Presidential Authority to Control Export of Hazardous

Wastes Under the Export Administration Act of 1979

T h e E xport A dm inistration A ct o f 1979 gives the P resident auth o rity to im pose co n tro ls 

on the export o f hazardous wastes.

U nder the 1979 A ct, the term "ex p o rt” includes transactions that have substantial e c o ­

nom ic consequences, even if th ey do not directly pro d u ce revenue by sales.

October 2, 1980

MEMORANDUM OPINION FOR TH E ACTING LEGAL 

ADVISER, DEPARTM ENT OF STATE

This responds to your request for our opinion whether the Export 

Administration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503, 50 U.S.C. 

App. § 2401 (Supp. Ill 1979), applies to the export of hazardous wastes. 

The request comes in light of our memoranda for you of April 11, 

1980, and of January 30, 1979, finding that the Act provides authority 

for the President to control the export of hazardous substances.* We 

now conclude that the Act is equally applicable to the export of 

hazardous wastes.

Our prior memoranda emphasized the broad range of foreign policy 

purposes to be served by the executive power to control exports. Our 

April 11, 1980, memorandum particularly noted the statement in the 

report of the conference committee that the President’s authority to 

restrict exports “ ‘to further significantly the foreign policy of the 

United States . . .’ encompasses the full range of U.S. foreign policy 

goals.” H.R. Rep. No. 482, 96th Cong., 1st Sess. 43 (1979) (hereinafter 

1979 Conference Report) (quoting § 3(2)(B) of the Act, 50 U.S.C. App. 

§ 2402(2)(B)). These goals are the same for export of all hazardous 

materials, hazardous substances and hazardous wastes alike. Each implicates United States relations with foreign countries because of the 

danger to health and safety not only in the importing country but also, 

because of the very nature of the materials, in other countries as well. 

For example, if improperly handled, hazardous wastes could enter the 

air Or water supply and from there contaminate the proximate and 

perhaps the world environment. Even proper handling is no guarantee 

of sufficient containment of wastes that will be deadly for centuries to

• N o t e : T he text o f the April 11, 1980, m emorandum appears in this volume at p. 568, supra. Ed.

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come. Contamination in the importing country of goods which are 

subsequently exported could be similarly hazardous to other countries. 

It is thus appropriate for our foreign policy to demonstrate our concern 

for the risks attendant to export of hazardous wastes as well as hazardous substances.

Nor do the definitions of the objects of export controls indicate that 

hazardous substances and hazardous wastes should be treated differently. Section 6(a) of the Act authorizes the President to prohibit or 

curtail the exportation of any “goods” in pursuit of foreign policy 

purposes. 50 U.S.C. App. § 2405(a). As defined in § 16(3), “good” 

includes any “article, material, supply or manufactured product.” 50 

U.S.C. App. § 2415(3). Just as we earlier concluded that the breadth of 

this definition indicated that hazardous substances were included, it is 

our opinion that it is broad enough to include hazardous wastes as well.

The difference between hazardous substances and hazardous wastes 

lies not in the foreign policy ramifications of export or in the categories 

of goods subject to control. The only difference is in the export process 

itself. Hazardous substances are exported by sales to the importing 

country, and the sales produce direct revenue just as do sales of 

nonhazardous goods. By contrast, exports of hazardous wastes are not 

directly revenue producing. Instead, the material is exported by payment to the importing country. The language and the legislative history 

of the Export Administration Act, however, reflect congressional concern about revenue production through exports. For example, § 2(2) of 

the Act states the finding by Congress that

“[e]xports contribute significantly to the economic wellbeing of the United States and the stability of the world 

economy by increasing employment and production in the 

United States, and by strengthening trade balance and the 

value of the United States dollar, thereby reducing inflation. The restriction of exports from the United States can 

have serious adverse effects on the balance of payments 

and on domestic employment. . . .”

50 U.S.C. App. § 2401(2).

The 1979 conference report explained: “[A] large trade deficit weakens the value of the dollar, intensifies inflation, and heightens world 

economic instability; that poor export performance contributes to the 

trade deficit; . . . [and] it is in the national interest to place a high 

priority on exports. . . .” 1979 Conference Report at 43. Because of 

the procedure of exporting wastes by payments, the question arises 

whether the Act applies to those exports which are not directly revenue producing.

The Act itself does not define “export.” The broad purposes of the 

Act, however, suggest that a restrictive interpretation would not be 

appropriate. It may be that exports of hazardous wastes do not directly

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produce revenue by sales. Yet it is clear that shipment is sought because 

of the economic advantage to the exporter, an advantage through less 

costly disposal of waste materials, which would affect the United States 

economy in many of the same ways as does revenue production by 

export. To exclude from the concept of “export” transactions with 

these substantial economic consequences would frustrate the legislative 

desire for a consistent and careful export policy.

Certain of the criteria identified in § 6(b) of the Act, 50 U.S.C. App. 

§ 2405(b), for consideration in imposing export controls are concerned 

with concepts associated with direct revenue production; but this emphasis does not require that the definition of “export” be similarly 

limited. Even to the extent that these criteria might not be strictly 

applicable, as phrased, to the export of hazardous wastes, the variance 

in terminology indicates no intent to limit executive power; for Congress explicitly recognized that not all criteria would be applicable in 

all cases. In our memorandum of April 11, 1980, we said, “[T]his 

provision [§ 6(b)] ‘did not establish criteria to be met but factors to be 

considered, and recognized that the President, having considered them, 

might find one or more of the factors irrelevant to a decision to impose 

or remove controls,’ ” quoting S. Rep. No. 169, 96th Cong., 1st Sess. 8 

(1979). See also 125 Cong. Rec. 19,937 (1979) (Statement of Senator 

Stevenson on introducing S. 737); H.R. Rep. No. 200, 96th Cong., 1st 

Sess. 20 (1979). Thus we find in the Act sufficient flexibility to authorize the President to impose controls on the export of hazardous wastes.

L eo n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

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