Allows States to Restrict Waste Imports? Resources 7-11 (Winter 1993).
---------------------------------------------------------------------------
Restrictions on the interstate transport of waste would also harm
some consumers by denying them access to the most competitive
facilities. Some States enjoy a comparative advantage in the provision
of waste disposal services. For example, the cost of land is generally
cheaper in the Midwest than in the Northeast. As a result, the capital
investment required to build a landfill in the Midwest is generally
lower than the investment required to build a similar facility in the
Northeast. This comparative advantage is reflected in the lower tipping
fees charged by landfills in the Midwest.\6\
---------------------------------------------------------------------------
\6\ Id.
---------------------------------------------------------------------------
Furthermore, siting landfills in geographic areas that are
naturally less amenable to achieving groundwater protection goals may
require spending significantly more to achieve compliance with
environmental protection standards.\7\ The additional construction,
operation and maintenance costs must be passed on to consumers through
higher tipping fees.
---------------------------------------------------------------------------
\7\ See generally notes 31-36, infra, and accompanying text.
---------------------------------------------------------------------------
C. Less Local Autonomy
The proposed legislation would effectively subordinate local
autonomy in favor of State authority provisions in the proposed
legislation that would allow governors to countermand commutes
decisions to allow imported waste to be managed within the communities'
borders\8\ constitutes an intervention in the relationship between
State and local government that Congress would wisely avoid. While the
concept of using host community agreements as a means of overriding
presumptive import bans is a good idea, Federal legislation would
nonetheless force Congress to intervene in complex State/local
political relationships.
---------------------------------------------------------------------------
\8\ See, e.g. S. 533, Sec. 2(b); S. 872, Sec. 2(h).
---------------------------------------------------------------------------
There are many reasons why communities choose to have a regional
landfill operate in their vicinity. The community's geology and
remoteness may make it suitable for the development of a landfill.
Communities that have sited such landfills have received tens of
millions of dollars in host community fees, making it possible to build
new schools and roads, operate senior-citizen and after-school
programs, buy ambulances and fire trucks, reduce real estate taxes,
attract new businesses, and provide other sought-after benefits.\9\
---------------------------------------------------------------------------
\9\ Environmental Industry Associations, Executive Brief on
Interstate Waste Transportation 1 (Apr. 1999) (hereinafter ``EIA,
Executive Brief'').
---------------------------------------------------------------------------
The committee will be hearing from one such community. There are
others. For example, one city chose to spend the $3.5 million it
received as compensation for hosting a landfill to rehabilitate
roadways and homes, and fund various other neighborhood improvement
projects.\10\ Restrictions on the interstate transport of solid waste
could deprive local communities of these opportunities to engage in
mutually beneficial arrangements for the disposal of solid waste.
---------------------------------------------------------------------------
\10\ See Press Release from the City of Fort Wayne, Indiana, City
to Use Host Fees For Improvements to Hanna Street,
---------------------------------------------------------------------------
iii. advantages of unburdened interstate commerce
Given the potential anti-competitive effects discussed in the
preceding section of this statement, members of the committee will have
good reasons for concluding that the proposed legislation is ill-
advised. Republic Services' focus on these potential effects, however,
is not intended to denigrate the traditional commerce clause-based
reasons for eschewing this legislation. For reasons set forth in this
section, States neither have a significant interest in regulating
interstate waste movements nor do they require congressional delegation
of commerce clause authority to satisfy any legitimate environmental or
safety objective.
A. The Commerce Clause and States' Authority to Regulate Interstate
Trade
The framers drafted the commerce clause to remedy the divisiveness
and openly hostile economic relationships that had developed between
the States.\11\ The commerce clause is based on the notion that an open
and competitive national marketplace will lead to prosperity,\12\ a
notion that has served the nation well for over 200 years. It has led
to the development of a strong national economy and the proper
allocation of resources.
---------------------------------------------------------------------------
\11\ See, e.g. The Federalist No.45 (James Madison) (arguing for a
Federal commerce power to counteract the Parochial tendencies of the
States).
\12\ See, e.g., The Federalist No.11 (Alexander Hamilton) (stating
that a Federal commerce power was necessary to allow the United States
to compete with the colonial powers).
---------------------------------------------------------------------------
There is a well-established body of law that defines when States
can and cannot interfere with interstate commerce. If a State wants to
purposefully discriminate against interstate commerce, it must
establish that such a measure is necessary to accomplish a compelling
State interest.\13\ For example, in Maine v. Taylor, the Supreme Court
upheld a Maine law that banned the importation of live baitfish from
other States. Given the importance of fishing to Maine's economy,
coupled with the fact that it was very difficult to differentiate
between imported baitfish containing parasites and those that did not,
the Court concluded that Maine was justified in banning the imports. In
contrast, State laws that affect--but do not purposely discriminate
against--commerce are subject to a more lenient balancing test. States
may enact laws that have incidental effects on interstate commerce, so
long as the burden of such laws is not clearly excessive in relation to
claimed benefits.\14\
---------------------------------------------------------------------------
\13\ Maine v. Taylor, 477 U.S. 131,140 (1986).
\14\ Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
---------------------------------------------------------------------------
Because States can affect the movement of waste across their
borders if they can meet either of these standards, it is not necessary
for Congress to confer additional authority upon the States. Indeed,
for reasons made plain in this statement, such a conferral of authority
would be ill-advised, because ``any action taken by a State within the
scope of congressional authorization is rendered invulnerable to the
commerce clause challenge.\15\ In the case of solid waste disposal, a
heavily regulated enterprise for which human health and safety and
environmental protection are ensured through a comprehensive, Federal
regulatory scheme,\16\ no compelling State interest exists in
regulating interstate waste. The reason proponents of the pending
legislation are before the committee is that their States have not been
able to reconcile their motives with this well-developed and well-
functioning legal regime. Indeed, courts that have looked at the public
policy aspects of this matter have not found the type of interest that
would warrant such State interference.\17\
---------------------------------------------------------------------------
\15\ Western and Southern Life Ins. Co. v. State Bd. of
Equalization, 451 U.S.648, 652-653 (1981).
\16\ See notes 32-36, infra, and accompanying text.
\17\ See, e.g., City of Philadelphia v. New Jersey, 437 U.S.617,
628-629 (1978).
---------------------------------------------------------------------------
B. Reasons for Interstate Waste Movements
The movement of solid waste across State borders occurs for reasons
arising from the need to manage such waste properly. In this regard,
reference to the situation in the home States of the sponsors of the
proposed bills represent reveals some ironies. Ohio, for example,
imported one million tons of solid waste in 1997 and exported 900,000
tons of solid waste in the same year.\18\ and Virginia export a
significant percentage of hazardous waste to New York.\19\ Where waste
is allowed to cross-State borders--while human health and safety and
environmental protection are closely regulated--then optimal management
outcomes will follow.
---------------------------------------------------------------------------
\18\ James E. McCarthy, Congressional Research Service, CRS Report,
Interstate Shipment of Municipal Solid Waste: 1998 Update 5 (Aug. 6,
1998).
\19\ EIA, Executive Brief note 9 supra.
---------------------------------------------------------------------------
Of the hundreds of millions of tons of solid waste generated each
year in the United States, only a small percentage crosses State lines
for disposal. Waste imports accounted for less than 9 percent of the
solid waste disposed in the United States in 1998.\20\ In Ohio, for
example, out-of-State waste represented only 7 percent of the total
waste disposed in the State during 1997.\21\ Furthermore, a majority of
waste exports are sent to neighboring States, indicative of the
regional approach to waste management.\22\ In contrast, nearly every
State exports and imports some quantity of waste. For example, in 1995,
49 States exported solid waste and 45 States imported solid waste.\23\
---------------------------------------------------------------------------
\20\ Jim Glenn, The State of Garbage in America, Biocycle Magazine
(Apr. 1999).
\21\ See Press Release from Ohio EPA, ``Landfill Capacity in Ohio
Increases'' (Apr. 15, 1999).
\22\ Edward R. Repa, Interstate Waste Movement: 1995 Update, Waste
Age Magazine 44 (June 1997).
\23\ Id.
---------------------------------------------------------------------------
Interstate shipments of solid waste have made possible the volume
of business necessary to construct state-of-the-art, regional
landfills. Landfills built to comply with U.S. EPA's regulations under
Subtitle D of RCRA must fulfill requirements relating to liners,
leachate and methane gas collection, ground water monitoring, and
financial assurances.\24\ While these protective measures are
effective, they are also costly. It is estimated that the construction
of a landfill that complies with the Federal regulations requires a
capital investment of $500,000 per acre.\25\
---------------------------------------------------------------------------
\24\ See notes 31-36, infra, and accompanying text.
\25\ EIA, Executive Brief note 9 supra.
---------------------------------------------------------------------------
In order to afford the costs of complying with these regulations,
landfill owners have built larger, regional facilities. Statistics on
waste disposal reflect these reallies. For example, approximately 75
percent of the nation's municipal solid waste is deposited in 25
percent of the nation's landfills.\26\ Many of these larger landfills
depend on waste from other States to generate sufficient revenue to
cover operating costs.\27\ Without the ability to freely accept large
quantities of waste, these facilities may become too costly to
operate.\28\ In fact, almost three-quarters of the country's landfills
have already closed as regulations governing land disposal have
tightened.\29\ Thus, the continued economic viability of state-of-the-
art landfills depends on the continued free movement of solid waste.
---------------------------------------------------------------------------
\26\ Effluent Limitations Guidelines, Pretreatment Standards, and
New Source Performance Standards for the Landfills Point Source
Category, 63 Fed. Reg. 6426, 6432 (Pete. 6, 1998).
\27\ Walls and Marcus, supra note 5, at 11.
\28\ See Solid Waste Disposal Facility Criteria, 58 Fed. Reg.
40,568, 40,571 (July 28, 1993) (in response to Federal regulation,
``many of the smaller landfills may close and their users will instead
send their waste to a regional waste management facility that can take
advantage of an economy of scale'').
\29\ McCarthy, supra note 4, at 2.
---------------------------------------------------------------------------
iv. environmental protection and safety
A. Restricting Interstate Waste Movements Will Not Advance
Environmental Protection
Restrictions on the interstate shipment of solid waste would not
enhance protection of human health or the environment and, in fact, may
undermine that goal. Proponents of this legislation generally claim a
number of benefits will arise from passing this legislation, but none
of the claimed benefits hold up to careful scrutiny. Moreover,
proponents of the legislation overlook some negative potential
consequences of the legislation that deserve the committee's attention.
As this body previously heard from a representative from the respected
environmental organization, the Natural Resources Defense Council,
``interstate transport restrictions by themselves provide no
environmental benefits, and in fact could be counterproductive.''\30\
---------------------------------------------------------------------------
\30\ Statement of Dr. Allen Hershkowitz, National Resources Defense
Council, at Interstate Waste and Flow Control Hearings Before the House
Commerce Committee, 104th Cong. (March 23, 1995).
---------------------------------------------------------------------------
First, Federal law presently sets national standards for the degree
to which operating landfills must protect human health and the
environment. These standards are established on the basis of
conservative assumptions that have been deemed to be appropriately
protective. EPA has promulgated extensive regulations designed to
protect groundwater and prevent pollution from landfills.\31\ Pursuant
to these regulations, landfill owners and operators must install
composite liners, which prevent leachate from escaping into the
groundwater.\32\ Leachate and methane gas collection systems must be
installed to capture and treat these releases.\33\ Groundwater
monitoring systems must be used to sample and analyze the surrounding
groundwater.\34\ Even after a landfill ceases to operate, its owner and
operator must properly cover it, and continue to monitor and maintain
the landfill site for 30 years.\35\ Finally, landfill owners and
operators are required to demonstrate that they have the financial
ability to carry out closure and post-closure activities.\36\
---------------------------------------------------------------------------
\31\ See generally 40 C.F.R Sec. 258 (1998).
\32\ 40 C.F.R Sec. 258.40.
\33\ Id. Sec. Sec. 258.23, 258.40.
\34\ Id. Sec. Sec. 258.51, 258.53.
\35\ Id. Sec. Sec. 258.60, 258.61.
\36\ Id. Sec. Sec. 258.71, 258.72.
---------------------------------------------------------------------------
Moreover, States are free to address legitimate environmental,
health, and safety concerns about the operation and closure of solid
waste landfills that operate within their borders by increasing the
stringency of the regulations governing such landfills--if they do so
without regard to the source of the waste disposed in them.\37\ The
Chair of the House counterpart to this committee recently identified
States' authority under the existing legal regime\38\ a reason not to
adopt Federal legislation.\39\
---------------------------------------------------------------------------
\37\ See City of Philadelphia, 437 U.S. at 626-627.
\38\ See notes 13-17, infra, and accompanying text.
\39\ Hon. Thomas Bliley, Letter to the Honorable James S. Gilmore,
III, Governor of Virginia (Mar. 5, 1999).
---------------------------------------------------------------------------
Second, proponents of this sort of legislation claim that allowing
so-called ``long haul'' transportation of solid waste serves as a
disincentive to recycling efforts, but they make such claims without
establishing a cause-and-effect relationship. Restricting cross-border
waste shipments is not the way solve the recycling ``problem.'' Some
advocates of interstate waste movement restrictions assert that such
restrictions will increase recycling rates. These proponents should
come forward with evidence to support the proposition that the
availability of ``long-haul'' disposal options diminishes recycling
rates. Advocates of restrictive legislation will have to overcome, for
example, evidence that waste exportation does not diminish recycling
rates. On the contrary, New Jersey, which can claim the second highest
recycling rate in the country, was also the second largest exporter of
solid waste.\40\
---------------------------------------------------------------------------
\40\ Robert Steuteville, 1994 Survey: The State of Garbage in
America, Biocycle Magazine 48 (Apr. 1994).
---------------------------------------------------------------------------
Moreover, there is a substantial literature that attributes present
recycling rates to a number of other factors--none of which have to do
with the availability of ``long-haul'' disposal options. Profitability
is likely the single most important determinant of recycling rates. The
low prices for recycled materials and the costs associated with the
collection and cleaning of post-consumer products affects the rates at
which materials are recycled.\41\ Because restricting waste movement
will not affect the basic market forces by which material choices are
made, the proposed legislation will not bring about the benefit that
proponents of the legislation claim. If increased waste diversion/
recycling is the objective, then effective Federal legislation would
look very different from these bills.
---------------------------------------------------------------------------
\41\ See, e.g., Angela Logomasini, Going Against the Flow, The Case
for Competition in Solid Waste Management (Citizens for a Sound Economy
Foundation, 1995)
---------------------------------------------------------------------------
Third, proponents of this sort of legislation do not address its
potential negative consequences. In fact, restricting interstate waste
disposal will result in a net environmental loss for the country.
Allowing States to close their borders to waste from other States would
be at cross-purposes with other environmental objectives such as
preserving open space. If waste from the originating State cannot be
sent to a regional landfill located in another State, then State-siting
authorities, faced with the immediate necessity of constructing new
landfills, will be forced to authorize the construction of landfills on
``greenfields'' within the State borders.\42\ Such actions will be in
direct contravention with one of the nation's most pressing
environmental concerns--the loss of open space. The ultimate result
would be a net environmental loss for the country as a whole.
---------------------------------------------------------------------------
\42\ ``Greenfields'' are lands which are previously undisturbed by
commercial or industrial activity.
---------------------------------------------------------------------------
B. Proposed Legislation Will Not Reduce Transportation Volume or
Accidents
While proponents of Federal legislation might claim to be motivated
by an interest in preventing waste transportation-related accidents,
the committee should take a hard look at the facts to determine whether
the proposed legislation will address that concern. The movement of
municipal solid waste across State borders does not constitute a risk
to human health or the environment of the magnitude that warrants
Federal legislation. The health and safety issues associated with the
interstate transportation of oil, gasoline, hazardous waste, or nuclear
waste, for example, are simply not present with municipal solid waste.
In sharp contrast to spills of these materials, a ``spill'' of
municipal solid waste is unlikely to constitute an immediate threat to
human health or the environment. Clearly, if reducing the risks posed
by interstate transportation of material were the goal, the focus of
the interstate restrictions would not be solid waste.
Furthermore, there is no evidence that trucks engaged in the
interstate transportation of solid waste pose safety issues any
different than associated with the transport of other goods. In fact,
during a recent, intensive two-day State inspection of trucks and their
contents in Pennsylvania, the Pennsylvania Department of Environmental
Protection discovered that waste trucks actually had a better than
average percentage of safety compliance. Out of the 1,071 waste hauling
trucks stopped last month along Pennsylvania's highways, 226 trucks
(approximately 21 percent) had violations. In contrast, the rate of
violations for trucks in all industries is approximately 29
percent.\43\
---------------------------------------------------------------------------
\43\ Bob Brown, Trashnet Nabs Waste Hauling Violators, Waste News 4
(May 31, 1999).
---------------------------------------------------------------------------
Even if the statistics showed that hauling solid waste posed a more
significant safety concern, enacting interstate waste controls will
likely not decrease truck traffic or ``long haul'' waste disposal. In
fact, interstate waste controls may increase both truck traffic and
long haul disposals. When faced with limits in the amount of waste
permitted to be sent to each State, exporting States will likely be
forced to send more shipments each of lesser volumes--to more
States.\44\ Thus, limiting the quantity of waste exports to a
particular State will result in an increased number of waste shipments
to more States.
---------------------------------------------------------------------------
\44\ See Eduardo Ley, Molly Macauley, and Stephen W. Salant,
Spatially and Intermodally Efficient Waste Management: The Costs of
Interstate Flow Control, Resources for the Future Discussion Paper
(June 1996).
---------------------------------------------------------------------------
Interstate waste constraints may also require waste to be hauled
further distances for disposal. For example, the Chicago metropolitan
area currently exports a significant amount of waste. Although
sufficient landfill capacity exists elsewhere in the State of Illinois,
much of the waste generated in the Chicago area is shipped a short
distance to the bordering States of Indiana and Wisconsin.\45\ If
interstate shipments were restricted, Chicago's waste could well have
to be hauled longer distances in order to be disposed within Illinois'
own borders.
---------------------------------------------------------------------------
\45\ McCarthy, supra note 18, at 8.
---------------------------------------------------------------------------
v. conclusion
There are any number of compelling reasons for the committee to
reject legislation that would confer authority on States to restrict
cross-border waste movements. Mindful of the comprehensive Federal
regulatory scheme that ensures the appropriate level of environmental
protection, committee members can remain faithful to the principle that
has led to the country's long enjoyment of the prosperity resulting
from trade among the many States. Failure of proponents to establish
that a compelling public (not political) interest will be served does
not help their appeal. More parochially, Republic Services asks
committee members to pay careful attention to provisions in the various
proposals that have the anti-competitive effect of freezing in place
present market share as to interstate waste shipments, or at least the
absence of well thought out mechanisms for apportioning import
restrictions among competitors. Republic Services trusts that its
submission of this statement has assisted the committee members and
their staffs in considering this issue, which has a tremendous direct
effect upon the Company.
__________
Statement of Angela Logomasini, Competitive Enterprise Institute
As Director of Risk and Environmental Policy at the Competitive
Enterprise Institute, I would like to submit these written comments on
proposals to limit interstate trade in municipal solid waste. CEI has a
long track record of providing expert analysis on solid waste issues
and other key environmental issues. For 15 years, our analysts have
worked to promote free-market, pro-environmental principles and we have
become a leading source of information to policymakers, the press, and
the public. In addition, I personally have focused on solid waste
issues, starting in 1990 during the Resource Conservation and Recovery
Act reauthorization debate. I have provided analysis on wide range of
solid waste-related issues since then, including the interstate trade
issue.
For more than two decades, various States have battled over
interstate movements of municipal solid waste. States have passed
import bans, out-of-State trash taxes, and other policies to block
imports. Federal courts have struck these laws down as protectionist
policies that violate the commerce clause, which gives only Congress
the authority to regulate interstate commerce. Now some Federal
lawmakers want to pass a Federal law to give States authority to
regulate trade in the waste disposal industry.
The U.S. Constitution protects interstate trade because the
founders understood the benefits of free trade. They wanted to prevent
State lawmakers, caught up in heated interstate disputes, from passing
foolish protectionist policies. In this case, Federal lawmakers are
willing to consider barring localities from engaging in trade in the
disposal industry even though it is critical to quality of life in
their communities.
Many communities choose to ``host'' regional landfills, agreeing to
allow waste imports in exchange for free trash disposal and a cut in
the landfill profits. These agreements have enabled communities
nationwide to cut taxes, repair and upgrade infrastructure, give pay
raises to teachers, build schools and courthouses, as well as close and
cleanup old, substandard landfills. Funds from waste imports were even
going to help one historic plantation in Virginia raise revenues to
maintain the landmark--until the State passed a law impeding trade.
Virginia's recent trade barriers against solid waste are on shaky
constitutional grounds and will soon face constitutional challenges.
Congress may soon consider proposals to make Virginia's laws valid and
enable other States to follow suit. But should landfill host
communities (many of which are low-income and minority communities that
need economic development) lose income from landfills, they may not be
able to address future needs. And if Congress passes a law allowing
States to regulate trade, many more communities may never even have the
opportunity to consider entering into such agreements.
Still, some say that by allowing landfills to operate in their
jurisdictions, these communities trade away public health and safety
for mere monetary gain. In reality, communities desire the quality of
life benefits--which include public health and safety--that this
industry produces, particularly for many rural, low-income communities
that have little other source of income. The landfill business is one
way they can afford basic goods that most of us take for granted--e.g.,
safe school buildings, piped water, and safe waste disposal.
Rather than increasing public health and safety risks, these
landfills enable communities to close substandard landfills and
construct safe, modern landfills. The risks of these new landfills are
exceedingly low. For example, one study finds that the risk of getting
cancer from exposure to landfill wastes is about one in ten billion for
a majority of existing facilities--a risk level many times safer than
what EPA considers acceptable passing environmental regulations. Higher
risk landfills (which range from one in ten billion risk levels to one
in 100,000) were designed before landfill companies began employing
high-tech landfill safety technology. New regional landfills, which are
the ones responsible for accepting most waste imports, pose the least
risk.
This issue is not about public health and safety. Instead,
lawmakers are concerned that accepting out of State waste labels their
States ``dumping grounds,'' which makes the issue more about public
relations than public health and safety. But State and Federal
lawmakers only harm their own constituents when they act on such weak
grounds, seriously undermining free enterprise because of failed public
relations.
These findings are more fully detailed in a soon to be released CEI
study on the topic. I would like to submit an early release of that
study for the record, which is attached to this testimony. I thank the
committee for allowing me to submit these comments, and I believe that
the attached study will serve as a valuable resource as this debate
unfolds.
______
Trashing the Constitution, Trashing the Poor Interstate Waste Trade
Barriers
(By Angela Logomasini)\1\
---------------------------------------------------------------------------
\1\ Angela Logomasini is Director of Risk and Environmental Policy
at the Competitive Enterprise Institute.
---------------------------------------------------------------------------
introduction
This year, Virginia Governor James Gilmore decided that he would
``save'' his State from New York trash imports. ``The home State of
Washington, Jefferson, and Madison has no intention of becoming the
nation's dumping ground,''\2\ the Governor noted in January. He
proposed, and the Virginia Assembly passed, several initiatives to keep
New York City from increasing imports to Virginia's landfills when the
city's landfill on Staten Island closes in year 2001. The issue
regarding who will take New York City's trash as well as imports from
other States has been percolating in other parts of the country as
well. In Pennsylvania, which is the nation's number one waste importer,
Governor Tom Ridge is seeking a way limit waste imports.\3\ New Jersey
doesn't even want New York trash to travel through the State to
landfills in other areas. When Mayor Giuliani proposed such shipments,
New Jersey Governor Christine Todd Whitman issued a press release
stating: ``Whitman to New York's Garbage Plan: Drop Dead.''\4\
---------------------------------------------------------------------------
\2\ Stephen Dinan, ``Governor Proposes 3 Trash Bills,'' Washington
Times, p. C9.
\3\ Karen MacPherson, ``Ridge Seeks Limit on Trash Imports,''
Pittsburgh Post-Gazette, March 11,1999.
\4\ Douglas Martin and Dan Barry, ``Giuliani Stirs Up Boarder
Tensions with Trash Plan,'' New York Times, December 3, 1998, p. Al.
---------------------------------------------------------------------------
Governor Tommy Thompson of Wisconsin and Governor John Engler of
Michigan are also capitalizing on the issue.\5\ And a coalition of
States are now negotiating a ``resolution'' to the garbage ``problem,''
which they hope will lead to Federal legislation.\6\ Such importing
States have attempted to ban imports, but the Supreme Court overturned
such laws under the Constitution's commerce clause, which preempts the
States from passing protectionist measures. Federal courts have
generally attempted to balance States' rights to exercise local police
power when managing solid wastes and ensuring public safety, but they
have prohibited laws that impede interstate commerce for purely
protectionist reasons.\7\ State lawmakers, frustrated with the fact
that the courts have struck down numerous laws attempting to block
imports, have turned to Congress, which has the constitutional
authority to grant them the right. Currently at question is whether
import barriers recently passed in Virginia will survive an impending
constitutional challenge.
---------------------------------------------------------------------------
\5\ For example, see: Mark Trudy, ``Garbage Glut Swells Landfills:
Trash From Outside Michigan on Increase, Gobbling Space, Raising
Environmental Fears,'' Detroit News, February 15, 1999; and Richard P.
Jones, ``Thompson Vows to Keep Ban on Out-of-State Trash,'' Milwaukee
Journal Sentinel, October 7, 1997.
\6\ Amy Porter, ``Mid-Atlantic State Discussions Laying Groundwork
for Federal Transport Bill,'' Daily Environment Report, February 12,
1999, p. AA-1.
\7\ The basis for many of these cases, is City of Philadelphia v.
New Jersey, 437 U.S. 617 (1978), which held that States cannot impede
commerce for purely protectionist reasons. They must show that such
limits are ``directed to legitimate local concerns, with effects upon
interstate commerce that are only incidental.'' That standard has been
hard for States to meet. In Fort Gratiot v. Sanitary Landfill v.
Michigan Department of Natural Resources, 504 U.S. 353 (1992), the
court held that the county commissioners in St. Clair County Michigan
could not preempt a private landfill from taking out-of-State wastes
simply because the county plan prohibited non-county wastes. In
Chemical Waste Management v. Hunt, 504 U.S.334 (1992), the Supreme
Court overturned an Alabama law that placed higher taxes-on-out of
State waste.
---------------------------------------------------------------------------
The issue became more complicated when the Supreme Court ruled on
the constitutionality of solid waste flow-control ordinances. Local
governments passed these ordinances to mandate that haulers take all
trash generated within the locality's jurisdiction to government-
designated facilities. Bureaucrats used these ordinances to prevent
competition with facilities that local governments owned or backed with
bonds. But in 1994 the Supreme Court ruled in C & A Carbone v. the Town
of Clarkston that solid waste flow-control laws were unconstitutional
because they too violated the commerce clause.\8\
---------------------------------------------------------------------------
\8\ C & A Carbone, Inc. v. Town of Clarkstown, NY, 511 U.S. 383
(1994).
---------------------------------------------------------------------------
But the real problem is lawmakers' political rhetoric regarding
waste imports. In the end, their gamesmanship will only hurt their own
State residents. Despite poor public relations that lawmakers levy
against their own States, the waste disposal industry is not really
causing unmanageable problems. Instead is it is producing major
environmental and economic benefits to importing States, particularly
benefiting low-income, rural, and often minority, communities. Usually,
lawmakers embrace businesses that improve the quality of life for their
constituents. But somehow trash is different, especially when it's from
New York.
What Free Enterprise Means to Host Communities
An often forgotten part of the debate over waste trade is the
positive impact it has on local economies and their residents. Various
communities ``host'' landfills, which means a private firm constructs a
landfill and provides the community with part of the profits.
Communities enter into these agreements voluntarily via a permitting
process, and they have benefited tremendously.\9\ These agreements deal
with the disposal of municipal solid waste (as opposed to hazardous
waste). Municipal solid waste consists of basic household trash and
non-hazardous industrial waste.
---------------------------------------------------------------------------
\9\ Rather than allow these voluntary contracts to evolve on their
own, some States have enacted laws to mandate such host fees and other
benefit ``agreements'' for all new facilities. These State laws should
be differentiated from the voluntary host agreements. Because they are
coercive in nature, they may serve as a deterrent for siting rather
than an incentive. For a description of some of these State laws see:
What's In It for Us?: A Summary of Host Community Benefits and
Policies, (New York: New York State Assembly, Legislative Commission on
Solid Waste Management, January 1998).
---------------------------------------------------------------------------
Landfill opponents have suggested that host communities should not
focus on ``greedy'' desires for the money that landfills generate but
focus instead on addressing environmental and ``real'' quality of life
concerns. But these communities were suffering because they lacked the
money to address those very concerns. By using revenues from host
landfill companies, localities are taking care of basic public health
and environmental concerns, building and upgrading water treatment
facilities, cleaning of substandard landfills, and paying off debts.
Best of all, they are lifting the burden on individuals by cutting high
taxes in many communities composed of low-income Americans.
Virginia--the State that sparked the debate most recently--is
benefiting from the landfill business enormously. At a press conference
in January 1999, some Virginia residents explained how critically
important the landfill business has proven to the livelihood of their
communities.\10\ When giving comments at the conference, the Reverend
Eddie Perry of St. John Baptist Church reviewed the history related to
the Charles City County landfill, which is located a few miles from his
church.
---------------------------------------------------------------------------
\10\ Press conference, Richmond, Virginia, hosted by the
Competitive Enterprise Institute, February 1, 1999.
---------------------------------------------------------------------------
According to Perry, just before the landfill was built, the county
faced enormous challenges. Composed of mostly farms and with only 7,000
residents, the county had low tax revenues. To pay for services, the
county had one of the highest local tax rates in the State and, on
occasion, it could not even meet government payroll. In 1992, the State
condemned the county landfill, which meant the county had to find a new
place for disposal. In addition, the schools were about to lose State
accreditation because they were in serious disrepair. Voters in the
county turned down a bond referendum to pay for new schools because, as
Perry noted, the people were already ``taxed out.'' That's when the
county organized a citizen advisory committee to decide whether they
wanted a local or regional landfill. It wasn't long before they made
their decision in favor of hosting a regional landfill, Perry noted.
Charles City County residents have enjoyed the benefits ever since.
The landfill made possible a tax cut on real estate from $1.29 to 70
cents per $100 of assessed value. In 1994, Charles City was also able
to replace the run down school buildings with a $22 million school
complex, the debt on which the county will use future landfill fees to
pay. In 1998, the landfill brought in $3.7 million--one-forth of the
county budget--according to County Administrator Kenneth Chandler.\11\
The success of this landfill led other Virginia communities to follow
suit.
---------------------------------------------------------------------------
\11\ Andrew Petkofsky, ``Landfill Fees Pay for Schools / Charles
City County Sees Benefits in Trash,'' Richmond times Dispatch, January
31, 1999.
---------------------------------------------------------------------------
The impacts statewide are well documented.\12\ For example, in
Gloucester County, the landfill company agreed to spend $1.5 million to
close the down's old landfill and another $800,000 to monitor the
facility. On top of those benefits, the county receives host fees from
imported trash and free disposal service. Host fees have proven
critical to Gloucester, where the town only collects a total of
$145,000 annually in tax revenue. The cost for building the county's
$7.8 million Bethel Elementary School would have required a 58 percent
tax hike without the host fees. In Sussex County, host fees helped fund
a new courthouse and upgrade the water supply system to the county
offices and the local jail. In King and Queen County, the landfill
generates about $1.8 million annually. Lee Busick of the King and Queen
County board of supervisors told reporter Mathew Paust of the Hampton
Roads, Virginia's Daily Press, ``I don't know what we'd do without the
income from the landfill. We have a debt of over $12 million and about
3,200 to 3,400 taxpayers.''\13\
---------------------------------------------------------------------------
\12\ Mathew Paust, ``Trash Revenue Keeps County Coffers Filled,''
Daily Press, January 26, 1999; and for additional figures in Table I
one see, Rex Springston, ``Trash Means Cash to Counties / Tough State
Rules Led to Landfill Need for More Garbage,'' Richmond Times-Dispatch,
January 31, 1999.
\13\ Mathew Paust, ``Trash Revenue Keeps County Coffers Filled,''
Daily Press, January 26, 1999.
Virginia is not the only state with localities getting in on this
action. Free enterprise in the waste management business has generated
economic benefits nationwide. Consider the impacts of Michigan
landfills, many of which began in the early 1990's and continue to
provide benefits.\14\ While Governor Engler complains about this
industry, Auburn Hills, Mich., has used host fees to upgrade its storm
water sewer system. Upgrading a storm water system can result in
considerable clean water protection benefits because inadequate systems
often overflow and send polluted water into the waterways rather than
though treatment systems.\15\ Orion Township used host fees to pay for
new roads, a new storm water system, and a water supply system. Lenox,
Mich., which only has a population of 4,600 people, installed 7.7 miles
of water line and bought a $120,000 fire truck. Sumpter Township built
a firehouse and its first sewer system. In Van Buren Township, the
Woodland Meadows landfill generated $1.7 to $2 million a year in host
fees. They gained free trash disposal, cut taxes, and tripled their
town's recreation program. In Canton Township, Auk Hills Landfill
contributed $13 million to build the town's Summit on the Park
community center.\16\ Riverview has been benefiting from landfill
business since 1967, and now its residents ski and golf on closed a
portion of their landfill while collecting $6 million annual income on
the rest. \17\
---------------------------------------------------------------------------
\14\ ``Residents Soften Opposition as Landfills Turn Trash to Cash:
Dumps Can Mean Big Money for Parks and Perks,'' Detroit News, February
5, 1999, p. C1; ``Benefits of Landfill Snowball for Michigan Town,''
Chemecology, April 1992.
\15\ For example, in 1988, New York City had to close its beaches
on several occasions because of a ``combined sewer overflow,'' when
storm water and sewer systems overflowed because of storms. The mixture
of wastes--which included raw sewage and trash from city streets,
including syringes that led to a medical waste scare--flowed into
waterways and onto nearby beaches. Cities can fix such system failures,
but the costs can reach into the millions and even billions for places
like New York. Host fees have been one important source of revenue for
such essential infrastructure repairs. For a good perspective on the
New York case, see: Michael Specter, ``Sea Dumping Ban: Good Politics,
But Not Necessarily Good Policy,'' New York Times, March 22, 1993, p.
Al.
\16\ Mark Trudy, ``Residents Soften Opposition as Landfills Turn
Trash to Cash: Dumps Can Mean Big Money for Parks and Perks,'' Detroit
News, February 5, 1999, p. C1.
\17\ Mark Trudy, ``Residents Soften Opposition as Landfills Turn
Trash to Cash: Dumps Can Mean Big Money for Parks and Perks,'' Detroit
News, February 5, 1999, p. C1; ``Benefits of Landfill Snowball for
Michigan Town,'' Chemecology, April 1992.
---------------------------------------------------------------------------
In Illinois, the town of Grayslake recently collected $380,000, its
first payment from the Countryside Landfill, which public officials
used to purchase 23,000 new books and pay for other library needs. The
host fee agreement with the landfill is expected to generate up to $10
million for the community eventually.\18\ The Spoon Ridge Landfill in
Fairview Ill., agreed to pay the community a minimum of $85,000 a year
in tipping fees when the landfill is open. Operating at full capacity,
the landfill could generate up to $1 million a year for this small
rural community. Located in a remote area at an old strip-mining site,
the landfill is surrounded by trees and, hence, is not visible to
passersby. Browning Ferris Industries (BFI), which owns the landfill,
is also going beyond State requirements to replace wetlands affected by
the landfill and is working with the Wildlife Habitat Council to
develop an environmental plan.\19\ However, the landfill is designed
largely for future use when other nearby landfills close and, hence, a
large share of the benefits will be gained in the future. Because of
local competition for waste, BFI temporarily closed the landfill until
older landfills close and more trash revenue is available for this
particular site. Yet even with the landfill closed, BFI voluntarily
continues to pay the village $50,000 a year for hosting the
landfill.\20\
---------------------------------------------------------------------------
\18\ ``Benefits for Grayslake,'' Chicago Daily Herald, February 4
1999, p. 17.
\19\ Jessica Dayton, ``Village Sees Windfall in Expanded
Landfill,'' Copely News Service, September 16, 1997.
\20\ Jessica Dayton, ``Company Says It will Cease Fairview Landfill
Operations,'' Copley News Service, June 2, 1998.
---------------------------------------------------------------------------
Fulton County, Ind., officials used $226,000 in host fees from the
County Line Landfill to help cover the costs of expanded courthouse
office space.\21\ In St. Joseph's County, Ind., the Prairieview
Landfill pays $2 per ton of waste disposed in the landfill to the
county, generating $500,000 a year.\22\ The funds are so important to
meet county needs that various townships are battling over how to use
the revenues. Being a rural agricultural area, the county has little
other income, which makes this industry's contribution to the economy
critical.
---------------------------------------------------------------------------
\21\ ``Council Makes Final Payment on Building,'' South Bend
Tribune, September 24, 1998, p. B3.
\22\ Susan Dillman, ``Securing Township Funds,'' South Bend
Tribune, February 15, 1998, p. C5.
---------------------------------------------------------------------------
In Pennsylvania, public officials in Bethlehem sold the city
landfill for $25 million to Eastern Environmental in 1998, which also
assumed the county's $38 million debt on the landfill. In this town
which only has an annual income of $1 million, the landfill is expected
to generate $7 million over a decade. Residents gained free waste
disposal for the town and turned the $38 million of debt that the city
held in the landfill into a net gain.\23\ Other Pennsylvania landfills
are seeking similar arrangements. In July of 1998, the Akron City
Council unanimously agreed to sell off its landfill to for $12 million
(a decision which is subject to EPA approval), and the landfill company
agreed to pay an addition $15 million to shut down the government's
landfill. Instead of paying $2 million a year to operate the landfill,
they will gain royalties from the privately owned landfill.\24\
---------------------------------------------------------------------------
\23\ Matt Assad, ``Landfill Pact Will Pay Off: Lower Saucon
Decision Will Add Millions to Township Coffers, Trash Foes To Fight
it,'' The Morning Call, March 20, 1998, p. B1.
\24\ Charlene Nevada, ``Akron Okays Selling Off Its Landfill: Buyer
Intends to Triple Daily Trash Load,'' Beacon Journal, July 28,1998.
Regional Landfills: A Positive Market Response
The interstate debate has intensified as America has shifted from
smaller community-based landfills to larger regional landfills that
subsist on interstate trash. The history shows that these regional
landfills--in addition to providing revenue to host communities--have
proven an environmentally sound and economically efficient response to
regulatory and market changes during the past decade.
Fears about the impacts of landfills on the local environment led
to the rise of the so-called not-in-by-backyard syndrome (NIMBY) in the
late 1980's and into the 1990's. According to one poll, 28 percent of
the public was concerned about landfill-created groundwater pollution
in 1981, while 58 percent express concern by 1988.\25\ At the same
time, public officials were proclaiming that the United States faced a
national ``landfill crisis.'' The Office of Technology Assessment
issued a report stating that most existing landfills in the United
States would close within five to 10 years and that siting replacement
landfills was increasingly difficult because of NIMBY.\26\
---------------------------------------------------------------------------
\25\ Jennifer Chilton and Kenneth Chilton, ``A Critique of Risk
Modeling and Risk Assessment of Municipal Landfills Based on U.S.
Environmental Protection Agency Techniques,'' Waste Management and
Research (1992) Vol. 10, pp. 505-516.
\26\ Facing America's Trash, What Next for Municipal Solid Waste,
(Washington, DC: USGPO, 1998) p. 283.
---------------------------------------------------------------------------
However, these statistics exaggerated the impending ``capacity
shortage'' because they failed to recognize that new landfills tended
to be much larger than the old ones. Nonetheless, media hype blew the
problem out of proportion. The conventional ``wisdom'' became that we
would soon run out of landfill space and would be buried in our trash.
Americans would have to drastically reduce their waste, warned a
Newsweek article, ``[o]therwise, the dumps will cover the country coast
to coast and the trucks will stop in everybody's backyard.''\27\ Amidst
these public fears and pressures, the U.S. Environmental Protection
Agency (EPA) promulgated regulations to increase landfill design
standards, which they finalized in 1991.
---------------------------------------------------------------------------
\27\ Melinda Beck with Mary Hager, Patricia King, Sue Hutchinson,
Kate Robins, Jeanne Gorden, ``Buried Alive,'' Newsweek, November 27,
1989, pp. 66-76.
---------------------------------------------------------------------------
The costs of new regulations made it more difficult for localities
to shoulder the expense of the smaller landfills that served their
communities. Private landfill companies--anxious to ``solve'' the
landfill ``crisis'' by developing lots of new landfill capacity--also
experienced increased costs associated with siting landfills in the
face of NIMBY. Companies spent years attempting to gain permits and
often paid high costs for failed attempts. Accordingly, when they did
overcome NIMBY, they sited larger facilities that would last longer and
enable them to recoup their investments. Many times, in order to
overcome NIMBY, private companies offered host agreements that include
host fees and free trash disposal to communities in exchange for the
right to construct a regional landfill that would earn its income from
out-of-State trash. Hence, these landfills could not exist without
accepting interstate waste. The result was the birth of the modern,
regional landfill and increasing interstate movement of municipal solid
waste. The landfill capacity ``crisis'' never came to fruition, and now
competition between landfills is the norm.
The development of regional landfills should be viewed as a success
story in which the various players in the marketplace managed to find a
solution within a difficult political and regulatory environment. While
political rhetoric suggests that landfills pose a huge dilemma for many
communities, they have in fact become the answer to many of the
economic troubles that rural, low-income communities face. And no
longer do we worry about a capacity shortage. Instead, competition to
gain trash revenues is more common. For example, in Wayne County,
Mich., Sumpter Township's host fee income dropped from $2.1 million
annually during the 1980's to less than $1 million by 1994 because of
competition from another landfill.\28\
---------------------------------------------------------------------------
\28\ ``Residents Soften Opposition as Landfills Turn Trash to
Cash: Dumps Can Mean Big Money for Parks and Perks,'' Detroit News,
February 5, 1999, p. C1.
---------------------------------------------------------------------------
Consider how the marketplace response worked for Virginia. In 1988,
the U.S. Office of Technology Assessment warned that Virginia and seven
other States (including today's number one importer: Pennsylvania)
faced a serious dilemma because all their landfills had only 5 years
left, and it usually takes at least 5 years to site facilities.\29\ Yet
Virginia now has a competitive landfill industry, which includes seven
high-tech, regional landfills--consuming only .008 of 1 percent of
State land\30\--that provide jobs and have proven a vital part of the
State's economy. These seven regional landfills employed 196 State
residents full time in 1996, paying out wages of $6 million. They are
responsible for indirectly creating an additional 255 year-round jobs
and 130 seasonal jobs. The hauling side of the industry creates an
additional 1,450 jobs, paying wages of $35 million. On a yearly basis,
it brings in more than $.5 billion annually to the State.\31\
---------------------------------------------------------------------------
\29\ Facing America's Trash, What Next for Municipal Solid Waste
(Washington, DC: USGPO, 1998) p. 283.
\30\ Solid Waste Management in Virginia (Richmond: Commonwealth of
Virginia, Department of Environmental Quality, 1997).
\31\ Vector Corporation, ``Host Community Benefits Point Paper,''
Prepared for the Interstate Waste Commission, October 31, 1997.
---------------------------------------------------------------------------
Yet despite these trends, free trade opponents continue to argue
that States should be self-sufficient and that each should take care of
all its own waste. Similarly, the argument occurs at the local level,
where some demand that each county manage all its own waste. But why
stop at the county level? This ``logic'' demands that each household be
responsible enough to manage all its own waste with a landfill located
on site. Maybe some people would even want their very own backyard
landfill. One couple in Kansas City, Kan., actually applied for a
permit to put a landfill in its backyard to dispose of industrial
wastes, but public officials denied that request.\32\ But most people
will acknowledge that mandating backyard landfills would make as much
sense as expecting each household to feed itself from farming its own
land, providing its own medicine, producing its own paper, building its
own computers, and basically running an entire economy from home.
Demanding that each State or county manage all its own wastes or gain
self-sufficiency in any market is equally nonsensical.
---------------------------------------------------------------------------
\32\ Donald Bradley, ``Zoning Board Denies Couple's Request to put
Landfill in Backyard,'' Kansas City Star, March 9, 1999.
---------------------------------------------------------------------------
Consider the mess that such self-sufficiency planning has caused
for New Jersey. Operating under the assumption that it could employ
flow control laws, the State issued $2 billion in solid waste disposal
bonds for waste transfer stations and waste-to-energy incinerators.
Then when these facilities proved more expensive than landfills in
other States as well as other options, the State employed a statewide
flow control law to force localities and private haulers to only do
business with the government-backed facilities.
Many mayors opposed the State law because it greatly increased
their disposal costs. State officials in New Jersey should recognize
their mistake and stop protecting poor investments. Yet even after
Carbone, State officials have continued to plan and regulate the State
solid waste economy--creating more problems. They have spent taxpayer
dollars in court trying to prove that their version of flow control is
constitutional, but the Federal courts have shot down their claims.\33\
State bureaucrats have since turned to other schemes to recoup their
losses, including a policy that drastically reduces costs on
government-backed facilities and then levies taxes on haulers to make
up the difference.\34\
---------------------------------------------------------------------------
\33\ Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen
Freeholders of Atlantic County, 112 F.3d. (3d. Cir. 1977) (Atlantic
Coast 11), cert denied sub nom., Essex County Utilities Authority v.
Atlantic Coast Demolition & Recycling Inc. 118 S. Ct. 413 (1997),
opinion amended by 135 F.3d 891 (3d Cir. 1998).
\34\ See Sarah Halsted, ``Haulers Take New Jersey Counties to
Court,'' Waste Age, June 1998.
---------------------------------------------------------------------------
Instead of investing in uncompetitive facilities or banning imports
and competition, States should stop preventing the private sector from
building facilities and competing. For example, Massachusetts may soon
enter the fray as a major exporter because the State's 5-year-old
moratorium on the development of landfill space means the State is
running low on space. If the State does not lift its moratorium, it
will have a two million ton capacity shortfall by the end of 1999,
according to Steven G. Changaris, Regional Manager of the National
Solid Wastes Management Association. In 1998, the State disposed of 2.5
million tons of waste, but by the end of this year it will only have
capacity to handle 500,000 tons a year. As supply dries up, the price
of landfill space rises considerably in Massachusetts. ``Because of
fewer disposal options, prices increased more than 30 percent last
month,'' noted Michael Camara owner of ABC Disposal in New Bedford,
Mass.\35\ Opening markets in places like Massachusetts--rather than
increasing exports--would not only be good for residents in these
States, it would help alleviate interstate trash disputes.
---------------------------------------------------------------------------
\35\ ``Waste Haulers Plan to Protest DEP Moratorium,'' Business
Wire, April 22, 1999.
---------------------------------------------------------------------------
The Political Debates
Despite the beneficial results of the growth in regional landfills
and subsequent commerce of municipal solid waste, lawmakers are
prepared act solely based on politics as the recent New York-Virginia
debate highlighted. Unfortunately, the quarrel between Virginia and New
York revived an old political debate, once spearheaded by former
Senator Dan Coats (R-Ind.) whose State was once a major trash importer.
Lawmakers like to raise the issue because it sells politically.
In addition to the rhetorical value of these debates for lawmakers,
both the interstate trade and the flow control issues are important to
State and local solid waste bureaucrats to support faulty government
waste management planning schemes. Under the Federal Resource
Conservation and Recovery Act (RCRA, the EPA provides States with
grants when they develop solid waste management plans. Most States,
accordingly, develop plans and seek EPA approval. The process entails
planning the waste disposal industry pretty much the way socialists
used to manage their economies, and it works just about as well. State
and local bureaucrats estimate how much trash they will produce and
where they will dispose of it for the next five to 30 years.
The result has been many bad government investments in inefficient
incinerators and other disposal facilities, mandated recycling programs
that siphon enormous sums of money away from other needs, rate
regulation that reduces competition, and other policies that raise
costs for consumers and taxpayers.\36\ Flow-control and interstate
waste trade restrictions were tools they could use to overcome market
forces (and, although unintended, marketplace efficiencies).
Ironically, while government planners tried to mandate recycling when
it did not make sense, they used flow control laws to keep wastes going
to government facilities, often undermining efficient, market-driven
recycling. But since the courts have overruled these laws, market
forces have begun to play a larger role in the industry and have, as
noted, proven positive.
---------------------------------------------------------------------------
\36\ For an overview of government planning problems see Angela
Logomasini, ``Municipal Solid Waste Mismanagement: Government Failures
and Private Alternatives,'' Journal of Regulation and Social Costs,
Vol. 3, No. 1, June 1993, pp. 61-81.
---------------------------------------------------------------------------
Nonetheless, Congress has attempted to deal with this issue on
several occasions starting with the 1992 attempt to reauthorize RCRA.
Bills dealing with interstate commerce advanced during the 103rd
Congress, but they hit a snag at the end of the 103rd Congress when the
Supreme Court issued the Carbone decision. Hence, lawmakers attached
flow control authority legislation to the interstate trade bill,
creating more interests to balance at the end of the session and
eventually derailing the bill because one senator's objection to the
flow control provisions.
During the 104th Congress, both the interstate trade and flow
control debates continued. With a new majority and more time to debate
the issues, the interstate trade and flow control interests created a
political dynamic in which proposals on neither issue could pass into
law.
From a public policy perspective, this politically driven result
has proven economically sound. Many localities argued that they needed
flow control laws to protect their investments in government-bonded
facilities that were built with the assumption that localities could
assure revenues by directing all waste business to those facilities.
They claimed that these plants would go out of business and their
communities would pay high taxes to cover the debt. In an open market,
some firms go out of business when they are not efficient. That's
considered a good thing because it means only the best providers
survive.
However, Carbone did not create even this alleged ``disaster.'' No
facility has gone out of business because of Carbone. In any case,
communities benefit from the newly competitive environment because now
these facilities must find ways to compete with more efficient
operations, and haulers may conduct business with the lowest-cost
providers. Under these circumstances, localities must make more sound
decisions based on market realities, which saves their constituents
from more faulty government investments.\37\
---------------------------------------------------------------------------
\37\ For a more detailed discussion of the problems with flow
control see Jonathan Adler, ``The Failure of Flow Control, Regulation,
No. 2, 1995; The Cost of Flow Control, (Washington, DC: National
Economic Research Associates, 1995); and Angela Logomasini, Going
Against the Flow, The Case for Competition in Solid Waste Management
(Washington, DC: Citizens for a Sound Economy Foundation, 1995).
---------------------------------------------------------------------------
Because recent laws passed in Virginia will be subject to court
challenges, Senators Charles Robb (D-VA) and John Warner (R-VA)
introduced S. 533, the Interstate Transportation of Municipal Solid
Waste Control Act of 1999. The bill sets up a complicated scheme that
includes an automatic ban on all imports to some landfills, while
providing limited exemptions to others such as existing host landfills.
However, while the automatic ban does not apply to communities with
existing host agreements, other import limitations would apply.
Governors could freeze imports at 1998 levels in States that accepted
more than one million tons of waste in 1998. It would also allow States
that reach the one million ton import mark to freeze total imports at
the level the first year that exceeds that mark. The bill would also
allow governors to prohibit imports from ``super exporting States,''
which the bill defines as States that export at least a total of six
million tons annually. In addition, it sets in place bureaucratic
requirements for localities to submit requests to increase imports or
terminate bans on imports from super-exporting States; and it allows
States to impose taxes on out-of-State waste, starting at $3 per ton in
2001. States could then tax imports from ``super exporting States'' $25
per ton in 2002, $50 per ton in 2003, and $100 per ton in year 2004.
Rep. Jim Greenwood (R-PA) and Senator Arlen Specter (R-PA) have
introduced legislation again attempting to set up a bureaucratic maze
of regulations that allow various import limits. The legislation (H.R.
1190 in the House and S. 663 in the Senate) include an automatic ban
with some exemptions for existing host communities along the same lines
as the Robb-Warner bill. It addition, it would allow States to freeze
imports to 1993 amounts for non-host communities. Despite the exemption
for host communities, one provision could enable States to undermine
host agreements. It allows them to pass laws to deny permit renewals
for such facilities when regulars deem it in the local or regional
interest.
The bill would allow for a couple other anti-trade actions. One
provision would let States limit imports to 1995 levels if the State
passes a statewide mandated recycling program and gains EPA approval, a
provision designed to gain support from Wisconsin legislators.
Wisconsin had passed a law to block imports from States that don't have
mandated recycling programs. Federal courts have recently ruled the
Wisconsin law unconstitutional.\38\ Another provision would also give
States the authority to tax out-of-State waste up to $2 per ton.\39\
---------------------------------------------------------------------------
\38\ National Solid Wastes Management Association v. Meyer, 7th
Cir., No. 98-2683.
\39\ The Supreme Court had ruled unconstitutional policies imposing
higher taxes on out-of-State waste, Chemical Waste Management v. Hunt,
504 U.S. 334 (1992); Oregon Waste Sys. v. Department of Envtl. Quality
of Ore., 511 U.S. 93 (1994).
---------------------------------------------------------------------------
The Greenwood-Specter bill also includes provisions that would
allow flow control for facilities that relied on such agreements before
Carbone. It would allow the Carbone decision to stand for all other
facilities. Ironically, the inclusion of both provisions illustrates
the absurdity of waste management planning. On the one hand, they are
trying to keep waste out of their States, while on the other they are
fighting to keep waste from leaving various communities because they
don't want to loose the disposal fee revenue.
More recently, Senators George Voinovich (R-OH) and Evan Bayh (D-
IN) introduced S. 872, which would ban imports except to host
facilities (which would have to get permission from the State to take
imports). The bill would allow a ``permit cap'' that would enable
States to limit landfill expansions and permitting when such would
serve the purpose of taking out-of-State waste. States could deny
permits for new facilities on the grounds that the facility is not
needed to serve State disposal needs, which means they could ban the
siting of regional facilities. The bill would also allow States to
freeze waste imports at 1993 levels (and in some cases 65 percent of
that amount) and levy a $3 per ton tax on imported waste. Finally, the
bill would include a provision that allows some flow control authority
for facilities that depended on flow control before Carbone.
The thrust of all these bills is to undermine free enterprise in
the waste disposal industry and return to a failed system of government
planning and control. It simply turns back the progress that the
industry had made in solving problems and putting an end to the so-
called garbage crisis of the early 1990's. It will mean that private
industry and localities will have less room to find solutions. The more
efficient, regional landfills will become less attractive investments
(and fewer communities will benefit). And governments will be forced
(because they lack disposal alternatives) to invest in financially
unwise facilities.
Several States--where access to inexpensive land and economic needs
made landfills attractive investments in the past--will effectively
have capacity surpluses, while others (where space is scarce) will have
shortages. People in States with excess landfill space will suffer the
economic consequences of not using their resources most fully, while
those with shortages will face the high price of building less
economical facilities. Undermining communities' abilities to engage in
host agreements will also mean fewer opportunities to gain private
funds for closing and monitoring substandard landfills. Finally,
increased costs of disposal associated with making the market less
efficient can lead to an increase in illegal dumping.
Some of the proposals include qualified exemptions for localities
and host communities, but taxes and overall import limits promise to
give those little meaning. In any case, if Federal lawmakers did make a
more honest attempt to provide exemptions, local governments should
remain wary of embarking down that slippery slope. Once lawmakers act,
it will become much easier to further undermine free trade between the
States when the issue comes up again. Moreover, exemptions may attempt
to alleviate some of the pain for those who managed to get in the
business early, but these proposals would prevent others from entering
the business, eliminating their prerogative altogether.
Devolution or Paternalism?
State governors paint this issue as one of devolving power to the
State level. But Federal lawmakers should realize that allowing States
to regulate commerce is not actually devolving power. Rather, it
entails taking power away from local communities and giving it to State
lawmakers who seek to use this power for political gain. Somehow, these
lawmakers think they know better than local officials, and they are
more than happy to trump local initiatives. ``Some localities actually
want it [interstate waste trade]. They see it as an economic boon, but
I think it's an unwise way to help the economy,'' said Virginia House
Speaker Thomas W. Moss Jr. just before the State began its 1999
legislative session. \40\
---------------------------------------------------------------------------
\40\ Donald P. Baker, ``In Virginia, Support Grows for Landfill
Restraints; Republicans, Democrats Agree on Need,'' Washington Post,
November 25, 1998, p. B01.
---------------------------------------------------------------------------
Rev. Eddie Perry exclaimed: ``In Virginia we pride ourselves on
local options--or the localities deciding for themselves, but then all
of a sudden people want to say no to trash, impeding what localities
had decided for themselves.'' Charles City County residents went into
the landfill business ``with their eyes open,'' as the result of
``conscious decisions by the citizens of Charles City,'' Perry
explained.\41\ But the new State regulations setting caps on the amount
of waste that the landfill can take will harm his county because it was
not meeting its potential income, which had declined in recent years
because of competition.
---------------------------------------------------------------------------
\41\ Press conference, Richmond, Va., hosted by the Competitive
Enterprise Institute, February 1, 1999.
---------------------------------------------------------------------------
Ironically, as lawmakers decried the imports of ``Yankee trash,''
Virginia's oldest plantation, where the great Confederate General
Robert E. Lee's mother grew up, planned to generate income from the
waste disposal business to maintain the historic landmark. But the
State of Virginia's paternalistic policies have left the plantation--
and its 11th generation heir, Charles Carter--high and dry.
Carter is trying to keep the historic plantation, which does not
receive government subsidies or even private contributions, in family
hands. But paying off the death taxes when he inherits the property may
be more than Carter family can bear. The Carter family generates some
income by opening up its home and property for tours, which brings in
more than 50,000 visitors a year. But with the cost of maintaining the
property, paying an annual life insurance policy of more than $40,000
for his father, and the fear that he won't have enough to cover the
death tax, Carter has to find addition sources of revenue.
In 1996, he entered into an agreement with Waste Management Inc. to
dedicate a corner of his property for a port though which trash would
pass on its way to the Charles City County landfill located a few miles
away. But State lawmakers have squashed his enterprise--at least for
now--by banning the barges that would have imported trash to the
port.\42\
---------------------------------------------------------------------------
\42\ For an interesting overview of this story see: Robin Eisner,
``A Port Ready For Trash that May Never Arrive,'' Staten Island
Advance, March 1, 1999.
---------------------------------------------------------------------------
Carter is not the only one left out the cold. As the Virginia
Assembly was considering bills to limit imports, Bristol City Manager
Paul Spangler lamented, ``We went to great lengths to establish a
regional facility, invested $22 million to build a landfill to serve
Southwest Virginia, complied with State regulations, spent 8 years,
thousands of man-hours, and hundreds of trips to Richmond doing it, and
once we have overcome monumental hurdles to get it approved, it seems
like we're being penalized for paying by the rules . . . It all seems
unfair.''\43\
---------------------------------------------------------------------------
\43\ Ann Grundon, ``Bristol Fears New Trash Rules Could Pose Threat
to Landfill,'' Richmond Times-Dispatch, February 1 6,1 999.
---------------------------------------------------------------------------
Indeed, it would cost the city dearly. ``If this ban on out-of-
State trash passes, there is a very real possibility we would have to
shut down. If that happens, we have to pay more to dispose of Bristol's
trash somewhere else and we still have the debt to pay off with no
revenue coming in,''\44\ says Assistant City Manager Bill Dennison. The
city still has a $20.2 million debt on the facility.
---------------------------------------------------------------------------
\44\ Ann Grundon, ``Bristol Fears New Trash Rules Could Pose Threat
to Landfill,'' Richmond Times-Dispatch, February 16, 1999.
---------------------------------------------------------------------------
It is true that some people in these localities oppose landfills
and such opposition leads to controversies related to siting. But when
local governments site facilities, they weigh those concerns against
those who support the landfills. In Amelia County, Va., debate over the
landfill was fierce, but county officials decided to allow it because
they recognized the benefits. Some local lawmakers of them paid a
political price, losing their seats on the county board. Still,
according to one observer, ``Every person in this county has benefited
from the landfill. . . . I think a majority now accepts it.''\45\
---------------------------------------------------------------------------
\45\ Quote of Mike Salster, editor of Amelia's weekly newspaper as
quoted by Rex Springston, ``Trash Means Cash to Counties / Tough State
Rules Led to landfill need for More Garbage,'' Richmond Times-Dispatch,
January 31, 1999.
---------------------------------------------------------------------------
In Pennsylvania, it took years of negotiations to approve the host
agreement for the city of Bethlehem to sell its government-owned
landfill and set up a host agreement with Eastern Environmental
Services.\46\ Bethlehem needed to get approval of the Lower Saucon
Township, which eventually supported the landfill by a margin of 3-2
vote of the township's council. Saucon negotiated a buffer zone and a
$500,000 payment to the township, which it would use to build an
emergency fund. ``The agreement by Lower Saucon Township was a true act
of political courage,'' according to Bethlehem Mayor Don Cunningham.
There were indeed those who opposed the landfill, but elected officials
thought best for the community at large.\47\
---------------------------------------------------------------------------
\46\ Waste Management Inc. has since purchased Environmental
Services, but Waste Management agreed to sell the landfill under a
lawsuit settlement with the Department of Justice.
\47\ Matt Assad, ``Landfill Pact Will Pay Off: Lower Saucon
Decision will add Millions to Township Coffers. Trash Foes to Fight
It,'' The Morning Call, March 2O, 1998, p. B1.
---------------------------------------------------------------------------
Disagreement, debate, bargaining, and yes even a little
controversy, are part of governing. In the end, public officials make
decisions by balancing the interests. This system, although far from
perfect, is better than dictatorial regimes, and such policymaking is
least coercive when closest to those involved. Under commerce clause
protection, such landfill host decisions are practically as local as
government gets. Proposals to turn these powers to the States will take
these critical quality of life decisions away from localities and pass
them up to State-level lawmakers who are more interested in scoring
rhetorical political points than in truly helping those affected.
Landfills: What Are the Risks?
A large part of the debate revolves around the alleged
environmental and public health risks of landfills. Free-trade
opponents suggest that landfills will inevitably contaminate
groundwater and create toxic waste sites that will cost future
generations millions of dollars to clean. Why should one State assume
the risks of another, opponents of interstate trade ask? On the other
hand, others contend that modern landfills are extremely safe. When
describing the landfill in Charles City County, Va., Professor William
Rathje, director of the Garbage Project at the University of Arizona,
describes the safety measures employed by modern landfills, which he
contends are extremely safe:
First, the landfill, which opened in 1990 before most of the
others, has a double composite plastic 60-millimeter liner as well as a
clay liner and drainage layers, all of which guard against leakage into
the outside environment. There is also a system to collect leachate
(fluids that reach the bottom of the landfill), and most of the trapped
leachate is delivered into a sewage treatment plant nearby for
cleaning. The landfill has methane wells regularly drilled to vent or
collect the methane gas for future use. In addition they 289-acre
landfill is surrounded by a 700-acre buffer. Finally, having spent 25
years in the waste arena, I was not surprised to learn that the
landfill's manager, Lee Wilson, has a degree in civil engineering and
decided to get into the waste business to ``minimize the environmental
impacts of our garbage.''\48\
---------------------------------------------------------------------------
\48\ William Rathje, ``Talking Trash,'' Washington Post, Sunday,
February 7, 1999, pp. B1, B4.
---------------------------------------------------------------------------
Still it is true that landfills pose risks. Everything in life has
risks--every occupation, every form of recreation, and every form of
waste disposal. The key is whether a community is willing to bear those
risks in exchange for the benefits of an activity. People make the same
type of risk decisions everyday. We drive in our car knowing that
there's a chance we could get in an accident, but we enjoy the benefits
of convenient travel so we accept those risks. Communities should be
free to make such decisions themselves, especially when the risk is
insignificant.
When compared to most other forms of business and activities we
experience in daily living, the risks posed by landfills to the
surrounding communities are miniscule. In 1991, when the EPA proposed
new landfill standards, it collected data on existing landfills. Using
the EPA data, researchers Jennifer Chilton (a researcher at the John M.
Olin School of Business at Washington University) and Kenneth Chilton
(Center for the Study of American Business) conducted a study to
estimate likely landfill risks. They found that for 60 percent of the
landfills in existence, the cancer risks were one in ten billion. For
another 6 percent, the risk was less than one in a billion and for 17
percent, landfills posed a one in a million cancer risk.\49\ The worst
landfills--5 percent existing at the time--posed a risk that could
exceed one in 100,000. Considering the fact that these figures were
derived before modern landfill standards took effect, new landfills
should pose the lowest of risks.
---------------------------------------------------------------------------
\49\ Jennifer Chilton and Kenneth Chilton, ``A Critique of Risk
Modeling and Risk Assessment of Municipal Landfills Based on U.S.
Environmental Protection Agency Techniques,'' Waste Management and
Research (1992) Vol. 10, pp. 505-516.
---------------------------------------------------------------------------
Modern landfills likely fall in the low risk category and it's
reasonable to assume that the risk is far less than one in a million.
But in order to grasp how safe these landfills are, consider what a one
in a million risk level means. One study lists some activities that
pose a one-in-a-million risk of death. According to this study, you
have a one in a million chance of dying during a 1 year period from any
of the following activities: drinking a liter of wine; traveling 6
minutes by canoe; traveling 300 miles by car; traveling 10 miles by
bicycle; and flying 1,000 by jet.\50\ The Environmental Protection
Agency often employs the one-in-a-million risk level as the acceptable
goal for agency regulation, and sometimes it considers one in 100,000
or one in 10,000 acceptable, and even one in 1,000. According to an
analysis conducted by an agency official, the one in a million risk
level allows a risk that is ``almost vanishingly small,'' when compared
to other risks we assume acceptable, which are in aggregate are ``a
million times larger.'' If we applied the one in a million standard to
other activities, ``a large portion of goods and services could not be
produced.'' For example, he notes, we'd have to eliminate cooking,
paving of roads, x-rays, anesthesiology, masonry, plumbing, painting,
carpentry, and farming.\51\ Nonetheless, we engage in these activities
because they eliminate more serious risks and make our lives better.
---------------------------------------------------------------------------
\50\ Richard Wilson, ``Analyzing the Daily Risks of Life,''
Readings in Risk, Theodore S. Glickman and Michael Gough (editors)
(Washington, DC: Resources for the Future, 1990)
\51\ Paul Milvy, ``A General Guideline for Management of Risk from
Carcinogens,'' Risk Analysis, Vol. 6, No. 1, 1986.
Chart Sources: Jennifer Chilton and Kenneth Chilton, ``A Critique
of Risk Modeling and Risk Assessment of Municipal Landfills Based on U.
S. Environmental Protection Agency Techniques, `` Waste Management and
Research (1992) Vol. 10, pp. 505-516, (landfills). Richard Wilson,
``Analyzing the Daily Risks of Life, `` Readings in Risk Theodore S.
Glickman and Michael Cough, editors (Washington, D. C: Resources for
the Future, 1990), p. 57 (one-in-a million risk comparisons).
Like farming and cooking, landfilling reduces other risks and
improves our quality of life. While it imposes some risk (a very small
one as demonstrated) we would suffer greater risks without it. The
history of waste management reminds us that landfills are a solution to
serious health risks--not the problem. Consider one historian's
description of how ancient Paris once managed its waste:
Since ancient times, the basic rule for dealing with Parisian
garbage was ``tout-a-la-rue''--all in the street--including household
waste, urine, feces and even fetuses. Larger items were frequently
thrown into the ``no-man's-land'' over the city wall or into the Seine.
Feces, however, was often collected to be used as fertilizer. Parisian
dirt streets easily assimilated the refuse thanks to frequent rain and
heavy pedestrian and cart traffic. The edible muck was often consumed
by pigs and wild dogs, and the rest was consumed by microorganisms. The
smell of the rotting matter was terrible but by no means the only
contribution to the odors found in Paris.\52\
---------------------------------------------------------------------------
\52\ Frederique Krupa, Paris: Urban Sanitation Before the 20th
Century, December 1991, University of the Arts, http://www.op.net/
uarts/krupa/alltextparis.html.
---------------------------------------------------------------------------
The author notes that Paris wasn't much different from other
places. Thankfully, we've come a long way since then. When public
health advocates began to realize the health dangers of waste, the
waste industry emerged--not as a menace as some now tag them--but as a
provider of an important public health service. In a recent Wall Street
Journal article, Jeff Bailey noted that one of New York's early
``sanitation engineers,'' Col. George E. Waring Jr., was known as the
``apostle of cleanliness'' and the ``fever slayer.'' He was remembered
for ``turning trash collection and disposal into a professionally run
municipal service, and for imbuing in working-class New Yorkers the
understanding that filth is unhealthy.''\53\ Today, we don't simply
dump trash. We have modern landfills that pose miniscule risks. That
service is something to celebrate, not demonize.\54\
---------------------------------------------------------------------------
\53\Jeff Bailey, ``The Advent of Cities Brought with it a Big
Question: What do we do with all the Garbage,?'' Wall Street Journal,
January 11, 1999, R52; Bailey cites Martin Melosi, known for his book,
Garbage in the Cities: Refuse, Reform and the [Environment, 1880-1980
(College Station and London: Texas A&M University Press, 1981).
\54\ Many suggest that we should force recycling all waste because
they say it's inherently better. But they simply ignore the risks and
costs associated with recycling. Recycling activities can increase
risks in other areas, and it is only technically feasible and
economically efficient to recycle a certain portion of our waste.
Landfilling and recycling should compete in the marketplace, ensuring
the most efficient mixture of recycling and landfilling, along with
other alternatives that emerge through the competitive system.
---------------------------------------------------------------------------
Diversionary Tactics: ``Trashnet'' and Medical Waste Scares
Once the waste issue in Virginia was in full swing, lawmakers began
a serious of public relations gimmicks to keep the issue moving. These
events are important to review because the critical impact they had,
and continue to have, in pushing forward the agenda to limit out-of-
State waste. The events began with the ``Trashnet'' investigation, a
conveniently timed, three-day, seven-State intensive inspection of
trash trucks and their contents. Regulators found trucking safety
violations, which included bad breaks, flat tires, overly heavy loads,
and improper licenses. Republican State Senator Bill Bolling viewed
these violations as an opportunity to raise red flags and hopefully
help him push his legislation aimed at ending waste imports. ``If we
found these types of problems during a three-day spot check, what goes
on 362 days of the year?'' he complained.\55\
---------------------------------------------------------------------------
\55\ Rex Springston, ``Medical Waste Stirs Furor / Gilmore: Fine
Firm that Sent New York Trash,'' Richmond Times Dispatch, February 12,
1999.
---------------------------------------------------------------------------
Clearly, people should be concerned about truck safety,
particularly those in the industry who drive the trucks and employ
others who do. However, if lawmakers and regulators want to get such
safety problems under control, perhaps they could have done a better
job enforcing the laws they had rather than simply using safety
problems as part of a public relations stunt. Furthermore, the problems
were not as severe as suggested. In regard to the trucking safety
violations, out of the 417 trucks stopped in Maryland, DC, and
Virginia, 37 experienced violations. That amount represented a 9
percent violation rate--an above average performance considering the 25
percent truck safety rate nationwide.\56\ However, the violations do
raise reasons for concern and rather than simply using them for
political gain, lawmakers should be concerned at all times. Industry
should be most concerned because it's their workers and their potential
liability. But it's not reasonable to ban free trade for entire
industry because some portion of its workers get into accidents or
don't meet standards. A reasoned solution would address the specific
problem--in this case trucking violations--not throw out the baby with
the bath water, i.e., instituting policies that keep even the
responsible truckers from doing business in Virginia.
---------------------------------------------------------------------------
\56\ Craig Timber and Eric Lipton, ``7 States, DC, Crack Down on
Trash Haulers, Washington Post, February 9, 1999, p. B1; See also:
Motor Carrier Safety Analysis, Facts, & Evaluation, (Washington, DC:
U.S. Department of Transportation, 1998), Vol. 3, No. iii.
---------------------------------------------------------------------------
Ironically, Virginia's solution--banning garbage barges--actually
could put more truckers on the road or prevent the industry from using
a safer alternative that would reduce existing truck traffic. As noted
earlier, in an attempt to keep New York waste from coming to Virginia,
the assembly passed, and the Governor signed, a bill to ban trash
barges from traveling in State waters. Since a barge can carry as much
trash as 300 trucks, the industry's plan to begin using barges would
have dramatically reduced trucks on the road. Barges not only reduce
traffic, they carry cargo nine times further using the same amount of
energy, emit less than one-seventh of the air pollution, and have the
fewest accidents and spills than any other mode of transportation,
according to a 1994 U.S. Department of Transportation study.\57\
---------------------------------------------------------------------------
\57\ Environmental Advantages of Inland Barge Transportation
(Washington, DC: Department of Transportation, U.S. Maritime
Administration, 1994).
---------------------------------------------------------------------------
But the hype about trucking wasn't the end of it. To make matters
worse, State regulators then inspected landfills and found what
appeared to be medical waste being dumped in the Charles City County
landfill. Governor Gilmore jumped on the opportunity, holding a press
event at which he exhibited what he said were blood stained sheets,
syringes, and bandages. At the event, he exclaimed, ``As governor, I am
just not going to tolerate Waste Management's callous behavior. . . .
Waste Management has shown a blatant disregard for the health and
safety of Virginians.''\58\ Gilmore suggested that he might want to ban
waste management's trucks from State highways.
---------------------------------------------------------------------------
\58\ Rex Springston, ``Medical Waste Stirs Furor/Gilmore: Fine Firm
that Sent ICY. Trash,'' Richmond Times Dispatch, February 12, 1999.
---------------------------------------------------------------------------
The medical waste scare campaign raises other issues. Many remember
the public fears that the appearance of medical wastes on New York
beaches caused in 1988.\59\ Congressional lawmakers used this case to
pass legislation regulating medical waste to show that they were
``doing something.'' But according to the Centers for Disease Control
and Prevention, ``medical waste does not contain any greater quantity
or different type of microbiologic agents than residential waste.''\60\
Another study notes: ``Several studies in Europe have shown that fewer
organisms are present in hospital waste than in domestic waste and that
the potential pathogens present are similar in both types of waste . .
. There is therefore no evidence that hospital waste is more hazardous
than domestic waste, or that hospital waste has been responsible for
disease in the community or in hospital staff, apart from needles and
possibly sharp instruments . . . Syringe needles and other sharp
instruments are the only items known to have transmitted infection to
hospital staff, but not to other staff handling waste in the
community.''\61\ Accordingly, rather than addressing a real public
health need, the medical waste law simply added costs to a health care
industry that was already struggling with cost concerns.
---------------------------------------------------------------------------
\59\ Apparently the trash was from city, not medical institutions,
see footnote 13.
\60\ `Perspectives in Disease Prevention and Health Promotion
Summary of the Agency for Toxic Substances and Disease Registry Report
to Congress: The Public Health Implications of Medical Waste,''
Morbidity and Mortality Weekly Report, November 16, 1990,39(45), pp.
822-824.
\61\ Graham A.J. Ayliffe, ``Clinical Waste: How Dangerous is it?''
Current Opinion in Infectious Diseases, 1994, 7:499-502.
---------------------------------------------------------------------------
Hence, it is unfair to raise fears that this waste would somehow
affect the public at large. The risk of infection rests mostly with
health care workers who are trained in management of these materials.
It is not inconceivable that needles or sharp objects could harm those
in the waste management industry, but the risks are very small and not
much larger than risks posed by sharp objects found in residential
waste. That may be why both Federal and State laws allow some medical
waste to enter landfills, untreated. Yet some waste must go through
expensive sterilization processes. It is doubtful that such processes
significantly improve public safety, but public perceptions have more
impact on what becomes law. (Ironically, the sterilization processes
themselves pose an additional set of environmental concerns.)
In any case, trash companies have to comply with the law whether or
not it makes sense. However there is confusion over what is considered
``regulated medical waste.'' State law does allow some medical waste to
enter landfills. During Trashnet, Governor Gilmore collected materials
that could possibly be regulated medical waste and then quickly held a
press conference, claiming all the waste was illegal and represented a
gross violation by Waste Management, Inc. But in a brief to the court,
Waste Management contended that the waste was legal and that some of it
wasn't even medical waste. For example, according to recent press
reports, Waste Management examined the samples of the ``bloody''
medical waste that the governor exhibited at his press conference. Some
of it, according to the company's legal brief, was actually covered
with red dye or paint.\62\
---------------------------------------------------------------------------
\62\ Andrew Petkofsky, ``Trash Firms Says Dumping Was Proper /
Waste Management Disputes State Officials,'' Richmond Times-Dispatch,
March 19, 1999.
---------------------------------------------------------------------------
In the end, the court held that some portion of the wastes fit the
definition of regulated medical wastes. The judge levied a fine of
$150,000, a little more than a quarter of what the governor sought.
State inspectors contend that between 2 and 5 percent of the trailer's
load at the Charles City County landfill was medical waste and a
smaller portion of that fit the definition of regulated waste--hardly
worth the uproar. Waste Management officials have not stated whether
they will appeal.\63\
---------------------------------------------------------------------------
\63\ Lawrence Latane, ``Trash Hauler is Fined $150,000 / Units
cites in Import of Medical Waste,'' Richmond Times-Dispatch, May 1,
1999.
---------------------------------------------------------------------------
Finally, one key concern raised by the landfill debates involves
the externalities they create for people who either live near them or
along transportation routes. Clearly, problems can arise and lawmakers
should take concerns about odors, litter, and traffic seriously. These
are the real issues that demand local government attention, employing
trespass and local nuisance laws.\64\ However, these local concerns are
not an excuse to ban free enterprise in any industry, be it an industry
as unpopular as trash management or one as popular as the local family
farm.
---------------------------------------------------------------------------
\64\See Bruce Yandle, Common Sense and Common Law for the
Environment, (Landham, MD: Rowman & Littlefield, 1997).
---------------------------------------------------------------------------
Conclusion
Public officials need to learn that the best way to manage our
trash is to stop trying to micromanage the entire trash disposal
economy. In recent years, market forces have begun to correct many of
the problems caused by faulty government planning schemes. The rise of
regional landfills helped end the so-called garbage crisis, and the
resulting trade has proven beneficial to both host communities and
States that lack capacity.
Allowing States to impose import limits or flow control laws will
only turn back the progress that the industry has made. These policies
will mean a return to a system where lawmakers impede market
efficiencies, thereby increasing costs and reducing economic
opportunity. In the final analysis, the only beneficiaries will be the
politicians who earn symbolic political points. Those who feel the real
pain will be the many poor, rural communities that desperately seek
ways to improve their basic infrastructure and their quality of life.