I

103D CONGRESS

2D SESSION H. R. 4683

To amend the Solid Waste Disposal Act to provide congressional authorization

of State control over transportation of municipal solid waste, and for

other purposes.

IN THE HOUSE OF REPRESENTATIVES

JUNE 29, 1994

Mr. PALLONE 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

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 4683 IH

1 SEC. 2. CONGRESSIONAL AUTHORIZATION OF STATE CON2 TROL OVER TRANSPORTATION OF MUNICI3 PAL 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 OF MU9 NICIPAL 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 of municipal solid waste that is

23 generated, or is commingled with municipal

24 solid waste that is generated, from commercial,

25 institutional, or industrial sources within the

26 boundaries of the State or subdivision, or that
3

•HR 4683 IH

1 is incinerator ash from a solid waste inciner2 ation unit, or construction debris or demolition

3 debris, generated within the boundaries of the

4 State or subdivision (referred to in this sub5 paragraph as ‘covered waste’) and designate

6 each waste management facility to which any

7 such covered waste shall be transported, if, be8 fore May 15, 1994—

9 ‘‘(i) the State or subdivision adopted

10 a law, ordinance, regulation, or legislative

11 or administrative provision that pertains to

12 the transportation of municipal solid waste

13 generated within the boundaries; and

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

15 prohibited the transportation of covered

16 waste under the law, ordinance, regulation,

17 or provision to a facility designated before

18 such date; and

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

20 transportation of recyclable materials generated

21 within the boundaries of the State or subdivi22 sion and designate each facility to which any

23 such materials shall be transported.

24 ‘‘(2) APPLICATION.—A State or qualified politi25 cal subdivision may exercise the authority described
4

•HR 4683 IH

1 in paragraph (1)(C) with respect to recyclable mate2 rials only if—

3 ‘‘(A) the generator or owner of the mate4 rials voluntarily made the materials available to

5 the State or qualified political subdivision and

6 relinquished any rights to, or ownership of,

7 such materials; and

8 ‘‘(B) the State or qualified political sub9 division, or the designee of the State or quali10 fied political subdivision, assumes such rights

11 to, or ownership of, such materials.

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

13 subdivision may exercise the authority provided by sub14 section (a) only if the State or qualified political subdivi15 sion—

16 ‘‘(1) before exercising the authority described in

17 subsection (a)(1)(A) with respect to municipal solid

18 waste described in subsection (a)(1), establishes a

19 program to separate, or divert at the point of gen20 eration, the materials described in subsection (g)(4)

21 from the municipal solid waste, for purposes of recy22 cling, reclamation, or reuse, in accordance with any

23 State law or municipal solid waste planning require24 ments in effect;
5

•HR 4683 IH

1 ‘‘(2) develops and implements a process de2 scribed in subsection (c) for the designation of facili3 ties described in subsection (a); and

4 ‘‘(3) after conducting 1 or more public hear5 ings—

6 ‘‘(A) finds, on the basis of the record de7 veloped at the hearing or hearings that it is

8 necessary to exercise the authority provided by

9 subsection (a) to meet the current solid waste

10 management needs (as of the date of the

11 record) and anticipated solid waste manage12 ment needs of the State or qualified political

13 subdivision for management of municipal solid

14 waste or recyclable materials; and

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

16 reasons for the finding described in subpara17 graph (A).

18 ‘‘(c) COMPETITIVE DESIGNATION PROCESS.—In de19 veloping and implementing the designation process de20 scribed in subsection (b)(2) or (e)(4) with respect to waste

21 management facilities and facilities for recyclable mate22 rials, the State or qualified political subdivision shall—

23 ‘‘(1) ensure that the designation process is

24 based on, or is part of, a municipal solid waste man25 agement plan that is adopted by the State or quali-
6

•HR 4683 IH

1 fied political subdivision and that is designed to en2 sure long-term management capacity for municipal

3 solid waste or recyclable materials generated within

4 the boundaries of the State or subdivision;

5 ‘‘(2) set forth the goals of the designation proc6 ess, including at a minimum—

7 ‘‘(A) capacity assurance;

8 ‘‘(B) the establishment of provisions to en9 sure that protection of human health and the

10 environment will be achieved; and

11 ‘‘(C) any other goals determined to be rel12 evant by the State or qualified political subdivi13 sion;

14 ‘‘(3) identify and compare the alternatives and

15 options for designation of the facilities;

16 ‘‘(4) provide for public participation and com17 ment;

18 ‘‘(5) ensure that the designation of the facilities

19 is accomplished through an open competitive process

20 during which the State or qualified political subdivi21 sion—

22 ‘‘(A) identifies in writing the specific cri23 teria to be utilized for selection of the facilities;

24 ‘‘(B) provides an opportunity for interested

25 public persons and private persons to offer their
7

•HR 4683 IH

1 existing (as of the date of the process) or pro2 posed facilities for designation; and

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

4 designation based on the merits of the facilities

5 in meeting the specific criteria identified; and

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

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

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

9 ‘‘(1) PROHIBITION ON REQUIRED TRANS10 FERS.—Except as provided in paragraph (3), noth11 ing in this section shall authorize any State or quali12 fied political subdivision to require any generator or

13 owner of recyclable materials to transfer any recycla14 ble materials (other than abandoned or discarded

15 materials) to such State or qualified political sub16 division.

17 ‘‘(2) PROHIBITION ON PROHIBITED TRANS18 ACTIONS.—Except as provided in paragraph (3),

19 nothing in this section shall prohibit any generator

20 or owner of recyclable materials from selling, pur21 chasing, accepting, conveying, or transporting any

22 recyclable materials for purposes of transformation

23 or remanufacture into usable or marketable mate24 rials, unless the generator or owner voluntarily made

25 the materials available to the State or qualified po-
8

•HR 4683 IH

1 litical subdivision and relinquished any rights to, or

2 ownership of, such materials.

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

4 ordinance, regulation, or provision described in sub5 section (e)(1) may contain an authorization de6 scribed in paragraph (1) or a prohibition described

7 in paragraph (2).

8 ‘‘(e) EXISTING LAWS AND CONTRACTS.—

9 ‘‘(1) IN GENERAL.—This section shall not su10 persede, abrogate, or otherwise modify any of the

11 following:

12 ‘‘(A) Any contract or other agreement (in13 cluding any contract containing an obligation to

14 repay the outstanding indebtedness on any pro15 posed or existing waste management facility or

16 facility for recyclable materials) entered into be17 fore May 15, 1994, by a State or qualified po18 litical subdivision in which such State or quali19 fied political subdivision has designated a waste

20 management facility, or management facility for

21 recyclable materials, for the management of

22 municipal solid waste or recyclable materials

23 pursuant to an ordinance or law adopted by

24 such State or qualified political subdivision be25 fore May 15, 1994.
9

•HR 4683 IH

1 ‘‘(B) Any other contract or agreement en2 tered into before May 15, 1994, for the man3 agement of municipal solid waste.

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

5 legislative or administrative provision—

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

7 1994; and

8 ‘‘(II) that pertains to the transpor9 tation or disposal of municipal solid waste

10 generated within the boundaries of a State

11 or qualified political subdivision:

12 to the extent that the law, ordinance, regula13 tion, legislative or administrative provision is

14 applied to the transportation or disposal of mu15 nicipal solid waste, generated from household

16 sources (as described in subsection (g)(2)(A)(i))

17 within the boundaries, to a proposed or existing

18 waste management facility designated before

19 May 15, 1994, under such law, ordinance, regu20 lation, legislative or administrative provision.

21 ‘‘(ii) Any law, ordinance, regulation, or leg22 islative or administrative provision—

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

24 1994;
10

•HR 4683 IH

1 ‘‘(II) that pertains to the transpor2 tation or disposal of municipal solid waste

3 generated within the boundaries of a State

4 or qualified political subdivision; and

5 ‘‘(III) under which a State or quali6 fied political subdivision; prior to May 15,

7 1994, directed, limited, regulated, or pro8 hibited the transportation or disposal of

9 municipal solid waste that is generated, or

10 is commingled with municipal solid waste

11 that is generated, from commercial, insti12 tutional, or industrial sources within the

13 boundaries, or that is incinerator ash from

14 a solid waste incineration unit, or con15 struction debris or demolition debris, gen16 erated within the boundaries:

17 Provided, That the law, ordinance, regulation,

18 legislative or administrative provision is applied

19 to the transportation or disposal of municipal

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

21 proposed or existing waste management facility

22 designated before May 15, 1994, under such

23 law, ordinance, regulation, legislative or admin24 istrative provision.
11

•HR 4683 IH

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

2 legislative or administrative provision—

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

4 1994; and

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

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

9 Provided, That the law, ordinance, regulation,

10 legislative or administrative provision is applied

11 to the transportation of recyclable materials,

12 that are generated within the boundaries and

13 with respect to which the generator or owner of

14 the materials, and the State or qualified politi15 cal subdivision, have met the appropriate condi16 tions described in subsection (a)(2), to a facility

17 designated before May 15, 1994, under such

18 law, ordinance, regulation, legislative or admin19 istrative provision.

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

21 legislative or administrative provision—

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

23 1994;

24 ‘‘(II) that pertains to the transpor25 tation of recyclable materials generated
12

•HR 4683 IH

1 within the boundaries of a State or quali2 fied political subdivision; and

3 ‘‘(III) under which a State or quali4 fied political subdivision, prior to May 15,

5 1994, directed, limited, regulated, or pro6 hibited the transportation of recyclable ma7 terials that are not materials with respect

8 to which the generator or owner of the ma9 terials, and the State or qualified political

10 subdivision, have met the appropriate con11 ditions described in subsection (a)(2) and

12 that—

13 ‘‘(aa) are generated from house14 hold sources (as described in sub15 section (g)(2)(A)(i)) within the bound16 aries; or

17 ‘‘(bb) are generated from com18 mercial, institutional, or industrial

19 sources within the boundaries:

20 Provided, That the law, ordinance, regulation,

21 legislative or administrative provision is applied

22 to the transportation of recyclable materials,

23 described in subclause (III), to a facility des24 ignated before May 15, 1994, under such law,

25 ordinance, regulation, legislative or administra-
13

•HR 4683 IH

1 tive provision, and is applied to the same class

2 of materials described in item (aa) or (bb) of

3 subclause (III) to which the law, ordinance, reg4 ulation, legislative or administrative provision

5 applied before such date.

6 ‘‘(2) CONTRACT INFORMATION.—A part to a

7 contract or other agreement that is described in sub8 paragraph (A) or (B) of paragraph (1) shall provide

9 a copy of the contract or agreement to the State or

10 qualified political subdivision on request. Any propri11 etary information contained in the contract or agree12 ment may be omitted in the copy, but the informa13 tion that appears in the copy shall include at least

14 the date that the contract or agreement was signed,

15 the volume of municipal solid waste or recyclable

16 materials covered by the contract or agreement with

17 respect to which the State or qualified political sub18 division could otherwise exercise authority under

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

20 or materials, the destination of the waste or mate21 rials, the duration of the contract or agreement and

22 the parties to the contract or agreement.

23 ‘‘(3) EFFECT ON INTERSTATE COMMERCE.—Ef24 fective from the date of its adoption, any contract or

25 agreement described in subparagraph (A) or (B) of
14

•HR 4683 IH

1 paragraph (1), and any law, ordinance, regulation,

2 or provision described in paragraph (1)(C), shall be

3 considered to be a reasonable regulation of com4 merce by a State or qualified political subdivision

5 and shall not be treated as imposing an undue bur6 den on or otherwise impairing, restraining, or dis7 criminating against interstate commerce.

8 ‘‘(4) LIMITATION.—A State or qualified politi9 cal subdivision may exercise the authority of any

10 law, ordinance, regulation, or provision described in

11 paragraph (1)(C), to the extent provided in such

12 paragraph, only if the State or qualified political

13 subdivision develops and implements a process de14 scribed in subsection (c) for the designation of any

15 waste management facility or facility for recyclable

16 materials that the State or qualified political sub17 division designates, after the date of enactment of

18 this section, as a facility to which any waste or ma19 terials described in paragraph (1) shall be trans20 ported. Nothing in this paragraph shall affect any

21 designation made before the date of enactment of

22 this section.

23 ‘‘(5) EFFECT ON STATE PROCUREMENT

24 LAWS.—
15

•HR 4683 IH

1 ‘‘(A) IN GENERAL.—Except as provided in

2 subparagraph (B), nothing in this section shall

3 supersede or modify—

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

5 concerning the procurement of municipal

6 solid waste services or facilities by qualified

7 political subdivisions; or

8 ‘‘(ii) any State law or regulation con9 cerning competitive bidding for such serv10 ices or facilities.

11 ‘‘(B) DESIGNATION.—Notwithstanding

12 subparagraph (A), any such facilities shall be

13 subject to the designation process described in

14 subsection (c).

15 ‘‘(6) DESIGNATION BEFORE A DATE.—For pur16 poses of this section, a facility shall be considered to

17 be designated before a date if—

18 ‘‘(A) the facility was designated before the

19 date in a written document; and

20 ‘‘(B) the terms and requirements of the

21 document, and of any laws and regulations of

22 the State or qualified political subdivision in23 volved, that were in effect and applicable to the

24 designation continue to apply.
16

•HR 4683 IH

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;

19 ‘‘(ii) includes waste generated by a

20 commercial, institutional, or industrial

21 source to the extent that such waste—

22 ‘‘(I) has characteristics that are

23 similar to waste normally generated

24 by households; or
17

•HR 4683 IH

1 ‘‘(II) would be considered condi2 tionally exempt small quantity genera3 tor waste under section 3001(d) and

4 is collected and disposed of with other

5 municipal solid waste as part of nor6 mal municipal solid waste collection

7 services; and

8 ‘‘(iii) includes residue remaining after

9 recyclable materials have been separated,

10 or diverted at the point of generation, from

11 municipal solid waste described in clause

12 (i) or (ii).

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

14 solid waste’ shall not include any of the follow15 ing:

16 ‘‘(i) Hazardous waste required to be

17 managed in accordance with subtitle C

18 (other than waste described in subpara19 graph (A)(ii)(II), solid waste containing a

20 polychlorinated biphenyl regulated under

21 the Toxic Substances Control Act (15

22 U.S.C. 2601 et seq.), or medical waste.

23 ‘‘(ii)(I) A recyclable material.

24 ‘‘(II) A material or a product re25 turned from a dispenser or distributor to
18

•HR 4683 IH

1 the manufacturer or the agent of the man2 ufacturer for credit, evaluation, or reuse.

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

4 an out-of-date or unmarketable material or

5 product, or is a material or product that

6 does not conform to specifications, and

7 that is returned to the manufacturer or the

8 agent of the manufacturer for credit, eval9 uation, or reuse.

10 ‘‘(iii) Any solid waste (including con11 taminated soil and debris) resulting from a

12 response action taken under section 104 or

13 106 of the Comprehensive Environmental

14 Response, Compensation, and Liability Act

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

16 corrective action taken under this Act.

17 ‘‘(iv)(I) Industrial solid waste.

18 ‘‘(II) Any solid waste that is gen19 erated by an industrial facility and trans20 ported for the purpose of containment,

21 storage, or disposal to a facility that is

22 owned or operated by the generator of the

23 waste, or a facility that is located on prop24 erty owned by the generator or a company

25 with which the generator is affiliated.
19

•HR 4683 IH

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

2 term ‘qualified political subdivision’ means a govern3 mental entity of a political subdivision of a State if

4 a majority of members of the entity are elected offi5 cials and the entity has been granted authority by

6 the State to plan for, or determine the methods to

7 be utilized for, the collection, disposal, or other man8 agement of municipal solid waste generated within

9 the boundaries of the political subdivision.

10 ‘‘(4) RECYCLABLE MATERIAL.—The term ‘recy11 clable material’ means any material (including any

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

13 other material) that has been separated, or diverted

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

15 purpose of recycling, reclamation, or reuse.

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

17 term ‘waste management facility’ means any facility

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

19 transferred, treated, processed, or disposed of.’’.

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

21 such subtitle D is amended by adding after the item relat22 ing to section 4010 the following new item:

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

municipal solid waste.’’.

Æ

HR 4683 IH——2
20

•HR 4683 IH

HR 4683 IH——3