Congress likely to work on solid waste issues during the 109th Congress

Superfund/brownfields, interstate transport of solid waste and electronics recycling are hot issues

Heather McTavish Doucet
Government Relations Manager
APWA Washington Office

With the inauguration over, the parade bleachers down, the temperatures still chilly, and lawmakers dropping bills left and right, it's that time again, time to get inspired about our democratic process and get down to business on Capitol Hill. Lawmakers have been relatively kind to the solid waste industry in the past, rather than passing insignificant bill after bill; they just haven't done much in the way of legislation that affects solid waste. Although a flurry of bills on the transport of solid waste and brownfields were introduced near the end of 2004, few were passed and made into law. Congress is likely to pick up where they left off and reintroduce legislation from the previous Congress. There is talk of significant action on three topics: Superfund and Brownfields; Interstate Transport of Solid Waste; and Electronics Recycling.

Created in 1980 by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, P.L. 96-510), Superfund is the principal federal program for cleaning up hazardous waste sites to protect public health and the environment from releases of hazardous substances. The budget request for FY2005 is $1.4 billion for Superfund and $210 million for brownfields.

As of October 2004, 926 non-federal sites (67%) placed on the Superfund's National Priorities List (NPL) had been removed to the Construction Completed List.

Although Congress has yet to reinstate the "polluter pays" component of Superfund, the 108th Congress saw a fair amount of legislative activity related to the topic. S. 515, legislation to establish an independent ombudsman with expanded authorities related to Superfund, brownfields, and other programs in the Office of Solid Waste and Emergency Response, passed the Senate by unanimous consent on May 21, 2003. Although a companion bill was introduced in the House, it did not pass.

Two brownfield-related measures have had action. The Economic Development Administration Reauthorization Act (H.R. 2535) which would make brownfields eligible for certain grants and would establish a demonstration program for brownfield sites employing solar energy technology (termed brightfields), passed the House on October 21, 2003. Also, a bill to make the brownfields program in the Department of Housing and Urban Development more accessible to small communities was passed by the House.

Two brownfields provisions were also included in the tax bill. One authorizes tax-exempt facility bonds for "green building and sustainable design projects" that include a brownfield and meet other requirements. The other allows tax-exempt entities to invest in the cleanup and redevelopment of brownfields without incurring unrelated business income tax when they sell the property.

Sen. Barbara Boxer (D-CA) is likely to introduce legislation in 2005 that reinstates the "polluter pays" tax.

APWA Board of Directors member George Crombie recently attended a meeting with the Environmental Protection Agency's Superfund Redevelopment Initiative in Washington, D.C. Crombie was joined by the International City/County Management Association (ICMA), the National Association of Counties (NACo), the National League of Cities (NLC), and others to discuss the role of local government in Superfund cleanup and site reuse.

At the preliminary meeting, the coalition touched on the role of local government in:

  • Maintaining land use restrictions at former Superfund sites (and where funding might come to help with this);
  • The adoption of the Uniform Environmental Covenant Act (UECA) by states;
  • Encouraging the redevelopment of Superfund sites;
  • Incorporating data on environmental land use controls with one-call programs;
  • Dealing with the stigma of Superfund; and
    Relating the concept of cleanup standards to the public.

EPA was very interested in hearing from APWA about land reuse projects and discussing the benefits of Superfund. APWA will continue to meet with the coalition and pursue opportunities for local governments.

Electronics Recycling
Rapid growth in the use of computers and the incorporation of electronics features in a variety of consumer products have been a driving economic force in the last decade; however, they also pose major environmental problems. With companies constantly producing new products, older products simply become obsolete and have to be managed as waste. According to the National Safety Council, 55.4 million personal computers became obsolete in 2002. Those computers added almost 3.8 billion pounds to the supply of waste needing management in 2002 alone!

Volume is certainly a management issue but the toxic substances these products release are even more important. The National Safety Council estimates that a computer monitor or television set generally contains 4-10 pounds of lead. Mercury, cadmium and other heavy metals are also common in televisions and computer monitors.

Under federal waste management laws, states remain free to establish more stringent requirements. California and Massachusetts have taken it upon themselves to ban the disposal of cathode ray tubes (television sets and computer monitors) in municipal landfills and incinerators. However, disposal of other electronic waste is not regulated in any state.

According to a recent report, the cheapest e-waste recycling option in the U.S. is to send e-waste overseas; how it is used or disposed of is largely unknown.

Congress has yet to hold hearings on the disposal of electronic waste. During the last Congress, Rep. Mike Thompson (CA) introduced the National Computer Recycling Act. The legislation would have established a grant and fee program through the Environmental Protection Agency. Sources indicate the legislation will be introduced again this year.

There are several issues that would arise during discussions about electronics recycling legislation, including: grants for the development of recycling infrastructure; legislation establishing exemptions from the hazardous waste program to facilitate recycling of computers; development of a labeling program to encourage recycling or provide environmental information to consumers; bans on disposal and/or export of e-waste; regulation of the use of hazardous substances in computer equipment; requiring reuse or recycled content in computer manufacture; an "extended producer responsibility" system, requiring manufacturers and importers to take back computers for recycling, either as individual companies responsible for their own brands, or collectively through an industry consortium; a fee-based system for the management of "historic" waste; and a specific definition of computers or electronic waste that may be the subject of legislation (CRS Report to Congress: Recycling Computers and Electronic Equipment: Legislative and Regulatory Approaches for E-Waste).

Interstate Waste Transport
Interstate shipment of solid waste legislation has been considered in every Congress since 1990. Bills passed the Senate in the 103rd and 104th Congresses, and in the House in the 103rd but none have been enacted into law. During the last Congress, the Environment and Hazardous Materials Subcommittee of the Energy and Commerce Committee approved the Municipal Solid Waste Responsibility Act of 2004 (H.R. 4940). The legislation would amend the Solid Waste Disposal Act to prohibit landfills or incinerators from receiving out-of-state municipal waste without a host community agreement or state permit or contract. Critics, including APWA members, argue that the legislation would create an unnecessary hindrance to the free movement of interstate commerce.

The legislation includes provisions to control the movement of waste from Canada and other countries. The bill would require the U.S. government to implement the "notice and consent" provisions of the agreement between the United States and Canada concerning the Transboundary Movement of Hazardous Waste. The agreement has not been implemented and enforcement legislation promised by the Bush Administration has not been developed.

It's likely that legislation similar to H.R. 4940 will be introduced during the 109th session of Congress.

Heather McTavish Doucet can be reached at (202) 218-6732 or at hdoucet@apwa.net.