TESTIMONY OF JOHN P. CAHILL
ACTING COMMISSIONER NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
before the
U.S. SENATE COMMITTEE ON ENVIRONMENT & PUBLIC WORKS
MARCH 18, 1997

Chairman Chafee and members of the Senate Environment and Public Works Committee, thank you for providing me with the opportunity to testify on behalf of the State of New York. I appreciate greatly the opportunity that you have afforded me to present the State's viewpoint on flow control and interstate waste issues.

I also wanted to take the opportunity to introduce myself. Governor Pataki appointed me as the Acting Commissioner of the Department of Environmental Conservation on January 1, 1997. The Governor has charged me with the protection of New York State's environment, balanced with the need to develop the State's economy. This is a challenge that I am undertaking enthusiastically.

New York State's Commitment

Senator Chafee, flow control and interstate waste issues are of great importance to New York State. I appreciate the Committee's invitation to provide New York's perspective during your decision-making process.

New York State has an unparalleled commitment to the reduction, reuse and recycling of solid waste generated within the State's borders. New York's Environmental Conservation Law establishes a hierarchy which prioritizes waste reduction, reuse and recycling methods of solid waste management, forming the basis for the State's solid waste management efforts.

In New York State, the Solid Waste Management Act of 1988 helped turn the tide of solid waste management in the State by including a comprehensive scope of requirements, programs and policies for State and local governments to follow in the management of solid waste. It established a Bureau of Waste Reduction and Recycling and a State Solid Waste Management Board; defined local planning units; authorized grant programs for planning, recycling, and local resource reuse and recovery; and set up a state technical assistance program. Most important, it set forth the State's waste management hierarchy: waste reduction, reuse/recycling, resource recovery, and landfilling. This statute created a fundamental change in the way municipalities viewed, and now implement, solid waste management.

In New York State, the recycling of solid waste materials has increased from approximately 2.0 million tons in 1988 to over 8.5 million tons in 1994. This level is continuing to increase. The Environmental Protection Fund, created by New York State in 1993, demonstrates our commitment to implementing the State mandated solid waste hierarchy by providing funds annually for a variety of local waste reduction and recycling activities.

In fact, New York has a recycling record of which we justifiably can be proud. As Governor Pataki recently noted in a Natural Resources Defense Council article, New York has achieved a recycling rate of 35%-- well above the national rate of 24%, and above the U.S. Environmental Protection Agency's expectations. And the Governor is committed to even greater recycling in coming years through State support of local recycling efforts.

However, New York faces the same challenge as states throughout the country, where some solid waste must still be incinerated for energy recovery or landfilled. And New York State, acting through its local governments, has made every effort to responsibly handle this residual solid waste within our own borders.

Approximately 80 percent of the waste that is not recycled is disposed of within the State. The remaining 20 percent (approximately 4.0 million tons) is exported to facilities in other states. Privately owned and operated facilities, many with host community agreements, manage the majority of this waste stream. The remainder is handled by municipalities, which use the disposal fees collected from New York to reduce the burden on their own taxpayers.

Since the mid-1980s, New York has been actively closing environmentally unsound landfills. Their threat to public health and the environment could no longer be ignored. In their place, municipalities were developing new, environmentally sound facilities. Recognizing its responsibility to assist municipalities with the costs of landfill closures, New York State first created the Environmental Protection Fund that I mentioned earlier, to help fund closure costs. Recognizing that this $ I 00 million a year fund -- which finances other environmental activities, including waste reduction and recycling -- could not adequately address the State's share of all local needs for landfill closure funds, Governor Pataki advanced, and the voters approved, a Clean Water/Clean Air Bond Act that provides an additional $50 million in landfill closure grants to local governments. Between these two funding sources, we believe that the State will provide sufficient funds to local governments to ensure that all landfills that must be closed, will be- closed.

Loss of flow control, as I will discuss below, is presenting a major obstacle to our waste management structure. The financial assistance that the State can provide, cannot absorb or provide relief for the localities in New York State that already have incurred substantial debt because they believed that flow control was a legally and financially sound mechanism. Congressional action, I believe, is our only avenue to help New York's municipalities once again to be self-supporting with respect to the financial mechanisms needed to properly manage their waste streams.

Flow Control

Local governments in New York, like those in other states, faced serious financial consequences as a result of the C&A Carbone v. Town of Clarkstown U.S. Supreme Court decision in 1994. Prior to this decision, over a billion dollars in local debt had been issued for the planning, design and construction of environmentally sound landfills and waste-to-energy facilities in New York State. The State has supported and assisted our local governments to meet their financial obligations since the Supreme Court struck down these flow control ordinances. To do so has been a great challenge.

The State of New York has had a history of municipal development and operation of solid waste disposal facilities, in contrast to most other states, where private landfills have served communities. As attention to the environmental impacts of solid waste disposal grew, the costs of developing such facilities skyrocketed. Added to that was the obligation of our municipalities to provide for waste reduction and recycling efforts -- our law puts that burden on local government, not private entities. This situation led to the need for flow control in order to create economically viable and environmentally sound solid waste management systems that, through bond financing, State assistance, and local funds, provided everything from education to recycling to final disposal. The costs of such systems, as you are well aware, are substantial. The loss of flow control represented a major change in direction for New York's system.

Nearly three years after the Carbone decision, assistance from Congress is still urgently needed to help New York State's communities cope with the financial and environmental responsibilities of proper solid waste disposal. Restitution of flow control in municipalities which previously had it would provide assurance to bond counsels and relief to local governments. It would bring a substantial portion of our current exports back into New York, where full-service municipal facilities have found themselves at an economic disadvantage against private enterprise with respect to tipping fees. In addition, it would help New York avoid future problems with solid waste disposal that may affect other states, and would assure increased investment by municipalities in waste reduction and recycling efforts.

The Carbone decision resulted in the exportation of approximately an additional one million tons annually of municipal solid waste generated in New York State, and a shift in disposal from local, municipally owned facilities to more competitive private facilities that did not bear the municipalities' burden of costs and thus, could afford lower tipping fees. If flow control is re-instituted for those communities that initially had it, localities can once again manage solid waste within their own borders at more competitive tipping fees.

While flow control legislation is important to New York, I wish to direct the majority of my comments to an even more sensitive issue, the exportation of solid waste from New York State, particularly New York City, and how it relates to the recent agreement between the City and the State to close the Fresh Kills Landfill. Although some private carters or municipalities elsewhere in New York State are responsible for a portion of our exports, we recognize that the primary concern of other states, and their Congressional representatives, has been the exportation of commercially generated solid waste from New York City. With the closure of Fresh Kills, residentially generated solid waste will be added to this mix of exports.

New York City's New Approach to Solid Waste Management

Last June, Governor Pataki, along with Mayor Guiliani and the New York State Legislature, made a commitment to close this country's largest landfill by January 1, 2002-- a decision that was long overdue. Fresh Kills has a lengthy history. It was built in 1948 upon environmentally fragile marine wetlands. When opened, it covered I ,500 acres, and was not intended to go higher than the surrounding grade level, and was expected to be in use for only a few years. Instead, after 48 years, it has grown to 2,200 acres with heights approaching 200 feet. The Fresh Kills Landfill, due to its longstanding inadequacies, has contributed to the degradation of air and water quality; and its construction preceded State requirements to line landfills. Let me make this clear: the problem with Fresh Kills was not the waste going into the facility; rather, it was the facility itself.

On top of the commitments made to assist municipalities across New York State, the Clean Water/Clean Air Bond Act earmarks $75 million to assist New York City with the environmentally sound closure of the Fresh Kills Landfill. While it is unquestioned that there will be major public health and environmental benefits from closing the Fresh Kills Landfill, some people still ask: why let the City close its only remaining landfill? The answer is simple. Every day that the City continues to dispose of waste at Fresh Kills prolongs the pollution of Staten Island and the surrounding waters of New York Harbor, and delays the implementation of more effective waste reduction, recycling and waste disposal strategies.

In less than a year, we've seen a task force of State, City, federal and environmental interests convened by Governor Pataki and Mayor Guiliani unanimously release a report pledging to implement dozens of proposals for replacing Fresh Kills. Since the Task Force report was released last November, New York City already has begun to refocus and expand its recycling and waste reduction programs, adopting each and every recommendation of the Task Force, with budgetary and staff commitments to back it up. Junk mail, mixed paper and bulk metals are being added to the City's existing recycling program, and the City, with guidance from the State, is preparing over a dozen pilot programs and other field-oriented studies that will shape another round of waste reduction and recycling program improvements in early 1998.

Governor Pataki and Mayor Guiliani also have stressed the need to encourage growth in the recycling industry, to strengthen recycling's cost effectiveness and the overall economy of the metropolitan area. Successful corporate recruitment efforts such as the Visy Paper recycled cardboard plant recently constructed on Staten Island will enable recycling to play an increasing role in future waste management plans. When the Visy plant goes on line this June, it will create a market for paper the City previously could only have dreamed of, and will provide 400 permanent jobs.

The State also has provided economic development assistance to New York City's local development corporations and private entities, to facilitate the development of new waste reduction and recycling techniques. We firmly believe that, in the future, other large cities will look to New York for advice and assistance on innovative recycling, composting and waste reduction efforts.

To allow for an orderly transition away from dependence on Fresh Kills, the City will decrease the tonnage of solid waste going to the Landfill steadily, year by year, until it reaches zero at the end of 2001. The remaining amount of trash that has not been captured by waste reduction and recycling initiatives, the City will send to environmentally sound disposal facilities operating with the agreement of the surrounding community.

In fact, the Fresh Kills Task Force Report contains an essential commitment of the City: to dispose only at permitted landfills that have entered into "host community" agreements signifying the acceptance of the facility by the community involved. The inclusion of this commitment by the City was crucial to our neighboring states and New York's other communities. Governor Pataki views these commitments as fundamental to preserving the fairness of the Fresh Kills closure process.

Clean Water/Clean Air Bond Act

The State believes that it must assist the City in these efforts. For that reason, when Governor Pataki proposed the Clean Water/Clean Air Bond Act in 1996, he included in it $100 million for City solid waste management. As I mentioned earlier, $75 million is provided to help the City finance the closure of the Fresh Kills Landfill, and $25 million is available for capital costs of waste reduction and recycling projects, the largest single recycling commitment ever made in the State. The voters of the State approved this commitment, demonstrating their strong support for responsible solid waste management in New York City. In addition, $19 million in 1972 Environmental Quality Bond Act aid has been converted to make it available for further recycling grants. Finally, the State's Environmental Protection Fund provides an annual funding stream for solid waste projects across the state, including such important efforts as public education and outreach.

Solid Waste Exports

Governor Pataki recognizes the importance of State assistance to ensuring that local governments, including New York City, meet the State's solid waste hierarchy. Financial support is only one means of assistance. The Governor is working in partnership with New York City to develop appropriate solid waste management techniques while we work towards the post-Fresh Kills era.

My agency, the New York State Department of Environmental Conservation, works closely with City officials on a daily basis to determine the most appropriate means to manage the City's waste flow.

Even with these waste reduction and recycling initiatives and the financial commitments of the State, New York recognizes the unfortunate necessity to export a portion of the residential solid waste collected by New York City that would otherwise have been disposed at the Fresh Kills landfill. The commercially generated waste from New York is already disposed of separately, often going to facilities in other states.

New York State understands the burden other states are bearing, and is willing to work toward limitations on our waste exports, provided they are accomplished in a predictable, reasoned fashion. We can support legislation that will provide a reasoned, predictable framework, without which private developers are unwilling to make long-term investments to assist in our disposal needs. This includes no presumptive ban against interstate waste shipments, and upholding willing host community agreements.

In addition to our support for such a measure, I want to point out that New York has, and will continue to, take action to develop new disposal capacity instate -- not only to assist New York City, but also other local governments in this State. Our efforts to develop new capacity include:

In its 1993 amendments to its solid waste management regulations, DEC modified its landfill siting requirements to allow more flexibility in how the landfill siting process will be conducted. Rather than require applicants to evaluate numerous alternative locations to find the most appropriate site, specific siting criteria were added that are adequate for the protection of both human health and the environment, making it more feasible to locate landfill sites in the State. DEC believes that this approach to siting will result in significant reductions in the amount of time and money necessary to site a landfill.

-- During 1995 and 1996, DEC issued permits for the construction of approximately 50 million tons of additional landfill capacity. In addition, several major new landfill projects and expansions are being pursued presently by the public and private sector.

-- In late 1994, the Onondaga County Resource Recovery Agency's Waste to Energy Facility commenced operations, thereby eliminating exports of solid waste from the Syracuse area to other states.

New York is making every effort to ensure, first and foremost, that solid waste is reduced, reused or recycled instead of becoming a waste product. Every effort is being taken to dispose of waste in-State. Finally, where waste exports remain a necessity, we are willing to commit to reasonable restrictions that do not include a presumptive ban on interstate waste transports.

Again, please bear in mind that waste exported from New York State is sent primarily to willing host communities. This issue is of paramount importance to the State. We believe that our waste exports should be sent only to those communities willing to receive it, and are willing to work with interested municipalities to develop these agreements. To exemplify this commitment, New York City and the State have made the commitment to require any facility accepting residential solid waste exported by the City to have a host community benefit agreement in place.

Senator Chafee, I want to express to you and the other members of the Committee my personal willingness to work with you on flow control/interstate waste legislation. I want to thank you, not only for the time you have allotted me today, but also for your willingness to listen to New York's needs in the past, and today, on this issue.