A Boom Time for bills

2006 WAS A relatively quiet legislative year for the solid waste and recycling industry. In fact, the number of solid waste and recycling bills that were filed at the state and federal level was lower than in any of the previous five years. Few substantive pieces of legislation were enacted as most of the bills signed into law tinkered with existing legislation.

2007 already is different. Garbage and recycling legislation is usually driven by local politics or a desire to improve the environment. This year, both forces have lead to a surge in introduced bills. Partisan agendas do not usually play a role in this area. As a result, legislators are more likely to be free to debate issues based on their perception of the public good.

At both the federal and state levels, the key committees are those with authority over the Resource Recovery and Conservation Act (RCRA), the federal solid waste and recycling law, or its state equivalents. The U.S. Senate Environment and Public Works (EPW) Committee has RCRA authority, as does the U.S. House Energy and Commerce Committee.

Sen. Barbara Boxer, D-Calif., chairs EPW, and Sen. Hillary Clinton, D-N.Y., chairs EPW's Superfund and Environmental Health Subcommittee, which has jurisdiction over RCRA. On the House side, Rep. John Dingell, D-Mich., chairs the Energy and Commerce Committee, and Rep. Al Wynn, D-Md., chairs that committee's Environment and Hazardous Materials Subcommittee, which has authority over RCRA as well.

Mostly Local

Garbage and recycling remain primarily local issues. RCRA required the U.S. Environmental Protection Agency (EPA) to set up national standards for hazardous waste management and for solid waste landfills, and also required the agency and the Department of Commerce to do some recycling-related work (which, according to the Government Accountability Office, the department still hasn't done).

But, Congress made it clear in RCRA that solid waste and recycling largely are local issues. Unlike other environmental statutes, RCRA does not give EPA expansive national authority. While the federal government can enact solid waste and recycling laws, it prefers to leave these regulations to state and local governments.

What follows is a survey of issues of interest to federal and state legislators.

Railroad Transfer Stations

A loophole in federal law allows railroads to operate waste transfer stations without needing a state or local permit. As a result, several of these unpermitted facilities have been built, much to the consternation of state governments, local officials and the solid waste industry.

New Jersey's two U.S. Senators, Frank Lautenberg and Robert Menendez, have introduced S. 719, the Clean Railroads Act of 2007, to close the loophole. Legislative action on this issue is more likely if the Surface Transportation Board rules that the facilities can continue to enjoy exemption from state and local oversight.

Electronic Waste

What to do with discarded electronic products was probably the hottest garbage and recycling issue in 2006. Eight states currently ban the disposal of some electronics products or have laws requiring the recycling of certain products. To the electronics industry's dismay, these laws all are quite different.

Last year, more than 50 bills were filed at the state level. As of this writing (mid-March), more than 50 bills already have been filed this year. Model legislation created by two separate groups — the Northeast Recycling Council (NERC), a coalition of public sector officials in ten northeastern states, and the Midwest Initiative, a coalition of five Midwest states — is spurring some of the legislative interest.

While it is hard to predict which state legislatures will pass an electronics recycling law, it is safe to predict that two or three states are likely to do so. Minnesota is a prime candidate because that state's ban on e-waste disposal went into effect last July. As a result, Minnesota has been plagued by illegal dumping of used PCs and other electronics products.

That should be no surprise. A ban without a recycling option is an invitation to dump those products illegally. A recent policy statement by the National Recycling Coalition, the Solid Waste Association of North America, the Integrated Waste Services Association and the National Solid Wastes Management Association supported a ban on e-waste disposal only if a plan is in place to recycle those products.

Other states likely to pass e-waste recycling legislation include Oregon and Illinois. Hewlett-Packard is the biggest employer in Oregon and was the prime supporter of the manufacturer's responsibility law passed by the Washington legislature last year. In Illinois, Gov. Rod Blagojevich's recent executive order requiring the recycling of used state-owned electronics products will create pressure for statewide e-waste recycling legislation.

Electronics recycling legislation already has been introduced in Congress this year (H.R. 233, by Rep. Mike Thompson, D-Calif., which would establish an EPA-run grant program to encourage computer recycling), and more bills will be introduced in the succeeding months. However, the lead staffers in the Senate EPW Committee and the House Energy and Commerce Committee told a recent meeting of environmental lawyers that Congress will not consider any legislation until the manufacturing and retail industries agree to an electronics recycling financing scheme. They noted that both the House and Senate held hearings in 2005, but see no need to even hold hearings without an agreed-upon solution.

Their comments were no surprise. Congress does not like to act on non-partisan issues if affected parties have not reached a consensus. Used electronic products have virtually no market value and entail high costs to collect and process for recycling. Congress will not resolve the financing issue for the electronics industry unless several more states pass differing electronics recycling laws.

Interstate/International Waste Shipments

As in every Congress since 1990, the interstate shipment of waste is likely to be hotly debated. About 10 percent of solid waste crosses state lines from the point of generation to the point of disposal. These shipments can be highly unpopular politically, largely due to concerns over trucks and to a feeling that the locality is being “dumped on” by out-of-staters.

Even more unpopular, at least in the state of Michigan, is the use of Michigan landfills by Canadian cities and businesses. As a result, Michigan's congressional delegation has made stopping Canadian trash into a high-profile cause.

Last September, the House passed a bill that would have allowed states to ban or restrict imports of Canadian waste, until such time as EPA implemented the provisions of the Bilateral Agreement on the Transboundary Movement of Hazardous Waste. That agreement governs the movement of hazardous and solid waste between the United States and Canada. The bill, which essentially allows a state to rewrite an international obligation, was never heard in the Senate and died at the end of the year.

Energy and Commerce Chairman Dingell, who is from Michigan, has made passage of this bill one of his committee's environmental priorities. Along with 17 co-sponsors, he introduced H.R. 518, the International Solid Waste Importation and Management Act of 2007, which is identical to the bill that passed the House last year. He is likely to press for House approval this spring.

Dingell also is likely to push for enactment of legislation that would allow states to ban or restrict the disposal of out-of-state waste. Interstate waste is a little trickier politically than Canadian waste, particularly because several states, including New York, New Jersey, Illinois and Maryland, are major exporters. As a result, the interstate waste restrictions probably won't be actively pressed until the Canadian issue is resolved.

Recycling

Electronics products won't be the only item in the recycling spotlight this year. Container bottle deposits have seen a renewed interest. Ten states currently require nickel deposits on some beverage containers, usually those for soft drinks and beer, while one state has a 10 cent deposit.

In those states with nickel deposits, attempts are being made to increase the size of the deposit, with advocates noting that a nickel deposit has a lot less value today than it did 20 years ago. States with deposits limited just to soft drink and beer containers will see attempts to expand the deposit to those for other beverages.

Deposit advocates are making spirited attempts to pass legislation in non-deposit states. One of the unexpected consequences of the November elections are state legislatures that are more likely to favor new or expanded deposits than previously.

Additionally, scrap metal has caught the eyes of legislators. High prices for scrap metals have lead to a surge in the theft of utility poles, air conditioning units, copper tubing from construction sites and other metal recyclables.

As a result, state and local governments are debating bills that would impose requirements upon scrap metal recyclers. The proposed requirements include having to keep scrap metals for a period of time, such as 21 days, before selling them; having to maintain a registry of products bought; and other requirements intended to make it harder for thieves to sell scrap.

While the bills are an attempt to deal with an onerous problem, recyclers will need to ensure that these potential provisions exclude used beverage containers and other metals normally collected in curbside recycling programs and that they don't create cumbersome requirements that drag down recycling.

Finally, Congress might again consider a tax credit of some kind for recycling processing equipment. And plastic bag recycling will see renewed interest as a result of recent California legislation mandating recycling at large retail outlets and a spate of publicity on the problems caused by plastic bag debris in oceans and waterways.

Landfills

Increased state landfill disposal taxes and landfill moratoriums are the main issues facing landfill operators. Tax advocates insist that the taxes are needed to pay for recycling programs or to limit the flow of out-of-state trash. Legislators in Michigan, Wisconsin and Pennsylvania will be considering increases.

Opponents argue that such increases fail to limit out-of-state trash and that, despite promises that the increased revenue will be used to fund recycling programs, proceeds often are diverted into a state's general fund. They also ask which taxes local governments should raise in order to pay for a higher state tax.

Moratoriums on landfill permitting have popped up in reaction to the need for additional disposal capacity. Pennsylvania's House Environment Committee is chaired by a long time advocate of a permitting moratorium. Michigan legislators also are likely to consider a moratorium.

In North Carolina, the state is undertaking an environmental review of landfilling to determine if its current one-year moratorium on new landfill permits should be extended. That moratorium was imposed in response to proposals to build five regional landfills in the Tarheel state. Ironically, the state is a major exporter of garbage to out-of-state landfills because it has insufficient in-state capacity.

Work for Good Laws

This is by no means a complete look at potential garbage and recycling legislation. For instance, landfill gas tax credit legislation is up for renewal this year. Other issues are certain to arise.

However, one thing is certain: as in previous years, state and federal legislators will consider garbage and recycling laws. It's your job, both as citizens and as members of the solid waste industry, to ensure that these become good laws — and not junk legislation.

Chaz Miller is the state programs director for the National Solid Wastes Management Association, Washington.