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 bound-
aries of the State or within the boundaries of political
subdivisions of the State.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Municipal Solid Waste
Flow Control Act of 1997’’.
SEC. 2. CONGRESSIONAL AUTHORIZATION OF STATE AND
LOCAL MUNICIPAL SOLID WASTE FLOW CON-
TROL.
(a) AMENDMENT OF SUBTITLE D.—Subtitle D of the
Solid Waste Disposal Act (42 U.S.C. 6941 et seq.) is
amended by adding after section 4010 the following new
section:
‘‘SEC. 4011. CONGRESSIONAL AUTHORIZATION OF STATE
AND LOCAL GOVERNMENT CONTROL OVER
MOVEMENT OF MUNICIPAL SOLID WASTE
AND RECYCLABLE MATERIALS.
‘‘(a) FLOW CONTROL AUTHORITY FOR FACILITIES
DESIGNATED AS OF MAY 16, 1994.—Any State or politi-
cal subdivision thereof is authorized to exercise flow con-
trol authority to direct the movement of municipal solid
waste, and recyclable materials voluntarily relinquished by
the owner or generator thereof, to particular waste man-
agement facilities, or facilities for recyclable materials,
designated as of May 16, 1994, if each of the following
conditions are met:
‘‘(1) The waste and recyclable materials are
generated within the jurisdictional boundaries of
such State or political subdivision, determined as of
May 16, 1994.
‘‘(2) Such flow control authority is imposed
through the adoption or execution of a law, ordi-
nance, regulation, resolution, or other legally binding
provision or legally binding official act of the State
or political subdivision that—
‘‘(A) was in effect on May 16, 1994,
‘‘(B) was in effect prior to the issuance of
an injunction or other order by a court based
on a ruling that such law, ordinance, regula-
tion, resolution, or other legally binding provi-
sion or official act violated the Commerce
Clause of the United States Constitution, or
‘‘(C) was in effect immediately prior to
suspension thereof by legislative or official ad-
ministrative action of the State or political sub-
division expressly because of the existence of a
court order of the type described in subpara-
graph (B) issued by a court of the same State
or Federal judicial circuit.
‘‘(3) The State or a political subdivision thereof
has, for one or more of such designated facilities, in
accordance with paragraph (2), on or before May
16, 1994, either—
‘‘(A) presented eligible bonds for sale, or
‘‘(B) executed a legally binding contract or
agreement that obligates it to deliver a mini-
mum quantity of waste or recyclable materials
to one or more such designated waste manage-
ment facilities or facilities for recyclable mate-
rials and that obligates it to pay for that mini-
mum quantity of waste or recyclable materials
even if the stated minimum quantity of such
waste or recyclable materials is not delivered
within a required timeframe.
‘‘(b) WASTE STREAM SUBJECT
TO FLOW CON-
TROL.—The flow control authority of subsection (a) shall
only permit the exercise of flow control authority to any
designated facility of the specific classes or categories of
municipal solid waste and voluntarily relinquished recycla-
ble materials to which flow control authority was applica-
ble on May 16, 1994, or immediately before the effective
date of an injunction or court order referred to in sub-
section (a)(2)(B) or an action referred to in subsection
(a)(2)(C) and—
‘‘(1) in the case of any designated waste man-
agement facility or facility for recyclable materials
that was in operation as of May 16, 1994, only if
the facility concerned received municipal solid waste
or recyclable materials in those classes or categories
within 2 years prior to May 16, 1994, or the effec-
tive date of such injunction or other court order or
action,
‘‘(2) in the case of any designated waste man-
agement facility or facility for recyclable materials
that was not yet in operation as of May 16, 1994,
only of the classes or categories that were clearly
identified by the State or political subdivision as of
May 16, 1994, to be flow controlled to such facility,
and
‘‘(3) only to the extent of the maximum volume
authorized by State permit to be disposed at the
waste management facility or processed at the facil-
ity for recyclable materials.
If specific classes or categories of municipal solid waste
or recyclable materials were not clearly identified, para-
graph (2) shall apply only to municipal solid waste gen-
erated by households, including single family residences
and multi-family residences of up to 4 units.
‘‘(c) DURATION OF FLOW CONTROL AUTHORITY.—
Flow control authority may be exercised pursuant to this
section to any facility or facilities only until the later of
the following:
‘‘(1) The expiration date of the bond referred to
in subsection (a)(3)(A).
‘‘(2) The expiration date of the contract or
agreement referred to in subsection (a)(3)(B).
‘‘(3) The adjusted expiration date of a bond is-
sued for a qualified environmental retrofit.
Such expiration dates shall be determined based upon the
terms and provisions of the bond or contract in effect on
May 16, 1994. In the case of a contract described in sub-
section (a)(3)(B) that has no specified expiration date, for
purposes of paragraph (2) the expiration date shall be
treated as the first date that the State or political subdivi-
sion that is a party to the contract can withdraw from
its responsibilities under the contract without being in de-
fault thereunder and without substantial penalty or other
substantial legal sanction.
‘‘(d) MANDATORY OPT-OUT FOR GENERATORS AND
TRANSPORTERS.—Notwithstanding any other provision of
this section, no State or political subdivision may require
any generator or transporter of municipal solid waste or
recyclable materials to transport such waste or materials,
or deliver such waste or materials for transportation, to
a facility that is listed on the National Priorities List es-
tablished under the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980 unless
such State or political subdivision or the owner or operator
of such facility has adequately indemnified the generator
or transporter against all liability under that Act with re-
spect to such waste or materials.
‘‘(e) EFFECT ON EXISTING LAWS.—
‘‘(1) ENVIRONMENTAL LAWS.—Nothing in this
section shall be interpreted or construed to have any
effect on any other law relating to the protection of
human health and the environment, or the manage-
ment of municipal solid waste or recyclable mate-
rials.
‘‘(2) STATE LAW.—Nothing in this section shall
be interpreted to authorize a political subdivision to
exercise the flow control authority granted by this
section in a manner inconsistent with State law.
‘‘(3) OWNERSHIP
OF
RECYCLABLE
MATE-
RIALS.—Nothing in this section shall authorize any
State or political subdivision to require any genera-
tor or owner of recyclable materials to transfer any
recyclable materials to such State or political sub-
division, nor shall prohibit any persons from selling,
purchasing, accepting, conveying, or transporting
any recyclable materials, unless the generator or
owner voluntarily makes such recyclable materials
available to the State or political subdivision and re-
linquishes any rights to, or ownership of, such recy-
clable materials.
‘‘(f) FACILITIES NOT QUALIFIED FOR FLOW CON-
TROL.—No flow control authority may be exercised under
the provisions of this section to direct solid waste or recy-
clable materials to any facility pursuant to an ordinance
if—
‘‘(1) the ordinance was determined to be uncon-
stitutional by a State or Federal court in October of
1994;
‘‘(2) the facility is located over a sole source aq-
uifer, within 5 miles of a public beach, and within
25 miles of a city with a population of more than
5,000,000; and
‘‘(3) the facility is not fully permitted and oper-
ating in complete official compliance with all Fed-
eral, State, and local environmental regulations.
‘‘(g) LIMITATION ON REVENUE.—A State or quali-
fied political subdivision may exercise the flow control au-
thority granted in this section only if the State or qualified
political subdivision limits the use of any of the revenues
it derives from the exercise of such authority for the pay-
ment of one or more of the following:
‘‘(1) Principal and interest on any eligible bond.
‘‘(2) Principal and interest on a bond issued for
a qualified environmental retrofit.
‘‘(3) Payments required by the terms of a con-
tract referred to in subsection (a)(3)(B).
‘‘(4) Other expenses necessary for the operation
and maintenance of designated facilities and other
integral facilities necessary for the operation and
maintenance of such designated facilities that are
identified by the same eligible bond.
‘‘(5) To the extent not covered by paragraphs
(1) through (4), expenses for recycling, composting,
and household hazardous waste activities in which
the State or political subdivision was engaged before
May 16, 1994, and for which the State or political
subdivision, after periodic evaluation, beginning no
later than one year after the enactment of this sec-
tion, finds that there is no comparable qualified pri-
vate sector service provider available. Such periodic
evaluation shall be based on public notice and open
competition. The amount and nature of payments
described in this paragraph shall be fully disclosed
to the public annually.
‘‘(h) INTERIM CONTRACTS.—A lawful, legally binding
contract under State law that was entered into during the
period—
‘‘(1) before November 10, 1995, and after the
effective date of any applicable final court order no
longer subject to judicial review specifically invali-
dating the flow control authority of such State or
political subdivision, or
‘‘(2) after such State or political subdivision re-
frained pursuant to legislative or official administra-
tive action from enforcing flow control authority and
before the effective date on which it resumes en-
forcement of flow control authority after enactment
of this section,
shall be fully enforceable in accordance with State law.
‘‘(i) AREAS WITH PRE-1984 FLOW CONTROL.—
‘‘(1) GENERAL AUTHORITY.—A State that on
or before January 1, 1984—
‘‘(A) adopted regulations under a State
law that required or directed transportation,
management, or disposal of municipal solid
waste from residential, commercial, institu-
tional, or industrial sources (as defined under
State law) to specifically identified waste man-
agement facilities, and applied those regulations
to every political subdivision of the State, and
‘‘(B) subjected such waste management fa-
cilities to the jurisdiction of a State public utili-
ties commission,
may exercise flow control authority over municipal
solid waste in accordance with the other provisions
of this section and may exercise the additional flow
control authority described in paragraph (2).
‘‘(2) ADDITIONAL
FLOW
CONTROL
AUTHOR-
ITY.—A State that meets the requirements of para-
graph (1) and any political subdivision thereof may
exercise flow control authority over all classes and
categories of municipal solid waste that were subject
to flow control by such State or political subdivision
thereof on May 16, 1994, by directing it from any
existing waste management facility that was des-
ignated as of May 16, 1994, or any proposed waste
management facility in the State to any other such
existing or proposed waste management facility in
the State without regard to whether the political
subdivision within which the municipal solid waste is
generated had designated the particular waste man-
agement facility or had issued a bond or entered into
a contract referred to in subsection (a)(3) (A) or
(B), respectively.
‘‘(3) DEFINITION.—For purposes of this sub-
section, the term ‘proposed waste management facil-
ity’ means a waste management facility that was
specifically identified in a waste management plan
prior to May 16, 1994, and for the construction of
which—
‘‘(A) revenue bonds were issued and out-
standing as of May 16, 1994,
‘‘(B) additional financing with revenue
bonds was required as of the date of enactment
of this section to complete construction, and
‘‘(C) a permit had been issued prior to De-
cember 31, 1994.
‘‘(4) LIMITATION
OF
AUTHORITY.—The addi-
tional flow control authority granted by paragraph
(2) may be exercised to—
‘‘(A) any facility described in paragraph
(2) for up to 5 years after the date of enact-
ment of this section, and
‘‘(B) after 5 years after enactment of this
section, only to those facilities and only with re-
spect to the classes, categories, and geographic
origin of waste directed to such facilities specifi-
cally identified by the State in a public notice
issued within 5 years after enactment of this
section.
‘‘(5) DURATION OF AUTHORITY.—The authority
to direct municipal solid waste to any facility pursu-
ant to this subsection shall terminate with regard to
such facility in accordance with subsection (c).
‘‘(j) SAVINGS CLAUSE.—Nothing in this section is in-
tended to have any effect on the authority of any State
or political subdivision to franchise, license, or contract for
municipal solid waste collection, processing, or disposal.
‘‘(k) APPLICATION
OF FLOW CONTROL AUTHOR-
ITY.—The flow control authority granted by this section
shall be exercised in a manner that ensures that it is ap-
plied to the public sector if it is applied to the private
sector.
‘‘(l) PROMOTION
OF RECYCLING.—The Congress
finds that, in order to promote recycling, anyone engaged
in recycling activities should strive to meet applicable
standards for the reuse of recyclable materials.
‘‘(m) EFFECTIVE DATE.—The provisions of this sec-
tion shall take effect with respect to the exercise by any
State or political subdivision of flow control authority on
or after the date of enactment of this section, and such
provisions shall also apply to the exercise by any State
or political subdivision of flow control authority before
such date of enactment unless the exercise of such author-
ity has been declared unconstitutional by a final judicial
decision that is no longer subject to judicial review.
‘‘(n) DEFINITIONS.—For the purposes of this sec-
tion—
‘‘(1) ADJUSTED EXPIRATION DATE.—The term
‘adjusted expiration date’ means, with respect to a
bond issued for a qualified environmental retrofit,
the earlier of the final maturity date of such bond
or 15 years after the date of issuance of such bonds.
‘‘(2) BOND ISSUED FOR A QUALIFIED ENVIRON-
MENTAL RETROFIT.—The term ‘bond issued for a
qualified environmental retrofit’ means a revenue or
general obligation bond, the proceeds of which are
dedicated to financing the retrofitting of a resource
recovery facility or a municipal solid waste inciner-
ator necessary to comply with section 129 of the
Clean Air Act, provided that such bond is presented
for sale before the expiration date of the bond or
contract referred to in subsection (a)(3) (A) and (B)
respectively that is applicable to such facility and no
later than December 31, 1999.
‘‘(3) DESIGNATE; 
DESIGNATION, 
ETC.—The
terms ‘designate’, ‘designated’, ‘designating’, and
‘designation’ mean a requirement of a State or polit-
ical subdivision, and the act of a State or political
subdivision, individually or collectively, to require
that all or any portion of the municipal solid waste
or recyclable materials that is generated within the
boundaries of the State or any political subdivision
be delivered to one or more waste management fa-
cilities or facilities for recyclable materials identified
by the State or a political subdivision thereof. The
term ‘designation’ includes bond covenants, official
statements, or other official financing documents is-
sued by a political subdivision issuing an eligible
bond in which it identified a specific waste manage-
ment facility as being the subject of such bond and
the requisite facility for receipt of municipal solid
waste or recyclable materials generated within the
jurisdictional boundaries of that political subdivision.
‘‘(4) ELIGIBLE BOND.—The term ‘eligible bond’
means—
‘‘(A) a revenue bond specifically to finance
one or more designated waste management fa-
cilities, facilities for recyclable materials, or spe-
cifically and directly related assets, development
or finance costs, as evidenced by the bond docu-
ments; or
‘‘(B) a general obligation bond, the pro-
ceeds of which were used solely to finance one
or more designated waste management facili-
ties, facilities for recyclable materials, or spe-
cifically and directly related assets, development
or finance costs, as evidenced by the bond docu-
ments.
‘‘(5) FLOW CONTROL AUTHORITY.—The term
‘flow control authority’ means the authority to con-
trol the movement of municipal solid waste or volun-
tarily relinquished recyclable materials and direct
such solid waste or voluntarily relinquished recycla-
ble materials to one or more designated waste man-
agement facilities or facilities for recyclable mate-
rials within the boundaries of a State or within the
boundaries of a political subdivision of a State, as in
effect on May 16, 1994.
‘‘(6) MUNICIPAL
SOLID
WASTE.—The term
‘municipal solid waste’ means any solid waste gen-
erated by the general public or by households, in-
cluding single residences and multifamily residences,
and from commercial, institutional, and industrial
sources, to the extent such waste is essentially the
same as waste normally generated by households or
was collected and disposed of with other municipal
solid waste as part of normal municipal solid waste
collection services, consisting of paper, wood, yard
waste, plastics, leather, rubber, and other combus-
tible materials and noncombustible materials such as
metal and glass, including residue remaining after
recyclable materials have been separated from waste
destined for disposal, and including waste material
removed from a septic tank, septage pit, or cesspool
(other than from portable toilets), except that the
term does not include any of the following:
‘‘(A) Any waste identified or listed as a
hazardous waste under section 3001 of this Act
or waste regulated under the Toxic Substances
Control Act.
‘‘(B) Any waste, including contaminated
soil and debris, resulting from—
‘‘(i) response or remedial action taken
under the Comprehensive Environmental
Response, Compensation, and Liability Act
of 1980,
‘‘(ii) any corrective action taken under
this Act, or
‘‘(iii) any corrective action taken
under any comparable State statute.
‘‘(C) Medical waste listed in section 11002
of this Act.
‘‘(D) Industrial waste generated by manu-
facturing or industrial processes, including
waste generated during scrap processing and
scrap recycling.
‘‘(E) Recyclable materials.
‘‘(F) Sludge.
Such term also includes construction and demolition
debris.
‘‘(7) POLITICAL SUBDIVISION.—The term ‘polit-
ical subdivision’ means a city, town, borough, coun-
ty, parish, district, or public service authority or
other public body created by or pursuant to State
law with authority to present for sale an eligible
bond or to exercise flow control authority.
‘‘(8) RECYCLE
AND
RECYCLING.—The terms
‘recycle’ and ‘recycling’ mean—
‘‘(A) any process which produces any ma-
terial defined as ‘recycled’ under section 1004;
and
‘‘(B) any process by which materials are
diverted, separated from, or separately man-
aged from materials otherwise destined for dis-
posal as solid waste, by collecting, sorting, or
processing for use as raw materials or feed-
stocks in lieu of, or in addition to, virgin mate-
rials, including petroleum, in the manufacture
of usable materials or products.
‘‘(9) RECYCLABLE MATERIALS.—The term ‘re-
cyclable materials’ means any materials that have
been separated from waste otherwise destined for
disposal (either at the source of the waste or at
processing facilities) or that have been managed sep-
arately from waste destined for disposal, for the pur-
pose of recycling, reclamation, composting of organic
materials such as food and yard waste, or reuse
(other than for the purpose of incineration). Such
term includes scrap tires to be used in resource re-
covery.
‘‘(10) WASTE
MANAGEMENT
FACILITY.—The
term ‘waste management facility’ means any facility
for separating, storing, transferring, treating, proc-
essing, combusting, or disposing of municipal solid
waste.’’.
(b) TABLE OF CONTENTS.—The table of contents for
subtitle D of the Solid Waste Disposal Act is amended
by adding the following new item after the item relating
to section 4010:
‘‘Sec. 4011. Congressional authorization of State and local government control
over movement of municipal solid waste and recyclable mate-
rials.’’.
Æ