In the United States, Waste Management companies provide municipal solid waste (MSW) collection, recycling, and disposal services in all the States. Waste Management operates more than 300 solid waste landfills and 23,000 waste collection and transport vehicles serving approximately 1.6 million commercial and industrial customers as well as 19 million residential customers. In addition, through Wheelabrator Technologies, Inc.'s 14 waste-to-energy plants, we produce energy from waste for the 400 communities they serve.
We provide these services in a heavily regulated and highly competitive business environment. Like all businesses, we are keenly interested in proposals, such as restrictions on the interstate movement of MSW, that would change that regulatory or competitive environment, and threaten the value of investments and plans we have made in reliance on the existing law.
In the balance of this statement, I will try to share with the Committee our reasons for concern and opposition to the proposed legislation before you. I will discuss the background and context as we see it, and suggested criteria for evaluation of legislation. I will then comment briefly on the Fresh Kills issue as well as the bills under consideration and proposals to restore flow control. More detailed comments on the bills are set forth in attachments to this statement.
The Scope of Interstate Movements
Approximately 8% of the MSW generated in the United States is shipped across State lines for disposal. These shipments form a complex web of transactions that often involve exchanges between two or more contiguous States in which each State both exports and imports MSW. An August 1998 Congressional Research Service report documents interstate movements of MSW between 43 States during 1997, involving exports by 33, and imports by 36 States. Nineteen States both exported and imported more than 100,000 tons of MSW.
The report explains that there are several factors contributing to these interactions. In some States, areas without disposal capacity are closer to landfills, or to less expensive disposal, across a border at strategically located regional landfills.
The Role of Regional Landfills
The CRS report notes that the number of landfills in the US declined by 46% between 1993 and 1997 as small landfills have been closed in response to the increased costs of construction and operation under the Federal RCRA Subtitle D and State requirements for environmental protection and financial assurance. The number of landfills in the early 1990s was nearly 10,000; today there are about 2,600, and the total number continues to decline as small landfills close, and communities in "wastesheds" turn to state-of-the-art regional landfills that are able to provide safe, environmentally protective, affordable disposal.
Construction and operation of such facilities, of course, requires a substantial financial investment. By necessity, regional landfills have been designed in anticipation of receiving a sufficient volume of waste from the wastershed, both within and outside the host State, to generate revenues to recoup those costs and provide a reasonable return on investment.
It was widely recognized that the costs to most communities of Subtitle D-compliant "local" landfills were prohibitive. The development of regional landfills was not only entirely consistent with all applicable law, it was viewed and promoted by Federal and State officials and policy as the best solution to the need for economic and environmentally protective disposal of MSW.
Waste Management's experience and activities in Virginia, where it operates 5 regional landfills, is illustrative of the role that these facilities play throughout the country. While I will defer to the comments of Mr. Miles and refrain from detailed comments about the Charles City County landfill, let me just describe the situation generally and provide a few details for you.
There are 7 regional landfills and 63 local landfills in Virginia that accept MSW. All of the regional landfills have been sited, constructed, and operated with liners, groundwater monitoring wells, and the other requirements of Subtitle D Standards. By contrast, 30 of the local landfills have no liners, and operations at 15 local landfills have resulted in contamination of the groundwater. No action is scheduled to abate the problems or close the leaking local landfills.
Meanwhile, the regional landfills provide safe and affordable disposal as well as significant contributions to the local economy through host fees, property taxes, and business license fees, totaling about $18 million from our 5 sites in 1998 alone. Additional contributions to the communities include free waste disposal and recycling services, and in some cases assumption of the costs of closing their substandard local landfills. These revenues and services enable the host communities to improve and maintain infrastructure and public services that would otherwise not be feasible.
The Broader Context
The proposed legislation before you would radically disrupt and transform the situation I have described. For that reason, as well as the precedential nature of some of the provisions, let me suggest that you consider those bills in a broader context.
The applicability of the Commerce Clause to the disposal of out-of-State MSW has been well established by a long line of decisions by the U.S. Supreme Court spanning more than 20 years. The Court has consistently invalidated such restrictions in the absence of Federal legislation authorizing them.
Throughout this period, companies like Waste Management have done what businesses do: they have made plans, invested, written contracts, and marketed their products and services in reliance on the rules, which clearly protected disposal of out-of-State MSW from restrictions based solely upon its place of origin.
In this fundamental sense, the interstate commerce in waste services is like any other business, and proposed legislation to restrict it should be evaluated in the broader context of how you would view it if its principles and provisions were made applicable to other goods and services, rather than just garbage.
Consider, for example, parking lots. Suppose a State or local government sought Federal legislation authorizing it to ban. limit, or charge a differential fee for parking by out-of-State cars at privately owned lots or garages, arguing that they were using spaces needed for in-State cars, and that the congestion they caused was interfering with urban planning, etc. Or suppose they asked for authority to tell privately owned nursing homes or hospitals that they couldn't treat out-of-State patients because of the need to reserve the space, specialized equipment, and skilled personnel to meet the needs of their own citizens. Similar examples can easily be identified--commercial office space for out-of-State businesses, physicians and dentists in private practice treating out-of-State patients, even food or drug stores selling to out-of-State customers.
I would hope that in all of these cases, you would respond to the proponents of such legislation by asking a number of questions before proceeding to support the restrictions: What kind of restrictions do you want? Are they all really necessary? Can you meet your objectives with less damaging and disruptive means? What about existing investments that were made in reliance on the ability to serve out-of-State people? What about contracts that have been executed to provide that service? Would authorizing or imposing such restrictions be an unfunded mandate on the private sector providing those services, or on the public sector outside the State that is relying on them? Would such restrictions result in the diminution of the value of property purchased in reliance on an out-of-State market, and thereby constitute a "taking"? Will the restrictions be workable and predictable? I respectfully suggest that you ask the same questions about the proposed legislation involving restrictions on interstate MSW.
Suggested Criteria
At some risk of oversimplification, the questions and concerns described above can be captured in 3 criteria by which to evaluate the proposed legislation; would the legislation provide Protection, Opportunity, and Predictability?
I hope the need for Protection is obvious. Good faith investments made in reliance on existing law should be protected. So, too, should the good faith decisions of local governments to enter Host Community Agreements approving receipt of out-of-State waste. Similarly, legally binding contracts entered into before enactment of a change of rules must be protected out of fairness and to avoid sending a terribly threatening signal about the reliability of contracts, which constitute a fundamental building block of our economy.
The Opportunity criterion refers to the need to ensure the opportunity to compete in a lawful market that demands services, and to grow by virtue of the quality of the services offered. Discriminatory or arbitrary measures that deny or limit entry or participation in a market are simply bad policy that runs counter to the overwhelming trend in this country. They deny the public the benefits of competition.
By "Predictability", I intend to suggest that we need to know what the rules are. While nothing Is entirely certain or predictable in business or life, legislation should not add to market dynamics uncertain, external factors that allow for a change of rules based on a change of political winds or even personal whim. Business planning is rendered futile in the face of such uncertainties.
The Proposed Legislation
When measured against the suggested criteria, all the proposed legislation before you (S. 533, S. 663, and S. 872) fail on all counts.
None of the bills provides the Protection for host agreements, investments or contracts that they deserve. None of the bills preserves an Opportunity for entry into and growth in a market that demands economic and protective waste disposal. Finally, none of the bills provides Predictability about the rules that will apply to interstate shipments of waste. The array of discretionary authorities for Governors to ban, freeze, cap, and impose fees, and then change their minds over and over again, promises to result in chaos and a totally unpredictable and unreliable market and waste disposal infrastructure.
The "Fresh Kills Issue"
My comments thus far have dealt with interstate waste shipments generically, because the bills before you are applicable throughout the Nation. Let me turn now to comment on the "Fresh Kills Issue" that has attracted so much attention and motivated, at least in part, some of the legislative proposals.
In doing so, I want to stress that it is New York, not Waste Management, that has decided to close Fresh Kills landfill, and to request proposals for disposal of its MSW outside New York City. We are competing for that business. Our shareholders expect us to do so.
My purpose here is not to speak for New York State or the City, but rather to suggest that you consider the implications of two facts that have largely escaped attention.
First, the fact is that New York is not the largest exporter of MSW when measured as a percentage of the MSW a State generates. Nine States (DE, MD, NJ, RI, VT, LA, IL, MO, ID) and the District of Columbia all exported a greater percentage of their waste than the 13% exported by New York.
Second, New York City has committed to send Fresh Kills waste only to landfills in communities that have approved receipt of out-of-State MSW.
As a matter of policy, exactly what's wrong with a State exporting 13% or some similar percentage of the waste it generates to state-of-the-art landfills in communities that have approved receipt of out-of-State waste? If there is something wrong with it, precisely what must be changed, why, and how will legislation accomplish it?
Flow Control
Finally, let me comment briefly on the proposals in S. 633 and S. 872 to restore flow control authority.
We oppose restoration of flow control because we believe that it's simply too late to put Humpty Dumpty back together again. Restoration of flow control is neither feasible nor desirable.
In the 5 years since the Carbone decision, landfills and transfer stations have been constructed, trucks have been bought, people have been hired, contracts have been written, and both the consumers and providers of waste services have experienced the benefits of a competitive market. These investments and arrangements cannot be undone, nor should they be.
There is also good reason to question whether these flow control provisions, based on an approach crafted 3 years ago, are even needed any longer. Federal court decisions have upheld the use of waste districts, generation fees, and competitively awarded contracts as means to direct waste or provide funding to formerly flow controlled facilities.
Thank you, Mr. Chairman. That concludes my statement.
The provisions of S. 533 would result in unfair, unnecessarily severe, and probably unworkable restrictions on the interstate movement of waste that would abrogate contracts, diminish the value of private property and investments, void decisions by local governments, increase the cost of waste disposal, and disrupt existing and planned arrangements for waste disposal services. These problems are illustrated by the provisions discussed below.
Federal Presumptive Ban: Proposed new section 4011(b)(3) at page 13 imposes a Federal ban on receipt of out-of-State (OOS) municipal solid waste (MSW) unless the landfill is exempted from the ban (1) as a result of an existing or new Host Community Agreement (HCA) approving receipt of OOS MSW, (2) because it is located in a bi-state metropolitan statistical area, or (3) because it accepts for disposal less than 10,000 tons per year. Unlike other pending bills, there is no exemption for landfills that received OOS MSW in past years, or for those with State permits authorizing its receipt.
The ban is effective immediately upon enactment of the new section unless a State opts out under subsection (g) at page 25. As a result, every community in the Nation that hosts a facility without an HCA or other basis for exemption will be required by Federal law to expend the time and money to conclude an HCA in accordance with the elaborate and extensive requirements of proposed new section 4011(d) at pages 13-19, if it wants the facility to be able to receive OOS waste. This Federal requirement to spend time and money would be imposed even if the community had no desire to limit receipt of OOS MSW. The immediate effectiveness of the ban means that the flow of OOS MSW to facilities in those communities will be immediately and entirely cut off until they conclude the HCA process.
Moreover, even those communities that have concluded an HCA will be at risk as well, since there is no provision for resolving potential disputes about whether the facility is exempt from the ban. What agency enforces the ban? What is the penalty for violation of the ban? What courts have jurisdiction over disputes about the validity of HCAs? What happens to the flow of waste while the dispute is pending in the courts?
Freeze Authority: Subsection (b)(1) at pages 8-9 gives the Governor of any State that imports more than 1 million tons a year immediate discretionary authority to freeze imports at the 1998 level, even at landfills with valid HCAs. Thus, the facilities that escaped the presumptive ban because of their HCAs are subject to a freeze on volumes, and the decisions of local governments to allow imports are voided.
Super Exporting State Ban: Subsection (b)(2) gives the Governor of any State the discretionary authority, beginning in 2001, to ban all imports of OOS MSW from "super exporting states" that export more than 6 million tons per year. Here again, this authority applies to facilities with HCAs, thereby again vitiating the decisions of local elected officials.
Discretionary Adjustments of Freeze and Ban: Subsection (b)(3) gives any Governor who imposes the freeze or super exporting state ban the authority to adjust either one so as to give some landfills special privileges (exemptions), while imposing them on others.
Interestingly, a Governor's failure to respond to a request for an exemption is deemed an approval in the case of the freeze (page 11), but not in the case of the ban (page 12). Why not? What is an affected local government that receives no response supposed to do? More fundamentally, this discretionary authority to grant special exceptions would seem to invite the most undesirable political machinations and favoritism, making sound business planning by disfavored competitors virtually impossible. Indeed, planning by even the favored landfill and community will be in jeopardy of a change of political winds, since there is nothing irrevocable about the grant of an exception.
Contract Protection: There is no protection for legally binding contracts entered into before enactment of the legislation. The Federal ban, the freeze, the super exporting state ban, and the fees could all impair or abrogate such contracts.
While the discretionary actions of a Governor might be challenged successfully as violations of the Contract Clause of the U.S. Constitution, doing so would entail substantial expense and time, during which performance of the contract would be impaired.
The absence of explicit language protecting contracts is even more troubling in the context of the Federal ban. Imports pursuant to a contract entered into before enactment will likely not be protected from the ban because the Governor of the importing State would not have a role in banning the import; it would be prohibited by the Federal statute. State law is not likely to provide protection from a Federal ban. Conversely, the Contract Clause applies only to actions by a State that abrogate a contract, so it would not protect the contract flows either.
Fees: Subsection (f) at pages 22-23 authorizes any State to impose a fee of up to $3 per ton of OOS MSW beginning in 2001 and a fee on OOS MSW from a super exporting State of $25 per ton in 2002, $50 per ton in 2003, and $100 per ton in 2004.
Unlike other pending legislation, there is no requirement that a State show that there is an unrecovered cost to the State for management of OOS MSW, nor is there an offset for benefit fees voluntarily paid to a host community. Moreover, like all the other discretionary authorities in this proposed section, there is nothing irrevocable about the decision of a Governor to impose or not impose a fee. As a result, fees can be imposed, then lifted, then imposed again, and so on, creating virtual chaos in the market, and foiling the best efforts of exporters, importing facilities, and host communities to predict, plan, contract, and invest based upon reasonable expectations and normal business dynamics.
Public vs. Private Sector: Although the text is not entirely clear or consistent, it appears to discriminate against the private sector and to favor the public sector by exempting from restrictions landfills owned or operated by a State or local government (page 7, line 20 through page 8, line 2). Why should a decision by an affected local government to allow receipt of OOS MSW at a privately owned/operated landfill be irrelevant, but so relevant for a publicly owned facility that no restrictions at all are imposed?
Reporting Requirements: Subsection (e) at pages 19-22 establishes a complicated, burdensome, and probably unworkable reporting system by which to determine the amount of MSW exported and imported by each and every State during the preceding year. Among the difficulties posed are the following:
-The "owner or operator" of a landfill does not include States or local governments under subsection (a)(8) at page 7, so publicly owned/operated landfills will not report under subsection (e)(1)(A), and the data will therefore be incomplete;
-States are given only 30 days after receipt of data from landfills, and EPA is given only 30 days to compile their reports. Such expeditious action is both unreasonable and unprecedented;
-States are required by subsection (e)(2)(A)(ii) to report the quantity of MSW exported during the preceding year. Exactly how are they expected to determine that amount? Few, if any, States currently gather such information on a comprehensive basis;
-Subsection (e)((2)(B)(iv) at page 20 requires States to report the "identity" of the generator of MSW. If this is meant to require the name of each person generating MSW, it is both impossible and irrelevant; and
-Subsection (e)(2)(D) at page 22 precludes judicial review of the list prepared by EPA. What, then, is an aggrieved party to do if the data, upon which bans, freezes and fees are based, are clearly erroneous?
TSCA-Regulated Waste: Subsection (a)(6) excludes from the definition of the MSW covered by the bill hazardous waste listed under section 3001, but waste regulated under the Toxic Substances Control Act is not excluded. The failure to expressly do so suggests that receipt of OOS TSCA-regulated waste at any landfill or incinerator is subject to the bans and limits of the bill.
Drafting Uncertainties: It is unclear as to whether incinerators are covered by some of the restrictions in the bill. "Incinerator" is included under the definition of affected local government, host community agreement, and owner or operator, but not elsewhere. The intended role of the subsection (a)(2) "affected local solid waste planning unit" is also unclear.
Section 2 of H.R. 1190 and S. 633 would abrogate contracts, diminish the value of private property and investments, void decisions by local governments, increase the cost of waste disposal, and disrupt existing and planned arrangements for waste disposal services. These problems are illustrated by the provisions discussed below in the order in which they appear in the bill.
Federal Presumptive Ban: Proposed new section 4011(a) at page 2 imposes a Federal ban on receipt of out-of-State (OOS) municipal solid waste (MSW) unless the landfill or incinerator is exempted from the ban (1) as a result of a Host Community Agreement (HCA) approving receipt of OOS MSW, (2) because it has a permit authorizing its receipt, or (3) because it has entered into a binding contract for a specific quantity of OOS MSW. All three of these purported exemptions are either much more limited than they appear or entirely illusory, as discussed below.
The ban is apparently effective immediately upon enactment of the new section. As a result, every community in the Nation that hosts a facility without an HCA, permit or contract for receipt of OOS MSW will be required by Federal law to expend the time and money to conclude an HCA in accordance with the elaborate and extensive requirements of proposed new section 4011(c) at pages 3-7, if it wants the facility to be able to receive OOS waste. This Federal requirement to spend time and money would be imposed even if the community had no desire to limit receipt of OOS MSW. The immediate effectiveness of the ban means that the flow of OOS MSW to facilities in those communities will be immediately and entirely cut off until they conclude the HCA process.
Moreover, even those communities that have concluded an HCA or host facilities that have permits or contracts will be at risk as well, since there is no provision for resolving potential disputes about whether the facility is exempt from the ban. What agency enforces the ban? What is the penalty for violation of the ban? What courts have jurisdiction over disputes about the validity of HCAs, permits, or contracts? What happens to the flow of waste while the dispute is pending in the courts?
Definition of "Complies" and "Compliance": The exemptions from the federal ban are contingent on the facility being in "compliance" with Federal and State laws and regulations (page 11, lines 3-17) and with all of the terms and conditions of a permit authorizing receipt of OOS MSW (page 9, line 5), as well as the terms and conditions of the HCA (page 2, lines 24-25). This is a giant loophole, since the terms are not defined. Unless they are adequately defined, arbitrary and capricious action by State officials could lead to closure of a facility to all OOS MSW because of a litter violation, a one-day delay in filing of a required report, or other minor infraction. Moreover, there is no mechanism for disputing the alleged non-compliance or any requirement that it be proven. A mere allegation of non-compliance would appear to suffice.
State Laws on HCAs: Proposed new subsection (C)(6) at page 8, lines 2-6 would authorize states to enact laws governing the entry by an affected local government into an HCA. There is no requirement that such laws be consistent, or not inconsistent, with the provisions of the section. Thus, for example, a State might enact a law requiring approval of a proposed HCA by the governor or legislature of that State, or impose other requirements that would effectively preclude HCAS.
Contract Protection: Receipts of OOS MSW under certain legally binding contracts entered into before March 18, 1999 are explicitly protected from the ban by subsection (d)(1)(B)) at page 9, line 12-page 10, lines 1-7. In addition to the fact that this means that no subsequent contracts would be protected, even if the bill is not enacted for more than a year, the pre-March 1999 contracts will be protected only if the receiving landfill or incinerator on the date of enactment "has permitted capacity actually available" for the OOS MSW covered by the contract. Since sound business planning and cash flow considerations will ensure that this will almost never be the case, the protection is illusory. Moreover, even if there is permitted capacity for the total volume of waste to be received during the life of the contract, the subsection establishes a new federal law of contracts that denies protection to contract renewals and extensions, even if they are not "novations" of the contract, and even if they would be protected under state law.
Limitations on Amount of Waste Received: Proposed new subsection (f) at page 11, line 18 through page 14, line 14 would allow a State or affected local government to freeze at 1993 levels the amount of OOS MSW that "naked grandfather" facility may receive. These are the facilities that are exempt from the ban because they received OOS MSW in 1993, but they do not have the required HCAs or permits authorizing receipt of OOS MSW.
A fundamental question arises as to whether a State could freeze receipts at facilities that do not have the requisite HCAs, permits, or contracts that would exempt them from the ban. The text of the subsection (a) Federal ban applies to all facilities unless they are specifically exempted. What naked grandfathers would be subject to the freeze rather than the ban?
In addition, for those facilities that are subject to the freeze, as is the case with exemptions from the ban, the exemptions are more apparent than real because
-a facility with an HCA is protected only if it had permitted capacity at the time of entering into the HCA to receive all of the OOS MSW authorized by the HCA (page 13, lines 1-5). This is a null set. Virtually all facilities with HCAs will be subject to the freeze.
The owner or operator of the facility must be able to document the "identity of the generator" of OOS MSW that was received in 1993. Assuming that this requires the names of each person from whom such waste was collected, it imposes an impossible burden and guarantees that all naked grandfather facilities will be subject to the ban, not the freeze.
Needs Determination: Subsection (g)(1) on pages 14-15 guts all of the protection granted by other provisions of the bill for facilities with HCAs, permits, or "naked grandfather" status to receive OOS MSW by giving State permitting officials the power to deny permits for construction of new facilities and expansions of existing facilities if the officials determine that there is no local or regional need for the facility. Subsection (k) on page 22 "immunizes" such a denial from lawsuits based on the Commerce Clause.
The effect of this text would be to allow a State to discriminate against OOS MSW by denying permits for landfills or incinerators that would receive waste from outside the State, since the local area or region in the State would not "need" a facility for that out-of-State waste. This would make a nullity of any protection that might otherwise be gained from the rest of the bill, In the midst of widespread efforts to eliminate barriers to entry so as to promote competitive markets in virtually every sector of the economy, this proposal would move in exactly the opposite direction with centralized planning that will stifle competition and increase the costs of waste disposal. The existing facility would be given a monopoly, free from competition from "unneeded" capacity. Moreover, how will the central planners pick which facility gets a permit when and if they decide that new capacity is needed?
Caps: Subsection (g)(2) on pages 15-16 further erodes the protections ostensibly secured by other provisions of the bill. It authorizes any State to adopt a law that caps the amount of OOS MSW that may be received under permits issued after enactment at 20 percent of all MSW received annually. This would be a severe problem for regional landfills and incinerators for which there would simply not be sufficient in-State waste to sustain adequate operations.
Paragraph (B) exempts from the caps receipts at facilities that entered into HCAs prior to enactment, but only if the HCA specified the quantity of OOS MSW that may be received. Since few, if any, HCAs specify an amount, the effect of this paragraph is to deny any protection to pre-enactment HCAS. Moreover, since it makes no mention of post-enactment HCAs, it appears that they would be of no value in escaping a 20 percent cap, even if they did specify an amount. The combined effect of these provisions is to eliminate any reason to negotiate HCAs after enactment, and to so severely curtail operations as to eliminate existing regional facilities with HCAS.
Authority Based on Recycling Programs: Proposed subsection (h) on pages 16-19 allows States with comprehensive recycling programs to freeze receipts of OOS MSW at the levels facilities received in 1995, the year before Wisconsin's law was declared unconstitutional. Here again, facilities with HCAs are exempt only if they had, at the time of entering the HCA, permitted capacity to receive the waste authorized by the HCA a null set.
Affected Local Government: Subsection (m)(1) on page 23 defines the "affected local government" that is authorized to enter into an HCA and thereby exempt a facility from the ban and perhaps the freeze on its receipt of OOS MSW.
The text defines affected local government as the planning entity in all cases unless there is none authorized by State law, rather than the elected officials of the city, town, etc. with whom HCAs have traditionally been entered. This failure to recognize any but the planning body is artificial and a radical departure from all previous versions of proposed legislation on this subject, including the texts of H.R. 4779 that passed the House September 28, 1994, S. 2345 that passed the Senate September 30, 1994, S. 2345 that passed the House by unanimous consent on October 7, 1994, and S. 534 that passed the Senate on May 16, 1995. All of these texts allowed HCAs with either entity before enactment.
Here again, the effect of this provision would be to invalidate existing HCAs that have been concluded in good faith with the elected officials of local governments before enactment of any legislation. Their decisions on behalf of the people most directly affected by OOS MSW would be vetoed by the Federal legislation requiring that the time and money spent on public hearings and deliberations be cast aside, and that they effectively beg for approval from the MSW planning body to decide and determine their own best interestS.
Construction and Demolition Waste: The subsection (m)(3) definition of "MSW" includes on page 22, lines 13-24 C&D; waste from "structures".
The effect of this text would be to subject all C&D; waste to an unworkable regime that will increase the costs of its disposal for the following reasons:
"Structures" is not defined. Is debris from a tollbooth on a highway from a "structure"? Is the pavement at a drive-in food store or gas station, or the parking lot for an apartment building or store included as debris from "structures" when they and their associated buildings are constructed, repaired, or demolished? What about mixed loads from those sources, or from the sites of the Florida hurricane, Los Angeles earthquake, Midwest floods, or Oklahoma City bombing?
How does the landfill owner know whether the debris was from a "structure" and covered by a ban or limit when it arrives in a truck at the landfill?
TSCA-Regulated Waste: Subsection (m)(3) excludes from the definition of the MSW covered by the bill hazardous waste listed under section 3001, but waste regulated under the Toxic Substances Control Act is not excluded. The failure to expressly do so suggests that receipt of OOS TSCA-regulated waste at any landfill or incinerator is subject to the bans and limits of the bill.
Industrial Waste: In a similar departure from all previous approaches to this problem, industrial, non-hazardous waste is not excluded from coverage under the bill. Subsection (m)(3)(B)(v) on page 24 excludes only that industrial waste that is sent to a "captive" facility owned by the generator or its affiliate. All other non-hazardous industrial waste generated by manufacturing or industrial processes would be subject to the bans and limits of the bill. The result would be a drastic reduction in the amount of industrial waste moving in competitive interstate commerce, and a dramatic increase in the costs of disposal.
Section 2 of S. 872 would result in unfair, unnecessarily severe, and probably unworkable restrictions on the interstate movement of waste that would abrogate contracts, diminish the value of private property and investments, void decisions by local governments, increase the cost of waste disposal, and disrupt existing and planned arrangements for waste disposal services. These problems are illustrated by the provisions discussed below.
Federal Presumptive Ban: Proposed new section 4011(b) at page 11 imposes a Federal ban on receipt of out-of-State (OOS) municipal solid waste (MSW) unless the landfill or incinerator is exempted from the ban (1) as a result of an existing Host Community Agreement (HCA) approving receipt of OOS MSW, (2) as a result of a new HCA, or (3) because it has a permit authorizing its receipt, received OOS MSW in 1993, or is located in a bi-state metropolitan statistical area. All three of these purported exemptions are either much more limited than they appear or entirely illusory, as discussed below.
The ban is apparently effective immediately upon enactment of the new section. As a result, every community in the Nation that hosts a facility without an HCA, permit or other basis for exemption will be required by Federal law to expend the time and money to conclude an HCA in accordance with the elaborate and extensive requirements of proposed new section 4011(d) at pages 12-18, if it wants the facility to be able to receive OOS waste. This Federal requirement to spend time and money would be imposed even if the community had no desire to limit receipt of OOS MSW. The immediate effectiveness of the ban means that the flow of OOS MSW to facilities in those communities will be immediately and entirely cut off until they conclude the HCA process.
Moreover, even those communities that have concluded an HCA or host facilities that have permits or received OOS MSW in 1993 will be at risk as well, since there is no provision for resolving potential disputes about whether the facility is exempt from the ban. What agency enforces the ban? What is the penalty for violation of the ban? What courts have jurisdiction over disputes about the validity of HCAs, permits, or 1993 receipts? What happens to the flow of waste while the dispute is pending in the courts?
Contract Protection: Proposed new subsection (g) at pages 22-25 would allow a State to freeze at 1993 levels the amount of OOS MSW that "naked grandfather" facilities may receive. These are the facilities that are exempt from the ban because they received OOS MSW in 1993, but they do not have the required HCAs or permits authorizing receipt of OOS MSW. Subsection (g) (1) (C) at page 24 states that nothing "in this subsection" supercedes any State law relating to contracts. No such language can be found with respect to the other subsections. As a result, receipts of OOS MSW under contracts are apparently not protected from the subsection (b) ban or the subsection (h) ratchet at pages 25-27.
The absence of explicit language protecting contracts is particularly troubling in the context of the Federal ban. Imports pursuant to a contract entered into before enactment will likely not be protected from the ban because the Governor of the importing State would not have a role in banning the import; it would be prohibited by the Federal statute. State law is not likely to provide protection from a Federal ban. Conversely, the Contract Clause of the U.S. Constitution applies only to actions by a State that abrogate a contract, so it would not protect the contract flows either.
Affected Local Government: Subsection (a)(1) on pages 2-3 defines the "affected local government" that is authorized to enter into an HCA and thereby exempt a facility from the ban and freeze on its receipt of OOS MSW.
The text defines affected local government as the planning entity in all cases unless there is none authorized by State law, rather than the elected officials of the city, town, etc. with whom HCAs have traditionally been entered. This failure to recognize any but the planning body is artificial and a radical departure from all previous versions of proposed legislation on this subject, including the texts of H.R. 4779 that passed the House September 28, 1994, S. 2345 that passed the Senate September 30, 1994, S. 2345 that passed the House by unanimous consent on October 7, 1994, and S. 534 that passed the Senate on May 16, 1995. All of these texts allowed HCAs with either entity before enactment.
The effect of this provision would be to invalidate existing HCAs that have been concluded in good faith with the elected officials of local governments before enactment of any legislation. Their decisions on behalf of the people most directly affected by OOS MSW would be vetoed by the Federal legislation requiring that the time and money spent on public hearings and deliberations be cast aside, and that they effectively beg for approval from the MSW planning body to decide and determine their own best interests. The facilities covered by those HCAs would be subject to the ban or, at best, to the freeze and ratchet if they accepted OOS MSW in 1993. .
Construction and Demolition Waste: The subsection (a)(8) definition of "MSW" at pages 8-10 does not expressly exclude C&D; waste. If that is the intent, the exclusion should be expressly set forth among the exclusions. Failure to do so would give rise to the argument that C&D; waste is included, and dramatically increases the costs of its disposal.
Host Community Agreement: An additional problem results from the subsection (a)(4) definition of "Existing HCA" at page 5 and the subsection (a)(9) definition of "New HCA" at page 10. Existing HCAs are those entered into before January 1, 1999, while New HCAs are those entered into on or after the date of enactment. So what is the status of HCAs entered into after 1/1/99 but before enactment?
TSCA-Regulated Waste: Subsection (m)(3) excludes from the definition of the MSW covered by the bill hazardous waste listed under section 3001, but waste regulated under the Toxic Substances Control Act is not excluded. The failure to expressly do so suggests that receipt of OOS TSCA-regulated waste at any landfill or incinerator is subject to the bans and limits of the bill.