[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 607 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 607

 To amend the Comprehensive Environmental Response, Compensation, and 
  Liability Act of 1980 to clarify the liability of certain recycling 
                 transactions, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 23, 1995

 Mr. Warner (for himself, and Mr. Reid) introduced the following bill; 
 which was read twice and referred to the Committee on Environment and 
                              Public Works

_______________________________________________________________________

                                 A BILL


 
 To amend the Comprehensive Environmental Response, Compensation, and 
  Liability Act of 1980 to clarify the liability of certain recycling 
                 transactions, 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 ``Superfund Recycling Equity Act of 
1995''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to promote the reuse and recycling of scrap material, 
        in furtherance of the goals of waste minimization and natural 
        resource conservation, while protecting human health and the 
        environment;
            (2) to level the playing field between the use of virgin 
        materials and recycled materials; and
            (3) to remove the disincentives and impediments to 
        recycling created by potential liability under the 
        Comprehensive Environmental Response, Compensation, and 
        Liability Act of 1980 (42 U.S.C. 9601 et seq.).

SEC. 3. CLARIFICATION OF LIABILITY UNDER CERCLA FOR RECYCLING 
              TRANSACTIONS.

    Title I of the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (42 U.S.C. 9601 et seq.) is amended by adding 
at the end the following:

``SEC. 127. RECYCLING TRANSACTIONS.

    ``(a) Definitions.--In this section:
            ``(1) Consuming facility.--The term `consuming facility' 
        means a facility where recyclable material is handled, 
        processed, reclaimed, or otherwise managed by a person other 
        than a person who arranges for the recycling of the recyclable 
        material.
            ``(2) Recyclable material.--
                    ``(A) In general.--Subject to subparagraph (B), the 
                term `recyclable material' means scrap paper, scrap 
                plastic, scrap glass, scrap textiles, scrap rubber 
                (other than whole tires), scrap metal, or spent lead-
                acid, spent nickel-cadmium, or other spent batteries, 
                as well as minor quantities of material incident to or 
                adhering to the scrap or spent material as a result of 
                the normal and customary use of the material prior to 
                the material becoming scrap or spent material.
                    ``(B) PCBs.--The term `recyclable material' does 
                not include a material that contains polychlorinated 
                biphenyls in excess of--
                            ``(i) 50 parts per million; or
                            ``(ii) any standard promulgated under 
                        Federal law after the date of enactment of this 
                        section.
            ``(3) Scrap metal.--The term `scrap metal' means 1 or more 
        bits or pieces of metal parts (such as a bar, turning, rod, 
        sheet, or wire), or 1 or more metal pieces that may be combined 
        together with bolts or soldering (such as a radiator, scrap 
        automobile, or railroad box car), that, when worn or 
        superfluous, can be recycled, except for--
                    ``(A) a material that the Administrator excludes 
                from the definition of scrap metal by regulation; and
                    ``(B) a steel shipping container with a capacity of 
                not less than 30 and not more than 3,000 liters, 
                whether intact or not, that has any hazardous substance 
                (but not metal bits or pieces) contained in or adhering 
                to the container.
    ``(b) Limitation on Liability.--
            ``(1) In general.--Subject to subsection (c), a person who 
        arranges for the recycling of recyclable material shall not be 
        liable under paragraph (3) or (4) of section 107(a).
            ``(2) Transactions deemed to be recycling of a recyclable 
        material.--For purposes of this section, a transaction 
        involving a recyclable material is considered to be arranging 
        for recycling of recyclable material if the person arranging 
        for the transaction can demonstrate, by a preponderance of the 
        evidence, that, at the time of the transaction--
                    ``(A) the recyclable material met a commercial 
                specification grade;
                    ``(B) a market existed for the recyclable material;
                    ``(C) a substantial portion of the recyclable 
                material was made available for use as a feedstock for 
                the manufacture of a new salable product;
                    ``(D) the recyclable material could have been a 
                replacement or substitute for a virgin raw material, or 
                the product to be made from the recyclable material 
                could have been a replacement or substitute for a 
                product made, in whole or in part, from a virgin raw 
                material;
                    ``(E) in the case of a transaction occurring not 
                later than 90 days after the date of enactment of this 
                section, the person exercises reasonable care to 
                determine that the consuming facility was in compliance 
                with any substantive (and not procedural or 
                administrative) provision of Federal, State, or local 
                environmental law or regulation, and any compliance 
                order or decree issued pursuant to the law or 
                regulation, applicable to the handling, processing, 
                reclamation, storage, or other management activity 
                associated with the recyclable material;
                    ``(F) in the case of a transaction involving scrap 
                metal--
                            ``(i) in the case of a transaction 
                        occurring after the effective date of the 
                        issuance of a regulation or standard regarding 
                        the storage, transport, management, or other 
                        activity associated with the recycling of scrap 
                        metal that the Administrator promulgates under 
                        the Solid Waste Disposal Act (42 U.S.C. 6901 et 
                        seq.) subsequent to the date of enactment of 
                        this section, the person acted in compliance 
                        with the regulation or standard; and
                            ``(ii) the person did not melt the scrap 
                        metal prior to the transaction; and
                    ``(G) in the case of a transaction involving a 
                battery--
                            ``(i) the person did not recover the 
                        valuable components of the battery;
                            ``(ii) in the case of a transaction 
                        involving a lead-acid battery, the person acted 
                        in compliance with any applicable Federal 
                        environmental regulation or standard regarding 
                        the storage, transport, management, or other 
                        activity associated with the recycling of a 
                        spent lead-acid battery;
                            ``(iii) in the case of a transaction 
                        involving a nickel-cadmium battery--
                                    ``(I) a Federal environmental 
                                regulation or standard is in effect 
                                regarding the storage, transport, 
                                management, or other activity 
                                associated with the recycling of a 
                                spent nickel-cadmium battery; and
                                    ``(II) the person acted in 
                                compliance with the regulation or 
                                standard; and
                            ``(iv) with respect to a transaction 
                        involving a spent battery other than a lead-
                        acid or nickel-cadmium battery--
                                    ``(I) a Federal environmental 
                                regulation or standard is in effect 
                                regarding the storage, transport, 
                                management, or other activity 
                                associated with the recycling of the 
                                spent battery; and
                                    ``(II) the person acted in 
                                compliance with the regulation or 
                                standard.
            ``(3) Sweating.--For purposes of paragraph (2)(F)(ii), 
        melting of scrap metal does not include the thermal separation 
        of 2 or more materials due to differences in the melting points 
        of the materials.
            ``(4) Processing of battery by third person.--For purposes 
        of paragraph (2)(G)(i), a person who, by contract, arranges or 
        pays for processing of a battery by an unrelated third person, 
        and receives from the third person materials reclaimed from the 
        battery, shall be considered not to have recovered the valuable 
        components of the battery.
            ``(5) Reasonable care.--For purposes of paragraph (2)(E), 
        reasonable care shall be determined using criteria that 
        include--
                    ``(A) the price paid to or received by the person 
                in the recycling transaction;
                    ``(B) the ability of the person to detect the 
                nature of the operations of the consuming facility 
                concerning the handling, processing, reclamation, or 
                other management activities associated with the 
                recyclable material; and
                    ``(C) the result of any inquiry made to an 
                appropriate Federal, State, or local environmental 
                agency regarding the past and current compliance of the 
                consuming facility with substantive (and not procedural 
                or administrative) provisions of Federal, State, and 
                local environmental laws and regulations, and any 
                compliance order or decree issued pursuant to the laws 
and regulations, applicable to the handling, processing, reclamation, 
storage, or other management activity associated with the recyclable 
material.
    ``(c) Exclusion From Limitation on Liability.--
            ``(1) In general.--Subsection (b) shall not apply if the 
        person arranging for recycling of a recyclable material--
                    ``(A) had an objectively reasonable basis to 
                believe at the time of the recycling transaction that--
                            ``(i) the recyclable material would not be 
                        recycled;
                            ``(ii) the recyclable material would be 
                        burned as fuel, or for energy recovery or 
                        incineration; or
                            ``(iii) in the case of a transaction 
                        occurring not later than 90 days after the date 
                        of the enactment of this section, the consuming 
                        facility acting not in compliance with a 
                        substantive (and not a procedural or 
                        administrative) provision of any Federal, 
                        State, or local environmental law or 
                        regulation, or a compliance order or decree 
                        issued pursuant to the law or regulation, 
                        applicable to the handling, processing, 
                        reclamation, or other management activity 
                        associated with the recyclable material;
                    ``(B) added a hazardous substance to the recyclable 
                material for purposes other than processing for 
                recycling; or
                    ``(C) failed to exercise reasonable care with 
                respect to the management or handling of the recyclable 
                material.
            ``(2) Reasonable basis for belief.--For purposes of 
        paragraph (1)(A), an objectively reasonable basis for belief 
        shall be determined using criteria that include--
                    ``(A) the size of any business owned by the person;
                    ``(B) the customary industry practices for any 
                business owned by the person;
                    ``(C) the price paid to or received by the person 
                in the recycling transaction;
                    ``(D) the ability of the person to detect the 
                nature of the operations of the consuming facility 
                concerning the handling, processing, reclamation, or 
                other management activities associated with the 
                recyclable material.
    ``(c) Permit Requirement.--For the purposes of this section, a 
requirement to obtain a permit applicable to the handling, processing, 
reclamation, or other management activity associated with a recyclable 
material shall be considered to be a substantive provision.
    ``(d) Regulations.--The Administrator may issue regulations to 
carry out this section.
    ``(e) Liability for Attorney Fees for Certain Actions.--Any person 
who commences an action for contribution against a person who is 
alleged to be liable under this Act but is found not to be liable as a 
result of this section shall be liable to the person defending the 
action for all reasonable costs of defending the action, including all 
reasonable attorney and expert witness fees.
    ``(f) Effect on Pending or Concluded Actions.--This section shall 
not affect a judicial or administrative action concluded prior to the 
date of enactment of this section, or a pending judicial action 
initiated by the United States prior to the date of enactment of this 
section.
    ``(g) Effect on Other Liability.--Nothing in this section affects 
the liability of a person under paragraph (1) or (2) of section 107(a).
    ``(h) Relationship to Liability Under Other Laws.--Nothing in this 
section affects--
            ``(1) liability under any other Federal, State, or local 
        law, or regulation promulgated pursuant to the law, including 
        any requirement promulgated by the Administrator under the 
        Solid Waste Disposal Act (42 U.S.C. 6901 et seq.); or
            ``(2) the ability of the Administrator to promulgate a 
        regulation under any other law, including the Solid Waste 
        Disposal Act.''.
                                 <all>