Solid Waste & Recycling

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The Border: It's Getting Serious

In my last column ("Is the Border Closing?" August/September 2005) I reported that legislation had been proposed in the U.S. Congress entitled the International Solid Waste Importation and Manageme...


In my last column (“Is the Border Closing?” August/September 2005) I reported that legislation had been proposed in the U.S. Congress entitled the International Solid Waste Importation and Management Act, 2005. When that article went to press the bill had been passed by the Sub-Committee on Environmental and Hazardous Materials and was on its way to the House Energy and Commerce Committee (where it reportedly faced no opposition).

On September 21, the State of Michigan’s House of Representatives approved legislation, initiated by Republican members, that would prohibit waste from Canada from being placed in state landfills once the U.S. federal government gives the state authority to ban foreign refuse. The chamber voted 105 to 3 to approve the main bill in the three-bill package. Only two Democrats voted against the bill but several said the legislation did not go far enough.

The Michigan Republican efforts were partly in response to a move by Democrats to imposes roughly US$200 million in taxes on waste disposal. Democrats claim the measure would discourage waste shipments across the border from Canada to Michigan. Republicans, however, were quick to point out that the “overwhelming majority of the tax” would impact Michigan residents and businesses. The Republicans’ legislation creates, they say, a “common sense plan to ban Canadian trash without raising taxes on residents.”

The legislation will not have the force of law until the federal proposed legislation is passed, but the message is clear that Michigan politicians of both stripes are serious about restricting or preventing waste imports from Ontario. State elections are on the horizon and politicians are lining up to score political points with vitriolic anti-Canadian waste rhetoric. Michigan House speaker Craig DeRoche was quoted saying, “No more Canadian trash. No new taxes.” Perhaps equally ominous are his statements that, “Thanks to the efforts of [those introducing the ‘ban’ legislation] we soon will have the ability to ban Canadian trash once and for all.”

With the sky already falling…

As if it wasn’t already enough that the federal and state governments were moving forward on this issue, another dark cloud has appeared.

Apparently without much fanfare or attention, a piece of legislation innocuously referred to as H.R. 2360 has made its way through both the U.S. House of Representatives and the Senate. The act, entitled the Department of Home Land Security Appropriation Act, 2006, would not seem to be of concern to the waste sector. However, a small, almost unnoticeable (in the context of home land security) section of H.R. 2360 has potentially far-reaching consequences for cross border waste shipments, wholly unrelated to the other legislative proposals discussed above.

Section 1808 of H.R. 2360 concerns itself with a report to be prepared and submitted to Congress by the Bureau of Customs of Border Protection. Specifically, the section requires that the Bureau submit a report to Congress indicating whether the methods and technology used to screen municipal solid waste being transported across the border into the U.S. for chemical, nuclear, biological and radiological weapons are effective. The report must determine whether the methodologies used by the Bureau to screen waste for such materials are as effective as those used for other, non-waste items transported in commercial vehicles.

If the methodologies are found to be less effective, the Bureau will have to identify remedial actions, without which the border will be closed to all waste shipments.

The section in question states that if the Bureau fails to fully implement the actions necessary to effectively screen waste shipments within (the earlier of) six months after the date on which the report is due or six months after the date on which the report is submitted, entry to the United States of any commercial vehicle carrying municipal solid waste shall be denied. Such a denial of entry would remain in place for any vehicles containing municipal solid waste until it is certified to Congress that the methods and technologies for screening are as effective as those used for other materials.

The upshot of all this is that if the Bureau for Customs and Border Protection fails to act pursuant to the deadlines imposed by H.R. 2360 (something that only the Bureau can control) all municipal solid waste traffic into the United States will be halted.

Responses from Ontario

Some insiders in the waste industry in Ontario have indicated that the U.S. EPA has expressed its concern that this could become a significant issue and that it should not be taken lightly. In media reports, Toronto Works Committee Chairman Councillor Shelley Carroll stated that the city is “very much concerned” with these events. She said the city has a contingency plan but that it’s a “confidential contingency plan.” Councillor Jane Pitfield (the previous committee chair) was quoted stating that “this is getting very serious. Before it is done to us, Toronto should show leadership and come up with a better plan…to deposit the waste closer to home.”

The Ministry of the Environment, meanwhile, has expressed interest in further exploring concerns with the province’s environmental assessment process, but it seems like EA reform will not arrive in time to deal with this potential near-term threat.

Adam Chamberlain is a certified specialist in environmental law with Aird & Berlis in Toronto, Ontario. Contact Adam at achamberlain@airdberlis.com


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