    [House Hearing, 108 Congress]
    [From the U.S. Government Publishing Office]

                  HEARING ON H.R. 382, H.R. 411, AND H.R. 1730

    =======================================================================

                                    HEARING

                                   before the

              SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

                                     of the

                        COMMITTEE ON ENERGY AND COMMERCE
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED EIGHTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JULY 23, 2003

                                   __________

                               Serial No. 108-33

                                   __________

          Printed for the use of the Committee on Energy and Commerce

     Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                     house

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                        COMMITTEE ON ENERGY AND COMMERCE

                   W.J. ``BILLY'' TAUZIN, Louisiana, Chairman

    MICHAEL BILIRAKIS, Florida           JOHN D. DINGELL, Michigan
    JOE BARTON, Texas                      Ranking Member
    FRED UPTON, Michigan                 HENRY A. WAXMAN, California
    CLIFF STEARNS, Florida               EDWARD J. MARKEY, Massachusetts
    PAUL E. GILLMOR, Ohio                RALPH M. HALL, Texas
    JAMES C. GREENWOOD, Pennsylvania     RICK BOUCHER, Virginia
    CHRISTOPHER COX, California          EDOLPHUS TOWNS, New York
    NATHAN DEAL, Georgia                 FRANK PALLONE, Jr., New Jersey
    RICHARD BURR, North Carolina         SHERROD BROWN, Ohio
      Vice Chairman                      BART GORDON, Tennessee
    ED WHITFIELD, Kentucky               PETER DEUTSCH, Florida
    CHARLIE NORWOOD, Georgia             BOBBY L. RUSH, Illinois
    BARBARA CUBIN, Wyoming               ANNA G. ESHOO, California
    JOHN SHIMKUS, Illinois               BART STUPAK, Michigan
    HEATHER WILSON, New Mexico           ELIOT L. ENGEL, New York
    JOHN B. SHADEGG, Arizona             ALBERT R. WYNN, Maryland
    CHARLES W. ``CHIP'' PICKERING,       GENE GREEN, Texas
    Mississippi                          KAREN McCARTHY, Missouri
    VITO FOSSELLA, New York              TED STRICKLAND, Ohio
    ROY BLUNT, Missouri                  DIANA DeGETTE, Colorado
    STEVE BUYER, Indiana                 LOIS CAPPS, California
    GEORGE RADANOVICH, California        MICHAEL F. DOYLE, Pennsylvania
    CHARLES F. BASS, New Hampshire       CHRISTOPHER JOHN, Louisiana
    JOSEPH R. PITTS, Pennsylvania        TOM ALLEN, Maine
    MARY BONO, California                JIM DAVIS, Florida
    GREG WALDEN, Oregon                  JAN SCHAKOWSKY, Illinois
    LEE TERRY, Nebraska                  HILDA L. SOLIS, California
    ERNIE FLETCHER, Kentucky
    MIKE FERGUSON, New Jersey
    MIKE ROGERS, Michigan
    DARRELL E. ISSA, California
    C.L. ``BUTCH'' OTTER, Idaho

                       Dan R. Brouillette, Staff Director

                       James D. Barnette, General Counsel

          Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                     ______

              Subcommittee on Environment and Hazardous Materials

                        PAUL E. GILLMOR, Ohio, Chairman

    JAMES C. GREENWOOD, Pennsylvania     HILDA L. SOLIS, California
    JOHN SHIMKUS, Illinois                 Ranking Member
    HEATHER WILSON, New Mexico           TOM ALLEN, Maine
    VITO FOSSELLA, New York              FRANK PALLONE, Jr., New Jersey
      (Vice Chairman)                    MICHAEL F. DOYLE, Pennsylvania
    STEVE BUYER, Indiana                 JIM DAVIS, Florida
    GEORGE RADANOVICH, California        JAN SCHAKOWSKY, Illinois
    CHARLES F. BASS, New Hampshire       PETER DEUTSCH, Florida
    JOSEPH R. PITTS, Pennsylvania        BOBBY L. RUSH, Illinois
    MARY BONO, California                BART STUPAK, Michigan
    LEE TERRY, Nebraska                  ALBERT R. WYNN, Maryland
    ERNIE FLETCHER, Kentucky             GENE GREEN, Texas
    DARRELL E. ISSA, California          DIANA DeGETTE, Colorado
    MIKE ROGERS, Michigan                JOHN D. DINGELL, Michigan,
    C.L. ``BUTCH'' OTTER, Idaho            (Ex Officio)
    W.J. ``BILLY'' TAUZIN, Louisiana
      (Ex Officio)

                                      (ii)

                                C O N T E N T S

                                   __________
                                                                       Page

    Testimony of:
        Chester, Steven, Director, Michigan Department of
          Environmental Quality......................................    42
        DiPasquale, Nicholas A., Deputy Secretary, Office of Air,
          Recycling and Radiation Protection, Pennsylvania Department
          of Environmental Protection................................    45
        Esty, Daniel, Yale Law School................................    88
        Garfield, Michael, Director, The Ecology Center..............    97
        Howse, Robert, Professor, University of Michigan Law School..   108
        Huenemann, Jon E., Senior Vice President and Group Leader,
          FH/GPC a Fleishman-Hillard International Communications
          Company....................................................    92
        Jordan, Linda................................................   104
        Lanza, Hon. Andrew, Councilman, 51st District, New York City.    39
        Miller, Hon. Candice S., a Representative in Congress from
          the State of Michigan......................................    18
        Orlin, Robert, Deputy Commissioner, New York City Department
          of Sanitation..............................................    36
        Sikkema, Hon. Ken, Majority Leader, Michigan Senate..........    33
        Springer, Robert, Director, Office of Solid Waste,
          Environmental Protection Agency............................    22
        Stabenow, Hon. Debbie, a United States Senator from the State
          of Michigan................................................    14
        Woodham, Thomas, former vice chairman, Lee County Council,
          South Carolina.............................................   102
    Material submitted for the record by:
        Chester, Steven, Director, Michigan Department of
          Environmental Quality, letters dated August 15, 2003,
          enclosing response for the record..........................   117
        DiPasquale, Nicholas A., Deputy Secretary, Office of Air,
          Recycling and Radiation Protection, Pennsylvania Department
          of Environmental Protection, response for the record.......   123
        Esty, Daniel, Yale Law School, letter dated August 8, 2003,
          enclosing response for the record..........................   126
        Garfield, Michael, Director, The Ecology Center, response for
          the record.................................................   128
        Howse, Robert, Professor, University of Michigan Law School,
          response for the record....................................   132
        Huenemann, Jon E., Senior Vice President and Group Leader,
          FH/GPC a Fleishman-Hillard International Communications
          Company, response for the record...........................   135
        Jordan, Linda, response for the record.......................   138
        Orlin, Robert, Deputy Commissioner, New York City Department
          of Sanitation, letter dated August 22, 2003, enclosing
          response for the record....................................   140
        Sikkema, Hon. Ken, Majority Leader, Michigan Senate, response
          for the record.............................................   144
        Springer, Robert, Director, Office of Solid Waste,
          Environmental Protection Agency, response for the record...   144

                                     (iii)

                  HEARING ON H.R. 382, H.R. 411, AND H.R. 1730

                                  ----------

                            WEDNESDAY, JULY 23, 2003

                  House of Representatives,
                  Committee on Energy and Commerce,
                                Subcommittee on Environment
                                       and Hazardous Materials,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 3 p.m. , in
    room 2237, Rayburn House Office Building, Hon. Paul E. Gillmor
    (chairman) presiding.
        Members present: Representatives Gillmor, Shimkus,
    Fossella, Rogers, Otter, Solis, Allen, Doyle, Stupak, Green,
    and Dingell (ex officio).
        Staff present: Mark Menezes, majority counsel; Jerry Couri,
    policy coordinator; Jill Latham, legislative clerk; Mary Ellen
    Grant, deputy communications director; and Bettina Poirier,
    minority counsel.
        Mr. Gillmor. The committee will come to order, and first,
    let me apologize to everyone for the fact that the committee is
    starting late and also that we are in a different hearing room.
    It has been an unusual day in Congress. We have had, I guess,
    about 2 or 2\1/2\ hours solid voting, and it is throwing
    everything behind schedule.
        You know, many Members of both parties have expressed
    concern about interstate waste, among them Jo Ann Davis of
    Virginia, and Mr. Greenwood of Pennsylvania, and Mr. Rogers,
    and Mr. Dingell of Michigan, along with many others have been
    very active in this fight. Tip O'Neill was famous for saying
    that even though congressional politics had national
    implications, in the end, all politics is local. And the issue
    of interstate waste, I think, has bolstered Speaker O'Neill's
    point.
        For almost 25 years Congress has avoided any definitive
    statement on the issue that is as local as it is national, as
    much a territorial encroachment dispute as it is an
    environmental health and safety issue, and it is one that has
    community, State, and national and international implications.
        I first became involved with the issue of interstate and
    international shipment and disposal of municipal solid waste
    when as the Ohio Senate leader I proposed comprehensive
    legislation to encourage recycling and reform the way ordinary
    garbage was being disposed. While this law passed after the
    Supreme Court's ruling in Philadelphia v. New Jersey,
    subsequent court rulings have made proactive and proenvironment
    efforts like we took in Ohio difficult to sustain. What is
    fundamental is that the courts have established waste as a
    commodity, and Congress has the authority to regulate it.
    Therefore, if anything is to be done, it is up to Congress to
    decide if this matter warrants intervention or is best left to
    continue unchecked in the free market as it has basically been
    since 1978.
        When we look at this question, there are some facts we need
    to consider. First, total interstate waste shipments continue
    to rise as a result of the closure of older landfills and the
    increasing consolidation of the waste management issues. About
    35 million tons of municipal solid waste crossed State lines
    for disposal in 2001, which was an increase of 9.4 percent over
    the proceeding year. Waste imports have been growing each year
    since the early 1900's and now represents 21.6 percent of all
    municipal solid waste disposed at landfills and waste
    combustion facilities. In the last decade reported imports have
    increased 141 percent.
        Solutions have been elusive, but one thing is certain:
    Generating the solid waste has never been a problem, but since
    costs and court decisions are uncertain, cash-strapped States
    and municipalities are reluctant to expend financial and
    political capital to develop trash control systems that are
    efficient, lawful and protective of the environments. At the
    same time, geography and demographics place limits on the
    States' and the municipalities' abilities to exercise waste
    management commensurate with their population.
        We need to decide if the time has finally come for Congress
    to act on this issue. Before us today are three different
    drafts, each imposing somewhat different regulatory structures
    for States to use regarding interstate and international waste.
    I have been disappointed that more people who claim to care
    about the environment have not been involved in this debate,
    but if we are serious about our commitment to recycling, to
    safer groundwater, we can't turn a blind eye to the issues
    which are raised here.
        Let me say that I think in many instances the current
    system is one that rewards the environmentally irresponsible
    who don't make the expenditures to provide for disposal of the
    waste they generate, and punishes the environmentally
    responsible, those States which make the investments in
    landfills and then are unable to protect themselves from the
    import of out-of-State waste. I think today's witnesses will
    help us explore these areas, and I want to thank them all for
    the sacrifices that many of them have made to be with us.
        And I also want to remind members that they will each be
    given the option to waive their time to deliver an opening
    statement in favor of having that time added to their time
    allocations for individual questions.
        And I am now pleased to yield 5 minutes to the gentlelady
    and the ranking member from the State of California Ms. Solis.
        Ms. Solis. Thank you, Mr. Chairman. At this time I would
    like to yield to our ranking member, Congressman Dingell
    because I understand he has an appointment, so I would yield my
    time to him.
        Mr. Dingell. Mr. Chairman, I first of all commend you for
    this hearing, and I thank you for it. I also want to thank the
    gentlewoman from California for her kindness in yielding to me.
        I would like to observe that if we don't do something about
    this problem, Michigan, Ohio and a lot of other States are
    going to be awash in foreign trash, so I am pleased that we are
    having this hearing.
        The three bills that are the subject of this hearing, H.R.
    1730, H.R. 411, and H.R. 382, share the same goal, providing
    States with the tools they need to manage imports of industrial
    and municipal solid waste. I thank the witnesses who are here
    to today to testify on this important issue, and I want to
    welcome a number of Michiganders who are here with us today,
    including our distinguished Senate colleague Senator Stabenow,
    who has been unrelenting in her fight against Canadian waste;
    our good friend Representative Miller, who took up the fight on
    the first day of her arrival here in town; and also my
    colleague Mr. Rogers of Michigan, who has a long interest in
    this matter. I also want to welcome the distinguished director
    of the Michigan Department of Environmental Quality, Steve
    Chester; and also my constituent Michael Garfield, director of
    the Ecology Center from Ann Arbor, both of whom provide
    testimony as to the trouble caused by this massive influx of
    out-of-State and international waste. Finally, I welcome our
    other Michigan witnesses, including Michigan State Senate
    majority leader Ken Sikkema. I want to particularly welcome
    you, Ken; former State trooper Linda Jordan; and Professor
    Robert Howse of the University of Michigan.
        I regret very much that I will be compelled to leave this
    hearing for a meeting with the President and the conferees to
    discuss the Medicare prescription plan. I do intend to return
    as quickly as I possibly can to continue my participation in
    this very important meeting.
        This is not a new issue. Legislation on interstate shipment
    of waste has been introduced in every Congress since the
    1980's. This subcommittee last held a hearing on this subject
    in August 2001. With the passage of time the issue has only
    grown more urgent. In fact, a 2001 Congressional Research
    Service report indicates that the waste imports into Michigan
    alone have more than doubled since 1999. Without action this
    problem will continue to grow worse very rapidly.
        States have been searching for a legal means to control
    shipments of municipal solid waste from other States and other
    countries. Unfortunately, the result has only been costly and
    unproductive litigation. State laws have been struck down by
    the courts because under the commerce clause of the
    Constitution, only Congress can grant States and localities the
    right to fully regulate waste imports into their jurisdiction.
        In 1994, this committee passed a bill that I developed with
    Representative Boucher and Upton, our good friend from Michigan
    also, and cosponsored by you, Mr. Chairman, and our good friend
    Mr. Greenwood, that was very similar to H.R. 1730, one of the
    bills before us today. We acted in the aftermath of the 1992
    Supreme Court decision in the case of Fort Gratiot Landfill vs.
    Michigan Department of Natural Resources. I would note that the
    support for the legislation was so broad and bipartisan that it
    passed the House 368 to 55. It was killed in the Senate by a
    New England Senator.
        The committee has a long history with H.R. 1730 introduced
    by our friend and colleague Representative Greenwood. Since
    then a bipartisan group of members have introduced legislation
    at each and every Congress. Unfortunately we have not been able
    to get it to markup. Those from Michigan and other affected
    States hope that this will change. And again, I note that if we
    don't do something about it, Michigan, Ohio, and other States
    in the Midwest will be awash in trash not of our own making.
        On April 10 of this year, the chairman, I note, received a
    bipartisan letter from the Governors of six waste-importing
    States, Michigan, Indiana, Ohio, Pennsylvania, Wisconsin and
    Kentucky, requesting an expeditious markup of H.R. 1730, and
    this meeting today represents a first step and I commend you
    and thank you for that. I ask unanimous consent that the letter
    be placed in the record of this hearing.
        [The letter referred to follows:]

              State of Michigan, State of Ohio,
                      Commonwealth of Pennsylvania,
                      State of Wisconsin, State of Indiana,
                                       Commonwealth of Kentucky
                                                         April 10, 2003
    The Honorable Paul E. Gillmor, Chairman
    Subcommittee on Environment and Hazardous Materials
    Committee on Energy and Commerce
    U.S. House of Representatives
    Washington, DC 20515
        Dear Mr. Chairman: We are writing to advise you of our strong
    support for the Solid Waste Interstate Transportation Act and request
    that you hold an expeditious markup of this legislation.
        As you know, this bill, almost identical to H.R. 1213 from the
    107th Congress, would provide state and local governments with needed
    tools to reasonably limit the amount of out-of-state and international
    waste that crosses their borders, maintain disposal capacity for their
    own waste, and assure protection of states' natural resources. As
    Governors of states that continue to receive unwelcome waste shipments,
    we believe the time for action is past due.
        Lacking a specific delegation of authority from Congress to
    regulate waste imports within state boundaries, states remain subject
    to an endless flood of trash from outside their borders. It is critical
    that Congress end the decade-long impasse created by the U.S. Supreme
    Court's 1992 decision in Ft. Gratiot Sanitary Landfill, Inc. v.
    Michigan Department of Natural Resources, where the Court held that
    state limitations on interstate waste shipments violate the interstate
    commerce clause of the U.S. Constitution. In the absence of
    Congressional action, our states can continue to expect increasing
    percentages of annual waste disposal to originate from outside our
    borders.
        Our states have worked together for several years to resolve the
    problem of unregulated interstate transport of waste, and many states
    outside of our region also view this issue as significant. With the
    limitation presented by the Supreme Court's Ft. Gratiot decision, the
    passage of the Solid Waste Interstate Transportation Act would provide
    much-needed authority for efforts to restore rationality,
    accountability, and control of interstate waste flows.
        We urge the Subcommittee on Environment and Hazardous Materials to
    mark this legislation up before the Memorial Day District Work Period
    and look forward to working with you toward enactment of a bill that
    will prevent future dumping on the citizens of Ohio, as well as
    Indiana, Kentucky, Michigan, Pennsylvania, Wisconsin and other states.
                Sincerely,
          Governor Jennifer M. Granholm, Governor Bob Taft,
                Governor Edward G. Rendell, Governor Jim Doyle,
                    Governor Frank L. O'Bannon, Governor Paul E. Patton
    cc: The Hon. Hilda L. Solis, Subcommittee Ranking Member
       The Hon. W.J. (Billy) Tauzin, Chairman, Committee on Energy and
    Commerce
       The Hon. John D. Dingell, Ranking Member, Energy and Commerce
    Committee

        Mr. Dingell. We are also here to discuss other bills,
    including my bill, H.R. 411, which would require the EPA to
    implement and enforce the bilateral agreement between Canada
    and the United States concerning transboundary movement of
    hazardous waste amended in 1992 to cover municipal solid waste.
    In my home State of Michigan, not only has interstate waste
    grown, but the amount of waste from Canada being disposed of in
    Michigan increased by 149 percent since 1996. In the course of
    each day, nearly 200 trash trucks cross the bridges from Canada
    headed for our landfills. I am very much distressed that EPA
    has neglected to pursue its duty and has determined that this
    agreement is not to be implemented. I look forward to
    questioning the EPA witness on this matter later.
        Both Senator Stabenow and Representative Rogers also each
    have legislation addressing the issue of Canadian waste. While
    Senator Stabenow's bill is not the subject of our hearing
    today, we will be discussing Mr. Rogers' legislation, H.R. 382,
    and I believe that the discussion of all the bills before the
    committee is the desirable thing. We have also seen what
    happens when the States have crafted laws that run afoul of
    constitutional restrictions. We get legislation, but we get no
    solution to the problem. That is why I believe international
    agreements and constitutional issues must be considered so that
    at the end of the day we can succeed in solving this problem.
        The bottom line, Mr. Chairman, is that our States and local
    governments have waited too long for the authority to regulate
    incoming waste. The price for delay is being paid by our
    citizens and our environment. There is, however, hope, and I
    believe that this committee affords our people that hope, and I
    hope that we will proceed forward to move legislation out onto
    the floor of the Congress and onto the President's desk. I
    believe that legislation to give States authority to manage
    municipal solid waste imports is urgently in the public
    interest, and I commend you for this hearing and thank you for
    the time.
        I ask unanimous consent that the statements by Senator
    Levin and Wayne County Executive Bob Ficano be included in the
    record today.
        Mr. Gillmor. Without objection, so ordered.
        [The information referred to follows:]

    Prepared Statement of Hon. Carl Levin, a U.S. Senator from the State of
                                    Michigan

        First, I would like to thank the members of the Energy and Commerce
    Committee for holding a hearing on this important issue. I would also
    like to thank my friend Congressman Dingell for inviting me to testify.
    He has worked extremely hard on this issue through the years and should
    be commended for his tireless efforts to give our constituents a voice
    in this matter.
        The largest source of waste imports to Michigan continues to be
    from Canada, which contributed 11.5% of all waste disposed in Michigan
    in fiscal year 2002, up from 9.8% in FY2001. Each day, approximately
    125-150 trash trucks from Toronto and about 30 trash trucks from other
    municipalities in Canada cross the border into Michigan.
        The Michigan Department of Environmental Quality estimates that,
    for every five years of disposal of Canadian waste at the current usage
    volume, Michigan is losing slightly more than a half-year of landfill
    capacity. The negative impacts of landfills, including noise pollution
    and foul odors, as well as the potential for groundwater contamination,
    are exacerbated by the significant increase in the use of our landfills
    from sources outside of Michigan.
        Further, trucks carrying municipal solid waste from Canada
    represent a potential threat because of the nature of the cargo--it is
    dense and variable--which makes it difficult for customs inspectors to
    adequately assess the materials contained in the trucks. And we aren't
    the only ones who have discovered that waste trucks are a good way to
    smuggle items into the U.S. In April of this year, a Canadian trucker
    smuggled 50 pounds of marijuana in a garbage truck headed for a
    Michigan landfill. The President of the company that owns one of the
    Michigan landfills said that a few months prior to this incident, U.S.
    Customs agents had told the landfill to be on the lookout for
    contraband such as illegal drugs. It is obvious that these trucks can
    hide materials that you don't want Customs inspectors to find. This
    could drugs, or it could be weapons.
        Ontario has about 345,000 square miles compared to Michigan's
    57,000 square miles. Canada should be able to find a suitable Ontario
    site for Toronto's garbage with six times the land mass that Michigan
    has.
        In 1986, the U.S. and Canada entered into an agreement allowing the
    shipment of hazardous waste across the U.S./Canadian border for
    treatment, storage or disposal. The Agreement requires notification of
    shipments to the importing country, and also allows the importing
    country to reject shipments, or withdraw consent for shipment, for good
    cause. In 1992, the two countries decided to add municipal solid waste
    to the agreement. However, neither the EPA nor the State Department
    have actually enforced it.
        It is unacceptable that there is an international agreement that
    provides protections and they are not being exercised to protect the
    people of Michigan. We believe that the EPA has the authority to
    enforce this Agreement, but feel that legislation is needed to put
    additional pressure on the EPA to enforce it. That is why I support HR
    411. This legislation will ensure that the protective notice and
    consent provisions of the Agreement are implemented. Further, in order
    to protect the health and welfare of the citizens of Michigan and their
    environment, the legislation requires that many factors be considered
    before the EPA can consent to waste shipments from Canada. The views of
    the importing state and the impact of the importation on state and
    local recycling efforts, landfill capacity, air emissions and road
    deterioration resulting from increased vehicular traffic and public
    health and the environment should all be considered. The legislation
    also provides penalties to those who violate its provisions.
        We need to have the Transboundary Agreement between the United
    States and Canada enforced. HR 411 would do just that and I urge the
    Committee's support.

                                     ______

         Prepared Statement of Robert A. Ficano, Wayne County Executive

        We want to thank the Members of the House Subcommittee on
    Environment and Hazardous Materials for holding a public hearing on the
    challenges and issues related to imported waste. We welcome the
    opportunity to submit testimony, and would like to express appreciation
    to Congressman John Dingell, Congressman Mike Rogers, and Congressman
    James Greenwood for introducing critically needed federal legislation
    to address the issue of imported waste.
        The County of Wayne is home to over 2 million people and is
    Michigan's most populous county; in fact, it is the eighth largest
    county in the United States. We share a border with Canada, are a major
    transportation gateway for North America, and one of our country's
    busiest border crossings. Throughout its 207-year history, Wayne County
    has remained a destination for millions of new Americans, the home of
    the automobile, and the Arsenal of Democracy. It is the birthplace of
    the American labor movement, and today one of the most culturally
    diverse communities in North America, and a place I am honored to be
    from and humbled to now lead.
        Wayne County, like other large communities, faces a variety of
    challenges--some which we have created and which we alone must fix, and
    others beyond our control. Imported waste entering into Wayne County is
    one of these issues. Try as we might to stem the tide of imported waste
    coming into our County, we are limited by law, precedent, and
    international agreements.
        Currently, over 180 trucks per day cross into Michigan from Canada,
    dumping millions of tons of trash into various Wayne County landfills.
    We recently were informed that sludge from Toronto's sewage treatment
    plants now is being hauled by truck from Canada and dumped at a
    landfill in Sumpter Township. In addition, while we have been
    repeatedly assured by the Centers for Disease Control that SARS cannot
    be transmitted by such wastes, the uncertainty of the disease's
    pathology, and the fact that Toronto is still a source for this deadly
    virus, presents a continuing concern to me and to other Wayne County's
    residents, public officials and guests.
        Imported waste is not merely coming from Canada. Due to State and
    Federal law, waste from neighboring States is also being dumped in our
    County's landfills. If allowed to continue at its present pace, Wayne
    County risks losing its available landfill space--for the use of our
    own residents--within the next 10 to 14 years. This is completely
    unacceptable, as our only alternatives are to allow more landfills and
    more trash, or to begin exporting trash into neighboring Michigan
    counties, continuing this vicious circle.
        Wayne County is doing all it can under its limited legal authority.
    Recently, the County Executive Administration drafted and submitted to
    the County Commission a proposed amendment to our Solid Waste Ordinance
    that would mandate that all imported waste coming into Wayne County
    adhere to State of Michigan standards, such as the State's bottle bill
    law, which would limit some imported trash. A modest increase in the
    County's ``tipping fees,'' also has been proposed. A slight increase
    would supplement our ongoing landfill inspection efforts while helping
    fund needed community programs to combat illegal dumping and disposal
    of household hazardous wastes.
        Despite our best efforts, the ultimate problem of imported waste
    coming into Michigan, and especially Wayne County, demands Federal
    intervention. Congress must enact laws to allow States to deal with the
    flow of trash between States. As the CEO for Wayne County, I have a
    responsibility to my residents of today, and our children of tomorrow.
    We must be able to dispose effectively of our current waste, and plan
    for our future needs. We cannot accomplish this alone, however, as
    Wayne County's authority is severely limited. The 2.1 million people of
    Wayne County are turning to the Congress for relief from this threat to
    our quality of life and the environmental health of our great State of
    Michigan.
        Finally, we want to make brief comments about the three pieces of
    legislation pending before the Committee today. H.R. 411, sponsored by
    Congressman John Dingell (D-MI), will provide the most effective and
    efficient tools to deal with immediate issue of the importation of
    Canadian waste. H.R. 411 would expand the bilateral agreement signed in
    1986 and require the EPA to enforce the requirement that the United
    States and Canada notify each other with regard to the flow of waste
    between the two countries. Before consenting to a shipment of Canadian
    trash, the EPA must consider the views of each State and local
    jurisdiction into which the waste is to be imported. Additionally, the
    EPA must factor in its decision, the impact on public health and the
    environment, including the effect on recycling programs, landfill
    capacity, and air quality and road deterioration due to increased
    traffic. The non-existent federal enforcement to date makes the
    legislative directives contained in this bill necessary.
        We strongly support H.R. 1730, sponsored by Rep. James Greenwood
    (R-PA), which authorizes the States themselves to establish limitations
    on the amount of imported waste that is received for disposal at each
    facility. States would be permitted to limit the amount of waste
    received annually at each facility to the quantity received in 1995 if
    a statewide recycling program is in place. Moreover, facilities would
    be prohibited from receiving imported waste unless such waste is
    received pursuant to a host community agreement or an exemption from
    this prohibition, which may also be limited by the State. These
    restrictions would greatly assist Wayne County as approximately half of
    the waste that comes into Michigan from other States is disposed in a
    Wayne County landfill.
        Finally, H.R. 382, sponsored by Congressman Mike Rogers (R-MI),
    authorizes the States to not only limit, but also potentially eliminate
    altogether, the intake of solid waste from outside of the United
    States. This proposed legislation provides no mandates for State
    restrictions. While the intention of this legislation is good, it seems
    to contradict the 1986 agreement and we worry that, if enacted, H.R.
    382 will be challenged in our federal courts, further delaying our
    immediate need for relief on the trash issue.
        Again, thank you for allowing Wayne County to submit testimony on
    this critically needed legislation. On behalf of the citizens of Wayne
    County, we appreciate your efforts and urge Congress to enact
    legislation this year to address and resolve the difficult challenges
    and hurdles posed by imported waste.

        Mr. Gillmor. And the Chair recognizes the vice chairman of
    the committee, Mr. Fossella of New York.
        Mr. Fossella. Thank you, Mr. Chairman, and, again, thank
    you for convening this hearing. But I think it should shed some
    light on the gravity of the situation before us, as indeed it
    affects everybody in this country. And it is not a topic
    everyone likes to talk about, but it is reality.
        My concern with some of the legislation before us deals
    very fundamentally with the notion of the free flow of commerce
    across and among the States. When this country first found its
    independence, you recall there were 13 sort of separate little
    nations that led to the Articles of Confederation, and one of
    the biggest problems that young Nation had was the ability for
    States to decide what could come in and what could come out.
    And I think that hampered unnecessarily the economic growth of
    a young Nation. But it was soon discovered that the best and
    most solid way to ensure growth for our great country, that
    since then practically every nation has sought to emulate, is
    to allow the States and allow goods and services and commerce
    to flow freely without the ability of one State to impose
    restrictions on goods coming from another.
        I am very sensitive to the needs of every member here and
    across--maybe members who aren't here, of what trash means,
    what garbage means. And we had on Staten Island the Nation's
    largest landfill the Fresh Kills landfill. It was unlined,
    environmentally unsafe, violations of many State and Federal
    laws. And, Mr. Chairman, you have referenced earlier those who
    claim to be environmentally friendly who didn't lend their
    voice to this fight. We knew for years because we were speaking
    out loud to no avail until finally we were able to close that
    Fresh Kills landfill.
        But it is important to note that New York City, like so
    many other municipalities around the country, exports its
    garbage to landfills or resource recovery facilities that
    accept it voluntarily. They are cleaner, they are safer, the
    localities like them. They mean jobs to those communities. It's
    essentially a contract between one who wants to send goods to
    another location, and a sort of a receiver who wants to receive
    it in return for a fee. It has worked for about 200 plus years
    now. It is the right thing to do. I think that if we look at it
    and look at it deeply--and the members who may be sensitized
    and look at it as a back-yard issue really should take a step
    back and realize that cities like Chicago, Philadelphia,
    Washington, San Francisco, Los Angeles are going to have
    significant problems imposed upon their taxpayers and residents
    if Congress begins to impose unnecessary burdens and
    restrictions upon the ability of one State and municipality to
    stop and prevent it or limit it extensively from sending its
    garbage elsewhere.
        I know there are other bills under consideration that deal
    with international waste, and I am sensitive to the needs of
    those members as well. I think we should also take a step back
    and realize the potential for some trade implications.
        But I am anxious to hear the testimony of our witnesses
    here and also draw attention that we are joined by a colleague
    of mine from Staten Island, Councilman Andrew Lanza, who will
    testify later, who will help to shed some light on what I just
    said, but also on its impact across the country.
        And with that, Mr. Chairman, I thank you for the time and
    yield back.
        Mr. Gillmor. The gentleman yields backs.
        The gentlelady Ms. Solis.
        Ms. Solis. Thank you, Mr. Chairman. I will be brief. I also
    want to recognize our witnesses and thank them for coming here
    today and to shed light on this very important issue.
        I happen to be a Representative from the State of
    California, which unfortunately is a receiver of a lot of waste
    from different parts of L.A. County. In fact, I had the dubious
    distinction of representing one of the largest landfills, which
    is now the largest landfill in the State, known as the Puente
    Hills landfill. It is 60 stories high, and we collect all the
    waste from over 80 communities. And we have five other
    landfills, two that have been closed, three Superfund sites in
    our area.
        We do have issues that I hope will be talked about here,
    and I do believe it is important for localities and
    municipalities that are affected by the intake or import of
    waste that they do have an ability to have some consent, and
    some ability to be able to be publicly noticed and to also know
    that there is going to be ample enforcement when needed and
    necessary, because cleanup costs our taxpayers a lot of money.
    And, yes, we have been slow on that cleanup, and I hope to hear
    more from EPA and others about what remedies and solutions we
    need to come up with.
        And I thank the gentlewoman from the Senate for being here
    today, and also our other Representative that is here. And I
    would just defer back, yield back my time, and submit the rest
    of my testimony for the record.
        Mr. Gillmor. The gentlelady yields back, and the Chair is
    pleased to recognize a member who has taken a strong leadership
    role on this issue, Mr. Rogers from Michigan.
        Mr. Rogers. Thank you very much, Mr. Chairman. I want to
    echo Mr. Dingell's comments of thanks to the witnesses. Senator
    Stabenow, thank you for being here. Congresswoman Miller, thank
    you very much. This is something that we all know is very very
    important to Michigan. As well as former State trooper Linda
    Jordan; thanks for going the extra mile to get here. We
    certainly appreciate it.
        I wanted to show this clip. This is what the Canadian
    Broadcast Company was showing. I think it will give the
    audience and the panel a little bit of flavor about even what
    the Canadians are saying. Can you roll that, please.
        [Videotape played.]
        Mr. Rogers. Since 1999, there has been a 280 percent
    increase in Canadian trash dumped in Michigan, and with this
    has come a whole host of problems: In one case, and State
    Trooper Jordan will testify to this later, human blood dripping
    out of a Canadian trash truck; 50 pounds of marijuana found
    smuggled in a Canadian trash truck; women--we had women hit by
    two trash trucks coming across the border. The Public Interest
    Research Group in Michigan, an environmental group from
    Michigan, cited PCBs and soiled coffin waste in a lawsuit, and
    I don't even want to know what that is, discovered in landfills
    that accept Canadian trash. And there is the pictures of the
    blood that was found coming across the border.
        NAFTA has very clear exceptions for human health. We are
    clearly within the confines of NAFTA by saying no to Canadian
    trash.
        I want to applaud Congressman Dingell and Senator Stabenow
    on their efforts. The time has come, I think. We have tried
    amendments. We have tried petitions. We have tried all of those
    things. The time has come to rally around this issue and say no
    to Canadian trash. We have the ability to do it.
        Mr. Chairman, I thank you for your courage and leadership
    on this issue. This is a tough subject, and it is hard to get
    these meetings. We are going to hear from some great panelists
    today who are going to localize it for us back in Michigan and,
    I think, send a very, very clear message not only to our good
    friends, the Canadians, but around the world that there is a
    common-sense approach to this. Under this bill, commercial
    waste streams continue to flow back and forth, paper, slag,
    copper, things that can be value added. But the very end of the
    revenue stream, this household municipal waste, household
    garbage that gets thrown in a hole with dirt thrown over the
    top of it can and should come to an end. I think our good
    neighbors to the north, being one of the largest landmass
    countries in the world, can handle their own household
    municipal waste.
        And, Mr. Chairman, I thank you and would yield back my
    time.
        Mr. Gillmor. The gentleman from Michigan Mr. Stupak.
        Mr. Stupak. Thank you, Mr. Chairman, and thanks for holding
    this hearing. Want to welcome all of our witnesses here today.
    I echo Mr. Dingell's comments and our elected officials and our
    friends from Michigan who are here on this very important issue
    to us in Michigan.
        In Michigan solid waste that is coming in from neighboring
    States and Canada has created environmental concerns, public
    health concerns, public safety concerns, and now quite sadly,
    with a press release put out yesterday by the Michigan GOP
    chairwoman, partisan politics has entered into the equation.
    And there really is no room for it when we are talking about
    the trash being exported from country to country and State to
    State.
        In 1992, the U.S. Supreme Court struck down Michigan's law
    that allowed counties to prohibit import of solid waste from
    outside the State. Since that time we have seen an explosion of
    waste exports to Michigan. In 2001, Michigan imported nearly
    3.6 million tons of municipal waste. Many of the concerns that
    Michigan residents had back in the 1980's and 1990's about
    accepting out-of-State waste remains today. Because we are
    nearly surrounded by the Great Lakes and because so much of our
    groundwater lies within the Great Lakes Basin, Michigan has
    tough regulations of what can be accepted in our landfills. For
    example, heavy metal pollutants such as lead and mercury are
    closely monitored. So in importing waste from Canada, we aren't
    sure what exactly is coming to us in roughly the 150 to 200 of
    the semi loads of foreign trash that are dumped in our
    landfills each and every day.
        Another concern post-9/11 is the very real possibility that
    individuals could use trash shipments to conceal shipments of
    weapons or materials that could be used for terrorist
    activities.
        Today we will hear some staggeringing statistics about
    interstate and foreign solid waste importation. We will also
    hear a horror story of barrels of blood dripping being shipped
    into Michigan in trash trucks from Toronto during the height of
    the SARS epidemic. I think, Mr. Rogers, we have seen some of
    those slides.
        Another aspect of the discussions today will be differing
    thoughts on how the three bills before us would impact trade
    agreements such as NAFTA and GATT. Testimony will show
    differences in approach to solving the trash dilemma. But we
    can all agree on one thing: Congress must act, and we must act
    now to give States the ability to manage waste coming in.
        With that, Mr. Chairman, I yield back the balance of my
    time. I look forward to hearing from our different panels of
    witnesses.
        Mr. Gillmor. Thank you.
        The gentleman from Illinois Mr. Shimkus.
        Mr. Shimkus. Thank you, Mr. Chairman. I, too, will try to
    be brief, but this is an important debate.
        The State of Illinois finds itself in a quandary because
    not only are we the third-ranking State as far as exporters, we
    are also the sixth-ranking State as far importers. Most of the
    export occurs in the greater Chicagoland area. Obviously a vast
    majority of the importing comes in the southern part of the
    State, which I represent. So being at least here at the
    hearing, and we have two members on the commerce committee from
    Illinois, one is from the greater Chicagoland area, you can see
    that we will have a strong interest in how legislation moves
    forward.
        I have traditionally been supportive of the interstate
    commerce clause and understanding that trash is a commodity.
    But there are the local concerns and how the local people have
    the ability to have the input in their local communities. There
    are three bills that we have in front of us that I know we are
    going to have good hearings on, and I look forward to hearing
    that.
        This gets to be a very emotional issue, as we have seen
    already, and hopefully we can cut through the emotion and try
    to find some common ground to address the issues, because trash
    just didn't go away. It is going to go somewhere. And there are
    communities that--you take the city of New York, they are going
    to have to export it. They are going to have to. Chicago is
    going to have to export it. They are just not going to tear
    down a 50-story building and place a landfill there.
        So I think let's let cooler heads prevail. And I look
    forward to hearing the testimony, and I thank you, Mr.
    Chairman.
        Mr. Gillmor. The gentleman from Pennsylvania.
        Mr. Doyle. Mr. Chairman, I want to thank you for holding
    the hearing. As the coauthor of one of the three bills, I am
    interested to hear from the panel, and I would ask for
    unanimous consent to submit my statement for the record in the
    interest of getting a little bit more time during questioning.
        Mr. Gillmor. The Chair appreciates that, and without
    objection, so ordered.
        The gentleman from Texas.
        Mr. Green. Thank you, Mr. Chairman. And like my colleague,
    I have a statement for the record. But also like my ranking
    member, the solid waste in my district is mostly interstate,
    and I would like to see how we can include these bills to have
    notice requirements for my own constituents. I yield back my
    time.
        [The prepared statement of Hon. Gene Green follows:]

      Prepared Statement of Hon. Gene Green, a Representative in Congress
                            from the State of Texas

        Thank you, Chairman Gillmor and Ranking Member Solis, for holding
    this hearing on the interstate and international transportation of
    solid waste.
        This is an important issue for our states that also has far-
    reaching international and trade implications.
        With the consolidation of the waste management industry and the
    closing of many landfills, interstate waste shipments have been on the
    rise in recent years.
        As some states face these increasing imports of solid waste,
    however, they have little means to regulate it because the Commerce
    Clause of the Constitution leaves the regulation of interstate commerce
    to Congress.
        For well over a decade, many states have been urging Congress to
    grant them the authority to regulate solid waste imports to their
    states. Yet, without this express authority granted by Congress, the
    states' hands seem to be tied.
        This issue has languished too long in Congress, and we need to give
    states the tools they need to appropriately manage their solid waste.
        I understand that we have three legislative options to this problem
    before the subcommittee today. I am encouraged by the Chairman and
    Ranking Members attention to this issue and hope that this hearing is a
    sign that we will soon take legislative action.
        Because the road to remedy this problem has been so long, however,
    I hope the subcommittee will carefully scrutinize each of these
    proposals with regard to their ability to meet legal muster and abide
    by our trade agreements.
        Therefore, I would support narrowly-crafted legislation to address
    this issue within the framework of our current agreements.
        The last thing we need is to provide our states with legislative
    authority, only to have it get tied up in lengthy litigation while the
    trash literally piles up.
        I thank the witnesses for appearing before us today and look
    forward to hearing their testimony.
        With that, Mr. Chairman, I yield back the balance of my time.

        Mr. Gillmor. The gentleman yields back. The gentleman, Mr.
    Allen.
        Mr. Allen. Thank you, Mr. Chairman. I do have a brief
    statement. I want to thank you for holding this hearing today
    and also a special thank you to Senator Stabenow for returning
    over here to her former domain on this side of the Capitol.
        The issues surrounding the shipment of interstate waste
    have been debated here since the 104th Congress. They are
    clearly contentious, but I believe we can work toward
    developing effective legislation. Mr. Dingell has expressed his
    interest in developing effective legislation, and I trust we
    can work together to that end.
        Solid waste is an issue that creates conflict between
    exporting and importing States and communities,
    environmentalists and waste management interests. There is
    simply too much waste and not enough places to put it. In some
    parts of the country, States have made an effective effort to
    control the amount of waste that they produce.
        In Maine, for example, we have the most--one of the most
    comprehensive beverage container redemption programs in the
    Nation, as well as other effective recycling programs. We have
    also permitted the necessary facilities in order to process
    more waste than we produce.
        While interstate transport of waste is viewed as a more
    severe problem in other parts of the country than Maine, our
    State both imports and exports municipal solid waste across
    State and international boundaries. In terms of municipal solid
    waste, Maine is a significant net importer. In 2000, we
    imported 191,000 tons from Massachusetts, New Hampshire and New
    Brunswick, which represents 19 percent of the total waste
    burned or land filled in the State. We also exported 29,000
    tons of municipal solid waste to New Hampshire and New
    Brunswick.
        Maine has also repeatedly affirmed policies that would
    limit the importation of more municipal solid waste. We are a
    rural State, and we don't want to be a dumping ground for urban
    areas like New York or any other areas beyond what we can
    control. In--we--in 2000, 11,500 tons of municipal solid waste
    from Maine was exported to Canada. And Maine's DEP has worked
    closely with the Customs personnel to make sure the trash is
    properly monitored and that no other waste, such as toxic or
    medical waste, is exported.
        While I understand that many Americans in other parts of
    the country want the right to prevent imports, we are worried
    that such a ban might yield a ban on exports from Maine to New
    Brunswick. Therefore, I believe that legislation on this issue
    should be limited in its scope. A broad bill such as
    Representative Rogers' H.R. 382, which would give States the
    power to ban foreign garbage, in our view, may risk angering
    the Canadians, creating the potential either for a ruling under
    NAFTA or a reciprocal ban on exports from Maine. Mr. Dingell's
    bill narrower legislation appears less likely to have these
    problems, and I hope we have a good conversation about these
    alternatives.
        In conclusion, Mr. Chairman, I thank you for holding this
    hearing, and I look forward to future hearings on this subject
    in the subcommittee.
        Mr. Gillmor. Thank you very much.
        [Additional statement submitted for the record follows:]

     Prepared Statement of Hon. W.J. ``Billy'' Tauzin, Chairman, Committee
                             on Energy and Commerce

        Mr. Chairman, thank you for holding this hearing on an issue
    important to so many of our members on this committee. Each day across
    our country, thousands of tons of trash are traveling on America's
    highways, crossing state and national borders on its way to disposal
    and recycling facilities. And, whether or not we think about our own
    trash the second we put it out for pickup, the many issues associated
    with interstate and international shipments of municipal solid waste
    affect each and every one of us.
        The issues presented by the interstate and international shipment
    and disposal of municipal solid waste have confronted local
    communities, state governments, and the court systems for years. The
    Supreme Court first ruled on this issue back in 1978 in Philadelphia v.
    New Jersey, stating that waste is indeed commerce and therefore no
    undue burden may be placed on the interstate shipment or disposal of
    waste products. Since that time, the delicate balance needed for any
    law or regulation to be in compliance with the Supreme Court's ruling
    is often subtle and always subject to challenge.
        What is fundamental, though, to any discussion on this topic is
    that within our great Constitution, the Commerce Clause grants Congress
    the power to regulate commerce among the states. (Art. 1, 8, cl.3)
    While the Supreme Court has ruled on this matter, Congress has the
    constitutional authority to regulate it.
        Today, our subcommittee is reviewing three bills--two of which
    provide states with greater authority to affect or prohibit incoming
    shipments of solid waste with the third addressing the codification and
    further enforcement of existing bilateral trade agreements. I know
    these issues are important to many members and that the interesting new
    twists that have occurred on these issues are not new. In fact, the
    core interstate waste debate has been kicking around this Committee and
    in Congress for at least a decade. I am not optimistic we will solve
    this matter today, but I am hopeful that we will be able to more
    carefully understand the complex issues and raw passions that drive
    this debate.
        The three drafts before us today each impose a slightly different
    regulatory structure for states to abide by regarding interstate and
    international waste. I believe today's witnesses will help us to survey
    the strengths and weaknesses of these bills from both public and
    private perspectives. Hopefully, together we can identify certain
    places in legislation that can either be hurtful or helpful to creating
    a safe, efficient, environmentally-responsible, and cost-effective
    solid waste market and disposal system in our country. I thank them for
    coming and look forward to their input.

        Mr. Gillmor. Well, we are very pleased to have two of our
    colleagues with us, Senator Stabenow, Congresswoman Miller and
    as an Ohioan, let me stay from the great State of Michigan, we
    would like to welcome you and we will go first to Senator
    Stabenow.

       STATEMENT OF HON. DEBBIE STABENOW, A UNITED STATES SENATOR
                       FROM THE STATE OF MICHIGAN

        Senator Stabenow. Well, thank you, Mr. Chairman. It is
    great to be here with Congresswoman Miller, and I thank you
    very much for hosting this meeting--and Ranking Member Solis,
    thank you to both of you. Mr. Chairman, I very much appreciated
    your opening statement and comments. This is an extremely
    important issue, not just for Michigan, but for other States as
    well, and I look forward to working with all of you. I believe
    that there is a way to write legislation that will allow States
    such as Maine or areas such as New York to be able to maintain
    their current relationships, and at the same time, allow States
    like Michigan or other local communities to be able to object
    when, in fact, there is a case to be made. And we believe that
    there certainly is in Michigan.
        I also want to thank Congressman Dingell, as always, for
    his leadership on this issue. I am proud to be a cosponsor of
    S. 199, which is the Senate companion bill to Congressman
    Dingell's bill, H.R. 411. Senator Levin and I are both very
    committed, if the committee chooses, the subcommittee and,
    subsequently, the House finds in its wisdom that there is
    support to pass legislation, in particular along the lines of
    411; but whatever we can do, whatever is the best approach that
    allows us to move forward and solve the problem, we intend to
    vigorously support and do everything that we can in the Senate
    to work with you to pass this into law.
        I have also introduced S. 383, the Canadian Waste Import
    Ban of 2003, which is based on the same principles as H.R. 411.
    I am also pleased that H.R. 411 has strong support on the
    committee, and I want to thank Congressman Bart Stupak, who is
    always a champion on these issues, and Congressman Mike Rogers,
    as well, for their commitment to the issue and their
    cosponsorship of the bill, 411, as well as other legislation.
        Last year, Michigan received almost 3.5 million tons of
    municipal solid waste from outside the State, more than double
    the amount that was imported in 1999. And one of the reasons we
    come to you now is because of the tremendous increase that is
    occurring in the waste. This waste accounts for about one-fifth
    of Michigan's total trash and gives Michigan the unpleasant
    distinction of being the third largest importer of waste in the
    United States.
        My colleagues may be surprised to know that the biggest
    source of this waste was not another State, but was in fact our
    good friends to the north, Canada. More than 57 percent of the
    waste that was dumped in Michigan in 2002 was from Ontario,
    Canada, and these imports are growing rapidly, which is of
    tremendous concern to the people of Michigan.
        On January 1, 2003, as another Ontario landfill closed its
    doors, the city of Toronto switched from dumping two-thirds of
    its trash to dumping all of its trash, 1.1 million tons to
    Michigan landfills. The city of Toronto is also currently in
    the process of finalizing a 4-year contract to ship human waste
    and sewage sludge to a Michigan landfill. Not only does this
    waste dramatically increase or decrease Michigan's own landfill
    capacity, but when we all think about the challenges of siting
    landfills and people who are willing to have a landfill in
    their neighborhood in order to be responsible for their own
    waste and the waste of their communities and their States, to
    find that in fact we are losing our landfill capacity at twice
    the rate as a result of these actions is of great concern. And
    it also has a tremendous negative impact on our environment and
    the public health of our citizens.
        These trash shipments also present a threat, unfortunately,
    to homeland security. Currently we have over 180 truckloads of
    waste coming into Michigan every day from Canada. It is
    extraordinary when you look at these trucks that are lined up,
    bumper to bumper, going across the bridges. Whether it is in
    Port Huron at the Blue Water Bridge or the Ambassador Bridge
    they travel through the busiest parts of metro Detroit.
        We have even received reports that trash shipments are now
    crossing the International Bridge in Sault Saint Marie on the
    Upper Peninsula. In addition to causing traffic delays and
    filling our water or our air with the stench of the exhaust and
    garbage, these trucks are also presenting a security risk at
    our Michigan-Canadian border, since, by their nature, trucks
    full of garbage are much harder for Customs agents to inspect
    than traditional cargo, even though they certainly are doing
    their very best to inspect thoroughly.
        And as has been indicated earlier, on April 16, 2003,
    Sumpter Township police officials arrested the driver of a
    Canadian trash truck at a Michigan landfill after he had
    crossed the Michigan Canadian border with more than 50 pounds
    of drugs inside of his truck.
        Additionally, Canadian trash trucks carrying radioactive
    materials, most likely medical waste, have been turned back at
    U.S. ports of entry no less than five times, and it has been
    reported and you will hear more specifics today about a trash
    truck containing bags of untreated blood that was stopped at
    the Ambassador Bridge because it was literally dripping blood.
    And we very much appreciate the fact that Customs--and we have
    a Customs official here who can speak to the ability and the
    hard work that caused them to be able to stop this.
        We have addressed some of the Homeland Security concerns
    that these shipments present in the fiscal year 2003
    supplemental appropriations bill, which was signed into law in
    April. It includes a provision that I offered as an amendment,
    directing Customs to inspect all Canadian trash trucks that
    cross the Blue Water Bridge and the Ambassador Bridge and
    requiring Customs to have radiation equipment in place at these
    ports of entry by May 2003, which we now have.
        But, again, this is not a complete inspection. It is a
    very, very difficult to completely inspect the trucks.
        I will continue to fight to make our borders safer, but
    ultimately, Mr. Chairman, I believe it is the EPA's
    responsibility to stop the trash shipments. Michigan already
    has protections contained in the international agreement
    between the United States and Canada. We already have an
    agreement. But, unfortunately, enforcement provisions are not
    being utilized; in fact, they are being ignored.
        Under the agreement concerning the transboundary movement
    of hazardous waste, which was entered into in 1986, shipments
    of waste across the Canadian U.S. border require government-to-
    government notification. The EPA, as the designated authority
    for the United States, would receive the notification and then
    have 30 days in which to consent or object to the shipment. To
    date, the EPA has not enforced these notification provisions
    and has never been notified of a Canadian trash shipment. By
    failing to enforce this treaty, the EPA is not only failing to
    address the environmental safety and the public health hazards
    that these Canadian waste shipments present, but they are
    ignoring the very strong opposition of the citizens of
    Michigan.
        We would like the EPA to work with us and to object on our
    behalf, which they have the authority to do. In early June, I
    started an on-line petition drive on my Web site to ask the EPA
    administrator to enforce the treaty and to stop the Canadian
    waste shipments into Michigan. The response I received, Mr.
    Chairman, has been truly extraordinary. More than 2000 people
    signed the petition within the first 24 hours. And as of
    yesterday, as indicated on the charts where we have listed, in
    very small print, all of the individuals' names, 800,416 people
    have signed my petition and that number continues to grow. The
    reason I mention this is because it demonstrates how strongly
    people in Michigan feel and how concerned they are.
        To give you an idea of what that number means, 81,416
    people would completely fill every seat in Detroit's Tigers
    Comerica Park twice. This is truly a State-wide issue.
    Residents from every county in Michigan, all 83 counties, have
    expressed their opposition to the trash shipments and have
    signed the petition. I plan to present these petitions to the
    new EPA administrator whenever he or she is nominated.
        H.R. 411, Mr. Chairman, would give Michigan residents the
    protection they are entitled to under this bilateral treaty.
    The bill would give the EPA the authority to implement and
    enforce this treaty, and it would create criteria for the EPA's
    determination of whether or not to consent to a shipment,
    including the State's views on the shipment, which are very
    important. If the State did not object, that would be a very
    strong consideration; and, in fact, I believe the bill could be
    written in a way to use the State's position as the basis to
    object or not to object. They also would be able to object
    based on the impact on landfill capacity, air emissions, public
    health and the environment.
        Given the lack of agreement on whether H.R. 382, the Solid
    Waste International Transportation Act would be in violation of
    NAFTA. I believe that H.R. 411 provides the most immediate and
    effective solution to this growing Canadian trash problem.
    However, certainly, whatever strategy works, not only can pass,
    but can be implemented, is what I know all of us from Michigan
    would support.
        These waste shipments, Mr. Chairman, need to be stopped,
    and I am here on behalf of the citizens from Michigan to thank
    you very much for this hearing and to ask that you join with
    our colleagues in the House and the Senate, both sides of the
    aisle, in finding a solution that will work for us. Thank you.
        [The prepared statement of Hon. Debbie Stabenow follows:]

      Prepared Statement of Hon. Debbie Stabenow, a U.S. Senator from the
                               State of Michigan

        I want to thank Chairman Gillmor and Ranking Member Solis for
    holding this hearing. This is an extremely important issue not just for
    Michigan but many other states. I look forward to working with all the
    Committee members on this important issue. I would also like to thank
    Congressman Dingell for his leadership on this issue. I am proud to be
    a co-sponsor of the S. 199, the Senate companion bill to Congressman
    Dingell's bill, H.R. 411. I have also introduced, S. 383, the Canadian
    Waste Import Ban of 2003, which is based on the same principles as H.R.
    411. I am also pleased that H.R. 411 has strong support on this
    committee, and I want to thank Congressman Stupak and Congressman
    Rogers for their commitment to this issue and their co-sponsorship of
    the bill.
        Last year, Michigan received almost 3.5 million tons of municipal
    solid waste from outside the state, more than double the amount that
    was imported in 1999. This waste accounts for about one-fifth of
    Michigan's total trash, and gives Michigan the unpleasant distinction
    of being the third largest importer of waste in the United States.
        My colleagues may be surprised to know that the biggest source of
    this waste was not another state, but our neighbor to north, Canada.
    More than 57% of the waste that was dumped on Michigan in 2002 was from
    Ontario, Canada, and these imports are growing rapidly. On January 1,
    2003, as another Ontario landfill closed its doors, the City of Toronto
    switched from dumping two-thirds of its trash, to dumping all of its
    trash--1.1 million tons--to Michigan landfills. The City of Toronto is
    also currently in the process of finalizing a 4 year contract to ship
    human waste and sewage sludge to a Michigan landfill.
        Not only does this waste dramatically decrease Michigan's own
    landfill capacity, but it has a tremendous negative impact on
    Michigan's environment and the public health of its citizens. These
    trash shipments also present a threat to homeland security. Currently,
    180 truckloads of waste come into Michigan each day from Canada. These
    trucks cross the Ambassador Bridge and Blue Water Bridge and travel
    through the busiest parts of Metro Detroit. We have even received
    reports that trash shipments are crossing on the Soo International
    Bridge in the U.P. In addition to causing traffic delays, and filling
    our air with the stench of exhaust and garbage, these trucks also
    present a security risk at our Michigan-Canadian border, since by their
    nature trucks full of garbage are harder for Customs agents to inspect
    then traditional cargo.
        On April 16, 2003, Sumpter Township police officers arrested the
    driver of a Canadian trash truck at a Michigan landfill after he had
    crossed the Michigan-Canadian border with more than 50 pounds of drugs
    inside of his truck. Additionally, Canadian trash trucks carrying
    radioactive materials, most likely medical waste, have been turned back
    at U.S. ports of entry no less than five times, and it has been
    reported that a trash truck containing bags of untreated blood was
    stopped at the Ambassador Bridge because it was literally dripping
    blood. Unfortunately, these incidents only represent what Customs has
    been able to detect and stop from crossing into Michigan.
        We have addressed some of the homeland security concerns that these
    shipments present. The FY 2003 Supplemental Appropriations bill which
    was signed into law in April, included a provision that I offered as an
    amendment directing Customs to inspect all Canadian trash trucks that
    cross the Blue Water Bridge and the Ambassador Bridge, and requiring
    Customs to have radiation equipment in place at these ports of entry by
    May 2003. I will continue to fight to make our borders safer, but
    ultimately it is the EPA's responsibility to stop these trash
    shipments.
        Michigan already has protections contained in an international
    agreement between the United States and Canada, but they are being
    ignored. Under the Agreement Concerning the Transboundary Movement of
    Hazardous Waste, which was entered into in 1986, shipments of waste
    across the Canadian-U.S. border require government-to-government
    notification. The EPA as the designated authority for the United States
    would receive the notification and then would have 30 days to consent
    or object to the shipment. To date, the EPA has not enforced these
    notification provisions and has never been notified of a Canadian trash
    shipment.
        By failing to enforce this treaty, the EPA is not only failing to
    address the environmental, safety and public health hazards that these
    Canadian waste shipments present, but they are ignoring the strong
    opposition of the citizens of Michigan. In early June, I started an on-
    line petition drive on my website to ask the EPA Administrator to
    enforce this treaty and to stop the Canadian waste shipments. The
    response I have received has been truly extraordinary. More than 12,000
    people signed the petition within the first 24 hours. And as of
    yesterday, 81,416 concerned citizens have signed my petition and that
    number continues to grow. To give you an idea of what that number
    means. 81,416 people would completely fill every seat in Detroit
    Tigers' Comerica Park--twice! And this is truly a state-wide issue.
    Residents from every county in Michigan--all 83--have expressed their
    opposition to these trash shipments and signed my petition. I plan to
    present these petitions to the new EPA Administrator whenever he or she
    is nominated.
        H.R. 411 would give Michigan residents the protection they are
    entitled to under this bilateral treaty. The bill would give the EPA
    the authority to implement and enforce this treaty, and it would create
    criteria for the EPA's determination of whether or not to consent to a
    shipment, including the state's views on the shipment, and the impact
    on landfill capacity, air emissions, public health and the environment.
    Given the lack of agreement on whether H.R. 382, the Solid Waste
    International Transportation Act, would be in violation of NAFTA, I
    believe that H.R. 411 provides the most immediate and effective
    solution to this growing Canadian trash problem. These waste shipments
    need to be stopped, and they have been ignored for far too long by the
    EPA, at the expense of the health and welfare of Michigan families.

        Mr. Gillmor. Thank you, Senator.
        Congresswoman Miller.

        STATEMENT OF HON. CANDICE S. MILLER, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF MICHIGAN

        Mrs. Miller. Thank you, Mr. Chairman. I certainly
    appreciate your having this hearing today, and I want to thank
    Ranking Member Solis, as well, and all the committee members;
    and I certainly appreciate Senator Stabenow coming out today
    and taking time for her comments.
        Today, this hearing is on an issue that my State of
    Michigan has been talking about for decades, literally decades,
    and that is Canadian trash. This issue has been debated by the
    Congress for over 20 years, but today we are still searching
    for the right solution to this.
        I have served, actually, on my county's solid waste
    planning committee, so I am very familiar with the volatile
    issue of solid waste disposal; and after much debate, we
    finally agreed on a comprehensive plan to take care of our own
    waste, because that was the responsible thing to do. In fact,
    every county in the State of Michigan has an approved solid
    waste--comprehensive solid waste plan which has been approved
    by the State as well.
        It took us a decade to make those plans, and we thought we
    had contemplated every possibility, but we never contemplated
    that the entire city of Toronto would be sending us any of
    their trash, let alone 100 percent of it. But that is actually
    Toronto's solid waste plan.
        That's the solid waste plan for much of Canada, and
    obviously it is clearly in conflict with our plan.
        Each and every day, hundreds of huge semi trucks cross the
    border from Canada into Michigan loaded with garbage. In 2001,
    these trucks carried more than 6.5 million cubic yards of
    garbage into my State; and last year, as the Senator mentioned,
    that number increased dramatically, the vast majority of it
    crossing at the Blue Water Bridge, which is in the heart of my
    congressional district. These trucks are clogging our border
    crossings, and are an incredible safety hazard, as well, as on
    our roadways; not to mention the bad roads that we already have
    and the wear and tear these trucks are creating.
        You are going to hear today from officials from my State
    that will detail various items found in the Canadian trash. As
    Representative Rogers mentioned, for instance, this trash has
    been found to include such things as PCBs, medical waste, even
    soiled coffin waste. Additionally, Michigan really does pride
    itself on having one of the most restrictive bottle and can
    return laws in the Nation. Of course, we enacted these to
    promote recycling and to keep them from filling up our
    landfills. Yet the Canadian trash does not meet our standards,
    and Canadian trash brimming with this kind of waste is filling
    our landfills at an alarming rate.
        In Michigan, we have planned for and approved enough space
    in our own landfills to absorb about 20 years of our own waste.
    But with the continuing flow of Canadian trash entering
    Michigan, this timeframe is literally cut in half.
        Let us not forget that Michigan, known as a Great Lakes
    State, has that, of course, because we are surrounded by the
    Great Lakes, which comprise actually one-fifth of the fresh
    water supply of our entire planet. And I think the worst thing
    about this situation is that Michigan State and local officials
    are powerless to do anything to solve this problem.Certainly it
    is more than appropriate for Michiganians to look to their
    Federal Government to protect them from the bad behavior of
    another country.
        Now, I recognize that some States do want the ability to
    import trash; and I have no problem with that. I am a very
    strong advocate of State's rights. I believe that every State
    should have the ability to do what is right for them, for their
    people. State's rights should always be upheld all the time,
    every time.
        On this issue, however, the people of my State have spoken
    out loud and clear. They want to stop the importation of
    Canadian trash, and for all of these reasons, I am a very
    strong supporter of H.R. 382, sponsored by my colleague from
    Michigan, Representative Mike Rogers.
        This bill would simply allow individual States to either
    choose to accept or not to accept another nation's trash into
    their landfills, and I can assure you that, given the
    opportunity, the Michigan legislature would quickly enact
    legislation to ban Canadian trash. In fact, in a State of
    almost 10 million people, I think you would be very hard-
    pressed to find anyone who did not consider themselves to be an
    environmentalist. But this trash and the damage that it is
    doing to our landfill capacity certainly threaten our ability
    to maintain a clean environment.
        In addition, and the Senator spoke to this as well, but
    since the absolutely horrific attacks on our Nation of 9/11,
    the thought that terrorists may use these trucks as vehicles to
    transport materials that could be used in an attack on our
    Nation cannot be dismissed. Nobody is regulating this trash.
    Nobody is inspecting it. And certainly Canada's import in trash
    represent a hole in our national security.
        The Blue Water Bridge is the third busiest commercial
    artery in the northern tier of our Nation. We can just think
    about an incident that might shut us down and how they could
    crush the flow of goods on this bridge, having a huge negative
    impact on our economy and our national trade.
        The time has come to do something about this problem, and
    the people of Michigan are demanding action. I realize again
    that there are problems associated with this issue. Many States
    are exporters of trash, as has been mentioned, and many are
    importers and these States want the ability to continue to ship
    trash from State to State. Fine. But of all the members of the
    U.S. House of Representatives, there is not one on that floor
    who represents the country of Canada.
        This bill focuses on the ability of individual States to
    ban the importation of foreign trash, and I believe this is a
    reasonable approach. Canada is a great Nation. They have always
    been our ally. They are our neighbors; they are our friends.
    However, just as the people in Washington, DC, might go to
    Alexandria or Georgetown for lunch, in my district we go to
    Sarnia, we go to Windsor because it is that close and we have
    always felt so welcome, because our good friends, the
    Canadians, have always been our close neighbors.
        Just this year, the citizens of Windsor demanded that these
    huge trash hauling trucks be rerouted and sent across the Blue
    Water Bridge into the United States because they said they did
    not want to see nor did they want to smell these trucks or deal
    with the impact on their beautiful city. As it was reported in
    the media, they said it was just too gross. So they sent them
    into our neighborhoods to be dumped into our beautiful State,
    and that is certainly not very neighborly.
        It is time to correct the situation. It is past time for
    the U.S. Congress to act on this issue. It is time to allow the
    voices of our individual States to be heard on this important
    issues, as well. Mr. Chairman, again, I am certainly grateful
    for your leadership on this issue and allowing the debate to
    move forward. I thank each and every member of the committee
    for your thoughtful consideration of this very important
    legislation.
        Thank you so much for your time.
        [The prepared statement of Hon. Candice S. Miller follows:]

       Prepared Statement of Hon. Candice S. Miller, a Representative in
                      Congress from the State of Michigan

        Thank you Mr. Chairman, Ranking Member Dingell and members of the
    Committee.
        Today this committee is holding a hearing on an issue that my state
    of Michigan has been talking about for decades, Canadian Trash. This
    issue has been debated by the Congress for over 20 years, but today,
    we're still searching for the right solution.
        I served on my counties solid waste planning committee, so I'm very
    familiar with the volatile issue of solid waste disposal. After much
    debate, we finally agreed on a comprehensive plan to take care of our
    own waste, because that was the responsible thing to do. Every County
    in Michigan has an adopted solid waste plan, approved of by the State.
    It took us a decade to make the plan. And we thought we had
    contemplated every possibility. But we never contemplated that the
    entire city of Toronto would be sending us any of their trash, let
    alone 100 percent of it.
        But that is Toronto's solid waste plan. That is the solid waste
    plan for much of Canada. And obviously, it is clearly in conflicts with
    ours. Each and every day, hundreds of huge semi trucks cross the border
    from Canada into Michigan loaded with garbage.
        In 2001, these trucks carried more than 6.5 million cubic yards of
    garbage into my state, last year that number increased dramatically,
    the vast majority of it crossing the Blue Water Bridge in Port Huron,
    which is in the heart of my district.
        These trucks clog our border crossings and are an incredible safety
    hazard on our roadways, not to mention the wear and tear on already bad
    roads.
        You will hear today from officials from my state that will detail
    various items found in Canadian trash that pose a threat to our
    environment and the health of our people.
        For instance, this trash has been found to include such things as
    PCB's and medical waste, even soiled coffin waste. Michigan prides
    itself on having one of the most restrictive bottle and can return laws
    in the nation which was enacted to promote recycling and to keep them
    from filling up our landfills, and yet the Canadian trash does not meet
    our strict standards.
        But Canadian trash, brimming with this kind of waste, is filling
    our landfills at an alarming rate.
        In Michigan, we have planned for and approved enough space in our
    landfills to absorb about 20 years of our own waste. With the
    continuing flow of Canadian trash entering Michigan, that time frame is
    cut in half.
        Let us not forget that Michigan is known as the ``Great Lakes
    State'' because it is surrounded by the Great Lakes which comprises
    fully \1/5\ of the fresh water supply of the entire planet.
        I think the worst thing about this situation is that Michigan state
    and local officials are powerless to do anything to solve this problem.
    Certainly it is more than appropriate for Michiganians to look to their
    Federal Government to protect them from the bad behavior of another
    country.
        I recognize that some states do want the ability to import foreign
    trash, and I have no problem with that. I am a strong advocate of
    states' rights, and believe every state should have the ability to do
    what is right for them and their people. States' rights should always
    be upheld, all the time and every time.1On this issue the people of my
    state have spoken out loud and clear. They want to stop the importation
    of Canadian trash.
        For all of these reasons I am a strong supporter of H.R. 382,
    sponsored by my colleague from Michigan, Representative Mike Rogers.
    This bill would simply allow individual states to either choose to
    accept or not to accept another nations' trash into their landfills.
        I can assure you that if given the opportunity, the Michigan
    legislature would quickly enact legislation to ban Canadian trash.
        In our state of almost 10 million people, you would be hard pressed
    to find anyone who is not concerned about the environment.
        This trash--and the damage it does to our landfill capacity--
    seriously threaten our ability to maintain a clean environment.
        In addition, since the absolutely horrific attacks of September
    11th, the thought that terrorists may use these trucks as vehicles to
    transport materials that could be used in an attack on our nation
    cannot be dismissed.
        In February, I wrote an op-ed for the Detroit News, raising the
    issue of how Canadian trash imports undermine our homeland security
    efforts, because of the endless possibility of who knows what, placed
    by terrorists into one of these trash trucks.
        Nobody's regulating it. Nobody's inspecting it, and certainly,
    Canada's imported trash represents a hole in our national security.
        The Blue Water Bridge is the third busiest commercial artery in the
    northern tier of our nation. We can just think about an incident that
    might shut it down, and how that could crush the flow of goods on this
    bridge, having a huge negative impact on our economy and our national
    trade.
        All of this just because Michigan is forced to accept a product
    that practically no one in the state wants. The time has come to do
    something about this problem, and the people of Michigan are demanding
    action. I realize that there are problems associated with this issue.
    Many states are exporters of trash and many are importers, and these
    states want the ability to continue to ship trash from state to state.
        Fine. But of all the members of the U.S. House of Representatives,
    not one represents Canada and this bill focuses on the ability of
    individual states to ban the importation of foreign trash. I believe
    this is a reasonable approach.
        Canada is a great nation, a nation that has always been our ally,
    our neighbor and our friend. The Canadians are truly one of the
    greatest cultures, greatest societies the world has ever seen.
        Just as people in Washington DC might go to Alexandria or
    Georgetown for lunch, in my district, we go to Windsor or Sarnia, it is
    so close and we have always felt so welcome.
        Because our good friends, the Canadians, have always been our close
    neighbors.
        This year, the citizens of Windsor, demanded that these huge trash
    hauling trucks, be rerouted, and sent across the Blue Water Bridge,
    into the United States, because they said, they did not want to see or
    smell the trucks, or deal with their impact on their beautiful city. As
    it was reported in the media, they said it was ``too gross''
        So they sent them into our neighborhoods, to be dumped in our
    beautiful state.
        That is certainly not very neighborly. It is time to correct this
    situation. It is past time for the U.S. Congress to act on this issue.
    It is time to allow the voices of our individual states to be heard on
    this important issue.
        Mr. Chairman, I am grateful for your leadership in allowing this
    debate to move forward. I thank each and every member of the committee
    for your thoughtful consideration of this important legislation.

        Mr. Gillmor. Thank you very much, Congresswoman and
    senator. We very much appreciate your testimony. Thank you.
        We have one vote--I think it's only going to be one vote--
    on the floor. We will recess the committee, and I would ask the
    members to come right back if there is one vote so that we can
    proceed with the second panel, which is Mr. Springer of the
    EPA.
        The committee stands in recess.
        [Brief recess.]
        Mr. Gillmor. The committee will come to order. We are going
    to go to Mr. Springer, the second panelist. Let me announce to
    our other witnesses, to the extent you can when it is your
    turn, if you could limit yourselves to 5 minutes in your verbal
    remarks, because all of your statement will be part of the
    record. We are likely to have more procedural votes in the
    House of Representatives as the day continues, which will be
    disruptive and also cut into the time that we have available.
    So I simply want to make everyone aware of that.
        Mr. Gillmor. And we will go to Mr. Robert Springer, who is
    the Director of the Office of Solid Waste, the Environmental
    Protection Agency. Mr. Springer.

     STATEMENT OF ROBERT SPRINGER, DIRECTOR, OFFICE OF SOLID WASTE,
                    ENVIRONMENTAL PROTECTION AGENCY

        Mr. Springer. Thank you. Good afternoon, Mr. Chairman and
    members of the subcommittee. I am, as just indicated, Robert
    Springer, Director of the EPA's Office of Solid Waste. I am
    pleased to be here today to discuss the municipal solid waste
    issues both within the U.S. and internationally.
        In my prepared remarks I was going to cover a couple of
    different issues. I will try to shorten those so that what
    appear to be the most salient matters are brought forward at
    this time.
        There is in my prepared remarks a description of how the
    hazardous waste regulations under EPA and the municipal
    regulations that EPA has put forward are handled, and I offer
    those for your reference.
        I want to shift then, rather than go through all of that,
    over to what is happening today on international waste and
    where we are with that.
        So, in the current regulatory system to address risk posed
    by wastes that are transported in interstate and international
    commerce in the U.S., there is significant movement of both
    hazardous waste and municipal solid waste across State borders.
    It is EPA's position that the most effective way to control
    risks posed by interstate management of waste is through a
    strong domestic regulatory program.
        The U.S. has a regulatory framework in place that is
    designed to protect human health and the environment from any
    risks posed by the disposal of hazardous waste or municipal
    solid waste, whether those wastes are generated within or
    outside the United States.
        With respect to wastes that are generated outside the U.S.,
    it is important to note that more than 90 percent of the waste
    that is exported from the U.S. goes to Canada, and, similarly,
    virtually all of Canada's waste exports are destined for the
    U.S. That is why the agreement between the Government in Canada
    and the Government of the United States of America concerning
    transboundary movement of hazardous waste is critical to both
    countries. This agreement was established by the two Federal
    Governments in 1986. It ensures that human health and the
    environment are protected through government oversight of
    hazardous waste shipments between the two countries.
        The agreement was based on a mutual knowledge that the two
    countries have very advanced, effective, regulatory programs in
    place to address waste management so the human health and the
    environment are protected.
        I will offer a description of how the system works. Any
    person who intends to export a hazardous waste must first
    inform their Federal Government and provide specific
    information including the types and quantities of waste
    involved, the location where the waste will cross the border,
    and the name of the facility where the waste is destined to
    arrive.
        The environmental agency of the exporting country then
    provides this information to the environmental agency in the
    importing country and requests consent for the proposed
    shipment. Only after consent is granted by the importing
    country may the exporter proceed with the waste shipment.
    Typically the consent for waste export covers multiple
    shipments for a 1-year period.
        The primary role of the environmental agencies in the
    notice and consent process is to ensure that the waste will be
    properly managed. For example, when Canada exports hazardous
    waste to the U.S., EPA will consult directly with the
    appropriate State agency or will review previously submitted
    State information to confirm that the receiving facility is
    permitted to manage all of the specific waste identified in the
    notice and that the State believes the waste will be handled
    consistent with Federal and State requirements.
        If this is not the case, we would deny the entry of the
    waste into the United States. This same notice and consent
    scheme is what the U.S. and Canada intend to use for municipal
    solid waste shipments once both countries have the necessary
    legal authority.
        The other area I would like to cover is how EPA is working
    to obtain the necessary authorities to appropriately monitor
    the municipal solid waste shipments between the U.S. and
    Canada.
        In 1992 the U.S. and Canada amended the bilateral agreement
    to include municipal solid waste, pending enactment of
    necessary legislation. Past U.S. administrations took the
    position that the legislative vehicle for obtaining the
    statutory authority under the Resource Conservation and
    Recovery Act to implement the municipal solid waste provision
    would be Basel Convention implementing legislation.
        EPA is again working with other Federal agencies to draft
    Basel Convention implementing legislation that would provide us
    with the necessary authority for municipal solid waste imports
    and exports.
        Canada is developing regulations based on a recent
    amendment to the Canadian Environmental Protection Act that
    will enable them to provide notice and consent for municipal
    solid waste. Environment Canada informs us that its regulatory
    process should be completed in about a year.
        Regarding the matter of homeland security, after the
    terrorist attacks of September 11, 2001, EPA initiated a
    comprehensive analysis of oversight provided by Customs
    operations at the borders. I was in Region 5 at the time and
    directed my staff to do that along the U.S./Canadian border as
    well.
        Following that, there has been a cooperative effort between
    the Department of Homeland Security and the Bureau of Customs
    with EPA to strive to ensure that the U.S. remains vigilant in
    protecting our people and environment.
        In summary, EPA is continuing to address these important
    waste management issues and we look forward to continuing to
    work with Congress in the future on legislation to implement
    the Basel Convention. I would like to thank the Chairman and
    subcommittee members for inviting me here to speak today.
        [The prepared statement of Robert Springer follows:]

    Prepared Statement of Robert Springer, Director, Office of Solid Waste,
                      U.S. Environmental Protection Agency

        Good Afternoon, Mr. Chairman and members of the Subcommittee. I am
    Robert Springer, Director of EPA's Office of Solid Waste. I am pleased
    to be here today to discuss municipal solid waste issues both within
    the U.S. and internationally. I will provide an overview of three
    aspects of our national waste management program that are relevant to
    today's discussion. First, I will provide a broad summary of EPA's
    authority to control wastes under the Resource Conservation and
    Recovery Act (RCRA) within the United States. Second, I will describe
    the current system of oversight for international hazardous waste
    shipments between the U.S. and Canada. Last, I will discuss how EPA is
    working to obtain the necessary authorities to appropriately monitor
    the municipal solid waste shipments between the U.S. and Canada.

                            HAZARDOUS WASTE CONTROL

        Regarding the first matter--RCRA establishes separate statutory
    frameworks for the regulation of hazardous solid waste under Subtitle
    C, and nonhazardous waste, including municipal solid waste, under
    Subtitle D. Pursuant to the very specific statutory mandate of Subtitle
    C, EPA has constructed a comprehensive and rather prescriptive
    regulatory system for ``cradle-to-grave'' controls on the generation,
    storage, transportation, and disposal of hazardous waste. This program
    includes a permitting system for all waste management facilities. It
    specifies facility design, operation, closure and post-closure
    standards, treatment standards prior to land disposal, and extensive
    corrective action provisions (including clean up) to address releases
    of hazardous constituents from facilities that manage hazardous waste.
    EPA is responsible for setting protective national standards and
    retains a strong oversight role in implementation of state programs.

                               NONHAZARDOUS WASTE

        Subtitle D establishes a very different framework for the various
    nonhazardous wastes, including municipal waste, covered by this
    Subtitle. EPA is responsible for setting national standards applicable
    to disposal of nonhazardous waste, but the states retain the primary
    responsibility for implementation and enforcement of the national
    disposal regulations and for all other aspects of nonhazardous waste
    management. This is an appropriate framework given that domestic
    management of nonhazardous waste has historically been a state and
    local responsibility. In the 1980's, states were required by RCRA to
    develop solid waste plans to specify the state approach for
    environmentally sound solid waste management. Those plans continue to
    serve as a base for solid waste operations in each state. In 1991, EPA
    established comprehensive national standards applicable to municipal
    solid waste landfills. RCRA provides only a limited ``back up'' role
    for EPA in the implementation and enforcement of the regulations
    applicable to municipal solid waste landfills. It does so by granting
    EPA the authority to approve the adequacy of state permitting programs,
    and, in the event a program is found to be inadequate, provides EPA
    with enforcement authority only.

                                   RECYCLING

        In addition to establishing national standards applicable to the
    disposal of nonhazardous waste, EPA has historically played a
    leadership role in the area of recycling of municipal solid waste and
    other nonhazardous wastes. We have done so by supporting the
    development of markets for recyclable materials through procurement
    policies and by establishing recycled content guidelines. We have also
    provided information and technical assistance to states and localities
    to assist them in establishing recycling and resource conservation
    programs. Additionally, we have provided recycling information to the
    public so that individuals can incorporate a reuse and recycling ethic
    into their daily lives. EPA has recently renewed our efforts in this
    area by establishing the Resource Conservation Challenge (RCC). The
    goal of the RCC is to cultivate innovative and cost-effective recycling
    and waste minimization efforts and realize the potential of using waste
    as a safe and viable energy source. At the same time, we intend to
    raise consumer environmental awareness so that the public can become
    better environmental stewards.

                              WASTE TRANSPORTATION

        With that as background, I would now like turn to the second topic
    area, and share with you how our current regulatory system addresses
    the risks posed by wastes that are transported in interstate and
    international commerce.
        Within the U.S., there is significant movement of both hazardous
    wastes and municipal solid wastes across state borders. It is EPA's
    position that the most effective way to control risks posed by
    interstate management of wastes is through a strong domestic regulatory
    program. The U.S. has a regulatory framework in place designed to
    protect human health and the environment from any risks posed by the
    disposal of hazardous or municipal solid waste whether those wastes are
    generated within or outside the U.S.

                              INTERNATIONAL WASTE

        With respect to wastes that are generated outside the U.S. it is
    important to note that more than 90% of international waste movements
    involving the U.S. and Canada is with each other. That is why the
    Agreement Between the Government of Canada and the Government of the
    United States of America Concerning the Transboundary Movement of
    Hazardous Waste is critical to both countries. This agreement was
    established by the two federal governments in 1986 to ensure that human
    health and the environment are protected through government oversight
    of hazardous waste shipments between the two countries. The agreement
    was based on the mutual knowledge that the two countries have very
    advanced, effective regulatory programs in place to address waste
    management so that human health and the environment are protected. I'll
    offer an example of how the system works.
        Any person who intends to export a hazardous waste must first
    inform their Federal government and provide specific information,
    including the types and quantities of waste involved, the location
    where the waste will cross the border, and the name of the facility
    where the waste is destined. The environmental agency of the exporting
    country then provides this information to the environmental agency in
    the importing country and requests consent for the proposed shipment.
    Only after consent is granted by the importing country may the exporter
    proceed with the waste shipment. Typically the consent for waste export
    covers multiple shipments for a one year period.
        The primary role for the environmental agencies in the notice and
    consent process is to ensure that the waste will be properly managed.
    For example, when Canada exports hazardous waste to the U.S., EPA will
    either consult directly with the appropriate state agency or will
    review previously-submitted state information to confirm that the
    receiving facility is permitted to manage all of the specific wastes
    identified in the notice, and that the state believes the wastes will
    be handled consistent with federal and state requirements. If this is
    not the case, we would deny entry of the waste into the U.S. It is this
    same notice and consent scheme that the U.S. and Canada intend to use
    for municipal solid waste shipments once both countries have the
    necessary legal authorities.

                         CANADIAN MUNICIPAL SOLID WASTE

        The last area I want to discuss is how EPA is working to obtain the
    necessary authorities to appropriately monitor the municipal solid
    waste shipments between the U.S. and Canada.
        In 1992, the U.S. and Canada amended the bilateral agreement to
    include municipal solid waste, pending enactment of necessary
    legislation. Past administrations took the position that the
    legislative vehicle for obtaining the statutory authority under RCRA to
    implement the municipal solid waste provisions would be Basel
    Convention implementing legislation. EPA is now working with other
    federal agencies to draft Basel Convention implementing legislation
    that would provide us with the necessary authority for municipal solid
    waste imports and exports.
        Canada is developing regulations based on recent amendments to the
    Canadian Environmental Protection Act that will enable them to provide
    notice and consent for municipal solid waste. Environment Canada
    informs us that its regulatory process should be complete in about a
    year.

                        TORONTO'S MUNICIPAL SOLID WASTE

        Let me now briefly address the current situation concerning
    Toronto's municipal solid waste that is being sent to Michigan
    landfills for disposal. This Administration has endeavored as a
    priority to respond to and closely engage members of Congress and their
    staff, the State of Michigan (including the Governor), concerned
    citizens in Michigan, Canadian counterparts, and others regarding the
    municipal solid waste shipments coming from Toronto. Due to the
    concerns expressed by the citizens and elected officials in the State,
    the Michigan Department of Environmental Quality has examined the waste
    arriving from Canada, and has inspected the operations at the receiving
    landfills. The State agency has repeated this scrutiny on a number of
    occasions. Preliminary results from recent Michigan Department of
    Environmental Quality inspections indicate that the shipments from
    Toronto are managed as well as similar shipments originating within the
    State. The landfill inspections have confirmed that the composition of
    the waste received from Toronto is typical of municipal solid waste,
    and the waste is suitable for disposal in Michigan landfills.

                               HOMELAND SECURITY

        There is one other aspect of international waste movements I wish
    to share with you. After the terrorist attacks of September 11, 2001,
    EPA initiated a comprehensive analysis of oversight provided by
    Customs' operations at the border regarding chemicals, wastes, and
    other materials subject to RCRA, Toxic Substances Control Act, and
    Federal Insecticide, Fungicide, Rodenticide Act. This cooperative
    effort continues today with the Department of Homeland Security as we
    strive to ensure that the US remains vigilant in protecting our people
    and our environment.

                                   CONCLUSION

        In summary, EPA is continuing to address these important waste
    management issues, and we look forward to working with Congress in the
    future on legislation to implement the Basel Convention. I would like
    to thank the Chairman and Subcommittee members for inviting me to speak
    here today.

        Mr. Gillmor. Well, thank you very much, Mr. Springer. Let
    me start out with some questions on an agreement with Canada
    and the draft of the Basel Convention language. We have been
    waiting and waiting and waiting. I would point out that your
    counterpart before this Committee on Small Business made almost
    identical statements back in 1991, stating that Canadian
    ratification would occur by the next summer. So we hope this
    can be a priority. The committee is anxious to move forward.
        Mr. Springer. Regarding the legislation, given the
    conversations that I have been in, I am somewhat optimistic
    that we will complete informal discussions soon and begin
    formal agency review shortly. So I would hope then that we can
    move this legislation forward.
        Mr. Gillmor. Let me ask you a question. As I understand it
    from your testimony, I wasn't clear if once this is in place
    that it could be structured so that the importing country would
    have discretion as to whether or not to accept. Is that your
    understanding, that the importing country would?
        Mr. Springer. Provided that the shipments met the
    requirements of the receiving country for management of the
    waste. That is the current arrangement under hazardous waste,
    and that is expected to be the arrangement under municipal
    solid waste.
        Mr. Gillmor. I guess what I am getting at is could either
    the United States or Canada say we don't want this stuff under
    the agreement?
        Mr. Springer. Not as a general matter. It is regarded, as
    members here have pointed out, as a trade issue.
        Mr. Gillmor. Okay. Your testimony suggests that two decades
    ago, EPA went through the process of approving individual State
    comprehensive solid waste management plans. Do these solid
    waste management plans need to be reapproved by EPA?
        Mr. Springer. EPA no longer has the resources to do that.
    At the time they were originally approved, there was a grant
    program in place, and so our approvals came with some finances
    for the plans to be developed.
        Since EPA no longer has that role, States have been
    updating those on their own. On occasion, though, we have been
    petitioned to look at the plans, and we have done that.
        Mr. Gillmor. Your testimony outlines the differences and
    responsibilities between subtitle C and D of RCRA. Since these
    subtitles establish a separate statutory framework for
    regulation of hazardous solid waste under subtitle C and
    nonhazardous waste under subtitle D, it seemed reasonable to
    conclude one type of waste is more hazardous than the other.
    And so the question is, Why, then, are 14 of the Nation's
    subtitle D landfills currently on the NPL list indicating that
    the contamination at those sites is worse than those at the
    subtitle C landfills?
        And as a follow-up on that question, are any of the sites
    contained in States that heavily import solid waste for
    disposal?
        Mr. Springer. At the time that both the Superfund bill was
    passed and RCRA rules were in place, many landfills in the
    United States did not operate with double liners or other
    restrictions that since came into place. So many landfills in
    fact made the Superfund list because they were not built to the
    specifications that are in place today.
        Landfills that operate today do have to meet those
    requirements. I am not aware of any landfills, though--I would
    be happy to check, Mr. Chairman, if there is one--that have
    been permitted and meet these design criteria that have failed
    and been referred to the Superfund list.
        Mr. Gillmor. Thank you, Mr. Springer.
        My time has expired.
        Ms. Solis.
        Ms. Solis. Thank you, Mr. Chairman. I have several
    questions, too, and I guess the one that stands out the most is
    why has it taken us so long? Why wait 11 years? And I would
    like an explanation. Also you said that there is an issue with
    funding and inspections. So maybe you could elaborate about
    that.
        Mr. Springer. I think there have--I am assuming--been
    several attempts in the past that have made it to various
    levels to put these provisions in place. I am not familiar with
    all of them. I have been in the Office of Solid Waste for 10
    months. While I have been there, we have moved it forward
    within EPA and at the staff level with other agencies. So we
    are moving it forward, I hope. I am optimistic about it given
    what I see happening, and I look forward to bringing that
    forward soon.
        Ms. Solis. When you say that the money has run out, would
    you be a little bit more explicit about that?
        Mr. Springer. There was a grant program that encouraged
    States to develop these plans, and once they were in place,
    decisions were made that those--additional money was not needed
    year after year to----
        Ms. Solis. It wasn't needed or it wasn't allocated or----
        Mr. Springer. It was not appropriated.
        Ms. Solis. Did the agency request----
        Mr. Springer. To the agency.
        Ms. Solis. Did the agency request that appropriation?
        Mr. Springer. I haven't been able to speak to that----
        Ms. Solis. Can you maybe get back to us on that?
        Mr. Springer. Okay.
        Ms. Solis. And then another question I have is, Have you
    received any notices about shipments from Canada?
        Mr. Springer. None have come to us as far as I am aware.
    Since this data was raised, I was in Chicago in the regional
    office, and I was not aware of any while I was there either.
        Ms. Solis. I don't have any other questions at this time.
        Mr. Gillmor. The gentleman from New York.
        Mr. Fossella. Thanks, Mr. Chairman. Just a quick question,
    Mr. Springer, and thank you. Are there certain types of
    hazardous waste that can only go to certain hazardous waste
    landfills; for example, electroplating sludge? Describe what
    that is, where it goes now, and where it would go if it all had
    to be disposed, for example, in the U.S.
        Mr. Springer. Today the U.S. ships about twice as much
    hazardous waste to Canada as Canada ships to us. A little less
    than twice. So the reason the U.S. ships to Canada is that
    there are more smelters, more ability to recover materials in
    Canada than the U.S. So if that trade did not occur, most of
    those wastes--because the facilities aren't here--would have to
    go for disposal rather than recovery or recycling. The absence
    of the infrastructure to manage that waste and to recover the
    material, there is not enough capacity here to do that, and
    that is the case with electronic waste.
        It has just been in the news quite a bit lately. EPA is
    working with the electronic industry to encourage recycling of
    consumer electronics. And so most of those waste--most of the
    capacity for handling those wastes happens to be in Canada.
        Mr. Fossella. That is all. Thanks, Mr. Chairman.
        Mr. Gillmor. The gentleman from Michigan.
        Mr. Stupak. Thank you, Mr. Chairman. Mr. Springer, in this
    agreement--this was in 1992, and we are now in 2003. It has
    been 11 years and no notice or notification, implementation has
    ever been implemented. Correct?
        Mr. Springer. That is correct.
        Mr. Stupak. Yet doesn't article 5, section 3 of the
    agreement expressly provide--let me read to you: To the extent
    any implementing regulations are necessary to comply with this
    agreement, the parties will act expeditiously to issue such
    regulation consistent with domestic law.
        Article 5.3 further and expressly provides that pending
    such an issue--hence your Basel Convention, as you call it--the
    parties will make best efforts to provide notification in
    accordance with this agreement where current regulatory
    authority is insufficient.
        So when we are dealing with whether it is hazardous waste
    or municipal waste, notice should be given between the parties
    as to what is moving across this international border. Is that
    correct?
        Mr. Springer. Both parties are to do that when they have
    the appropriate legislation in place.
        Mr. Stupak. It also says pending that, we will make the
    best efforts to provide notification where current regulatory
    authority is insufficient. So if you don't have Basel, you
    still have to give notification. Isn't that correct?
        Mr. Springer. Sir, as far as I am aware, the answer to that
    is no.
        Mr. Stupak. The answer to that is no. We have got this CRS
    report back here in 2000 that says you have to still give
    notice while you are waiting for this Basel Convention. So you
    are saying that is incorrect?
        Mr. Springer. EPA would not have the authority to act on a
    notice if it saw one. It doesn't have the ability under law to
    accept or reject it.
        Mr. Stupak. Well, the authority for the--the authority to
    move across is this 1992 agreement, solid waste. First, in
    1986, it was hazardous. They amended it in 1992 to be solid
    waste, municipal solid municipal waste. Correct?
        Mr. Springer. Mr. Congressman, I think the correct
    statement would be that in the agreement the parties agreed to
    in the future provide notice when they did this, because the
    Basel provisions would have blocked them from doing that, from
    engaging in the trade. The Basel provisions----
        Mr. Stupak. Mr. Springer, before there can be any trade,
    there has to be an agreement. Despite Basel or anything else,
    there is an agreement, right? That is, 1986 there was hazardous
    waste. 1992, you amend it to include municipal solid waste. And
    in there it says--and tell Basel, whatever Basel is,
    convention--what is that?
        Mr. Springer. The year for Basel--I am going to have to
    refer----
        Mr. Stupak. Well, some other time. But in the meantime, it
    says you are going to make the best effort to notify each other
    what is going on, and you even talk about in your testimony,
    once you approve a route it is good for 12 months. So if you
    have these routes that are supposed to be proved, notification,
    from everything I can gather, there has never been any
    notification to the U.S. on where they are shipping the stuff
    to Canada or from Canada to the U.S., so both countries are
    violating the agreement.
        Mr. Springer. Both countries interpreted the agreement the
    same way, that each country needed to get the authority. Canada
    amended its Environmental Protection Act----
        Mr. Stupak. And would----
        Mr. Springer. [continuing] and on the U.S. side, a series
    of attempts over the years have been put in place to amend RCRA
    to give EPA the authority.
        Mr. Stupak. And without that authority, you are telling us
    they can still move waste back and forth?
        Mr. Springer. That's correct.
        Mr. Gillmor. The gentleman's time has expired, but the
    Chair would also note that the gentleman has additional time
    from his opening statement. So the gentleman is recognized for
    an additional 2 minutes.
        Mr. Stupak. Thank you, Mr. Chairman. So, to date, there has
    been no notice back and forth as to where these movements of
    waste are coming back and forth between our States?
        Mr. Springer. That is my understanding, Congressman.
        Mr. Stupak. And you expect now that next year sometime this
    will be done, this requirement of notice and all this, this
    implementing authority?
        Mr. Springer. On the Canadian side. On the U.S. side, I was
    indicating that I believe that soon there will be action across
    the executive branch to prepare legislation to come forward
    that work has gone on at the staff level and that that would
    hopefully be soon before the Congress. I can't--I don't know
    when the action would take place.
        Mr. Stupak. How do you enforce the hazardous material? Do
    you have any notice on the movement of hazardous material
    there?
        Mr. Springer. Yes. And that was what I was describing in
    the prepared testimony.
        Mr. Stupak. So any disagreement, they will give you notice
    on hazardous material, but they won't give you notice on solid
    waste material?
        Mr. Springer. On the hazardous material, we do have the
    authority.
        Mr. Stupak. All right. And you don't underneath solid
    waste?
        Mr. Springer. Right.
        Mr. Stupak. And even if you had the authority, you are
    telling us you can't enforce it anyway, because you don't have
    the resources to do it?
        Mr. Springer. I don't think I said that. I think I was
    referring to a question earlier about the writing of solid
    waste plans by State agencies and whether EPA was still
    soliciting those plans and reviewing those plans.
        Mr. Stupak. So whenever this agreement is in place, you
    expect to enforce it?
        Mr. Springer. Yes, sir.
        Mr. Stupak. And you are telling this committee it will be
    next year sometime?
        Mr. Springer. I don't think I indicated when, Congressman,
    but----
        Mr. Stupak. When do you think you are going to be able to
    enforce this agreement, give notice and----
        Mr. Springer. I think we would, following enactment, one of
    the possibilities is that----
        Mr. Stupak. Following enactment. When do you think the
    enactment is going to be done?
        Mr. Springer. I would look to the Congress for some
    direction on that.
        Mr. Stupak. Well, I have been on this committee since 1994.
    We have been talking about this since 1994. What more direction
    does EPA need from the committee?
        Mr. Springer. We need the statute adjusted.
        Mr. Stupak. And what suggestion is that on that statute we
    want adjusted? What are the adjustments you want?
        Mr. Springer. We will bring those forward shortly,
    Congressman, to allow us to do the----
        Mr. Stupak. I have been waiting since 1994. So when would
    you do that? When would EPA do that?
        Mr. Springer. I hope very soon.
        Mr. Stupak. Can you define that a little better, ``soon''?
    It has been 9 years.
        Mr. Springer. The EPA is close to completing the internal
    review in EPA, and it will go forward across the Federal
    Government shortly.
        Mr. Gillmor. The gentleman from Michigan.
        Mr. Rogers. Thank you, Mr. Chairman. Thank you, Mr.
    Springer, for being here. We appreciate it. Congratulations on
    getting here 10 months ago in this job. Good job.
        I just wanted to clarify one thing and follow up on
    something Mr. Gillmor mentioned, is that even after H.R. 411
    was enacted into law--and I am all for the irritant factor--but
    he said you can't really deny these shipments, and really what
    this is is irritant to them that they have got to fill out a
    form and send it over; and it is quite a process, which I think
    is a good--any time we can irritate them for bringing trash
    over, good idea. But in reality, this would not allow the EPA
    to ban any of those trash shipments coming into the United
    States. Is that correct?
        Mr. Springer. That's correct.
        Mr. Rogers. Thank you. No further questions.
        Mr. Gillmor. The other gentleman from Michigan, the ranking
    member of the committee.
        Mr. Dingell. Mr. Chairman, I thank you for your courtesy,
    and again I commend you for this hearing. There are three bills
    which are the subject of this hearing: H.R. 382, H.R. 411, H.R.
    1730. What is the position of the administration on each of
    those bills?
        Mr. Springer. I am not aware that the administration has
    taken a position on any of the three bills.
        Mr. Dingell. When will the administration have a position?
        Mr. Springer. I do not know, Congressman.
        Mr. Dingell. All right. Now, it is 11 years since the
    United States adopted a bilateral agreement with Canada in
    which it has said that the countries, ``will make best efforts
    to provide notification of shipments of municipal waste across
    their respective borders from their other signatory partner.''
        Is there anyplace where the regulatory authority in that
    legislation is insufficient?
        Mr. Springer. Yes, sir, there is, Congressman.
        Mr. Dingell. Where? It is a treaty which has the force and
    effect of law. Where do you--why do you lack authority to issue
    the necessary regulations?
        Mr. Springer. Under RCRA we do not have the authority to--
    --
        Mr. Dingell. No. No. You have an agreement here between
    countries. These have the force and effect of domestic law. Why
    have you not issued regulations on this up till now?
        Mr. Springer. I believe that both countries were of the
    same opinion regarding the agreement, that both needed to enact
    the law.
        Mr. Dingell. The designated authorities are listed in
    article 1 A of the agreement. For Canada the designated
    authority is the Canadian Department of the Environment; for
    the United States, the Environmental Protection Agency. The
    agreement requires government-to-government notifications where
    exports from Canada to the United States are involved. The
    Canadian Department of Environment under this would need to
    notify the U.S. EPA. Why has the U.S. EPA not insisted that
    this be done?
        Mr. Springer. Well, Congressman, let me go back and point
    out that the----
        Mr. Dingell. No. Just tell me why they do not.
        Mr. Springer. An agreement is an agreement and not a
    treaty. But as to the EPA's ability to perform this action
    which would have the effect on commerce, EPA would need the
    authority to do that. We do not have that authority today. I
    believe that that----
        Mr. Dingell. Will you please submit to the committee a
    statement of the authority that is needed?
        Has the United States requested Canada to exercise best
    efforts to comply with the terms of the bilateral agreement, or
    has it not?
        Mr. Springer. I believe that the United States is actively
    engaged on the hazardous side of that agreement.
        Mr. Dingell. You heard the question. Has the United States
    requested that the Canadians exercise best efforts to comply
    with the terms of the bilateral agreement?
        Mr. Springer. I am not privy to that.
        Mr. Dingell. So I would assume that the answer, then, you
    were giving us is no.
        Now, the bilateral agreement provides that the parties will
    act expeditiously to issue implementing regulations pursuant to
    the agreement. The agreement was amended to include municipal
    waste in 1992. It is now 2003, 11 years later. Why is this
    failure so apparent to implement the treaty 11 years after the
    agreement was made, and how is it consistent with the
    agreement's direction to the two parties to act expeditiously?
        Mr. Springer. Both sides thought that each side would have
    implemented Basel by now when they originally put this language
    forward for municipal waste.
        Mr. Dingell. When do you estimate that you will have
    proposed to finalize implementing regulations?
        Mr. Springer. Depending on what the legislation says, we
    may have to promulgate rules or the legislation could be self-
    implemented.
        Mr. Gillmor. The gentleman's time has expired, but the
    ranking member of the subcommittee, Ms. Solis, has 4 minutes,
    which she yields to the ranking member of the full committee.
        Mr. Dingell. You are very gracious. Just one finishing
    question. What does EPA plan to do in the future to make best
    efforts to comply with this treaty?
        Mr. Springer. EPA will soon have a proposal forward among
    Federal agencies and up through the system on one more attempt
    to have Basel provisions enacted.
        Mr. Dingell. By what date?
        Mr. Springer. Hopefully soon, Congressman.
        Mr. Dingell. Hopefully soon; what does that mean? We are 11
    years into this agreement and nothing has been done. What does
    ``soon'' mean in that kind of a timeframe?
        Mr. Springer. I am relatively new to Washington, I have to
    say, and I hope that it is quite soon.
        Mr. Dingell. Thank you, Mr. Chairman, for your courtesy.
        Mr. Gillmor. Thank you, Mr. Springer. That concludes this
    round questions. We very much appreciate you coming.
        Mr. Springer. Thank you, Chairman.
        Mr. Gillmor. And we will call up panel 3. Senator Sikkema,
    Mr. Chester, Councilman Lanza, Commissioner Orlin. And Deputy
    Secretary DiPasquale. I hope I have pronounced that correctly.
        We know that Senator Sikkema has to depart by 5:30, and we
    want to go directly to him so that we can hear from him. And
    also I think it is understood that you have agreed to answer
    questions in writing when members submit them, so that you can
    be on your way and request unanimous consent that that be the
    order.
        And we will now go to the Senator.

       STATEMENTS OF HON. KEN SIKKEMA, MAJORITY LEADER, MICHIGAN
       SENATE; ROBERT ORLIN, DEPUTY COMMISSIONER, NEW YORK CITY
     DEPARTMENT OF SANITATION; HON. ANDREW LANZA, COUNCILMAN, 51ST
      DISTRICT, NEW YORK CITY; STEVEN CHESTER, DIRECTOR, MICHIGAN
         DEPARTMENT OF ENVIRONMENTAL QUALITY; AND NICHOLAS A.
      DiPASQUALE, DEPUTY SECRETARY, OFFICE OF AIR, RECYCLING AND
    RADIATION PROTECTION, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
                               PROTECTION

        Mr. Sikkema. Thank you, Mr. Chairman, and members of the
    committee. My name is Ken Sikkema. I am Senate majority leader
    in the Michigan Legislature. I am here today to support a
    number of pieces of legislation but particularly Congressman
    Roger's bill, H.R. 382, which gives us authority in Michigan to
    regulate and, frankly, limit foreign waste.
        But I also generally want to say I am going to support any
    legislation--you have a number of pieces of legislation in
    front of you--I support any legislation that gives Michigan
    authority to regulate out of State waste. And let me very
    briefly explain why this is such an important issue to
    Michigan.
        Back in 1978 we passed our Solid Waste Act. I was a young
    legislative staffer in the senate at the time, and the premise
    of that act was threefold. No. 1, we wanted to make counties
    responsible for their own waste. No. 2, we wanted to protect
    the environment. We have these little landfills all over the
    place, and so we created regulation like liners, siting, et
    cetera, where they could be so the environment will be
    protected.
        Now, the third reason--and this is primarily why we would
    like the Congress to act--is frankly we wanted to limit the
    number of landfills in Michigan. We wanted to reduce them and
    we wanted to limit them, because landfills, no matter how you
    engineer them, eventually cause environmental contamination;
    and even on top of that, they cause a lot of other problems.
    Nobody wants to live next to them. They cause traffic and
    congestion and other problems which you have already heard
    about today.
        So we wanted to limit the number of landfills in the State.
    In 1988 we amended that act to allow counties to prohibit waste
    coming from other counties and also to prohibit waste coming
    from other States and other countries.
        Now, as you well know, that was contested. The Fort Gratiot
    decision of 1992, the U.S. Supreme Court basically said, States
    without authority from Congress, you can't prohibit out-of-
    state waste because it is a commodity.
        Now, I admit it is a commodity, but it is a pretty darn
    strange commodity. It is the only commodity I know of where you
    pay somebody to take it. And we have been struggling since then
    with how we can regulate and prohibit out-of-state waste, and
    you have already heard testimony as to how that is increasing.
        In Michigan today, 20 percent of our landfill capacity is
    taken up by out-of-state waste, and over half of that is from
    Canada. So, you know, even if you acted just to allow us to
    deal with the Canadian or foreign waste, it would have a
    dramatic positive impact on the State of Michigan.
        Now, in the interest of time, Mr. Chairman, let me just
    reiterate. We need Federal legislation that gives Michigan the
    authority to regulate out-of-state waste so that our solid
    waste management laws--and that our goals, that is,
    environmental protection in limiting the number of landfills
    are not compromised, because today it is compromised when 20
    percent of our landfill capacity is being used by out-of-state
    waste.
        Now, as a senate majority leader, I am planning to move
    legislation this fall. It will be bicameral, house and senate.
    I worked with the speaker on it. It is going to be bipartisan.
    We have Republicans and Democrats. We are working with a
    Democratic Governor. We are going to move a package of bills
    that will allow us to maintain the integrity of our Solid Waste
    Management Act.
        Now, without going into the details of the package, it is
    going to probably include things like expanding the number of
    items that can't go in the Michigan landfills. We are probably
    going to enact more comprehensive recycling requirements. We
    are going to give the DEQ, our State agency dealing with
    environmental protection, more authority and more direction in
    terms of inspections and a number of other things.
        Forty bills have already been introduced in the Michigan
    legislature, but my fear is--and I think it is a legitimate
    fear, is that without action from you all and from the
    Congress, the effectiveness of this bipartisan package that we
    are going to enact this coming fall is going to be compromised.
    I just don't think it is going to be that effective without you
    giving us the authority we need.
        I think--you know, I submitted a statement and I am happy
    to answer questions in writing just because of the time
    constraint, Mr. Chairman. So I am going to end it there.
        But just in conclusion, you know, we are a Great Lakes
    State. I hope you will appreciate our sensitivity in becoming a
    solid waste dumping ground when 20 percent of our landfill
    capacity is being used by waste that we don't generate. And it
    does compromise our solid waste planning.
        So, Mr. Chairman and members, I appreciate the opportunity
    you have given me on a very hectic day for you all to be here.
    Thank you.
        [The prepared statement of Hon. Ken Sikkema follows:]

      Prepared Statement of Ken Sikkema, Majority Leader, Michigan Senate

        Thank you Mr. Chairman and members of the House Energy and Commerce
    Subcommittee. I am here at the invitation and urging of Congressman
    Rogers to offer my ardent support for HR 382--Congressman Rogers'
    proposal to afford the states express authority to regulate foreign
    municipal solid waste.
        As you know, Michigan has a long and unique history of efforts to
    protect the integrity of its solid waste planning process. In 1978, the
    Michigan Legislature passed the state's Solid Waste Management Act in
    order to help provide integrity for our waste management process and to
    provide a suitable environment for the disposal of waste. In that act,
    each county was required to develop a management plan that would ensure
    suitable disposal. As a direct consequence, the numerous landfills in
    Michigan, many of which that were not operating with the latest
    technologies, were either closed or upgraded to provide for a long-
    term, responsible plan for the state. In addition, Michigan also began
    to focus on reduction, reuse, and recycling of its waste in an effort
    to reduce the amount of landfill space needed. In short, Michigan took
    its responsibilities seriously by investing heavily in a plan that
    provided for integrity of its waste management process.
        One of the most significant amendments to this act occurred in 1988
    and provided the authority to each county to be able to ban waste
    generated from outside of that county. This legislation had the effect
    of allowing a county to also ban the importation of out-of-state waste.
    As you may know, challenges to this statute ultimately led to the U.S.
    Supreme Court's 1992 decision in Fort Gratiot Sanitary Landfill v MDNR,
    which struck down the statute as violative of the Interstate Commerce
    Clause.
        Since that time, Michigan has struggled with the issue of how to
    control waste shipped from out of state. With ever increasing amounts
    of foreign municipal solid waste coming across our borders, Michigan's
    wellconceived plan to provide for its own disposal options has been
    compromised by the inability to regulate out-of-state waste. Over the
    last three fiscal years, Michigan has seen foreign municipal solid
    waste increase from 4.2 million cubic yards in FY--2000 to 6.6 million
    cubic yards in FY 2002, with projections for the next year indicating
    an additional increase of at least 300,000 cubic yards because of new
    contracts. The steps taken by Michigan policymakers to develop a
    responsible plan through the reduction, reuse, and recycling, and the
    placement of its waste in landfills are jeopardized when we cannot
    control the amount of waste coming across our borders.
        In reaction to the growing concern over how to control out of state
    waste, Governor Engler created an out-of-state waste task force in May
    of 1999. The deliberations of the Solid Waste Importation Task Force
    ultimately led to a recommendation that federal legislation needed to
    be passed to authorize states to regulate out-of-state waste.
        Subsequent to the decision of the U.S. Supreme Court and the
    recommendations of the Task Force, numerous pieces of legislation have
    been introduced, including resolutions urging and imploring the federal
    government to pass needed legislation. Letters have been written urging
    the same, and countless other communications have been sent, all asking
    Congress to act in the needed fashion.
        I am here today to deliver two important messages.
        Number one, my colleagues in the Michigan Legislature and I all
    appreciate and support prompt and sorely needed action on HR 382. I can
    tell you that resolutions, such as SR 12, expressly supporting passage
    of HR 382, have already been passed by the Senate, and legislation has
    been introduced that would take the authority you will provide the
    state in this legislation and immediately implement an aggressive
    regulatory program that will protect the state from the ever-increasing
    amounts of foreign municipal solid waste.
        Number two, my colleagues in the Michigan Legislature and I,
    without meaning to sound unappreciative of these current efforts to
    give the states this important authority, have a bipartisan, bicameral
    plan being prepared that will allow us to act unilaterally to protect
    Michigan's borders from the waste and sludge that is coming across our
    international borders. We have stepped up inspections, authorized the
    Department of Environmental Quality to assess the sources and kinds of
    out-of-state waste, and conducted hearings around the state to refine a
    plan that will move Michigan into position to slow down the importation
    of waste--what I believe to be not a valuable item of commerce but an
    unintended negative consequence of human activities.
        There have been over 33 pieces of legislation introduced this
    session alone dealing with this issue, and from these bills, I fully
    expect that a bipartisan, bicameral legislative initiative will be
    passed by the end of this year. From early indications, this package
    will contain bills that will expand the number of items banned from our
    landfills and set up a more comprehensive recycling program to both
    improve recycling in our state and enable us to scrutinize the kind of
    waste that is coming across our borders. This plan is a good one and
    mirrors what other states have done to curb out-of-state waste but is
    not as desirable as moving HR 382, which would give the state full
    authority to take more direct actions to regulate out-of-state waste.
        We all know that Michigan has a lot at stake, and I believe that
    Michigan is not like any other state. We are the home of the Great
    Lakes and should not be regarded as anyone's dumping ground. We have
    taken the responsibilities laid out in the Michigan Constitution very
    seriously to protect this state's natural resources from ``pollution,
    impairment and destruction.'' We have taken prudent actions in this
    regard as we have developed a plan for our state that ensures that we
    have an adequate amount of landfill capacity. This action and
    Michigan's patience in waiting for appropriate federal legislation
    should not be a signal for anyone or any entity to think that we have
    given a free pass to dump their waste in our state.
        Let me close by saying that I sincerely appreciate your efforts in
    focusing on this important natural resource issue, and I also sincerely
    hope that the actions you take will be swift and meaningful. HR 382 is
    a critical piece of legislation that will give us the foundational
    authority to take the steps we need to protect our waste management
    programs and, more importantly, the health of our natural resources and
    the people of this state. I thank you for your time in taking my
    testimony and urge prompt action on this critical piece of
    legislation--HR 382.

        Mr. Gillmor. Thank you, Senator, and have a good trip back
    to Michigan.
        We will go to Mr. Robert Orlin, who is the Deputy
    Commissioner of the New York City Department of Sanitation.

                       STATEMENT OF ROBERT ORLIN

        Mr. Orlin. Thank you very much, Mr. Chairman. Good
    afternoon, Mr. Chairman, ranking member and distinguished
    members of the committee. My name is Robert Orlin and I am the
    Deputy Commissioner for Legal Affairs for the New York City
    Department of Sanitation. I appreciate the opportunity to
    testify this afternoon on the legislation pending before your
    committee, legislation that could have a profound impact on the
    city's day-to-day municipal solid waste operation.
        A decision by top New York State and New York City elected
    officials to close the Fresh Kills landfill by December 31,
    2001, paved the way for the city to progress on a new path in
    managing its solid waste. From the outset, New York City closed
    Fresh Kills responsibly and appropriately with due
    consideration for the States and their communities that have
    chosen to accept the city's waste.
        With the exception of the temporary reopening of the Fresh
    Kills landfill after the tragedy of September 11, 2001, the
    city completed a five-phase program to close the landfill when
    it sent its last barge of department-collected waste to the
    landfill in March 2001.
        Central to the city's closure plan was the city's absolute
    commitment that all the city's exported waste would be disposed
    of in communities that have expressly chosen to accept such
    waste through valid, legally binding, host community
    agreements.
        The Federal courts have consistently upheld municipal solid
    waste shipment as a commodity in interstate commerce, and over
    the years, communities have relied on the certainty that these
    decisions provide for protecting long-term, free-market plans
    to manage solid waste.
        This is especially important in a landscape where the
    rigorous environmental protection required under subtitle (D)
    of the Resource Conservation and Recovery Act compelled
    communities and private companies to replace old, small
    landfills with larger, costlier state-of-the-art regional
    facilities that comply with the more protective law.
        The city believes that each locality has the right to
    accept or reject out-of-state solid waste, not by Federal
    legislation, but by locally decided host community agreements.
        For those localities that have chosen to import the city's
    waste, the revenue generated through host fees, licensing fees
    and taxes has substantially enhanced their local economies,
    improved area infrastructure, paid for construction of new
    schools, paved roads and assisted host communities in meeting
    their own waste management needs. Clearly, many other
    jurisdictions nationwide share New York's approach, since 42
    States import and 49 States and Washington, DC, export
    municipal solid waste.
        For New York City and the vendors to which it awards
    contracts for the disposal of municipal solid waste, the
    elements of certainty and long-term waste management
    arrangements are fundamental to making New York a viable place
    to live and work. Any disruption to the contracts between the
    city and its vendors or agreements between vendors and host
    communities that solidify the city's waste disposal framework
    would detrimentally impact the city's day-to-day solid waste
    operations. For this reason, the city strongly supports the
    importing community's right to negotiate the host community
    agreement that is most suited to the locality's particular
    needs, and then spells out the provisions that make waste
    disposal from out-of-state acceptable to that locality.
        Conversely, the city will rely on private-sector bidding to
    select the most competitive price for disposal. Once formally
    agreed to, these arrangements and contracts must be honored in
    order to preserve the mutual interest of both importers and
    exporters.
        In that regard, the city has not predetermined where its
    solid waste will be disposed. Instead, it has implemented
    measures to ensure that each bidder has all of the requisite
    environmental permits along with a host community agreement
    that verifies the receiving jurisdiction's approval of the
    disposal facility and its acceptance of the imported waste.
        Additionally, the existing authority that States have in
    permitting solid waste facilities in accordance with their own
    regulatory mandates, zoning ordinances and land use provisions
    suggests even less cause for Federal intervention to restrict
    exports.
        I thank the committee for the opportunity to appear today
    and underscore the city's interest and commitment in addressing
    commerce's concerns regarding the interstate transport of
    municipal solid waste. Thank you.
        [The prepared statement of Robert Orlin follows:]

      Prepared Statement of Robert Orlin, Deputy Commissioner, Bureau of
             Legal Affairs, New York City Department of Sanitation

        Good afternoon Mr. Chairman, Ranking Member and distinguished
    members of the Committee. My name is Robert Orlin, and I am the Deputy
    Commissioner for Legal Affairs of the New York City Department of
    Sanitation. I appreciate the opportunity to testify this afternoon on
    the legislation pending before your Committee--legislation that could
    have a profound impact on the City's day-to-day municipal solid waste
    operations.
        The decision by top New York State and New York City elected
    officials to close the Fresh Kills landfill by December 31, 2001 paved
    the way for the City to progress on a new path in managing its solid
    waste. From the outset, New York City closed Fresh Kills responsibly
    and appropriately, with due consideration for the States and their
    communities that have chosen to accept the City's waste. With the
    exception of the temporary reopening of Fresh Kills after the tragedy
    of September 11, 2001, the City completed a five-phase program to close
    Fresh Kills when it sent its last barge of Department-collected solid
    waste to the landfill in March 2001.
        Central to the City's closure plan was the City's absolute
    commitment that all of the City's exported waste would be disposed of
    in communities that have expressly chosen to accept such waste through
    valid, legally binding Host Community Agreements. Since the City only
    exports to willing jurisdictions, the City does not believe it is
    necessary to enact legislation requiring New York City to do that which
    it already requires of itself.
        The federal courts have consistently upheld municipal solid waste
    shipments as a commodity in interstate commerce, and over the years,
    communities have relied on the certainty these decisions provide for
    protecting long-term, free market plans to manage solid waste. This is
    especially important in a landscape where the most rigorous
    environmental protection required under Subtitle D of the Resource
    Conservation and Recovery Act have compelled communities and private
    companies to replace old, small landfills with larger, costlier, state
    of the art, regional facilities that comply with the more protective
    law.
        For many communities and States, municipal solid waste disposal
    fees are an important revenue stream. The City believes that each
    locality has the right to accept or reject out-of-State solid waste ``
    not by federal legislation, but by locally decided Host Community
    Agreements.
        In securing contracts for waste disposal exclusively at Host
    Community Agreement sites, the City has furthered a partnership that
    benefits importer and exporter alike. As the nation's largest and most
    densely-populated city of eight million people, the ability to send
    waste to newer, more advanced regional facilities located outside the
    City's boundaries acknowledges the very environmental, demographic, and
    geographical realities that made closing Fresh Kills necessary. For
    those localities that have chosen to import our waste, the revenue
    generated through host fees, licensing fees and taxes has substantially
    enhanced their local economies, improved area infrastructure, paid for
    construction of new schools, paved roads and assisted host communities
    in meeting their own waste management needs. Clearly, many other
    jurisdictions nationwide share New York's approach, since 42 States
    import and 49 States and Washington, DC export municipal solid waste.
        For New York City and the vendors to which it awards contracts for
    the disposal of municipal solid waste, the elements of certainty and
    long-term waste management arrangements are fundamental to making New
    York a viable place to live and work. Any disruption to the contracts
    between the City and its vendors, or agreements between vendors and
    host communities that solidify the City's waste disposal framework,
    would detrimentally impact the City's day-to-day municipal waste
    operations. For this reason, the City strongly supports the importing
    community's right to negotiate a Host Community Agreement that is most
    suited to the locality's particular needs and that spells out the
    provisions that make waste disposal from out-of-State acceptable to the
    locality. Conversely, the City will rely on private sector bidding to
    select the most competitive price for disposal. Once formally agreed
    to, these agreements and contracts must be honored in order to preserve
    the mutual interests of both importers and exporters.
        In that regard, the City has not pre-determined where its municipal
    solid waste will be disposed. Instead, it has implemented measures to
    ensure that each bidder has all of the requisite environmental permits,
    along with a Host Community Agreement that verifies the receiving
    jurisdiction's approval of the disposal facility and its acceptance of
    the imported waste. Additionally, the existing authority that States
    have in permitting solid waste facilities in accordance with their own
    regulatory mandates, zoning ordinances and land use provisions suggests
    even less cause for federal intervention through legislation to
    restrict exports.
        New York City is not solely dependent on exporting municipal solid
    waste through private disposal markets. New York City has one of the
    most ambitious--and certainly the largest--recycling program in the
    nation. New York City's recycling program is the only large city
    program that requires 100 percent of its households--including
    residents of large multi-family buildings--to recycle. Additionally,
    the Mayor's Directive to all City agencies that all employees reduce
    workplace waste and establish accountability measures for waste
    reduction has further reduced the daily tonnage of export.
        New York City's residents are major consumers of goods manufactured
    in and shipped from other States. The waste generated by the packaging
    materials to ship these goods is significant. For this reason, the
    Mayor supports federal legislation that would place limitations on
    packaging content or require manufacturers to use minimum percentages
    of recycled content in packaging material. These requirements would
    have a measurable effect on the quantity of exported solid waste.
    Despite the City's best waste reduction and recycling efforts, however,
    the City will still need to dispose of a substantial portion of its
    solid waste outside its boundaries.
        I thank the Committee for the opportunity to appear today, and
    underscore the City's interest and commitment in addressing Congress'
    concerns regarding the interstate transport of municipal solid waste.

        Mr. Gillmor. Thank you.
        Councilman Andrew Lanza is of the 51st district.

                      STATEMENT OF ANDREW J. LANZA

        Mr. Lanza. Thank you, Mr. Chairman. Chairman Gillmor,
    distinguished members of the committee, ladies and gentlemen,
    good afternoon. My name is Andrew Lanza, and I am the New York
    City councilman representing the south shore of Staten Island.
        Most of the Fresh Kills landfill is located entirely within
    my district, and I am also a member of the New York City
    Council's Committee on Sanitation and Solid Waste Management.
        For many years, the Fresh Kills landfill was the only
    repository for municipal solid waste within New York City. The
    Fresh Kills landfill was a nonpermitted open dump that was not
    in compliance with any relevant Federal and State laws or
    regulations governing landfills. Fresh Kills grew into the
    word's largest landfill, was the Nation's largest emitter of
    man-made-produced methane and leaked millions of gallons of
    leachate into the environment.
        The story of Fresh Kills is, I believe, relevant to the
    proposed legislation before you.
        For many years, New York City either ignored alternatives
    to the Fresh Kills landfill or the option simply did not exist.
    The lack of alternatives led to the development of a policy
    that was shortsighted and created an unprecedented
    environmental disaster on what had once been a pristine wetland
    covering hundreds of acres.
        Following the development of the regional landfill system
    in the mid-1990's, it became economically feasible for New York
    City to ship its waste out of the city. This economical
    alternative allowed New York City to close the Fresh Kills
    landfill and begin a long overdue environmental cleanup. And I
    might add that the efforts to close that landfill were
    spearheaded and led by then City Councilman Vito Fossella.
        New York City now disposes of its refuse in facilities that
    meet legal guidelines required of landfills, and through a
    series of host community agreements, pays local jurisdictions
    for the right to do so. These agreements have spurred economic
    development and provided towns with monies to pay for services
    that might otherwise be unavailable. By allowing the free
    market to operate, municipalities have been given a broad range
    of alternatives to dispose of solid waste in a manner that is
    conducive to good environmental and economic practices.
        In order to create these alternatives, the free market must
    be allowed to continue to offer options on both ends of the
    commerce transaction. The bills before the subcommittee today
    would reduce the options available to municipalities. By
    restricting alternatives, municipalities will be forced into
    bad decisions that will increase the economic and environmental
    costs in the long term.
        Also host communities will lose an important revenue stream
    that they may be unable to replace. In short, this legislation
    could be the first step in reopening not only the Fresh Kills
    dump, but in creating scores of harmful dumps like it across
    the Nation. And this is not a New York issue by any means; it
    is a Philadelphia issue, it is a Chicago issue, a Detroit
    issue, it is a San Francisco issue. In fact, right now we sit
    in a city of--a community of 500,000 that exports all of its
    waste.
        Where in any of these cities would you begin dumping
    garbage tomorrow? Are these cities in a position to change
    their waste disposal policies in a short period of time? Do
    these cities have the space to create landfills or
    incinerators, and do they have the financial wherewithal to
    implement such drastic policy changes?
        The passage of legislation restricting or banning
    interstate waste shipments will impose an unfunded mandate in
    times of budgetary peril. Furthermore, legislation such as this
    would force municipalities to dispose of their waste in
    unsuitable locations.
        Our Constitution was formed to allow the free flow of
    commerce, people and ideas. The strength of our Nation and its
    economy is dependent upon the preservation of these principles.
    By restricting the ability of municipal solid waste to be
    shipped in interstate commerce, we take a dangerous step toward
    weakening the principles embodied in our commerce clause in the
    Constitution.
        What next? Will the interstate shipment of coal be stopped
    because of the pollution it causes? How about eliminating the
    import of automobiles because of the tens of thousands of
    Americans killed in automobile accidents every year? Why not
    limit interstate sale of meat products because of the fat
    content that may lead to heart disease? Silly propositions?
    Maybe, but so is suing McDonald's because you are overweight.
        The argument that says that traffic, pollution and
    accidents as a result of truck traffic through States is a
    reason to limit the flow of commerce just doesn't fly because
    we can use that argument against all commerce. In my State,
    which is the largest consumer market in the Nation, we see
    trucks from just about every State in this Union come through
    on their way to deliver goods to other States, and they leave
    behind accidents and traffic and thousands of tons of emissions
    every single day.
        I would submit that we start down a very dangerous and
    slippery slope were we to decide to stop, at our border, trucks
    simply because they had on their license plate the name of
    another State other than New York.
        For the foregoing reasons, I respectfully request that you
    do not pass the legislation before you, and I would be glad to
    accept any questions. Thank you.
        [The prepared statement of Andrew J. Lanza follows:]

        Prepared Statement of Andrew J. Lanza, Councilman, New York City

        Chairman Gillmor, distinguished members of the Committee, ladies
    and gentleman. Good Afternoon. My name is Andrew Lanza, and I am the
    New York City Councilman representing the South Shore of Staten Island.
    Most of the Fresh Kills Landfill is located within my City Council
    district. I am also a member of the New York City Council's Committee
    on Sanitation and Solid Waste Management.
        For many years, the Fresh Kills Landfill was the only repository
    for municipal solid waste within New York City. The Fresh Kills
    Landfill was an un-permitted open dump that was not in compliance with
    any relevant federal and state laws or regulations governing landfills.
    Fresh Kills grew into the world's largest landfill, was the Nations
    largest emitter of man-made produced methane and leaked millions of
    gallons of leachate.
        The story of fresh kills is, I believe, relevant to the proposed
    legislation before you. For many years, New York City either ignored
    alternatives to the Fresh Kills Landfill, or the options simply did not
    exist. The lack of alternatives led to the development of a policy that
    was short sighted and created an unprecedented environmental disaster
    on what had once been a pristine wetland covering hundreds of acres.
        Following the development of the regional landfill system in the
    mid-1990's it became economically feasible for New York City to ship
    its waste out of the City. This economic alternative allowed New York
    City to close the Fresh Kills Landfill and begin a long overdue
    environmental cleanup. New York City now disposes of its refuse in
    facilities that meet legal guidelines required of landfills and through
    a series of host community agreements pays local jurisdictions for the
    right to do so. These agreements have spurred economic development and
    provided towns with monies to pay for services that might otherwise be
    unavailable.
        By allowing the free market to operate, municipalities have been
    given a broad range of alternatives to dispose of solid waste in a
    manner that is conducive to good environmental and economic practices.
    In order to create these alternatives, the free market must be allowed
    to continue to offer options on both ends of the commerce transaction.
    The bills before the subcommittee today would reduce the options
    available to municipalities. By restricting alternatives,
    municipalities will be forced into bad decisions that will increase the
    economic and environmental costs in the long-term. Also, host
    communities will lose an important revenue stream that they may be
    unable to replace. In short, this legislation could be the first step
    in re-opening the fresh kills dump, and in creating scores of harmful
    dumps like it across the nation.
        This is not a New York issue by any means. Today, we sit in a city
    of 500,000 that exports all of its waste. Where in Washington D.C.
    would you start dumping garbage tomorrow. Is the District of Columbia
    in a position to change its waste disposal policies in a short amount
    of time? Does the District of Columbia have the space to create
    landfills or incinerators? Does the District of Columbia have the
    financial wherewithal to implement such drastic policy changes? These
    questions are asked of Chicago, Philadelphia and many cities across the
    nation. The passage of legislation restricting interstate waste
    shipments will impose an unfunded mandate in times of budgetary peril.
    Furthermore, this legislation would force municipalities to dispose of
    its waste in unsuitable locations.
        Our Constitution was formed to allow for the free flow of commerce,
    people and ideas. The strength of our Nation and its economy is
    dependent upon the preservation of these principles. By restricting the
    ability of municipal solid waste to be shipped in interstate commerce,
    we take a dangerous step toward weakening the principles embodied in
    our constitutions's commerce clause. What next?? Should the interstate
    shipment of coal be stopped because of the pollution it causes? Should
    the export of autombiles be restricted because the tens of thousands of
    Americans killed in auto accidents each year. Why not limit the
    interstate sale of meat products because of fat content that may lead
    to heart disease. Silly propositions? Maybe, but so is suing McDonalds
    because you're overweight.
        For the foregoing reasons, I respectfully request that you do not
    pass the legislation before you.
        Again, thank you for the opportunity to testify and I will be more
    than happy to take whatever questions you may have.

        Mr. Gillmor. Thank you, Mr. Lanza.
        Mr. Steven Chester, Michigan Department of Environmental
    Quality.

                     STATEMENT OF STEVEN E. CHESTER

        Mr. Chester. Thank you, Mr. Chairman and committee members.
    My name is Steven Chester, and I am the Director of the
    Michigan Department of Environmental Quality.
        I want to thank the committee for this opportunity to
    discuss legislation aimed at providing States with the
    authority to effectively manage the interstate transfer of
    solid waste.
        On April 2, 2003, the Governors of six States, including
    Governor Granholm of Michigan wrote to Chairman Gillmor
    requesting an expeditious markup of H.R. 1730, sponsored by
    Representative James Greenwood of Pennsylvania. That bill would
    provide State and local governments with the tools needed to
    reasonably limit the amount of out-of-state waste and
    international waste that crosses their borders. The basis of
    the request from the six Governors is clear. Congress has had
    this issue before it for over 10 years and the States
    desperately need action.
        The three bills subject to today's hearing each would help
    Michigan and other States gain control of municipal solid waste
    imports. In addition to H.R. 1730, H.R. 382 introduced by
    Representative Mike Rogers of Michigan would give States
    authority to limit waste from outside the United States.
        H.R. 411, introduced by Congressman John Dingell of
    Michigan, would require the administrator of the Environmental
    Protection Agency to enforce the notice and consent provisions
    of a bilateral agreement between the governments of the United
    States and Canada, which you have heard so much about already
    today.
        Now, Michigan has paid a price for the 10 years we have
    been waiting to effectively manage disposal of solid waste
    within our borders. Since 1996, the amount of waste from other
    States being disposed of in Michigan rose by 61 percent, and
    the amount of waste from Canada rose by 149 percent. Total out-
    of-state imports of waste into Michigan landfills rose to
    approximately 12 million cubic yards in fiscal year 2002, up
    from approximately 6.4 million cubic yards in fiscal year 1999,
    or just 4 years earlier.
        The largest individual source of waste imports into
    Michigan is now Canada. The increase of waste importation has
    had a real effect on the citizens and environment in Michigan.
    Approximately 180 trucks from Canada now travel Michigan
    roadways each day, heading for a Michigan landfill to dispose
    of Canadian waste. The trucks increase the danger to Michigan
    citizens traveling those roadways, advance wear and tear on
    Michigan's roads and emit increased pollutants Michigan
    citizens breathe.
        The volume of waste being imported to Michigan also has a
    long-term effect on our land resources. This means that
    Michigan will have to consume more valuable open space to site
    new landfills than we otherwise would. And every new landfill
    increases the potential for groundwater contamination, the loss
    of precious drinking water supplies and brings with it long-
    term monitoring and maintenance costs.
        For Michigan citizens, the number of out-of-state trucks
    idling at landfill gates means more noise, more odors and more
    destruction of their lives. These Michigan citizens are now
    asking, and asking with increasing fervor, why their elected
    State representatives and the agency officials appointed to
    assist them cannot address their concerns. That is why we in
    Michigan are asking you to provide the States with clear
    authority to adequately and comprehensively manage our need for
    environmentally sound solid waste disposal.
        Importantly, this does not mean we need the authority to
    button up our borders and exclude all imported waste, but it
    does mean having the ability to control the volume and flow of
    solid waste within our borders in the best interest of the
    local communities in the State as a whole.
        In the late 1980's, Michigan was in the forefront of
    efforts to meet long-term solid waste disposal needs. With the
    bill before you today, we look once again to regain that
    opportunity to undertake such efforts.
        H.R. 1730, H.R. 382 and H.R. 411 each provides the tools
    necessary in that regard by allowing considered choices by
    local communities in the State about how landfills are
    developed and how they are utilized.
        Thank you again for the opportunity to provide testimony on
    this vitally important issue. Michigan welcomes the opportunity
    to assist this committee in developing solid waste legislation.
    We ask you to move forward quickly in doing so and to move a
    bill toward final passage.
        Thank you, and it would be my pleasure to answer any
    questions you may have.
        [The prepared statement of Steven E. Chester follows:]

        Prepared Statement of Steven E. Chester, Michigan Department of
                             Environmental Quality

        Good afternoon, I am Steven E. Chester, Director of the Michigan
    Department of Environmental Quality. The Department is Michigan's
    environmental regulatory agency, responsible for the air, water
    quality, wetlands, waste management, and environmental cleanup
    programs.
        I would like to thank the committee for the opportunity today to
    discuss legislation that would be effective for managing the interstate
    transfer of solid waste. In 1992, the United States Supreme Court
    ruled, in the matter of Fort Gratiot Sanitary Landfill v. Michigan
    Department of Natural Resources et al. (1992 Fort Gratiot decision),
    that provisions of Michigan's Solid Waste Management Act, which allowed
    counties to impose restrictions on the importation of solid waste from
    other states and countries through their Solid Waste Management Plans,
    violated the United States Constitution and were not enforceable. The
    United States Constitution's Commerce Clause reserves to the United
    States Congress the authority to regulate commerce between the states
    and with foreign countries. The Courts have long recognized the so-
    called ``dormant'' nature of the Commerce Clause as prohibiting states
    from such areas of regulation unless authorized by Congress. As a
    result, while movement of waste between Michigan counties is still
    regulated by state law, we are unable to restrict imports of solid
    waste from outside of Michigan.
        On April 2, 2003, the Governors of six states, including Governor
    Jennifer M. Granholm of Michigan, wrote to Chairman Gillmor requesting
    an expeditious markup of H.R. 1730 sponsored by Representative James C.
    Greenwood (R-PA). That bill would provide state and local governments
    with the tools needed to reasonably limit the amount of out-of-state
    and international waste that crosses their borders, maintain disposal
    capacity for their own waste, and assure protection of the states'
    natural resources. The basis of the request from the Governors is
    clear: Congress has had this issue before it for over ten years and the
    states desperately need action. A bill sponsored by Representative
    Richard Boucher (D-VA) in 1994 (H.R. 4779) would have provided the
    necessary state authority, but was stalled by the opposition of a
    single Senator. While a committee hearing was held in 2001, no markup
    was initiated, and the states are still left wanting.
        The three bills subject to today's hearing each would help Michigan
    and other states gain control of municipal solid waste imports. In
    addition to H.R. 1730, H.R. 382, introduced by Representative Mike
    Rogers (R-MI) would give states authority to limit waste from outside
    the United States. H.R. 411, introduced by Congressman John Dingell (D-
    MI) would require the Administrator of the U.S. Environmental
    Protection Agency (EPA) to enforce the notice and consent provisions of
    the bilateral Agreement Between the Government of the United States and
    the Government of Canada Concerning the Transboundary Movement of
    Hazardous Waste. When Governor Granholm wrote to former EPA
    Administrator Christine T. Whitman asking that the bilateral agreement
    be enforced, the EPA replied that it ``hopes to seek'' notice and
    consent authority under the Resource Conservation and Recovery Act
    (RCRA). H.R. 411 would end the wait using existing authority to give
    state and local governments needed tools to reclaim control over waste
    imports.
        Michigan has paid a price for the 10 years we have been waiting for
    the authority to fully manage disposal of solid waste within our
    borders. Solid waste import data has been collected by the Department
    on a fiscal year basis since 1996. Data from these reports indicate an
    increase in the level of imports over the last seven years. Based on
    data collected there has been an overall increase of 26 percent in the
    amount of solid waste being generated in Michigan. However, the amount
    of waste from other states being disposed of in Michigan rose by 61
    percent during this period. The amount of waste from Canada being
    disposed of in Michigan rose by 149 percent.
        Waste from other states and Canada is approximately 20 percent of
    the total solid waste disposed of annually in Michigan. This is up from
    13 percent just seven years ago. At this rate imports equate to 25
    percent of the waste Michigan residents generate, meaning that Michigan
    will lose one full year of landfill capacity every four years. Total
    out-of-state imports of waste into Michigan landfills rose to
    11,494,443 cubic yards in fiscal year 2002, up from 6,349,695 cubic
    yards in fiscal year 1999, an increase of 81 percent. The largest
    individual source of waste imports is now Canada, with total reported
    fiscal year 2002 imports to Michigan landfills of 6,607,856 cubic
    yards, up 4,265,065 cubic yards, or 182 percent, from fiscal year 1999.
        The increase of waste importation has had a real effect on the
    citizens and environment of Michigan. On average, 125-150 trash trucks
    from Toronto and about 30 trash trucks from other municipalities in
    Canada now travel Michigan roads each day heading for a Michigan
    landfill to dispose of Canadian waste. The trucks increase the danger
    to Michigan citizens traveling those roadways, advance wear and tear on
    Michigan roads, and emit increased air pollutants Michigan citizens
    breathe.
        Beside the immediate effect of increased truck traffic, the volume
    of waste being imported to Michigan will have a long term effect on our
    land resources. As stated, imported waste is consuming Michigan
    landfill capacity at a rate that will require us to site new landfills
    20% earlier than would otherwise be the case. This means that Michigan
    will have to consume more valuable open space to site new landfills
    than we otherwise would. And every new landfill increases the potential
    for groundwater contamination, the loss of precious drinking water
    supplies, and brings with it long term monitoring and maintenance
    costs. Ironically, Michigan is currently in the process of having
    potentially liable parties identified to address releases that have
    resulted from the improper closure of the Fort Gratiot Sanitary
    Landfill. Canadian firms and out of state firms have been identified on
    this list and are currently in the process of being pursued to
    remediate these releases under state law.
        But for Michigan citizens, it is the more immediate effect of
    imported waste that matters. To them, the number of trucks idling at
    the landfill gate waiting their turn to dump their waste means more
    noise, more odors, and more disruption of their lives. These are people
    who don't understand why, if they have been responsible in accepting
    neighborhood landfill for disposal of their own waste, people in other
    states and countries don't do the same. These are people who have a
    hard time justifying the inconveniences of recycling paper, plastic,
    bottles and cans to save landfill space, if it is just going to be used
    up by folks in other states and countries. And these are people who are
    asking--and asking with increasing fervor--why their elected state
    representatives and the agency officials appointed to assist them,
    cannot address their concerns.
        This message has been heard in Michigan. There are currently forty-
    one bills pending in the Michigan Legislature to address various
    aspects of solid waste importation. However, many of them present
    significant issues of questionable legal authority given the
    restrictions of the Commerce Clause.
        And that is what we are asking of you: The clear authority to
    adequately and comprehensively manage our need for environmentally
    sound solid waste disposal. Importantly, this does not mean we need the
    authority to button up our borders and exclude all imported waste. What
    it does mean is having the ability to consider the costs and benefits
    associated with waste disposal, no matter the source, and to control
    waste volumes, no matter the source, in the best interests of the local
    community and the state as a whole. What it does mean is the ability to
    plan for our long term disposal needs with certainty. And to those
    citizens growing increasingly impatient with their government, it means
    getting a say over the quality of their life.
        In the late 1980's Michigan was in the forefront of efforts to meet
    long term solid waste disposal needs. While various components of those
    efforts dealt with diversion of materials away for waste disposal, a
    central core was the ability to look ahead, make difficult choices, and
    provide disposal capacity. With the bills before you today, we look
    once again to regaining that opportunity to undertake such efforts.
    H.R. 1730, H.R. 382, and H.R. 411 would each provide the tools
    necessary in that regard by allowing considered choices by local
    communities and the state about how landfills are developed and
    utilized. While the bills differ slightly in their approaches, each
    would allow us to recognize the effects of imported waste and to factor
    those effects into decisions about whether imported waste will be
    accepted. And we support the goals of these bills for that reason.
        As previously noted, the ten years that this issue has laid before
    Congress has been costly to Michigan. While we urge you to action soon,
    we also urge you to take the action that will be most effective. Given
    the sensitive legal and international relations issues that surround
    this topic, the best approach will be one that minimizes the potential
    for litigation thereby resulting in the earliest practical
    opportunities for states to use the new authority granted by Congress.
        Thank you again for the opportunity to provide this testimony. At
    this time, states have very limited ability to regulate imports of out-
    of-state solid waste; however, it is possible for federal legislation
    to create a balance between the communities' plans for their long-term
    disposal needs and the needs of private waste disposal firms to operate
    profitably, to compete fairly with each other, and to honor existing
    contractual relationships. Michigan welcomes the opportunity to provide
    assistance to this committee in developing legislation which would give
    states the ability to impose reasonable regulation of waste imports
    while recognizing existing waste management relationships and the needs
    of the waste disposal industry and waste generators to operate
    effectively. We ask you to move forward quickly in doing so and to move
    a bill toward final passage.
        Thank you. I would be pleased to answer any questions you may have.

        Mr. Gillmor. Thank you very much.
        Mr. Nick DiPasquale, Deputy Secretary of the Pennsylvania
    Department of Environmental Protection.

                   STATEMENT OF NICHOLAS A. DiPASQUALE

        Mr. DiPasquale. Thank you, Chairman Gillmor, members of the
    committee. My name is Nick DiPasquale. I am the Deputy
    Secretary of the Office for Air, Recycling and Radiation
    Protection for the Pennsylvania Department of Environmental
    Protection.
        I am here today on behalf of the Governor, Ed Rendell, and
    Secretary Kathleen McGinty to talk about an issue of great
    importance to the Commonwealth, that of interstate waste. I
    want to thank Representative Greenwood for introducing this
    important piece of legislation and other members of the
    Pennsylvania delegation, Congressman Doyle, for supporting it
    as many members of this committee have. We appreciate the
    efforts of Representative Greenwood and look forward to working
    with him to keep this issue on the forefront of public
    discussion.
        States need the opportunity to implement reasonable
    controls on the amount of out-of-state waste being imported
    into their jurisdiction, and each State needs to take
    responsibility in planning for the management of their
    municipal solid waste.
        Pennsylvania recognized that Congress has the authority to
    enable States to regulate--and only Congress has the authority
    to give States the authority to regulate interstate waste.
        The United States Supreme Court has made that abundantly
    clear on a number of decisions. Congress must act for
    Pennsylvania and for other States to have the proper tools to
    manage the movement of interstate waste.
        In the 1980's, Pennsylvania took the responsibility for the
    management of its own waste by increasing environmentally
    sound, permitted disposal capacity. Unfortunately, other States
    have benefited from this. Pennsylvania believes that States
    should to the greatest extent practical manage their disposal
    needs within their own borders.
        We recognize that there on the borders between States,
    there is always going to be some movement back and forth, but
    in the State of Pennsylvania, for example, almost 50 percent of
    the waste that is going into our disposal facilities is from
    out-of-state.
        The Commonwealth has made efforts to improve the management
    and safety of waste that gets disposed of in the State of
    Pennsylvania. The efforts to increase the amount of recycling
    have been ongoing since the 1980's and remain a high priority
    of the State. The Pennsylvania Department of Environmental
    Protection has conducted safety inspections, which we refer to
    as ``Trashnets,'' in cooperation with surrounding States in an
    effort to improve the condition and safety of the use of
    transportation vehicles that haul municipal waste.
        In addition, the Pennsylvania legislature passed Act 90
    last year, entitled the Waste Transportation Safety Act, in an
    effort to ensure the responsible and safe transportation of
    municipal and industrial waste by requiring written
    authorization from Pennsylvania's DEP for any vehicle disposing
    of waste in Pennsylvania. We have already authorized over
    26,000 vehicles under Act 90.
        There are a number of minor technical amendments that we
    would like to work with Representative Greenwood and staff of
    the committee that deal with the definition of host community
    in Pennsylvania.
        As you may be aware, while the responsibility for planning
    is at the county level, in many cases the host agreements are
    executed with municipal or local governments, and we would like
    to make sure that the definition accurately incorporates the
    those jurisdictions.
        I am going to skip over the minor technical comments to get
    more time to ask questions of the panel, but we do want to
    support the efforts of the committee to support the efforts of
    Congressman Greenwood in passing this legislation. We do have a
    serious problem with the import of State--waste from out-of-
    state in Pennsylvania and one that we think needs to be
    corrected.
        Thank you very much.
        [The prepared statement of Nicholas A. DiPasquale follows:]

    Prepared Statement of Nicholas A. DiPasquale, Deputy Secretary, Office
    of Air, Recycling and Radiation Protection, Pennsylvania Department of
                            Environmental Protection

        Chairman Gillmor, members of the Committee, my name is Nicholas
    DiPasquale. I am the Deputy Secretary of the Office of Air, Recycling
    and Radiation Protection, Pennsylvania Department of Environmental
    Protection. I am here today on behalf of Governor Edward Rendell and
    DEP Secretary Kathleen McGinty to talk to you about an issue of great
    importance to the Commonwealth of Pennsylvania--interstate waste.
        I want to thank Representative Greenwood for this opportunity to
    testify before the committee today. I also want to thank the
    Representative for his ongoing efforts in addressing the challenge that
    the interstate movement of waste presents to each of us. We appreciate
    the efforts of Representative Greenwood and look forward to working
    with him to keep this issue in the forefront of public discussion.
        States need the authority to implement reasonable controls on the
    amount of out-of-state waste being imported into their jurisdiction and
    each state needs to take responsibility in planning for the management
    of their Municipal Solid Waste. Pennsylvania recognizes that only
    Congress has the authority to enable States to regulate the interstate
    movement of waste. The United States Supreme Court has made that clear.
    Congress must act for Pennsylvania and other States to have the proper
    tools to manage the interstate movement of waste.
        In the 1980s, Pennsylvania took the responsibility for the
    management of its own waste by increasing environmentally sound
    permitted disposal capacity. Other states have benefited from this.
    Pennsylvania believes that states should work to manage their disposal
    needs within their own borders.
        The Commonwealth has made efforts to improve the management and the
    safety of the management of all waste present in Pennsylvania. The
    efforts to increase the amount of recycling have been ongoing since
    1988 and remain a high priority. Pennsylvania's Department of
    Environmental Protection has conducted safety inspections, known as
    ``Trashnets'' in cooperation with surrounding states in an effort to
    improve the condition and safe use of waste transportation vehicles.
        In addition, the Pennsylvania Legislature passed Act 90 last year,
    entitled the ``Waste Transportation Safety Act,'' in an effort to
    ensure the responsible and safe transportation of municipal and
    industrial waste by requiring written authorization from Pennsylvania's
    Department of Environmental Protection for any vehicle disposing of
    waste in Pennsylvania. We have already authorized over 26,000 waste
    vehicles under Act 90.
        Any discussion of interstate waste at the federal level has merit
    and should be supported. ``The Solid Waste Interstate Transportation
    Act of 2003'' bill introduced by Representative Greenwood is a positive
    piece of federal legislation to address this issue. However, as with
    any legislative proposal, there are changes that would help address
    Pennsylvania issues.
        As examples, there are two definitions to which we suggest minor
    adjustments that are technical in nature. We offer these in the spirit
    of support for Representative Greenwood's legislation.
        First, an ``affected local government'' is defined as ``. . . the
    public body authorized by State law to plan for the management of
    municipal solid waste . . .''. In Pennsylvania, Act 101, the Municipal
    Waste Planning, Recycling and Waste Reduction Act, requires counties to
    plan for the management of municipal waste; therefore, the affected
    local government in Pennsylvania would be the county, not the
    municipality.
        This minor change would be helpful in Pennsylvania's varying levels
    of local government, including county and municipal governments, can
    enter into host community agreements. To address this issue, the term
    ``affected local government'' needs to be broadly defined to include
    all levels of local governments that execute host community agreements.
    This would enable host municipalities, which bear most of the adverse
    impacts of a solid waste facility, to have the decision-making power
    about the receipt of out-of-state waste at the facility.
        Second, the definition of ``municipal solid waste'' excludes
    ``recyclable materials,'' which are defined in the legislation as
    ``materials that are diverted, separated from, or separately managed
    from materials otherwise destined for disposal as solid waste, by
    collecting, sorting, or processing for use as raw materials or
    feedstocks in lieu of, or in addition to, virgin materials, including
    petroleum, in the manufacture of usable materials or products.'' The
    definition of ``recyclable materials'' does not include the requirement
    that the material actually be recycled. The definition only requires
    that the materials be separated at the curb or managed separately from
    other waste destined for disposal. In order to align the definition of
    ``recyclable materials'' with the Pennsylvania definition, the federal
    definition should require that the materials actually be recycled.
        The bill as proposed would establish a presumptive ban on the
    receipt and disposal of out-of-state municipal solid waste at landfills
    and incinerators. However, the legislation also specifies certain
    situations where the presumptive ban would not apply, thereby allowing
    the receipt and disposal of out-of-state waste at a facility. The
    presumptive ban would not apply in situations where host community
    agreements, permits or contracts specifically authorize the receipt of
    out of state waste.
        The host community agreements would have to be with counties, but
    in Pennsylvania, host community agreements are entered into with local
    communities. Shifting the agreements could cause considerable concern
    to local communities and other affected communities that currently
    receive revenues from the facility to offset the inconveniences of
    hosting the facility. There are only a few permits and contracts if
    any, that would meet the conditions for exemption as currently drafted
    in the bill.
        Regarding the establishment of out-of-state waste limits based upon
    1995 levels, it should be noted that the definition for a
    ``comprehensive recycling program'' is more encompassing and explicit
    than the recycling program provisions established by Pennsylvania's Act
    101 because the bill's definition requires the generators of municipal
    solid waste to separate all of a list of materials for recycling as a
    condition of disposing of the waste at landfills or incinerators in the
    state.
        Because Pennsylvania's recycling law requires only three materials
    from a list of materials to be separated, it is questionable whether
    Pennsylvania would be eligible to implement the freeze based upon 1995
    waste levels.
        Until federal legislation is passed, the Commonwealth will continue
    to pursue the improvement of recycling programs, cooperation with other
    states, and the improvement of safe management of waste. We would be
    happy to provide a more detailed analysis with specific recommended
    amendments for your consideration.
        We look forward to working with Representative Greenwood and other
    members of Congress as this legislation moves forward.
        Thank you.

        Mr. Gillmor. Thank you very much, and if we can go to the
    questions, let me just make one brief comment on the commerce
    clause, which the Founding Fathers did put in the Constitution,
    and I presume they didn't do a vain act. It was intended, I
    think, that Congress be able to treat different types of
    commerce differently.
        Let me ask you, Mr. Orlin--you know, I applaud your support
    of recycling in New York City and recycled content standards
    for packaging, but a couple questions along that line. I would
    like to know how that squares with the April 2, 2003, statement
    of New York City Deputy Controller Greg Brooks, who is
    justifying the cancellation of parts of New York's recycling
    program because it was too expensive. And part of that, would
    it be fair to say that the current law would encourage cities
    like New York to get rid of recycling because we can basically
    ship their problems out-of-state?
        Mr. Orlin. Mr. Chairman, the city had cut back on its
    recycling program. However, even before the cutback, the city
    continued to recycle all sorts of mixed paper, including
    magazines, newspapers, cardboard, as well as metals. On July 1,
    2003, the city reinstituted its plastic recycling, and I am
    happy to state that as of April 1, 2004, the city will resume
    its glass recycling. So by April of next year the city's entire
    recycling program will be as it was a couple of years ago.
        Mr. Gillmor. Thank you. Councilman Lanza, even if we have
    certain communities which agree to contract the host community
    agreement, how do you assure that communities surrounding that
    host community protect their environmental quality and
    landscape from an increase in waste shipments. Let me give an
    example, just last week, there was a major traffic accident on
    the Beltway at 202 involving an overturned waste truck en route
    from New York. The accident backed up traffic for hours and
    caused an inconvenience to the surrounding community. And that
    is just one isolated occurrence on a given day. But with the
    increase in exported waste from New York and other States, as
    well the increase in international transport, how are
    surrounding communities supposed to deal and be recompensed for
    their increased financial burdens, burdens on their roads and
    traffic congestion, and also the environmental burdens as the
    exported waste shipments continue to increase?
        Mr. Lanza. Again, I believe that argument could be made
    against all interstate commerce, regardless of the goods being
    shipped. That accident happened to involve a trash truck.
    Staten Island is part of the interstate system, and we deal and
    are confronted by truck and jack-knifed trucks almost daily.
    More typically, it involves trucks transporting produce from
    New Jersey or from the south or beef from the Midwest or
    petroleum or gasoline from the southwest. And so communities
    deal with those issues the way they deal with all issues
    regarding the transport of goods.
        Mr. Gillmor. Let me just ask, the public puts trust in all
    of us to properly manage tax dollars. And since the State
    government and body has an interest in spreading the cost of
    proper in-State disposal of its own waste of all of its
    citizens, why should those State citizens also be responsible
    for bearing the cost of disposing of out-of-State waste from
    other States and countries. In other words, isn't heavy
    reliance on exportation of solid waste a de facto way of
    shifting costs from one jurisdiction to the other?
        Mr. Lanza. I think the distinction between the good
    commodity and the bad commodity or somehow separating out waste
    from commodities that no one here is suggesting that we limit
    really doesn't meet the reality. New York City is, as I've
    said, the largest consumer market. We also are not a
    manufacturing economy or community, which means that the
    majority of the goods consumed in New York City comes from
    other States. And so that means that the majority of the waste
    being generated by New York City has origins outside of New
    York City. When that dozen of eggs comes across the bridge from
    New Jersey into Staten Island, it is in a carton. And when the
    people on Staten Island are finished consuming those eggs there
    is a carton to be disposed of, a carton that came from New
    Jersey. So I don't think it makes sense to say that it is a
    good commodity on the way in and a bad commodity on the way
    out. And I think the principle that should be upheld here is
    that of free market. Staten Island, where I represent, happens
    to be closer to the State of New Jersey than it is to any other
    part of New York City. In fact, New York City is closer to New
    Jersey, Pennsylvania, Connecticut and Massachusetts than it is
    to the majority of the rest of New York State. So the stream of
    commerce ought to be based on the regional realities as opposed
    to artificial and man-made State lines, and I think that is
    what was intended by the Constitution.
        Mr. Gillmor. Mr. Orlin, you said you wanted to respond to
    my question as well.
        Mr. Orlin. To your earlier question, responding to the
    accident, we were all terribly saddened to hear the news but I
    want to make clear that the city vigorously supports highway
    safety laws. In its contracts it requires that the vendors
    comply with all highway safety laws and truck routes. And also
    would like to point out that the city is intent on reducing the
    export of waste by truck traffic. It is currently formulating a
    long-term plan and doing the environmental review for the long-
    term plan, which will rely heavily on barge and rail export to
    final disposal sites and we will be presenting that plan to the
    city council and to the State Department of Environmental
    Conservation next year.
        Mr. Gillmor. Thank you very much. My time has expired. The
    gentlelady from California.
        Ms. Solis. Thank you. My question is for Mr. Chester. I
    would ask you how you feel about the free market approach that
    was described by the gentleman from New York.
        Mr. Chester. Well, I think there is a basic
    misunderstanding here. The bills that you have before you, I
    don't believe are incompatible with free market approaches.
    They don't flat out prohibit States from accepting waste. They
    give States choices. They say you can make a choice to prohibit
    or you could limit. And you can limit that according to a
    number of different methods. In fact, 1730 goes even further to
    honor permits and contracts that are in place and allow for
    host agreements that would allow for some out of State waste to
    continue to be disposed of in that location. So I don't see
    them as incompatible. I really see them as providing States
    with choices and the ability to manage their solid waste issues
    kind of holistically.
        Ms. Solis. The approach that the gentlemen from New York
    are talking about that actually this is a benefit to the
    receivers of that imported trash. How would you view that in
    terms of effects on the environment and regulations and what
    have you that you probably have imposed. At what cost or is
    there a cost, in your opinion?
        Mr. Chester. I don't think there is any secret that many of
    the old dump sites and landfills that we have had are now, as
    someone mentioned earlier, on the NPL, which means they are
    Superfund sites or on the equivalent State sites for clean up.
    There have been real problems associated landfills nationwide.
    It is true, we have much better standards now but that is not
    to say that even with these better standards, that a number of
    these landfills will leach contaminants to groundwater and
    cause problems in the future. There is a cost associated with
    landfilling solid waste, a number of costs from an
    environmental perspective.
        Ms. Solis. You mentioned there was, I think, 180 trucks
    that come in every day into Michigan.
        Mr. Chester. That is correct. Between 125 to 150 are
    associated with trash from Toronto and remaining 30 to 40 come
    from other areas of Canada.
        Ms. Solis. One of the issues I am familiar with in my
    district, we have about five different landfills and there does
    seem to be other costs that are added that don't even go into
    the landfill operation, and that is transportation of the roads
    with congestion and what have you. There are issues regarding
    the degradation of our highway transportation access roads that
    time and time again that our local municipalities have to pick
    up and they get no compensation for that as well. And I wanted
    to mention that is something that I know happens. I wanted to
    get a response from Mr. DiPasquale and what bill or the series
    of bills that are being presented which one would you be more
    in favor of?
        Mr. DiPasquale. My comments today were confined to H.R.
    1730. And we certainly support that as an effort to gain some
    control or give the States some reasonable control over the
    movement of interstate waste. But there is no question that
    there are significant impacts on local communities as a result
    of the increased volume of waste that they are taking at local
    landfills. We have tried to address that in Pennsylvania by
    increasing the stringency of the regulations that apply to
    these facilities as part of the permitting process that take
    into account some of the things that occur that are outside of
    the permitting process. But there is no question that these
    impacts are occurring because of the increase in interstate
    waste.
        Ms. Solis. Last, my question to the gentlemen from New York
    to either one, Mr. Lanza maybe. In California, we have some
    very strong regulations and laws that are passed, and one is
    waste reduction. And all our cities and localities are required
    to meet certain criteria. And some people would say that it is
    outlandish because our cities aren't going to get there and
    that is always a problem. But what has the city done to help
    reduce, to enhance recycling and are there any incentives for
    businesses or the government itself to look at other modes of
    recycling?
        Mr. Orlin. Well, as I stated, the city does encourage and
    promote recycling. There are laws on the book that require
    residential households and commercial vendors to recycle. There
    are enforcement agents who enforce the laws so if someone
    throws out paper and puts it into the regular waste stream,
    that person would be fined by the sanitation department. There
    is a mail directive that encourages waste reduction among city
    agencies. We use recycled paper. We encourage the use of
    electronic transmission. We try to double side our paper. We
    take steps like that. Obviously a lot of the--the best waste
    reduction is from packaging which the city can't control on its
    own. That seems to be congressional--something that would have
    been done through congressional action to reduce the amount of
    packaging and products.
        Ms. Solis. Do you have any laws in place that regulate the
    use of bottles and things like that? We have a fee in
    California that actually is attached to that that we use also
    as an incentive for----
        Mr. Orlin. There is a bottle bill in New York State, and
    very few bottles end up in the waste stream that are recycled
    that have a 5 or 10 cent return.
        Mr. Gillmor. Gentlelady's time has expired. Also I would
    point out that Mr. Greenwood, a member of the subcommittee, is
    not able to be here because he is tied up in another
    committee--subcommittee meeting, concurrently the Oversight and
    Investigation Committee, but this would appear to be an
    appropriate time to ask unanimous consent that his statement be
    entered in the record. And without objection, so ordered.
        The gentlemen on my right wishing to ask a quick question.
    Yes, Mr. Fossella.
        Mr. Fossella. Mr. DiPasquale, I have a 1999 letter from the
    then mayor of Philadelphia, now Governor, Mr. Rendell,
    expressing concern about legislation restricting waste
    shipments. He notes ``any action which raises the costs of the
    disposal of such materials can cost even a small municipality
    hundreds of thousands of dollars. In the case of a city or
    county, the size of Philadelphia can cost millions of
    dollars.'' He goes on to discuss legislative initiatives
    similar to those being discussed today.
        ``Much of the legislation being proposed will do more harm
    than good. As New Jersey has proven over the years, an area or
    State which is a net importer of municipal solid waste, can
    turn around in a relatively short period of time and find
    itself needing to be an exporter of such materials. This
    appears to be a situation in which the marketplace should be
    left as much as possible on its own to provide for the needs of
    society.''
        This letter was addressed to Senator Santorum regarding the
    interstate transportation of solid waste. Just as a way of
    illustration, I am curious as to what you think about that sort
    of sentiment today and is it and could it, indeed, impact, as
    we have said, in different ways here today, other
    municipalities around the country?
        Mr. DiPasquale. I think certainly, as I mentioned in my
    comments, there is always going to be the flow of waste back
    and forth across borders as a matter of economy. The Governor
    has not, in any way, supported a total outright ban on the
    movement of interstate waste, and I think the position today is
    consistent with his position back in 1999. We think that the
    Greenwood proposal does offer choices to communities. It does
    allow for the movement of waste back and forth across State
    borders. It sets up a host community agreement system where
    local governments can make decisions on whether or not they
    want to.
        In Pennsylvania, there have been surveys that show that
    some communities would be interested in continuing to receive
    interstate waste as long as they were adequately compensated
    for the impacts that occur. But that decision should be left up
    to local governments. So I don't see any inconsistency between
    this testimony and the Governor, former mayor of Philadelphia
    and his comments back in 1999.
        Mr. Fossella. This isn't meant to be judgmental of his
    comments other than to underscore that it appears that when he
    talks about allowing the marketplace to come up with the cure.
    For example, he further adds, ``the addition of flow control
    measures and other restrictions could quickly turn what is, at
    present, a short-term surplus to dispose of capacity into a
    long term financial crisis for the municipalities such as
    Philadelphia.'' And I think it just once again highlights what
    the potential impact and perhaps the unintended consequences of
    pursuing and promoting and passing ultimately such legislation.
    My time has expired. Thank you, Mr. Chairman.
        Mr. Gillmor. Gentleman's time has expired. The gentleman on
    my left seek recognition. Mr. Doyle.
        Mr. Doyle. Thank you, Mr. Chairman. Mr. DiPasquale, one of
    the reasons Jim Greenwood and I coauthored this legislation was
    to help Pennsylvania maintain its disposal capacity. I worked
    in the State legislature during the 1980's as did Jim, and we
    had to make some very tough decisions in Pennsylvania to get a
    lot of these landfills permitted. Cost a lot of money. People
    didn't want them in their backyards, but we understood back in
    the 1980's that if we did not take some steps to build some
    capacity, that we were going to be in a crisis in our State and
    we were going to be looking for somewhere to put our garbage,
    and we didn't know where that might be.
        So we bit the bullet and looked at some of the prospects
    that needed to be taken. Now we have a situation where 50
    percent of the garbage that goes into those landfills doesn't
    come from Pennsylvania.
        And so I wonder if you could speak a little bit to add some
    details as to what the capacity levels are at Pennsylvania's
    landfills and what trends you are seeing as a result of the
    fact that we are importing half of the waste that goes into
    those landfills from other States.
        Mr. DiPasquale. I would be happy to do that. In 1989, about
    27 percent of the waste that was being disposed of in
    Pennsylvania came from out of State. By 2001, 47 percent,
    approaching 50 percent of the waste was coming from out of
    State. And in the last few years, since 2000, that level has
    stayed pretty consistent.
        Just by way of the composition of the interstate waste,
    about 41 percent of all interstate waste disposed of in
    Pennsylvania comes from New York and about 46 percent from New
    Jersey for a total of 80 percent of the imported waste is from
    two States. There are roughly about 20 States total in Canada
    that send waste to Pennsylvania, but certainly the bulk of it
    is coming from New York and New Jersey. Capacity is a difficult
    question sometimes to respond to depending on who you talk to.
        The State currently has, in our opinion, about 11 years of
    capacity left when you look at landfill capacity and resource
    recovery facility. That is a comfortable margin, but if that
    capacity is going to be used up increasingly by out-of-state
    waste, then we are going to have to make provisions to control
    that flow in some way or permit additional capacity.
        Mr. Doyle. Mr.--Councilman Lanza, you just heard Deputy
    Secretary DiPasquale talk about Pennsylvania since the 1980's
    taking responsibility for planning for their solid waste needs.
    What has the State of New York done to plan for its waste
    disposal needs? How many landfills as we speak today are being
    permitted? What plans are there for the State to permit
    additional landfills or is the solid waste disposal plan for
    New York State to just continue to export its waste to States
    like Pennsylvania?
        Mr. Lanza. I can speak for New York City and I am a New
    York City council member. I don't know what their plans are and
    currently with respect to landfills in upstate New York. I can
    say that New York City has a very aggressive plan with respect
    to limiting the amount of waste it produces, putting it into
    the form that I think allows for the most environmentally sound
    transport of it. Presently, all waste from New York City will
    be compacted at transfer stations, put in sealed containers.
    And so, New York City simply involves itself in a bidding
    process where it puts out bids for all to entertain, whether
    they be upstate New York, or even closer than that, right
    across the river in Pennsylvania or New Jersey.
        And so these contracts are awarded on the basis of costs
    for the city and on the basis of the host community agreements
    that are executed by the municipalities that expressly and
    willingly accept the waste based upon the economic benefits
    they derive.
        Mr. Doyle. What percentage, I am curious, of the waste that
    is generated in New York City goes to Pennsylvania?
        Mr. Lanza. I don't know the answer to that question.
        Mr. Doyle. As you let these bids out in New York City. I
    mean, are most of the bids let out to Pennsylvania landfills or
    does New Jersey get a lot? What is your experience with the
    bids that you have awarded?
        Mr. Lanza. As a council member, I have not been involved in
    the bid process, but I would turn it over to Mr. Orlin.
        Mr. Orlin. When the city has entered into contracts with
    its vendors, it doesn't select the disposal sites. The city
    will award a contract with a vendor and the vendor selects
    disposal sites that are lawfully permitted and compliant with
    all local, State and Federal laws and has a host community
    agreement.
        Mr. Doyle. You contract with someone who picks up the
    garbage and it is up to them to figure out where to dump it?
        Mr. Orlin. We require that it be disposed of in a lawfully
    permitted landfill with a host community agreement and make
    sure that the landfill or waste facility is compliant with all
    laws.
        Mr. Doyle. How do you plan for the future when you know New
    York and New Jersey eventually fills up all of Pennsylvania's
    landfills? And I mean, that is the trend that we are the
    garbage can for your State and New Jersey. So when our
    landfills can't take any more between what we are pointing
    there and what your State and New Jersey is putting there, what
    plans are you making now for that eventuality because that day
    is coming, and as you said, there is no short turnaround time
    to find a new place to dump. So what is the city doing or what
    is New York doing to plan for the future when our landfills are
    all filled up?
        Mr. Orlin. New York City is exploring the possibility of
    acquiring landfill space upstate. We continue to explore the
    feasibility of such an option. We are in the preliminary stages
    of that exploration now.
        Mr. Gillmor. The gentleman's time has expired.
        Mr. Doyle. Can I get extra time for not having an opening
    statement?
        Mr. Gillmor. You just had a series of profound questions.
        Mr. Doyle. Thank you, Mr. Chairman.
        Mr. Gillmor. You are over by 3 minutes and 44 seconds.
        Mr. Doyle. Time flies when you are having fun.
        Mr. Gillmor. Are there further questions of this panel?
    Gentleman from Michigan--actually, I got to come back over
    here.
        Mr. Rogers. I have one quick question. This is for Mr.
    Chester. Thank you for the work you do. Appreciate it. Tough
    job ahead of you. Is the Governor supportive of 1730, 411, and
    382?
        Mr. Chester. Well, clearly she is supportive of 1730, but
    as stated in our prepared testimony, we are willing to work
    this committee on any of the pieces of legislation. So they all
    are a little different as you know, and do things a little
    differently. Our interest ultimately is getting legislation
    that allows us to manage the solid waste coming into the State.
        Mr. Rogers. There is no formal position on 411 or 382 from
    the Governor.
        Mr. Chester. No other than the general support for the
    approach. As I said, they are all a little different and we can
    go into the details of that, but we want to work with this
    committee to achieve what I think is a common goal.
        Mr. Rogers. You have confused me. Does she support the
    bills or does she not support the bills?
        Mr. Chester. I have not talked to the Governor directly on
    it, but as I said, we support the legislation that is being
    proposed, H.R. 1730. H.R. 382 has merit as well and H.R. 411
    because that really solves the whole bilateral agreement issue,
    in our opinion.
        Mr. Rogers. No further questions.
        Mr. Gillmor. The other gentleman from Michigan.
        Mr. Stupak. Thank you, Mr. Chairman. I will yield 1 minute
    to Mr. Doyle of my time. I know he has some questions.
        Mr. Doyle. I will take less than that. Mr. DiPasquale, I
    wanted to make the comment that I would appreciate you getting
    these technical changes that you addressed in your testimony to
    my staff so that Mr. Greenwood and I can work on those. And I
    yield back.
        Mr. Stupak. Mr. Orlin, you said you basically put out bids
    and they have to--hauler comes and get it and has got to go a
    licensed landfill with a host agreement?
        Mr. Orlin. That is correct. And the city, before it sends
    any waste to any landfill, it inspects the landfill.
        Mr. Stupak. Could you describe the contents--this is just
    solid waste. Do you say what is restricted like bottles are
    allowed in, computer screens.
        Mr. Orlin. Any municipal solid waste is allowed and
    hazardous waste is not allowed.
        Mr. Stupak. Any inspection going on by the city to know
    what is going out in these contracts?
        Mr. Orlin. I mean the requirements are that in the
    residential waste----
        Mr. Stupak. I know there are requirements. Do you have any
    kind of inspection process?
        Mr. Orlin. When waste is dumped at the transfer station,
    the people do notice if there is improper waste in there at
    times. But I don't think there is a formal inspection by the
    city.
        Mr. Stupak. The hauler is going to go back to the city and
    say there are things in there that shouldn't have been in
    there?
        Mr. Orlin. Well, the city has a vigorous enforcement, for
    example, if medical waste is found----
        Mr. Stupak. Where is the enforcement if it goes to
    Pennsylvania?
        Mr. Orlin. It is enforced prior to going to Pennsylvania.
        Mr. Stupak. How do you do that then?
        Mr. Orlin. When waste ends up in the transfer station and
    if there is medical waste, the city has a vigorous enforcement
    program.
        Mr. Stupak. Do you inspect it at the transfer station.
        Mr. Orlin. I can't say we inspect every ton of waste or
    every pound of waste.
        Mr. Stupak. What percentage do you inspect?
        Mr. Orlin. I couldn't give you a percentage.
        Mr. Stupak. Director Chester, along those lines, are there
    any inspections of the trucks coming across from Canada into
    Michigan so we know what is in those trucks?
        Mr. Chester. Yes, there is. It is not at the border, but
    each landfill has to have what is known as a waste analysis
    plan. And as part of that plan, there is an inspection schedule
    on the trucks. And admittedly, you can't inspect every truck,
    but we have that. In addition to that in Wayne County, in
    particular, they inspect each landfill facility each week and--
    --
        Mr. Stupak. Is that the county or State?
        Mr. Chester. County. On top of that, we have inspectors
    with the MDQ, and you are probably aware of the fact we have a
    stepped-up or increased inspection program ongoing.
        Mr. Stupak. Does your office ever receive a call or written
    notification from EPA concerning the routes or approval of semi
    loads of trash coming in from Canada? Has the DEQ ever received
    notification like that.
        Mr. Chester. Not that I am aware of.
        Mr. Stupak. Has the EPA ever told you how many loads are
    planned for a site in a year coming over from Canada.
        Mr. Chester. Solid waste?
        Mr. Stupak. Solid waste.
        Mr. Chester. Not that I am aware of.
        Mr. Stupak. Do you believe the EPA have the current
    authority to enforce the U.S. Canada agreement about
    notification and routes?
        Mr. Chester. Well, I am not an expert on treaty law. It
    strikes me, unless I am misinterpreting the gentleman from EPA,
    what they are really trying to do is accomplish two things.
    They want to make EPA--the United States, a party to the Bozzle
    convention, and in doing that, also allow them to go ahead and
    implement the solid waste portion of it. I would just suggest
    that H.R. 411 accomplishes that second goal very directly.
        Mr. Stupak. Mr. Orlin were you here when we were
    questioning the EPA as to notification and things like that?
        Mr. Orlin. I was here.
        Mr. Stupak. In your testimony, you mention RCRA and sub
    title D and how it is good for communities and private
    companies to replace and have safe landfills and things like
    that. Do you know--do you have any opinion whether RCRA would
    apply to the EPA? Is there notification requirements?
        Mr. Orlin. I am not familiar with that specific issue.
        Mr. Stupak. Do you give notice to the EPA when you move
    your trash from New York to like Pennsylvania or to New Jersey?
        Mr. Orlin. We don't--no, we don't give notice. We have a
    solid waste management plan in effect.
        Mr. Stupak. Do you move the trash to Canada?
        Mr. Orlin. New York City and New York State doesn't export
    to Canada.
        Mr. Stupak. I am trying to get down the notice provisions.
    The law was very clear in 1992 that it was supposed to be
    there. Thank you, Mr. Chairman. I guess my time has expired.
        Mr. Gillmor. Are there further questions of this panel?
        Mr. Dingell. Mr. Chairman.
        Mr. Gillmor. The distinguished ranking member.
        Mr. Dingell. Before I am recognized for questions, I have
    three items I would like to put in the record and ask unanimous
    consent. First, the very excellent statement of our dear
    friend, Mr. Manton, a former Member of Congress, a former
    colleague of ours in this committee, a great friend of mine and
    gentleman for whom I have enormous respect and affection.
    Second, a letter from the Canadian ambassador about the
    Canadian position on this matter. And last of all, a study
    which was prepared for us, a report to the Congress on
    interstate shipment of municipal solid waste, 2002 update. A
    very useful document.
        Mr. Gillmor. Without objection, statements will be made a
    part of the record.
        [The information referred to follows:]

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        Mr. Dingell. I very much enjoyed your comments, Messrs.
    Orlin and Lanza. They are very helpful to us and I thank you
    for your assistance. I note Mr. Manton had something to say
    here about the situation with regard to the shipment of solid
    waste out of New York. He said as follows: I am concerned that
    we are proceeding at this time with the full committee markup
    of H.R. 4779.
        Mr. Chairman, after many months, the primary affected
    parties, and the States of New York, New Jersey, Pennsylvania,
    Ohio, Indiana and Michigan--I note Ohio, Indiana and Michigan--
    and the city of New York have at last begun to negotiate
    seriously in the hopes of achieving a mutually agreeable
    compromise. Earlier he said in his statement that the solid
    waste exports from New York State have increased from the 1988
    level of 1.1 million tons to 3.7 million tons in 1993. Most of
    this increase occurred between 1988 and 1991 when the exports
    increased from 1.1 million tons to 3.4 million tons. The States
    that primarily received this waste include Connecticut,
    Indiana, Illinois, Ohio, Massachusetts, Pennsylvania, Virginia
    and West Virginia. Can you tell us how, Mr. Lanza, those
    negotiations are going because our people in Michigan are very
    anxious to know.
        Mr. Lanza. I am not privy to those negotiations.
        Mr. Dingell. Is it possible that they are not going on?
        Mr. Lanza. It is quite possible.
        Mr. Dingell. It is possible. Well, the reason I ask that
    question, I have been looking here at the study which I put in
    the record, Pennsylvania imports 10 million tons. It exports
    576 thousand tons. New York imports 839,700 tons and it exports
    7,493,000 to be a net exporter of 6,653,430 tons. Michigan
    exports 146,000, imports 3,597,000 tons for a net of 3,451,000
    tons. This sounds to me like New York has not done much. They
    have increased their export from 3 million to close to 7
    million tons. Does that indicate that vast and successful
    negotiations are going on between New York and the recipient
    States?
        Mr. Lanza. It may simply reflect market pressures having
    their effect and I think part of that increase----
        Mr. Dingell. And a massive export by New York to their
    sister States.
        Mr. Lanza. I think part of it might reflect the fact that
    an unpermitted environmental disaster known as the Freshkills
    landfill was closed.
        Mr. Dingell. In your remarks, you indicated that if the
    legislation pending before this committee is passed, it would
    result in disposal of waste in ``unsuitable locations.'' I
    assume that that means that it would result in disposal of
    waste inside New York instead of New York exporting to its
    sister States, such as Pennsylvania. Mr. DiPasquale and you, my
    friend, Mr. Doyle, would have a sense of outrage on this. Am I
    correct on that?
        Mr. Lanza. No. What I meant when you limit the market and
    you eliminate options from municipalities like New York and
    Chicago and San Francisco and Philadelphia and Detroit and all
    the large urban municipalities across this Nation, then you are
    left with less effective, or you are left with bad choices and
    those bad choices end up in poor solutions to what is a
    national issue of waste management.
        Mr. Dingell. And in New York, that would mean you would
    have to keep some of the stinking stuff at home; is that right?
        Mr. Lanza. It would mean that the free market would
    determine whether or not where the best location is, the most
    suitable locations are to dispose of waste, which, as I have
    said, the source of which, in many cases, is outside of New
    York.
        Mr. Dingell. Free market is a desirable thing, and we would
    like you to keep the trash at home. We would like the Canadians
    to do like. Mr. Chester, you noted that the Fort Gratiot
    sanitary landfill, which was the cause of one of the major
    lawsuits outlawing State regulation of interstate waste
    regulation, was improperly closed. Canadian firms are now being
    identified for possible enforcement action. How are you doing
    in pursuit of Canadian firms and American firms, and how are
    you doing on recovering the cost of cleanup if these parties
    resist enforcement?
        Does the State have adequate resources or laws to pursue
    Canadian firms that cause contamination problems in the United
    States?
        Mr. Gillmor. Gentleman's time has expired, and we have also
    given him Mr. Greenwood's unused time. If the gentleman would
    answer.
        Mr. Dingell. If I could get the answer to that question,
    because we want to stop this from being deposited in Ohio and
    Pennsylvania and Michigan. So please answer the question.
        Mr. Chester. Unlike domestic laws, the answer to that is
    no, we do not have adequate laws to go after firms in Canada.
    It presents challenges.
        Mr. Dingell. Out of respect of the chairman, could you give
    us a statement of what authority you would need under law to be
    able to pursue the Canadians and other good-hearted people who
    are trashing up our State.
        Mr. Chester. I will do that.
        Mr. Gillmor. Thank you, Mr. Dingell, and all time has
    expired. I want to express my appreciation to this panel for
    your testimony. Thank you very much. And we will proceed to
    panel number 4. We will call the fourth panel to order and I
    would request that you limit your remarks to the 5 minutes and
    your written statements will be included in their entirety in
    the record.
        And we will begin with Mr. Daniel Esty of Yale Law School.

     STATEMENTS OF DANIEL ESTY, YALE LAW SCHOOL; JON E. HUENEMANN,
      SENIOR VICE PRESIDENT AND GROUP LEADER, FH/GPC A FLEISHMAN-
    HILLARD INTERNATIONAL COMMUNICATIONS COMPANY; MICHAEL GARFIELD,
       DIRECTOR, THE ECOLOGY CENTER; THOMAS WOODHAM, FORMER VICE
    CHAIRMAN, LEE COUNTY COUNCIL, SOUTH CAROLINA; LINDA JORDAN; AND
       ROBERT HOWSE, PROFESSOR, UNIVERSITY OF MICHIGAN LAW SCHOOL

        Mr. Esty. Thank you, Mr. Chairman, and committee members.
    My name is Dan Esty, and I am the director of the Yale Center
    for Environmental Law and Policy. I am a professor at the Yale
    Law School and the Yale environment school. In a prior life a
    decade ago, I spent 4 years at the Environmental Protection
    Agency as special assistant to then-administrator Bill Reilly
    as deputy chief of staff for a year, and then as deputy
    assistant administrator for policy. And at that time I was the
    chief EPA negotiator of the environmental provisions of the
    NAFTA. I have written a number of books on trade and
    environment, and that really is the issue I think before you
    today. The question is how do you set up a structure of
    appropriate regulations of waste and waste trade, and yet do it
    in a way that is consistent with the trade obligations of this
    country. And I think the three bills before you provide
    different approaches to that same goal, and I think the effort
    that you are undertaking here today to sort out how best to
    sort out the goal is a worthy one and I hope to be of some help
    in that effort.
        I think the context of this question that is how to proceed
    on an environment track consistent with trade obligations is
    important to get clear, and I just want to spend a minute or 2
    on that and would be happy to answer further questions.
        We have obviously some GATT obligations that the United
    States has taken on carried out through the World Trade
    Organization. We have NAFTA and we have the U.S. Canada waste
    trade agreement. And I think the critical aspect here is to
    think through which of the 3 bills before you are most likely
    to steer clear of entanglement with those treaties, those
    agreements in ways that might undo the environmental efforts
    that is being advanced with the legislation. Obviously the
    fundamental trade obligation that is in the GATT and repeated
    in the NAFTA is avoiding discrimination or trying to set up
    quantitative restrictions on trade.
        There are, of course, exceptions that are permitted where
    legislation or where regulatory efforts run afoul of those
    basic obligations, but those are difficult elements to meet,
    that is article 20 of the GATT and the appropriate
    corresponding aspect of NAFTA. It does require that a party
    demonstrate that it is doing something that is necessary to
    protect animal, human, plant life or health and it is doing so
    in the least trade restrictive way responsible. That is the
    element of article 20 E of the GATT, a difficult standard to
    meet.
        Article 20 G allows us to go forward with what might
    otherwise be a violation of trade obligations where we have
    something that relates to the conservation of exhaustible
    natural resources, but in this case, it must be done in
    conjunction with domestic restrictions of the same sort. There
    is a headnote in article 20, an overarching set of obligations
    that relate to the need to avoid any regulatory approach or
    legislation that is arbitrary or unjustifiable discrimination,
    or disguised restriction on trade.
        That context is further contributed to by the U.S. Canada
    Waste Treaty. Put forward first in 1986, adopted as we heard in
    1992, to include municipal solid waste and I think it does have
    a fairly broad starting general obligation to permit imports of
    waste. Against that backdrop, let me review the three bills
    before you and offer my opinion on how they stack up in pursuit
    of this goal of appropriate regulation and yet consistency with
    international trade obligations.
        I think the most difficult one to see standing up under
    this test is H.R. 382. It appears to give a very broad
    authorization for State regulation. There is an attractiveness,
    an elegance, a simplicity to that, but I think in a complicated
    world where one is pursuing multiple goals, it is easy to see
    how that bill is likely to trigger trade objections, trade
    challenges.
        And I think there is a real risk that if that is the
    direction the committee goes, this process of bringing
    appropriate environmental protection to bear will bog down,
    will become entangled with all kinds of trade challenges. It is
    a provision in this legislation that is discriminatory on its
    face. It focuses on foreign waste alone, and it is likely to
    draw a lot of fire in that regard.
        The better bet, I think, is 1730, which offers a more
    tightly drafted, more carefully controlled, more narrowly
    tailored approach to the environmental regulations that are
    permitted. I think it offers a mechanism that is likely to
    allow for both environmental protection and consistency with
    trade obligations. I think it is quite easy to see how this
    would fit as well, even if it were challenged within the GATT
    article 20 G exception for protecting exhaustible natural
    resources, in this case, limited landfill space.
        And I believe that the bill that is of the least likely to
    draw trade challenges, that is to say, the most likely to
    advance environmental protection on the ground in the short
    run, the most pragmatic is H.R. 411. It does nothing more than
    ask the government, the EPA, to carry out the existing
    obligations under the U.S. Canada waste agreement. It, in
    effect, pushes EPA to ramp up its efforts, and I think this is
    an important first step of getting a grip on the problem at
    hand that would ensure that the notice and consent provisions
    are taken seriously, that the traffic is tracked, that the data
    is kept on what is going on, and it would provide a foundation
    for further action and the denial of consent if that were
    thought to be necessary.
        So let me close by saying I appreciate the opportunity to
    share my thoughts with you. I stand ready at any time to help
    the members of the committee think through how to advance this
    legislation and how to ensure that appropriate environmental
    controls are put in place consistent with the trade obligations
    of this country. Thank you.
        [The prepared statement of Daniel Esty follows:]

        Prepared Statement of Daniel C. Esty, Director, Yale Center for
                          Environmental Law and Policy

        Good afternoon. I am Dan Esty, Director of the Yale Center for
    Environmental Law and Policy. In a former life at the Environmental
    Protection Agency in Washington, I was a Special Assistant to
    Administrator William Reilly (1989-90), Deputy Chief of Staff (1990-
    91), and then Deputy Assistant Administrator for Policy (1991-1993),
    and I served as one of the negotiators of the environmental provisions
    of the North American Free Trade Agreement (NAFTA). I would like to
    thank the Chairman and members of the Subcommittee for allowing me the
    opportunity to offer my views on the important waste trade issues that
    are before the Congress.
        The legislation before this Subcommittee raises critical questions
    about the relation of environmental protection to trade obligations. In
    brief, I see the challenge centering on the question of how best to
    structure a set of environmental safeguards without running afoul of
    these obligations? The three bills before you--H.R. 382, H.R. 411, and
    H.R. 1730--represent different approaches to regulating the inter-state
    and international movement of municipal solid waste. The bills' authors
    share a common goal, which is to protect the environment. So the
    question I want to address is: which approach is most likely to achieve
    this outcome?
        Before answering this question, I would like to speak briefly about
    the framework of trade agreements and obligations that shape the
    context for this analysis. Regardless of one's views of NAFTA, the
    General Agreement on Tariffs and Trade (GATT), or the US-Canada Waste
    Trade Agreement, these agreements represent binding obligations on the
    United States. To ignore these obligations invites legal and political
    challenges to any structure of environmental controls that a state
    might choose to adopt. Dispute resolution processes within the
    international trading system often take years to be resolved, which
    could create chaos and postpone the implementation of an appropriate
    structure of environmental controls on waste shipments. As I will
    explain below, the best way to ensure that the states have the ability
    to regulate waste shipments and to limit the environmental harm that
    unrestricted waste disposal might inflict, is carefully constructed
    regulation that minimizes the risk of NAFTA or GATT challenges.
        I should also add at this preliminary juncture a word about our own
    Supreme Court's scrutiny of restrictions on interstate waste shipments.
    In past cases such as Philadelphia v. New Jersey (437 U.S. 617 (1978))
    and Ft. Gratiot v. Michigan (504 U.S. 353 (1992)), the Supreme Court
    has struck down attempts by states to regulate interstate movement of
    solid municipal waste. These cases can, however, be differentiated from
    the legislation at hand. Both H.R. 382 and H.R. 1730 explicitly confer
    upon the states immunity from the strictures of the Commerce Clause.
        The ability of Congress to authorize state regulation, even to the
    extent of burdening interstate commerce appears to be quite clearly
    settled as a matter of law. The Supreme Court has repeatedly indicated
    that Congress can immunize state regulation, including environmental
    standards, even where the regulatory approach affects interstate trade
    that might otherwise be protected by the dormant Commerce Clause. In
    Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve
    System (472 U.S. 159 (1985)), the Supreme Court upheld the Federal
    Reserve Board's approval of applications by out-of-state companies for
    acquisition of bank holding companies in Massachusetts and Connecticut
    partly on the basis that Congress had immunized the relevant state
    statutes: ``When Congress so chooses, state actions which it plainly
    authorizes are invulnerable to constitutional attack under the Commerce
    Clause.'' As recently as this past June, the Supreme Court emphasized
    in Hillside Dairy, Inc. v. Lyons (123 S. Ct. 2142 (2003)) that, though
    in the case at hand there was no immunity from the Commerce Clause,
    ``Congress certainly has the power to authorize state regulations that
    burden or discriminate against interstate commerce.'' But the Court
    ``will not assume that it has done so unless such an intent is clearly
    expressed.'' Thus, the bills under discussion today would likely
    withstand Commerce Clause review.
        The real issue with this legislation does not concern interstate
    trade and the dormant Commerce Clause, but rather international trade
    and the obligations imposed on United States (and by extension to each
    of the 50 states) under various agreements to which the United States
    is a party. In this regard, import bans are likely to run afoul of US
    trade obligation. Both Article XI of the GATT and Article 309:1 of
    NAFTA prohibit a member country from imposing quantitative restrictions
    on goods imported from other member countries. And both agreements
    forbid discriminatory behavior
        Yet both NAFTA and the GATT provide exemptions for legitimate
    environmental policies that are carefully constructed, even those that
    might have a disruptive effect on trade. Properly designed legislation
    could therefore afford effective environmental protection and meet our
    international trade obligations--thereby minimizing the possibility of
    a dispute with the chaos and delay that would be entailed.
        Two elements of Article XX of the GATT provide a foundation for
    appropriate state regulation of waste shipments. Article XX(b) allows
    for environmental measures ``necessary to protect human, animal or
    plant --life or health,'' as long as they are ``not applied in a manner
    which would constitute a means of arbitrary or unjustifiable
    discrimination between countries where the same conditions prevail, or
    a disguised restriction on international trade.'' A French ban on
    imports of asbestos under this exception was recently upheld by the
    Appellate Body of the WTO.
        Article XX(g) provides an even clearer foundation for carefully
    crafted restrictions on waste shipments. It states that the GATT shall
    not prevent contracting parties from taking actions ``relating to the
    conservation of exhaustible natural resources if such measures are made
    effective in conjunction with restrictions on domestic production or
    consumption.'' GATT panels have interpreted this language to mean that
    a questioned environmental policy should be ``primarily aimed'' at
    addressing a conservation goal and invoked in conjunction with
    comparable domestic restraints.
        The NAFTA contains similar language. The basic prohibition on
    quantitative trade restrictions and the national treatment obligation
    are subject to exemptions for legitimate environmental policies. US-
    Canada trade relations are further framed by the 1986 Agreement Between
    the Government of Canada and the Government of the United States of
    America Concerning the Transboundary Movement of Hazardous Waste, which
    was amended in 1992 to include municipal solid waste. The terms of this
    Agreement are especially important to address because, by the terms of
    the NAFTA, it prevails over the NAFTA should there be an inconsistency
    between them.
        H.R. 411 expressly recognizes the US obligations under the US-
    Canada Waste Trade Agreement and seeks to strengthen the environmental
    safeguards built into this agreement. H.R. 411 would use the existing
    US-Canada framework to ramp up the oversight of the flow of waste from
    Canada to the United States, requiring, for example, the EPA to
    implement and enforce the established notification and consent
    procedures. Of the three bills presently under consideration by the
    Subcommittee, H.R. 411 represents the one that is least likely to be
    challenged as a violation of US trade obligations. In this regard, it
    represents the best bet for promoting quick environmental action to
    address the waste trade problem.
        H.R. 382 seems to be at the greatest risk of engendering a
    challenge based on international trade obligations. Because it
    authorizes virtually any regime of waste regulation that a state might
    choose to adopt, including a ban on waste imports, it would likely be
    seen as a threat to the free trade principles of the GATT and the NAFTA
    and a potential direct violation of the US-Canada Waste Agreement. H.R.
    382 has a simple elegance. But in a complex world, simple solutions
    rarely work. I believe that H.R. 382 would almost certainly draw
    multiple legal challenges.
        Since H.R. 382 simply authorizes state restrictions on waste trade
    and does not mandate them, it might not trigger a GATT or NAFTA
    challenge immediately. Under the emerging jurisprudence of the World
    Trade Organization, laws that permit outcomes that might be
    inconsistent with a country's trade obligations will generally not be
    considered ripe for challenge. But a law that creates ``explicit
    risks'' of a breach of WTO obligations might be considered a sufficient
    basis to launch a GATT challenge and for Canada to request that a
    dispute settlement panel be seated. The sweeping nature of what might
    be done under the authorization of H.R. 382 makes this a risky approach
    to regulating waste shipments.
        Because H.R. 1730 is more narrowly tailored, it is much less likely
    to precipitate a challenge based on US trade obligations. Unlike H.R.
    382, H.R. 1730 is not open-ended. It specifies a particular set of
    regulations that states may adopt rather than giving states ``carte
    blanche'' authorization to restrict foreign waste trade. In addition,
    H.R. 1730 tracks more carefully the language and disciplines of GATT
    Article XX(g). It makes a state's authority to regulate waste shipments
    contingent on the state's own efforts to promote recycling and places
    any effort to limit foreign municipal solid waste imports within the
    broader context of U.S. attempts to reduce the nation's own municipal
    solid waste.
        Environmental protection represents an important public policy
    goal. But regulation must be done on a pragmatic basis that promises to
    deliver real, on-the-ground progress. Efforts to control waste
    shipments must therefore be undertaken with an eye on other policy
    goals and constraints. Developing a system of waste trade restrictions
    that ignores international trade obligations makes no sense and invites
    trouble. Systematically designed legislation that carefully defines
    what states can do and seeks to promote consistency with the GATT,
    NAFTA, and other international trade obligations of the United States
    offers the best path forward.
        Thank you.

        Mr. Gillmor. Thank you very much.
        Mr. Jon Huenemann. I hope I have pronounced your name
    correctly.

                      STATEMENT OF JON E. HUENEMANN

        Mr. Huenemann. Thank you, Mr. Chairman. It is a pleasure to
    be here and actually it is an honor and I appreciate the
    opportunity to testify before the subcommittee, which I think
    is taking a very important, very complicated and challenging
    issue as has already been seen by the testimony so far today
    and the years of discussion that has occurred on this issue. I
    am currently senior vice president of FHGPC a Fleishman-Hillard
    Company. I want to state for the record I am not here
    representing any particular client on this issue. I am here on
    my own volition as a witness on this topic. I should start by
    saying I am 15-year veteran of the Office of U.S. Trade
    Representative. My most recent position was assistant U.S.
    Trade representative and one of my responsibilities was to
    direct U.S. Trade relations with Canada and Mexico and
    coordinate the trilateral work program with Canada and Mexico
    under the NAFTA.
        I also would like to start by saying that I realize how
    difficult the issues are that the committee is trying to deal
    with. It appears that every which way you turn, you run into a
    legal obstacle or an obstacle to try to find a solution that
    the citizens of your State have found troubling and difficult.
    I would note that U.S. Trade agreements essentially--I would
    like to note up front that U.S. Trade agreements do not, in any
    way, say that States, municipalities or the Federal Government
    have no right or have no say or have no ability obviously to
    pursue environmental protection or human safety and health
    related policy considerations.
        At the same time, I think the United States, as you all
    know, has entered into numerous international trade agreements,
    one of them being the NAFTA, one of them being the GATT of the
    WTO agreements, and these obligations are very important and
    obviously are designed to facilitate international commerce.
    And in that context, I believe protecting the environment and
    human health is not inherently in conflict with any of these
    particular agreements that are before us. And I am choosing to
    comment today specifically on the international policy
    obligations of the United States without trying to draw any
    view on the validity of any of the particular concerns that
    have been raised today about how you deal with municipal waste,
    because I think that is an issue that is obviously extremely
    complicated.
        But let me note by--let me go through the bills very
    briefly, each one of them and note what I believe are some of
    the issues that are raised under the international obligations
    of the United States and some of the practical considerations
    that I think are germane to each of the three bills that are
    before you today. Under H.R. 382, as I understand it, and as I
    have read it, it essentially authorizes States to take action
    to limit or prohibit the importation of waste. If, in fact, a
    State were to take such action, it is my view that such action
    would implicate the national treatment provisions of the NAFTA
    and the GATT as well as the quantitative restriction provisions
    of the NAFTA and the GATT, and therefore, the United States
    would find itself in a circumstance where it would be
    vulnerable to challenge under the speed settlement provisions
    of those particular agreements.
        One can argue that one could pursue these actions under the
    exceptions provisions under article 20 of the GATT and the
    corresponding provision under the NAFTA. I would venture to
    guess that that is a tall order and the reason why I say that
    is because unless such actions are accompanied by equivalent
    domestic actions to constrain or deal with the environmental or
    human safety health issues, it is very difficult for that kind
    of action to stand up under international dispute settlement.
    With respect to H.R. 411, which directs the U.S. To bilateral
    waste agreement that we have with Canada with certain actions
    and considerations in mind, my point is the following.
        I think it is fair to obviously consider how best to
    implement an agreement. We have an agreement with Canada. It is
    fair, obviously, to look at how that agreement is being
    implemented. My concern, quite frankly, is a practical one. The
    question is if the United States engages in a unilateral
    interpretation of a bilateral agreement, the Canadians in
    looking at this can obviously look at it from a practical
    standpoint and say we like that or don't like that. If they
    don't like it, they have the opportunity to react. They can
    react in a way that is either positive or negative. If they
    choose to take negative action in response to what they
    perceive to be negative action on the part of the United
    States, we could run into a problem because the Canadians can
    walk away from that agreement.
        And as I understand it, at least with respect to some of
    the data I have seen, we ship a lot of hazardous waste to
    Canada under this agreement much more hazardous waste could
    goes north than comes south. So there is a practical
    consideration here in the context of our relationship with
    Canada under this agreement that needs to be considered. That
    is in no way designed to cast dispersion on the fundamental
    concerns that exist in Michigan and how you deal with this
    waste. But the other thing to bear in mind with H.R. 411 is
    that if, in fact, the United States were to take action under
    H.R. 411 that was deemed to be inconsistent with our
    international trade obligations, this does not preclude the
    Canadians from pursuing dispute settlement under the NAFTA or
    under the GATT. Not that I am saying that the Canadians would.
        I quite frankly think the Canadians would probably would
    try to find a way to resolve this issue absent going that
    route. But I am saying that we should bear in mind that our
    international obligations still remain relevant and part of the
    framework upon which how one has to look at this issue. With
    respect to H.R. 1730, this bill on its face is not something
    that is designed to deal obviously specifically so much with
    how one addresses international waste.
        On the other hand, depending on how this bill were to be
    implemented, if it were to be implemented in a manner that is
    discriminatory vis-a-vis international waste, then it could run
    into issues with respect to the national treatment provisions
    of both the GATT and the WTO agreements as well as the
    quantitative restriction provisions.
        So all I am saying to the subcommittee--and I commend you
    for looking at this issue closely--is that there are
    international obligations that are very important. And the
    final thing that I would say is in looking at this issue very
    broadly from the standpoint of the States and the role that
    Congress plays in regulating commerce under the Constitution is
    when you make that decision to grant a State authority to, in
    effect, enact their own international trade policy, it has
    implications. It has implications obviously not just for this
    particular issue, but it has implications for a lot of other
    issues that could be dealt with by the Congress in a way that
    may not necessarily be very positive.
        States could engage in individual policies that conflict
    with each other and therefore implicate international trade and
    create a lot of different difficulties for the United States
    more broadly in the broader global environment. Thank you, Mr.
    Chairman, for the opportunity to state my views.
        [The prepared statement of Jon E. Huenemann follows:]

    Prepared Statement of Jon E. Huenemann, Senior Vice President and Group
       Leader of FHIGPC/A Fleishman Hillard International Communications
                                    Company

                                  INTRODUCTION

        Mr. Chairman and members of this subcommittee, it is an honor and a
    privilege to be here today to provide you my perspective on H.R. 382,
    the Solid Waste International Transportation Act of 2003, H.R. 411, to
    direct the Administrator of the Environmental Protection Agency to
    carry out certain authorities under an agreement with Canada respecting
    the importation of municipal solid waste, and for other purposes, and
    H.R. 1730, the Solid Waste Interstate Transportation Act of 2003. I
    should state that I am not here representing any client interest on
    this matter and the views I am expressing are my own. It is my sincere
    hope that my views will provide the subcommittee with information it
    considers useful in informing your debate concerning the proposed
    legislation under consideration.
        Please allow me to begin by noting that I spent more than fifteen
    years in the Office of the U.S. Trade Representative (USTR) within the
    Executive Office of the President (EOP). My last position in USTR,
    which I left in 2000, was Assistant U.S. Trade Representative in which
    one of my principal responsibilities was to direct U.S. trade relations
    with Canada and Mexico and serve as the U.S. coordinator of the North
    American Free Trade Agreement (NAFTA) trilateral work program with
    Canada and Mexico. Prior to that I held a number of positions in which
    I was directly involved in the negotiation and implementation of trade
    and foreign direct investment agreements and the implementation of U.S.
    trade laws and policy.
        Please also allow me to note that I appreciate the interest and
    genuine concerns in a host of communities surrounding the treatment of
    municipal waste. It is something that deserves serious consideration by
    policymakers and appropriate measures at all levels of government to
    ensure that communities have the means and the proper policies in place
    to contain and deal safely and in an environmentally sound manner with
    such waste. It is quite clear that this has been a topic of concern in
    many communities for many years, and the issues involved are not
    getting any easier.

                      INTERNATIONAL POLICY CONSIDERATIONS

        My purpose for being here today is to discuss the international
    policy considerations surrounding these bills. More specifically, I
    hope to inform the subcommittee of considerations that I believe are
    important as they relate to the development and implementation of U.S.
    trade policy and agreements when considering these bills.
        I think it is first germane to note that there is nothing in trade
    agreements to which the U.S. is a party that says that federal, state
    or municipal authorities cannot pursue policies that are intended to
    protect the environment or human health. In fact, on an international
    level the U.S. is a party to numerous agreements that are designed to
    protect the environment and protect human health. Furthermore, as you
    well know, there are a myriad of state and municipal laws designed to
    pursue these same purposes.
        At the same time, the U.S. is also a party to numerous
    international agreements designed to facilitate the flow of
    international trade and investment, including the agreements under the
    jurisdiction of the World Trade Organization (i.e., the General
    Agreement on Tariffs and Trade (GATT), etc.), the NAFTA and numerous
    additional regional and bilateral agreements. These agreements are
    instrumental in protecting U.S. commercial interests in the U.S. market
    and abroad as we seek opportunities in the global marketplace.
    Furthermore, as is the case with our adherence to international
    environmental agreements, they tend to help create a world that is more
    productive and safer than it would otherwise be in their absence.
        So my approach to the bills under consideration today is one in
    which I believe it is important to fully consider the consequences of
    any actions we may take and to consider the nature and obligations of
    the agreements for which we have already entered into with foreign
    nations. In my view, these are very serious considerations and I do not
    subscribe to the view that protecting the environment and human health
    in the U.S. is necessarily in conflict with the maintenance and
    advancement of an effective U.S. trade policy. Quite the contrary in
    some instances, a number of the international trade agreements we have
    entered into explicitly encourage governments, ours included, to
    continue and even step up efforts to protect the environment and human
    health.

                     A DISCUSSION OF THE BILLS IN QUESTION

        With all this in mind, please allow me to raise some considerations
    with regard to the bills in question, turning first to H.R. 382, then
    H.R. 411 and then H.R. 1730. I will then conclude with a few general
    considerations for the subcommittee to consider.
        I think it is evident that there is a rise in concern among
    citizens in certain parts of the United States regarding the
    importation of municipal waste, principally from Canada. The volume of
    the international trade, and specifically imports from Canada, is
    fueling citizen complaints about a variety of considerations: the
    impact on traffic volumes, highway and road conditions, air pollution,
    land fills, incinerators and the environment surrounding such sites,
    and the potential consequences for human health. Irrespective of where
    the waste originates from, all these issues deserve careful
    consideration and thoughtful responses.
        H.R. 382, H.R. 411 and H.R. 1730 approach these specific concerns
    from different angles. H.R. 382 and H.R. 411 more explicitly address
    the issue with international trade considerations in mind, although
    H.R. 1730 does not eliminate the prospect of international trade
    obligations considerations.

                                    H.R. 382

        H.R. 382 authorizes states to ``enact a law or laws prohibiting or
    imposing limitations on the receipt and disposal of foreign municipal
    waste.'' Presumably the purpose behind this proposed legislation is to
    give states the right to act to shut down or limit imports, and
    presumably a state or some states may exercise that right otherwise one
    has to question the fundamental purpose of the proposed legislation.
        Should a state take action to limit or prohibit the importation of
    the items in question, in this case municipal solid waste, a
    fundamental premise of U.S. international trade obligations that is
    reflected both in the GATT and the NAFTA would be implicated--the so-
    called ``national treatment'' principle, which is enshrined in Article
    III of the GATT and in Article 301 of the NAFTA. Furthermore, GATT
    Article XI and NAFTA Article 309, which prohibit the implementation of
    quantitative restrictions, would also be implicated. Accordingly, the
    country whose trade was impacted by such action by the U.S. would be
    afforded the right to pursue dispute settlement under the terms of
    those agreements, including the right to enforce those agreements
    should they be found to be breached by a dispute settlement panel.
        Should a state take such action as provided for under H.R. 382, one
    may argue that such actions were justified on the grounds that they
    were premised on the protection of the environment and human health.
    However, in the absence of equivalent action to shut down, or limit,
    the utilization of the relevant landfills, for example, by all users,
    including those within the state in question and the U.S. on
    environmental and/or human safety grounds, it is highly questionable
    that the exceptions available under GATT Article XX and NAFTA Article
    2101 would be viable. Furthermore, the burden of proof falls on the
    party taking the discriminatory action to show that the action is not
    ``a means of arbitrary or unjustifiable discrimination between
    countries where the same conditions prevail'', is not ``a disguised
    restriction on international trade'' and is ``necessary to protect
    human, animal or plant life or health.'' In short, the threshold for
    these exceptions is purposely very high.

                                    H.R. 411

        This bill attempts to address the concerns that have arisen in a
    different manner. Specifically, it chooses to focus on the existing
    bilateral agreement on the transboundary movement of hazardous waste--
    later augmented with respect to municipal waste--which the U.S. has
    with Canada and its implementation. Mind you, that agreement, first
    signed in 1986, seeks to ensure that the treatment of waste that flows
    across our border is ``conducted so as to reduce the risks to public
    health, property, and environmental quality.'' Furthermore, the
    agreement recognizes that the realities of being neighboring sovereign
    states means that the appropriate treatment of this waste ``may involve
    the transboundary shipment'' of such waste. In short, there has been a
    long history of trade in waste, both hazardous and non-hazardous,
    between the U.S. and Canada. This should not surprise anyone given the
    depth of the economic relationship. Furthermore, both countries have
    officially stated their intent, through this agreement and other
    domestic actions, to properly treat such trade in waste in a manner
    that is safe and environmentally sound.
        Should the U.S. chose to unilaterally re-interpret the provisions
    of this agreement in a manner that causes concerns in Canada, Canada
    could withdraw from the agreement. Or, Canada could unilaterally re-
    interpret the agreement in ways that may implicate U.S. shipments of
    waste to Canada, which I understand are significant. In other words,
    the practical implications of any U.S. effort to interpret or enforce
    the agreement in a manner that Canada finds objectionable, could lead
    to similar actions on the part of Canada, or Canada's withdrawal from
    the agreement altogether. If the agreement were to be, in effect,
    voided, the international trade obligations of the United States under
    the WTO and the NAFTA would also remain in force, as they do now. A
    question to consider is whether unilaterally interpreting the existing
    agreement on transboundary waste in a manner that invites ``mirror
    action'', or some other adverse consequence, by Canada is ultimately in
    the interests of the United States, particularly when Canada is such a
    significant destination for U.S. hazardous waste.

                                   H.R. 1730

        This bill is ostensibly designed to empower local communities
    through new ``host community'' agreements with regard to waste
    management. It includes language that would encompass foreign waste,
    although on its face it does not treat foreign waste differently than
    it does domestic U.S. waste. As a result, it does not appear to raise
    any direct issues that could implicate U.S. international trade
    obligations. Although, were such legislation to be enacted it is
    conceivable that if the implementation of the legislation by a state
    were to succumb to action(s) that discriminates in its treatment of
    foreign waste it could have implications for U.S. international
    obligations.

                        ADDITIONAL POLICY CONSIDERATIONS

        In addition to the issues that I have already raised, another
    consideration has to do with the role of individual states in the
    conduct of U.S. trade policy. Irrespective of the fact that congress
    can authorize states to conduct their own respective foreign and
    domestic trade policies, the notion that the congress would authorize
    individual states to, in effect, conduct their own form of
    international trade policy raises some issues, not all of which are
    likely to be helpful to U.S. interests in the world. I do not want to
    overstate the potential concern, but in my view congress should think
    very carefully about the prospect of respective individual states
    undertaking distinct, and possibly conflicting, foreign trade policies,
    even if these policies are very narrowly focused on specific products.
    The constitution provides congress the sole authority to regulate
    commerce (both domestic and foreign) and the President the authority to
    negotiate on behalf of the U.S. with foreign powers. Those authorities
    are well considered and have served the U.S. well throughout its
    history. I am not convinced that delegating such authority to the
    states is necessarily in the nation's interest in the broader global
    environment. It may lead to more problems than it is worth, although I
    am in no way attempting to denigrate the validity of concerns that
    surround the treatment of waste in localities.

                                   CONCLUSION

        I hope my testimony will contribute constructively to the debate
    the subcommittee will have with respect to these bills. The issues
    before you deserve serious consideration and raise a host of
    interesting and overlapping issues that ``cross the paths'' of local,
    state and national officials in addition to having international
    implications. My own desire is that the approaches that are eventually
    adopted at all these levels of government are, in fact, guided by a
    fully informed and enlightened debate, and for that I want to thank the
    subcommittee for its effort to do just that today.
        Thank you Mr. Chairman and members of the committee.

        Mr. Gillmor. Thank you.
        And I would ask the witnesses again to try to stay within
    your 5 minutes. Mr. Michael Garfield, director of the ecology
    center in Ann Arbor.

                      STATEMENT OF MICHAEL GARFIELD

        Mr. Garfield. Thank you, Mr. Chairman, committee members.
    My name is Michael Garfield. I am the director of the Ecology
    Center, a Michigan environmental organization that has worked
    on solid waste issues for 33 years. We are also the parent
    organization of the largest community-based recycling program
    in the State of Michigan, a program cited by EPA as one of the
    15 best programs in the country. I am also an organizer of
    Don't Trash Michigan, a coalition of 29 environmental, church
    and labor organizations, which collectively represent over
    250,000 Michigan residents.
        Thank you very much for the opportunity to testify today. I
    would begin by emphasizing that we are not calling for a
    blanket ban on interstate waste shipments. We believe that the
    core problem facing Michigan and other States is that we have
    not been given the tools to conduct thoughtful, environmentally
    protective waste management planning in the face of
    regionalized solid waste markets. We could support H.R. 382 if
    it is found to be compliant with NAFTA and other international
    agreements. We support H.R. 411 to deal with the international
    aspect of Michigan's waste importation problem and that of
    other States.
        We are disappointed that EPA has not yet carried out the
    provisions of the bilateral agreement on waste, particularly
    given that the government of Canada provides Canadian waste
    generators with a significant financial incentive to export
    solid waste to the United States. When Canadian waste is dumped
    in Canadian landfills, their Federal Government assesses a 7
    percent goods and services tax on the transaction.
        However when Canadian waste is disposed of in the United
    States, that tax is not assessed. We strongly support H.R. 1730
    as a measure to give local communities the wherewithal to
    conduct thoughtful waste management planning. The current
    system has left Michigan citizens victimized for good behavior.
    When Michigan began to run short on landfill space in the late
    1980's, we didn't look to other States and Ontario to assume
    our burden. We went through the politically difficult process
    of citing new landfills and we allowed new facilities to open,
    in some cases, over strenuous local objections.
        Michigan managed its problem through a fairly sophisticated
    county-based planning system that requires counties to assume
    the obligation for disposing or recovering their trash, in
    turn, letting them carefully plan disposal capacity so they
    don't have to sight more landfills than they need. But the
    influx of out-of-state waste into Michigan has thrown our
    planning system into chaos and has undermined our citizens
    commitment to waste reduction and responsible waste management.
    Recycling rates have decreased during this period. The influx
    of out of State waste to large regional landfills is
    devastating the quality of life in our local communities.
        The landfills suffer problems created by the patchwork of
    State and municipal standards prohibiting toxic materials and
    municipal solid waste. It has been said that landfills generate
    a significant source of revenue for the impacted communities,
    but often that is not the case. The owner of the Michigan
    landfill used by Toronto, Republic Services, has signed a host
    community agreement with Sumpter Township, the rural township
    where its landfill is located. But Republic's landfill is
    located in the far southeastern corner of the township and few
    residents of Sumpter Township live within 2 miles of the
    facility.
        However, hundreds of households are located within shouting
    distance of the landfill to the east in Huron Township to the
    southeast in Ash Township. While Sumpter Township receives a
    fee payment for every ton of trash dumped in the Republic
    Landfill there, Huron and Ash townships do not receive one
    cent. The most innovative and entrepreneurial solutions for
    waste management are being developed at the local level. These
    solutions are part of a growing yet still young recycling
    industry. The economic development of this industry relies on a
    regulatory structure which holds local communities responsible
    for managing their own trash. If local communities and waste
    generators can look 300 miles and more across State and
    international borders to low cost regional disposal options,
    than the incentive for recycling innovation is eliminated.
        Michigan, Pennsylvania, Virginia and a handful of other
    States have been the losers in the first decade of regional
    landfills after the Fort Brass decision. Without Federal
    intervention, other States will join us in coming years. This
    prospect was foreseen by Chief Justice Rehnquist in his
    dissent.
        He wrote, the Court today penalizes the State of Michigan
    for what to all appearances are its good faith efforts in turn,
    encouraging each State to ignore the waste problem in the hope
    that another will pick up the slack. The court fails to
    recognize that the latter option is one that is quite real and
    quite attractive for many States and becomes even more so when
    the intermediate option of solving its own problems, but only
    its own problems is eliminated.
        Eleven years later, the chief justice's forecast has
    materialized in Michigan and other States. We now need your
    help, the help of Congress, to regain some measure of local
    control over landfill citing. Please take action as soon as
    possible to address this growing problem. Thank you very much.
        [The prepared statement of Michael Garfield follows:]

        Prepared Statement of Michael Garfield, Director, Ecology Center

        My name is Michael Garfield. I'm the Director of the Ecology
    Center, a statewide environmental organization that has worked on
    Michigan solid waste issues for 33 years. In addition to our advocacy
    work, the Ecology Center is the parent organization of the largest
    community-based recycling program in the state of Michigan. That
    program has been cited by the U.S. Environmental Protection Agency as
    one of the 15 best recycling programs in the country, achieving a 52%
    recovery rate. I am a former manager of that recycling program, and
    have worked in waste management policy and the recycling business for
    sixteen years. I am also an organizer of Don't Trash Michigan, a
    coalition of organizations devoted to placing sensible restrictions on
    waste imports and improving Michigan's solid waste policies. Don't
    Trash Michigan consists of 29 environmental, church, and labor
    organizations which collectively represent over 250,000 Michigan
    residents.
        Thank you very much for the opportunity to testify today.
        I would begin by emphasizing that our objections to out-of-state
    waste are not borne of blind hostility to other people's garbage. We
    are not calling to close down Michigan's borders, and we do not see a
    net benefit from a federal law that would create a blanket ban on
    interstate waste shipments. Instead, we believe that the core problem
    facing Michigan and other states is that we have not been given the
    tools to conduct thoughtful and environmentally protective waste
    management planning in the face of the regionalization of solid waste
    markets. We need your help to empower local and regional planning
    systems to fix serious problems like Michigan and other states now
    experience, and to prevent future problems from arising elsewhere.
        We could support H.R. 382, if it is found to be compliant with the
    North American Free Trade Agreement and other international agreements.
    We are aware of concerns raised by some experts regarding the
    consistency of this approach with international agreements. I am not a
    legal expert, and will offer no opinion on this matter. But I urge you,
    in addressing the waste transportation problem, to advance carefully
    crafted legislative solutions whose implementation is least likely to
    be stalled by legal challenges. Michigan's problem is immediate and
    growing.
        We also support H.R. 411 to deal with the international aspect of
    our problem. Frankly, it is hard for residents and organizations in
    Michigan to understand why a long-standing agreement, signed by both
    countries, has so far gone unimplemented and unenforced, and now
    requires a Congressional resolution to be put in effect. We are
    disappointed that EPA has done nothing to date to carry out its
    provisions.
        We're further confounded by this inaction given that the Government
    of Canada provides Canadian waste generators and haulers with a
    significant financial incentive to export solid waste to the United
    States. When Canadian waste is dumped in Canadian landfills or other
    Canadian disposal facilities, their federal government assesses a 7%
    Goods and Services Tax (GST) on the transaction. However, when Canadian
    waste is disposed in the United States, the GST is not assessed. When
    the State of Oregon applied differential taxation rates to waste
    originating from in-state sources versus out-of-state sources, the
    practice was ruled an unconstitutional restraint of commerce by the
    U.S. Supreme Court.1 Wouldn't Canada's differential taxation
    on waste based on its disposal destination also be an unfair protection
    of its landfill space, and subsequently a violation of NAFTA?
    ---------------------------------------------------------------------------
        \1\ Oregon Waste Systems v DEQ, 511 U.S. 93 (1994).
    ---------------------------------------------------------------------------
        Finally, we strongly support H.R. 1730 as a measure to give local
    communities the wherewithal to conduct thoughtful waste management
    planning. In Michigan, the press has lasered in on the trash shipments
    to Michigan from the City of Toronto, but our problem is not only with
    Canada's largest city. Less than half of the Canadian waste dumped in
    Michigan originates in Toronto. Nor is our concern just a Michigan-
    Ontario dispute. Forty-three percent of the out-of-state waste dumped
    in Michigan originates in other U.S. states.2
    ---------------------------------------------------------------------------
        \2\ ``Report of Solid Waste Landfilled in Michigan,'' Michigan
    Department of Environmental Quality, February 28, 2003.
    ---------------------------------------------------------------------------
        Over 3.5 million tons of out-of-state garbage is disposed in
    Michigan landfills, approximately 20% of the total. This amount has
    been increasing rapidly in recent years, particularly the portion
    coming from Ontario. Some have argued that Michigan also exports solid
    waste to other states. However, we only export 85,000 tons per year,
    which means that 41 tons come in to Michigan for every one we send out.
    Likewise, some have argued that Michigan exports hazardous waste to
    Canada and other states. However, Michigan is also a net importer of
    hazardous waste, receiving approximately twice as much hazardous waste
    (506,000 tons) as we export (246,000 tons).3
    ---------------------------------------------------------------------------
        \3\ ``Report of Solid Waste Landfilled in Michigan,'' Michigan
    Department of Environmental Quality, February 28, 2003. ``Legal
    Barriers to Regulating Imported Solid Waste and How to Break Through
    Them,'' Bill Richards, Senior Policy Advisor, Michigan Department of
    Environmental Quality, July 2003.
    ---------------------------------------------------------------------------
        The current system has left Michigan citizens in the predicament of
    being victimized for good behavior. We're surrounded by four of the
    Great Lakes. Half of our residents rely on groundwater for their
    drinking water. The citizens of Michigan share a strong land
    stewardship ethic.
        Dating back to the mid-1970s, we had put in place a protective and
    responsible waste management policy. Our beverage container recycling
    program has achieved a best-in-the-nation 95% recovery
    rate.4 We have extensive yard waste diversion programs. Some
    of our communities have outstanding recycling programs.
    ---------------------------------------------------------------------------
        \4\ Michigan Department of Treasury.
    ---------------------------------------------------------------------------
        When Michigan began to run short on landfill space in the late-
    1980s and early-1990s, we didn't look to Ohio, Indiana, Wisconsin,
    Illinois, and Ontario to assume our burden. We went through the
    politically torturous process of siting new landfills, and we allowed
    new facilities to open--in some cases, over strenuous local objections.
        Michigan could manage its problem because we have in place what was
    a fairly sophisticated county-based planning system that requires
    counties to assume the obligation for disposing or recovering their
    trash. They can do this through the designation of facilities within
    their boundaries, or through the designation of facilities in other
    counties or states, provided that the recipient units of government
    agree to the exports. In almost all cases, the recipient unit of
    government does agree to the export designation, and the process
    affords them a mechanism for handling their obligations. This system of
    negotiating designated capacity forces counties to assume the practical
    and moral responsibility for getting rid of their trash, while letting
    them carefully plan disposal capacity so they don't have to site more
    landfills than they need.
        We believe that a solid waste planning system like this--based on
    the principles of local/regional responsibility, local/regional
    control, and state-based minimum standards--is the most sensible way to
    manage solid waste policy. It is similar to good land use planning,
    also best managed locally and regionally in accordance with statutory
    minimum standards. For solid waste, we believe it is the best way to
    balance the need for disposal against a reasonable community interest
    in preserving land for other, better uses. It is also an economically
    efficient method of solid waste program planning.
        However, the influx of out-of-state waste into Michigan has thrown
    our planning system into chaos, and has undermined our citizens'
    commitment to waste reduction and responsible waste management. Many
    citizens have given up recycling on the grounds that their efforts are
    only saving landfill space for trash from other states and Canada. Our
    recycling office has received dozens of calls to this effect, and the
    recycling rate in our community has decreased slightly during the past
    three years.5 Throughout the State of Michigan over the past
    several years, the growth in recycling programs has plateaued, and in
    some cases, slid back.
    ---------------------------------------------------------------------------
        \5\ City of Ann Arbor Solid Waste Department.
    ---------------------------------------------------------------------------
        Second, the influx of out-of-state waste to huge regional mega-
    landfills devastates the quality of life in our local communities. It
    brings large amounts of heavy truck traffic, increased air pollution,
    blowing debris, and foul odors. It brings the threat of long-term
    future groundwater contamination, as took place at many older
    facilities.6
    ---------------------------------------------------------------------------
        \6\ ``Michigan Sites of Environmental Contamination,'' Michigan
    Department of Natural Resources, April 1994.
    ---------------------------------------------------------------------------
        The impacts are unmistakable every hour of every day for Lynette
    and Ken Guzman, of Huron Township, about twenty miles southwest of
    Detroit. The Guzmans and their two young children live on what used to
    be a quiet two-lane country road filled with tree-lined front yards and
    families relaxing outdoors in the summertime. But now that road is
    abuzz with the red Wilson Logistics trailer trucks--almost 200 hundred
    per day, six or seven days per week--each carrying more than 30 tons of
    Toronto's trash, arriving as early as 6:00 a.m. The road is the most
    direct route from the highway to Republic Services' Carleton Farms
    Landfill. The prevailing winds blow from the landfill toward the
    Guzmans' community, so they and their neighbors rarely leave their
    windows open in the summer, much less sit outside anymore. As trucks
    leave the landfill, they frequently leave a trail of trash and mud or
    thick dust along the road and in residents' front yards. Four months
    ago, as one of the Guzmans' neighbors tried to pull into her driveway,
    a Wilson truck rear-ended her into a second Wilson truck coming from
    the other direction. The woman required major reconstructive surgery to
    her face and is still confined to a wheelchair. Her eight-year old son
    witnessed the accident as he was boarding his school bus.
        The waste industry often argues that their landfills generate a
    significant source of revenue for the impacted communities. But the
    Guzmans' story refutes this argument. Republic Services has signed a
    host community agreement with Sumpter Township, the rural township
    where its landfill is located. But Republic's landfill is located in
    the far southeastern corner of the township, and few residents of
    Sumpter Township live within two miles of the facility. However,
    hundreds of households are located within shouting distance of the
    facility to the east, in Huron Township, and to the southeast, in Ash
    Township, which is even in a different county (Monroe) than the
    landfill (Wayne). The trucks roll through Huron Township, where the
    Guzmans live, and don't even pass into Sumpter Township until they
    enter the landfill property. While Sumpter Township receives a fee
    payment for every ton of trash dumped in the Republic landfill there,
    Huron and Ash Townships do not receive one cent.
        Third, the huge regional landfills consolidate the inherently toxic
    nature of ordinary municipal solid waste, posing a long-term future
    groundwater contamination threat. Municipal solid waste typically
    includes household hazardous wastes such as pesticides and batteries,
    heavy metals from used electronics, toxic compounds from automotive
    fluids, and other potential contaminants. During the course of this
    year, U.S. Customs officials have identified several Canadian trucks
    carrying medical waste and other prohibited items. But how many trucks
    carry prohibited items which are never discovered?
        To partially address the concern of toxic loading into disposal
    facilities, Michigan has banned the landfill disposal of lead-acid
    batteries, used motor oil, yard waste, sewage, asbestos waste, and
    other items. Some of our neighboring jurisdictions, however, do not
    have restrictions as stringent. For example, Ontario does not ban
    disposal of lead-acid batteries or used motor oil.7
    ---------------------------------------------------------------------------
        \7\ ``Solid Waste Importation Under Part 115,'' Presentation by
    Frank Ruswick, Jr., Acting Assistant Division Chief, Michigan
    Department of Environmental Quality Waste and Hazardous Materials
    Division, at Southeast Michigan Environmental Forum--Solid Waste
    Importation Conference,'' July 17, 2003.
    ---------------------------------------------------------------------------
        Finally, the lack of local control over out-of-state waste
    undermines Michigan's recycling programs. Disposal over-capacity in
    Michigan and in other over-built states has created powerful downward
    price pressures in regional landfill markets. Large waste generators
    have recently been signing contracts with Michigan landfills for less
    than one-third the going rate in Ohio, Indiana, and other neighboring
    states.8 While local governments can break even or return
    modest profits from an investment in recycling programs, they cannot
    beat the artificially low prices in Michigan's current landfill-heavy
    economic climate. As a result, Michigan communities have been
    witnessing a slow and steady disinvestment in recycling and recovery
    programs by both private and public sector service providers, despite
    otherwise reasonable profitability in the recycling industry.
    ---------------------------------------------------------------------------
        \8\ ``Solid Waste Importation Under Part 115,'' Presentation by
    Frank Ruswick, Jr., Acting Assistant Division Chief, Michigan
    Department of Environmental Quality Waste and Hazardous Materials
    Division, at Southeast Michigan Environmental Forum--Solid Waste
    Importation Conference,'' July 17, 2003.'' Also, City of Ann Arbor
    Solid Waste Department; Resource Recycling Systems, Inc.
    ---------------------------------------------------------------------------
        The most innovative and entrepreneurial solutions for waste
    management--state-of-the-art recycling, composting, reuse, household
    hazardous waste programs--are being developed at the local level. These
    solutions are part of a growing, yet still young, recycling/recovery
    industry. The economic development of this industry relies on a
    regulatory structure which holds local communities responsible for
    managing their own trash. If local communities and waste generators can
    look 300 miles and more across state and international borders to low-
    cost regional disposal options, then the incentive for recycling
    innovation is eliminated. At present, the federal framework presents
    local communities with a no-holds-barred approach to landfill siting
    and waste transport. States have no tools to counter-balance dramatic
    capacity and price differentials between each other. Michigan,
    Pennsylvania, Virginia, and a handful of other states have been the
    losers in the first decade of regional landfills after the Ft. Gratiot
    decision. Without federal intervention, other states will no doubt join
    us in coming years.
        This prospect was foreseen by Chief Justice Rehnquist in his Ft.
    Gratiot dissent. He wrote:
              ``In adopting this legislation, the Michigan Legislature also
            appears to have concluded that, like the State, counties should
            reap as they have sown--hardly a novel proposition. It has
            required counties within the State to be responsible for the
            waste created within the county. It has accomplished this by
            prohibiting waste facilities from accepting waste generated
            from outside the county, unless special permits are obtained.
              ``The Court today penalizes the State of Michigan for what to
            all appearances are its good-faith efforts, in turn encouraging
            each State to ignore the waste problem in the hope that another
            will pick up the slack. The Court's approach fails to recognize
            that the latter option is one that is quite real and quite
            attractive for many States--and becomes even more so when the
            intermediate option of solving its own problems, but only its
            own problems, is eliminated.'' 9
    ---------------------------------------------------------------------------
        \9\ Fort Gratiot Sanitary Landfill v Michigan DNR, 504 U.S. 353
    (1992).
    ---------------------------------------------------------------------------
        Eleven years later, the Chief Justice's forecast has materialized
    in Michigan and other states. We now need the help of Congress to
    regain some measure of local control over landfill siting, to restore a
    level playing field between the states, and to promote the economic
    development potential of recycling. Please take action as soon as
    possible to address this growing problem.

        Mr. Gillmor. Thank you. And Mr. Thomas Woodham the former
    vice-chairman of the Lee County Council in South Carolina.

                       STATEMENT OF THOMAS WOODHAM

        Mr. Woodham. Thank you, Mr. Chairman and distinguished
    members of the subcommittee. My name is Thomas Woodham, and I
    appreciate the opportunity to testify today on the movement of
    municipal solid waste between States. As a former member of the
    Lee County Council, I experienced firsthand the closure of our
    substandard facility and the development of a sub title D
    facility to replace our old landfill. Lee County is a rural,
    agricultural community with minimal industrial investment. As
    such, many agricultural by-products were disposed of at our
    landfill. In 1988 the State of South Carolina told us we had an
    environmentally unsafe landfill and that we would have to close
    it. We made several proposals to develop a new landfill, but
    each one was rejected by the State.
        At this time a private waste company approached the council
    and offered to build and manage a waste facility in Lee County.
    The Council accepted their offer and Lee County Landfill was
    developed with the State's blessing. Today the landfill takes
    in 4,000 tons of waste per day both from within our borders and
    outside our State borders. The landfill is inspected several
    times a month by State authorities and never been fined or
    issued notice of violation, nor has it ever been found to pose
    any danger to the surrounding environment.
        The landfill is currently upgrading facilities to convert
    methane gas to generate electricity cooperatively with the
    State of South Carolina subsidiaries. The benefits the county
    has received from this arrangement with the private waste
    company include $1,900,000 in savings with the closure cost
    associated with the old landfill, free disposal for the county,
    a rebuilt rail line and more than $1,200,000 in host fees. The
    total fees and services provided represents roughly 21 percent
    of our annual budget. The goal of Lee County Council is to
    reinvest the revenues of the landfill, improving the quality of
    life, education, police protection, EMS service, fire
    protection, et cetera and minimizing the tax burdens on the
    citizens and local industry.
        Even during these times of budget shortfalls, Lee County
    has continued to provide quality services and upgrade its
    infrastructures without an increase in taxes for six
    consecutive years. The primary objective of Lee County Council
    is to improve the infrastructure and better position themselves
    to attract new industry long after the landfill has reached
    capacity and closed. Once the landfill is closed, the county
    plans on turning it into a 1,500 acre park for the citizens of
    Lee County to enjoy for years to come. Without the revenues
    generated by this landfill, Lee County would not be able to
    develop the infrastructure necessary to attract new industries
    without placing the tax burden directly on the citizens and
    existing industries in Lee County. To further illustrate the
    financial impact of Lee County, the value of a mili tax
    $25,300.
        The median income in Lee County is $13,896, which is the
    lowest in the State of South Carolina. Without the revenue of
    the landfill taxes would have to increase 75.1 mills in order
    to maintain the same level of services currently being
    provided. As you can see from the median income, a tax increase
    of this size or reduction in services provided would severely
    impact the citizens of Lee County. The landfill has been a
    savior for Lee County from an environmental and revenue
    perspective and the host community contract between Lee county
    and the landfill has been beneficial for everyone involved.
    Having said this, the savings Lee County has realized in the
    closing of the old landfill and free disposal and the host fees
    that they receive from the facility will put tens of millions
    of dollars into the community by the time the landfill reaches
    capacity. Lee County would not have been able to generate
    similar revenues without the landfill and the fees they receive
    from accepting out of State waste.
        I would like to thank the committee for allowing me to
    inform you of the situation in Lee County. Also the Chairman
    and Vice Chairman of Lee County Council, along with the County
    Administrator have given their full endorsement of the
    testimony and are willing to answer any questions you may have
    at a later date. Thank you.
        Mr. Gillmor. Thank you very much. And we will now go to Ms.
    Linda Jordan.

                        STATEMENT OF LINDA JORDAN

        Ms. Jordan. Yes, sir. Thank you and thank you to the
    committee for allowing me to speak and thank you to Congressman
    Rogers for your work with H.R. 382.
        On Saturday, October 5, 2002 while working as a Michigan
    State trooper assigned to the Detroit post I was dispatched to
    the U.S. Customs Cargo Facility on the Detroit side of the
    Ambassador Bridge for a suspicious situation. The Ambassador
    Bridge connects Detroit, Michigan to Windsor, Ontario and is
    the main thoroughfare for semi-tractors from Canada into the
    U.S. On the aforementioned day the suspicious situation was a
    semi-tractor leaking blood from its trailer. Upon arrival I was
    met by two Customs representatives. Both men advised the
    Department of Health had been notified but refused to respond.
    In addition, an agent from the Federal Protection Service, the
    agency responsible for investigating crimes on Federal
    property, arrived but did not take any action and left the
    scene. Customs Agent Young advised while he was checking
    vehicles for illegal cargo he noticed blood dripping from the
    trailer of one of the vehicles. He stated it had created a pool
    in its previous location and since the vehicle had been
    sequestered there was another pool of blood in its new location
    and blood continued to drip. The driver of the vehicle stated
    he was hauling garbage.
        The vehicle trailer had two grates in the back door, one of
    which was leaking blood. It was also dripping through the seam
    between the door and the bed of the trailer. Agent Young and I
    climbed to the top of the trailer to check the contents but the
    trash was compacted so tightly we were not able to see the
    source of the blood. The x-ray performed by Customs agents
    onsite revealed a location of density, but was inconclusive.
        Agent Young and I escorted the vehicle to a waste
    management recovery station in Detroit in order to off-load the
    garbage and find the source of the blood. The driver of the
    vehicle pushed approximately a quarter of the garbage out of
    the trailer. In this small amount of garbage we found two
    garbage bags full of used blood products, partially empty blood
    transfusion bags, and intravenous tubing. In addition there was
    still a large amount of blood in the bags. The medical waste
    filled two large clear garbage bags and then were placed in
    another yellow garbage bag. The two clear bags were tied, but
    the yellow bag was not. None of the waste was in the required
    red biohazard bags nor was the vehicle properly marked with
    biohazard placards. The site was immediately declared a HAZMAT
    area and I advised my dispatcher to notify the Health
    Department. Representatives from Detroit Fire Department
    Emergency Management Division arrived on scene and contacted
    their civilian contract HAZMAT crew to dispose of the waste and
    decontaminate the site. Agent Young and I then escorted the
    vehicle back to the Customs Cargo Facility to be cited and sent
    back across the bridge to Canada. This ended my involvement and
    I cleared the scene.
        Follow-up of the incident approximately 2 weeks later
    revealed Customs had decided not to cite the driver nor did
    they cite the transport company. It is reasonable to assume the
    semi came back across the bridge the very next day to get to
    the landfill. Additional follow-up of the Department--with the
    Department of Environmental Quality revealed the garbage picked
    up that day had been traced to two nursing homes and a
    hospital, all of which were located in Canada. To my knowledge
    no citations have ever been issued in this incident and it is
    not known if the blood had ever been screened for diseases.
        The driver of the vehicle was a subcontractor who
    transports for a company out of Brampton, Ontario and that
    company, a check of that company revealed that they are not
    authorized to transport medical waste. The garbage was picked
    up from Mississauga, Ontario, from a site where the site
    manager says that they only process industrial food waste. The
    load was en route to Carlton Farms Landfill in Belleville,
    Michigan. I spoke with the site engineer of Carlton Farms and
    he said that they are not authorized to accept medical waste at
    that site.
        OSHA regulations are very specific when it comes to the
    disposal of medical waste. None of those procedures were
    followed nor were the transportation regulations followed.
        I have been a registered nurse for 8 years in civilian and
    military life and it is my nursing experience that allowed me
    to identify the items in question as blood transfusion bags and
    IV equipment. As a nurse I am also aware of the dangers
    associated with an exposure to unknown sources of blood.
    Scientists have not yet discovered ways to test donor blood for
    every existing pathogen. If the used blood or expired blood is
    not autoclaved prior to disposal, those pathogens can thrive in
    such a warm moist environment as a landfill. The worst case
    scenario would be the transmission of a disease by insect or
    stray animal because of recklessness or laziness, such as this
    situation.
        It is apparent by this incident that proper procedures are
    not being followed in Canada. This was just one garbage hauler
    on 1 day coming across one bridge. One has to question how many
    times this occurs out of the hundreds of vehicles coming across
    the Ambassador Bridge on a daily basis. It is unrealistic to
    think every garbage hauler will be inspected once it reaches
    the U.S.
        The deregulation of garbage has been blatantly and
    disgustingly taken advantage of, and it is my hope that those
    that fought to include garbage as commerce never envisioned
    that improperly disposed of medical waste would be sent over
    the bridge mixed in with the garbage. Including Canadian
    garbage in international commerce has totally eliminated the
    environmental and, more importantly, the human element. Imagine
    if you will driving behind this semi either on a motorcycle or
    with your vehicle windows down and having blood from the back
    of a truck splash on your face, arm or windshield or having a
    stray dog digging around that landfill licking the blood bags,
    then playing or licking the children in the neighborhood.
        I am extremely disgusted and appalled at what I witnessed
    and the nonchalant attitude I received from State and Federal
    officials. Garbage is no longer regulated because it falls
    under commerce is what I was told over and over again. I don't
    believe the United States should be accepting another country's
    garbage. The fact that we have no idea what is being put in
    those garbage haulers is more of a reason to put a stop to
    Canadian garbage coming in to the U.S. Equally appalling is the
    fact that in these times of increased bioterrorism threats
    Customs officials identify a hazardous situation yet Federal
    agencies that are responsible for enforcing violations of this
    nature did not respond.
        I have been in public service for the past 20 years, with
    the military, with the State police and currently with the
    Army, and I am also a nurse, as I stated before. I am committed
    to protecting the health, safety and freedoms of this great
    country. We have soldiers overseas eliminating international
    threats to keep this country safe, and it is imperative that
    all necessary actions be taken domestically to ensure that our
    borders are kept safe from any human, chemical or disease that
    may pose a threat to citizens of this great Nation.
        Thank you.
        [The prepared statement of Linda Jordan follows:]

                       Prepared Statement of Linda Jordan

        On Saturday, 5 October 2002, while working as a Michigan State
    Trooper assigned to the Detroit post, I was dispatched to the Fort
    Street U. S. Customs Cargo Facility on the Detroit side of the
    Ambassador Bridge for a suspicious situation. The Ambassador Bridge
    connects Detroit, MI to Windsor, Ontario, Canada, and is a main
    thoroughfare for semi-tractors from Canada into the U.S. On the
    aforementioned day the suspicious situation was a semi-tractor leaking
    blood from it's trailer. Upon arrival, I was met by Customs Chief Gary
    Calhoun and Customs Agent Senior Investigator (SI) Andre Young. Both
    men advised the Department of Health had been notified but refused to
    respond. In addition, an agent from the Federal Protection Service, the
    agency responsible for investigating crimes on federal property,
    arrived but did not take action and left the scene.
        SI Young advised while he was checking vehicles for illegal cargo,
    he noticed blood dripping from the trailer of one of the vehicles. He
    stated it had created a pool in its previous location and since the
    vehicle had been sequestered, there was another pool of blood in its
    new location and blood continued to drip. The driver of the vehicle
    stated he was hauling garbage.
        The vehicle trailer had two grates in the back door, one of which
    was leaking the dark liquid. It was also dripping through the seam
    between the door and the bed of the trailer. SI Young and I climbed to
    the top of the trailer to check the contents, but the trash was
    compacted so tightly we were not able to see down far enough to locate
    the source of the dripping substance. The x-ray performed by Customs
    agents on-site revealed a location of density, but was inconclusive.
        SI Young and I escorted the vehicle to the Waste Management
    Recovery Station in Detroit, MI, in order to off-load the garbage and
    find the source of the dripping blood. The driver of the vehicle pushed
    approximately , of the garbage out of the trailer. In this small amount
    of garbage we found two garbage bags full of used blood products,
    partially empty blood transfusion bags and intravenous (IV) tubing. In
    addition, there was a large amount of blood still in the bags. The
    medical waste filled two large clear garbage bags, which were then
    placed in a larger yellow garbage bag. The two clear garbage bags were
    tied but the yellow bag was not. None of the waste was in the required
    red biohazard bags, nor was the vehicle properly marked with biohazard
    placards. The site was immediately declared a hazmat area and I advised
    my dispatcher to notify the Health Department. Detroit Fire Department
    (DFD) Deputy Commissioner Seth Doyle as well as Lt Harold Watkins of
    the DFD Emergency Management Division arrived on-scene and notified
    their civilian contract hazmat crew to dispose of the waste and
    decontaminate the site. SI Young and I escorted the vehicle back to the
    Fort Street Cargo Facility to be cited and sent back across the bridge
    to Canada. After the vehicle escort, I provided SI Young with the
    personal, vehicle and company information of all parties involved in
    the incident. This ended my involvement and I left the scene.
        Follow-up of the incident approximately two weeks later revealed
    Customs had decided not to cite the driver, nor did they cite the
    transport company. It's reasonable to assume the semi came back across
    the bridge to get to the landfill the next day. Additional follow-up
    with the Department of Environmental Quality under the Department of
    Health revealed the garbage picked up that day had been traced to two
    nursing homes and a hospital, all of which were located in Canada. To
    my knowledge no citations have ever been issued in this incident. It is
    not known if the blood had ever been screened for diseases.
        The driver of the vehicle was a subcontractor who drives for a
    transport company out of Brampton, Ontario. A check of the transport
    company by Michigan State Police Motor Carrier Investigator Jeff Snyder
    revealed the company is authorized to transport garbage/refuse but not
    medical waste. The garbage load was picked up from Canadian Resource
    Recovery in Mississauga, Ont. I was advised by Customs that Mr. Bassi,
    the load manager at Canadian Resource Recovery, stated his site only
    disposes of industrial food waste. The load was enroute to Carlton
    Farms Landfill in Belleville, Wayne County, MI. I spoke with the site
    engineer of Carlton Farms who advised they are not licensed to accept
    medical waste.
        A general inquiry of the blood bank at Harper Hospital, Detroit,
    MI, one of my places of employment, revealed when units of blood are
    expired, they are placed in a red plastic biohazard bin, with markings
    on the outside and two red biohazard garbage bags lining the inside.
    The waste is retrieved by a private company, who replaces the biohazard
    containers. The private company then places the expired blood in an
    autoclave to destroy bacteria and pathogens, after which the blood is
    transported by a company authorized to transport medical waste and
    buried at a facility authorized to receive medical waste. This
    procedure applies to partially and completely used units of blood and
    equipment.
        I have been a registered nurse for eight years, with specialties in
    medical-surgical and nephrology. I am also a Captain in the U.S. Army
    Reserve Nurse Corp. It is my nursing experience that allowed me to
    immediately identify the items in question as blood transfusion bags
    and intravenous equipment. I have transfused blood on many occasions in
    my career and am familiar with the procedures of disposing expired and
    used blood products. As a nurse I am also aware of the dangers
    associated with an exposure to unknown sources of blood. Scientists
    have not yet discovered ways to test donor blood for every existing
    pathogen. For example, the American Red Cross will not allow an
    individual to donate blood if they have lived in Europe for more than
    six months during the 1980s because there is no way to test the blood
    for Mad Cow Disease. If the used or expired blood is not autoclaved
    prior to disposal, the pathogens can thrive in such a warm, moist
    environment as a landfill. Many diseases could fester in the open pit
    of a refuse site. Worst case scenario would be transmission of a
    disease by insect or stray animal because of recklessness or laziness
    such as this situation.
        It is apparent by this incident that proper procedures are not
    being followed in Canada. This was just one garbage hauler on one day
    coming across one bridge. One has to question how many times this
    occurs out of the hundreds of vehicles coming across the Ambassador
    Bridge on a daily basis. It is unrealistic to think every garbage
    hauler will be inspected once it reaches the U.S.
        The deregulation of garbage has been blatantly and disgustingly
    taken advantage of. It is my hope that those that fought to include
    garbage as commerce never envisioned that improperly disposed of
    medical waste would be sent over the bridge mixed in with the garbage.
    However, I am probably being naive. Including Canadian garbage in
    international commerce has totally eliminated the environmental and,
    more importantly, the human element. Imagine driving behind this semi,
    either on a motorcycle or with your vehicle windows open, and having
    blood from the back of a truck splash on your face, arm or windshield,
    and having to follow the Center for Disease Control's Post Exposure
    Prophylaxis Protocol. Of possibly having to take harsh medication with
    serious side effects because the source of the blood is unknown and the
    possibility of contracting a disease exists. Months of not knowing if a
    disease has been contracted or not, did the splashed blood get into a
    cut or not. Not to mention a stray dog digging around that landfill,
    licking the blood bags then playing or licking the children in the
    neighborhood.
        I am extremely disgusted and appalled at what I witnessed and the
    nonchalant attitude I received from State and Federal officials.
    ``Garbage is no longer regulated because it falls under commerce now'',
    is what I was told over and over again. I don't believe the United
    States should be accepting another country's garbage. The fact that we
    have no idea what is being put in those garbage haulers is more of a
    reason to put a stop to Canadian garbage coming into the U.S. Equally
    appalling is the fact that in these times of increased bio-terrorism
    threats, Customs officials identified a hazardous situation and the
    federal agencies that are responsible for enforcing violations of this
    nature did not respond. Yet one more reason to keep Canadian waste in
    Canada.
        I have been in public service for the past twenty years. I am a
    former U.S. Army Paratrooper with 9 years active duty, a former
    Michigan State Police Trooper, current U.S. Army Reserve Nurse and
    current nursing professional who has been and continues to be totally
    committed to protecting the health, safety and freedoms of this great
    country. As such, I believe that with soldiers dying overseas to keep
    this country safe, it is imperative that all necessary actions be taken
    domestically to ensure that our borders are kept safe from any human,
    chemical or disease that may pose a threat to the citizens of this
    great nation.

        Mr. Gillmor. Thank you very much, Ms. Jordan. And we will
    now go, last but not least to Professor Robert Howse, the
    University of Michigan Law School, which is an excellent law
    school. Having graduated from there, I can say that.

                      STATEMENT OF ROBERT L. HOWSE

        Mr. Howse. Thanks very much, Mr. Chairman and members of
    the committee. I teach international law and in particular,
    international trade law at the University of Michigan. I have
    also taught at the University of Toronto and at Harvard Law
    School. And perhaps I could begin by stating that I myself am a
    Canadian and a native of Toronto, and I recall the debates
    about NAFTA that occurred in Canada and in Toronto. And one
    thing I will say at the outset is that of all the arguments
    that the government of the day made in favor of the approval of
    NAFTA, they never actually, I think, dreamed of suggesting that
    one of the advantages of NAFTA would be that Canadians would
    dump their environmental problems on the United States.
        The NAFTA is fundamentally a commercial agreement, and I
    start from the premise that it does not require environmental
    burden sharing. That might be something required by the
    constitution of a Federal State. It might be required in
    something like a political and economic union like the European
    Community, but it is not something required in the North
    American Free Trade Area between the United States, Canada and
    Mexico. It is not a purpose of the NAFTA and therefore in
    interpreting the various provisions of the NAFTA we have to
    bear in mind that it is not that kind of agreement. It is
    fundamentally an agreement to facilitate trade and not
    environmental burden sharing.
        This being said, let me begin, and my written remarks focus
    particularly on bill 382. I think of all the testimony that I
    have heard so far and my own, I would suggest that bill 382 is
    in itself very--does not give rise to a valid complaint under
    the WTO or NAFTA, whatever the issues that might be raised by
    subsequent actions by States, and the reason for that is that
    the bill by its very terms does not itself restrict any trade.
    It doesn't mandate anything and therefore it could not be
    considered to give rise to a violation certainly under the
    jurisprudence of the WTO and GATT, which suggests that by and
    large, and there are some borderline cases and we could discuss
    those, but by and large, legislation that does not actually
    mandate some restriction of trade that is a violation is not a
    violation. You have to wait for some subsequent action that
    actually restricts trade in order to bring a complaint. Until
    that time the complaint is not ripe. So you could pass this
    legislation and then there would still be no restrictions
    because it actually doesn't purport to restrict anything, only
    to provide an authorization to the States.
        The second point relates to what I understand to be a
    doctrine of statutory construction employed by the courts of
    the United States, which is that unless there is express
    language to the contrary, the courts will assume that
    legislation is not intended to violate the international
    obligations of the United States. So the correct reading of
    bill 382, if it were passed into law, would be that it only
    authorizes actions of the States that would be consistent with
    the international obligations of the United States. So about
    bill 382, and I think it is the same for the other legislation,
    you don't have to worry about the law itself.
        Now, what about subsequent State actions? That is a more
    complicated story. The NAFTA works a little differently than
    the Commerce Clause in the U.S. Constitution. It has separate
    chapters and provisions dealing with different kinds of trade,
    trade in goods, trade in services, investment. In the case of
    trade in goods, I do not believe that the national treatment
    obligation would apply to waste in this context. The reason
    that the national treatment or nondiscrimination obligation
    would not apply to waste is that in order to have a violation
    of national treatment, you have to show that like domestic
    products are being treated better than imported products, in
    this case from Canada, and that presupposes that there are like
    domestic products in competition in consumer markets.
        So, I mean here you are not dealing with a situation where
    Canadian and American garbage are competing for consumers and
    therefore you will not find like products in the sense required
    for a violation of national treatment with respect to trade in
    goods.
        With respect to quantitative restrictions, the prohibition
    on export restrictions, it is my view that if you look at the
    context in which those provisions occur both in the GATT and in
    the NAFTA's context, is clearly market access. In other words,
    it is prohibited to restrict exports or imports that are
    destined for a market in the other country. And this says
    nothing in my view about what you can or can't do with respect
    to material that is being transported across the boundary, not
    to be traded in the marketplace, but rather as a means of
    taking an environmental problem from one country and putting it
    into another. Trade in services under NAFTA, there are
    definitely certain kinds of actions that States could take that
    could be a problem from that point of view. One example I gave
    in the written statement is if waste was prohibited unless it
    were carried by American carriers. That would be discrimination
    against Canadian service providers. But I see no reason why
    States could not restrict waste, while at the same time
    providing equal treatment to Canadian and foreign businesses
    competing in the market where it is legal to compete, and that
    is all that is really required here for national treatment in
    trade and services. You can ban the import of waste, the actual
    physical material as long as you don't unduly favor American
    over Canadian waste disposal businesses or companies.
        What about investment? Could actions of a State violate the
    investor protection provisions in NAFTA? Here we are dealing
    with hypotheticals. You would have to find a Canadian company
    that qualifies within the meaning of expression ``investor or
    investment'' within the North American Free Trade Agreement and
    then look at the effects of any State regulation on that
    particular company. So that is really quite hypothetical or
    speculative.
        But again I come back to the basic proposition that none of
    this flows intrinsically from the proposed legislation itself.
    It would only flow from certain kinds of subsequent actions by
    States. And I would even question whether as a matter of U.S.
    administrative or constitutional law, although my expertise is
    not in those fields, I would even question whether the U.S.
    courts would interpret any of this legislation as actually
    giving any right to a State to violate the international
    obligations of the United States. So in other words, I don't
    think there is anything to worry about under international
    trade law. But obviously there is a great deal to worry about
    in terms of which public policy is going to be effective to
    deal with the problem. But that is not my area of expertise.
        [The prepared statement of Robert L. Howse follows:]
    Prepared Statement of Robert Howse, Aline and Allan F. Smith Professor
             of Law, University of Michigan Law School 1
    ---------------------------------------------------------------------------
        \1\ These are purely my personal views as a scholar of
    international trade law, and are not being stated on behalf of any
    government or institution.
    ---------------------------------------------------------------------------

                     I. NAFTA PROVISIONS ON TRADE IN GOODS

        Let me express at the outset my doubts as to whether these
    provisions are even applicable to the export and import of garbage; is
    garbage a traded good, within the meaning of NAFTA? It is not entering
    the United States as a good offered for sale to consumers on the
    market; rather it is being sent abroad for environmental reasons. The
    NAFTA itself is not an agreement that requires sharing of environmental
    burdens between NAFTA members; indeed, the level of cooperation
    contained in the NAFTA environmental side agreement falls far below a
    legal requirement of such burden-sharing. The NAFTA is fundamentally a
    commercial agreement, which requires among other things, equality of
    competitive opportunities for goods and services being traded across
    the borders of NAFTA member states; i.e. being produced in one NAFTA
    member state, and sold to consumers in another. In other words, NAFTA
    disciplines commercial protectionism, the protection of one's own
    consumer markets against goods and services from other NAFTA members.
    Leaving aside the issue of recyclables, there is no consumer market at
    all for the garbage in question; it would be laughable in fact to
    describe it as competing with US garbage for US consumers.
        But even if garbage were considered to be a traded good within the
    meaning of NAFTA, it would make no difference in the case of Bill H.R.
    382. This is because the NAFTA defines the basic obligations concerning
    free movement of goods (Import and Export Restrictions and National
    Treatment) in accordance with the GATT and the WTO Agreements. GATT and
    WTO case law is clear: only legislation that mandates a violation of a
    trade agreement may be challenged as illegal. There may be borderline
    cases, where the legislation leaves some window of discretion for
    decisionmakers, but could still be found to constitute a possible
    violation; there has been one such borderline case in the history of
    the GATT and WTO, the Section 301 case, and in that instance the panel,
    while entertaining the possibility of a violation, ultimately ended up
    finding no violation. HR. 382 is on the opposite end of the spectrum
    from such borderline cases. H.R. 382 mandates nothing; it merely
    authorizes the states to take certain actions that, without
    Congressional approval, they would be unable to take because of the
    constitutional constraint of the Commerce Clause. It is even
    questionable whether H.R. 382 authorizes the states to take actions in
    violation of NAFTA, much less mandating such violations; while I am not
    an expert on the foreign relations law of the United States, my
    understanding is that the US courts will generally interpret a statute
    in a manner that is consistent with US international legal obligations,
    unless there is clear wording in the statute to the contrary. I suppose
    that, to reassure the US trading partners, in this case Canada, wording
    might be added to the Bill to state explicitly that Congress is
    authorizing only those state actions that are consistent with the
    international trade obligations of the United States. But as I have
    just said, for purposes of the US courts interpreting it that way or of
    legal consistency with NAFTA, such wording is not necessary.

                    II. NAFTA TRADE IN SERVICES OBLIGATIONS

        These obligations apply only to measures ``relating to cross-border
    trade in services by service providers of another Party''. In the
    present case, Canadian service providers are not offering any service
    for sale in the US; rather it is the reverse--US landfill operators are
    providing a service to Canada. Therefore the NAFTA Trade in Services
    obligations are inapplicable to the United States in this situation.
        Even if they were applicable, the general point stated above
    concerning the non-mandatory nature of the proposed legislation would
    likely foreclose any issue of a NAFTA violation.

                  III. NAFTA TRADE AND INVESTMENT OBLIGATIONS

        These obligations apply where a business entity of another NAFTA
    party operates as an ``investor'' or ``investment'' in the United
    States. I am not aware of any Canadian entity that meets the NAFTA
    definition of an ``investor'' or ``investment'' in the United States
    and that could be affected by this legislation in such a way as to have
    a valid investor-state claim. Only if such an entity already existed,
    would one have a NAFTA investor-state issue; and then one would have to
    examine the effects of the legislation on that entity, and whether
    those effects run afoul of the NAFTA provisions on investor protection,
    such as the expropriation provisions. As was already emphasized in one
    NAFTA investor-state case that dealt with trade in hazardous
    substances, the S.D. Myers case, the Basel Protocol on Transboundary
    Movement of Hazardous Wastes would trump the NAFTA to the extent of any
    inconsistency. However, there is no need to consider the details of
    that, as long as there is no Canadian business entity that qualifies as
    an ``investor'' or ``investment'' within the meaning of NAFTA, since
    there is no one with standing to bring an investor-state claim in the
    first place.

                                   CONCLUSION

        I wish to emphasize that the above remarks apply on to Bill H.R.
    382 itself. They do not address hypothetical scenarios where subsequent
    action by the states restricting imports of garbage might give rise to
    a NAFTA claim. There are certainly some hypothetical scenarios where
    that could happen: for instance, if a state prohibited imports of
    garbage unless the hauler was of US nationality, then there could be an
    issue of National Treatment with respect to trade in services. It might
    be argued that Canadian haulers were being discriminated against in
    such a situation.
        But clearly, no scenarios of that kind flow from Bill H.R. 382
    itself.

        Mr. Gillmor. Thank you very much. I thank all the panelists
    and particularly you, Ms. Jordan. I know you made a special
    effort to be here and we appreciate it. Let me see if the
    members of the panel have questions.
        Mr. Rogers.
        Mr. Rogers. Thank you, Mr. Chairman, and I have just a
    couple. And I want to again thank publicly Ms. Jordan for the
    exceptional effort you made to get here and telling your story.
    Thank you very, very much.
        In your opinion, as a nurse, both through the military and
    in private practice, does exposure to human blood, pose a
    health risk?
        Ms. Jordan. Absolutely. There is a whole protocol that has
    to be followed if one gets an exposure and it doesn't matter
    how. It is whether you are on a job as a police officer or in a
    hospital. The Centers for Disease Control has what they call
    post-exposure prophylaxis, and it involves testing, blood
    testing as well as medication follow-up. And some of those
    medications have serious side effects themselves. So it poses a
    huge threat.
        Mr. Rogers. And at that time you also brought out a HAZMAT
    team to clean this up. This wasn't--you didn't get out there
    with some rags and mop that up?
        Ms. Jordan. No. There are regulations for all of it. It had
    to be cleaned up per specific guidelines, and that HAZMAT crew
    has those guidelines. That is what they do for a living. So,
    and I was not--we had gloves, masks and goggles on, but there
    was so much blood--I only cut the bag to see what was in there
    and then we stepped away. There was no need to make us
    vulnerable to an exposure once we saw what it was. So we
    stepped away and let the HAZMAT crew come in and clean the
    site.
        Mr. Rogers. Thank you.
        And, Mr. Esty, you mentioned earlier that you thought the
    bill 382 had some trade issues. But under the international
    trade agreements under both GATT and NAFTA there are exceptions
    to human health and, as I think you heard Ms. Jordan mention,
    that this certainly clearly falls within that. Would you not
    agree with that?
        Mr. Esty. I think one of the problems with 382 is that it
    expressly talks about limiting foreign waste. So it is going to
    be viewed as facially discriminatory and therefore it is going
    to have to go to these exceptions under the GATT in order to be
    excepted. And as you have heard from several of the witnesses
    today, there is a high hurdle in getting yourself cleared
    through one of those exceptions. So if you are going to go
    through with a claim, as you are suggesting, under GATT Article
    XX(b), which is the protection of human health, you are going
    to have to demonstrate that there is a necessity for the kind
    of legislation you have adopted and that that necessity has
    been interpreted in the GATT in the WTO process as a
    requirement that it be the least trade restrictive option
    available, and the very fact that there are other options on
    the table here today makes that a hard claim to uphold.
        Mr. Rogers. Yeah, but the bill itself, where in the bill
    itself does it violate, in your opinion, GATT and NAFTA, given
    the comments of Mr. Howse as well?
        Mr. Esty. I think it is all about what it invites States to
    do. And frankly, having heard the testimony from the Senator
    and from others earlier today, I think it is quite likely that
    some States would enact something approaching an all out ban on
    Canadian waste coming in.
        Mr. Rogers. But this bill doesn't do that. This bill
    clearly has a very clear and simple purpose, and you are
    speculating. So the bill itself doesn't do that. So in your
    estimation you are saying then this bill probably would not be
    in violation of that?
        Mr. Esty. It is inviting trouble. It is inviting a
    challenge. And although Professor Howse has indicated that it
    might not be challenged because it doesn't itself mandate
    something that is inconsistent with our GATT obligations, it
    does authorize actions that might be inconsistent and there are
    GATT cases where even that action has invited a challenge. So
    my comments really go to the pragmatic situation here, what is
    going to get on the ground environmental protection for the
    people of Michigan and others who are feeling threatened by the
    flow of waste, the kind of protection that will be up held,
    durable, not challenged. And I think in my opinion----
        Mr. Rogers. Is it your estimation that you don't think the
    waste industry will challenge 1730?
        Mr. Esty. I think there are likely to be challenges from
    the waste industry, but I think perhaps not from Canada if it
    is tightly crafted, narrowly tailored and focused on the kinds
    of issues that are legitimate State interventions.
        Mr. Rogers. Because in fact it won't really stop the flow
    of Canadian trash, nor will 411, even though I cosponsored both
    of those bills and I encourage all the action we can. But they
    really won't ban Canadian trash?
        Mr. Esty. Well, if they ban Canadian trash they will get
    challenged. If they constrain it----
        Mr. Rogers. So 382 does not ban anything. I am glad that
    you are with me on that.
        I just have one other additional question. Mr. Huenemann,
    you raised an interesting issue and I probably wouldn't have
    brought it up other than you raised it. But you are here on
    your own accord without any, nobody brought you here
    necessarily. Can I ask if your firm, do they handle waste
    management clients to any degree?
        Mr. Huenemann. My firm, my office does not.
        Mr. Rogers. And have you ever been a paid consultant for
    the waste industry to any degree?
        Mr. Huenemann. No, never.
        Mr. Rogers. Interesting. Thank you.
        Mr. Gillmor. Are there further questions of the witnesses?
    The gentleman from Michigan, Mr. Stupak.
        Mr. Stupak. Thank you. Mr. Esty, of the three bills, does
    382 invite the most likely challenge, or ``invites the most
    trouble'' I think was the words you use?
        Mr. Esty. Yeah, I would rank them as 382 is the most likely
    to be entangled and therefore not to get on the ground action.
    I think the 1730 is less likely but it depends a lot on the
    details of how it gets implemented, and the least likely is the
    bill that simply advances the existing U.S.-Canada waste
    agreement and urges the EPA to pursue it with greater vigor and
    to take on board some of those obligations that have not been
    implemented and which we have heard testimony today have not
    been fully brought to fruition.
        Mr. Stupak. The fact that--someone testified that Canada
    gives a 7 percent, I think Mr. Garfield did--a 7 percent tax on
    it if it is deposited in Canada.
        Mr. Esty. That is right.
        Mr. Stupak. Would that then make that garbage, whatever you
    want to call it, a good then under NAFTA because it is being
    taxed by one of the parties to the agreement?
        Mr. Esty. Does that make it a tradable good?
        Mr. Stupak. A good, yeah.
        Mr. Esty. You know, I think that is a matter of technical
    analysis but historically within the U.S. legal context waste
    is a good and we can't get around it in the way that Mr. Howse
    has suggested.
        Mr. Stupak. Okay. Ms. Jordan, the person who had that truck
    with the blood and that, no paperwork whatsoever like where
    they got the waste, where they picked it up or anything like
    that?
        Ms. Jordan. Yes, he gave us the information where he picked
    it up but----
        Mr. Stupak. Where he picked it up, right.
        Ms. Jordan. Yes.
        Mr. Stupak. So he wouldn't be the--the person who drove
    this truck wouldn't be the person who picked it up from this
    nursing home or all these other sites; he was just the hauler?
        Ms. Jordan. Correct. He picked it up from a transfer
    station. Garbage is picked up from the sites and then dropped
    off at a transfer station, then another truck comes in and
    takes it to the landfill.
        Mr. Stupak. From your own--maybe I should ask Mr. Woodham.
    Is that the way you do it, like someone picks it up, and I
    think New York testified you go to a compacting station and
    then someone else hauls it. So by the time it actually gets to
    a landfill if you want to inspect it or something you are at
    least twice removed from the person who actually picked it up.
    So that driver, whoever it is, without proper documentation
    won't have a clue what is in that truck?
        Mr. Woodham. Well, you know, first I think that is a
    terrible situation and I would support the full prosecution
    under the law----
        Mr. Stupak. I am not looking for prosecution. I am just
    trying to get to the inspection.
        Mr. Woodham. My understanding in a landfill, you know, all
    of it is documented as it goes in. So in the event something is
    found or some record is tracked back you can go back to a
    landfill and dig down to that area and the hauler that brought
    it in you can hold them responsible.
        Mr. Stupak. That would be the hauler. But the hauler might
    not be the person who picked it up, right?
        Mr. Woodham. Well, the hauler would be the person that
    picked it up, I would believe.
        Mr. Stupak. Well, he picked it up from the compacting
    station or whatever.
        Mr. Woodham. A transfer station I guess you would say. But
    there should be records on where all the waste came from.
        Mr. Stupak. Do you guys inspect your stuff that comes into
    your landfill in South Carolina?
        Mr. Woodham. The county, the State inspects it and then the
    local, the landfill, they inspect it. Just like everybody else
    it is a random, it is not every----
        Mr. Stupak. Can you give me an idea what percentage? We
    only inspect 1.3 percent of all containers that come into this
    country, whether food or whatever.
        Mr. Woodham. I would have no idea.
        Mr. Stupak. I am just trying to make some kind of
    comparison. Okay. I guess my time is up. Thanks, Mr. Chairman.
        Mr. Gillmor. Thank you very much. Let me just ask Professor
    Howse, if you would like to respond to any of the
    interpretations of Mr. Esty because, you know, you are not only
    at opposite ends of the table, you have a different point of
    view on that.
        Mr. Howse. Well, I just do not know of any case in the GATT
    or WTO where legislation that did not actually mandate a
    restriction that was a violation of a trade agreement was found
    to be illegal. There was one case, the section 301 case, where
    the panel contemplated the possibility that even though there
    was some discretionary element in the legislation, nevertheless
    it created a serious enough threat of a violation that it would
    amount to in itself an illegal act under GATT. But ultimately
    the panel stood back from that and said, no, that is not true
    at the end of the day. And one of the reasons they stepped back
    is what I alluded to earlier, which is the rule of statutory
    construction that statutes are not to be read, you know, or
    interpreted lightly to violate the international trade
    obligations of the United States. So I mean, first of all, you
    know, these bills are not mandatory as far as any trade
    restrictions. And second, even to the extent that authorization
    might be relevant to a violation, the normal rule of statutory
    construction would be that the States are not being authorized
    to violate the international trade obligations of the United
    States. But if Professor Esty has other case law that I for
    some reason have missed, perhaps he could talk about it.
        Mr. Gillmor. Yeah. If we could be real brief, because we do
    have to be over to vote very shortly. But would you like to
    answer quickly?
        Mr. Esty. The case where the WTO has addressed this is the
    1999 section 301 case that Professor Howse referred to, and
    there was a concern raised that the mere authorization of
    legislation that could be implemented in GATT in consistent
    ways was a source of concern. And the issue here isn't
    ultimately whether a GATT case is successful or not. It is the
    entanglement of efforts to bring good environmental practices
    to bear in a long drawn out set of legal challenges, trade
    challenges. So I am not convinced that this would win in the
    end, but I am convinced that it would be challenged, that there
    would be a mess on our hands and that we wouldn't be
    implementing those environmental controls that we all want to
    see in place. So I think that is the real issue here, and of
    course we don't know what the State will do. But there is a
    prospect that it will do something that would later be
    considered inconsistent with our legal trade obligations and
    trying to sort things at that point, getting States to revise
    or revoke legislation is a terrible mess.
        Mr. Gillmor. The gentleman from Michigan.
        Mr. Dingell. Mr. Chairman, I thank you. I know we are in a
    hurry to leave here, but I do want to ask this question.
    Professor Howse, I found your comments to be very interesting.
    Can you tell us flat out that under H.R. 382 the legislature of
    the State of Michigan or the State of Ohio could not ban all
    importation of Canadian trash or all importation of trash from
    New York or some other State? Can you make that bald statement
    to us, please?
        Mr. Howse. Concerning other States, I would prefer not to
    comment on that because I am not an expert.
        Mr. Dingell. Well, let's comment on Canada. Could the
    legislature of Michigan ban all Canadian trash coming in if
    H.R. 382 passes? Can you tell me they could not?
        Mr. Howse. I----
        Mr. Dingell. Or can you tell me you don't know?
        Mr. Howse. I don't know.
        Mr. Dingell. Okay. Perhaps Mr. Esty can tell us. Could they
    ban--could the State of Michigan through its legislature ban
    all importation of Canadian trash if H.R. 382 passes?
        Mr. Esty. I certainly read 382 to provide that broad an
    authorization.
        Mr. Dingell. You think they could. So now if they did that
    would that then constitute a violation of GATT or NAFTA?
        Mr. Esty. I would say absolutely.
        Mr. Dingell. Now, Mr. Howse, what would you say if that
    were so? You were commenting on----
        Mr. Howse. On the scenario that all trash were banned from
    Canada, I don't think that----
        Mr. Dingell. No. No. Just answer the question, please. Our
    time is limited. If Michigan banned all importation of Canadian
    trash, would that constitute a violation of NAFTA or of GATT?
        Mr. Howse. I don't believe so.
        Mr. Dingell. You don't believe so. Okay. If Canada banned
    all imports of U.S. Trash into Canada, would the United States
    have recourse under international law?
        Mr. Howse. Under international trade law, I don't believe
    so.
        Mr. Dingell. You don't believe so?
        Mr. Howse. Maybe under some other law.
        Mr. Dingell. Mr. Esty, do you want to comment?
        Mr. Esty. I would be interested in the legal underpinnings
    for that opinion. I really don't see any foundation for that. I
    mean it seems, and we could ask my colleague who spent 15 years
    at USTR, but I think that kind of absolute ban is fundamentally
    what Article XI of the GATT is about and Article III,
    nondiscrimination. So I think this would trigger an immediate
    Canadian challenge if Michigan were to ban all waste. I think
    it would be hours, not days before requests for discussions are
    held.
        Mr. Dingell. Now, in a statutory interpretation or an
    interpretation of a treaty, the presumptions come into play and
    the courts and the interpreting agencies say, well, they
    couldn't have intended that. But then somebody takes action
    which is completely inconsistent with the presumption. What
    then happens? Mr. Howse, do you want to tell us? So I have got
    this presumption that I can't do it, let's say I am a member of
    the Michigan legislature, but I go ahead and do it. What
    happens to the presumption? It goes out the window, doesn't it?
        Mr. Howse. Well, then it would be partly a question of
    statutory interpretation, right.
        Mr. Dingell. Okay. So the presumption vanishes. Michigan I
    happen to know feels strongly about this Canadian trash and the
    minute we pass a piece of legislation that they think would
    authorize it you can bet yourself a new hat they will be
    running out and you will see legislation introduced and
    probably reported out of a committee that will ban the import.
    Isn't that fair to say? Just talking about human nature and how
    our people in Michigan are going to respond.
        Mr. Howse. I am afraid that I am not familiar enough with
    the debate in Michigan to say whether I thought an outright ban
    as opposed to some other kind of restrictions based upon health
    and safety and environmental risk would be the outcome of the
    legislative process of Michigan.
        Mr. Dingell. My time is very limited and I have got to
    hurry. Mr. Esty, do you want to comment on this matter?
        Mr. Esty. Well, I would just say I have spent a career,
    including time in government, trying to figure out ways to
    ensure that the trade regime takes on broad environmental
    concerns. But it can't be done in absolutes.
        Mr. Dingell. But the minute somebody takes an action that
    is inconsistent with the presumption, the action becomes----
        Mr. Esty. Is what is operational.
        Mr. Dingell. The action becomes the dominant fact in the
    interpretation of the treaty as opposed to the presumption.
    This exists as long as there is no factual or legal basis to
    come to adopt the conclusion, is that correct?
        Mr. Esty. Correct.
        Mr. Dingell. Thank you. Mr. Chairman, I thank you for your
    courtesy. Mr. Howse, I thank you. I thank you also, Mr. Esty.
        Mr. Gillmor. Thank you. Let me ask unanimous consent that
    all members have 5 days to submit statements for the record.
    Without objection, so ordered. Also Mr. Fossella has--was not
    able to attend Panel 4.
        Mr. Dingell. Oh, Mr. Chairman, would you allow me to just
    read one thing, please?
        Mr. Gillmor. As long as you read it fast, John.
        Mr. Dingell. I will read it fast. Our colleague Ms. Miller
    said this in her statement. I can assure you that if given the
    opportunity Michigan legislature would quickly enact
    legislation to ban Canadian trash. A former Secretary of State,
    sitting colleague. Thank you, gentlemen, and thank you.
        Mr. Gillmor. And I would ask the panel if they would be
    willing to accept written questions from members of the panel,
    and before we adjourn I want to thank all of you, Panel 4. You
    deserve some kind of medal. You have been here all day and we
    very much appreciate it. Meeting adjourned.
        [Whereupon, at 7:15 p.m., the subcommittee was adjourned.]
        [Additional material submitted for the record follows:]

                    Department of Environmental Quality
                                              State of Michigan
                                                        August 15, 2003
    Ms. Jill Latham, Legislative Clerk
    Committee on Energy and Commerce, Majority Staff
    United States House of Representatives
    Washington, DC 20515
        Dear Ms. Latham: This letter is in response to U.S. Representative
    Paul E. Gillmor's August 5, 2003, letter requesting a response to
    additional questions related to my testimony during the July 23, 2003,
    hearing on interstate and international waste. I will address the
    questions in the order they were presented.
        Question: Mr. Chester, your testimony makes several references to
    the 10 years between the Supreme Court's action in 1992 and the present
    day. Certainly, the courts have eliminated many but not all options for
    states to employ in dealing with out-of-state waste. What has the State
    of Michigan done to reassess their situation and help create safe and
    efficient alternatives or programs to address their concerns?
        Response: Since the 1992 decision in the case of Fort Gratiot
    Sanitary Landfill v. Michigan Department of Natural Resources, Michigan
    has taken numerous actions in an attempt to deal with out-of-state
    waste. Some of Michigan's efforts include banning additional items from
    being landfilled in Michigan and creating the Michigan Solid Waste
    Importation Task Force to examine trends, causes, and consequences of
    out-of-state waste imports and develop recommendations. Most recently,
    Michigan has conducted additional inspections at solid waste landfills
    throughout the state to ensure that prohibited solid waste is not
    entering these facilities. Although Michigan has taken action to
    address the content of out-of-state waste, the volume of solid waste
    imports to Michigan continues to increase. Under current law, Michigan
    has almost no ability to control the volume of solid waste importation.
    Michigan has also met with the Ontario Ministry of the Environment and
    representatives from the city of Toronto in an effort to persuade them
    to identify Canadian sites for the disposal of their municipal solid
    waste and to encourage them to effectively plan for the disposal
    capacity needs within Ontario.
        Question: Mr. Chester, some people would argue that Michigan and
    other importing states could regulate the flow of waste just by the
    condition and way it issues permits for a disposal facility. Do you
    believe this to be true? Do you think it would pass the Commerce Clause
    scrutiny under the U.S. Constitution?
        Response: Under current Michigan law, the regulation of out-of-
    state waste through conditions in landfill permits is not achievable.
    The Michigan Department of Environmental Quality (MDEQ) is obligated by
    statute to issue a permit to a disposal area if all of the requirements
    of state law are met. The landfill permit applicant does not have to
    identify the source of his anticipated business. If the MDEQ does not
    issue the permit within 120 days of receiving an administratively
    complete application, the permit is automatically issued by default.
    Michigan also does not believe such an approach would pass Commerce
    Clause scrutiny. Without federal legislation authorizing states to
    regulate out-of-state waste flow, this approach would likely be viewed
    as a state's attempt to discriminate against interstate commerce and,
    therefore, would be in violation of the Commerce Clause. In addition,
    we believe that restricting the development of landfill space would
    lead to Michigan being irresponsible in terms of ensuring that the
    state can properly manage its solid waste. Such action would
    artificially increase the cost of solid waste disposal for Michigan
    citizens and could result in illegal dumping.
        Question: Mr. Chester, in 2001, the State of Michigan exported more
    than 146,000 tons of solid waste to other states for disposal. Noting
    that during that same year, Michigan was a ``net-importer'' of over 3.5
    million tons of solid waste, it would seem your state is able to take
    care of its entire trash load and then some. Am I correct? And, if so,
    why are you exporting so much?
        Response: In 2001 Michigan disposed of over 20 million tons of
    solid waste. This question states that Michigan exported more than
    146,000 tons of solid waste to other states for disposal and imported
    over 3.5 million tons of solid waste for disposal. Michigan does not
    specifically track the amount of solid waste exported; however, if the
    figures provided are correct, 146,000 tons of solid waste is 0.7
    percent of the waste placed in Michigan landfills, which is minimal
    compared to the total volume of waste disposed of in Michigan and the
    total volume of waste imported in 2001. Although the reasons for
    exporting waste may vary, the close proximity of a few Michigan
    communities to disposal areas in other states bordering Michigan
    accounts for this export. Although Michigan has capacity to handle the
    volume of waste currently being disposed, data collected over the past
    seven years suggests a strong potential for increases in waste imports
    to continue. If significant increases in waste imports continue,
    Michigan solid waste disposal capacity will diminish at a much faster
    rate than planned. Current Michigan disposal capacity was developed as
    part of county solid waste management plans to meet long-term disposal
    needs of Michigan communities. Losing this capacity at significantly
    increased rates undermines the long-term planning done by these
    communities and will result in the need to establish new disposal
    capacity or find capacity in other locales. Additionally, development
    of local disposal capacity as part of county planning activities was
    done as part of integrated waste management strategies intended to
    include waste recycling and composting activities. Michigan has taken
    responsibility to provide for a comprehensive waste management policy.
    Loss of capacity because of significant imports of waste from
    jurisdictions undermines local commitment to waste planning and
    continues to hinder recycling and other waste reduction efforts in
    Michigan.
        Question: Mr. Chester, recognizing that Michigan does export waste,
    would passage of any of these bills impede your ability to export in
    the future? Why?
        Response: Michigan is not concerned that any of the bills currently
    introduced would impede our ability to export waste in the future.
    Michigan is not looking to close its borders entirely; however, we
    support legislation that would provide states with the authority to
    reasonably limit the amount of out-of-state waste imports. Because of
    the lack of authority under the Commerce Clause, states have no
    authority to ensure their state's waste management policies are not
    disrupted by out-of-state waste imports or to ensure natural resources
    are being protected. Michigan hopes to strike a balance between the
    competing needs of communities to plan for their long-term needs and
    the needs of private waste disposal firms to operate profitably, to
    compete fairly with each other, and to honor a certain level of
    contractual relationships.
        Question: Mr. Chester, two years ago, Russell Harding testified
    before our committee that Michigan was losing one full year of landfill
    capacity for every five years of out-of-state imports. Is this still
    the case? How do you see this matter playing itself out in the future
    either with or without congressional action on the bills before us?
        Response: Based on the most recent data, the volume of imports is
    equivalent to 25 percent of the waste Michigan residents generate.
    Based on these figures, Michigan will actually lose one full year of
    landfill capacity every four years rather than every five years. Solid
    waste imports show a continuing trend to increase; therefore, without
    congressional action, Michigan solid waste disposal capacity will
    diminish at a much faster rate than planned. If congressional action is
    taken to allow reasonable controls on out-of-state waste imports, the
    impact on available disposal capacity is expected to be reduced.
        Question: Mr. Chester, some of our panelists would argue that your
    concerns about substantial truck traffic and other human and resource
    costs incurred by the State are just ``sour grapes.'' Could I have you
    provide me some statistics to show this is not idle whining?
        Response: Michigan does not have any specific statistics to
    demonstrate that substantial truck traffic negatively impacts
    Michigan's environment. However, it is common knowledge that an
    increased volume of trucks will cause deterioration to Michigan
    roadways, will emit increased air pollutants, and will increase the
    amount of congestion on Michigan roadways. Michigan's concerns about
    increased truck traffic also involve the increased disruption of the
    lives of Michigan citizens as a result of the number of trucks waiting
    at landfill gates to dump. Furthermore, subsequent to the events of
    September 11, 2001, it was documented in Michigan that several
    automobile plants were unable to receive timely distribution of
    automobile parts from our Canadian neighbors. This resulted in
    production suspensions because of the delays created in border
    crossings. One hundred and eighty fewer trucks per day would have
    reduced those lines at the border crossings. These are trucks that
    would not have to tie up border crossings if an alternative site to
    take their municipal solid waste were constructed in Ontario.
        Question: H.R. 382 and H.R. 411 have been introduced with your
    state in mind. Please tell us if you believe these bills will help
    improve your state's situation. How will passage of this bill not
    result in setting the stage for the balkanization of what is
    increasingly a regional system of waste management facilities?
        Response: Michigan believes that H.R. 382 and H.R. 411 could
    improve our situation. H.R. 382 gives states the ability to take direct
    action in regulating out-of-state waste imports; whereas, H.R. 411
    provides states with the opportunity to present their views to the
    United States Environmental Protection Agency (EPA) on each shipment of
    municipal solid waste. Since states currently have no authority to
    regulate out-of-state imports, either of these bills would allow states
    to be involved in the regulation of out-of-state waste imports. H.R.
    382 provides direct authority to stop Canadian waste from entering
    Michigan or any other state that exercises the discretion it would
    grant. It would be a powerful tool to help forge more cross-border
    cooperation on waste issues if it withstands the significant domestic
    and international legal hurdles that were discussed by the legal
    witnesses during the final panel of testimony. Michigan is also
    concerned about the limited scope of H.R. 382, which would provide help
    with only about half of municipal solid waste imports. It was
    noteworthy, for example, that the witnesses for New York City not only
    could not provide an estimate of waste volumes shipped to other states,
    but indicated they had no real interest in acquiring or sharing that
    information. That is why Michigan is urging Congress to pass the most
    comprehensive legislation possible that will withstand any
    constitutional or trade challenge.
        Additionally, Michigan does not expect H.R. 382 or H.R. 411 to
    cause a decreased regional system of waste management facilities. Since
    1992, Michigan's well-developed plan to provide for its own disposal of
    solid waste has been challenged by the inability to regulate out-of-
    state waste. Michigan's actions to develop a responsible plan for waste
    management are ineffective if the amount of out-of-state waste crossing
    our borders is uncontrolled. Michigan does not intend to close its
    borders to out-of-state waste; however, Michigan hopes federal
    legislation will be enacted to allow states to uphold their planning
    efforts. Therefore, Michigan supports the passage of federal
    legislation that will strike a balance between the long-term disposal
    needs of waste generators and the states' need to regulate landfill
    capacity.
        Question: Do you support the outright ban of waste shipments from
    outside your State? Do you support restrictions being placed on waste
    from outside your state? What do you see as the distinction between
    these two terms and where do you think the appropriate public policy
    place for your state to be is?
        Response: Michigan supports legislation that would provide states
    with the authority to reasonably limit the amount of out-of-state waste
    imports, not necessarily an outright ban. The distinction between the
    two terms is that allowing restrictions on volume does not totally
    prohibit the disposal of out-of-state waste imports. States are
    currently vulnerable to the unrestricted volume of solid waste coming
    in from outside of their borders. Michigan hopes to see legislation
    that will give states the ability to take direct action in reasonably
    controlling the flow of waste coming across their borders.
        Question: Do you support a local community's ability to negotiate a
    Host Community Agreement? If so, do you still support it if it means
    out-of-state waste is still being disposed in Michigan? Should the
    state have any kind of veto power over these agreements? Does the
    presumptive ban in H.R. 1730 preclude the involvement of local
    communities?
        Response: Michigan supports the concept of a local Host Community
    Agreement process because local communities are most affected by waste
    imports. Allowing these communities to negotiate Host Community
    Agreements will ensure they are not being adversely impacted by siting
    of disposal areas or other solid waste management decisions. Michigan
    does not intend to seal its borders against imports; therefore,
    Michigan would continue to be supportive of a Host Community Agreement
    process even if it means out-of-state waste will continue to be
    disposed of in Michigan. Giving states authority to veto Host Community
    Agreements should be considered because state oversight may ensure
    unneeded disposal capacity is not created in the state. Michigan does
    not believe the presumptive ban in H.R. 1730 precludes the involvement
    of local communities. In fact, H.R. 1730 appears to encourage local
    communities and landfills to work together to negotiate Host Community
    Agreements if the landfill intends to accept out-of-state waste.
        Question: Mr. Chester, has citizen opposition to landfills that
    accept out-of-state waste either stopped or significantly prolonged the
    approval of a landfill? Please expound on the level of citizen
    opposition you are encountering in Michigan.
        Response: Under current Michigan law, the MDEQ is obligated to
    issue a permit for a disposal area if all of the requirements of the
    law are met. If the MDEQ does not issue the permit within the 120day
    statutory time line, the permit is automatically issued by default.
    Therefore, citizen opposition to landfills that accept out-of-state
    waste has not affected the issuance of a permit for a landfill.
    However, the MDEQ does receive a great deal of correspondence
    expressing opposition to Michigan landfills accepting large volumes of
    out-of-state waste. These citizens do not understand why people in
    other states and countries cannot be responsible for disposal of their
    own waste. Additionally, these citizens argue that it is meaningless to
    recycle in order to save landfill space if it is just going to be used
    up by other states and countries.
        Question: EPA's testimony states, ``Preliminary results from recent
    Michigan Department of Environmental Quality inspections indicate that
    the shipments from Toronto are managed as well as similar shipments
    originating within the State.'' I also have a Detroit Free Press
    article claiming Michigan DEQ inspections found Canadian trash to be
    cleaner than Michigan waste. The article says, ``DEQ Director Steven
    Chester . . . found almost no hazardous materials in any of the almost
    900 domestic and Canadian loads examined through the end of April.'' Of
    all these inspections, what has the Department found to suggest MSW
    [municipal solid waste] from Toronto is materially different from MSW
    from Wayne County, where the Carleton Farms landfill is located? Please
    comment on EPA's testimony and the Free Press article in your response.
        Response: Preliminary results indicate loads of waste from Canada
    typically have a higher volume of yard waste and beverage containers
    than shipments originating in Michigan. However, the results of the
    MDEQ's inspections are not finalized; therefore, a definitive answer
    cannot be given at this time in response to the Detroit Free Press
    article claiming Canadian trash is cleaner than Michigan's or the EPA's
    testimony that MDEQ inspections found shipments from Toronto are
    managed as well as shipments originating within Michigan.
    Low-Level Radioactive Waste (LLRW)
        Question: Where does the state of Michigan send its low-level
    radioactive waste? If it were forced to dispose of low-level
    radioactive waste, does Michigan have enough legal capacity for
    disposal?
        Response: There are only two facilities in the nation that receive
    for land disposal the LLRW from Michigan generators. These facilities
    are located in South Carolina and Utah. In 2002 Michigan generators
    disposed of approximately 3,000 cubic feet of waste at the South
    Carolina facility and approximately 6,000 cubic feet at the Utah
    facility. There are no commercial disposal facilities in Michigan
    licensed to dispose of LLRW. If Michigan were forced to dispose of its
    own LLRW, the state would have to resurrect an expensive and
    contentious facility siting process that was begun in 1989 and
    discontinued in 1991.
    Hazardous Waste
        Question: How much hazardous waste does Michigan export to Canada
    or other states (tonnage and percentage of total generation)? If forced
    to dispose of all its hazardous waste, would Michigan have the legal
    capacity to do so?
        Response: A total of 649,000 tons of hazardous waste were managed
    within Michigan in calendar year 2002. The sources and destinations of
    that waste are shown in the following table:

                                Quantity in Tons
    ------------------------------------------------------------------------
                                                                    Quantity
    ------------------------------------------------------------------------
    Source
    Michigan Industry............................................    333,300
    Canada.......................................................      4,700
    Other States.................................................    311,000
                                                                  ----------
        Total....................................................    649,000
    Destination
    On-Site Treatment and Disposal in Michigan...................     77,900
    Michigan Commercial and Captive Facilities...................    324,200
    Exports to Other States......................................    202,800
    Exports to Canada............................................     44,100
                                                                  ----------
        Total....................................................    649,000
    ------------------------------------------------------------------------

        What the table cannot show is how much of the waste that is
    exported to other states and to Canada actually originated in Michigan.
    The reason is Michigan's commercial hazardous waste management
    facilities import some of their wastes from other states, process the
    waste, and may then send it on for further treatment or disposal at a
    different facility. We do not readily know the origin of the waste
    stream that is exported from these commercial facilities. Accounting
    for all imports, the amounts we export to Canada and other states
    represent 7 percent and 31 percent, respectively, of the 649,000 tons
    of hazardous waste managed within our borders in 2002.
        Unlike the solid waste disposal industry, the hazardous waste
    disposal industry requires many different types of facilities to manage
    many varied waste streams. It is difficult to compare the two
    industries. While most solid waste is disposed of in landfills, most
    hazardous waste is not. Hazardous waste streams vary from solid to
    liquid and from inorganic to organic, so many different types of
    facilities are needed to properly treat and dispose of them in
    accordance with applicable regulations. Because most states do not
    generate enough of each type of waste to support every type of facility
    needed to treat them within their borders, hazardous waste markets are
    more regional. Commercial facilities typically serve generators from
    surrounding states, and some companies provide services for selected
    waste streams (e.g., solvents) regionwide or nationwide, sending all of
    the collected wastes to their own central facilities in just a few of
    the states and in Canada.
        While Michigan has excess capacity for managing many of the waste
    streams generated within our borders, we also do not have the
    commercial facilities necessary to manage certain hazardous wastes,
    most notably those that require combustion (i.e., incineration, use as
    a supplemental fuel in a cement kiln, etc.) as the required disposal
    method. We do not generate enough of these wastes to support commercial
    facilities in Michigan. That is why, for example, a significant portion
    of the hazardous wastes that we export to Canada are sent to commercial
    combustion facilities (e.g., Clean Harbors in Corunna, Ontario).
    Similarly, other states and Canada take advantage of our excess
    chemical wastewater treatment and toxic waste landfill capacity in
    Wayne County, capacity that is not as prevalent within their
    jurisdictions.
        We do note that a portion of the hazardous wastes that we export to
    Canada are landfilled. Michigan has adequate landfill capacity for
    hazardous wastes. While we do not have much information on why the
    waste is sent to Canada, we suspect that it is simply cheaper in some
    cases to landfill it in Canada, where they have less stringent land
    disposal regulations, than it is to treat the waste and dispose of it
    here or in other states. Our land disposal regulations often require
    the costly addition of treatment chemicals to bind up the hazardous
    constituents in the waste and additional laboratory analytical work to
    verify that the treatment standards have been met. Some of these wastes
    need only be solidified to be acceptable for landfilling in Canada,
    making the Canadian disposal option overall much cheaper. While the
    majority of our wastes that require landfilling are managed within our
    borders, industry currently enjoys the option of disposing of certain
    hazardous wastes in Canadian landfills. If Canada adopts land disposal
    regulations similar to ours, higher disposal costs will be felt by some
    generators.
        Question: During questioning, you mentioned that you had not had an
    opportunity to speak to Governor Granholm regarding H.R. 411 or H.R.
    382. I ask that you take the opportunity to do so. In a one-word answer
    for each, does Governor Granholm support H.R. 411 or H.R. 382?
        Response: As stated during my testimony, Michigan supports any
    legislation that gives states the needed authority to regulate the flow
    of out-of-state waste shipments and strongly prefers a law that will
    withstand domestic or international legal challenges and addresses all
    out-of-state waste flows, rather than just a portion of them. Of the
    three bills, H.R. 1730 provides Michigan with the best tools to control
    out-of-state waste. H.R. 411 would also strengthen our position, as
    would H.R. 382 except for the limitations noted under question seven.
        If you have any questions, please contact Mr. George W. Bruchmann,
    Chief, Waste and Hazardous Materials Division, at 5173739523, or you
    may contact me.
                Sincerely,
                                              Steven E. Chester
                                                               Director
    cc: U.S. Representative Paul E. Gillmor
       Mr. John Burchett, Governor's Washington Office
       Mr. Jim Sygo, Deputy Director, MDEQ
       Ms. Carol Linteau, Legislative Liaison, MDEQ
       Ms. JoAnn Merrick, Senior Executive Assistant to the Director, MDEQ
       Mr. William Richards, Senior Policy Advisor, MDEQ
       Mr. George Bruchmann, MDEQ
       Mr. Frank Ruswick, MDEQ
       Mr. Lonnie Lee, MDEQ
       Ms. Rhonda Oyer Zimmerman, MDEQ
       Ms. Lynn Dumroese, MDEQ
                                     ______

                    Department of Environmental Quality
                                              State of Michigan
                                                        August 15, 2003
    Ms. Jill Latham
    Committee on Energy and Commerce, Majority Staff
    United States House of Representatives
    Washington, DC 20515

    Ms. Sharon Davis
    Committee on Energy and Commerce, Minority Staff
    United States House of Representatives
    Washington, DC 20515
        Dear Ms. Latham and Ms. Davis: This letter is in response to U.S.
    Representative John D. Dingell's August 4, 2003, letter regarding the
    following question related to the July 23, 2003, hearing entitled
    ``Three Bills Pertaining to the Transport of Solid Waste: H.R. 382,
    H.R. 411, and H.R. 1730'':
        Question 1. In your testimony, you indicated that the State of
    Michigan has identified Canadian firms as potentially liable under
    Michigan law for contamination resulting from the improper closure of
    the Fort Gratiot Sanitary Landfill. You also indicated that current
    authorities and/or resources may not be sufficient to effectively
    pursue Canadian parties liable for waste shipped to this site or other
    sites in Michigan. What additional authorities and/or resources would
    be needed to address this problem?
        Response: Michigan is currently pursuing action against Canadian
    firms that have been identified as being potentially liable for
    contamination at the Fort Gratiot Sanitary Landfill under both federal
    and state law. Our attorneys advise us that, with litigation
    anticipated, it would not be appropriate to provide detailed comments
    regarding the authorities and resources that may enhance Michigan's
    ability to pursue enforcement of Canadian parties liable for waste
    shipped to sites within Michigan. It is certainly fair to say that any
    litigation against such liable parties located outside the United
    States will generate the need for additional financial resources and
    staff time to complete the enforcement actions and to collect fines or
    penalties from the firms identified.
        I very much appreciate your continuing interest in this issue. I
    would be happy to work further with you and your staff to identify
    opportunities to augment existing laws so that those exporting waste
    into this country will be held to the same standards as domestic firms
    and will, thus, be required to bear the full environmental consequences
    of their waste disposal decisions. As noted on the advice of our
    attorneys, it is prudent to await the outcome of the Fort Gratiot
    matter before proposing specific amendments to current law.
        If you have any questions, please contact Mr. George Bruchmann,
    Chief, Waste and Hazardous Materials Division, at 5173739523, or you
    may contact me.
                Sincerely,
                                              Steven E. Chester
                                                               Director
    cc: U.S. Representative John D. Dingell
       U.S. Representative Paul E. Gillmor
       U.S. Representative Hilda L. Solis
       U.S. Representative W. J. Tauzin
       Mr. John Burchett, Governor's Washington Office
       Mr. Jim Sygo, Deputy Director, MDEQ
       Ms. Carol Linteau, Legislative Liaison, MDEQ
       Ms. JoAnn Merrick, Senior Executive Assistant to the Director, MDEQ
       Mr. William Richards, Senior Policy Advisor, MDEQ
       Mr. George Bruchmann, MDEQ
       Mr. Frank Ruswick, MDEQ
       Mr. Lonnie Lee, MDEQ
       Ms. Rhonda Oyer Zimmerman, MDEQ
       Ms. Lynn Dumroese, MDEQ
                                     ______

      Response for the Record from Nicholas DiPasquale, Deputy Secretary,
        Office of Air, Recycling and Radiation Protection, Pennsylvania
                     Department of Environmental Protection
        Question 1) Your testimony talks not only about state powers, but
    also about potential tensions between communities and within counties
    over various authorities. Who do you believe should have the ultimate
    authority and why?
        Response: We believe that the state should be the ultimate decision
    maker because the outcomes and implications of our permitting decisions
    inevitably affect a multitude of local governments. The states should
    be the ultimate decision maker, but only after the concerns of local
    governments have been identified and adequately addressed. We believe
    that the state should have the responsibility for permitting municipal
    waste disposal facilities; however, this must be done in a
    comprehensive manner that identifies and addresses local government
    concerns and issues.
        Question 2) Pennsylvania is the leading importer of out-of-state
    waste. With the great majority of these shipments coming from New York
    and New Jersey. How has the closing of Fresh Kills put pressure on
    disposal facilities in your state, as well as others, and what do you
    ultimately see happening for future disposal capacity in your state?
    Will the market alone correct this situation?
        Response: The closing of Fresh Kills resulted in more New York
    waste being exported to neighboring states with excess landfill
    capacity like Pennsylvania, Virginia, Ohio and West Virginia. Each year
    waste originating from outside the Commonwealth makes up nearly half of
    the 26 million tons of waste managed in the Commonwealth. It is clear
    that Pennsylvania's citizens, natural resources and disposal capacity
    are being negatively impacted by out-of-state waste.
        Question 3)Two years ago, David Hess, on behalf of your state
    agency, suggested that 20 percent of communities hosting landfills
    would accept waste imports. Do you think that number would rise or fall
    if H.R. 1730 was passed?
        Response: We believe it would remain the same.
        Question 4) ``Operation Clean Sweep'' was an interesting experiment
    in policing out-of-state waste. Could you please explain what its use
    found? Do you expect to continue this program? Would passage of H.R.
    1730 alleviate the problems you encountered?
        Response: ``Operation Clean Sweep'' was a cooperative effort among
    states to target and to improve environmental and safety issues
    associated with the interstate and intrastate highway transportation of
    municipal waste. During Operation Clean Sweep, 500 staff conducted over
    40,000 vehicle safety and environmental inspections. Over 11,000
    violations were detected, many of which led to summary citations,
    notices of violations and in some cases drivers or vehicles removed
    from service. Based upon Operation Clean Sweep and other vehicle
    inspection programs, the Commonwealth has data indicating a long
    history of compliance problems with transporters of municipal waste. We
    will continue to inspect highway waste transportation vehicles and
    recently instituted a program to require authorization of vehicles
    transporting waste to facilities in the Commonwealth. Passage of H.R.
    1730 could help reduce the problems that have been encountered. (A list
    of the companies with more than ten Clean Sweep violations is attached
    for your information.)

          OPERATION CLEAN SWEEP COMPANIES WITH MORE THAN 10 VIOLATIONS
    ------------------------------------------------------------------------
                                                 Environmental    # Safety
               Company Name, Address               Violations    Violations
    ------------------------------------------------------------------------
    Waste Management Inc., 1001 Fannin St.,               339           554
     Houston, TX...............................
    Kephart Trucking Co., P.O. Box 386, Bigler,           107           338
     PA........................................
    BFI, 757 N. Eldridge Parkway, Houston, TX..            88            65
    Letica Inc., 2500 83rd St., North Bergen,              12            99
     NJ........................................
    York Waste Disposal Inc., 1110 East                    61            17
     Princess St., York, PA....................
    Wills Trucking Inc., 3185 Columbia Road,               50            22
     Richfield, OH.............................
    Stratus Entyerprises Inc., 8 Industrial                15            50
     Drive, Sharon, PA.........................
    Solid Waste Services Inc., 320 Godshall                22            38
     Drive, Harleysville, PA...................
    Miners Fuel Co. Inc., P.O. Box 86, Tremont,            20            37
     PA........................................
    Dilex Trucking Inc., 1503 Astor St., South             21            27
     Plainfield, NJ............................
    LU Transport Inc., 2648 West 50th St.,                 32            14
     Chicago, IL...............................
    Vision Transport, 2 Fishhouse Road, South              10            35
     Kerney, NJ................................
    Republic Services, 110 SE 6th St., Fort                27            10
     Lauderdale, FL............................
    Iron City Express, 1260 Stoors Ferry Road,              4            29
     Corapolis, PA.............................
    Chambers of Pennsylvania, 310 Leger Road,              25             7
     Irwin, PA.................................
    Onyx Waste Services Inc., 178 River St.,               24
     Paterson, NJ..............................
    Odyssey Waste Service LLC, 1722 Arch St.,              22
     Philadelphia, PA..........................
    JP Mascaro & Sons, 320 Godshall Drive,                 21
     Harleysville, PA..........................
    M & I Transport Inc., 400 Sipe Avenue,                 11            10
     Jersey City, NJ...........................
    SMA Raza, Ledgewood, NJ....................             5            13
    Superior Waste Services Inc., 125 South 8th            15
     St., Milwaukee, WI........................
    Waste Automation Corp., 2505 Old Rogers                15
     Road, Bristol, PA.........................
    Raritan Valley Disposal, 14 Hollandbrook               11             4
     Road, Whitehouse Station, NJ..............
    D & M Leasing Inc., 2 Fishhouse Road, South            13
     Kernry, NJ................................
    Gladiators Trucking Corp., 69-01 Polk St.,           7gD6
     West New York, NJ.........................
    Lebanon Farms Disposal Inc, 486 Obie Road,             12
     Newmanstown, PA...........................
    Speedy Services Inc., 124 Richey Avenue,               12
     Collingswood, NJ..........................
    East Coast Resources LLC, 6811 Kenilworth               8             3
     Avenue, Riverdale, MD.....................
    ------------------------------------------------------------------------
    During Operation Clean Sweep, More than 2,800 clients (trucking
      companies (haulers), owners and drivers) had 11,000 vioiations. Of
      those, the top 28 clients, which were all trucking companies, had
      2,387 violations. The remainder of the clients accounted for 8,700
      violations. Targeting Trash Homepage

        Question 5) Do you think that the new regulations that Pennsylvania
    has put into place would pass the ``burden'' test that the courts have
    used to strike down other waste laws?
        Response: Yes, we believe that our current regulations would pass
    the ``burden'' test that the courts have used.
        Question 6) Pennsylvania exported over 576,000 tons of waste in
    2001. Are there plans to increase your exports in light of your current
    landfill capacity and future needs?
        Response: In the past Pennsylvania has been on the forefront of
    municipal waste planning and will continue to be. We believe that each
    state has a responsibility to plan for and permit disposal capacity for
    the municipal waste they generate. The decision to construct new
    facilities or export waste to other states is a decision that is made
    by the waste industry and not the state government.
        Question 7) Are you concerned about local governments, under H.R.
    1730, being kept out of the decision making process under the
    presumptive ban? Why?
        Response: We are concerned about host municipalities being kept out
    of the decision-making process. The concern is based on our division of
    authority--in Pennsylvania the host community, not the host county, is
    generally the level of government at which a host agreement is
    executed; whereas, under H.R. 1730, the authority to exempt out-of-
    state waste under a host agreement is given to the county.
        Question 8) In your opinion, what would happen if Congress chose to
    do nothing on the question of interstate waste? How do you see the
    market looking in 10 years?
        Response: Lack of action at the congressional level will result in
    states like Pennsylvania, Virginia and Michigan continuing to bear the
    burden of receiving an excessive amount of waste from other states. One
    needs only to look at the history of waste movement over the past 15
    years to see that as long as there is inaction from the Congress, this
    situation will continue. A lack of planning by those states that depend
    on exporting as a means of managing municipal waste will result in a
    steady increase in disposal costs because facilities will continue to
    be constructed where they can receive permits and not where the waste
    is generated. We also expect eroding support for recycling and waste
    reduction efforts. If Congress does not act, the current situation of
    some states planning for their waste generation and other states
    ignoring their responsibility to do so will continue.
        Question 9) Your testimony reflects a strong inclination towards
    actual recycling. In terms of effective waste disposal and
    environmental protection, will more comprehensive solid waste recycling
    and disposal be better served under the status quo or under these
    bills?
        Response: We believe that any efforts to reduce the amount of waste
    generated and increase the amount of waste recycled are worthy efforts.
    We believe that this legislation will assist some states in moving
    toward more comprehensive recycling programs that could result in a
    reduction in the amount of waste exported. We believe waste reduction
    and recycling are essential elements in establishing environmentally
    sustainable practices. We also would welcome a comprehensive, national
    product stewardship and packaging reduction initiative.
        Question 10) Do you believe that these bills, if enacted into law,
    would raise the cost of recycling and disposal of municipal solid
    waste? Do you believe their passage would result in environmental
    improvements in the way these wastes are managed and disposed of?
        Response: In regards to H.R. 1730, the cost of waste disposal and
    recycling should not rise for the citizens of Pennsylvania. We cannot
    address changes that might occur in other states. Reducing the
    transportation distance associated with municipal waste most certainly
    will result in environmental improvements and lower costs to consumers.
    Clearly the reductions in truck traffic, mobile source emissions and
    need for disposal capacity, as well as the preservation of the
    Commonwealth's natural resources, are environmental improvements that
    we all desire.
        Question 11) What do you think is the appropriate level of
    government to have in the decision making process for citing waste
    disposal facilities and which level of government is best suited for
    which decisions and why?
        Response: We believe that the State should have the responsibility
    for planning, making permit decisions and issuing permits for waste
    disposal facilities. While we do not actually site waste disposal
    facilities, we are required to review applications submitted for these
    facilities. We believe that the state should be the ultimate planning
    and permit decision maker because the outcomes and implications of
    these decisions inevitably affect a multitude of local governments.
    However, this must be done in a comprehensive manner that identifies
    and addresses local government concerns and issues. As we have noted
    previously, the decision to construct new facilities or export waste to
    other states is a decision that is made by the waste industry and not
    the state government.
        Question 12) Proposed new section 4011 (a) of HR 1730 imposes an
    immediate Federal ban on receipt of all out-of-state waste (including
    waste from foreign sources) unless it is received pursuant to a host
    community agreement or other exemption. A landfill or incinerator with
    a host agreement will be exempt from the ban only if it had permitted
    capacity at the time of entering into the agreement to receive all of
    the out-of-state waste authorized by the agreement.
        Response: Based on your knowledge of permits issued by DEP to
    landfills in Pennsylvania, do you know of any landfill that had been
    granted a permit to receive waste during the life of its host agreement
    when it entered into the agreement? Isn't the normal process one in
    which the landfill owner negotiates an agreement well before starting
    actual construction of the landfill, and seeks permits for that initial
    cell and then additional cells as each is approaching capacity?
        We are not aware of any permit conditions that address this issue.
    Host municipal agreements can be negotiated at any time and are
    commonly negotiated when the applicant or operator plans to submit a
    new permit application or a modification to expand an existing
    facility. In the early 1990's, there were several landfills that had
    host agreements, however, the Department had no knowledge of the
    conditions in those agreements. When the Department reviewed the permit
    applications for these landfills, the agreements were not presented to
    the Department.
        Question 13) Proposed new subsection (f) of H.R. 1730 would allow a
    state or local government to freeze the amount of waste that may be
    received by facilities that are not exempt from the ban. The freeze
    level would be the amount of waste received from out-of-state during
    1993 or another base year selected by the state. But the owner or
    operator of the facility must be able to document the ``identity of the
    generator'' of the waste that was received during that base year. Some
    may consider that to mean that the landfill owner must be able to
    identify the actual names of the people from whom the waste was
    collected outside Pennsylvania, for example.
        Based on your experience at DEP, is there any way that requirement
    could possibly be satisfied? Is there any way that you at DEP would be
    prepared to review and evaluate the thousands of names that might be
    submitted if it were a requirement?
        Response: We do not believe there is a method to identify
    individuals who send waste to facilities in the Commonwealth short of
    reviewing private industry's customer lists. The data we collect and
    manage only allows us to identify the Pennsylvania county or the state
    in which the waste originated. Facilities can easily identify each
    truck that has deposited waste and where the waste was collected.
    However, if the waste comes from a transfer facility, there is no means
    to identify the individual that sent waste to that facility.
                                     ______

           Yale Center for Environmental Law and Policy
                                         New Haven, Connecticut
                                                         August 8, 2003
    The Honorable Paul E. Gillmor
    Chairman
    Subcommittee on Environment and Hazardous Materials
    The Committee on Energy and Commerce
    U.S. House of Representatives
    Washington, DC 20515-6115
        Dear Mr. Chairman: I write in response to your August 5, 2003
    letter inviting me to respond to questions related to my testimony on
    July 23, 2003 concerning H.R. 1730, H.R. 382, and H.R. 411. My answers
    to the questions are as follows:
        Question 1. What do you see as the problems with a regulatory
    structure that would give states a ``blank check'' on regulating
    interstate waste, like the proposal in H.R. 382?
        Response. The problem with the ``blank check'' approach to
    regulating interstate and international waste is that it invites a
    challenge under international trade rules. Other parties, particularly
    Canada, may view such an approach as a violation of the rules and
    principles of the Global Agreement on Tarriffs and Trade, the North
    American Free Trade Agreement, and perhaps the 1986 US-Canada Agreement
    Concerning the Transboundary Movement of Hazardous Waste. Unless the
    federal government sets guidelines for the states, it appears quite
    likely that states feeling threatened by waste trade (notably Michigan)
    will adopt very strict limitations on international waste flows that
    would likely be seen as a violation of US trade obligations. There
    might even be a challenge before any state has implemented such
    limitations.
        Question 2. Can you go into more detail about the exemptions
    provided in NAFTA and GATT for legitimate environmental policies that
    are carefully constructed?
        Response. GATT Article XX (and the corresponding NAFTA provisions)
    provide a mechanism by which legitimate environmental regulations can
    be upheld even if they conflict with the GATT nondiscrimination rules
    or other trade principles. GATT Article XX(b) allows environmental
    policies ``necessary to protect human, animal, or plant life or
    health'' so long as the measures put into place are ``not applied in a
    manner which would constitute a means of arbitrary or unjustifiable
    discrimination between countries where the same conditions prevail or
    disguise restriction on international trade.'' Under this provision,
    carefully crafted environmental regulations, including narrowly
    tailored controls on waste flows, would be considered an acceptable
    deviation from trade obligations. In a recent decision by the appellate
    body of the WTO, a French ban on imports of asbestos was upheld under
    this exception.
        GATT Article XX(g) permits countries to take actions ``relating to
    the conservation of exhaustible natural resources if such measures are
    made effective in conjunction with the restrictions on domestic
    production or consumption.'' The GATT jurisprudence has made clear that
    any claim for exemption from trade obligations under this provision
    must be ``primarily aimed'' at addressing a conservation goal and
    invoked in conjunction with comparable domestic restraints. Again,
    carefully constructed waste policies could be deemed legitimate under
    this provision.
        Question 3. Following from the previous question, what, in your
    opinion, are grounds for enacting such a policy for legitimate
    environmental concerns, and how would the member countries enact a
    provision that would have the least disruptive effect on trade?
        Response. Controls on waste flows and disposal would be considered
    appropriate if they were undertaken in a way that did not discriminate
    against interstate or international waste shipments but rather were
    adopted in conjunction with an overarching plan for waste management
    that included limitations on intra-state waste.
        Question 4. Can you explain in more detail the French ban on
    imports of asbestos under Article XX(b) of the GATT that was recently
    upheld by the appellate body of the WTO? Do you think H.R. 411 would be
    subject to the same scrutiny and if so would it be upheld by the WTO?
        Response. The French asbestos ban was upheld under GATT Article
    XX(b) because the French were able to make a clear case that their
    regulation on asbestos was an appropriate response to the health threat
    presented by asbestos. The ban moreover came in the context of a
    compete ban on asbestos in the country, not just imported asbestos.
    Because the French regulation was so broad--prohibiting all imports of
    asbestos from Canada--it was subject to very strict scrutiny by the
    GATT dispute settlement panel and ultimately the GATT appellate body.
    H.R. 411 would likely be subject to less strict scrutiny and might well
    not even be challenged by the Canadians insofar as it simply seeks to
    implement the existing waste trade framework spelled out under the US-
    Canada Waste Trade Agreement of 1986.
        Question 5. If ``comparable domestic restraints'' are not enacted
    in Canada to address the similar conservation goal that H.R. 411 is
    seeking to address, could the bill then be interpreted as having a
    disruptive effect on trade?
        Response. The issue of ``comparable domestic restraints'' concerns
    the policies adopted by the United States regarding interstate and
    intra-state waste. In this regard, H.R. 411 seeks only to ensure that
    existing commitments on waste handling are upheld. I see little chance
    that this bill=s requirements would be seen as disruptive to trade
    unless US authorities began to implement the legislation in ways that
    seemed to represent an extreme or unexpected interpretation of the
    prior agreements and commitments.
        Question 6. Explain in more detail the relationship between NAFTA
    and 1986 US-Canadian Agreement Concerning the Transboundary Movement of
    Hazardous Waste. How does H.R. 411 strengthen the enforcement of this
    agreement?
        Response. Under the terms of the NAFTA, the 1986 US-Canada
    Agreement Concerning the Transboundary Movement of Hazardous Waste
    prevails over the NAFTA if there is any inconsistency identified. Thus,
    H.R. 411's commitment to strengthening the enforcement of this prior
    agreement is likely to be seen as shielded to some degree from a NAFTA
    challenge. Moreover, H.R. 411, on its face, does nothing more than seek
    to ensure that the 1986 agreement, as amended in 1992 to include
    municipal solid waste, is upheld.
        Question 7. In your legal opinion, and in a one-word answer, is
    H.R. 382 a direct violation of the terms of the North American Free
    Trade Agreement (NAFTA)?
        Response. Possibly.
        Question 8. In your legal opinion, and in a one-word answer, does
    H.R. 382 require states to enact an import ban?
        Response. No.
        Question 9. Should H.R. 382 be signed into law, and Canada issues a
    challenge to that legislation claiming a violation of NAFTA, would the
    legislation be prevented from being implemented during the dispute
    settlement process? During the dispute settlement process concerning
    H.R. 382, would Michigan be prevented from taking the legislative
    action authorized to them?
        Response. It is quite possible that a legal challenge by Canada to
    state provisions adopted under the authority provided by H.R. 382 would
    include an attempt to block any state action until the trade dispute
    was settled. As a result, it is quite possible, indeed likely, that the
    attempt to regulate waste trade would be thrown into turmoil and
    delayed.
        Question 10. Should H.R 382 be signed into law, the State of
    Michigan enacted a law banning the import of municipal solid waste from
    Canada, and the Government of Canada challenged the Michigan law as a
    violation of NAFTA, would shipments of municipal solid waste from
    Canada to Michigan remain prohibited during the dispute settlement
    process to the prospective Michigan legislation?
        Response. It is quite likely that Canada would seek to stay any
    prohibition on shipments of municipal solid waste from Canada to
    Michigan during the course of a GATT dispute settlement process
    triggered by the adoption by the state of Michigan of a law banning the
    import of municipal solid waste from Canada.
        Question 11. In your legal opinion, if the following language were
    added to H.R. 382, Sub-Section B, would a challenge to H.R. 382 as a
    violation of NAFTA have any merit?
        Response. ``Nothing in this law shall be taken to authorize any act
    of a state government or legislature contrary to the international
    obligations of the United States, including those in the North American
    Free Trade Agreement.''
        The relevant factor here is not what the language of H.R. 382
    provides but rather what the state of Michigan does in response to the
    authority given to it. Based on the testimony presented by Michigan
    officials at the July 23 hearing, it seems quite likely that Michigan
    would seek to adopt sweeping restrictions on waste imports from Canada.
    It might well argue that such restrictions, perhaps including a total
    ban on Canadian waste shipments, was somehow permitted by the GATT
    Article XX exceptions. But any such sweeping regulation would certainly
    be challenged by the Canadian government. Such a challenge would have
    merit and would be likely to prevail.
        I would pleased to supplement any of the answers that I have
    provided in this letter if any of the members of the committee so
    desire.
                Sincerely,
                                                         Daniel C. Esty
                                     ______

                                         Ecology Center
                                                  Ann Arbor, MI
                                                        August 18, 2003
    Paul E. Gillmor
    Chairman
    Subcommittee on Environment & Hazardous Materials
    U.S. House of Representatives
    Washington, DC 20515

    Re: Subcommittee questions on interstate and international
    transportation of solid waste

    By Fax and Email Transmission to Jill Latham, 202-226-2447
        Dear Chairman Gillmor, thank you for the opportunity to elaborate
    on my testimony of July 23, 2003, and to respond to the Members'
    questions in writing.
        Question 1.Mr. Garfield, could you please detail for us what your
    exact background is within the waste management policy and recycling
    issues? How much of that was advocacy versus actual ``on-the-ground''
    activity?
        From 1987 to 1991, I served as the Policy Director of the Ecology
    Center. During this period, solid waste management was the
    organization's top priority issue, and more than half of my time was
    assigned to these matters. I served on the Michigan House Legislative
    Workgroup on Packaging and Waste Reduction, on the City of Ann Arbor's
    Solid Waste Commission, on other local and state solid waste
    committees, and as the Chair of a business/environmental coalition for
    expanded recycling. These activities were all related to policy
    development and advocacy.
        From 1992 to 1993, I served as the Executive Director of Recycle
    Ann Arbor (RAA). RAA is a wholly-owned nonprofit subsidiary of the
    Ecology Center, which is also a nonprofit organization. In this
    position, I managed a workforce of 40 employees who provide recycling
    and waste reduction services in southeast Michigan. The organization
    then provided curbside recycling collection services for approximately
    45,000 households, commercial collection services for nearly 1,000
    businesses, a recycling drop-off station for 50,000 customers per year,
    roll-off container services for rural communities, materials processing
    and marketing, and other services. The organization has since added
    additional programs, including a ReUse Center, an electronic waste
    drop-off program, commercial waste audits, and site-based processing
    for businesses. As Executive Director, I had direct day-to-day
    managerial responsibility for all of RAA's programs and financial
    performance. During my tenure there, I increased the company's annual
    revenues by approximately 20%, decreased expenses by 12%, and increased
    the total amount of materials collected and recycled.
        I would hasten to add that the position afforded me a deep and
    lasting appreciation of the complexities and pressures of managing a
    small business. It grounded my perspective regarding waste management
    policy in the ``on-the-ground'' realities of providing customer
    service.
        Since 1994, I have served as the Director of the Ecology Center. As
    the chief executive officer of RAA's parent organization, I bear
    ultimate, though not day-to-day, responsibility for the subsidiary
    organization's financial and programmatic performance, as well as its
    long-term strategic direction and introduction of new services. By
    virtue of my position, I hold a seat on the subsidiary's Board of
    Directors, and served as Board Chair for two years. As a result, I have
    continued to play a role in direct ``on-the-ground'' program
    management, and have resumed my work on policy development and advocacy
    efforts related to solid waste management, at both the local and state
    level. Of these efforts, I would specifically mention serving, between
    1997 and 2003, as a member of Washtenaw County's Solid Waste Planning
    Committee, and as a participant in two Washtenaw County committees
    related to the implementation of the County's solid waste plan.
        Question 2. Your testimony starts right out by saying that the
    issue of imported solid disposal is not an emotional NIMBY (not in my
    back yard) issue. Has it ever been and why is it not now?
        Many Michigan residents have been outraged for many years by the
    large volume of imported trash coming into our state. Some communities
    are heavily impacted by the truck traffic and fear the potential
    consequences of burying huge amounts of trash in a single concentrated
    area. Some communities have suffered contamination of their drinking
    water from pollution at nearby landfills. These people and these
    communities certainly are emotional about their trash problems, and
    they certainly don't want landfills and incinerators in their back
    yards.
        I think that waste transport is a NIABY issue--Not In Anybody's
    Back Yard. No state or region should suffer more than its fair share of
    waste disposal facilities, that is, the facilities needed to dispose of
    that area's garbage. We would like to create a policy framework that
    gives states and communities the tools to balance an obligation to
    dispose of its own trash with their reasonable desire to avoid excess
    disposal facilities. And, as much as possible, we would like to reduce
    the amount of waste being landfilled and incinerated.
        We recognize that an outright ban on waste imports will not solve
    our problem because the amount of waste that is hauled across borders
    is merely a symptom of more fundamental problems--of inadequate solid
    waste planning tools, insufficient waste reduction programs, and severe
    state-by-state imbalances in landfill capacity.
        Question 3. Obviously, from your testimony, we have heard how
    concerned you are about future landfill capacity and the impact of
    current and future imports. How do you feel about states enacting some
    sort of serious limitations or ban? Why?
        I believe that states should have the authority to enact
    limitations on waste imports to accomplish either of two objectives.
        First, states should be able to restrict waste imports for the
    purpose of protecting their residents' health and welfare. I believe
    that the U.S. Supreme Court's ruling in the Ft. Gratiot case already
    allows this sort of state regulation. However, it would be useful for
    Congress to reaffirm state authority to protect health and welfare in
    federal waste transport legislation.
        In particular, Congress should codify two approaches to health and
    welfare protection. Some states ban the disposal of certain toxic
    materials in municipal solid waste disposal facilities. For example,
    Michigan bans the disposal of used motor oil, lead-acid batteries, yard
    waste, tires, and other problematic materials, and has outstanding
    recovery programs for these items. Other states, however, do not ban
    these materials. On the other hand, several states have banned disposal
    of CRT monitors and other electronic wastes, while Michigan has not.
    States should have the right to determine what materials should be
    banned from their landfills and incinerators, but interstate waste
    transport makes it impossible to enforce a ban, and undermines its
    purpose. Household quantities of illegal waste, such as used motor oil,
    are impossible to detect in a semi-trailer truck filled with garbage.
    In Michigan, the burden falls on the landfill owner to refuse illegal
    waste, and most operators have monitors to detect radioactive waste.
    But most illegal waste can only be detected by sight, and landfill
    owners suffer an impossible burden to identify all illegal materials
    sent to their facilities. It would be more reasonable for states to ban
    waste imports from states (or provinces) that do not prohibit disposal
    of items prohibited from the receiving state's disposal facilities. If
    the exporting states adopt the receiving state's standards, then they
    would have access to the receiving state's facilities.
        States should also be able to ban waste imports from states that
    don't adopt the receiving state's other disposal bans. For example,
    Michigan is considering an outright disposal ban on beverage containers
    that are covered by the state's container deposit law. That law has
    achieved a near-100% recovery rate, and virtually no covered Michigan
    beverage containers wind up in Michigan landfills and incinerators. But
    Ontario, and most of our neighboring states, do not have a container
    deposit program, and--as a result--much of our landfill space is filled
    with out-of-state containers. If Michigan created an outright disposal
    ban on beverage containers, it should be able to refuse waste from
    states that don't do so, as well.
        Second, states should be able to restrict waste imports for the
    purpose of limiting the number and size of landfills and incinerators
    that need to be developed in their states. As I stated in my written
    testimony, the current system unfairly penalizes states like Michigan
    which responsibly allowed disposal facilities to be sited in their
    states, to be used for Michigan garbage, and which have since been used
    for the trash of many states and Ontario.
        By giving states the power to restrict waste imports, states could
    negotiate cross-border access to each other's landfills and
    incinerators. We have no objection to waste exports, if the importing
    state, exporting state, and the local receiving communities all approve
    the transaction. Under a system like this, I'd suggest that there would
    continue to be some cross-border waste transport, but the massive
    outflows of waste to states like Michigan, Pennsylvania, Virginia, and
    others would be slowed. If H.R. 1730 were enacted, a system of
    negotiated cross-border access is likely to emerge.
        Question 4. I realize you do not claim to be a legal expert, but
    from your extensive background and expertise in this area, could you
    please tell us if you think H.R. 411, if enacted, would face immediate
    legal challenge?
        I don't think HR 411 would invite an immediate legal challenge,
    since it merely calls for the implementation of a treaty already in
    effect. I would suggest, however, that one of the waste industry trade
    associations could provide a better-informed opinion about this.
        Question 5. Do you think the subsidies given to Canadian waste
    haulers to export waste are anti-competitive and distort the market in
    such a way that they discriminate against Canadians handling own waste?
        Yes.
        Canada's 7% Goods and Services Tax (GST) would add approximately
    $14 million to the City of Toronto's $200+ million contract with
    Republic Services to use its landfill in Sumpter Township, Michigan.
    The Canadian government charges its GST tax on waste disposal in
    Canada, but does not charge it on Canadian waste disposed in the United
    States. This has the effect of further lowering the price of exported
    waste disposal relative to Canadian waste disposal at home.
        In reality, Canada's differential tax is an anti-competitive way of
    protecting Canada's landfill airspace. It distorts the market and
    discriminates against the use of Canadian landfills.
        Before 1994, the State of Oregon imposed a $2.25 per ton surcharge
    on the disposal of solid waste generated in other states, but only an
    $0.85 per ton surcharge on waste generated in Oregon. The state argued
    that the higher surcharge was a ``compensatory fee'' to offset disposal
    costs incurred by state and local government. In Oregon Waste Systems v
    DEQ, 511 U.S. 93 (1994), the U.S. Supreme Court held that this
    differential surcharge was a violation of the Interstate Commerce
    Clause. Why should Canada's differential fee be permissible when
    Oregon's was not?
        Question 6. What lessons have Michigan and its residents learned
    over the years about solid waste management that are important for the
    rest of the country to understand?
        I would point to four things from Michigan that have national
    significance.
        First, as I mentioned above, the regionalization of solid waste
    disposal has penalized states that planned adequate disposal capacity
    for their own waste. Please see my answer to Question #3 and my written
    testimony about that point.
        Second, Michigan's beverage container deposit law has been
    extremely successful in curbing litter and recycling materials in a
    cost-effective way. Approved by the state's voters in 1976, the
    Michigan Department of Transportation found that the law reduced
    highway litter by 80%, and other researchers have found comparable
    litter reductions along the state's beautiful Great Lakes beaches. The
    Michigan Department of Treasury has recorded annual redemption rate
    which fluctuate between 95% and 99%. Even using the lower figure,
    however, this program is the most successful recycling program in the
    state. The state's recovery rate is significantly higher than other
    states which have bottle bill laws, and our success is undoubtedly due
    to the fact that Michigan is the only state which uses a 10-cent
    deposit, as opposed to the more common 5-cent deposit. It is also
    instructive to note that our recovery rate is dramatically higher than
    states which don't have container deposit laws. According to the
    Container Recycling Institute, the non-deposit states only have an
    average 28% recovery rate of beverage containers. Given Michigan's
    success with this program, I would encourage the implementation of a
    national 10-cent container deposit law.
        Third, Michigan communities have learned that curbside recycling
    programs are effective when serious investments are made through strong
    public-private partnerships. Several of our state's communities have
    created local curbside collection programs with high participation
    rates, high recovery rates, and low total costs. These programs exist
    in urban areas, suburban areas, university towns, and rural
    communities. I am most familiar with the program in the City of Ann
    Arbor, which is centered around a publicly-owned and privately operated
    materials recovery facility, long-term contracts with scrap markets,
    and a contracted private sector hauler. While communities are now being
    charged the very low price of $10-$15 per ton to dump trash at Michigan
    landfills, the Ann Arbor area processes recyclables at approximately
    zero net cost. Other successful Michigan recycling programs are also
    beating the prevailing landfill tipping fees, as are many programs in
    other states.
        Finally, some Michigan communities have over-invested in municipal
    waste incineration technology. The state has four trash incinerators
    including the country's largest incinerator inside the city of Detroit.
    These facilities were originally built and promoted as saving landfill
    space by burning the trash and then burying the resulting ash.
    Unfortunately, these facilities have been significant failures. Two of
    the four are in imminent financial trouble; all of them are
    significantly more expensive for their communities to use than
    landfills and recycling. The debt associated with the construction and
    refurbishing of the two facilities in Wayne County have created
    significant problems for the respective responsible parties.
        Question 7. If you were king for one day, what type of solid waste
    management system would you establish for your state and country and
    why?
        If I were king for one day, I would immediately restore democracy
    to my beloved country.
        But if I could design the United States' and Michigan's solid waste
    management systems, I would base them on the following principles.
    Responsibility and Control of Waste Disposal at the Local/State Level
        As I discussed above in my answer to Question #3, states and local
    communities should bear the responsibility to dispose of their own
    trash. Their disposal destination need not also be local, but all
    states and local communities should have the control over access to
    disposal facilities in their jurisdictions. By pairing responsibility
    and control, states and communities would be able to negotiate access
    to disposal facilities, thereby creating a sufficient, but not
    excessive, amount of disposal capacity in a given location, with the
    accompanying burden those facilities bear.
    Balanced Economic Playing Field Between Landfills and Recycling
        At present, recyclable materials compete directly with virgin
    materials, such as timber, oil and mineral resources, on an uneven
    playing field. 15 federal tax subsidies for virgin materials cost
    approximately $2.6 billion a year, according to the Grassroots
    Recycling Network. Resource-efficient recycling and reuse businesses,
    which tend to be smaller, community-based and run by entrepreneurs,
    struggle against subsidized competitors. I would suggest that these
    subsidies be phased out, in order to create a more level playing field
    on which recycling can compete. It conserves resources and saves
    taxpayer dollars at the same time.
    Producer Responsibility for Materials Recovery
        Currently, the financial burden for waste disposal is borne by
    taxpayers in their local communities. We believe that it would be more
    efficient, less expensive, and better for the environment if producers
    and consumers were financially responsible instead of taxpayers. This
    has been done in other countries and in small segments of the U.S.
    economy through ``producer responsibility'' initiatives. (The
    producers, of course, pass on any extra costs to their consumers.)
    Shifting the costs of waste from taxpayers to brand owners and
    producers creates a powerful economic incentive to design waste out of
    the system and substantially reduce the use of toxic materials.
        The producer responsibility concept has been embraced in the
    container deposit laws of ten states, including Michigan, whose program
    I described above. It has been applied in a recently enacted law in the
    State of Maine to recover mercury switches from automobiles. It has
    been proposed to handle other problematic materials, such as electronic
    wastes. We would suggest that the principle be applied to a wide range
    of materials.
    Maximization of Recycling and Composting
        Finally, if producers were responsible for the financial burden of
    recovering materials, then consumers must be responsible for ensuring
    that used products are returned to recovery systems. Many researchers
    have documented the most effective ways to design high-recovery
    recycling programs. They require user convenience, market incentives,
    good promotion, and smart design. Federal policy can help build the
    infrastructure for these programs by creating an even playing field for
    recyclable markets. The large federal procurement budget can also be
    used to build recycling markets by providing price preferences for
    recycled materials. Composting is also an underused material recovery
    method that has been found to be cost-effective in several communities.
    I would propose that these programs be fully implemented nationwide,
    and be expanded beyond yard clippings to include other organic
    materials.
        Thank you again for the opportunity to elaborate on my previous
    testimony.
                Sincerely,
                                               Michael Garfield
                                                               Director
                                     ______

              Responses for the Record from Professor Robert Howse
        Question: 1.) Can you explain in more detail your argument that HR
    382 does not mandate any kind of regulatory scheme that is in violation
    of NAFTA and why it is arguable that the transboundary movement of
    waste is even covered by NAFTA at all?
        Response: This question has two parts. The first part asks for more
    detail on the argument that HR 382 does not mandate any kind of
    regulatory scheme that is in violation of NAFTA. This is the easy part
    to answer: the answer is that HR 382 does not mandate any regulatory
    scheme at all. It does not require the states, or indeed any one else
    to take action that could engage the rules in NAFTA. I think this is
    fairly obvious from the operative parts of the draft bill. I could
    perhaps be even clearer about this if concerned Members of the
    Committee were to identify some specific provision or language that
    they are concerned about. I would then be happy to focus my analysis on
    that particular provision of the draft bill. In questioning at the
    hearing, some Members of the Committee expressed concern that even if,
    technically, HR 382 does not purport to mandate state action, it could
    well authorize state action, which could include actions in violation
    of the United States' obligations under NAFTA. In this regard, one does
    have to take into account the policy context--which Members are better
    equipped to appreciate than a trade expert such as myself; for some
    Members the context is that Michigan's state legislature has apparently
    already expressed the will to ban completely the import of Canadian
    trash, once legislation such as HR 382 allows it do so consistent with
    the Commerce Clause in the US constitution. From this perspective, it
    might seem abstract or even somewhat disingenuous to separate the
    effects of HR 382 itself from those of the particular state action with
    which it is deeply intertwined. However, such is the approach in the
    case law of international trade: legislation that merely authorizes an
    act that is a potential violation of a trade obligation does not
    constitute a violation of such an obligation; it is the subsequent act
    that becomes the focus of the trade dispute, not the authorizing
    legislation. Both Professor Esty and I in our testimony to the
    Committee were in agreement that this is what the case law states, with
    one exception, the WTO panel decision in the S. 301 dispute. In that
    case, a WTO panel speculated that there could be instances where
    legislation that merely authorizes, and does not categorically mandate,
    a violation of trade obligations could itself constitute a violation.
    However, those speculations are strictly speaking obiter dicta, for in
    the end, the panel in that same case found that S. 301 did not
    constitute a violation of US trade obligations. This is a trial
    judgment that was not appealed to the Appellate Body of the WTO. In
    subsequent cases, the Appellate Body of the WTO has largely ignored the
    remarks of the panel in the S. 301 decision, and, consistent with the
    case law prior to S. 301, has approached the issue of whether
    legislation per se violates trade obligations by analyzing whether it
    mandates a violation or merely authorizes. In the US Anti-Dumping Act
    of 1916 case, for instance, the Appellate Body clearly upheld the
    decision of the panel below to analyze the consistency of US
    legislation with trade obligations in terms of whether the legislation
    itself mandated a violation of trade rules (as opposed to merely
    conferring a discretion that might be used in such a way as to give
    rise to a violation).
        I understand that this mandatory/discretionary distinction might
    strike some Members of the Committee as rather formalistic, and not
    fully attuned to political realities. But it should always be born in
    mind that considerations of the sensibilities involved in judgments on
    the acts of sovereign governments generally lead international
    tribunals to exercise caution, and adopt a conservative and circumspect
    approach in deciding to find that a sovereign has violated its
    international obligations. In international law, there is a general
    presumption of good faith; unless there is clear evidence to the
    contrary, sovereigns are assumed to be law-abiding. The understandable
    reactions of governments, and legislatures, where international
    tribunals appear to have overreached or overstepped, demonstrates the
    soundness of a prudent approach to the question of when I violation of
    treaty obligations has occurred.
        The second part of the question concerns the notion that movement
    of waste is not covered by NAFTA at all. I believe that the issue of
    whether actions that impair the movement of waste are covered by NAFTA
    has to be examined on the basis of the individual provisions of NAFTA.
    In my written testimony you will find for example a scenario where a
    restriction on movement of waste would indeed engage a NAFTA
    obligation: suppose a state decides to ban all waste imports from
    Canada unless they are trucked by in-state truckers. That would
    arguably be a violation of the NAFTA with respect to trade in services;
    in this case there would be discrimination against Canadian trucking
    concerns. Where I argue that trans-boundary movement of waste is not
    covered by NAFTA at all is only in respect of the obligations in NAFTA
    concerning trade in goods. Which will be dealt with further in
    answering question 3.
        Question: 2.) If Congress were to act on HR 382, how do you suggest
    the states use the open-ended regulatory guidance and Congressional
    authority to regulate the flow of waste without setting the stage for
    the balkanization of some of the regional waste management plans that
    have been in place for years?
        Response: This strikes me as a very important issue of public
    policy. However, my own knowledge and expertise does not permit me to
    address it.
        Question: 3.) Can you further explain your statement that NAFTA
    disciplines commercial protectionism, and why the transport of waste
    does not fit into this scheme?
        Response: Here one needs to distinguish two aspects of the issue.
    The first is whether there is an entitlement of one NAFTA party to deal
    with its environmental situation by exporting waste, or pollution, to
    another NAFTA party. Here, I believe the answer is: ``No'', and that
    leads to question 4, in response to which I shall explain in detail why
    the answer is ``No.'' The second aspect is whether NAFTA applies to
    trans-boundary trade in waste management services and related
    investment guarantees, i.e. to competition in the business of waste
    management. And there the answer is: ``Yes'' (see the scenario I put
    forth in answer to question 1 above). However, the obligations in NAFTA
    that deal with trade in services, including waste management services,
    apply only to situations where the services are provided by the other
    NAFTA party. Let's say that Congress were to pass a law that prohibited
    US entities under federal jurisdiction from exporting their waste from
    the US to Canada, in other words from purchasing waste management
    services from Canadians. That bill might well run afoul of NAFTA trade
    in services provisions because it would restrict the ability of another
    NAFTA party, i.e. Canada, to sell those services to Americans. But what
    the Committee is dealing with now is quite different situation: the
    problem is one of restricting the export of waste management services
    to Canada. Because the NAFTA trade in services obligations apply only
    to cases where another NAFTA party is providing the service to one's
    own nationals, this case is not covered by those obligations.
        Question: 4.) On the other hand, in your testimony, you rather
    quickly presume that waste is not considered a traded ``good'' within
    the meaning of NAFTA. In light of this understanding, how do you
    compare it then with the Supreme Court's decisions in Philadelphia v.
    New Jersey and its progeny classifying waste as commerce, much like
    many of the ``goods'' and ``services'' you discuss in your testimony,
    and therefore placing it under Commerce Clause scrutiny that no undue
    burden be placed on the interstate transport of it?
        Response: The Commerce Clause in the US constitution does not
    distinguish between trade in goods and trade in services: the framework
    of obligations is therefore structured differently than in NAFTA. I
    think it should be clear by now that I believe some aspects of commerce
    in waste are in principle protected by NAFTA ; the question under NAFTA
    is which aspects, and that depends on the individual provisions of
    NAFTA. It is certainly understandable that the US Supreme Court should
    have considered that commerce in waste is protected by the dormant
    commerce clause; it would even be understandable if in a federal union,
    with a national government capable of allocating benefits and burdens
    of commerce fairly through legislation applicable throughout the union,
    the ability of each state to say ``Not in my back yard'' would be more
    constrained than among sovereign states, where allocating benefits and
    burdens fairly across national jurisdictions would require
    international treaty negotiations, the difficulty of which is
    exemplified, for instance, by the Kyoto Protocol. The baseline
    assumptions of international law are that no state need unilaterally
    shoulder any of the burden for the environmental problems of another;
    and each state must be responsible and liable for harm caused by
    exporting its environmental problems to another state. Those
    assumptions might be unworkable in a federal union of sister states.
    But barring federal government at the international level, they are the
    appropriate ones for the international setting.
        There are two main obligations on trade in goods in the NAFTA that
    are thought by some to be engaged by possible restrictions on the
    export of waste from Canada to the US. These obligations are
    essentially incorporated into NAFTA from the GATT/WTO multilateral
    trade regime. First of all, there is national treatment of ``like''
    products. This is the obligation not to discriminate against a good
    imported from another NAFTA member, in favour of the like domestic
    product.Clearly, this whole conception of National Treatment is based
    upon the idea that the imported product is competing with some ``like''
    domestic product. So if you look at all of the case law on National
    Treatment, you will see that the first thing that has to be established
    is that there is some like domestic product in competition with the
    imported product. If there is no such ``like'' domestic product, the
    National Treatment claim fails then and there. Now there is no
    competition between the imported Canadian garbage and US garbage. We
    are simply not dealing with the consumer market that is assumed by the
    concept of National Treatment. So, with all due respect, I have not
    ``quickly presumed'' that the trade in goods provisions of NAFTA do not
    apply to waste; quite the contrary, it is those who think NAFTA would
    be violated, who may be making a presumption that these obligations
    would apply, without first carefully analysing the precise nature of
    the specific obligations and the legal tests and concepts that deploy.
        Now let us consider the other possibly relevant NAFTA trade in
    goods obligation, Article 309, which makes it a violation to prohibit
    or restrict the import or export of any ``good''. Is trash a ``good''
    within the meaning of Article 309? In my view the answer is supplied by
    considering the heading of the Chapter of NAFTA in which the trade in
    goods obligations are contained: ``CHAPTER THREE: NATIONAL TREATMENT
    AND MARKET ACCESS FOR GOODS''. (emphasis added) In other words, the
    obligations in Chapter III are of two kinds: first of all, an
    obligation of National Treatment or non-discrimination that applies to
    internal rules that govern the goods once they have entered the
    domestic marketplace (and as I have just explained the trash from
    Canada isn't coming to the US to be put on the domestic US
    marketplace), and additional obligations, that related to whether the
    imported good gets on the domestic marketplace in the first instance,
    such as tariffs and the quantitative restrictions, disciplined by
    Article 309. In other words, Article 309 covers restrictions on imports
    and exports that prevent market access. And this brings us back to the
    incontrovertible fact that the trash in question is not being brought
    in to enter the US domestic market, i.e. as a good to be sold to US
    consumers.
        Moreover, and given the press of time, I regret not having had the
    opportunity to speak to the Committee about this during questioning
    before it, the Canada-US Waste Treaty provides powerful confirmation of
    my point of view. When the original Canada US Waste Treaty was created,
    in 1987, the GATT obligations incorporated into NAFTA 309, as well as
    the National Treatment obligations also incorporated into NAFTA Chapter
    III on trade in goods, had already existed in the GATT for 40 years.
    But if you look at the Canada-US Waste Treaty, you will find those
    obligations no where mentioned! There is not even a reference to the
    GATT provisions in question as a governing framework for movement of
    waste in the Preamble of that Treaty. This despite the fact that the
    Preamble refers to and and recognizes the relevance of a whole series
    of other international legal instruments, of an environmental nature.
    So far from suggesting that international law requires that trash from
    one party to the treaty be allowed into the territory of the other
    part, the Preamble states that the parties affirm'' in accordance with
    the Charter of the United Nations and the principles of international
    law, the sovereign right to exploit their own resources pursuant to
    their own environmental policies and the responsibility to ensure that
    activities within their jurisdiction or control do not cause damage to
    the environment of other states or of areas beyond the limits of
    national jurisdiction''. Then when you turn to the operative
    provisions, you see that Article 2, as amended, states: ``To permit the
    export, import, and transit of hazardous waste and other waste across
    the Canada-United States border for treatment, storage, or disposal
    pursuant to the terms of Canadian or American laws, regulations and
    administrative practices, and the provisions of the Agreement [art. 2
    as amended in 1992].'' (emphasis added) In other words, the Treaty
    states that permissibility of the trans-boundary movement of waste is
    subject to domestic laws and regulations of each country, and says
    nothing about GATT. If we think back to 1992, that was around the time
    that NAFTA was being negotiated, and it seems to me that the absence of
    any mention of trade rules on goods in the Treaty is pretty strong
    evidence that when those obligations were being incorporated into the
    drafting of NAFTA, the background assumption was that they would not
    apply to garbage. I should further add that the obligations in question
    were already incorporated in the NAFTA's predecessor, the Canada-US
    Free Trade Agreement, and the Canada-US Free Trade Agreement is also
    not mentioned at all as a relevant international instrument in the
    Canada-US Waste Treaty as amended 1992.
        Question: 5.) The type of limitations imposed on interstate waste
    in HR 382, which you support, gives the states almost a ``blank check''
    to impose restrictions on the international shipment of waste, without
    setting any preconditions on the use of that authority. If applied to
    the interstate shipment of waste, how then can we be certain that
    states might not impose extreme measures that might result in the
    balkanization of what is increasingly a multi-state regional system of
    waste management facilities?
        Response: This question is more appropriately directed to someone
    whose expertise is in American federalism.
        Question: 6.) In your opinion, if foreign waste were to be included
    in the definition of out of state waste, could it not be subjected to
    the same restrictions that states are allowed to impose on waste from
    other states? Would you be in support of a bill that accomplished this
    objective or do you see more regional problems ensuing with
    restrictions being imposed on the interstate shipment of waste?
        Response: This question appears to ask the NAFTA/WTO implications
    of a bill that allowed states to impose on the importation of foreign
    waste the same kinds of restrictions as they are allowed to impose on
    waste from other US states. In the abstract, I don't believe the trade
    law issues would necessarily be different, if that were the approach
    taken to foreign waste; however, I would be pleased to consider in
    detail any particular proposed restriction on out-of-state waste, and
    give a view as to whether that provision would run afoul of
    international trade rules, if it were applied to foreign waste.
        I have one further observation to share with the Committee. During
    the hearing, it was suggested by some that 1) legislation should and
    could be drafted to avoid a NAFTA challenge altogether, not just to
    ensure that the US would be victorious in such a challenge because; 2)
    this is an important objective, because even if the US were eventually
    to win such a NAFTA case, the on-going NAFTA litigation would hamper
    efforts to implement appropriate regulatory action to deal with the
    challenge of trans-border movement of waste.
        On 1), I do not think this is a realistic goal. My experience is
    that governments take cases to international trade litigation for a
    number of reasons, including in response to pressures from domestic
    interest groups; even if the government thinks the legal case is weak,
    such litigation may be convenient method for taking off the political
    heat, and may be the easier course than explaining to a group that
    feels passionately about an issue that the legal arguments at the
    international level aren't really on its side. I have seen cases taken
    to the WTO that every competent expert believed were ``losers''; but
    the domestic political pressure to do something led to those cases
    being filed. So based on my own knowledge of what happens in
    international trade litigation, and why cases are filed, I think it
    would be naive to think that one could avoid the filing of an
    unmeritorious NAFTA case through, say, hemming in some way or other the
    states' authority to restrict imports of Canadian trash. But the good
    news is that the fact that such a case is pending is unlikely to be
    disruptive to efforts to deal with the problem at the policy level. A
    NAFTA tribunal cannot issue an injunction to keep waste flowing between
    the two countries, or suspend the application of a domestic law. At the
    end of the day, only if Canada were to win on the merits, the US could
    be obligated to change its policies with respect to Canadian waste, and
    would normally be given a reasonable period of time in which to do so.
    There are many outstanding commercial as well as environmental issues
    between Canada and the US, and always scope for trade offs; in the
    extremely unlikely event of such a win for Canada, the United States
    might well exercise some of its negotiating leverage to work out a deal
    that addresses effectively the concerns on both sides of the border
    about this matter.

                                     ______

    Responses for the Record of Jon E. Huenemann, Senior Vice President and
     Group Leader, FG/GPC a Fleishman-Hillard International Communications
                                    Company

        Question: How do you counter the argument that waste is not a
    traded good within the meaning of NAFTA because it is not entering the
    United States as a good offered for sale to consumers on the market;
    rather it is being sent abroad for environmental reasons? Doesn't NAFTA
    focus on goods being traded across the borders of NAFTA member states?
        Answer: Municipal solid waste has, and is, entering the United
    States under contract from a number of countries as a recognized
    commodity within the Harmonized Tariff Schedules of the United States
    (HTSUS). The four digit HTSUS code is 3825, and within that four digit
    code are 8 digit codes further defining the types of waste for
    classification and import tariff purposes. Within those 8 digit codes
    is one for municipal waste, which is ``bound'' under both the GATT/WTO
    and the NAFTA at zero. In other words, the tariff on municipal waste
    was formally the subject of tariff negotiations on goods between the
    U.S. and its trading partners, both under the NAFTA and multilateral
    negotiations now reflected within the agreements under the WTO. There
    appears to be no basis to define trade in solid municipal waste as
    anything other than a good for tariff classification purposes given
    these facts.
        If one were to attempt to restrict the services that facilitate the
    trade in municipal solid waste (i.e., distribution, delivery,
    transportation, financial services, etc.), one would also have to take
    into account U.S. international obligations regarding most-favored
    nation treatment and national treatment as reflected in NAFTA Article
    1202, 1203 and 1204. There appears to be no exception, for example,
    within these NAFTA disciplines for services pertaining to the trade in
    municipal solid waste.
        Question: How do you contrast your analysis of HR 382 with
    Professor Esty's analysis, which cites Article XX of the GATT and NAFTA
    provisions that state its terms are subject to exemptions for
    legitimate environmental policies? Why do you find the need for
    equivalent action or restrictions to be imposed on those intrastate
    transporters in order for an action to be found as a legitimate
    environmental policy?
        Answer: I do not understand Professor Esty to be asserting that
    potential actions taken under HR 382, were it to become law, would
    necessarily fall under the exemptions set forth in GATT Article XX. In
    any case, GATT Article XX does set forth important disciplines that are
    worth stating again:
        ``Subject to the requirement that such measures are not applied in
    a manner which would constitute a means of arbitrary or unjustifiable
    discrimination between countries where the same conditions prevail, or
    a disguised restriction on international trade, nothing in this
    Agreement shall be construed to prevent the adoption or enforcement by
    any contracting party of measures:
        (b) necessary to protect human, animal or plant life or health; ...
        (g) relating to the conservation of exhaustible natural resources
    if such measures are made effective in conjunction with restrictions on
    domestic production or consumption;''
        Reading this language, it is quite clear that the contracting
    parties to the GATT/WTO want the threshold on any such actions that may
    fall under these exceptions, and the others listed in the article, to
    be high (i.e., necessary to protect, not just important . . .). The
    history of GATT/WTO dispute settlement makes this quite clear.
        Furthermore, there is an overriding emphasis on avoiding
    discrimination between domestic and foreign commerce when undertaking
    actions in the first sentence of article XX, and even a further
    specific reference to a non-discriminatory approach in XX (g) with
    respect to actions designed to conserve exhaustible natural resources.
    Furthermore, I have doubts that one could justify discrimination
    against imports of municipal waste from Canada on environmental
    practices grounds any more than one could justify such discrimination
    against waste from within a state or other states. For example, I am
    not aware at this time (although such an analysis may exist) of any
    sound scientific research and analysis that would compel a dispute
    settlement panel to support a discriminatory approach to imported
    Canadian solid waste.
        Question: If nothing is done to impose any restrictions on the
    international or interstate shipment of waste, especially from Canada,
    how do you see the market looking in the next 10 years? How do you
    suggest the states that are the heaviest importers, especially due only
    to geography and close proximity to major population centers,
    accommodate this increasingly larger burden?
        Answer: What to do with municipal solid waste is not only an issue
    in the U.S., but it is also a global issue with global implications,
    and it is not going away as our societies continue to generate waste.
    Not surprisingly, the U.S. trades in waste with many countries. U.S.
    international obligations reflect this trade. The European Union, for
    example, has been wrestling with the regulation of waste disposal for
    decades, and is now reportedly considering streamlining aspects of the
    existing regulatory regimes. In each locality across the U.S. difficult
    decisions about waste management abound, and a variety of responses
    have been developed and will be developed. They include more recycling,
    incineration, encouraging full compliance with existing regulations on
    landfills to help minimize environmental degradation, tightening
    recycling and landfill/incineration requirements, etc. Clearly, there
    is no one solution that fits all circumstances, nor would I venture to
    proscribe a solution for any one circumstance at this time. However, it
    is not clear to me that the importation of Canadian solid municipal
    waste necessarily presents a unique set of circumstances on
    environmental, public infrastructure or human safety grounds, other
    than the municipal waste that is being dealt with is from Canada. I am
    also not sure that Canada, or for example the City of Toronto, intends
    to continue the existing practice indefinitely whereby it contracts to
    ship municipal waste to certain sites within the U.S. It is also
    important to bear in mind that the U.S. exports hazardous waste to
    Canada in significant volumes. This trade in transboundary waste is a
    function of an increasingly integrated North American economy that was
    recognized long ago, and accordingly reflected in the bilateral
    agreement that exists between the two countries as well as in the
    NAFTA. Obviously, the key issue is can sound methods continue to be
    developed that appropriately handle the waste while cognizant and
    respectful of the integrated nature of our economies and our existing
    and potential future international obligations.
        Question: In your opinion, can it be argued that HR 382 mandates
    nothing; it merely authorizes the states to take certain actions that
    without congressional authority, they would be unable to take because
    of the constraints of the Commerce clause?
        Answer: The clear premise of HR 382 is that states should be given
    the right to limit, or prohibit, the importation of foreign municipal
    solid waste. My expectation would be that at some point a state, or
    maybe more, would utilize that authority, if granted, to limit or
    prohibit imports of foreign municipal waste. Otherwise, there appears
    to be little practical purpose for the proposed legislation.
        Question: Doesn't the 1986 Agreement Between the Government of
    Canada and the Government the United States Concerning the
    Transboundary Movement of Hazardous Waste prevail over NAFTA should
    there be an inconsistency between them, since it was already in effect
    when NAFTA was entered into?
        Answer: Yes, but to a point. Article 104 of the NAFTA reads as
    follows:
        ``In the event of any inconsistency between this Agreement and the
    specific trade obligations set out in:
        (d) the agreements set out in Annex 104.1 (which include The
    Agreement Between the Government of Canada and the Government of the
    United States Concerning the Transboundary Movement of Hazardous Waste,
    signed at Ottawa, October 28, 1986)
    such obligations shall prevail to the extent of the inconsistency,
    provided that where a Party has a choice of equally effective and
    reasonably available means of complying with such obligations, the
    Party chooses the alternative that is the least inconsistent with the
    other provisions of this Agreement.''
        It is also important to bear in mind that the bilateral agreement
    concerning the transboundary movement of waste cannot, practically
    speaking, be unilaterally interpreted by either party in a manner that
    prohibits or limits trade in waste without running a risk of
    precipitating a similar response from the other party. Furthermore, the
    other party could both terminate the bilateral agreement and would have
    recourse to its rights under the NAFTA to pursue, for example, dispute
    settlement and the resulting remedies should the other party be found
    to be out of compliance.
        Question: The Supreme Court has stated in Sporhase v. Nebraska that
    a State may enact a comprehensive regulatory system to address an
    environmental problem or a threat to natural resources within the
    confines of the Commerce Clause. If the states were to enact
    restrictions to impose certain limitations on the shipment of
    international waste, would these restrictions not be read to include, a
    fortiori, restrictions on interstate waste as well?
        Answer: I have not read the Supreme Court decision referred to in
    the question, so I cannot comment on the specifics of that case or
    render any interpretations stemming from it. I can say that there is
    nothing to my knowledge in trade agreements the U.S. currently is a
    party to that precludes the federal government, states or
    municipalities from enacting policies to protect the environment. Trade
    agreements to which the U.S. is a party, however, include provisions
    which are designed to discourage the federal government, states and
    municipalities from enacting measures that discriminate in their
    treatment of foreign commerce. Accordingly, should a state enact an
    environmental policy that discriminates in its treatment of foreign
    commerce it generally runs the risk of running afoul of U.S.
    international trade obligations. On the other hand, this does not
    necessarily preclude a state from enacting an environmental policy that
    treats all commerce in a similar manner, including commerce within the
    state, commerce from outside the state and foreign commerce.
        Question: Your testimony mentions that while the Greenwood bill
    doesn't pose NAFTA problems on its face, ``were such legislation to be
    enacted it is conceivable that if the implementation of the legislation
    by a state were to succumb to action(s) that discriminates in its
    treatment of foreign waste it could have implications for U.S.
    international obligations.'' Can you elaborate on that statement?
        Answer: Upon reviewing H.R. 1730 again, I would caution that the
    bill, if enacted, could lead to actions that risk implicating U.S.
    international obligations. The bill defines ``out of state'' to include
    ``municipal solid waste generated outside the United States.'' Were a
    state, utilizing the authority generated in this bill, to engage in a
    practice that discriminated in its treatment of foreign municipal waste
    relative to in-state and/or out of state U.S. waste, then the national
    treatment provisions (among others depending upon the precise nature of
    the state action) as reflected in GATT/WTO Article III (which are
    incorporated within NAFTA Article 301) may be implicated. What
    heightens the prospect that this bill could implicate the national
    treatment provisions of U.S. international trade obligations is that it
    is structured in such a way so as to draw a distinction between how in-
    state waste is treated and out of state waste is treated, which
    includes foreign waste. The national treatment provisions are
    structured to encourage similar tax and other regulatory treatment for
    all commerce.
                                     ______

                Response for the Record of Linda Jordan, RN, BSN
        Question 1. In your tenure as a State Trooper, do you recall
    instances such as the one you described before the Subcommittee today
    occurring often? In other words, were troopers regularly called to the
    border to investigate international shipments of cargo, waste and other
    goods?
        Response: My tenure at the Detroit Post of the Michigan State
    Police was from February 2002 through April 2003. During this time I
    don't recall any incidents of this nature. However, the Division of
    Motor Carriers regularly patrol the Ambassador Bridge and all too
    frequently cite semi-truck drivers coming over the bridge for
    transporting flammable and caustic materials, which are not authorized
    to be transported over the bridge. A search of three random months in
    2002 and 2003 revealed 13 reports and subsequent citations involving
    the aforementioned materials. We can assume there are at least two to
    three times that amount of such materials coming across the bridge that
    are not stopped. In addition, there was the report of the local police
    department that seized the drugs in the concealed compartments of a
    garbage hauler (Congressman Rogers referenced the incident in his
    opening statement of the Committee hearing) As a side note and more
    proof we have no idea what is coming across Michigan bridges, last
    summer there was an incident where a semi transported illegal
    immigrants across the Blue Water Bridge in Port Huron, MI, and
    deposited its ``load'' in a mall parking lot. Point of contact at the
    Detroit Post for hazardous materials is Motor Carrier Officer (MCO)
    Wilson Dixon at (313)256-2990.
        Question 2. Can you expound more upon the reactions, or the
    inaction, regarding this incident from the Department of Health and the
    Federal Protection Service?
        Response: Upon my arrival to the cargo facility, the Chief Customs
    Agent at that site advised me that the Department of Health had been
    notified but refused to come to the scene. I can't give any more
    information because I did not speak to anyone from the Department of
    Health. The on-call individual from the Department of Health finally
    did respond once we removed the blood from the semi (approximately 6-7
    hours after the initial call), only because of the activation of the
    radiac-meter of the Customs Agent with whom I was working. (All Customs
    Agents at the bridge wear a radiac-meter/beeper.) The Department of
    Health HAD to respond to bring a more sophisticated device to check the
    load for radioactive materials. Points of contact at the Detroit U.S.
    Customs Cargo Facility are Chief Gary Calhoun or Senior Inspector Andre
    Young at (313)226-2980. Point of contact/responder from the Health
    Department is Donald Hamel at (313)876-4519.
        The Federal Protection Service sent the on-call investigator, Greg
    Brown, who observed the dripping blood from the vehicle at the Cargo
    Facility. Mr. Brown advised he would send his lieutenant and he left
    the scene. I never saw anyone from the FPS again, nor did anyone from
    that agency try to contact me after the fact. The incident occurred on
    federal property and the FPS was the agency with jurisdiction. My duty
    was to ensure a crime had not been committed, i.e, to ensure there was
    no body compacted among the trash. Point of contact for this incident
    would be Greg Brown at (313)226-7360.
        Question 3. Are you familiar with who was ultimately responsible
    for the cleanup of this incident and the investigation that ensued?
        Response: Deputy Fire Commissioner Seth Doyle of the Detroit Fire
    Department became the Incident Commander once the blood was off-loaded
    at the transfer station and his Emergency Management Division notified
    their civilian contracted HAZMAT crew to clean the site and dispose of
    the blood. Point of contact is Deputy Fire Commissioner Seth Doyle at
    (313)596-2907.
        I was told Sgt. Askew of The Department of Environmental Quality
    would be conducting the follow-up investigation, and relayed the
    information to him. Point of contact, Sgt. Askew at (734)953-1445.
        Question 4. Do you know if the same or similar procedures for
    disposing of biohazardous waste, such as blood, are in place in Canada
    as in the U.S.?
        Response: I have researched this topic and have spoken with
    representatives from the Ministry of the Environment in Toronto,
    Canada, which is the governing body regulating waste. In addition, I
    have spoken with a representative of Medical Waste Management, a
    civilian company and the largest medical waste hauler in Ontario. It
    appears Canadian regulations parallel U.S. regulations with regard to
    the disposal of medical waste. There are minor differences in
    procedures, none of which are harmful.
        Question 5. As a Michigan resident and a member of the community,
    how is your life affected by the daily shipments of solid waste across
    the border from Canada? Have you noticed any other occurrences that
    have caused alarm within your community or was this just an isolated
    occurrence?
        Response: Other than the blood incident, the drug seizure and the
    woman being hit by not one, but two garbage haulers, I know of no other
    incidents. No, I do not think these are isolated incidents. I believe
    these situations are more common than we realize we just have not been
    so fortunate in intercepting the offenders.
        There has been an increase in the number of semi-trucks on the
    highways in Michigan. The garbage haulers are not always covered with a
    tarp, thus garbage has been noted flying from the trailers of the
    vehicles. Some drivers water down their load to prevent dust and small
    particles from taking flight while traveling. The water mixes with the
    load and leaks on the roadway. There is always a backup on the
    Ambassador Bridge and to avoid the wait, travelers and tourists opt to
    travel back to Detroit via the tunnel, which eliminates the aesthetic
    value and the enjoyment of traveling over the bridge. Acceptance of
    Canadian garbage has reduced the time expected to fill the landfill by
    half. Where will the garbage go once the landfill is full? Will a
    possible park be turned in to a new landfill because we must honor the
    contract with Toronto? It boggles the mind that with all the barren
    land in the upper provinces of our neighbors that some enterprising
    individual has not developed a landfill and become a millionaire as a
    result. It seems to me the thought from Canada is that it is much
    easier to literally dump the problem off on Michigan. In addition and
    thanks to NAFTA, my experience has been that U.S. officials throw up
    their hands and use those agreements as a crutch and cop out to do
    nothing, at the risk of U.S. citizens.
        Points of contact: Canadian Ministry of the Environment, Mr. Peter
    Palmer at (416)314-4278, or Ms. Debra Hurst, Ministry of the
    Environment, Hazardous Waste Policy Section at (416)314-4186 or Mr. Dan
    Kennedy, Medical Waste Management at (905)789-6660.
                                     ______

                                          New York City
                                       Department of Sanitation
                                                        August 22, 2003
    Honorable Paul E. Gillmor
    Chairman, Committee on Energy and Commerce
    Subcommittee on Environment and Hazardous Materials
    House of Representatives
    2125 Rayburn House Office Building
    Washington, D.C. 20515
        Dear Chairman Gillmor: This is in response to your letter dated
    August 5, 2003, requesting answers to questions submitted by Members of
    Congress in follow-up to the hearing held by the House Energy and
    Commerce Subcommittee on Environment and Hazardous Materials on
    Interstate and International Transportation of Solid Waste. I thank you
    for the opportunity to testify at this Subcommittee's July 23, 2003
    hearing and for the additional opportunity to submit further
    information into the hearing record on this topic.
        As requested, the following are answers to the eleven (11)
    questions presented by the Subcommittee:
        Question 1.) Mr. Orlin, the last time our committee gathered to
    discussed the issue of waste shipments, New York City's Deputy Mayor,
    Joe Lhota, testified that New York City exported all of its solid waste
    for disposal. Is that still the case or are you now shipping some of
    your non-recyclable trash to in-state facilities for disposal?
        New York City, like many municipalities across the country,
    currently has contracts with private vendors for the disposal of the
    City's municipal solid waste. As part of the contracting process,
    private vendors are required to submit a list of final disposal
    locations that they would like to utilize. The Department, after a
    lengthy review, decides whether or not the final disposal locations are
    acceptable. A final disposal location is deemed acceptable after the
    Department determines that it is operating with a lawful permit, that a
    Host-Community Agreement is in place, and a thorough site visit is
    conducted. While most disposal sites receiving City waste are located
    outside the State, the City's waste is currently being sent to the
    three disposal sites in New York State. Additionally, the Department
    has very recently approved a fourth disposal location in New York
    State, but no New York City waste has yet been sent to this location.
    The Department is also in the process of reviewing proposals for two
    additional disposal facilities located in the State.
        Question 2.) Mr. Orlin, in your written statement, you describe the
    closing of the Fresh Kills landfill and the City's requirements that
    all of its municipal solid waste be disposed of in communities that
    have established host-community agreements (HCAs). How many of the
    HCA's handling New York City's trash are with communities in the State
    of New York?
        A Host-Community Agreement is an agreement between the operator of
    a disposal facility and the community in which the facility is located.
    Currently, private vendors that contract with the City to dispose of
    its residential solid waste are authorized to use four facilities in
    New York State, and the City's waste is being sent to three of these
    facilities. These locations have Host-Community Agreements in place and
    have been deemed acceptable by the Department. The Department is in the
    process of reviewing proposals for the use of two additional facilities
    located in the State.
        Question 3.) Can you detail how your municipality is ensuring that
    the localities that enact Host-Community Agreements with you have all
    the requisite environmental permits and are in accordance with zoning
    ordinances and land use provisions?
        New York City conducts a detailed investigation into the sites
    submitted by our vendors for the final disposal of solid waste received
    in accordance with the City's contracts. The Department reviews: (1)
    the Host-Community Agreement in place, (2) copies of all permits issued
    to the facility allowing it to operate, and (3) a detailed
    questionnaire filled out by the operator of the disposal location
    regarding the operation of the site and its history. After reviewing
    these materials, the Department then conducts a site visit of the
    disposal location to ensure that it is operated in a safe and
    environmentally sound manner. Additionally, the Department obtains a
    legal opinion from a local attorney familiar with all requisite
    environmental laws, zoning ordinances and land use provisions as to the
    legality of the disposal site in question. If, after a site visit and a
    review of all of the above information, the Department deems a facility
    acceptable for disposal, the New York City Department of Investigation
    (``DOI'') is then notified, and DOI conducts its own investigation as
    to the business dealings of the facility in question. If the proposed
    disposal site is not approved by the Department, the vendor is notified
    that the site is not authorized to accept any waste under the contract.
    The Department has denied permission to vendors to use proposed sites
    because the sites did not have Host-Community Agreements.
        Question 4.) Has the City of New York sought to enter into more
    Host-Community Agreements or contracts with other towns in New York
    State? Why?
        New York City has contracts with private vendors for the disposal
    of the City's municipal solid waste. It is the private vendors
    accepting the City's waste that enter into Host-Community Agreements
    with the localities hosting the waste disposal facilities. A Host-
    Community Agreement is an agreement between the operator of a disposal
    facility and the community in which the facility is located. As part of
    the contracting process with the City, private vendors are required to
    submit a list of final disposal locations that it would like to
    utilize. Currently, private vendors that contract with the City to
    dispose of its residential solid waste are authorized to use four
    facilities in New York State. These locations have Host-Community
    Agreements in place and have been deemed acceptable by the Department.
    The Department is also in the process of reviewing two more disposal
    sites located in New York State.
        Question 5.) What do you see as the benefits for allowing the free
    market for interstate waste transport to continue to operate? What
    about the shortcomings?
        For over 200 years, the United States has successfully relied on a
    free market system that allows for the shipment of goods, including
    solid waste, across State lines. This free market system allows
    communities and States to import municipal solid waste into their
    jurisdictions in order to take advantage of an important revenue
    stream. The free market system has also enabled the City and other
    municipalities to utilize environmentally sound disposal facilities.
    The City believes that each locality has the right to accept or reject
    out-of-state solid waste. In securing contracts for waste disposal
    exclusively at Host-Community Agreement sites, municipalities have
    furthered partnerships that benefit both importer and exporter alike.
    The ability of a municipality to send waste to newer, more advanced
    regional facilities located outside its boundaries acknowledges the
    very environmental, demographic and geographical realities that many
    municipalities throughout the country face. For those localities that
    have chosen to import waste from other locations, the revenues
    generated through host fees, licensing fees and taxes have
    substantially enhanced their local economies, improved area
    infrastructure, paid for construction of new schools, paved roads and
    assisted host communities in meeting their own waste management needs.
    The ability to move waste freely across state lines to the most
    environmentally protective and most cost-effective facilities is
    essential and fully consistent with this country's well established
    free market economy.
        Question 6.) It seems that officials from large metropolitan areas,
    like yourself, point out that they only ship their waste to willing
    communities. How would that end under the bills before us?
        While HR 1730 purports to exempt proposed disposal sites with Host-
    Community Agreements from the ban on receipt of out-of-state waste, the
    bill actually places significant restrictions on the ability of solid
    waste facilities with Host-Community Agreements to receive out-of-state
    waste. These restrictions undermine the apparent protections provided
    to facilities with Host-Community Agreements. The proposed legislation
    places restrictions on the interstate movement of waste that could void
    decisions made by local governments, increase the cost of waste
    disposal, disrupt existing and planned arrangements for waste disposal
    services and limit the ability of willing communities to reap the
    economic benefits of receiving out-of-state waste.
        For example, a facility with a Host-Community Agreement is only
    exempt from the ban on the receipt of out-of-state waste if it is in
    compliance with (a) all of the terms and conditions of the State permit
    authorizing the facility to operate and (b) most applicable Federal and
    State laws and regulations. The term ``compliance'' is not defined in
    the proposed legislation. Consequently, a minor violation could
    immediately impact a facility's ability to take out-of-state waste. The
    provision requiring compliance with all conditions in the State permit
    does not place any time limitation on a facility's ineligibility to
    take out-of-state waste, even if the permit violation is only a small
    infraction. Moreover, there is no provision allowing a facility
    operator to challenge an alleged permit violation. Thus, a small permit
    infraction could result in a facility's inability to take out-of-state
    waste for a prolonged period of time.
        Even if a Host-Community Agreement is in place, HR 1730 authorizes
    State officials to deny permits for new facilities or expansions of
    existing ones, and potentially even deny simple requests for permit
    renewals, if State officials determine there is no local or regional
    need for the facility. The effect of this provision would be to allow
    State officials to discriminate against out-of-state waste by denying
    permits for solid waste facilities that would receive waste from
    outside the State, since the local area or region might not need a
    facility that handles out-of-state waste.
        HR 1730 authorizes a State to limit the amount of out-of-state
    waste sent to each solid waste facility to the amount of out-of-state
    waste the facility received for disposal in 1993. A facility with a
    Host-Community Agreement is only exempted from this freeze based upon
    1993 import levels if the facility had permitted capacity at the time
    it originally entered into the Host-Community Agreement to receive all
    of the out-of-state waste authorized by the Host-Community Agreement.
    This provision would likely remove much of the apparent protection
    afforded Host-Community Agreements in the proposed legislation.
    Additionally, authorizing States to freeze shipments of out-of-state
    waste based upon 1993 import levels ignores an entire decade of changes
    that have taken place in how municipalities dispose of solid waste and
    completely neglects the current waste disposal practices of
    municipalities throughout the country.
        Additionally, the proposed legislation authorizes States to enact
    legislation governing a locality's ability to enter into Host-Community
    Agreements. There is no requirement that these State laws concerning
    Host-Community Agreements be consistent with the provisions of HR 1730.
    The proposed bill could therefore result in State laws that effectively
    preclude Host-Community Agreements.
        These are just a few examples of how HR 1730 could adversely impact
    and impede the ability of municipalities to send waste to willing
    jurisdictions that have in place and benefit from Host-Community
    Agreements.
        Question 7.) How great of a consideration are costs to New York
    City given when you are making solid waste disposal and other recycling
    decisions?
        In making waste disposal decisions, cost is certainly an important
    consideration for the City, particularly given the current economic
    times. An even more important consideration for the City, however, is
    that its waste be sent to waste disposal sites in willing jurisdictions
    that fully comply with all relevant environmental laws. When making
    solid waste disposal decisions, the Department ensures that all of the
    City's waste is sent to environmentally sound facilities that have
    Host-Community Agreements and comply with all applicable Federal, State
    and local rules and regulations.
        Additionally, the City is committed to recycling even though
    recycling is not necessarily the most cost-efficient means of handling
    and managing solid waste. The City has one of the few recycling
    programs in the country that picks up from 100 percent of residential
    households. The City, which also picks up from agencies and
    institutions, recycled approximately 32 percent of the City-managed
    waste collected as of April of 2003. As of July 1, 2003, the Department
    reinstated the collection of plastics and beverage cartons into the
    designated recyclable stream. Thus, the City's current residential and
    institutional recycling program includes recycling of metal, newspaper,
    magazines, catalogs, phone books, mixed paper and corrugated cardboard,
    plastics and beverage cartons. The City will also be redesignating
    glass as a recyclable material as of April 1, 2004.
        Question 8.) Some of your and Mr. Lanza's testimony suggests that
    New York City is not capable of housing environmentally sound solid
    waste disposal facilities, either within the City or the State of New
    York, therefore you should ship it to regional mega-landfills in rural
    areas. Is this a fair impression?
        Like many other densely populated municipalities, including Chicago
    and Washington D.C., New York City is faced with a shortage of space
    large enough for the siting of a suitable facility to handle the City's
    residential solid waste. The City is in the preliminary stages of
    looking for a landfill within New York State. New York City relies
    heavily on contracts with private vendors for the disposal of its
    municipal solid waste. As part of the contracting process, private
    vendors are required to submit a list of final disposal locations that
    it would like to utilize, which the Department reviews. The Department
    has approved the use of four in-State disposal locations provided by
    our vendors, including one that was approved recently, and is in
    process of reviewing proposals for two additional facilities located in
    the State.
        Question 9.) Your testimony suggests that just about every state
    exports trash, therefore, Congress should take no action. However,
    government figures show that 50 percent of states are ``net-
    importers,'' 35 percent are ``net-exporters,'' and 15 percent do not
    have enough data to let us know where they stand. Since, potentially,
    more than half of all states have the capacity to import more trash
    than they export, shouldn't these folks have the chance to reserve a
    little in-state waste capacity for themselves?
        Municipalities in forty-nine states and the District of Columbia
    export a portion of their waste outside their borders. While some
    municipalities export their waste to in-state disposal sites, other
    municipalities, depending on distance and the cost of transporting
    waste, choose to dispose of their waste at closer, more economically
    feasible disposal sites located outside the state. Complying with the
    stringent requirements of Subtitle D of the Resource Conservation and
    Recovery Act is costly. States are not the entities that build, operate
    and pay for the environmental compliance of waste disposal facilities.
    Rather, the private sector is primarily responsible for the
    construction and operation of waste disposal facilities throughout the
    country. In order for private companies to meet the costs of
    maintaining and improving existing facilities and to entice them to
    build new state of the art facilities, companies need to be assured
    that their facilities will not be restricted from receiving waste from
    willing customers. Wastesheds are regional in nature and are not
    limited by State boundaries. Where waste is ultimately disposed is in
    large part dependent upon available transportation corridors. Because
    of existing transportation routes, many localities, including New York
    City, send their waste outside their own State's borders.
        Question 10.) Some people would argue that major exporters are
    placing other communities and states at odds, with local financial
    windfalls opposing the protection of overall state resources. In light
    of your insistence on the potential ``loss'' of export access through
    Host-Community Agreements, do you think this is a fair argument?
        Markets for goods, including solid waste, are not limited by State
    lines. The citizens of New York import a large volume of goods from
    States across the entire country, and much of these goods, as well as
    the packaging for these goods, must ultimately be disposed. This
    committee heard testimony on behalf of a community in South Carolina
    that greatly benefits from the Host-Community Agreement it has in
    place. The Host-Community Agreement allows this community, and other
    communities like it, to benefit from a revenue stream that does not
    place an onerous burden on its taxpayers. The revenue received through
    Host-Community Agreements helps offset the costs of municipal services
    and community projects that would otherwise be passed down to the
    taxpayer. Placing significant restrictions on Host-Community
    Agreements, such as those in the proposed legislation, would severely
    limit a willing community's right to take advantage of the revenue
    received from having disposal facilities located within its borders.
    Without this revenue stream, communities will be forced to cut back
    municipal services and projects, increase local taxes or seek
    additional funding from the State.
        Question 11.) Which bills do not allow Host-Community Agreements to
    govern the disposal of imported wastes?
        While HR 1730 purports to exempt proposed disposal sites with Host-
    Community Agreements from the ban on receipt of out-of-state waste, the
    bill actually places significant restrictions on the ability of solid
    waste facilities with Host-Community Agreements to receive out-of-state
    waste. Similar bills that have been proposed in the House of
    Representatives, including HR 382, HR 411, HR 418, HR 1123 and HR 2581,
    also do not allow Host-Community Agreements to govern the disposal of
    imported wastes.
        These restrictions found in the proposed legislation undermine the
    apparent protections provided to facilities with Host-Community
    Agreements. The proposed legislation places restrictions on the
    interstate movement of waste that could void decisions made by local
    governments, increase the cost of waste disposal, disrupt existing and
    planned arrangements for waste disposal services and limit the ability
    of willing communities to reap the economic benefits of receiving out-
    of-state waste.
        For example, a facility with a Host-Community Agreement is only
    exempt from the ban on the receipt of out-of-state waste if it is in
    compliance with (a) all of the terms and conditions of the State permit
    authorizing the facility to operate and (b) most applicable Federal and
    State laws and regulations. The term ``compliance'' is not defined in
    HR 1730. Consequently, a minor violation could immediately impact a
    facility's ability to take out-of-state waste. The provision requiring
    compliance with all conditions in the State permit does not place any
    time limitation on a facility's ineligibility to take out-of-state
    waste, even if the permit violation is only a small infraction.
    Moreover, there is no provision allowing a facility operator to
    challenge an alleged permit violation. Thus, a small permit infraction
    could result in a facility's inability to take out-of-state waste for a
    prolonged period of time.
        Even if a Host-Community Agreement is in place, the proposed
    legislation authorizes State officials to deny permits for new
    facilities or expansions of existing ones, and potentially even deny
    simple requests for permit renewals, if State officials determine there
    is no local or regional need for the facility. The effect of this
    provision would be to allow State officials to discriminate against
    out-of-state waste by denying permits for solid waste facilities that
    would receive waste from outside the State, since the local area or
    region might not need a facility that handles out-of-state waste.
        HR 1730 authorizes a State to limit the amount of out-of-state
    waste sent to each solid waste facility to the amount of out-of-state
    waste the facility received for disposal in 1993. A facility with a
    Host-Community Agreement is only exempted from this freeze based upon
    1993 import levels if the facility had permitted capacity at the time
    it originally entered into the Host-Community Agreement to receive all
    of the out-of-state waste authorized by the Host-Community Agreement.
    This provision would likely remove much of the apparent protection
    afforded Host-Community Agreements in the proposed legislation.
    Additionally, authorizing States to freeze shipments of out-of-state
    waste based upon 1993 import levels ignores an entire decade of changes
    that have taken place in how municipalities dispose of solid waste and
    completely neglects the current waste disposal practices of
    municipalities throughout the country.
        Additionally, the proposed legislation authorizes States to enact
    legislation governing a locality's ability to enter into Host-Community
    Agreements. There is no requirement that these State laws concerning
    Host-Community Agreements be consistent with the provisions of HR 1730.
    The proposed bill could therefore result in State laws that effectively
    preclude Host-Community Agreements.
        These are just a few examples of how HR 1730 could adversely impact
    and impede the ability of municipalities to send waste to willing
    jurisdictions that have in place and benefit from Host-Community
    Agreements.
        I thank you again for this opportunity to submit further
    information into the hearing record on this very important issue.
                Yours truly,
                                                           Robert Orlin
    cc. Honorable Vito J. Fossella
       J. Chesser, Director, N.Y.C. Federal Legislative Affairs
                                     ______

    Response for the Record of Ken Sikkema, Majority Leader, Michigan State
                                     Senate
        Question: Senator, could you please help us understand the thinking
    and emotions in legislatures, like yours, that are repeatedly being
    rebuffed by the courts when you try to deal with your state's waste
    flow?
        Answer: Michigan policymakers have for almost a decade been
    attempting to find a solution to how the state can regulate out of
    state waste. We have considered various options including requiring
    another state or nation's waste management program to be as protective
    as Michigan's, have considered enacting an express ban on out of state
    waste as a tool to protect public health, safety and welfare under the
    police powers reserved to the states, but have placed the greatest
    amount of hope in gaining authorization to regulate out of state waste
    directly from Congress. I would assess the current thinking and emotion
    right now in the Michigan Legislature as this: The goal in Michigan has
    always been to reduce the number of landfills in our state and it is
    not possible to do this when we are not able to control the amount of
    waste coming across our borders. The courts have consistently held that
    states must be granted authority by Congress to regulate out of state
    waste. Our feelings remain that the best position for Michigan to be in
    (if and when a legal challenge is made to our laws) is to have Congress
    expressly grant us this authority through legislation such as HR 382.
        Question: Senator, the 1988 Michigan law, until struck down in
    1992, gave counties the power to restrict waste shipments. Don't you
    agree that the negotiation of a Host Community Agreement actually
    conveys this same authority to communities? Why or why not?
        Answer: No, I do not agree that Host Community Agreements can
    provide any consistent authority to achieve the state's desire to curb
    out of state waste. Host Community Agreements were designed to provide
    compensation to communities that agree to accept out of state waste.
    They do not provide the state with any certainty to achieve the states'
    long term goal of reducing the number of landfills. Host Community
    agreements are privately negotiated contracts that may or may not have
    the effect of restricting out of state waste. Since they are privately
    negotiated contracts, our constitution forbids any state interference
    with the provisions of the contract and because of this we cannot
    mandate inclusion of any provision to refuse out of state waste.
        Question: You mention that Michigan is being placed in a tough spot
    concerning the handling of its own waste because it is powerless to
    stop interstate and international imports of solid waste. Many people
    today would argue that the communities taking the waste want it. Is
    there a tension between state and local officials about this policy?
        Answer: Yes, there has always been tension between state and local
    governmental officials on accepting out of state waste. I suspect that
    there will always be tension because some communities may see a
    parochial advantage in accepting out of state waste. But given the
    state's need to protect its natural resources and to properly manage
    solid waste, on a statewide basis, ultimate authority to regulate how
    and where our waste goes must rest with the state.
        Question: Senator, several of our panelists today will argue that
    H.R. 382 violates NAFTA. How do you respond to these claims,
    particularly since they could have the same effect that the Supreme
    Court case did 10 years ago?
        Answer: I do not believe that HR 382 violates NAFTA. NAFTA is a
    commercial agreement that attempts to preserve a climate of equality
    for goods and services being traded across borders and the relevant
    test for HR 382 is whether the legislation mandates an action which
    expressly violates that climate of equality. HR 382 does not mandate
    that certain actions be taken which might violate NAFTA, but merely
    gives the states a needed tool to control waste. Further as I have
    stated before, I believe that waste is not a legitimate item of
    commerce, but an unintended negative consequence of human behaviors.
                                     ______

     Response for the Record of Robert Springer, Director, Office of Solid
                     Waste, Environmental Protection Agency
     questions from the subcommittee on environment and hazardous materials
        Question 1. Mr. Springer, your testimony suggests that two decades
    ago, EPA went through the process of approving individual State's
    comprehensive solid waste management plans. Do these solid waste
    management plans need to be re-approved by EPA? Has EPA undertaken any
    systematic review of these plans to ensure that States are still
    complying with these programs and whether States need to update their
    programs?
        Response. As we testified, EPA is responsible under the current
    regulatory framework for setting national standards applicable to
    disposal of nonhazardous waste. EPA has no statutory authority for
    permitting, and the Agency's enforcement authority is limited to
    occurrences of imminent and substantial endangerment. The States retain
    the primary responsibility for implementation, including permitting,
    and enforcement of the national disposal regulations and for all other
    aspects of nonhazardous waste management. This is an appropriate
    framework given that domestic management of nonhazardous waste has
    historically been a State and local responsibility. The Resource
    Conservation and Recovery Act (RCRA) required that States develop solid
    waste management plans to specify the State approach for
    environmentally sound solid waste management and that EPA publish
    guidelines to assist in the development and implementation of the State
    plans. EPA published these guidelines in 1979. To encourage and assist
    States in developing their initial solid waste management plans, the
    Subtitle D grant program was established for a limited time. To be
    eligible to receive Subtitle D grant money from EPA, States were
    required to submit for EPA approval their comprehensive solid waste
    management plans. In 1982, the Subtitle D grant program was
    discontinued and States no longer had an incentive to submit plans to
    EPA for approval, but many States had already submitted their plans by
    this time. As of 1987, forty-three States and territories had submitted
    plans to EPA for approval, while several others had entered into
    discussions with EPA concerning their plans. Although States continue
    to internally review and update their solid waste management plans, the
    original plans we did assist in developing serve as a starting point
    for current solid waste management operations in the States.
        Question 2. Our Committee received testimony from a former Michigan
    State Police Officer, Ms. Linda Ann Jordan, that more occurrences of
    hazardous materials are finding their ways into municipal waste only
    landfills due to the huge increases in interstate and international
    waste transport? How do you respond to this assertion?
        Response. At this time, EPA is currently not aware of any
    information that supports the statements/assertions made by Ms. Linda
    Ann Jordan at the hearing. When EPA or an authorized State discovers
    situations where hazardous waste is being improperly disposed of in
    municipal landfills (for whatever reason, be it improper waste
    identification, transportation, etc.), both EPA and the States treat
    such violations very seriously and take appropriate action against the
    violator.
        Question 3. You state that EPA's position is that the most
    effective way to control risks posed by interstate management of wastes
    is through a strong domestic regulatory program. The U.S. has a
    regulatory framework in place designed to protect human health and the
    environment from any risks posed by the disposal of hazardous or
    municipal solid waste, whether those wastes are generated within or
    outside the U.S. Could you please explain this framework and why you
    have made these comments?
        Response. Our current regulatory framework, established pursuant to
    RCRA, addresses both hazardous waste and solid waste. The Agency
    believes that the regulatory system for hazardous and municipal solid
    waste ensures protection against risks to human health and the
    environment. The origin of the waste, whether domestic or foreign, has
    no impact as long as there are regulations in place that determine what
    can or cannot be responsibly managed in a landfill.
        The hazardous waste management program, Subtitle C, is intended to
    ensure that hazardous waste is managed safely from the time it is
    generated to the time it is finally disposed (i.e., ``from cradle to
    grave''). The Subtitle C program includes requirements to facilitate
    the proper identification and classification of hazardous waste and
    includes standards for those facilities that generate, treat, store, or
    dispose of hazardous waste. Transport of any hazardous waste must be
    accompanied by a manifest that lists, among other things, the type of
    waste, the facility that generated the waste, the individual transport
    companies that will convey the waste, and the final destination
    facility. To ensure that treatment, storage and disposal facilities
    adequately protect human health and the environment, owners and
    operators of these facilities must obtain a hazardous waste permit and
    comply with all regulations regarding the management of hazardous
    waste, including cleaning up contamination from past operations. In
    addition, prior to any placement on the land, hazardous wastes first
    must be treated to meet waste-specific treatment standards.
        Subtitle D of RCRA primarily addresses nonhazardous solid waste.
    The term solid waste includes garbage, refuse, sludge, nonhazardous
    industrial wastes, and other discarded materials. For municipal solid
    waste, EPA recommends an integrated approach to management which
    includes source reduction, recycling, combustion, and landfilling.
        In order to protect the environment, EPA developed detailed
    technical criteria for solid waste disposal facilities, including
    specific criteria for municipal solid waste landfills (MSWLF). The
    MSWLF criteria, promulgated in 1991, include provisions for location,
    operation, design, ground water monitoring, corrective action, closure
    and post-closure care, and financial responsibility. The operating
    criteria include requirements for running and maintaining a landfill,
    such as covering the landfill daily, controlling disease vectors, and
    controlling explosive gas. Design standards for liners, which may
    require leachate collection systems, are required to prevent
    groundwater contamination. Groundwater monitoring is required to insure
    proper operation of the landfill liner/leachate collection system.
    Finally, there are detailed requirements for the safe closure of a
    landfill and post closure care. Similar location restrictions and
    operational requirements apply generally to non-municipal solid waste
    facilities, and stricter groundwater monitoring and corrective action
    apply to non-municipal facilities that receive conditionally-exempt
    small quantity generator hazardous waste. Compliance with these
    requirements is generally assured through State-issued permits. EPA
    does not have the same enforcement authorities for subtitle D landfills
    as in Subtitle C; however, EPA may act when there is an imminent and
    substantial endangerment.
        Question 4. Is an amendment to include solid waste, followed by the
    ratification and implementation of the Basel convention, the only way
    EPA intends to have trans-border, solid waste shipments with Canada
    addressed?
        Response. No. In addition to ratification and implementation of the
    Basel convention, which would provide EPA with authority to require
    notice and consent for municipal solid waste shipments, the joint EPA-
    Customs Initiative is designed to improve compliance monitoring and
    surveillance of imports and exports of dangerous chemicals and wastes
    and materials regulated under statutes administered by EPA (e.g.,
    municipal solid waste). The initiative also is intended to ensure that
    EPA and Customs share the information that Customs collects.
    Transborder shipments to and from Canada are an important focus of this
    initiative.
        Question 5. Our understanding is that current trends concerning
    landfills are one of consolidation and privatization. How are States
    supposed to continue their comprehensive waste management plans
    mandated by RCRA in light of continuously increasing shipments of out
    of State waste?
        Response. The States are in the best position to understand the
    current trend, in that all States issue permits for all the municipal
    solid waste landfills in their respective State. Thus, the State
    program managers, working together, are in the best position to
    effectively plan for and deal with this trend. Moreover, from the
    information that we have seen, it is more cost effective to build
    larger compliant landfills than smaller ones.
        Question 6. Mr. Springer, you mention the efforts being undertaken
    by EPA to encourage recycling. What results are you seeing? What are
    the pitfalls of establishing these programs? And, how much more, if
    any, could EPA be doing to encourage recycling?
        Response. Historically, EPA has encouraged recycling and we see the
    rates of recycling of municipal solid waste increasing. In 2002, 31 %
    of municipal solid waste was recycled and in EPA's new strategic plan,
    we will propose increasing that percentage.
        EPA's programs to encourage recycling are primarily voluntary and
    we have seen excellent results from these programs. For example, our
    Waste Wise program has grown to include over 1,300 partners who,
    through 2001, reduced over 35 million tons of waste through prevention
    and recycling efforts.
        In the Resource Conservation Challenge, EPA is embarking on a major
    effort to find flexible, yet protective ways to conserve our natural
    resources through waste reduction, recycling, and energy recovery. We
    believe that establishing goals and measures is critical to our success
    and are working with partners and with stakeholders to identify
    additional performance goals and measures to demonstrate the success of
    their efforts.
        In order to keep encouraging recyling and resource conservation,
    EPA must continue to strengthen its partnerships with all levels of
    government, with business leaders, and with the American consumer. At
    the same time, EPA must work to insure that recycling methods are safe
    for both workers and the environment.
        Question 7. If the U.S. and Canada are mutually dependent on each
    other for solid waste disposal, can anyone supply us with information
    on how much municipal solid waste the U.S. currently exports to Canada?
    Hazardous waste?
        Response. As EPA testified, more than 90% of international waste
    movements involving the U.S. and Canada is with each other. Canada is
    the only country with which the U.S. legally exports hazardous wastes
    for treatment and disposal. (We do export to other countries for
    recycling.) The most recent compilation of U.S. data on exports of
    hazardous waste to Canada shows 121,000 tons were exported in 1995. EPA
    is in the process of updating this compilation using more recent annual
    reports from individual States. Canadian data for the same year
    indicates 422,000 tons of hazardous waste coming from the U.S., but the
    Canadian hazardous waste definition captures a broader range of wastes.
    Data from both the U.S. and Canada agree that the U.S. exports
    significantly more hazardous waste to Canada than it imports. A
    Canadian study showed that in 1998 there were 23 States that exported
    hazardous wastes to Ontario, with the top five being Michigan, New
    York, Ohio, New Jersey, and Pennsylvania.
        EPA does not have waste volume data on municipal solid waste
    exports because RCRA regulations do not require the collection of such
    data. According to Congressional Research Service data reported in
    2002, only Maine and Massachusetts exported municipal solid waste to
    Canada, specifically to New Brunswick and Quebec.
        Question 8. In a letter dated May 8, 2003, to Senator Levin,
    Assistant Administrator Ayres wrote that the Agency's interest in
    having RCRA amended to give effect to the waste import notice-and-
    consent provisions as applied to solid waste was ``not . . . to block
    MSW imports from Canada into the U.S.'' but rather ``EPA would only
    object to MSW imports if there were any legitimate environmental
    reasons.'' The letter goes on: ``We have not received any environmental
    monitoring and assessment information indicating any environmental
    problems arising from Ontario MSW disposed of in Michigan, nor have we
    been advised that these MSW imports have been in conflict with US and
    Canadian goals for protection of the Great Lakes Basin ecosystem.'' Has
    the Agency's position changed at all since that letter was sent to
    Senator Levin?
        Response. Our position remains the same. In response to increased
    concerns about imported wastes, Michigan DEQ conducted ten inspections
    at each of eight landfills from March through June 2003. Initial
    reports from early inspections do not indicate significant differences
    between municipal solid waste generated in Canada and that generated in
    Michigan.
        Question 9. Does EPA perceive any environmental, health, or safety
    risk attendant to the importation of MSW from Canada to properly
    permitted and compliant RCRA Subtitle D landfills that requires
    legislative action?
        Response. EPA believes that properly permitted and compliant
    Subtitle D landfills enable municipal solid waste to be disposed of in
    a manner that minimizes environmental, health, and safety risks.
    Therefore, we do not seek additional authority to regulate Subtitle D
    landfills. Transportation of any materials, whether among nations,
    States, or local jurisdictions involves some risk of accidents, spills,
    etc; but we believe that the current regulations deal appropriately
    with this. As EPA testified, legislative action is needed to implement
    the municipal solid waste provisions of the U.S.-Canada Waste Trade
    agreement, notably the notice and consent provisions regarding
    municipal solid waste.
        Question 10. Are there any environmental problems with the
    interstate shipment of wastes to properly permitted and compliant RCRA
    Subtitle D landfills?
        Response. As stated in our response to the previous question, EPA
    believes that properly permitted and compliant Subtitle D landfills
    enable solid waste to be disposed of in a manner that appropriately
    minimizes risk to public health and the environment. Interstate
    shipment of any material involves some risk--accidents, spills, etc.
    However, EPA is not aware of any evidence to date indicating
    environmental problems resulting from the interstate shipment of waste
    to compliant facilities.
        Question 11. Your testimony explains the way our country and the
    Canadians handle the trans-border shipment of hazardous waste. Since
    solid waste is the issue today, you briefly point out that the U.S. and
    Canada intend to use the same notice and consent scheme ``once both
    countries have the necessary legal authorities.'' Could you please
    explain these comments?
        Response. Once both the U.S. and Canada have obtained the necessary
    authority, we expect the notice and consent process for municipal solid
    waste to be similar to the current hazardous waste notice and consent
    process. In connection with hazardous waste shipments from Canada to
    the U.S., that process is as follows: (1) prior to exporting a
    hazardous waste to the U.S., the Canadian exporter would notify
    Environment Canada of its intent to export; (2) upon receipt of this
    written notification by the primary exporter, Environment Canada would
    forward the notification to EPA; and, (3) if the U.S. consents to the
    shipment, Environment Canada would communicate the U.S.' consent to the
    Canadian exporter, who could then proceed with the export. The Canadian
    exporter is prohibited from shipping the waste to the U.S. until EPA
    consents. (The process would work the same for exports from the U.S. to
    Canada.)
        When EPA receives a notice for a hazardous waste import, we either
    consult directly with the appropriate State agency or we review
    previously-submitted State information to confirm that the receiving
    facility is permitted to manage all of the specific wastes identified
    in the notice, and the State believes the wastes will be handled
    consistent with federal and State requirements. If environmental
    problems are found or if the exporter has not provided sufficient
    information, we would not consent to receipt of the waste. It is
    important to note that our experience with hazardous waste shows that
    the vast majority of notices has involved shipments that fully comply
    with applicable laws, and therefore we have consented to them.
                      questions from hon. john d. dingell
        Question 1. What is EPA's position on each of the three bills that
    were the subject matter of the hearing: H.R. 382, H.R. 411, and H.R.
    1730?
        Response. The Administration has not taken a position on H.R. 382,
    H.R. 411, and H.R. 1730.
        Question 2. Please describe all of the options available to EPA,
    including voluntary compliance, as well as any additional legal or
    regulatory authorities that would allow for the full or even partial
    implementation of the Agreement Between the Government of the United
    States of America and the Government of Canada Concerning the
    Transboundary Movement of Hazardous Waste. (``U.S.-Canada Waste Trade
    Agreement'' or ``Agreement''). Please do not limit this answer to
    implementation of the Basel Convention.
        Response. Currently, we cannot implement the Agreement Between the
    Government of the United States of America and the Government of Canada
    Concerning the Transboundary Movement of Hazardous Waste for municipal
    solid waste. As EPA discussed at the hearing, Canadian authorities are
    developing regulations based on recent amendments to the Canadian
    Environmental Protection Act that will enable them to provide notice
    and consent for municipal solid waste, and expect to complete this
    process in approximately one year. Additionally, the Agency is working
    on amendments to the Solid Waste Disposal Act for consideration by
    Congress that will provide the necessary authorities for the U.S. to
    fully implement the notice and consent provisions under the bilateral
    Agreement with Canada for municipal solid waste. At a minimum, to
    enable the U.S. to fully implement the notice and consent provisions in
    the bilateral Agreement, Congress needs to provide EPA with the
    following authority:

    a. notice and consent authority for municipal solid waste imports and
            exports, similar to EPA's authority for hazardous waste imports
            and exports under section 3017 of the Resource Conservation and
            Recovery Act (RCRA);
    b. specific requirements for exporters, prohibiting them from exporting
            municipal solid waste from the U.S. to Canada unless:
        i. they have notified EPA of a proposed export, which provides the
                necessary information regarding the types and amounts of
                wastes to be exported, identifying the transporters and
                facilities that will manage the waste, and all other
                information specified under Article 3(b) of the U.S.-Canada
                Waste Trade Agreement, and
        ii. the importing country has consented to the import of the waste;
    c. specific requirements for importers, prohibiting them from importing
            municipal solid waste from Canada unless EPA has received
            notification of the import and has provided written consent to
            the import.
        Question 3. What is EPA's time frame for implementing the U.S.-
    Canada Waste Trade Agreement, including the notice and consent
    requirements set forth in Article 3 and the ``best efforts to provide
    notification'' set forth in Article 5.3?
        Response. EPA would like to implement the municipal solid waste
    provisions of the U.S.-Canada Waste Trade Agreement as soon as
    possible. To this end, we are working with other federal agencies to
    draft implementing legislation that will provide EPA with the necessary
    authority for municipal solid waste imports and exports. It is part of
    a comprehensive effort to amend RCRA so that the U.S. is able to ratify
    the Basel Convention. Once enacted, we would be able to implement the
    notice and consent provisions regarding municipal solid waste of the
    U.S.-Canada Waste Trade Agreement almost immediately.
        Question 4. Has the EPA taken any action to implement the U.S.-
    Canada Waste Trade Agreement, including Article 5.3 that expressly
    provides that the Parties ``will make best efforts to provide
    notification'' where current regulatory authority is insufficient? If
    so, please identify the action taken by EPA, the date of the action,
    and provide a copy of any relevant documentation of each such action.
        Response. In addition to seeking the necessary statutory authority,
    we are working on a bilateral basis with Canada to ensure governmental
    coordination and progress on the Agreement. We met with Canadian
    officials in September 2001 and March 2003 to discuss the
    implementation issues. We are also working on a trilateral basis with
    Canada and Mexico under the auspices of the Commission for
    Environmental Cooperation (CEC), established under the North American
    Agreement on Environmental Cooperation, to ensure transboundary waste
    movements are managed in an environmentally sound manner.