I

105TH CONGRESS

1ST SESSION H. R. 943

To amend the Solid Waste Disposal Act to provide authority for States

to control the movement of municipal solid waste to waste management

facilities within the boundaries of the State or within the boundaries

of political subdivisions of the State.

IN THE HOUSE OF REPRESENTATIVES

MARCH 5, 1997

Mr. FRANKS of New Jersey (for himself, Mrs. ROUKEMA, and Mr.

FRELINGHUYSEN) introduced the following bill; which was referred to the

Committee on Commerce

A BILL

To amend the Solid Waste Disposal Act to provide authority

for States to control the movement of municipal solid

waste to waste management facilities within the boundaries of the State or within the boundaries of political

subdivisions of the State.

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 1997’’.
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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 DESIGNATED AS OF MAY 16, 1994.—Any State or politi14 cal subdivision thereof is authorized to exercise flow con15 trol authority to direct the movement of municipal solid

16 waste, and recyclable materials voluntarily relinquished by

17 the owner or generator thereof, to particular waste man18 agement facilities, or facilities for recyclable materials,

19 designated as of May 16, 1994, 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, determined as of

24 May 16, 1994.
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1 ‘‘(2) Such flow control authority is imposed

2 through the adoption or execution of a law, ordi3 nance, regulation, resolution, or other legally binding

4 provision or legally binding official act of the State

5 or political subdivision that—

6 ‘‘(A) was in effect on May 16, 1994,

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

8 an injunction or other order by a court based

9 on a ruling that such law, ordinance, regula10 tion, resolution, or other legally binding provi11 sion or official act violated the Commerce

12 Clause of the United States Constitution, or

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

14 suspension thereof by legislative or official ad15 ministrative action of the State or political sub16 division expressly because of the existence of a

17 court order of the type described in subpara18 graph (B) issued by a court of the same State

19 or Federal judicial circuit.

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

21 has, for one or more of such designated facilities, in

22 accordance with paragraph (2), on or before May

23 16, 1994, either—

24 ‘‘(A) presented eligible bonds for sale, or
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1 ‘‘(B) executed a legally binding contract or

2 agreement that obligates it to deliver a mini3 mum quantity of waste or recyclable materials

4 to one or more such designated waste manage5 ment facilities or facilities for recyclable mate6 rials and that obligates it to pay for that mini7 mum quantity of waste or recyclable materials

8 even if the stated minimum quantity of such

9 waste or recyclable materials is not delivered

10 within a required timeframe.

11 ‘‘(b) WASTE STREAM SUBJECT TO FLOW CON12 TROL.—The flow control authority of subsection (a) shall

13 only permit the exercise of flow control authority to any

14 designated facility of the specific classes or categories of

15 municipal solid waste and voluntarily relinquished recycla16 ble materials to which flow control authority was applica17 ble on May 16, 1994, or immediately before the effective

18 date of an injunction or court order referred to in sub19 section (a)(2)(B) or an action referred to in subsection

20 (a)(2)(C) and—

21 ‘‘(1) in the case of any designated waste man22 agement facility or facility for recyclable materials

23 that was in operation as of May 16, 1994, only if

24 the facility concerned received municipal solid waste

25 or recyclable materials in those classes or categories
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1 within 2 years prior to May 16, 1994, or the effec2 tive date of such injunction or other court order or

3 action,

4 ‘‘(2) in the case of any designated waste man5 agement facility or facility for recyclable materials

6 that was not yet in operation as of May 16, 1994,

7 only of the classes or categories that were clearly

8 identified by the State or political subdivision as of

9 May 16, 1994, to be flow controlled to such facility,

10 and

11 ‘‘(3) only to the extent of the maximum volume

12 authorized by State permit to be disposed at the

13 waste management facility or processed at the facil14 ity for recyclable materials.

15 If specific classes or categories of municipal solid waste

16 or recyclable materials were not clearly identified, para17 graph (2) shall apply only to municipal solid waste gen18 erated by households, including single family residences

19 and multi-family residences of up to 4 units.

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

21 Flow control authority may be exercised pursuant to this

22 section to any facility or facilities only until the later of

23 the following:

24 ‘‘(1) The expiration date of the bond referred to

25 in subsection (a)(3)(A).
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1 ‘‘(2) The expiration date of the contract or

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

3 ‘‘(3) The adjusted expiration date of a bond is4 sued for a qualified environmental retrofit.

5 Such expiration dates shall be determined based upon the

6 terms and provisions of the bond or contract in effect on

7 May 16, 1994. In the case of a contract described in sub8 section (a)(3)(B) that has no specified expiration date, for

9 purposes of paragraph (2) the expiration date shall be

10 treated as the first date that the State or political subdivi11 sion that is a party to the contract can withdraw from

12 its responsibilities under the contract without being in de13 fault thereunder and without substantial penalty or other

14 substantial legal sanction.

15 ‘‘(d) MANDATORY OPT-OUT FOR GENERATORS AND

16 TRANSPORTERS.—Notwithstanding any other provision of

17 this section, no State or political subdivision may require

18 any generator or transporter of municipal solid waste or

19 recyclable materials to transport such waste or materials,

20 or deliver such waste or materials for transportation, to

21 a facility that is listed on the National Priorities List es22 tablished under the Comprehensive Environmental Re23 sponse, Compensation, and Liability Act of 1980 unless

24 such State or political subdivision or the owner or operator

25 of such facility has adequately indemnified the generator
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1 or transporter against all liability under that Act with re2 spect to such waste or materials.

3 ‘‘(e) EFFECT ON EXISTING LAWS.—

4 ‘‘(1) ENVIRONMENTAL LAWS.—Nothing in this

5 section shall be interpreted or construed to have any

6 effect on any other law relating to the protection of

7 human health and the environment, or the manage8 ment of municipal solid waste or recyclable mate9 rials.

10 ‘‘(2) STATE LAW.—Nothing in this section shall

11 be interpreted to authorize a political subdivision to

12 exercise the flow control authority granted by this

13 section in a manner inconsistent with State law.

14 ‘‘(3) OWNERSHIP OF RECYCLABLE MATE15 RIALS.—Nothing in this section shall authorize any

16 State or political subdivision to require any genera17 tor or owner of recyclable materials to transfer any

18 recyclable materials to such State or political sub19 division, nor shall prohibit any persons from selling,

20 purchasing, accepting, conveying, or transporting

21 any recyclable materials, unless the generator or

22 owner voluntarily makes such recyclable materials

23 available to the State or political subdivision and re24 linquishes any rights to, or ownership of, such recy25 clable materials.
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1 ‘‘(f) FACILITIES NOT QUALIFIED FOR FLOW CON2 TROL.—No flow control authority may be exercised under

3 the provisions of this section to direct solid waste or recy4 clable materials to any facility pursuant to an ordinance

5 if—

6 ‘‘(1) the ordinance was determined to be uncon7 stitutional by a State or Federal court in October of

8 1994;

9 ‘‘(2) the facility is located over a sole source aq10 uifer, within 5 miles of a public beach, and within

11 25 miles of a city with a population of more than

12 5,000,000; and

13 ‘‘(3) the facility is not fully permitted and oper14 ating in complete official compliance with all Fed15 eral, State, and local environmental regulations.

16 ‘‘(g) LIMITATION ON REVENUE.—A State or quali17 fied political subdivision may exercise the flow control au18 thority granted in this section only if the State or qualified

19 political subdivision limits the use of any of the revenues

20 it derives from the exercise of such authority for the pay21 ment of one or more 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)(B).

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

4 and maintenance of designated facilities and other

5 integral facilities necessary for the operation and

6 maintenance of such designated facilities that are

7 identified by the same eligible bond.

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 May 16, 1994, and for which the State or political

13 subdivision, after periodic evaluation, beginning no

14 later than one year after the enactment of this sec15 tion, finds that there is no comparable qualified pri16 vate sector service provider available. Such periodic

17 evaluation shall be based on public notice and open

18 competition. The amount and nature of payments

19 described in this paragraph shall be fully disclosed

20 to the public annually.

21 ‘‘(h) INTERIM CONTRACTS.—A lawful, legally binding

22 contract under State law that was entered into during the

23 period—

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

25 effective date of any applicable final court order no
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1 longer subject to judicial review specifically invali2 dating the flow control authority of such State or

3 political subdivision, or

4 ‘‘(2) after such State or political subdivision re5 frained pursuant to legislative or official administra6 tive action from enforcing flow control authority and

7 before the effective date on which it resumes en8 forcement of flow control authority after enactment

9 of this section,

10 shall be fully enforceable in accordance with State law.

11 ‘‘(i) AREAS WITH PRE-1984 FLOW CONTROL.—

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

13 or before January 1, 1984—

14 ‘‘(A) adopted regulations under a State

15 law that required or directed transportation,

16 management, or disposal of municipal solid

17 waste from residential, commercial, institu18 tional, or industrial sources (as defined under

19 State law) to specifically identified waste man20 agement facilities, and applied those regulations

21 to every political subdivision of the State, and

22 ‘‘(B) subjected such waste management fa23 cilities to the jurisdiction of a State public utili24 ties commission,
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1 may exercise flow control authority over municipal

2 solid waste in accordance with the other provisions

3 of this section and may exercise the additional flow

4 control authority described in paragraph (2).

5 ‘‘(2) ADDITIONAL FLOW CONTROL AUTHOR6 ITY.—A State that meets the requirements of para7 graph (1) and any political subdivision thereof may

8 exercise flow control authority over all classes and

9 categories of municipal solid waste that were subject

10 to flow control by such State or political subdivision

11 thereof on May 16, 1994, by directing it from any

12 existing waste management facility that was des13 ignated as of May 16, 1994, or any proposed waste

14 management facility in the State to any other such

15 existing or proposed waste management facility in

16 the State without regard to whether the political

17 subdivision within which the municipal solid waste is

18 generated had designated the particular waste man19 agement facility or had issued a bond or entered into

20 a contract referred to in subsection (a)(3) (A) or

21 (B), respectively.

22 ‘‘(3) DEFINITION.—For purposes of this sub23 section, the term ‘proposed waste management facil24 ity’ means a waste management facility that was

25 specifically identified in a waste management plan
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1 prior to May 16, 1994, and for the construction of

2 which—

3 ‘‘(A) revenue bonds were issued and out4 standing as of May 16, 1994,

5 ‘‘(B) additional financing with revenue

6 bonds was required as of the date of enactment

7 of this section to complete construction, and

8 ‘‘(C) a permit had been issued prior to De9 cember 31, 1994.

10 ‘‘(4) LIMITATION OF AUTHORITY.—The addi11 tional flow control authority granted by paragraph

12 (2) may be exercised to—

13 ‘‘(A) any facility described in paragraph

14 (2) for up to 5 years after the date of enact15 ment of this section, and

16 ‘‘(B) after 5 years after enactment of this

17 section, only to those facilities and only with re18 spect to the classes, categories, and geographic

19 origin of waste directed to such facilities specifi20 cally identified by the State in a public notice

21 issued within 5 years after enactment of this

22 section.
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1 ‘‘(5) 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 ‘‘(j) SAVINGS CLAUSE.—Nothing in this section is in6 tended to have any effect on the authority of any State

7 or political subdivision to franchise, license, or contract for

8 municipal solid waste collection, processing, or disposal.

9 ‘‘(k) APPLICATION OF FLOW CONTROL AUTHOR10 ITY.—The flow control authority granted by this section

11 shall be exercised in a manner that ensures that it is ap12 plied to the public sector if it is applied to the private

13 sector.

14 ‘‘(l) PROMOTION OF RECYCLING.—The Congress

15 finds that, in order to promote recycling, anyone engaged

16 in recycling activities should strive to meet applicable

17 standards for the reuse of recyclable materials.

18 ‘‘(m) EFFECTIVE DATE.—The provisions of this sec19 tion shall take effect with respect to the exercise by any

20 State or political subdivision of flow control authority on

21 or after the date of enactment of this section, and such

22 provisions shall also apply to the exercise by any State

23 or political subdivision of flow control authority before
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1 such date of enactment unless the exercise of such author2 ity has been declared unconstitutional by a final judicial

3 decision that is no longer subject to judicial review.

4 ‘‘(n) DEFINITIONS.—For the purposes of this sec5 tion—

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

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

8 bond issued for a qualified environmental retrofit,

9 the earlier of the final maturity date of such bond

10 or 15 years after the date of issuance of such bonds.

11 ‘‘(2) BOND ISSUED FOR A QUALIFIED ENVIRON12 MENTAL RETROFIT.—The term ‘bond issued for a

13 qualified environmental retrofit’ means a revenue or

14 general obligation bond, the proceeds of which are

15 dedicated to financing the retrofitting of a resource

16 recovery facility or a municipal solid waste inciner17 ator necessary to comply with section 129 of the

18 Clean Air Act, provided that such bond is presented

19 for sale before the expiration date of the bond or

20 contract referred to in subsection (a)(3) (A) and (B)

21 respectively that is applicable to such facility and no

22 later than December 31, 1999.

23 ‘‘(3) DESIGNATE; DESIGNATION, ETC.—The

24 terms ‘designate’, ‘designated’, ‘designating’, and
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1 ‘designation’ mean a requirement of a State or polit2 ical subdivision, and the act of a State or political

3 subdivision, individually or collectively, to require

4 that all or any portion of the municipal solid waste

5 or recyclable materials that is generated within the

6 boundaries of the State or any political subdivision

7 be delivered to one or more waste management fa8 cilities or facilities for recyclable materials identified

9 by the State or a political subdivision thereof. The

10 term ‘designation’ includes bond covenants, official

11 statements, or other official financing documents is12 sued by a political subdivision issuing an eligible

13 bond in which it identified a specific waste manage14 ment facility as being the subject of such bond and

15 the requisite facility for receipt of municipal solid

16 waste or recyclable materials generated within the

17 jurisdictional boundaries of that political subdivision.

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

19 means—

20 ‘‘(A) a revenue bond specifically to finance

21 one or more designated waste management fa22 cilities, facilities for recyclable materials, or spe23 cifically and directly related assets, development

24 or finance costs, as evidenced by the bond docu25 ments; or
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1 ‘‘(B) a general obligation bond, the pro2 ceeds of which were used solely to finance one

3 or more designated waste management facili4 ties, facilities for recyclable materials, or spe5 cifically and directly related assets, development

6 or finance costs, as evidenced by the bond docu7 ments.

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

9 ‘flow control authority’ means the authority to con10 trol the movement of municipal solid waste or volun11 tarily relinquished recyclable materials and direct

12 such solid waste or voluntarily relinquished recycla13 ble materials to one or more designated waste man14 agement facilities or facilities for recyclable mate15 rials within the boundaries of a State or within the

16 boundaries of a political subdivision of a State, as in

17 effect on May 16, 1994.

18 ‘‘(6) MUNICIPAL SOLID WASTE.—The term

19 ‘municipal solid waste’ means any solid waste gen20 erated by the general public or by households, in21 cluding single residences and multifamily residences,

22 and from commercial, institutional, and industrial

23 sources, to the extent such waste is essentially the

24 same as waste normally generated by households or

25 was collected and disposed of with other municipal
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1 solid waste as part of normal municipal solid waste

2 collection services, consisting of paper, wood, yard

3 waste, plastics, leather, rubber, and other combus4 tible materials and noncombustible materials such as

5 metal and glass, including residue remaining after

6 recyclable materials have been separated from waste

7 destined for disposal, and including waste material

8 removed from a septic tank, septage pit, or cesspool

9 (other than from portable toilets), except that the

10 term does not include any of the following:

11 ‘‘(A) Any waste identified or listed as a

12 hazardous waste under section 3001 of this Act

13 or waste regulated under the Toxic Substances

14 Control Act.

15 ‘‘(B) Any waste, including contaminated

16 soil and debris, resulting from—

17 ‘‘(i) response or remedial action taken

18 under the Comprehensive Environmental

19 Response, Compensation, and Liability Act

20 of 1980,

21 ‘‘(ii) any corrective action taken under

22 this Act, or

23 ‘‘(iii) any corrective action taken

24 under any comparable State statute.
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1 ‘‘(C) Medical waste listed in section 11002

2 of this Act.

3 ‘‘(D) Industrial waste generated by manu4 facturing or industrial processes, including

5 waste generated during scrap processing and

6 scrap recycling.

7 ‘‘(E) Recyclable materials.

8 ‘‘(F) Sludge.

9 Such term also includes construction and demolition

10 debris.

11 ‘‘(7) POLITICAL SUBDIVISION.—The term ‘polit12 ical subdivision’ means a city, town, borough, coun13 ty, parish, district, or public service authority or

14 other public body created by or pursuant to State

15 law with authority to present for sale an eligible

16 bond or to exercise flow control authority.

17 ‘‘(8) RECYCLE AND RECYCLING.—The terms

18 ‘recycle’ and ‘recycling’ mean—

19 ‘‘(A) any process which produces any ma20 terial defined as ‘recycled’ under section 1004;

21 and

22 ‘‘(B) any process by which materials are

23 diverted, separated from, or separately man24 aged from materials otherwise destined for dis25 posal as solid waste, by collecting, sorting, or
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1 processing for use as raw materials or feed2 stocks in lieu of, or in addition to, virgin mate3 rials, including petroleum, in the manufacture

4 of usable materials or products.

5 ‘‘(9) RECYCLABLE MATERIALS.—The term ‘re6 cyclable materials’ means any materials that have

7 been separated from waste otherwise destined for

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

9 processing facilities) or that have been managed sep10 arately from waste destined for disposal, for the pur11 pose of recycling, reclamation, composting of organic

12 materials such as food and yard waste, or reuse

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

14 term includes scrap tires to be used in resource re15 covery.

16 ‘‘(10) WASTE MANAGEMENT FACILITY.—The

17 term ‘waste management facility’ means any facility

18 for separating, storing, transferring, treating, proc19 essing, combusting, or disposing of municipal solid

20 waste.’’.

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

22 subtitle D of the Solid Waste Disposal Act is amended

23 by adding the following new item after the item relating

24 to section 4010:
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‘‘Sec. 4011. Congressional authorization of State and local government control

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

Æ