Texas 2021 - 87th Regular

Texas House Bill HB4333 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	By: Landgraf H.B. No. 4333
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to a defense under the Solid Waste Disposal Act for persons
7	7	engaged in certain scrap metal recycling transactions.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 361.275(a), Health and Safety Code, is
10	10	amended to read as follows:
11	11	(a) Except as provided by Section 361.2755, a [A] person
12	12	responsible for solid waste under Section 361.271 is liable under
13	13	Section 361.272 or 361.273 unless the person can establish by a
14	14	preponderance of the evidence that the release or threatened
15	15	release was caused solely by:
16	16	(1) an act of God;
17	17	(2) an act of war;
18	18	(3) an act or omission of a third person; or
19	19	(4) any combination of Subdivisions (1), (2), and (3).
20	20	SECTION 2. Subchapter I, Chapter 361, Health and Safety
21	21	Code, is amended by adding Section 361.2755 to read as follows:
22	22	Sec. 361.2755. SCRAP METAL RECYCLING TRANSACTIONS;
23	23	DEFENSE. (a) In this section:
24	24	(1) "Consuming facility" means the facility where the
25	25	scrap metal was handled, processed, reclaimed, stored, or otherwise
26	26	managed by a person other than the person who arranged for recycling
27	27	of the scrap metal.
28	28	(2) "Scrap metal" means bits and pieces of metal parts
29	29	(e.g., bars, turnings, rods, sheets, or wire) or metal pieces that
30	30	may be combined together with bolts or soldering (e.g., radiators,
31	31	scrap automobiles, railroad box cars), which when worn or
32	32	superfluous can be recycled. The term does not include:
33	33	(A) a shipping container, whether intact or not,
34	34	that:
35	35	(i) has a capacity of not less than 30
36	36	liters and not more than 3,000 liters; and
37	37	(ii) has any hazardous substance contained
38	38	in or adhering to the container, other than metal bits and pieces or
39	39	a hazardous substance that forms an integral part of the container;
40	40	or
41	41	(B) any item of material that contained
42	42	polychlorinated biphenyls at a concentration in excess of 50 parts
43	43	per million or any new standard adopted pursuant to applicable
44	44	federal laws;
45	45	(C) any material excluded from this definition by
46	46	commission rule; or
47	47	(D) any material excluded from the definition of
48	48	scrap metal under 42 U.S.C. Section 9627(d) by a federal
49	49	regulation.
50	50	(b) This section:
51	51	(1) applies only to a scrap metal transaction that
52	52	occurs on or after November 29, 1999; and
53	53	(2) does not apply to any material that is not scrap
54	54	metal.
55	55	(c) A person who arranges for recycling of scrap metal,
56	56	other than a person described by Subsection (f), is not responsible
57	57	for the scrap metal under Section 361.271(a)(3) or (4) if the person
58	58	can establish by a preponderance of the evidence that the following
59	59	criteria were met at the time of the recycling transaction:
60	60	(1) the scrap metal met a commercial specification
61	61	grade;
62	62	(2) a market existed for the scrap metal;
63	63	(3) a substantial portion of the scrap metal was made
64	64	available for use as feedstock for the manufacture of a new saleable
65	65	product;
66	66	(4) the scrap metal could have been a replacement or
67	67	substitute for a virgin raw material, or the product to be made from
68	68	the scrap metal could have been a replacement or substitute for a
69	69	product made, in whole or in part, from a virgin raw material;
70	70	(5) the person was in compliance with any applicable
71	71	regulations or standards regarding the handling, processing,
72	72	reclamation, storage, transport, or management of the scrap metal
73	73	or other activities associated with the recycling of scrap metal;
74	74	(6) the person did not melt the scrap metal prior to
75	75	the transaction; and
76	76	(7) the person exercised reasonable care to determine
77	77	that the consuming facility was in compliance with the substantive
78	78	provisions of any:
79	79	(A) federal, state, or local environmental law or
80	80	regulation applicable to the handling, processing, reclamation,
81	81	transport, or storage of scrap metal or other management activities
82	82	associated with scrap metal; or
83	83	(B) compliance order or decree issued pursuant to
84	84	a law or regulation described by Paragraph (A).
85	85	(d) For purposes of Subsection (c)(6), thermal separation
86	86	of two or more materials due to differences in melting points of the
87	87	materials does not constitute melting.
88	88	(e) For purposes of Subsection (c)(7), reasonable care
89	89	shall be determined using criteria that include:
90	90	(1) the price paid for the scrap metal in the recycling
91	91	transaction;
92	92	(2) the ability of the person to detect the nature of
93	93	the consuming facility's operations concerning the facility's
94	94	handling, processing, storage, transport, or reclamation of scrap
95	95	metal or other management activities associated with the scrap
96	96	metal; and
97	97	(3) the result of inquiries made by the person to the
98	98	appropriate federal, state, or local environmental agency
99	99	regarding the consuming facility's past and current compliance
100	100	with:
101	101	(A) substantive provisions of any law,
102	102	regulation, order, or decree described by Subsection (c)(7); and
103	103	(B) any requirement to obtain a permit applicable
104	104	to the handling, processing, storage, transport, or reclamation of
105	105	scrap metal or other management activity associated with scrap
106	106	metal.
107	107	(f) Subsection (c) does not apply to a person who arranges
108	108	for the recycling of scrap metal if the person:
109	109	(1) had an objectively reasonable basis to believe at
110	110	the time of the scrap metal transaction that:
111	111	(A) the scrap metal would not be recycled;
112	112	(B) the scrap metal would be burned as fuel or for
113	113	energy recovery or incineration; or
114	114	(C) the consuming facility was not in compliance
115	115	with:
116	116	(i) a substantive provision of any law,
117	117	regulation, order, or decree described by Subsection (c)(7); or
118	118	(ii) a requirement to obtain a permit
119	119	applicable to the handling, processing, transport, storage, or
120	120	reclamation of the scrap metal or other management activity
121	121	associated with the scrap metal;
122	122	(2) had reason to believe that hazardous substances
123	123	had been added to the scrap metal for purposes other than processing
124	124	for recycling; or
125	125	(3) failed to exercise reasonable care with respect to
126	126	the management, processing, storage, transport, reclamation, and
127	127	handling of the scrap metal, including adhering to customary
128	128	industry practices current at the time of the recycling transaction
129	129	designed to minimize, through source control, contamination of the
130	130	scrap metal by hazardous substances.
131	131	(g) For purposes of Subsection (f)(1), an objectively
132	132	reasonable basis for belief shall be determined using criteria that
133	133	include:
134	134	(1) the size of the person's business;
135	135	(2) customary industry practices, including customary
136	136	industry practices current at the time of the recycling transaction
137	137	designed to minimize, through source control, contamination of the
138	138	scrap metal by hazardous substances;
139	139	(3) the price paid for the scrap metal in the recycling
140	140	transaction; and
141	141	(4) the ability of the person to detect the nature of
142	142	the consuming facility's operations concerning the facility's
143	143	handling, processing, or reclamation of scrap metal or other
144	144	management activities associated with scrap metal.
145	145	(h) The commission may adopt rules as necessary to
146	146	administer this section, including rules excluding additional
147	147	materials from the definition of scrap metal.
148	148	(i) A person who commences an action for contribution
149	149	against a person who is not responsible for the scrap metal under
150	150	this section is liable to that person for all reasonable costs
151	151	incurred in defending that action, including reasonable attorney's
152	152	fees and expert witness fees.
153	153	(j) This section may not be construed to:
154	154	(1) affect any defenses or liabilities of any person
155	155	to whom Subsection (c) does not apply;
156	156	(2) create any presumption of liability against any
157	157	person to whom Subsection (c) does not apply; or
158	158	(3) affect the liability of a person under Section
159	159	361.271 (a)(1) or (2).
160	160	SECTION 3. The change in law made by this Act:
161	161	(1) does not apply to any judicial or administrative
162	162	action initiated by the commission that is pending or on appeal on
163	163	the effective date of this Act; and
164	164	(2) does not affect any final decision in a judicial or
165	165	administrative action that exists on the effective date of this
166	166	Act.
167	167	SECTION 4. This Act takes effect September 1, 2021.