II

103D CONGRESS

2D SESSION S. 2227

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 SENATE OF THE UNITED STATES

JUNE 21 (legislative day, JUNE 7), 1994

Mr. LAUTENBERG (for himself and Mr. MITCHELL) introduced the following

bill; which was read twice and referred to the Committee on Environment

and Public Works

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’’.
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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
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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
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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;
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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-
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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
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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-
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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, 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 fa15 cility) entered into before May 15, 1994, by a

16 State or qualified political subdivision in which

17 such State or qualified political subdivision has

18 designated a waste management facility, or

19 management facility for recyclable materials,

20 for the management of municipal solid waste or

21 recyclable materials pursuant to an ordinance

22 or law adopted by such State or qualified politi23 cal subdivision before May 15, 1994.
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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 of municipal solid waste generated

10 within the boundaries of a State or quali11 fied political subdivision;

12 to the extent that the law, ordinance, regula13 tion, or provision is applied to the transpor14 tation of municipal solid waste, generated from

15 household sources (as described in subsection

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

17 designated before such date under such law, or18 dinance, regulation, or provision.

19 ‘‘(ii) Any law, ordinance, regulation, or leg20 islative or administrative provision—

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

22 1994;

23 ‘‘(II) that pertains to the transpor24 tation of municipal solid waste generated
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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 municipal

7 solid waste that is generated, or is com8 mingled with municipal solid waste that is

9 generated, from commercial, institutional,

10 or industrial sources within the boundaries,

11 or that is incinerator ash from a solid

12 waste incineration unit, or construction de13 bris or demolition debris, generated within

14 the boundaries;

15 to the extent that the law, ordinance, regula16 tion, or provision is applied to the transpor17 tation of municipal solid waste described in

18 subclause (III), to a facility designated before

19 such date under such law, ordinance, regula20 tion, or provision.

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

22 legislative or administrative provision—

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

24 1994; and
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1 ‘‘(II) that pertains to the transpor2 tation of recyclable materials generated

3 within the boundaries of a State or quali4 fied political subdivision;

5 to the extent that the law, ordinance, regula6 tion, or provision is applied to the transpor7 tation of recyclable materials, that are gen8 erated within the boundaries and with respect

9 to which the generator or owner of the mate10 rials, and the State or qualified political sub11 division, have met the appropriate conditions

12 described in subsection (a)(2), to a facility des13 ignated before such date under such law, ordi14 nance, regulation, or provision.

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

16 legislative or administrative provision—

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

18 1994;

19 ‘‘(II) that pertains to the transpor20 tation of recyclable materials generated

21 within the boundaries of a State or quali22 fied political subdivision; and

23 ‘‘(III) under which a State or quali24 fied political subdivision, prior to May 15,

25 1994, directed, limited, regulated, or pro-
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1 hibited the transportation of recyclable ma2 terials that are not materials with respect

3 to which the generator or owner of the ma4 terials, and the State or qualified political

5 subdivision, have met the appropriate con6 ditions described in subsection (a)(2) and

7 that—

8 ‘‘(aa) are generated from house9 hold sources (as described in sub10 section (g)(2)(A)(i)) within the bound11 aries; or

12 ‘‘(bb) are generated from com13 mercial, institutional, or industrial

14 sources within the boundaries;

15 to the extent that the law, ordinance, regula16 tion, or provision is applied to the transpor17 tation of recyclable materials, described in

18 subclause (III), to a facility designated before

19 such date under such law, ordinance, regula20 tion, or provision, and is applied to the same

21 class of materials described in item (aa) or (bb)

22 of subclause (III) to which the law, ordinance,

23 regulation, or provision applied before such

24 date.
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1 ‘‘(2) CONTRACT INFORMATION.—A part to a

2 contract or other agreement that is described in sub3 paragraph (A) or (B) of paragraph (1) shall provide

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

5 qualified political subdivision on request. Any propri6 etary information contained in the contract or agree7 ment may be omitted in the copy, but the informa8 tion that appears in the copy shall include at least

9 the date that the contract or agreement was signed,

10 the volume of municipal solid waste or recyclable

11 materials covered by the contract or agreement with

12 respect to which the State or qualified political sub13 division could otherwise exercise authority under

14 subsection (a), the source of the waste or materials,

15 the destination of the waste or materials, the dura16 tion of the contract or agreement and the parties to

17 the contract or agreement.

18 ‘‘(3) EFFECT ON INTERSTATE COMMERCE.—Ef19 fective from the date of its adoption, no contract or

20 agreement described in subparagraph (A) or (B) of

21 paragraph (1), and no law, ordinance, regulation, or

22 provision described in paragraph (1)(C), shall be

23 considered to impose an undue burden on or other24 wise impair, restrain, or discriminate against inter25 state commerce.
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1 ‘‘(4) LIMITATION.—A State or qualified politi2 cal subdivision may exercise the authority of any

3 law, ordinance, regulation, or provision described in

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

5 paragraph, only if the State or qualified political

6 subdivision develops and implements a process de7 scribed in subsection (c) for the designation of any

8 waste management facility or facility for recyclable

9 materials that the State or qualified political sub10 division designates, after the date of enactment of

11 this section, as a facility to which any waste or ma12 terials described in paragraph (1) shall be trans13 ported. Nothing in this paragraph shall affect any

14 designation made before the date of enactment of

15 this section.

16 ‘‘(5) EFFECT ON STATE PROCUREMENT

17 LAWS.—

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

19 subparagraph (B), nothing in this section shall

20 supersede or modify—

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

22 concerning the procurement of municipal

23 solid waste services or facilities by qualified

24 political subdivisions; or
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1 ‘‘(ii) any State law or regulation con2 cerning competitive bidding for such serv3 ices or facilities.

4 ‘‘(B) DESIGNATION.—Notwithstanding

5 subparagraph (A), any such facilities shall be

6 subject to the designation process described in

7 subsection(c).

8 ‘‘(6) DESIGNATION BEFORE A DATE.—For pur9 poses of this section, a facility shall be considered to

10 be designated before a date if—

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

12 date in a written document; and

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

14 document, and of any laws and regulations of

15 the State or qualified political subdivision in16 volved, that were in effect and applicable to the

17 designation continue to apply.

18 ‘‘(f) SAVINGS CLAUSE.—Nothing in this section is in19 tended to supersede, amend, or otherwise modify Federal

20 or State environmental standards that apply to the dis21 posal or management of solid waste at waste management

22 facilities and facilities for recyclable materials.

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

24 ‘‘(1) INDUSTRIAL SOLID WASTE.—The term ‘in25 dustrial solid waste’ means solid waste generated by
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1 manufacturing or industrial processes, including

2 waste generated during scrap processing and recy3 cling, that is not hazardous waste regulated under

4 subtitle C.

5 ‘‘(2) MUNICIPAL SOLID WASTE.—

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

7 solid waste’—

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

9 household, including a single or multifam10 ily residence;

11 ‘‘(ii) includes waste generated by a

12 commercial, institutional, or industrial

13 source to the extent that such waste—

14 ‘‘(I) is essentially the same as

15 waste normally generated by house16 holds; or

17 ‘‘(II) would be considered condi18 tionally exempt small quantity genera19 tor waste under section 3001(d) and

20 is collected and disposed of with other

21 municipal solid waste as part of nor22 mal municipal solid waste collection

23 services; and

24 ‘‘(iii) includes residue remaining after

25 recyclable materials have been separated,
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1 or diverted at the point of generation, from

2 municipal solid waste described in clause

3 (i) or (ii).

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

5 solid waste’ shall not include any of the follow6 ing:

7 ‘‘(i) Hazardous waste required to be

8 managed in accordance with subtitle C

9 (other than waste described in subpara10 graph (A)(ii)(II), solid waste containing a

11 polychlorinated biphenyl regulated under

12 the Toxic Substances Control Act (15

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

14 ‘‘(ii)(I) A recyclable material.

15 ‘‘(II) A material or a product re16 turned from a dispenser or distributor to

17 the manufacturer or the agent of the man18 ufacturer for credit, evaluation, or reuse.

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

20 an out-of-date or unmarketable material or

21 product, or is a material or product that

22 does not conform to specifications, and

23 that is returned to the manufacturer or the

24 agent of the manufacturer for credit, eval25 uation, or 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)(I) Industrial solid waste.

9 ‘‘(II) Any 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 of a political subdivision of a State if

20 a majority of members of the entity are elected offi21 cials and the entity has been granted authority by

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

23 be utilized for, the collection, disposal, or other man24 agement of municipal solid waste generated within

25 the boundaries of the 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, or disposed of.’’.

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

12 such subtitle D is amended by adding after the item relat13 ing to section 4010 the following new item:

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

municipal solid waste.’’.

Æ

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