I

103D CONGRESS

2D SESSION H. R. 4360

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to clarify liability under that Act for certain

recycling transactions.

IN THE HOUSE OF REPRESENTATIVES

MAY 5, 1994

Ms. LAMBERT (for herself, Mr. UPTON, Mr. BOUCHER, Mr. SCHAEFER, and

Mr. MANTON) introduced the following bill; which was referred jointly to

the Committees on Energy and Commerce and Public Works and Transportation

A BILL

To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to clarify liability

under that Act for certain recycling transactions.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Superfund Recycling

5 Equity Act of 1994’’.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are—
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1 (1) to promote the reuse and recycling of scrap

2 material in furtherance of the goals of waste mini3 mization and natural resource conservation while

4 protecting human health and the environment;

5 (2) to level the playing field between the use of

6 virgin materials and recycled materials; and

7 (3) to remove the disincentives and impedi8 ments to recycling because of potential Superfund li9 ability.

10 SEC. 3. CLARIFICATION OF LIABILITY UNDER CERCLA FOR

11 RECYCLING TRANSACTIONS.

12 Title I of the Comprehensive Environmental Re13 sponse, Compensation, and Liability Act of 1980 is

14 amended by adding at the end the following new section:

15 ‘‘SEC. 127. RECYCLING TRANSACTIONS.

16 ‘‘(a) LIABILITY CLARIFICATION.—As provided in

17 subsections (b), (c), and (d), a person who arranged for

18 the recycling of recyclable material shall not be liable

19 under section 107(a)(3) or 107(a)(4).

20 ‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur21 poses of this section, the term ‘recyclable material’ means

22 scrap paper, scrap plastic, scrap glass, scrap textiles,

23 scrap rubber (other than whole tires), scrap metal, or

24 scrap lead-acid and nickel-cadmium batteries, as well as

25 minor amounts of material incident to or adhering to the
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1 scrap material as a result of its normal and customary

2 use prior to becoming scrap.

3 ‘‘(c) TRANSACTIONS INVOLVING SCRAP PAPER,

4 PLASTIC, GLASS, TEXTILES, OR RUBBER.—Transactions

5 involving scrap paper, scrap plastic, scrap glass, scrap tex6 tiles, or scrap rubber (other than whole tires) shall be

7 deemed to be arranging for recycling if the person who

8 arranged for the transaction (by selling recyclable material

9 or otherwise arranging for the recycling of recyclable ma10 terial) can demonstrate by a preponderance of the evi11 dence that all of the following criteria were met at the

12 time of the transaction:

13 ‘‘(1) The recyclable material met a commercial

14 specification grade.

15 ‘‘(2) A market existed for the recyclable mate16 rial.

17 ‘‘(3) A substantial portion of the recyclable ma18 terial was made available for use as a feedstock for

19 the manufacture of a new saleable product.

20 ‘‘(4) The recyclable material could have been a

21 replacement or substitute for a virgin raw material,

22 or the product made from the recyclable material

23 could have been a replacement or substitute for a

24 product made, in whole or in part, from a virgin raw

25 material.
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1 ‘‘(5) For transactions occurring 90 days or

2 more after the date of enactment of this section, the

3 person exercised reasonable care to determine that

4 the facility where the recyclable material would be

5 handled, processed, reclaimed, or otherwise managed

6 by another person (hereinafter in this section re7 ferred to as a ‘consuming facility’) was in compli8 ance with substantive (not procedural or administra9 tive) provisions of any Federal, State, or local envi10 ronmental law or regulation, or compliance order or

11 decree issued pursuant thereto, applicable to the

12 handling, processing, reclamation, storage, or other

13 management activities associated with the recyclable

14 material. For purposes of this subsection, ‘reason15 able care’ shall be determined using criteria that in16 cludes (but is not limited to) (A) the price paid in

17 the recycling transaction; (B) the ability of the per18 son to detect the nature of the consuming facility’s

19 operations concerning its handling, processing, rec20 lamation, or other management activities associated

21 with the recyclable material; and (C) the result of

22 inquiries made to the appropriate Federal, State, or

23 local environmental agency (or agencies) regarding

24 the consuming facility’s past and current compliance

25 with substantive (not procedural or administrative)
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1 provisions of any Federal, State, or local environ2 mental law or regulation, or compliance order or de3 cree issued pursuant thereto, applicable to the han4 dling, processing, reclamation, storage, or other

5 management activities associated with the recyclable

6 material. For the purposes of this paragraph, a re7 quirement to obtain a permit applicable to the han8 dling, processing, reclamation, or other management

9 activity associated with the recyclable materials shall

10 be deemed to be a substantive provision.

11 ‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—

12 ‘‘(1) Transactions involving scrap metal shall be

13 deemed to be arranging for recycling if the person

14 who arranged for the transaction (by selling recycla15 ble material or otherwise arranging for the recycling

16 of recyclable material) can demonstrate by a prepon17 derance of the evidence that at the time of the

18 transaction—

19 ‘‘(A) the person met the criteria set forth

20 in subsection (c) with respect to the scrap

21 metal;

22 ‘‘(B) the person was in compliance with

23 any applicable regulations or standards regard24 ing the storage, transport, management, or

25 other activities associated with the recycling of
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1 scrap metal that the Administrator promulgates

2 under the Solid Waste Disposal Act subsequent

3 to the enactment of this section and with re4 gard to transactions occurring after the effec5 tive date of such regulations or standards; and

6 ‘‘(C) the person did not melt the scrap

7 metal prior to the transaction.

8 ‘‘(2) For purposes of paragraph (1)(C), melting

9 of scrap metal does not include the thermal separa10 tion of 2 or more materials due to differences in

11 their melting points (referred to as ‘sweating’).

12 ‘‘(3) For the purposes of this subsection, the

13 term ‘scrap metal’ means bits and pieces of metal

14 parts (e.g. bars, turnings, rods, sheets, wire) or

15 metal pieces that may be combined together with

16 bolts or soldering (e.g. radiators, scrap automobiles,

17 railroad box cars), which when worn or superfluous

18 can be recycled, except for scrap metals that the Ad19 ministrator excludes from this definition by regula20 tion.

21 ‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—

22 Transactions involving spent lead-acid batteries or nickel23 cadmium batteries shall be deemed to be arranging for re24 cycling if the person who arranged for the transaction (by

25 selling recyclable material or otherwise arranging for the
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1 recycling of recyclable material) can demonstrate by a pre2 ponderance of the evidence that at the time of the trans3 action—

4 ‘‘(1) the person met the criteria set forth in

5 subsection (c) with respect to the spent lead-acid

6 batteries or nickel-cadmium batteries but did not re7 cover the valuable components of such batteries; and

8 ‘‘(2) either—

9 ‘‘(A) with respect to transactions involving

10 nickel-cadmium batteries, the Administrator has

11 promulgated regulations or standards regarding

12 the storage, transport, management, or other

13 activities associated with the recycling of spent

14 nickel-cadmium batteries, and the person was in

15 compliance with applicable regulations or stand16 ards or any amendments thereto; or

17 ‘‘(B) with respect to transactions involving

18 lead-acid batteries, the person was in compli19 ance with applicable regulations or standards,

20 and any amendments thereto, regarding the

21 storage, transport, management, or other activi22 ties associated with the recycling of spent lead23 acid batteries.

24 ‘‘(f) EXCLUSIONS.—(1) The exemptions set forth in

25 subsections (c), (d), and (e) shall not apply if—
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1 ‘‘(A) the person had an objectively reasonable

2 basis to believe at the time of the recycling trans3 action—

4 ‘‘(i) that the recyclable material would not

5 be recycled,

6 ‘‘(ii) that the recyclable material would be

7 burned as fuel, or for energy recovery or incin8 eration, or

9 ‘‘(iii) for transactions occurring during the

10 90-day period beginning on the date of the en11 actment of this section, that the consuming fa12 cility was not in compliance with a substantive

13 (not a procedural or administrative) provision

14 of any Federal, State, or local environmental

15 law or regulation, or compliance order or decree

16 issued pursuant thereto, applicable to the han17 dling, processing, reclamation, or other manage18 ment activities associated with the recyclable

19 material;

20 ‘‘(B) the person added hazardous substances

21 into the recyclable material for purposes other than

22 processing or recycling; or

23 ‘‘(C) the person failed to exercise reasonable

24 care with respect to the management and handling

25 of the recyclable material.
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1 ‘‘(2) For purposes of this subsection, an objectively

2 reasonable basis for belief shall be determined using cri3 teria that includes (but is not limited to) the size of the

4 person’s business, customary industry practices, the price

5 paid in the recycling transaction, and the ability of the

6 person to detect the nature of the consuming facility’s op7 erations concerning its handling, processing, reclamation

8 or other management activities associated with the recy9 clable material.

10 ‘‘(3) For purposes of this subsection, a requirement

11 to obtain a permit applicable to the handling, processing,

12 reclamation, or other management activities associated

13 with recyclable material shall be deemed to be a sub14 stantive provision.

15 ‘‘(g) EFFECT ON OTHER LIABILITY.—Nothing in

16 this section shall be deemed to affect the liability of a per17 son under paragraph (1) or (2) of section 107(a).

18 ‘‘(h) PCBS.—An exemption under this section does

19 not apply if the recyclable material contained poly20 chlorinated biphenyls in excess of 50 parts per million or

21 any new standard promulgated pursuant to applicable

22 Federal laws.

23 ‘‘(i) REGULATIONS.—The Administrator has the au24 thority, under section 115, to promulgate additional regu25 lations concerning this section.
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1 ‘‘(j) EFFECT ON PENDING OR CONCLUDED AC2 TIONS.—The exemptions provided in this section shall not

3 affect any concluded judicial or administrative action or

4 any pending judicial action initiated by the United States

5 prior to enactment of this section.

6 ‘‘(k) LIABILITY FOR ATTORNEY’S FEES FOR CER7 TAIN ACTIONS.—Any person who commences an action in

8 contribution against a person who is not liable by oper9 ation of this section shall be liable to that person for all

10 reasonable costs of defending that action, including all

11 reasonable attorney’s and expert witness fees.

12 ‘‘(l) RELATIONSHIP TO LIABILITY UNDER OTHER

13 LAWS.—Nothing in this section shall affect—

14 ‘‘(1) liability under any other Federal, State, or

15 local statute or regulation promulgated pursuant to

16 any such statute, including any requirements pro17 mulgated by the Administrator under the Solid

18 Waste Disposal Act; or

19 ‘‘(2) the ability of the Administrator to promul20 gate regulations under any other statute, including

21 the Solid Waste Disposal Act.’’.

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