Hazardous Waste Exports: A Leak in the System of International Legal Controls

19 ELR 10171 | Environmental Law Reporter | copyright © 1989 | All rights reserved


Hazardous Waste Exports: A Leak in the System of International Legal Controls

F. James Handley

Editors' Summary: The United States and other industrialized nations export a significant amount of their hazardous wastes abroad for disposal. Exporters often send their waste to countries where environmental regulation is less stringent than in the generating country in order to avoid the high cost of compliance with domestic disposal requirements. Although the United States and the European Community have established limited controls on waste exportation, these regulations do not ensure that waste shipped abroad is transported or disposed of in an environmentally sound manner. The author describes the regulatory regimes of the United States and the European Community, and analyzes recent efforts to create international agreements to impose greater controls on transboundary shipments of hazardous waste. In addition, the author examines legislative initiatives put forward in the United States Congress to address the problem. The author concludes that unless waste exports from the United States are prohibited, unsafe disposal abroad will likely continue, and efforts to encourage the minimization of hazardous waste at the source will be thwarted.

The author is a staff attorney in the United States Environmental Protection Agency Office of Enforcement and Compliance Monitoring. The views expressed in this Article are solely those of the author; they do not necessarily reflect the views or policies of the Environmental Protection Agency. Mr. Handley prepared this Article in partial fulfillment of the requirements for an LL.M. in environmental law at the National Law Center of George Washington University.

[19 ELR 10171]

The United States produces an estimated 212 million tons of hazardous waste each year.1 The figure for the European Economic Community is estimated to be 30 million metric tons, of which approximately three million metric tons cross international borders each year.2 The reasons for such shipments are both economic and legal. Businesses, seeking to minimize their waste disposal costs, transport hazardous wastes abroad when the cost of legal disposal in the country of origin exceeds the cost of transportation to a foreign location plus the cost of disposal there.3 In more developed countries, increasingly stringent environmental protection laws restrict disposal and often require the use of costly technology to ensure safe disposal. In contrast, less developed countries have had little or no experience with the byproducts of industrial manufacturing and have, therefore, enacted few controls for hazardous waste disposal.4 Rep. James Florio (D-N.J.), who in 1983 conducted hearings on hazardous exports, summed up the phenomenon: "Like water running down hill, hazardous wastes inevitably will be disposed of along the path of least resistance and least expense. Conditions are ripe for finding 'safe havens' for hazardous waste around the globe."5

In addition to regulatory engendered pressure to export, economies of scale may encourage exports. Some countries, particularly smaller European countries, are not in a position to deal with hazardous wastes generated within their borders.6 Greece, Luxembourg, and Denmark, for [19 ELR 10172] example, are small and cannot afford to build special disposal facilities.7 Geological and hydrological factors may also be involved. For instance, the Netherlands bans landfills because of the country's high water table.8 Furthermore, some exports of hazardous waste may be explained by simple geography; the nearest disposal site may be in a neighboring country.9

Until recently there were few legal obstacles to the export of hazardous waste,10 and little data was available on the quantities or nature of such exports. The problem was brought sharply into focus by the Seveso incident in Italy in 1976 and the events that followed.11 That year, a chemical plant in Seveso, Italy, exploded, releasing large quantities of dioxin resulting in vast air pollution and contaminated waste.12 The waste was lost somewhere on the continent after it was shipped by contractors.13 Finally, in March 1983, 41 barrels of the dioxin-contaminated waste from Seveso were discovered by members of Greenpeace in a barn in San Quentin, France, having been transported undetected from Italy.14 The incident showed how easily hazardous waste could be sent across national borders undetected, and spurred action by the European Parliament that eventually led to the adoption in 1984 of the European Community (EC) Directive on transfrontier shipments of hazardous wastes.15

That same year, the United States Congress passed the Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA).16 These amendments deal with a number of hazardous waste issues,17 including international export of hazardous waste.18 Both the EC Directive and HSWA create systems of advance notification by the exporting country and consent by the destination country, and set up systems for tracking transboundary hazardous waste shipments.19 Similar provisions are also being developed by the Organization for Economic Cooperation and Development (OECD)20 as well as the United Nations Environment Programme (UNEP).21

The waste export boom poses serious problems that these notification and consent systems do not address. Once waste leaves the generator country, few controls exist on its eventual disposal,22 and the possibility of a chemical waste disaster occurring from exported waste seems very real. The prospects of an international incident worry some officials. "If I were the U.S. Secretary of State," said Sen. George Mitchell (D-Me.) during the 1984 deliberations on HSWA, "I would want to be sure that no American ally or trading partner is saddled with U.S. wastes it does not want or does not have the capacity to handle in an environmentally sound manner."23 Yet given the fact that many of the hazardous waste exports are destined for underdeveloped nations, it appears that this is what is occurring.24

Furthermore, generators who ship their wastes abroad have little incentive to avoid accidental spills. If the accident occurs in the country where the waste is generated, the generator or transporter will probably be held accountable.25 If, however, the spill occurs abroad, or damage results from improper disposal abroad, the legal mechanisms for imposing liability are often weak or absent.26 The lack of an international system of accountability for hazardous waste spills and improper disposal allows generators to escape liability and thus externalize the costs of their careless or improper activities.27

There are other dangers as well. Hazardous waste exported from developed nations can return in other forms. Many United States cities, faced with sharply rising disposal costs for their sewage sludge, are arranging to barge such sludge to Caribbean nations for use as fertilizer.28 Toxic materials, such as heavy metals and pesticides, become part of municipal sludge and are then [19 ELR 10173] taken up in the root systems of plants.29 The United States imports large quantities of fruits and vegetables from Caribbean nations, so it is possible that foods containing toxic materials are being imported.30 Because the Food and Drug Administration checks only a very small portion of the imports, hazardous wastes may find their way to the dinner table.31

Much has been accomplished to address these problems, especially with respect to a system for tracking transboundary movements of hazardous wastes. However, the gap in the area of liability and the tremendous economic pressure on generators to export to underdeveloped nations point to the need for further action.32

This Article compares the legal controls that currently exist in the United States with those developed in the EC and the OECD.33 The Article goes on to discuss several proposals currently under discussion by OECD and UNEP, and to analyze legislative options for the United States in coping with this problem.

United States Law on Hazardous Waste Exports

Notice and Consent Provisions

HSWA amended RCRA in 198434 to prohibit the export of "hazardous waste" until the United States Environmental Protection Agency (EPA) has been notified,35 and the government of the receiving country has consented to accept the hazardous waste.36 Within thirty days after receipt of notice of the proposed shipment, EPA (in conjunction with the State Department) must provide a complete notification to the government of the receiving country,37 advising the government that United States law prohibits export of hazardous waste without the consent of the government of the receiving country, and requesting the government to provide the Secretary of State with a written consent or objection to the shipment.38 The Secretary must also provide to the government of the receiving country a description of the federal regulations that would apply to the treatment, storage, and disposal of the hazardous waste in the United States.39

EPA has thirty days following the Secretary's receipt of a consent or objection from the receiving country to forward such consent or objection to the exporter.40 If the receiving country has consented, the exporter may proceed, and the written notice and consent are to accompany the shipment to its destination.41

Annual Reporting to EPA

In addition to the notice and consent provisions, HSWA established a system of annual reporting to EPA by each exporter of hazardous waste.42 The reports are to summarize the types, quantities, frequency, and ultimate destination of all such hazardous waste43 exported during the previous calendar year.44 Annual reports are to include a certification by the primary exporter that the information contained therein is true, accurate, and complete.45

[19 ELR 10174]

Wastes Covered by HSWA

The HSWA notice and consent and reporting provisions are applicable to all "hazardous wastes" as defined by RCRA.46 The statute uses a broad definition, including wastes that may "cause or significantly contribute to an increase in mortality or … serious … illnesses … or pose a substantial present or potential harm to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed."47 Using this definition, EPA has promulgated detailed regulations listing48 the chemicals and waste characteristics49 that are to be treated as hazardous waste.50

Liability Provisions

United States law provides various means by which generators and transporters of hazardous waste and owners of contaminated property may be held accountable for hazardous substance releases. Civil and criminal penalties are available for violations of the Act.51 RCRA § 7003 further authorizes the federal government to sue anyone contributing to an imminent and substantial endangerment; the court may restrain the defendant's activities and "take such other action as may be necessary."52 RCRA § 7002 authorizes citizens to seek injunctions and civil penalties against violators of the Act, as well as injunctions against generators, transporters, and owners or operators of facilities who have contributed to an imminent and substantial endangerment.53 In addition, the government may seek response costs and natural resource damages under § 107 of the Comprehensive environmental Response, Compensation, and Recovery Act (CERCLA).54 State and local governments and private parties may also seek response costs under CERCLA § 107.55 Finally, private parties suing in tort may recover damages for personal injury or property damage.

These various provisions are of little use, however, once hazardous waste leaves the United States. In general, a clear legislative intent is required in order for a domestic law to have extraterritorial effect,56 and these RCRA and CERCLA provisions do not manifest such clear intent. Therefore, it does not appear that the United States government, a United States citizen, or the citizen of a foreign country has any standing to invoke RCRA or CERCLA remedies on the basis of hazardous waste disposal conducted abroad. While the government or private citizens could bring suit to require compliance with RCRA's notice and reporting provisions, they are powerless to make firms accountable under American law for their hazardous waste disposal activities outside the United States. Foreign parties injured by the activities of American companies, such as the victims of the Bhopal incident, must attempt to seek redress through the tort system.57

Enforcement Problems

The legislative history of RCRA § 3017,58 the waste exportation section, indicates that Congress intended EPA to work with the United States Customs Service "to establish an effective program to monitor and spot check international shipment of hazardous waste to assure compliance with the requirements of the section," and that violations should then be "vigorously pursued."59 In one of the few reported prosecutions under § 3017, three American businessmen pleaded guilty in November 1986 to charges that they illegally transported hazardous wastes into Mexico.60 That case grew out of an undercover investigation conducted by the United States Attorney's Office and the United States Customs Service, Office of Investigations.61 The experience of United States Attorney Charles Crandall, who prosecuted the case, vividly illustrates the difficulty of enforcement using border checks. Crandell reported that when an attempt was made to run a check on trucks crossing the border, no violations were reported because the truck traffic quickly dried up for reasons unknown to enforcement officials.62

By comparing Customs Service records at various United States ports with the notices sent to EPA, EPA auditors have detected many more shipments than were reported to the Agency.63 It is difficult to estimate accurately the amount of such unreported exports because some exporters may give notice of intent to export but ultimately decide [19 ELR 10175] not to export; however, some estimates indicate that waste export trade is as much as eight times more than reported, not including smugglers who elude customs.64 According to one EPA official, "many exporters don't bother to give notice because there isn't any enforcement."65

Exporters who do give notice of intent to export often do not provide sufficient information about the intended handling and disposal of the waste.66 EPA regulations provide only that the notice of intent to export must include "[a] description of the manner in which the hazardous waste will be treated, stored or disposed of in the receiving country (e.g., land or ocean incineration, other land disposal, ocean dumping, recycling)."67 This regulation does not spell out with much specificity what information the exporter is required to provide. Therefore, even where an exporter gives notice to the receiving country, the notice may not provide adequate information upon which to base a decision about accepting the waste.68

The HSWA notice and consent provisions are apparently designed to give receiving countries an opportunity to refuse waste they cannot or do not wish to dispose of. But their effectiveness seems doubtful because of EPA's ambiguous regulation governing the requirements for description of the planned disposal and because of the difficulty of enforcing its provisions.69

European Community Law

The European Community Directive on Transboundary Shipment of Hazardous Waste

After lengthy negotiations,70 the E.C. Council,71 on December 6, 1984, adopted the Directive on the Supervision and Control Within the European Community of the Transfrontier Shipment of Hazardous Wastes.72 The Directive established a notice and authorization system for the international transport of hazardous waste involving EC member states.73 Anyone intending to have hazardous waste transported from one EC member state to another or to have it routed through one or more member states, or to ship it to a member state from a third state, must notify the "competent authorities"74 of the member states concerned. The notice must contain information on the source and composition of the waste, the provisions made for routes and insurance against damage to third parties, the measures to be taken to assure safe transit and compliance with any conditions laid down by member states involved, and evidence of the contractual agreement with the "consignee"75 to whom the waste is being shipped, who should have adequate technical capacity for disposal of the waste without danger to human health and the environment.76 The "consignee" must have a permit for storage, treatment, or disposal, if any of these is to be carried out within the EC.77

No shipment may occur until the "competent authorities" of the member state involved have acknowledged receipt of the notification.78 The authorities may object to the shipment "on the basis of laws and regulations relating to environmental protection, safety and public policy or health protection…."79 The authorities of the state of dispatch or the states of transit may, within 15 days of notification, set conditions of the shipment within their territories, provided such conditions are no more stringent than those applied to similar shipments occurring wholly within that country.80

In addition to requiring notice and authorization for exports within the EC, the '84 Directive requires prior notice81 to nonmember states82 to whom waste is exported. The '84 Directive made no provision for a nonmember state to [19 ELR 10176] refuse authorization of the shipment.83 This problem was addressed in a Directive enacted June 12, 1986, amending the '84 Directive.84 The '86 Amendment requires that when hazardous waste is to be shipped to or through a nonmember state the exporter must first obtain the agreement of the nonmember state.85 The notice and authorization provisions parallel those applicable to member states.86

Reporting Requirements

Article 13 of the '84 Directive requires that every two years beginning October 1, 1987, member states are to forward to the Commission reports on transfrontier shipments of waste arising from major accidents,87 any significant irregularities in transfrontier shipment of waste, the quantity and type of waste that has entered the territory for disposal, and the type of waste that has been produced and exported.88

Waste Covered by the '84 Directive and the '86 Amendment

The '84 Directive adopts the definition of "toxic and dangerous waste" used in the Directive on Toxic and Dangerous Waste89 adopted by the EC Council on March 20, 1978. This Directive defines "toxic and dangerous waste" as any waste "containing or contaminated by" substances listed in a table contained in the directive90 "of such a nature, in such quantities or in such concentrations as to constitute a risk to health or the environment."91 Each member state defines the specific quantities or concentrations that constitute such risks.92 In this respect the Directive does not require uniformity among member states.93 This lack of uniformity may be a problem for an exporter wishing to determine whether he must obtain the approvals required under the '84 Directive.94 Nevertheless, the list contained in the Toxic Waste Directive provides a starting point, and the cautious exporter may wish to obtain approval whenever waste containing one of the listed chemicals is to be exported, regardless of the quantity or concentration.95

Liability Provisions

Neither the '84 Directive nor the '86 Amendment deals directly with the issue of liability for damages resulting from accidents occurring during export of hazardous waste, or from improper disposal. Article 11 of the '84 Directive states that the Council shall determine not later than September 30, 1988, "the conditions for implementing the civil liability of the producer … or … any other person who may be accountable … and shall also determine a system of insurance."96 This language seems to suggest that a system of producer liability is being contemplated.97 Article 4 of the '84 Directive states that the "acknowledgment forwarded by the competent authorities of the member state … shall not release the producer … from his obligations under existing national and Community provisions."98 Furthermore, the '84 Directive places the responsibility on the producer to "take all necessary steps to arrange for the disposal of the waste so as to protect the quality of the environment."99

Although the '84 Directive does not require that exporters of waste have insurance, the notice to the receiving country does provide information about "insurance against damage to third parties."100 This provision suggests that the lack of proper liability insurance might be the basis for a receiving country to refuse to accept the waste.101

Enforcement of the EC Directive

The EC has the power to legislate through directives that require all member states to take measures to assure that the procedures and objectives defined in directives are implemented, and are fully incorporated into their national laws.102 To the extent that directives are not specific, there will be non-uniformity among member states' laws. Thus, since the Directive has not spelled out a precise definition of "hazardous waste," exporters are faced with inconsistency among member states' laws.103 Additionally, [19 ELR 10177] member states' rules on liability, insurance, and customs procedures differ.104 Most troubling, however, is the fact that implementing legislation has not been enacted in some countries.105 According to an EC Commission spokesman, European Community legislation on exports of toxic waste has been "blatantly ignored" by many countries.106 Even in countries where legislation has been enacted pursuant to the Directives, enforcement provisions are often weak or absent.107

On October 3, 1988, Greenpeace filed a complaint with the EC Commission protesting the failure of several member state governments to implement the EC legislation on shipment of hazardous waste.108 The complaint alleges that only four EC countries (Belgium, Denmark, Greece and Luxembourg) have implemented the directive.109 This raises the concern that the EC directive, while appearing to be a step in the right direction, has had no practical effect because it has not been implemented by the EC member states.110

Comparison of Key Provisions of United States Law with EC Provisions

After the '86 Amendment, the EC system for notice and authorization and the required documentation systems closely resemble the HSWA provisions enacted in the United States. The provisions differ with regard to their definitions of hazardous waste; the EC system relies on a list of "core" chemicals and allows each country to determine hazardous concentrations and quantities.111 The United States system relies on the domestic law definition from RCRA without regard to the definitions of the transit or receiving countries.112 EPA has interpreted congressional intent in enacting HSWA as not requiring the notification and consent provisions to apply to wastes not regulated within the United States.113 This approach114 differs markedly from that of the EC, which requires exporters to obtain consent when the law of the transit or receiving country defines the waste as hazardous.115 EPA has argued that such a system would create the anomalous situation of requiring notice and consent from a foreign country for export of wastes to which no domestic United States regulations apply.116 The need for a uniform international system may soon outweigh such considerations.117

The reporting systems of the EC and United States seem to be attempting to accomplish the same objective, which is to allow some monitoring and perhaps control, by centralized authorities, of transboundary shipments.118 The EC system seems seriously deficient due to the lack of prompt reporting to the EC Council.119 The Council must rely instead upon the biannual summaries prepared by the Commission.120 It would appear that irregularities would take a long time to surface under this system.

The liability issues remain unresolved by either the EC121 or the United States122 provisions. This represents a major potential problem, since improper disposal is undoubtedly occurring abroad, and once the health and environmental effects become apparent compensation will surely be sought. Insurance requirements are not imposed by either system, but the EC provision requiring disclosure of insurance, if any, seems to be an excellent first step. This should enable receiving countries to require adequate insurance as a condition of import.123

With regard to enforcement, both the United States and EC systems rely on customs personnel to check for proper documents at border crossings.124 Because customs authorities already must deal with a vast number of shipments governed by a myriad of regulations, effective and consistent enforcement will be difficult.125 Furthermore, customs expertise and resources are spread rather thin because neither the EC '84 Directive nor RCRA limits the ports through which haaardous wastes may be exported. This problem might be partially alleviated by providing specialized border crossing points through which all hazardous wastes would be required to pass.126 The difficulty [19 ELR 10178] of verifying that the contents of a hazardous waste shipment match the notice and consent documentation also presents serious enforcement problems.127

Neither the United States provisions nor the EC directives appears to be designed to significantly discourage or limit the export of hazardous wastes, or to encourage alternatives such as recycling or local incineration.128 In fact, in response to a written question on the subject, Mr. Clinton Davis, President of the EC Commission, stated:

The Commission does not think that the management of hazardous waste on a national basis is a valid objective. One of the prerequisites for adequate waste management is to site collection and disposal centers in the community at places which are the most suitable on environmental and economic grounds, irrespective of administrative territorial limits. Disposal in technically adequate facilities is a better response to the need to reduce hazards than the principle of disposal on the spot at a national or regional level.129

Recycling and waste reduction are addressed somewhat indirectly through RCRA and other countries' domestic hazardous waste legislation. By requiring more expensive disposal methods, these provisions create disincentives for the production of hazardous wastes. Unfortunately, these same incentives create pressure to export. Thus the export boom represents a "leak" in the system of regulatory pressure being placed on generators and the goal of "waste minimization" espoused in RCRA § 1003(a)(6)130 is subverted.

OECD Provisions

The OECD,131 whose membership includes both the United States and the 12 EC nations, has been struggling, along lines somewhat parallel to those followed in the United States and EC laws, to agree on an international tracking system for hazardous wastes. While negotiations toward a comprehensive international agreement are presently underway,132 the OECD has already taken several steps.

The effort began in 1981. In February 1984, following the Seveso incident, a final Decision and Recommendation133 was adopted by the OECD Council.134 The decision, which is binding on member countries,135 requires that member countries "control the transfrontier movements of hazardous waste and, for this purpose, shall ensure that the competent authorities of the concerned countries are provided with adequate and timely information concerning such movements."136 The Council also adopted nonbinding recommendations for carrying out this mandate. These include a recommendation that countries

take the measures necessary to ensure that the entities within their jurisdiction provide … the authorities of the exporting, importing and transit countries with adequate and timely information … (specifying) … the origin, nature, composition and quantities of the waste intended to be exported, the conditions of carriage, the nature of the environmental risks involved, the type of disposal and the identity of all entities concerned….137

This OECD requirement is fulfilled by the laws of both the United States and the EC, which require both notice and authorization before shipment proceeds.138

The OECD recommendations parallel the EC '84 Directive by defining "hazardous waste" broadly as "any waste other than radioactive waste considered as hazardous or legally defined as hazardous in the country where it is situated or to or through which it is conveyed."139 As discussed above, the United States does not utilize the definitions of other countries in determining whether its provisions apply.140 This definitional problem has been an obstacle to further agreement among OECD countries.141 Originally, the United States took the position that it could not agree to a definition more comprehensive than that contained in RCRA142 because the OECD effort threatened to "overrun and complicate our own toxic substance program in this country."143 At a recent meeting of the OECD Council, this issue was apparently resolved in favor of the EC "core" chemicals concept.144

While the OECD Decision and Recommendation does [19 ELR 10179] not directly deal with the issue of liability, it does contain the recommendation that "countries should take all practicable steps to ensure that the transport and disposal of its waste be undertaken in accordance with the laws and regulations applicable in the countries concerned."145 The OECD is currently considering more direct approaches to the issues of liability and insurance for transboundary hazardous waste shipments.146 The liability issue, which neither the United States nor the EC has faced squarely, is likely to spur intense debate.147

Recent Developments Concerning Improved Control of Waste Exports

Heightened Publicity

Several recent attempts to ship United States hazardous and municipal wastes to Third World countries have focused public attention on the waste export problem. For example, Lindaco, an American company based in Detroit, contracted with the West African country of Guinea-Bissau to dispose of three million metric tons a year of toxic by-products of the tanning and pharmaceutical industries.148 The contract called for Guinea-Bissau to receive about $ 120 million a year, which is larger than its gross national product.149

Incidents involving shipments of municipal waste have also received widespread publicity. Such shipments involved the Khain Sea, whose cargo of ash from Philadelphia's garbage incinerators was rejected by six nations in an 18-month voyage, and the Bark, which delivered 14,000 tons of incinerator ash to Guinea, Africa, whose government immediately ordered it removed.150

Similar incidents have recently embarrassed the Italian government. In May 1988, the tiny port of Koko, Nigeria, was the unwilling recipient of 4,000 tons of industrial and nuclear waste forwarded by Italian expatriate Gianfranco Raffaelli, a twenty-year resident of Nigeria. His construction firm, looking for a more lucrative business venture, applied to the Pharmacist Board of Nigeria to import nine "non-explosive, non-radioactive and non-self-combusting" industrial chemicals from Italy. What he brought into the country was toxic waste, including methly melamine, dimethyl formaldehyde, polyurethanes, and about 150 tons of polychlorinated biphenyls (PCBs). When the scheme was made public, Mr. Raffaelli fled the country, fifteen alleged accomplices were arrested, and the chief spokesman for Nigerian President Ibrahim Babangida threatened execution by firing squad for anyone found guilty of importing toxic waste pro profit.151

In July 1988, as a result of worldwide furor, the Italian government ordered the wastes loaded from Nigeria back onto the Karin B, and began seeking a more politically acceptable disposal site. The Karin B was thereafter refused port in Spain, the Netherlands, Denmark, and the United Kingdom.152

Congressional Responses to Adverse Publicity

Largely as a result of adverse publicity surrounding these and similar incidents, Congress has been spurred to consider legislative action on the waste exports problem. Several bills were introduced, though none enacted, in the 100th Congress,153 and hearings were conducted in July 1988.

On June 29, 1988, Sen. Kasten (R-Wis.) introduced a measure entitled the "Waste Export Control Act" that would prohibit solid and hazardous waste exports except to facilities that meet disposal standards equivalent to those required by United States law — in other words, RCRA.154 Specifically, the measure would require that exporters apply to the government for permits to export.155 Applicants would be required to provide "a detailed description of the manner in which [the] waste will be transported, treated, stored, and disposed of in the receiving country,"156 as well as "information demonstrating to the satisfaction of the [EPA] Administrator that waste exported pursuant to [the requested] permit will be transported, treated, stored and disposed of in a manner providing environmental protection no less strict than is provided by the requirements … for such or similar wastes within the United States."157 The Administrator would be required to make a determination, after public notice and opportunity for comment, that the proposed export and disposal comply with all requirements.158 He would conduct hearings on any proposed exports for which he received written comments opposing the export.159

Rep. John Conyers (D-Mich.) also introduced a bill last year entitled "The Waste Export Prohibition Act."160 This measure would ban all exports of solid and hazardous waste, except where bilateral treaties are now in place to govern the practice.161 The United States has presently only concluded such treaties with Canada and Mexico.162 The bill would also set criminal penalties for those who illegally [19 ELR 10180] ship wastes.163 Similar measures were introduced in the Senate by Sen. Max Baucus (D-Mont.) and the House by Rep. John Porter (R-Ill.) that would prohibit waste exports except where bilateral agreements exist between the United States and the receiving country.164 These measures differ from the Conyers measure in that they would permit the United States to enter into additional bilateral agreements beyond those currently in existence.

In addition to introducing legislation, members of Congress faced the waste exportation issue in committee hearings. The House Government Operations Subcommittee on Environment, Energy and Natural Resources, chaired by Rep. Synar (D-Okla.) conducted hearings on July 14, 1988, on enforcement of the current waste export law and possible legislative changes.165

John C. Martin, the EPA Inspector General, testified before the subcommittee on EPA's problems with implementation of the existing system of notice and consent.166 Martin's testimony was based on the Inspector General's audit, completed in March 1988, of EPA's hazardous waste export program.167 Martin testified that the audit found that hundreds of tons of waste had been exported in violation of EPA regulations.168 Martin noted that when exporters fail to give the required notice, EPA has no way to identify and prosecute violators. He also gave examples of improper or meaningless information supplied by exporters to describe the handling of exported waste. Such descriptions included "recycling" for 120 drums of spent chemical catalyst containing mercury sludge that were sent to South Africa, and "reclamation" for 250 tons of waste lead press coke that were sent to West Germany.169 Martin faulted the regulation governing waste description, which he described as ambiguous.170 He noted that it is unclear what authority EPA has to require information concerning a treatment, storage, or disposal facility abroad.171 With respect to exports of municipal waste, Martin recommended that the current notice and consent program be broadened to cover municipal wastes, including those not legally defined as "hazardous."

In contrast, the subcommittee also heard the testimony of Sheldon Meyers, EPA's Acting Associate Administrator for International Activities, who testified that the current notice and consent provisions work well, but admitted that if an exporter properly completes all the required forms and the receiving country consents, EPA has no alternative but to let the export proceed.172

Synar also called representatives of Waste Management, Inc., to testify. They expressed the view that the current regulations are not stringent enough, and that the provisions that permit exports of hazardous waste represent a double standard, imposing more protective measures on waste disposed of domestically than are required for the same wastes when exported. Instead, Waste Management believes that equal standards should be applied to all waste generated in the United States regardless of where disposal takes place.173

Further testimony was received from Greenpeace, whose representative, Pat Costner, advocated either requiring disposal practices in the receiving country equivalent to those required in the United States, or imposing a total ban on the exports of hazardous waste. These approaches, it was argued, would close the loophole that allows generators to avoid United States disposal requirements designed to pressure industry to minimize waste generation. Costner noted that waste exportation had not yet become a major industry, but emphasized that the potential flow of wastes from the United States is enormous; current waste export proposals would result in shipment of over seven million tons of waste a year from the United States to such countries as Panama, Guyana, Guinea-Bissau, the United Kingdom, and the Congo. Costner implied that if waste exports are allowed to grow, it may be politically more difficult to stop them later because there will be vested interests of an established export industry.

In response to the congressional oversight hearings in July, an EPA working group developed several proposed alternatives to the legislative measures introduced in Congress.174 This effort was suspended, however, when Administration officials received indications that the 100th Congress would not take action on waste exports before adjournment. While the 101st Congress will surely face this issue, it is too early to speculate about the possible success of legislative initiatives on waste exportation.

Proposed UNEP and OECD Treaties That Would Require Modification of United States Law Governing Waste Exports

Recent publicity surrounding waste exports has prompted [19 ELR 10181] not only congressional activity, but has given a renewed impetus to international efforts, including negotiations towards comprehensive OECD and UNEP treaties on hazardous waste exports.175 The current draft of the proposed UNEP treaty would require that "Contracting Parties … take all practicable steps to ensure that transboundary movements of hazardous wastes are conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movements."176 Specifically, the treaty would require parties to the treaty to "[e]nsure that the transboundary movement of hazardous wastes is kept to the minimum compatible with the efficient and environmentally sound management of hazardous wastes …"177 and that each contracting party "[n]ot permit the export of hazardous wastes from its territory if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner."178 Similarly, the most recent draft of the proposed OECD treaty provides that "the competent authority of the country of exportation shall prohibit an export if it has reason to believe that the hazardous wastes in question will not be disposed in an environmentally sound manner, taking into account [the information required to be provided by the exporter in the Hazardous Waste Notification.]"179

Thus, as currently proposed, both treaties would require, among other things, that exports be prohibited if the exporting country has "reason to believe" that the wastes will not be managed in an environmentally sound manner.180 The EC '84 Directive seems to fulfill this requirement, since it provides that the exporter must supply evidence of the existence of a contractual agreement with a consignee who has "adequate technical capacity for the disposal of the waste in question under conditions presenting no danger to human health and the environment."181

In contrast, United States law does not contain any provision for prohibiting a shipment when there is reason to believe that improper disposal is occurring. The Administration was therefore pressured to continue its consideration of the waste exports issue even after the threat of congressional action had disappeared, because of OECD and UNEP negotiating sessions scheduled for October and November of 1988. The United States is in a difficult negotiating position in these organizations. Unless the United States has conformed its domestic law to the requirements of the UNEP and OECD proposals or intends to modify its law to conform to such requirements, it cannot in good faith continue to negotiate on the treaties, nor can it agree to treaty provisions that conflict with United States domestic law.

A possible existing source of authority for the United States government to halt shipments where there is reason to believe that environmentally unsound disposal is taking place is the Export Administration Act.182 This statute provides the President with authority, which has been delegated to the State Department, to halt a shipment "to the extent necessary to further significantly foreign policy [interests] of the United States or to fulfill its declared international obligations."183 Because the improper disposal of hazardous wastes abroad surely involves foreign policy interests of the United States, the Export Administration Act might provide legal authority for the United States government to halt a shipment when it appears that wastes are not being managed in an environmentally sound manner. Moreover, if the United States were to sign the UNEP or OECD treaties as proposed, one of its "declared international obligations" would be to halt shipments where it had "reason to believe" improper disposal was occurring. Nevertheless, the Export Administration Act is a cumbersome mechanism for regulating waste exports, because it requires that the "President shall, in every possible instance, consult with Congress before imposing any controls" on exports.184 Thus, more specific authority is probably desirable and may be necessary to comply fully with the UNEP and OECD treaty proposals.

Several options for modifying existing law were developed by an interagency working group comprised of representatives of EPA and the State Department.185 These options may be summarized as follows:

1. Maintain current RCRA prenotification and consent requirements (i.e., the status quo).

2. Increase the amount of information supplied to receiving countries when they are notified of a proposed shipment, including information about United States disposal requirements.

3. Continue the current prenotification and consent procedure but provide additional authority for the government to prohibit shipments where there is "reason to believe" that the exported wastes will not be handled in an environmentally sound manner.

4. Ban exports of hazardous wastes except to countries with which the United States has a bilateral agreement specifying exported wastes will be handled in an environmentally sound manner.

5. Ban exports of hazardous wastes without exception.

Of these options, the working group, with the concurrence of the State Department and EPA, recommended options 2 and 4 for consideration by the Reagan Administration's Domestic Policy Counsel. Option 1, maintaining the status quo, was eliminated because of public and congressional pressure to take action, and option 3 was discarded because of concerns that case-by-case environmental assessments of disposal practices abroad would be impractical, and concerns that giving EPA [19 ELR 10182] authority to prohibit shipments might set a precedent for limiting exports of other items such as nonhazardous waste or pesticides. These recommendations were never acted on because of a recommendation by the Office of Management and Budge (OMB), that no legislative changes be made. In the view of OMB, the problem of hazardous waste exports is a "free-market" issue that businesses and governments can solve with a minimum of international regulation.186

Former EPA Administrator Lee Thomas has stated that he favors an approach that utilizes bilateral agreements rather than the current case-by-case consent approach.187 The use of bilateral agreements could be structured to satisfy the OECD and UNEP requirements if provisions are made to assure that no bilateral agreement would be consummated unless the receiving country had adequate disposal capacity.188 Periodic review would be required to insure that proper waste management was occurring.189

Following OMB's blockage of the EPA-State Department working group proposal, Sen. Kasten (R-Wisc.) wrote to then-President Reagan, noting, "Both the Environmental Protection Agency and the State Department have recently recommended the United States support inclusion of the 'reason to believe' provision in the [UNEP and OECD] agreements. It is my understanding that the Office of Management and Budget has blocked proposals to allow United States negotiators to support this provision." The Senator concluded his letter by asking that the Administration drop its opposition to the "reason to believe" standard.190

Conclusion

None of the existing legal provisions deals with the root of the problem of transfrontier shipment of hazardous waste, namely the economic force that drives hazardous waste, like water flowing downhill, to seek the country with the least costly disposal requirements.191 The notice and consent provisions of the United States, the EC, and the OECD give the appearance of gaining the "informed consent" of receiving countries. But it is doubtful that this "consent" is truly "informed," since many of the receiving countries lack the scientific and institutional framework to develop comprehensive policies on hazardous waste management.192 Moreover, it is quite possible that such "consent" will not have much legal force when receiving countries begin to seek compensation for the health and environmental effects of improper disposal.193

Although proposals to strengthen existing legal provisions governing exports of hazardous wastes offer a step in the right direction, the long-term, "whole world" solution to the hazardous waste problem is not simply to play a shell game by moving wastes around the globe, but to prohibit all waste exports and to address the problem directly, at its sources. Halfway measures such as the reason to believe standard or measures that would continue to permit waste exports pursuant to bilateral agreements effectively condone waste exports and provide a cheap way for generators to avoid RCRA disposal requirements. Congress made clear that one of its chief objectives in enacting RCRA was to encourage waste minimization.194 Only by closing the loophole that allows waste exports will generators be prevented from passing the environmental costs of hazardous waste generation to foreign countries. The RCRA scheme is designed to internalize the costs of generation; that is, to put generators in the position of paying for safe disposal. When this occurs, generators have incentives to take cost-effective measures to minimize or eliminate waste as Congress intended. As much as half of the hazardous waste generated in the United States could be eliminated within thenext few years using currently available technology, the Office of Technology Assessment concluded in a report released June 25, 1987.195 The report cautioned that this degree of waste reduction cannot be accomplished without a governmental effort in the form of technical assistance to overcome industry reluctance to use waste reduction methods.196

Industry reluctance to incur the short-term costs of implementing such methods is the raison d'etre of the hazardous waste export boom.197 But such savings may prove illusory in light of the long-term foreign policy problem that generator countries will face when receiving countries expect compensation for damages caused by unsafe disposal.198 As the Bhopal incident vividly illustrated, tort litigation199 recognizes few boundaries. Or, as they say, "What goes around, comes around."

1. This is the figure estimated by the Chemical Manufacturer's Association for 1985. 10 INT'L ENV'T REP. (BNA) 361 (July 1987). This may be a low figure. The Congressional Office of Technology Assessment estimates the figure to be nearly 575 million tons. OFFICE OF TECHNOLOGY ASSESSMENT, FROM POLLUTION TO PREVENTION: A PROGRESS REPORT ON WASTE REDUCTION 19 (June 1987).

2. COMMISSION OF THE EUROPEAN COMMUNITIES, BACKGROUND REPORT ON TRANSPORT OF DANGEROUS GOODS AND WASTES (Aug. 5, 1987).

3. The amount of savings has been estimated to be in the range of $ 75 per ton. See ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, TRANSFRONTIER MOVEMENTS OF HAZARDOUS WASTES 8-9 (1985) (hereinafter OECD).

4. Id. at 8. See also Porterfield & Weir, The Export of U.S. Toxic Wastes, THE NATION 325 (1987).

5. See Porterfield & Weir, supra note 4, at 344. Historically the majority of United States toxic waste exports have gone to Canada, where regulations are less stringent than in the United States. Id. at 341. The Caribbean is also becoming a target area because of the low cost of transportation. According to Dr. Noel Brown of the United Nations Environment Programme (UNEP), "It's cheaper to barge it down there than to move it overland forty miles." Id. at 343.

6. Lubinska, Danger: Deadly Cargoes on the Move, EUROPE, Jan./Feb. 1985, at 10, 11.

7. Id.

8. Id.

9. OECD, supra note 3, at 7-16.

10. The United States law governing export of hazardous waste was enacted in 1984. See infra note 34 and accompanying text. The European Community (EC) Directive on Transfrontier Movements of Hazardous Waste was also enacted in 1984. See infra notes 70-73 and accompanying text.

11. THE JOURNAL OF COMMERCE, Mar. 12, 1984, at 13.

12. Id.

13. Lubinska, Questions Raised on Transport of Nuclear Material, EUROPE, Nov./Dec. 1984, at 28, 29.

14. 6 INT'L ENV'T REP. (BNA) 257 (June 1983).

15. Directive on the Supervision and Control Within the European Community of the Transfrontier Shipment of Hazardous Waste, 27 O.J. EUR. COMM. (No. L 326) 31 (1984) (hereinafter the '84 Directive). The European Parliament is the policy-making body of the EC. The member states are bound to enact legislation to implementthe Directives enacted by the EC Council. See infra note 71.

16. The Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221 (1984). RCRA is codified at 42 U.S.C. §§ 6901-6991i, ELR STAT. RCRA 001-046.

17. In addition to international export of hazardous wastes, HSWA deals with such issues as liability for environmental damage and extends EPA regulatory authority to include small quantity generators of waste. See RCRA §§ 7003, 3001(d), 42 U.S.C. §§ 6973, 6921, ELR STAT. RCRA 034, 009, respectively. See also infra notes 51-53 and accompanying text for a discussion of RCRA's liability provisions.

18. See RCRA § 3017, 42 U.S.C. § 6938, ELR STAT. RCRA 023.

19. The EC directive contains a multipart form that must accompany the waste and that must evidence the approval of the governments of the countries involved. See infra notes 70-110 and accompanying text. The United States uses a "manifest" system that is a slight modification of the system used for hazardous waste shipments within the United States. See infra notes 34-69 and accompanying text. Both systems create a "paper trail" by which the waste may be traced to its source.

20. See infra notes 131-147 and accompanying text.

21. See infra notes 175-190 and accompanying text.

22. Unless the receiving country has enacted its own set of controls, there may be no regulation of disposal at all. Neither HSWA nor the '84 Directive and its amendments requires any inspection or follow-up to assure that waste is disposed of in adequate facilities abroad.

23. Porterfield & Weir, supra note 4, at 344.

24. See OECD, supra note 3, at 11. Seealso infra notes 148-152 and accompanying text.

25. For example, United States law provides for joint and several liability of generators for cleanup costs. See RCRA § 7003, 42 U.S.C. § 6973, ELR STAT. RCRA 034; CERCLA § 107, 42 U.S.C. § 9607, ELR STAT. 44024. See also infra notes 51-55 and accompanying text.

26. For a discussion of the legal and political obstacles to extraterritorial application of United States law see Galli, Hazardous Exports to the Third World; The Need to Abolish the Double Standard, 12 COLUM. J. OF ENVTL. L. 71, 75 (1987).

27. Hazardous waste, unlike other commodities transported across national frontiers, has zero or negative value in most instances. Thus, in economic terms it is not a "good" but is instead termed a "bad." This means that the usual incentives for maintaining the integrity of the cargo (i.e., loss of revenue due to lost or damaged merchandise) do not exist; the transporter is tempted to "lose" the cargo en route. See OECD, supra note 3, at 211.

28. Porterfield & Weir, supra note 4, at 343.

29. Id.

30. Id. at 344.

31. Pesticide Protection, Newsweek, November 9, 1987, at 71. This phenomenon has been termed the "boomerang" effect.

32. See infra notes 148-190 and accompanying text for a discussion of current national and international efforts to strengthen controls over hazardous waste exports.

33. A comprehensive, but slightly outdated comparison of the legal systems for control of exports of hazardous waste may be found in Comment, International Regulation of Transfrontier Waste Shipments: A New ECC Environmental Directive, 21 TEX. INT'L L.J. 85 (1985).

34. See Background and Summary of Final Rule, 51 Fed. Reg. 28664 (1986), discussing the effect of HSWA and promulgating regulations to implement the provisions governing hazardous waste export.

35. The notification, which is to be sent to the EPA Office of International Activities (OIA), must be in writing, signed by the primary exporter, and include the following information: (1) name, mailing address, telephone number, and EPA identification number of the primary exporter; (2) a description of: (i) the waste, (ii) the estimated frequency or rate of export, (iii) the estimated total quantity of such waste, (iv) all points of entry to and departure from each foreign country through which the waste will pass, (v) the means of transportation, (vi) the manner in which the hazardous waste will be treated, stored, or disposed of in the receiving country, (vii) the name and address of the ultimate treatment, storage, or disposal facility, and (viii) the name of any transit country through which the hazardous waste will be sent. 40 C.F.R. § 262.53(a)-(b) (1987).

36. RCRA § 3017(d), 42 U.S.C. § 6938(d), ELR STAT. RCRA 024. International agreements may take the place of the consent requirements. RCRA § 3017(f), 42 U.S.C. § 6938(f), ELR STAT. RCRA 024. The United States currently has such agreements with Canada and Mexico.

The agreement with Canada, effective November 8, 1986, requires advance notice of intent to export, but consent is implied if no objection is received within 30 days. The agreement with Mexico requires notice of intent to export and consent by the Mexican government within 45 days. No consent is implied from a failure to respond. The agreement with Mexico contains a unique provision for "in-bond" materials. This provision applies to United States companies with twin plants in adjacent areas of Mexico and the United States. Raw materials are moved into Mexico for further processing. Any hazardous waste generated by such processing is to be returned to the United States for disposal; it is considered to be United States hazardous waste and not an import. EPA, OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING, ENFORCEMENT STRATEGY: HAZARDOUS WASTE EXPORTS, 9-10 and appendices B & C (National Enforcement Investigations Center, 1988) (hereinafter ENFORCEMENT STRATEGY).

37. 40 C.F.R. § 262.52(e) (1987). OIA transmits the pertinent information from the notice of intent to the State Department, which then sends a cable to the United States embassy in the receiving country. The embassy then translates the information into the local language if needed and submits this information to the appropriate environmental agency. When consent is given or an objection arises, the procedure is reversed and the consent cabled back to the State Department for transmittal to OIA. This procedure often takes several months, especially if there are questions or misunderstandings by the receiving country concerning the specifics of a shipment. See ENFORCEMENT STRATEGY, supra note 36.

EPA regulations also require notice to all "transit countries." 40 C.F.R. § 262.52(e) (1987). Consent, however, is not required of transit countries. See Response to Comments, 51 Fed. Reg. 28667 (1987).

38. RCRA § 3017(d), 42 U.S.C. § 6938(d), ELR STAT. RCRA 024.

39. RCRA § 3017(d)(4), 42 U.S.C. § 6938(d)(4), ELR STAT. RCRA 024.

40. RCRA § 3017(e), 42 U.S.C. § 6938(e), ELR STAT. RCRA 024.

41. RCRA § 3017(a)(1)(D), 42 U.S.C. § 6938(a)(1)(D), ELR STAT. RCRA 023. The notice and consent are contained in the EPA "manifest" that accompanies the waste. This "manifest" is a modification of the document that is used in domestic waste transport. See 40 C.F.R. § 262.50(b) (1987). The exporter is to require the foreign "consignee" of the waste to confirm the delivery of the waste in the foreign country. Id. at § 262.50(b)(2).

42. RCRA § 3017(g), 42 U.S.C. § 6938(g), ELR STAT. RCRA 024.

43. "Hazardous waste" is defined in RCRA § 1004(5), 42 U.S.C. § 6903(5), ELR STAT. RCRA 004 and 40 C.F.R. § 261 (1987).

44. 40 C.F.R. § 262.56. Reports covering the previous calendar year are to be submitted to OIA by March 1 of each year. Id. The reports filed by exporters in even-numbered years must include a description of the efforts undertaken during the year to reduce the volume and toxicity of the waste generated. Id. at § 262.56(5)(i).

45. Id. at § 262.56(6) The certification must include the statement, "I am aware that there are significant penalties for submitting false information including … fines and imprisonment." Id.

46. See infra notes 89-95 and accompanying text for a comparison to the EC definition that is being considered for adoption in the draft UNEP and OECD treaties.

47. RCRA § 1004(5), 42 U.S.C. § 6903(5), ELR STAT. RCRA 004.

48. 40 C.F.R. § 261.30-33 (1987). These regulations list the types of waste that are defined as hazardous, as well as hazardous "constituents."

49. There are four "characteristics" that result in waste being classified as hazardous. These are: ignitability, corrosivity, reactivity, and E.P. (extractive procedure) toxicity. 40 C.F.R. §§ 261.3 and 261.20-24 (1987).

50. EPA has rejected a proposal to include hazardous wastes that are identified under state programs but are not included in the "federal universe" of hazardous wastes. See Response to Comments, 51 Fed. Reg. 28679 (1986).

51. RCRA § 3008, 42 U.S.C. § 6928, ELR STAT. RCRA 019.

52. 42 U.S.C. § 6973, ELR STAT. RCRA 034. A few courts have held that the federal government may obtain cleanup costs on a restitution theory under § 7003. See, e.g., United States v. Northeastern Pharmaceutical and Chemical Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. Dec. 31, 1986). Similarly, response costs are arguably available in citizen suits under RCRA § 7002.

53. 42 U.S.C. § 6972, ELR STAT. RCRA 033.

54. 42 U.S.C. § 9607, ELR STAT. 44024.

55. Id.

56. See Foley Brothers v. Filardo, 336 U.S. 281 (1949).

57. In the event of an accident involving the export of hazardous wastes from the United States, it seems likely that foreign citizens or governments would attempt to hold the United States government liable under international law for the activities of private parties over which it exercises control. See Galli, supra note 26, at 82. See also Berkovitz v. United States, 486 U.S. __, 108 S. Ct. 1954 (1988), which leaves open the possibility that the government could be held liable for nondiscretionary acts arising out of its regulatory programs. Thus, in a situation where the United States government had failed to abide by its obligation under HSWA to prohibit waste exportation in the absence of the consent of the receiving country, it is arguable that the government should be held liable for damage resulting from transport or disposal of the waste.

58. 42 U.S.C. § 6938, ELR STAT. RCRA 023.

59. S. REP. NO. 98-284, 98th Cong., 1st Sess. 48 (1983).

60. 9 INT'L ENV'T REP. (BNA) 449 (Dec. 1986).

61. 10 INT'L ENV'T REP. (BNA) 20 (Jan. 1987).

62. Id.

63. EPA, Program to Control Exports of Hazardous Waste, Audit Report No. E1D37-05-0456-80855, at 14 (Mar. 1988) (hereinafter EPA Audit).

64. Porterfield & Weir, supra note 4, at 341. EPA auditors contacted some exporters who filed annual reports of exports but failed to give the required notice and obtain the consent of the receiving country. Officials of these companies claimed to be unaware of the notification requirements even though they have been in effect since 1980. EPA Audit, supra note 63, at 15.

65. Porterfield & Weir, supra note 4, at 341.

66. EPA Audit, supra note 63, at 15.

67. 40 C.F.R. § 262.53(a)(2)(vi) (1987).

68. EPA Audit, supra note 63, at 43. EPA's Audit Report pointed out a number of weaknesses in the Hazardous Waste Enforcement program. These included: 1) lack of inter-governmental coordination, 2) lack of an effective nationwide monitoring program by the United States Customs Service, 3) regulations that do not clearly describe what information exporters must include in the notice of intent to export regarding the manner in which the wastes are to be handled and disposed of, 4) inadequate procedures to notify exporters when a receiving country objects to a shipment, and 5) lack of EPA accountability for the program. Id.

69. As Gary Steakley, an EPA enforcement official queried, "Regulations (don't stop) illegal drugs. Why should they stop dumping of toxic wastes?" Porterfield & Weir, supra note 4, at 341.

70. See INT'L ENV'T REP. (BNA) 3 (Jan. 1984). Among the points that prolonged negotiations was the question whether the system adopted should include both notification and a system of prior authorization by the receiving country. Id.

71. The EC is comprised of Belgium, Denmark, France, Federal Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal, Spain, and the United Kingdom, and derives its legislative power from the Treaty of Rome that established the EC in 1957. The member states are bound by the treaty to take all necessary steps to assure that directives adopted by the Council are implemented. They have individual discretion as to the precise measures required to accomplish the directives. See S. GUSMAN, K. VON MOLTKE, F. IRWIN AND C. WHITEHEAD, PUBLIC POLICY FOR CHEMICALS, 6 (1980).

The EC Commission, consisting of citizens from each of the member countries, initiates EC policy by making proposals to the Council of Ministers, or EC Council, which has decisionmaking authority. The Council consists of officially appointed delegates from each member state. The European Parliament has authority to dismiss the Council if there is a two-thirds vote for such action, but has no independent legislative authority. The Parliament is frequently the forum for political debate, because its members are elected at-large from political rather than national groups. The EC Court of Justice, consisting of 13 judges, has authority to enforce measures enacted by the Council. It also has authority to void legislation of member states that is inconsistent with EClaw.

72. See '84 Directive, supra note 15.

73. The '84 Directive also sets up requirements for packaging and labeling of such shipments. Id. art. 8.

74. Id. art. 3(1). The "competent" authority is defined as the authority designated by the member state to which or through which the shipment will be transported. Id. art. 2(1)(e).

75. "Consignee" is defined as the party to whom the waste is shipped for disposal. Id. art. 2(1)(e).

76. Id. art. 3(3).

77. Id.

78. Id. art. 4(1).

79. Id. art. 4(3).

80. Id. art. 4(6). Once the acknowledgement is received, the exporter must prepare a "consignment note" that must accompany the waste on its journey. Each handler of the waste must fill out a portion of the note and retain a copy. Id.

81. Id. art. 3(4).

82. The notice is the same as that provided to member states.

83. '84 Directive, supra note 15, art. 3(4).

84. 29 O.J. EUR. COMM. (No. L 181) 13 (1986) (86/229/EEC) (hereinafter '86 Amendment).

85. Id. art. 3(4).

86. Id. art. 4(1). The notice must contain a copy of the agreement. Id. art. 3(4).

87. It is noteworthy that the EC system makes no provision for publicizing such reports as would be possible in the United States through the Freedom of Information Act, 5 U.S.C. § 552, ELR STAT. ADMIN. PROC. 011.

88. This provision seems tailored to providing information about accidents such as the Seveso incident, which provided the impetus for much of the action taken in Europe to monitor hazardous waste transport. See supra text accompanying notes 11-15.

89. 21 O.J. EUR. COMM. (No. L 84) 43 (1978) (Directive 78/319/EEC) (hereinafter '78 Directive).

90. Id. art. 2(1)(a).

91. Id. Unlike the RCRA definition, the '84 Directive provides a limited exception for non-ferrous metal wastes intended for recycling. See '84 Directive, supra note 15, at art. 17.

92. '78 Directive, supra note 89, at art. 2(1)(a).

93. The "core" list of chemicals is the only part that is uniform. Id.

94. The exporter must compare "listed" substances and concentrations for every transit and receiving country. The '84 Directive makes no provision for making this information available.

95. The "core" list is one of the features that has been included in the OECD's most recent draft treaty. See infra note 144 and accompanying text.

96. '84 Directive, supra note 15, at art. 11(3). Apparently no such agreement has been reached to date.

97. See also Lubinska, Questions Raised on Transport of Nuclear Material, EUROPE, Nov./Dec. 1984, at 28, 29.

98. '84 Directive, supra note 15, at art. 4(5). This language was apparently the result of a dispute over whether the producer should be held liable. See 7 INT'L ENV'T REP. (BNA) 4 (Jan. 1984). France sought a producer liability provision that was opposed by Germany. Id.

99. '84 Directive, supra note 15, at art. 11(1).

100. Id. art. 3(3).

101. The availability of insurance for disposal facilities is problematic, but insurance to cover the risks inherent in transit should readily be available and would provide a transit or disposal country with at least some assurance that the exporter is financially responsible.

102. The EC has the power, through the European Court of Justice, to assure compliance by member countries. See S. GUSMAN AND K. VON MOLTKE, supra note 71, at 6.

103. See supra notes 89-95 and accompanying text.

104. The need for uniformity on these matters is probably less acute than the need for uniform definitions of hazardous waste. Nevertheless, non-uniformity presents obstacles to effective enforcement and will continue to be a source of difficulty in implementing the '84 Directive.

105. 11 INT'L ENV'T REP. 375 (BNA) 375 (July 1988).

106. Id.

107. See Lubinska, supra note 13, at 29.

108. 11 INT'L ENV'T REP. (BNA) 526-27 (Oct. 1988).

109. Id.

110. See supra notes 71 and 102.

111. See supra notes 89-95 and accompanying text.

112. See Response to Comments, 51 Fed. Reg. 28670 (1986), wherein EPA specifically considered and rejected a proposal to broaden the definition of hazardous wastes to include wastes regulated abroad. The agency felt that this would complicate the existing manifest system, which is utilized for both export and domestic shipments. Currently if a waste is subject to the manifest requirement when shipped domestically, it will also be subject to the notice and acknowledgement provisions if exported. EPA felt that a dual system was unwarranted under existing law. Id.

113. Id. According to Pamela Savage of the EPA Office of General Counsel, EPA is concerned that expanding the scope of wastes covered by the export law "could result in pressures to list additional wastes under RCRA." 10 INT'L ENV'T REP. (BNA) 314 (July 1987).

114. This feature of United States law has caused problems in negotiating international treaties to govern export of hazardous wastes. See infra notes 139-144 and accompanying text.

115. See supra notes 89-95 and accompanying text.

116. Response to Comments, 51 Fed Reg. 28670 (1986).

117. See infra notes 139-144 and accompanying text.

118. See supra notes 42-45 and 87-88 and accompanying text.

119. The '84 Directive provides that member states are to prepare reports that are forwarded to the EC Commission. '84 Directive, supra note 15, at art. 13. On the basis of reports forwarded by the member states to the Commission, the Commission is to prepare a summary report for the EC Council, the European Parliament, and the Economic and Social Committee. Id. at art. 14.

120. Id. art. 13, 14.

121. See supra notes 96-101 and accompanying text.

122. The RCRA and CERCLA liability provisions do not provide for recovery of cleanup costs incurred outside the United States. See supra notes 51-57 and accompanying text.

123. The '84 Directive provides that the member state of destination may object to a shipment "on the basis of laws relating to environmental protection, safety and public policy or health protection …" '84 Directive, supra note 15, at art. 4(3). Insurance requirements would seem to fall within at least one of these categories. Furthermore, the '86 Amendment requires agreement by nonmember destination countries. '86 Amendment, supra note 84, at art. 3(4). A requirement of adequate liability insurance could easily be made a part of such agreement.

124. See Porterfield & Weir, supra note 4, at 341.

125. OECD, supra note 3, at 97.

126. See id.

127. See id. Obviously, expensive equipment and training would be needed to perform on-the-spot analysis at border crossings.

128. Article 4 of the '78 Directive on Toxic and Dangerous Wastes does implore member states to take steps to encourage the prevention of toxic and dangerous waste, and its processing and recycling. Similarly, RCRA § 1003(a)(6) espouses the objective of "protection of health and the environment …" and conservation of "valuable mineral and energy resources by … minimizing the generation of hazardous wastes and the land disposal of hazardous waste by encouraging process substitution, materials recovery, properly conducted recycling and reuse, and treatment…." RCRA § 1003(a)(6), 42 U.S.C. § 6902(a)(6), ELR STAT. RCRA 003.

129. Answer to Written Question No. 543/85, Commission of the European Communities, Spokesmen's Service (Sept. 11, 1985).

130. 42 U.S.C. § 6902(a)(6), ELR STAT. RCRA 003.

131. The OECD is comprised of the twelve EC countries, the United States, plus Australia, Austria, Canada, Finland, Iceland, Japan, New Zealand, Norway, Sweden, Switzerland, and Turkey.

132. These current efforts are discussed infra at notes 175-190 and accompanying text.

133. DECISION AND RECOMMENDATION ON TRANSFRONTIER MOVEMENTS OF HAZARDOUS WASTES, OECD Document (83) 180 (final) reproduced at 23 INT'L LEGAL MAT'L 214 (1984) (hereinafter '83 DECISION AND RECOMMENDATION). For a discussion of the background of the '83 DECISION AND RECOMMENDATION, see Smets, Transfrontier Movement of Hazardous Wastes, 14 ENVTL. POL'Y & L. 16 (1985).

134. The governing body of the OECD is the Council, composed of representatives from each member country. Unlike the EC, the OECD has no legislative authority but may make "recommendations" that are nonbinding and "decisions" that are binding on member states and are often adopted with a view toward the eventual establishment of treaties. See S. GUSMAN AND K. VON MOLTKE, supra note 71, at 8.

135. See supra note 134.

136. '83 DECISION AND RECOMMENDATION, supra note 133, at 215.

137. Id.

138. See supra notes 34-41 and 70-86 and accompanying text.

139. '83 DECISION AND RECOMMENDATION, supra note 133.

140. See supra notes 111-112, and accompanying text.

141. The dispute over what wastes are to be covered has been a major point of contention in the negotiations over an OECD treaty on hazardous waste exports. In 1985 the chairman of the OECD Environment Conference expressed hope that a treaty could be reached by 1987. 8 INT'L ENV'T REP. (BNA) 150 (May 1985). But for some time talks were at an impasse over the "coverage" issue. 10 INT'L ENV'T REP. (BNA) 356 (July 1987).

142. See Response to Comments, 51 Fed. Reg. 28670 (1986).

143. 10 INT'L ENV'T REP. (BNA) 356 (July 1987) (quoting Fitzhugh Greene, former EPA Associate Administrator for International Activities.) See supra note 113 regarding the possible complication of the existing manifest system.

144. While the question of what constitutes a hazardous waste is still up for discussion, the OECD seems to have reached agreement on a list of "core" chemicals based upon the agreement of UNEP at the June 1988 meeting in Caracas. 11 INT'L ENV'T REP. (BNA) 376-7 (July 1988). Both UNEP and OECD are working towards the goal of a global convention, which at press time was to be signed in Basel, Switzerland, in March 1989. Id. at 377.

145. '83 DECISION AND RECOMMENDATION, supra note 133, General Principles, para. 3(a).

146. See 10 INT'L ENV'T REP. (BNA) 215 (July 1985).

147. See supra notes 121-123 and accompanying text.

148. 11 INT'L ENV'T REP. (BNA) 325 (June 1988).

149. Id.

150. Id.

151. See The Trashing of Africa, GREENPEACE, Sept./Oct. 1988, at 19, col. 3.

152. Layman, Italian Toxic Waste Ship Can Find No Port, CHEMICAL AND ENGINEERING NEWS, Sept. 5, 1988, at 6.

153. Although the bills died when the 100th Congress closed at the end of 1988. The same or similar legislation is likely to be introduced in the new Congress.

154. S. 2598, 100th Cong., 2d. Sess., 134 CONG. REC. S8809-10 (daily ed. June 29, 1988).

155. Id. § 4(a)(8).

156. Id. § 8(a)(6).

157. Id. § 4(a)(8).

158. Id. § 4(b).

159. Id.

160. 42 U.S.C. § 6938, ELR STAT. RCRA 023, H.R. 5018, 100th Cong., 2d Sess. (1988). The measure would delete the existing provision, RCRA § 3017, and create a new § 1009, entitled "Export of Solid Waste." Id. § 2(b).

161. The measure would permit exports of baled waste paper, metals, plastics, or other materials exported and destined for recycling and reuse unless such material is one of the following: (1) a hazardous waste listed or identified under Subtitle C, (2) a substance whose storage, treatment, or disposal within the United States is regulated under the Toxic Substances Act, (3) mixed municipal solid waste, or (4) ash or other residue from incineration of solid waste. Id. § 2(a).

162. See supra note 36.

163. H.R. 5018, 100th Cong., 2d Sess., § 2(a). The proposed penalties provision is as follows:

(e) CRIMINAL PENALTIES. — Any person who knowingly violates the prohibition contained in this section or any requirement of regulations promulgated under subsection (b) shall be subject to a fine in an amount not to exceed $ 50,000 or imprisonment for not to exceed 2 years, or both, for each such violation. If the conviction is for a violation committed after a first conviction of such person under this subsection, the maximum punishment may be doubled with respect to both fine and imprisonment.

Id. See also 134 CONG. REC. E2353 (daily ed. July 12, 1988) (remarks by Rep. Conyers).

164. The Baucus bill, S. 2773, 100th Cong., 2d Sess., 134 CONG. REC. S12289 (daily ed. Sept. 9, 1988), entitled the "Waste Minimization and Control Act of 1988," addresses a variety of RCRA issues in addition to those dealing with waste exports. The Porter bill, H.R. 5434, 100th Cong., 2d Sess., entitled "Waste Act to Save the Environment," deals only with waste exports and contains provisions similar to those of the Baucus bill. Both measures would require bilateral agreements for exports of either solid or hazardous waste. The Baucus bill would require exporters to register with EPA, while the Porter measure would require EPA approval of each export shipment. As a prerequisite to such approval, EPA would have to make a finding that the treatment, storage, or disposal of the waste to be exported would be carried out in accordance with "environmental standards" no less strict than those required by federal law in the United States.

165. See 11 INT'L ENV'T REP. (BNA) 434 (Aug. 1988).

166. Id.

167. See supra notes 63-69 and accompanying text.

168. See id.

169. EPA Audit, supra note 63.

170. See supra notes 66-69 and accompanying text.

171. See EPA Audit, supra note 63, at 5.

172. 11 Int'l Env't Rep. (BNA) 434 (Aug. 1988). Mr. Meyers was asked by Rep. Synar whether he felt that EPA should have authority to stop a particular waste export when the Agency found that improper disposal was occurring. Meyers' response was noncommittal.

173. The writer was in attendance for this testimony.

174. The writer served on this working group as the representative for the EPA Office of Enforcement and Compliance Monitoring. See infra notes 185-190 and accompanying text.

175. An OECD working group met in October 1988, and a UNEP working group met in November, in efforts to negotiate international conventions governing transboundary shipment of hazardous waste. 11 INT'L ENV'T REP. (BNA) 470-71 (Sept. 1988). See also supra note 144.

176. UNEP, Third Revised Draft Convention on the Control of Transboundary Movements of Hazardous Wastes, June 1988, art. II(1) (hereinafter UNEP Draft) (emphasis added).

177. UNEP Draft, art. II(2)(d).

178. Id. art. II(2)(f) (emphasis added).

179. Organisation for Economic Cooperation and Development, Finalisation of the Draft International Agreement on Control of Transfrontier Movements of Hazardous Wastes, Sept. 5, 1988, art. VI(4)(a) (emphasis added).

180. See supra notes 176 and 179 and accompanying text.

181. '84 Directive, supra note 15, art. 3(3). The '86 Amendment makes this provision applicable to shipment to destinations outside the EC. '86 Amendment, supra note 84, at art. 1.

182. 50 U.S.C. App. §§ 2402-2420.

183. Id. § 2405(a).

184. Id. § 2405(e). Furthermore, it is not clear that the Export Administration Act, which applies to "goods, technology, or other information," applies to waste. Id. § 2405(a).

185. The writer served on this working group as the representative of the EPA Office of Enforcement and Compliance Monitoring.

186. See New York Times, Nov. 22, 1988, at C4, col. 1. Apparently, OMB had also expressed opposition to the reason to believe standard. See infra note 190 and accompanying text.

187. 11 INT'L ENV'T REP. (BNA) 472 (Sept. 1988).

188. Id.

189. Id.

190. Letter from Sen. Kasten to President Reagan, Sept. 21, 1988.

191. Porterfield & Weir, supra note 4, at 344.

192. RCRA, the United States' provision, is barely 10 years old and is still in the process of being implemented.

193. Although the consent of the receiving country is arguably a defense available to exporters of hazardous waste, recent decisions seem to indicate an erosion of such common law defenses in the context of hazardous waste cases. For example, in New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985), the court rejected the defense of landowners who purchased property containing improperly disposed hazardous wastes and who had not been involved in the generation or disposal of the wastes. The court imposed liability under CERCLA and state tort law.

194. RCRA § 1003(a)(6) states that "[t]he objectives of [RCRA] are to promote the protection of health and the environment and to conserve valuable material and energy resources by … minimizing the generation of hazardous waste and the land disposal of hazardous waste by encouraging process substitution, materials recovery, properly conducted recycling and reuse, and treatment…." 42 U.S.C. § 6902(a)(6), ELR STAT. RCRA 003. The waste minimization goal is reiterated at RCRA § 1003(b): "The Congress hereby declares it to be the national policy of the United States that wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible." 42 U.S.C. § 6902(b), ELR STAT. RCRA 003.

195. 10 INT'L ENV'T REP. (BNA) 362 (1987). See also Biden, A New Direction for Environmental Policy: Hazardous Waste Prevention, Not Disposal, 17 ELR 10400 (1987).

196. Id.

197. See supra note 5 and accompanying text.

198. See id.

199. Tort remedies are clearly not the most desirable mechanism for compensation of parties harmed by waste exports. The weaknesses of common law remedies such as nuisance and trespass gave rise to the current environmental regulatory scheme. Even industry is advantaged by an even-handed and predictable regulatory system that removes some of the uncertainty associated with tort litigation. And there are obviously some industries that would benefit from strict regulation of waste exports. See supra text accompanying note 173 discussing the testimony of Waste Management, Inc., representatives favoring a ban on exports of hazardous waste.


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