I

104TH CONGRESS

1ST SESSION H. R. 820

To amend the Comprehensive Environmental Response, Compensation, and

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

recycling transactions.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 3, 1995

Mrs. LINCOLN (for herself, Mr. UPTON, Mr. SCHAEFER, Mr. BOUCHER, Mr.

MANTON, Mr. GILLMOR, and Mr. TAUZIN) 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

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 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 because of potential Superfund li9 ability.

10 SEC. 3. CLARIFICATION OF LIABILITY UNDER CERCLA FOR

11 RECYCLING TRANSACTIONS.

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

13 Comprehensive Environmental Response, Compensation,

14 and Liability Act of 1980 (42 U.S.C. 9601 et seq.) is

15 amended by adding at the end the following new section:

16 ‘‘SEC. 127. RECYCLING TRANSACTIONS.

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

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

19 for the recycling of recyclable material shall not be liable

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

21 ‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur22 poses of this section, the term ‘recyclable material’ means

23 scrap paper, scrap plastic, scrap glass, scrap textiles,

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

25 spent lead-acid, spent nickel-cadmium and other spent
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1 batteries, as well as minor amounts of material incident

2 to or adhering to the scrap material as a result of its nor3 mal and customary use prior to becoming scrap.

4 ‘‘(c) TRANSACTIONS INVOLVING SCRAP PAPER,

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

6 involving scrap paper, scrap plastic, scrap glass, scrap tex7 tiles, or scrap rubber (other than whole tires) shall be

8 deemed to be arranging for recycling if the person who

9 arranged for the transaction (by selling recyclable material

10 or otherwise arranging for the recycling of recyclable ma11 terial) can demonstrate by a preponderance of the evi12 dence that all of the following criteria were met at the

13 time of the transaction:

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

15 specification grade.

16 ‘‘(2) A market existed for the recyclable mate17 rial.

18 ‘‘(3) A substantial portion of the recyclable ma19 terial was made available for use as a feedstock for

20 the manufacture of a new saleable product.

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

22 replacement or substitute for a virgin raw material,

23 or the product to be made from the recyclable mate24 rial could have been a replacement or substitute for
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1 a product made, in whole or in part, from a virgin

2 raw material.

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

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

5 person exercised reasonable care to determine that

6 the facility where the recyclable material would be

7 handled, processed, reclaimed, or otherwise managed

8 by another person (hereinafter in this section re9 ferred to as a ‘consuming facility’) was in compli10 ance with substantive (not procedural or administra11 tive) provisions of any Federal, State, or local envi12 ronmental law or regulation, or compliance order or

13 decree issued pursuant thereto, applicable to the

14 handling, processing, reclamation, storage, or other

15 management activities associated with the recyclable

16 material.

17 ‘‘(6) For purposes of this subsection, ‘reason18 able care’ shall be determined using criteria that in19 clude (but are not limited to) (A) the price paid in

20 the recycling transaction; (B) the ability of the per21 son to detect the nature of the consuming facility’s

22 operations concerning its handling, processing, rec23 lamation, or other management activities associated

24 with the recyclable material; and (C) the result of

25 inquiries made to the appropriate Federal, State, or
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1 local environmental agency (or agencies) regarding

2 the consuming facility’s past and current compliance

3 with substantive (not procedural or administrative)

4 provisions of any Federal, State, or local environ5 mental law or regulation, or compliance order or de6 cree issued pursuant thereto, applicable to the han7 dling, processing, reclamation, storage, or other

8 management activities associated with the recyclable

9 material. For the purposes of this paragraph, a re10 quirement to obtain a permit applicable to the han11 dling, processing, reclamation, or other management

12 activity associated with the recyclable materials shall

13 be deemed to be a substantive provision.

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

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

16 deemed to be arranging for recycling if the person

17 who arranged for the transaction (by selling recycla18 ble material or otherwise arranging for the recycling

19 of recyclable material) can demonstrate by a prepon20 derance of the evidence that at the time of the

21 transaction—

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

23 in subsection (c) with respect to the scrap

24 metal;
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1 ‘‘(B) the person was in compliance with

2 any applicable regulations or standards regard3 ing the storage, transport, management, or

4 other activities associated with the recycling of

5 scrap metal that the Administrator promulgates

6 under the Solid Waste Disposal Act subsequent

7 to the enactment of this section and with re8 gard to transactions occurring after the effec9 tive date of such regulations or standards; and

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

11 metal prior to the transaction.

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

13 of scrap metal does not include the thermal separa14 tion of 2 or more materials due to differences in

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

16 ‘‘(3) For the purposes of this subsection, the

17 term ‘scrap metal’ means bits and pieces of metal

18 parts (e.g., bars, turnings, rods, sheets, wire) or

19 metal pieces that may be combined together with

20 bolts or soldering (e.g., radiators, scrap automobiles,

21 railroad box cars), which when worn or superfluous

22 can be recycled, except for scrap metals that the Ad23 ministrator excludes from this definition by regula24 tion and steel shipping containers of a capacity from

25 30 liters to and including 3,000 liters, whether in-
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1 tact or not, having any hazardous substance (but

2 not metal bits or pieces) contained in or adhering

3 thereto.

4 ‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—(1)

5 Transactions involving spent lead-acid batteries, spent

6 nickel-cadmium batteries or other spent batteries 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 at the time of the transaction—

12 ‘‘(A) the person met the criteria set forth in

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

14 batteries, spent nickel-cadmium batteries, or other

15 spent batteries but did not recover the valuable com16 ponents of such batteries; and

17 ‘‘(B)(i) with respect to transactions involving

18 lead-acid batteries, the person was in compliance

19 with applicable Federal environmental regulations or

20 standards, and any amendments thereto, regarding

21 the storage, transport, management, or other activi22 ties associated with the recycling of spent lead-acid

23 batteries;

24 ‘‘(ii) with respect to transactions involving nick25 el-cadmium batteries, Federal environmental regula-
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1 tions or standards are in effect regarding the stor2 age, transport, management, or other activities asso3 ciated with the recycling of spent nickel-cadmium

4 batteries, and the person was in compliance with ap5 plicable regulations or standards or any amendments

6 thereto; or

7 ‘‘(iii) with respect to transactions involving

8 other spent batteries, Federal environmental regula9 tions or standards are in effect regarding the stor10 age, transport, management, or other activities asso11 ciated with the recycling of such batteries, and the

12 person was in compliance with applicable regulations

13 or standards or any amendments thereto.

14 ‘‘(2) For purposes of paragraph (1)(A) of this sub15 section, a person who, by contract, arranges or pays for

16 processing of batteries by an unrelated third person and

17 receives from such third person materials reclaimed from

18 such batteries shall not thereby be deemed to recover the

19 valuable components of such batteries.

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

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

22 ‘‘(A) the person had an objectively reasonable

23 basis to believe at the time of the recycling trans24 action—
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1 ‘‘(i) that the recyclable material would not

2 be recycled,

3 ‘‘(ii) that the recyclable material would be

4 burned as fuel, or for energy recovery or incin5 eration, or

6 ‘‘(iii) for transactions occurring before 90

7 days after the date of the enactment of this sec8 tion, that the consuming facility was not in

9 compliance with a substantive (not a procedural

10 or administrative) provision of any Federal,

11 State, or local environmental law or regulation,

12 or compliance order or decree issued pursuant

13 thereto, applicable to the handling, processing,

14 reclamation, or other management activities as15 sociated with the recyclable material; or

16 ‘‘(B) the person added hazardous substances to

17 the recyclable material for purposes other than proc18 essing for recycling; or

19 ‘‘(C) the person failed to exercise reasonable

20 care with respect to the management and handling

21 of the recyclable material.

22 ‘‘(2) For purposes of this subsection, an objectively

23 reasonable basis for belief shall be determined using cri24 teria that include (but are not limited to) the size of the

25 person’s business, customary industry practices, the price
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1 paid in the recycling transaction, and the ability of the

2 person to detect the nature of the consuming facility’s op3 erations concerning its handling, processing, reclamation

4 or other management activities associated with the recy5 clable material.

6 ‘‘(3) For purposes of this subsection, a requirement

7 to obtain a permit applicable to the handling, processing,

8 reclamation, or other management activities associated

9 with recyclable material shall be deemed to be a sub10 stantive provision.

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

12 this section shall be deemed to affect the liability of a per13 son under paragraph (1) or (2) of section 107(a).

14 ‘‘(h) PCBS.—An exemption under this section does

15 not apply if the recyclable material contained poly16 chlorinated biphenyls in excess of 50 parts per million or

17 any new standard promulgated pursuant to applicable

18 Federal laws.

19 ‘‘(i) REGULATIONS.—The Administrator has the au20 thority, under section 115, to promulgate additional regu21 lations concerning this section.

22 ‘‘(j) EFFECT ON PENDING OR CONCLUDED AC23 TIONS.—The exemptions provided in this section shall not

24 affect any concluded judicial or administrative action or
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1 any pending judicial action initiated by the United States

2 prior to enactment of this section.

3 ‘‘(k) LIABILITY FOR ATTORNEY’S FEES FOR CER4 TAIN ACTIONS.—Any person who commences an action in

5 contribution against a person who is not liable by oper6 ation of this section shall be liable to that person for all

7 reasonable costs of defending that action, including all

8 reasonable attorney’s and expert witness fees.

9 ‘‘(l) RELATIONSHIP TO LIABILITY UNDER OTHER

10 LAWS.—Nothing in this section shall affect—

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

12 local statute or regulation promulgated pursuant to

13 any such statute, including any requirements pro14 mulgated by the Administrator under the Solid

15 Waste Disposal Act; or

16 ‘‘(2) the ability of the Administrator to promul17 gate regulations under any other statute, including

18 the Solid Waste Disposal Act.’’.

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

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

21 the following new item:

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

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