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Week Ending April 27, 2006

H.R.518 To amend the Solid Waste Disposal Act to authorize States to restrict receipt of foreign municipal solid waste and implement the Agreement Concerning the Transboundary Movement of Hazardous Waste between the United States and Canada, and for other purposes.

In the absence of regulations and an enforced US/Canada Agreement governing hazardous waste moving into the US from Canada, States would be authorized to enact laws or issue regulations restricting the receipt and disposal of the waste within their borders, the bill proposes. The EPA Administrator would be the designated authority in such waste matters and must consult with the affected states regarding recycling, landfill capacity, air emissions, homeland security, public and environmental health and road deterioration before consenting to final agreements on importing the waste.

Several US states on the Northern Border, Michigan in particular, receive substantial loads of municipal solid waste from Canada--Ontario Province in particular. 400 trucks a day is the estimate. Over time the deliveries taxed recycling programs, reduction in landfill capacity and wear to their natural and physical resources, the bill report explained. Environment degradation and public safety are also issues.

The importation is governed by the Agreement Concerning the Transboundary Movement of Hazardous Waste Between the United States and Canada (Agreement) but the EPA argues that it does not have legal authority to implement the Agreement. The sticking point in similar matters is usually centered on preserving or in no way restricting interstate commerce, a provision that coupled with the recognition that waste is an article of commerce almost automatically requires Congress to be involved. States are limited by law in their ability to restrict interstate commerce. And so this bill.

State’s limitations are known as the ‘dormant commerce’ clause that prohibits States from putting an undue burden on interstate and foreign commerce. Under that clause the Supreme Court cautions against regulations by States that are discriminatory against our-of-state commerce or those that don’t appear to discriminate but still impose a burden on interstate commerce that is clearly excessive when measured against the benefits of the regulations.

Under current law the exporting country must give 30 days notice to the receiving country before delivery and the receiving country must reject the delivery or it will be made automatically.

The bill also makes it unlawful for anyone to import, transport or export municipal solid waste in violation of the potential EPA agreement and authorizes civil penalties to $25,000 per day for such violations. Noncompliance determinations must go before a public hearing.

The Administrator would have 24 months from enactment to issue final regulations. Restricting waste from other US States is not authorized in the bill.

Sponsor:  Rep. John D. Dingell (D-MI-15^th)

Vote: Passed House by voice vote April 24, 2007.

Cost to the taxpayers: “CBO estimates that implementing this legislation would cost about $2 million in 2008 and about $6 million over the 2008-2012 period, assuming appropriation of the necessary amounts.” “CBO cannot determine whether local governments would lose income from waste disposal fees. Therefore, we cannot estimate the total costs of complying with those mandates or determine whether they would exceed the threshold for intergovernmental mandates ($66 million in 2007 dollars, adjusted annually for inflation) established by UMRA”

Earmark Certification:   “Regarding compliance with clause 9 of rule XXI of the Rules of the House of Representatives, H.R. 518 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.”

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MORE INFORMATION

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title

Section one establishes the short title of the bill as the `International Solid Waste Importation and Management Act of 2007.'

Section 2. International transportation and disposal of municipal solid waste

Section two establishes a new section 4011 to subtitle D of the Solid Waste Disposal Act as set out below.

Section 4011. International transportation and disposal of municipal solid waste

Section 4011(a) allows a State to enact laws or to issue regulations or orders to limit the receipt and disposal of foreign municipal solid waste (MSW) within the State. This authority for States exists only until the regulations implementing the Agreement become effective. Laws enacted pursuant to this authority may remain in force and effect after the effective date for U.S. implementation of the Agreement passes. Nothing in this section affects, replaces, or amends prior law relating to the need for consistency with international trade obligations.

Section 4011(a)(1) is an express, specific delegation of authority to States to enact laws or issue regulations or orders imposing limitations on the receipt and disposal of only foreign municipal solid waste as defined in section 4011(f)(2). The Committee intends the express delegation of otherwise prohibited State authority to be clear and unambiguous.

It is not the intent of the Committee that the word `interstate' in 4011(a)(2) gives any State the authority to enact legislation or issue regulations or orders affecting interstate or domestically generated waste. As drafted, this bill explicitly only allows States to impose limits or restrictions on foreign municipal solid waste as defined in new 4011(f)(2).

In 4011(a)(3), `prior' law refers to any law in existence before the enactment of this Act. It is the intent of the Committee to not affect, replace, or amend existing law relating to the need for consistency with international trade obligations.

4011(b) has four components. This subsection requires the Administrator of the Environmental Protection Agency to carry out functions prescribed in the Agreement, namely determining whether or not to consent to a shipment of foreign MSW that has been the subject of a notification by Canada; requires within 24 months, the EPA Administrator to publish rules implementing the Agreement, prohibits persons from importing, transporting, or exporting MSW in violation of the Agreement and implementing laws, regulations, and orders; and, establishes various enforcement authorities.

4011(b)(3) requires the Administrator, when considering whether to consent to a shipment of foreign MSW to: (1) give substantial weight to the views of the recipient State or States; (2) consider the impact of the shipment as it relates to continued public support for and adherence to recycling programs, landfill capacity as provided in comprehensive waste management plans, air emissions and road deterioration from increased vehicular traffic; and, (3) consider the impact of the importation on homeland security, public health, and the environment.

4011(b)(4) makes unlawful, under the Solid Waste Disposal Act, the import, transport, or export of municipal solid waste if it violates the Agreement.

4011(c) allows the Administrator to either: (1) issue an order assessing a civil penalty for any past or current violation or both, or (2) commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent injunction. Additionally, under new 4011(c)(2), the Committee intends that any order issued under the authority specified in new 4011(c)(1), set forth, with reasonable specificity, the nature of the violation and that any penalty assessed under new 4011(c)(1) not exceed $25,000 per day of noncompliance for each violation. In assessing a penalty under new 4011(c)(1), the Administrator shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements.

4011(d) allows any person(s) named in a compliance order issued under new 4011(c) to, within 30 days of the order's issuance, request a public hearing on the matter. If no one named in the order makes this request then the order becomes final. Upon the request for hearing by the person named in the order, the Administrator is required to promptly conduct a public hearing and is authorized, in connection with any proceeding under this section, to issue subpoenas for the attendance and testimony of witnesses as well as the production of relevant papers, books, and documents. Finally, the Administrator may promulgate rules for discovery procedures under the hearing procedures.

4011(e) allows the Administrator to assess a civil penalty for each day of continued noncompliance with an order under new 4011(c), not to exceed $25,000 per day.

4011(f) defines the key terms for the purposes of new section 4011. The Committee does not intend that the term `municipal solid waste' include any solid waste generated incident to the provision of service in interstate, intrastate, foreign, or overseas air transportation. Specifically, the term `foreign municipal solid waste' is defined as municipal solid waste generated outside of the United States.

The term `municipal solid waste' is defined as all waste materials discarded for disposal by households, including single and multifamily residences, and hotels and motels. It also includes all waste materials discarded for disposal that were generated by commercial, institutional, municipal, and industrial sources, to the extent such materials are essentially the same as materials discarded by households, hotels and motels and that these materials were collected and disposed of with other discarded household, hotel, or motel generated municipal solid waste as part of normal municipal solid waste collection services. The definition of `municipal solid waste' does not apply to hazardous materials, except for materials that, pursuant to regulations issued under section 3001(d), are not subject to regulation under subtitle C. Examples of municipal solid waste include: food and yard waste, paper, clothing, appliances, consumer product packaging, disposable diapers, office supplies, cosmetics, glass and metal food containers, and household hazardous waste. Such term shall include debris resulting from construction, remodeling, repair, or demolition of structures.

The term `municipal solid waste' does not include any solid waste identified or listed as a hazardous waste under section 3001, except for household hazardous waste; any solid waste, including contaminated soil and debris, resulting from a response action taken under section 104 or 106 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9604 or 9606), a response action taken under a State law comparable to section 104 or 106, or a corrective action taken under this Act; recyclable materials that have been separated, at the source of the waste, from waste otherwise destined for disposal or that have been managed separately from waste destined for disposal; scrap rubber to be used as a fuel source; materials and products returned from a dispenser or distributor to the manufacturer or an agent of the manufacturer for credit, evaluation, and possible reuse; any solid waste generated by an industrial facility and transported for the purpose of treatment, storage, or disposal to a facility or unit thereof that is owned or operated by the generator of the waste, located on property owned by the generator or a company with which the generator is affiliated, or the capacity of which is contractually dedicated exclusively to a specific generator, so long as the disposal area complies with local and State land use and zoning regulations applicable to the disposal site; any medical waste that is segregated from or not mixed with solid waste; sewage sludge and residuals from any sewage treatment plant; and combustion ash generated by resource recovery facilities or municipal incinerators, or waste from manufacturing or processing (including pollution control) operations that are not essentially the same as waste normally generated by households.

The term `Agreement' is defined as the Agreement Concerning the Transboundary Movement of Hazardous Waste between the United States and Canada, signed at Ottawa on October 28, 1986 (TIAS 11099) and amended on November 25, 1992; and any regulations promulgated or orders issued to implement and enforce that Agreement.

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