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AN ACT
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relating to a defense under the Solid Waste Disposal Act for persons |
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engaged in certain scrap metal recycling transactions. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 361.275(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) Except as provided by Section 361.2755, a [A] person |
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responsible for solid waste under Section 361.271 is liable under |
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Section 361.272 or 361.273 unless the person can establish by a |
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preponderance of the evidence that the release or threatened |
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release was caused solely by: |
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(1) an act of God; |
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(2) an act of war; |
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(3) an act or omission of a third person; or |
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(4) any combination of Subdivisions (1), (2), and (3). |
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SECTION 2. Subchapter I, Chapter 361, Health and Safety |
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Code, is amended by adding Section 361.2755 to read as follows: |
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Sec. 361.2755. SCRAP METAL RECYCLING TRANSACTIONS; DEFENSE. |
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(a) In this section: |
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(1) "Consuming facility" means the facility where the |
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scrap metal was handled, processed, reclaimed, stored, |
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transported, or otherwise managed by a person other than the person |
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who arranged for recycling of the scrap metal. |
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(2) "Scrap metal" means bits and pieces of metal |
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parts, such as bars, turnings, rods, sheets, or wire, or metal |
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pieces that may be combined together with bolts or soldering, such |
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as radiators, scrap automobiles, or railroad boxcars, which when |
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worn or superfluous can be recycled. The term does not include: |
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(A) a shipping container, whether intact or not, |
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that: |
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(i) has a capacity of not less than 30 |
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liters and not more than 3,000 liters; and |
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(ii) has any hazardous substance contained |
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in or adhering to the container, other than metal bits and pieces or |
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a hazardous substance that forms an integral part of the container; |
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(B) any item of material that contained |
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polychlorinated biphenyls at a concentration in excess of 50 parts |
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per million or any new standard adopted pursuant to applicable |
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federal laws; |
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(C) any material excluded from this definition by |
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commission rule; or |
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(D) any material excluded from the definition of |
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scrap metal under 42 U.S.C. Section 9627(d) by a federal |
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regulation. |
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(b) This section: |
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(1) applies only to a scrap metal transaction that |
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occurs on or after November 29, 1999; and |
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(2) does not apply to any material that is not scrap |
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metal. |
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(c) A person who arranges for recycling of scrap metal, |
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other than a person described by Subsection (f), is not responsible |
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for the scrap metal under Section 361.271(a)(3) or (4) if the person |
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can establish by a preponderance of the evidence that the following |
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criteria were met at the time of the recycling transaction: |
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(1) the scrap metal met a commercial specification |
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grade; |
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(2) a market existed for the scrap metal; |
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(3) a substantial portion of the scrap metal was made |
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available for use as feedstock for the manufacture of a new saleable |
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product; |
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(4) the scrap metal could have been a replacement or |
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substitute for a virgin raw material, or the product to be made from |
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the scrap metal could have been a replacement or substitute for a |
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product made, in whole or in part, from a virgin raw material; |
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(5) the person was in compliance with any applicable |
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regulations or standards regarding the handling, processing, |
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reclamation, storage, transport, or management of the scrap metal |
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or other activities associated with the recycling of scrap metal; |
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(6) the person did not melt the scrap metal prior to |
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the transaction; and |
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(7) the person exercised reasonable care to determine |
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that the consuming facility was in compliance with the substantive |
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provisions of any: |
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(A) federal, state, or local environmental law or |
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regulation applicable to the handling, processing, reclamation, |
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storage, or transport of scrap metal or other management activities |
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associated with scrap metal; or |
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(B) compliance order or decree issued pursuant to |
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a law or regulation described by Paragraph (A). |
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(d) For purposes of Subsection (c)(6), thermal separation |
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of two or more materials due to differences in melting points of the |
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materials does not constitute melting. |
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(e) For purposes of Subsection (c)(7), reasonable care |
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shall be determined using criteria that include: |
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(1) the price paid for the scrap metal in the recycling |
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transaction; |
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(2) the ability of the person to detect the nature of |
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the consuming facility's operations concerning the facility's |
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handling, processing, reclamation, storage, or transport of scrap |
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metal or other management activities associated with the scrap |
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metal; and |
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(3) the result of inquiries made by the person to the |
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appropriate federal, state, or local environmental agency |
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regarding the consuming facility's past and current compliance |
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with: |
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(A) substantive provisions of any law, |
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regulation, order, or decree described by Subsection (c)(7); and |
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(B) any requirement to obtain a permit applicable |
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to the handling, processing, reclamation, storage, or transport of |
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scrap metal or other management activity associated with scrap |
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metal. |
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(f) Subsection (c) does not apply to a person who arranges |
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for the recycling of scrap metal if the person: |
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(1) had an objectively reasonable basis to believe at |
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the time of the scrap metal transaction that: |
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(A) the scrap metal would not be recycled; |
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(B) the scrap metal would be burned as fuel or for |
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energy recovery or incineration; or |
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(C) the consuming facility was not in compliance |
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with: |
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(i) a substantive provision of any law, |
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regulation, order, or decree described by Subsection (c)(7); or |
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(ii) a requirement to obtain a permit |
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applicable to the handling, processing, reclamation, storage, or |
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transport of the scrap metal or other management activity |
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associated with the scrap metal; |
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(2) had reason to believe that hazardous substances |
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had been added to the scrap metal for purposes other than processing |
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for recycling; or |
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(3) failed to exercise reasonable care with respect to |
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the handling, processing, reclamation, storage, transport, and |
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management of the scrap metal, including adhering to customary |
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industry practices current at the time of the recycling transaction |
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designed to minimize, through source control, contamination of the |
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scrap metal by hazardous substances. |
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(g) For purposes of Subsection (f)(1), an objectively |
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reasonable basis for belief shall be determined using criteria that |
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include: |
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(1) the size of the person's business; |
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(2) customary industry practices, including customary |
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industry practices current at the time of the recycling transaction |
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designed to minimize, through source control, contamination of the |
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scrap metal by hazardous substances; |
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(3) the price paid for the scrap metal in the recycling |
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transaction; and |
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(4) the ability of the person to detect the nature of |
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the consuming facility's operations concerning the facility's |
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handling, processing, reclamation, storage, or transport of scrap |
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metal or other management activities associated with scrap metal. |
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(h) The commission may adopt rules as necessary to |
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administer this section. |
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(i) A person who commences an action for contribution |
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against a person who is not responsible for the scrap metal under |
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this section is liable to that person for all reasonable costs |
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incurred in defending that action, including reasonable attorney's |
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fees and expert witness fees. |
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(j) This section may not be construed to: |
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(1) affect any defenses or liabilities of any person |
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to whom Subsection (c) does not apply; |
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(2) create any presumption of liability against any |
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person to whom Subsection (c) does not apply; or |
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(3) affect the responsibility of a person for solid |
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waste under Section 361.271(a)(1) or (2). |
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SECTION 3. The change in law made by this Act: |
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(1) does not apply to any judicial or administrative |
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action initiated by the Texas Commission on Environmental Quality |
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that is pending or on appeal on the effective date of this Act; and |
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(2) does not affect any final decision in a judicial or |
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administrative action that exists on the effective date of this |
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Act. |
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SECTION 4. This Act takes effect September 1, 2021. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 1818 passed the Senate on |
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April 21, 2021, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 1818 passed the House on |
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May 11, 2021, by the following vote: Yeas 132, Nays 11, two |
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present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |