Before The

Environment and Public Works Committee

United States Senate

The Honorable James M. Jeffords, Chairman

March 20, 2002

Mr. Chairman and members of the Committee, my name is Leslie Allan, and I am Deputy Commissioner for Legal Affairs at the New York City Department of Sanitation. On behalf of Mayor Bloomberg, I appreciate the opportunity to testify today on pending interstate waste legislation - bills that could clearly have a profound impact on the City’s day-to-day municipal solid waste operations.

In 1996 Mayor Giuliani and Governor Pataki agreed to close the Fresh Kills landfill by December 31, 2001. That decision was the City’s first step toward embarking on a new, environmentally sound course in the management of its solid waste. It is important for the Committee to recognize from the outset that 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. On March 22, 2001, just about one year ago, New York City sent its last barge of Department collected waste to Fresh Kills, completing a five-phase program initiated in July of 1997, requiring that all of the City’s exported waste be disposed of in communities that expressly choose to accept it through valid, legally binding Host Community Agreements. Since this plan mandates that the City only export to willing jurisdictions, the Mayor does not see a need for legislation to require New York City to do that which it already requires of itself.

In exporting its residential waste, the City is exercising nothing more than the right the Constitution extends to cities and states nationwide– responsible, efficient, and environmentally sound solid waste management through heavily regulated and highly competitive private sector businesses. The courts have consistently upheld MSW 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 more rigorous environmental protections required under Subtitle D of the Resource and Conservation and Recovery Act (RCRA) have compelled communities to replace old, small landfills with larger, costlier, state-of-the-art, regional facilities that comply with the law. In this context, the right to transport solid waste across state lines complements the basic reality that different regions have varying disposal capacities irrespective of state lines. Areas such as New York City and Chicago, lacking adequate space for landfills and/or prohibited from waste incineration, may be located closer to better and more cost-effective facilities in other states. These facilities need the additional waste generated elsewhere to pay for part of the increased cost of RCRA compliance.

Although the closure of Fresh Kills affects only the City’s residential waste, the private market is as essential to the management of that waste as it is to disposing of the City’s commercial waste. For years the City’s businesses have relied on private haulers to export waste from New York. For many communities and states, MSW disposable fees are an important revenue stream. The City believes that each locality has the right to accept or reject the disposal of solid waste– not by federal legislation, but by locally decided Host Community Agreements.

The fact is that the City, in securing contracts for waste disposal exclusively at Host Community Agreement sites, has furthered a partnership that benefits importer and exporter alike. For the nation’s largest and most densely-populated city of eight million people- comprised of three islands and a peninsula - 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 the localities that have opted to import our waste, the revenue generated through host fees, licensing fees, and taxes has substantially enhanced the local economy, improved area infrastructure, paid for school construction, paved roads, and assisted host communities in meeting their own waste management needs. Clearly, there are many other jurisdictions nationwide that share New York’s approach, since 42 states import and 46 states and Washington, DC, export municipal solid waste.

For the City and businesses it selects to handle MSW disposal, certainty and the long-term security of waste management arrangements are fundamental to making New York a viable place to live and work. Any disruption to the contracts and agreements providing the City’s waste disposal framework could interfere with the City’s day-to-day operations. This is why the City enthusiastically supports the importing community’s right to negotiate a Host Community Agreement most suited to its particular needs, and to spell out in detail all of 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, however, these agreements and contracts must be inviolate 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 put into place measures that ensure 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 and applicable fees. Furthermore, 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.

In closing Fresh Kills landfill, the City looked to the private sector and the competitive free market to shape the future availability of disposal sites. In July of 1997, when the City began the first phase of diverting waste from the landfill, The New York Times reported that certain local officials were ready to welcome New York’s waste because it made “good economic sense.” Robert E. Wright, president of the Connecticut Resource Recovery Authority, which oversees and is part owner of that state’s incinerators, told the press, “I guess we probably have a more favorable eye on New York than some more distant states.” Of some jurisdictions The Times reported further, “ . . . where counties have spent millions of dollars to build incinerators, local officials generally are eager for any guaranteed flow of trash.”

New York City, one of the largest consumer markets in the nation, is not solely dependent on exporting MSW through private disposal markets to close Fresh Kills. Although we are currently retooling our residential recycling program, it continues to be one of the most ambitious in the nation. New York City’s recycling program is the only large city program that requires 100 percent of its households - including multi-family dwelling residents to recycle. Moreover, the New York City Mayoral Directive to all City agencies to reduce workplace waste and establish accountability measures for waste reductions have reduced further the daily tonnage of export.

The City’s residents are huge consumers of goods manufactured in and shipped from other states, and the waste generated by packaging materials is significant. For that reason, the Mayor supports federal legislation that would limit packaging or require manufacturers to use some percentage of recycled content in packaging material. Such requirements would have tremendous – and 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 amount of its waste outside its boundaries. I am confident that the capacity, the market, and the desire to accommodate the City’s waste at out-of-state disposal sites will exist in the foreseeable future. To that end, New York City, successfully closed Fresh Kills by relying on free market, private sector solutions predicated on the strength of Host Community Agreements.

On behalf of Mayor Bloomberg, I thank the Committee and underscore the City’s interest and commitment in addressing Congress’ concerns regarding the interstate transport of municipal solid waste.