[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


                                


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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

                              ----------                              
                                                                   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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
     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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
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    \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.
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    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\
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    \62\ Andrew Petkofsky, ``Trash Firms Says Dumping Was Proper / 
Waste Management Disputes State Officials,'' Richmond Times-Dispatch, 
March 19, 1999.
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    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\
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    \63\ Lawrence Latane, ``Trash Hauler is Fined $150,000 / Units 
cites in Import of Medical Waste,'' Richmond Times-Dispatch, May 1, 
1999.
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    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.
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    \64\See Bruce Yandle, Common Sense and Common Law for the 
Environment, (Landham, MD: Rowman & Littlefield, 1997).
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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.

                                  
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