I

107TH CONGRESS

1ST SESSION H. R. 1214

To authorize State and local controls over the flow of municipal solid waste,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 27, 2001

Mr. GREENWOOD (for himself, Mr. DOYLE, Mr. MORAN of Virginia, Mr.

UPTON, Mr. BONIOR, Mr. EHLERS, Mr. DINGELL, Mr. PETERSON of

Pennsylvania, Mr. STUPAK, Mr. HOLDEN, Mr. GILCHREST, Mr. KILDEE,

Ms. RIVERS, and Mr. LEACH) introduced the following bill; which was referred to the Committee on Energy and Commerce

A BILL

To authorize State and local controls over the flow 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 ‘‘Municipal Solid Waste

5 Flow Control Act of 2001’’.
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1 SEC. 2. CONGRESSIONAL AUTHORIZATION OF STATE AND

2 LOCAL MUNICIPAL SOLID WASTE FLOW CON3 TROL.

4 (a) AMENDMENT OF SUBTITLE D.—Subtitle D of the

5 Solid Waste Disposal Act (42 U.S.C. 6941 et seq.) is

6 amended by adding after section 4010 the following new

7 section:

8 ‘‘SEC. 4011. CONGRESSIONAL AUTHORIZATION OF STATE

9 AND LOCAL GOVERNMENT CONTROL OVER

10 MOVEMENT OF MUNICIPAL SOLID WASTE

11 AND RECYCLABLE MATERIALS.

12 ‘‘(a) FLOW CONTROL AUTHORITY FOR FACILITIES

13 PREVIOUSLY DESIGNATED.—Any State or political sub14 division thereof is authorized to exercise flow control au15 thority to direct the movement of municipal solid waste

16 and recyclable materials voluntarily relinquished by the

17 owner or generator thereof to particular waste manage18 ment facilities, or facilities for recyclable materials, des19 ignated as of the suspension date, if each of the following

20 conditions are met:

21 ‘‘(1) The waste and recyclable materials are

22 generated within the jurisdictional boundaries of

23 such State or political subdivision, as such jurisdic24 tion was in effect on the suspension date.

25 ‘‘(2) Such flow control authority is imposed

26 through the adoption or execution of a law, ordi-
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1 nance, regulation, resolution, or other legally binding

2 provision or official act of the State or political sub3 division that—

4 ‘‘(A) was in effect on the suspension date;

5 ‘‘(B) was in effect prior to the issuance of

6 an injunction or other order by a court based

7 on a ruling that such law, ordinance, regula8 tion, resolution, or other legally binding provi9 sion or official act violated the Commerce

10 Clause of the United States Constitution; or

11 ‘‘(C) was in effect immediately prior to

12 suspension or partial suspension thereof by leg13 islative or official administrative action of the

14 State or political subdivision expressly because

15 of the existence of an injunction or other court

16 order of the type described in subparagraph (B)

17 issued by a court of competent jurisdiction.

18 ‘‘(3) The State or a political subdivision thereof

19 has, for one or more of such designated facilities—

20 ‘‘(A) on or before the suspension date, pre21 sented eligible bonds for sale;

22 ‘‘(B) on or before the suspension date,

23 issued a written public declaration or regulation

24 stating that bonds would be issued and held

25 hearings regarding such issuance, and subse-
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1 quently presented eligible bonds for sale within

2 180 days of the declaration or regulation; or

3 ‘‘(C) on or before the suspension date, exe4 cuted a legally binding contract or agreement

5 that—

6 ‘‘(i) was in effect as of the suspension

7 date;

8 ‘‘(ii) obligates the delivery of a min9 imum quantity of municipal solid waste or

10 recyclable materials to one or more such

11 designated waste management facilities or

12 facilities for recyclable materials; and

13 ‘‘(iii) either—

14 ‘‘(I) obligates the State or polit15 ical subdivision to pay for that min16 imum quantity of waste or recyclable

17 materials even if the stated minimum

18 quantity of such waste or recyclable

19 materials is not delivered within a re20 quired timeframe; or

21 ‘‘(II) otherwise imposes liability

22 for damages resulting from such fail23 ure.

24 ‘‘(b) WASTE STREAM SUBJECT TO FLOW CON25 TROL.—Subsection (a) authorizes only the exercise of flow
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1 control authority with respect to the flow to any des2 ignated facility of the specific classes or categories of mu3 nicipal solid waste and voluntarily relinquished recyclable

4 materials to which such flow control authority was applica5 ble on the suspension date and—

6 ‘‘(1) in the case of any designated waste man7 agement facility or facility for recyclable materials

8 that was in operation as of the suspension date, only

9 if the facility concerned received municipal solid

10 waste or recyclable materials in those classes or cat11 egories on or before the suspension date; and

12 ‘‘(2) in the case of any designated waste man13 agement facility or facility for recyclable materials

14 that was not yet in operation as of the suspension

15 date, only of the classes or categories that were

16 clearly identified by the State or political subdivision

17 as of the suspension date to be flow controlled to

18 such facility.

19 ‘‘(c) DURATION OF FLOW CONTROL AUTHORITY.—

20 Flow control authority may be exercised pursuant to this

21 section with respect to any facility or facilities only until

22 the later of the following:

23 ‘‘(1) The final maturity date of the bond re24 ferred to in subsection (a)(3)(A) or (B).
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1 ‘‘(2) The expiration date of the contract or

2 agreement referred to in subsection (a)(3)(C).

3 ‘‘(3) The adjusted expiration date of a bond

4 issued for a qualified environmental retrofit.

5 The dates referred to in paragraphs (1) and (2) shall be

6 determined based upon the terms and provisions of the

7 bond or contract or agreement. In the case of a contract

8 or agreement described in subsection (a)(3)(C) that has

9 no specified expiration date, for purposes of paragraph (2)

10 of this subsection the expiration date shall be the first date

11 that the State or political subdivision that is a party to

12 the contract or agreement can withdraw from its respon13 sibilities under the contract or agreement without being

14 in default thereunder and without substantial penalty or

15 other substantial legal sanction. The expiration date of a

16 contract or agreement referred to in subsection (a)(3)(C)

17 shall be deemed to occur at the end of the period of an

18 extension exercised during the term of the original con19 tract or agreement, if the duration of that extension was

20 specified by such contract or agreement as in effect on

21 the suspension date.

22 ‘‘(d) INDEMNIFICATION FOR CERTAIN TRANSPOR23 TATION.—Notwithstanding any other provision of this sec24 tion, no State or political subdivision may require any per25 son to transport municipal solid waste or recyclable mate-
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1 rials, or to deliver such waste or materials for transpor2 tation, to any active portion of a municipal solid waste

3 landfill unit if contamination of such active portion is a

4 basis for listing of the municipal solid waste landfill unit

5 on the National Priorities List established under the Com6 prehensive Environmental Response, Compensation, and

7 Liability Act of 1980 unless such State or political subdivi8 sion or the owner or operator of such landfill unit has in9 demnified that person against all liability under that Act

10 with respect to such waste or materials.

11 ‘‘(e) OWNERSHIP OF RECYCLABLE MATERIALS.—

12 Nothing in this section shall authorize any State or polit13 ical subdivision to require any person to sell or transfer

14 any recyclable materials to such State or political subdivi15 sion.

16 ‘‘(f) LIMITATION ON REVENUE.—A State or political

17 subdivision may exercise the flow control authority grant18 ed in this section only if the State or political subdivision

19 limits the use of any of the revenues it derives from the

20 exercise of such authority to the payment of one or more

21 of the following:

22 ‘‘(1) Principal and interest on any eligible bond.

23 ‘‘(2) Principal and interest on a bond issued for

24 a qualified environmental retrofit.
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1 ‘‘(3) Payments required by the terms of a con2 tract referred to in subsection (a)(3)(C).

3 ‘‘(4) Other expenses necessary for the operation

4 and maintenance and closure of designated facilities

5 and other integral facilities identified by the bond

6 necessary for the operation and maintenance of such

7 designated facilities.

8 ‘‘(5) To the extent not covered by paragraphs

9 (1) through (4), expenses for recycling, composting,

10 and household hazardous waste activities in which

11 the State or political subdivision was engaged before

12 the suspension date. The amount and nature of pay13 ments described in this paragraph shall be fully dis14 closed to the public annually.

15 ‘‘(g) INTERIM CONTRACTS.—A contract of the type

16 referred to in subsection (a)(3)(C) that was entered into

17 during the period—

18 ‘‘(1) before November 10, 1995, and after the

19 effective date of any applicable final court order no

20 longer subject to judicial review specifically invali21 dating the flow control authority of the applicable

22 State or political subdivision; or

23 ‘‘(2) after the applicable State or political sub24 division refrained pursuant to legislative or official

25 administrative action from enforcing flow control au-
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1 thority expressly because of the existence of a court

2 order of the type described in subsection (a)(2)(B)

3 issued by a court of the same State or the Federal

4 judicial circuit within which such State is located

5 and before the effective date on which it resumes en6 forcement of flow control authority after enactment

7 of this section,

8 shall be fully enforceable in accordance with State law.

9 ‘‘(h) AREAS WITH PRE-1984 FLOW CONTROL.—

10 ‘‘(1) GENERAL AUTHORITY.—A State that on

11 or before January 1, 1984—

12 ‘‘(A) adopted regulations under a State

13 law that required or directed transportation,

14 management, or disposal of municipal solid

15 waste from residential, commercial, institu16 tional, or industrial sources (as defined under

17 State law) to specifically identified waste man18 agement facilities, and applied those regulations

19 to every political subdivision of the State; and

20 ‘‘(B) subjected such waste management fa21 cilities to the jurisdiction of a State public utili22 ties commission,

23 may exercise flow control authority over municipal

24 solid waste in accordance with the other provisions

25 of this section.
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1 ‘‘(2) DURATION OF AUTHORITY.—The authority

2 to direct municipal solid waste to any facility pursu3 ant to this subsection shall terminate with regard to

4 such facility in accordance with subsection (c).

5 ‘‘(i) EFFECT ON AUTHORITY OF STATES AND POLIT6 ICAL SUBDIVISIONS.—Nothing in this section shall be

7 interpreted—

8 ‘‘(1) to authorize a political subdivision to exer9 cise the flow control authority granted by this sec10 tion in a manner inconsistent with State law;

11 ‘‘(2) to permit the exercise of flow control au12 thority over municipal solid waste and recyclable ma13 terials to an extent greater than the maximum vol14 ume authorized by State permit to be disposed at

15 the waste management facility or processed at the

16 facility for recyclable materials;

17 ‘‘(3) to limit the authority of any State or polit18 ical subdivision to place a condition on a franchise,

19 license, or contract for municipal solid waste or recy20 clable materials collection, processing, or disposal; or

21 ‘‘(4) to impair in any manner the authority of

22 any State or political subdivision to adopt or enforce

23 any law, ordinance, regulation, or other legally bind24 ing provision or official act relating to the movement

25 or processing of municipal solid waste or recyclable
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1 materials which does not constitute discrimination

2 against or an undue burden upon interstate com3 merce.

4 ‘‘(j) EFFECTIVE DATE.—The provisions of this sec5 tion shall take effect with respect to the exercise by any

6 State or political subdivision of flow control authority on

7 or after the date of enactment of this section. Such provi8 sions, other than subsection (d), shall also apply to the

9 exercise by any State or political subdivision of flow con10 trol authority before such date of enactment, except that

11 nothing in this section shall affect any final judgment that

12 is no longer subject to judicial review as of the date of

13 enactment of this section insofar as such judgment award14 ed damages based on a finding that the exercise of flow

15 control authority was unconstitutional.

16 ‘‘(k) STATE SOLID WASTE DISTRICT AUTHORITY.—

17 In addition to any other flow control authority authorized

18 under this section a solid waste district or a political sub19 division of a State may exercise flow control authority for

20 a period of 20 years after the enactment of this section,

21 for municipal solid waste and for recyclable materials that

22 is generated within its jurisdiction if—

23 ‘‘(1) the solid waste district, or a political sub24 division within such district, is required through a

25 recyclable materials recycling program to meet a
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1 municipal solid waste reduction goal of at least 30

2 percent by the year 2005, and uses revenues gen3 erated by the exercise of flow control authority

4 strictly to implement programs to manage municipal

5 solid waste and recyclable materials, other than in6 cineration programs; and

7 ‘‘(2) prior to the suspension date, the solid

8 waste district, or a political subdivision within such

9 district—

10 ‘‘(A) was responsible under State law for

11 the management and regulation of the storage,

12 collection, processing, and disposal of solid

13 wastes within its jurisdiction;

14 ‘‘(B) was authorized by State statute (en15 acted prior to January 1, 1992) to exercise flow

16 control authority, and subsequently adopted or

17 sought to exercise the authority through a law,

18 ordinance, regulation, regulatory proceeding,

19 contract, franchise, or other legally binding pro20 vision; and

21 ‘‘(C) was required by State statute (en22 acted prior to January 1, 1992) to develop and

23 implement a solid waste management plan con24 sistent with the State solid waste management

25 plan, and the district solid waste management
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1 plan was approved by the appropriate State

2 agency prior to September 15, 1994.

3 ‘‘(l) SPECIAL RULE FOR CERTAIN CONSORTIA.—For

4 purposes of this section, if—

5 ‘‘(1) two or more political subdivisions are

6 members of a consortium of political subdivisions es7 tablished to exercise flow control authority with re8 spect to any waste management facility or facility

9 for recyclable materials;

10 ‘‘(2) all of such members have either presented

11 eligible bonds for sale or executed contracts with the

12 owner or operator of the facility requiring use of

13 such facility;

14 ‘‘(3) the facility was designated as of the sus15 pension date by at least one of such members;

16 ‘‘(4) at least one of such members has met the

17 requirements of subsection (a)(2) with respect to

18 such facility; and

19 ‘‘(5) at least one of such members has pre20 sented eligible bonds for sale, or entered into a con21 tract or agreement referred to in subsection

22 (a)(3)(C), on or before the suspension date, for such

23 facility,

24 the facility shall be treated as having been designated, as

25 of May 16, 1994, by all members of such consortium, and
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1 all such members shall be treated as meeting the require2 ments of subsection (a)(2) and (3) with respect to such

3 facility.

4 ‘‘(m) RECOVERY OF DAMAGES.—

5 ‘‘(1) PROHIBITION.—No damages, interest on

6 damages, costs, or attorneys’ fees may be recovered

7 in any claim against any State or local government,

8 or official or employee thereof, based on the exercise

9 of flow control authority on or before May 16, 1994.

10 ‘‘(2) APPLICABILITY.—Paragraph (1) shall

11 apply to cases commenced on or after the date of en12 actment of the Local Authority for Municipal Solid

13 Waste Flow Control Act of 2001, and shall apply to

14 cases commenced before such date except cases in

15 which a final judgment no longer subject to judicial

16 review has been rendered.

17 ‘‘(n) DEFINITIONS.—For the purposes of this

18 section—

19 ‘‘(1) ADJUSTED EXPIRATION DATE.—The term

20 ‘adjusted expiration date’ means, with respect to a

21 bond issued for a qualified environmental retrofit,

22 the earlier of the final maturity date of such bond

23 or 15 years after the date of issuance of such bond.

24 ‘‘(2) BOND ISSUED FOR A QUALIFIED ENVIRON25 MENTAL RETROFIT.—The term ‘bond issued for a
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1 qualified environmental retrofit’ means a bond de2 scribed in paragraph (4)(A) or (B), the proceeds of

3 which are dedicated to financing the retrofitting of

4 a resource recovery facility or a municipal solid

5 waste incinerator necessary to comply with section

6 129 of the Clean Air Act, provided that such bond

7 is presented for sale before the expiration date of

8 the bond or contract referred to in subsection

9 (a)(3)(A), (B), or (C) that is applicable to such fa10 cility and no later than December 31, 1999.

11 ‘‘(3) DESIGNATED.—The term ‘designated’

12 means identified by a State or political subdivision

13 for receipt of all or any portion of the municipal

14 solid waste or recyclable materials that is generated

15 within the boundaries of the State or political sub16 division. Such designation includes designation

17 through—

18 ‘‘(A) bond covenants, official statements,

19 or other official financing documents issued by

20 a State or political subdivision issuing an eligi21 ble bond; and

22 ‘‘(B) the execution of a contract of the

23 type described in subsection (a)(3)(C),

24 in which one or more specific waste management fa25 cilities are identified as the requisite facility or facili-
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1 ties for receipt of municipal solid waste or recyclable

2 materials generated within the jurisdictional bound3 aries of that State or political subdivision.

4 ‘‘(4) ELIGIBLE BOND.—The term ‘eligible bond’

5 means—

6 ‘‘(A) a revenue bond or similar instrument

7 of indebtedness pledging payment to the bond8 holder or holder of the debt of identified reve9 nues; or

10 ‘‘(B) a general obligation bond,

11 the proceeds of which are used to finance one or

12 more designated waste management facilities, facili13 ties for recyclable materials, or specifically and di14 rectly related assets, development costs, or finance

15 costs, as evidenced by the bond documents.

16 ‘‘(5) FLOW CONTROL AUTHORITY.—The term

17 ‘flow control authority’ means the regulatory author18 ity to control the movement of municipal solid waste

19 or voluntarily relinquished recyclable materials and

20 direct such solid waste or recyclable materials to one

21 or more designated waste management facilities or

22 facilities for recyclable materials within the bound23 aries of a State or political subdivision.
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1 ‘‘(6) MUNICIPAL SOLID WASTE.—The term

2 ‘municipal solid waste’ has the meaning given that

3 term in section 4011, except that such term—

4 ‘‘(A) includes waste material removed from

5 a septic tank, septage pit, or cesspool (other

6 than from portable toilets); and

7 ‘‘(B) does not include—

8 ‘‘(i) any substance the treatment and

9 disposal of which is regulated under the

10 Toxic Substances Control Act;

11 ‘‘(ii) waste generated during scrap

12 processing and scrap recycling; or

13 ‘‘(iii) construction and demolition de14 bris, except where the State or political

15 subdivision had on or before January 1,

16 1989, issued eligible bonds secured pursu17 ant to State or local law requiring the de18 livery of construction and demolition debris

19 to a waste management facility designated

20 by such State or political subdivision.

21 ‘‘(7) POLITICAL SUBDIVISION.—The term ‘polit22 ical subdivision’ means a city, town, borough, coun23 ty, parish, district, or public service authority or

24 other public body created by or pursuant to State
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1 law with authority to present for sale an eligible

2 bond or to exercise flow control authority.

3 ‘‘(8) RECYCLABLE MATERIALS.—The term ‘re4 cyclable materials’ means any materials that have

5 been separated from waste otherwise destined for

6 disposal (either at the source of the waste or at

7 processing facilities) or that have been managed sep8 arately from waste destined for disposal, for the pur9 pose of recycling, reclamation, composting of organic

10 materials such as food and yard waste, or reuse

11 (other than for the purpose of incineration). Such

12 term includes scrap tires to be used in resource re13 covery.

14 ‘‘(9) SUSPENSION DATE.—The term ‘suspension

15 date’ means, with respect to a State or political

16 subdivision—

17 ‘‘(A) May 16, 1994;

18 ‘‘(B) the date of an injunction or other

19 court order described in subsection (a)(2)(B)

20 that was issued with respect to that State or

21 political subdivision; or

22 ‘‘(C) the date of a suspension or partial

23 suspension described in subsection (a)(2)(C)

24 with respect to that State or political subdivi25 sion.
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1 ‘‘(10) WASTE MANAGEMENT FACILITY.—The

2 term ‘waste management facility’ means any facility

3 for separating, storing, transferring, treating, proc4 essing, combusting, or disposing of municipal solid

5 waste.’’.

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

7 subtitle D of the Solid Waste Disposal Act is amended

8 by adding the following new item after the item relating

9 to section 4010:

‘‘Sec. 4011. Congressional authorization of State and local government control

over movement of municipal solid waste and recyclable materials.’’.

Æ