How should the language in S. 1082 that prohibits the export of waste if the waste will not be managed “in an environmentally sound manner" be interpreted? The language in S. 1082 that prohibits the export of waste if the waste will not be managed "in an environmentally sound manner" should be interpreted in the context of the international implementation of the Basel Convention and the development of its protocols by the international community, not by the U.S. alone. Article IV(8) of the Basel Convention expressly provides that "technical guidelines for the environmentally sound management of wastes subject to this Convention" shall be decided by the Parties at their first meeting. Under any reasonable definition, "environmentally sound management" should certainly include a foreign treatment or recycling process that is similar to the designated Best Demonstrated Available Technology (BDAT) for the exported waste. Thus, even under a very conservative interpretation, the recycling of electric arc furnace (EAF) dust in Mexico by the process of high temperature metal recovery (HTMR) is "environmentally sound" because EPA has designated that process as BDAT for EAF dust.

The U.S.-Mexican bilateral treaty as well as existing U.S. and Mexican environmental regulations will ensure that the export of U.S. waste to Mexico will be handled in an "environmentally sound" manner.

Should the United States export hazardous and other wastes if the receiving country does not provide protection to human health and the environment substantially equivalent to or as strict as the protection provided for under the laws of the United States?

SMA believes the "substantially equivalent" or "no less strict" concept is an inappropriate one. It implies comparative standards when facilities operating in different countries operate in accordance with different laws and regulations. Moreover, such standards presume that the U.S. approach must necessarily be the only approach in the world that is environmentally sound. That, of course, is not true. It ignores the fact that systems of other governments, while often different from the U.S. system, can and do provide sound environmental protection for the management of wastes, even though those systems are not identical to RCRA requirements. The Congress must enact legislation that prohibits opportunists from using countries with inadequate environmental regulations as dumping grounds for the export of hazardous wastes, but that permits us to cooperate internationally with environmental agencies of other countries to establish which programs are acceptable to U.S. EPA. Congress should not legislate international waste export policy by U.S. government fiat.

Does the Basel Convention provide necessary and appropriate exclusions for materials exported for recycling?

The Basel Convention expressly recognizes that transboundary movements of hazardous wastes and other wastes will be allowed if "the wastes in question are required as a raw material for recycling or recovery industries in the State of import." Article IV(9)(b) of the Basel Conventional. SMA is concerned that the intent of the Basel Convention to encourage recycling could be undermined by an overly broad definition of what constitutes a regulated waste. This is because the Basel Convention applies not only to the material which is conventionally "disposed," but also to recycled material, i.e. materials intended for and subject to "operations which may lead to resource recovery, recycling, reclamation, direct re-use, or alternative uses. Annex IV(B) to Basel Convention. The Basel Convention also applies to materials identified by any party as a hazardous waste. Article III of the Basel Convention. It is critical that Congress promptly ratify the Basel Convention so that U.S. representatives can influence the development of guidelines implementing the Basel Convention to allow for the export of materials that are effectively recycled like the recovery of zinc from EAF dusts. U.S. representatives should be particularly active in ensuring that barriers restricting the international trade of products or feedstocks (such as scrap metal and EAF dusts) are not disingenuously created in the name of environmental protection.

What impact would legislation implementing the Basel Convention have on SMA? The passage of S. 1082, the Administration's Basel Convention-implementing legislation, in its present form would maintain the status quo for member companies of SMA that export EAF dusts to Mexico. However, if the current U.S.-Mexican bilateral agreement requires amendment, the amended agreement would have to comply with any new requirements provided for in S. 1082. SMA members would comply with any additional requirements in an amended U.S.-Mexican bilateral agreement.

In SMA's opinion, what would be the ideal waste export scheme for the United States to implement?

An ideal waste export scheme would promote the effective recycling of hazardous waste at the recycling facility closest to the source of waste generation. Not only is Zinc Nacional the closest recycler to the exported EAF dust which is principally generated in the Southern United States, but it is the only recycler of EAF dust in that region of the world with available, unused capacity. As Article IX(9) of the Basel Convention correctly recognizes, waste should be exported when: there is inadequate recycling capacity in the country of export; or wastes are required as a raw material for recycling in the State of import. The export of U.S.-generated EAF dust to Mexico for high temperature metals recovery meets both of these essential criteria. An ideal waste scheme also should take into account the fact that other countries, such as Mexico, have standards different from those of the United States, but which nevertheless ensure that waste is dealt with safely and in an environmentally sound manner.

[Attachments to this statement have been retained in committee files.]

PREPARED STATEMENT OF ROBERT J. REDHEAD

Mr. Chairman and other distinguished members of the Subcommittee, my name is Robert J. Redhead. I am Director of Government Relations for Laidlaw Inc. I appreciate the opportunity to testify before the Subcommittee on the waste import/export issue. I am here today to provide Laidlaw's views on S. 1082 and other legislative proposals currently pending before Congress to implement the Basel Convention on the Control of Transboundary Movements of Hazardous and Other Wastes and Their Disposal, and to express Laidlaw's desire to work with this Subcommittee and others to develop a responsible and workable approach to controlling transboundary movements of waste.

LAIDLAW INC.

Laidlaw is a North American service company with passenger transportation, hazardous waste and solid waste operations throughout the United States and Canada. Our passenger transportation and solid waste businesses are headquartered in Burlington, Ontario. Our U.S. hazardous waste management operations are headquartered in Columbia, South Carolina. Laidlaw is recognized in North America as: the third largest solid waste management company, the second largest hazardous waste management company, and the largest school bus operator with more than 70 percent of its consolidated revenues generated in the United States.

Laidlaw provides hazardous waste services at 54 different locations, in 12 U.S. States and 5 Canadian provinces; and provides solid waste services at 173 locations in 21 U.S. States and 7 Canadian provinces. Collectively, Laidlaw employs about 35,900 people across the North American continent. Having operations on both sides of the U.S.-Canadian border provides Laidlaw with a unique and valuable perspective on the transboundary movement of wastes.

UNITED STATES WASTE EXPORTS IN PERSPECTIVE

At the outset, we would like to place the issue of U.S. waste exports in perspective.

First, the U.S. Environmental Protection Agency (EPA) statistics on U.S. hazardous waste exports reveal that there is not a "flood" of U.S. exports of hazardous waste. Of the estimated 270 million tons of hazardous waste generated in the United States last year, less than one-tenth of one percent-about 119,000 tons-was exported. Nor is there a steady rise in U.S. waste exports. On the contrary, in 1990 there was a decline in U.S. hazardous waste exports of 15 percent-some 22,000 tons-from the 141,000 tons exported in 1989. (See Exhibit 1). Canadian authorities' 1990 statistics and EPA 1991 statistics reflect this same trend. Although few data are available on non-hazardous waste exports because there is currently no Federal statutory authority to regulate these exports, EPA has stated that the amount of non-hazardous waste exported is also very small when compared to the total amount generated. 1

'Laidlaw treats and disposes hazardous wastes imported from the United States into Canada at two facilities, one near Sarnia, Ontario and the other in Montreal, Quebec. In 1990, these two Continued

Second, the United States is not "irresponsibly" exporting hazardous wastes to a large number of foreign countries. In 1990, the United States shipped hazardous waste to only 8 countries. All receiving countries are industrialized and have programs for managing wastes. U.S. hazardous wastes were shipped to: Belgium; Canada; Finland; Japan; Mexico; Sweden; United Kingdom; and West Germany. In 1989 and 1990, 95 percent of the U.S. hazardous waste exported from the U.S. went to Canada and Mexico, with the majority going to Canada. All of the hazardous waste that was shipped to Mexico in 1989 and 1990 was electric arc furnace dust from steel manufacture destined for recycling. The hazardous waste exported to Canada and Mexico is controlled by 1986 bilateral agreements. These two bilateral agreements both require reporting to EPA and consent of the receiving country's authorities prior to shipment.

Third, hazardous waste exports to Canada are not a national phenomena, but are localized. Ninety-five percent of the U.S. hazardous waste exported to Canada was generated by U.S. companies located in the border states of New England, upper New York, and the Midwest, essentially within a 300 mile radius of Canadian treatment facilities located in Ontario and Quebec. (See Exhibit 2). Moreover, EPA has estimated that Canada exported about 100,000 tons of hazardous waste for treatment and disposal to the United States in 1990, about equal to the amount of U.S. hazardous wastes sent to Canada for the same time period. 2 In short, the trade in waste treatment and disposal services between the United States and Canada is part of a balanced, regional trading market which predates, but is conducted in the spirit of, the U.S.-Canada Free Trade Agreement.

CANADIAN WASTE MANAGEMENT PROGRAM

Canada employs a comprehensive waste regulatory program that covers virtually every aspect of waste management, including identification, handling, transportation, treatment, storage, and disposal. In Canada, the regulation of hazardous waste management is primarily a provincial responsibility, with each province establishing its own objectives and standards. The Federal Government, in addition to providing assistance and guidance to the provinces, retains jurisdiction over international and interprovincial environmental issues. Through a combination of the Federal Transportation of Dangerous Goods Act, which generally governs movement of hazardous wastes, and provincial treatment, storage, and disposal requirements, Canada carries out a comprehensive and effective hazardous waste management program.

The Province of Ontario has generator registration requirements more comprehensive than U.S. requirements, manifest requirements that cover more types of wastes than covered by U.S. manifest requirements, permit or certificate of approval requirements authorizing the government to impose comprehensive management conditions, and mandatory hearings for treatment and disposal facilities in which an applicant for a permit or certificate of approval is required to pay the legal fees, expert witness fees, and other expenses of environmental groups and other public intervenors.

Similar requirements apply in the Province of Quebec, as well, and certificates of authorization in Quebec impose specific management standards on facilities. In addition, no transportation of hazardous waste can take place in Quebec without a load-specific shipment number issued by the Province. No shipment number is issued until the Province has, among other things, determined that the transporter has a permit to transport waste, the equipment used for transport of waste is appropriate, and the material being transported can be received and properly handled by the destination facility.

The certificate of approval granted for our Sarnia, Ontario facility restricts the types of wastes which may be landfilled, requires the maintenance of daily records

facilities handled about 14 percent of the total U.S. hazardous wastes exported to Canada. Of the U.S. hazardous waste handled by Laidlaw in Canada, about 48 percent was incinerated and 52 percent was treated and landfilled. In 1990, the total of wastes, from all sources, managed by Laidlaw in Canada was about 222,000 tons, of which about 9 percent was waste from the United States.

2 The quantities reported by Canada differ from those reported by EPA because non-hazardous, liquid, industrial, and other wastes subject to Canadian regulation are tracked according to Canadian manifest requirements different from those of the U.S. However, the two sets of numbers are consistent with one another. Environment Canada has reported that Canada exported about 137,000 metric tonnes of hazardous waste for treatment and disposal to the United States in 1990, about equal to the amount of U.S. hazardous waste exported to Canada for the same time period reported by Environment Canada to be 143,000 metric tonnes. (See Exhibit 3).

and the provision of periodic monitoring reports, requires incineration of leachate collected from the base of the active working face, imposes other surface water discharge requirements, requires a pollution liability insurance policy providing coverage of at least $5 million per occurrence with an annual aggregate of at least $10 million, requires financial security for closure and post-closure activities, and establishes a liaison committee consisting of representatives of the owner/operator, the local community, the Township, and the Ministry of the Environment. Many of these design requirements and conditions appear more stringent than required by RCRA. Canadian facilities are, however, designed and constructed to meet Canadian not RCRA requirements, which, of course, do not apply in Canada.

INTERNATIONAL EFFORTS TO CONTROL WASTE EXPORTS

The United States is not alone in its efforts to address transboundary movement of waste issues. Fifty four nations, including the United States and Canada, have signed the recently negotiated United Nations Environment Programme (UNEP) Base! Convention Governing the Transboundary Shipment and Disposal of Hazardous and Other Wastes and Their Disposal. The Basel Convention, which the President has sent to the U.S. Senate for ratification, obligates signatories to prohibit export of wastes if there is reason to believe such wastes will not be managed in an environmentally sound manner in the receiving country. To date, ten countries have ratified the Convention, which will take effect 90 days after it is ratified by 20 signatory countries. This is expected to take place by early 1992.

Prior to the Basel Convention, Canada had been active in similar work by the Organization for Economic Development (OECD) on the development of a regional agreement among member countries to control the transfrontier movement of hazardous wastes. The latter was superseded by the Basel Convention. Canada signed the Basel Convention in March 1989 and had been active in its development since June 1987. The Canadian Government has begun the process of the ratification of the Basel Convention which will likely be completed by the end of this year, and is currently in the process of developing Basel-implementing regulations under the Federal Canadian Environmental Protection Act.

In December 1989, the European Community and 68 developing countries agreed to ban the transboundary movement of hazardous and radioactive waste under the Lome IV Convention. In January of this year, all African nations, with the exception of South Africa, adopted the Bamako Convention which bans the importation of hazardous waste to signatory countries.

In short, there are strong ongoing efforts by the entire international community to responsibly address waste movement issues.

LEGISLATIVE PROPOSALS TO CONTROL WASTE EXPORTS

Laidlaw strongly supports legislation regulating the export of U.S. wastes, both hazardous and non-hazardous. We share the concern of others about the possibility of shipments of waste to countries which may lack either the technical development, economic capability, or governmental regulation to responsibly manage waste. At the same time, however, we believe that care should be taken so that any new legislation does not disrupt existing responsible and legitimate reciprocal trading relationships. To this end, we support the Administration's proposal to implement the Basel Convention, S. 1082, recently introduced by the Ranking Republican member of this Subcommittee, Senator John Chafee.

S. 1082 would immediately ban all exports and imports of hazardous waste and non-hazardous waste, such as municipal solid waste, municipal incinerator ash, and infectious waste (all wastes governed by the Basel Convention), unless there is a bilateral or regional agreement between the United States and the receiving or exporting country. The provisions requiring bilateral or regional agreements, which go beyond the letter of the Basel Convention, would provide the procedural safeguards to ensure that waste is transported, treated, and disposed in an environmentally sound manner. The existing bilateral agreements with Canada and Mexico would be grandfathered under the bill until they are amended or renewed.

RESPONSES TO QUESTIONS POSED BY SUBCOMMITTEE

Should the implementing legislation require a bilateral agreement with the importing country in addition to the requirements imposed under the Basel Convention? Basel Convention-implementing legislation should require that a bilateral agreement consistent with the terms of Basel be entered into with the importing country.

How should the language in S. 1082 that prohibits the export of waste if the waste will not be managed "in an environmentally sound manner" be interpreted? The language in S. 1082 that prohibits the export of waste if the waste will not be managed "in an environmentally sound manner" should be interpreted in the context of the international implementation of the Basel Convention and the development of its protocols by the international community while at the same time not weakening the ability of the United States or Canada to effectively regulate the management of waste domestically..

Should the United States export hazardous and other wastes if the receiving country does not provide protection to human health and the environment substantially equivalent to or as strict as the protection provided under the laws of the United States?

Let me address this question from the perspective of a North American company that has operations in Canada. Laidlaw believes the "substantially equivalent" or "no less strict" concept is an inappropriate one. It implies comparable standards while facilities operating in different sovereign countries operate in accordance with different laws and regulations. Moreover, such standards presume that the U.S. approach must necessarily be the only approach in the world that is environmentally sound. It ignores the fact that alternative systems, such as Canada's, can and do provide sound environmental protection for the management of wastes. The critical issue for export/import legislation should be whether human health and the environment are protected-not whether design and operating standards are identical. The Canadian system protects human health and the environment.

If, has been suggested by some, U.S. generating facilities were exporting wastes to Canada in order to avoid significantly higher treatment and disposal costs in the United States, or in order to avoid Superfund liability, one would expect to see generators throughout the United States exporting waste to Canada. The attached map and accompanying import/export statistics do not bear this out. Moreover, such claims ignore the fact that trade in waste services occurs in both directions over the U.S-Canadian border in equal amounts.

The U.S.-Canadian regional trading market is extremely important to U.S. companies and communities in the border states who rely, in part, on Canadian treatment and disposal capacity for the environmentally sound management of their hazardous wastes. For example, a significant percentage of all generators of metal bearing wastes in the Northeast United States-platers, jewelers, electronics manufacturers-rely on a treatment/stabilization/solidification facility in Quebec. Similarly, many generators of organic waste streams, located in the border areas in the Midwest and upper New York, rely on Canadian incineration facilities for treatment of their wastes. It would be ironic if waste export legislation were to impede access to safe, convenient and cost-effective treatment capacity for these generators.

Additionally, Laidlaw believes a "no less strict" or "substantially equivalent" proposal is an infringement on foreign sovereignty. This thought was communicated in a letter to members of the House Transportation and Hazardous Materials Subcommittee last year by the Canadian Ambassador: "The inclusion in [U.S.] legislation of unilateral intrusive measures...such as mandating U.S. standards for facilities operating beyond American jurisdiction...would be unacceptable to the Government of Canada."

The Canadian Federal laws and the laws of Quebec and Ontario resemble RCRA in some respects, but those laws are not identical to RCRA. As for example, Ontario's Environmental Protection Act predates RCRA by 3 years. Canadian treatment and disposal facilities do not operate in a manner identical to RCRA permitted facilities. The ultimate objective of the Canadian Federal and provincial laws of Ontario and Quebec is, nevertheless, the same as RCRA: protection of human health and the environment.

Does the Basel Convention provide necessary and appropriate exclusions for materials exported for recycling?

The Basel Convention specifically acknowledges the value of environmentally sound recycling in its preamble:

Aware of the need to continue the development and implementation of environmental sound low-waste technologies, recycling options, good housekeeping and management systems with a view to reducing to a minimum the generation of hazardous waste and other wastes.

Laidlaw endorses this principle and supports the Canadian approach of control and documentation of hazardous wastes destined for recycling.

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