February 11, 1999 (Revised 4/8/99)

ZWA UPDATE: WASTE CRISIS IN PENNSYLVANIA

ZWA PROPOSES STATES ADOPT FOUR-STEP SOLUTION TO WASTE IMPORT CRISIS:

1. Implement as many ‘waste disposal bans’ as possible, as soon as possible. This will immediately impact waste imports and make Pennsylvania a much less desirable dump site. Many states current disposal bans are only partial, such as Pennsylvania's.

2. Develop a true ‘state solid waste plan’, per federal requirements, to maximize waste reduction and recycling. See: Public Law 89-272, 42 U.S.C., § 6941 - 6949.

3. Request the Department of Justice to compel the EPA to enforce the Sate Planning provisions of the Solid Waste Disposal Act, or file a federal lawsuit against the EPA for same. This would compel states to maximize waste reduction and recycling, per the Act, thus reducing waste exports across the nation.

4. Pass a state resolution calling on the Congress to pass legislation to prohibit the import and export of disposal waste from foreign countries, an issue not addressed in the Solid Waste Disposal Act..

MORATORIUM LEG. MAY GUARANTEE HUGE MARKET FOR IMPORTS

See: Governor’s press release - http://www.state.pa.us/PA_Exec/Governor/Press_Releases/990202g.html

Governor Ridge has proposed a ‘permanent’ cap on the state's waste-disposal capacity based on 1997 ‘permitted’ capacity. Permitted Municipal Waste capacity (does not include all disposal facilities) in 1997 was 34,562,644 (used capacity-21, 618,856 / 63% of total permitted capacity, and unused capacity - 12,943,788/ 37%). If only municipal waste disposal facilities used all of their daily permitted capacity under Gov. Ridge’s proposal, Pennsylvania could have 37% more trash trucks on the road every day.

This cap would apply to a variety of disposal facilities, not just Municipal Waste facilities. This legislation may actually serve to guarantee the waste industry a huge market in Pennsylvania, rather than limit imports. It threatens to offset the impact of PA’s efforts to decrease waste disposal and increase recycling.

According to administration sources, this legislation will be almost identical to last year’s moratorium legislation, also endorsed by Gov. Ridge. The difference is that instead of a cap for eight years, this will be a permanent cap. Absent from the Governor’s press release (and last year’s moratorium legislation), is the total tonnage this capacity amounts to.

ZWA recommends no waste disposal permit cap (i.e., capacity restrictions), is better than Gov. Ridge’s proposal, which amounts to guaranteeing the waste industry a huge market. If a cap is established, then it should be based on the amount of waste generated in Pennsylvania minus waste recycled. Other than accommodating PA waste first, the disposal facilities would be free to accept waste from out of state. PA communities would also be free to export waste. Legislation to this effect was proposed a few years ago by Rep. David Steil.

For reference, see last session's ‘moratorium’ legislation:

"Imposition of statewide capacity cap.--Immediately upon expiration of the moratorium established in section 5, a Statewide cap on capacity at municipal waste landfills, construction/demolition waste landfills, resource recovery facilities and commercial residual waste disposal facilities shall take effect. The capacity cap imposed by this section shall limit Statewide capacity to no more than eight years of capacity using the amount of unused permitted Statewide capacity in 1997 and the amount of waste received in 1997 at these facilities."

SENATE BILL 252

Application of disposal bans on waste is what ZWA supports, but it must be done in a comprehensive non-discriminatory manner. It appears that SB 252 (below) is a violation of the Interstate Commerce Clause of the Constitution on two counts: 1) One state cannot dictate to another state which laws it should enforce, 2) This legislation refers to 'truckloads', which does not prohibit small amounts of said waste from truckloads of mixed waste. PA cannot ban designated out-of-state wastes, if PA does not ‘completely’ ban these wastes from in-state disposal. In order for this section (below) of legislation to be effective in stopping waste imports, the word ‘truckloads comprised of waste’ should be removed from the following passage:

Removal of other waste.--No municipal waste landfill may accept for disposal truckloads comprised of waste tires, used motor oil or major appliances.

 

No. 252 Session of 1999
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INTRODUCED BY KASUNIC, COSTA, BODACK, O'PAKE, STAPLETON AND
RHOADES, FEBRUARY 1, 1999

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REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, FEBRUARY 1, 1999
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AN ACT

1 Amending the act of July 28, 1988 (P.L.556, No.101), entitled
2 "An act providing for planning for the processing and
3 disposal of municipal waste; requiring counties to submit

4 plans for municipal waste management systems within their….
22 subsection to read:
23 Section 1502. Facilities operation and recycling.
24 * * *
------------------------------------------------------------------------->
1 (e) Removal of other waste.--No municipal waste landfill may
2 accept for disposal truckloads comprised of waste tires, used

3 motor oil or major appliances.
4 Section 2. The act is amended by adding a section to read:

5 Section 1513. Solid waste restricted.
6 No person shall transport into or deposit in this
7 Commonwealth, for the purpose of processing or disposal, solid

8 waste that was generated in another state unless the waste:
9 (1) meets all of the solid waste management regulations

10 of the state in which it was generated;
11 (2) contains none of the items specifically banned from
12 mixed municipal solid waste in this Commonwealth, including
13 waste tires, used motor oil, waste lead acid batteries, yard
14 waste, major appliances and any other item specifically
15 banned from the waste stream; or
16 (3) is being transported to a recycling facility as
17 defined in section 103.
18 Section 3. This act shall take effect immediately.

WASTE CAUCUS TO PROPOSE ‘DISPOSAL’ BAN LEGISLATION:

Representative David Steil (31 District), founder of the PA House Waste Caucus, says that Caucus members will introduce Pennsylvania's first comprehensive 'disposal ban' legislation this session. PA's current recycling mandates are not comprehensive, in that they do not apply to municipalities of less than 5,000 and there is currently no legal prohibition in PA against collected recyclables ending up in a landfill or incinerator.

PA disposal bans are not complete and vaguely worded. For example, the yardwaste ban only applies to "truckloads composed primarily of yardwaste," rather than yardwaste itself. The lead acid battery ban is vaguely worded and may qualify for disposal under federal guidelines for Small Quantity Generators of (hazardous) Waste. Therefore, current PA disposal bans do not stop trash trucks with these designated wastes mixed in.

The effectiveness of ‘disposal bans’ was discussed at the January 1999 DEP Southeast Regional Roundtable meeting that featured David Hess, DEP Executive Deputy Secretary for Policy and Communications, and Lynn Landes, of ZWA. Hess agreed that disposal bans would work, despite his earlier comments that there was no "magic bullet" to stop waste imports. Hess indicated that he was going to arrange a meeting between Rep. Steil and DEP Secretary Jim Seif.

ZWA is hoping that other waste streams will be added to the 'disposal ban' legislation. For several years, ZWA has lobbied for 'disposal bans', as well as scrapping Act 101 in favor of an effective State Solid Waste Plan. ZWA believes that these measures would comprise the most effective and immediate ways to stop waste imports.

In order for disposal bans to succeed, the state must provide for market and other supports. ZWA points out that many other industries receive substantial government support in the form of financial subsidies, laws, and policies.

BACKGROUND INFORMATION:

Spokespeople for the PA DEP continue to put their spin on Pennsylvania's present position as the nation's leading importer of waste. The DEP continues to insist that Pennsylvania has been a product of its own success, that there is no 'magic bullet,' and that the only solution to waste imports lies in federal legislation. ZWA disagrees.

STATES CAN STOP IMPORTS:

In 1978 the Supreme Court decided in Philadelphia v New Jersey, that states could not 'discriminate' against out-of-state waste. This case has been widely misinterpreted as prohibiting states from stopping waste imports. The Court explicitly allows states to stop waste imports into a state's disposal facilities as long as the law is applied to in-state waste, and "even though interstate commerce may incidentally be affected." This decision was reiterated in the 1995 National Solid Waste Association v. Meyer (representing Wisconsin), Federal Court of Appeal, 7th Circuit decision.

Reference:

In City of Philadelphia v. New Jersey, U.S. Supreme Court (1978), the Court suggested how New Jersey could protect its environment, "And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State's remaining landfills, even though interstate commerce may incidentally be affected."

In National Solid Waste Association v. Meyer (representing Wisconsin), the Federal Court of Appeal, 7th Circuit (1995) stated, "Specifically, the Wisconsin statute makes clear that, if the waste is processed by a materials recovery facility that separates the eleven listed materials, the waste will conform to the environmental needs of Wisconsin. Accordingly, Wisconsin could realize its goals of conserving landfill space and protecting the environment by mandating that all waste entering the State first be treated at a materials recovery facility with the capacity to effect this separation."

PENNSYLVANIA HAS NO ‘REAL’ STATE SOLID WASTE ‘PLAN’:

In 1976 the Solid Waste Disposal Act was passed by Congress. Part of the act required States to develop and implement a State Solid Waste Plan that maximized waste reduction and recycling for the protection of public health and the environment. The Pennsylvania's response in 1988 was Act 101. However, Act 101 is not in compliance with the planning provisions of the Solid Waste Disposal Act. It is not even a plan, but rather an act of good intentions. It 'prefers' recycling over waste disposal, but does not mandate it. It has a recycling ‘goal’ of 25%, but does not mandate it. PA counties were required to come up with so-called ‘plans’, however the amount of capacity approved by the counties and permitted by the PA Department of Environmental Regulation (now DEP) was well beyond the Pennsylvania’s needs. This opened a huge market for waste imports which has lead directly to PA present position as the leading importer of waste. An example, Bucks County generates less than 2,000 tons/day, but it is permitted to accept more than 20,000 tons/day.

FEDERAL INTERSTATE WASTE LEGISLATION WILL NOT WORK:

The long-proposed federal Interstate Waste legislation allows local communities to make agreements with the waste industry which can override any state action to stop waste imports. History has shown that many communities will succumb to the financial and political influence of the waste industry. That is why local control over waste disposal facilities is the fatal flaw in this legislation. << End >>