I

103D CONGRESS

2D SESSION H. R. 4662

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

4 (a) IN GENERAL.—Subtitle D of the Solid Waste Dis5 posal Act (42 U.S.C. 6941 et seq.) is amended by adding

6 at the end the following new section:

7 ‘‘SEC. 4011. CONGRESSIONAL AUTHORIZATION OF STATE

8 CONTROL OVER TRANSPORTATION AND DIS9 POSAL OF MUNICIPAL SOLID WASTE.

10 ‘‘(a) AUTHORITY.—

11 ‘‘(1) IN GENERAL.—Each State and each quali12 fied political subdivision may, in accordance with

13 this section—

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

15 transportation of municipal solid waste gen16 erated from household sources (as described in

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

18 of the State or subdivision and designate each

19 waste management facility to which any such

20 municipal solid waste shall be transported;

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

22 transportation or disposal of municipal solid

23 waste, as defined in subsection (g)(2), including

24 incinerator ash from a solid waste incinerator

25 unit or construction debris or demolition debris,

26 generated within the boundaries of the State or
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1 qualified political subdivision and designate

2 waste management facilities to which any such

3 municipal solid waste shall be transported or

4 disposed, if, before May 15, 1994—

5 ‘‘(i) the State or qualified political

6 subdivision adopted a law, ordinance, regu7 lation or legislative or administrative provi8 sion, including a solid waste management

9 plan, that pertains to the transportation or

10 disposal of municipal solid waste generated

11 within the boundaries, and

12 ‘‘(ii) directed, limited, regulated, or

13 prohibited the transportation or disposal of

14 municipal solid waste under the law, ordi15 nance, regulation, or legislative or adminis16 trative provision.

17 Any State or qualified political subdivision

18 meeting the requirements of this subsection

19 (a)(1)(B) (i) and (ii) may also, after the effec20 tive date of this amendment, direct, limit, regu21 late or prohibit the transportation and disposal

22 of municipal solid waste from any existing or

23 future waste management facility to any other

24 existing or future waste management facility,

25 without regard to subsections (b) or (c); and
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1 ‘‘(C) direct, limit, regulate, or prohibit the

2 transportation of recyclable materials generated

3 within the boundaries of the State or subdivi4 sion and designate each facility to which any

5 such materials shall be transported.

6 ‘‘(2) APPLICATION.—A State or qualified politi7 cal subdivision may exercise the authority described

8 in paragraph (1)(C) with respect to recyclable mate9 rials only if—

10 ‘‘(A) the generator or owner of the mate11 rials voluntarily made the materials available to

12 the State or qualified political subdivision and

13 relinquished any rights to, or ownership of,

14 such materials; and

15 ‘‘(B) the State or qualified political sub16 division, or the designee of the State or quali17 fied political subdivision, assumes such rights

18 to, or ownership of, such materials.

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

20 subdivision may exercise the authority provided by sub21 section (a)(1)(A) or (a)(1)(C) only if the State or qualified

22 political subdivision—

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

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

25 municipal solid waste, for purposes of recycling, rec-
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1 lamation, or reuse, in accordance with any State law

2 or municipal solid waste planning requirements in

3 effect;

4 ‘‘(2) develops and implements a process de5 scribed in subsection (c) for the designation of waste

6 management facilities; and

7 ‘‘(3) after conducting 1 or more public hear8 ings—

9 ‘‘(A) finds, on the basis of the record de10 veloped at the hearing or hearings that it is

11 necessary to exercise the authority to meet the

12 current solid waste management needs (as of

13 the date of the record) or the anticipated solid

14 waste management needs of the State or quali15 fied political subdivision for management of

16 municipal solid waste or recyclable materials;

17 and

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

19 reasons for the finding described in subpara20 graph (A).

21 ‘‘(c) COMPETITIVE DESIGNATION PROCESS.—In de22 veloping and implementing the designation process de23 scribed in subsection (b)(2) with respect to waste manage24 ment facilities and facilities for recyclable materials, the

25 State or qualified political subdivision shall—
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1 ‘‘(1) provide that the designation process is

2 based on, or is part of, a municipal solid waste man3 agement plan that is adopted by the State or quali4 fied political subdivision and that is designed to en5 sure long-term management capacity for municipal

6 solid waste or recyclable materials generated within

7 the boundaries of the State or subdivision;

8 ‘‘(2) set for the goals of the designation proc9 ess, including at a minimum—

10 ‘‘(A) capacity assurance;

11 ‘‘(B) the establishment of provisions to

12 provide that protection of human health and the

13 environment will be achieved; and

14 ‘‘(C) any other goals determined to be rel15 evant by the State or qualified political subdivi16 sion;

17 ‘‘(3) identify and compare reasonable and avail18 able alternatives and options for designation of the

19 facilities;

20 ‘‘(4) provide for public participation and com21 ment;

22 ‘‘(5) provide that the designation of the facili23 ties is accomplished through an open competitive

24 process during which the State or qualified political

25 subdivision—
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1 ‘‘(A) identifies in writing the criteria to be

2 utilized for selection of the facilities;

3 ‘‘(B) provides an opportunity for interested

4 public persons and private persons to offer their

5 existing (as of the date of the process) or pro6 posed facilities for designation; and

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

8 designation based on the merits of the facilities

9 in meeting the criteria identified; and

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

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

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

13 ‘‘(1) PROHIBITION ON REQUIRED TRANS14 FERS.—Except as provided in paragraph (3), noth15 ing in this section shall authorize any State or quali16 fied political subdivision to require any generator or

17 owner of recyclable materials to transfer any recycla18 ble materials (other than abandoned or discarded

19 materials) to such State or qualified political sub20 division.

21 ‘‘(2) PROHIBITION ON PROHIBITED TRANS22 ACTIONS.—Except as provided in paragraph (3),

23 nothing in this section shall prohibit any generator

24 or owner of recyclable materials from selling, pur25 chasing, accepting, conveying, or transporting any
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1 recyclable materials for purposes of transformation

2 or remanufacture into usable or marketable mate3 rials, unless the generator or owner voluntarily made

4 the materials available to the State or qualified po5 litical subdivision and relinquished any rights to, or

6 ownership of, such materials,

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

8 ordinance, regulations, or provisions described in

9 subsection (e)(1) may contain an authorization de10 scribed in paragraph (1) or a prohibition described

11 in paragraph (2).

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

13 ‘‘(1) IN GENERAL.—This section shall not su14 persede, abrogate, or otherwise modify any of the

15 following:

16 ‘‘(A) Any contract or other agreement (in17 cluding any contract containing an obligation to

18 repay to outstanding indebtedness on any pro19 posed or existing waste management facility or

20 facility for recyclable materials) entered into be21 fore May 15, 1994, by a State or qualified po22 litical subdivision in which such State or quali23 fied political subdivision has designated a pro24 posed or existing waste management facility, or

25 facility for recyclable materials, for the manage-
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1 ment of municipal solid waste or recyclable ma2 terials pursuant to a law, ordinance, regulation,

3 legislative or administrative provision adopted

4 by such State or qualified political subdivision

5 before May 15, 1994.

6 ‘‘(B) Any other contract or agreement en7 tered into before May 15, 1994, for the man8 agement of municipal solid waste.

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

10 legislative or administrative provision—

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

12 1994; and

13 ‘‘(II) that pertains to the transpor14 tation or disposal of municipal solid waste

15 generated within the boundaries of a State

16 or qualified political subdivision: Provided,

17 That the law, ordinance, regulation, legis18 lative or administrative provision is applied

19 to the transportation or disposal of munici20 pal solid waste, generated from household

21 sources (as described in subsection

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

23 proposed or existing waste management fa24 cility designated before May 15, 1994
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1 under such law, ordinance, regulation, leg2 islative or administrative provision.

3 ‘‘(ii) Any law, ordinance, regulation, or leg4 islative or administrative provision—

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

6 1994;

7 ‘‘(II) that pertains to the transpor8 tation or disposal of municipal solid waste

9 generated within the boundaries of a State

10 or qualified political subdivision; and

11 ‘‘(III) under which a State or quali12 fied political subdivision, prior to May 15,

13 1994, directed, limited, regulated, or pro14 hibited to transportation or disposal of mu15 nicipal solid waste that is generated, or is

16 commingled with municipal solid waste

17 that is generated, from commercial, insti18 tutional or industrial sources within the

19 boundaries, or that is incinerator ash from

20 a solid waste incineration unit, or con21 struction debris or demolition debris, gen22 erated within the boundaries:

23 Provided, That the law, ordinance, regulation,

24 legislative or administrative provision is applied

25 to the transportation or disposal of municipal
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1 solid waste described in subclause (III), to a

2 proposed or existing waste management facility

3 designated before May 15, 1994 under such

4 law, ordinance, regulation, legislative or admin5 istrative provision.

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

7 legislative or administrative provision—

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

9 1994; and

10 ‘‘(II) that pertains to the transpor11 tation of recyclable materials generated

12 within the boundaries of a State or quali13 fied political subdivision; provided that the

14 law, ordinance, regulation, legislative or

15 administrative provision is applied to the

16 transportation of recyclable materials, that

17 are generated within the boundaries and

18 with respect to which the generator or

19 owner of the materials, and the State or

20 qualified political subdivision, have met the

21 appropriate conditions described in sub22 section (a)(2), to a facility designated be23 fore May 15, 1994 under such law, ordi24 nance, regulation, legislative or administra25 tive provision.
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1 ‘‘(iv) Any law, ordinance, regulation, or

2 legislative or administrative provision—

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

4 1994;

5 ‘‘(II) that pertains to the transpor6 tation of recyclable materials generated

7 within the boundaries of a State or quali8 fied political subdivision; and

9 ‘‘(III) under which a State or quali10 fied political subdivision, prior to May 15,

11 1994, directed, limited, regulated, or pro12 hibited the transportation of recyclable ma13 terials that are not materials with respect

14 to which the generator or owner of the ma15 terials, and the State or qualified political

16 subdivision, have met the appropriate con17 ditions described in subsection (a)(2) and

18 that—

19 ‘‘(aa) are generated from house20 hold sources (as described in sub21 section (g)(2)(A)(i)) within the bound22 aries; or

23 ‘‘(bb) are generated from com24 mercial, institutional, or industrial

25 sources within the boundaries:
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1 Provided, That the law, ordinance, regula2 tion, legislative or administrative provision

3 is applied to the transportation of recycla4 ble materials, described in subclause (III),

5 to a facility designated before May 15,

6 1994 under such law, ordinance, regula7 tion, legislative or administrative provision,

8 and is applied to the same class of mate9 rials described in item (aa) or (bb) of

10 subclause (III) to which the law, ordi11 nance, regulation, legislative or administra12 tive provision applied before such date.

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

14 contract or other agreement that is described in sub15 paragraph (e)(1)(A) or (e)(1)(B) shall provide a

16 copy of the contract or agreement to the State or

17 qualified political subdivision on request. Any propri18 etary information contained in the contract or agree19 ment may be omitted in the copy, but the informa20 tion that appears in the copy shall include at least

21 the date that the contract or agreement was signed,

22 the volume of municipal solid waste or recyclable

23 materials covered by the contract or agreement with

24 respect to which the State or qualified political sub25 division could otherwise exercise authority under
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1 subsection (a) or (e)(1)(C), the source of the waste

2 or materials, the destination of the waste or mate3 rials, the duration of the contract or agreement, and

4 the parties to the contract or agreement.

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

6 Any contract or agreement described in subsection

7 (e)(1)(A) or (e)(1)(B), and any law, ordinance, regu8 lation, or legislative or administrative provision de9 scribed in subsection (e)(1)(C), shall be a reasonable

10 regulation of commerce by any State or qualified po11 litical subdivision, retroactive to the effective date of

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

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

14 or administrative provision.

15 ‘‘(4) EFFECT ON STATE PROCUREMENT

16 LAWS.—

17 ‘‘(A) IN GENERAL.—Nothing in this sec18 tion shall supersede or modify—

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

20 concerning the procurement of municipal

21 solid waste services or facilities by qualified

22 political subdivisions; or

23 ‘‘(ii) any State law or regulation con24 cerning competitive bidding for such serv25 ices or facilities.
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1 ‘‘(f) SAVINGS CLAUSE.—Nothing in this section is in2 tended to supersede, amend, or otherwise modify Federal

3 or State environmental standards that apply to the dis4 posal or management of solid waste at waste management

5 facilities and facilities for recyclable materials.

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

7 ‘‘(1) INDUSTRIAL SOLID WASTE.—The term ‘in8 dustrial solid waste’ means solid waste generated by

9 manufacturing or industrial processes, including

10 waste generated during scrap processing and recy11 cling, that is not hazardous waste regulated under

12 subtitle C.

13 ‘‘(2) MUNICIPAL SOLID WASTE.—

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

15 solid waste’—

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

17 household, including a single or multifam18 ily residence, an apartment, a condomin19 ium, a hotel, and a motel;

20 ‘‘(ii) includes waste generated by a

21 commercial, institutional, or industrial

22 source; and

23 ‘‘(iii) includes residue remaining after

24 recyclable materials have been separated,

25 or diverted at the point of generation, from
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1 municipal solid waste described in clause

2 (i) or (ii).

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

4 solid waste’ shall not include any of the follow5 ing:

6 ‘‘(i) Hazardous waste required to be

7 managed in accordance with subtitle C,

8 solid waste containing a polychlorinated

9 biphenyl regulated under the Toxic Sub10 stances Control Act (15 U.S.C. 2601 et

11 seq.), or regulated medical waste.

12 ‘‘(ii) A RECYCLABLE MATERIAL.—

13 ‘‘(I) A material or a product re14 turned from a dispenser or distributor

15 to the manufacturer or the agent of

16 the manufacturer for credit, evalua17 tion, or reuse.

18 ‘‘(II) A material or product that

19 is an out-of-date or unmarketable ma20 terial or product, or is a material or

21 product that does not conform to

22 specifications, and that is returned to

23 the manufacturer or the agency of the

24 manufacturer for credit, evaluation, or

25 reuse.
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1 ‘‘(iii) Any solid waste (including con2 taminated soil and debris) resulting from a

3 response action taken under section 104 or

4 106 of the Comprehensive Environmental

5 Response, Compensation, and Liability Act

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

7 corrective action taken under this Act.

8 ‘‘(iv) INDUSTRIAL SOLID WASTE.—

9 Any industrial solid waste that is gen10 erated by an industrial facility and trans11 ported for the purpose of containment,

12 storage, or disposal to a facility that is

13 owned or operated by the generator of the

14 waste, or a facility that is located on prop15 erty owned by the generator or a company

16 with which the generator is affiliated.

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

18 term ‘qualified political subdivision’ means a govern19 mental entity or political subdivision of a State, as

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

21 the methods to be utilized for, the collection, trans22 portation, disposal or other management of munici23 pal solid waste generated within the boundaries of

24 the governmental entity or political subdivision.
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1 ‘‘(4) RECYCLABLE MATERIAL.—The term ‘recy2 clable material’ means any material (including any

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

4 other material) that has been separated, or diverted

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

6 purpose of recycling, reclamation, or reuse.

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

8 term ‘waste management facility’ means any facility

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

10 transferred, treated, processed, deposited or dis11 posed.’’.

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

13 such subtitle D is amended by adding after the item relat14 ing to section 4010 the following new item:

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

disposal of municipal solid waste.’’.

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