RS20106: Interstate Waste Transport: Legislative Issues
James E. McCarthy
Specialist in Environmental Policy
Resources, Science, and Industry Division
Updated June 16, 1999
Summary
This report discusses ten issues raised by proposed
legislation to allow controls on interstate commerce in solid waste. Such legislation has
been considered in every Congress since 1990. Renewed interest has been generated since
late 1998 by developments in New York City, which plans to close its only remaining
landfill in 2001, and by legislative actions in states to which New York's waste may be
shipped as local disposal is phased out. Issues discussed in the report include whether to
presumptively ban new waste shipments, whether to grant authority to states or to local
governments, what types of facilities and what types of waste to include in a bill's
authority, grandfather provisions, freeze and ratchet authority, fees on out-of-state
waste, indirect measures controlling waste imports, whether to include flow control
authority, and the desirability of preconditions versus an unconditional grant of
authority. This report will be updated as developments warrant. For information on current
interstate waste legislation, the reader is referred to CRS Issue Brief IB10002.
Background
Interstate shipment of solid waste -- an issue symbolized
more than a decade ago by the New York garbage barge that could find no state willing to
accept its cargo -- has again reached the front pages of the nation's newspapers. In
recent months, as New York City has begun contracting for future disposal of its waste,
potential recipients, including New Jersey, Pennsylvania, and Virginia, have objected,
starting a rhetorical battle that pits the right of states to protect their environment
against the interstate commerce clause of the Constitution.
Waste management has traditionally been considered a local
matter, but the federal government, specifically the Congress, has a potential role to
play in resolving these controversies for a simple reason: waste and the provision of
waste management services are considered articles of commerce under court interpretations
of the interstate commerce clause, Article I, Section 8, clause 3 of the Constitution.
State and local governments wishing to place restrictions on interstate shipment of solid
waste (that they do not place on waste generated within the state) may do so only if
authorized by the Congress.(1)
Until now, the Congress has not granted such authorization,
and the courts have repeatedly struck down state restrictions. Whether the 106th Congress
will authorize such restrictions remains to be seen. Since November 1998, however, some
have suggested that the increased publicity surrounding interstate waste shipment and
changes in the congressional landscape as a result of recent retirements may lead the 106th
Congress to act where previous Congresses have not.
Numerous models exist for what such legislation might
contain. In both the 103rd and 104th Congress, the Senate adopted
bills to give Governors authority to prohibit new shipments of waste to specific
facilities if requested by the affected local government. The bills would also have
allowed a freeze on imports at the level reached in a designated previous year, and would
have provided some relief to importing states by allowing them to gradually ratchet down
imports in future years. In the 103rd Congress, the House passed legislation
that gave authority to restrict future waste shipments to local governments, rather than
the state. None of these bills was enacted, however, in part because of differences in the
bills' structures on which the two chambers could not agree.
The remainder of this report discusses key differences in
the bills considered to date and a few issues that most of the legislation introduced in
earlier Congresses did not address. Ten issues are discussed. For information on current
interstate waste legislation, the reader is referred to CRS Issue Brief IB10002.
Issues
1. Should there be a presumptive ban on new waste
shipments? A basic difference between House and Senate bills on interstate waste
in previous Congresses has concerned the structure of the authority they would grant. In
past Senate bills, generally, states would have been allowed to prohibit new waste
shipments if the Governor acted to impose such a prohibition. In most House bills, on the
other hand, there has been what is called a "presumptive ban": new shipments
would be prohibited unless a local government acted to allow them. (In the 106th
Congress, most bills -- Senate and House -- include a presumptive ban.)
Whether enacted legislation contains a presumptive ban
could affect the political pressures felt by state and local governments. In most cases,
it is easier to defend the status quo than to bring about action to change it. By
establishing a presumptive ban, an interstate waste bill would make prohibition the status
quo, placing the onus and focusing attention on those who wish to import waste. Such
legislation might be more likely to result in future restrictions on waste imports than
would a bill that presumed to allow continued shipments, requiring action by the Governor
or local government to stop them.
2. State or local primacy? A second
structural difference in interstate waste bills concerns the role of state and local
governments. In bills that have passed the Senate, Governors have had the authority to
restrict new waste shipments. Local governments could request the Governor to restrict
imports, but could not take action themselves. In bills considered by the House, on the
other hand, local governments would have played the central role, deciding whether or not
to allow new interstate waste shipments at local facilities.
The latter approach places the decision-making authority
closer to the location of potential impacts, generally considered a desirable factor. At
the same time, depending on how one defines "affected local government," it may
exclude from the decision-making process nearby jurisdictions that could be affected by
truck traffic, air emissions, surface water and ground water pollution, etc., but which
are not the jurisdiction in which the facility is actually located.
Placing authority at the state level means that the
decision is not made by those most directly affected by potential impacts. On the other
hand, the state as a whole may wish to make its decision in the context of broader policy
considerations of less interest to the most directly affected local government. The state
may be both an importer and exporter of waste, for example, and therefore may wish to
encourage others to keep their facilities open to its exports. It is likely to have other
reasons to foster cooperation with neighboring states, and may view waste imports as a way
to strengthen its hand in negotiating approaches to regional issues.
3. Just landfills, or other facilities as well?
Interstate waste legislation has generally been written to allow restrictions at landfills
or, in some cases, at disposal facilities -- a category that could include incinerators.
Absent from both of these categories are transfer stations. Transfer stations are
facilities that receive waste from collection trucks, compact it, bale it, and load it on
long haul trucks for disposal elsewhere. In multi-state metropolitan areas (notably, the
Connecticut and New Jersey portions of the New York City area), in Washington, D.C. (whose
transfer stations receive substantial amounts of waste from Maryland), and potentially in
such areas as Philadelphia, Chicago, St. Louis, and Kansas City, there may be concerns
about out-of-state waste being shipped to transfer stations. None of the bills introduced
in previous Congresses addressed this issue.
Transfer stations are not regulated by U.S. EPA, and they
are subject to varying degrees of state and local regulation. Lack of regulation is
believed to motivate interstate shipment to transfer stations in some cases. There is also
an "environmental justice" component to this issue, with some alleging that the
facilities are disproportionately located in poorer, often minority areas.
4. What types of waste would be subject to
restrictions? Most interstate waste bills have been written to apply to municipal
solid waste (MSW). MSW is not a term currently defined in the Solid Waste Disposal Act,
however, so the types of waste covered are those specified in the definition given this
term (or such other term that may be used) by a bill's drafters. The definitions used vary
from bill to bill; in many cases, however, they do not include construction and demolition
waste, medical waste, nonhazardous industrial waste, and other wastes that are shipped
across state lines for disposal, in many cases at the same facilities that accept MSW.
The amount of such waste, while generally less than the
amount of MSW, can be substantial. For example, Pennsylvania, the nation's leading waste
importer, received 7,241,924 tons of MSW in 1998. It also imported more than 2.5 million
tons of other nonhazardous waste (industrial waste, construction and demolition (C&D)
waste, ash, and sludge). Virginia and Indiana, which have ranked second and third in
imports, reported non-MSW imports on the order of 15% and 27%, respectively, of their MSW
imports in 1997.
Other states, notably Maryland and Utah, receive little
MSW, but do import large amounts of other waste. In Maryland's case, the state imported
489,000 tons of C&D waste in 1997, while not receiving any substantial amount of MSW.
Utah imported 342,000 tons of non-hazardous industrial waste, but only 3,511 tons of MSW.
In general, the states don't track other waste imports as
comprehensively as they do MSW. The data that are available, however, suggest that
substantial amounts of such waste cross state lines for disposal.
5. What should be grandfathered? Almost
all of the interstate waste bills that Congress has considered have provided sweeping
grandfather provisions, exempting from restrictions the amount of waste shipped to
out-of-state facilities in a given year (1993 in many recent bills), and exempting
facilities that have negotiated what are called "host community agreements" with
affected local governments.
There are no hard data on the effects of such grandfather
provisions, but they are likely to be significant. According to industry or state sources,
all of the large landfills importing waste to Virginia have host community agreements as
do most of those in Pennsylvania. Exempting such facilities from the authority provided by
interstate waste legislation would mean that Virginia and Pennsylvania might receive
little or no new authority to restrict waste imports. In fact, imports might continue to
rise, unless the host community agreements have placed limits on the amount of
out-of-state waste a facility can receive.
On the other hand, the degree to which this exemption would
function might depend on how the term "host community agreement" is defined. In
some bills, a host community agreement would be required to "specifically
authorize" the receipt of MSW generated out of state to be eligible for the
exemption. It is not clear whether all or most such agreements do so.
Most bills also exempt from controls amounts of waste not
covered by host community agreements that were imported at facilities in a specified year
prior to enactment. In the 104th and 105th Congresses, this year was
generally specified as 1993: thus, if Facility A imported 100,000 tons of MSW from out of
state in 1993, it could continue to import that amount annually under this exemption.
Waste imports have fluctuated substantially over the years,
particularly when observed from the perspective of individual facilities. Thus, the choice
of year is significant. Overall, waste imports have grown each year since CRS and waste
industry sources began tracking data in 1990(2);
the choice of an earlier year grandfathers a smaller amount of waste, therefore, than
would the choice of a more recent year. Further, if a bill requires that the amount of
imports "be in such documented form as will result in criminal penalties under State
law in case of false or misleading information," as some bills would do, the scope of
the grandfather is likely to be further restricted.
6. Should grandfathered shipments be
"frozen" or "ratcheted" down? If the grandfather provisions
of most interstate waste legislation would prohibit the largest importing states from
restricting imports, the bills could provide other mechanisms of relief to such states. A
common method in recent bills has been the provision of "freeze" or
"ratchet" authority, which would allow major importing states to prevent further
increases or to gradually reduce total imports. Such authority has been structured several
different ways. In many cases, it would not restrict imports at facilities covered by host
community agreements, leaving a major exception to any presumed import ceiling. In other
cases, the authority has been structured to set limits at the state level; this raises the
question of how a state-wide quota would be distributed among a state's facilities.
7. Should importing states be allowed to charge
fees on out-of-state waste? While most proposed authority over interstate
shipment of waste has focused on authority to block shipments or impose tonnage limits,
the imposition of fees offers another means of affecting the level of imports. This
method, when applied discriminatorily to out-of-state waste, has also been prohibited by
court interpretations of the commerce clause, but like the other measures discussed in
this report, it could be authorized by Congress. Whether to allow discriminatory fees on
out-of-state waste and whether to limit or impose conditions on such fees are questions
Congress might consider.
8. Should the Congress authorize the use of
indirect measures to limit imports? As states have searched for tools to
constitutionally limit imports of waste, many states have developed indirect approaches --
most of which have also been overturned when challenged. Such approaches include granting
local governments authority to limit landfill capacity, the imposition of a needs
assessment demonstrating the need for new capacity before new or expanded facilities can
be approved, or the application of stringent requirements (e.g., the separation of
recyclables) before waste can be accepted for disposal. Whether Congress wishes to confer
commerce clause immunity for such measures is another potential issue in the interstate
waste debate.
9. Should interstate waste legislation also address
flow control? Whether state and local governments can designate where privately
collected waste must be disposed (through what are called "flow
control" laws) has also been the subject of court challenges. In C & A
Carbone v. Clarkstown,(3)
the Supreme Court held that flow control also violates the interstate commerce clause.
Many see the flow control and interstate waste issues as
intertwined. In its efforts to provide adequate in-state disposal capacity, for example,
New Jersey erected one of the most comprehensive flow control requirements in the nation.
The state was divided into 21 waste districts, each of which was given authority over
waste generated within its boundaries and was required to provide disposal capacity. When
flow control was overturned, much of this waste fled the state for less expensive disposal
facilities elsewhere. Local governments and waste authorities in New Jersey were left to
scramble for new sources of revenue to pay for facilities that were now larger than needed
to address the remaining waste stream.
To allow waste importing states to prevent incoming
shipments without at the same time providing relief to waste exporters is viewed as unfair
by many of these local governments. If flow control is authorized, however, a large number
of subsidiary questions arise, including whether all the former flow control arrangements
would simply be reinstated, whether new facilities or programs would be eligible to use
such authority, and whether the authority should expire at some date.
10. Simple or complex legislation? The
last question is the most basic one. Should Congress simply authorize state or local
governments to impose restrictions on interstate commerce in waste, without setting
conditions on the use of such authority? Or should it delve into the details of a set of
preconditions implied by most of the first nine questions?
Nothing in the Constitution requires preconditions. To
forego them would greatly simplify the task of drafting legislation and would allow the
states to use the tools they see as appropriate, whether numerical limits, fees, planning
requirements, capacity limitations, waste management requirements, or no measures at all.
On the other hand, to give states or localities a
"blank check" may establish irresistible pressures to act, perhaps resulting in
the imposition of extreme measures that would cause harm to neighboring states and result
in the balkanization of what is increasingly a regional system of waste management
facilities.
It is Congress's need to balance such competing interests
that has made the enactment of legislation so difficult. Whether the conditions now exist
to overcome these difficulties remains to be seen.
Footnotes
1. (back)In
City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) and subsequent cases, the
Supreme Court has made clear that its interpretation of the interstate commerce clause is
not meant to interfere with a state's right to protect its environment. Rather, the court
found that this goal cannot be achieved by discriminating against out-of-state waste.
Restrictions on waste disposal that apply equally to waste generated within and outside
the state are likely to be held constitutional.
2. (back)For
information on the amount of waste imports by state, see CRS Report 98-689, Interstate
Shipment of Municipal Solid Waste: 1998 Update.
3. (back)511
U.S. 383 (1994).
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