[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2062 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2062

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 12, 1998

  Mr. Warner 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 liability under that Act for certain 
                        recycling transactions.

    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 
1998''.

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 create greater equity in the statutory treatment of 
        recycled versus virgin materials; and
            (3) to remove the disincentives and impediments to 
        recycling created as an unintended consequence of the 1980 
        Superfund liability provisions.

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

    (a) Clarification.--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 new section:

``SEC. 127. RECYCLING TRANSACTIONS.

    ``(a) Liability Clarification.--As provided in subsections (b), 
(c), (d), and (e), a person who arranged for the recycling of a 
recyclable material shall not be liable under section 107(a)(3) or 
107(a)(4).
    ``(b) Recyclable Material Defined.--For purposes of this section, 
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, and other spent 
batteries, as well as minor amounts of material incident to or adhering 
to the scrap material as a result of its normal and customary use prior 
to becoming scrap.
    ``(c) Transactions Involving Scrap Paper, Plastic, Glass, Textiles, 
or Rubber.--Transactions involving scrap paper, scrap plastic, scrap 
glass, scrap textiles, or scrap rubber (other than whole tires) shall 
be deemed to be arranging for recycling if the person who arranged for 
the transaction (by selling recyclable material or otherwise arranging 
for the recycling of recyclable material) can demonstrate by a 
preponderance of the evidence that all of the following criteria were 
met at the time of the transaction:
            ``(1) The recyclable material met a commercial 
        specification grade.
            ``(2) A market existed for the recyclable material.
            ``(3) A substantial portion of the recyclable material was 
        made available for use as feedstock for the manufacture of a 
        new saleable product.
            ``(4) 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.
            ``(5) For transactions occurring 90 days or more after the 
        date of enactment of this section, the person exercised 
        reasonable care to determine that the facility where the 
        recyclable material would be handled, processed, reclaimed, or 
        otherwise managed by another person (hereinafter in this 
        section referred to as a `consuming facility') was in 
        compliance with substantive (not procedural or administrative) 
        provisions of any Federal, State, or local environmental law or 
        regulation, or compliance order or decree issued pursuant 
        thereto, applicable to the handling, processing, reclamation, 
        storage, or other management activities associated with 
        recyclable material.
            ``(6) For purposes of this subsection, `reasonable care' 
        shall be determined using criteria that include (but are not 
        limited to)--
                    ``(A) the price paid in the recycling transaction;
                    ``(B) the ability of the person to detect the 
                nature of the consuming facility's operations 
                concerning its handling, processing, reclamation, or 
                other management activities associated with recyclable 
                material; and
                    ``(C) the result of inquiries made to the 
                appropriate Federal, State, or local environmental 
                agency (or agencies) regarding the consuming facility's 
                past and current compliance with substantive (not 
                procedural or administrative) provisions of any 
                Federal, State, or local environmental law or 
                regulation, or compliance order or decree issued 
                pursuant thereto, applicable to the handling, 
                processing, reclamation, storage, or other management 
                activities associated with the recyclable material. For 
                the purposes of this paragraph, a requirement to obtain 
                a permit applicable to the handling, processing, 
                reclamation, or other management activity associated 
                with the recyclable materials shall be deemed to be a 
                substantive provision.
    ``(d) Transactions Involving Scrap Metal.--
            ``(1) Transactions involving scrap metal shall be deemed to 
        be arranging for recycling if the person who arranged for the 
        transaction (by selling recyclable material or otherwise 
        arranging for the recycling of recyclable material) can 
        demonstrate by a preponderance of the evidence that at the time 
        of the transaction--
                    ``(A) the person met the criteria set forth in 
                subsection (c) with respect to the scrap metal;
                    ``(B) the person was in compliance with any 
                applicable regulations or standards regarding the 
                storage, transport, management, or other activities 
                associated with the recycling of scrap metal that the 
                Administrator promulgates under the Solid Waste 
                Disposal Act subsequent to the enactment of this 
                section and with regard to transactions occurring after 
                the effective date of such regulations or standards; 
                and
                    ``(C) the person did not melt the scrap metal prior 
                to the transaction.
            ``(2) For purposes of paragraph (1)(C), melting of scrap 
        metal does not include the thermal separation of 2 or more 
        materials due to differences in their melting points (referred 
        to as `sweating').
            ``(3) For purposes of this subsection, the term `scrap 
        metal' means bits and pieces of metal parts (e.g., bars, 
        turnings, rods, sheets, wire) or metal pieces that may be 
        combined together with bolts or soldering (e.g., radiators, 
        scrap automobiles, railroad box cars), which when worn or 
superfluous can be recycled, except for scrap metals that the 
Administrator excludes from this definition by regulation and steel 
shipping containers of a capacity from 30 liters to and including 3,000 
liters, whether intact or not, having any hazardous substance (but not 
metal bits or pieces) contained in or adhering thereto.
    ``(e) Transactions Involving Batteries.--
            ``(1) Transactions involving spent lead-acid batteries, 
        spent nickel-cadmium batteries, or other spent batteries shall 
        be deemed to be arranging for recycling if the person who 
        arranged for the transaction (by selling recyclable material or 
        otherwise arranging for the recycling of recyclable material) 
        can demonstrate by a preponderance of the evidence that at the 
        time of the transaction--
                    ``(A) the person met the criteria set forth in 
                subsection (c) with respect to the spent lead-acid 
                batteries, spent nickel-cadmium batteries, or other 
                spent batteries, but did not recover the valuable 
                components of such batteries; and
                    ``(B)(i) with respect to transactions involving 
                lead-acid batteries, the person was in compliance with 
                applicable Federal environmental regulations or 
                standards, and any amendments thereto, regarding the 
                storage, transport, management, or other activities 
                associated with the recycling of spent lead-acid 
                batteries;
                    ``(ii) with respect to transactions involving 
                nickel-cadmium batteries, Federal environmental 
                regulations or standards are in effect regarding the 
                storage, transport, management, or other activities 
                associated with the recycling of spent nickel-cadmium 
                batteries, and the person was in compliance with 
                applicable regulations or standards or any amendments 
                thereto; or
                    ``(iii) with respect to transactions involving 
                other spent batteries, Federal environmental 
                regulations or standards are in effect regarding the 
                storage, transport, management, or other activities 
                associated with the recycling of such batteries, and 
                the person was in compliance with applicable 
                regulations or standards or any amendments thereto.
            ``(2) For purposes of paragraph (1)(A), a person who, by 
        contract, arranges or pays for processing of batteries by an 
        unrelated third person and receives from such third person 
        materials reclaimed from such batteries shall not thereby be 
        deemed to recover the valuable components of such batteries.
    ``(f) Exclusions.--
            ``(1) The exemptions set forth in subsections (c), (d), and 
        (e) shall not apply if--
                    ``(A) the person had an objectively reasonable 
                basis to believe at the time of the recycling 
                transaction--
                            ``(i) that the recyclable material would 
                        not be recycled;
                            ``(ii) that the recyclable material would 
                        be burned as fuel, or for energy recovery or 
                        incineration; or
                            ``(iii) for transactions occurring before 
                        90 days after the date of the enactment of this 
                        section, that the consuming facility was not in 
                        compliance with a substantive (not procedural 
                        or administrative) provision of any Federal, 
                        State, or local environmental law or 
                        regulation, or compliance order or decree 
                        issued pursuant thereto, applicable to the 
                        handling, processing, reclamation, or other 
                        management activities associated with the 
                        recyclable material;
                    ``(B) the person had reason to believe that 
                hazardous substances had been added to the recyclable 
                material for purposes other than processing for 
                recycling;
                    ``(C) the person failed to exercise reasonable care 
                with respect to the management and handling of the 
                recyclable material (including adhering to customary 
                industry practices current at the time of the recycling 
                transaction designed to minimize, through source 
                control, contamination of the recyclable material by 
                hazardous substances); or
                    ``(D) with respect to any item of a recyclable 
                material, the item--
                            ``(i) contained polychlorinated biphenyls 
                        at a concentration in excess of 50 parts per 
                        million or any new standard promulgated 
                        pursuant to applicable Federal laws; or
                            ``(ii) is an item of scrap paper containing 
                        at the time of the recycling transaction a 
                        concentration of a hazardous substance that has 
                        been determined by the Administrator, after 
                        notice and comment, to present a significant 
                        risk to human health or the environment in 
                        light of the nature of scrap paper management 
and recycling.
            ``(2) For purposes of this subsection, an objectively 
        reasonable basis for belief shall be determined using criteria 
        that include (but are limited to) the size of the person's 
        business, customary industry practices (including customary 
        industry practices current at the time of the recycling 
        transaction designed to minimize, through source control, 
        contamination of the recyclable material by hazardous 
        substances), the price paid in the recycling transaction, and 
        the ability of the person to detect the nature of the consuming 
        facility's operations concerning its handling, processing, 
        reclamation, or other management activities associated with the 
        recyclable material.
            ``(3) For purposes of this subsection, a requirement to 
        obtain a permit applicable to the handling, processing, 
        reclamation, or other management activities associated with 
        recyclable material shall be deemed to be a substantive 
        provision.
    ``(g) Effect on Other Liability.--Nothing in this section shall be 
deemed to affect the liability of a person under paragraph (1) or (2) 
of section 107(a).
    ``(h) Regulations.--The Administrator has the authority, under 
section 115, to promulgate additional regulations concerning this 
section.
    ``(i) Effect on Pending or Concluded Actions.--The exemptions 
provided in this section shall not affect any concluded judicial or 
administrative action or any pending judicial action initiated by the 
United States prior to enactment of this section.
    ``(j) Liability for Attorney's Fees for Certain Actions.--Any 
person who commences an action in contribution against a person who is 
not liable by operation of this section shall be liable to that person 
for all reasonable costs of defending that action, including all 
reasonable attorney's and expert witness fees.
    ``(k) Relationship to Liability Under Other Laws.--Nothing in this 
section shall affect--
            ``(1) liability under any other Federal, State, or local 
        statute or regulation promulgated pursuant to any such statute, 
        including any requirements promulgated by the Administrator 
        under the Solid Waste Disposal Act; or
            ``(2) the ability of the Administrator to promulgate 
        regulations under any other statute, including the Solid Waste 
        Disposal Act.''.
    (b) Technical Amendment.--The table of contents for title I of such 
Act is amended by adding at the end the following item:

    ``Sec. 127. Recycling transactions.''.
                                 <all>