I

103D CONGRESS

2D SESSION H. R. 4859

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

JULY 29, 1994

Mr. SMITH of New Jersey 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 ‘‘Waste Flow Control

5 Consensus Act of 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) Each State and each qualified political

12 subdivision may, in accordance with this section—

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

14 transportation, management or disposal of mu15 nicipal solid waste generated from household

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

17 within the boundaries of the State or subdivi18 sion and designate each waste management fa19 cility to which any such municipal solid waste

20 shall be transported;

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

22 transportation, management or disposal of mu23 nicipal solid waste (as defined in subsection

24 (g)(2)), incinerator ash from a solid waste in25 cinerator unit, construction debris and demoli26 tion debris, generated within the boundaries of
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1 the State or qualified political subdivision and

2 designate waste management facilities to which

3 any such municipal solid waste shall be trans4 ported, managed or disposed, if, before May 15,

5 1994—

6 ‘‘(i) the State or qualified political

7 subdivision adopted a law, ordinance, regu8 lation, solid waste management plan or le9 gally binding provision that pertains to the

10 transportation, management or disposal of

11 municipal solid waste generated within the

12 boundaries, and

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

14 prohibited the transportation, management

15 or disposal of municipal solid waste under

16 the law, ordinance, regulation, solid waste

17 management plan or legally binding provi18 sion to a proposed or existing waste man19 agement facility designated before May 15,

20 1994, or

21 ‘‘(iii) the law, ordinance, regulation,

22 solid waste management plan or legally

23 binding provision identified the use of one

24 or more waste management methods that

25 will be necessary for the transportation,
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1 management or disposal of municipal solid

2 waste generated within its boundaries at

3 one or more waste management facilities to

4 be designated in the future.

5 Any State or qualified political subdivision

6 meeting the requirements of this subsection

7 (a)(1)(B) (i) and (ii) or (iii) may also, after the

8 effective date of this section, direct, limit, regu9 late or prohibit the transportation, management

10 and disposal of such solid waste from any exist11 ing or future waste management facility to any

12 other existing or future waste management fa13 cility, without regard to subsection (b)(2)(B);

14 and

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

16 transportation of recyclable materials generated

17 within the boundaries of the State or subdivi18 sion and designate each facility to which any

19 such material shall be transported.

20 ‘‘(2) Any contract, law, ordinance, regulation,

21 or legally binding provision of a State or qualified

22 political subdivision that directs, limits, regulates or

23 prohibits the transportation, management or dis24 posal of municipal solid waste in compliance with

25 this section shall be considered a reasonable regula-
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1 tion of commerce and shall not be considered as im2 posing an undue burden on or otherwise impairing,

3 restraining or discriminating against interstate com4 merce.

5 ‘‘(b) LIMITATIONS.—

6 ‘‘(1) A State or qualified political subdivision

7 may exercise the authority described in paragraph

8 (1)(C) with respect to recyclable materials only if—

9 ‘‘(A) the generator or owner of the mate10 rials voluntarily made the materials available to

11 the State or qualified political subdivision, or

12 the designee of the State or qualified political

13 subdivision, and relinquished any rights to, or

14 ownership of, 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 ‘‘(2) A State or qualified political subdivision

20 may exercise the authority provided by subsection

21 (a)(1)(A) or (a)(1)(C) only if the State or qualified

22 political subdivision—

23 ‘‘(A) before exercising the authority de24 scribed in subsection (a)(1)(A), establishes a

25 program to separate, or divert at the point of
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1 generation, the materials described in sub2 section (g)(4) from the municipal solid waste,

3 for purposes of recycling, reclamation, or reuse,

4 in accordance with any Federal or State law or

5 municipal solid waste planning requirements in

6 effect; and

7 ‘‘(B) after conducting 1 or more public

8 hearings—

9 ‘‘(i) finds, on the basis of the record

10 developed at the hearing or hearings that

11 it is necessary to exercise the authority to

12 meet the current solid waste management

13 needs (as of the date of the record) or the

14 anticipated solid waste management needs

15 of the State or qualified political subdivi16 sion for management of municipal solid

17 waste or recyclable materials; and

18 ‘‘(ii) provides a written explanation of

19 the reasons for the finding described in

20 subparagraph (i).

21 ‘‘(3) The authority granted under subsection

22 (a)(1)(B)(iii) shall expire if a State or qualified po23 litical subdivision has not designated, by law, ordi24 nance, regulation, solid waste management plan or

25 legally binding provision, one or more proposed or
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1 existing waste management facilities within five (5)

2 years of the date of enactment of this section.

3 ‘‘(c) COMPETITIVE DESIGNATION PROCESS.—A

4 State or qualified political subdivision may exercise the au5 thority provided by subsection (a) only if the State or

6 qualified political subdivision develops and implements a

7 competitive designation process with respect to waste

8 management facilities or facilities for recyclable materials

9 which—

10 ‘‘(1) ensures that the designation process is

11 based on, or is part of, a municipal solid waste man12 agement plan that is adopted by the State or quali13 fied political subdivision and that is designed to en14 sure long-term management capacity for municipal

15 solid waste or recyclable materials generated within

16 the boundaries of the State or subdivision;

17 ‘‘(2) sets forth the goals of the designation

18 process, including at a minimum—

19 ‘‘(A) capacity assurance;

20 ‘‘(B) the establishment of provisions to

21 provide that protection of human health and the

22 environment will be achieved; and

23 ‘‘(C) any other goals determined to be rel24 evant by the State or qualified political subdivi25 sion;
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1 ‘‘(3) identifies and compares reasonable and

2 available alternatives and options for designation of

3 the facilities;

4 ‘‘(4) provides for public participation and com5 ment;

6 ‘‘(5) ensures that the designation of the facili7 ties is accomplished through an open competitive

8 process during which the State or qualified political

9 subdivision—

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

11 utilized for selection of the facilities;

12 ‘‘(B) provides an opportunity for interested

13 public persons and private persons to offer their

14 existing (as of the date of the process) or pro15 posed facilities for designation; and

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

17 designation based on the merits of the facilities

18 in meeting the criteria identified; and

19 ‘‘(6) bases the designation of each such facility

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

21 ‘‘(7) CERTIFICATION.—

22 ‘‘(A) A Governor of any State may certify

23 that the laws and regulations of the State in ef24 fect on May 15, 1994 satisfy the requirements
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1 for a competitive designation process under sub2 section (c).

3 ‘‘(B) In making a certification under sub4 paragraph (A), a Governor shall—

5 ‘‘(i) publish notice of the proposed

6 certification in a newspaper of general cir7 culation and provide such additional notice

8 of the proposed certification as may be re9 quired by State law;

10 ‘‘(ii) include in the notice of the pro11 posed certification or otherwise make read12 ily available a statement of the laws and

13 regulations subject to the certification and

14 an explanation of the basis for a conclusion

15 that they satisfy the requirements of sub16 section (c);

17 ‘‘(iii) provide interested persons an

18 opportunity to comment on the proposed

19 certification, for a period of time not less

20 than sixty (60) days after publication of

21 the notice; and

22 ‘‘(iv) publish notice of the final certifi23 cation, together with an explanation of the

24 basis for the final certification, in a news25 paper of general circulation and provide
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1 such additional notice of the final certifi2 cation as may be required by State law.

3 ‘‘(C) Designations made after the final cer4 tification and pursuant to the certified laws and

5 regulations shall not be subject to judicial re6 view for failure to satisfy the requirements of

7 subsection (c).

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-
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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, solid waste management plan

5 or legally binding provision described in subsection

6 (e)(1) may contain an authorization described in

7 paragraph (1) or a prohibition described in para8 graph (2).

9 ‘‘(e) EXISTING LAWS AND CONTRACTS.—

10 ‘‘(1) IN GENERAL.—This section shall not su11 persede, abrogate, or otherwise modify any of the

12 following:

13 ‘‘(A) Any contract or other agreement (in14 cluding any contract containing an obligation to

15 repay the outstanding indebtedness on any pro16 posed or existing waste management facility or

17 facility for recyclable materials) entered into be18 fore May 15, 1994, by a State or qualified po19 litical subdivision in which such State or quali20 fied political subdivision has designated a pro21 posed or existing waste management facility, or

22 facility for recyclable materials, for the manage23 ment of municipal solid waste or recyclable ma24 terials pursuant to a law, ordinance, regulation,

25 solid waste management plan or legally binding
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1 provision adopted by such State or qualified po2 litical subdivision before May 15, 1994.

3 ‘‘(B) Any other contract or agreement en4 tered into before May 15, 1994, for the man5 agement of municipal solid waste.

6 ‘‘(C)(i) Any law, ordinance, regulation,

7 solid waste management plan or legally binding

8 provision—

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

10 1994; and

11 ‘‘(II) that pertains to the transpor12 tation, management or disposal of munici13 pal solid waste generated within the

14 boundaries of a State or qualified political

15 subdivision:

16 Provided, That the law, ordinance, regulation,

17 solid waste management plan or legally binding

18 provision is applied to the transportation, man19 agement or disposal of municipal solid waste,

20 generated from household sources (as described

21 in subsection (g)(2)(A)(i)) within the bound22 aries, to a proposed or existing water manage23 ment facility designated before May 15, 1994

24 under such law, ordinance, regulation, solid
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1 waste management plan or legally binding pro2 vision.

3 ‘‘(ii) Any law, ordinance, regulation, solid

4 waste management plan or legally binding pro5 vision—

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

7 1994;

8 ‘‘(II) that pertains to the transpor9 tation, management or disposal of munici10 pal solid waste generated within the

11 boundaries of a State or qualified political

12 subdivision; and

13 ‘‘(III) under which a State or quali14 fied political subdivision, prior to May 15,

15 1994, directed, limited, regulated, or pro16 hibited the transportation, management or

17 disposal of municipal solid waste that is

18 generated, or is commingled with munici19 pal solid waste that is generated, from

20 commercial, institutional, or industrial

21 sources within the boundaries, or that is

22 incinerator ash from a solid waste inciner23 ation unit, or construction debris or demo24 lition debris, generated within the bound25 aries:
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1 Provided, That the law, ordinance, regulation,

2 solid waste management plan or legally binding

3 provision is applied to the transportation, man4 agement or disposal of municipal solid waste

5 described in subclause (III), to a proposed or

6 existing waste management facility designated

7 before May 15, 1994 under such law, ordi8 nance, regulation, solid waste management plan

9 or legally binding provision.

10 ‘‘(iii) Any law, ordinance, regulation, solid

11 waste management plan or legally binding pro12 vision—

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:

19 Provided, That the law, ordinance, regulation,

20 solid waste management plan or legally binding

21 provision is applied to the transportation of re22 cyclable materials, that are generated within

23 the boundaries and with respect to which the

24 generator or owner of the materials, and the

25 State or qualified political subdivision, have met
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1 the appropriate conditions described in sub2 section (b)(1), to a facility designated before

3 May 15, 1994 under such law, ordinance, regu4 lation, solid waste management plan or legally

5 binding provision.

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

7 waste management plan or legally binding pro8 vision—

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

10 1994;

11 ‘‘(II) that pertains to the transpor12 tation of recyclable materials generated

13 within the boundaries of a State or quali14 fied 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 of recyclable ma19 terials that are not materials with respect

20 to which the generator or owner of the ma21 terials, and the State or qualified political

22 subdivision, have met the appropriate con23 ditions described in subsection (b)(1) and

24 that—
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1 ‘‘(aa) are generated from house2 hold sources (as described in sub3 section (g)(2)(A)(i)) within the bound4 aries; or

5 ‘‘(bb) are generated from com6 mercial, institutional, or industrial

7 sources within the boundaries:

8 Provided, That the law, ordinance, regulation,

9 solid waste management plan or legally binding

10 provision is applied to the transportation of re11 cyclable materials, described in subclause (III),

12 to a facility designated before May 15, 1994

13 under such law, ordinance, regulation, solid

14 waste management plan or legally binding pro15 vision, and is applied to the same class of mate16 rials described in item (aa) or (bb) of subclause

17 (III) to which the law, ordinance, regulation,

18 solid waste management plan or legally binding

19 provision applied before May 15, 1994.

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

21 contract or other agreement that is described in sub22 paragraph (e)(1)(A) or (e)(1)(B) shall provide a

23 copy of the contract or agreement to the State or

24 qualified political subdivision on request. Any propri25 etary information contained in the contract or agree-
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1 ment may be omitted in the copy, but the informa2 tion that appears in the copy shall include at least

3 the date that the contract or agreement was signed,

4 the volume of municipal solid waste or recyclable

5 materials covered by the contract or agreement with

6 respect to which the State or qualified political sub7 division could otherwise exercise authority under

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

9 or materials, the destination of the waste or mate10 rials, the duration of the contract or agreement, and

11 the parties to the contract or agreement.

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

13 Any contract or agreement described in subsection

14 (e)(1)(A) or (e)(1)(B), and any law, ordinance, regu15 lation, solid waste management plan or legally bind16 ing provision described in subsection (e)(1)(C), shall

17 be considered a reasonable regulation of commerce

18 by any State or qualified political subdivision, retro19 active to the effective date of the contract or agree20 ment, or to the date of adoption of any such law, or21 dinance, regulation, solid waste management plan or

22 legally binding provision, and shall not be considered

23 as imposing an undue burden on or otherwise im24 pairing, restraining or discriminating against inter25 state commerce.
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1 ‘‘(4) LIMITATION.—Any designation by a State

2 or qualified political subdivision of any waste man3 agement facility or facility for recyclable materials

4 after the date of enactment of this section shall com5 ply with subsection (c). Nothing in this paragraph

6 shall affect any designation made before the date of

7 enactment of this section.

8 ‘‘(f) SAVINGS CLAUSE.—

9 ‘‘(1) Nothing in this section is intended to su10 persede, amend, or otherwise modify Federal or

11 State environmental laws and regulations that apply

12 to the disposal or management of solid waste at

13 waste management facilities and facilities for recy14 clable materials.

15 ‘‘(2) Nothing in this section shall be interpreted

16 to authorize a qualified political subdivision to exer17 cise the authority granted by this section in a man18 ner inconsistent with State law.

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

20 ‘‘(1) INDUSTRIAL SOLID WASTE.—The term ‘in21 dustrial solid waste’ means solid waste generated by

22 manufacturing or industrial processes, including

23 waste generated during scrap processing and scrap

24 recycling, that is not hazardous waste regulated

25 under subtitle C.
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1 ‘‘(2) MUNICIPAL SOLID WASTE.—

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

3 solid waste’ means—

4 ‘‘(i) any solid waste generated by a

5 household, including a single or multifam6 ily residence;

7 ‘‘(ii) any solid waste that is generated

8 by a commercial, institutional, or industrial

9 source;

10 ‘‘(iii) residue remaining after recycla11 ble materials have been separated, or di12 verted at the point of generation or at a

13 waste management facility, from municipal

14 solid waste described in clause (i) or (ii);

15 and

16 ‘‘(iv) conditional exempt small quan17 tity generator waste under section 3001(d)

18 of this Act, provided it is collected, proc19 essed or disposed with other municipal

20 solid waste as part of municipal solid waste

21 services.

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

23 solid waste’ shall not include any of the follow24 ing:
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1 ‘‘(i) Hazardous waste required to be

2 managed in accordance with subtitle C

3 (other than waste described in subpara4 graph (A)(iv)), solid waste containing a

5 polychlorinated biphenyl regulated under

6 the Toxic Substances Control Act (15

7 U.S.C. 2601 et seq.), or medical waste list8 ed in section 11002 of this Act.

9 ‘‘(ii)(I) A recyclable material.

10 ‘‘(II) A material or a product re11 turned from a dispenser or distributor to

12 the manufacturer or the agent of the man13 ufacturer for credit, evaluation, or reuse.

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

15 an out-of-date or unmarketable material or

16 product, or is a material or product that

17 does not conform to specifications, and

18 that is returned to the manufacturer or the

19 agent of the manufacturer for credit, eval20 uation, or reuse.

21 ‘‘(iii) Any solid waste (including con22 taminated soil and debris) resulting from a

23 response action taken under section 104 or

24 106 of the Comprehensive Environmental

25 Response, Compensation, and Liability Act
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1 of 1980 (42 U.S.C. 9604 or 9606) or a

2 corrective action taken under this Act.

3 ‘‘(iv)(I) Industrial solid waste.

4 ‘‘(II) Any solid waste that is gen5 erated by an industrial facility and trans6 ported for the purpose of containment,

7 storage, or disposal to a facility that is

8 owned or operated by the generator of the

9 waste, or a facility that is located on prop10 erty owned by the generator.

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

12 term ‘qualified political subdivision’ means a govern13 mental entity or political subdivision of a State, as

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

15 the methods to be utilized for, the collection, trans16 portation, disposal or other management of munici17 pal solid waste generated within the boundaries of

18 the governmental entity or political subdivision.

19 ‘‘(4) RECYCLABLE MATERIAL.—The term ‘recy20 clable material’ means any material (including any

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

22 other material) that has been or will be separated or

23 diverted from solid waste for the purpose of recy24 cling, reclamation, or reuse.
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1 ‘‘(5) SOLID WASTE MANAGEMENT PLAN.—The

2 term ‘solid waste management plan’ means a plan

3 for the transportation, treatment, processing,

4 composting, disposal or other management of munic5 ipal solid waste adopted by a State or qualified polit6 ical subdivision pursuant to and conforming with

7 State law.

8 ‘‘(6) WASTE MANAGEMENT FACILITY.—The

9 term ‘waste management facility’ means any facility

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

11 transferred, treated, processed, deposited or dis12 posed.’’

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

14 such subtitle D is amended by adding after the item relat15 ing to section 4010 the following new item:

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

and disposal of municipal solid waste.’’

Æ

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