[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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                            WASHINGTON : 2003
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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.

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