U.S. Law on Toxic Waste. North American Free Trade Agreement

Three major acts administered by the U.S. Environmental Protection Agency control the development and distribution of hazardous and toxic waste.

The first act is the Resource, Conservation and Recovery Act (RCRA) of 1970. This act and its amendments cover solid waste, recycling, and hazardous and toxic waste. Companies handling or shipping hazardous or toxic waste must track its use and disposal. Amendments to the act in 1984 and regulations in 1986 focused on export of toxic wastes. One requirement was that private shipments of waste be formally accepted by host nation governments.

However, lax enforcement and loopholes in the definition of "hazardous waste" (some of which encourage recycling) have led to serious environmental problems in countries receiving U.S. waste. For example, lead is not considered a RCRA waste, but centers in Mexico, Brazil, and Thailand that recycle lead auto batteries from the U.S. have contaminated the groundwater and caused other serious public health hazards. Also, after toxic wastes cross a border, it is difficult for people injured in those countries to bring U.S. lawsuits under RCRA and other laws.

The second act is the Toxic Substances Control Act (TSCA) of 1972, which required that chemicals be tested for health and environmental effects with EPA enforcement through civil proceedings. Critics of the EPA's enforcement point out that of 2,300 new substances reviewed by the EPA between 1972 and 1992, only 13 were withdrawn from the market.

Also, with 60,000 existing chemicals in the TSCA inventory, only 4 were fully regulated by the 1990s: dioxin, asbestos, polychlorinated biphenyls (PCBs), and chlorofluorocarbons (CFCs). And of these, only CFCs have been regulated in conjunction with an international treaty (the Montreal Protocol).

The need for a law to specifically deal with toxic waste dumps was apparent by 1980, when studies showed that toxic waste had been found in 24,000 locations. Highly publicized incidents such as those at Love Canal, New York, and Times Beach, Missouri, added momentum to calls for new legislation.

In response, the U.S. Congress passed the third major act—the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as well as the Superfund Authorization and Recovery Act (SARA) of 1980 and 1984. The goal of these acts was to fund the cleanup of abandoned toxic waste sites through a special tax on chemical and petroleum industries. Important cleanup projects would be put on a "Superfund" list, and cleanup would be financed through the special tax.

At the time the tax expired in 1995, the Superfund was contributing about $1.5 billion per year to the cleanup of abandoned dumps. Since then, the number of sites being cleaned up has been reduced, and funding has been depleted. Attempts to pass a Superfund tax reauthorization have not been successful.

North American Free Trade Agreement. The North American Free Trade Agreement is a 1992 treaty between the United States, Canada, and Mexico designed to promote trade in North America. Not only has NAFTA been successful in promoting trade, but also it has tended to promote trade in toxic waste.

Before NAFTA, toxic waste shipments were controlled with bilateral agreements between the United States, Mexico, and Canada. In 1983 the United States and Mexico signed a bilateral agreement on environmental cooperation in La Paz, Mexico.

The United States and Canada signed a similar agreement in 1986. At the time, Canada received 85 percent of U.S. hazardous waste exports. In 1988 Mexico banned importation of all hazardous wastes. Exceptions to the Mexican ban include recycling and border area businesses.

When NAFTA was passed in 1992, a major concern was that environment would take a back seat to trade. As a result, the Commission on Environmental Cooperation (CEC) was created to investigate and remedy environmental problems. But the CEC is overwhelmed and underfunded.