I
104TH CONGRESS
1ST SESSION
H. R. 1085
To amend the Solid Waste Disposal Act to provide congressional authorization
for State and local flow control authority over solid waste, and for
other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 28, 1995
Mr. SMITH of New Jersey (for himself, Mr. OXLEY, Mr. PALLONE, Mr.
MINGE, Mrs. ROUKEMA, and Mr. SAXTON) introduced the following bill;
which was referred to the Committee on Commerce
A BILL
To amend the Solid Waste Disposal Act to provide congres-
sional authorization for State and local flow control au-
thority over 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 ‘‘Local Governments
Flow Control Act of 1995’’.
HR 1085 IH
SEC. 2. CONGRESSIONAL AUTHORIZATION OF STATE AND
LOCAL FLOW CONTROL AUTHORITY OVER
SOLID WASTE.
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 FLOW CONTROL AUTHORITY
OVER SOLID WASTE.
‘‘(a) AUTHORITY.—
‘‘(1) IN GENERAL.—Each State and each quali-
fied political subdivision may exercise flow control
authority if, before May 15, 1994, the State or
qualified political subdivision—
‘‘(A) adopted a flow control measure or
measures, individually or collectively, that re-
quired the delivery of flow controllable solid
waste to a proposed or an existing waste man-
agement facility; or
‘‘(B) adopted a flow control measure that
identified the use of one or more waste manage-
ment methods that will be necessary for the
transportation, management, or disposal of flow
controllable solid waste, and committed to des-
ignate one or more waste management facilities
for such method or methods.
HR 1085 IH
‘‘(2) RECYCLABLES.—Each State and each
qualified political subdivision may exercise flow con-
trol authority over voluntarily relinquished recyclable
materials generated within the boundaries of the
State or qualified political subdivision.
‘‘(3) 
REASONABLE
REGULATION
OF
COM-
MERCE.—
‘‘(A) A flow control measure of a State or
qualified political subdivision that implements
or exercises flow control authority in compliance
with this section shall be considered to be a rea-
sonable regulation of commerce and shall not be
considered to be an undue burden on or other-
wise as impairing, restraining, or discriminating
against interstate commerce.
‘‘(B) A contract or franchise agreement of
a State or qualified political subdivision that
provides the exclusive or nonexclusive authority
for the collection, transportation, or disposal of
flow controllable solid waste, and that does not
involve the exercise of flow control authority,
shall be considered to be a reasonable regula-
tion of commerce and shall not be considered to
be an undue burden on or otherwise as impair-
HR 1085 IH
ing, restraining, or discriminating against inter-
state commerce.
‘‘(b) LIMITATIONS.—
‘‘(1) LIMITATION
OF
AUTHORITY
REGARDING
RECYCLABLE MATERIALS.—A State or qualified po-
litical subdivision may exercise flow control authority
over recyclable materials only if—
‘‘(A) the generator or owner of the mate-
rials voluntarily made the materials available to
the State or qualified political subdivision, or
the designee of the State or qualified political
subdivision, and relinquished any rights to, or
ownership of, such materials;
‘‘(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; and
‘‘(C) the State or qualified political sub-
division complies with any Federal or State law
or solid waste planning requirement to sepa-
rate, or divert at the point of generation, recy-
clable materials from solid waste for purposes
of recycling, reclamation, or reuse.
‘‘(2) LIMITATION
OF
AUTHORITY
REGARDING
NEED.—
HR 1085 IH
‘‘(A) A State or qualified political subdivi-
sion may designate a waste management facility
after the effective date of this section and exer-
cise flow control authority to that facility only
if, after conducting one or more public hear-
ings, the State or qualified political subdivi-
sion—
‘‘(i) finds, on the basis of the record
developed at the hearing or hearings, that
it is necessary to exercise such flow control
authority to meet the current solid waste
management needs (as of the date of the
record) or the anticipated solid waste man-
agement needs of the State or qualified po-
litical subdivision;
‘‘(ii) finds, on the basis of the record
developed at the hearing or hearings, that
such flow control authority is necessary to
provide short and long term integrated
solid waste management services in an eco-
nomically efficient and environmentally
sound manner, considering, among other
things, an analysis of the ability of the pri-
vate sector and public bodies to provide
HR 1085 IH
sion or any new debt payment schedule that re-
sults when—
‘‘(i) the designated waste management
facility is required to retrofit or otherwise
make significant modifications to meet ap-
plicable environmental requirements or
safety requirements;
‘‘(ii) routine repair or scheduled re-
placements of existing equipment or com-
ponents of a designated waste management
facility is undertaken that does not add to
the capacity of the waste management fa-
cility; or
‘‘(iii) a designated waste management
facility expands on land legally or equitably
owned, or under option to purchase or
lease, by the owner or operator of such fa-
cility and the applicable permit includes
such land.
‘‘(C) Each State and each qualified politi-
cal subdivision meeting the requirements of
subsection (a)(1)(A) may redesignate without
regard to the requirements of paragraphs
(2)(A) and subsection (c).
HR 1085 IH
‘‘(D) Notwithstanding anything to the con-
trary in this section, paragraphs (2)(A) and
(2)(B) shall not apply to any State (or any of
its political subdivisions) that, on or before Jan-
uary 1, 1984, enacted regulations pursuant to
a State law that required or directed the trans-
portation, management, or disposal of solid
waste from residential, commercial, institutional
and industrial sources as defined by State law
to specific waste management facilities and ap-
plied those regulations to every political subdivi-
sion in the State.
‘‘(3) LIMITATION
ON
SOLID
WASTE
CAT-
EGORIES.—The flow control authority granted by
this section shall apply only to the specific classes or
categories of flow controllable solid waste to which
the authority described in subsection (a)(1)(A) was
applied by the State or qualified political subdivision
before May 15, 1994, and to the specific classes or
categories of solid waste for which the State or
qualified political subdivision committed to designate
one or more waste management facilities as de-
scribed in subsection (a)(1)(B).
‘‘(4) EXPIRATION
OF
AUTHORITY.—The flow
control authority granted in subsection (a)(1)(B)
HR 1085 IH
shall expire if a State or qualified political subdivi-
sion has not designated a waste management facility
within 3 years after the date of enactment of this
section.
‘‘(5) LIMITATION
ON
REVENUE.—A State or
qualified political subdivision may exercise the flow
control authority 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 primarily to solid waste manage-
ment services.
‘‘(c) COMPETITIVE DESIGNATION PROCESS.—
‘‘(1) IN GENERAL.—A State or qualified politi-
cal subdivision may designate a waste management
facility only if the State or qualified political subdivi-
sion develops and implements a competitive designa-
tion process. The process shall—
‘‘(A) ensure that the designation process is
based on, or is part of, a solid waste manage-
ment plan that is adopted by the State or quali-
fied political subdivision and that is designed to
ensure long-term management capacity for flow
controllable solid waste;
‘‘(B) set forth the goals of the designation
process, including at a minimum—
HR 1085 IH
‘‘(i) capacity assurance;
‘‘(ii) the establishment of provisions to
provide that protection of human health
and the environment will be achieved,
which may include a finding of a preferred
method or methods for providing solid
waste management services; and
‘‘(iii) any other goals determined to be
relevant by the State or qualified political
subdivision;
‘‘(C) ensure that the designation of each
facility is accomplished through an open com-
petitive process during which the State or quali-
fied political subdivision—
‘‘(i) identifies in writing the criteria to
be utilized for selection of the facilities,
which shall not discriminate unfairly
against any particular waste management
facility, and shall not establish qualifica-
tions for selection that can only be met by
public bodies;
‘‘(ii) provides a fair and equal oppor-
tunity for interested public persons and
private persons to offer their facilities for
designation;
HR 1085 IH
‘‘(iii) identifies and compares reason-
able and available waste management facil-
ity alternatives, options, and costs; and
‘‘(iv) evaluates and selects the facili-
ties for designation based on the merits of
the facilities in meeting the criteria identi-
fied; and
‘‘(D) provide for public participation and
comment; and
‘‘(E) base the designation of each such fa-
cility on reasons that shall be stated in a public
record.
‘‘(2) CERTIFICATION.—
‘‘(A) IN
GENERAL.—A Governor of any
State may certify that the laws and regulations
of the State in effect on May 15, 1994, satisfy
the requirements for a competitive designation
process under paragraph (1).
‘‘(B) PROCESS.—In making a certification
under subparagraph (A), a Governor shall—
‘‘(i) publish notice of the proposed
certification in a newspaper of general cir-
culation and provide such additional notice
of the proposed certification as may be re-
quired by State law;
HR 1085 IH
‘‘(ii) include in the notice of the pro-
posed certification or otherwise make read-
ily available a statement of the laws and
regulations subject to the certification and
an explanation of the basis for a conclusion
that the laws and regulations satisfy the
requirements of paragraph (1);
‘‘(iii) provide interested persons an
opportunity to comment on the proposed
certification, for a period of time not less
than 60 days, after publication of the no-
tice; and
‘‘(iv) publish notice of the final certifi-
cation, together with an explanation of the
basis for the final certification, in a news-
paper of general circulation and provide
such additional notice of the final certifi-
cation as may be required by State law.
‘‘(C) APPEAL.—Within 120 days after
publication of the final certification under sub-
paragraph (B), any interested person may file
an appeal of the final certification in the United
States court of appeals for the circuit in which
the State is located for a judicial determination
that the certified laws and regulations do not
HR 1085 IH
or remanufacture into usable or marketable mate-
rials.
‘‘(e) RETAINED AUTHORITY.—Upon the request of
any generator of solid waste affected by this section, the
State or qualified political subdivision may authorize the
diversion of all or a portion of the solid wastes generated
by the generator making such request to a waste manage-
ment facility, other than the facility or facilities originally
designated by the State or qualified political subdivision,
where the purpose of such request is to provide a higher
level of protection for human health and the environment
and reduce potential future liability under Federal or
State law of such generator for the management of such
wastes. Requests shall include information on the environ-
mental suitability of the proposed alternative waste man-
agement facility, compared to that of the designated facil-
ity. In making such a determination, the State or political
subdivision may consider the ability and willingness of
both the designated and alternative waste management fa-
cility to indemnify the generator against any cause of ac-
tion under State or Federal environmental statutes and
against any cause of action for nuisance, personal injury,
or property loss under any State law.
‘‘(f) EXISTING LAWS AND CONTRACTS.—
HR 1085 IH
‘‘(1) IN GENERAL.—Except to the extent re-
quired to comply with paragraph (4) of this sub-
section, this section shall not supersede, 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)
entered into before May 15, 1994, by a State
or qualified political subdivision in which such
State or qualified political subdivision has des-
ignated a proposed or existing waste manage-
ment facility to receive flow controllable solid
waste.
‘‘(B) Any other contract or agreement en-
tered into before May 15, 1994, for the trans-
portation, management or disposal of municipal
solid waste, incinerator ash from a solid waste
incineration unit, or construction debris or dem-
olition debris.
‘‘(C) Any flow control measure of a State
or qualified political subdivision, adopted before
May 15, 1994, that designated a proposed or
existing waste management facility to receive
flow controllable solid waste.
HR 1085 IH
‘‘(2) CONTRACT INFORMATION.—A party to a
contract or other agreement that is described in
paragraph (A) or (B) of paragraph (1) 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
the date that the contract or agreement was signed,
the volume of flow controllable solid waste covered
by the contract or agreement with respect to which
the State or qualified political subdivision could oth-
erwise exercise authority under subsection (a) or
paragraph (1), the source of the waste or materials,
the destination of the waste or materials, the dura-
tion of the contract or agreement, and the parties to
the contract or agreement.
‘‘(3) EFFECT
ON
INTERSTATE
COMMERCE.—
Any contract or agreement described in subpara-
graph (A) or (B) of paragraph (1), and any flow
control measure described in subparagraph (C) of
paragraph (1), shall be considered to be a reasonable
regulation of commerce by a State or qualified politi-
cal subdivision, retroactive to the effective date of
the contract or agreement, or to the date of adoption
HR 1085 IH
of any such flow control measure, and shall not be
considered to be an undue burden on or otherwise as
impairing, restraining, or discriminating against
interstate commerce.
‘‘(4) LIMITATION.—Any designation by a State
or qualified political subdivision of any waste man-
agement facility after the date of enactment of this
section shall be made in compliance with subsections
(b) and (c). Nothing in this paragraph shall affect
any designation made before May 15, 1994, and any
such designation shall be deemed to satisfy the re-
quirements of subsections (b) and (c).
‘‘(g) SAVINGS CLAUSE.—
‘‘(1) FEDERAL
OR
STATE
ENVIRONMENTAL
LAWS.—Nothing in this section is intended to super-
sede, amend, or otherwise modify Federal or State
environmental laws (including regulations) that
apply to the disposal or management of flow control-
lable solid waste at waste management facilities.
‘‘(2) STATE LAW.—Nothing in this section shall
be interpreted to authorize a qualified political sub-
division to exercise the authority granted by this sec-
tion in a manner inconsistent with State law.
‘‘(h) DEFINITIONS.—For purposes of this section
only, the following definitions apply:
HR 1085 IH
‘‘(1) COMMITTED TO DESIGNATE ONE OR MORE
WASTE MANAGEMENT FACILITIES.—The term ‘com-
mitted to designate one or more waste management
facilities’ means that a State or qualified political
subdivision was legally bound to designate one or
more waste management facilities or performed or
caused to be performed one or more of the following
actions for the purpose of designating one or more
such facilities:
‘‘(A) Obtained all required permits for the
construction of such waste management facility
prior to May 15, 1994.
‘‘(B) Executed contracts for the construc-
tion of such waste management facility prior to
May 15, 1994.
‘‘(C) Presented revenue bonds for sale to
specifically provide revenue for the construction
of such waste management facility prior to May
15, 1994.
‘‘(D) Submitted to the appropriate regu-
latory agency or agencies, on or before May 15,
1994, administratively complete permit applica-
tions for the construction and operation of such
waste management facility.
HR 1085 IH
‘‘(E) Formed a public authority or a joint
agreement among qualified political subdivi-
sions, pursuant to a law authorizing such for-
mation or agreement for the purposes of des-
ignating such facilities.
‘‘(F) Executed a contract or agreement
that obligates or otherwise requires a State or
qualified political subdivision to deliver a mini-
mum quantity of flow controllable solid waste to
a waste management facility and that obligates
or otherwise requires the State or qualified po-
litical subdivision to pay for that minimum
quantity of flow controllable solid waste even if
the stated minimum quantity of such waste is
not delivered within a required timeframe, oth-
erwise commonly known as a ‘put or pay agree-
ment’.
‘‘(G) Adopted prior to May 15, 1994, pur-
suant to a State statute that specifically de-
scribed the method for designating by solid
waste management districts, a resolution of pre-
liminary designation that specifies criteria and
procedures for soliciting proposals to designate
such facilities after having completed a public
notice and comment period.
HR 1085 IH
‘‘(H) Adopted prior to May 15, 1994, pur-
suant to a State statute that specifically de-
scribed the method for designating by solid
waste management districts, a resolution of in-
tent to establish designation with a list of facili-
ties for which designation is intended.
‘‘(2) DESIGNATION; DESIGNATE.—The terms
‘designate’, ‘designated’, ‘designation’, or ‘designat-
ing’ mean to identify a specific waste management
facility to which flow controllable solid waste must
be delivered. Such terms include put or pay agree-
ments of the type described in paragraph (1)(F).
‘‘(3) EXISTING
WASTE
MANAGEMENT
FACIL-
ITY.—The term ‘existing waste management facility’
means a waste management facility that has been
designated and was under construction or in oper-
ation as of May 15, 1994.
‘‘(4) FLOW CONTROL AUTHORITY.—The term
‘flow control authority’ means the authority to des-
ignate one or more waste management facilities and
require the delivery of flow controllable solid waste
to such facilities.
‘‘(5) FLOW
CONTROL
MEASURE.—The term
‘flow control measure’ shall mean a law, ordinance,
HR 1085 IH
regulation, solid waste management plan, or legally
binding provision.
‘‘(6) FLOW
CONTROLLABLE
SOLID
WASTE.—
The term ‘flow controllable solid waste’ shall mean
any or all of the following materials generated within
the boundaries of the State or qualified political sub-
division exercising authority under this section: mu-
nicipal solid waste; incinerator ash from a solid
waste incineration unit; construction debris and
demolition debris; and, voluntarily relinquished recy-
clable materials.
‘‘(7) 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 scrap
recycling, that is not hazardous waste regulated
under subtitle C. The term does not include munici-
pal solid waste specified in paragraph (8)(A)(iii).
‘‘(8) MUNICIPAL SOLID WASTE.—
‘‘(A) IN GENERAL.—The term ‘municipal
solid waste’ means—
‘‘(i) any solid waste discarded by a
household, including a single or multifam-
ily residence;
HR 1085 IH
‘‘(ii) any solid waste that is discarded
by a commercial, institutional, or industrial
source;
‘‘(iii) residue remaining after recycla-
ble materials have been separated or di-
verted from municipal solid waste de-
scribed in clause (i) or (ii);
‘‘(iv) any waste material or waste sub-
stance removed from a septic tank, septage
pit, or cesspool, other than from portable
toilets; and
‘‘(v) conditionally exempt small quan-
tity generator waste under section 3001(d),
if it is collected, processed or disposed with
other municipal solid waste as part of mu-
nicipal solid waste services.
‘‘(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
(other than waste described in subpara-
graph (A)(v)), solid waste containing poly-
chlorinated biphenyl regulated under the
Toxic Substances Control Act (15 U.S.C.
HR 1085 IH
2601 et seq.), or medical waste listed in
section 11002.
‘‘(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
unless such material or product is dis-
carded or abandoned for collection, dis-
posal or combustion.
‘‘(III) A material or product that is
an out-of-date or unmarketable material or
product, or is a material or product that
does not conform to specifications, and
that is returned to the manufacturer or the
agent of the manufacturer for credit, eval-
uation, or reuse unless such material or
product is discarded or abandoned for col-
lection, disposal or combustion.
‘‘(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
HR 1085 IH
of 1980 (42 U.S.C. 9604 or 9606) or a
corrective action taken under this Act.
‘‘(iv)(I) Industrial solid waste.
‘‘(II) Any solid waste that is gen-
erated by an industrial facility and trans-
ported for the purpose of containment,
storage, or disposal to a facility that is
owned or operated by the generator of the
waste, or a facility that is located on prop-
erty owned by the generator.
‘‘(9) PROPOSED
WASTE
MANAGEMENT
FACIL-
ITY.—The term ‘proposed waste management facil-
ity’ means a waste management facility that has
been designated, but that was not under construc-
tion, as of May 15, 1994.
‘‘(10) QUALIFIED
POLITICAL
SUBDIVISION.—
The term ‘qualified political subdivision’ means a
governmental entity or political subdivision of a
State, as authorized by the State, to plan for, or de-
termine the methods to be utilized for, the collection,
transportation, disposal or other management of
flow controllable solid waste generated within the
boundaries of the area served by the governmental
entity or political subdivision.
HR 1085 IH
‘‘(11) RECYCLABLE MATERIAL.—The term ‘re-
cyclable 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.
‘‘(12) REDESIGNATE.—The term ‘redesignate’
shall mean to designate from an existing or proposed
waste management facility to any other existing or
proposed waste management facility.
‘‘(13) SOLID WASTE MANAGEMENT PLAN.—The
term ‘solid waste management plan’ means a plan
for 
the 
transportation, 
treatment, 
processing,
composting, combustion, disposal or other manage-
ment of flow controllable solid waste, adopted by a
State or qualified political subdivision pursuant to
and conforming with State law.
‘‘(14) WASTE
MANAGEMENT
FACILITY.—The
term ‘waste management facility’ means any facility
or facilities in which flow controllable solid waste is
separated, stored, transferred, treated, processed,
combusted, deposited or disposed.’’.
SEC. 3. TABLE OF CONTENTS AMENDMENT.
The table of contents in section 1001 of the Solid
Waste Disposal Act (42 U.S.C. prec. 6901) is amended
HR 1085 IH
by adding after the item relating to section 4010 the fol-
lowing new item:
‘‘Sec. 4011. Congressional authorization of State and local flow control authority
over solid waste.’’.
Æ
HR 1085 IH——2