103D CONGRESS

2D SESSION H.R. 4661

To establish congressional findings and amend the Solid Waste Disposal

Act to provide congressional authorization of State control over transportation and disposal of municipal solid waste, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JUNE 28, 1994

Mr. SMITH of New Jersey (for himself, Mr. ZIMMER and Mr. SAXTON) introduced the following bill; which was referred to the Committee on Energy

and Commerce

A BILL

To establish congressional findings and amend the Solid

Waste Disposal Act to provide congressional authorization of State control over transportation and disposal

of municipal solid waste, and for other purposes.

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 ‘‘Flow Control Act of

5 1994’’.
2

HR 4661 IH

1 SEC. 2. CONGRESSIONAL AUTHORIZATION OF STATE CON2 TROL OVER TRANSPORTATION AND DIS3 POSAL OF MUNICIPAL SOLID WASTE.

4 (a) CONGRESSIONAL FINDINGS.—The Congress finds

5 that—

6 (1) the improper transportation and disposal of

7 municipal solid waste impacts adversely on human

8 health and the environment;

9 (2) the growing shortage of landfill space and

10 other viable municipal solid waste management op11 tions has placed increasing fiscal burdens on State

12 and local governments’ efforts to effectively plan and

13 manage municipal solid waste in a long-term and en14 vironmentally sound manner;

15 (3) the long-term management of municipal

16 solid waste in an environmentally sound and cost-ef17 fective manner is dependent upon the ability of State

18 and local governments to control the transportation

19 and disposal of municipal solid waste to designated

20 waste management facilities;

21 (4) existing State and local government laws,

22 regulations, legislative and administrative provisions,

23 including solid waste management plans, relating to

24 the transportation and disposal of municipal solid

25 waste at existing and planned waste management fa26 cilities are in the public interest; and
3

HR 4661 IH

1 (5) existing State and local government regula2 tions and controls relating to the transportation and

3 disposal of municipal solid waste at existing and

4 planned waste management facilities are permissible

5 regulations of commerce.

6 (b) CONGRESSIONAL PURPOSE AND INTENT.—This

7 Act is intended to—

8 (1) authorizes States and qualified political sub9 divisions to regulate and control the transportation

10 and disposal of municipal solid waste derived from

11 residential, commercial, institutional, and industrial

12 sources;

13 (2) authorizes States and qualified political sub14 divisions to require that municipal solid waste be

15 transported to one or more existing or planned des16 ignated waste management facilities;

17 (3) preserve the viability of existing municipal

18 solid waste management systems of States and

19 qualified political subdivisions which depend on en20 suring a consistent supply of municipal solid waste

21 generated from residential, commercial, institutional,

22 and industrial sources; and

23 (4) recognize as reasonable existing laws, regu24 lations, ordinances, contracts and other legislative or

25 administrative provisions or mechanisms of States
4

HR 4661 IH

1 and qualified political subdivisions relating to the

2 transportation or disposal of municipal solid waste

3 generated from residential, commercial, institutional,

4 and industrial sources to existing and planned waste

5 management facilities.

6 (c) IN GENERAL.—Subtitle D of the Solid Waste Dis7 posal Act (42 U.S.C. 6941 et seq.) is amended by adding

8 at the end the following new section:

9 ‘‘SEC. 4011. CONGRESSIONAL AUTHORIZATION OF STATE

10 CONTROL OVER TRANSPORTATION AND DIS11 POSAL OF MUNICIPAL SOLID WASTE.

12 ‘‘(a) AUTHORITY.—

13 ‘‘(1) IN GENERAL.—Each State and each quali14 fied political subdivision may, in accordance with

15 this section—

16 ‘‘(A) direct, limit, regulate, or prohibit the

17 transportation of municipal solid waste gen18 erated from household sources (as described in

19 subsection (g)(2)(A)(i)) within the boundaries

20 of the State or subdivision and designate each

21 waste management facility to which any such

22 municipal solid waste shall be transported; and

23 ‘‘(B) direct, limit, regulate, or prohibit the

24 transportation or disposal of municipal solid

25 waste, as defined in subsection (g)(2), including
5

HR 4661 IH

1 incinerator ash from a solid waste incinerator

2 unit or construction debris or demolition debris,

3 generated within the boundaries of the State or

4 qualified political subdivision and designate

5 waste management facilities to which any such

6 municipal solid waste shall be transported or

7 disposed, if, before May 15, 1994—

8 (i) the State or qualified political sub9 division adopted a law, ordinance, regula10 tion, or legislative or administrative provi11 sion, including a solid waste management

12 plan, that pertains to the transportation or

13 disposal of municipal solid waste generated

14 within the boundaries, and

15 (ii) directed, limited, regulated, or

16 prohibited the transportation or disposal of

17 municipal solid waste under the law, ordi18 nance, regulation or legislative or adminis19 trative provision.

20 Any State or qualified political subdivision

21 meeting the requirements of this subsection

22 (a)(1)(B) (i) and (ii) may also, after the effec23 tive date of this amendment, direct, limit, regu24 late or prohibit the transportation and disposal

25 of municipal solid waste from any existing or
6

HR 4661 IH

1 future waste management facility to any other

2 existing or future waste management facility,

3 without regard to subsections (b) or (c); and

4 ‘‘(C) direct, limit, regulate, or prohibit the

5 transportation of recyclable materials generated

6 within the boundaries of the State or subdivi7 sion and designate each facility to which any

8 such materials shall be transported.

9 ‘‘(2) APPLICATION.—A State or qualified politi10 cal subdivision may exercise the authority described

11 in paragraph (1)(C) with respect to recyclable mate12 rials only if—

13 ‘‘(A) the generator or owner of the mate14 rials voluntarily made the materials available to

15 the State or qualified political subdivision and

16 relinquished any rights to, or ownership of,

17 such materials; and

18 ‘‘(B) the State or qualified political sub19 division, or the designee of the State or quali20 fied political subdivision, assumes such rights

21 to, or ownership of, such materials.

22 ‘‘(b) LIMITATIONS.—A State or qualified political

23 subdivision may exercise the authority provided by sub24 section (a)(1)(A) or (a)(1)(C) only if the State or qualified

25 political subdivision—
7

HR 4661 IH

1 ‘‘(1) establishes a program to separate or divert

2 the materials described in subsection (g)(4) from the

3 municipal solid waste, for purposes of recycling, rec4 lamation, or reuse, in accordance with any State law

5 or municipal solid waste planning requirements in

6 effect;

7 ‘‘(2) develops and implements a process de8 scribed in subsection (c) for the designation of waste

9 management facilities; and

10 ‘‘(3) after conducting 1 or more public hear11 ings—

12 ‘‘(A) finds, on the basis of the record de13 veloped at the hearing or hearings that it is

14 necessary to exercise the authority to meet the

15 current solid waste management needs (as of

16 the date of the record) or the anticipated solid

17 waste management needs of the State or quali18 fied political subdivision for management of

19 municipal solid waste or recyclable materials;

20 and

21 ‘‘(B) provides a written explanation of the

22 reasons for the finding described in subpara23 graph (A).

24 ‘‘(c) COMPETITIVE DESIGNATION PROCESS—In de25 veloping and implementing the designation process de-
8

HR 4661 IH

1 scribed in subsection (b)(2) with respect to waste manage2 ment facilities and facilities for recyclable materials, the

3 State or qualified political subdivision shall—

4 ‘‘(1) provide that the designation process is

5 based on, or is part of, a municipal solid waste man6 agement plan that is adopted by the State or quali7 fied political subdivision and that is designed to en8 sure long-term management capacity for municipal

9 solid waste or recyclable materials generated within

10 the boundaries of the State or subdivision;

11 ‘‘(2) set forth the goals of the designation proc12 ess, including at a minimum—

13 ‘‘(A) capacity assurance;

14 ‘‘(B) the establishment of provisions to

15 provide that protection of human health and the

16 environment will be achieved; and

17 ‘‘(C) any other goals determined to be rel18 evant by the State or qualified political subdivi19 sion;

20 ‘‘(3) identify and compare reasonable and avail21 able alternatives and options for designation of the

22 facilities;

23 ‘‘(4) provide for public participation and com24 ment;
9

HR 4661 IH

1 ‘‘(5) provide that the designation of the facili2 ties is accomplished through an open competitive

3 process during which the State or qualified political

4 subdivsion—

5 ‘‘(A) identifies in writing the criteria to be

6 utilized for selection of the facilities;

7 ‘‘(B) provides an opportunity for interested

8 public persons and private persons to offer their

9 existing (as of the date of the process) or pro10 posed facilities for designation; and

11 ‘‘(C) evaluates and selects the facilities for

12 designation based on the merits of the facilities

13 in meeting the criteria identified; and

14 ‘‘(6) base the designation of each such facility

15 on reasons that shall be stated in a public record.

16 ‘‘(d) OWNERSHIP OF RECYCLABLE MATERIALS.—

17 ‘‘(1) PROHIBITION ON REQUIRED TRANS18 FERS.—Except as provided in paragraph (3), noth19 ing in this section shall authorize any State or quali20 fied political subdivision to require any generator or

21 owner of recyclable materials to transfer any recycla22 ble materials (other than abandoned or discarded

23 materials) to such State or qualified political sub24 division.
10

HR 4661 IH

1 ‘‘(2) PROHIBITION ON PROHIBITED TRANS2 ACTIONS.—Except as provided in paragraph (3),

3 nothing in this section shall prohibit any generator

4 or owner of recyclable materials from selling, pur5 chasing, accepting, conveying, or transporting any

6 recyclable materials for purposes of transportation

7 or remanufacture into usable or marketable mate8 rials, unless the generator or owner voluntarily made

9 the materials available to the State or qualified po10 litical subdivision and relinquished any rights to, or

11 ownership of, such materials.

12 ‘‘(3) LAW AND CONTRACTS.—A contract, law,

13 ordinance, regulation, or provision described in sub14 section (e)(1) may contain an authorization de15 scribed in paragraph (1) or a prohibition described

16 in paragraph (2).

17 ‘‘(e) EXISTING LAWS AND CONTRACTS.—

18 ‘‘(1) IN GENERAL.—This section shall not su19 perseded, abrogate, or otherwise modify any of the

20 following:

21 ‘‘(A) Any contract or other agreement (in22 cluding any contract containing an obligation to

23 repay the outstanding indebtedness on any pro24 posed or existing waste management facility or

25 facility for recyclable materials) entered into be-
11

HR 4661 IH

1 fore May 15, 1994, by a State or qualified po2 litical subdivision in which such State or quali3 fied political subdivision has designated a pro4 posed or existing waste management facility, or

5 facility for recyclable materials, for the manage6 ment of municipal solid waste or recyclable ma7 terials pursuant to a law, ordinance, regulation,

8 legislative or administrative provision adopted

9 by such State or qualified political subdivision

10 before May 15, 1994.

11 ‘‘(B) Any other contract or agreement en12 tered into before May 15, 1994, for the man13 agement of municipal solid waste.

14 ‘‘(C)(i) Any law, ordinance, regulation, or

15 legislative or administrative provision—

16 ‘‘(I) that is adopted before May 15,

17 1994; and

18 ‘‘(II) that pertains to the transpor19 tation or disposal of municipal solid waste

20 generated within the boundaries of a State

21 or qualified political subdivision; provided

22 that the law, ordinance, regulation, legisla23 tive or administrative provision is applied

24 to the transportation or disposal of munici25 pal solid waste, generated from household
12

HR 4661 IH

1 sources (as described in subsection

2 (g)(2)(A)(i)) within the boundaries, to a

3 proposed or existing waste management fa4 cility designated before May 15, 1994

5 under such law, ordinance, regulation, leg6 islative or administrative provision.

7 ‘‘(ii) Any law, ordinance, regulation or leg8 islative or administrative provision—

9 ‘‘(I) that is adopted before May 15,

10 1994;

11 ‘‘(II) that pertains to the transpor12 tation or disposal of municipal solid waste

13 generated within the boundaries of a State

14 or qualified political subdivision; and

15 ‘‘(III) under which a State or quali16 fied political subdivision, prior to May 15,

17 1994, directed, limited, regulated, or pro18 hibited the transportation or disposal of

19 municipal solid waste that is generated, or

20 is commingled with municipal solid waste

21 that is generated, from commercial, insti22 tutional, or industrial sources within the

23 boundaries, or that is incinerator ash from

24 a solid waste incineration unit, or con-
13

HR 4661 IH

1 struction debris or demolition debris, gen2 erated within the boundaries:

3 Provided, That the law, ordinance, regulation,

4 legislative or administrative provision is applied

5 to the transportation or disposal of municipal

6 solid waste described in subclause (III), to a

7 proposed or existing waste management facility

8 designated before May 15, 1994 under such

9 law, ordinance, regulation, legislative or admin10 istrative provision.

11 ‘‘(iii) Any law, ordinance, regulation, or

12 legislative or administrative provision—

13 ‘‘(I) that is adopted before May 15,

14 1994; and

15 ‘‘(II) that pertains to the transpor16 tation of recyclable materials generated

17 within the boundaries of a State or quali18 fied political subdivision: Provided, That

19 the law, ordinance, regulation, legislative

20 or administrative provision is applied to

21 the transportation or recyclable materials,

22 that are generated within the boundaries

23 and with respect to which the generator or

24 owner of the materials, and the State or

25 qualified political subdivision, have met the
14

HR 4661 IH

1 appropriate conditions described in sub2 section (a)(2), to a facility designated be3 fore May 15, 1994 under such law, ordi4 nance, regulation, legislative or administra5 tive provision.

6 ‘‘(iv) Any law, ordinance, regulation, or

7 legislative or administrative provisions—

8 ‘‘(I) that is adopted before May 15,

9 1994;

10 ‘‘(II) that pertains to the transportation of

11 recyclable materials generated within the

12 boundaries of a State or qualified political sub13 division; and

14 ‘‘(III) under which a State or qualified po15 litical subdivision, prior to May 15, 1994, di16 rected, limited, regulated, or prohibited the

17 transportation of recyclable materials that are

18 not materials with respect to which the genera19 tor or owner of the materials, and the State or

20 qualified political subdivision, have met the ap21 propriate conditions described in subsection

22 (a)(2) and that—

23 ‘‘(aa) are generated from house24 hold sources (as described in sub-
15

HR 4661 IH

1 section (g)(2)(A)(i)) within the bound2 aries; or

3 ‘‘(bb) are generated from com4 mercial, institutional, or industrial

5 sources within the boundaries:

6 Provided, That the law, ordinance, regula7 tion, legislative or administrative provision

8 is applied to the transportation of recycla9 ble materials, described in subclause (III),

10 to a facility designated before May 15,

11 1994 under such law, ordinance, regula12 tion, legislative or administrative provision,

13 and is applied to the same class of mate14 rials described in item (aa) or (bb) of

15 subclause (III) to which the law, ordi16 nance, regulation, legislative or administra17 tive provision applied before such date.

18 ‘‘(2) CONTRACT INFORMATION.—A party to a

19 contract or other agreement that is described in sub20 paragraph (e)(1)(A) or (e)(1)(B) shall provide a

21 copy of the contract or agreement to the State or

22 qualified political subdivision on request. Any propri23 etary information contained in the contract or agree24 ment may be omitted in the copy, but the informa25 tion that appears in the copy shall include at least
16

HR 4661 IH

1 the date that the contract or agreement was signed,

2 the volume of municipal solid waste or recyclable

3 materials covered by the contract or agreement with

4 respect to which the State or qualified political sub5 division could otherwise exercise authority under

6 subsection (a) or (e)(1)(C), the source of the waste

7 or materials, the destination of the waste or mate8 rials, the duration of the contract or agreement, and

9 the parties to the contract or agreement.

10 ‘‘(3) EFFECT ON INTERSTATE COMMERCE.—

11 Any contract or agreement described in subsection

12 (e)(1)(A) or (e)(1)(B), any any law, ordinance, regu13 lation, or legislative or administrative provision de14 scribed in subsection (e)(1)(C), shall be a reasonable

15 regulation of commerce by any State or qualified po16 litical subdivision, retroactive to the effective date of

17 the contract or agreement, or to the date of adoption

18 of any such law, ordinance, regulation, or legislative

19 or administrative provision.

20 ‘‘(4) EFFECT ON STATE PROCUREMENT

21 LAWS.—

22 ‘‘(A) IN GENERAL.—Nothing in this sec23 tion shall supersede or modify—

24 ‘‘(i) any State law or State regulation

25 concerning the procurement of municipal
17

HR 4661 IH

1 solid waste services or facilities by qualified

2 political subdivisions; or

3 ‘‘(ii) any State law or regulation con4 cerning competitive bidding for such serv5 ices or facilities.

6 ‘‘(f) SAVINGS CLAUSE.—Nothing in this section is in7 tended to supersede, amend, or otherwise modify Federal

8 or State environmental standards that apply to the dis9 posal or management of solid waste at waste management

10 facilities and facilities for recyclable materials.

11 ‘‘(g) DEFINITIONS.—As used in this section:

12 ‘‘(1) INDUSTRIAL SOLID WASTE.—The term ‘in13 dustrial solid waste’ means solid waste generated by

14 manufacturing or industrial processes, including

15 waste generated during scrap processing and recy16 cling, that is not hazardous waste regulated under

17 subtitle C.

18 ‘‘(2) MUNICIPAL SOLID WASTE.—

19 ‘‘(A) IN GENERAL.—The term ‘municipal

20 solid waste’—

21 ‘‘(i) means any waste generated by a

22 household, including a single or multifam23 ily residence, an apartment, a condomin24 ium, a hotel, and a motel;
18

HR 4661 IH

1 ‘‘(ii) includes waste generated by a

2 commercial, institutional, or industrial

3 source; and

4 ‘‘(iii) includes residue remaining after

5 recyclable materials have been separated,

6 or diverted at the point of generation, from

7 municipal solid waste described in clause

8 (i) or (ii).

9 ‘‘(B) EXCLUSIONS.—The term ‘municipal

10 solid waste’ shall not include any of the follow11 ing:

12 ‘‘(i) Hazardous waste required to be

13 managed in accordance with subtitle C,

14 solid waste containing a polychlorinated

15 biphenyl regulated under the Toxic Sub16 stances Control Act (15 U.S.C. 2601 et

17 seq.), or regulated medical waste.

18 ‘‘(ii)(I) A recyclable material.

19 ‘‘(II) A material or a product re20 turned from a dispenser or distributor to

21 the manufacturer or the agent of the man22 ufacturer for credit, evaluation, or reuse.

23 ‘‘(III) A material or product that is

24 an out-of-date or unmarketable material or

25 product, or is a material or product that
19

HR 4661 IH

1 does not conform to specifications, and

2 that is returned to the manufacturer or the

3 agent of the manufacturer for credit, eval4 uation, or reuse.

5 ‘‘(iii) Any solid waste (including con6 taminated soil and debris) resulting from a

7 response action taken under section 104 or

8 106 of the Comprehensive Environmental

9 Response, Compensation, and Liability Act

10 of 1980 (42 U.S.C. 9604 or 9606) or a

11 corrective action taken under this Act.

12 ‘‘(iv)(I) Industrial solid waste.

13 ‘‘(II) Any industrial solid waste that

14 is generated by an industrial facility and

15 transported for the purpose of contain16 ment, storage, or disposal to a facility that

17 is owned or operated by the generator of

18 the waste, or a facility that is located on

19 property owned by the generator or a com20 pany with which the generator is affiliated.

21 ‘‘(3) QUALIFIED POLITICAL SUBDIVISION.—The

22 term ‘qualified political subdivision’ means a govern23 mental entity or political subdivision of a State, as

24 authorized by the State, to plan for, or determine

25 the methods to be utilized for, the collection, trans-
20

HR 4661 IH

1 portation, disposal or other management of munici2 pal solid waste generated within the boundaries of

3 the governmental entity or political subdivision.

4 ‘‘(4) RECYCLABLE MATERIAL.—The term ‘recy5 clable material’ means any material (including any

6 metal, glass, plastic, textile, wood, paper, rubber, or

7 other material) that has been separated, or diverted

8 at the point of generation, from solid waste for the

9 purpose of recycling, reclamation, or reuse.

10 ‘‘(5) WASTE MANAGEMENT FACILITY.—The

11 term ‘waste management facility’ means any facility

12 in which solid waste is collected, separated, stored,

13 transferred, treated, processed, deposited or dis14 posed’’.

15 (b) TABLE OF CONTENTS.—The table of contents for

16 such subtitle D is amended by adding after the item relat17 ing to section 4010 the following new item:

‘‘Sec. 4011. Congressional authorization of state control over transportation and

disposal of municipal solid waste’’.

Æ

HR 4661 IH——2

HR 4661 IH——3