U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

74–852CC 2001

PERSPECTIVES ON INTERSTATE AND INTERNATIONAL SHIPMENTS OF MUNICIPAL SOLID

WASTE

HEARING

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND

HAZARDOUS MATERIALS

OF THE

COMMITTEE ON ENERGY AND

COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

AUGUST 1, 2001

Serial No. 107–61

Printed for the use of the Committee on Energy and Commerce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

2

COMMITTEE ON ENERGY AND COMMERCE

W.J. ‘‘BILLY’’ TAUZIN, Louisiana, Chairman

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

BARBARA CUBIN, Wyoming

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES ‘‘CHIP’’ PICKERING, Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

TOM DAVIS, Virginia

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

CHARLES F. BASS, New Hampshire

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

TOM SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

MICHAEL F. DOYLE, Pennsylvania

CHRISTOPHER JOHN, Louisiana

JANE HARMAN, California

DAVID V. MARVENTANO, 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

STEVE LARGENT, Oklahoma

GREG GANSKE, Iowa

JOHN SHIMKUS, Illinois

(Vice Chairman)

HEATHER WILSON, New Mexico

VITO FOSSELLA, New York

ROBERT L. EHRLICH, Jr., Maryland

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

CHARLES F. BASS, New Hampshire

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

(Ex Officio)

FRANK PALLONE, Jr., New Jersey

EDOLPHUS TOWNS, New York

SHERROD BROWN, Ohio

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

MICHAEL F. DOYLE, Pennsylvania

JANE HARMAN, California

HENRY A. WAXMAN, California

PETER DEUTSCH, Florida

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)

3

C O N T E N T S

Page

Testimony of:

Berlekamp, Timothy B., Director, Recycling Division of Mahoning County,

Ohio ................................................................................................................ 94

Bonior, Hon. David E., a Representative in Congress from the State

of Michigan .................................................................................................... 53

Davis, Hon. Jo Ann, a Representative in Congress from the State of

Virginia .......................................................................................................... 54

Harding, Russell J., Director, Department of Environmental Quality,

State of Michigan .......................................................................................... 67

Hess, David E., Secretary, Department of Environmental Protection,

State of Pennsylvania ................................................................................... 58

Jones, Christopher, Director, Environmental Protection Agency, State of

Ohio ................................................................................................................ 62

Kanjorski, Hon. Paul E., a Representative in Congress from the State

of Pennsylvania ............................................................................................. 47

Kaplan, Lori, Commissioner, Department of Environmental Management,

State of Indiana ............................................................................................ 70

Lhota, Joseph J., Deputy Mayor, City of New York ...................................... 74

Moran, Hon. James P., a Representative in Congress from the State

of Virginia ...................................................................................................... 49

Parker, Bruce, President and CEO, National Solid Waste Management

Association ..................................................................................................... 86

Rogers, Ervin, Chairman, Board of Supervisors, Gloucester, Virginia ........ 91

Rogers, Hon. Mike, a Representative in Congress from the State of Michigan .................................................................................................................. 42

Woodham, Thomas, Vice Chairman, Lee County, South Carolina ............... 97

Material submitted for the record by:

Fasulo, Joseph E., General Manager,, Allied Waste, letter dated August

9, 2001, enclosing material for the record .................................................. 105

O’Conner, James E., President and Chief Executive Officer, Republic

Services, Inc., letter dated August 14, 2001, enclosing material for

the record ....................................................................................................... 114

Skinner, Thomas V., Director, Illinois Environmental Protection Agency,

letter dated July 31, 2001, enclosing a statement for the record ............. 117

(III)

(1)

PERSPECTIVES ON INTERSTATE AND INTERNATIONAL SHIPMENTS OF MUNICIPAL

SOLID WASTE

WEDNESDAY, AUGUST 1, 2001

HOUSE OF REPRESENTATIVES,

COMMITTEE ON ENERGY AND COMMERCE,

SUBCOMMITTEE ON ENVIRONMENT AND

HAZARDOUS MATERIALS,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2123, Rayburn House Office Building, Hon. Paul E. Gillmor (chairman) presiding.

Members present: Representatives Gillmor, Greenwood,

Shimkus, Fossella, Buyer, Bass, Pallone, Towns, McCarthy, Barrett, Luther, Doyle, and Dingell (ex officio).

Staff present: Amit Sachdev, majority counsel; Jerry Couri, policy

coordinator; Hollyn Kidd, legislative clerk; and Dick Frandsen, minority counsel.

Mr. GILLMOR. We have had a quorum check in, so we will call

the committee to order and proceed. And today our subcommittee

will consider the issue of interstate and international shipment and

disposal of municipal solid waste. This issue has bedeviled Congress for the last decade as Members of Congress from exporting

States have fought to retain the status quo, and States involuntarily receiving waste have sought change.

The alignment of members on this issue in the past has reflected

geography rather than ideological split between Republicans and

Democrats. If former speaker Tip O’Neill’s famous quotation about

all politics being local needs any illustration, this issue is it.

Congress first started delving into this issue almost 15 years ago

after the Supreme Court struck down restrictions of the interstate

shipment of waste in Philadelphia v. New Jersey. The Court found

that a ban on out-of-State waste was a regulation of commerce

which violated the Commerce Clause of our Federal Constitution.

While some of our witnesses here today disagree with that ruling,

and similar rulings which have been made by lower courts, I believe it is warranted to explore the movements of solid waste between States and countries and see if congressional action is needed.

Presently, States are important 32 million tons of waste, or well

over 14 percent of all waste generated in the United States. The

amount of these types of shipments has been growing rapidly. They

are 13 percent higher than they were only 2 years ago and more

2

than twice what was being imported for disposal as recently as

1993. My own State of Ohio has seen an increase of imports over

the past decade with the most recent figure showing a 700,000 ton

increase in waste imports over the last 2 years alone.

With the trend showing this much waste being carried on taxpayer financed roads from State to State, we need to ensure safe

transportation of waste, adequate capacity for local, regional, and

national needs and environmental protections that ensure the

groundwater and soil are protected from leaching trash.

Before I came to Congress 12 years ago, when I was a member

of the Ohio State legislature, I was involved in the passage of what

was the most forward-looking waste disposal law at that time. And

I personally feel that each town and State needs to develop a comprehensive solid waste management plan and take responsibility

for handling the trash that is generated inside its borders.

As a net importer of solid waste, Ohioans have resented being

dumped on by entities who not only did not build their own landfills but don’t have to live with the consequences. However, I also

recognize that we have to be realistic about geography and the demographics of many places that do not have the land mass available to exercise the type of solid waste management that is commensurate to its population. These places should not be shut down

if they are making reasonable attempts to responsibly address their

disposal needs. In fact, many of these States import as well as export a sizable amount of waste. In addition, I think it is important

that towns that want out-of-State waste should not be excluded

from getting it.

In some cases, the current law has had the undesirable effect of

rewarding the environmentally irresponsible—those who do not

make the commitment to handle their waste—and it can also punish the environmentally responsible who do make the commitment

to handle their own waste only to see their facilities filled from outof-State waste. Many people have characterized this debate as

NIMBY or ‘‘Not in my backyard.’’ I have sometimes called it

NIMBY YIMBY, or ‘‘Mine in my backyard, yours in your backyard.’’

But, essentially, the tension here is not over State or international borders; it is whether within the universe of trash disposal

market forces lead to the type of choices that will benefit our constituents in the long run. And rarely do we in Congress get to

make decisions that are ordinarily reserved for city council and

county boards. I believe that today’s witnesses will help us survey

the issues from the public and private perspectives, as well as identify certain places in legislation that can either be helpful or hurtful in creating a safe, efficient, environmentally responsible, and

cost-effective solid waste disposal system in our country. And I

want to thank our witnesses for coming.

I would also like to ask unanimous consent that all members

have five legislative days to submit opening statements for the

record, and I would like to recognize our distinguished ranking

member of the committee, Mr. Pallone of New Jersey, for a statement.

Mr. PALLONE. Thank you, Mr. Chairman, for holding this hearing

on interstate waste, which is a very important issue for this subcommittee. I understand the chairman’s desire to proceed expediVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 E:\HEARINGS\74852 pfrm09 PsN: 74852
3

tiously with this hearing, but I already mentioned to him, and I did

want to mention now, that members should have witnesses’ testimony 48 hours in advance of the hearing so that we can adequately

prepare. And I know the chairman, himself, only received the testimony last night, but in the future I hope that we can do better.

Since I came to Congress in the 1980’s, Congress has considered,

but not enacted, numerous bills that would allow States to impose

restrictions on interstate waste shipments, a step the Constitution

prohibits in the absence of congressional authorization. Over this

period, there has been a continuing interest in knowing how much

waste is being shipped across State lines for disposal and what

States might be affected by proposed legislation. Hopefully, in today’s hearing, we will be able to shed some light on these questions.

The difficulty in this debate, however, comes from a lack of information. Not all States require reporting of waste imports, and very

few track exports, so the available data are incomplete and in some

cases represent estimates rather than actual measurements. We

do, however, know that the total interstate waste shipments continue to rise due to the closure of older local landfills and the increasing consolidation of the waste management industry. In the

last 5 years alone, reported imports have more than doubled, from

14.5 million tons in 1993 to 32 million tons in the year 2000.

Everyone creates trash, and we need an efficient, equitable, environmentally sound way to expose of it—I should say to dispose of

it. Whether you are in the Northeast, the Midwest, the Southeast

or the Pacific Coast region, waste shipments inevitably have become an issue. My home State of New Jersey has not been absent

from the debate. As a matter of fact, it was a case against our

State, the city of Philadelphia v. New Jersey, that prompted the

legal rulings which clarified Congress’ need to act in the area of

interstate waste.

For the third year in a row, New Jersey is on the list of major

importers with 836,154 tons of municipal solid waste imports in

1999. New Jersey is still a major exporter of waste as well. Estimates show that MSW exports totaled more than 4 million tons in

2000. But the absence of flow control has led waste-to-energy facilities in New Jersey to search for ways to replace local waste now

being disposed elsewhere, and as a result, large amounts of waste

are entering New Jersey from New York.

As previously stated, the movement of waste also represents the

growing regionalization and consolidation of the waste industry. In

1999, the 3 largest firms, Waste Management, Allied Waste, and

Republic Services, accounted for 81 percent of total revenues of the

industry’s 100 largest firms. These large firms offer integrated

waste services, from collection to transfer station to disposal site,

in many locations. Often they ship waste to their own disposal facility across a border rather than dispose of it in an in-State facility

owned by a rival. As small landfills continue to close, the number

of U.S. landfills have declined 51 percent between 1993 and 1999,

and this trend toward regionalization and consolidation is likely to

continue. The amount of waste being shipped across State lines for

disposal may rise in the process.

4

Again, it is for these reasons, Mr. Chairman, I believe it is important that Congress pursue a legislative solution. I know that

our colleagues on the panel are here because they have various

bills in that regard. And when we return in September, obviously,

I think we need to move on some of this legislation. I look forward

to hearing from the witnesses. And thank you, Mr. Chairman.

Mr. GILLMOR. The Chair recognizes the gentleman from Indiana

for an opening statement.

Mr. BUYER. Thank you, Mr. Chairman, and I thank my colleagues for coming to testify. I hold here in my hand a bumper

sticker. It says, ‘‘Indiana, the Landfill State.’’ It is really the sentiments as Michigan receiving Canada trash or Ohio receiving New

Jersey trash, Pennsylvania, Virginia. Everybody wants to send

their trash somewhere else except, I guess, in their backyard, as

the chairman had said.

Small towns in my home State and like yours have been overtaken by thousands of tractor trailers loaded with out-of-State municipal waste. In 1996, at its peak, the State of Indiana received

in excess of 1.8 million tons of trash from other States. My district—actually, it was within 4 miles of my childhood home, across

the Tippecanoe River, Liberty Township, there is a mountain in the

middle of the plains of Indiana, and it is packed with Chicago

trash. Now, I don’t mind Chicago coming and bringing their commerce and coming to our lakes, but you know what? Don’t leave

your trash; take it back with you. Especially, I don’t mind if you

come and camp, then we will take care of your trash. But don’t

send all your trash from Chicago to Indiana.

While the situation has improved somewhat in terms of volume,

the idea that my State or any State should be the dumping

grounds of another State’s trash is, I find, objectionable. The State

of Indiana has acted responsibly to manage trash generated within

our State. We created solid waste districts, and we are trying to

manage and be responsible in how we handle the solid waste. It

makes it very difficult when, in Indiana, we try to act responsibly

but other States that have not taken the initiatives just dump it

upon us. I find that also objectionable.

The Supreme Court has ruled that trash is a commodity subject

to the Commerce Clause and because it can be shipped across State

lines unimpeded by the interest of the receiving State to provide

for the safekeeping of its own environment. This view is very frustrating for the importing States. No one here would take their

trash and dump it in their neighbor’s yard, but this is exactly what

is happening to Indiana, Michigan, Ohio, Pennsylvania, and others.

Imported trash creates environmental problems, safety problems,

community developmental difficulties. States should have some

ability to address these needs without running afoul of the Commerce Clause which is why I have co-sponsored Mr. Greenwood’s

bill. This bill would give the State of Indiana and other States the

tools it needs to ensure that its environment is not just spoiled by

the actions of other States that are not acting responsibly. The idea

to give importing States some tools to address these issues is not

a new one. In fact, in the 103d Congress, the Congress passed such

legislation by an overwhelming vote of 368 to 55. I also recall how

painful it was in 1996. Senator Dan Coates was the leader of this

5

issue in the Senate. It passed the House, it went to the Commerce

Committee, and I recall standing in the basement of the Capitol before the Commerce Committee in 1996 when it was my own congressman, John Meyers of Indiana, in the Energy and Water Appropriations Subcommittee, that killed the legislation, and I have

never forgotten that.

Finally, Mr. Chairman, I am very pleased that you granted my

request and invited the commissioner of the Indiana Department

of Environmental Management to present testimony here today.

Ms. Lori Kaplan and I have discussed the issue in the past, and

I know the subcommittee will greatly appreciate the views she presents on behalf of Indiana. And I welcome my colleague’s testimony

and yield back my time.

Mr. GILLMOR. The gentleman yields back. We have been joined

by the distinguished ranking member of the full committee, the

gentleman from Michigan, who is recognized for an openings statement.

Mr. DINGELL. Mr. Chairman, thank you. And I appreciate this

hearing and commend you for conducting it. I also welcome our

panel and others who will be here to testify on this very important

question. I want to welcome this legislative hearing, and I want to

express my pleasure that it will focus this subcommittee and this

committee’s attention on three pieces of legislation designed to provide our communities and States relief from unwanted imports of

municipal solid waste.

In 1994, this committee and the House of Representatives, on a

broadly bipartisan basis, passed interstate waste legislation which

was the predecessor to H.R. 1213. The broad support for such legislation was demonstrated by a vote in favor of 368 to 55. The inability of our localities and States to protect themselves from unwanted

waste has become clear after the Supreme Court’s 1992 decision in

the case of Fort Gratiot Sanitary Landfill v. Michigan Department

of Natural Resources—a matter of irritation for both myself and

Mr. Bonior.

Since then, for almost a decade, State after State in all areas of

this country have searched for a constitutional means to control

shipments of solid waste from other States and countries. The result of this effort has been costly and unproductive litigation. State

laws have been repeatedly struck down by the courts, because

under the Commerce Clause of the Constitution, only Congress has

the authority to grant States and local jurisdictions the right to

regulate waste imports into those jurisdictions. The recent opinion

of the Fourth Circuit Court of Appeals striking down Virginia’s law

is but the latest example.

Action by this committee and this Congress is long overdue.

While this committee has failed to act for the past 6 years, the

problem has worsened in Michigan and in almost every other

State. In the 1-year period from 1999 to 2000, total imports into

Michigan increased by 1 million tons of unwanted waste. Out-ofState imports now represent almost 20 percent of all trash disposed

of in Michigan. Slightly less than one-half of the imports come from

Canada. And I might note that there is very little control over what

is in that waste and whether it is ordinary waste or whether it conVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 E:\HEARINGS\74852 pfrm09 PsN: 74852
6

stitutes hazardous waste or just what. Nationwide, waste imports

have more than doubled since 1993.

There has been a dramatic consolidation within the waste management industry. According to Congressional Research Services,

the three top firms account for 80 percent of the revenues. In addition to filling precious landfill capacity, the thousands upon thousands of truckloads of out-of-State and Canadian waste add to the

already congested highways in Michigan and other States, spur

concerns over traffic safety, create wear and tear on the roads, pollute our air, threaten our environment, and outrage our citizens.

Our citizens and communities demand control over imported garbage. For the past 6 years bipartisan supporters of H.R. 1213, including Governors and local officials from many States, have been

seeking action by this Congress and by this committee. I would ask

unanimous consent at this point that their correspondence be included in the hearing record at this point.

Mr. GILLMOR. Without objection.

[The information referred to follows:]

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

Mr. DINGELL. While the scheduling of this hearing unfortunately

competes with floor action on the committee’s energy bill, which I

must attend to, I want to commend you, Mr. Chairman, and I want

to commend the subcommittee and the ranking member for addressing this issue. It is enormously important, not only to the environment but to our citizens. I look forward to action on these bills

when Congress returns after the August recess. I thank all the witnesses at the table for their participation and assistance, and I

thank you for holding this hearing, Mr. Chairman.

Mr. GILLMOR. The gentleman from New Hampshire.

Mr. BASS. Thank you, Mr. Chairman. I appreciate your holding

this hearing. It is interesting to see that almost every State is an

importer of solid waste. It is hard to find the ones that are exporters. Obviously, they exist. My home State of New Hampshire imports close to half a million tons of solid waste from other States

and perhaps from Canada each year, so I will particularly interested and sensitive to the issues that are involved here. They are

problems that are not going to go away, and I think this committee

ought to face them head on and make a determination as to where

we are going to go. I appreciate the chairman’s holding the hearing,

and I look forward to the testimony.

Mr. GILLMOR. The gentlelady from Missouri.

Ms. MCCARTHY. Mr. Chairman, I do not have remarks this morning. Kansas is working cooperatively with Missouri on the western

side of the State and with Illinois and Missouri on the eastern side

of the State. We seem to have good regional cooperation. I do have

a concern about the caps issue. I look forward to the testimony of

the witnesses, and I am glad that they are here. And I yield back

the balance of my time.

Mr. GILLMOR. The gentlelady yields back. The gentleman from Illinois, the vice chairman of the subcommittee, Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman. I, too, will be brief. I

want to welcome my colleagues here. Very interesting issue. My

particular part of the world has Illinois being third largest exporter

of solid waste but being the fifth largest importer of solid waste.

37

Of course, we know Chicago exports a lot, but I border the St.

Louis Metropolitan Area where we receive a lot of St. Louis Metropolitan trash.

So I am betwixt and between and befuddled, and I look forward

to the hearing as we move this legislation forward. Thank you, Mr.

Chairman.

Mr. GILLMOR. The gentleman from Minnesota.

Mr. LUTHER. Thank you, Mr. Chairman. I will be brief as well

out of respect for our distinguished panel here today.

The issue of interstate transportation of solid waste is a major

issue which warrants the attention of our committee. Today, States

are virtually helpless in dealing with the increasing problem of

their landfills being filled or quickly filling to capacity. However,

Mr. Chairman, I do want to share with you one concern I have,

which is that the scope of this hearing does not deal with what

may very well be at the heart of this problem; that is, we simply

generate too much waste and have too little land. Authorizing

States to impose importation bans will do little, if anything, to

solve this basic fundamental problem.

As such, Mr. Chairman, I hope that in future hearings we can

deliberate on alternative means of grappling with the creation,

transportation, and disposal of solid waste. For instance, Mr.

Greenwood’s flow control bill, H.R. 1214, which is not the subject

of this hearing, is very worthy of the subcommittee’s attention, as

are other solid waste measures, such as the promotion of recycling

and the moderation of waste generation.

So those conclude my comments, and I look forward to the testimony. Mr. Chairman, thank you again for holding this hearing.

Mr. GILLMOR. The chairman now recognizes for an opening statement the gentleman from Pennsylvania, Mr. Greenwood, who has

been a leader in dealing with this issue and is the principal sponsor of one of the subject to this hearing. Mr. Greenwood.

Mr. GREENWOOD. Well, thank you, Mr. Chairman, and than you

so much for holding this hearing, and I am not going to be brief,

because I have been waiting for this hearing for a while, and I am

going to plague you with the full 5-minute version.

Again, thank you, Mr. Chairman, for scheduling this hearing on

the prospectives on interstate and international shipments of municipal solid waste. The influx of municipal waste into Pennsylvania continues to escalate, and Pennsylvania continues to be the

largest importer of municipal waste in the country—a dubious

honor Pennsylvania wants very much to relinquish. But the U.S.

Supreme Court has spoken, and Pennsylvania and no other State

will have the ability to control waste crossing State borders until

Congress grants States that authority. That is why I, joined by

many of my colleagues, introduced H.R. 1213, the Solid Waste

Interstate Transportation Act of 2001.

Legislation on the interstate shipment of interstate waste has

been introduced in every Congress since the 100th. My involvement

began 8 years ago tomorrow when, as a freshman Member of Congress, I joined other Members in the introduction of H.R. 4779,

which would allow States and local governments to regulate the

transport of municipal solid waste. That legislation passed the

House. It was held up in the Senate by one lone Senator. UnfortuVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00041 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
38

nately, we haven’t come that close to enacting interstate waste legislation since that Congress, but I am hopeful that will change in

this Congress.

There is some industry sentiment that we should leave the waste

market open and let the free enterprise system work. I can tell you

that Pennsylvania tried that approach and it did not work. In 1986,

Pennsylvania exported—in 1986, Pennsylvania exported 3 million

tons of municipal waste. In 1988, Pennsylvania did the responsible

thing: Reenacted legislation requiring counties to plan for the management and disposal of municipal waste and instituted a mandatory recycling program. As a member of the Pennsylvania State

senate at that time, I played an active role in the development of

that legislation. Pennsylvania successfully fought the NIMBY syndrome, and over the next several years sited a number of new facilities.

By 1993, Pennsylvania exported only about 800,000 tons of

waste, but our reward for creating additional capacity for ourselves

was that we were now importing almost 4 million tons of municipal

waste. By 1995, that figure grew to almost 5.2 million tons, and by

2000, the State received 9.8 million tons of municipal waste from

other States. That figure represents 40 percent of all of the municipal waste disposed in our State and almost 30 percent of the national total interstate shipments. Pennsylvania exports only about

500,000 tons of municipal waste, and about 75 percent of that

waste goes to a facility that happens to be located near the Pennsylvania/Ohio border.

The problem is that other States have not acted as responsibly.

Instead about 20 other States send their waste to Pennsylvania.

Our neighbor to the north, New York, continues to be the largest

exporter of waste to Pennsylvania. In 2000, almost half of the outof-State municipal waste disposed in Pennsylvania came from New

York. Despite the already large amount, waste exporters from New

York are expected to grow—waste exports are expected to grow

even further with the closure this past March of New York’s Fresh

Kills Landfill, the City’s last disposal facility.

Without the ability to exert some control over the amount of outof-State waste coming into Pennsylvania, the facilities we have permitted will fill to capacity, and that simply is not fair. Even when

solid waste is landfilled or incinerated using state-of-the-art technology, there are environmental costs and risks associated with disposal. Additional truck traffic, air and water quality concerns, and

changes in the landscape make disposal facilities unwanted neighbors in all communities. Every State should take the responsibility

to dispose of its trash using the best available technology. No State

should be able to avoid this responsibility, and no State should

bear more than its fair share of the burden unless it chooses to.

We will stand the best chance of moving forward with waste reduction, recycling, and environmentally sound technology when all

States are stakeholders in the outcome. The solution is for other

States to site facilities within their own borders. As long as States

can continue to export unlimited waste to other States, they will

have no incentive to site facilities. And I might add, until H.R.

1213 is scheduled for markup, States like New York have no incentive to come to the table in attempt to reach some type of comVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00042 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
39

promise with the big impacted States like Pennsylvania, Virginia,

Ohio, Indiana, and Michigan.

I look forward to hearing from the panel of our colleagues, each

with a special interest in this issue. I am pleased to welcome my

colleague from Pennsylvania, Mr. Kanjorski, who shares my concern about Pennsylvania’s problem, and I appreciate my friend,

Congresswoman Davis’ interest in 1213. We have already discussed

some changes she would like to see in the bill to address specific

problems in her home State of Virginia, and I look forward to continuing to work with her to address her concerns. I also look forward to hearing from the heads of the environmental agencies in

four of the impacted States, and I would like to thank them for

working with us in the development of H.R. 1213.

I would especially like to take the opportunity to welcome Dave

Hess who was appointed Pennsylvania secretary of Environmental

Protection by Governor Ridge in March of this year. I have known

David for a number of years. He served as the director of the Environment and Energy Committee in the Pennsylvania senate while

I served in the senate. And he has served in several positions at

the DEP. I can’t think of anyone more worthy of Governor Ridge’s

appointment to that position.

Mr. Chairman, I want to thank you again for scheduling this

hearing, and just as I thank you today for holding the hearing, I

am going to be consistently urging you to schedule H.R. 1213 for

subcommittee consideration. States like Pennsylvania and Ohio

have suffered long enough. I look forward to working with you to

provide States the relief they want and we need. Thank you, Mr.

Chairman.

Mr. GILLMOR. The gentleman from New York, Mr. Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman, for holding

this hearing. I hope that by the end of this hearing many of my

distinguished colleagues will agree with me. I also hope that today’s hearing will clarify many of the misunderstandings about the

relationship between municipal solid waste exporters and municipal solid waste importers. I know that this issue has been a popular one for many, many years, but too often the arguments are

framed in the context of a zero sum game. For example, people say,

‘‘New York is dumping on blah, blah, blah, blah, blah, blah.’’ Translation: ‘‘New York is sending its garbage to our State, and we have

no say in the process, and we derive no benefits from it.’’ Well,

while this may sound good and be an easy argument to make, but

it is not true. The fact of the matter, as my friend and the honorable first deputy mayor of the city of New York will testify to later,

as a part of New York City’s plan to close Fresh Kills Landfill, New

York City is required to enter into host community agreements

with the importing community before a single ton of MSW is

moved.

In addition, these host communities’ agreements call for fees to

be paid to the host community. These fees can often make a significant difference to communities providing funding for a variety of

services and amenities that would not otherwise be affordable. Also

increased environmental standards at landfill facilities have increased the cost of landfills significantly and resulted in the closing

of numerous small facilities. This change in the industry has creVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
40

ated more of a regional approach to waste management and placed

increasing pressures on landfills to attract additional customers to

make their landfills more financial viable.

The fact that these landfills are receiving out-of-State MSW has

no doubt played a significant part in their ability to keep their tipping fees low and save their communities significant amounts of

money. Today, we will hear some remarkable claims, protectionist

fears, and other misguided but well-intentioned efforts to change

the marketplace after numerous companies have made long-term

financial plans based on the current competitive market system. I

urge my colleagues to take a very serious look at this and to avoid

the temptation to throw large urban communities into chaotic situations as they desperately try to replace well thought-out solid

waste management plans based on current systems.

On that note, Mr. Chairman, I yield back, and I am anxious and

eager to listen to the testimony coming from the witnesses. We

have a distinguished panel before us.

Mr. GILLMOR. The gentleman yields back. The gentleman from

New York, Mr. Fossella.

Mr. FOSSELLA. Thank you, Mr. Chairman. And let me echo and

agree with my good friend from New York, Mr. Towns. I agree with

much of what he said, particularly the ‘‘blah, blah, blah, blah, blah,

blah.’’ I think, in all seriousness, this is an important issue, and I know

it is important for a lot of folks, not only on this committee but of

this panel and others who will testify, including, as Mr. Towns

said, the first deputy mayor, Joe Lhota, who is going to articulate,

I think real well, that we need to strike the right balance. And I

know my good friend, Mr. Greenwood, acknowledged the closing of

the Fresh Kills Landfill, which is an important step because it was

an environmental nightmare, an unlined landfill in the city of New

York, and we did the right thing by closing it, in large credit to

folks like Mayor Guliani and Governor Pataki.

Having said that, going forward, I think we need to look at the

other side of this equation, and that is that garbage is generated

by human beings, and it needs to go somewhere. And that as far

as New York City is concerned and New York State, it is not going

anywhere that it is not wanted by a local community. And those

communities are accepting it willingly in environmentally safe

landfills or resource recovery facilities, incinerators or whatever

you want to call them. And to them it is a business arrangement.

It is the free flow of goods across the interstate highway system.

It means jobs; it is a tax base.

I don’t know of any situation, for example, that the city of New

York has entered into over the years where the local community

has not been willing to accept the garbage willingly. In fact—and

I hope Mr. Lhota mentions it later—I would be curious to know

how many local communities have willingly offered to accept, for

example, New York City’s garbage above and beyond what we have

done. One community, maybe 15, 12, I don’t know, have responded

to the RFPs.

I think it would be a mistake if we move down the road to limit

a State’s ability to send goods across the highway system, for example, or the river, because you begin to slide down the old slipVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
41

pery slope of limiting other goods that can flow freely across the

States. I don’t want to take away from the deep concern that a lot

of members have about trying to limit garbage coming into their

districts. I think that argument is subordinate to the overall one

that Congress should not override or make null and void the agreements of municipalities that willingly accept our garbage.

And, Mr. Chairman, I look forward to this distinguished panel,

as well as others, but I just think, as I say, there is another side

to this argument. New York is not alone. Many States in this country export garbage, and when Congress steps in to try to limit

those States’ ability to do so—if they want to enter into voluntary

agreements or a regional approach, fine; I think that is a healthy

thing. But if Congress is going to step in and limit those States’ ability to export garbage, I think they are going to have unintended

consequences, and a lot of folks are going to wake up and realize

it is going to be a big mistake. So I thank you, Mr. Chairman, and

I yield back.

Mr. GILLMOR. The gentleman from Wisconsin.

Mr. BARRETT. Thank you, Mr. Chairman. Every freshman legislator probably at every level knows the importance of making the

argument in favor of a level playing field. And probably nowhere

is that more vivid than this discussion, because rather than level

playing fields what we have right now are really unlevel garbage

dumps throughout the country. And that is why those of us who

come from States that are importers of garbage view this as such

an unfair issue. It is interesting for me to hear my colleagues, and

I think this is obviously not a partisan issue; it is really an issue

of whether your State is an importer or an exporter of garbage.

What concerns me, again coming from a State that is an importing State, is the perception in Wisconsin is that we, as a State,

have developed a very good recycling law, one of the more progressive laws in the country, encouraging consumers and businesses to

recycle. Some of the States from which we import garbage have

chosen not to take that route and have not passed laws that encourage recycling, and in some instances have actually closed down

recycling facilities.

I think what this committee and this Congress has to do is focus

on that issue to make sure that States are not given a pass where

they decide that the easier course of action is simply to export garbage rather than to work responsibly. Because at the end of the

day, the garbage is either going to be put in a landfill or it is going

to be recycled. And if we are concerned about that, I think we have

to do more for recycling.

So I hope that that is part of the focus of this hearing. I certainly

agree with the gentlemen and the gentlewomen from Pennsylvania

who have been leading this charge that we should move forward

on H.R. 1213, and I hope that the Chair will consider that bill for

a markup as well. And I yield back the balance of my time.

Mr. GILLMOR. The gentleman yields back. If there are no further

opening statement, I would like to call our first panel. Our first

panel is made up of five Members of Congress who have a special

interest in this legislation. The distinguished group includes Representative Mike Rogers, who has introduced H.R. 1927 to place

limits on waste coming into the United States from Canada. Next

42

we have Representative Paul Kanjorski of Pennsylvania, who has

authored H.R. 667, also the subject of our hearing. Panel also includes Representative Jim Moran of Virginia and Dave Bonior of

Michigan. And we have Representative Jo Ann Davis who has put

in a great deal of effort in this subject over the last couple of

months.

I would like to welcome you all to the committee, and the Chair

would propose that we will start on the Chair’s left and proceed

down the line. If any of the members have a need to depart earlier,

we will be happy to change that schedule.

Representative Rogers.

STATEMENTS OF HON. MIKE ROGERS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MICHIGAN; HON. PAUL E.

KANJORSKI, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF PENNSYLVANIA; HON. JAMES P. MORAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA;

HON. DAVID E. BONIOR, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF MICHIGAN; AND HON. JO ANN DAVIS,

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF

VIRGINIA

Mr. MIKE ROGERS. Well, thank you, Mr. Chairman and distinguished members. I appreciate Mr. Greenwood’s efforts over the

years. In trying to tackle this difficult issue, I have co-sponsored

your bill as well and do believe this is a serious issue. But to my

friends from New York, Mr. Fossella and Mr. Towns, I think have

articulated why 8 years later we are still debating the flow of interstate trash in America. There are more export States by net than

there are import States by net. That poses a problem in the debate

in ideology.

With that in mind, we have a problem in Michigan and a serious

problem that is only going to get worse in the very near future. I

have some great friends to the north, in Canada. I appreciate the

import of their beer, their hockey players. I do not appreciate the

import of their dirty diapers and Canadian bacon scraps. And we

are getting a ton of it literally, Mr. Chairman.

You know, we are a water State; we are very porous. The

aquifers run from stem to stern in Michigan. So siting landfills is

a difficult challenge for us. Our DEQ Director is here today and is

going to explain what Michigan goes through. And we have taken

the steps early on to be aggressive in meeting our needs for landfill

space. We have about 15 years of landfill space, and we take into

consideration, obviously, all the siting requirements that go with it.

Many of you have mentioned it: traffic problems, site source pollution, we have talked about aquifers and watershed and all of the

things that affect it when you site these individual places. And

Canada, unfortunately, has not stepped up to that plate.

And the problem they pose is this: Just in the last year alone

there has been an 80 percent increase—80 percent increase—in the

amount of trash flowing from Canada to the United States, specifically Michigan. We went from a 15-year supply of landfill space

that is likely to get cut in half. And here is the dangerous part of

that: In 2003, Toronto, who is the largest producer of exports to

Michigan, is closing both of its landfills. After 2003, they will have

43

no landfill space capacity, and we know where that trash is coming.

It is coming to Michigan.

What we have done is developed a bill that is pretty narrowly

crafted. It is crafted with NAFTA in mind, with GATT in mind,

with the Basil Convention in mind. And in each one of those agreements, every nation that signed understood that there were environmental and conservation issues that needed to be dealt with by

every nation individually. I don’t think anyone in good conscience

can argue that siting a landfill, accepting trash does not have an

environmental or a conservation impact on your State and our communities. We think that we have cleared those hurdles in both

NAFTA, GATT, and the Basil Convention even though we have not

officially signed on—the Senate has not confirmed that convention.

We had a case in Michigan recently, Mr. Chairman, involving a

landfill, where Canada sends a great deal of trash, and the case

was settled in 1997. It was found that a high percentage of PCBs,

which is prohibited from being dumped in our landfills, were

present in the trash that was being delivered, as well as cemetery

waste, which included, ‘‘soiled coffins.’’ Quite frankly, Mr. Chairman, I don’t even want to know what soiled coffins are, but we

were getting a bunch of them. It was creating a significant problem. That landfill was actually fined through a court case by one

of our environmental groups there about $114,000 for its PCB problems and this cemetery waste, including soiled coffins.

The problem is there is no good way to inspect the trash that

comes in from Canada. There is no good way. Our Governor at one

time proposed putting border inspectors on the borders trying to inspect trash coming in. It is almost impossible to do it. What this

bill does, very narrowly, is say, ‘‘Look, we are going to give the

States the ability to regulate, if not prohibit, the trash coming in

from foreign nations.’’ Mr. Chairman, you have trash coming into

Ohio from the Virgin Islands. Washington State takes Canadian

trash and gets a bunch of it. New York, actually, one of the large

exporters, gets Canadian trash.

We have got our own problems and our own difficulties here in

America to try to work out our differences about who should take

our neighbors’ trash. What we are saying is let us have a little reasonableness here and allow these States to tell places like Canada,

‘‘No.’’ And we can do it. BANCORP v. Board of Governors, Mr.

Chairman, very clearly states that Congress has the ability to give

the States this authority. We ought to do it; we can do it now. Let

us continue the debate on Mr. Greenwood’s bill, but let us save

Michigan 4.2 million cubic yards of trash every year. Thank you,

and I yield back the balance of my time.

[The prepared statement of Hon. Mike Rogers follows:]

PREPARED STATEMENT OF HON. MIKE ROGERS, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF MICHIGAN

Chairman Gillmor, Ranking Member Pallone, and Subcommittee Members, I appreciate the opportunity to testify today on the issue of municipal solid waste and

its treatment by federal and state governments. I understand it has been several

years since a congressional committee has taken a close look at what is an increasing problem for state governments—handling the often large volume of trash imports coming across their borders.

Mr. Chairman, as you and your subcommittee colleagues are aware, I have introduced bipartisan legislation this session designed to give states the tools to address

44

the tidal wave of foreign trash crashing against their borders. First, I will describe

the problems associated with the increase in foreign waste imports in the State of

Michigan. Second, I will describe attempts by state officials to combat those problems. Third, I will discuss H.R. 1927, legislation I have sponsored to give states the

authority to prohibit or restrict the importation of foreign municipal waste consistent with judicial and constitutional precedent. Lastly, I will discuss the international law implications of my proposal.

I. THE PROBLEM IN MICHIGAN

A. Dramatic Increase in Importation of Canadian Municipal Waste

Michigan’s importation of municipal waste from Canada has been a growing problem in my state for a number of years as the amount of trash imported from Canada

increases almost exponentially. In 1999, more than two million cubic yards of foreign municipal waste was imported to the State of Michigan from our Canadian

neighbors. Last year, that number grew to 4.2 million cubic yards—an increase of

80 percent. Today, nearly 45 percent of the municipal waste imported to Michigan

originates in Canada.

The situation is especially acute in a number of the counties I represent in Michigan’s Eighth Congressional District. For example, 100 percent of Genessee County’s

municipal waste imports come from Canada, as do nearly all of Washtenaw County’s

imports, and garbage imported to Oakland County accounts for almost half of its

imported waste.

Michigan’s ability to meet its own landfall disposal needs is seriously compromised by the dramatic increase in Canadian municipal waste imports. Based on

current usage statistics, it is estimated that Michigan holds capacity for 15-17 years

of disposal in its landfills. However, with the dramatic increase in the importation

of municipal waste, Michigan’s current capacity could be filled in less than 10 years.

While Michigan has done an excellent job planning for its waste disposal needs,

our neighbors in the Canadian Province of Ontario have not. Ontario’s waste shipments to Michigan and other states are growing as the Toronto area closes its two

remaining landfills. At the beginning of 1999, Toronto area municipalities were

managing about 2.8 million tons of waste annually, of which about 350,000 tons

were shipped to Michigan. However, according to the Congressional Research Service, by 2003, there will be virtually no local disposal capacity. Barring unforeseen

developments, most of this waste is expected to be sent to Michigan for disposal.

B. Environmental Impact of Increased Waste Importation

In addition to rapidly depleting the State of Michigan’s landfill capacity, a number

of environmental concerns are implicated by Canadian municipal waste imports.

One, Canadian trash does not have to meet the same environmental requirements

imposed upon municipal waste created within Michigan’s own borders. In fact, the

Public Interest Research Group in Michigan filed a lawsuit against the City of Toronto for sending municipal waste to Michigan that was contaminated with PCB’s,

which subsequently leaked into our groundwater supply.

Two, Michigan is the only state in the Union to have a ten-cent deposit on many

beverage containers. Michigan has placed a high priority on recycling and in turn,

these items are noticeably absent from many of Michigan’s landfills. However, landfills that accept Canadian municipal waste may have significant amounts of these

items that would have been recycled in Michigan. In short, Michigan’s recycling efforts are being undermined.

Three, with Michigan’s landfill disposal capacity rapidly dwindling due to increased foreign imports, action will be needed to address the state’s future disposal

needs. Siting new landfills requires significant green space that would otherwise not

have to be developed. At a time when many in Congress, and in our state legislatures, are attempting to preserve green spaces and rural areas, siting new landfills

to accommodate foreign waste is completely contrary to that goal.

Lastly, in addition to the problems associated with creating more landfills, such

as leakage into groundwater, noise pollution, and foul odors, the increased importation of waste creates indirect problems. One concern often voiced by my constituents

and other Michigan citizens is the heavy truck traffic associated with increased Canadian imports. In fact, the Mayor of Windsor, Ontario has publicly stated his concern over the damage the large volume of garbage trucks are doing to his region’s

highway infrastructure.

Led by Governor John Engler and the Michigan Department of Environmental

Quality, we have done a good job of planning a long-term, environmental strategy

for waste disposal in Michigan. However, disposing of another nation’s waste was

45

not a part of that plan. In fact, without action in the United States Congress, policymakers in states like Michigan are essentially unable to plan accordingly.

C. Other States

Evidence is growing that other states are not immune from the problems of foreign municipal waste imports. Fifteen percent of New York and Washington states’ imports originate in Canada. Furthermore Mr. Chairman, your home State of Ohio

receives imports from the Virgin Islands, while New Mexico and Texas receive municipal waste imports from Mexico.

I do not testify today to sound an alarm, but the fact is that other states are anticipating similar problems with respect to trash importation. The fear is that

should Michigan’s efforts to restrict foreign trash imports succeed, states such as

Pennsylvania could be next. Pennsylvania, like Michigan, has kept costs for waste

disposal fairly low.

It is exactly those states with sound planning and low disposal costs that the

Province of Ontario finds so appealing. As stated earlier, whether the result of poor

municipal planning or simply a ‘‘not in my backyard’’ position, the City of Toronto

is not taking necessary action to meet its municipal waste disposal demands. I believe that states that have acted responsibly in planning for waste disposal should

not be forced to have such planning upended by a foreign body, which is why Congress should give the States some flexibility in controlling foreign waste imports.

II. LEGISLATIVE ACTION

A. State Attempts to Address International Waste Issues

Mr. Chairman, like yourself and many of our congressional colleagues, I had the

honor of serving in the state legislature prior to my service in Congress. During my

service in the Michigan Senate, we recognized the problems associated with the influx of foreign and out-of-state municipal waste and sought numerous legislative solutions.

For example, Michigan adopted legislation that allowed individual counties to

make their landfills off-limits to municipal waste from other states or nations. Unfortunately, as you will likely hear from Michigan’s Director of Environmental Quality on the next panel, this legislation was ruled unconstitutional by the courts. In

striking down Michigan’s law, the courts followed the landmark City of Philadelphia

v. New Jersey decision in which the Supreme Court struck down a New Jersey statute prohibiting the importation of most out-of-state waste.

While efforts continue under Michigan’s capitol dome in Lansing to restrict Canadian municipal waste, these efforts will be extremely difficult without support from

Washington, D.C. For example, Michigan State Senator Ken DeBeaussaert has

sponsored legislation to ban beverage containers in Michigan landfills. As described

earlier, Michigan has a very successful deposit program on beverage containers and

the state’s enactment of such legislation would provide a significant hurdle for Canadian trash imports to meet. Though the feasibility of this legislation deserves further debate, its pursuit clearly demonstrates the desire of state policymakers to regulate foreign municipal waste and gain some amount of control over waste flowing

across their borders.

As a former state senator, I understand that Michigan and other state governments know what is best for their citizens when it comes to trash imports, but are

unequipped to deal with the problem absent congressional action. Under H.R. 1927,

the Solid Waste International Transportation Act, if a state chooses to import trash

from Canada or any nation, they certainly have that choice. And if the individuals

elected to represent our constituents in various state legislatures want to restrict

or limit the influx of foreign waste, my legislation allows them that option as well.

The bottom line is empowering states to make their own decisions.

III. H.R. 1927, THE SOLID WASTE INTERNATIONAL TRANSPORTATION ACT

A. Legislative Intent and Constitutional Concerns

As states have attempted to regulate waste imports, the federal courts have declared these state restrictions unconstitutional. If states are to have such authority,

congressional action is required. Given these constitutional difficulties faced by state

legislatures and governors in addressing foreign waste, I introduced H.R. 1927,

which gives states the authority to prohibit or restrict the importation of foreign

trash or waste consistent with judicial and constitutional precedent. This bipartisan

legislation amends the Solid Waste Disposal Act to provide the necessary express

statutory command with respect to foreign municipal waste.

As discussed earlier, the 1978 City of Philadelphia v. New Jersey decision struck

down a state statute that prohibited the importation of most out-of-state municipal

46

waste partially on the basis that the Federal Solid Waste Disposal Act, had ‘‘no

clear and manifest purpose of Congress to pre-empt the entire field of interstate

waste, either by express statutory command, or by implicit legislative design.’’ The

Solid Waste International Transportation Act amends existing federal law to provide

that express statutory command.

Additionally, in Northeast Bancorp v. Board of Governors of the Federal Reserve

System the Supreme Court said ‘‘when Congress so chooses, state actions which it

plainly authorizes are invulnerable to constitutional attack under the Commerce

Clause.’’ H.R. 1927 would be a plain authorization of a state’s authority to prohibit

or limit incoming foreign municipal waste.

B. International Legal Concerns

In the debate amongst the varying approaches to solving the international and

interstate waste issue, much is made of international trade agreements implicated

by allowing state governments the authority to regulate foreign municipal waste. I

welcome the opportunity to address this issue. At the onset it is crucial to note that

there is no existing legal precedent explicitly prohibiting the aim of H.R. 1927—giving states the authority to limit or prohibit the importation of foreign waste. The

fact is that without congressional action, our states will never even have the opportunity to tackle the issue in a manner consistent with international trade law.

For example, numerous commentators claim the North America Free Trade

Agreement (NAFTA) proscribes Congress from granting states the authority provided under H.R. 1927. I respectfully disagree. First, it is clear that nothing in my

legislation violates the principles of NAFTA as it only gives the states an opportunity to regulate foreign waste. The ball is then in the state’s court—so to speak—

in that it provides states the opportunity to craft reasonable limits consistent with

international law.

Under Article 2101 of NAFTA, which incorporates the General Exceptions of the

General Agreement on Tariffs and Trade (GATT) Article XX and its interpretive

notes, the United States, a State, or locality can place environmental-based restrictions on trade if ‘‘necessary to protect human, animal or plant life, or health.’’ Once

Congress grants states the authority under H.R. 1927 consistent with our Constitution, the states would have an opportunity to approve legislation consistent with the

NAFTA exception.

For example, if a state decides to forbid disposal within its borders of any municipal waste containing PCBs because of the environmental hazards associated with

its contamination of groundwater, I would strenuously argue that such a state law

would pass international muster based on the recognized environmental health exception. We should not simply foreclose the option for the states to make innovative

policy and legal arguments based on their state’s individual needs. It is possible

some states’ arguments won’t meet international law scrutiny and will be shot

down, but it is just as likely some will survive. The irrefutable fact is that this is

an area of unsettled law and there is no reason Congress should not give the states

a chance to define that law and legislate in the best interests of their constituents

within the environmental health exception to NAFTA.

In addition to environmental measures, another murky area of international law

is the definitional treatment of solid municipal waste. For example, I have been advised by international and domestic legal counselors that for NAFTA provisions to

apply, the item in question must be defined as a ‘‘good.’’ While some may claim municipal waste is a good, the issue remains unsettled, and states would have the ability to argue that the distinctive characteristics of municipal waste do not rise to the

level of a ‘‘good.’’ A good is something that upon trade, value can be added to or

derived from. By definition, foreign solid municipal waste is only coming into a state

for disposal. This is very different from all other types of waste, such as hazardous

or industrial-grade waste, which must be processed.

C. Legislative Environment

As I stated during my introductory remarks, I am very pleased that for the first

time in several years, Congress is showing a willingness to tackle the trash issue

head-on. The fact that the Subcommittee has three different proposals before it

today underscores the urgency for congressional action.

While my legislation only addresses the issue of foreign municipal waste, I am

certainly cognizant of the ever-present difficulties surrounding the treatment of

interstate waste. In fact, I applaud the efforts of my colleagues to address that difficult issue and have joined as a cosponsor to Congressman Greenwood’s legislation,

H.R. 1213, to give states and municipalities more control over interstate waste.

However, given the sensitive political and policy implications of interstate waste, I

believe Congress may be more successful in coming to agreement on the foreign

47

waste issue. H.R. 1927 attempts to peal off a small, but significant, part of giving

states more control over the flow of waste into their borders.

Again, I thank the Subcommittee for the opportunity to testify and would welcome

any questions.

Mr. GILLMOR. Mr. Kanjorski.

STATEMENT OF HON. PAUL E. KANJORSKI

Mr. KANJORSKI. Thank you, Mr. Chairman. I make the observation the reason Canada can’t handle that waste is it is not large

enough.

Mr. Chairman, on my way down here today, one of my staff

members called attention to one of the famous holidays in Pennsylvania—Groundhog Day—and a famous movie was made after that.

And that is every morning you wake up, you relive the entire circumstance. For the last 12 years, I have been on this issue introducing legislation, and every time the committee does something it

reminds me of Groundhog Day. I hope we move off that. And regardless of what we do or what this committee recommends, I

sponsor it. I am the sponsor of a particular piece of legislation that

is rather simply crafted after the low-level radiation legislation.

And it basically says every State has the responsibility of taking

care of its own trash, but it can enter into voluntary compacts with

neighboring States or other States to handle trash in a voluntary

compact way. That handles everybody’s problems.

Clearly, I represent a district in the State of Pennsylvania, and

when you listen to the numbers of what we do, in the year 2000,

9.8 million tons of municipal waste and 2.5 million tons of non-hazardous waste from other States. That is an increase of 2 million

tons in 1 year. Forty-two percent of the total waste disposed of in

Pennsylvania comes from other States. We love to be first and big

and important, but we really don’t want that importance, Mr.

Chairman. And I have listened to the testimony of my friend Mr.

Towns, the other members of New York. Look, this should not be

a war between the States. This is a very practical problem.

And one of the reasons Pennsylvania gets disadvantaged is, unlike other States, we have 2,500 municipalities, 90 percent of which

are under 3,000 in population. And when a State like New York

comes in and dangles incredible payments of non-taxes, subsidies,

and everything else, surely these States—or these municipalities

are tempted to take this agreement. This is a State issue. All of

the people of Pennsylvania are interested in what is placed in

Pennsylvania, regardless of where it is placed. And so should the

State of New York be that interested, and so should the people of

the United States be interested.

When we are dealing with municipal waste we are not dealing

with a commodity that disappears. Basically, we are the stewards

of this land, but the future generations will use this land, and we

have to make good policy decisions that will affect well on the environment that they inherit and the lives and the quality of their

lives as they inherit it. And what we do with municipal waste will

compound that very problem.

You know, I would suggest, in listening to some of the statements of the members, if we were to allow communities to decide

whether they could take nuclear waste in this society, I can find

48

a lot of poor communities who would opt to take nuclear waste.

Would we, in the individual States, want to accept that? Would the

country, as a whole, accept that as good public policy? Clearly not.

Mr. Chairman, I brought an example of something today. Municipal waste not only fouls the water, not only contaminates the air,

but it also kills people. I have a photo I want to show you, and I

will cover up Mr. Rogers here for a moment so that you can see

it. This is a picture of Monroe County, Pennsylvania, the heart of

the Poconos. This is where so many of the good people from New

York and New Jersey come over to visit Pennsylvania and recreate.

But on 81 a trash truck overturned in January and squashed two

Pennsylvanians. That is not an unusual sight in Pennsylvania.

These trucks run up and down this highway every day.

And what did we find as a result of that? Pennsylvania and the

Governor—and I compliment them—put into effect Operation

Clean Sweep. They went in to inspect these trucks, and they found

hundreds of unsafe trucks. One-third of them had to be taken off

the road. They had useless breaks, cracked frames, and were operating grossly overweight. Operators were arrested for drunk driving and driving with suspended licenses. Now that is not the responsible actions of out-of-State people.

What waste has become is out of sight, out of mind culture. You

don’t see, it is covered, it disappears into the land, and a result a

lot of people don’t want to and feel no responsibility to take the responsibility for it. Pennsylvania should be complimented, Mr.

Chairman. It has one of the most advanced recycling and disposal

systems in this country, but as a result we have been punished.

And it is time that we reward responsible States and not punish

them, and give these States the ability to control the importation

of waste through any of the bills that are pending before this committee. I sponsor them all, I support them all, but let us move on.

We must protect the environment, promote local control, promote

responsible waste management, but most of all protect the health

and safety of our constituents. Thank you, Mr. Chairman.

[The prepared statement of Hon. Paul E. Kanjorski follows:]

PREPARED STATEMENT OF HON. PAUL E. KANJORSKI, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF PENNSYLVANIA

Mr. Chairman, I welcome this opportunity to testify before you on an issue that

has long been of particular concern to me and the citizens of Pennsylvania that I

represent; the issue of interstate shipment of municipal solid waste. I commend you,

the ranking member, and the committee for your leadership in reviewing a practice

that threatens our environment and our public health and safety.

Since the late 1980s the tonnage of interstate trash imports in several states

across the nation has risen dramatically. In response, I have reintroduced legislation that would allow states with comprehensive management plans for the disposal

of all waste generated within their own borders to limit the importation of out-ofstate trash, and to form voluntary regional compacts with other states to import or

export their trash. In fact, this bill, H.R. 667, the Solid Waste Compact Act, was

the first bill to address this important issue in the 107th Congress. Additionally, I

am an original cosponsor of other legislation we will discuss today, H.R. 1213, the

Solid Waste Interstate Transportation Act, and H.R. 1927, the Solid Waste International Transportation Act.

Total interstate waste shipments continue to increase as older local landfills close

and the waste management industry consolidates. My state of Pennsylvania is

forced to accept more garbage from other states than any other state in the nation,

by far. In 2000, Pennsylvania imported 9.8 million tons of municipal solid waste and

2.5 million tons of other non-hazardous waste from other states, an increase of alVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 E:\HEARINGS\74852 pfrm09 PsN: 74852
49

most 2 million tons from the 10.4 million tons of out of state trash imported the

previous year. In 1999, out-of-state trash made up 42.8% of the annual total waste

disposal in my state. This past year, 20 other states reported increased imports of

out-of-state trash. Besides Pennsylvania, states such as Virginia, Michigan, Ohio,

Indiana, Illinois, Wisconsin, and Oregon share these concerns and each import over

a million tons of out-of-state trash annually. Further, New Hampshire, New York,

New Jersey, Kentucky, South Carolina, Georgia, and Nevada, each import over a

half million tons of out-of-state trash annually.

From my perspective, the legislation offered by my colleagues and me is an attempt to put into action two important ideals that are often talked about in Washington—protecting the environment and promoting local control. It would protect

the environment by limiting the current practice of transporting garbage hundreds

of extra miles from the source, which increases air pollution. It would promote local

control by giving states, which already have the duty to ensure that solid waste is

disposed of properly, the right to determine whether to accept the waste from other

states and nations.

This legislation is all the more crucial in light of the tragic loss of two lives in

a recent collision in my district with a truck carrying out-of-state trash. My district

includes part of Monroe County, Pennsylvania, where two people were killed last

January on Interstate 80 when a truck carrying out-of-state garbage lost control and

crashed into their cars. The driver, who was headed for the Keystone Sanitary

Landfill near Scranton, Pennsylvania, walked away with minor injuries and was

charged with two counts of homicide by vehicle and two counts of involuntary manslaughter.

In May 2001, the Pennsylvania Department of Environmental Protection, the

Pennsylvania Department of Transportation and the Pennsylvania State Police

launched ‘‘Operation Clean Sweep’’—surprise trash truck inspections at every landfill, major incinerator, and at checkpoints along the Pennsylvania Turnpike and

other interstate highways. What this major enforcement action discovered were hundreds of unsafe trash trucks—86% of the trash trucks had safety and environmental

violations and more than one-third were taken off the road. Vehicles hauling waste

into Pennsylvania were found to have two of six brakes working, cracked frames,

and operating overweight by 30,000 to 40,000 pounds. Additionally, operators were

arrested for driving while intoxicated and with suspended licenses. This is a clear

sign that far too many trash haulers disregard state safety and environmental regulations, which can lead to accidents like the tragedy on Interstate 80 last January.

The practice of shipping municipal solid waste thousands of miles from its source,

to be discarded across state and national boundaries, has created an ‘‘out of sight,

out of mind’’ culture. Because many communities do not experience the effects of

their waste, there is no incentive to implement waste management plans. Efforts

to take responsibility for local waste by establishing waste prevention initiatives, recycling programs, and increased landfill and incinerator capacity wane as trash

trucks roll out of town. Further, manufacturers lack encouragement to consider the

waste management implications of their products. Products continue to be designed

and packaged without regard to their volume, toxicity or recyclability.

Mr. Chairman, Pennsylvania and other states have taken responsibility for waste

by increasing recycling and landfill capacity and should be rewarded, not punished,

for taking this responsibility. We should work to give states the ability to control

the importation of waste so we can protect our environment, promote local control,

promote waste management initiatives, and protect the health and safety of our constituents. I again thank you for the opportunity to speak before you on an issue that

badly needs to be addressed.

Mr. GILLMOR. The gentleman, Mr. Moran.

STATEMENT OF HON. JAMES P. MORAN

Mr. MORAN. Thank you, Mr. Chairman, and thanks for the opportunity to testify in favor of these bills that would regulate solid

waste, particularly the Greenwood-Dingell bill. I hope we can move

promptly on this legislation that would grant States that authority.

While the circumstances in Virginia, Pennsylvania, and other

States may be very different, we are in agreement on the absolute

need for a Federal remedy. Some States, like the Commonwealth

of Pennsylvania, have acted responsibly, planned ahead, permitted

landfills to address their residents’ long-term solid waste disposal

50

needs. But, unfortunately, Pennsylvania’s prudent efforts to create

new waste disposal capacity for its municipalities were undermined

by interstate waste haulers who took advantage of the new capacity to ship solid waste into the State. In the case of Pennsylvania,

no good deed appears to have gone unpunished.

In the case of Virginia, a different story is emerging. Unlike

Pennsylvania, some government officials within Virginia viewed

out-of-State as an economic bonanza and encouraged development

of these landfills. Since the early 1990’s, there has been a cooperative relationship between interstate waste shippers and State and

some local officials that is credited with producing seven mega

landfills. An eighth is now in operation and a ninth under consideration.

These mega landfills have been built and designed to receive

more than 2,000 tons of trash every day. To put these mega landfills in perspective, the one in Sussex County, when completed, will

be 550 feet tall, the height of the Washington Monument; it will

cover 3 square miles, or the area of roughly 1,000 football fields;

it will be the single largest geographic feature on the entire coastal

plain of Virginia.

Trash trucks hauling this waste present an additional transportation hazard. In just 5 short years, Virginia doubled the volume

of waste it imports. Today, more than 140,000 trash trucks and

scores of rail cars haul municipal waste, incinerator ash, and sewage sludge into Virginia each year. Last year, Virginia imported

3,900,000 tons of solid waste, ranking it the second largest solid

waste importer. To achieving this ranking waste haulers overwhelmed local roads with trucks, generating noise, dust, and debris

24 hours a day.

Even more troubling, these permits were granted even though

the State admits it doesn’t have the resources to conduct onsite inspections. A 1998 investigative report of the Washington Post uncovered very troubling findings that showed that the landfills have

received medical waste, radioactive material, and industrial solvents and pesticides. Given the large volume of waste and very lax

oversight, there is every opportunity for waste haulers to mix

household garbage with more toxic or hazardous waste.

In the instance of Virginia, we need Federal legislation to help

Virginia pursue a more responsible course. The proposals pending

before this committee are appropriate and timely. Unfortunately, in

Virginia’s case, they don’t go far enough. Virginia needs the tools

and the authority to revisit existing agreements that were written

and approve to specifically accommodate out-of-State trash. I commend my colleague, Congresswoman Davis, for identifying four

changes that we need in the legislation.

We need to give a State like Virginia the authority to impose

some type of cap on existing facilities. Shockingly, Virginia doesn’t

impose any time limit on its permits. They don’t expire and aren’t

subject to any renewal process, so they can go on forever. The

States should be given some power to regulate host community

agreements since the impact of waste brought into a State affects

more than just the host community. States should be given much

greater flexibility to select the year they establish for the cap. For

example, in 1993, that was the year that the highest volume of outVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
51

of-State trash came in. Finally, States should be given the authority to regulate all types of solid waste. A high volume of waste imported into Virginia is municipal sludge that isn’t covered by the

pending legislation.

There is also growing concern that the financial assurance requirements required by Federal law can be circumvented, and they

are not worth the paper they are printed on. Some private landfill

operators in Virginia are self-insured, creating an easy loophole

that could limit their future liability to cover closure and any longterm maintenance costs. If they are shielded from future costs, they

have no incentive to police the waste that they are now receiving.

From an economic perspective, the only way the cost of large volumes of trash traveling such great distances is justified is if the

full cost, or really the full liability created by these mega landfills

is deferred into the future. As long as disposal remains cheap, safer

but more expensive disposal options won’t be pursued.

Likewise, these cheap mega landfills undermine local recycling

and waste minimization efforts. They have undermined efforts in

Northern Virginia, for example, in my district to manage municipal

waste through incineration. A diversion of locally generated solid

waste from Alexandria and Fairfax incinerators to the big mega

landfills that are so much cheaper force the private operator of

these incinerators to burn industrial waste to maintain a minimum

volume of trash that they needed for the necessary cash-flow. Restricting out-of-State trash would restore the waste volumes of

trash these incinerators need to avoid burning industrial waste.

Giving the States more power to regulate this waste forces us to

confront, not defer, these long-term costs.

There is no easy solution, and States must be responsible partners. But the measures pending before this subcommittee do offer

a start on the road to a more comprehensive solution. I congratulate the sponsors of the legislation and urge that we move it along

as quickly as possible. Thank you, Mr. Chairman.

[The prepared statement of Hon. James P. Moran follows:]

PREPARED STATEMENT OF HON. JAMES P. MORAN, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF VIRGINIA

Mr. Chairman, thank you for the opportunity to testify at today’s hearing on ‘‘Perspectives on Interstate and International Shipments of Municipal Solid Waste.’’

I applaud you for conducting this hearing and urge you to move promptly on legislation that would grant states the authority to regulate out-of-state trash. While the

circumstances in Virginia, Pennsylvania, and other states may be very different, we

are in agreement on the need for a federal remedy. Some states like the Commonwealth of Pennsylvania have acted responsibly, planned ahead, and permitted landfills to address their residents’ long-term solid waste disposal needs. Unfortunately,

Pennsylvania’s prudent efforts to create new waste disposal capacity for its municipalities have been undermined by interstate waste haulers who have taken advantage of this new capacity to ship solid waste into the state. In the case of Pennsylvania, no good deed appears to have gone unpunished.

In the case of Virginia, a different story is emerging. Unlike Pennsylvania, some

government officials within Virginia viewed out-of-state trash as an economic bonanza and encouraged development of these landfills. Since the early 1990s, there

has been a cooperative relationship between interstate waste shippers and some

state and local officials that is credited with producing seven mega-landfills. An

eighth is now in operation and a ninth under consideration. These mega-landfills

have been built and designed to receive more than 2,000 tons of trash each day. To

put these mega-landfills in perspective, the one in Sussex County, when completed

will be 550 feet tall, the height of the Washington Monument; cover 3 square miles

52

or the area of roughly 1,000 football fields; and be the single largest geographic feature on the coastal plain of Virginia.

In five short years between 1993-1998, Virginia doubled the volume of waste it

imports. Today more than 140,000 trash trucks and scores of rail cars haul municipal waste, incinerator ash, and sewage sludge into Virginia each year. Last year,

Virginia imported 3.9 million tons of solid waste, ranking it the second largest solid

waste importer. In achieving this ranking, waste haulers have overwhelmed local

roads with trucks, generating noise, dust, and debris 24 hours a day.

Even more troubling, these permits were granted even though the state admits

it does not have the resources to conduct on site inspections of all this waste. A 1998

investigative report published in the Washington Post uncovered some troubling

findings that showed some of these landfills had received medical waste, radioactive

material and industrial solvents and pesticides. Given the large volume of waste

and lax oversight, there is every opportunity for waste haulers to mix household

garbage with more toxic or hazardous waste.

In the instance of Virginia, we need federal legislation to help the Commonwealth

pursue a more responsible course. I urge you now to help Virginia by enacting legislation granting states the power to regulate interstate trash. The proposals pending

before this committee are both appropriate and timely. Unfortunately, in Virginia’s

case, they may not go far enough. Virginia needs the tools and the authority to revisit existing agreements that were written and approved to specifically accommodate out-of-state trash. I commend my Virginia colleague, Rep. Jo Ann Davis, for

identifying four changes that would address Virginia’s unique situation:

1) We need to give Virginia the authority to impose some type of cap on existing

facilities. Shockingly, Virginia does not impose any time limit on its permits.

They do not expire and are not subject to any renewal process;

2) The states should be given some power to regulate host community agreements

since the impact of waste brought into a state affects more than just the host

community;

3) States should also be given greater flexibility to select the year they use to establish the base for capping out-of-state waste. Using 1993 as the base year would

have little impact on controlling future waste at some of these landfills in Virginia, since one of the mega-landfills in Virginia received its highest volume of

out-of-state trash in 1993; and,

4) Finally, states should be granted the authority to regulate all types of solid

waste. A high volume of waste imported into Virginia is municipal sludge that

is not covered by pending legislation.

Mr. Chairman, accommodating these concerns would be very helpful in addressing

Virginia’s burgeoning waste management problem.

If we do not give the states the authority and provide Virginia with an opportunity to make amends for is past shortcomings, I fear we will be forced to revisit

this issue again in the future. As you know, municipal solid waste landfills across

the country are already a growing public policy concern. The environmental threat

posed by these local landfills, however, will dwarf those created at mega-landfills

given their sheer magnitude in size and volume of waste. Already, preliminary

groundwater testing at several of these mega-landfills has found elevated levels of

metals raising questions about the reliability of these ‘‘high-tech’’ liners designed to

prevent leaks. In addition, there is growing concern that the financial assurancy requirements, required by federal law, may be circumvented and not worth the paper

they are printed on. Some private landfill operators in Virginia are self-insured creating an easy loophole that could limit their future liability to cover closure and

long-term maintenance costs required. If they are shielded from future costs, they

have no incentive to police the waste they now receive.

From an economic perspective, the only way the cost of large volumes of trash

traveling such great a distance from its source can be justified is if the full cost,

or really the full liability created by these mega-landfills, is deferred into the future.

As long as disposal remains cheap, safer but more expensive disposal options will

not be pursued. Likewise, cheap mega-landfills undermine local recycling and waste

minimization efforts. These cheap landfills have also undermined attempts in

Northern Virginia to manage municipal waste through incineration. Diversion of locally-generated solid waste from the Alexandria and Fairfax incinerators to these

mega-landfills has forced the private operator of these two incinerators to burn hazardous waste to maintain a minimum volume of trash needed to maintain the cash

flow. Restricting out-of-state trash, would restore the waste volumes of trash these

incinerators need to avoid burning hazardous wastes.

Giving the states more power to regulate this waste forces us to confront, not

defer these long-term costs. There are no easy solutions, and states must be a reVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 E:\HEARINGS\74852 pfrm09 PsN: 74852
53

sponsible partners. But, the measures pending before this subcommittee offer a

start on the road to a more comprehensive solution.

Thank you.

Mr. GILLMOR. Thank you, Mr. Moran.

The Minority Whip of the House, Mr. Bonior.

STATEMENT OF HON. DAVID E. BONIOR

Mr. BONIOR. Good morning, Mr. Chairman, and thank you for

the opportunity to address you and the committee this morning. I

am pleased to be here. I want to commend you and Mr. Pallone for

the opportunity to speak, and also to thank Mr. Greenwood and

Mr. Doyle and Mr. Dingell for their leadership on this committee.

I am not going to repeat much of what is said, and it was said

very well by my colleagues on this panel and others who have spoken before me, particularly the situation in Michigan. Just to

recap, I have been working on this issue with many of you now for

10 years. The original case that came before the Supreme Court

came out of Fort Gratiot Township in my congressional district.

We, as Mr. Greenwood said, back in 1994 were successful in passing a bill we put together in the House. It failed in the U.S. Senate

on the last day after we thought it was going to go to the President

for his signature. It has become a more serious issue each and

every year, and I think the testimony of Mr. Moran and Mr. Kanjorski, we have just heard, shows how out of control this issue has

become.

Let me just say this: In Michigan, we have trucks coming over

the Ambassador Bridge, which is from Windsor, Ontario into Detroit, and the Blue Water Bridge, which is from Sarnia into Port

Huron in my district. Every 5 to 10 minutes, there is a garbage

truck that comes across that bridge to dump garbage into our

State. Last year alone, over 1.2 million tons of Canadian trash

were dumped into Michigan, 80 percent more than the year before.

We rank No. 3 in the country for trash imports, with over 2.8 million tons of municipal waste crossing our borders from other States

and from Canada.

So we are tired of this. And we are tired of the fact that we have

made efforts to control our solid waste disposal in a manner that

addresses our environmental concerns in our own State. For instance, we are one of the first States in the Union to establish a

deposit on cans and bottles. We did that when I was back in the

legislature in 19, I believe 74, if I recall correctly. We have taken

action on polychlorinated biphenyls, PCBs. I authored that legislation when I was there back in 1974 that prohibits the sale, manufacture, and use of this chemical. Now we are finding, according to

my colleague, Mr. Rogers, that this is coming back into our State

via Canada and the trucks that are dumping their garbage into our

State. This is not acceptable; we want it changed. We are trying

to be responsible in our own community. We hope others would be

in theirs.

We need to move on the legislation that is before us today and

the others that have been suggested here this morning. And I

would hope, Mr. Chairman, that you would proceed in the days and

weeks ahead, especially when we return from the recess, to process

this legislation so that the full House can express its concern again.

54

I thank you for the time, and I wish you well. Thank you for your

own personal concern on this in Ohio.

[The prepared statement of Hon. David E. Bonior follows:]

PREPARED STATEMENT OF HON. DAVID E. BONIOR, DEMOCRATIC WHIP

I am pleased to be here today with my colleagues and to testify in support of the

Solid Waste Interstate Transportation Act, H.R. 1213. I wish to commend Representatives Greenwood, Doyle and Dingell for their leadership on this important

issue. I also want to thank Chairman Gillmor and Ranking Member Pallone for

holding toady’s hearing.

We have been working on this issue for a number of years now, and it is as important to Michigan families today as it was 10 years ago. Our local communities need

to have the ability to make their own solid waste disposal decisions. Those of us

in Michigan have done a lot to reduce the amount of trash we throw away by establishing community recycling programs. Because we are making responsible solid

waste disposal decisions, it is particularly frustrating that we have been forced to

accept trash from communities who have been less responsible. Our local governments need to have the ability to ban Canadian and out-of-state waste from their

borders.

In order to ensure the authority of local communities to make their own solid

waste disposal decisions, the U.S. Congress needs to enact legislation. That is why

I am a cosponsor of bipartisan legislation, H.R. 1213, to give our communities the

ability to say no to Canadian and out-of-state trash. We should pass this bill this

year to stop our communities from becoming a ‘‘dumping ground’’ for those less responsible.

As an example of just how important it is to enact this legislation, let me briefly

describe what is currently going on in Michigan. Right now, day after day—every

five to ten minutes—there are trucks coming over Michigan bridges from Canada

dumping trash into our state. Last year alone, over 1.2 million tons of Canadian

trash were dumped in Michigan—80% more than the year before. Michigan also

ranks number three in the country for trash imports, with over 2.8 million tons of

municipal solid waste crossing our borders from other states and Canada.

All of us in Michigan are tired of driving along our highways and watching garbage fall off of these trash trucks. Even more troubling, earlier this year a Sanilac

County man died after being hit by a Canadian garbage truck.This trash trafficking

needs to stop once and for all. In 1992, the Supreme Court ruled that trash is commerce and can only be regulated by an act of Congress. This decision was based on

the Fort Gratiot case, which is based on a landfill in my district.

Since 1991, I have been working with various members of this Committee to allow

local communities to ban out-of-state or Canadian waste. In 1994, we managed to

pass our bill in the House only to have it blocked in the Senate in the final days

of session.

Now we come before the Environmental and Hazardous Materials Subcommittee

again to move forward our bill. Our bill places a presumptive ban on out-of-state

and out-of-country waste, and it gives the power to lift the ban to local units of government. It is time for our local communities to have control over the trash being

dumped in their backyards.

The Chairman of the House Commerce Committee has said moving our bill is a

‘‘high priority’’ for his committee this year. In the days, weeks and months ahead,

I hope to work with the Chairman and Ranking Member John Dingell to see that

our bill becomes the law of the land.

Our local communities should not be dumping grounds for other people’s trash.

Mr. GILLMOR. Thank you, Mr. Bonior.

The gentlelady from Virginia.

STATEMENT OF HON. JO ANN DAVIS

Ms. DAVIS. Thank you, Mr. Chairman and members of this committee, for holding this hearing today on interstate waste. I assure

you it is a very important issue and a worthy topic for the subcommittee to address. I would like to also say thank you to Mr.

Greenwood for agreeing to work with me on the possible changes

to his legislation to protect the Commonwealth of Virginia.

55

The importation of interstate waste is a critical issue facing Virginia’s citizens, and the issue disproportionately affects the Commonwealth of Virginia. The Fourth Circuit Court of Appeals recently ruled, as has been said today, that Virginia does not have

authority to limit the trash crossing its borders. As you know, since

waste transportation is deemed interstate commerce, it falls under

Congress’ authority, and congressional action is needed and can

only be done with your help, Mr. Chairman.

Mr. Chairman, this is not a Republican or a Democrat issue; it

is a Virginia quality of life issue that transcends party lines. Constituents in my district are tired of dirty trash trucks shedding litter along the sides of the road and clogging routes that were not

built for such large vehicle traffic. In the year 2000, Virginia received 3.9 million tons of garbage from outside this State—the second highest amount in the Nation. Being the second largest importer of trash in the Nation is not consistent with our image and

vision for Virginia.

As we all know, Congressman Greenwood has introduced H.R.

1213 to address this issue of interstate waste, however adjustments

will be required in this bill to ensure that Virginia is not harmed.

If Virginia does not benefit from Federal legislation that the other

States will, this puts us at a tremendous disadvantage and makes

the Commonwealth vulnerable to receiving even more out-of-State

waste.

I propose the following changes. First, ensuring that Virginia can

impose volume caps on existing landfills. H.R. 1213 currently exempts landfills from State-imposed restrictions if their permits establish a higher limit or do not establish any limit on the amount

of out-of-State waste. Most permits in Virginia currently State that

landfills can take waste from any source and do not establish any

limits. Similarly, H.R. 1213 allows State restrictions to be circumvented if a host community, in its so-called host community

agreement with the landfill operators, does not establish any limit

on out-of-State waste, or if the future host community agreements

authorize specific levels of out-of-State waste. Waste traveling into

and through Virginia impacts many more communities than the

host community, so State regulation is appropriate under these circumstances.

H.R. 1213 would currently allow States to cap out-of-State trash

at 1993 volumes. And as my colleague, Mr. Moran, said, the

Charles City landfill received its greatest volume of out-of-State

trash in calendar year 1993. Virginia would not be provided much

protection by this provision. The bill would be improved by allowing States to choose a calendar year, from 1993 to present, as representing its volume cap so that each State would individually be

able to determine which year they wanted to use.

Finally, H.R. 1213 only regulates the flow of municipal solid

waste. The bill, I believe, should also include other disposable

waste substances, such as sewage sludge or commercial waste. If

substances such as sludge are excluded from the bill’s coverage, it

will only increase the levels that Virginia will receive.

I urge the subcommittee to take up Mr. Greenwood’s bill this

year, and I just as strongly urge that these recommendations be incorporated into a manager’s amendment before H.R. 1213 is

56

marked up by the committee. Without these necessary changes, the

bill will largely be ineffective for Virginia and could possibly even

negatively impact our State.

Before I close, I would like to publicly acknowledge the assistance my office has received on this issue from Campaign Virginia,

a citizens environmental group dedicated to stemming the flood of

out-of-State garbage into Virginia. The transport of interstate

waste into Virginia is an issue that we must be able to control, and

I urge that the committee address this issue very soon. I thank you

again, Mr. Chairman, and appreciate all your help.

[The prepared statement of Hon. Jo Ann Davis follows:]

PREPARED STATEMENT OF HON. JO ANN DAVIS, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF VIRGINIA

Mr. Chairman and members of this committee, thank you for holding this hearing

today on interstate waste, and I assure you that this is a very important and worthy

topic for the subcommittee to address.

The importation of interstate waste is a critical issue facing Virginia’s citizens,

and the issue disproportionately affects the Commonwealth of Virginia. The Fourth

Circuit Court of Appeals recently ruled that Virginia does not have authority to

limit the trash crossing its borders. As you know, since waste transportation is

deemed interstate commerce it falls under Congress’ authority and congressional action is needed.

Mr. Chairman, this is not a Republican or Democrat issue—it is a Virginia quality

of life issue that transcends party lines. Constituents in my district are tired of dirty

trash trucks shedding litter along the sides of the roads, and clogging routes that

were not built for such large vehicle traffic.

In the year 2000, Virginia received 3.9 million tons of garbage from outside the

state, the second-highest amount in the nation. Being the second largest importer

of trash in the nation is not consistent with my image and vision of Virginia.

As we all know, Congressman Greenwood has introduced H.R. 1213 to address the

issue of interstate waste, however, adjustments will be required in this bill to ensure that Virginia is not harmed. If Virginia does not benefit from federal legislation

that other states do, this puts us at a tremendous disadvantage and make the Commonwealth vulnerable to receiving even more out-of-state waste. I propose the following changes:

First, ensuring that Virginia can impose volume caps on existing landfills. H.R.

1213 currently exempts landfills from state-imposed restrictions if their permits establish a higher limit or do not establish any limit on the amount of out-of-State

waste received at the facility annually. Most permits in Virginia currently state that

landfills can take waste from any source and do not establish any limits.

Similarly, H.R. 1213 allows state restrictions to be circumvented if a host community, in its so-called host community agreement with the landfill operators, does not

establish any limit on out-of-state waste, or if future host community agreements

authorize specific levels of out-of-state waste. Waste traveling into and through Virginia impacts many more communities than the ‘‘host’’ community, so state regulation is appropriate under these circumstances.

H.R. 1213 would currently allow states to cap out-of-state trash at 1993 volumes.

The Charles City landfill received its greatest volume of out-of-state trash in calendar year 1993, so Virginia is not provided much protection by this provision. The

bill would be improved by allowing states to choose a calendar year from 1993 to

the present as representing its volume cap.

Finally, H.R. 1213 only regulates the flow of municipal solid waste. The bill

should also include other exportable waste substances such as sewage sludge or

commercial waste. If substances such as sludge are excluded from the bill’s coverage, it will only increase the levels that Virginia will receive.

I urge the subcommittee to take up Mr. Greenwood’s bill this year, and I just as

strongly urge that these recommendations be incorporated into a manager’s amendment before H.R.1213 is marked up in committee. Without these necessary changes,

the bill will be largely ineffective for Virginia, and possibly negatively impact the

Commonwealth.

Before I close, I would like to publicly acknowledge the assistance my office has

received on this issue from Campaign Virginia, a citizens’ environmental group dedicated to stemming the flood of out-of-state garbage into Virginia. The transport of

57

interstate waste into Virginia is an issue that we must be able to control, and I urge

that the subcommittee address this issue very soon.

Mr. GILLMOR. Thank you very much. Are there any questions of

the panel? If there are no questions, I want to thank our——

Mr. GREENWOOD. Mr. Chairman——

Mr. GILLMOR. Yes.

Mr. GREENWOOD. [continuing] just a statement.

Mr. GILLMOR. Mr. Greenwood.

Mr. GREENWOOD. Thank you all for your really excellent statements. It occurred to me, listening to Mr. Moran’s testimony, that

some observers from a faraway star system could someday see

these great eight landfill pyramids in Virginia and conclude that

there is no intelligent life on Earth.

Mr. MORAN. And they might be right sometimes, but thank you

for that observation, Mr. Greenwood.

Mr. GILLMOR. Once again, I want to thank the panel, and we

hope to see some activity here in the future that would be to your

liking.

At this point, we will dismiss panel and call up panel two. Members of this panel are Chris Jones, director of the Ohio Environmental Protection Agency; Russell Harding, director of the Michigan Department of Environmental Quality; David Hess, secretary

of Pennsylvania’s Department of Environmental Protection; Lori

Kaplan, commissioner for the Indiana Department of Environmental Management, and Joseph Lhota, deputy mayor of New

York City.

And as the panel takes their places, I want to make special mention of Chris Jones, who back a long time ago, when I was president of the Ohio senate, was one of our crackerjack staffers, did a

great job there, and has now risen to the position of director of

EPA, and I want to welcome you particularly. And I want to call

on Mr. Greenwood.

Mr. GREENWOOD. Thank you, Mr. Chairman. An issue that I

have been working on almost as long as this one is juvenile justice

authorization, and it is being marked up in a few minutes in the

Education Committee, so I am going to have to, unfortunately,

leave for a bit. And I thank the chairman for indulging me by having me have the honor of introducing the Honorable David Hess,

who I referenced in my statement, and now heads the Pennsylvania Department of Environmental Protection. David and I are

old friends from way, way back when he was a staffer in the State

senate. I think Senator Santorum was a staffer in the State senate

at the same time. And so our staffers climb to great heights in

short periods of time.

But I welcome David, congratulate you on your appointment and

look forward to your testimony. And I apologize to the rest of the

panelists that after Mr. Hess’ testimony I am going to have to depart for a little bit. Thank you, Mr. Chairman.

Mr. GILLMOR. I want to thank all the panelists for being here.

We do have copies of your testimony, and each of you have 5 minutes to summarize your testimony before we begin with questions.

Mr. Hess.

58

STATEMENTS OF DAVID E. HESS, SECRETARY, DEPARTMENT

OF ENVIRONMENTAL PROTECTION, STATE OF PENNSYLVANIA; CHRISTOPHER JONES, DIRECTOR, ENVIRONMENTAL

PROTECTION AGENCY, STATE OF OHIO; RUSSELL J. HARDING, DIRECTOR, DEPARTMENT OF ENVIRONMENTAL QUALITY, STATE OF MICHIGAN; LORI KAPLAN, COMMISSIONER,

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, STATE

OF INDIANA; AND JOSEPH J. LHOTA, DEPUTY MAYOR, CITY

OF NEW YORK

Mr. HESS. Chairman Gillmor, thank you very much, members of

the committee. My name is David Hess. I am secretary of the Department of Environmental Protection. And courtesy of the great

introduction Congressman Greenwood gave me, I think I will ask

for a raise when I get back to Harrisburg.

It is a pleasure to be here on behalf of Governor Tom Ridge and

also members of our general assembly. We have a very simple message, and that is, ‘‘Don’t dump on Pennsylvania.’’ We need Federal

legislation now that gives the right to decide if they want to accept

garbage from other States for disposal. I think the issue is very

simple, and several members touched on it in their opening statements. The Supreme Court says communities don’t have the right

to decide whether they want out-of-State garbage or not. They said

Congress could give them that right, and that is why we are here.

We very much appreciate the efforts of Chairman Gillmor and

Ranking Member Pallone for scheduling this hearing and for the

work that Congressman Greenwood has done and Senator Specter

and Senator Santorum and our entire delegation on this issue. As

many of you know, Governor Tom Ridge has been very active in

lobbying Congress, including members of this committee on this

issue, as was the late Governor Robert P. Casey before him.

In each of the last three legislative sessions, our general assembly passed resolutions urging Congress to act on this issue, and I

am very pleased today to be able to introduce Pat Henderson, who

is from Senator Mary Jo White’s office, and also Richard Fox, who

is from Senator Musto’s office, both representing the Senate Environmental Resources Committee here today.

What we would like in Federal legislation, again, is I think very

simple. We would like the ability of communities, again, with all

due respect to the congressman from Fresh Kills, to decide their

own fate. We would like a freeze on waste imports and to ratchet

down the amount of waste that can be accepted by landfills. And

I think Congressman Greenwood’s bill, also a bill introduced by

Senator Specter, incorporates the provisions that Pennsylvania

supports.

These tools are needed because some States have found it easier

to dump on their neighbors than to develop their own disposal facilities. And as, again, other speakers have said, Pennsylvania included, is a really a victim of our success in the area of waste management and recycling. And I think, ironically, on one issue, a lack

of Federal legislation has also hampered the ability of some States

like New Jersey to keep waste in their own State, because they

have waste facilities they need to maintain.

The simple tools we are asking for will enable States and communities to act responsibly to manage their own waste. As was

59

mentioned before, Fresh Kills Landfill is closing. Eleven thousand

five hundred tons of trash is trying to find a home in the States

of Pennsylvania, New Jersey, and Virginia.

In May of this year, DEP, the Pennsylvania State Police, and

other agencies conducted an unprecedented operation to inspect

trash trucks in Pennsylvania, called Operation Clean Sweep. We

conducted over 40,000 inspections over an 8-day period in Pennsylvania at every single landfill. What we found, in a word, was

frightening. Eighty-six percent of those trucks had safety violations. The State police pulled 849 trucks off the highway as unsafe

or pulled the drivers out of their cabs because they had DUI violations or CDL licenses that were expired. These hazards are real to

our communities, and we are doing all we can to deal with them

in Pennsylvania, but, frankly, we need to get to the root of the

problem. And the root of the problem is adequate Federal legislation to deal with this issue.

Right now in Pennsylvania, we have 25 applications pending for

new or expanded landfills. That is 71 million tons of capacity. If

that was devoted only to waste from Pennsylvania, that would last

us more than 7 years on top of the already 12 years worth of capacity we have right now. We clearly have an overcapacity of waste

disposal facilities in Pennsylvania.

Our democracy is built on the foundation of empowering people

to make choices. It is also built on fairness. Our communities now

have no voice in deciding whether millions of tons of garbage come

to them for disposal from other States. It is unfair, again, for

States like Pennsylvania to shoulder this burden. We are not asking to build a fence around our borders. In fact, we did a survey

in 1999 that showed that 22 percent of the communities that have

landfills right now would accept out-of-State waste. That is not

what we are asking. We are not asking to turn back waste trucks.

All we are doing is asking for the freedom to make a choice, and

we are not even asking Congress for any money.

Again, we appreciate the opportunity, and, again, Mr. Chairman,

we appreciate the fact that you set up the hearing today. This is

a critical issue for us, and we hope that the committee acts shortly

on this issue. Thank you.

[The prepared statement of David E. Hess follows:]

PREPARED STATEMENT OF DAVID E. HESS, SECRETARY, PENNSYLVANIA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

Chairman Gillmor, members of the Committee, my name is David Hess and I am

the Secretary of Pennsylvania’s Department of Environmental Protection.

I am here today on behalf of Gov. Tom Ridge and members of the Pennsylvania

General Assembly to give you one simple message—Don’t dump on Pennsylvania.

We need federal legislation now giving communities the right to decide if they

want to accept garbage from other states for disposal.

The issue is simple—the U.S. Supreme Court says communities don’t have the

right to decide whether they want out-of-state garbage or not. They said only Congress can grant that right and that’s why we’re here.

We very much appreciate the efforts of Chairman Gillmor and Ranking Member

Mr. Pallone for scheduling this hearing and that of Congressman Greenwood and

Senators Specter and Santorum and our entire Congressional Delegation for their

continuing efforts to push for federal legislation in this area.

Over the last six years Gov. Ridge has personally visited many members of Congress, including members of this Committee, to urge passage of interstate waste legislation. And before him, the late Gov. Robert P. Casey carried the same message.

60

My predecessor James Seif appeared before this very committee two years ago

asking for your action and met with many members to educate them on this issue.

In each of the last three legislative sessions, members of our General Assembly

have overwhelmingly passed resolutions urging Congress to act on interstate waste

legislation.

Today I’d like to recognize the presence of Richard Fox representing Sen. Ray

Musto, Democratic Chairman of our Senate Environmental Resources and Energy

Committee and Patrick Henderson, representing Sen. Mary Jo White, the Majority

Chairman of the Committee.

We Pennsylvanians are nothing if not persistent, because we believe passing legislation giving states and communities a voice on waste imports is the right thing to

do.

Specifically, Pennsylvania is seeking federal legislation on interstate waste that

includes these basic provisions:

1. Giving communities the ability to allow the disposal of imported waste through

host community agreements, which would address concerns like operating

hours, truck traffic, noise, and litter before permits are issued;

2. Imposing a freeze on waste imports immediately with a predictable schedule for

reducing imports over time;

3. Allowing states to impose a percentage cap on the amount of imported waste that

a new facility could receive;

4. Allowing states to consider in-state capacity as part of the permitting process;

5. Allowing communities to adopt waste flow control ordinances to protect existing

bond debt.

Bills introduced by Congressman Greenwood—H.R.1213 and Senator Specter—S.

1194—incorporate provisions that Pennsylvania supports.

These tools are needed because some states have found it easier to dump on their

neighbors than to develop disposal facilities and recycling programs to handle the

waste they generate.

In many ways, Pennsylvania has been a victim of our own success.

Pennsylvania has required our counties to plan for how they will dispose of the

waste they generate over the next ten years, put in place the nation’s toughest environmental standards for landfills and built the largest curbside recycling program

in the country.

Because Pennsylvania has successfully built a waste disposal and recycling system, other states feel they can come in and take advantage of it, and there’s nothing

to stop them.

Ironically, the lack of federal legislation has also hampered other states, like New

Jersey, who do want to keep waste in their state, but can’t because they can’t control where their waste goes for disposal.

Reasonable restrictions on imported waste shipments like the ones we’re asking

for will not ban all imports as some have said. In fact, in 1999 Pennsylvania did

a survey of communities hosting landfills and found that 20% have, and would,

agree to accept waste imports for a variety of reasons.

The simple tools we are asking for will enable states and communities to act responsibly to manage their own waste and limit unwanted waste imports from other

states.

The need for federal legislation is now more urgent.

In March, Fresh Kills Landfill serving New York City closed—forcing the city to

find new disposal sites for an additional 4.7 million tons of garbage a year. They

are shipping 11,500 tons of trash a day outside the city to landfills and incinerators

in Pennsylvania, New Jersey, and Virginia.

Much of this garbage moves by truck along our Interstate highways causing serious safety and environmental problems for the states involved.

In May of this year, Pennsylvania conducted ‘‘Operation Clean Sweep,’’ an unprecedented effort to put State Police and environmental inspectors at each of the landfills and resource recovery facilities in the Commonwealth over an eight-day period.

The results we found were, in a word, frightening.

We inspected more than 40,000 trucks and cited waste haulers for over 11,000

safety and environmental violations.

The Pennsylvania State Police found 86 percent of the trucks they inspected had

one or more safety violations and they took 849 trucks or drivers out of service for

being unsafe.

One driver showed up at 6:00 a.m. on a Monday morning drunk.

We’ve also had citizens killed and seriously injured by trash trucks, most recently

in Northumberland County along I-78.

61

As the fines and penalties from ‘‘Operation Clean Sweep’’ continue to pile up, we

also continued our regular truck inspections. As recently as last week, six more inspection sites resulted in more violations.

The hazards of unsafe trash trucks are real for our communities and we’re doing

everything we can to enforce our safety and environmental laws, but frankly we

need to get to the root of the problem that only federal legislation can solve.

We are also doing all we can within the current law to improve our waste management programs.

Gov. Ridge issued an executive order that directs DEP to actively involve communities early in landfill permit decisions, and to take a detailed look at truck traffic

and other community impacts.

We also passed new regulations requiring applicants for new landfill capacity to

prove the potential benefits of those facilities out weigh harms to the environment

and to the community.

Landfill applicants are also prohibited from applying for new landfill capacity

until they have five years or fewer of capacity left.

Gov. Ridge is the first governor to propose legislation that includes a two-year

moratorium on issuing permits for new or expanded landfills, new tools to crack

down on unsafe trash trucks and giving communities more say in resolving local

issues with landfills through host community agreements.

But Pennsylvania cannot address the issue of waste imports without federal legislation.

In our offices, we have 25 applications for new or expanded landfills that will add

71.5 million more tons and years of new waste disposal capacity in Pennsylvania.

If the additional capacity were devoted only to the waste Pennsylvania generates,

it would last us 7.24 years. This is on top of the 12 years of capacity we have right

now.

Our democracy is built on the foundation of empowering people to make choices.

It is also built on fairness.

Our communities now have no voice in deciding whether millions of tons of garbage come to them for disposal from other states.

In it is unfair that states like Pennsylvania that have made the hard choices to

build waste facilities and recycling programs, have to make room for other states

that have not.

We are not asking to build a fence around our borders to turn back every waste

truck or to turn our backs on the legitimate needs of our neighbors.

We’re not asking for any money.

We are asking Congress to give states and communities a voice so we can limit

unwanted garbage imports into our state. With appropriate federal legislation,

states will be provided the tools needed to begin addressing the current inequities.

Again, thank you for an opportunity to address this critical issue.

We look forward to working with Congress to address this important issue and

to developing a consensus that will benefit all states and communities.

Mr. GILLMOR. Thank you, Mr. Hess. Because Mr. Greenwood has

to depart, we will divert from our normal order of procedure, and

permit Mr. Greenwood to question Mr. Hess.

Mr. GREENWOOD. I don’t know if you have had a chance, David,

to look at some of the issues that Virginia has asked us to take a

look at, but do you see any difficulty in making—if you have; if you

haven’t, that is fine; we can talk about it later—but if you have had

an opportunity to look at those issues, do you see any difficulty incorporating the concerns a State like Virginia has with my legislation that would pose additional problems for Pennsylvania?

Mr. HESS. I think in terms of having a little flexibility to choose

the date, I think that probably would be a good addition. Flexibility

is always important, so I think on that particular issue I think that

would probably strengthen the bill.

Mr. GREENWOOD. And I will be brief. Mr. Fossella is not with us

here, but one of the points that he made is that these municipalities in Pennsylvania have a choice. They can either accept this

waste from a State like his or not. Perhaps you could just describe

for the other members of the committee here what that really

62

means in a place like, for instance, where I come from, in a place

like little Tullytown Burrow can accept waste, but the trucks cross

many municipal boundaries and drive through many townships

and create dust and pollution and noise and all of the rest. And the

smell, the air quality issues certainly are not isolated. The water

quality issues are not isolated to a particular municipality. So I

think we need to debunk this notion that somehow no one is

harmed if the residents of one little tiny municipality want to receive trash from out of State.

Mr. HESS. I think there is two points I would make very quickly.

One point is the agreements they are talking about are not agreements between, say, a New York City and Old Forge Burrow in

northeast Pennsylvania. They are with a waste management company and a community. And in many cases, those kinds of agreements were made years and years and years ago, at least in Pennsylvania’s case, and they really have no opportunity to either update or change those agreements. So they have been effectively

locked in. And that is really one point.

I think the second point is, as you mentioned, there are impacts

that go beyond the host community itself, and Pennsylvania, again,

as Congressman Kanjorski said, we have 2,600 municipalities,

some of them very tiny, and it can be that certainly there are

agreements. And as I said before, 22 percent of those folks surveyed, those communities surveyed, would accept waste. But now

they are not given a choice, either because they have old agreements that they can’t now change or they weren’t party to some of

these agreements in the first place.

Mr. GREENWOOD. Thank you, Mr. Chairman. In the interest of

time, I will yield back.

Mr. GILLMOR. Thank you.

Director Jones from Ohio.

STATEMENT OF CHRISTOPHER JONES

Mr. JONES. Thank you, Mr. Chairman. And it was a lot easier,

I am sure David would agree, to be a staff person than to be the

head of the agency, but I, too, want to thank you for having these

hearings and to Congressman Greenwood for his efforts on behalf

of this legislation. And I will have a more detailed statement for

the record.

I want to talk about Ohio’s experience, because I watch Pennsylvania, and am reminded that statement earlier today, ‘‘No good

deed going unpunished.’’ As you know, we have some experience in

Ohio. Between 1986 and 1989, out-of-State waste disposed in Ohio

increased from about 33,000 tons a year, which was less than 1

percent of our total disposal, to 3.7 million tons, which was 20 percent of our total disposal. We have decreased significantly from the

1989 levels, but as you mentioned, Mr. Chairman, you were the

president of the senate at the time, we passed a very progressive

bill, house bill 592 in Ohio, and we took a proactive step. We set

up responsible management of waste disposal in Ohio. We assured

ourselves at the time we had less than 9 years of capacity. We now

have over 20 years of capacity. We haven’t sat still in the 13 years

since that bill passed. We have amended 18 times to take account

to the changing circumstances.

63

There are issues that cause us to need this legislation. The discussion earlier about the level playing ground, there isn’t one. We

have no ability, we have no authority to control the imports. We,

in Ohio, have done I think a very good job of regulating landfills,

of managing solid waste disposal, of establishing recycling goals,

aggressive recycling goals that are being met throughout the State.

We have a statewide management plan that people have to conform to. So we have taken those steps, the fundamental purpose of

which is to support our own solid waste management system in the

State of Ohio.

Part of that includes both exports and imports, and I would like

to echo what David said. This is not about putting up a fence, but

this is about giving the States the ability to responsibly manage

imports and exports of solid waste. We are having problems in

Ohio, because people perceive that these landfills are being built

for the sole purpose of servicing out-of-State waste. And that takes

the decisionmaking out of the thoughtful, engineered management

decisions and into the emotion, and it is very difficult to argue with

that emotion, because it is based on fundamental facts that those

people live with on a daily basis.

Why do we look to this legislation and the need for this legislation? As I said, we have been proactive, and we have managed

well. We think we have, actually, more than twice the permitted

landfill capacity that Pennsylvania and Virginia have, and we have

tried to compare—we have 1999 numbers for Ohio but 1997 for the

other States. But we have permitted 453 million tons of capacity

for municipal solid waste in Ohio compared to about 200 million

tons for Pennsylvania and Virginia. The possibly more significant

fact is that the two landfills in Ohio that take the most out-of-State

waste currently have enough remaining capacity between them for

around 65 million tons of waste. We have relatively low tipping

fees. According to the best data we have, and this is a spot fee so

there is probably contract prices lower, our tipping fee is at least

$9 lower than Virginia’s and $19 lower than Pennsylvania.

What we have to look at is the total cost to dispose of waste in

Ohio, which is a function of both our tipping fees and the transportation costs. And good for us but bad for us, Northeast Ohio is

served by a number of high quality east-west interstate highways.

They provide relatively direct access from the east coast, and we

have seen disposal from at least 11 different east coast States, so

it is clear to us that transportation costs are not going to prohibit—

are not going to be cost prohibitive for people to import waste.

Right now, the level of waste imports into Ohio are not a concern. Well, they are not an immediate concern. But because of our

capacity, which is currently, on the current levels, 21 years, and

the relatively low tipping fees, our proximity to the east coast, and

our experience, going from less than 1 percent of our total disposal

to over 20 percent of our disposal being imports in 2 years, we remain concerned that we are vulnerable to the good fortune that

Pennsylvania has enjoyed. There were proactive, they planned,

they are paying a price. We don’t want to pay that price, and we

are concerned that we don’t have the tools. This legislation gives

us those tools.

64

I want to thank the chairman for the hearing and Mr. Greenwood for his legislation.

[The prepared statement of Christopher Jones follows:]

PREPARED STATEMENT OF CHRISTOPHER JONES, DIRECTOR, OHIO EPA

Good morning, Mr. Chairman, and members of the committee. My name is Chris

Jones and I am Director of the Ohio Environmental Protection Agency (Ohio EPA).

I appreciate the opportunity to be with you this morning to provide you with an

overview and historical perspective of the interstate waste issue from Ohio’s vantage

point. I would also like to speak to several provisions of H.R. 1213 sponsored by

Congressman Greenwood and others, that would provide Ohio with many of the

tools we need to help us address the interstate waste issue in the future.

As we all know, the transportation and disposal of solid waste across state lines

has been a controversial issue for over a decade, and Ohio has not been spared the

controversy. The receipt of waste shipments from outside of Ohio first became a serious concern to the State during the late 1980’s, when over a short period of time

waste imports increased dramatically. From 1986 to 1989, out-of-state waste disposed in Ohio increased from approximately 33,000 tons, representing less than 1%

of total disposal, to 3,700,000 tons, representing 20% of the total disposal. Although

waste imports have decreased significantly from the 1989 levels, we have seen increases in the last four years and continue to be aware of the possibility of increased

waste receipts from other states at any time. We would note the following reasons

for our concern over out-of-state waste:

• With the passage of Ohio’s comprehensive solid waste law, H.B. 592, in 1988,

Ohio took a proactive step to responsibly manage Ohio’s waste by assuring instate disposal capacity, at state of the art facilities, for solid waste generated

in Ohio, and setting state recycling goals. It is only fair that other states take

the steps necessary to responsibly manage their own waste, instead of relying

on exporting their waste outside of their borders. • It is difficult or impossible for state and local inspectors to verify that hazardous

or untreated infectious waste has not been included in solid waste shipments

that are shredded or heavily compacted before being shipped long distances. • Citizen opposition to landfills that are perceived as servicing primarily out-ofstate waste hinders the siting of facilities needed to provide disposal capacity

for Ohio’s waste. • Citizens are reluctant to reduce or recycle waste when they believe their efforts

will only serve to make room for trash from other states.

RECENT OUT-OF-STATE WASTE RECEIPTS AND TRENDS

In 1999 (most recent complete data available), Ohio received 1.5 million tons of

out-of-state waste, representing about 7% of total waste disposed. This is a slight

increase from the previous three years, when imports have ranged from 1.2 to 1.5

million tons, representing 6 to 7% of total disposal. Although we don’t have Ohio’s

export data yet for 2000, we know that waste imports increased again last year, up

to approximately 1.8 million tons, making this the fourth year in a row that imports

have increased.

Ohio imported the largest amount of waste from New York in 1999, at 476,046

tons (31% of the total), while 380,785 tons were received from Pennsylvania (25%

of the total), and 149,810 tons were received from New Jersey (10% of the total).

Over the last five years, imports from these three states have accounted for 65%

to 74% of the total amount of out-of-state disposal in Ohio. New York and Pennsylvania have been the top two states exporting waste to Ohio over this period of time.

In 1997, Ohio EPA performed a detailed analysis of the origin of out-of-state

waste disposed in Ohio, yielding interesting results. For purposes of reporting, Ohio

EPA has generally considered waste originating from contiguous states and the

western two-thirds of Pennsylvania to be ‘‘short-haul’’, and waste originating from

the eastern one-third of Pennsylvania and non-contiguous states to be ‘‘long haul.’’

Using these definitions, 59% of out-of-state waste received in 1997 would be considered long-haul. And virtually all of Pennsylvania’s waste would be considered shorthaul.

A more detailed examination of out-of-state waste just from New York is also interesting. Out of the total of 469,869 tons of waste received from New York, fully

333,607 tons (71%) was received from the New York City area. The tonnage received

from New York City also accounted for 24% of all out-of-state waste disposed in

Ohio in 1997, the single largest source of out-of-state waste in Ohio. This total could

be even higher, since we don’t know the exact origin of a significant amount of

65

waste coming from New York. In other words, an additional 135,869 tons of waste

which we know came from ‘‘other New York sources’’ represents both waste from

identified places outside of New York City, and waste from New York for which the

county of origin was not specified.

LANDFILLS RECEIVING OUT-OF-STATE WASTE

Over the past several years, the vast majority of waste imports have been received by two landfills: BFI Carbon Limestone in Mahoning County, and AWS

American Landfill in Stark County. In 1999, Carbon Limestone received 49% of the

out-of-state waste disposed in Ohio. American Landfill received 16% of the out-ofstate waste disposed in Ohio. These two landfills also received the largest amount

of long-haul waste in the state. Based on previous years data, we would expect that

these two facilities received at least 90% of all long-haul waste.

OHIO WASTE EXPORTS

It should also be noted that Ohio has exported significant amounts of waste over

the last several years. In 1999, Ohio exported 1,039,876 tons of waste making Ohio

a net importer of 485,769 tons of waste. 1999 is the first year that Ohio has recorded waste exports of over one million tons. Ohio waste exports have actually been

on the rise over the last several years, increasing from an estimated 270,000 tons

in 1992.

However, I would note that these export increases should be viewed with some

caution. Until recently, it was difficult or impossible to get accurate data from adjacent states regarding receipt of waste from Ohio. Therefore, it is difficult to tell

whether the increases in Ohio exports is due to an actual increase in exports or simply better access to data. In general, the export numbers we have been able to obtain indicate that most of Ohio’s exports, approximately 65% or more, go to Michigan and Kentucky.

OHIO’S VULNERABILITY TO OUT-OF-STATE WASTE

Several factors contribute to Ohio’s vulnerability to out-of-state waste. The factor

that brought this issue once again to the forefront is the closure of New York City’s Fresh Kills Landfill which handled 3.5 million tons of garbage annually. Historic

waste flow patterns would indicate that Virginia, Pennsylvania, and Ohio would

eventually be the most likely recipients of this waste. Despite Virginia and Pennsylvania’s higher overall import levels than Ohio’s, and Pennsylvania’s closer proximity to New York, there are at least three reasons why Ohio appears to be vulnerable to increased receipts of waste from New York City waste as well.

First, we believe Ohio has more permitted landfill capacity than Pennsylvania or

Virginia at the present time. In 1999 Ohio had around 453 million tons of permitted

municipal waste landfill capacity, whereas Pennsylvania and Virginia both reported

around 200 million tons of capacity (based on the ‘‘Mid-Atlantic States Municipal

Waste Matrix’’ published in 1999). For Ohio, this equates to about 22 years of capacity at current disposal rates. If all pending landfill permit applications are ultimately approved, Ohio could have over 30 years of capacity.

More important than capacity, in our estimation, are Ohio’s relatively low tipping

fees. According to the best data available, Ohio’s average tipping fee appears to be

at least nine dollars per ton lower than Virginia, and nineteen dollars lower than

Pennsylvania (based on the ‘‘Mid-Atlantic States Municipal Waste Matrix’’ published in 1999).

New York Pennsylvania Virginia Ohio

Average Tipping Fee ....................................................... $60.00 $49.00 $39.00 $29.50

This information should be considered with several qualifications. First, although

New York, Pennsylvania and Virginia have reported this information, the source of

their information is unclear. We do not know whether this is a calculated average,

or an educated guess on their part. Second, although Ohio’s average is calculated

from information provided by landfills to Ohio EPA, the tipping fee reported to us

is the posted ‘‘spot rate,’’ which will be higher than what would be negotiated for

in a contract. Our estimation of the average ‘‘contract’’ tipping fee in Ohio would

be closer to $20.00 a ton.

Finally, Ohio’s vulnerability to out-of-state waste is dependant on the total cost

to dispose of waste in Ohio, which is a function of both Ohio’s tipping fees and the

cost to transport the waste into the State. Unfortunately, we have no specific data

to help us understand transportation costs at this time. However, we can make cerVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00069 Fmt 6633 Sfmt 6621 E:\HEARINGS\74852 pfrm09 PsN: 74852
66

tain observations. First, northeast Ohio is serviced by a number of high-quality,

east-west interstate highways, providing relatively direct routes from the east coast

into the State. Second, as we observe the receipt of waste from at least eleven different east coast states, it is clear that transportation of waste into Ohio from the

eastern U.S. is not cost prohibitive. The important point is that the flow of waste

is dependent on a combination of both tipping fees and transportation costs. Transportation costs are dependent, at least in part, on roads that are adequate to handle

waste-hauling truck traffic, as opposed to ‘‘as the crow flies’’ distances between the

origin of waste and the nearest available landfill.

OHIO EPA’S POSITION ON PROVISIONS OF H.B. 1213

Although current levels of waste imports into Ohio are not an immediate concern,

due to our permitted capacity which will currently last over 21 years, relatively low

tipping fees, and proximity to the east coast, Ohio remains vulnerable to increases

in the future. Accordingly, we strongly support mechanisms to protect the State

from unreasonable future increases in out-of-state waste. From our perspective, this

is the most important of all the out-of-state waste issues and one which we believe

is addressed through the provisions of H.R. 1213. I would like to briefly discuss our

thoughts on some of the concepts contained in H.R. 1213.

Presumptive Ban

We believe our goal of having the ability to control future increases in out-of-state

waste will be met in large part by the presumptive ban that prohibits the receipt

of out-of-state municipal solid waste at all existing facilities unless they meet one

of the a number of criteria, including ‘‘host community agreements,’’ new or existing.

We support the exceptions to the ban as outlined in the bill. We would note, however, that the term ‘‘host community agreement’’ is defined in such a way that in

Ohio, it will apply only to agreements between facilities and solid waste management districts. It will not apply to agreements between facilities and local municipal

or township governments, which is what we would commonly consider to be a ‘‘host

community agreement’’. The result, for Ohio, is that SWMDs will have clear and exclusive authority to allow receipt of out-of-state waste via host community agreements.

Freeze Authority

This provision allows a state to freeze the level of out-of-state waste received at

a solid waste landfill or incinerator at 1993 levels. Twenty landfills received out-ofstate waste in 1993, and fifteen of them are still open.

Permit Caps

This provision allows a state to pass a law setting a percentage limit on the

amount of out-of-state waste that new facilities or expanded facilities could receive.

Limitation would apply to all new or expanded facilities, and the limit could be no

lower than 20%. This is another option to the states which we believe could prove

to be helpful to Ohio in the future, though not to a great extent at this time.

Cost-Recovery Surcharge on Out-of-State Waste

HR 1213 allows states to impose a $2.00 per ton surcharge on out-of-state waste

to recover costs incurred associated with the processing or disposal of out-of-state

waste. While utilizing this provision seems appealing, I cannot tell you today that

Ohio will take advantage of this funding option. As Ohio currently assesses a state

fee of $1.75 per ton to all waste, not just out-of-state waste, I would not expect that

we would be able to justify an additional $2.00/ton for waste coming from other

states, especially our border states.

Annual Report

The legislation requires that the owner/operator of each landfill receiving out of

state waste shall submit a report to the appropriate Governor indicating the amount

of out of state waste that that facility received during that year. Ideally, Ohio would

like to see an additional requirement included in this bill for waste haulers to accurately report to receiving facilities the state and county of origin and the type of

waste (i.e. C&DD, MSW, industrial) being disposed. Such a requirement would then

extend to the facilities to accurately record the same information and include that

in the report to the Governor as well.

In closing, I would like to applaud the efforts of Congressman Greenwood for his

steadfast efforts to develop legislation to assist those states who are feeling the

threat of increased out-of-state waste shipments. Speaking only for Ohio, HR 1213

will provide our state with the tools we need to help protect us in the future against

what we perceive to be a strong potential for increased shipments of long-haul out

67

of state waste across our borders. I would also like to thank Congressman Gillmor,

hailing from Ohio, for holding hearings on this issue and for inviting me to participate today. Again, I appreciate the opportunity to testify on this issue and would

be happy to provide any additional information the committee may need as you continue to deliberate this important issue.

Mr. GILLMOR. Mr. Harding.

STATEMENT OF RUSSELL J. HARDING

Mr. HARDING. Well, thank you, Mr. Chairman. Indeed, it is a

pleasure to be here, and members of the committee, to talk about

an issue that is absolutely vital to Michigan: The importation and

export of solid waste.

As you know, in Michigan, we are a steward of a natural resource of nearly 20 percent of the world’s fresh water and the

Great Lakes that surround our State. Consequently, we have enacted very tough landfill standards in our State, some of the most

restrictive in the country. In terms of technology requirements, we

also have a very comprehensive planning statute that requires each

county to provide for 15 years of capacity. Those plans must be reviewed and approved by my agency according to State statute.

They are tough requirements. We have done that in our State to

ensure that we can manage this issue satisfactorily within the

State.

Our concern hasn’t been as much export and import from the

surrounding States. That is certainly, I think, as Chris just mentioned, a concern. We are very concerned, though, of what is happening versus Canada and our State in terms of this issue. This

really caught by great surprise. We visited extensively with Toronto and Canadian officials. They have admitted to us that it

would be cheaper to dispose of their solid waste in Canada, but

they have decided instead, for political expediency, to send it to

Michigan. And now the 19 million tons that we take care of in

Michigan annually, 1.5 of that is from Canada alone. The other

landfills will be closing in Canada. We expect that will increase

dramatically, as I think was mentioned by a member of the prior

panel. There certainly is no land shortage in Canada, but they do

not want to deal with this issue.

We have seen the increase is now about 20 percent of all the

solid waste we are dealing with, as I said, comes from other States

and Canada. We are diligent—a point I wanted to hit on a little

bit, I think it is been talked about, is we are very diligent on attempting to inspect those trucks as they come either through Detroit or Port Huron, across the bridges into our State. That is a

very, very logistically difficult task to undertake. And we have used

sophisticated means. The logistics of it are very difficult. We certainly can’t restrict traffic and cause backups at the border, the

international borders. We also inspect at landfills. But it is very,

very difficult to do that, and we find when we do the inspections

that we, indeed, have at times what we consider to be hazardous

materials, even radioactive materials mixed in. We have no ability

to do a whole lot about that except try to turn the truck back at

that point, and that becomes a problem in itself.

We also are experiencing about 65 trucks per day from Toronto

alone. It is estimated that we have about 130 a day from Canada.

As we struggle—and I know this committee has been concerned

68

and working on energy issues—as we struggle with clean air

issues, this has a big impact on our State. These things are important, and we try to deal with them regionally and across the country.

I have heard discussed a little bit individual community host

agreements with companies, and I agree with Mr. Hess. That I believe is a statewide issue. We certainly allow that. That is between

individual host communities and landfill—or excuse me, in waste

companies. We don’t think that should be prohibited, but we do

think it needs to be restricted to reflect statewide concerns. Trash

move between counties, it moves throughout the State. There are

a number of issues that have an impact that go way beyond local.

The Governor has been very concerned and working on this with

Congress since 1992. I know it has been covered adequately that

certainly the State has come to the conclusion that we do not have

the authority in our State to address this issue. It will take active

legislation to be passed by Congress to deal with it. In the Engler

administration, the State of Michigan, we support open markets. I

certainly agree with our colleagues from New York. I think open

markets work. They should be supported. We are only advocating

some compromise here.

We are not saying that we believe we ought to restrict and put

up barriers at the State lines. We don’t think that is appropriate.

Michigan exports waste; we export more hazardous waste than we

import. We think it is important that free flow of commerce continue, but I believe Mr. Greenwood has a very good start here on

a solution that indeed is a compromise. It allows these things to

occur, allows free commerce to occur. But it does set some standards that allow States to address some of the key components.

And I can tell you from a political standpoint in our State, our

citizens just cannot understand why Congress hasn’t resolved this

issue. They see Congress dealing with a whole array of issues

across a spectrum that affects citizens’ lives every day, but yet this

issue doesn’t seem to be able to be dealt with. It is causing increased consternation in our State. We continually see our State

legislature attempting to pass legislation that we know does not

pass legal muster. We have not supported that legislation. We have

done tough thing politically. Governor Engler hasn’t supported legislation he knows that is unconstitutional.

So I guess our plea, again, is we really need your help. We appreciate Representative Mike Rogers taking the leadership from our

State on this issue. We really need some help from Congress here.

We are just asking for some compromise legislation, and we stand

willing to work with our partners from the Northeast to secure

that. Thank you.

[The prepared statement of Russell J. Harding follows:]

PREPARED STATEMENT OF RUSSELL J. HARDING, MICHIGAN DEPARTMENT OF

ENVIRONMENTAL QUALITY

Good afternoon, I am Russell J. Harding, 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

69

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 the state.

Solid waste import data has been collected by the Department on a Fiscal Year

(FY) basis since FY 1996. Data from these reports indicate an increase in the level

of imports over the last five years. Based on data collected for the past five FYs,

there has been an overall increase of 18 percent in the amount of solid waste being

generated in Michigan. However, imports of waste from Canada and other states

rose by 41 percent during this same time period.

Out-of-state and Canadian waste being disposed of in Michigan is equivalent to

approximately 20 percent of the solid waste stream that is generated annually in

Michigan. As a result, for every five years of disposal of this volume of out-of-state

waste, Michigan is losing a full year of landfill capacity. Total out-of-state imports

of waste into Michigan landfills rose from 6,349,695 cubic yards during the 1999 reporting period to 9,373,115 cubic yards in FY 2000, an increase of 46.7 percent. The

largest individual source of waste imports continues to be from Canada, with total

reported imports to landfills of 4,216,814 cubic yards, up 1,874,023 cubic yards or

80 percent from the 1999 FY. This increased amount of waste imports also means

there is an increased amount of truck traffic on Michigan roads. Truck traffic continues to be a growing concern because there are currently an estimated 65 trucks

per day from Toronto alone and an estimated 110-130 trucks per day in total from

Canada. As the amount of truck traffic increases, the dangers associated with this

increased truck traffic also continues to rise. While wastes have been received from

a number of states, most of the out-of-state waste that is not imported from Canada,

comes from those states immediately adjacent to Michigan; Ohio, Wisconsin, Illinois,

and Indiana. Michigan does not collect data on waste exports; however, contacts

with neighboring states indicate that Michigan exports only very limited quantities

of solid waste.

A particular concern to Michigan is the fact that our Canadian neighbors are foregoing more cost-effective disposal options that are available to them within their

own country in favor of transporting their solid waste into Michigan. This was particularly noteworthy in Toronto’s decision to forego the proposal to utilize the

Adam’s Mine site in Kirkland Lake. This site presented several advantages including (1) providing for the long-term disposal needs of Canadian residents; (2) offering

economic benefits for Canada, including retention of jobs in Ontario; and (3) use of

railroad lines, which are a safer and more efficient means of waste transportation

compared to roads. In addition, higher costs for disposal in Michigan would intensify

the challenges that already exist for Toronto’s city budget.

Since the 1992 Fort Gratiot decision, Governor John Engler has worked on a cooperative basis with other states and with the Congress to seek a balanced and comprehensive legislative remedy to this issue. In addition, on May 28, 1999, Governor

Engler took action to further evaluate how Michigan can best address the issue of

regulating imports of solid waste from other states and countries by establishing the

Michigan Solid Waste Importation Task Force (Task Force). The Task Force was

created to examine trends, causes, and consequences of out-of-state waste imports

and to develop recommendations to address this issue. Outcomes identified in the

Task Force’s final report, which were based on data only through 1998, include:

• If imports were to remain at then current levels, which were increasing between

FYs 1997 and 1998 at a rate of .3 percent, their impact on available disposal

capacity would continue to be minimal. • Solid waste imports show a continuing trend to increase and recent figures show

the rate of increase is growing significantly, as shown in more recent data

which indicate between FYs 1999 and 2000, imports are now increasing at a

rate of 32 percent.

• Losing capacity at significantly increased rates undermines long-term comprehensive solid waste management planning conducted by Michigan communities.

• Continuing increases in imports will hinder growth of recycling in Michigan.

• State legislation that will actually limit waste imports will likely not withstand

constitutional challenge, and state legislative approaches that will withstand

constitutional challenge are not likely to be effective at limiting imports.

70

• All state level efforts attempted in other states to control waste imports have been

found unconstitutional because Congress has not enacted laws to grant states

the authority to regulate this area of commerce.

It is clear that the only sure remedy to withstand legal challenge is one based

on authority granted to states by Congress; and most court decisions have made

clear that Congress has this authority.

Since the 1992 Fort Gratiot decision, the Michigan Legislature has proposed several bills seeking to restrict imports of out-of-state solid waste. These bills have generally followed two approaches. One is to impose an outright ban. Similar laws enacted in other states have been uniformly struck down as unconstitutional. The

other is to prohibit imports from jurisdictions whose disposal bans are less stringent

than Michigan’s. Based on the Fort Gratiot decision and subsequent Supreme Court

decisions, it is clear that absent federal legislation authorizing states to restrict imports/exports of out-of-state waste, such state laws would not withstand legal scrutiny.

Michigan strongly supports HR 1213. We believe that this bill, if enacted, would

provide Michigan and other states the tools needed to restrict out-of-state waste imports in a manner that would be the most effective approach for managing environmental impacts from waste imports.

While Michigan’s preference remains HR 1213, we understand that HR 667 has

also been introduced to provide states with the ability to prohibit waste imports provided that their state plan has been approved. Prohibitions may not be the best approach to this issue.

Recently, Congressman Mike Rogers has introduced legislation, HR 1927, which

would give states the authority to prohibit or limit foreign municipal solid waste.

The Department is pleased Congressman Rogers has recognized this as a serious

issue and has joined our efforts to enact federal legislation to give states control

over municipal solid waste crossing their borders. Although HR 1927 differs somewhat from other bills that Governor Engler supports, such as HR 1213 introduced

by Congressman Jim Greenwood (R-PA), HR 1927 sends a strong message and

would give Michigan the authority and flexibility to address waste coming from

Canada. As a new member of Congress, Congressman Rogers’ active involvement in

getting the U.S. House of Representatives to move forward on solid waste legislation

is extremely welcome, and can only help ensure that we get the strongest possible

legislation out of the Congress and to the President’s desk.

We believe that the balanced regulation of interstate waste will prove to be an

effective means of maintaining disposal capacity created by Michigan’s communities

and intended for Michigan’s citizens, protecting Michigan’s natural resources, and

alleviating inadvertent disposal of wastes that are not permitted in Michigan landfills as a result of regulatory differences between United States and Canadian law.

As previously mentioned, we believe giving states reasonable authority to restrict

out-of-state waste imports is the most effective approach for managing environmental impacts from waste imports that will withstand legal challenge while minimizing disruptions to appropriate waste disposal markets.

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. At this time, I would be pleased to answer

any questions you may have.

Mr. GILLMOR. Commissioner Kaplan.

STATEMENT OF LORI F. KAPLAN

Ms. KAPLAN. Thank you very much, Mr. Chairman, members of

the subcommittee. I am Lori Kaplan. I am the commissioner of the

Indiana Department of Environmental Management, and I appreciate the invitation to appear before you this morning to speak on

the legislation that is under consideration.

I also would like to take the opportunity to thank the entire Indiana delegation who has stood united through the years to support

71

efforts to control out-of-State waste into the State of Indiana. And,

in particular, I would like to thank Congressman Buyer, new member to this subcommittee, who has helped lead the bipartisan effort

along with Congressman Pete Visclosky on this matter.

I would like to give you a little bit of history from Indiana to

paint the picture, if you will. We have been one of the leading

States as far as receipt of imports of out-of-State waste throughout

the past decade or more. In 1996, we did receive 1.8 million tons

of out-of-State waste. We were on an upward trend at that point.

It continued to go up until 1998 when we received 2.7 million tons

of out-of-State waste. I am happy to report that we are now on a

slight downward trend. This last year we received 1.6 million tons

of out-of-State waste. However, that still kept us ranked sixth of

all States in receipt of out-of-State waste, and it also comprised 20

percent of all waste disposed of at municipal solid waste facilities

at Indiana landfills.

During the last year, the bulk of the out-of-State waste was received by adjacent States—or from adjacent States. However, that

has not always been true. It is not that long ago that we were the

recipient of many tons of waste from east coast States. This last

year we did not receive any long-haul shipments of municipal solid

waste to our landfills from east coast States, but as we all know,

change can occur rapidly in the waste industry, and this also pertains to out-of-State waste. Governor Frank O’Bannon and myself

are primarily interested in obtaining the tools that the administration and local officials can use to have control of the volume of outof-State we receive, and our primary goal is to protect our State’s

disposal capacity and also protect and preserve our natural resources.

As you have heard from my colleagues, I would also stand in

agreement. We are not advocating a total prohibition on imports or

exports of out-of-State waste. There are times when it certainly is

the most logistical and economical way in which to deal with it.

However, there do need to be local controls for the sake of reliability so that we can predict what our capacities are and what our

needs are going to be.

Right now, in Indiana, we have 17 years of capacity in our current landfills. If we continue to receive wastes at the level we did

in the year 2000, we would reduce that capacity by 3 years. Should

we revert back to 1998 levels when we were receiving 2.7 million

tons of waste, we would lose 8 years off of our current capacity. If

we had some type of controls in place where we could predict what

the incoming waste would be from other States, we could plan better.

Like our other States, we have also had several attempts through

our State legislature, enacting laws to use reasonable, sensible

ways in which to have some control over the influx of out-of-State

waste. Of course, the Federal courts found those statutes to be unconstitutional and recognized the need for Federal legislation that

would assist at the local level.

We do stand, the State of Indiana, in support of 1213 filed by Mr.

Greenwood and find many provisions in that that would be very

beneficial to the State of Indiana as well as other States. Particularly, we do still have a law on the books in Indiana that requires

72

a needs assessment before a new landfill or an expansion can be

permitted, where we take into account regional and local need.

Twelve-thirteen would authorize that. It has not yet been challenged in our courts, and we are not sure it would withstand a constitutional challenge.

We also have had incidents in the past of receipt of waste from

Canada. In 1991, we received 15,000 tons of waste from Canada.

It is not currently an issue, but it certainly could arise again, especially as we hear Canada’s efforts to eliminate their own facilities.

In conclusion, I recognize that members of the committee do need

to take into consideration the needs and concerns of all 50 States,

as well as the private sector when contemplating something very

important that would impact the Commerce Clause, as this would.

However, I hope that you will agree that there are benefits to some

local authority, local controls so that we can all best manage our

waste and our resources that we have available.

So I would like to thank you for your time and for the invitation

to appear here today. And at the conclusion, I would be happy to

assist in any answering any questions. Thank you.

[The prepared statement of Lori F. Kaplan follows:]

PREPARED STATEMENT OF HON. LORI F. KAPLAN, COMMISSIONER, INDIANA

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

INTRODUCTORY REMARKS

Mr. Chairman and distinguished members of the subcommittee, I am pleased to

testify on pending legislation that would vest states and local governments with the

authority to control shipments of out-of-state municipal solid waste (MSW). As

members of the subcommittee 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 from other states. I therefore appreciate the opportunity

to offer comments on behalf of the State of Indiana on three bills, H.R.667,

H.R.1213, and H.R. 1927, which were recently introduced in the U.S. House of Representatives to address this issue.

There continues to be a necessity for legislation that would give the states some

ability to control the influx of out-of-state waste. Shipments of interstate municipal

solid waste continue to rise nationally, and so does public concern. A recent Congressional Research Service report on interstate waste shipments noted that imports

have more than doubled from 14.5 million tons in 1993 to 32 million tons in 2000,

a 120% increase over 7 years. In Indiana, 1998 was a peak year for disposal of outof-state waste. In that year, almost 2.2 million tons of out-of-state municipal solid

waste was disposed of at our MSW facilities, which are mostly landfills. Those 2.2

million tons of out-of-state waste represented 30% of the total amount of waste disposed of at our state’s MSW facilities. Adding construction and demolition (C&D)

debris and special waste, which are recorded separately, a total of 2.7 million tons

of out-of-state waste was disposed of at Indiana MSW disposal sites in 1998—

enough to cover two lanes of Interstate 95 from Washington, D.C. to Richmond, Virginia and back again with 10 feet of garbage. Since 1998 there has been a 40% drop

in the amount of out-of-state municipal solid waste disposed of in Indiana. While

this is certainly a good trend, waste imports remain very high and it is not a trend

that can be guaranteed. The sporadic nature of waste flows could just as easily result in a significant increase in out-of-state waste next year.

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

closure of several Indiana landfills receiving out-of-state waste, the flow was dramatically reduced. In fact, last year, no long-haul shipments of municipal solid

waste from the East Coast were sent to any Indiana landfills.

73

While this situation could change, especially with the closure of the Fresh Kills

landfill on Staten Island in 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-ofstate shipments is not important.

At the present time, Indiana has approximately 17 years of in-state capacity

based on current disposal rates, and the state’s 61 solid waste management districts

are working hard to reduce waste disposal. Indiana’s efforts to manage in-state disposal capacity needs could easily be frustrated by an influx of out-of-state waste

which could readily exhaust landfill capacity that has been saved through local recycling and waste reduction efforts. At the current rate of out-of-state waste shipments into Indiana, the capacity of our landfills could be reduced by three years.

If Indiana was receiving out-of-state waste today at the 1998 rate, capacity would

be reduced by eight years—almost one half of current projected capacity. 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 laws to protect our citizens against the unregulated importation of trash. These laws 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 ruled that these laws violated the

Commerce Clause of the United States Constitution and 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 also used to 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 great concern that this law too will not 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 when 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 has demonstrated a united support for enacting a federal interstate waste law. In the House, Congressman Steve Buyer, a new member

of this subcommittee, and Congressman Pete Visclosky, have helped to lead this bipartisan effort the last several years.

H.R. 1213, THE ‘‘SOLID WASTE INTERSTATE TRANSPORTATION ACT OF 2001’’

I believe that H.R. 1213, introduced by Congressman Jim Greenwood, represents

a measured approach to providing states and localities with tools to limit but not

eliminate out-of-state waste shipments.

There are five separate provisions within H.R. 1213 that Indiana could utilize

today. The first is the presumptive ban that does not allow landfills to accept outof-state waste unless authorized through a local host agreement, state permit, or an

existing contract. The second is the authorization of a state to limit out-of-state

waste amounts based on receipts in 1993. The third and most important of the provisions for Indiana is the recognition of the ‘‘Needs Law’’ that Indiana has used with

some limited success but which is subject to challenge. The fourth provision provides

that out-of-state waste can comprise, at a minimum, 20% of a state’s total MSW.

And the last provision is the ability for state’s to impose a cost recovery surcharge

on out-of-state waste to recoup the expenditure of tax dollars incurred as a result

of the receipt of out-of-state waste.

Taken together, the provisions of H.R. 1213 do not eliminate altogether out-ofstate waste shipments, which would be neither prudent nor necessary. They do,

however, provide a mix of public notice requirements that will ensure public input

in states’ waste management programs and controls which can prevent unwanted

floods of out-of-state trash.

74

H.R. 1927, THE ‘‘SOLID WASTE INTERNATIONAL TRANSPORTATION ACT OF 2001’’

This legislation, introduced by Congressman Mike Rogers, is limited to dealing

with solid waste originating from outside the United States. While such waste is not

currently being disposed of in Indiana there have been periods of time in the past

when Indiana received a significant number of shipments of solid waste from Canada. Specifically in 1991 Indiana received nearly 15,000 tons of solid waste from

Canada. Due to the potential for importation of waste from Canada in the future

and the impact such importation would have on landfill capacity, the State of Indiana supports the general concept of H.R. 1927. However, it is expected that H.R.

1213 would achieve the same goals without leading to a challenge under an international trade agreement as solid waste from both inside and outside the country

would be subject to the same requirements.

H.R. 667, THE ‘‘SOLID WASTE COMPACT ACT’’

This legislation, introduced by Congressman Paul Kanjorski, provides states the

broad discretion to prohibit disposal of out-of-state waste provided the state has an

approved State Plan under the federal regulations. While this legislation certainly

provides states with the greatest flexibility in preventing out-of-state waste disposal

it also provides the greatest potential for abuse of such authority. The legislation

would allow a state to apply the prohibition statewide or to a specific landfill or incinerator. Such an approach does not recognize regional flows of solid waste, and

while the greatest concern has been expressed relative to the import of waste into

a state, every state also has communities near its borders which ship waste to a

nearby landfill or incinerator in an adjoining state. For example, last year Indiana

generated and disposed of over 6.2 million tons of solid waste within its borders.

Indiana shipped less than 5% of that amount to surrounding states. It is expected

that if H.R. 667 were enacted, a significant amount of negotiation between states

would likely occur to develop interstate compacts relative to solid waste imports and

exports. For Indiana significant staff resources would be required to negotiate with

our four contiguous sister states. By comparison H.R. 1213 provides adequate guidance in the controls and limitations that may be used to restrict out-of-state waste

so that interstate compacts would not be necessary.

CONCLUSION

I appreciate the interest of Chairman Gillmor and other subcommittee members

in convening today’s hearing and hope this is only a first step leading to enactment

of legislation. Repeated and strenuous efforts to negotiate a settlement between

major importing and exporting states—most recently involving Indiana, Michigan,

New Jersey, New York, Ohio, Pennsylvania, and Virginia two years ago—have

failed to produce any meaningful solution.

I recognize that this subcommittee 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. 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.

Mr. GILLMOR. Thank you.

Mr. Lhota.

STATEMENT OF JOSEPH J. LHOTA

Mr. LHOTA. Thank you, Mr. Chairman, members of the subcommittee. My name is Joseph Lhota, and I am deputy mayor for

Operations for the city of New York. Among my responsibilities is

ensuring the environmentally safe and economically sound management of the city’s municipal solid waste. I implemented Mayor

Guliani’s plan to close the city’s municipal landfill at Fresh Kills

on Staten Island, and we closed it earlier this year. On behalf of

the mayor, I appreciate the opportunity to testify today on the

75

pending interstate waste measures—bills that would have profoundly adverse effect on the city’s day-to-day operations.

Mayor Guliani, Governor Pataki, and New York legislature

agreed in 1996 to close Fresh Kills by December 31, 2001. I might

add—and it is not in my prepared remarks—that this was done

due to a lawsuit brought by then city councilman, Veto Fossella, to

which the elected officials in New York State all responded. It is

important that the subcommittee recognize from the outset that

the Giuliani administration has shut down this facility responsibly

and appropriately, with due consideration, we believe, for the

States and their communities that have chosen to accept the city’s

municipal solid waste.

As I said, we closed the facility on March 22 of this year. And

we require that all the municipal solid waste be disposed of in communities that expressly choose to accept our trash through valid

and legally binding host community agreements. Since our plan

mandates that the city can only export to willing, local jurisdictions, the Giuliani administration does not see the need for this

legislation to require New York City to do what it already requires

of itself.

In exporting its residential waste, the city is exercising nothing

more than the right in the U.S. Constitution that is extended to cities and States nationwide: Responsible, efficient, and environmentally sound solid waste management through the heavily regulated and highly competitive private sector. Municipal solid waste

shipments have long been upheld by the courts as a commodity in

interstate commerce, and over the years communities have relied

on the certainty that these decisions provide in protecting the longterm, free market plans to manage municipal solid waste. This is

especially important in a landscape where the more rigorous environmental protections required under subtitle D of the Resource

Conservation and Recovery Act.

Although the closure of Fresh Kills affects only the city’s residential waste, the private market has been, and continues to be, essential to the management of that waste as it is has been to the disposal of the city’s commercial waste. For years, almost 40 years,

the city’s commercial businesses have relied on private haulers to

export waste from New York. For many communities and States,

municipal solid waste disposal fees are an important revenue

stream. I believe that each locality has a 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 States and exporters alike. As

the Nation’s largest and most densely populated city of 8 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 is imperative.

For those localities that have opted to import our waste, the revenue generated through host community fees, licensing fees, and

taxes has substantially enhanced their local economy, improved

area infrastructure, paid for school construction, paved roads, and

assisted host communities in meeting there own waste manageVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00079 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
76

ment needs. Clearly, there are many other jurisdictions nationwide

that share New York’s approach, since 42 States import and 46

States, as well as the District of Columbia, export municipal solid

waste.

For New York City and its businesses, it selects to handle municipal solid waste disposal. Certainty and the long-term security of

waste management arrangements are fundamental to making the

city a viable place to live and work. Once negotiated, any disruption to the contracts and agreements providing the city’s waste disposal framework could interfere in its day-to-day operations.

This is why the city enthusiastically supports in 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 prices 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.

The city, the largest consumer market in the Nation, is not solely

dependent on exporting municipal solid waste through private disposal markets. It currently runs one of the most ambitious recycling programs in the Nation. It is the only large city in America

that requires 100 percent of its households to recycle, including

multi-family dwellings. And recovers a higher percentage of household waste than any other large city in this country. The city currently maintains a combined residential and residential recycling

rate of 58.9 percent.

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 of 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, Fresh Kills was closed by relying on free market, private

sector solutions predicated on the contractual strength of host community agreements.

On behalf of mayor and the city council, I thank the subcommittee and underscore the city’s in addressing Congress’ concerns regarding the transport of interstate waste. Thank you, Mr.

Chairman.

[The prepared statement of Joseph J. Lhota follows:]

PREPARED STATEMENT OF JOSEPH J. LHOTA, DEPUTY MAYOR FOR OPERATIONS FOR

THE CITY OF NEW YORK

Mr. Chairman and members of the Subcommittee, my name is Joseph Lhota, and

I am New York City’s Deputy Mayor for Operations. Among my responsibilities is

ensuring the environmentally safe and economically sound management of the

City’s municipal solid waste (MSW). I implemented Mayor Giuliani’s plan to close

the City’s last remaining municipal landfill at Fresh Kills. On behalf of the Mayor,

I appreciate the opportunity to testify today on pending interstate waste measures—

bills that could have a profoundly adverse effect on the City’s day-to-day operations.

Mayor Giuliani and Governor Pataki agreed in 1996 to close Fresh Kills landfill

by December 31, 2001, and this 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 that the Subcommittee recognize from the outset that the Giuliani Administration has shut down this facility responsibly and appropriately, with due

consideration for the states and their communities that have chosen to accept the

77

City’s MSW. On March 22nd the City sent its last shipment of garbage to Fresh

Kills, completing a five-phase program, initiated in July of 1997, requiring that all

its MSW 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 Giuliani administration 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. MSW shipments have long been upheld

by the courts 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 Conservation and Recovery Act (RCRA) have compelled communities to

close smaller landfills for the alternative of 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. As 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 those 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 there 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 the 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. Once negotiated, any disruption

to the contracts and agreements providing the City’s waste disposal framework

could interfere with its 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 with 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 New Jersey and Connecticut officials were ready to

78

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, ‘‘In New Jersey, where counties have spent

millions of dollars to build incinerators, local officials generally are eager for any

guaranteed flow of trash. If anything, imported garbage at a plant like the Newark

incinerator is more desirable than the local trash because the city gets a 10 percent

share of the fee charged.’’

The City, the largest consumer market in the nation, is not solely dependent on

exporting MSW through private disposal markets to close Fresh Kills. It currently

runs one of the most ambitious recycling programs in the nation, and is the only

large city in America that requires 100 percent of its households to recycle—including multi-family dwelling residents—and recovers a higher percentage of household

waste than any other large city in the country. The Giuliani Administration plans

to do even more. In the recently adopted City budget, the Mayor has included over

$12 million additional dollars for the ongoing expansion of the City’s recycling programs, including new materials, increased education and outreach, furthering compliance, new equipment for improving efficiency, increased enforcement, and residential backyard composting. The City currently maintains a combined residential

and community recycling rate of 58.9 percent. Moreover, the Mayor’s long-standing

directive to all City agencies to reduce workplace waste and establish accountability

measures for waste reduction have further reduced daily tonnage.

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 a 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, the Giuliani administration has successfully closed Fresh Kills by relying on free market, private sector solutions predicated

on the strength of Host Community Agreements.

On behalf of Mayor Giuliani, I thank the Subcommittee, and underscore the City’s

interest in addressing Congress’ concerns regarding the interstate transport of municipal solid waste.

Mr. GILLMOR. Thank you, Mayor, and we will now proceed to

questions of the panel. Let me start with a question for Director

Jones. You mentioned in your testimony that Ohio has taken steps

to ensure that it has the landfill capacity it needs. Could you elaborate on how that relates to the need for this legislation?

Mr. JONES. Mr. Chairman, it really is a question of fairness. I

think, as has been mentioned before, and why we have watched

Pennsylvania very closely, we have taken the steps to address a capacity need. We had limited capacity in the late eighties. We got

comprehensive legislation in place to address that. We have put a

tremendous amount of time, energy, effort, and cost into planning,

into management. We now have the third revision to our statewide

management plan out for public comment. And at least as a result—part as a result of all that effort, we have got our capacity

established for the next 20 years, and we all know how difficult it

is to site a landfill. And the fairness comes into it to the extent that

we should not have to try to anticipate some unreasonably high

level of imports that we can’t plan for nor can we control.

And we are—I think it has been emphasized several times, we

are not saying we don’t want any. We actually export a million tons

and import more than that. So we are not saying don’t do it, but

we are saying give us the ability to control it as a matter of fairness and encourage other States to take the same steps. When you

79

close Fresh Kills, obviously you are going to have to replace that

capacity. We are suggesting maybe replace it in New York as opposed to Ohio. And I think that that is what we are talking about.

It is the unfairness of trying to anticipate an unreasonable amount

of out-of-State waste imported to the State of Ohio.

Mr. GILLMOR. Director, what would be the effect, in your opinion,

if Federal out-of-State—or Federal legislation on out-of-State waste

is not enacted?

Mr. JONES. Well, we have started to see some of the impacts, because, again, our landfills in Northeast Ohio are right now applying for increased capacity. And as I mentioned in my testimony, we

have the benefit of very good interstates—east-west interstates

that meet in Northeast Ohio. And with the trend over the last 4

years being increased imports, we expect that is going to continue.

And because of that, the opposition to siting landfills, other landfills in the State of Ohio will increase. We have had a number of

bills introduced in the general assembly to put a flat moratorium

on any new landfills in the State, and we have to be able to plan

for the future, to site landfills.

We take the position that because—I was told when I was appointed, ‘‘The natural resources guy, that is the good guy. They do

lakes and parks and fish. You are the bad guy; you site landfills.’’

And that is—I think we all have that experience. Putting a landfill

in is a difficult thing to do. When the percentage is you are putting

a landfill near me to handle waste from 500 miles away? It becomes next to impossible to do that in a thoughtful manner. And

so my concern is we are going to have 12 years of effort putting

in place a very strong management go down the drain because of

something we have no control over. The ability that this legislation

gives us to control some of that out-of-State waste, I think, will

allow us to argue back, ‘‘No, our siting criteria and good and positive, and they will allow us to address these issues.’’

Mr. GILLMOR. Thank you. Just a quick question, Mayor Lhota.

You talked about the closing of Fresh Kills and the requirement

that the waste be disposed of in communities with a host community agreement. Of the host community agreements you have, how

many of them are proportionally in communities in New York

State?

Mr. LHOTA. Mr. Chairman, to my knowledge, of the 25 hose community agreements we have, none of them are in New York State.

They were competitively—the city of New York competitively bid

out, under our procurements requirements. As we phased in the

closure of Fresh Kills, we advertised nationally, working with the

private sector, and received bids back. And we, obviously, under

our requirements, also went for the least costly bids. I don’t know

the answer to the question how many we received from New York

State, but I do know that none of the ones that we have entered

into—we have entered into 19. Six are currently under what we

call vendex review, what is called our procurement process. All of

them, all 25 are outside the State of New York.

Mr. GILLMOR. Thank you. The gentleman from New Jersey, Mr.

Pallone.

80

Mr. PALLONE. Just following up on that, has the State of New

York or New York City undertaken any actions to provide disposal

capacity for New York City trash within the State of New York?

Mr. LHOTA. Mr. Pallone, I can only speak for the city of New

York. I have had numerous meetings with the commissioner of Environmental Conservation in New York State discussing this issue,

but I don’t know specifically what they have done. And I apologize

that I don’t have an answer for you.

Mr. PALLONE. Is there—I will ask some of the other State witnesses, have you engaged in good faith negotiations with New York

to come up with a compromise? And if so, what was the outcome

of those negotiations, if anybody else wants to respond, for those

who are taking trash from New York?

Mr. HESS. Mr. Pallone, I believe it was about 2 years ago there

were some serious efforts underway to negotiate with New York

City, but unfortunately that ultimately fell apart.

Mr. PALLONE. You wanted to say something? Go ahead. Okay. I

guess then it is your position—I guess you have already stated it,

but it is obvious after these few questions here—that unless this

committee or the Congress acts, there is no real prospect for relief

from unwanted out-of-State trash?

Mr. JONES. Mr. Pallone, I came from the attorney general’s office.

I was in environmental enforcement, so I think my background

tells me there have been enough lawsuits, there have been enough

attempts at the State level to impose restrictions that have been

stricken down by the courts that I think we know, as Russ says,

the legislation won’t go anywhere. The courts have been clear that

the Congress has to act to give us these tools for us to manage

waste in our States.

Mr. PALLONE. And because of those rulings, any effort to compromise and negotiate anything basically has no teeth, and you

can’t get anybody to agree on anything.

Mr. JONES. It becomes very difficult.

Mr. PALLONE. Okay. Go ahead, Mr. Harding.

Mr. HARDING. Yes. In our State, the Governor—actually, some of

the folks in the legislature that proposed these laws, he put them

on a task force, and they came back after studying it, and said,

‘‘Congress has to solve it.’’ Mr. PALLONE. Okay. I wanted to ask—I have a concern over the

fact that recycling and waste reduction efforts are not working as

well as I would like them to. And I just wondered if there is any

effect from out-of-State imports on the willingness of your States’ citizens’ participation, for example, in waste reduction or recycling

programs? Does that impact or in any way related to the fact that

it is becoming more difficult to do waste reduction or get citizens

involved in recycling? Anybody who would like to answer that.

Ms. KAPLAN. Thank you. Obviously—and I was remiss in not

stating in my testimony—that we do have solid waste districts that

cover just about our entire State. And the main goal of those solid

waste districts is to divert waste from our landfills through reuse,

recycling, and reduction. And, obviously, all capacity gained as a

result of that, if it is lost to out-of-State waste, becomes self-defeating, and it is hard to continue to motivate the population to do

that. We have opted to do it, at this point in time, in Indiana on

81

a voluntary basis. But what is the incentive if it does not gain anything for them?

Mr. PALLONE. So you think it has an impact, and it may contribute to less citizen involvement.

Ms. KAPLAN. I think that that is a real concern.

Mr. PALLONE. Anyone else want to comment on that? Mr. Harding?

Mr. HARDING. Well, I would say I would agree. I think that largely we have some market problems of recycling, and that is a heavy

part of it, but I think a proposed solution here could provide an incentive for the State to get into more mandated recycling, even

with some of the market problems, to participate in having more

control over the destiny of our waste. Without that, there is not a

lot of political will.

Mr. PALLONE. Go ahead, Mr. Jones.

Mr. JONES. One of the things that we have done as a part of our

statewide management plan, we set recycling goals, and for approval, each of the solid waste management districts has to have

a plan in place that meets that goal for their district before they

can get their plan approved. So we have taken the steps that we

can, but as has been mentioned, it is almost a self-defeating proposition. And given the effort that it takes, really, to get recycling

done, it is hard to convince management districts you need to make

this huge effort if all you are going to do is create space for outof-State waste.

Mr. PALLONE. Thank you. Thank you, Mr. Chairman.

Mr. GILLMOR. Thank you very much. Let me say, the bells indicate we have three votes in the House. We have got about maybe

10 minutes more of questioning. We are trying to wrap up questions of this panel, and if we are able to, then we can recess and

do the next panel at 1 o’clock. The gentleman, Mr. Buyer.

Mr. BUYER. Thank you. I have just a series of questions. To the

gentleman from New York, are there environmental laws or regulations in the State of New York that restrict your ability to enter

into these agreements with anyone from your State? I mean I don’t

understand why you have got to have these agreements with other

people and not your State. So hold that thought.

To Ms. Kaplan, my question to you is that in your testimony you

indicate that the volume of out-of-State has decreased somewhat in

the last 2 years. While I am pleased to see that, I would like to

know what you attribute to this reduction.

Also, Ms. Kaplan, it appears clear that legislation, such as H.R.

1927, providing authority for States to prohibit incoming shipments

of foreign solid waste would run afoul with existing international

agreements, such as the provisions under NAFTA and the principal

bilateral agreement negotiated between the United States and

Canada covering such waste shipments. The Governor of Indiana,

Governor Frank O’Bannon, and lieutenant Governor are also, like

myself, supporters of NAFTA. In your testimony, you allude to

these concerns with Mr. Rogers’ legislation. I would like for you to

elaborate.

Also in your testimony, you note that H.R. 1213 might be a more

effective way to achieve the same goals. Because H.R. 1213 provides similar authorities to restrict, via cap or freeze, et cetera, inVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00085 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
82

coming out-of-State municipal solid waste, whether foreign or domestic. Would those provisions also likely run afoul with existing

international trade agreements?

Ms. KAPLAN. Would you like me to go first? First of all, as far

as the decrease of out-of-State waste in Indiana, in reviewing that

and trying to determine what the reason for that would be, one is

that we had been receiving a larger amount of waste from the Chicago area, and there have been additional facilities opened up or

expanded in that area, so less has been exported from Chicago to

Indiana.

Also, in prior years, as I had indicated, we did receive a great

deal of waste from east coast States. There has been a lot of work

between representatives of those States and negotiations. And I believe through those efforts the east coast waste is not currently

coming to Indiana. So I think those are two of the main reasons.

One of the things that we have talked about today is the unpredictability of the travels of out-of-State waste and where it ends up.

So while we are seeing a downward, it could turn around again.

In my written testimony, we did state a preference by the State

of Indiana for H.R. 1213. Many provisions in that that would benefit the State. There was some concern, although I will say that

there was not extensive analysis, on the impact on international

trade agreements. However, it appears that 1213 would cover the

international waste concerns that we had, and we, therefore, endorse that piece of legislation.

Mr. LHOTA. In response to your question, there are, to my knowledge, no statute, rules, regulations pertaining toward waste going

from New York City to somewhere else in New York State. The

reason why none of it has gone to New York State is purely economic. The city of New York puts out bids, and has over the last

41⁄2 years nationwide, and advertises. We then look at what is the

least expensive route to disposal of a city’s trash. And in that process, jurisdictions outside the State of New York have been less expensive.

Mr. PALLONE. Let me ask this: Would the State of New York permit a landfill within 3 miles of the Hudson River, Upstate New

York?

Mr. LHOTA. I can’t—I do not know.

Mr. PALLONE. Because that is where it happens in Indiana. It is

within a few miles of the Tippecanoe River where I grew up, and

the Chicago trash gets dumped right in there. So if you have got

a State like New York who says, ‘‘No, you can’t put it within so

many miles of a particular river or stream,’’ that is fine, that is

your business. But then you don’t care if you want to send that

trash to somebody else. That is what makes it pretty insensitive

from the views of the importing States. That is why I am just curious whether you have particular regulations, environmental compliance that forces you to put it out onto other States?

Mr. LHOTA. I don’t know the specifics of to be able to answer

your question, sir, I am sorry.

Mr. PALLONE. Thank you.

Mr. GILLMOR. We have about 5 minutes before the vote. We will

go to Mr. Towns for questions. Then we will break, and we will reVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00086 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
83

convene at 1 and finish this panel and do the next panel. Mr.

Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman. Let me just

sort of make certain that something is clear here. That there is an

RFP that goes out and people bid, and then based on the lowest

bidder in all of that, that is what really happens to the—where it

ends up. And these contracts are monitored, as I understand it. Is

that correct?

Mr. LHOTA. That is correct.

Mr. TOWNS. So if there was a lowest bidder in New York and it

was the best deal, you would have to contract with that person in

New York.

Mr. LHOTA. We would.

Mr. TOWNS. So I want to make that very clear. How does the

mayor’s long-term plan for waste disposal place a greater emphasis

on barge and rail shipment of export rather than trucking?

Mr. LHOTA. The long-term export plan relies exclusively on barge

and rail to mitigate the negative impact of the amount of trucks

that are put onto the roads, both as various different State commissioners have testified prior to my testimony of the negative impact

of the number of trucks on the roads. I tend to agree and have met

with the private sector, those people that we have contracted with,

and said it is very important that their trucks be up—there be no

violations.

As the secretary from—or the commissioner from the Pennsylvania and the Commonwealth of Pennsylvania, immediately after

he began his program met with the private sector to say, ‘‘Look, it

is very important, just as the city of New York gives violations to

truckers whose trucks are not up to snuff.’’ We give them violations. That is the right of the Commonwealth of Pennsylvania. It

is very important that we respect the rights of these other States

when it comes to trucking. The long-term plan, however, involves

no trucking. It will be almost 90 percent by rail—basically 100 percent by rail; the rest by barge.

Mr. TOWNS. Mr. Chairman, I know we have a vote on, so let me,

first of all, thank you very much for allowing me to ask some questions. Also to say to you, Deputy Mayor, that really I appreciate the

effort that you have done in terms of dealing with these contracts

in local jurisdictions. These are people that have agreed to accept.

It is not something that anyone is forcing them to do, and I think

that that needs to be made clear. This is an agreement, and that

based on the agreement this is the way it ends up there. It is not

that New York is riding around in a helicopter dropping the garbage out in different locations, and I think that needs to be made

clear.

I mean the way—so you are talking about legislation, but I think

we need to look at what we are dealing with here. If there is an

area that is saying that ‘‘We would like to bid for this,’’ and you

pay me a fee for it, I think we have to be careful how we move

here, Mr. Chairman. I know some folks are anxious and eager to

dump on New York, but I think maybe we need to find another

way to do it. Thank you.

Mr. GILLMOR. That would make the New York the dumpee instead of the dumper, right?

84

The committee stands in recess until 1 o’clock.

[Whereupon, at 12:07 p.m., the subcommittee recessed, to reconvene at 1 p.m., the same day.]

Mr. GILLMOR. The subcommittee will come to order, and we will

resume panel two and complete our round of questioning.

The gentleman from New York, Mr. Fossella.

Mr. FOSSELLA. Thank you, Mr. Chairman, again. Just, again, to

put some perspective back into this, I know some of the panelists

were concerned, and it seemed as if New York was the only issue.

However, according to Congressional Research Service, Pennsylvania exports more than 553,000 tons of garbage. The folks from

Ohio might be upset, because 77 percent of that goes to Ohio. Virginia exports about 150,000 tons. Ohio exports over a million tons,

primarily to Michigan.

And I guess what I am just aiming at—adding that as a purpose

to demonstrate that this happens all the time—Michigan to Ohio,

Pennsylvania to Ohio, Ohio to Michigan. So I just don’t want to

make it seem like New York or people in New York are the only

ones that generate garbage and need to do something about it. Not

to suggest that what you have been trying to do is unreasonable

or in your State’s best interest, but I think it is a level of perspective that is warranted in this debate.

I have got a question here. Accordingly, Mr. Jones, you mention

in your testimony that Ohio receives 380,000 tons of waste from

Pennsylvania and that Pennsylvania has been one of the top exporting States to Ohio over the past 5 years. And Mr. Hess, in his

testimony, says, ‘‘Some States have found it easier to dump on

their neighbors than to develop disposal facilities and recycling programs to handle the waste they generate.’’ Do you believe this is

the case with Pennsylvania or does it only underscore that waste

is shipped interstate for economic and geographic reasons, not because some States are irresponsible?

And last, I think it was a reasonable and legitimate concern, and

I ask this of all of you—in particular let me, one, commend Mr.

Lhota, because closing the Fresh Kills Landfill was a monumental

task, and he really needs to be credited a great deal for doing that,

because he has worked hard, and the people of New York, in particular Staten Island, should be grateful.

But Mr. Lhota, I know we have concerns about the haulers and

truckers, which is a reasonable safety concern. So I am curious to

hear not only from you but from others of what steps and measures

are being taken to address the safety of those haulers that transport waste across State lines.

Mr. LHOTA. Mr. Fossella, I will be very brief, because I think the

commissioners from the other States should address this issue. But

immediately upon the beginning or the commencement of Operation Clean Sweep, which is, I believe, the Commonwealth of Pennsylvania’s program—is that what it is called Clean Sweep? I met

with the industry—representatives of the industry to say that it is

an important thing that the trucks all be properly registered and

be safe and be sound. Not all of the trucks that were stopped in

Pennsylvania came through with trash from New York City, but

you shouldn’t be able to distinguish one from another. Those trucks

need to drive safe and soundly. Just as I am responsible for enforcVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00088 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
85

ing the laws of the city of New York, they are responsible for enforcing the laws in their jurisdictions in this particular State. So

what I did immediately upon recognition that some of these trucks

being used were not up to snuff, met with the industry to say, ‘‘You

have got to get your act together. This is a very important thing

to do.’’ Mr. FOSSELLA. Thank you.

Mr. JONES. I think I would respond in a couple ways to your

question. First, you compare the 380,000 tons from the entire State

of Pennsylvania to the 333,000 tons from the city of New York, and

that is why I pay attention to New York City. It is 24 percent of

all out-of-State waste receipts are from one city. So that causes me

to pay attention to it. We consider, essentially, the western twothirds of the State of Pennsylvania to be short haul, and I think

we have all talked about the fact that we don’t object to imports.

We all import and export. I think all of these States do that. The

particularly troubling part of it is the long haul, and when 24 percent of the out-of-State waste comes from one city, and it is a longhaul city, I have to pay attention to that. But I think more importantly both Pennsylvania and Ohio have been very proactive. For

Ohio, literally over a decade ago, we started the process of comprehensive planning and management for waste disposal, and very

purposefully and deliberately increased our capacity statewide.

And I think the concern I have is that it hasn’t been a secret for

a long time that Fresh Kills was closing, and I think the testimony

this morning was that 25 host community agreements are all outside the State of New York. And our concern is New York needs

to address its major problem—I mean closing that much capacity

is a problem they have to address—and it shouldn’t be addressed

simply by disposing out of State. We think it is appropriate to look

in-State as well, just as Ohio and Pennsylvania have done in order

to address the problem.

Mr. HESS. Mr. Chairman, if I might briefly address this issue. I

think, too, it is also a matter of scale. Half a million tons a year

is a far cry from the 9.8 million tons a year we get from out of

State. I would also say, just to echo what Chris said, it is a lot different when States are making an effort. But when it is clearly the

case that New York is not making any effort to develop capacity,

that does raise the fairness issue.

On the truck safety issue, we thought it was fairly ironic, and I

do welcome the efforts of the city of New York to police the trucks

coming into Pennsylvania, the odd situation was that the top three

trucking companies—the three trucking companies with the most

violations were the biggest companies—Waste Management, Gephardt Trucking, and BFI in our 40,000 inspections. They had the

most problems. It wasn’t the little guys that typically some people

may think have the problems. It was the big guys, and unfortunately those guys are involved in long-haul hauling of trash. And,

again, I welcome whatever the city of New York can do to police

it from their end, because it is a critical public safety issue.

Mr. GILLMOR. Do you have additional questions, Vito?

Mr. FOSSELLA. More of just a statement. I think—I would hope

New York does—the State of New York does take measures, and

I know they have been meeting over the last several years to try

86

to develop a plan. So to say they haven’t been taking any steps, I

think, is unfair and just not accurate. Now, are we satisfied what

they have done? That is a matter of disagreement, but to say they

haven’t done anything I think is unfair.

All I want to suggest is somehow it seems okay, and I am not

criticizing the States and the gentleman and the ladies up here at

all, because they have a very serious job, a very heavy responsibility, and I am sure they do it all, and they take their jobs very

seriously, but they address their municipal solid waste, residential

garbage, if you will, by entering into agreements with surrounding

States. And New York does the same. I just want to make sure everyone is aware that what is good for the goose is good for the gander. Now, you may argue over the volume and the amounts, and

that is a matter of criticism that you can lobby, but every State— well, not every State—but a lot of States do it, millions of tons

every day go across our highways from State to State. And just to

label New York, paint it in the corner, I think is unfair.

Mr. GILLMOR. That will conclude this panel. I would ask the

panel as some members of the committee have indicated they had

some additional questions they may want to submit to you in writing, and we would appreciate it if you could respond to those. And

thank you very much for being here. Very helpful.

We will call panel three, which is our final panel. It is comprised

of Bruce Parker of the National Solid Waste Management Association; Ervin Rogers, the chairman of the board of supervisors in

Gloucester, Virginia; Mr. Tim Berlekamp, director of the Mahoning

County, Ohio Recycling Division, who has the distinction of being

from the same home county as the chairman, which is a little

place, so you don’t often find two of us together at the same time;

Mr. Thomas Woodham, vice chairman of Lee County, South Carolina Council in Bishopville, South Carolina.

Gentlemen, we have your testimony, and if you would take 5

minutes to summarize your presentation before we move to questions. I want to thank you all for coming, and we will begin with

Mr. Parker. And I also apologize for the wait until we got to this

panel, but some of these things are beyond our control.

Mr. Parker.

STATEMENTS OF BRUCE PARKER, PRESIDENT AND CEO, NATIONAL SOLID WASTE MANAGEMENT ASSOCIATION; ERVIN

ROGERS, CHAIRMAN, BOARD OF SUPERVISORS, GLOUCESTER, VIRGINIA; TIMOTHY B. BERLEKAMP, DIRECTOR, RECYCLING DIVISION OF MAHONING COUNTY, OHIO; AND THOMAS WOODHAM, VICE CHAIRMAN, LEE COUNTY, SOUTH CAROLINA

Mr. PARKER. Thank you, Mr. Chairman. Can you hear me? Good.

My name is Bruce Parker, and I am the executive vice president

of the National Solid Waste Management Association. NWSWMA

represents the private sector waste services industry. Our members

operate in all 50 States.

The message that I want to leave you with is simply this: Restricted borders have no legitimate role in managing municipal

solid waste or any other commodity, for that matter, in our economy. They make neither economic nor environmental sense. They

87

are contrary to the trend toward bigger, better disposal facilities

and to the trend toward more innovative, flexible waste management technologies and practices. For these reasons, NWSMA members are opposed to H.R. 1213 on principle, as well as for other reasons set forth in the detailed analysis as an attachment of this

statement.

In spite of all the impassioned language you have heard denouncing interstate movement of waste, the reality is simple: Most

States export and import garbage, and none are harmed in the

process. If you look to that chart right there, that map, that dramatically depicts, on a national basis, what basically is a very intricate and extensive web of transactions, mostly between contiguous

States and involving both imports and exports. In fact, according

to the Congressional Research Service’s recent update on interstate

movements, 46 States exported MSW and 42 States imported solid

waste. Only one State, Hawaii, neither imported nor exported.

Twenty-four States and the District of Columbia and the Province

of Ontario exported more than 100,000 tons last year, and 28

States imported more than 100,000 tons. Fifteen of these States

imported and exported more than 100,000 tons.

The point I think is that, like recyclables, raw materials, finished

products, other goods, solid waste does not recognize State lines as

it moves through commerce. The trash from the District of Columbia or Maryland is no different than the trash from New Jersey or

California or Ohio.

Now, what really explains this tremendous web of transactions

that is on that chart? The answer, I think, is this: In 1990, America

had nearly 10,000 disposal facilities; today we have less than 2,600.

This dramatic change resulted as small landfills closed under the

Federal Resource Conservation Act, subtitle D, and in response to

State requirements for tougher environmental protection and financial assurance, both of which substantially increased development costs, construction costs, operating and maintenance costs of

these facilities. The CRS report notes, as someone else testified earlier, that the number of landfills declined 51 percent between 1993

and 1999. Incidentally, RCRA and the role of the States in fostering larger regional facilities was a matter of national policy, I

may add.

Bigger, better, more environmentally protected disposal facilities

were, or said differently, regional facilities serving communities in

waste sheds were constructed out of necessity and in anticipation

of receiving sufficient volume of waste, both within and outside the

host State, to generate revenues to recoup these development costs

as well as a reasonable return on investment. The development of

regional landfills was not only entirely consistent with all applicable laws, but as just stated, they were responsible to and promoted

by Federal and State policy as the best solution to the need for economical and environmentally protected disposal of MSW.

Solid waste moves across State lines not only because many outof-State landfills are closer to communities than those in their own

State, such as in the Chicago Collar County area that sends waste

to Wisconsin as well as to Indiana. But many communities, in fact,

actually invite waste in. They invite waste in, because they look

upon disposal as just another type of an investor activity that proVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00091 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
88

vides a source for jobs and income. These communities benefit from

significant contributions to the local fiscal through host fees, property taxes, and business license fees. These communities have built

schools, they have built other public facilities, they have hired

teachers, they have hired policemen and firemen as a result of

these host community payments.

Significantly, this issue of interstate disposal is not a public

versus private issue, as so many issues are. The Solid Waste Association in North America, the acronym is SWANA, which represents our counterpart, the public sector of solid waste managers,

is a officially on record of supporting the free movement of solid

waste across jurisdictional boundaries. They know, as we do, that

restricting the movement of interstate waste will increase disposal

requests for local communities and be a tax increase on their residents.

Let me also address for a moment, if I may, and very briefly,

H.R. 1927, the bill sponsored by Representative Rogers. H.R. 1927

is aimed at restricting Canadian garbage. This bill, on its face,

would violate the North American Free Trade Agreement, which

prohibits unilateral attempts to discriminate against trade between

any of the three NAFTA countries. And I think it is also emphasized by some of the questions of earlier panelists. In addition, the

U.S. exports increasing amounts of hazardous waste to Canadian

disposal facilities. If our borders are closed to Canadian solid

waste, why can’t Canada shuts its borders to hazardous waste originating in Michigan, Pennsylvania or other States?

In conclusion, I appreciate the opportunity to testify. My formal

remarks are concluded, and I would be happy to answer any questions that you should have. Thank you.

[The prepared statement of Bruce Parker follows:]

PREPARED STATEMENT OF BRUCE PARKER, EXECUTIVE VICE PRESIDENT, NATIONAL

SOLID WASTES MANAGEMENT ASSOCIATION

Mr. Chairman, on behalf of the private sector solid waste management industry,

I appreciate the opportunity to testify today on proposed interstate waste legislation. I am Bruce Parker, Executive Vice President of the National Solid Wastes

Management Association (NSWMA). NSWMA represents private sector companies

that collect and process recyclables, own and operate compost facilities and collect

and dispose of municipal solid waste. NSWMA members operate in all fifty states. The solid waste industry is a $43 billion industry that employs more than 350,000

workers. We are proud of the job we do and proud of the contribution our companies

and their employees make in protecting the public health and the environment.

America has a solid waste management system that is the envy of the world because of our ability to guarantee quick and efficient collection and disposal of trash

in a manner that fully conforms with state and Federal waste management laws

and regulations.

Our members provide solid waste management 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, increase the cost of waste

disposal and threaten the value of investments and plans we have made in reliance

on the existing law.

The message I want to leave with you is this: restricted borders have no legitimate place in managing trash or any other product in our economy. They do not

make economic or environmental sense. They are contrary to the concept of open

borders; contrary to the evolution to bigger, better, more environmentally sound disposal facilities; contrary to our desire to keep disposal costs for taxpayers low, and

contrary to the trend toward more innovative, flexible, waste management facilities.

In the balance of this statement, I will share with you our reasons for concern

and opposition to H.R. 1213, the ‘‘Solid Waste Interstate Transportation of 2001’’,

89

H.R. 1214, the ‘‘Municipal Solid Waste Flow Control Act of 2001’’ and H.R. 1927,

the ‘‘Solid Waste International Transportation Act of 2001’’. I will discuss the background and context as we see it, and the flaws in the proposed legislation. In particular, detailed comments on H.R. 1213 are set forth in an attachment to this statement.

THE SCOPE OF INTERSTATE MOVEMENTS

Interstate waste shipments are a normal part of commerce. In spite of all the impassioned language you have heard from a few states denouncing garbage that

moves across state lines, the reality is simple: most states import and export garbage and none are harmed in the process.

According to ‘‘Interstate Shipment of Municipal Solid Waste: 2001 Update’’, which

was released by the Congressional Research Service (CRS) in mid-July, 30 million

tons of MSW crosses state borders. This equals approximately 13% of the garbage

generated in the United States and about 18% of the garbage disposed of in the

United States.

These shipments form a complex web of transactions that often involve exchanges

between two contiguous states in which each state both exports and imports MSW.

In fact, the vast majority of MSW, more than 80%, goes to a disposal facility in a

neighboring state. According to the CRS report, 24 states, the District of Columbia

and the province of Ontario exported more than 100,000 tons of solid waste last

year. At the same time, 28 states imported more than 100,000 tons. Fifteen states

imported and exported more than 100,000 tons.

The CRS report documents interstate movements of MSW involving 49 of the 50

states. Forty-six states, the District of Columbia and one Canadian province export

and 42 states import. Attached is a map showing the movement of solid waste

among the states based on the data in the CRS report.

Moreover, while some states are the biggest exporters based on tonnage, several

small states and the District of Columbia are highly dependent on waste exports.

In addition to Washington, DC, which exports all of its MSW, Maryland, New Jersey

and Vermont export the highest percentage of solid waste. The reality is that MSW

moves across state lines as a normal and necessary part of an environmentally protective and cost effective solid waste management system. Like recyclables, raw materials and finished products, solid waste does not recognize state lines as it moves

through commerce.

CRS cites a number of reasons for interstate movements. These include enhanced

disposal regulations and the subsequent decline in facilities. In addition, CRS notes

that in larger states ‘‘there are sometimes differences in available disposal capacity

in different regions with the state. Areas without capacity may be closer to landfills

(or may at least find cheaper disposal options) in other states.’’

THE ROLE OF REGIONAL LANDFILLS

The CRS report notes that the number of landfills in the US declined by 51% between 1993 and 1999 as small landfills closed in response to the increased costs of

construction and operation under the Resource Conservation and Recovery Act

(RCRA) Subtitle D and state requirements for more stringent environmental protection and financial assurance. The number of landfills in the early 1990s was nearly

10,000 while 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 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 wasteshed, 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.

These 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. 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.

90

BOTH THE PUBLIC AND THE PRIVATE SECTORS OPPOSE INTERSTATE RESTRICTIONS

NSWMA is not alone in opposing restrictions on interstate waste. The Solid Waste

Association of North America (SWANA), which represents public sector solid waste

managers, also opposes these restrictions. At its mid-year meeting last summer,

SWANA’s International Board of Directors voted unanimously to approve a policy

statement that supports ‘‘the free trans-boundary movement of solid waste’’. Public sector waste managers and private sector waste management companies

agree that they can’t do their job and protect the public health and the environment

while having their hands tied by artificial restrictions based on state lines.

HOST COMMUNITIES BENEFIT

MSW also moves across state lines because some communities invite it in. Many

communities view waste disposal as just another type of industrial activity, as a

source of jobs and income. As noted above, these communities agree to host landfills

and in exchange receive benefits, which are often called host community fees, that

help build schools, buy fire trucks and police cars, and hire teachers, firemen and

policemen and keep the local tax base lower.

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 waste is

well established by a long line of U.S. Supreme Court decisions spanning more than

a quarter of a century. As you probably know, the original decision protected Pennsylvania’s right to export its garbage to a neighboring state. The Court has consistently invalidated such restrictions in the absence of Federal legislation authorizing

them.

Throughout this period, private sector companies did what businesses do: they

made plans, invested, wrote 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 outof-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.

THE PROPOSED LEGISLATION

The proposed legislation before you (H.R. 1213, H.R. 1214 and H.R. 1927) fail to

protect host agreements, investments or contracts. None of the bills preserves an opportunity to enter and grow in a market that demands economic and protective

waste disposal. And none of the bills provides predictability about the rules that will

91

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. In the worst case, hasty state action

to ban or limit imports could lead to a public health crisis in exporting states if their

garbage has no where to go. As noted earlier, attached to this statement is a detailed analysis of the many flaws that I see in the provisions of H.R. 1213.

Finally, let me comment briefly on H.R. 1214, which would restore flow control

authority, and on H.R. 1927, which would allow states to prohibit the importation

of MSW form Canada and Mexico, signatories with the United States to the North

American Free Trade Agreement.

FLOW CONTROL

NSWMA opposes restoration of flow control because it’s too late to put Humpty

Dumpty back together again. In the 7 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. The facilities that benefited from an uncompetitive monopolization of local solid waste management have

learned to compete in a free market. They have become more efficient and competitive as a result of the rigors of the free market system. Why would anyone want

to replace a competitive system with uncompetitive monopolies?

PROHIBITING THE IMPORTATION OF CANADIAN WASTE VIOLATES NAFTA

H.R. 1927, the Solid Waste International Transportation Act of 2001, would allow

states to ban solid waste from other countries. This legislation is aimed directly at

Canadian exports. As such, it is inconsistent with the national treatment requirement of the North American Free Trade Agreement (NAFTA) which provides that

Mexico, Canada and the United States must treat goods from one another in. a

manner that is no less favorable than that accorded to domestically produced like

products. This requirement of national treatment extends to states.

MSW may not be everyone’s favorite commodity, but it is protected by the same

free trade provisions that protect paper and cars and television sets. If we could

close our borders to Canadian solid waste, what would prevent Canada from closing

its borders to American hazardous waste? American exports of hazardous waste to

Canadian disposal facilities have increased dramatically over the last five years. If

Michigan can ban Canadian MSW, should not the Canadians be allowed to ban

Michigan hazardous waste?

CONCLUSION

Thank you, Mr. Chairman. That concludes my statement.

Mr. GILLMOR. Thank you, Mr. Parker.

Mr. Rogers.

STATEMENT OF ERVIN ROGERS

Mr. ERVIN ROGERS. Thank you, Mr. Chairman. Mr. Chairman,

members of the subcommittee, I appreciate the opportunity to address you today concerning the legislation before you at this time.

I currently serve Gloucester County, Virginia as chairman of the

board of supervisors. I am here today to express my views not

those of the board, though I would like to leave with you a resolution passed by the board supporting State Senator Billing’s legislation known as the Solid Waste Management Act of 1999 giving the

State of Virginia some control over the amount of waste imported

from out of State. My intent here is to show you from the public

record what the board’s attitude was concerning controls on import

of out-of-State waste.

I would also like to leave with you a resolution passed by the

Gloucester Republican Committee supporting previous House bill,

H.R. 1190, also putting controls on out-of-State waste. Again, I

92

hope to show you from the public record that at least one faction

of the community supported controls on out-of-State waste. It is my

opinion that the majority of the County of Gloucester supports local

and State controls on the import of out-of-State waste, but these

two resolutions are the only proof from public record I could acquire on short notice.

During my time to address you today, I would like to present

some information concerning the mega landfill located in Gloucester County, Virginia. I want to include information concerning our

contract with Waste Management, some history about how the facility came to be built, some input on how the community has been

affected by the landfill, and finally give you a brief statement of my

position concerning the legislation before this subcommittee.

Before I get started, I would like to take a moment to give you

some insight in how I became interested in local politics. I entered

local politics in 1992 over the board’s desire to build a mega landfill

in Gloucester. I was a principal leader in the fight against the facility. I attended board meetings for 2 years before the contract between Gloucester County and Waste Management was signed and

for another 4 years before being elected to the board. I also attended Planning Commission Meetings for 4 years prior to serving

on the board. After the contract was signed I was concerned about

where county leadership was taking the county. I sought out the

Planning Commission to help me with these concerns. I found that

this commission and its staff was forward thinking with only the

best interest of the county in mind. My current position on the

landfill in Gloucester is to make the best out of the contract without increase daily tonnage.

With your permission, I would like to continue by stating some

facts about Gloucester’s contract with Waste Management. Gloucester owns the mega facility and has contracted with Waste Management to operate it. The facility was purchased with money donated

to the county for that purpose by Waste Management—around $2

million. The contract states that if for any reason Gloucester terminates the contract, the county will reimburse all money invested in

the facility by Waste Management, including this $2 million. The

contract is for 20 years, and Waste Management has the right to

renew. The county cannot deny them renewal.

Waste Management must dispose of Gloucester’s solid waste for

20 years, even if they walk away from the facility. Waste Management is allowed to dispose of 2,000 tons a day in the facility, including the tonnage from the county. Gloucester County gets 50

cents a ton up to a certain tonnage, then $1 a ton tipping fees. Estimated income for next year is $375,681. We also get an inspection

fee of $56,522 and an implementation fee of $91,371, for a total of

$523,574.

Primary benefit to Gloucester County is deferred cost for county

waste disposal. The landfill should have a life expectancy of 47

years at a rate of 2,000 tons a day. The facility occupies 500 acres

and will rise to 300 feet. In the year 2000, Waste Management’s

figures stated that the facility brought in 519,532.7 tons. And inState tonnage was 184,094.2 tons. Out-of-State tonnage was

335,438.5 tons, or 64.5 percent of the facility’s capacity used in

2000 came from out-of-State.

93

Now I would like to address some history concerning the implementation of this facility. The contract was signed in 1992; the facility went into operation in 1995. The decision by the board of supervisors to bring a commercial landfill to Gloucester County was

by a vote of 4 to 3. The community showed up at board meetings

at a rate of about 250 people for 2 years to show their disfavor with

the board’s position. Eight thousand names were collected on a petition against bringing such a facility to Gloucester County and

presented to the board.

After the contract was signed, a movement took place to remove

four supervisors that voted for this contract from office on the

grounds of malfeasance. The required number of signatures were

collected to bring this issue to court. In the case of the at-large supervisor, this amounted to 1,681 registered voter signatures. The

case was dismissed due to a technicality.

All four board members that supported the landfill were removed

from office in their next bid for re-election. One had been in office

for 28 years and was defeated by the first woman elected to the

Gloucester Board of Supervisors, a 32-year-old teacher’s aide. Another had been on the board for 16 years and was defeated by a

margin of approximately 2 to 1. Another had been on the board for

12 years and another for 4 years. This supervisor finished fourth

in a four-way race.

One was defeated within 1 year of the contract signing and the

other three were defeated 2 years after the signing. The citizens of

Gloucester County had long memories concerning this issue. Two

board members that did not support the landfill are still on the

board; the other ran successfully for re-election one more time and

then retired. I currently fill his seat. I represent the district where

this facility exists.

I personally was told by a Waste Management representative, in

a private conversation, that New York solid waste would never be

disposed of in Gloucester County, that this facility would be only

a regional landfill. The landfill is still a volatile issue in Gloucester

county.

How has this facility affected county? The landfill has been operating since 1995. Nearly all citizens that lived on the perimeter of

the landfill have sold their homes and property to Waste Management and moved. The community has been inconvenienced by traffic, noise, odor, and litter. There have been a couple of engineering

mistakes that have caused prolonged problems with large volumes

of escaping gas—one lasted for a period of nearly 6 months. Medical waste has been found on the property a couple of times. Erosion has caused problems with adjoining property.

The facility manager has been successful with an extensive public relations campaign. He is active with the chamber of commerce

and has made numerous donations to public service organizations.

He lives in James City County. I consider this man a friend. We

don’t often agree on matters concerning the facility, but have

learned to work together, sometimes coming to an agreement,

sometimes not.

It is my opinion that landfills are a necessary evil but a threat

to the environment. No engineering solution that is composed of a

man-made material can last forever. A State should only have

94

landfill capacity that allows it to manage solid waste in a manner

that is acceptable to its citizens. Without the capability to manage

the amount of out-of-State waste brought into a State, no meaningful solid waste disposal strategy can be developed by a State or

local government. Without the ability to develop such a strategy,

a State can have nothing to say about the environmental risk that

is being imposed on its citizens and natural resources by the disposal of solid waste within its boundaries.

Waste disposal companies and counties that have become dependent, for whatever reason, on solid waste tipping fees will control all of this. For this reason, I support the Greenwood bill and

the changes proposed by Representative Davis. Giving States the

ability to set caps on the percentage of solid waste imported from

out of State in existing facilities is paramount to allowing States

to manage solid waste in a meaningful way. Thank you very much,

sir.

Mr. GILLMOR. Thank you, Mr. Rogers.

Mr. Berlekamp.

STATEMENT OF TIMOTHY B. BERLEKAMP

Mr. BERLEKAMP. I would like to begin by changing my written

testimony from ‘‘Good morning, Mr. Chairman’’ to ‘‘Good afternoon,

Mr. Chairman and subcommittee members.’’ My name is Tim

Berlekamp. I am the director of the Recycling Division in

Mahoning County, which used to be the Mahoning County Solid

Waste Management. I appreciate the opportunity to testify on H.R.

1213 in its current state. I would like to say that I agree in principle with this legislation, but I am a bit concerned with its

grandfathering issues.

I would first like to describe the condition of my current county.

Mahoning County is located on the Ohio-Pennsylvania border. We

have three active private sector landfills, of which one of them is

the largest in the State of Ohio and responsible for at least onethird to one-half of the imported out-of-State waste. This particular

landfill also has a current host agreement with the Board of County Commissioners, the Recycling Division, the Health District, Poland Township, which is the host community township for this

landfill.

This agreement was first executed in 1990, shortly after the passage of house bill 592, which I think you are endearingly responsible for, Mr. Chairman, and we appreciate that in the State of

Ohio. I would like to also clarify there are no host agreements with

the other two active landfills at this time, but their import of outof-State waste is insignificant to the 500,000 to 700,000 tons a year

from BFI/Carbon Line.

I took my position as the director of Mahoning County in February 1999, so I can only comment on previous negotiations

through historical records and discussions with those present at

the time. We have, however, in the last 2 months renegotiated

agreement at this particular facility for an additional 500 tons of

long-haul waste. to clarify the difference between long haul and

local waste, there is a 150-mile radius within that facility. Anything outside of that 150 miles we consider as long haul.

95

I need to note that the original agreement was amended four

times prior to this one, and I bring that point to surface in order

to show that a good host agreement is able to be amended with the

changing conditions of the time.

I have two major issues I would like to present to the subcommittee. The first is the strength of a good public/private sector

relationship accomplished through constructive and professional

negotiations. Mahoning County has benefited from BFI/Allied, not

only through the revenues legislated by house bill 592 but also by

the negotiated conditions allowing BFI/Allied to receive out-of-State

waste and benefits to the local communities, such as water lines,

waste-water treatment plants, road maintenance, sidewalks, ball

fields, and free waste disposal for affected citizens, which are just

a few of these.

We are also the only county in the State of Ohio that receives

free curbside recycling and continues to enjoy a good dialog with

BFI/Allied as conditions change and needs arise. I must emphasize,

however, I do not believe that this relationship would have accrued

without the anticipated passage of house bill 592, and for this reason, I believe legislation like H.R. 1213 is necessary.

The landfill had been operated several years before 592 with little or no benefits realized to our community. The need for legislation requiring operators and local communities to negotiate their

fate is definitely required. This issue is perhaps one where the private sector and I would disagree since their optimum position

would be there are no barriers to the flow of interstate waste.

During my years as a public servant, six of which were as a

county commissioner, I never remember a time when any private

sector entity approached me and asked me to negotiate a relationship which would impact their operation unless it was for a tax

abatement or monetary incentive that would enhance their operation. For this reason, I believe that the principles of H.R. 1213 are

a good one.

The second issue I would like to address would be the intent of

H.R. 1213 to ensure local control. I feel that the bill restricts or

limits, through definitions and exceptions, the grandfathering of

many good current host agreements within the State of Ohio. An

example is the definition of ‘‘affected local government’’ as ‘‘The

public body authorized by State law to plan for the management

of municipal solid waste, a majority of the members which are

elected officials, for the area in which a landfill or incinerator is located or proposed to be located.’’

Now the following explanation is rather complicated, so I am

going to move through it a little bit slowly. In Ohio, the State law

requires a Policy Committee to be developed to make the planning

environment for the area which it affects. That planning body is

made up of a county commissioner or his designee, the mayor of

the largest metropolitan area or his designee—he or she—a township trustee, and the board of health director. Those four then appoint three ad hoc committee members, of which two represent the

citizenry and one represents an industrial representative. As you

can clearly see, there are only three elected officials on a body of

seven, and therefore the definition of effected local government

may contradict what Ohio has done.

96

But I go on to say that once they have developed a plan that plan

must be ratified by a unanimous vote of the Board of Commissioners, by the unanimous vote of the largest metropolitan area,

and by at least 60 percent of the population of the area of which

it affects. I think that is a very positive affirmative action process,

which then fulfills the intent of the author of this legislation.

In summary, I would like to emphasize one major point: Local

control of State waste issues is imperative. Another tool for meeting such fundamental local control responsibility is flow control authority, and I urge this subcommittee to take consideration of H.R.

1214 in the near future. I believe we have come a long way from

the local community dumps many of us remember, including yourself, Mr. Chairman, on the banks of the Sandusky River in Old

Fort, Ohio. And I believe that our private sector partners in this

effort have worked diligently to communicate and cooperate when

required. This solid waste playing field must always have two

teams and a fair set of rules to ensure the most economical, environmentally sound and professional service to our constituents.

Thank you all for your time, and I would be happy to answer any

questions upon the completion of this testimony.

[The prepared statement of Timothy B. Berlekamp follows:]

PREPARED STATEMENT OF TIMOTHY B. BERLEKAMP, DIRECTOR, RECYCLING DIVISION

OF MAHONING COUNTY

Good morning Chairman Gillmor and members of this subcommittee. My name

is Tim Berlekamp, and I am the Director of the Recycling Division of Mahoning

County, a.k.a. Mahoning County Solid Waste Management District. I appreciate the

opportunity to testify on HR 1213 in its current state. I would like to say that I

agree in principle with this legislation but I am concerned with some of the provisions and definitions related to the grandfathering of current host agreements.

I would like first to describe my county’s situation. Mahoning County is located

on the Ohio-Pennsylvania border. We have three active private sector landfills and

two closed ones. The largest of the active landfills is Carbon Limestone that is operated by BFI/Allied and is located directly on the border between Pennsylvania and

Ohio. This particular landfill is also one of the largest in the State of Ohio and is

responsible for approximately one third of the out-of-state waste received within the

state. There currently exists a host community agreement between BFI/Allied and

the Board of Commissioners, the Recycling Division, Poland Township, the township

in which the landfill is located, and the local health department. This agreement

was first executed in June of 1990 shortly after the passage of HB 592, Ohio’s first

and only comprehensive solid waste management legislation. HB 592 was passed

June 24, 1988. I believe that you are very familiar with this legislation, Mr. Chairman. I would also like to clarify the fact that there is no county host agreement

with the other two landfills, one of which is operated by Waste Management and

the other privately owned by Ms. Joanne Douglas and her family.

I took my position as Director in Mahoning County in February, 1999, so I can

only comment on previous negotiations through historical records and discussions

with those present at the time. We have, however, just recently negotiated an addendum to the original agreement allowing a 500-ton per day increase in long haul

waste. For agreement purposes, we consider anything outside of a 150-mile radius

as long haul. I need to note here that the original agreement has been amended

through negotiations four previous times, so this addendum would make the fifth.

I make this point to illustrate the ability of concerned entities to adapt their agreements to changing conditions. This is the power of good host community arrangements.

I have two major issues I would like to present to this Subcommittee. The first

is the strength of a good public/private sector relationship accomplished through

constructive and professional negotiations. Mahoning County has benefited from

BFI/Allied not only through the revenues legislated by HB 592 but also by negotiated conditions allowing BFI/Allied to receive out-of-state waste. Such benefits as

water lines, a waste-water treatment plant, road maintenance and free waste disposal to affected citizens are just a few. We are the only county within the state

97

of Ohio that receives free curbside recycling and continues to enjoy a working dialog

with BFI/Allied as conditions change and needs arise. I must emphasize, however,

I do not believe that this relationship would have accrued without the anticipated

passage of HB 592, and for this reason, I believe legislation like HR 1213 is necessary. The landfill had operated several years prior HB 592 with little or no benefits realized by our community. The need for legislation requiring operators and

local communities to negotiate their fate is definitely required. This issue is perhaps

one where the private sector and I would disagree since their optimum position

would be no barriers to the flow of interstate waste. During my years as a public

servant, six of which were as a county commissioner, I never remember a time when

any private sector entity approached me and asked for a negotiated relationship

which would impact their operation unless it was for a tax incentive to enhance

their operation. For this reason alone, I believe that the principle of HR 1213 is a

good one.

The second issue I would like to address would be the intent of HR 1213 to ensure

local control. I feel that the bill restricts or limits, through definitions and exceptions, the grandfathering of many good current host agreements within the state of

Ohio. An example is the definition of ‘‘affected local government’’ as ‘‘(A) the public

body authorized by State law to plan for the management of municipal solid waste,

a majority of the members of which are elected officials, for the area in which a landfill or incinerator is located or proposed to be located.’’ I would like to refer to my own division. In order to have an approved plan which

drives the negotiation process, a Policy Committee made up of a County Commissioner or his/her designee, a Township Trustee, the Mayor of the largest metropolitan area within the county or his/her designee, the Director of the local health district, two citizen representatives and one representative from an industrial generator must develop and write a comprehensive solid waste plan for the division. Once

that plan has been written, it must be ratified by a unanimous vote of the Board

of Commissioners, and affirmative votes by the largest metropolitan area and at

least 60% of the population of the county represented by the townships, incorporated

villages and other cities. I believe that you would agree that this process clearly represents the public will, but it would not meet HR 1213’s narrow definition of ‘‘affected local government.’’ In summary, I would like to emphasize one major point. Local control of solid

waste issues is imperative. Another tool for meeting such fundamental local government responsibility is flow control authority. I urge the subcommittee to take up

consideration of HR 1214 in the near future.

I believe we have come a long way from the local community dumps many of us

can remember, including yourself, Mr. Chairman on the banks of the Sandusky

River in Old Fort, Ohio. And I believe that our private sector partners in this effort

have worked diligently to communicate and cooperate when required. This solid

waste playing field must always have two teams and a fair set of rules to ensure

the most economical, environmentally sound and professional service to our constituents. Thank you all for your time and I would be happy to answer any questions you may have of me.

Mr. GILLMOR. Thank you very much.

Mr. Woodham.

STATEMENT OF THOMAS WOODHAM

Mr. WOODHAM. Thank you, Mr. Chairman. It is good to be here

this afternoon. As you stated, my name is Thomas Woodham. I am

vice chairman of Lee County Council at Bishopville, South Carolina. A little history about Lee County: We are located 60 miles

east of Columbia off Interstate 20. We are in the PD region of

South Carolina. We are a rural agriculture community. We are approximately 20,000 to 21,000 people. Our two largest employers,

which closed about 4 years ago, were textile plants. Our county

budget is around $8 million; our local school funding is $4.2 million. Our tax is $25,000.

When I first got elected in 1988, one of the first issues before me

was the solid waste disposal. The county landfill was filling, which

at that time was unlined hole in the ground that we were covering

on a random basis, and I am not very proud of that. We attempted

98

to site a new landfill with DHEC, which is a State controlling agency. We had six or sever sites rejected. At that time, we knew we

were not going to be able to get—meet the new regulations for an

unlined facility.

We began negotiations with a waste firm to take control of our

existing landfill and build a new subtitle D facility in Lee County.

We reached an agreement and a contract for services. The company

agreed to close out our old landfill with test wells. Lee County

waste was accepted at no cost to Lee County residents. Any outof-county waste Lee County received a tipping fee. At that time, we

had no out-of-State waste. After a few years of operation and the

council planning for the future of Lee County, the council revisited

our contract with Allied Waste and negotiated receiving out-ofState waste.

Some of the benefits. Well, Allied Waste has been—No. 1, they

have been a real good neighbor. We have an environmentally safe

facility, reduced to eliminated costs for waste disposal in Lee County. Last year, we put $1.2 million in non-tax revenue in that $8

million budget. They have got 80 jobs out at the landfill; they are

the largest taxpayer in Lee County. Closure and monitoring of the

county’s old landfill saved us approximately $1 million.

Control of our tax rates with growth in services, and examples of that, we just built a new $17 million high school in Lee County.

The Sheriff’s budget has gone from $300,000 to $1 million a year.

Instead of about 9 years ago we were buying used patrol cars for

North Carolina, we are rotating five new ones in each year. We

built a new judicial center for magistrate court and the Sheriff’s

Department—$1.3 million. It is paid for. We have got a new emergency rural fire and disaster preparedness building.

Regional jail—we have gone into a regional jail agreement with our neighbor county, Sumter County. Our buying costs of $700,000,

that money is already set aside in our budget. Last year we

brought enhanced 911 center online—complete new department for

Lee County with approximately 12 employees. The year we brought

it online we cut the millage in Lee County. We have gone from rescue squad that was all volunteer to a countywide EMS which is a

mix of paid and volunteers. We were putting in about $10,000 a

year, and now it is up to a $300,000 budget. This year we bought

three new ambulances at $80,000 apiece and three new fire trucks

at a $140,000 apiece, completely upgrading our emergency response

capabilities. We don’t have a hospital in Lee County.

We upgraded our pay scales in order to get quality employees for

quality results. We support our employees with continued education. At the current time, we are also building 10 recycling centers around the county for waste collection. We used to have about

120 sites that we picked up. Four of those are completed, and four

more are coming online this year. The landfill has agreed to take

over the hauling inside of the county from these locations.

With the money that we feel we are going to save on the hauling,

we are beginning a rocking program for our dirt roads. We have got

400 miles of dirt roads in Lee County. We are upgrading our county buildings—the courthouse, the library, rural fire stations, Council on Aging Ag Center. Public Works has gotten two new motor

graders, $170,000 apiece. Dump trucks, we have done a lot. WorkVerDate 11-MAY-2000 07:44 Mar 08, 2002 Jkt 076551 PO 00000 Frm 00102 Fmt 6633 Sfmt 6602 E:\HEARINGS\74852 pfrm09 PsN: 74852
99

ing with the city of Bishopville to upgrade our water and sewer and

an infrastructure for industrial recruitment has been our No. 1

task.

We have gotten two new industries in the last 3 years. We have

upgraded our old industrial park, paved the roads, drainage, lighting, we have got a 40,000 square foot spec building sitting on that

site. We have also acquired 220 acres beside Interstate 20, on the

other side of the county, and we have got curb and gutter with the

retention ponds, water and sewer, 250,000-gallon water tank, substation, all the amenities you need in order to recruit industry.

We completely rebuilt our rail system in Lee County, because we

have got about 30,000 tons a month that comes in by rail. We have

increased our local funding to public education by 60 percent in the

last 5 years, and I think that is the most important thing we have

done. Working with adult education in the tech school for job training and continued education we hope to have a satellite campus for

the tech school in Lee County in the near future. We know we have

got to have an educated work force for future industry in Lee

County.

The members of Lee County Council and I realize that 1 day the

facility will close. Our plan is to upgrade education, emergency

service, police protection, quality of life, and the ability to bring industry into Lee County. That is our future. As much as I hate to

say it, it is all about money. Without the ability to negotiate our

contract, knowing what our needs are, establishing a good working

relationship and trust with the landfill operators, State inspection

of the facility and monitoring, I hope you understand why Lee

County supports out-of-State waste. Waste is a dirty word to some,

but managed properly it can be a tremendous asset.

[The prepared statement of Thomas Woodham follows:]

PREPARED STATEMENT OF THOMAS WOODHAM, VICE CHAIRMAN OF THE LEE COUNTY,

SOUTH CAROLINA COUNCIL

Mr. Chairman and 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 long time member of the Lee County Council I experienced first hand the closure of our substandard facility and the development of a

Subtitle D facility to replace our old landfill.

Lee County is a poor, rural, agricultural community. As such many agricultural

by-products such as animal wastes, pesticides and other agricultural by-products

were disposed of in our landfill. A few years ago, the State of South Carolina told

us we had an environmentally unsafe landfill and that we would have to close it.

We made seven proposals to develop a new landfill, but each one was rejected by

the state. At this time a private waste company approached us and offered to build

and manage a waste facility in our county. We accepted their offer and the Lee

County Landfill was developed with the state’s blessing. Today our landfill takes in

2,500 tons of waste both from within our borders and outside our state borders. The

landfill is inspected several times a month by state authorities and has never been

found to pose any danger to the surrounding environment.

The benefits we have received from this arrangement with the private waste company include $1,000,000 in savings on the closure costs associated with our old landfill, free disposal for the county, a rebuilt rail line and more than $1,000,000 annually in host fees. The $1,000,000 in host fees we receive represents roughly oneeighth of our annual budget. We have invested these host fees in a new high school

and new industrial park. Our objective is simple, reinvest the revenues generated

by the landfill in projects designed to improve our infrastructure and thereby better

position Lee County to attract new businesses long after the landfill has reached

capacity and closed. Once the landfill is closed we plan on turning it into a 1,500

acre park for the citizens of Lee County to enjoy for years to come.

100

Without the revenues generated by this landfill, Lee County would not be able

to develop the infrastructure necessary to attract new business in the future because there is a very limited tax base and no reason to believe that would change

on its own. The landfill has been a savior for the county from a revenue perspective

and every member of our county council is pleased with the arrangement we have

with the private waste company. All told the savings we realized in the closing of

the old landfill and free disposal and the host fees we receive from the facility will

put tens of millions of dollars into our county coffers by the time the landfill reaches

capacity. We would not have been able to generate similar revenues without the Lee

County Landfill and the fees we receive from accepting out-of-state waste.

On behalf of Lee County, I would like to thank the Committee for letting me

share our views with you. I would be happy to answer any questions.

Mr. GILLMOR. Thank you very much, Mr. Woodham, and we will

proceed to questions. I wanted to ask you, Mr. Parker, in your

statement, you talked about the legislation, if it passed, could result in a diminution of the property value and constitutionally constitute a taking. You want to elaborate on that a little bit? What

would be the property that would be diminished in value, and what

would be taken from constitutional——

Mr. PARKER. This is from my written testimony?

Mr. GILLMOR. Yes.

Mr. PARKER. Yes. If you look at the structure of the bill, it is very

disingenuous, because it basically starts off with a presumptive

ban, which says nothing can come in. And then it allows waste to

come in the various facilities based upon certain conditions. You

have to have a host community agreement, you have to have a contract, you have to have a permit. And then it puts conditions on

those conditions to quality for exemptions, to qualify to be exempted from the 1993 base year level that the State can impose as the

freeze, for the 20 percent restriction that the State can impose in

terms of limiting out-of-State wastes that come in. It goes on and

on.

My members have made significant capital investment based

upon existing law at the time. They have made business plans,

pursuant to the Constitution of the United States for publicly traded companies as well as for private companies that we represent,

to build landfills to comply with Federal and State law—bigger,

better, better engineered.

If in fact this legislation were enacted, I believe that there would

be some serious questions of whether it doesn’t violate the constitutional prohibition against taking. I would also add that this an

area of law which is very fluent and dynamic. Indeed, just 2 weeks

ago, the United States Supreme Court decided a case called

Palazzolo v. Rhode Island, where the Supreme Court allowed taking claim to be filed, notwithstanding the fact that this gentleman

who wanted to develop some land on the coast knew ahead of time

that there were restrictions on that development. So I am suggesting that I think there are some serious takings questions, and

I would be prepared, not today, to develop those more fully.

Mr. GILLMOR. Thank you. Let me ask Mr. Berlekamp, this is an

area that is not directly related but somewhat related to the legislation we are dealing with today on interstate waste. But that is

the matter of flow control. Do you have any comments on why you

think flow control is important and how it might relate to the problem of interstate waste?

101

Mr. BERLEKAMP. Mr. Chairman, I think it goes more to the root

of local control than just flow control. I think that the issue that

stands before us today is that this is a diverse and fluid environment that both public and private sector operate within. And, historically, we have known, and flow control has been on the table

for years and years and years, that public sector goes forward not

only like private sector, which private sector having an integrated

system has the ability most of the time to flow control to its own

facilities automatically. Most public sector facilities are not totally

integrated and put up capacity and incinerators to ensure disposal

capacity for public sector citizens, and are caught short once that

bondage is put out.

So I think serious consideration, which I think you are well

aware in Ohio, which I think is really an optimum State in this.

And I am proud of being from Ohio and what we have in solid

waste management. I believe our director emphasized that also,

that the courts in Ohio have upheld flow control within the State

boundaries but has not restricted interstate commerce, and I believe that is really an ultimate position to be in as a State.

I believe we have taken a positive step forward in the State of

Ohio to look futuristic to control even the out-of-State waste issues

through this local contract. So I believe flow control is but one tool,

and I think that it is important tool and should be available to

those that want to exercise it.

Mr. GILLMOR. Thank you. Let me ask Mr. Woodham, does your

facility have a host community agreement?

Mr. WOODHAM. Yes.

Mr. GILLMOR. Since you do, and H.R. 1213 would continue allow

you to receive imports of out-of-State waste, do you think that

under those circumstances H.R. 1213 is a bad situation for you in

your particular instance?

Mr. WOODHAM. I would hate to have restrictions. I feel like we

have done a real good job in Lee County of putting together our

contract and our situation with the landfill. Just as was stated earlier, I believe, where it is hard to go back and renegotiate, we just

renegotiated with them to take over the hauling within the boundaries of Lee County, which is going to save us approximately, we

estimate, around $300,000 a year. We feel like if we have—and I

think that statement was made earlier—if we can maintain and

keep a good working relationship with the landfill in the county,

we can continue to make changes as we see. We know it is a bottom line issue with them, but we have had nothing but good praise

for Allied Waste.

Mr. GILLMOR. The gentleman from New Jersey?

Mr. PALLONE. Mr. Woodham, did you mention what the volume

of tons was permitted at the landfill or how much comes from out

of State or where it comes from? Did you get into that? If not,

would you tell us?

Mr. WOODHAM. All right. Would you repeat that, I am sorry?

Mr. PALLONE. Well, in other words, what is the volume permitted

at the landfill, and does it come from out of State and where does

it come from?

Mr. WOODHAM. Well, our volumes are dictated by the Solid

Waste Disposal Act in the State of South Carolina. I think there

102

is a total tonnage, and I think it is around a million tons per fiscal

year that is allowed to go into that facility. So the State of South

Carolina does have caps on how much can go in. It might be 1.3

million I believe is the total. As I stated, they completely rebuilt

the rail system in Lee County, and—— Mr. PALLONE. No, I mean but does it come from out of State or

where does it come from?

Mr. WOODHAM. I would say we have gotten approximately threefifths comes from out of State.

Mr. PALLONE. And all over the place or—— Mr. WOODHAM. Well, it is coming in by rail, I think, from the

Northeast, and we have got North Carolina; it is coming from

there. And then the other waste is coming from throughout the

State of South Carolina.

Mr. PALLONE. Okay. Well, again, I have to say I mean I—obviously, each town does what it wants, but—or each county, but my

own experience—I mean my district—well, first of all, I should say

New Jersey has more superfund and hazardous waste sites than

any other State. And my district has more than any other district

in the State. And we have got landfills for municipal garbage that

years ago New Jersey used to take all this stuff, mostly from New

York. And the problems that have existed ever since they have

been closed is just incredible. I mean I have probably spent a good

percentage of my time down here and back home trying to figure

out what to do.

And so I mean I am always worried that even though it sounds

very good now, what happens later when it closes? And I think you

addressed the fact—I think you mentioned, Mr. Woodham, what

procedures exist for closure and cleanup in the future or the size

of the bond, financial bond. You mentioned that, I think, right?

Mr. WOODHAM. Well, there is—the State requires the closure.

You have to have the closure planned and everything in place, and

then there is a fiscal responsibility as far as the bond, and it

takes——

Mr. PALLONE. And where was that? Did you mention the financial bond or what?

Mr. WOODHAM. No, I don’t think I did.

Mr. PALLONE. And I was going to ask the same question of everybody else. In other words, if you would—you know, the amount of

the financial bond that would ensure the proper closure and what

plans are in place for the future in terms of any environmental contamination. I would ask Mr. Rogers that or anybody else who wanted to answer that as it applies to them. Mr. Woodham can start

on that.

Mr. WOODHAM. We don’t—I did not list that. But one thing that

I have noticed that was brought to our attention earlier, we have

a real good water source in Lee County, so everyone was extremely

concerned about groundwater contamination. One thing that we

picked up at the facility got online you have what is called an upstream and a downstream well. And on an inspection on an upstream well, there were some high Ph contents. And what they

found out was they owned the land around the landfill. They were

renting it to farmers, and they were putting in too much when they

were liming the soil, so they got in touch with them and made sure

103

that they were liming the land when they shouldn’t be. We picked

that up on the upstream side. We went on the downstream side

and checked the wells there; we didn’t have the problem. So we

had a benefit there. We found out we are farmers. We are not

doing what they should have been doing. So I would say that was

a benefit for us right there.

Mr. PALLONE. If each of you could just tell me what the amount

of the financial bond is to ensure proper closure of the landfill or

landfills and address any future environmental contamination. If

you don’t have it, if you can’t tell me now, maybe you can get it

to us in writing. But I would like to hear from some of you. Maybe

you don’t have the specific figure about the financial bond, but

could you get back to us with that in writing?

Mr. ERVIN ROGERS. I will have to do it from memory, but what

I remember about the contract is that as a facility grows there is

a certain amount of money set aside to cover closure, up to $10 million. And as I recall, the cap of the bond is—or the money set aside for closure is $10 million. There has always been questions as to

whether $10 million would be adequate for closure or to cover any

kind of environmental contamination that might occur.

Mr. PARKER. Thank you, Mr. Pallone. I don’t operate a landfill,

but I am a lawyer—a reformed lawyer; I don’t practice anymore.

Mr. PALLONE. Reformed lawyer?

Mr. PARKER. Right. But I was general counsel of this organization, so I was fairly active when the financial insurance regulations

were passed, so I would just add the following: That the financial

insurance regulations, which is part of 258 of the subtitle D regulations, require every facility to insure for both closure and post-closure care for 30 years. And as I understand it, there is no set

amount. It depends upon a formula that every landfill has to determine. Some landfills have more of a financial insurance than the

other, based upon the size, the air space, what is left. But on a regular basis, these facility owners and operators are required to update their financial assurance and notify the region or U.S. EPA.

I would also like to say with regard to New Jersey, and I understand New Jersey has had horrendous superfund problems, and

correct me if I am wrong—you certainly know better than I do—

but I think New Jersey is not atypical of many States. The problems in New Jersey with the landfills were their earlier pre-subtitle D facilities that were co-disposal facilities that there were no

records on.

Mr. PALLONE. Well, there is no question that the situation has

changed, and a lot of them existed at a time when there was almost no environmental protection taking place. But we still have

some that were strictly municipal garbage that are causing problems too, so it is not that they were all hazardous waste sites.

Many of them were supposedly just municipal. But, no, I understand. I mean maybe our problems are different, but I am just

using it as a word of caution for the future. Did you want to say

something, Mr. Berlekamp?

Mr. BERLEKAMP. Yes. Through the Chair, Congressman Pallone.

Ohio is very much the same way, and our director is here if he disagrees with this. But it is based on size, capacity. It is not a set

figure. It depends on the size of the facility. You do have the 30

104

years. We did close a landfill under the current law in my old district for waste management, and like they said, any time within

that 30 years if there is an environmental impact, it re-triggers another 30 years. So by the time you get through this process, I don’t

know if I will live through the time at any of these landfills. But

we run into the problem we have run out of security, and that is

the same guarantee as life is, I think.

I mean I have got two landfills in my current environment that

the owners—it was an old strip mine county, and so they dumped

trash in the strip mines, and then they walked away from it, and

we don’t know what is in there at this point in time, and the landowners have died. And so who is responsible at this point in time?

We know what the law says, but is it real in recuperating it? That

becomes the real question on down through the 30 years and the

30 years. Who is going to stand up to it? So I think every effort

has been made very honestly between public and private to put

much assurance on that closure as they can, but there is no guarantees in life.

Mr. PALLONE. A real concern, too, would be—I know the time is

out—that you have a small county or, I guess, Mr. Woodham said,

what, 22,000 people, and then a big mega landfill. And then what

happens, obviously, he is confident that they are doing what they

have to do, but you always worry about what the consequences are,

if there is a huge cleanup operation that is necessary. But you said

you were going to get back to us with whatever the financial bond

is. Thank you, Mr. Chairman.

Mr. GILLMOR. There being no further questions, I want to thank

the witnesses from panel three for being here. We appreciate your

experience and your insight. And I also want to recognize the extra

efforts that some of you have made to be here today. We very much

appreciate that.

At this point, I would like to ask unanimous consent that the

hearing record remain open for written questions to all of the panelists for 10 days, as well as for member statements. There being

objection, so ordered, and the hearing is concluded.

[Whereupon, at 2:01 p.m., the subcommittee was adjourned.]

[Additional material submitted for the record follows:]

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121