[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1085 Introduced in House (IH)]







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 congressional 
  authorization for State and local flow control authority over solid 
                     waste, and for other purposes.

    Be it enacted by the Senate and House of Representatives 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''.

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 qualified 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 required the 
                delivery of flow controllable solid waste to a proposed 
                or an existing waste management facility; or
                    ``(B) adopted a flow control measure that 
                identified the use of one or more waste management 
                methods that will be necessary for the transportation, 
                management, or disposal of flow controllable solid 
                waste, and committed to designate one or more waste 
                management facilities for such method or methods.
            ``(2) Recyclables.--Each State and each qualified political 
        subdivision may exercise flow control authority over 
        voluntarily relinquished recyclable materials generated within 
        the boundaries of the State or qualified political subdivision.
            ``(3) Reasonable regulation of commerce.--
                    ``(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 reasonable 
                regulation of commerce and shall not be considered to 
                be an undue burden on or otherwise 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 regulation of commerce and shall not be 
                considered to be an undue burden on or otherwise as 
                impairing, restraining, or discriminating against 
                interstate commerce.
    ``(b) Limitations.--
            ``(1) Limitation of authority regarding recyclable 
        materials.--A State or qualified political subdivision may 
        exercise flow control authority over recyclable materials only 
        if--
                    ``(A) the generator or owner of the materials 
                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 subdivision, 
                or the designee of the State or qualified political 
                subdivision, assumes such rights to, or ownership of, 
                such materials; and
                    ``(C) the State or qualified political subdivision 
                complies with any Federal or State law or solid waste 
                planning requirement to separate, or divert at the 
                point of generation, recyclable materials from solid 
                waste for purposes of recycling, reclamation, or reuse.
            ``(2) Limitation of authority regarding need.--
                    ``(A) A State or qualified political subdivision 
                may designate a waste management facility after the 
                effective date of this section and exercise flow 
                control authority to that facility only if, after 
                conducting one or more public hearings, the State or 
                qualified political subdivision--
                            ``(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 management needs 
                        of the State or qualified political 
                        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 economically 
                        efficient and environmentally sound manner, 
                        considering, among other things, an analysis of 
                        the ability of the private sector and public 
                        bodies to provide such services with and 
                        without flow control authority; and
                            ``(iii) provides a written explanation of 
                        the reasons for the findings described in 
                        clauses (i) and (ii), which may include a 
                        finding of a preferred waste management method 
                        or methods for providing such integrated solid 
                        waste management services.
                    ``(B) The flow control authority of this section 
                shall remain in effect with respect to any waste 
                management facility until completion of the schedule 
                for payment of the capital costs of the facility 
                concerned (as in effect on May 15, 1994), or for the 
                remaining useful life of the facility, or 10 years from 
                the effective date of this section, whichever is 
                longer. At the end of such period, the flow control 
                authority shall continue in effect for the waste 
                management facility, provided the State or qualified 
                political subdivision complies with subparagraph (A) 
                and subsection (c). For purposes of this paragraph, the 
                useful life of a waste management facility or the 
                schedule for payment of the capital cost of the 
                facility shall include any useful life extension or any 
                new debt payment schedule that results when--
                            ``(i) the designated waste management 
                        facility is required to retrofit or otherwise 
                        make significant modifications to meet 
                        applicable environmental requirements or safety 
                        requirements;
                            ``(ii) routine repair or scheduled 
                        replacements of existing equipment or 
                        components of a designated waste management 
                        facility is undertaken that does not add to the 
                        capacity of the waste management facility; 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 facility and the 
                        applicable permit includes such land.
                    ``(C) Each State and each qualified political 
                subdivision meeting the requirements of subsection 
                (a)(1)(A) may redesignate without regard to the 
                requirements of paragraphs (2)(A) and subsection (c).
                    ``(D) Notwithstanding anything to the contrary 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 January 1, 1984, 
                enacted regulations pursuant to a State law that 
                required or directed the transportation, management, or 
                disposal of solid waste from residential, commercial, 
                institutional and industrial sources as defined by 
                State law to specific waste management facilities and 
                applied those regulations to every political 
                subdivision in the State.
            ``(3) Limitation on solid waste categories.--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 described in subsection (a)(1)(B).
            ``(4) Expiration of authority.--The flow control authority 
        granted in subsection (a)(1)(B) shall expire if a State or 
        qualified political subdivision 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 management services.
    ``(c) Competitive Designation Process.--
            ``(1) In general.--A State or qualified political 
        subdivision may designate a waste management facility only if 
        the State or qualified political subdivision develops and 
        implements a competitive designation process. The process 
        shall--
                    ``(A) ensure that the designation process is based 
                on, or is part of, a solid waste management plan that 
                is adopted by the State or qualified 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--
                            ``(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 competitive process 
                during which the State or qualified 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 qualifications for 
                        selection that can only be met by public 
                        bodies;
                            ``(ii) provides a fair and equal 
                        opportunity for interested public persons and 
                        private persons to offer their facilities for 
                        designation;
                            ``(iii) identifies and compares reasonable 
                        and available waste management facility 
                        alternatives, options, and costs; and
                            ``(iv) evaluates and selects the facilities 
                        for designation based on the merits of the 
                        facilities in meeting the criteria identified; 
                        and
                    ``(D) provide for public participation and comment; 
                and
                    ``(E) base the designation of each such facility 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 
                        circulation and provide such additional notice 
                        of the proposed certification as may be 
                        required by State law;
                            ``(ii) include in the notice of the 
                        proposed certification or otherwise make 
                        readily 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 notice; 
                        and
                            ``(iv) publish notice of the final 
                        certification, together with an explanation of 
                        the basis for the final certification, in a 
                        newspaper of general circulation and provide 
                        such additional notice of the final 
                        certification as may be required by State law.
                    ``(C) Appeal.--Within 120 days after publication of 
                the final certification under subparagraph (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 satisfy the requirements of 
                paragraph (1) or that the certification process did not 
                satisfy the procedural requirements of subparagraph 
                (B). The appeal shall set forth the specific reasons 
                for the appeal of the final certification.
                    ``(D) Limitation to record.--Any judicial 
                proceeding brought under subparagraph (C) shall be 
                limited to the administrative record developed in 
                connection with the procedures described in 
                subparagraph (B).
                    ``(E) Costs of litigation.--In any judicial 
                proceeding brought under subparagraph (C), the court 
                shall award costs of litigation (including reasonable 
                attorney fees) to any prevailing party whenever the 
                court determines that such award is appropriate.
                    ``(F) Limitation of review of certifications.--If 
                no appeal is taken under subparagraph (C) within 120 
                days after the publication of the final certification, 
                or if the final certification by the Governor of any 
                State is upheld by the United States court of appeals 
                and no party seeks review by the Supreme Court (within 
                applicable time requirements), the final certification 
                shall not otherwise be subject to judicial review.
                    ``(G) Limitation on review of designations.--
                Designations made after the final certification and 
                pursuant to the certified laws and regulations shall 
                not be subject to judicial review for failure to 
                satisfy the requirements of paragraph (1).
    ``(d) Ownership of Recyclable Materials.--
            ``(1) Prohibition on required transfers.--Nothing in this 
        section shall authorize any State or qualified political 
        subdivision, or any designee of the State or qualified 
        political subdivision, to require any generator or owner of 
        recyclable materials to transfer any recyclable materials to 
        such State or qualified political subdivision unless the 
        generator or owner of the recyclable materials voluntarily made 
        the materials available to the State or qualified political 
        subdivision and relinquished any rights to, or ownership of, 
        such materials.
            ``(2) Other transactions.--Nothing in this section shall 
        prohibit any person from selling, purchasing, accepting, 
        conveying, or transporting any recyclable materials for 
        purposes of transformation or remanufacture into usable or 
        marketable materials.
    ``(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 
management 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 environmental 
suitability of the proposed alternative waste management facility, 
compared to that of the designated facility. In making such a 
determination, the State or political subdivision may consider the 
ability and willingness of both the designated and alternative waste 
management facility to indemnify the generator against any cause of 
action 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.--
            ``(1) In general.--Except to the extent required to comply 
        with paragraph (4) of this subsection, this section shall not 
        supersede, abrogate, or otherwise modify any of the following:
                    ``(A) Any contract or other agreement (including 
                any contract containing an obligation to repay the 
                outstanding indebtedness on any proposed 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 
                designated a proposed or existing waste management 
                facility to receive flow controllable solid waste.
                    ``(B) Any other contract or agreement entered into 
                before May 15, 1994, for the transportation, management 
                or disposal of municipal solid waste, incinerator ash 
                from a solid waste incineration unit, or construction 
                debris or demolition 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.
            ``(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 
        proprietary information contained in the contract or agreement 
        may be omitted in the copy, but the information 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 
        otherwise exercise authority under subsection (a) or paragraph 
        (1), the source of the waste or materials, the destination of 
        the waste or materials, 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 subparagraph (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 political 
        subdivision, retroactive to the effective date of the contract 
        or agreement, or to the date of adoption 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 management 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 
        requirements of subsections (b) and (c).
    ``(g) Savings Clause.--
            ``(1) Federal or state environmental laws.--Nothing in this 
        section is intended to supersede, amend, or otherwise modify 
        Federal or State environmental laws (including regulations) 
        that apply to the disposal or management of flow controllable 
        solid waste at waste management facilities.
            ``(2) State law.--Nothing in this section shall be 
        interpreted to authorize a qualified political subdivision to 
        exercise the authority granted by this section in a manner 
        inconsistent with State law.
    ``(h) Definitions.--For purposes of this section only, the 
following definitions apply:
            ``(1) Committed to designate one or more waste management 
        facilities.--The term `committed 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 construction 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 regulatory 
                agency or agencies, on or before May 15, 1994, 
                administratively complete permit applications for the 
                construction and operation of such waste management 
                facility.
                    ``(E) Formed a public authority or a joint 
                agreement among qualified political subdivisions, 
                pursuant to a law authorizing such formation or 
                agreement for the purposes of designating such 
                facilities.
                    ``(F) Executed a contract or agreement that 
                obligates or otherwise requires a State or qualified 
                political subdivision to deliver a minimum quantity of 
                flow controllable solid waste to a waste management 
                facility and that obligates or otherwise requires the 
                State or qualified political 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, otherwise 
                commonly known as a `put or pay agreement'.
                    ``(G) Adopted prior to May 15, 1994, pursuant to a 
                State statute that specifically described the method 
                for designating by solid waste management districts, a 
                resolution of preliminary designation that specifies 
                criteria and procedures for soliciting proposals to 
                designate such facilities after having completed a 
                public notice and comment period.
                    ``(H) Adopted prior to May 15, 1994, pursuant to a 
                State statute that specifically described the method 
                for designating by solid waste management districts, a 
                resolution of intent to establish designation with a 
                list of facilities for which designation is intended.
            ``(2) Designation; designate.--The terms `designate', 
        `designated', `designation', or `designating' mean to identify 
        a specific waste management facility to which flow controllable 
        solid waste must be delivered. Such terms include put or pay 
        agreements of the type described in paragraph (1)(F).
            ``(3) Existing waste management facility.--The term 
        `existing waste management facility' means a waste management 
        facility that has been designated and was under construction or 
        in operation as of May 15, 1994.
            ``(4) Flow control authority.--The term `flow control 
        authority' means the authority to designate 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, 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 subdivision exercising authority 
        under this section: municipal solid waste; incinerator ash from 
        a solid waste incineration unit; construction debris and 
        demolition debris; and, voluntarily relinquished recyclable 
        materials.
            ``(7) Industrial solid waste.--The term `industrial 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 municipal 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 multifamily 
                        residence;
                            ``(ii) any solid waste that is discarded by 
                        a commercial, institutional, or industrial 
                        source;
                            ``(iii) residue remaining after recyclable 
                        materials have been separated or diverted from 
                        municipal solid waste described in clause (i) 
                        or (ii);
                            ``(iv) any waste material or waste 
                        substance removed from a septic tank, septage 
                        pit, or cesspool, other than from portable 
                        toilets; and
                            ``(v) conditionally exempt small quantity 
                        generator waste under section 3001(d), if it is 
                        collected, processed 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 following:
                            ``(i) Hazardous waste required to be 
                        managed in accordance with subtitle C (other 
                        than waste described in subparagraph (A)(v)), 
                        solid waste containing polychlorinated biphenyl 
                        regulated under the Toxic Substances Control 
                        Act (15 U.S.C. 2601 et seq.), or medical waste 
                        listed in section 11002.
                            ``(ii)(I) A recyclable material.
                            ``(II) A material or a product returned 
                        from a dispenser or distributor to the 
                        manufacturer or the agent of the manufacturer 
                        for credit, evaluation, or reuse unless such 
                        material or product is discarded or abandoned 
                        for collection, disposal 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, evaluation, or 
                        reuse unless such material or product is 
                        discarded or abandoned for collection, disposal 
                        or combustion.
                            ``(iii) Any solid waste (including 
                        contaminated 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 solid waste that is generated by 
                        an industrial facility and transported 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 property owned by the generator.
            ``(9) Proposed waste management facility.--The term 
        `proposed waste management facility' means a waste management 
        facility that has been designated, but that was not under 
        construction, 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 determine 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.
            ``(11) Recyclable material.--The term `recyclable 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 management 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 by adding after the item relating 
to section 4010 the following new item:

``Sec. 4011. Congressional authorization of State and local flow 
                            control authority over solid waste.''.
                                 <all>
HR 1085 IH----2