[Congressional Record Volume 143, Number 145 (Friday, October 24, 1997)]
[Extensions of Remarks]
[Page E2093]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   THE SUPERFUND RECYCLING EQUITY ACT

                                 ______
                                 

                        HON. W.J. (BILLY) TAUZIN

                              of louisiana

                    in the house of representatives

                        Friday, October 24, 1997

  Mr. TAUZIN.
  Mr. Speaker, today I am introducing the Superfund Recycling Equity 
Act. This legislation addresses an unintended consequence of Superfund 
which has created a serious, negative impediment to our goal of 
increased recycling in our country.
  The Superfund Recycling Equity Act is the product of negotiations 
between the Government, representatives of the environmental community, 
and the scrap recycling industry. The bill which I am introducing is 
the same as H.R. 820 of the 104th Congress with some modifications 
addressing the concerns of the paper industry. The original negotiating 
parties have agreed to these minor changes. I am pleased that once 
again, this legislation attracts incredible support from numerous 
members across the ideological spectrum.
  The Superfund Recycling Equity Act aims to level the playing field 
between recyclable paper, glass, plastic, metals, textiles, and rubber 
and the competitive virgin materials where both the recyclable and 
virgin materials can be used as manufacturing feedstocks. Specifically, 
the bill relieves those who sell the recyclable materials from 
Superfund's liability regime if the recyclers meet specified 
conditions. These conditions ensure that sham recyclers are excluded 
from the bill's benefits. In order for legitimate recyclers to be 
relieved of Superfund liability, they must continue to prepare their 
product in an environmentally sound manner and sell their product to 
manufacturers who have environmentally responsible business practices.
  The language added to the bill to accommodate the paper industry's 
concerns does three things. It clarifies the term ``customary business 
practice,'' which previously was undefined. It specifies that the 
polychlorinated biphenyl [PCB] limits are concentration limits. 
Finally, if the EPA Administrator determines at some future date that 
recycled paper contains a hazardous substance heretofore unknown, 
recyclers would share with mill owner/operators any cleanup costs.
  The need for this legislation occurs due to rulemaking and subsequent 
court interpretations of the rulemaking, not as a consequence of 
statutory law. The Resource Conservation and Recovery Act [RCRA] 
regulates the way in which solid wastes, both hazardous and 
nonhazardous, are handled. However, another important purpose of RCRA 
appears directly in its title: To conserve and to recover--recycle--
scarce resources. While the RCRA statute states that solid wastes are 
discarded, or disposed of, when the RCRA rule defining solid waste was 
written, recyclables were included in the promulgated regulation as a 
subset of solid waste. From that moment forward, recyclables became, 
and remain, solid waste--not by Act of Congress--but by rulemaking. 
When Superfund was written, its liability section, section 107, tracked 
the RCRA rulemaking language and stated that those who dispose of 
hazardous substances are liable under Superfund's liability scheme.
  Despite the intent of public policy, whenever a recycler processes 
traditional recyclable materials and sells them to mills as feedstocks, 
or raw materials, for the manufacturing process, be it paper, glass, 
plastic, metals, textiles, or rubber, they are not selling a product--
but rather, under regulatory law--they are disposing of solid waste. 
Even though such substances are inert and harmless in the solid form, 
if the recycler sells material to mills that contain hazardous 
substances, which then contaminates the environment solely because of 
the activity of the mill's owner/operator, under current legal 
interpretations recyclers can be required to clean up all, or a 
portion, of that third party contaminated site. Perhaps you are 
thinking, I've heard this before, everybody caught in Superfund always 
says, I didn't pollute anything, and always points to the other guy who 
did it. Then consider this question. If a supplier of hazardous virgin 
material used as manufacturing feedstock, for example nickel or 
chromium, sold it to a mill which then creates a Superfund site, what 
portion of the cleanup is assigned to the supplier of the virgin 
material?
  The answer is none, not one penny. Neither the mill's owner/operator, 
nor the government can seek cleanup costs from suppliers of virgin 
materials. Why? Because legal interpretations consider virgin materials 
to be products, not wastes. One does not dispose of a product. But, one 
discards, or disposes, of waste. It the waste contains a hazardous 
substance found at the site, the person who shipped the waste to the 
site and the owner/operator, if one still exists, are required to pay 
the cost of cleanup.
  My bill does not relieve the recycler of liability for contamination 
related to the recycler's disposing of wastes off-site. My bill deals 
only with Superfund liability arising from the sale of recyclable 
material to a third party site which is contaminated by that third 
party.
  Let's review this. A recycler and a virgin material supplier each 
provide their product to a stainless steel mill, for example. Old, 
damaged, or obsolete stainless steel knives, forks, and spoons are sold 
to the mill by recyclers. Stainless steel is steel alloyed with nickel 
and chromium. Virgin material suppliers sell iron ore, chromium, a 
hazardous substance, and nickel, a hazardous substance, to the same 
mill. The mill creates a Superfund site where chromium and nickel are 
found. The mill operator, and/or the government, can and do seek out 
recyclers to help pay the cost of cleaning up the site. Yet neither the 
owner/operator nor the government can seek contributions for cleanup 
from the virgin material suppliers of the nickel and chromium.
  Clearly, this doesn't make sense. More importantly it stifles 
recycling activities in our country. If we are serious about recycling, 
and I believe that the public and their public officials are serious 
about it, then we must correct the anomaly.
  While I strongly believe that the existing inequities need to be 
corrected, I remain committed to the swift passage of comprehensive 
Superfund reform. The recyclers' concerns are one of many problems 
which due to the current liability system and remedy selection process 
have prevented Superfund from accomplishing more. I look forward to 
working with the subcommittee chairman, Mr. Oxley, and the Commerce 
Committee chairman, Mr. Bliley, to ensure that a more rapid cleanup of 
NPL sites begins this Congress.
  Please join me in cosponsoring the Superfund Recycling Equity Act and 
encouraging comprehensive reform during the 105th Congress.