Exports of Waste From the United States to Canada: The How and Why

20 ELR 10061 | Environmental Law Reporter | copyright © 1990 | All rights reserved

Exports of Waste From the United States to Canada: The How and Why

F. James Handley

Editors' Summary: The United States exports more than half of its hazardous waste, and a portion of its nonhazardous waste, to Canada for geographic, economic, and legal reasons. Most U.S. waste exports to Canada originate in the northeastern and northern border states, destined primarily for facilities near Canada's southern border. Compared with the United States, Canada has relatively few general waste disposal laws and regulations. Consequently, a desire to avoid legal liability, coupled with limited domestic disposal capacity, places pressure on U.S. waste generators to export to Canada and increases the potential for illegal waste laundering schemes.

This Article describes the "how" of Canada's waste disposal regulatory system, administered by the provincial governments, as it applies to two facilities that accept U.S. hazardous waste exports. The Article also examines the legal and economic "why" of United States waste exports to Canada, focusing on two legislative proposals that would exempt Canada from a ban on U.S. waste exports. The author concludes that the proposals properly recognize Canada's unique status for purposes of waste trade with the United States, but the two countries must improve regulatory cooperation and strengthen their waste export requirements to prevent illegal export scams.

The author is a staff attorney in the United States Environmental Protection Agency Office of Enforcement. 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.

[20 ELR 10061]

The United States exported approximately 140,000 tons of hazardous waste in 1988.1 Of this amount, approximately 85 percent was destined for its northern neighbor, Canada.2 The Resource Conservation and Recovery Act (RCRA) requires U.S. hazardous waste exporters to notify receiving countries and obtain their prior consent.3 RCRA applies, however, only to exports of "hazardous" waste4 and does not require tracking documents for exports of nonhazardous waste.5 Consequently, little or no accurate data are available about the quantities of nonhazardous waste shipments.

To put the export problem in perspective: approximately 275 million tons of hazardous waste are generated annually in the United States, thus, exports amount to far less than one percent of the total. As with hazardous waste, it is fair to assume that the export of nonhazardous waste currently involves a relatively small portion of the waste generated in the United States.6 Yet, waste that is not considered [20 ELR 10062] hazardous under RCRA may pose significant health and environmental hazards.7 The lack of accountability for nonhazardous waste shipments to Canada enables U.S. generators to escape liability for accidental spills and improper disposal.8 Moreover, the potential for abuses involving tainted or "laundered" hazardous waste shipments underscores the need for more effective waste export regulation.9

This Article outlines Canada's waste disposal law as it applies to two Canadian facilities that receive the bulk of U.S. hazardous waste exports, and analyzes the geographic, legal, and economic reasons for U.S. waste exports to Canada. The Article then explores proposed legislative changes in RCRA export provisions exempting Canada from a ban on U.S. waste exported for disposal.

The How: Canada's Waste Disposal Law and Permit Process

Canada's waste disposal law is primarily provincial law rather than federal law. As a result, Canadian waste disposal laws vary from province to province.10 Compared with the U.S. regulatory scheme under RCRA, the Canadian regulatory system has relatively few general regulations; instead, decisions are made by the provincial governments on a site-by-site basis in the permitting or "certificate of approval" process.11 These certificates are issued after public hearings and may be revoked for cause.12

Hazardous waste exported from the United States to Canada originates primarily in the northeastern states and the states adjacent to Canada. Connecticut, Massachusetts, and Michigan export the largest quantities of waste to Canada.13 Metal-contaminated waste generated in the northeastern states by the electroplating, metals finishing, and electronics industries, as well as waste from U.S. hazardous waste site cleanups, constitutes a large portion of the waste exported to Canada.14 The Canadian facility that receives the majority of these inorganic wastes is the Stablex facility in Blainville, Quebec.15

Stablex

Stablex uses a process that immobilizes waste materials by solidifying them in cement.16 First, the waste is analyzed to determine what pretreatment is necessary. Next, the waste is pretreated. For example, acids are neutralized, reactive chemical species are stabilized, and the waste is concentrated. The Province of Quebec requires that this concentrated solution contain no more than 5 percent organic material. Finally, this solution is mixed with portland cement and flyash. Solidified cement blocks are deposited in a landfill, which has bentonite clay walls to prevent migration to the surrounding sand and to the surface.17

Stablex has two permits issued by the Province of Quebec. One is for the solidification process; the other is for the landfilling operation. The solidification permit requires that the cement meet a leach-type test18 analogous to RCRA's extraction procedure (EP) toxicity test.19 The landfill permit requires Stablex to demonstrate by performing groundwater monitoring that the facility is impermeable. The groundwater analyses must show that the levels of contaminants near the facility are similar to background levels. The Stablex facility does not have the double liners and leachate collection that would generally be mandated by U.S. law under the RCRA minimum technology requirements.20

[20 ELR 10063]

Tricil

A second Canadian company receiving significant quantities of U.S. waste is Tricil, Limited, which incinerates liquid organic wastes at its facility in Sarnia, Ontario.21 These wastes, which include spent solvents and chemical by-products, are generated primarily by the U.S. chemical industry.22 The incinerator began operation in 1983 and is equipped with a baghouse to collect particulate air emissions.23 The Certificate of Approval issued by the Ontario Ministry of the Environment prohibits the incinerator from burning chlorinated solvents and polychlorinated biphenyls (PCBs).24 Tricil's Sarnia operation also has an approved landfill pretreatment facility25 and an approved landfill for disposal of waste, including its incinerator ash.26

The Stablex and Tricil facilities receive by far the largest share of hazardous waste exported from the United States to Canada.27 Both facilities handle significant amounts of Canadian and U.S. wastes.28 At present, most hazardous waste trade between the United States and Canada appears to occur principally because of geographic convenience. As the next section of this Article suggests, however, a changing mix of geographic, legal, and economic factors is likely to increase pressure to export hazardous waste from the United States to Canada.

The Why: Legal and Economic Factors

Avoiding CERCLA Liability

Unlike the United States, Canada does not have a Superfund law imposing liability on generators. Instead, in Ontario, for example, a system of reserves requires that each disposal site operator collect fees from generators before disposal takes place.29 These fees are set aside in a reserve fund for each site, to be used if a cleanup of the facility is needed.30 This system demands payment "up front" from waste generators to assure that funds are available when needed.

The ability of generators to pay a known, fixed fee as part of the cost of disposal rather than face potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is a strong incentive for U.S. generators to export waste to Canada. For example, Stablex implies that U.S. generators will be free from potential CERCLA liability when Stablex receives their wastes by making the following claim in its advertising brochure:

Once your industrial waste has been accepted by the Stablex facility for treatment, its safe disposal ceases to be your problem. The Sealosafe (SM) process and Stablex standards assure you that your waste is being treated and disposed of in strict compliance with government regulations. Moreover, Stablex assumes full liability on reception of your waste shipment.

Apparently, Stablex even helps U.S. hazardous waste generators comply with U.S. export regulations. Its brochure also advertises that "Stablex Canada Inc. will . . . account for your waste by completing all required regulatory forms on your behalf." Thus, by taking advantage of Ontario's system of set-aside reserves, U.S. hazardous waste exporters may circumvent domestic disposal laws and avoid potential liability under CERCLA.31

Limited U.S. Disposal Capacity

In addition to legal incentives to export hazardous waste, inadequate local disposal capacity may place some U.S. industries in the position of relying on Canadian disposal facilities. For example, several northeastern states are likely to include Canadian disposal capacity estimates in their capacity certifications mandated by CERCLA.32 Another indication that limited capacity in some regions of the [20 ELR 10064] United States may be driving wastes to Canada is the fact that about 25 percent of the waste being exported to Canada reportedly originates from private party cleanups.33

The land disposal restrictions being phased in pursuant to RCRA34 are an increasing source of pressure on generators to export. These restrictions prohibit land disposal of certain wastes, with limited time exceptions in cases of inadequate capacity.35 Because the alternatives to land disposal are generally more costly,36 export to Canada is an attractive alternative to construction of additional disposal facilities in the United States. Moreover, siting and permitting of such facilities invariably require considerable time, legal expenses, and planning.37

Nonhazardous Waste Exports

Nonhazardous waste exports, although not regulated by RCRA,38 are the result of a slightly different set of regulatory pressures.39 No land disposal restrictions exist for nonhazardous waste, but disposal of municipal waste, particularly incinerator ash, is becoming increasingly expensive and problematic.40 Nonhazardous waste poses a significant threat to the environment but little information is available about its export.41 Thus, it is difficult to reach any conclusions about the reasons for, or the potential magnitude of, such exports.

Looking Ahead: Increasing Pressure to Export

The cost differential between legal U.S. disposal and export to Canada is difficult to estimate. If the legal or cost advantages were substantial, exports would originate not only in states near Canada, but throughout the industrial areas of the United States.42 To date, the bulk of U.S. hazardous waste export traffic has originated in the northeastern and northern border states and is bound for the Stablex and Tricil facilities in southern Canada.43 This suggests that a lower cost of transport due to Canada's geographic proximity, rather than a desire to avoid legal requirements, has been the prevalent reason for most U.S. hazardous waste exports to Canada.44 Nevertheless, increasingly strict RCRA requirements are likely to increase pressure to export — especially as more and more hazardous waste streams become subject to increasingly stringent land disposal restrictions.

The Need for Stronger Enforcement and Revision of Hazardous Waste Export Laws

Illegal Export Scams

In May 1989, Buffalo and Toronto newspapers reported allegations that fuel tainted with PCBs and other toxic wastes had been shipped into Canada and sold to unsuspecting customers.45 This scheme, which is the subject of investigations by Revenue Canada and the United States Federal Bureau of Investigation, reportedly involved tanker trucks loaded with gasoline or diesel fuel to which waste [20 ELR 10065] was added.46 Ontario dealers bought the fuel at $ .02 to $ .05 below the market rate, and apparently did not pay the $ .093 Ontario fuel tax.47 Canadian investigators believe the scam may have continued undetected for the past five years.48

Other abuses are also possible. Waste "laundering" may be occurring through Canadian facilities.49 For example, waste legally defined as "listed"50 hazardous waste may be shipped to Canada for treatment or dilution, and then returned to the United States. This arrangement may be economically advantageous to U.S. generators. By performing the treatment or dilution operation abroad where the waste cannot easily be traced, the owner of the waste may escape RCRA regulation if the waste, upon return to the United States, does not exhibit any "characteristic"51 of a listed RCRA hazardous waste. Close cooperation between U.S. and Canadian enforcement officials is necessary to prevent hazardous waste laundering scams from proliferating.

Proposed Legislative Ban on U.S. Hazardous Waste Exports Except to Canada

A proposal currently under discussion at the Environmental Protection Agency (EPA)52 and a measure introduced in Congress by Senator Max Baucus (D-Mont.)53 would prohibit exports of hazardous waste for disposal except to Canada.54 The proposals would also continue to allow waste exports both to Canada and to other countries for purposes of recycling,55 provided the United States has entered into a bilateral agreement with the destination country. These legislative proposals recognize both the potential for international trade in recyclable materials, and that Canada may have a special trade relationship with the United States because of its contiguous borders and Canada's technical sophistication about waste management practices.56 Moreover, because waste crosses the border in both directions,57 leaving the U.S. border open to waste trade may be advantageous to both countries.58

If either the EPA or the Baucus measure is adopted, the existing bilateral agreement with Canada59 would likely continue to govern hazardous waste export trade with Canada. In contrast with RCRA regulations requiring written notice and consent,60 the bilateral agreement with Canada requires only the implied consent of the Canadian government and allows the exporter to proceed if no objection is received within 30 days.61 Exporters have argued in at least two administrative cases62 that the bilateral agreement, which was entered into subsequent to the RCRA notice and consent requirements, supersedes the RCRA regulations. This interpretive dilemma points to the need to renegotiate the U.S.-Canada bilateral agreement to [20 ELR 10066] achieve consistency with RCRA regulations, regardless of the outcome of legislative efforts to revise hazardous waste export laws.63

Conclusion

The export of U.S. waste to Canada is driven by geographic, economic, and legal factors. Most U.S. waste exports to Canada originate in the northeastern and northern border states, destined for locations near the southern border of Canada. Legal factors, such as the desire to avoid CERCLA liability and tightening RCRA land disposal requirements, are likely to place increasing economic pressure on U.S. generators to export to Canada, especially as more and more waste streams are affected by the land disposal restrictions.64

Legislative proposals by Senator Baucus and EPA would exempt Canada from a ban on U.S. waste exported for disposal, suggesting that Canada is a "special case" for purposes of waste trade. Although this approach properly discourages attempts to locate "safe havens" for hazardous waste around the globe,65 it does not reduce the potential for a growing waste export trade with Canada driven by economics and a desire to avoid U.S. legal requirements. Thus, if such a legislative approach is adopted, the Canadian bilateral agreement should be revised to eliminate the "implied consent" provision and require written notice and consent, to improve regulatory cooperation between Canada and the United States, and to strengthen enforcement efforts for detecting illegal hazardous waste export scams.

1. According to estimates compiled by the United States Environmental Protection Agency (EPA) National Enforcement Investigations Center (NEIC) [hereinafter NEIC estimates], waste exports for 1988 totaled 140,000 tons. Of that, about 114,000 tons were exported to Canada and 17,000 tons to Mexico, leaving 9,000 tons for all other countries. These figures are based on annual reports that exporters are required to file with EPA. NEIC compares these annual reports with copies of the Uniform Hazardous Waste Manifests that EPA requires shippers to deposit with Customs when the hazardous waste leaves the United States. Where discrepancies exist, exporters are notified and appropriate enforcement action is taken. NEIC estimates seem to be consistent with those of Canadian officials. See, e.g., infra note 15. But it is probable that some clandestine exports are occurring outside the U.S. or Canadian tracking systems. See infra notes 45-51 and accompanying text.

2. NEIC estimates, supra note 1.

3. RCRA § 3017(d), 42 U.S.C. § 6938(d), ELR STAT. RCRA 025, sets forth the requirements for export of hazardous waste. The statute requires advance notification and consent for exports of "hazardous waste" governed by subtitle C but makes no such provision for "nonhazardous" subtitle Dwaste.

4. See RCRA § 3001, 42 U.S.C. § 6938, ELR STAT. RCRA 025, defining "hazardous" waste. Hereinafter the term "hazardous waste" is used in its regulatory sense to mean waste governed by RCRA subtitle C and does not include waste that may be hazardous but is not classified as such.

5. See 40 C.F.R. § 262.54 (1988) (hazardous waste manifest documents); RCRA § 3017(g), 42 U.S.C. § 6938(g), ELR STAT. RCRA 025 (hazardous waste annual reports).

6. See supra note 1. Several recent incidents involving the export oF municipal incinerator ash have embarrassed the U.S. government. See, e.g., 11 INT'L ENV'T REP. (BNA) 325 (June 1988), regarding the ships Khian Sea and Bark; see also Desjardins & McCall, The Khian Sea: International Market for Trash, in CONTEMPORARY ISSUES IN BUSINESS ETHICS 443 (2D ED. 1990).

7. Consider, for example, the current debate over the health risk of land disposal of incinerator ash, some of which is not regulated as hazardous waste under RCRA.

8. See infra notes 38-41 and accompanying text.

9. See infra notes 45-51 and accompanying text.

10. Telephone conversation with Beverly Jean Hobby, Counsel, Canada Department of Justice, Ottowa, Ontario (July 19, 1989).

11. Telephone conversation with John Bray, Director, Approvals Branch, Ontario Ministry of the Environment (June 7, 1989).

12. Ontario hazardous waste treatment and disposal facilities are regulatedunder the Ontario Environmental Protection Act and Regulation 309, and are also subject to Regulation 308 governing emissions to the atmosphere. Final disposal facilities for hazardous or liquid industrial wastes are subject to a mandatory public hearing as well as an environmental assessment. Letter from John Bray, Director, Approvals Branch, Ontario Ministry of the Environment (July 17, 1989).

13. From January 1 to July 15, 1989, NEIC received manifests accompanying 451 hazardous waste shipments to Canada from Connecticut, 450 from Massachusetts, 372 from Michigan, 185 from New York, 182 from Vermont, 111 from New Jersey, and 93 from New Hampshire. NEIC estimates, supra note 1. The manifest is the primary tracking document EPA uses to monitor hazardous waste exports.

14. The electroplating, metals finishing, and electronics industries generate about one-half of the hazardous waste exported from the United States. NEIC estimates, supra note 1.

15. Stablex, located 30 kilometers north of Montreal, received about 55,000 metric tons (about 60,000 tons) of waste in 1986, according to the Quebec Ministry of the Environment. Of this, about 34,650 metric tons (or about 63 percent) were from U.S. generators. About 16,500 metric tons were received from sources within Quebec, and about 3,850 metric tons were received from other Canadian provinces.

Figures compiled by NEIC from annual reports are consistent with these data (about 65,000 tons of waste exported to Stablex during 1988). NEIC estimates, supra note 1.

16. In its advertising brochure, Stablex claims that its "revolutionary" process [Sealosafe] "converts toxic, hazardous, inorganic industrial wastes into a useful material that is environmentally inert: STABLEX." Stablex originally applied for permission to use the Stablex material as a building material. The Ministry of the Environment denied this request. Telephone conversation with Rene Robitialle, Engineer, Montreal Regional Office, Quebec Ministry of the Environment (Aug. 20, 1989).

17. The Stablex process is described both in the Stablex advertising literature and in its operating permit issued by the Quebec Ministry of the Environment.

18. In addition to the requirement that the cement product meet a leach-type test, the process permit requires that incoming waste be analyzed to determine if it can be stabilized. The facility cannot accept mercury sludge (generated by an old process for the manufacture of caustic soda). Oil and grease must be measured, and no waste may be accepted containing more than 30 percent oil and grease. A check for radioactivity and analyses of sulfur, cyanide, phenols, and total organic halogens are also required. Records must be kept for two years.

The facility is prohibited from receiving liquid PCBs at concentrations greater than 150 micrograms per liter, solid PCBs at concentrations greater than 10 micrograms per liter, explosives, pesticides, and radioactive waste. Telephone conversation with Rene Robitialle, supra note 16.

19. The RCRA EP toxicity test is set forth at 40 C.F.R. § 261 app. 1 (1988).

20. See RCRA § 3004(o), 42 U.S.C. § 6924(o), ELR STAT. RCRA 015. Note, however, that RCRA § 3004(o)(2), 42 U.S.C. § 6924(o)(2), ELR STAT. RCRA 015, provides an exception to this requirement where "the owner or operator can demonstrate that alternative designs and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents into the ground water or surface water at least as effectively as such liners and leachate collection systems." Thus, if the Stablex facility were located in the United States, it might still be able to meet RCRA requirements if it could be shown to meet the requirements for the "no-migration" exception.

21. The Tricil Sarnia facility received approximately 20,600 tons of U.S. hazardous waste in 1988. NEIC estimates, supra note 1. Combined, the Tricil Sarnia and Stablex facilities receive about 80 percent of the U.S. hazardous waste exported to Canada. Id.

22. NEIC briefing for Congressman Synar's staff, prepared and presented by Jim Vincent (July 18, 1989) [hereinafter NEIC briefing].

23. Tricil-Sarnia Certificate of Approval, Ontario Ministry of the Environment (Feb. 1, 1982).

24. Id., condition 1. Pesticides are only to be incinerated after approval of the District Officer of the Ontario Ministry of the Environment. The Certificate of Approval also requires continuous in-line stack monitoring of gas temperature, flowrate, sulfur dioxide, total hydrogen, and opacity.

25. Tricil-Sarnia Provisional Certificate of Approval for landfill pretreatment system, Ontario Ministry of the Environment (Aug. 29, 1986). Solidification of waste prior to landfilling is accomplished at this facility.

26. Id. The certificate prohibits disposal of ignitable wastes, radioactive wastes, pesticide wastes, and waste streams containing greater than 2 percent by weight of halogenated organic chemicals, nitrated aromatic organic compounds, low-molecular-weight organic chemicals that are nonsolid at 25 degrees C, and certain volatile organic compounds.

27. Together, these two facilities received about 80 percent of the total U.S. waste exports to Canada for which manifests and annual reports were received by EPA in 1988. NEIC estimates, supra note 1.

28. Id. Stablex receives about 33 percent of its waste from within Canada. See supra note 15.

29. This is called the Financial Assurance program, and the fund is controlled by the Ministry of the Environment. Not all Canadian provinces have instituted such a system. Conversation with Dave Crump, Operations Coordinator, Office of Assistant Deputy Minister, Ontario Ministry of the Environment (Nov. 29, 1989). Crump notes that because other provinces and U.S. facilities do not require payment of such fees, this may create incentives for Ontario generators to export waste from the province.

30. Id.

31. See also O'Neil v. Picillo, 883 F.2d 176, 20 ELR 20115 (1st Cir. Aug. 21, 1989) (defendants in CERCLA cost-recovery action jointly and severally liable). See generally CERCLA §§ 107-109, 42 U.S.C. §§ 9607-9609, ELR STAT. CERCLA 024-032.

32. See CERCLA § 104(c)(9), 42 U.S.C. § 9604(c)(9), ELR STAT. CERCLA 014-015, which states:

Effective 3 years after the enactment of the Superfund Amendments and Reauthorization Act of 1986, the President shall not provide any remedial actions pursuant to this section unless the State in which the release occurs first enters into a contract or cooperative agreement with the President providing assurances deemed adequate by the President that the State will assure the availability of hazardous waste treatment or disposal facilities. . . .

Thirteen northeastern states have agreed to pool the disposal capacity needed for the CERCLA capacity certification, and all of these states have adequate capacity except for incineration of hazardous waste. Conversation with John Zipeto, Waste Management Division, EPA Region II (Sept. 6, 1989); conversation with Kathleen Golas, Chairwoman and Executive Officer, Connecticut Hazardous Waste Management Service (Sept. 6, 1989). Golas notes that the fact that a state exports waste does not necessarily mean that inadequate disposal capacity exists in that state, since geographic and market factors also are involved in generators' decisions to export.

33. NEIC briefing, supra note 22.

34. RCRA § 3004(d), (e), (f), (g), 42 U.S.C. § 6924(d), (e), (f), (g), ELR STAT. RCRA 013-014. The statute mandates that the land disposal restrictions (LDRs) be phased in by "thirds." RCRA § 3004(g)(4), 42 U.S.C. § 6924(g)(4), ELR STAT. RCRA 014. The rule specifying treatment standards for the first third of listed RCRA wastes was effective August 8, 1988. 53 Fed. Reg. 31138 (1988). See 40 C.F.R. § 268.10 (1988) (listing the first-third wastes). The second-third rule was effective on June 8, 1989. 54 Fed. Reg. 26595 (1989). See 40 C.F.R. § 268.11 (1988) (listing the second-third wastes). The third-third rule is due on May 8, 1990. See 40 C.F.R. § 268.12 (1988) (listing the third-third wastes).

The effect of first-third and second-third LDRs on exports will probably not be evident in annual report data until 1990. Because the third-third rule will not be effective until May 1990, the full effect of LDRs on exports will not be seen until annual reports are submitted for 1991.

35. RCRA § 3004(h)(2), 42 U.S.C. § 6924(h)(2), ELR STAT. RCRA 014, gives EPA authority to grant national capacity variances, which are implemented by promulgating delayed effective dates to the land disposal prohibitions. Individual capacity variances, called case-by-case extensions, are available only where permit applicants can demonstrate a binding contract or other commitment to construct additional capacity, but that due to circumstances beyond the applicant's control such capacity cannot reasonably be made available by the effective date of the particular land disposal restriction. These individual capacity variances may be granted for one year with a single one-year renewal. RCRA § 3004(h)(3), 42 U.S.C. § 6924(h)(3), ELR STAT. RCRA 014; 40 C.F.R. § 268.5 (1988).

Several national capacity variances have been granted. Comments by Matt Strauss, Deputy Division Director, Characterization and Assessment Division, Office of Solid Waste, Environmental Protection Agency, Washington D.C., at NEIC briefing, supra note 22.

36. For example, incineration facilities must meet the standards of 40 C.F.R. § 264.349-.351 (1988). These include a requirement that trial burns be conducted prior to issuance of a permit, id. § 270.62, and the unit must achieve a destruction and removal efficiency (DRE) of 99.99 percent for the principal organic hazardous constituents. Id. § 264.343(a)(1). For certain materials, including dibenzodioxins and dibenzofurans, the permittee must demonstrate a DRE of 99.9999 percent. Id. § 264.343(a)(2).

37. The siting problem has commonly become know as the "NIMBY" problem — the acronym for "not in my backyard." Siting of hazardous waste disposal facilities such as incinerators is commonly subject to judicial proceedings and frequent delays.

38. See supra notes 4-8 and accompanying text.

39. For example, the Islip, New York, case, which involved the barge Mobro 4000, was the result of a local ban on landfilling because the local planning board was trying to force the community to come up with a long-range plan to deal with its impending capacity problems.

40. Conversation with Warren Chesner, President, Chesner Engineering, P.C., and Consultant, Long Island Regional Planning Board (Nov. 29, 1989). According to Chesner, there have been proposals to export Long Island municipal ash, although he knows of none that have been undertaken. He believes that unless laws are passed controlling it, export of ash will become more attractive for economic reasons. Chesner notes intensifying pressure to export as a result of rising disposal costs. Currently, it costs about $ 100-$ 150 per ton for Long Island to dispose of the approximately 800 tons per day it transports.

41. Exports of nonhazardous waste to Canada do occur, but EPA currently has no official means of tracking nonhazardous waste exports. Conversation with Emily Roth, Environmental Protection Specialist, Office of Solid Waste, Environmental Protection Agency, Washington D.C. (Nov. 8, 1989); see also supra notes 4-8 and accompanying text.

42. For example, if the cost of U.S. disposal were high enough to exceed the cost of a 2,000-mile haul plus the cost of disposal in Canada, one would expect to see shipments of industrial waste to Canada originating as far away as the refining and chemical manufacturing regions of the Gulf Coast. Few, if any, such shipments have been reported. Hazardous waste from the Gulf Coast cannot legally be exported for disposal in Mexico. Agreement of Cooperation Between the United States of America and the United Mexican States Regarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances, Nov. 12, 1986, art. XI.

43. See supra note 13; NEIC estimates, supra note 1.

44. In 1988, Canada exported about 80,000 tons of hazardous waste from the United States, 80,000 tons more than it sent there. Toronto Globe and Mail, Mar. 23, 1989.

45. Buffalo News, May 9, 1989, at A1 (Sunrise). The health danger of burning PCBs in automobile engines is that the combustion products include dioxins and other toxins.

46. It was reported that 10 to 15 percent of the fuel mixture was waste. Id.

47. Id. Revenue Canada believes the Ontario government may have lost $ 100 million in taxes in each of the last five years. Id. The United States Federal Bureau of Investigation (FBI) reportedly believes that organized crime is involved in illegal waste disposal and export in western New York. The Buffalo office of the FBI received tips on a similar PCB/fuel blending scam in late 1987, but the investigation was dropped when agents determined that the practice had ended. Apparently, the U.S. attorney did not press for an environmental investigation because dumping PCBs is only a misdemeanor. Id., May 26, 1989, at B1 (Sunrise).

48. Id., May 9, 1989, at A1 (Sunrise). Subsequent spot checks by Canadian officials have not uncovered any evidence of tainted fuels. St. Catherine's Standard, July 8, 1989, at 1.

49. Some manifest documents received by EPA indicate that wastes are being shipped to Canadian facilities from which similar wastes are being imported to the United States.

50. See 40 C.F.R. § 261.30-.33 (1988) (listing generic waste classes as well as the residues from specified industrial processes as hazardous wastes). RCRA regulations treat all waste derived from "listed" waste as listed. See 40 C.F.R. § 261.3(c)(1) (1988) ("a hazardous waste will remain a hazardous waste"); 40 C.F.R. § 261.3(c)(2) (1988) ("any solid waste generated from the treatment, storage or disposal of a hazardous waste . . . is a hazardous waste.").

51. If waste is not considered hazardous by virtue of being included in the categories of listed waste, it may still be hazardous if it exhibits one or more of the characteristics enumerated in 40 C.F.R. § 261.20-.24 (1988).

52. EPA is working on a measure that would prohibit U.S. waste exports except to Canada or for recycling. A bilateral agreement between the United States and the receiving country would require notice and consent of the receiving country. The legislation also would expand EPA authority, allowing it to halt shipments where the waste was not being handled in an "environmentally sound" manner.

53. S. 1113, 101st Cong., 1st Sess., 135 CONG. REC. S5989 (daily ed. June 1, 1989). In addition to prohibiting exports of waste except for recycling or to Canada, the Baucus measure would require exporters to be registered with EPA.

54. Another option under discussion at EPA is to allow continued exports not only to Canada, but also to other Organization for Economic Cooperation and Development nations. Nevertheless, there seems to be consensus both in Congress and at EPA that exports to nonindustrialized nations should be legally prohibited.

For a discussion of U.S. hazardous waste export to nonindustrialized countries where environmental regulation is less stringent than in the generating country, see Handley, Hazardous Waste Exports: A Leak in the System of International Legal Controls, 19 ELR 10171 (Apr. 1989).

55. The definition of "recycling" will be a difficult issue, because EPA is interested in encouraging legitimate resource recovery and recycling operations while excluding sham recycling activities wherein the "recycling" operation is much closer to a disposal operation, but escapes disposal regulation by characterizing its activities as "recycling."

The recycling exemption would effectively leave intact the bilateral agreement with Mexico because the current agreement allows exports only for recycling purposes. See supra note 42.

56. See supra notes 10-12 and 16-28 and accompanying text (discussing regulatory and permit requirements for the Stablex and Tricil facilities). The "special case" argument is bolstered by the recent free-trade agreement between Canada and the United States because restrictions on waste trade might violate the agreement.

57. See supra note 44.

58. Other legislative proposals do not treat Canada as a special case. For example, a bill introduced by Rep. Synar (D-Okla.) would require exporters to obtain permits to be issued only after a showing that the disposal occurring abroad would meet standards "as strict as" those of U.S. domestic law. The bill would also impose on exporters Superfund-type liability for cleanup of foreign waste disposal sites. H.R. 2525, 101st Cong., 1st Sess., 135 CONG. REC. H2250 (daily ed. May 31, 1989). In testimony before the Subcommittee on Human Rights and International Organizations, and the Subcommittee on International Economic Policy and Trade of the House Committee on Foreign Affairs (July 12, 1989), Scott Hajost, EPA's Acting Assistant Administrator for International Activities, suggested that this would be a de facto ban on waste exports.

59. Agreement Between the Government of the United States of America and Government of Canada Concerning the Transboundary Movement of Hazardous Wastes, Nov. 8, 1986; see also Handley, supra note 54, at 10173 n.36.

60. RCRA § 3017(a)(1)(C), 42 U.S.C. § 6938(a)(1)(C), ELR STAT. RCRA 024; see also 40 C.F.R. § 262.75 (1988).

61. This has been termed the "implied consent" provision. Agreement of Cooperation, supra note 59, art. 3.

62. In re Pennwalt Corp., No. V-W-89 R23 (EPA Region V, Apr. 28, 1989); In re Dow-Corning Corp., No. V-W-89 R24 (EPA Region V, Apr. 28, 1989). The exporters' argument is based on RCRA § 3017(f), 42 U.S.C. § 6938(f) (1988), ELR STAT. RCRA 025, which exempts from the notice and consent requirements exports destined for countries with which the United States has entered a bilateral agreement governing waste exports.

63. Both the U.S. and the Canadian governments have indicated interest in reviewing the bilateral agreement. The current agreement expires in 1991, but will automatically renew unless one of the parties gives notice of its intent to terminate ormodify it. Conversation with Wendy Greider, Office of International Activities, Environmental Protection Agency, Washington, D.C. (Nov. 29, 1989).

64. See supra note 34.

65. Handley, supra note 54, at 10171.

20 ELR 10061 | Environmental Law Reporter | copyright © 1990 | All rights reserved