I
104TH CONGRESS
1ST SESSION
H. R. 2210
To amend the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 to clarify liability for certain recycling transactions.
IN THE HOUSE OF REPRESENTATIVES
AUGUST 4, 1995
Mr. EMERSON introduced the following bill; which was referred to the Com-
mittee 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, Com-
pensation, and Liability Act of 1980 to clarify liability
for certain recycling transactions.
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 ‘‘Superfund Recycling
Act of 1995’’.
SEC. 2. PURPOSES.
The purposes of this Act are—
(1) to promote reuse and recycling of recyclable
materials in furtherance of the goals of waste mini-
mization and natural resource conversation while
protecting human health and the environment;
(2) to level the playing field between the use of
virgin materials and recycled materials; and
(3) to remove inappropriate and unnecessary
disincentives and impediments to recycling.
SEC. 3. CLARIFICATION OF LIABILITY UNDER CERCLA FOR
RECYCLING TRANSACTIONS.
(a) CLARIFICATION OF LIABILITY.—Title I of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.) is
amended by adding at the end the following new section:
‘‘SEC. 127. RECYCLING TRANSACTIONS.
‘‘(a) LIABILITY CLARIFICATION.—As provided in
subsections (b) and (c), a person who arranged for the
recycling of recyclable material shall not be liable under
section 107(a)(3) or 107(a)(4).
‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur-
poses of this section, the term ‘recyclable material’ means
spent electric lamps, including fluorescent and other types
of lamps, and fossil fuel combustion materials described
in section 3001(b)(3)(A)(i) of the Solid Waste Disposal
Act when those lamps and materials are recycled, bene-
ficially used, or used as a raw material for manufacturing
another product. The Administrator may add other mate-
rials to this definition by regulation.
‘‘(c) TRANSACTIONS INVOLVING RECYCLABLE MATE-
RIAL.—(1) Transactions involving recyclable material
shall constitute arranging for recycling if the person who
arranged for the transaction (by selling recyclable material
or otherwise arranging for the recycling of recyclable ma-
terial) can demonstrate by a preponderance of the evi-
dence that the following criteria, where applicable, were
met at the time of the transaction:
‘‘(A) A market existed for the recyclable mate-
rial.
‘‘(B) A substantial portion of the recyclable ma-
terial was made available for use as a feedstock for
the manufacture of a new salable product.
‘‘(C) The recyclable material could have been a
replacement or substitute for a virgin raw material,
or the product made from the recyclable material
could have been a replacement or substitute for a
product made, in whole or in part, from a virgin raw
material.
‘‘(D) For transactions occurring 90 days or
more after the date of the enactment of this section,
the person exercised reasonable care to determine
that the facility where the recyclable material would
be handled, processed, reclaimed, or otherwise man-
aged by another person (hereinafter in this section
referred to as a ‘consuming facility’) was in compli-
ance with substantive (not procedural or administra-
tive) provisions of any Federal, State, or local envi-
ronmental law or regulation, or compliance order or
decree issued pursuant thereto, applicable to the
handling, processing, reclamation, storage, or other
management activities associated with the recyclable
material. For purposes of this subparagraph, the de-
termination of whether reasonable care was exer-
cised shall be made using criteria that include (i)
the ability of the person to detect the nature of the
consuming facility’s operations concerning its han-
dling, processing, reclamation, storage, or other
management activities associated with the recyclable
material; and (ii) the result of inquiries made to the
appropriate Federal, State, or local environmental
agency (or agencies) regarding the consuming facili-
ty’s past and current compliance with substantive
(not procedural or administrative) provisions of any
Federal, State, or local environmental law or regula-
tion, or compliance order or decree issued pursuant
thereto, applicable to the handling, processing, rec-
lamation, storage, or other management activities
associated with the recyclable material.
‘‘(2) For the purposes of this subsection, a require-
ment to obtain a permit applicable to the handling, proc-
essing, reclamation, storage, or other management activity
associated with the recyclable materials shall be considered
to be a substantive provision.
‘‘(d) EXCLUSIONS.—(1) Subsection (c) shall not
apply if the person had an objectively reasonable basis to
believe at the time of the recycling transaction—
‘‘(A) that the recyclable material would not be
recycled;
‘‘(B) that the recyclable material would be
burned for incineration; or
‘‘(C) for transactions occurring during the 90-
day period beginning on the date of the enactment
of this section, that the consuming facility was not
in compliance with a substantive (not a procedural
or administrative) provision of any Federal, State,
or local environmental law or regulation, or compli-
ance order or decree issued pursuant thereto, appli-
cable to the handling, processing, reclamation, stor-
age, or other management activities associated with
the recyclable material.
‘‘(2) For purposes of this subsection, the determina-
tion of whether the person had an objectively reasonable
basis for belief shall be made using criteria that include
the size of the person’s business, customary industry prac-
tices, and the ability of the person to detect the nature
of the consuming facility’s operations concerning its han-
dling, processing, reclamation, storage, or other manage-
ment activities associated with the recyclable material.
‘‘(e) EFFECT ON OTHER LIABILITY.—Nothing in this
section shall be deemed to affect the liability of a person
under paragraph (1) or (2) of section 107(a).
‘‘(f) REGULATIONS.—The President may, under sec-
tion 115, promulgate any regulations necessary to imple-
ment this section.
‘‘(g) EFFECT
ON PENDING
OR CONCLUDED AC-
TIONS.—The exemptions provided in this section shall not
affect any concluded judicial or administrative action or
any pending judicial action initiated by the United States
before the date of the enactment of this section.
‘‘(h) LIABILITY FOR ATTORNEYS’ FEES FOR CER-
TAIN ACTION.—Any person who commences an action in
contribution against a person who is not liable by oper-
ation of this section shall be liable to that person for all
reasonable costs of defending that action, including all
reasonable attorneys’ and expert witness fees.
‘‘(i) RELATIONSHIP TO LIABILITY UNDER OTHER
LAWS.—Nothing in this section shall affect—
‘‘(1) liability under any other Federal, State, or
local statute or regulation promulgated pursuant to
any such statute, including any requirements pro-
mulgated by the Administrator under the Solid
Waste Disposal Act; or
‘‘(2) the authority of the Administrator to pro-
mulgate regulations under any other statute, includ-
ing the Solid Waste Disposal Act.’’.
(b) TECHNICAL AMENDMENT.—The table of contents
for title I of such Act is amended by adding at the end
the following new item:
‘‘Sec. 127. Recycling transactions.’’.
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