I
103D CONGRESS
2D SESSION
H. R. 4859
To amend the Solid Waste Disposal Act to provide congressional authorization
of State control over transportation and disposal of municipal solid
waste, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JULY 29, 1994
Mr. SMITH of New Jersey introduced the following bill; which was referred
to the Committee on Energy and Commerce
A BILL
To amend the Solid Waste Disposal Act to provide congres-
sional authorization 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 ‘‘Waste Flow Control
Consensus Act of 1994’’.
HR 4859 IH
SEC. 2. CONGRESSIONAL AUTHORIZATION OF STATE CON-
TROL 
OVER 
TRANSPORTATION 
AND 
DIS-
POSAL OF MUNICIPAL SOLID WASTE.
(a) IN GENERAL.—Subtitle D of the Solid Waste Dis-
posal Act (42 U.S.C. 6941 et seq.) is amended by adding
at the end the following new section:
‘‘SEC. 4011. CONGRESSIONAL AUTHORIZATION OF STATE
CONTROL OVER TRANSPORTATION AND DIS-
POSAL OF MUNICIPAL SOLID WASTE.
‘‘(a) AUTHORITY.—
‘‘(1) Each State and each qualified political
subdivision may, in accordance with this section—
‘‘(A) direct, limit, regulate, or prohibit the
transportation, management or disposal of mu-
nicipal solid waste generated from household
sources (as described in subsection (g)(2)(A)(i))
within the boundaries of the State or subdivi-
sion and designate each waste management fa-
cility to which any such municipal solid waste
shall be transported;
‘‘(B) direct, limit, regulate, or prohibit the
transportation, management or disposal of mu-
nicipal solid waste (as defined in subsection
(g)(2)), incinerator ash from a solid waste in-
cinerator unit, construction debris and demoli-
tion debris, generated within the boundaries of
HR 4859 IH
the State or qualified political subdivision and
designate waste management facilities to which
any such municipal solid waste shall be trans-
ported, managed or disposed, if, before May 15,
1994—
‘‘(i) the State or qualified political
subdivision adopted a law, ordinance, regu-
lation, solid waste management plan or le-
gally binding provision that pertains to the
transportation, management or disposal of
municipal solid waste generated within the
boundaries, and
‘‘(ii) directed, limited, regulated, or
prohibited the transportation, management
or disposal of municipal solid waste under
the law, ordinance, regulation, solid waste
management plan or legally binding provi-
sion to a proposed or existing waste man-
agement facility designated before May 15,
1994, or
‘‘(iii) the law, ordinance, regulation,
solid waste management plan or legally
binding provision identified the use of one
or more waste management methods that
will be necessary for the transportation,
HR 4859 IH
management or disposal of municipal solid
waste generated within its boundaries at
one or more waste management facilities to
be designated in the future.
Any State or qualified political subdivision
meeting the requirements of this subsection
(a)(1)(B) (i) and (ii) or (iii) may also, after the
effective date of this section, direct, limit, regu-
late or prohibit the transportation, management
and disposal of such solid waste from any exist-
ing or future waste management facility to any
other existing or future waste management fa-
cility, without regard to subsection (b)(2)(B);
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 material shall be transported.
‘‘(2) Any contract, law, ordinance, regulation,
or legally binding provision of a State or qualified
political subdivision that directs, limits, regulates or
prohibits the transportation, management or dis-
posal of municipal solid waste in compliance with
this section shall be considered a reasonable regula-
HR 4859 IH
tion of commerce and shall not be considered as im-
posing an undue burden on or otherwise impairing,
restraining or discriminating against interstate com-
merce.
‘‘(b) LIMITATIONS.—
‘‘(1) A State or qualified political subdivision
may exercise the authority described in paragraph
(1)(C) with respect to 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; 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.
‘‘(2) A State or qualified political subdivision
may exercise the authority provided by subsection
(a)(1)(A) or (a)(1)(C) only if the State or qualified
political subdivision—
‘‘(A) before exercising the authority de-
scribed in subsection (a)(1)(A), establishes a
program to separate, or divert at the point of
HR 4859 IH
generation, the materials described in sub-
section (g)(4) from the municipal solid waste,
for purposes of recycling, reclamation, or reuse,
in accordance with any Federal or State law or
municipal solid waste planning requirements in
effect; and
‘‘(B) after conducting 1 or more public
hearings—
‘‘(i) finds, on the basis of the record
developed 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 qualified political subdivi-
sion for management of municipal solid
waste or recyclable materials; and
‘‘(ii) provides a written explanation of
the reasons for the finding described in
subparagraph (i).
‘‘(3) The authority granted under subsection
(a)(1)(B)(iii) shall expire if a State or qualified po-
litical subdivision has not designated, by law, ordi-
nance, regulation, solid waste management plan or
legally binding provision, one or more proposed or
HR 4859 IH
existing waste management facilities within five (5)
years of the date of enactment of this section.
‘‘(c) 
COMPETITIVE
DESIGNATION
PROCESS.—A
State or qualified political subdivision may exercise the au-
thority provided by subsection (a) only if the State or
qualified political subdivision develops and implements a
competitive designation process with respect to waste
management facilities or facilities for recyclable materials
which—
‘‘(1) ensures 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) sets forth the goals of the designation
process, 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;
HR 4859 IH
‘‘(3) identifies and compares reasonable and
available alternatives and options for designation of
the facilities;
‘‘(4) provides for public participation and com-
ment;
‘‘(5) ensures that the designation of the facili-
ties is accomplished through an open competitive
process during which the State or qualified political
subdivision—
‘‘(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) bases the designation of each such facility
on reasons that shall be stated in a public record.
‘‘(7) CERTIFICATION.—
‘‘(A) A Governor of any State may certify
that the laws and regulations of the State in ef-
fect on May 15, 1994 satisfy the requirements
HR 4859 IH
for a competitive designation process under sub-
section (c).
‘‘(B) In making a certification under sub-
paragraph (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;
‘‘(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 they satisfy the requirements of sub-
section (c);
‘‘(iii) provide interested persons an
opportunity to comment on the proposed
certification, for a period of time not less
than sixty (60) days after publication of
the notice; 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
HR 4859 IH
such additional notice of the final certifi-
cation as may be required by State law.
‘‘(C) Designations made after the final cer-
tification and pursuant to the certified laws and
regulations shall not be subject to judicial re-
view for failure to satisfy the requirements of
subsection (c).
‘‘(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.
‘‘(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 transformation
or remanufacture into usable or marketable mate-
rials, unless the generator or owner voluntarily made
the materials available to the State or qualified po-
HR 4859 IH
litical subdivision and relinquished any rights to, or
ownership of, such materials.
‘‘(3) LAW AND CONTRACTS.—A contract, law,
ordinance, regulation, solid waste management plan
or legally binding provision described in subsection
(e)(1) may contain an authorization described in
paragraph (1) or a prohibition described in para-
graph (2).
‘‘(e) EXISTING LAWS AND CONTRACTS.—
‘‘(1) IN GENERAL.—This section shall not su-
persede, 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-
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,
solid waste management plan or legally binding
HR 4859 IH
provision adopted by such State or qualified po-
litical 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,
solid waste management plan or legally binding
provision—
‘‘(I) that is adopted before May 15,
1994; and
‘‘(II) that pertains to the transpor-
tation, management or disposal of munici-
pal solid waste generated within the
boundaries of a State or qualified political
subdivision:
Provided, That the law, ordinance, regulation,
solid waste management plan or legally binding
provision is applied to the transportation, man-
agement or disposal of municipal solid waste,
generated from household sources (as described
in subsection (g)(2)(A)(i)) within the bound-
aries, to a proposed or existing water manage-
ment facility designated before May 15, 1994
under such law, ordinance, regulation, solid
HR 4859 IH
waste management plan or legally binding pro-
vision.
‘‘(ii) Any law, ordinance, regulation, solid
waste management plan or legally binding pro-
vision—
‘‘(I) that is adopted before May 15,
1994;
‘‘(II) that pertains to the transpor-
tation, management or disposal of munici-
pal 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, management or
disposal of municipal solid waste that is
generated, or is commingled with munici-
pal solid waste that is generated, from
commercial, institutional, or industrial
sources within the boundaries, or that is
incinerator ash from a solid waste inciner-
ation unit, or construction debris or demo-
lition debris, generated within the bound-
aries:
HR 4859 IH
Provided, That the law, ordinance, regulation,
solid waste management plan or legally binding
provision is applied to the transportation, man-
agement 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, ordi-
nance, regulation, solid waste management plan
or legally binding provision.
‘‘(iii) Any law, ordinance, regulation, solid
waste management plan or legally binding pro-
vision—
‘‘(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,
solid waste management plan or legally binding
provision is applied to the transportation of re-
cyclable 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
HR 4859 IH
the appropriate conditions described in sub-
section (b)(1), to a facility designated before
May 15, 1994 under such law, ordinance, regu-
lation, solid waste management plan or legally
binding provision.
‘‘(iv) Any law, ordinance, regulation, solid
waste management plan or legally binding pro-
vision—
‘‘(I) that is adopted before May 15,
1994;
‘‘(II) that pertains to the transpor-
tation of recyclable materials generated
within the boundaries of a State or quali-
fied 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 of recyclable ma-
terials that are not materials with respect
to which the generator or owner of the ma-
terials, and the State or qualified political
subdivision, have met the appropriate con-
ditions described in subsection (b)(1) and
that—
HR 4859 IH
‘‘(aa) are generated from house-
hold sources (as described in sub-
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, regulation,
solid waste management plan or legally binding
provision is applied to the transportation of re-
cyclable materials, described in subclause (III),
to a facility designated before May 15, 1994
under such law, ordinance, regulation, solid
waste management plan or legally binding pro-
vision, and is applied to the same class of mate-
rials described in item (aa) or (bb) of subclause
(III) to which the law, ordinance, regulation,
solid waste management plan or legally binding
provision applied before May 15, 1994.
‘‘(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-
HR 4859 IH
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 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), and any law, ordinance, regu-
lation, solid waste management plan or legally bind-
ing provision described in subsection (e)(1)(C), shall
be considered a reasonable regulation of commerce
by any State or qualified political subdivision, retro-
active to the effective date of the contract or agree-
ment, or to the date of adoption of any such law, or-
dinance, regulation, solid waste management plan or
legally binding provision, and shall not be considered
as imposing an undue burden on or otherwise im-
pairing, restraining or discriminating against inter-
state commerce.
HR 4859 IH
‘‘(4) LIMITATION.—Any designation by a State
or qualified political subdivision of any waste man-
agement facility or facility for recyclable materials
after the date of enactment of this section shall com-
ply with subsection (c). Nothing in this paragraph
shall affect any designation made before the date of
enactment of this section.
‘‘(f) SAVINGS CLAUSE.—
‘‘(1) Nothing in this section is intended to su-
persede, amend, or otherwise modify Federal or
State environmental laws and regulations that apply
to the disposal or management of solid waste at
waste management facilities and facilities for recy-
clable materials.
‘‘(2) Nothing in this section shall be interpreted
to authorize a qualified political subdivision to exer-
cise the authority granted by this section in a man-
ner inconsistent with State law.
‘‘(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 scrap
recycling, that is not hazardous waste regulated
under subtitle C.
HR 4859 IH
‘‘(2) MUNICIPAL SOLID WASTE.—
‘‘(A) IN GENERAL.—The term ‘municipal
solid waste’ means—
‘‘(i) any solid waste generated by a
household, including a single or multifam-
ily residence;
‘‘(ii) any solid waste that is generated
by a commercial, institutional, or industrial
source;
‘‘(iii) residue remaining after recycla-
ble materials have been separated, or di-
verted at the point of generation or at a
waste management facility, from municipal
solid waste described in clause (i) or (ii);
and
‘‘(iv) conditional exempt small quan-
tity generator waste under section 3001(d)
of this Act, provided it is collected, proc-
essed or disposed with other municipal
solid waste as part of municipal solid waste
services.
‘‘(B) EXCLUSIONS.—The term ‘municipal
solid waste’ shall not include any of the follow-
ing:
HR 4859 IH
‘‘(i) Hazardous waste required to be
managed in accordance with subtitle C
(other than waste described in subpara-
graph (A)(iv)), solid waste containing a
polychlorinated biphenyl regulated under
the Toxic Substances Control Act (15
U.S.C. 2601 et seq.), or medical waste list-
ed in section 11002 of this Act.
‘‘(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
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
HR 4859 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.
‘‘(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-
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 or will be separated or
diverted from solid waste for the purpose of recy-
cling, reclamation, or reuse.
HR 4859 IH
‘‘(5) SOLID WASTE MANAGEMENT PLAN.—The
term ‘solid waste management plan’ means a plan
for 
the 
transportation, 
treatment, 
processing,
composting, disposal or other management of munic-
ipal solid waste adopted by a State or qualified polit-
ical subdivision pursuant to and conforming with
State law.
‘‘(6) 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.’’
Æ
HR 4859 IH——2