Cradle to Border: U.S. Hazardous Waste Export Regulations and International Law

This paper explores current U.S. law regulating the transboundary shipment and export of hazardous waste, under both the Resource Conservation and Recovery Act (RCRA) and applicable treaties. The paper attempts to untangle the overlapping strands of domestic law, including statutes, common law and ratified treaties, in the context of current international agreements. In addition, the paper examines the legal remedies provided by the Alien Tort Claims Act (ATCA) and its potential use by alien plaintiffs harmed by hazardous waste exported in violation of U.S. law or applicable treaties. The central insight of the paper is that the exemptions provided by RCRA, that were designed to encourage recycling and reuse of certain wastes, have created a loophole that allows many types of toxic waste to be exported without any regulation, data collection, or monitoring. Further, these "exempt wastes" are exported without any assurance that the wastes will be recycled or reused, or alternatively, disposed of in environmentally responsible manner. Examples of the kinds of wastes that slip through this loophole include: car batteries that contain corrosive acids and lead; and K061 waste from steel manufacturing that may contain high levels of toxic heavy metals and may be exported for use in fertilizer without regulation. In essence, the current regulatory structure provided by RCRA does not ensure that all domestically generated hazardous waste is recycled, reused or disposed of in an environmentally responsible manner once it crosses the border. The paper next looks at the role of the Organization for Economic Cooperation and Development (OECD) and the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal (Basel). The U.S. is a member of OECD but has not ratified Basel despite the fact that over 120 other counties are parties to the Convention, including Canada, Mexico, and the countries of the European Union. Because current U.S. export practices and regulations are not in compliance with Basel, and OECD rules are less stringent, it is becoming increasingly difficult for those U.S. trading partners who are parties to Basel to comply with the Convention.