Mr. Chairman and distinguished members of the committee, I am pleased to testify on pending legislation that would vest states and localities with federal authority to control shipments of out-of-state municipal solid waste (MSW). As members of the committee may know, Indiana's elected state officials and federal representatives have long been concerned that our state's efforts to manage the disposal of our solid waste, as required under federal law, are threatened by unconstrained flows of garbage. I am therefore gratified to offer comments on behalf of the State of Indiana on two bills, S. 872 and S. 533, recently introduced in the U.S. Senate to address this issue.
Today's hearing comes at an auspicious time. Shipments of interstate municipal solid waste continue to rise nationally, and so does public concern. A 1998 report issued by the Congressional Research Service showed a 32% increase of imports over the two-year period from 1995 to 1997. In Indiana, during calendar year 1998, almost 2.2 million tons of out-of-state municipal solid waste was disposed of at our MSW facilities, mostly landfills, representing 30 percent of the total amount. Adding construction and demolition (C&D;) debris and special waste, which are recorded separately, a total of 2.8 million tons of out-of-state waste was disposed of at Indiana MSW disposal sites last year-- enough to cover two lanes of Interstate 95 from Washington, D.C. to Richmond, Virginia and back again with 10 feet of garbage.
Almost all of Indiana's out-of-state waste currently comes from neighboring states, with most shipments originating at transfer stations in the Chicago area and going to landfills in the northern portion of the state. A number of years ago, Indiana was deluged with garbage shipments from New Jersey and New York. However, through aggressive enforcement of state regulations concerning the types of waste allowed in landfills, negotiated agreements between Indiana and those two states, and the filling-up and closure of several landfills receiving out-of-state waste, the flow was dramatically reduced. In fact, last year, our state received no long-haul shipments from the East Coast.
While this situation could change, especially with the closure of the Fresh Kills landfill in Staten Island, New York, Governor Frank O'Bannon and I are chiefly concerned with ensuring that our administration and local officials gain the ability to control the overall amount of out-of-state waste shipments. Our primary goal is to protect our state's disposal capacity and natural resources; the origin of out-of-state shipments is less important. At the present time, we have 24 years of in-state capacity based on current disposal rates, and the state's 61 solid waste districts are working hard to meet our goal of reducing disposal by 50% by the year 2001. At the current rate of out-of-state waste shipments, however, that capacity could be reduced by 8 years.
Our efforts to manage in-state capacity needs could be frustrated by the growing influx of garbage, which serves to exhaust landfill capacity that is saved through local recycling and waste reduction efforts. It becomes difficult to make the case for waste reduction in Indiana as other states' garbage flows freely across our borders.
When, in 1990, out-of-state waste became an issue of public concern in Indiana, our state legislature passed several provisions of law to protect our citizens against the unregulated dumping of trash. These included a higher tipping fee for out-of-state waste and a requirement that out-of-state shipments be certified as not containing hazardous or infectious waste. A federal judge who ruled they violated the Commerce clause of the U.S. Constitution later struck these provisions down.
A year later, in 1991, additional regulatory provisions were passed, including a ban on the hauling of food and other products in a vehicle used to also haul solid waste and an identification sticker for vehicles transporting waste into Indiana. These too were ruled unconstitutional.
Today, we still have a law in place from 1990 that requires applicants for new landfills or expansions to demonstrate that there is a local or regional need for additional capacity. This "needs" statute has been used to deny permits on several occasions, but there is no certainty it will withstand court challenge without federal legislative action.
After listening to today's testimony, I urge you to act to address this issue in a manner that carefully balances the concerns of state and local officials, the importance of protecting our natural resources, and the legitimate business interests of the waste industry. Congress could have and should have acted on this issue years ago and two former members of Congress from Indiana -- Senator Dan Coats and Congressman Phil Sharp -- labored long and hard to pass legislation. Indiana's current congressional delegation stands united in its support of enacting a federal interstate waste law.
S. 872, the "Municipal Solid Waste Interstate Transportation and Local Authority Act"
I believe that S. 872, introduced by Senator George Voinovich of Ohio and Senator Evan Bayh of Indiana, represents a measured approach to providing states and localities with tools to limit but not eliminate out-of-state waste shipments. The Voinovich-Bayh bill, which is similar to legislation introduced in the Senate by Senator Arlen Specter of Pennsylvania (S. 663) and Congressmen Jim Greenwood and Ron Klink of Pennsylvania in the House (H.R. 1190), is also supported by the coalition of governors who are working in a bipartisan, collaborative fashion to win passage of federal interstate waste and flow control legislation. In addition to Governor O'Bannon, this group includes Governor John Engler of Michigan, Governor Bob Taft of Ohio, Governor Tom Ridge of Pennsylvania, and Governor Christine Whitman of New Jersey. I note that the congressional delegations of the five states represented by this coalition are being urged to work together on a bill that can pass both the House and Senate. Congressmen Steve Buyer and Pete Visclosky are leading Indiana's efforts in the House.
S. 872 ensures that local officials are held accountable for in-state disposal capacity by imposing a "presumptive" ban after enactment and requiring formal approval for out-of-state shipments. Such approvals must be granted in host community agreements in the form of written, legally binding documents. These agreements must include a specific authorization worded in a manner that ensures public notice of out-of-state shipments.
The bill provides exemptions to the ban for current flows covered by existing host agreements or permits that include specific authorizations. In addition, S. 872 also exempts waste streams at facilities that were taking waste in 1993, the point in time when state and local officials, along with the waste industry, were clearly put on notice that Congress might pass requirements for more disclosure and approval of out-of-state MSW shipments.
Other provisions in S. 872 allow state officials to freeze out-of-waste shipments at all facilities at 1993 levels unless such a limitation conflicts with an existing host agreement or permit authorizing a higher level. If a state does not implement a freeze, an affected local government, as defined under the bill, can implement a freeze at a particular facility if it has not executed a host agreement and the facility does not have a permit authorizing a higher level.
Alternatively, states that received more than 650,000 tons of out-of-state MSW in 1993 may impose a "ratchet" to reduce imports by 35% over 7 years.
States are also given some prospective controls under provisions that authorize implementation of state laws requiring either a "needs" requirement similar to Indiana's statute or a percentage limitation cap for new or expanded facilities. S. 872 establishes a minimum level of 20 percent for the facility cap to ensure a reasonable flow of out-of-state shipments.
In addition, S. 872 includes separate provisions that would allow states to ratchet down shipments of out-of-state C&D; debris by 50 percent over 10 years and impose a surcharge of up to $3 per ton on out-of-state solid waste to help defray the cost of administering their waste management programs. The bill also includes reporting requirements for both waste disposal facilities and transfer stations, which will help to better inform state officials and the general public of the origin of solid waste coming into each state, and in the case of transfer stations, the next destination of waste shipments passing through these facilities.
The Voinovich-Bayh legislation also includes provisions that would allow states that previously adopted "flow control" laws designed to direct locally-generated waste to local facilities, which were subsequently struck down by the U.S. Supreme Court, to reinstitute those authorities for the life of bonds issued in reliance on such statutes. These grandfather provisions would prove beneficial to a number of states, including New Jersey, which enacted flow control laws and sited waste facilities in a good faith effort to better meet their in-state disposal needs.
Taken together, the provisions of S. 872 do not eliminate altogether out-of-state waste shipments, which would be neither prudent nor necessary. They do, however, provide a mix of public notice requirements and controls that will ensure public support for states' waste management programs and prevent unwanted floods of out-of-state trash.
For Indiana, the presumptive ban on waste flows not granted explicit approval through host agreements or otherwise exempted, as well as the authorization for needs statutes, are the two most important features. The inclusion of controls for out-of-state C&D; waste, which is becoming more of a problem in Indiana, is also important to us.
I also want to stress the significance of the definitions used in S. 872. For example, "affected local government" is defined as the public body responsible for planning for the management of MSW unless no such designation is made under state law. This requirement ensures that the public officials vested with authority for managing waste are also given the ability and responsibility to approve host community agreements.
S. 533, the "Interstate Transportation of Municipal Solid Waste Control Act of 1999"
This legislation, introduced by Senators Chuck Robb and John Warner of Virginia, takes a somewhat different approach to addressing the issue of interstate waste shipments, relying principally on the use of a freeze at 1998 levels for states receiving over 1 million tons of out-of-state MSW shipments. Unfortunately, requiring the use of Indiana's record level of MSW shipments to establish a ceiling for the state is not a satisfactory solution given the long-term impact of out-of-state shipments on the state's disposal capacity. Other states currently receiving less than 1 million tons of out-of-state MSW may also find this an unacceptable threshold for utilizing a freeze authority. The authority to impose a ban on waste shipments from states exporting MSW in excess of 6 million tons per year would have little real effect at this time since no single state has yet reached this level of exports.
While S. 533 also includes a general ban on municipal solid waste shipments not approved by affected local governments, all publicly-owned facilities are exempted from this requirement. Further, the bill language is unclear as to whether approvals sought after enactment of the legislation require actual host community agreements and specific authorizations to receive out-of-state waste.
S. 533 also does not include any federal authorization for states such as Indiana to implement "needs" statutes. Since many other states have enacted a form of the needs requirement --Pennsylvania, Michigan, and Virginia to name just a few -- we believe it essential for federal legislation to address this concern.
In addition, "affected local governments" are defined so broadly as to include any elected officials with responsibility for waste management or land use for purposes of post-enactment approvals and as any party (public or private) to a host community agreement entered into before enactment. Frankly, these provisions fail to provide sufficient public notice or accountability for approvals to receive out-of-state waste shipments.
I also note that S. 533 does not include any controls over C&D; waste shipments, which are of concern to a number of states, including Indiana.
Closing Remarks
I recognize that your committee must weigh the interests and concerns of all 50 states and the private sector when considering a matter involving interstate commerce. On this issue, however, I am hopeful that you and your colleagues will agree that states should be allowed to exercise a reasonable set of controls to protect their natural resources and solid waste disposal capacity, and ensure public support for their own waste reduction efforts. I do believe there is sufficient consensus among the states for Congress to act.
The provisions of S. 872 reflect a series of provisions developed by the coalition of importing states after years of negotiations with the waste industry and several of the large exporting states. While representatives of this coalition are continuing to discuss possible areas of agreement with representatives of the State of New York in an effort to forge a mutually acceptable agreement, Governor O'Bannon and I believe Congress should not indefinitely delay legislative action.
Thank you again for allowing me to share the State of Indiana's concerns about this important public policy matter.