103D CONGRESS
2D SESSION
H.R. 4661
To establish congressional findings and amend the Solid Waste Disposal
Act to provide congressional authorization of State control over transpor-
tation and disposal of municipal solid waste, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JUNE 28, 1994
Mr. SMITH of New Jersey (for himself, Mr. ZIMMER and Mr. SAXTON) intro-
duced the following bill; which was referred to the Committee on Energy
and Commerce
A BILL
To establish congressional findings and amend the Solid
Waste Disposal Act to provide congressional authoriza-
tion of State control over transportation and disposal
of municipal solid waste, and for other purposes.
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 ‘‘Flow Control Act of
1994’’.
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SEC. 2. CONGRESSIONAL AUTHORIZATION OF STATE CON-
TROL 
OVER 
TRANSPORTATION 
AND 
DIS-
POSAL OF MUNICIPAL SOLID WASTE.
(a) CONGRESSIONAL FINDINGS.—The Congress finds
that—
(1) the improper transportation and disposal of
municipal solid waste impacts adversely on human
health and the environment;
(2) the growing shortage of landfill space and
other viable municipal solid waste management op-
tions has placed increasing fiscal burdens on State
and local governments’ efforts to effectively plan and
manage municipal solid waste in a long-term and en-
vironmentally sound manner;
(3) the long-term management of municipal
solid waste in an environmentally sound and cost-ef-
fective manner is dependent upon the ability of State
and local governments to control the transportation
and disposal of municipal solid waste to designated
waste management facilities;
(4) existing State and local government laws,
regulations, legislative and administrative provisions,
including solid waste management plans, relating to
the transportation and disposal of municipal solid
waste at existing and planned waste management fa-
cilities are in the public interest; and
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(5) existing State and local government regula-
tions and controls relating to the transportation and
disposal of municipal solid waste at existing and
planned waste management facilities are permissible
regulations of commerce.
(b) CONGRESSIONAL PURPOSE AND INTENT.—This
Act is intended to—
(1) authorizes States and qualified political sub-
divisions to regulate and control the transportation
and disposal of municipal solid waste derived from
residential, commercial, institutional, and industrial
sources;
(2) authorizes States and qualified political sub-
divisions to require that municipal solid waste be
transported to one or more existing or planned des-
ignated waste management facilities;
(3) preserve the viability of existing municipal
solid waste management systems of States and
qualified political subdivisions which depend on en-
suring a consistent supply of municipal solid waste
generated from residential, commercial, institutional,
and industrial sources; and
(4) recognize as reasonable existing laws, regu-
lations, ordinances, contracts and other legislative or
administrative provisions or mechanisms of States
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future waste management facility to any other
existing or future waste management facility,
without regard to subsections (b) or (c); and
‘‘(C) direct, limit, regulate, or prohibit the
transportation of recyclable materials generated
within the boundaries of the State or subdivi-
sion and designate each facility to which any
such materials shall be transported.
‘‘(2) APPLICATION.—A State or qualified politi-
cal subdivision may exercise the authority described
in paragraph (1)(C) with respect to recyclable mate-
rials only if—
‘‘(A) the generator or owner of the mate-
rials voluntarily made the materials available to
the State or qualified political subdivision and
relinquished any rights to, or ownership of,
such materials; and
‘‘(B) the State or qualified political sub-
division, or the designee of the State or quali-
fied political subdivision, assumes such rights
to, or ownership of, such materials.
‘‘(b) LIMITATIONS.—A State or qualified political
subdivision may exercise the authority provided by sub-
section (a)(1)(A) or (a)(1)(C) only if the State or qualified
political subdivision—
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‘‘(1) establishes a program to separate or divert
the materials described in subsection (g)(4) from the
municipal solid waste, for purposes of recycling, rec-
lamation, or reuse, in accordance with any State law
or municipal solid waste planning requirements in
effect;
‘‘(2) develops and implements a process de-
scribed in subsection (c) for the designation of waste
management facilities; and
‘‘(3) after conducting 1 or more public hear-
ings—
‘‘(A) finds, on the basis of the record de-
veloped at the hearing or hearings that it is
necessary to exercise the authority to meet the
current solid waste management needs (as of
the date of the record) or the anticipated solid
waste management needs of the State or quali-
fied political subdivision for management of
municipal solid waste or recyclable materials;
and
‘‘(B) provides a written explanation of the
reasons for the finding described in subpara-
graph (A).
‘‘(c) COMPETITIVE DESIGNATION PROCESS—In de-
veloping and implementing the designation process de-
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scribed in subsection (b)(2) with respect to waste manage-
ment facilities and facilities for recyclable materials, the
State or qualified political subdivision shall—
‘‘(1) provide that the designation process is
based on, or is part of, a municipal solid waste man-
agement plan that is adopted by the State or quali-
fied political subdivision and that is designed to en-
sure long-term management capacity for municipal
solid waste or recyclable materials generated within
the boundaries of the State or subdivision;
‘‘(2) set forth the goals of the designation proc-
ess, including at a minimum—
‘‘(A) capacity assurance;
‘‘(B) the establishment of provisions to
provide that protection of human health and the
environment will be achieved; and
‘‘(C) any other goals determined to be rel-
evant by the State or qualified political subdivi-
sion;
‘‘(3) identify and compare reasonable and avail-
able alternatives and options for designation of the
facilities;
‘‘(4) provide for public participation and com-
ment;
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‘‘(5) provide that the designation of the facili-
ties is accomplished through an open competitive
process during which the State or qualified political
subdivsion—
‘‘(A) identifies in writing the criteria to be
utilized for selection of the facilities;
‘‘(B) provides an opportunity for interested
public persons and private persons to offer their
existing (as of the date of the process) or pro-
posed facilities for designation; and
‘‘(C) evaluates and selects the facilities for
designation based on the merits of the facilities
in meeting the criteria identified; and
‘‘(6) base the designation of each such facility
on reasons that shall be stated in a public record.
‘‘(d) OWNERSHIP OF RECYCLABLE MATERIALS.—
‘‘(1) 
PROHIBITION
ON
REQUIRED
TRANS-
FERS.—Except as provided in paragraph (3), noth-
ing in this section shall authorize any State or quali-
fied political subdivision to require any generator or
owner of recyclable materials to transfer any recycla-
ble materials (other than abandoned or discarded
materials) to such State or qualified political sub-
division.
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‘‘(2) PROHIBITION
ON
PROHIBITED
TRANS-
ACTIONS.—Except as provided in paragraph (3),
nothing in this section shall prohibit any generator
or owner of recyclable materials from selling, pur-
chasing, accepting, conveying, or transporting any
recyclable materials for purposes of transportation
or remanufacture into usable or marketable mate-
rials, unless the generator or owner voluntarily made
the materials available to the State or qualified po-
litical subdivision and relinquished any rights to, or
ownership of, such materials.
‘‘(3) LAW AND CONTRACTS.—A contract, law,
ordinance, regulation, or provision described in sub-
section (e)(1) may contain an authorization de-
scribed in paragraph (1) or a prohibition described
in paragraph (2).
‘‘(e) EXISTING LAWS AND CONTRACTS.—
‘‘(1) IN GENERAL.—This section shall not su-
perseded, abrogate, or otherwise modify any of the
following:
‘‘(A) Any contract or other agreement (in-
cluding any contract containing an obligation to
repay the outstanding indebtedness on any pro-
posed or existing waste management facility or
facility for recyclable materials) entered into be-
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fore May 15, 1994, by a State or qualified po-
litical subdivision in which such State or quali-
fied political subdivision has designated a pro-
posed or existing waste management facility, or
facility for recyclable materials, for the manage-
ment of municipal solid waste or recyclable ma-
terials pursuant to a law, ordinance, regulation,
legislative or administrative provision adopted
by such State or qualified political subdivision
before May 15, 1994.
‘‘(B) Any other contract or agreement en-
tered into before May 15, 1994, for the man-
agement of municipal solid waste.
‘‘(C)(i) Any law, ordinance, regulation, or
legislative or administrative provision—
‘‘(I) that is adopted before May 15,
1994; and
‘‘(II) that pertains to the transpor-
tation or disposal of municipal solid waste
generated within the boundaries of a State
or qualified political subdivision; provided
that the law, ordinance, regulation, legisla-
tive or administrative provision is applied
to the transportation or disposal of munici-
pal solid waste, generated from household
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sources 
(as 
described 
in 
subsection
(g)(2)(A)(i)) within the boundaries, to a
proposed or existing waste management fa-
cility designated before May 15, 1994
under such law, ordinance, regulation, leg-
islative or administrative provision.
‘‘(ii) Any law, ordinance, regulation or leg-
islative or administrative provision—
‘‘(I) that is adopted before May 15,
1994;
‘‘(II) that pertains to the transpor-
tation or disposal of municipal solid waste
generated within the boundaries of a State
or qualified political subdivision; and
‘‘(III) under which a State or quali-
fied political subdivision, prior to May 15,
1994, directed, limited, regulated, or pro-
hibited the transportation or disposal of
municipal solid waste that is generated, or
is commingled with municipal solid waste
that is generated, from commercial, insti-
tutional, or industrial sources within the
boundaries, or that is incinerator ash from
a solid waste incineration unit, or con-
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struction debris or demolition debris, gen-
erated within the boundaries:
Provided, That the law, ordinance, regulation,
legislative or administrative provision is applied
to the transportation or disposal of municipal
solid waste described in subclause (III), to a
proposed or existing waste management facility
designated before May 15, 1994 under such
law, ordinance, regulation, legislative or admin-
istrative provision.
‘‘(iii) Any law, ordinance, regulation, or
legislative or administrative provision—
‘‘(I) that is adopted before May 15,
1994; and
‘‘(II) that pertains to the transpor-
tation of recyclable materials generated
within the boundaries of a State or quali-
fied political subdivision: Provided, That
the law, ordinance, regulation, legislative
or administrative provision is applied to
the transportation or recyclable materials,
that are generated within the boundaries
and with respect to which the generator or
owner of the materials, and the State or
qualified political subdivision, have met the
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appropriate conditions described in sub-
section (a)(2), to a facility designated be-
fore May 15, 1994 under such law, ordi-
nance, regulation, legislative or administra-
tive provision.
‘‘(iv) Any law, ordinance, regulation, or
legislative or administrative provisions—
‘‘(I) that is adopted before May 15,
1994;
‘‘(II) that pertains to the transportation of
recyclable 
materials 
generated 
within 
the
boundaries of a State or qualified political sub-
division; and
‘‘(III) under which a State or qualified po-
litical subdivision, prior to May 15, 1994, di-
rected, limited, regulated, or prohibited the
transportation of recyclable materials that are
not materials with respect to which the genera-
tor or owner of the materials, and the State or
qualified political subdivision, have met the ap-
propriate conditions described in subsection
(a)(2) and that—
‘‘(aa) are generated from house-
hold sources (as described in sub-
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section (g)(2)(A)(i)) within the bound-
aries; or
‘‘(bb) are generated from com-
mercial, institutional, or industrial
sources within the boundaries:
Provided, That the law, ordinance, regula-
tion, legislative or administrative provision
is applied to the transportation of recycla-
ble materials, described in subclause (III),
to a facility designated before May 15,
1994 under such law, ordinance, regula-
tion, legislative or administrative provision,
and is applied to the same class of mate-
rials described in item (aa) or (bb) of
subclause (III) to which the law, ordi-
nance, regulation, legislative or administra-
tive provision applied before such date.
‘‘(2) CONTRACT INFORMATION.—A party to a
contract or other agreement that is described in sub-
paragraph (e)(1)(A) or (e)(1)(B) shall provide a
copy of the contract or agreement to the State or
qualified political subdivision on request. Any propri-
etary information contained in the contract or agree-
ment may be omitted in the copy, but the informa-
tion that appears in the copy shall include at least
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the date that the contract or agreement was signed,
the volume of municipal solid waste or recyclable
materials covered by the contract or agreement with
respect to which the State or qualified political sub-
division could otherwise exercise authority under
subsection (a) or (e)(1)(C), the source of the waste
or materials, the destination of the waste or mate-
rials, the duration of the contract or agreement, and
the parties to the contract or agreement.
‘‘(3) EFFECT
ON
INTERSTATE
COMMERCE.—
Any contract or agreement described in subsection
(e)(1)(A) or (e)(1)(B), any any law, ordinance, regu-
lation, or legislative or administrative provision de-
scribed in subsection (e)(1)(C), shall be a reasonable
regulation of commerce by any State or qualified po-
litical subdivision, retroactive to the effective date of
the contract or agreement, or to the date of adoption
of any such law, ordinance, regulation, or legislative
or administrative provision.
‘‘(4) 
EFFECT
ON
STATE
PROCUREMENT
LAWS.—
‘‘(A) IN GENERAL.—Nothing in this sec-
tion shall supersede or modify—
‘‘(i) any State law or State regulation
concerning the procurement of municipal
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solid waste services or facilities by qualified
political subdivisions; or
‘‘(ii) any State law or regulation con-
cerning competitive bidding for such serv-
ices or facilities.
‘‘(f) SAVINGS CLAUSE.—Nothing in this section is in-
tended to supersede, amend, or otherwise modify Federal
or State environmental standards that apply to the dis-
posal or management of solid waste at waste management
facilities and facilities for recyclable materials.
‘‘(g) DEFINITIONS.—As used in this section:
‘‘(1) INDUSTRIAL SOLID WASTE.—The term ‘in-
dustrial solid waste’ means solid waste generated by
manufacturing or industrial processes, including
waste generated during scrap processing and recy-
cling, that is not hazardous waste regulated under
subtitle C.
‘‘(2) MUNICIPAL SOLID WASTE.—
‘‘(A) IN GENERAL.—The term ‘municipal
solid waste’—
‘‘(i) means any waste generated by a
household, including a single or multifam-
ily residence, an apartment, a condomin-
ium, a hotel, and a motel;
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‘‘(ii) includes waste generated by a
commercial, institutional, or industrial
source; and
‘‘(iii) includes residue remaining after
recyclable materials have been separated,
or diverted at the point of generation, from
municipal solid waste described in clause
(i) or (ii).
‘‘(B) EXCLUSIONS.—The term ‘municipal
solid waste’ shall not include any of the follow-
ing:
‘‘(i) Hazardous waste required to be
managed in accordance with subtitle C,
solid waste containing a polychlorinated
biphenyl regulated under the Toxic Sub-
stances Control Act (15 U.S.C. 2601 et
seq.), or regulated medical waste.
‘‘(ii)(I) A recyclable material.
‘‘(II) A material or a product re-
turned from a dispenser or distributor to
the manufacturer or the agent of the man-
ufacturer for credit, evaluation, or reuse.
‘‘(III) A material or product that is
an out-of-date or unmarketable material or
product, or is a material or product that
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does not conform to specifications, and
that is returned to the manufacturer or the
agent of the manufacturer for credit, eval-
uation, or reuse.
‘‘(iii) Any solid waste (including con-
taminated soil and debris) resulting from a
response action taken under section 104 or
106 of the Comprehensive Environmental
Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9604 or 9606) or a
corrective action taken under this Act.
‘‘(iv)(I) Industrial solid waste.
‘‘(II) Any industrial solid waste that
is generated by an industrial facility and
transported for the purpose of contain-
ment, storage, or disposal to a facility that
is owned or operated by the generator of
the waste, or a facility that is located on
property owned by the generator or a com-
pany with which the generator is affiliated.
‘‘(3) QUALIFIED POLITICAL SUBDIVISION.—The
term ‘qualified political subdivision’ means a govern-
mental entity or political subdivision of a State, as
authorized by the State, to plan for, or determine
the methods to be utilized for, the collection, trans-
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portation, disposal or other management of munici-
pal solid waste generated within the boundaries of
the governmental entity or political subdivision.
‘‘(4) RECYCLABLE MATERIAL.—The term ‘recy-
clable material’ means any material (including any
metal, glass, plastic, textile, wood, paper, rubber, or
other material) that has been separated, or diverted
at the point of generation, from solid waste for the
purpose of recycling, reclamation, or reuse.
‘‘(5) WASTE
MANAGEMENT
FACILITY.—The
term ‘waste management facility’ means any facility
in which solid waste is collected, separated, stored,
transferred, treated, processed, deposited or dis-
posed’’.
(b) TABLE OF CONTENTS.—The table of contents for
such subtitle D is amended by adding after the item relat-
ing to section 4010 the following new item:
‘‘Sec. 4011. Congressional authorization of state control over transportation and
disposal of municipal solid waste’’.
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