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Good afternoon, I am Russell J. Harding, Director
of the Michigan Department of Environmental Quality. The Department is Michigan’s
environmental regulatory agency, responsible for the air, water quality,
wetlands, waste management, and environmental cleanup programs.
I would like to thank the committee for the
opportunity today to discuss legislation that would be effective for managing
the interstate transfer of solid waste. In 1992, the United States Supreme Court
ruled, in the matter of Fort Gratiot Sanitary Landfill v. Michigan Department
of Natural Resources et al. (1992 Fort Gratiot decision), that provisions of
Michigan’s Solid Waste Management Act, which allowed counties to impose
restrictions on the importation of solid waste from other states and countries
through their Solid Waste Management Plans, violated the United States
Constitution and were not enforceable. The United States Constitution’s
Commerce Clause reserves, to the United States Congress, the authority to
regulate commerce between the states and with foreign countries. The Courts have
long recognized the so-called "dormant" nature of the Commerce Clause
as prohibiting states from such areas of regulation unless authorized by
Congress. As a result, while movement of waste between Michigan counties is
still regulated by state law, we are unable to restrict imports of solid waste
from outside of the state.
Solid waste import data has been collected by the
Department on a Fiscal Year (FY) basis since FY 1996. Data from these reports
indicate an increase in the level of imports over the last five years. Based on
data collected for the past five FYs, there has been an overall increase of 18
percent in the amount of solid waste being generated in Michigan. However,
imports of waste from Canada and other states rose by 41 percent during this
same time period.
Out-of-state and Canadian waste being disposed of
in Michigan is equivalent to approximately 20 percent of the solid waste stream
that is generated annually in Michigan. As a result, for every five years of
disposal of this volume of out-of-state waste, Michigan is losing a full year of
landfill capacity. Total out-of-state imports of waste into Michigan landfills
rose from 6,349,695 cubic yards during the 1999 reporting period to 9,373,115
cubic yards in FY 2000, an increase of 46.7 percent. The largest individual
source of waste imports continues to be from Canada, with total reported imports
to landfills of 4,216,814 cubic yards, up 1,874,023 cubic yards or 80 percent
from the 1999 FY. This increased amount of waste imports also means there is an
increased amount of truck traffic on Michigan roads. Truck traffic continues to
be a growing concern because there are currently an estimated 65 trucks per day
from Toronto alone and an estimated 110-130 trucks per day in total from Canada.
As the amount of truck traffic increases, the dangers associated with this
increased truck traffic also continues to rise. While wastes have been received
from a number of states, most of the out-of-state waste that is not imported
from Canada, comes from those states immediately adjacent to Michigan; Ohio,
Wisconsin, Illinois, and Indiana. Michigan does not collect data on waste
exports; however, contacts with neighboring states indicate that Michigan
exports only very limited quantities of solid waste.
A particular concern to Michigan is the fact that
our Canadian neighbors are foregoing more cost-effective disposal options that
are available to them within their own country in favor of transporting their
solid waste into Michigan. This was particularly noteworthy in Toronto’s
decision to forego the proposal to utilize the Adam’s Mine site in Kirkland
Lake. This site presented several advantages including (1) providing for the
long-term disposal needs of Canadian residents; (2) offering economic benefits
for Canada, including retention of jobs in Ontario; and (3) use of railroad
lines, which are a safer and more efficient means of waste transportation
compared to roads. In addition, higher costs for disposal in Michigan would
intensify the challenges that already exist for Toronto’s city budget.
Since the 1992 Fort Gratiot decision, Governor
John Engler has worked on a cooperative basis with other states and with the
Congress to seek a balanced and comprehensive legislative remedy to this issue.
In addition, on May 28, 1999, Governor Engler took action to further
evaluate how Michigan can best address the issue of regulating imports of solid
waste from other states and countries by establishing the Michigan Solid Waste
Importation Task Force (Task Force). The Task Force was created to examine
trends, causes, and consequences of out-of-state waste imports and to develop
recommendations to address this issue. Outcomes identified in the Task Force’s
final report, which were based on data only through 1998, include:
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If imports were to
remain at then current levels, which were increasing between FYs 1997 and
1998 at a rate of .3 percent, their impact on available disposal capacity
would continue to be minimal.
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Solid waste imports
show a continuing trend to increase and recent figures show the rate of
increase is growing significantly, as shown in more recent data which
indicate between FYs 1999 and 2000, imports are now increasing at a rate of
32 percent.
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Losing capacity at
significantly increased rates undermines long-term comprehensive solid waste
management planning conducted by Michigan communities.
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Continuing
increases in imports will hinder growth of recycling in Michigan.
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State legislation
that will actually limit waste imports will likely not withstand
constitutional challenge, and state legislative approaches that will
withstand constitutional challenge are not likely to be effective at
limiting imports.
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All state level
efforts attempted in other states to control waste imports have been found
unconstitutional because Congress has not enacted laws to grant states the
authority to regulate this area of commerce.
It is clear that the only sure remedy to
withstand legal challenge is one based on authority granted to states by
Congress; and most court decisions have made clear that Congress has this
authority.
Since the 1992 Fort Gratiot decision, the
Michigan Legislature has proposed several bills seeking to restrict imports of
out-of-state solid waste. These bills have generally followed two approaches.
One is to impose an outright ban. Similar laws enacted in other states have been
uniformly struck down as unconstitutional. The other is to prohibit imports from
jurisdictions whose disposal bans are less stringent than Michigan’s. Based on
the Fort Gratiot decision and subsequent Supreme Court decisions, it is clear
that absent federal legislation authorizing states to restrict imports/exports
of out-of-state waste, such state laws would not withstand legal scrutiny.
Michigan strongly supports HR 1213. We
believe that this bill, if enacted, would provide Michigan and other states the
tools needed to restrict out-of-state waste imports in a manner that would be
the most effective approach for managing environmental impacts from waste
imports.
While Michigan’s preference remains
HR 1213, we understand that HR 667 has also been introduced to provide
states with the ability to prohibit waste imports provided that their state plan
has been approved. Prohibitions may not be the best approach to this issue.
Recently, Congressman Mike Rogers has introduced
legislation, HR 1927, which would give states the authority to prohibit or limit
foreign municipal solid waste. The Department is pleased Congressman Rogers has
recognized this as a serious issue and has joined our efforts to enact federal
legislation to give states control over municipal solid waste crossing their
borders. Although HR 1927 differs somewhat from other bills that Governor Engler
supports, such as HR 1213 introduced by Congressman Jim Greenwood (R-PA),
HR 1927 sends a strong message and would give Michigan the authority and
flexibility to address waste coming from Canada. As a new member of Congress,
Congressman Rogers’ active involvement in getting the
U.S. House of Representatives to move forward on
solid waste legislation is extremely welcome, and can only help ensure that we
get the strongest possible legislation out of the Congress and to the President’s
desk.
We believe that the balanced regulation of
interstate waste will prove to be an effective means of maintaining disposal
capacity created by Michigan’s communities and intended for Michigan’s
citizens, protecting Michigan’s natural resources, and alleviating inadvertent
disposal of wastes that are not permitted in Michigan landfills as a result of
regulatory differences between United States and Canadian law. As previously
mentioned, we believe giving states reasonable authority to restrict
out-of-state waste imports is the most effective approach for managing
environmental impacts from waste imports that will withstand legal challenge
while minimizing disruptions to appropriate waste disposal markets.
Thank you again for the opportunity to provide
this testimony. At this time, states have very limited ability to regulate
imports of out-of-state solid waste; however, it is possible for federal
legislation to create a balance between the communities' plans for their
long-term disposal needs and the needs of private waste disposal firms to
operate profitably, to compete fairly with each other, and to honor existing
contractual relationships. Michigan welcomes the opportunity to provide
assistance to this committee in developing legislation which would give states
the ability to impose reasonable regulation of waste imports while recognizing
existing waste management relationships and the needs of the waste disposal
industry and waste generators to operate effectively. At this time, I would be
pleased to answer any questions you may have.
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