Exporting Waste : Regulation of the Export of Hazardous Wastes from the United States

The international trade in hazardous wastes has been a subject of controversy for decades. Notorious examples of hazardous wastes being improperly disposed of in Africa have created concern about the legitimacy of developed western countries “dumping” the hazardous byproducts of their industrial development on less-developed countries. This article examines the legal bases for EPA’s regulation of the exports of hazardous waste under the Resource Conservation and Recovery Act. It contains a detailed examination of EPA’s complex sets of export regulations and provides data on the actual scope of exports reported to EPA. It examines a series of questions regarding EPA’s authority to regulate the export of hazardous wastes: what domestic authority does EPA derive from the international agreements; what is the scope of EPA’s authority to exclude hazardous wastes from export control; what authority does EPA have to ban the export of hazardous wastes to countries with whom we do not have an international agreement and which may not manage the waste properly? The article also examines the extent to which EPA regulations address the significant concerns associated with the largely unregulated export of electronic wastes. The article reaches a number of perhaps surprising conclusions. First, the article suggests that provisions of RCRA that purport to give domestic legal effect to future international agreements would violate constitutional procedures required to implement actions with legislative effect. It also analyzes case law that suggests that conferring binding authority on a Decision of the OECD would constitute an unconstitutional delegation of authority to an international entity. Second, the article questions the legal basis of the U.S. decision not to ratify the Basel Convention on the Transboundary Movement of Hazardous Waste. Although the U.S. has signed and the Senate has consented to ratification, the U.S. has not formally ratified the Convention based on the position of the Department of State and EPA that Basel cannot be implemented without statutory changes to RCRA. This article suggests that RCRA currently contains adequate authority to implement Basel and thus ratification could be immediately undertaken. The article argues, however, that control of the international trade in U.S. hazardous waste may be better served by the U.S. not ratifying Basel. Third, there may be a substantial misperception, fostered by EPA, about the regulation of electronic wastes under RCRA. EPA has suggested that only waste “cathode ray tubes” are a hazardous waste under RCRA, but EPA’s own data suggest that a substantial amount of other e-wastes should be classified as hazardous wastes and thus subject to export controls. Perhaps the most significant step EPA could take to strengthen its existing export regulations would be to clarify the status of such e-wastes. Fourth, EPA does have the authority under RCRA to impose export controls on hazardous wastes that it has excluded from domestic regulation. Thus, EPA could regulate the export of e-wastes while not imposing requirements on the domestic recycling of such wastes. Finally, EPA’s management of the export of hazardous waste would be improved by providing more transparency through online posting of export data. Concerns about releasing confidential business information do not stand as a significant obstacle to providing this information