I applaud Administrator Reilly for taking the next steps an? for his leadership in developing legislation to implement the convention, but a word of caution. It is important that any implementing legislation deal with aspects of U.S. law which needs to be changed to implement our responsibilities under the treaty, not to simply duplicate the treaty itself. Senate approval will make the treaty the law of the land.

It is also important that any implementing legislation must not precede Senate action on the treaty so that we do not compromise the Senate's prerogatives with respect to treaties. At the same time, it is important that the United States be more than a participant in the Basel Convention. We must be an international leader. We must insure that wastes that are shipped abroad are safely handled at their final destination.

We must be flexible enough so that we don't stop waste that is destined for recycling because many American businesses depend on exports of waste paper, glass, metals and other materials to be recycled into new products. Many nations with limited natural resources depend on these materials for their own products.

For example, in 1987, the Far East imported nearly 4 million tons of wastepaper to be recycled into new boxes and cartons. In that same year, the largest single export through New York Harbor was wastepaper shipped for recycling.

We must keep these legitimate trading opportunities open. We must resist any proposals that place an unreasonable burden on international commerce and recycling. I believe the best way to insure this is for the Senate to first ratify the convention and then provide the necessary implementing legislation. I intend to include any provisions necessary to implement the Basel Convention as part of a comprehensive RCRA reauthorization.

It is my intention, if at all possible, to have this bill considered by the Senate before we adjourn this year. Today we will hear from Administrator Reilly on the Administration proposal and from other experts. I'm especially interested in the views on the Administration's proposal, whether it goes beyond what the Basel Convention requires and if it is consistent with our domestic environmental laws.

I thank the witnesses for taking the time to appear before us this morning.

We are honored this morning to again have Administrator Reilly. It's good to see you here, Bill. Why don't you being?

STATEMENT OF HON. WILLIAM K. REILLY, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, ACCOMPANIED BY DON A. CLAY, ASSISTANT ADMINISTRATOR FOR SOLID WASTE AND EMERGENCY RESPONSE; AND RICHARD J. SMITH, ASSISTANT SECRETARY OF STATE FOR ENVIRONMENT

Mr. REILLY. Thank you, Mr. Chairman.

With your permission, I will request that my formal statement be included in the record and I will summarize it briefly.

Senator BAUCUS. I'd like to say to all the witnesses and to all Senators, that all statements will be included in the record. In your

case, I won't impose the 5 minute rule; just use your best judgment.

Mr. REILLY. Thank you, Mr. Chairman.

I am accompanied at the table here by Assistant Administrator for Solid Waste and Emergency Response, Don Clay; and by Assistant Secretary of State for Environment, Richard Smith.

You characterized, I think, quite well, the history of the transboundary movement of hazardous waste issues and problems. It is an issue that first began to be considered by the OECD in the early 1980's and led to negotiations under the United Nations Environment Program beginning in January 1988. Those negotiations concluded in March 1989 and the United States signed the Basel Convention in March of 1990. The President committed the United States at that time to export hazardous waste only to those countries with which we had bilateral agreements assuring sound environmental management and disposal of that waste.

We are here now to advocate implementation of the legislation that will allow us to ratify the convention and to insure that it is effective. Implementing legislation is necessary because we cannot currently comply with all of the convention's requirements. Until we can comply, we cannot ratify. The Administration's legislation provides the additional authorities that we need to enable the United States to comply.

The United States will not become a party to the convention until we ratify. The convention will take effect 90 days after 20 countries have ratified. At this moment, 11 nations have ratified the convention. We expect that the European Community will ratify in block sometime toward the end of the year and so we anticipate that the convention will actually go into effect sometime early in 1992.

If we fail to ratify before the convention goes into effect, the United States may not be permitted to participate in the international negotiations that will define environmentally sound management and also to participate in establishing reliability and financial responsibility protocols. Also, should we fail to ratify before the convention goes into effect, we may not be able to continue to participate in the current very well-established, and multimillion dollar trade in recyclable materials.

There are currently three different waste export bills before the Congress. The Administration's legislation, S. 1098 and the SynarWolpe bill, H.R. 2358, provide a statutory framework for regulating the waste trade. The third bill, H.R. 2580, the Towns bill, imposes a blanket prohibition on all waste exports from the United States.

There are several reasons to regulate rather than ban international waste shipments. Incidentally, a ban on waste exports has been rejected by the more than 50 countries, including the United States, which have signed the Basel Convention.

First, the ability to make such shipments allows countries to take advantage of the geographical proximity of appropriate treatment or disposal facilities in another country; to take advantage of more advanced and cost effective treatment and disposal technology which may not exist in one country; and finally, to take advantage of economies of scale.

Continuing trade in waste also allows nations to avoid inefficient and costly duplication of suitable treatment and disposal facilities and to avoid, as well, disruption of the multimillion dollar international commerce that has developed in recent years.

The Administration's approach is intended to insure protection of human health in the environment, while at the same time providing the flexibility necessary to balance the many diplomatic, political and economic concerns that must be considered in any international agreement.

The heart of our proposal is the statutory prohibition on all waste exports and imports of waste until the United States has entered into a bilateral agreement with the receiving or sending country. This arrangement allows the United States Government to maintain ultimate control over where waste exports will go and how they will be managed. We will only negotiate waste export agreements with those countries that can demonstrate adequate capability to manage safely the imported waste.

Our legislation's adoption of the convention's standard of environmentally sound management recognizes the sovereignty of other nations by allowing them to select the most appropriate methods for managing waste within their borders. It will allow the United States to insure that U.S.-generated wastes do not cause environmental harm in other countries, while at the same time respecting the sound technical judgment of those countries.

It's important to note that the environmentally sound management standard will be applied twice under the Administration's approach. The first application will occur during negotiations over the required bilateral agreements. If we determine in the preparations for or the conduct of those negotiations that the country cannot insure environmentally sound management, we will not enter into a bilateral agreement with that country.

The second application will occur on a case-by-case basis as waste shipments are made pursuant to bilateral agreements. If we have reason to believe that a particular shipment will not be managed in an environmentally sound manner, notwithstanding the existence of a bilateral agreement, and the importing countries consent to that shipment, we will have authority to prevent the shipment. In contrast, the standard proposed in the Synar-bill that management and disposal be no less strict in the importing country than the standard which applies in the United States, the RCRĂ standard--amounts, in our view, to a de facto ban on waste exports. It is highly doubtful that any country will choose to adopt waste management standards equivalent to RCRA's, particularly the technology-based treatment standards of RCRA which bear little relationship to the actual risk posed by the waste.

To force such a standard on a country which chooses to instead rely upon a risk-based waste management program, is, in our view, an inappropriate intrusion into that country's sovereign authority. I can recall, Mr. Chairman, some years ago a discussion in the board of directors of a conservation organization where this question arose and there was a division of opinion on the part of some of the directors as to how much one ought to defer to the sovereignty and the judgment of other countries in making decisions at waste exports. I particularly recall the very strongly held views of

some of the directors from developing countries-one of whom said, very memorably, you will rue the day you allow your waste to accumulate in developing countries that are ill-equipped technically to analyze, manage and control such waste effectively.

I can recall thinking this is an issue that poses a severe test. It carries with it an aura of abuse and exploitation. It demands that we attend to the environmental consequences and the health impacts of inappropriate, unsound disposal practices of waste from the developed world and to the longstanding serious problems of the sort we're very familiar with and that we cope with regularly in the Superfund Program.

This problem, I think, invites us to insure environmental protection without excessively intruding into and without patronizing the developing countries which we will try to work with in the development of bilateral agreements to insure a higher standard worldwide for the management of waste.

I would say simply in conclusion that a very small percentage of hazardous waste is exported from the United States currently--less than 1 percent of the waste that we generate. Under the existing bilaterals with Mexico and Canada, we are capable of scrutinizing the management practices of those receiving countries; our bilateral with Mexico confines the purpose of waste shipments to Mexico to recycling; and we will revisit those bilaterals in the future in accordance with the Basel Convention. Both countries, incidentally, have signed the Basel Convention and Mexico has already ratified it.

With that, Mr. Chairman, I will conclude my statement and look forward to any questions you may have.

Senator BAUCUS. Thank you very much, Mr. Reilly.

First, why can't the treaty be ratified by the Senate and the relevant implementing language enacted later? What's wrong with that?

Mr. REILLY. I'm going to defer to the State Department on that point, Mr. Chairman.

Mr. SMITH. Mr. Chairman, when we ratify or become a party to an agreement, we accept its obligations as legally binding. Article 26 of the Vienna Convention on the law of treaties which reflects customary law on the point, provides that treaties must be performed in good faith by parties. We could be breaching that duty if we ratified without being able to comply, even if the reason for our noncompliance was the absence of domestic legal authority. Article 27 of the Vienna Convention provides that any state may not invoke inadequacies in its internal laws to justify its failure to comply with an international agreement.

So briefly, the point is that unless we have the authority to comply, which we clearly do not now have with regard to the Basel Convention, we would not really be in a position to ratify the agreement.

Senator BAUCUS. What about other countries? Do other countries always pass implementing legislation before the relevant body ratifies a treaty or in some cases, do other countries have implementing legislation that's subsequent to the signing of the treaty by the head of state or ratification by the relevant body depending upon the appropriate procedure in that country?

Mr. SMITH. Generally speaking, they would take the same position I just described before they would ratify or submit an instrument of ratification, they would have the authority to implement the agreements. They would be in the same position we are.

Senator BAUCUS. You said generally speaking. Are there some cases where that's not true?

Mr. SMITH. I'm not aware of some cases. I'm just trying to be cautious and I will take your question back and examine the situation of other countries that have ratified this agreement and other agreements. They would face the same difficulty we would. If they don't have the authority to implement it, they shouldn't ratify it. Senator BAUCUs. What about France? It's my understanding that France has ratified but enabling legislation is not yet implemented. Mr. SMITH. I would be interested in the information you have that they don't have the authority to implement. They have ratified. We understood they were working on implementing legislation and if you have information that they are not in a position to implement it-

Senator BAUCUs. Well, if France is doing that, why couldn't we? Mr. SMITH. I need to look at that. I don't know whether France is in that situation or not.

Senator BAUCUs. What if that is what has happened in France, then what?

Mr. SMITH. I think it would still be a bad idea to ratify an international agreement that you didn't have the authority to implement.

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Senator BAUCUS. Mr. Reilly, is the Administration going to send RCRA bill?

Mr. REILLY. We continue to work with you on that question, Mr. Chairman. We will have positions on any number of the critical issues that RCRA reauthorization presents and look forward to working with the committee on development of legislation. I am not in a position at this moment to say whether we will have our own legislation. I tend to doubt that we will have a bill that we will propose, but we will certainly deal with the principal RCRA issues one way or the other.

Could I just add one point, and I will go into that further at the hearing you have scheduled in mid-September on RCRA at which I expect to testify. I think on the point that you were just considering, irrespective of other countries' practices with respect to these treaties, I have noted my own experience in negotiating with some other nations on international obligations that the United States has a very high standard of adherence to agreements. I do not refer to France specifically now, but we want to be able to meet the letter of the terms to which we adhere and we do not have the authority presently to do that.

We do not have authority to control municipal solid waste; we do not have a notice and consent requirement with respect to exports of our hazardous wastes; and we don't have any authority to recover the cost of any waste that we are obligated to have returned to the United States once we learn that it has been disposed of inappropriately in an unsound manner abroad. Those are all requirements of the convention and therefore, the implementing legislation is necessary to fulfill its terms.