[Congressional Record Volume 144, Number 78 (Tuesday, June 16, 1998)]
[Senate]
[Pages S6421-S6423]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LOTT (for himself and Mr. Daschle):
  S. 2180. A bill to amend the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 to clarify liability under that 
Act for certain recycling transactions; to the Committee on Environment 
and Public Works.


               the superfund recycling equity act of 1998

  Mr. LOTT. Mr. President, today, I am pleased to join my colleague, 
Senate Minority Leader Daschle, in introducing legislation which 
removes an unintended yet troublesome legal obstacle to recycling.
  It is not a widely known fact that Superfund is biased against 
recycling. I am confident that the authors of the statute did not 
intend to favor new materials over those that have been recycled, but 
we now live with this unintended consequence.
  Mr. President, our bill corrects current law and encourages 
recycling. It simply recognizes that recycling is not disposal and that 
recyclables are not wastes. Common sense tells us that recycling 
something is not the same as disposing of it.
  Nonetheless, Mr. President, those who sell materials for recycling 
are being pulled into Superfund cleanups because, under the law, 
selling recyclable materials is equivalent to ``arranging for 
disposal.'' Our bill waives Superfund liability for those who are 
legitimately recycling these goods. Clearly, recycling is not 
disposal--it is the opposite.
  The Superfund Recycling Equity Act is necessary to correct 
Superfund's fundamental bias against recycled materials. Under current 
law, recyclable materials, such as paper, glass, plastic, metals and 
textiles cannot be competitive with new materials. This bill will help 
level the playing field between the use of recycled goods and 
competitive virgin raw materials. Currently, suppliers of virgin raw 
materials face no Superfund liability for contamination caused by their 
customer. This bill would provide the same waiver to those who sell 
recyclable materials.

[[Page S6422]]

  Mr. President, this bill also contains protections to ensure that 
sham recyclers are unable to benefit from this exemption. In order for 
recyclers to be relieved of Superfund liability, they must act in an 
environmentally sound manner and sell their product to manufacturers 
with environmentally responsible business practices. Considering that 
most recyclers are currently operating in a reasonable and conscience 
manner, this should be an easy test.
  Mr. President, the Superfund Recycling Equity Act is the product of 
lengthy negotiations between the federal and state governments, the 
environmental community and the scrap recycling industry. These 
negotiations have resulted in a bill that I believe to be both 
environmentally and fiscally sound.
  Americans nationwide have embraced the benefits of recycling. We know 
that increased recycling means the more efficient use of our natural 
resources. By removing the threat of Superfund liability for recyclers, 
we will encourage more recycling.
  I hope that my colleagues on both sides of the aisle will lend their 
support to this targeted and much-needed reform bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2180

       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 recycling 
     of recyclable material shall not be liable under section 
     107(a)(3) or 107(a)(4) with respect to the material.
       ``(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; except that such term shall not 
     include shipping containers of a capacity from 30 liters to 
     3,000 liters, whether intact or not, having any hazardous 
     substance (but not metal bits and pieces or hazardous 
     substance that form an integral part of the container) 
     contained in or adhering thereto.
       ``(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 was 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.
       ``(e) Transactions Involving Batteries.--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--
       ``(1) 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 the 
     person did not recover the valuable components of such 
     batteries; and
       ``(2)(A) 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;
       ``(B) 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
       ``(C) 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.
       ``(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

[[Page S6423]]

     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, or contained that hazardous 
     substance at a concentration at or higher than that 
     determined by the Administrator to present such a significant 
     risk.
       ``(2) For purposes of this subsection, an objectively 
     reasonable basis for belief shall be determined using 
     criteria that include (but are not 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). Nothing in this 
     section shall be deemed to affect the liability of a person 
     under paragraph (3) or (4) of section 107(a) with respect to 
     materials that are not recyclable materials as defined in 
     subsection (b) of this section.
       ``(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.''.

  Mr. DASCHLE. Mr. President, I am pleased to join the distinguished 
majority leader in introducing this bill to promote the reuse and 
recycling of scrap materials. There is broad agreement that more should 
be done to establish a climate in which businesses are encouraged to 
recycle scrap materials in an environmentally sound manner. We should 
make every effort to expand the responsible and beneficial use and 
reuse of this waste as soon as possible.
  While I remain hopeful that bipartisan negotiators will be able to 
work out differences on broad-based Superfund reform, it appears 
unlikely that Congress will achieve that goal this year. That is 
particularly unfortunate, because there are many elements of Superfund 
reform for which there is agreement and for which we should move 
forward as expeditiously as possible, including establishing greater 
incentives for brownfields redevelopment, and providing liability 
relief to deserving municipalities and small businesses.
  There are a number of important Superfund issues on which there 
continues to be significant disagreement. Despite the fact that 
resolution of these issues is unlikely in the near-term, we should not 
allow ourselves to adjourn this year without making a strong effort to 
enact those reforms on which there is broad agreement.
  Therefore, I am very pleased that Senator Lott has taken the 
initiative to move forward with this important element of Superfund 
reform. With enactment of this legislation, we will foster additional 
scrap recycling in America, thereby reducing the stream of waste 
materials now sent to landfills and other solid waste management 
facilities. By doing so, we will help to eliminate the fears of many 
businesses of potential Superfund liabilities even if they pursue 
legitimate means to recycle scrap materials. By clarifying the 
liability rules for recycling transactions under Superfund, this 
legislation will place recyclers on a more even playing field compared 
with those who produce goods using virgin materials.
  In conclusion, Mr. President, I am pleased to cosponsor this timely 
legislation with Senator Lott. This is an important step in providing 
meaningful reform and clarification to the Superfund law and I 
encourage all my colleagues to support this effort to promote scrap 
recycling as soon as possible.

                          ____________________