HEARING ON YARD WASTE
Thank you Chairman Hershey and members of the committee for inviting me to testify today. My name is Lynn Landes and I am the founder and director of Zero Waste America, an Internet-based environmental network that promotes total recycling. I also host a radio talk show called ITíS YOUR ENVIRONMENT, and I am a former member of the Pennsylvania Solid Waste Advisory Committee.
I am here to speak in favor of banning the disposal of yard waste in Pennsylvania. House Bill 2101 includes such a ban. I am very grateful to its co-authors The Honorable David Levdansky and my own local representative, The Honorable David Steil, plus the many members of the Pennsylvania House who have co-sponsored the bill.
Today, I would like to speak to two issues: first, the specific subject of a yard waste disposal ban, and secondly, the connection between the use of disposal bans and the control of waste imports.
YARD WASTE DISPOSAL BAN
Why do we need a disposal ban on yard waste? Only through a disposal ban can we be assured that yard waste will be composted and not end up in an incinerator or landfill. Only through a disposal ban on yard waste can Pennsylvania prevent other states from disposing of their yard waste in Pennsylvania.
There are no hard statistics available on yard waste 'disposal' in Pennsylvania, but the EPA reports that yard waste generation accounts for approximately 13.4% of the municipal waste stream. They estimate that 39% of yard waste is composted, which means that 8.2% of all municipal waste disposed could be yard waste. In 1997, Pennsylvania disposed of 15.4 million tons of both in-state and out-of-state municipal waste. The 8.2% of municipal waste disposed in Pennsylvania amounts to 1.26 million tons of yard waste that could have been diverted from waste disposal facilities in the state. Today, that figure is closer to 1.5 million tons of yard waste that could be diverted.
Many programs are already in place to collect and compost yard waste. Act 101 requires more than 400 communities to collect yard waste for composting. More than 80 municipal leaf composting facilities are in operation in Pennsylvania. DEP awarded 43 grants totaling $2.9 million to local municipalities for composting programs in FY 1997-98.
DEP spokespeople have claimed that PA already has a Yard Waste Disposal Ban in place, but unfortunately we do not. Act 101, Section 1502 only restricts the transportation of "leaf waste" for disposal, to "truck loads composed primarily of leaf waste." The regulation does not prohibit the disposal of leaf or yard waste. It should be noted that the current definition of "leaf waste" does not include grass clippings.
I would also like to add that HB 2101 does not address a couple of other issues that it probably should. Currently, vegetation collected as a result of land clearing activities is considered "clean fill" under
In addition, the open burning of yard waste and other vegetation is still legal in many parts of Pennsylvania. A ban on the disposal of yard waste may encourage some individuals to burn rather than compost. Given the over-all poor air quality of the region, the committee may consider a state-wide ban on open burning of vegetation.
WASTE DISPOSAL BANS
I would like to take a moment to speak to the issue of implementing waste disposal bans. Only through disposal bans can Pennsylvania reduce waste disposal within the state for both in-state and out-of-state waste and stay in compliance with the Commerce Clause of the Constitution. A disposal ban prohibits a designated type of waste from all disposal facilities. A ban must be comprehensive, allowing for no exceptions. The more types of waste a state bans for disposal, the fewer types of waste will be imported for disposal.
Disposal bans can vary from state to state. For example, many states ban the disposal of lead acid batteries, tires, yard waste, as well as other wastes. However, many of these bans are partial, not comprehensive. Again, I would like to emphasize this critical point, that in order for disposal bans to affect waste imports, they must not allow for exceptions; otherwise waste exporting states could successfully challenge a partial ban in federal court.
Various strategies can be employed to implement and support disposal bans. A combination of return-for-deposit and producer-takeback laws have already been used for waste streams, such as food, beverage, and other containers. Compost programs are appropriate for yard, food, and other organic wastes. Minimum content laws for paper, glass, metal, and other waste streams can help guarantee markets for recyclables.
Another advantage of disposal bans is that they would be fairly easy to enforce. Current recycling "goals" on individual waste streams do not prevent their eventual disposal and are nearly impossible to enforce by authorities checking trash truck loads.
The interstate transportation of waste has been particularly tragic for Pennsylvania. For the last several years Pennsylvania has led the nation as the largest importer of waste by far, in 1999 generating about 10 millions tons of municipal waste and importing around 8 million tons. Pennsylvania will very soon be importing as much waste as the state creates and, to date, no plan has been developed that will prevent the situation from worsening. Pennsylvaniaís current recycling rate of 26% and goal of 35% will do nothing to stem the tide of imported trash washing over our landscape.
There are three issues I would like to address on the subject of waste imports: 1) The proposed federal legislation to control interstate waste, and 2) The enforcement of the Solid Waste Disposal Act of 1976, and 3) Federal court decisions on the interstate transportation of waste.
1) The proposed federal legislation to control interstate waste
Very briefly, most of the proposed Federal Interstate Waste legislation that has been languishing in Congress for the last several years will not protect any state from waste imports.
The legislationís biggest flaw is that it only applies to "unwanted" municipal waste. Local community "Host Agreements" can supersede any action taken by a state to limit waste imports. That could leave economically disadvantaged communities vulnerable to legal and/or economic persuasion from the waste industry. Furthermore, it does not limit the total amount of trash that can be imported from other states or nations. Lastly, it only applies to municipal wastes and municipal landfills, but not all types of waste that can be disposed in municipal landfills.
It is also questionable whether the proposed legislation, if passed, would be constitutional. In any event, it appears unlikely to pass since the exporting states see no advantage in this law for themselves.
2) The enforcement of the Solid Waste Disposal Act of 1976
Pennsylvania would not be in the position of the nationís leading importer of waste if the U.S. Environmental Protection Agency (EPA) was enforcing The Solid Waste Disposal Act of 1976. The Act requires that states develop and implement "state plans" that will maximize waste reduction and recycling. This should have gone a long way toward reducing waste disposal in most states and, as a consequence, waste exports would have been minimal. However, the states have not complied with the Act and the EPA is not enforcing it. Instead, many states have done what Pennsylvania did with Act 101, that is, to establish goals and policies that were packed with good intentions, but did not maximize, or even guarantee, waste reduction and recycling. In Pennsylvania communities that are required to recycle, there are no laws in place that prohibit those recyclables from ending up in landfills and incinerators.
In the case of the control of international waste imports (and exports), there appears to be no restrictions in federal law. The situation seems entirely out-of-control. For example, this year Idaho almost became the final resting place for over 7,000 tons of mercury contaminated toxic waste from a Taiwan plastics manufacturer. To date, the controversial waste has been rejected by communities in Taiwan, Cambodia, California, Nevada, and France. For the last few years, U.S. Representative Paul Gillmor, of Ohio (R-Old Fort) has introduced legislation to prohibit the importation of solid waste from other nations.
Not only are states not complying with the state plan provisions of the Act, they are also not complying with the reporting requirements. The EPA has allowed reporting by the states to be on a voluntary basis, in violation of the Act. Therefore, there is no hard data from the states on waste disposal and recycling that is both current and comprehensive.
3) Federal court decision on the interstate transportation of waste
Federal court decisions on the control of interstate waste have been and continue to be widely misinterpreted. Contrary to the claim that the federal courts will not allow states to control waste imports, the courts actually have said something very different, that is, that states may not engage in protectionism through discrimination against out-of-state waste; and that states may not establish one set of rules and policies for their own trash and other set for out-of-state waste.
In the landmark case on this issue, The City of Philadelphia v. New Jersey, Supreme Court, 437 U.S. 617 (1978) the Supreme Court ruled against New Jersey on the grounds that the state passed legislation that discriminated against out-of-state waste in order to protect New Jersey's landfill space for its own use. The Court stated that its decision does not preclude a state from protecting its environment as long as these mechanisms are applied in a non-discriminatory manner.
The Court stated, "And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against [437 U.S. 617, 627] articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination."
In a related case, National Solid Waste Association v. Meyer (representing the state of Wisconsin), Federal Court of Appeal, 7th Circuit: Nos. 94-4006, 95-1058 (Aug 1995), the court clearly suggests that states could protect their environment through the use of disposal bans, although the court did not use the specific term Ďdisposal ban.í
"The solid waste legislation itself makes clear that there is an available, less discriminatory alternative that could serve the State's purpose just as well as the requirement that the entire community follow the dictates of Wisconsin's plan. Specifically, the Wisconsin statute makes clear that, if the waste is processed by a materials recovery facility that separates the eleven listed materials, the waste will conform to the environmental needs of Wisconsin. Accordingly, Wisconsin could realize its goals of conserving landfill space and protecting the environment by mandating that all waste entering the State first be treated at a materials recovery facility with the capacity to effect this separation. Given the existence of such a nondiscriminatory alternative that serves adequately Wisconsin's legitimate concerns, the discriminatory legislation cannot be justified."
In the most recent case in 1999, Waste Management Holdings, Inc. v. Gilmore (Governor of Virginia) the federal court held that Virginia laws, which would have restricted river transportation of municipal waste and limited the size of Virginiaís largest landfills, applied overwhelmingly to waste imports, not Virginia waste, and therefore was in violation of the U.S. Constitutionís implied protection against States interfering with interstate commerce.
The federal courts have made it very clear, when it comes to waste, states should apply the Golden Rule, Do unto others, as you would have them do unto you.
In conclusion, what can we do to protect Pennsylvania against an endless avalanche of trash and stay within the confines of constitutional law?