II

105TH CONGRESS

2D SESSION S. 2062

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

MAY 12, 1998

Mr. WARNER 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 the recycling of a recyclable material shall not be liable

18 under section 107(a)(3) or 107(a)(4).

19 ‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur20 poses of this section, the term ‘recyclable material’ means

21 scrap paper, scrap plastic, scrap glass, scrap textiles,

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

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

24 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.

3 ‘‘(c) TRANSACTIONS INVOLVING SCRAP PAPER,

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

5 involving scrap paper, scrap plastic, scrap glass, scrap tex6 tiles, or scrap rubber (other than whole tires) shall be

7 deemed to be arranging for recycling if the person who

8 arranged for the transaction (by selling recyclable material

9 or otherwise arranging for the recycling of recyclable ma10 terial) can demonstrate by a preponderance of the evi11 dence that all of the following criteria were met at the

12 time of the transaction:

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

14 specification grade.

15 ‘‘(2) A market existed for the recyclable mate16 rial.

17 ‘‘(3) A substantial portion of the recyclable ma18 terial was made available for use as feedstock for the

19 manufacture of a new saleable product.

20 ‘‘(4) The recyclable material could have been a

21 replacement or substitute for a virgin raw material,

22 or the product to be made from the recyclable mate23 rial could have been a replacement or substitute for

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

25 raw material.
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1 ‘‘(5) For transactions occurring 90 days or

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

3 person exercised reasonable care to determine that

4 the facility where the recyclable material would be

5 handled, processed, reclaimed, or otherwise managed

6 by another person (hereinafter in this section re7 ferred to as a ‘consuming facility’) was in compli8 ance with substantive (not procedural or administra9 tive) provisions of any Federal, State, or local envi10 ronmental law or regulation, or compliance order or

11 decree issued pursuant thereto, applicable to the

12 handling, processing, reclamation, storage, or other

13 management activities associated with recyclable ma14 terial.

15 ‘‘(6) For purposes of this subsection, ‘reason16 able care’ shall be determined using criteria that in17 clude (but are not limited to)—

18 ‘‘(A) the price paid in the recycling trans19 action;

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

21 nature of the consuming facility’s operations

22 concerning its handling, processing, reclama23 tion, or other management activities associated

24 with recyclable material; and
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1 ‘‘(C) the result of inquiries made to the ap2 propriate Federal, State, or local environmental

3 agency (or agencies) regarding the consuming

4 facility’s past and current compliance with sub5 stantive (not procedural or administrative) pro6 visions of any Federal, State, or local environ7 mental law or regulation, or compliance order

8 or decree issued pursuant thereto, applicable to

9 the handling, processing, reclamation, storage,

10 or other management activities associated with

11 the recyclable material. For the purposes of this

12 paragraph, a requirement to obtain a permit

13 applicable to the handling, processing, reclama14 tion, or other management activity associated

15 with the recyclable materials shall be deemed to

16 be a substantive provision.

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

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

19 deemed to be arranging for recycling if the person

20 who arranged for the transaction (by selling recycla21 ble material or otherwise arranging for the recycling

22 of recyclable material) can demonstrate by a prepon23 derance of the evidence that at the time of the

24 transaction—
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1 ‘‘(A) the person met the criteria set forth

2 in subsection (c) with respect to the scrap

3 metal;

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

5 any applicable regulations or standards regard6 ing the storage, transport, management, or

7 other activities associated with the recycling of

8 scrap metal that the Administrator promulgates

9 under the Solid Waste Disposal Act subsequent

10 to the enactment of this section and with re11 gard to transactions occurring after the effec12 tive date of such regulations or standards; and

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

14 metal prior to the transaction.

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

16 of scrap metal does not include the thermal separa17 tion of 2 or more materials due to differences in

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

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

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

21 (e.g., bars, turnings, rods, sheets, wire) or metal

22 pieces that may be combined together with bolts or

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

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

25 recycled, except for scrap metals that the Adminis-
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1 trator excludes from this definition by regulation

2 and steel shipping containers of a capacity from 30

3 liters to and including 3,000 liters, whether intact

4 or not, having any hazardous substance (but not

5 metal bits or pieces) contained in or adhering there6 to.

7 ‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—

8 ‘‘(1) Transactions involving spent lead-acid bat9 teries, spent nickel-cadmium batteries, or other

10 spent batteries shall be deemed to be arranging for

11 recycling if the person who arranged for the trans12 action (by selling recyclable material or otherwise ar13 ranging for the recycling of recyclable material) can

14 demonstrate by a preponderance of the evidence that

15 at the time of the transaction—

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

17 in subsection (c) with respect to the spent lead18 acid batteries, spent nickel-cadmium batteries,

19 or other spent batteries, but did not recover the

20 valuable components of such batteries; and

21 ‘‘(B)(i) with respect to transactions involv22 ing lead-acid batteries, the person was in com23 pliance with applicable Federal environmental

24 regulations or standards, and any amendments

25 thereto, regarding the storage, transport, man-
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1 agement, or other activities associated with the

2 recycling of spent lead-acid batteries;

3 ‘‘(ii) with respect to transactions involving

4 nickel-cadmium batteries, Federal environ5 mental regulations or standards are in effect re6 garding the storage, transport, management, or

7 other activities associated with the recycling of

8 spent nickel-cadmium batteries, and the person

9 was in compliance with applicable regulations or

10 standards or any amendments thereto; or

11 ‘‘(iii) with respect to transactions involving

12 other spent batteries, Federal environmental

13 regulations or standards are in effect regarding

14 the storage, transport, management, or other

15 activities associated with the recycling of such

16 batteries, and the person was in compliance

17 with applicable regulations or standards or any

18 amendments thereto.

19 ‘‘(2) For purposes of paragraph (1)(A), a per20 son who, by contract, arranges or pays for process21 ing of batteries by an unrelated third person and re22 ceives from such third person materials reclaimed

23 from such batteries shall not thereby be deemed to

24 recover the valuable components of such batteries.

25 ‘‘(f) EXCLUSIONS.—
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1 ‘‘(1) The exemptions set forth in subsections

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

3 ‘‘(A) the person had an objectively reason4 able basis to believe at the time of the recycling

5 transaction—

6 ‘‘(i) that the recyclable material would

7 not be recycled;

8 ‘‘(ii) that the recyclable material

9 would be burned as fuel, or for energy re10 covery or incineration; or

11 ‘‘(iii) for transactions occurring before

12 90 days after the date of the enactment of

13 this section, that the consuming facility

14 was not in compliance with a substantive

15 (not procedural or administrative) provi16 sion of any Federal, State, or local envi17 ronmental law or regulation, or compliance

18 order or decree issued pursuant thereto,

19 applicable to the handling, processing, rec20 lamation, or other management activities

21 associated with the recyclable material;

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

23 hazardous substances had been added to the re24 cyclable material for purposes other than proc25 essing for recycling;
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1 ‘‘(C) the person failed to exercise reason2 able care with respect to the management and

3 handling of the recyclable material (including

4 adhering to customary industry practices cur5 rent at the time of the recycling transaction de6 signed to minimize, through source control, con7 tamination of the recyclable material by hazard8 ous substances); or

9 ‘‘(D) with respect to any item of a recycla10 ble material, the item—

11 ‘‘(i) contained polychlorinated

12 biphenyls at a concentration in excess of

13 50 parts per million or any new standard

14 promulgated pursuant to applicable Fed15 eral laws; or

16 ‘‘(ii) is an item of scrap paper con17 taining at the time of the recycling trans18 action a concentration of a hazardous sub19 stance that has been determined by the

20 Administrator, after notice and comment,

21 to present a significant risk to human

22 health or the environment in light of the

23 nature of scrap paper management and re24 cycling.
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1 ‘‘(2) For purposes of this subsection, an objec2 tively reasonable basis for belief shall be determined

3 using criteria that include (but are limited to) the

4 size of the person’s business, customary industry

5 practices (including customary industry practices

6 current at the time of the recycling transaction de7 signed to minimize, through source control, contami8 nation of the recyclable material by hazardous sub9 stances), the price paid in the recycling transaction,

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

11 the consuming facility’s operations concerning its

12 handling, processing, reclamation, or other manage13 ment activities associated with the recyclable mate14 rial.

15 ‘‘(3) For purposes of this subsection, a require16 ment to obtain a permit applicable to the handling,

17 processing, reclamation, or other management activi18 ties associated with recyclable material shall be

19 deemed to be a substantive provision.

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

21 this section shall be deemed to affect the liability of a per22 son under paragraph (1) or (2) of section 107(a).

23 ‘‘(h) REGULATIONS.—The Administrator has the au24 thority, under section 115, to promulgate additional regu25 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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