Presidential Authority to Control Export of Hazardous
Wastes Under the Export Administration Act of 1979
T h e E x p o rt A d m in istratio n A c t o f 1979 g iv es th e P re sid en t a u th o rity to im pose c o n tro ls
o n th e e x p o rt o f h aza rd o u s w astes.
U n d er th e 1979 A c t, th e term " e x p o rt” includes tra n sa c tio n s th at h av e substantial e c o
no m ic co n seq u en ces, ev en if th e y d o n ot d ire c tly p ro d u c e re v e n u e by sales.
October 2, 1980
MEMORANDUM OPINION FOR T H E ACTIN G LEG A L
ADVISER, D EPA R TM EN T O F STA TE
This responds to your request for our opinion whether the Export
Administration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503, 50 U.S.C.
App. § 2401 (Supp. Ill 1979), applies to the export of hazardous wastes.
The request comes in light of our memoranda for you of April 11,
1980, and of January 30, 1979, finding that the Act provides authority
for the President to control the export of hazardous substances.* We
now conclude that the Act is equally applicable to the export of
hazardous wastes.
Our prior memoranda emphasized the broad range of foreign policy
purposes to be served by the executive power to control exports. Our
April 11, 1980, memorandum particularly noted the statement in the
report of the conference committee that the President’s authority to
restrict exports “ ‘to further significantly the foreign policy of the
United States . . .’ encompasses the full range of U.S. foreign policy
goals.” H.R. Rep. No. 482, 96th Cong., 1st Sess. 43 (1979) (hereinafter
1979 Conference Report) (quoting § 3(2)(B) of the Act, 50 U.S.C. App.
§ 2402(2)(B)). These goals are the same for export of all hazardous
materials, hazardous substances and hazardous wastes alike. Each impli
cates United States relations with foreign countries because of the
danger to health and safety not only in the importing country but also,
because of the very nature of the materials, in other countries as well.
For example, if improperly handled, hazardous wastes could enter the
air Or water supply and from there contaminate the proximate and
perhaps the world environment. Even proper handling is no guarantee
of sufficient containment of wastes that will be deadly for centuries to
• N o t e : T h e text o f the A pril 11, 1980, m em orandum appears in this volum e at p. 568, supra. Ed.
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come. Contamination in the importing country of goods which are
subsequently exported could be similarly hazardous to other countries.
It is thus appropriate for our foreign policy to demonstrate our concern
for the risks attendant to export of hazardous wastes as well as hazard
ous substances.
Nor do the definitions of the objects of export controls indicate that
hazardous substances and hazardous wastes should be treated differ
ently. Section 6(a) of the Act authorizes the President to prohibit or
curtail the exportation of any “goods” in pursuit of foreign policy
purposes. 50 U.S.C. App. § 2405(a). As defined in § 16(3), “good”
includes any “article, material, supply or manufactured product.” 50
U.S.C. App. § 2415(3). Just as we earlier concluded that the breadth of
this definition indicated that hazardous substances were included, it is
our opinion that it is broad enough to include hazardous wastes as well.
The difference between hazardous substances and hazardous wastes
lies not in the foreign policy ramifications of export or in the categories
of goods subject to control. The only difference is in the export process
itself. Hazardous substances are exported by sales to the importing
country, and the sales produce direct revenue just as do sales of
nonhazardous goods. By contrast, exports of hazardous wastes are not
directly revenue producing. Instead, the material is exported by pay
ment to the importing country. The language and the legislative history
of the Export Administration Act, however, reflect congressional con
cern about revenue production through exports. For example, § 2(2) of
the Act states the finding by Congress that
“[e]xports contribute significantly to the economic well
being of the United States and the stability of the world
economy by increasing employment and production in the
United States, and by strengthening trade balance and the
value of the United States dollar, thereby reducing infla
tion. The restriction of exports from the United States can
have serious adverse effects on the balance of payments
and on domestic employment. . . .”
50 U.S.C. App. § 2401(2).
The 1979 conference report explained: “[A] large trade deficit weak
ens the value of the dollar, intensifies inflation, and heightens world
economic instability; that poor export performance contributes to the
trade deficit; . . . [and] it is in the national interest to place a high
priority on exports. . . .” 1979 Conference Report at 43. Because of
the procedure of exporting wastes by payments, the question arises
whether the Act applies to those exports which are not directly reve
nue producing.
The Act itself does not define “export.” The broad purposes of the
Act, however, suggest that a restrictive interpretation would not be
appropriate. It may be that exports of hazardous wastes do not directly
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produce revenue by sales. Yet it is clear that shipment is sought because
of the economic advantage to the exporter, an advantage through less
costly disposal of waste materials, which would affect the United States
economy in many of the same ways as does revenue production by
export. To exclude from the concept of “export” transactions with
these substantial economic consequences would frustrate the legislative
desire for a consistent and careful export policy.
Certain of the criteria identified in § 6(b) of the Act, 50 U.S.C. App.
§ 2405(b), for consideration in imposing export controls are concerned
with concepts associated with direct revenue production; but this em
phasis does not require that the definition of “export” be similarly
limited. Even to the extent that these criteria might not be strictly
applicable, as phrased, to the export of hazardous wastes, the variance
in terminology indicates no intent to limit executive power; for Con
gress explicitly recognized that not all criteria would be applicable in
all cases. In our memorandum of April 11, 1980, we said, “[T]his
provision [§ 6(b)] ‘did not establish criteria to be met but factors to be
considered, and recognized that the President, having considered them,
might find one or more of the factors irrelevant to a decision to impose
or remove controls,’ ” quoting S. Rep. No. 169, 96th Cong., 1st Sess. 8
(1979). See also 125 Cong. Rec. 19,937 (1979) (Statement of Senator
Stevenson on introducing S. 737); H.R. Rep. No. 200, 96th Cong., 1st
Sess. 20 (1979). Thus we find in the Act sufficient flexibility to author
ize the President to impose controls on the export of hazardous wastes.
L eon U lm a n
Deputy Assistant Attorney General
Office o f Legal Counsel
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