II

105TH CONGRESS

2D SESSION S. 2180

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to clarify liability under that Act for certain

recycling transactions.

IN THE SENATE OF THE UNITED STATES

JUNE 16, 1998

Mr. LOTT (for himself and Mr. DASCHLE) 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 liability

under that Act 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 Equity Act of 1998’’.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are—

8 (1) to promote the reuse and recycling of scrap

9 material in furtherance of the goals of waste mini-
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1 mization and natural resource conservation while

2 protecting human health and the environment;

3 (2) to create greater equity in the statutory

4 treatment of recycled versus virgin materials; and

5 (3) to remove the disincentives and impedi6 ments to recycling created as an unintended con7 sequence of the 1980 Superfund liability provisions.

8 SEC. 3. CLARIFICATION OF LIABILITY UNDER CERCLA FOR

9 RECYCLING TRANSACTIONS.

10 (a) CLARIFICATION.—Title I of the Comprehensive

11 Environmental Response, Compensation, and Liability Act

12 of 1980 (42 U.S.C. 9601 et seq.) is amended by adding

13 at the end the following new section:

14 ‘‘SEC. 127. RECYCLING TRANSACTIONS.

15 ‘‘(a) LIABILITY CLARIFICATION.—As provided in

16 subsections (b), (c), (d), and (e), a person who arranged

17 for recycling of recyclable material shall not be liable

18 under section 107(a)(3) or 107(a)(4) with respect to the

19 material.

20 ‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur21 poses of this section, the term ‘recyclable material’ means

22 scrap paper, scrap plastic, scrap glass, scrap textiles,

23 scrap rubber (other than whole tires), scrap metal, or

24 spent lead-acid, spent nickel-cadmium, and other spent

25 batteries, as well as minor amounts of material incident
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1 to or adhering to the scrap material as a result of its nor2 mal and customary use prior to becoming scrap; except

3 that such term shall not include shipping containers of a

4 capacity from 30 liters to 3,000 liters, whether intact or

5 not, having any hazardous substance (but not metal bits

6 and pieces or hazardous substance that form an integral

7 part of the container) contained in or adhering thereto.

8 ‘‘(c) TRANSACTIONS INVOLVING SCRAP PAPER,

9 PLASTIC, GLASS, TEXTILES, OR RUBBER.—Transactions

10 involving scrap paper, scrap plastic, scrap glass, scrap tex11 tiles, or scrap rubber (other than whole tires) shall be

12 deemed to be arranging for recycling if the person who

13 arranged for the transaction (by selling recyclable material

14 or otherwise arranging for the recycling of recyclable ma15 terial) can demonstrate by a preponderance of the evi16 dence that all of the following criteria were met at the

17 time of the transaction:

18 ‘‘(1) The recyclable material met a commercial

19 specification grade.

20 ‘‘(2) A market existed for the recyclable mate21 rial.

22 ‘‘(3) A substantial portion of the recyclable ma23 terial was made available for use as feedstock for the

24 manufacture of a new saleable product.
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1 ‘‘(4) The recyclable material could have been a

2 replacement or substitute for a virgin raw material,

3 or the product to be made from the recyclable mate4 rial could have been a replacement or substitute for

5 a product made, in whole or in part, from a virgin

6 raw material.

7 ‘‘(5) For transactions occurring 90 days or

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

9 person exercised reasonable care to determine that

10 the facility where the recyclable material was han11 dled, processed, reclaimed, or otherwise managed by

12 another person (hereinafter in this section referred

13 to as a ‘consuming facility’) was in compliance with

14 substantive (not procedural or administrative) provi15 sions of any Federal, State, or local environmental

16 law or regulation, or compliance order or decree

17 issued pursuant thereto, applicable to the handling,

18 processing, reclamation, storage, or other manage19 ment activities associated with recyclable material.

20 ‘‘(6) For purposes of this subsection, ‘reason21 able care’ shall be determined using criteria that in22 clude (but are not limited to)—

23 ‘‘(A) the price paid in the recycling trans24 action;
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1 ‘‘(B) the ability of the person to detect the

2 nature of the consuming facility’s operations

3 concerning its handling, processing, reclama4 tion, or other management activities associated

5 with recyclable material; and

6 ‘‘(C) the result of inquiries made to the ap7 propriate Federal, State, or local environmental

8 agency (or agencies) regarding the consuming

9 facility’s past and current compliance with sub10 stantive (not procedural or administrative) pro11 visions of any Federal, State, or local environ12 mental law or regulation, or compliance order

13 or decree issued pursuant thereto, applicable to

14 the handling, processing, reclamation, storage,

15 or other management activities associated with

16 the recyclable material. For the purposes of this

17 paragraph, a requirement to obtain a permit

18 applicable to the handling, processing, reclama19 tion, or other management activity associated

20 with the recyclable materials shall be deemed to

21 be a substantive provision.

22 ‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—

23 ‘‘(1) Transactions involving scrap metal shall be

24 deemed to be arranging for recycling if the person

25 who arranged for the transaction (by selling recycla-
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1 ble material or otherwise arranging for the recycling

2 of recyclable material) can demonstrate by a prepon3 derance of the evidence that at the time of the

4 transaction—

5 ‘‘(A) the person met the criteria set forth

6 in subsection (c) with respect to the scrap

7 metal;

8 ‘‘(B) the person was in compliance with

9 any applicable regulations or standards regard10 ing the storage, transport, management, or

11 other activities associated with the recycling of

12 scrap metal that the Administrator promulgates

13 under the Solid Waste Disposal Act subsequent

14 to the enactment of this section and with re15 gard to transactions occurring after the effec16 tive date of such regulations or standards; and

17 ‘‘(C) the person did not melt the scrap

18 metal prior to the transaction.

19 ‘‘(2) For purposes of paragraph (1)(C), melting

20 of scrap metal does not include the thermal separa21 tion of 2 or more materials due to differences in

22 their melting points (referred to as ‘sweating’).

23 ‘‘(3) For purposes of this subsection, the term

24 ‘scrap metal’ means bits and pieces of metal parts

25 (e.g., bars, turnings, rods, sheets, wire) or metal
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1 pieces that may be combined together with bolts or

2 soldering (e.g., radiators, scrap automobiles, railroad

3 box cars), which when worn or superfluous can be

4 recycled, except for scrap metals that the Adminis5 trator excludes from this definition by regulation.

6 ‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—

7 Transactions involving spent lead-acid batteries, spent

8 nickel-cadmium batteries, or other spent batteries shall be

9 deemed to be arranging for recycling if the person who

10 arranged for the transaction (by selling recyclable material

11 or otherwise arranging for the recycling of recyclable ma12 terial) can demonstrate by a preponderance of the evi13 dence that at the time of the transaction—

14 ‘‘(1) the person met the criteria set forth in

15 subsection (c) with respect to the spent lead-acid

16 batteries, spent nickel-cadmium batteries, or other

17 spent batteries, but the person did not recover the

18 valuable components of such batteries; and

19 ‘‘(2)(A) with respect to transactions involving

20 lead-acid batteries, the person was in compliance

21 with applicable Federal environmental regulations or

22 standards, and any amendments thereto, regarding

23 the storage, transport, management, or other activi24 ties associated with the recycling of spent lead-acid

25 batteries;
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1 ‘‘(B) with respect to transactions involving

2 nickel-cadmium batteries, Federal environmental

3 regulations or standards are in effect regarding the

4 storage, transport, management, or other activities

5 associated with the recycling of spent nickel-cad6 mium batteries, and the person was in compliance

7 with applicable regulations or standards or any

8 amendments thereto; or

9 ‘‘(C) with respect to transactions involving

10 other spent batteries, Federal environmental regula11 tions or standards are in effect regarding the stor12 age, transport, management, or other activities asso13 ciated with the recycling of such batteries, and the

14 person was in compliance with applicable regulations

15 or standards or any amendments thereto.

16 ‘‘(f) EXCLUSIONS.—

17 ‘‘(1) The exemptions set forth in subsections

18 (c), (d), and (e) shall not apply if—

19 ‘‘(A) the person had an objectively reason20 able basis to believe at the time of the recycling

21 transaction—

22 ‘‘(i) that the recyclable material would

23 not be recycled;
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1 ‘‘(ii) that the recyclable material

2 would be burned as fuel, or for energy re3 covery or incineration; or

4 ‘‘(iii) for transactions occurring before

5 90 days after the date of the enactment of

6 this section, that the consuming facility

7 was not in compliance with a substantive

8 (not procedural or administrative) provi9 sion of any Federal, State, or local envi10 ronmental law or regulation, or compliance

11 order or decree issued pursuant thereto,

12 applicable to the handling, processing, rec13 lamation, or other management activities

14 associated with the recyclable material;

15 ‘‘(B) the person had reason to believe that

16 hazardous substances had been added to the re17 cyclable material for purposes other than proc18 essing for recycling;

19 ‘‘(C) the person failed to exercise reason20 able care with respect to the management and

21 handling of the recyclable material (including

22 adhering to customary industry practices cur23 rent at the time of the recycling transaction de24 signed to minimize, through source control, con-
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1 tamination of the recyclable material by hazard2 ous substances); or

3 ‘‘(D) with respect to any item of a recycla4 ble material, the item—

5 ‘‘(i) contained polychlorinated

6 biphenyls at a concentration in excess of

7 50 parts per million or any new standard

8 promulgated pursuant to applicable Fed9 eral laws; or

10 ‘‘(ii) is an item of scrap paper con11 taining at the time of the recycling trans12 action a concentration of a hazardous sub13 stance that has been determined by the

14 Administrator, after notice and comment,

15 to present a significant risk to human

16 health or the environment, or contained

17 that hazardous substance at a concentra18 tion at or higher than that determined by

19 the Administrator to present such a sig20 nificant risk.

21 ‘‘(2) For purposes of this subsection, an objec22 tively reasonable basis for belief shall be determined

23 using criteria that include (but are not limited to)

24 the size of the person’s business, customary industry

25 practices (including customary industry practices
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1 current at the time of the recycling transaction de2 signed to minimize, through source control, contami3 nation of the recyclable material by hazardous sub4 stances), the price paid in the recycling transaction,

5 and the ability of the person to detect the nature of

6 the consuming facility’s operations concerning its

7 handling, processing, reclamation, or other manage8 ment activities associated with the recyclable mate9 rial.

10 ‘‘(3) For purposes of this subsection, a require11 ment to obtain a permit applicable to the handling,

12 processing, reclamation, or other management activi13 ties associated with recyclable material shall be

14 deemed to be a substantive provision.

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

16 this section shall be deemed to affect the liability of a per17 son under paragraph (1) or (2) of section 107(a). Nothing

18 in this section shall be deemed to affect the liability of

19 a person under paragraph (3) or (4) of section 107(a) with

20 respect to materials that are not recyclable materials as

21 defined in subsection (b) of this section.

22 ‘‘(h) REGULATIONS.—The Administrator has the au23 thority, under section 115, to promulgate additional regu24 lations concerning this section.
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1 ‘‘(i) EFFECT ON PENDING OR CONCLUDED AC2 TIONS.—The exemptions provided in this section shall not

3 affect any concluded judicial or administrative action or

4 any pending judicial action initiated by the United States

5 prior to enactment of this section.

6 ‘‘(j) LIABILITY FOR ATTORNEY’S FEES FOR CERTAIN

7 ACTIONS.—Any person who commences an action in con8 tribution against a person who is not liable by operation

9 of this section shall be liable to that person for all reason10 able costs of defending that action, including all reason11 able attorney’s and expert witness fees.

12 ‘‘(k) RELATIONSHIP TO LIABILITY UNDER OTHER

13 LAWS.—Nothing in this section shall affect—

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

15 local statute or regulation promulgated pursuant to

16 any such statute, including any requirements pro17 mulgated by the Administrator under the Solid

18 Waste Disposal Act; or

19 ‘‘(2) the ability of the Administrator to promul20 gate regulations under any other statute, including

21 the Solid Waste Disposal Act.’’.

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

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

24 the following item:

‘‘SEC. 127. Recycling transactions.’’.

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