The Green Arm of the Law

In 2007, the Number of solid waste and recycling bills introduced on the state and federal levels increased slightly from previous years, as did the amount of such legislation signed into law. Overall, though, last year was another relatively quiet one for waste-related bills.

Why has interest in garbage and recycling legislation been fairly flat in the last five years? Largely because most legislators believe we have solved our solid waste problems. Still, lawmakers and their constituents have placed a sense of urgency and importance on several “green” waste-related issues, such as the recycling of used electronic products (e-waste), the theft of recyclable metals and climate change. Industry members can expect significant legislative activity on these issues in 2008.

Recycling

E-waste was the most debated recycling issue last year and will be the biggest issue this year. Twelve states now have e-waste recycling laws; that's twice as many as two years ago. Five states (Connecticut, Minnesota, North Carolina, Oregon and Texas) enacted variations of “manufacturer responsibility” laws in which electronics manufacturers are held responsible for recovering some of their electronics products for recycling. New Jersey passed a similar law at the beginning of 2008. Oddly, two of the states with e-waste recycling laws don't actually require recycling; they simply ban the products from landfills.

Because almost one-third of our country's population now lives in states that have an e-waste law, the pressure is on Congress to enact national legislation to replace inconsistent state laws. Key House and Senate staffers are now working on such legislation. If they can come to an agreement with the manufacturing and retail industries, the legislation has a good chance of passage.

Scrap metal theft, plastic bags and container deposit legislation were other prominent issues for recyclers in 2007, and are likely to be equally big this year.

High prices for scrap metals have led to a surge in the theft of metal products that are still in use, such as utility poles, air conditioning units and copper gutters. As a result, state and local governments that didn't pass laws last year to rein in these thefts will be debating how to stop these crimes.

Solutions such as making recyclers retain scrap metals for a period of time before selling them or forcing them to fingerprint the people who bring them the materials are intended to make it harder for thieves to sell scrap. They also may play havoc with a recycler's ability to purchase and move legitimately acquired material. Materials recovery facility operators will need to ensure that such measures are not applied to used beverage containers or other metals normally collected in curbside recycling programs.

In addition, San Francisco, New York and Los Angeles are among the cities examining ways to require plastic bag recycling. Local officials are tired of litter and are motivated by environmental concerns over the amount of plastic in the ocean. The impact of these local laws, however, has yet to be seen.

Also in 2007, several states debated extending container deposits to water bottles. Only Oregon did so, but look for more of the 11 states with container deposit laws to consider expansion in 2008.

Climate Change

In late 2007, the U.S. Senate Environment and Public Works Committee passed S. 2191, also known as the Lieberman-Warner climate change bill. This legislation, the first climate change bill passed by a congressional committee, would place a declining emissions cap over electric power generators, and transportation and manufacturing sources. It also would establish a program allowing companies to trade, save and borrow emissions allowances, and to earn credits (also known as “offsets”) when they induce sources not covered by the legislation to reduce their greenhouse gas emissions.

Solid waste and recycling operations are peripheral to this bill. However, five provisions directly or indirectly address this industry. These include offset provisions for manure management and disposal; offset provisions for landfills; a U.S. Environmental Protection Agency study of the greenhouse gas emissions involved in making products with recycled content; grants for waste minimization and recycling programs; and a study of the greenhouse gas emissions of alternative fuels made from a number of sources, including separated food and yard waste.

Many state legislatures also will look at climate change legislation. Some might try to join or emulate the Regional Greenhouse Gas Initiative (RGGI), a coalition of 10 Northeastern and mid-Atlantic states developing a regional strategy for controlling carbon dioxide emissions. Others will look at California's landmark climate change law, AB 32. In that state, the Recycling and Waste Management Subgroup of the governor's Climate Action Team is working on implementation recommendations for state recyclers and solid waste managers. Interestingly, the group recently changed its name from the “Landfill Subgroup.” Undoubtedly, other states will take action in their own direction, determined to move forward in the face of inaction at the federal level.

Solid Waste

About 10 percent of solid waste generated in this country crosses a state line to reach its disposal point. These shipments can be highly unpopular politically, largely due to concerns over increased truck traffic and to a feeling that the locality is being “dumped on” with out-of-state waste. However, the passion stirred by the interstate issue seems to have subsided. Even the number of bills introduced into Congress is lower than in previous sessions.

This issue, however, has an international dimension because of the use of Michigan landfills by Canadian cities and businesses. Michigan politicians find it easy to campaign against Canadian trash. In 2007, they persuaded the U.S. House to pass a bill allowing states to limit or stop imports of Canadian waste. As of press time, the Senate has not acted on that bill. Because Canadian trash shipments are declining, and the House bill would violate free trade agreements, the Senate is not likely to seriously consider the legislation.

Taxes on landfill tipping fees were another big issue last year. Legislatures in three states — North Carolina, Wisconsin and New Jersey (again acting in early 2008) — either started or increased state trash taxes.

Tax advocates insist the levies are needed to pay for recycling programs or to limit the flow of out-of-state trash. Opponents say that the taxes fail to limit out-of-state trash and, in spite of promises that they will be used to fund recycling programs, often are diverted into the state's general fund. Wisconsin, for instance, split the additional tax revenue between recycling and other “green” programs. Because of concerns that they would have to cut services or raise other taxes to pay for them, cities and counties often are the most vocal opponents of tipping fee taxes and have successfully blocked them in several states. Given the economic pressures caused by declining state tax revenues, new trash taxes are unlikely in 2008.

A loophole in federal law allows railroads to operate waste transfer stations at railyards without state or local oversight. As a result, several of these unpermitted facilities have been built, much to the consternation of state governments, local officials and the private solid waste industry. A northeastern coalition of these groups won some relief when Congress voted to prevent the federal agency that oversees the railroad industry from spending money in 2008 to approve the operation of the facilities. The coalition hopes that Congress will pass legislation this year requiring these facilities to be fully permitted by state environmental agencies. If Congress does not require state permits for these facilities, it is likely to again extend the financial prohibition on the federal agency.

Conclusion

States and the federal government will grapple with a host of other issues that affect trash and recyclables. These will include how long a commercial vehicle driver can operate a truck in a work day — an important consideration given that most recyclables are trucked long distances to end markets — and extending tax credits for trucks, including recycling and refuse vehicles, that use alternative fuels. Other issues likely to spark lawmaker debate are requirements for recycled content in new products, changes to state solid waste regulations (each state goes through this process every five years or so) and tax credits for landfill gas. One thing is certain: As in previous years, state and federal legislators will consider garbage and recycling laws. It's our job, as citizens and as an industry, to ensure that these become good laws, not junk legislation.

Chaz Miller is the state programs director for the National Solid Wastes Management Association, Washington. He lobbies Congress and state legislatures on behalf of the solid waste industry.

Waste Legislation Primer

In the Resource Recovery and Conservation Act (RCRA), Congress made it clear that solid waste and recycling are local issues. Unlike other environmental statutes, RCRA does not give the U.S. Environmental Protection Agency expansive national authority. While the federal government can enact solid waste and recycling laws, it prefers to leave them to state and local governments.

When solid waste and recycling bills are introduced at the federal level, they are first sent to committees with authority over RCRA. In the Senate, such bills are sent to the Environment and Public Works Committee, chaired by Sen. Barbara Boxer, D-Calif., and its Superfund and Environmental Health Subcommittee, chaired by Sen. Hillary Clinton, D-N.Y. In the House, the Energy and Commerce Committee, chaired by Rep. John Dingell, D-Mich., and its Environment and Hazardous Materials Subcommittee, chaired by Rep. Al Wynn, D-Md., are the primary recipients of solid waste and recycling legislation.
— Chaz Miller