II

104TH CONGRESS

1ST SESSION S. 607

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to clarify the liability of certain recycling transactions, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 23, 1995

Mr. WARNER (for himself, and Mr. REID) introduced the following bill; which

was read twice and referred to the Committee on Environment and Public

Works

A BILL

To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to clarify the liability of certain recycling transactions, 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 ‘‘Superfund Recycling

5 Equity Act of 1995’’.

6 SEC. 2. PURPOSES.

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

2 material, in furtherance of the goals of waste mini3 mization and natural resource conservation, 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 the disincentives and impedi8 ments to recycling created by potential liability

9 under the Comprehensive Environmental Response,

10 Compensation, and Liability Act of 1980 (42 U.S.C.

11 9601 et seq.).

12 SEC. 3. CLARIFICATION OF LIABILITY UNDER CERCLA FOR

13 RECYCLING TRANSACTIONS.

14 Title I of the Comprehensive Environmental Re15 sponse, Compensation, and Liability Act of 1980 (42

16 U.S.C. 9601 et seq.) is amended by adding at the end

17 the following:

18 ‘‘SEC. 127. RECYCLING TRANSACTIONS.

19 ‘‘(a) DEFINITIONS.—In this section:

20 ‘‘(1) CONSUMING FACILITY.—The term ‘con21 suming facility’ means a facility where recyclable

22 material is handled, processed, reclaimed, or other23 wise managed by a person other than a person who

24 arranges for the recycling of the recyclable material.

25 ‘‘(2) RECYCLABLE MATERIAL.—
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1 ‘‘(A) IN GENERAL.—Subject to subpara2 graph (B), the term ‘recyclable material’ means

3 scrap paper, scrap plastic, scrap glass, scrap

4 textiles, scrap rubber (other than whole tires),

5 scrap metal, or spent lead-acid, spent nickel6 cadmium, or other spent batteries, as well as

7 minor quantities of material incident to or ad8 hering to the scrap or spent material as a result

9 of the normal and customary use of the mate10 rial prior to the material becoming scrap or

11 spent material.

12 ‘‘(B) PCBS.—The term ‘recyclable mate13 rial’ does not include a material that contains

14 polychlorinated biphenyls in excess of—

15 ‘‘(i) 50 parts per million; or

16 ‘‘(ii) any standard promulgated under

17 Federal law after the date of enactment of

18 this section.

19 ‘‘(3) SCRAP METAL.—The term ‘scrap metal’

20 means 1 or more bits or pieces of metal parts (such

21 as a bar, turning, rod, sheet, or wire), or 1 or more

22 metal pieces that may be combined together with

23 bolts or soldering (such as a radiator, scrap auto24 mobile, or railroad box car), that, when worn or su25 perfluous, can be recycled, except for—
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1 ‘‘(A) a material that the Administrator ex2 cludes from the definition of scrap metal by

3 regulation; and

4 ‘‘(B) a steel shipping container with a ca5 pacity of not less than 30 and not more than

6 3,000 liters, whether intact or not, that has any

7 hazardous substance (but not metal bits or

8 pieces) contained in or adhering to the con9 tainer.

10 ‘‘(b) LIMITATION ON LIABILITY.—

11 ‘‘(1) IN GENERAL.—Subject to subsection (c), a

12 person who arranges for the recycling of recyclable

13 material shall not be liable under paragraph (3) or

14 (4) of section 107(a).

15 ‘‘(2) TRANSACTIONS DEEMED TO BE RECY16 CLING OF A RECYCLABLE MATERIAL.—For purposes

17 of this section, a transaction involving a recyclable

18 material is considered to be arranging for recycling

19 of recyclable material if the person arranging for the

20 transaction can demonstrate, by a preponderance of

21 the evidence, that, at the time of the transaction—

22 ‘‘(A) the recyclable material met a com23 mercial specification grade;

24 ‘‘(B) a market existed for the recyclable

25 material;
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1 ‘‘(C) a substantial portion of the recyclable

2 material was made available for use as a feed3 stock for the manufacture of a new salable

4 product;

5 ‘‘(D) the recyclable material could have

6 been a replacement or substitute for a virgin

7 raw material, or the product to be made from

8 the recyclable material could have been a re9 placement or substitute for a product made, in

10 whole or in part, from a virgin raw material;

11 ‘‘(E) in the case of a transaction occurring

12 not later than 90 days after the date of enact13 ment of this section, the person exercises rea14 sonable care to determine that the consuming

15 facility was in compliance with any substantive

16 (and not procedural or administrative) provision

17 of Federal, State, or local environmental law or

18 regulation, and any compliance order or decree

19 issued pursuant to the law or regulation, appli20 cable to the handling, processing, reclamation,

21 storage, or other management activity associ22 ated with the recyclable material;

23 ‘‘(F) in the case of a transaction involving

24 scrap metal—
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1 ‘‘(i) in the case of a transaction occur2 ring after the effective date of the issuance

3 of a regulation or standard regarding the

4 storage, transport, management, or other

5 activity associated with the recycling of

6 scrap metal that the Administrator pro7 mulgates under the Solid Waste Disposal

8 Act (42 U.S.C. 6901 et seq.) subsequent to

9 the date of enactment of this section, the

10 person acted in compliance with the regu11 lation or standard; and

12 ‘‘(ii) the person did not melt the scrap

13 metal prior to the transaction; and

14 ‘‘(G) in the case of a transaction involving

15 a battery—

16 ‘‘(i) the person did not recover the

17 valuable components of the battery;

18 ‘‘(ii) in the case of a transaction in19 volving a lead-acid battery, the person

20 acted in compliance with any applicable

21 Federal environmental regulation or stand22 ard regarding the storage, transport, man23 agement, or other activity associated with

24 the recycling of a spent lead-acid battery;
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1 ‘‘(iii) in the case of a transaction in2 volving a nickel-cadmium battery—

3 ‘‘(I) a Federal environmental reg4 ulation or standard is in effect regard5 ing the storage, transport, manage6 ment, or other activity associated with

7 the recycling of a spent nickel-cad8 mium battery; and

9 ‘‘(II) the person acted in compli10 ance with the regulation or standard;

11 and

12 ‘‘(iv) with respect to a transaction in13 volving a spent battery other than a lead14 acid or nickel-cadmium battery—

15 ‘‘(I) a Federal environmental reg16 ulation or standard is in effect regard17 ing the storage, transport, manage18 ment, or other activity associated with

19 the recycling of the spent battery; and

20 ‘‘(II) the person acted in compli21 ance with the regulation or standard.

22 ‘‘(3) SWEATING.—For purposes of paragraph

23 (2)(F)(ii), melting of scrap metal does not include

24 the thermal separation of 2 or more materials due

25 to differences in the melting points of the materials.
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1 ‘‘(4) PROCESSING OF BATTERY BY THIRD PER2 SON.—For purposes of paragraph (2)(G)(i), a per3 son who, by contract, arranges or pays for process4 ing of a battery by an unrelated third person, and

5 receives from the third person materials reclaimed

6 from the battery, shall be considered not to have re7 covered the valuable components of the battery.

8 ‘‘(5) REASONABLE CARE.—For purposes of

9 paragraph (2)(E), reasonable care shall be deter10 mined using criteria that include—

11 ‘‘(A) the price paid to or received by the

12 person in the recycling transaction;

13 ‘‘(B) the ability of the person to detect the

14 nature of the operations of the consuming facil15 ity concerning the handling, processing, rec16 lamation, or other management activities asso17 ciated with the recyclable material; and

18 ‘‘(C) the result of any inquiry made to an

19 appropriate Federal, State, or local environ20 mental agency regarding the past and current

21 compliance of the consuming facility with sub22 stantive (and not procedural or administrative)

23 provisions of Federal, State, and local environ24 mental laws and regulations, and any compli25 ance order or decree issued pursuant to the
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1 laws and regulations, applicable to the han2 dling, processing, reclamation, storage, or other

3 management activity associated with the recy4 clable material.

5 ‘‘(c) EXCLUSION FROM LIMITATION ON LIABILITY.—

6 ‘‘(1) IN GENERAL.—Subsection (b) shall not

7 apply if the person arranging for recycling of a recy8 clable material—

9 ‘‘(A) had an objectively reasonable basis to

10 believe at the time of the recycling transaction

11 that—

12 ‘‘(i) the recyclable material would not

13 be recycled;

14 ‘‘(ii) the recyclable material would be

15 burned as fuel, or for energy recovery or

16 incineration; or

17 ‘‘(iii) in the case of a transaction oc18 curring not later than 90 days after the

19 date of the enactment of this section, the

20 consuming facility acting not in compliance

21 with a substantive (and not a procedural

22 or administrative) provision of any Fed23 eral, State, or local environmental law or

24 regulation, or a compliance order or decree

25 issued pursuant to the law or regulation,
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1 applicable to the handling, processing, rec2 lamation, or other management activity as3 sociated with the recyclable material;

4 ‘‘(B) added a hazardous substance to the

5 recyclable material for purposes other than

6 processing for recycling; or

7 ‘‘(C) failed to exercise reasonable care with

8 respect to the management or handling of the

9 recyclable material.

10 ‘‘(2) REASONABLE BASIS FOR BELIEF.—For

11 purposes of paragraph (1)(A), an objectively reason12 able basis for belief shall be determined using cri13 teria that include—

14 ‘‘(A) the size of any business owned by the

15 person;

16 ‘‘(B) the customary industry practices for

17 any business owned by the person;

18 ‘‘(C) the price paid to or received by the

19 person in the recycling transaction;

20 ‘‘(D) the ability of the person to detect the

21 nature of the operations of the consuming facil22 ity concerning the handling, processing, rec23 lamation, or other management activities asso24 ciated with the recyclable material.
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1 ‘‘(c) PERMIT REQUIREMENT.—For the purposes of

2 this section, a requirement to obtain a permit applicable

3 to the handling, processing, reclamation, or other manage4 ment activity associated with a recyclable material shall

5 be considered to be a substantive provision.

6 ‘‘(d) REGULATIONS.—The Administrator may issue

7 regulations to carry out this section.

8 ‘‘(e) LIABILITY FOR ATTORNEY FEES FOR CERTAIN

9 ACTIONS.—Any person who commences an action for con10 tribution against a person who is alleged to be liable under

11 this Act but is found not to be liable as a result of this

12 section shall be liable to the person defending the action

13 for all reasonable costs of defending the action, including

14 all reasonable attorney and expert witness fees.

15 ‘‘(f) EFFECT ON PENDING OR CONCLUDED AC16 TIONS.—This section shall not affect a judicial or adminis17 trative action concluded prior to the date of enactment of

18 this section, or a pending judicial action initiated by the

19 United States prior to the date of enactment of this

20 section.

21 ‘‘(g) EFFECT ON OTHER LIABILITY.—Nothing in

22 this section affects the liability of a person under para23 graph (1) or (2) of section 107(a).

24 ‘‘(h) RELATIONSHIP TO LIABILITY UNDER OTHER

25 LAWS.—Nothing in this section affects—
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1 ‘‘(1) liability under any other Federal, State, or

2 local law, or regulation promulgated pursuant to the

3 law, including any requirement promulgated by the

4 Administrator under the Solid Waste Disposal Act

5 (42 U.S.C. 6901 et seq.); or

6 ‘‘(2) the ability of the Administrator to promul7 gate a regulation under any other law, including the

8 Solid Waste Disposal Act.’’.

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