I

104TH CONGRESS

1ST SESSION H. R. 2210

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to clarify liability for certain recycling transactions.

IN THE HOUSE OF REPRESENTATIVES

AUGUST 4, 1995

Mr. EMERSON introduced the following bill; which was referred to the Committee on Commerce, and in addition to the Committee on Transportation

and Infrastructure, for a period to be subsequently determined by the

Speaker, in each case for consideration of such provisions as fall within

the jurisdiction of the committee concerned

A BILL

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

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 Act of 1995’’.

6 SEC. 2. PURPOSES.

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

2 materials in furtherance of the goals of waste mini3 mization and natural resource conversation 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 inappropriate and unnecessary

8 disincentives and impediments to recycling.

9 SEC. 3. CLARIFICATION OF LIABILITY UNDER CERCLA FOR

10 RECYCLING TRANSACTIONS.

11 (a) CLARIFICATION OF LIABILITY.—Title I of the

12 Comprehensive Environmental Response, Compensation,

13 and Liability Act of 1980 (42 U.S.C. 9601 et seq.) 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) and (c), a person who arranged for the

18 recycling of recyclable material shall not be liable under

19 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 spent electric lamps, including fluorescent and other types

23 of lamps, and fossil fuel combustion materials described

24 in section 3001(b)(3)(A)(i) of the Solid Waste Disposal

25 Act when those lamps and materials are recycled, bene-
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1 ficially used, or used as a raw material for manufacturing

2 another product. The Administrator may add other mate3 rials to this definition by regulation.

4 ‘‘(c) TRANSACTIONS INVOLVING RECYCLABLE MATE5 RIAL.—(1) Transactions involving recyclable material

6 shall constitute arranging for recycling if the person who

7 arranged for the transaction (by selling recyclable material

8 or otherwise arranging for the recycling of recyclable ma9 terial) can demonstrate by a preponderance of the evi10 dence that the following criteria, where applicable, were

11 met at the time of the transaction:

12 ‘‘(A) A market existed for the recyclable mate13 rial.

14 ‘‘(B) A substantial portion of the recyclable ma15 terial was made available for use as a feedstock for

16 the manufacture of a new salable product.

17 ‘‘(C) The recyclable material could have been a

18 replacement or substitute for a virgin raw material,

19 or the product made from the recyclable material

20 could have been a replacement or substitute for a

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

22 material.

23 ‘‘(D) For transactions occurring 90 days or

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

25 the person exercised reasonable care to determine
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1 that the facility where the recyclable material would

2 be handled, processed, reclaimed, or otherwise man3 aged by another person (hereinafter in this section

4 referred to as a ‘consuming facility’) was in compli5 ance with substantive (not procedural or administra6 tive) provisions of any Federal, State, or local envi7 ronmental law or regulation, or compliance order or

8 decree issued pursuant thereto, applicable to the

9 handling, processing, reclamation, storage, or other

10 management activities associated with the recyclable

11 material. For purposes of this subparagraph, the de12 termination of whether reasonable care was exer13 cised shall be made using criteria that include (i)

14 the ability of the person to detect the nature of the

15 consuming facility’s operations concerning its han16 dling, processing, reclamation, storage, or other

17 management activities associated with the recyclable

18 material; and (ii) the result of inquiries made to the

19 appropriate Federal, State, or local environmental

20 agency (or agencies) regarding the consuming facili21 ty’s past and current compliance with substantive

22 (not procedural or administrative) provisions of any

23 Federal, State, or local environmental law or regula24 tion, or compliance order or decree issued pursuant

25 thereto, applicable to the handling, processing, rec-
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1 lamation, storage, or other management activities

2 associated with the recyclable material.

3 ‘‘(2) For the purposes of this subsection, a require4 ment to obtain a permit applicable to the handling, proc5 essing, reclamation, storage, or other management activity

6 associated with the recyclable materials shall be considered

7 to be a substantive provision.

8 ‘‘(d) EXCLUSIONS.—(1) Subsection (c) shall not

9 apply if the person had an objectively reasonable basis to

10 believe at the time of the recycling transaction—

11 ‘‘(A) that the recyclable material would not be

12 recycled;

13 ‘‘(B) that the recyclable material would be

14 burned for incineration; or

15 ‘‘(C) for transactions occurring during the 90-

16 day period beginning on the date of the enactment

17 of this section, that the consuming facility was not

18 in compliance with a substantive (not a procedural

19 or administrative) provision of any Federal, State,

20 or local environmental law or regulation, or compli21 ance order or decree issued pursuant thereto, appli22 cable to the handling, processing, reclamation, stor23 age, or other management activities associated with

24 the recyclable material.
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1 ‘‘(2) For purposes of this subsection, the determina2 tion of whether the person had an objectively reasonable

3 basis for belief shall be made using criteria that include

4 the size of the person’s business, customary industry prac5 tices, and the ability of the person to detect the nature

6 of the consuming facility’s operations concerning its han7 dling, processing, reclamation, storage, or other manage8 ment activities associated with the recyclable material.

9 ‘‘(e) EFFECT ON OTHER LIABILITY.—Nothing in this

10 section shall be deemed to affect the liability of a person

11 under paragraph (1) or (2) of section 107(a).

12 ‘‘(f) REGULATIONS.—The President may, under sec13 tion 115, promulgate any regulations necessary to imple14 ment this section.

15 ‘‘(g) EFFECT ON PENDING OR CONCLUDED AC16 TIONS.—The exemptions provided in this section shall not

17 affect any concluded judicial or administrative action or

18 any pending judicial action initiated by the United States

19 before the date of the enactment of this section.

20 ‘‘(h) LIABILITY FOR ATTORNEYS’ FEES FOR CER21 TAIN ACTION.—Any person who commences an action in

22 contribution against a person who is not liable by oper23 ation of this section shall be liable to that person for all

24 reasonable costs of defending that action, including all

25 reasonable attorneys’ and expert witness fees.
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1 ‘‘(i) RELATIONSHIP TO LIABILITY UNDER OTHER

2 LAWS.—Nothing in this section shall affect—

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

4 local statute or regulation promulgated pursuant to

5 any such statute, including any requirements pro6 mulgated by the Administrator under the Solid

7 Waste Disposal Act; or

8 ‘‘(2) the authority of the Administrator to pro9 mulgate regulations under any other statute, includ10 ing the Solid Waste Disposal Act.’’.

11 (b) TECHNICAL AMENDMENT.—The table of contents

12 for title I of such Act is amended by adding at the end

13 the following new item:

‘‘Sec. 127. Recycling transactions.’’.

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