21 ELR 10085 | Environmental Law Reporter | copyright © 1991 | All rights reserved

Editors' Summary: Reauthorization of RCRA will be a top priority for the 102nd Congress. Among the key issues will be reforming U.S. hazardous waste export controls and making them consistent with the Basel Convention on the Transboundary Movement of Hazardous Waste and Their Disposal. A bill to achieve these goals, the Waste Export Control Act (WECA), was extensively debated in the 101st Congress and is expected to be reintroduced in the 102nd Congress as part of the RCRA reauthorization package. This Article reviews existing U.S. controls on hazardous waste exports and the scope of the U.S. exports to Canada, Mexico, and developing countries. The author also analyzes the provisions of WECA, including the wastes it covers, the Act's effect on bilateral agreements with Canada and Mexico, its permit system, and its treatment standards.Codifying Basel Convention Obligations Into U.S. Law: The Waste Export Control Act

Mr. Mounteer is an associate with Keller & Heckman, a law firm in Washington, D.C. The author wishes to thank Kathy Lyle for her research assistance.

[21 ELR 10085]

We have a moral responsibility for the waste we generate from the cradle to the grave. That responsibility does not end simply because our pollution crosses the border. — Representative Howard Wolpe¹

It would be utterly irresponsible and hypocritical for the United States to export its wastes to other countries with environmental standards that are less strict than ours. This would be the equivalent of saying, "What is good enough for you is not good enough for us." I find this intolerable. — Representative Tom Luken²

International concern over the potentially adverse environmental consequences of transboundary movements of hazardous wastes coalesced in the adoption of the Basel Convention.³ Congressmen eager to reform existing U.S. waste export controls⁴ and to make those controls consistent with the Basel Convention began hearings before the Convention's final adoption.⁵ Those hearings led to introduction of an initial bill.⁶ Additional hearings⁷ led to the introduction of compromise legislation.⁸ That legislation, the Waste Export and Control Act (WECA), was considered during comprehensive hearings on reauthorizing the Resource Conservation and Recovery Act (RCRA).⁹

WECA would embrace wastes not subject to the current notification and consent procedures governing U.S. waste exports¹⁰ and would replace the existing procedures with a bilateral agreement and permit system.¹¹ WECA would impose treatment standards "no less strict than" U.S. standards on foreign facilities that accept U.S. waste,¹² as well as require renegotiation of existing U.S. bilateral agreements with Canada and Mexico to incorporate the "no less strict than" standard.¹³ WECA would also impose cleanup liability on waste exporters¹⁴ and [21 ELR 10086] financial assurance requirements on foreign waste management facilities,¹⁵ guarantee the Environmental Protection Agency (EPA) access to foreign facilities,¹⁶ and require waste exporters to describe their waste minimization efforts.¹⁷ After reviewing existing controls on U.S. waste exports and the extent of U.S. trade, this Article considers each of these issues.

Background on U.S. Waste Exports

Existing U.S. Controls

RCRA § 3017¹⁸ establishes the process by which U.S. hazardous waste is lawfully exported. Under that process, the exporter submits to EPA a description of the wastes (type and quantity) it intends to export. The U.S. Department of State must then relay the information submitted to EPA, along with a description of how the waste would be managed in the United States, to the government of the importing country for its consent or objection.¹⁹

One of WECA's principal sponsors criticized EPA's role under RCRA § 3017 as being "passive,"²⁰ because the Agency "provides no conclusions regarding the adequacy of the exporter's proposal, nor a recommendation on whether the proposal should be accepted."²¹ An EPA inspector general's report on EPA's waste export control program revealed, among other shortcomings, that "exporters have given virtually meaningless descriptions of how hazardous wastes should be treated, stored, or disposed of in the receiving country."²² But the current waste export control program's most significant shortcoming has nothing to do with EPA's administration of the program. Rather, it stems from RCRA § 3017's failure to "authorize EPA to take any action to stop a shipment to which consent has been given, even where EPA has reason to believe that the waste will not be managed in an environmentally sound manner."²³ Representative Luken concluded that waste export control under RCRA § 3017 was "a lick and a stamp and nothing more."²⁴

Extent of Trade and Incentives for Increased Trade

Only one percent of the hazardous waste produced in the United States each year is exported.²⁵ Canada and Mexico receive 90 percent of this exported waste.²⁶ The only U.S. hazardous waste exported for disposal goes to Finland.²⁷ Nevertheless, Congress regards waste exports with alarm.²⁸ As a principal author of the original legislative proposal²⁹ explained:

Although our waste exports currently represent only a small portion of all the wastes generated in this country, this fact provides little comfort to a nation which may find itself [21 ELR 10087] forced to cope with substances it has little technical or financial capability to handle. This is particularly true if the receiving nation feels it has been misled or underinformed about the true nature of the exported waste and the controls necessary for proper handling.³⁰

There has been much speculation about the circumstances that might cause the quantity of waste exports to increase.³¹ One of WECA's principal authors,³² a high-ranking EPA official,³³ representatives of two environmental groups,³⁴ and a domestic waste handler³⁵ all cited the more stringent regulatory standards for waste storage and disposal (especially the new land disposal restrictions (LDRs), which impose pretreatment standards for land disposal and minimum technology requirements for landfills and surface impoundments) and their impact on waste management costs.³⁶ It has also been suggested that U.S. waste generators are exporting their hazardous waste to avoid liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund),³⁷ but waste industry representatives refute that suggestion.³⁸

Waste Trade With Canada

Eighty-five percent of all U.S. hazardous waste exports are destined for Canada.³⁹ A bilateral agreement between the United States and Canada governs those exports.⁴⁰ The agreement is in force until November 8, 1991, and will automatically be renewed unless one of the parties gives written notice of its intent to terminate it.⁴¹ Proponents of waste export control reform complain that "we now have an untenable situation, where United States waste is managed in a potentially less environmentally sound way on the Canadian side of the Great Lakes than it is on our side,"⁴² and that Canada is "dumping in unlined fills."⁴³ The principal target of these complaints must be the two Canadian facilities that receive 80 percent⁴⁴ of U.S. hazardous waste exported to Canada.⁴⁵ The permitting and waste management practices of those two facilities were reviewed in detail during congressional hearings.⁴⁶ According [21 ELR 10088] to representatives of Canadian facilities, waste exports to Canada are not increasing.⁴⁷

Waste Trade With Mexico

No U.S. waste is lawfully being sent to Mexico for disposal, "since Mexico does not allow imports into the country for disposal."⁴⁸ Waste can be sent to Mexico lawfully for recycling pursuant to a bilateral agreement between the United States and Mexico.⁴⁹ That agreement continues to be in force indefinitely, unless terminated by one of the parties.⁵⁰ Pursuant to the U.S.-Mexico Bilateral Agreement, six member companies of the Steel Manufacturers Association (SMA) send 50,000 tons of electric arc furnace (EAF) dust (RCRA hazardous waste code K061) annually to the Zinc National facility in Monterrey, Mexico.⁵¹ There, it is subject to high-temperature metal recovery reportedly consistent with the LDR "best demonstrated available technology" (BDAT) for this sort of waste.⁵² Despite its compliance with the LDR treatment standard, SMA representatives claimed that Zinc National could not comply with the full range of RCRA requirements.⁵³

Waste Trade With Developing Countries

Only a small portion of U.S. hazardous wastes are exported to developing countries, less than five percent of the 160,000 tons of total annual exports. And yet, instances in which wastes were exported to developing countries was the topic of a substantial portion of the congressional hearings on waste export control reform.⁵⁴ "We have seen increasing attempts to turn unsuspecting Third World countries into hazardous waste pits and garbage dumps. In some cases, unscrupulous operators have searched the world for places to abandon their hazardous waste, safe from reach of their own environmental laws."⁵⁵ Congressmen expressed concern that countries in desperate need of foreign exchange would consent to waste imports without regard for environmental or health concerns.⁵⁶ The Administration admitted that the situation was ripe for a foreign policy disaster.⁵⁷

An early congressional hearing on waste export control reform examined the much publicized overseas disposal of Philadelphia's municipal incinerator ash (probably a nonhazardous waste under RCRA).⁵⁸ That episode led one congressman to raise the specter of "toxic terrorism"⁵⁹ and to conjure images of children playing on mounds of Philadelphia [21 ELR 10089] incinerator ash on Kassa Island, in Guinea.⁶⁰ Other schemes that drew congressional attention included a plan to ship millions of tons of compacted garbage bales to the Republic of the Marshall Islands to increase the land area of the Republic's main atoll fivefold over 20 years,⁶¹ as well as plans to dispose of wastes in the Congo,⁶² Nigeria,⁶³ Guatemala,⁶⁴ and South Africa.⁶⁵

Wastes Covered

RCRA § 3017 applies only to exports of RCRA "hazardous wastes."⁶⁶ As a result, EPA cannot "prevent an export in cases where a state has objected to receipt of nonhazardous waste"⁶⁷ as, for example, household waste or municipal incinerator ash.⁶⁸ Representative Conyers cited this discrepancy as the reason the plan to dump billions of tons of municipal trash in the Marshall Islands could not be halted.⁶⁹ It was also the reason the shipment of Philadelphia's municipal incineration ash escaped regulation under RCRA § 3017.⁷⁰

In contrast to RCRA § 3017's limitation, the Basel Convention applies to both "hazardous wastes" and "other wastes."⁷¹ The Convention defines⁷² "hazardous wastes" to include the following:

(1) wastes that belong to any category listed in Annex I to the Convention⁷³ unless those wastes do not possess any of the characteristics contained in Annex III to the Convention⁷⁴ or

(2) wastes that are "defined as, or are considered to be, hazardous waste by the domestic legislation of the Party of export, import, or transit."⁷⁵

The Convention defines "other wastes" as "wastes that belong to any category contained in Annex II" to the Convention,⁷⁶ which contains only twocategories: (1) wastes collected from households and (2) residues arising from the incineration of household wastes.

Following the lead of the Basel Convention while maintaining consistency with the RCRA framework, WECA would embrace all "solid waste" as defined in RCRA § 1004(27)⁷⁷ with two exceptions. The first exception applies to waste paper, glass cullet, metal, or plastic that meets the following three criteria:

(1) it has been separated from solid waste before export;

(2) it is exported for incorporation into new products with recycled content; and

(3) it is not a hazardous waste listed or identified under RCRA § 3001.⁷⁸

The second exception applies to recovered material, other than waste paper, glass cullet, metal, or plastic, which meets the same three criteria. To take advantage of the second exception, however, the potential exporter would have to apply to EPA for a determination that the three criteria were met.⁷⁹ Representative Wolpe indicated that once the "definitional issue" of recycling was resolved in the overall context of RCRA reauthorization, a consistent definition would be incorporated in WECA.⁸⁰

[21 ELR 10090]

Prior Informed Consent — Bilateral Agreements

For "transboundary movements"⁸¹ of wastes between parties to the Basel Convention, the waste exporting state may not allow the movement to begin until it has received written consent from the waste importing country.⁸² As discussed above, RCRA § 3017 already provides a method of obtaining the consent of the importing country.⁸³ WECA would replace the existing method with a prohibition on waste exports unless the United States has entered into a bilateral agreement with the importing country.⁸⁴ WECA specifies the terms of the bilateral agreements that the U.S. government must negotiate with the government of the importing country before U.S. waste may be exported to such country.⁸⁵ This approach would be consistent with the Basel Convention, which allows parties to enter into bilateral, multilateral, or regional agreements governing transboundary movements of hazardouswastes with both other parties and nonparties, "provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention."⁸⁶

One of the provisions WECA would require to be contained in bilateral agreements would be a mechanism for "obtaining the consent of the government of the receiving country to accept any solid waste shipment."⁸⁷ The Basel Convention provides for a means of "general notification" when "hazardous wastes or other wastes having the same physical and chemical characteristics are shipped regularly to the same disposer via the same customs office of exit."⁸⁸ In a similar manner, the U.S.-Canada Bilateral Agreement contains an "implied consent" provision, which provides that if Canada does object within 30 days of having received notification of a planned hazardous waste shipment, the shipment can proceed.⁸⁹ The U.S.-Mexico Bilateral Agreement contains no such provision but rather allows the Mexican government 45 days from receiving notification to indicate its consent, with or without conditions, or its objection.⁹⁰

WECA does not provide for obtaining the consent of transit countries through whose territories waste is transported en route to its ultimate destination. Such consent, however, is required before a transboundary movement can occur under the Basel Convention,⁹¹ a requirement that was apparently imposed over the United States' objection.⁹² The U.S.-Canada Bilateral Agreement provides that the parties shall notify⁹³ one another if a transboundary movement makes a party a "country of transit"⁹⁴ but does not require the consent of the "transit" country. In contrast, the U.S.-Mexico Bilateral Agreement expressly exempts situations in which one or the other party is simply a country of "transit,"⁹⁵ so that not even the notification requirement is triggered.

Permits

The Basel Convention obligates parties to "take appropriate legal, administrative, and other measures to implement and enforce the provisions of" the Convention⁹⁶ and to "prohibit all persons under its national jurisdiction from transporting or disposing of hazardous wastes or other wastes unless such persons are authorized or allowed to perform such types of operations.⁹⁷ WECA would respond [21 ELR 10091] to these obligations by imposing a waste export permit requirement.

WECA would repeal RCRA § 3017's waste export notification and consent procedure⁹⁸ and replace it with a mandatory permit system.⁹⁹ WECA specifies the information that a permit application would have to contain,¹⁰⁰ including the following:

(1) the "names and addresses of all persons on whose behalf of [sic] the applicant intends to export waste (including persons who are the generators of such waste);"¹⁰¹

(2) a "detailed description of the manner in which such waste will be transported to and treated, stored, or disposed of in each receiving country;"¹⁰²

(3) an identification of the applicant, including the names, addresses and social security numbers of officers, directors, partners, and key employees, or, if the applicant is a publicly traded corporation, the names, addresses, and social security numbers of all those holding five percent interests in the corporation;¹⁰³

(4) a "description of the experience and credentials in, including any past or present permits, licenses, or other authorization for, the collection, transportation, treatment, storage, or disposal of solid waste or hazardous waste possessed by the applicant, or, if the applicant is a business concern, by the key employees, officers, directors, or partners thereof;"¹⁰⁴ and

(5) any other information EPA "may require that relates to the competency, reliability, or good character of the applicant."¹⁰⁵

For EPA to issue a permit, WECA would require that EPA determine the receiving facility will manage the waste in a manner that is "no less strict than" if the waste were managed in the United States¹⁰⁶ and "the exporter and the owner and operator of the receiving facility have exhibited sufficientreliability, expertise, and competency to manage the waste, given the potential for harm to human health and the environment which could result from irresponsible operations."¹⁰⁷ Representative Tauke suggested that the requirement that EPA make this second finding would necessitate an additional bureaucracy, the need for which he questioned in light of the limited amount of waste going to places other than Canada.¹⁰⁸

Representatives of both the Administration and industry opposed a new permit requirement. The Administration opposed WECA's permitting procedure because "environmentally sound management" could be achieved on a country-by-country basis by negotiating bilateral agreements with U.S. waste-trading partners.¹⁰⁹

We believe that the permitting requirement in the bill is duplicative in the sense that if we do the right kind of job in negotiating a State-to-State agreement, it should be possible with a relatively stream-lined notice and consent procedure, shipment-by-shipment, to build in the kinds of requirements with respect to protection of the environment that are necessary without going through a process requiring a shipment-by-shipment permit.¹¹⁰

Industry representatives opposed a new permitting process because EPA would not be able to process permit applications within one year,¹¹¹ which would prohibit states from including foreign capacity in their capacity assurances under CERCLA § 104(c)(9).¹¹² In apparent response to these criticisms, Representative Wolpe indicated that WECA would not require permits for individual shipments of waste but would be issued to an exporter for a period of up to five years and the "principal focus of review in the permit process would be on the facilities to which the waste is exported."¹¹³ Given the few foreign facilities worldwide receiving U.S. wastes, Representative Wolpe did not foresee extraordinary delay.¹¹⁴

WECA would also require a two-part user fee system to include a permit application fee "sufficient to defray fully the cost of processing and issuance of any permit"¹¹⁵ and a waste export permit fee "sufficient to defray fully the expenses of the Administrator in overseeing permit compliance and administration."¹¹⁶ A spokesman for Canadian waste handlers opposed user fees on the basis that they "might be considered to be a discriminatory, non-tariff trade barrier."¹¹⁷

[21 ELR 10092]

Treatment Standards

Basel Convention — "Environmentally Sound Management"

The Basel Convention establishes a number of general principles to govern the transboundary movement of wastes. First and foremost, the Convention requires that parties "[e]nsure that the transboundary movement of hazardous wastes and other wastes is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes, and is conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement."¹¹⁸ In accordance with this principle, "each Party shall require that hazardous wastes or other wastes, to be exported, are managed in an environmentally sound manner in the State of import or elsewhere."¹¹⁹

The Basel Convention promises "technical guidance" as to what constitutes "environmentally sound management" at the parties' first meeting.¹²⁰ Administration officials have stated their willingness to "actively participate in that kind of effort."¹²¹ But at least one senior Administration official suspected that the Basel Convention guidelines will "give guidance … and interpretation and criteria for how" to make the judgment on environmental soundness but will not constitute "an absolutely detailed, harmonized system of hazardous waste management standards…."¹²²

In addition to the general principle of "environmentally sound management," the Basel Convention establishes other principles to govern transboundary waste movements. The Convention requires that parties limit such movements to situations in which one of the following three criteria are satisfied:

(a) The State of export does not have the technical capacity and the necessary facilities, capacity, or suitable disposal sites in order to dispose of the wastes in question in an environmentally sound and efficient manner; or

(b) The wastes in question are required as a raw material for recycling or recovery industries in the State of import; or

(c) The transboundary movement in question is in accordance with other criteria to be decided by the Parties, provided those criteria do not differ from the objectives of this Convention.¹²³

In addition, the Convention provides the obligation of waste-generating states to ensure their wastes' environmentally sound management "may not under any circumstances be transferred to the States of import or transit."¹²⁴

It should be noted that during negotiations over terms of the Convention, the United States encouraged the rejection of a more specific standard: "no less environmentally sound" than the exporting state's domestic standards.¹²⁵ "U.S. negotiators complained that since they have the highest environmental standards in the world such a provision would force a de facto ban on waste exports from the United States."¹²⁶ Administration officials also explained that if the "no less environmentally sound" language were used, "any country with no standard could … export against their standard, which is [a] no or low standard. It doesn't help the developing countries. It doesn't help any of us."¹²⁷

WECA — "No Less Strict Than" U.S. Practice

WECA's sponsors believe that the Basel Convention is "so loose and nebulous with regard to standards" that it compels Congress to enact explanatory legislation.¹²⁸ In essence, then, WECA can be seen as a means to establish clear standards by which to determine "whether [U.S.] waste exports are being managed in an 'environmentally sound' fashion" as required by the Convention.¹²⁹ WECA would accomplish that task by requiring that bilateral agreements allowing waste exports from the U.S. to contain a mechanism

to provide the United States with information necessary to ensure that transportation, treatment, storage, and disposal of the solid waste will be conducted in a manner which is protective of human health and the environment and which is no less strict than that which would be required by this Act if the solid waste were managed in the United States.¹³⁰

In addition, WECA would require that each application for a permit to export waste contain information demonstrating that the exported waste will be managed in a manner "no less strict than" would be required if it were managed in the United States¹³¹ WECA, then, would incorporate into U.S. domestic law a standard comparable [21 ELR 10093] to that which U.S. negotiators successfully removed from the Basel Convention.

Sponsors of WECA repeatedly explained how they envisioned EPA putting the "no less strict than" standard into practice. Representative Wolpe characterized the goal of the "no less strict than" standard in numerous slightly different (yet fairly consistent) ways to be an equivalent level of protection of human health and the environment.¹³² Representative Synar identified a goal of eliminating "a dual set of standards which afford less protection to citizens of other nations than we demand for ourselves."¹³³ Or, in other words, "any facility that accepts our wastes, regardless of its location, will conform to the standards that we have determined to be minimally necessary to guarantee safe disposal and protect the health and safety of our own citizens."¹³⁴ Representative Gejdenson identified essentially the same goal, albeit in somewhat different terms: to ensure that there are no "more pollutants allowed into the environment by the other country's process than by the one that material would have to be processed in the United States."¹³⁵ As justification for adopting the "no less strict than" standard, WECA's authors cited Article 4, Paragraph 10 of the Basel Convention, which prohibits the transfer of responsibility for ensuring the environmentally sound management of waste to the importing state.¹³⁶

WECA's "no less strict than" standard belies a chauvinistic favoritism of U.S. waste management methods,¹³⁷ a bias which, obviously enough, was not shared by everyone.¹³⁸ One of WECA's principal authors expressed clear favoritism for the U.S. approach, even over the approach of the United States' prime waste trading partner, Canada.¹³⁹ Nevertheless, WECA's sponsors denied charges of chauvinism and went to great lengths to make clear that they did not intend the "no less strict than" standard to require a line-by-line application of RCRA.

There is nothing in the legislation requiring line-by-line adherence to RCRA. It requires wastes to be handled in a manner simply that is no less strict than what is required in the United States. Our concern is end results. So EPA would be required to make technical judgments [as to what is no less strict than U.S. standards].¹⁴⁰

The number of times Rep. Wolpe had to repeat this assurance indicates the skepticism with which it was received.¹⁴¹ Many witnesses before congressional panels, including [21 ELR 10094] EPA officials, opposed the "no less strict than" standard. Most argued that the standard would result in a line-by-line application of RCRA standards despite the sponsors' assurances to the contrary.¹⁴² Some believed that result was inevitable, because a line-by-line comparison was the only model with which EPA was familiar. They identified the model by which EPA authorizes¹⁴³ state hazardous waste programs as the Agency's inevitable approach to implementing the "no less strict than standard."¹⁴⁴ Others believed that the line-by-line comparison was inevitable because any other comparison would be technically impossible.¹⁴⁵

The following questions illustrate the difficulty of this type of assessment. Are groundwater monitoring requirements which require monitoring of fewer constituents but require more frequent testing "as strict as" RCRA? Is use of a different model for assessing risks, or use of different statistical protocols or analytical methods "as strict as" RCRA? In the regulation of emissions from the incineration of hazardous wastes, we place emissions limits on indicator pollutants so as to control the release of several constituents. Is a system which places instead a control on different indicators, or on, for example, one metal as a means to control other metals, "as strict as" RCRA?¹⁴⁶

The Deputy Director of EPA's Office of Solid Waste concluded that the "no less strict than" standard would be tantamount to requiring EPA to permit foreign waste management facilities.¹⁴⁷

Finally, Administration officials testified that other regulatory regimes could be equally effective as RCRA and should not be supplanted by RCRA standards, which might be inappropriate in those contexts.¹⁴⁸

Some of the provisions in RCRA may not be appropriate in another country's regulatory scheme. For example, the treatment standards in the RCRA land disposal restrictions are technology based. In other words, they require treatment to levels that can be achieved using the best demonstrated available technology regardless of whether treatment to that level is necessary to protect human health or the environment. Selection of a technology-based system was a U.S. policy choice. We question whether we should require that choice on a foreign country which instead utilizes another approach such as a risk-based system for controlling land disposal to protect human health and the environment.¹⁴⁹

In contrast, a representative of a domestic waste management firm suggested that some requirements, such as double liners and land disposal restriction treatment standards for certain kinds of metals, should be imposed on foreign facilities regardless of the regulatory context in which those facilities operate.¹⁵⁰

Infringing on Waste-Importing Countries' Sovereignty

Some hearing witnesses complained that the "no less strict than" standard represented an infringement on the sovereignty of the United States' waste-trading partners.¹⁵¹ Canadian Ambassador Burney stated the Canadian government's belief that U.S. waste export legislation should "take into account the fact that other countries may have different standards from those in the United States, but which nevertheless ensure that waste is dealt with safely and in an environmentally sound manner" and

ensure that the sovereignty of the receiving country is not inadvertently infringed upon, for example, through calls for inspection of disposal facilities in these countries by officials of the United States. Such a provision would have the effect of extending the application of U.S. law and standards into other countries, and would not take into account the responsibility of the receiving country to ensure that its own standards, enforced by its own officials are respected.¹⁵²

An EPA official also expressed concern "that a prohibition on exports, except where the receiving facility strictly adheres to the extensive RCRA administrative and technical requirements intrudes too much into the sovereignty of other nations."¹⁵³

Proponents of WECA offered three rebuttals to the charge that the legislation infringed on foreign sovereigns' rights. First, they pointed out that the legislation applied to U.S. waste exporters, not to foreign sovereigns.¹⁵⁴ As [21 ELR 10095] Representative Synar explained, "[i]t simply establishes a process for reviewing and regulating a voluntary business transaction between two companies to ensure certain minimum environmental standards are met."¹⁵⁵ Proponents, therefore, drew analogies between WECA and U.S. controls on "high tech" exports to communist countries¹⁵⁶ and requirements that some imports adhere to U.S. specifications.¹⁵⁷

Second, proponents stated that WECA "passes no judgment" on foreign laws but only on foreign facilities that receive U.S. waste.¹⁵⁸ Recognizing that this was the case, Representative Whittaker commented on the difference between such an approach and the Basel Convention's government-to-government approach. He suggested that WECA's government-to-facility approach could be both time-consuming and costly.¹⁵⁹ Representatives Wolpe and Synar responded that the United States was compelled to shoulder this burden under the Basel Convention's requirement that the exporting country not transfer responsibility for "environmentally sound management" to the importing country.¹⁶⁰

Third, proponents argued that to the extent a foreign government might fear intrusions into its sovereign rights,¹⁶¹ it need not enter into a bilateral waste export treaty with the United States and, ultimately, need not accept U.S. waste exports.¹⁶² "Sovereignty is in no way intruded upon if a country agrees in advance to accept the terms of an international agreement."¹⁶³

Alternative Approaches

Both Administration officials and waste handlers suggested alternatives to WECA's "no less strict than" standard. The simplest suggestion would substitute a standard of "equally effective set of preventive controls."¹⁶⁴ The Administration suggested an alternative to ensure "EPA more flexibility in making a determination as to whether the laws, regulations, and practical disposal facilities in a receiving country actually protected the environment under the circumstances present in that country."¹⁶⁵ In essence, the Administration sought authority to negotiate separate bilateral agreements with U.S. waste-trading partners that would establish what constituted "environmentally sound management" on a country-by-country basis.¹⁶⁶ Associate EPA Administrator Hajost identified criteria that the Administration would use in making those country-by-country determinations:

(1) the regulatory program in place in the receiving country to control such wastes, including the inspection and enforcement program;

(2) the technical design of the units at the facilities in the receiving country;

(3) how the facility owner/operator operates the facility on a day-to-day basis; and

(4) the compliance history.¹⁶⁷

Prominent members of the waste management industry agreed with EPA's approach.¹⁶⁸ Congressional sponsors of WECA, however, were not so receptive to the Administration's alternative.¹⁶⁹ Representative Wolpe stated:

We could end up with a series of different bilateral agreements, lots of different standards, ad hoc decisions all over the place that in the end may be more insulting, if the concern is relationship to other countries, than the clear application of a standard that is understood, that is in the law ….¹⁷⁰

Accommodating Existing Bilateral Agreements

WECA — Requiring Canadian and Mexican Bilaterals to Adhere to "No Less Strict Than" Standard

WECA would, as noted above, require negotiation of [21 ELR 10096] bilateral agreements implementing its requirements (i.e., provisions for obtaining prior informed consent, ensuring that the U.S. government can obtain access to inspect foreign facilities, and determining that the foreign facility manages the waste in a manner no less strict than would be required in the United States). WECA would allow existing bilateral agreements between the United States and Canada and Mexico to remain in effect for two years from the date of the legislation's enactment. After the expiration of the two-year period, the existing bilaterals would have to be brought into compliance with the legislation's specific requirements for such agreements, including — most importantly — the "no less strict than" standard.¹⁷¹ The State Department expressed concern over this congressionally mandated amendment to an international agreement that has not been "negotiated or discussed with the countries concerned."¹⁷²

Slattery Amendment — Exempting Canadian and Mexican Bilaterals

At a mark-up session that was scheduled for mid-May 1990 but was indefinitely postponed, Representative Slattery had been expected to offer an amendment to WECA that would exempt waste that is exported pursuant to the Canadian and Mexican bilateral agreements "provided that within twenty-four months from enactment of this Act, such bilateral agreement is consistent with the Basel Convention."¹⁷³ Representative Slattery's amendment was apparently intended to benefit certain steel minimills in Texas that send EAF dust collected from cleaning air emissions to a facility in Mexico.¹⁷⁴ Those minimills send 50,000 tons of such dust per year to a high-temperature recycling facility in Mexico, because of a lack of sufficient recycling capacity in the United States.¹⁷⁵ According to a representative of those minimills, "The Mexico facility could demonstrate equivalency to U.S. operations with respect to the technical operating requirements but it would be impossible to show full compliance with all the administrative and financial requirements of RCRA which include obtaining millions of dollars of insurance, generally not available in Mexico."¹⁷⁶ In addition, the representative urged support of the amendment on the basis that if the EAF dust could not be sent to Mexico for recycling but instead had to be treated by chemical fixation under the LDR BDAT standard, it would result in double or triple (100,000 to 150,000 tons) of waste which would have to be landfilled in the United States.¹⁷⁷

Of course, the Slattery amendment would benefit Canada as well and would presumably result in an approach more like that championed by the Administration.¹⁷⁸ The standard would simply be the Basel Convention's "environmentally sound management"¹⁷⁹ and the Administration would have discretion to determine how that standard would be achieved. WECA's sponsors can be certain to oppose the Slattery amendment on grounds that it would create a dual standard — one for Canada and Mexico and "another for the rest of the world."¹⁸⁰

Cleanup Liability and Financial Assurance

Exporter's Cleanup Liability

The Basel Convention provides no means of imposing liability if there is a release during a transboundary waste movement or during management of the waste in the receiving country. The preamble to the Convention, however, states that "states are responsible for the fulfillment of their international obligations concerning the protection of human health and protection and preservation of the environment, and are liable in accordance with international law."¹⁸¹ In addition, the Convention requires contracting parties to immediately notify one another "whenever it comes to their knowledge" that "an accident occurring during the transboundary movement of hazardous wastes or other wastes or their disposal" might "present risks to human health and the environment in other States."¹⁸² Finally, the Convention provides for cooperation among the contracting parties with "a view to adopting, as soon as practicable, a protocol setting out appropriate rules and procedures in the field of liability and compensation for damages resulting from the transboundary movement and disposal of hazardous wastes and other wastes."¹⁸³

As part of the export permit application, WECA would require evidence from the exporter "which is adequate to ensure that the exporter will be able to pay for costs for which he may be held responsible, including clean-up and liability to third parties, under the laws of the United States or under the laws of the receiving country."¹⁸⁴ This provision is quite different from the rules incorporated in the two existing U.S. bilateral agreements. The U.S.-Canada Bilateral Agreement applies only to damages during the "movement" of waste, "including loading and unloading" [21 ELR 10097] but apparently does not apply to the wastes once they have arrived at their destination.¹⁸⁵ The U.S.-Mexico Bilateral Agreement is not restricted to damages that occur during "movement" but provides that

whenever the hazardous waste … produce[s] damages to public health, property or the environment in the country of import, the competent authorities of the country of export shall take all practicable measures and initiate and carry out all pertinent legal actions that they are legally competent to undertake, so that when applicable in accordance with its national laws and regulations the physical or juridical persons involved:

a) return the hazardous waste … to the country of export;

b) return in as much as practicable the status quo ante of the affected ecosystem;

c) repair, through compensation, the damages caused to persons, property, or the environment.¹⁸⁶

The current WECA liability provision represents a substantial modification of a previous version of the legislation, which would have subjected exporters to CERCLA § 107 liability for releases during waste management in the receiving country.¹⁸⁷ This provision was roundly criticized as, for example, in the following remarks from Associate EPA Administrator Hajost:

We believe it would be inequitable to subject U.S. corporations to liability to a greater extent than foreign corporations. This would appear, at least in our initial interpretation, to be the bill's effect because it allows a foreign country to bring an action under section 107 of CERCLA in the same manner as if such cost or damage were incurred in the United States. The bill, however, does not make it contingent on a country to allow other potentially responsible parties in a foreign country to be joined in the action, nor does it provide that a U.S. party found liable would be able to sue to recover any costs from another party in a foreign jurisdiction.¹⁸⁸

The lack of a right to contribution against foreign potentially responsible parties was raised by a number of industry representatives as well.¹⁸⁹

Despite modification of the liability provision, it still was attacked by industry representatives. Because "there is no requirement that generators of waste destined for management in the United States demonstrate, in advance, evidence of financial responsibility sufficient to pay such costs and damages,"¹⁹⁰ opponents of the requirement argued that they did not "see any reason to make those requirements more stringent for exports to Canada."¹⁹¹

Facility Financial Assurance

The Basel Convention allows states of import or transit that are parties to the Convention to require that transboundary movements be covered by insurance, bond, or other guarantee.¹⁹² As part of an export permit application, WECA would require evidence from the facility operator "which is no less than that which would be required by this Act if the waste were managed in the United States."¹⁹³ It has previously be noted that in Ontario, where the Tricil incineration facility is located, "each disposal site operator [must] collect fees from generators before disposal takes place. These fees are set aside in a reserve fund for each site, to be used if a cleanup of the facility is needed."¹⁹⁴

Access to Facilities

WECA would require that bilateral agreements authorizing waste exports provide "a means for the United States to gain access to treatment, storage, or disposal facilities used for the management of such solid waste in the event the Administrator determines such access is necessary to fulfill the Administrator's responsibilities under this subtitle."¹⁹⁵ In connection with this provision, the Administration again objected to inadvertent infringements on the sovereignty of foreign countries.¹⁹⁶ Representative Wolpe responded to this objection by explaining that there could be no intrusion into the sovereign rights of a foreign country if that country had entered into a bilateral agreement with the United States authorizing such inspections.¹⁹⁷

[21 ELR 10098]

Representative Wolpe also indicated that it was necessary that every bilateral agreement allow for on-site inspection even if the receiving country had its own inspection capability.¹⁹⁸

Waste Minimization

The Basel Convention embraces the goal of waste minimization by requiring parties to take appropriate measures to "[e]nsure that the generation of hazardous wastes and other wastes within it is reduced to a minimum, taking into account social, technological, and economic aspects."¹⁹⁹ WECA would implement this requirement by providing that a waste export permit application contain a "description of the efforts of the generators of the waste proposed to be exported pursuant to the permit to eliminate or minimize waste generation."²⁰⁰ Representative Wolpe characterized this requirement as "a safeguard against U.S. waste generators who might choose to rely on foreign landfill capacities in order to refrain from or delay making the essential technical investments that must be made toward source reduction and recycling."²⁰¹

Conclusion

Shortcomings in EPA's hazardous waste export rules became evident shortly after Congress enacted RCRA § 3017. Congress's failure to authorize EPA to stop exports in instances in which the Agency had reason to believe the exports would not be managed safely was a critical shortcoming. While the lion's share of U.S. hazardous waste exports appear to be soundly managed in Canada and Mexico and, therefore, should not pose any threat to U.S. esteem abroad, Congress has been fascinated by the few episodes in which unscrupulous operators have disposed of U.S. municipal waste and incinerator ash (not subject to the existing waste export rules) in Third World countries. Those few episodes have driven the debate over waste export control reform.

In addition to the well-publicized U.S. waste exports to Third World countries, the Basel Convention compels WECA's expansion of U.S. waste export rules to cover wastes that are considered nonhazardous under RCRA. WECA, however, does not fulfill the United States' Basel Convention obligation to obtain the prior informed consent of transit countries.²⁰²

As its centerpiece, WECA would replace RCRA § 3017's notification and consent procedure with a far more rigorous export permit requirement. The export permit would provide EPA with a powerful tool for ensuring that U.S. waste is managed soundly abroad. Permit applicants would have to demonstrate that the waste would be managed abroad in a manner "not less strict than" if the waste were lawfully managed domestically. With the "no less strict than" standard, WECA's sponsors embrace a standard that U.S. government representatives rejected during negotiation of the Basel Convention.

The "no less strict than" standard has been the focus of criticism during hearings on WECA. The potential difficulty EPA might face in applying the standard is already apparent. Nevertheless, WECA's sponsors seem convinced of their obligation to codify a less nebulousstandard than the Basel Convention's standard of "environmentally sound management." Consistent with that conviction, WECA's sponsors seem skeptical of EPA's proposal to allow the Agency and the State Department to negotiate bilateral agreements on a country-by-country basis. EPA and the State Department suggested they be given such authority with no limits on their discretion except for the Basel Convention standard.

While WECA would require renegotiation of the Canadian and Mexican bilateral agreements, it should (assuming the accuracy of the testimony before the various congressional subcommittees) not stem the flow of U.S. waste to these neighboring countries. If the Canadian and Mexican facilities are as protective of the environment as their proponents claim, they should satisfy the professed goal of WECA's sponsors: to assure that U.S. waste exports are managed so as to provide an equivalent level of protection to human health and the environment as would be provided if those wastes were managed domestically. Assuming the "no less strict than" standard is adopted in the final act, EPA will have the thankless task of determining whether that goal is satisfied. That task will necessarily involve a comparative analysis of Canada's risk-based management approach with RCRA's technology-based approach. Despite EPA's protests, WECA's sponsors seem ready to compel the Agency to make such an analysis.

1. Waste Export Control Act: Hearings on H.R. 3736 Before the Subcomm. on Transportation and Hazardous Materials of the House Comm. on Energy and Commerce, 101st Cong. 2d Sess. 2 (Jan. 24, 1990) (statement of the Hon. Howard Wolpe (D-MI) [hereinafter Wolpe Statement]. For reasons Congressman Wolpe's office has been unable to explain, the text of his prepared statement did not appear in the committee report. Resources Conservation and Recovery Act Reauthorization: Hearings on H.R. 3735, H.R. 3736, and H.R. 3737 Before the Subcomm. on Transportation and Hazardous Material of the House Comm. on Energy and Commerce (Part 1), 101st Cong., 2d Sess. (Jan. 24, 1990) [hereinafter Reauthorization Hearings]. Congressman Wolpe summarized portions of his prepared statement in his opening remarks, id. at 217-18, but those remarks did not cover all matters addressed in his prepared statement.

2. Luken Subcommittee to Hold Hearings on Comprehensive Environmental Bill 2 (Jan. 23, 1990) [news release from Rep. Tom Luken (D-OH)] [hereinafter Luken News Release].

3. Basel Convention on the Transboundary Movements of Hazardous Waste and Their Disposal (UNEP/IG.80/3), opened for signature Mar. 22, 1989 [hereinafter Basel Convention]. The Basel Convention was negotiated under the auspices of the United Nations Environmental Programme (UNEP). As of November 30, 1990, 54 countries had signed the Convention, and four (Jordan, Norway, Saudi Arabia, and Switzerland) had submitted instruments of ratification (or the equivalent). For the United States to adhere to the Convention's waste export control regime, several important changes to domestic law will have to be made. See generally Walls, Disclosure Responsibilities for Exporters, 4 NAT. RESOURCES & ENVT. 10, 12 (1990).

4. See infra notes 18-19 and accompanying text.

5. International Export of U.S. Waste: Hearings Before the Subcomm. on Environment, Energy, and Natural Resources of the House Comm. on Government Operations, 100th Cong., 2d Sess. (July 14, 1988) [hereinafter Gov't Operations Subcomm. Hearings].

6. H.R. 2525, 101st Cong., 1st Sess., 135 CONG. REC. H2250 (daily ed. May 31, 1989).

7. U.S. Waste Exports: Hearings on H.R. 2525 Before the Subcomm. on Human Rights and International Organizations and the Subcomm. on International Economic Policy and Trade of the House Comm. on Foreign Affairs, 101st Cong., 1st Sess. (July 12, 1989) [hereinafter Foreign Affairs Subcomm. Hearings]; Waste Export Control: Hearings on H.R. 2525 Before the Subcomm. on Transportation and Hazardous Materials of the House Comm. on Energy and Commerce, 101st Cong., 1st Sess. (July 27, 1989) [hereinafter Energy & Commerce Subcomm. Hearings].

8. H.R. 3736, 101st Cong., 1st Sess., 135 CONG. REC. H9042 (daily ed. Nov. 19, 1989).

9. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050. The House Energy and Commerce and Commerce Subcommittee on Transportation and Hazardous Materials held two days of hearings in January 1990. Reauthorization Hearings, supra note 1. Despite early hopes that the 101st Congress would tackle both substantial revision of the Clean Air Act and RCRA reauthorization, those hopes quickly faded. All expectations are that RCRA reauthorization will be a high priority for the 102nd Congress. Legislation substantially similar to WECA is expected to be part of the reauthorization legislative package.

10. See infra notes 66-80 and accompanying text.

11. See infra notes 81-95 and accompanying text.

12. See infra notes 128-50 and accompanying text.

13. See infra notes 39-41, 48-50, 84, 86, 171-72 and accompanying text.

14. See infra notes 184-91 and accompanying text.

15. See infra notes 192-94 and accompanying text.

16. See infra notes 195-98 and accompanying text.

17. See infra notes 200-01 and accompanying text.

18. 42 U.S.C. § 6938, ELR STAT. RCRA 024.

19. See 40 C.F.R. pt. 262, subpt. E, for the existing waste export rules. Scott Hajost, EPA's Associate Administrator for International Activities, described the process as follows:

[An] exporter must notify EPA of the proposed export. This notice must include such information as the types and estimated quantities of hazardous waste, the means of transportation, and the name of the consignee.

Through the Department of State, EPA then transmits the notification to the appropriate government authorities in the importing country and any transit countries with the request that the importing country provide the United States with its written consent or objection to the proposed export. Along with this is transmitted a statement on U.S. requirements.

Upon receipt of an importing country's consent to an export, EPA forwards to the exporter an EPA Acknowledgment of Consent, which an exporter must attach to the manifest which accompanies the hazardous waste shipment. When an importing country objects to a shipment, EPA informs the exporter and indicates that the hazardous wastes cannot be exported unless the importing country changes its determination and consents to the export.

20. Gov't Operations Subcomm. Hearings, supra note 5, at 283 (statement of Rep. Synar (D-OK)); see also Reauthorization Hearings, supra note 1, at 215 (statement of Rep. Synar).

21. Gov't Operations Subcomm. Hearings, supra note 5, at 2 (statement of Rep. Synar); see also Energy & Commerce Subcomm. Hearings, supra note 7, at 27, 29 (statements of Rep. Synar); Reauthorization Hearings, supra note 1, at 216 (statement of Rep. Synar). A former associate EPA administrator for international affairs explained that "what we try to do is tell the country how we would handle it here, but we have no authority to say don't take it." Gov't Operations Subcomm. Hearings, supra note 5, at 283 (statement of Sheldon Meyers).

22. Gov't Operations Subcomm. Hearings, supra note 5, at 28 (statement of John Martin, EPA Inspector General).

23. Foreign Affairs Subcomm. Hearings, supra note 7, at 42 (statement of Associate EPA Administrator Hajost); see also Gov't Operations Subcomm. Hearings, supra note 5, at 2 (statement of Rep. Synar); Foreign Affairs Subcomm. Hearings, supra note 7, at 29 (statement of Rep. Synar); id. at 45 (statement of Associate EPA Administrator Hajost); id. at 53 (statement of William Nitze, Deputy Assistant Secretary for Oceans, International Environmental and Scientific Affairs, Department of State); Reauthorization Hearings, supra note 1, at 216 (statement of Rep. Synar). An EPA official reported that "if the company fills out the forms properly and provides all the information, we have no alternative but to send it on." Gov't Operations Subcomm. Hearings, supra note 5, at 283 (statement of Acting Associate EPA Administrator Meyers).

24. Luken News Release, supra note 2, at 2.

25. Of the 250 million tons of hazardous waste produced in the United States each year, only 150,000 to 160,000 tons is exported pursuant to the EPA's hazardous waste export rules. Foreign Affairs Subcomm. Hearings, supra note 7, at 2 (statement of Rep. Gejdenson (D-CT)); see also Energy & Commerce Subcomm. Hearings, supra note 7, at 23 (statement of Rep. Conyers (D-MI)); id. at 27 (statement of Rep. Synar); id. at 44 (statement of Associate EPA Administrator Hajost); Reauthorization Hearings, supra note 1, at 21 (statement of Rep. Synar).

26. Foreign Affairs Subcomm. Hearings, supra note 7, at 34 (statement of Frederick Bernthal, Assistant Secretary for Oceans and International Environmental and Scientific Affairs, Department of State); see also Reauthorization Hearings, supra note 1, at 218 (statement of Rep. Synar).

27. Energy & Commerce Subcomm. Hearings, supra note 7, at 67 (statement of Associate EPA Administrator Hajost).

28. Some congressmen expressed what might be considered excessive concern over waste exports. "Waste exports threaten the health of the world environment and jeopardize our standing as a world leader." Energy & Commerce Subcomm. Hearings, supra note 7, at 23 (statement of Rep. Conyers). 'We can only cause resentment toward the U.S. as long as we continue to use the Third World as our garbage dump. This is a recipe for foreign policy disaster." Id. "[W]e are certainly not going to create an incentive by allowing American waste handlers and American companies to willy nilly dispose of this in an unregulated manner in Third World countries." Id. at 1 (statement of Rep. Luken).

29. H.R. 2525, supra note 6. Representative Synar stated that H.R. 3736 "reflects negotiations made between staff and interested parties on H.R. 2525." Reauthorization Hearings, supra note 1, at 214, 215 (statements of Rep. Synar).

30. Energy & Commerce Subcomm. Hearings, supra note 7, at 28 (statement of Rep. Synar); see also Reauthorization Hearings, supra note 1, at 215 (statement of Rep. Synar).

31. Those circumstances have been considered previously. See Handley, Exports of Waste From the United States to Canada: The How and Why, 20 ELR 10061, 10063-64 (Feb. 1990). WECA's sponsors seem to foresee an increase in waste exports. They repeatedly cited the growth in the number of waste export notifications submitted to EPA (12 in 1980, over 600 in 1989) as evidence of a trend toward increased exports. See, e.g., Reauthorization Hearings, supra note 1, at 215 (statement of Rep. Synar); Luken News Release, supra note 2 ("Companies are notifying the Environmental Protection Agency of their intentions to export waste at record rates.").

32. Gov't Operations Subcomm. Hearings, supra note 5, at 1 (statement of Rep. Synar).

33. Foreign Affairs Subcomm. Hearings, supra note 7, at 41, 47 (statements of Associate EPA Administrator Hajost).

34. Energy & Commerce Subcomm. Hearings, supra note 7, at 156 (statement of Jim Vallette, Greenpeace); id. at 303 (statement of Alex Hittle, Environmental Policy Institute).

35. Foreign Affairs Subcomm. Hearings, supra note 7, at 117-18 (statement of William Brown, Waste Management, Inc.). Brown testified that at $ 160 per ton, waste management at the Stablex facility in Blaineville, Quebec, is less expensive that any of the four northeastern facilities operated by Waste Management. Id. at 126-27.

36. See also Handley, supra note 31, at 10064 nn.34-37. A spokesman for Canadian waste management facilities and the generators whose waste is sent to those facilities testified that lower treatment and disposal costs in Canada do not necessarily "result from cost of compliance with environmental regulations," but are attributable to the laws of supply and demand in a country with a much smaller population than the United States. Foreign Affairs Subcomm. Hearings, supra note 7, at 105 (statement of Barry Malter, International Environmental Policy Coalition (IEPC)); see also Energy & Commerce Subcomm. Hearings, supra note 7, at 146 (statement of James W. DeWitt, Association of Metal Finishers). Detroit attorney Robert Zeff drew particular scorn from WECA's sponsors for a thwarted scheme by which Guinea-Bissau would have received $ 40 per ton to receive hazardous waste which would have cost several thousand dollars per ton to manage in the United States. See Gov't Operations Subcomm. Hearings, supra note 5, at 295.

37. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075. See, e.g., Handley, supra note 31, at 10063 (quoting from a Canadian facility's promotional brochure implying that exporting U.S. waste to Canada provides a means to avoid Superfund liability).

38. If U.S. generators were seeking to escape Superfund liability, one would expect generators from all over the country — not just the Northeast — to be shipping their wastes to Canada. See Foreign Affairs Subcomm. Hearings, supra note 7, at 92 (statement of Malter, IEPC); see also id. at 126 (statement of Richard Fortuna, Hazardous Waste Treatment Council (HWTC)). Moreover, if this were the true motivation, one could reason that Canadian generators exporting between 40,000 and 60,000 tons of hazardous waste to the United States each year are actively seeking out Superfund liability, which cannot be the case. See id. at 92 (statement of Malter, IEPC).

39. Foreign Affairs Subcomm. Hearings, supra note 7, at 11 (statement of Rep. Conyers).

40. Agreement Between the Government of the United States of America and the Government of Canada Concerning the Transboundary Movement of Hazardous Wastes (signed at Ottawa Oct. 28, 1986, entered into force Nov. 8, 1986) [hereinafter U.S.-Canada Bilateral Agreement].

41. Id. art. 13; see also Handley, supra note 31, at 10066 n.63.

42. Foreign Affairs Subcomm. Hearings, supra note 7, at 4 (statement of Rep. Wolpe).

43. Id. at 12 (statement of Rep. Conyers).

44. Handley, supra note 31, at 10063 n.21.

45. The permitting and waste management practices of these two facilities has been described previously. Id., at 10062-63. The Stablex facility in Blaineville, Quebec, stabilizes metal hydroxide sludges primarily from Connecticut electroplaters. One hundred Connecticut firms, with an average size of 35 employees, relied on the Stablex facility to manage 38,000 tons of waste in 1988. Energy & Commerce Subcomm. Hearings, supra note 7, at 139, 141 (statements of DeWitt, Metal Finishers). A representative of a domestic waste handler observed that the EPA had determined that there was an excess of solidification capacity within the United States to manage these wastes (classified as F006), calling into question the need to export these wastes. Id. at 77 (statement of Brown, Waste Management).

While it is true that the Stablex facility does not have double liners, as Representative Conyers observed (see text accompanying supra note 43), or leachate collection, Quebec's provincial law "requires Stablex to demonstrate that the facility is impermeable" and that the levels of contaminants near the facility are similar to background levels." Handley, supra note 31, at 10062. One can speculate whether Stablex could "meet RCRA requirements if it could be shown to meet the requirements for the 'no migration' exception [RCRA § 3004(o)(2), 42 U.S.C. § 6924(o)(2), ELR STAT. RCRA 015]," see, e.g., id. n.20; Foreign Affairs Subcomm. Hearings, supra note 7, at 127 (statement of Fortuna, HWTC), but one must recognize that EPA has yet to grant this type of "no migration" petition. Id. at 128 (statement of Brown, Waste Management).

The Tricil facility in Sarinia, Ontario, incinerates spent solvents and chemical by-products chiefly from Detroit chemical firms. Handley, supra note 31, at 10063. A witness testifying on behalf of Tricil, among other firms, stated that approximately 90 percent of the U.S.-generated waste incinerated in Ontario came from the Detroit area, which is only 70 miles from Tricil. Foreign Affairs Subcomm. Hearings, supra note 7, at 106 (testimony of Malter, IEPC).

46. See, e.g., Foreign Affairs Subcomm. Hearings, supra note 7, at 85-86 (testimony of Fortuna, HWTC). Representatives of the waste management industry testified that the Stablex facility in Blaineville, Quebec, entombed "pre-treated, solidified hazardous waste in trenches covered by more than 20 feet of low permeability, compacted clay," id. at 100 (statement of Malter, IEPC), in a way which provides the same level of treatment as RCRA's land disposal restrictions, id. at 126 (statement of Fortuna, HWTC).

47. A spokesman for the Stablex and Tricil facilities and other firms testified that 1988 exports to the Tricil incineration facility were below the 1986 level and that the Stablex facility expects to receive less U.S. waste in 1989 than it did in 1988. Foreign Affairs Subcomm. Hearings, supra note 7, at 93, 102 (statements of Malter, IEPC). He also testified that these two facilities "actually received in 1988 only 20 percent of the amount of waste indicated on the export notifications." Id. at 93. Apparently, exporters provide notification of an intention to export a quantity of waste far greater than actually is exported.

48. Energy & Commerce Subcomm. Hearings, supra note 7, at 67 (statement of Associate EPA Administrator Hajost). A 1987 Mexican decree prohibited disposal of hazardous waste from other countries. Gov't Operations Subcomm. Hearings, supra note 5, at 372 (statement of Bonnie Ram, Federation of American Scientists).

49. Agreement of Cooperation Regarding the Transboundary Shipment of Hazardous Wastes and Hazardous Substances (signed at Washington, D.C., Nov. 12, 1986, entered into force ) [hereinafter U.S.-Mexico Bilateral Agreement]; see also Energy & Commerce Subcomm. Hearings, supra note 7, at 321 (letter from Collier, Shannon & Scott on behalf of the Steel Manufacturers Association (SMA)).

50. U.S.-Mexico Bilateral Agreement, supra note 49, art. XX.

51. Aside from the lawful exports from SMA member companies, illegal waste exporting from small- and medium-size businesses has proven difficult to quantify and even more difficult to curtail. See Dolan & Stammer, Clandestine Toxic Waste Exports to Mexico on Rise, Los Angeles Times, May 5, 1990, at A1. The U.S.-Mexico Bilateral Agreement provides that both parties shall "cooperate in monitoring and spot-checking transboundary shipments." U.S.-Mexico Bilateral Agreement, supra note 49, art. III, § 3.

52. Energy & Commerce Subcomm. Hearings, supra note 7, at 317-18 (letter from the SMA). "The K061 is … blended with certain raw metal feed stock and fed into a high temperature rotary kiln which separates and distills the zinc from the other elements. A purified, zincoxide product is generated from this process that is used as a raw material in several products including animal feed and in the rubber industry." Id. at 318.

53. Lawyers for the SMA explained: "At this time, Zinc National could not comply with many of these specific RCRA provisions, such as the requirements governing security systems, inspections, personnel training, contingency and closure plans, emergency procedures, and the use and management of 'units' that store the K061." Id. at 319. The impossibility of obtaining insurance to satisfy RCRA's closure rules was also identified as an obstacle to full RCRA compliance. Id.

54. Congress' focus on exports to developing countries substantiates the observation that the "perception seems to be growing that the developed world, including the United States, is dumping toxic trash in the underdeveloped world." Gov't Operations Subcomm. Hearings, supra note 5, at 257 (statement of Assistant Secretary of State Bernthal). A Greenpeace representative claimed to be "aware of preliminary plans in developing countries which would import over 10 million tons of waste from the United States a year." Energy & Commerce Subcomm. Hearings, supra note 7, at 307 (statement of Vallette, Greenpeace).

55. Reauthorization Hearings, supra note 1, at 1 (statement of Rep. Luken).

56. Foreign Affairs Subcomm. Hearings, supra note 7, at 1 (statement of Rep. Yatron); id. at 42 (statement of Rep. Conyers); Energy & Commerce Subcomm. Hearings, supra note 7, at 23 (statement of Rep. Conyers).

57. Assistant Secretary of State Bernthal testified:

Many countries, particularly developing countries, do not make the sometimes arcane distinction made under RCRA between hazardous and nonhazardous waste. Second, many countries will hold the U.S. Government responsible for problems caused by private U.S. firms. Thirdly, the United States will be held morally responsible for any damage caused by waste, whether it is hazardous or not, generated by U.S. companies and disposed of in an underdeveloped country, regardless of whether or not the government of the country consented to receiving the waste.

Gov't Operations Subcomm. Hearings, supra note 5, at 257-58; see also Reauthorization Hearings, supra note 1, at 214, 215 (statements of Rep. Synar); id. at 217 (statement of Rep. Wolpe).

58. Philadelphia's Deputy Streets Commissioner was joined by a representative of Pennsylvania's Department of Natural Resources and the director of EPA Region III's Hazardous Waste Management Division to testify about the voyages of the Khian Sea and Bark, which disposed of portions of their cargo of incinerator ash on the shores of Haiti and on an island off the coast of Guinea. Gov't Operations Subcomm. Hearings, supra note 5, at 34-47. Representative Synar introduced into the record a host of documents pertaining to efforts to dispose of the Khian Sea's cargo. Id. at 68-111. In the course of the journey, the cargo was described in various manners, with its ultimate description being "top soil ash fertilizer." Id. at 112. This incident continued to captivate WECA's sponsors at subsequent hearings. See, e.g., Wolpe Statement, supra note 1, at 1.

59. Gov't Operations Subcomm. Hearings, supra note 5, at 4 (statement of Rep. Conyers).

60. Id. at 6. Representative Conyers repeated this image in subsequent hearings. See, e.g., Foreign Affairs Subcomm. Hearings, supra note 7, at 15.

61. Energy & Commerce Subcomm. Hearings, supra note 7, at 72 (statement of Rep. Luken); see also Foreign Affairs Subcomm. Hearings, supra note 7, at 146 (testimony of Vallette, Greenpeace).

62. Gov't Operations Subcomm. Hearings, supra note 5, at 3.

63. Id.

64. Representative Wolpe stated in January 1990 that he had recently learned of a proposal to ship thousands of tons of potentially toxic incinerator ash from the United States to Guatemala "for use as road bed material." Wolpe Statement, supra note 1, at 1.

65. Representative Wolpe cited an article from The St. Louis Post-Dispatch regarding mercury contamination of drinking water supplies in South Africa due to chemical wastes from a New Jersey chemical plant sent to that country ostensibly for recycling. Id. at 2; Reauthorization Hearings, supra note 1, at 217.

66. 42 U.S.C. § 6938, ELR STAT. RCRA 024; see also Gov't Operations Subcomm. Hearings, supra note 5, at 46-47 (testimony of Associate EPA Administrator Hajost); id. at 256, 262 (statements of Assistant Secretary of State Bernthal); Reauthorization Hearings, supra note 1, at 215 (statement of Rep. Synar); see 40 C.F.R. pt. 261 (EPA's rules on identification andlisting of RCRA hazardous wastes). The U.S.-Canada Bilateral Agreement applies to "hazardous waste subject to a manifest requirement." U.S.-Canada Bilateral Agreement, supra note 40, art. I, para. (b). The U.S.-Mexico Bilateral Agreement governs "any waste, as designated or defined … pursuant to national policies, laws or regulations, which if improperly dealt with in activities associated with them, may result in health or environment damage." U.S.-Mexico Bilateral Agreement, supra note 49, art. II, para. 2.

67. Foreign Affairs Subcomm. Hearings, supra note 7, at 27, 32 (statements of Assistant Secretary of State Bernthal); see also Gov't Operations Subcomm. Hearings, supra note 5, at 2 (statement of Rep. Synar).

68. In his testimony before the Foreign Affairs Subcommittees, Associate EPA Administrator Hajost explained that existing restrictions on the disposal of incinerator ash depend on the nature of the ash, so that (1) ash resulting from incineration of hazardous waste is subject to hazardous waste requirements; (2) ash resulting from the combustion of household waste, regardless of whether it exhibits hazardous characteristics, is subject only to requirements for nonhazardous solid waste disposal; and (3) ash from the combustion of nonhazardous waste from nonhousehold sources is subject to hazardous waste requirements if it exhibits a hazardous characteristic. Foreign Affairs Subcomm. Hearings, supra note 7, at 53.

69. Id. at 16.

70. See supra notes 58-60 and accompanying text.

71. The Convention defines the term "wastes" broadly to include "substances or objects which are disposed of or are intended to be disposed of." Basel Convention, supra note 3, art. II, para. 1. Compare 40 C.F.R. § 261.2 (which uses such terms as "discarded," "abandoned," "used in a manner constituting disposal," and "inherently waste-like" to define solid "waste").

72. Basel Convention, supra note 3, art. I, para. 1.

73. Annex I lists 18 categories of hazardous waste streams (e.g., wastes from the manufacture, formulation, and use of wood preserving chemicals and wastes from the production, formulation and use of organic solvents) as well as 27 hazardous waste constituents (e.g., heavy metals, phenols, organohalogens).

74. Annex III contains such hazardous characteristics as explosiveness, flammability, poisonousness, and corrosivity.

75. Basel Convention, supra note 3, art. I, para. 1(b); see also id. art. III.

76. Id. art. I, para. 2.

77. 42 U.S.C. § 6903(27), ELR STAT. RCRA 005.

78. H.R. 3736, supra note 8, § 3(a), at 3, which would create new RCRA § 12001(a). During hearings on the proposed legislation, a representative of a hazardous waste management trade group opposed this exemption because it would create an incentive to sham recycling operations. Energy & Commerce Subcomm. Hearings, supra note 7, at 153 (statement of Robert Davis, HWTC).

79. H.R. 3736, supra note 8, § 3(a), at 3, which would create new RCRA § 12001(a)(2). During hearings on the legislation, Representative Schaefer asked whether the recycling exception of WECA would cover rubber tires shredded and burned for fuel in an overseas cement plant from which the U.S. purchases cement. Energy & Commerce Subcomm. Hearings, supra note 7, at 43. At least one industry representative believed that it might, but that to obtain the exemption, the operation would have to apply to the EPA for a determination. Id. at 153 (statement of Brown, Waste Management, Inc.).

80. Reauthorization Hearings, supra note 1, at 219.

81. Obligations under the Basel Convention are triggered by the "transboundary movement" of wastes subject to the Convention. The Convention defines "transboundary movement" as

any movement of hazardous wastes or other wastes from an area under the national jurisdiction of one State to or through an area under the national jurisdiction of another State or to or through an area not under the national jurisdiction of any State, provided at least two States are involved in the movement.

Basel Convention, supra note 3, art. II, para. 3. The Convention defines an "area under the national jurisdiction of" a state to include "any land, marine area, or airspace within which a State exercises administrative and regulatory responsibility in accordance with international law." Id. art. II, para. 9.

82. Id. art. VI, para. 3(a); see also art. IV, para. 1(c).

83. See supra note 19 and accompanying text.

84. H.R. 3736, supra note 8, § 3(a), at 5, which would create new RCRA § 12002(a)(1).

85. Id. at 6, which would create new RCRA § 12002(b)(1).

86. Basel Convention, supra note 3, art. XI, para. 1. If such other agreements "are compatible with the environmentally sound management of hazardous wastes and other wastes as required by" the Basel Convention, then the requirements of the Convention "shall not affect transboundary movements which take place pursuant to such agreements." Id. art. XI. para. 2.

87. H.R. 3736, supra note 8, § 3(a), at 6, which would create new RCRA § 12002(b)(1)(B).

88. Basel Convention, supra note 3, art. VI, para. 6. The state of export must obtain written consent from the state of import (and from transit states, if any) for using general notification. States of import and transit may make their consent to general notification "subject to the supply of certain information," id. art. VI, para. 7, and the general notification may cover multiple shipments but cannot extend beyond a 12-month period, id. art. VI, para. 8.

89. U.S.-Canada Bilateral Agreement, supra note 40, art. III, para. (d).

90. U.S.-Mexico Bilateral Agreement, supra note 49, art. III, para. 4.

91. In addition to requiring consent of the receiving country, the Basel Convention provides that the exporting state "shall not allow the transboundary movement to commence until it has received the written consent of the State of transit." Basel Convention, supra note 3, art. VI, para. 4 (emphasis added). The "State of transit means any State, other than the State of export or import, through which a movement of hazardous wastes or other wastes is planned or takes place." Id. art. II, para. 12.

92. Deputy Assistant Secretary of State Nitze described the U.S. position regarding transit countries during early testimony on waste export reform.

The U.S. position is the transit countries should be fully informed as to what is passing through their territory in terms of composition and the risks associated with any shipment, but that unless they give a prior indication that they don't want this material to pass through their territory, that we not be required to seek their consent on a shipment-by-shipment basis.

Gov't Operations Subcomm. Hearings, supra note 5, at 306. Deputy Assistant Secretary Nitze indicated that Spain and Portugal were the primary proponents of a consent requirement for transit countries. Id.

93. Such notification must identify the "points of entry into and departure from the country," U.S.-Canada Bilateral Agreement, supra note 40, art. IV, para. (a)(i), as well as a "description of the approximate length of time the hazardous waste will remain in the country of transit," id. art. IV, para. (a)(ii).

94. "Country of transit" is "the country which is neither the country of export nor the country of import, through whose land territory or internal waters hazardous waste is transported, or in whose ports such waste is unloaded for further transportation." Id. art. I, para. (e).

95. In this case "transit" is "transport of hazardous wastes … through the territory of a Party without being imported through its Customs." U.S.-Mexico Bilateral Agreement, supra note 49, art. I, para. 6.

96. Basel Convention, supra note 3, art. IV, para. 4.

97. Id. para. 7(a).

98. H.R. 3736, supra note 8, § 3(b), at 23, repealing RCRA § 3017, 42 U.S.C. § 6938, ELR STAT. RCRA 024. That procedure was discussed above. See supra notes 18-19 and accompanying text.

99. Id. § 3(a), at 9-12, which would create new RCRA § 12003.

100. WECA's information requirements would be far more extensive than the information requirements in either of the existing bilateral agreements, U.S.-Canada Bilateral Agreement, supra note 40, art. III, para. (b)(ii); U.S.-Mexico Bilateral Agreement, supra note 49, art. III, para. 2, but appear to be modeled after existing notification requirements, 40 C.F.R. § 262.53(a).

101. H.R. 3736, supra note 8, § 3(a), at 9, new RCRA § 12003(b)(3).

102. Id., new RCRA § 12003(b)(7); cf. 40 C.F.R. § 262.53(a)(2)(v)-(vi).

103. Id. at 10, new RCRA § 12003(b)(10).

104. Id. at 11, new RCRA § 12003(b)(13).

105. Id. at 12, new RCRA § 12003(b)(16).

106. Id. § 3(a), at 18, which would create new RCRA § 12003(k)(1)(B).

107. Id., § 12003(k)(1).

108. Reauthorization Hearings, supra note 1, at 236 (statement of Rep. Thomas Tauke (R-IA)).

109. Foreign Affairs. Subcomm. Hearings, supra note 7, at 45 (statement of Associate EPA Administrator Hajost). Don Clay, EPA's Assistant Administrator for Solid Waste, said the waste export permit was a "very resource intensive" way to solve the problem. Reauthorization Hearings, supra note 1, at 252.

110. Energy & Commerce Subcomm. Hearings, supra note 7, at 54 (statement of Deputy Assistant Secretary of State Nitze).

111. Id. at 322 (letter from SMA). With regard to potential delays in EPA's issuing permits, Representative Synar explained that WECA's purpose was not to facilitate waste exports but to ensure that they were done properly. Reauthorization Hearings, supra note 1, at 219.

112. Foreign Affairs Subcomm. Hearings, supra note 7, at 79, 127 (statements of Fortuna, HWTC); see also Handley, supra note 31, at 10063. CERCLA § 104(c)(9) requires as a precondition to EPA undertaking remedial actions within a state, that the state enter into a cooperative agreement assuring the availability of hazardous waste treatment or disposal facilities which, among other things, "have adequate capacity for the destruction, treatment, or secure disposition of all hazardous wastes that are reasonably expected to be generated within the State during the 20-year period following the date of" the cooperative agreement. 42 U.S.C. § 9604(c)(9)(A), ELR STAT. CERCLA 013.

113. Wolpe Statement, supra note 1, at 5; Reauthorization Hearings, supra note 1, at 218 ("the issue really goes not to the country but to the facility itself").

114. Wolpe Statement, supra note 1, at 5; Reauthorization Hearings, supra note 1, at 218.

115. H.R. 3736, supra note 8, § 3(a), at 20-21, which would create new RCRA § 12004(b)(1).

116. Id., new RCRA § 12004(b)(2).

117. Foreign Affairs Subcomm. Hearings, supra note 7, at 111 (statement of Malter, IEPC).

118. Basel Convention, supra note 3, art. IV, para. 2(d) (emphasis added).

119. Id. art. IV., para. 8 (emphasis added); see also id. art. IV, para. 2(g), which requires that a party "[p]revent the import of hazardous wastes and other wastes if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner" (emphasis added).

120. Id. art. IV, paras. 2(c) and 8. If the parties to the Basel Convention agreed to such guidelines, the United States would only need to negotiate bilateral agreements with nonparties. Foreign Affairs Subcomm. Hearings, supra note 7, at 67 (statement of Assistant Secretary of State Bernthal).

121. Foreign Affairs Subcomm. Hearings, supra note 7, at 28, 60 (statements of Andrew Sens, Director, Office of Environmental Protection, Department of State); see also id. at 67 (testimony of Assistant Secretary of State Bernthal); Energy & Commerce Subcomm. Hearings, supra note 8, at 56 (statement of Deputy Assistant Secretary of State Nitze).

122. Foreign Affairs Subcomm. Hearings, supra note 7, at 67 (statement of Associate EPA Administrator Hajost).

123. Basel Convention, supra note 3, art. IV, para. 9.

124. Id. art. IV, para. 10.

125. Foreign Affairs Subcomm. Hearings, supra note 7, at 28 (statement of Assistant Secretary of State Bernthal); see also id. at 2 (statement of Rep. Gejdenson). Greenpeace sent representatives to every Basel Convention negotiating session, and a Greenpeace representative testified that the United States forced the removal of this "key provision," with "no open support from any other delegation." Id. at 147-48 (statement of Vallette, Greenpeace); see also Energy & Commerce Subcomm. Hearings, supra note 7, at 157, 308 (statements of Vallette, Greenpeace).

126. Foreign Affairs Subcomm. Hearings, supra note 7, at 147-48 (statement of Vallette, Greenpeace).

127. Id. at 74 (statement of State Department Director Sens).

128. Ener. & Comm. Subcomm., supra note 7, at 2 (statement of Rep. Luken).

129. Ener. & Comm. Subcomm., supra note 7, at 33 (statement of Rep. Wolpe).

130. H.R. 3736, supra note 8, § 3(a), at 6, which would create new RCRA § 12002(b)(1)(C) (emphasis added).

131. Id. at 9-10, which would create new RCRA § 12003(b)(8)(emphasis added).

132. Representative Wolpe provided the following interpretations of the goal of the "no less strict than" standard:

— "environmentally equivalent in terms of the protection they provide," Foreign Affairs Subcomm. Hearings, supra note 7, at 19-20;

— "at least as strict as in terms of the basic health and environmental concerns that RCRA addresses," id. at 65;

— "at least we are applying the same strictness in terms of health and safety standards," id.;

— "no exports should leave this country that would be treated in a way that would expose the people of other countries to greater risks than we are willing to tolerate for ourselves," id. at 133;

— "it's a health and safety test, and that's what were trying to get at," Energy & Commerce Subcomm. Hearings, supra note 7, at 31; and

— "what we are trying to get at here is that there is the same basic concern with respect to health and safety and that it be met," id. at 36.

Representative Wolpe stated further that he thought "that the language is the issue here …." Id. at 31. The Canadian waste management industry would apparently agree with Representative Wolpe on this point. Foreign Affairs Subcomm. Hearings, supra note 7, at 91 (statement of Malter, IEPC, suggesting that "the correct approach to take … is to work on the language of the bill and to make sure we are focusing not on whether the standards are as strict but whether the level of environmental protection is comparable").

133. Foreign Affairs Subcomm. Hearings, supra note 7, at 29-30 (statement of Rep. Synar). Representative Synar also said that the standard could be interpreted to mean "as good as," leaving room for the EPA to make technical judgments about technologies that are equivalent to U.S. standards. Reauthorization Hearings, supra note 1, at 214.

134. Reauthorization Hearings, supra note 1, at 215, 216 (statements of Rep. Synar); see also id. at 216 (Rep. Synar's equating the "no less strict than" standard to "the same degree of safety as").

135. Foreign Affairs Subcomm. Hearings, supra note 7, at 69; see also id. at 66 ("what we are saying is … that we want to make sure that there are leachates or what have you, or emissions from the process, that their people aren't exposed. That they don't emit any more than we would allow under our system.") Disavowing any concern in "the design of the boiler or the temperature of the flame," Representative Gejdenson expressed concern only in "what comes out of the smokestack if it is burned … or what leaches into the ground when it is buried …." Id. at 40.

136. Id. at 71 (statement of Rep. Wolpe); Wolpe Statement, supra note 1, at 3; Reauthorization Hearings, supra note 1, at 216 (statement of Rep. Synar); see also supra note 124 and accompanying text.

137. "We have a knowledge that is probably superior in this area, from a scientific point of view, of almost anybody else in the world." Foreign Affairs Subcomm. Hearings, supra note 7, at 25 (statement of Rep. Conyers).

138. The Chemical Manufacturers Association, for example, opposed this bias: "[P]rovisions in [WECA] embody an unfounded assumption that adherence to anything but the U.S. standard for waste management is somehow less protective of human health and the environment. Canada, for example, has a well-developed system of environmental regulation, albeit different in several respects from the U.S. regime." Energy & Commerce Subcomm. Hearings, supra note 7, at 315.

139. Representative Synar said:

If those companies in Canada find it tough, that is the way it is going to be, but we are not going to let them go into operation in Canada, across our borders, take our waste and not treat it in at least the same standard as we do here. We are not trying to make it easier. We are trying to make it safer.

Id. at 38-9; see also Reauthorization Hearings, supra note 1, at 216 (statement of Rep. Synar).

140. Foreign Affairs Subcomm. Hearings, supra note 7, at 72 (statement of Rep. Wolpe); see also id. at 131 (statement of Rep. Wolpe), 139 (statement of Rep. Synar); Energy & Commerce Subcomm. Hearings, supra note 7, at 28 (statement of Rep. Synar); Reauthorization Hearings, supra note 1, at 216 (statement of Rep. Synar). Administration officials sought assurance regarding preservation of its "flexibility" in applying the "no less strict than" standard, see Foreign Affairs Subcomm. Hearings, supra, at 64 (statement of Associate EPA Administrator Hajost) and 66 (statement of Assistant Secretary of State Bernthal), and received such assurance from one sponsor. "EPA is made to make technical judgments all the time and that is what they are there for, to make technical judgments, and this legislation would afford the Administrator of the EPA the discretion to make judgments in accordance with a standard that is established." Energy & Commerce Subcomm. Hearings, supra, at 36 (statement of Rep. Wolpe).

141. Representative Wolpe's assurances took various forms:

— "[n]ot that specific technical procedures be followed that are required by RCRA," Foreign Affairs Subcomm. Hearings, supra note 7, at 65;

— "not that the RCRA standards be applied," id. at 64;

— "we are not applying American standards," id. at 66;

— "we do not impose RCRA standards," Energy & Commerce Subcomm. Hearings, supra note 7, at 31; and

— "we are not saying that it has to be the same specific set of liners or anything like that," id. at 36.

142. See, e.g., Energy & Commerce Subcomm. Hearings, supra note 7, at 44 (statement of Associate EPA Administrator Hajost) (stating that even if it is not the intent of the sponsors to require "exact compliance with RCRA standards," that is a "fair reading" of the language).

143. See 40 C.F.R. pt. 271.

144. See, e.g., Foreign Affairs Subcomm. Hearings, supra note 7,at 79-80, 130 (statements of Fortuna, HWTC) (stating that the state authorization model requires "a line-by-line comparison, an examination of every single provision in a law to determine if it is as strict").

145. Id. at 69 (statement of Matt Straus, EPA) ("unless you use the exact same standards … it is going to be difficult to say").

146. Energy & Commerce Subcomm. Hearings, supra note 7, at 50 (statement of Associate EPA Administrator Hajost) (also stating that this type of inquiry "would require an unwarranted commitment of resources"). A representative of waste management firms similarly inquired:

Mr. Chairman, you mentioned … the exposure to trichloroethylene, 9 parts per million or 15. Well, what we are going to wind up with this situation is, say, the Canadian standard for trichloroethylene is 15 and ours is 10. But at the same time, the Canadian facilities regulate nickel and molybdenum, which ours don't… [H]ow do we evaluate that situation where some are more strict, some are less strict?

Id. at 79-80; see also id. at 130 (statements of Fortuna, HWTC).

147. "[T]he standards that are contemplated in this particular piece of legislation will demand the program office to provide all the same cadre of support for the review of the materials, for the analysis of the sites, for the evaluation of the facilities, provided by U.S. expertise in the developing countries on a facility basis." Id. at 62-63 (statement of Deputy EPA Director Denit).

148. See, e.g., id. at 66 (statements of Associate EPA Administrator Hajost and Deputy Assistant Secretary of State Nitze); see also supra note 138.

149. Energy & Commerce Subcomm. Hearings, supra note 7, at 49-50 (statement of Associate EPA Administrator Hajost); see also id. at 60-61, 71 (statements of Deputy Director Denit).

150. See, e.g., Foreign Affairs Subcomm. Hearings, supra note 7, at 115 (statement of Brown, Waste Management).

151. In addition, one congressman warned his colleagues "to be careful about being the ugly American who thinks that the American way is the only way to do things." Energy & Commerce Subcomm. Hearings, supra note 7, at 24 (statement of Rep. Whittaker (R-KS)).

152. Foreign Affairs Subcomm. Hearings, supra note 7, at 25; Energy & Commerce Subcomm. Hearings, supra note 7, at 313. During a subsequent hearing, Representative Synar said that Canada no longer views WECA as an intrusion upon its sovereignty but regard it as a "good neighbor" policy. Reauthorization Hearings, supra note 1, at 235.

153. Foreign Affairs Subcomm. Hearings, supra note 7, at 44 (statement of Associate EPA Administrator Hajost).

154. "[I]n reality what this proposal does is place a restriction on the American exporter, not actually on the government receiving the waste exports …." Id. at 19 (statement of Rep. Gejdenson); see also id. at 26 (statement of Rep. Conyers).

155. Reauthorization Hearings, supra note 1, at 216, 225 (statements of Rep. Synar); Wolpe Statement, supra note 1, at 3.

156. Foreign Affairs Subcomm. Hearings, supra note 7, at 61-62 (statement of Rep. Gejdenson); see also Energy & Commerce Subcomm. Hearings, supra note 7, at 75 (statement of Brown, Waste Management).

157. Wolpe Statement, supra note 1, at 3; Reauthorization Hearings, supra note 1, at 218 (statement of Rep. Wolpe) ("We have a lot of requirements that other countries must meet certain product specifications in order to trade with the United states in those products.").

158. Energy & Commerce Subcomm. Hearings, supra note 7, at 30, 38 (statements of Rep. Wolpe); see also id. at 3 (statement of Rep. Gejedenson) (WECA "would tell private Canadian companies what standards they must meet if they want to receive United States waste.").

159. Energy & Commerce Subcomm. Hearings, supra note 7, at 36 ("How do we justify the United States becoming the environmental police force for other sovereign nations.").

160. Foreign Affairs Subcomm. Hearings, supra note 7, at 38; see also supra note 140.

161. One witness testified that "the question is not whether [the U.S.] view[s] it as an infringement on Canadian sovereignty but whether the Canadian government views it as an infringement." Foreign Affairs Subcomm. Hearings, supra note 7, at 92 (statement of Malter, IEPC).

162. Id. at 11-12, 19, and 26 (statements of Rep. Conyers); id. at 26 and 63 (statements of Rep. Wolpe); Energy & Commerce Subcomm. Hearings, supra note 7, at 31, 36 (statements of Rep. Wolpe).

163. Wolpe Statement, supra note 1, at 3; Reauthorization Hearings, supra note 1, at 218 (statement of Rep. Wolpe).

164. Foreign Affairs Subcomm. Hearings, supra note 7, at 130 (statement of Fortuna, HWTC); see also Reauthorization Hearings, supra note 1, at 407 (statement of Fortuna, HWTC).

165. See, e.g., Energy & Commerce Subcomm. Hearings, supra note 7, at 54 (statement of Deputy Assistant Secretary of State Nitze).

166. Foreign Affairs Subcomm. Hearings, supra note 7, at 64 (colloquy between Rep. Wolpe and Assistant Secretary of State Bernthal); id. at 68 (colloquy between Rep. Kostmayer and Associate EPA Administrator Hajost).

167. Energy & Commerce Subcomm. Hearings, supra note 7, at 50; see also Foreign Affairs Subcomm. Hearings, supra note 7, at 60 (statement of State Department Director Sens).

168. Both the Chemical Manufacturers Association (Energy & Commerce Subcomm. Hearings, supra note 7, at 315) and the Hazardous Waste Treatment Council (Foreign Affairs Subcomm. Hearings, supra note 7, at 81, 83, 90; Reauthorization Hearings, supra note 1, at 407) agreed with the Administration's approach. The HWTC representative suggested that the bilateral agreements contain certain "core requirements," including "comparability of preventive liner systems" and a means to ensure an "appropriate level of treatment" prior to land disposal. Foreign Affairs Subcomm. Hearings, supra, at 81, 83, 90.

169. See, e.g., Energy & Commerce Subcomm. Hearings, supra note 7, at 59 (statement of Rep. Luken); id. at 33 (statement of Rep. Wolpe).

170. Foreign Affairs Subcomm. Hearings, supra note 7, at 72; see also Energy & Commerce Subcomm. Hearings, supra note 7, at 30 (Rep. Wolpe attacked the Administration's alternative for lacking "any kind of clarity as to the standard"); Reauthorization Hearings, supra note 1, at 224 (statement of Rep. Wolpe) ("We think it is important that there be a common standard.").

171. H.R. 3736, supra note 8, § 3(a), at 7-8, which would create new RCRA § 12002(b)(2); see also Foreign Affairs Subcomm. Hearings, supra note 7, at 2 (statement of Rep. Gejdenson).

172. Foreign Affairs Subcomm. Hearings, supra note 7, at 28 (Assistant Secretary of State Bernthal). It has been suggested that the Basel Convention would require deletion of the "implied consent" provision in the U.S.-Mexico Bilateral Agreement. Handley, supra note 31, at 10066. That may be the case, but the Basel Convention would appear to accommodate the Canadian "implied consent" provision under the rubric of "general notifications" if it operated for no more than 12 months. See supra note 88 and accompanying text.

173. Slattery Amendment to H.R. 3736, enclosed with Letter from James F. Collins, President, Steel Manufacturer's Association, to Representative Michael L. Synar (May 10, 1990). Five days after the SMA letter to Representative Synar, 16 members of Texas delegation sent a letter to Representative Synar supporting the Slattery amendment. The Texas delegation's letter was essentially identical to the SMA letter.

174. See supra notes 51-53 and accompanying text.

175. SMA Letter to Rep. Synar, supra note 173.

176. Id. at 2.

177. Id.

178. See supra notes 166 and 167 and accompanying text.

179. See supra notes 118 and 119, 123, 124, and accompanying text.

180. See e.g., Reauthorization Hearings, supra note 1, at 224 (statement of Rep. Synar).

181. Basel Convention, supra note 3, preamble para. 15 (emphasis added).

182. Id. art. XIII, para. 1.

183. Id. art. 12. In addition, the Convention calls for the contracting parties to "consider the establishment of a revolving fund to assist on an interim basis in case of emergency situations to minimize damage from accidents arising from transboundary movements of hazardous wastes and other wastes or during the disposal of those wastes." Id. art. XIV, para. 2.

184. H.R. 3736, supra note 8, § 3(a), at 10, which would create new RCRA § 12003(b)(9) (emphasis added).

185. The U.S.-Canada Bilateral Agreement provides that the parties "may require, as a condition of entry, that any transboundary movement of hazardous waste be covered by insurance or other financial guarantee in respect to damage to third parties caused during the entire movement of hazardous waste, including loading and unloading." U.S.-Canada Bilateral Agreement, supra note 40, art. IX.

186. U.S.-Mexico Bilateral Agreement, supra note 49, art. XIV, para. 2.

187. H.R. 2525, supra note 6, § 3(b), at 19, which would have created new RCRA § 12005 to read as follows:

Whenever any response costs, or natural resource damages referred to in section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1986 (42 U.S.C. 9601 and following), are incurred with respect to any hazardous substance (as defined in such Act) exported from the United States after the effective date of this Act, the national government of the foreign country in which such costs or damages are incurred may bring an action under section 107 of such Act in the same manner as if such costs or damages were incurred in the United States. For purposes of section 107(f), the foreign government shall have the same authority and responsibility with respect to natural resources with the foreign country as the United States Government has with respect to natural resources with the United States.

Energy & Commerce Subcomm. Hearings, supra note 7, at 21.

188. Foreign Affairs Subcomm. Hearings, supra note 7, at 44; see also Energy & Commerce Subcomm. Hearings, supra note 7, at 51 (statement of Associate EPA Administrator Hajost).

189. Foreign Affairs Subcomm. Hearings, supra note 7, at 93, 113 (statements of Malter, IEPC); Energy & Commerce Subcomm. Hearings, supra note 7, at 322 (letter from SMA). Predictably, a domestic waste management firm supported imposition of CERCLA liability, citing promotional brochures of Canadian facilities touting their ability to escape such liability. Foreign Affairs Subcomm. Hearings, supra, at 115 (statement of Brown, Waste Management, Inc.).

190. Energy & Commerce Subcomm. Hearings, supra note 7, at 147 (statement of DeWitt, Metal Finishers).

191. Foreign Affairs Subcomm. Hearings, supra note 7, at 93, 112 (statement of Malter, IEPC).

192. Basel Convention, supra note 3, art. VI, para. 11.

193. H.R. 3736, supra note 8, § 3(a), at 10, which would create new RCRA § 12003(b)(9); see 40 C.F.R. pt. 264, subpt. H (Financial Requirements), which requires that owner/operators of hazardous waste treatment, storage, or disposal facilities provide assurance of their financial ability to close and undertake postclosure care of waste management units in accordance with RCRA requirements.

194. Handley, supra note 31, at 10063.

195. H.R. 3736, supra note 8, § 3(a), at 6-7, which would add new RCRA § 12002(b)(1)(c). One hearing witness drew an analogy between this requirement and agreements for on-site inspections under recent U.S./U.S.S.R. arms control agreements. Energy & Commerce Subcomm. Hearings, supra note 7, at 305 (statement of Hittle, EPI).

196. Foreign Affairs Subcomm. Hearings, supra note 7, at 62 (statement of Assistant Secretary of State Bernthal); see also supra note 152 and accompanying text.

197. Foreign Affairs Subcomm. Hearings, supra note 7, at 62. "If the Canadians do not want to accept even the possibility for facility on-site inspections, they don't have to accept the [bilateral] agreements. And they don't have to accept American waste products either." Id. at 63 (statement of Rep. Wolpe); see also Energy & Commerce Subcomm. Hearings, supra note 7, at 38 (statement of Rep. Wolpe).

198. Foreign Affairs Subcomm. Hearings, supra note 7, at 65 (response of Rep. Wolpe to question from Associate EPA Administrator Hajost); see also id. at 20 (statement of Rep. Wolpe) ("If the EPA determines that it is necessary that there be on-site inspection, if they have questions that require that kind of verification, then the facility would have to accept that on-site inspection."); Reauthorization Hearings, supra note 1, at 218 (statement of Rep. Wolpe). It is arguable that the Associate EPA Administrator Hajost's position may be more consistent with the Basel Convention requirement that parties shall take appropriate measures to "[e]nsure that persons involved in the management of hazardous wastes within it take such steps as are necessary to prevent pollution due to hazardous wastes and other wastes arising from such management and, if such pollution occurs, to minimize the consequences thereof for human health and the environment." Basel Convention, supra note 3, art. IV, para. 2(c) (emphasis added).

199. Basel Convention, supra note 3, art. IV, para. 2(a).

200. H.R. 3736, supra note 8, § 3(b), at 12, which would create new RCRA § 12003(b)(15). Under existing rules, large quantity generators of hazardous waste shipped from their facilities routinely certify that they

have a program in place to reduce the volume and toxicity of waste generated to the degree … determined to be economically practicable and that [they] have selected the practicable method of treatment, storage, or disposal currently available … which minimizes the present and future threat to human health and the environment ….

Uniform Hazardous Waste Manifest, 40 C.F.R. pt. 262, app.

201. Energy & Commerce Subcomm. Hearings, supra note 7, at 31; see also Foreign Affairs Subcomm. Hearings, supra note 7, at 4 (statement of Rep. Wolpe); Wolpe Statement, supra note 1, at 4; Reauthorization Hearings, supra note 1, at 217 (statement of Rep. Wolpe); id. at 216.

202. See supra notes 91-92 and accompanying text. Note, however, that WECA continues RCRA's requirement that importing countries express prior informed consent to all waste shipments. See supra notes 87-88 and accompanying text.

21 ELR 10085 | Environmental Law Reporter | copyright © 1991 | All rights reserved