Imports of Canadian Waste

Imports of Canadian Waste
Updated February 4, 2008
James E. McCarthy
Specialist in Environmental Policy
Resources, Science, and Industry Division

Imports of Canadian Waste
Summary
Private waste haulers and Canadian cities — including the city of Toronto —
ship large quantities of waste to the United States. About four million tons (as many
as 400 truckloads a day) have been shipped annually since 2004, according to
receiving states. Nearly three-quarters of this waste has gone to two large landfills
near Detroit.
The influx of waste has been highly controversial, in part because the ability of
state and local governments to restrict it is limited. Under court rulings concerning
the U.S. Constitution’s Commerce Clause, only Congress can authorize restrictions
that discriminate against foreign waste. Thus, for several years, the state of Michigan
and the Michigan congressional delegation have pressed Congress for action.
Legislation to provide limited authority to restrict waste imports, H.R. 518, was
introduced early in the 110^th Congress by Representative Dingell, with the co-
sponsorship of the entire Michigan delegation. The bill was reported by the Energy
and Commerce Committee March 29, and passed the House, by voice vote, April 24,

2007.

Congress began to focus on this issue in the summer of 2006. In July of that
year, in the Department of Homeland Security appropriations bill (H.R. 5441), the
Senate approved the establishment of an inspection program for waste imports that
might have added more than $400 in fees to the cost of importing a truckload of
waste. In early September, the House passed legislation similar to H.R. 518 (H.R.
2491 in the 109^th Congress), which would have given states limited authority to
restrict waste imports. In between these actions, an agreement was reached between
Michigan’s two Senators and the Ontario Ministry of the Environment, under which
Ontario will eliminate shipments of municipally managed waste to Michigan by the
end of 2010.
The steps taken by Congress in beginning to move legislation, as well as
separate legislation enacted by the state of Michigan, clearly played a role in bringing
about the voluntary agreement between Michigan’s two Senators and Ontario. But
large issues remain. The agreement is not a treaty or an international agreement, so
it does not formally bind the United States or Canada or the parties shipping and
receiving the waste. Assuming that its provisions are adhered to by Ontario’s waste
managers, it still would not address two-thirds of the waste being shipped to
Michigan (i.e., the waste being managed by private waste management firms), and
it would not affect waste shipments to states other than Michigan.
This report provides background information on the history of Canadian waste
imports, reviews congressional developments, and discusses issues raised by the
voluntary agreement and legislation.

Contents
Background ......................................................1
U.S. Canada Bilateral Agreement.................................1
Waste Import Data.............................................2
The Fort Gratiot Case...........................................4
Recent Developments ..............................................4
H.R. 2491/H.R. 518............................................4
Michigan H.B. 5176............................................5
DHS Appropriations Bill........................................5
Exchange of Letters with Ontario.................................5
Remaining Issues..................................................6
Issues Posed by the Exchange of Letters............................6
Issues Posed by H.R. 518........................................7
List of Figures
Figure 1. Canadian Waste Disposed in Michigan.........................3

Imports of Canadian Waste
Background
Canada and the United States have open borders for waste shipments, and waste¹
has flowed across the border in both directions for years. The federal government
does not report data regarding such shipments, but information is available from
Environment Canada, the Ontario Ministry of the Environment, and from some U.S.
states. According to these sources, the United States appears to be a net exporter to²
Canada of hazardous waste; but, because of plentiful landfill capacity, low-cost
disposal options, and existing contractual arrangements, the United States is a much
larger net importer from Canada of non-hazardous solid waste. The latter category
can include municipal solid waste (MSW),³ construction and demolition (C&D)
waste, medical waste, and non-hazardous industrial waste.
U.S. Canada Bilateral Agreement
Under a 1986 agreement between the United States and Canada,⁴ shipments of
hazardous waste require notification to the importing country and that country’s
consent before waste may be shipped. The notification must include the exporter’s
identity; a description of the waste; the frequency or rate at which the waste will be

¹ Prior to July 1991, the amount of municipal solid waste shipped to the United States was
rather small, because the Animal and Plant Health Inspection Service of the U.S.
Department of Agriculture (APHIS) required incineration of all foreign garbage shipped to
the United States to prevent foreign pests and diseases from harming U.S. agricultural
production. Canadian waste was exempted from this requirement in July 1991 when APHIS
decided that it did not have the legal authority to prevent the importation of Canadian
garbage or to require its incineration, because there was no biological basis for these
restrictions. The amount of Canadian waste shipped to the United States increased at least
five-fold following this decision.
² Environment Canada, “Hazardous Waste and Hazardous Recyclable Material Management
in Canada, 2005 Annual Statistics on their Exports and Imports,” Backgrounder, December

7, 2006, available at [http://www.ec.gc.ca/wmd-dgd/default.asp?lang=En&n=F345CA54-1].

According to the Backgrounder, Canada’s hazardous waste imports, 99% of which come
from the United States, totaled 476,416 metric tonnes in 2005 (524,058 tons), while exports
totaled 327,746 metric tonnes. Hazardous waste is defined in regulations at 40 C.F.R. Part

261.

³ Municipal solid waste is not defined by statute or regulation, but is generally considered
to include paper, metal, plastic, glass, and organic materials generated by households,
commercial establishments, and institutions.
⁴ Agreement Between the Government of the United States of America and the Government
of Canada Concerning the Transboundary Movement of Hazardous Waste, Ottawa, 1986,
TIAS 11099.

imported; the total quantity of the waste; the point of entry; the identity of the
transporter, means of transport, and type of containers; the identity of the consignee;
a description of the manner in which the waste will be treated, stored, or disposed;
and the approximate date of the first shipment. The receiving country is given 30
days from the date it receives notice to indicate its consent (conditional or not) or its
objection to the shipment. If no response is received within the 30-day period, the
importing country is considered to have no objection. Consent is not irrevocable:
whether express, tacit, or conditional, the importing country’s consent may be
withdrawn or modified for good cause.
The bilateral hazardous waste agreement was amended in 1992 to establish
similar requirements for municipal solid waste,⁵ but, for lack of legislative authority,
the amendment was never implemented.⁶ It is these unregulated shipments of non-
hazardous waste, principally municipal solid waste, that have proven controversial.
Lacking notification or consent requirements for MSW, many state governments
do require the operators of solid waste management facilities to report the origin of
waste they have received for disposal after the fact, on a quarterly or an annual basis.
According to these data, entities in the Canadian province of Ontario have shipped
major quantities of waste (principally MSW and C&D waste) to the United States in
recent years.
Waste Import Data
State waste reporting requirements are not uniform: the reporting periods vary,
as do the methods used by states to collect the data; some states don’t collect data at
all, although one can often find a knowledgeable official willing to provide an
estimate. Using these sources, CRS has from time to time compiled the existing state
data, in an attempt to provide comprehensive and comparable estimates. Our latest
survey, published in June 2007, indicated that Michigan received 3,781,171 tons⁷ of
municipal solid waste from Ontario in FY2005 (October 2004-September 2005).⁸
New York, the second largest recipient, received 195,228 tons from Ontario in
calendar year 2005. The only other recipient we identified was the state of
Washington, which received 101,834 tons from the Canadian province of British
Columbia in 2005.⁹ The proportions are consistent with amounts reported in earlier
years. Thus, it appears that more than 90% of the solid waste that Canada ships to

⁵ Amendment to the Agreement Between the Government of the United States of America
and the Government of Canada Concerning the Transboundary Movement of Hazardous
Wastes, Washington, 1992, copy of text provided by the U.S. Department of State. See note

2 above regarding the definition of municipal solid waste.

⁶ Section 3017 of the Solid Waste Disposal Act (42 U.S.C. 6938) provides authority for the
bilateral agreement on hazardous waste, but not for non-hazardous wastes.
⁷ Converted by CRS from state data expressed in cubic yards, using 3 cubic yards = 1 ton.
⁸ In FY2006, imports to Michigan from Canada increased by 68,939 tons, less than a 2%
increase.
⁹ CRS Report RL34043, Interstate Shipment of Municipal Solid Waste: 2007 Update, by
James E. McCarthy.

the United States has gone to Michigan. The remainder has generally gone to the
states of New York and Washington.
Figure 1. Canadian Waste Disposed in Michigan

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While somewhat controversial throughout the 1990s, Canadian waste imports
have received much greater attention since late 2002, when the city of Toronto —
Canada’s largest city — announced that it would close its last landfill and begin
shipping all of its waste to Michigan. Canada’s shipments of waste to Michigan
increased 83% between then and fiscal year 2006. In FY2006, Michigan reported
that it received 12,084,907 cubic yards (an estimated 4.03 million tons) of non-
hazardous waste from Canada. Canada accounted for 19.5% of all the waste
disposed in Michigan landfills in that year.¹⁰ Canadian waste imports decreased 9%
in FY2007, to 10,982,984 cubic yards (about 3.66 million tons), but still accounted
for 18.9% of the waste disposed in Michigan landfills.¹¹
¹⁰ Michigan Department of Environmental Quality, Report of Solid Waste Landfilled in
Michigan, October 1, 2005 — September 30, 2006, Lansing, Michigan, January 31, 2007,
at
[http://www.deq . s t a t e . mi . u s / d o c u me n t s / d e q -w h m-s t s w-ReportSolidWasteLandfilledFY2
006.PDF]. In addition to the 19.5% received from Canada, waste from other U.S. states
accounted for another 11.2% of the waste disposed in the state. Most states report waste
disposal and waste import in tons, rather than cubic yards; for purposes of comparison, CRS
converted the Michigan data to tons, using Michigan’s conversion ratio of 3 cubic yards
equals one ton. Among U.S. states, Michigan is, by far, the largest recipient of foreign
waste. Pennsylvania and Virginia, however, receive more interstate shipments of waste.
For additional information, see CRS Report RL34043, Interstate Shipment of Municipal
Solid Waste: 2007 Update, by James E. McCarthy.
¹¹ Michigan Department of Environmental Quality, Report of Solid Waste Landfilled in
Michigan, October 1, 2006 — September 30, 2007, Lansing, Michigan, January 31, 2008,
at [http://www.michigan.gov/documents/deq/deq-whm-stsw-ReportSolidWasteLandfilledFY

2007_223219_7.PDF].

The Fort Gratiot Case
Since the late 1980s, Michigan has attempted to restrict imports of waste. In
1992, however, in Fort Gratiot Sanitary Landfill v. Michigan DNR, waste import
restrictions authorized by the state were held unconstitutional by the U.S. Supreme
Court.¹² Under Article I, Section 8 of the U.S. Constitution, Congress is given power
to regulate interstate and foreign commerce; in a long series of cases beginning in the
1800s the Court has held that this grant of authority to Congress implies a prohibition
of state actions to discriminate against interstate and foreign commerce, absent the
consent of Congress.
Recent Developments
Providing congressional consent is the goal of numerous bills that have been
introduced in Congress.
H.R. 2491/H.R. 518
In the 109th Congress, the most prominent of these bills was H.R. 2491
(Gillmor), which was reported by the House Energy and Commerce Committee on
September 27, 2005, and passed the House by voice vote, September 6, 2006. Similar
legislation (H.R. 518) was introduced by Representative Dingell in the 110^th
Congress, was reported by the Energy and Commerce Committee (H.Rept. 110-81)
March 29, 2007, and passed the House by voice vote, April 24, 2007. As of January

2008, there has been no action on the bill in the Senate.

H.R. 518 would implement the bilateral U.S.-Canada waste trade agreement, as
amended in 1992 to deal with municipal solid waste shipments between the two
countries. It would require the EPA Administrator to perform the functions of the
Designated Authority under the agreement and require him to implement and enforce
the agreement’s notice and consent requirements. In considering whether to consent
to waste importation, the EPA Administrator would be required, in the words of the
bill, to “give substantial weight to the views of the State or States into which the
municipal solid waste is to be imported, and consider the views of the local
government with jurisdiction over the location where the waste is to be disposed.”
The Administrator would also be required to consider the impact of the importation
on continued public support for and adherence to state and local recycling programs,
landfill capacity, and air emissions and road deterioration from increased vehicular
traffic, and to consider the impact of the importation on homeland security, public
health, and the environment.
The bill would also authorize states to restrict imports of foreign MSW,
provided they do so prior to the bilateral agreement’s implementation. Under the
latter provision, states would have a window of up to 24 months after the bill’s

¹² Fort Gratiot Sanitary Landfill v. Michigan Department of Natural Resources, 504 U.S. 353
(1992). The restrictions at issue were at the county level, but were authorized by the state.

enactment to impose restrictions of their choosing on the receipt of foreign MSW,
and those regulations could remain in effect as long as the state desires.
Michigan H.B. 5176
Michigan has already enacted legislation that would go into effect if this
provision of H.R. 518 were enacted. On March 9, 2006, the Governor signed H.B.
5176, which prohibits the delivery and acceptance for disposal in Michigan of MSW
generated outside of the United States, once Congress authorizes such prohibitions.¹³
DHS Appropriations Bill
In the 109^th Congress, H.R. 5441, the Department of Homeland Security (DHS)
FY2007 Appropriations bill, as amended by the Senate July 13, 2006, also contained
provisions that would have discouraged Canadian waste imports. An amendment
submitted by Senator Stabenow (for herself, Senator Levin, and Senator Baucus)
provided for inspections of international shipments of MSW, and required the
Secretary of Homeland Security to levy a fee to cover the approximate cost of such
inspections.¹⁴ In a floor statement, Senator Stabenow explained the effect of the
amendment as follows:
Based on information provided by the inspector general [of the Department of
Homeland Security], we know that it will take four Customs agents about 4 hours
for each trash truck inspection. Based on personnel and administrative costs, we¹⁵
estimate that the fee for each trash truck will be approximately $420.
A separate amendment, introduced by Senator Levin (with the co-sponsorship of
Senators Stabenow and Voinovich) and also approved in the Senate by unanimous
consent, would have required that the Secretary of Homeland Security deny entry into
the United States to trucks carrying MSW unless he certifies to Congress that the
methodologies and technologies used by the Bureau of Customs and Border
Protection to detect the presence of chemical, nuclear, biological, and radiological
weapons in municipal solid waste are as effective as those used to screen for such
materials in other items of commerce entering the United States in commercial motor
vehicles.¹⁶
Exchange of Letters with Ontario
Following passage of the Stabenow and Levin amendments, on August 30,
2006, the Ontario Ministry of the Environment reached an agreement with the two
Senators, under which Ontario will eliminate shipments of municipally managed
waste to Michigan by the end of 2010. In return, the Senators agreed not to pursue

¹³ Act No. 57, Public Acts of 2006, State of Michigan.
¹⁴ The amendment, S.Amdt. 4657, was agreed to by unanimous consent, July 13, 2006.
¹⁵ Congressional Record, July 13, 2006, p. S7476.
¹⁶ S.Amdt. 4617. For consideration, see Congressional Record, July 13, 2006, pp. S7470-

7471.

passage of the inspection fee and certification provisions in the Homeland Security
Appropriations bill or to “pursue similar current or future measures.”¹⁷ The
inspection fee and certification provisions were deleted in conference,¹⁸ and the bill
was signed by the President October 4, 2006. On September 19, 2006, Toronto’s
City Council approved a letter of intent to purchase a landfill near London, Ontario,
where it is expected to ship its waste as it phases out shipments to Michigan.¹⁹ In
FY2007, shipments of solid waste from Ontario to Michigan declined for the first
time since FY1999.²⁰
The steps taken by Congress in beginning to move legislation, as well as the
separate legislation enacted by the state of Michigan, clearly played a role in bringing
about the exchange of letters with Ontario. But large issues remain.
Remaining Issues
Issues remaining to be addressed include some posed by the exchange of letters
and others posed by H.R. 518.
Issues Posed by the Exchange of Letters
The agreement reached by the two Michigan Senators in their exchange of
letters with Ontario’s Minister of the Environment would address a portion of the
waste shipped from Ontario to Michigan, but it would not eliminate the majority of
it. The letters refer to “municipally managed waste,” and specifically use a 2005
baseline amount of 1.34 million tonnes²¹ of municipal waste shipped.²²
Accompanying materials from the Ministry of the Environment, however, note that
in 2005, “4 million tonnes of waste were exported to the U.S., with 90% of this waste
being sent to Michigan landfills.”²³ Thus, Ontario’s commitment appears to cover
only one-third of the waste shipped from the province to the United States, or 37%
of the waste it shipped to Michigan.
The reason for excluding the majority of the waste is that it is not “municipally
managed” — it is waste collected by private haulers and shipped to Michigan

¹⁷ Letter of Senators Stabenow and Levin to Hon. Laurel C. Broten, Ontario Minister of the
Environment, August 30, 2006.
¹⁸ See H.Rept. 109-699, p. 181.
¹⁹ City of Toronto, “Toronto Approves Landfill Purchase as Part of Solid Waste
Management Plan,” press release, September 19, 2006, at [http://wx.toronto.ca
/inter/it/newsrel.nsf/0/3a d17f7066b0e39985257108006a7003?OpenDocume nt].
²⁰ Michigan DEQ, FY2007 Solid Waste Report, previously cited, p. 4.
²¹ Tonnes are metric tons, which are equivalent to 1.1 short tons.
²² Letter of Laurel C. Broten, Ontario Minister of the Environment, to Senators Stabenow
and Levin, August 30, 2006.
²³ Ontario Ministry of the Environment, “How Ontario Manages Its Waste: the Basic Facts
and Figures,” Fact Sheet, August 31, 2006.

landfills under private contracts. These wastes are shipped to Michigan either
because it provides lower cost disposal options or because the landfills in Michigan
are controlled by the same company that collects the waste in Canada. The
provincial government and the local governments within the province have no
authority to prevent these private waste shipments from leaving Ontario. Thus, the
province has committed to eliminate what it can, i.e., that portion of the waste that
is municipally managed.
Second, the exchange of letters addresses the shipment of these wastes to
Michigan, but not to other U.S. states. Given the subsequent action by the Toronto
City Council, it would appear that when the waste is diverted from Michigan, it will
be shipped to a site in Ontario; but nothing in the letters would prevent the waste
being shipped to other U.S. landfills instead of those in Michigan.
Third, the exchange of letters represents voluntary, good faith commitments by
the parties. It is not a treaty or an international agreement and does not provide the
enforcement provisions or penalties that legislation might offer.
To summarize, those who continue to be concerned about Canadian waste
shipments are likely to note that the exchange of letters does not address two-thirds
of the waste being shipped, does not protect states other than Michigan, and contains
no enforcement provisions. Addressing these issues would require congressional
action.
Issues Posed by H.R. 518
H.R. 518, by contrast, would apply to private contracts, would apply to all 50
states, and would provide for enforcement. The bill would clarify that actions taken
under its authority shall not be considered to impose an undue burden on interstate
or foreign commerce, and thus would be immune to challenge under the Commerce
Clause of the Constitution.
But the effect of the bill might still be uncertain. In Section 4011(a)(3), it states,
“Nothing in this section affects, replaces, or amends prior law relating to the need for
consistency with international trade obligations.” The bill, thus, appears to recognize
that U.S. trade agreements would have a role to play in defining the scope of the
states’ authority to act pursuant to the legislation. It is not clear how these
obligations and the bill’s grant of authority to the states to restrict waste imports
would ultimately be reconciled. Opponents of the bill, including the National Solid
Wastes Management Association (which represents the U.S. waste management
industry), have already made clear their intention to challenge its provisions in court
if it is enacted; this issue would presumably be among the provisions litigated.